Fair Work Act 2009

No. 28, 2009

Compilation No. 45

Compilation date:

11 September 2021

Includes amendments up to:

Act No. 104, 2021

Registered:

8 October 2021

This compilation is in 2 volumes

Volume 1:

sections 1-536H

Volume 2:

sections 537-800

Schedules

Endnotes

Each volume has its own contents

Prepared by the Office of Parliamentary Counsel, Canberra

About this compilation

This compilation

This is a compilation of the Fair Work Act 2009 that shows the text of the law
as amended and in force on 11 September 2021 (the
compilation date).

The notes at the end of this compilation (the endnotes) include information
about amending laws and the amendment history of provisions of the compiled
law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the
compiled law. Any uncommenced amendments affecting the law are accessible
on the Legislation Register (www.legislation.gov.au). The details of
amendments made up to, but not commenced at, the compilation date are
underlined in the endnotes. For more information on any uncommenced
amendments, see the series page on the Legislation Register for the compiled
law.

Application, saving and transitional provisions for provisions and
amendments

If the operation of a provision or amendment of the compiled law is affected by
an application, saving or transitional provision that is not included in this
compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see
the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as
modified but the modification does not amend the text of the law. Accordingly,
this compilation does not show the text of the compiled law as modified. For
more information on any modifications, see the series page on the Legislation
Register for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a
provision of the law, details are included in the endnotes.

Contents

Chapter 1—Introduction

Part 1-1—Introduction

Division 1—Preliminary

Division 2—Object of this Act

Division 3—Guide to this Act

organisations etc. (Chapter 3)

9A     Application, transitional and saving provisions for

amendments (Schedules)

Part 1-2—Definitions

Division 1—Introduction

Division 2—The Dictionary

Division 3—Definitions relating to the meanings of employee,

employer etc.

14A Transitional matters relating to employers etc. becoming, or

ceasing to be, national system employers etc

15A   Meaning of casual employee

Division 4—Other definitions

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

employees

23A    Terms relating to superannuation

Part 1-3—Application of this Act

Division 1—Introduction

Division 2—Interaction with State and Territory laws

State and Territory laws

Division 2A—Application of this Act in States that refer matters

before 1 July 2009

30A   Meaning of terms used in this Division

30B    Meaning of referring State

30C    Extended meaning of national system employee

30D   Extended meaning of national system employer

30E    Extended ordinary meanings of employee and employer

30F    Extended meaning of outworker entity

30G    General protections

30H    Division only has effect if supported by reference

Division 2B—Application of this Act in States that refer matters

after 1 July 2009 but on or before 1 January 2010

30K   Meaning of terms used in this Division

30L    Meaning of referring State

30M   Extended meaning of national system employee

30N   Extended meaning of national system employer

30P    Extended ordinary meanings of employee  and employer

30Q   Extended meaning of outworker entity

30R    General protections

30S    Division only has effect if supported by reference

Division 3—Geographical application of this Act

Australia

parts of Australia

32A   Rules may modify application of this Act in Norfolk Island

continental shelf

and the continental shelf

employee

35A   Regulations excluding application of Act

Division 4—Miscellaneous

employment laws

40A   Application of the Acts Interpretation Act 1901

Chapter 2—Terms and conditions of employment

Part 2-1—Core provisions for this Chapter

Division 1—Introduction

Division 2—Core provisions for this Chapter

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

Act

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

Subdivision C—Terms and conditions of employment provided by

a modern award

organisation or outworker entity

organisation or outworker entity

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

person

employee or employee organisation

employee or employee organisation

Division 3—Interaction between the National Employment

Standards, modern awards and enterprise
agreements

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

a modern award or enterprise agreement

contravening section 55 have no effect

Subdivision B—Interaction between modern awards and
enterprise agreements

agreements

57A Designated outworker terms of a modern award continue to

apply

Subdivision C—Interaction between one or more enterprise

agreements

Part 2-2—The National Employment Standards

Division 1—Introduction

Division 2—The National Employment Standards

applying to employment of employees

Division 3—Maximum weekly hours

averaging of hours of work

employees

Division 4—Requests for flexible working arrangements

Division 4A—Offers and requests for casual conversion

Subdivision A—Application of Division

66A Division applies to casual employees etc

Subdivision B—Employer offers for casual conversion

66AA Subdivision does not apply to small business employers

66B    Employer offers

66C    When employer offers not required

66D   Employee must give a response

66E    Acceptances of offers

Subdivision C—Residual right to request casual conversion

66F    Employee requests

66G   Employer must give a response

66H   Refusals of requests

66J    Grants of requests

Subdivision D—Other provisions

66K   Effect of conversion

66L    Other rights and obligations

66M Disputes about the operation of this Division

Division 5—Parental leave and related entitlements

Subdivision A—General

months of service

16 etc

entitled to continue on leave etc

Subdivision B—Parental leave

employee couple who each intend to take leave

each intend to take leave

72A Flexible unpaid parental leave

leave within 6 weeks before the birth

more of available parental leave period

to 12 months beyond available parental leave period

77A    Effect of stillbirth or death of child on unpaid parental leave

78A    Ho spitalised children

79A   Keeping in touch days

79B Unpaid parental leave not extended by paid leave or keeping

in touch days

Subdivision C—Other entitlements

81A   Paid no safe job leave

a further medical certificate

82A   Unpaid no safe job leave

84A   Replacement employees

Division 6—Annual leave

times

payment for period of untaken paid annual leave

accordance with permitted cashing out terms

terms relating to cashing out and taking paid annual leave

award/agreement free employees

Division 7—Personal/carer’s leave, compassionate leave and
unpaid family and domestic violence leave

Subdivision A—Paid personal/carer’s leave

employees

public holiday

accordance with permitted cashing out terms

terms relating to cashing out paid personal/carer’s leave

Subdivision B—Unpaid carer’s leave

Subdivision C—Compassionate leave

employees)

Subdivision CA—Unpaid family and domestic violence leave

106A  Entitlement to unpaid family and domestic violence leave

106B  Taking unpaid family and domestic violence leave

106C   Confidentiality

106D  Operation of unpaid family and domestic violence leave and

leave for victims of crime

106E   Entitlement to days of leave

Subdivision D—Notice and evidence requirements

Division 8—Community service leave

eligible community service activity

Division 9—Long service leave

113A Enterprise agreements may contain terms discounting service

under prior agreements etc. in certain circumstances

Division 10—Public holidays

Division 11—Notice of termination and redundancy pay

Subdivision A—Notice of termination or payment in lieu of notice

notice of termination by employees

Subdivision B—Redundancy pay

incapacity to pay

to pay redundancy pay

Subdivision C—Limits on scope of this Division

Division 12—Fair Work Ombudsman to prepare and publish
statements

Information Statement

125A  Fair Work Ombudsman to prepare and publish Casual

Employment Information Statement

125B Giving new employees the Casual Employment Information
Statement

Division 13—Miscellaneous

lieu

agreements can do

free employees

award/agreement free employees

receiving workers’ compensation

Part 2-3—Modern awards

Division 1—Introduction

Division 2—Overarching provisions

wages

Division 3—Terms of modern awards

Subdivision A—Preliminary

Subdivision B—Terms that may be included in modern awards

Subdivision C—Terms that must be included in modern awards

enterprise awards and State reference public sector modern
awards

143A   Coverage terms of modern enterprise  awards

143B Coverage terms of State reference public sector modern
awards

meet requirements of flexibility term

145A   Consultation about changes to rosters  or hours of work

149B Term requiring avoidance of liability to pay superannuation

guarantee charge

149C   Default fund terms

149D Default fund term must provide for contributions to be made
to certain funds

Subdivision D—Terms that must not be included in modern
awards

employer etc

Division 4A—4 yearly reviews of default fund terms of modern
awards

Subdivision A—4 yearly reviews of default fund terms

156A   4 yearly reviews of default fund terms

Subdivision B—The first stage of the 4 yearly review

156B  Making the Default Superannuation List

156C  Applications to list a standard MySuper product

156D Submissions on applications to list a standard MySuper
product

156E Determining applications to list a standard MySuper product

156F First stage criteria

Subdivision C—Second stage of the 4 yearly review

156G  Review of the default fund term of modern awards

156H  Default fund term must specify certain superannuation funds

156J   Variation to comply with section 149D

156K  Transitional authorisation for certain superannuation funds

Subdivision D—The Schedule of Approved Employer MySuper
Products

156L  The Schedule of Approved Employer MySuper Products

156M FWC to invite applications to include employer MySuper
products on schedule

156N Making applications to include employer MySuper products
on schedule

156P   FWC to determine applications

156Q  The first stage test

156R  Submissions about the first stage test

156S   The second stage test

156T   Submissions about the second stage test

Subdivision E—Publishing documents under this Division

156U  Publishing documents under this Division

Division 5—Exercising modern award powers

Subdivision A—Exercise of powers if necessary to achieve modern
awards objective

modern awards objective

Subdivision B—Other situations

employer, organisation or outworker entity

159A Variation of default fund term of modern award

uncertainty or correct error

Rights Commission

Division 6—General provisions relating to modern award
powers

awards

award minimum wages

modern award minimum wages come into operation

Division 7—Additional provisions relating to modern enterprise

awards

168A Modern enterprise awards

168B The modern enterprise awards objective

168C Rules about making and revoking modern enterprise awards 260
168D Rules about changing coverage of modern enterprise awards 262

Division 8—Additional provisions relating to State reference

public sector modern awards

168E State reference public sector modern awards

168F The State reference public sector modern awards objective

168G Making State reference public sector modern awards on
application

168H State reference public sector modern awards may contain
State-based differences

168J When State reference public sector modern awards come
into operation

168K Rules about revoking State reference public sector modern
awards

168L Rules about varying coverage of State reference public
sector modern awards

Part 2-4—Enterprise agreements

Division            1—Introduction

Division 2—Employers and employees may make enterprise

agreements

Division 3—Bargaining and representation during bargaining 274

rights

agreements that are not greenfields agreements

agreements that are greenfields agreements

178A Revocation of appointment of bargaining representatives etc 280
178B Notified negotiation period for a proposed single-enterprise

agreement that is a greenfields agreement

Division 4—Approval of enterprise agreements

Subdivision A—Pre-approval steps and applications for the

FWC’s approval

representatives

179A  Disclosure by employers

agreement etc

enterprise agreement

enterprise agreement cover it

approve the agreement

approval of an enterprise agreement

185A Material that must accompany an application under
subsection 182(4) for approval of a greenfields agreement

Subdivision B—Approval of enterprise agreements by the FWC

general requirements

additional requirements

agreement

188A Disclosure documents

pass better off overall test—public interest test

undertakings

agreement

Subdivision C—Better off overall test

Subdivision D—Unlawful terms

195A  Meaning of objectionable emergency management term

Subdivision E—Approval requirements relating to particular
kinds of employees

term

pieceworker term

Subdivision F—Other matters

Division 5—Mandatory terms of enterprise agreements

flexibility term

Division 6—Base rate of pay under enterprise agreements

wage order rate etc

Subdivision A—Variation of enterprise agreements by employers
and employees

employers and employees

variation of an enterprise agreement

enterprise agreement

agreement

with undertakings

enterprise agreement

Subdivision B—Variations of enterprise agreements where there
is ambiguity, uncertainty or discrimination

or uncertainty

217A FWC may deal with certain disputes about variations

Australian Human Rights Commission

Subdivision C—Termination of enterprise agreements by
employers and employees

enterprise agreement

termination of an enterprise agreement

enterprise agreement

agreement

Subdivision D—Termination of enterprise agreements after
nominal expiry date

its nominal expiry date

Division 8—FWC’s general role in facilitating bargaining

Subdivision A—Bargaining orders

bargaining requirements

Subdivision B—Serious breach declarations

Subdivision C—Majority support determinations and scope

orders

Subdivision D—FWC may deal with a bargaining dispute on

request

Division 9—Low-paid bargaining

etc. comes into operation

Subdivision A—Declaration that employers may bargain together
for a proposed enterprise agreement

for a proposed enterprise agreement

Subdivision B—Single interest employer authorisations

authorisation

authorisation is in operation

Division 11—Other matters

254A  Entitlement for volunteer bodies to make submissions

255A  Limitations relating to greenfields agreements

256A How employees, employers and employee organisations are

to be described

from time to time etc

Part 2-5—Workplace determinations

Division 1—Introduction

Division 2—Low-paid workplace determinations

determination

determination—general requirements

determination—additional requirements

workplace determination

determination

Division 4—Bargaining related workplace determinations

determination

271A Limitations relating to greenfields agreements

Division 5—Core terms, mandatory terms and agreed terms of

workplace determinations etc.

a workplace determination

Division 6—Operation, coverage and interaction etc. of

workplace determinations

by a workplace determination

agreements etc

enterprise agreement

Division 7—Other matters

281AA Entitlement for volunteer bodies to make submissions

281A How employees, employers and employee organisations are

to be described

Part 2-6—Minimum wages

Division           1—Introduction

Division 3—Annual wage reviews

Subdivision A—Main provisions

awards come into operation

etc

Subdivision B—Provisions about conduct of annual wage reviews 390

comment on submissions

Division 4—National minimum wage orders

ambiguity or uncertainty or correct error

orders come into operation

minimum wage orders

Part 2-7—Equal remuneration

Division 1—Introduction

Division 2—Equal remuneration orders

rates of remuneration

remuneration in stages

and orders of the FWC

Part 2-8—Transfer of business

Division 1—Introduction

Division 2—Transfer of instruments

transferable instrument

covered by transferable instrument

Division 3—Powers of the FWC

transferring employees

non-transferring employees

Part 2-9—Other terms and conditions of employment

Division 1—Introduction

Division 2—Payment of wages etc.

or paid, in contravention of this Division

earnings

333A  Prospective employees

Chapter 3—Rights and responsibilities of employees,

employers, organisations etc.

Part 3-1—General protections

Division 1—Introduction

Division 2—Application of this Part

Division 3—Workplace rights

Division 4—Industrial activities

Division 5—Other protections

Division 6—Sham arrangements

arrangement

Division 7—Ancillary rules

Division 8—Compliance

Subdivision A—Contraventions involving dismissal

Subdivision B—Other contraventions

dispute

Subdivision C—Appeals and costs orders

375A  Appeal rights

375B   Costs orders against parties

377A  Schedule of costs

Part 3-2—Unfair dismissal

Division 1—Introduction

Division 2—Protection from unfair dismissal

Division 3—What is an unfair dismissal

Division 4—Remedies for unfair dismissal

Division 5—Procedural matters

399A  Dismissing applications

400A  Costs orders against parties

Part 3-3—Industrial action

Division 1—Introduction

Division 2—Protected industrial action

Subdivision A—What is protected industrial action

Subdivision B—Common requirements for industrial action to be
protected industrial action

protected industrial action

Subdivision C—Significance of industrial action being protected

industrial action

payments to employees

416A Employer response action does not affect continuity of
employment

Division 3—No industrial action before nominal expiry date of
enterprise agreement etc.

nominal expiry date of enterprise agreement etc

Division 4—FWC orders stopping etc. industrial action

employers stop etc

system employees or non-national system employers stop
etc

Division 5—Injunction against industrial action if pattern
bargaining is being engaged in

representative is engaging in pattern bargaining

Division 6—Suspension or termination of protected industrial
action by the FWC

significant economic harm etc

action—endangering life etc

harm to a third party

ballot after a period of suspension    etc

suspension etc

Division 7—Ministerial declarations

Division 8—Protected action ballots

Subdivision A—Introduction

Subdivision B—Protected action ballot orders

Electoral Commission and independent advisor

action ballots to be held at the same time

Subdivision C—Conduct of protected action ballot

Electoral Commission or other specified ballot agent

Subdivision D—Effect of protected action ballot

protected action ballot

action ballot results

technical breaches

Subdivision E—Compliance

Subdivision F—Liability for costs of protected action ballot

Electoral Commission

Commission

Subdivision G—Miscellaneous

disclosed

Subdivision A—Protected industrial action

industrial action

industrial action

Subdivision B—Industrial action that is not protected industrial
action

industrial action

industrial action

Subdivision C—Miscellaneous

Division 10—Other matters

Part 3-4—Right of entry

Division 1—Introduction

Division 2—Entry rights under this Act

Subdivision A—Entry to investigate suspected contravention

483AA Application to the FWC for access to non-member records

Subdivision AA—Entry to investigate suspected contravention
relating to TCF award workers

483A Entry to investigate suspected contravention relating to TCF
award workers

483B  Rights that may be exercised while on premises

483C  Later access to record or document

483D  Entry onto other premises to access records and documents

483E  Later access to record or document—other premises

Subdivision B—Entry to hold discussions

Subdivision C—Requirements for permit holders

492A  Route to location of interview and discussions

Division 3—State or Territory OHS rights

OHS right

Division 4—Prohibitions

Division 5—Powers of the FWC

Subdivision A—Dealing with disputes

505A  FWC may deal with a dispute about frequency of entry to

hold discussions

Subdivision B—Taking action against permit holder

Subdivision C—Restricting rights of organisations and officials

where misuse of rights

misused rights

Subdivision D—When the FWC must revoke or suspend entry

permits

Subdivision E—General rules for suspending entry permits

Division 6—Entry permits, entry notices and certificates

Subdivision A—Entry permits

Subdivision B—Entry notices

Subdivision C—Exemption certificates

Subdivision D—Affected member certificates

Subdivision E—Miscellaneous

Division 7—Accommodation and transport arrangements in

remote areas

521A Meaning of accommodation arrangement

521B Meaning of transport arrangement

521C Accommodation arrangements for remote areas

521D Transport arrangements for remote areas

Part 3-5—Stand down

Division 1—Introduction

circumstances

leave or absence

Division 3—Dealing with disputes

operation of this Part

Part 3-6—Other rights and responsibilities

Division 1—Introduction

Division 2—Notification and consultation relating to certain

dismissals

Subdivision A—Requirement to notify Centrelink

Subdivision B—Failure to notify or consult registered employee

associations

registered employee associations about dismissals

Subdivision C—Limits on scope of this Division

Division 3—Employer obligations in relation to employee

records and pay slips

Part 3-7—Corrupting benefits

Division 1—Introduction

536A    Guide to this Part

536B    Meanings of employee and employer

536C Concurrent operation of State and Territory laws

536CA  Dishonesty

Division 2—Giving, receiving or soliciting corrupting benefits 597

536D  Giving, receiving or soliciting a corrupting benefit

536E   Meaning of registered organisations officer or employee

Division 3—Cash or in kind payments to employee organisations

etc.

536F   Giving a cash or in kind payment

536G  Receiving or soliciting a cash or in kind payment

536H Implied freedom of political communication

Section 1

An Act relating to workplace relations, and for
related purposes

Chapter 1—Introduction

Part 1-1—Introduction

Division 1—Preliminary

1 Short title

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

2 Commencement

Section 2

Section3

Division 2—Object of this Act

3 Object of this Act

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

Section 3

good faith bargaining obligations and clear rules governing
industrial action; and

Section4

Division 3—Guide to this Act

4 Guide to this Act

Overview of this Act

Overview of the rest of this Chapter

Definitions

Application, saving and transitional provisions for amendments

Section 5

5 Terms and conditions of employment (Chapter 2)

Note:     Workplace determinations are another source of main terms and

conditions. In most cases, this Act applies to a workplace
determination as if it were an enterprise agreement in operation (see
section 279).

Main terms and conditions

Section6
instruments if there is a transfer of business from one national
system employer to another national system employer.

Other terms and conditions

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

Section 7

laws. In exercising those rights, permit holders must comply with
the requirements set out in the Part.

7 Compliance and enforcement (Chapter 4)
8 Administration (Chapter 5)

Section9

9 Miscellaneous (Chapter 6)

(4A) Part 6-3A provides for the transfer of terms and conditions of
employment that are provided for in particular State industrial
instruments if there is a transfer of business from a non-national
system employer that is a State public sector employer of the State
to a national system employer.

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

Section 9A

(5B) Part 6-4B allows a worker who has been bullied or sexually
harassed at work to apply to the FWC for an order to stop the
bullying or sexual harassment.

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

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

Note:      Application, transitional and saving provisions relating to the

enactment of this Act, and States becoming referring States, are in the
Transitional Act.

SectionlO

Part 1-2—Definitions

Division 1—Introduction

10 Guide to this Part

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

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

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

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

11 Meanings of employee and employer

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

Note:      See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

Section 12

Division 2—The Dictionary

12 The Dictionary

In this Act:

AAT presidential member means a person who is a presidential
member of the Administrative Appeals Tribunal under the
Administrative Appeals Tribunal Act 1975.

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

accommodation arrangement: see subsections 521A(1) and (2).
action includes an omission.

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

adverse action: see section 342.

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

affected employer:

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

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

paragraph 495(2)(b).

affected member certificate: see subsection 520(1).

Section12

Age Discrimination Commissioner means the Age Discrimination
Commissioner appointed under the
Age Discrimination Act 2004.
agreed terms for a workplace determination: see section 274.

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

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

annual wage review: see subsection 285(1).

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

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

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

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

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

applies:

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

appropriate safe job: see subsection 81(3).

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

Section 12

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

Australia means the Commonwealth of Australia and, when used
in a geographical sense, includes Norfolk Island, the Territory of
Christmas Island and the Territory of Cocos (Keeling) Islands, but
does not include any other external Territory.

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

Australian employer: see subsection 35(1).

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

authority documents: see subsection 489(3).

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

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

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

award modernisation process means:

ballot paper: see subsection 455(2).

bargaining order: see subsection 229(1).

Section12

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

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

bargaining services: see subsection 353(3).

bargaining services fee: see subsection 353(2).

base rate of pay: see section 16.

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

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

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

casual employee: see section 15A.

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

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

close relative: see subsection 106B(3).

Commissioner means a Commissioner of the FWC.

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

Commonwealth means the Commonwealth of Australia and, when
used in a geographical sense, includes Norfolk Island, the Territory
of Christmas Island and the Territory of Cocos (Keeling) Islands,
but does not include any other external Territory.

Commonwealth authority means:

(i) incorporated under a law of the Commonwealth or a

State or a Territory; and

Section 12

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

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

Commonwealth outworker entity means an entity that is an
outworker entity otherwise than because of section 30F or 30Q.
Note:     Sections 30F and 30Q extend the meaning of outworker entity in

relation to a referring State.

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

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

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

complaint handler means:

compliance powers: see section 703.

compliance purposes: see subsection 706(1).

concurrent leave: see subsection 72(5).

conduct includes an omission.

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

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

Section12

Note:      In this context, Australia includes Norfolk Island, the Territory of

Christmas Island and the Territory of Cocos (Keeling) Islands (see the
definition of Australia).

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

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

consolidation order:

subsection 768BD(1); and

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

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

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

constitutional trade or commerce means trade or commerce:

continental shelf means:

Section 12

continuous service has a meaning affected by section 22.

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

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

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

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

copied State instrument: see section 768AH.

corporate MySuperproduct: see subsection 23A(3).

coverage terms:

covers:

de facto partner of a national system employee:

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

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

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

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

Deputy President means a Deputy President of the FWC.

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

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

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designated outworker terms entry: see subsection 483A(5).
directly, when used in relation to TCF work: see section 17A.

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

discriminatory term of an enterprise agreement: see section 195.

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

dismissed: see section 386.

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

eligible community service activity: see section 109.

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

(ca) the Industrial Court of New South Wales;

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

Note 1:    The definition in the Part will define employee either as a national

system employee or as having its ordinary meaning. However, there
may be particular provisions in the Part where a different meaning for
the term is specified.

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

30E(1) and 30P(1).

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Note 3:    See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

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

employee claim action: see section 409 and paragraph 471(4A)(c).
employee couple: 2 national system employees are an employee
couple
if each of the employees is the spouse or de facto partner of
the other.

employee organisationmeans an organisation of employees.

employee record, in relation to an employee, means:

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

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

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

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

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

30E(2) and 30P(2).

Section 12

Note 3:    See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

employer MySuperproduct: see subsection 23A(1B).

employer organisationmeans an organisation of employers.

employer response action: see section 411.

employing authority: see subsection 795(6).

engages in industrial activity: see section 347.

enterprise means a business, activity, project or undertaking.

enterprise agreement means:

entry notice: see subsection 487(2).

entry permit: see section 512.

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

equal remuneration order: see subsection 302(1).

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

exemption certificate: see subsection 519(1).

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

Expert Panel means an Expert Panel constituted under section 620.

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

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

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

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

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

Fair Work Inspector means:

fair work instrument means:

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

Federal Court means the Federal Court of Australia.

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

first stage criteria: see section 156F.

first stage test: see section 156Q.

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

flexible day: see subsection 74(3C).

Section 12

flexible unpaid parental leave: see subsection 72A(1).

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

franchise has the meaning given by the Corporations Act 2001.
franchisee entity of a franchise: see subsection 558A(1).

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

full rate of pay: see section 18.

FWC: see Fair Work Commission.

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

FWO notice: see subsection 712A(1).

General Manager means the General Manager of the FWC.

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

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

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

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

genuine redundancy: see section 389.

good faith bargaining requirements: see section 228.

greenfields agreement: see subsection 172(4).

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

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

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

high income employee: see section 329.

high income threshold: see section 333.

ILO means the International Labour Organization.

immediate family of a national system employee means:

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

independent contractor is not confined to an individual.
indirectly, when used in relation to TCF work: see section 17A.

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

individual flexibility arrangement:

industrial action: see section 19.

Section 12

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

industrial association means:

and includes:

industrial body means:

industrial law means:

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industry-specific redundancy schememeans redundancy or
termination payment arrangements in a modern award that are
described in the award as an industry-specific redundancy scheme.
inspector means a Fair Work Inspector.

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

involved in: see section 550.

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

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

jury service pay: see subsection 111(6).

jury service summons: see subsection 111(7).

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

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

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

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

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

lock out: see subsection 19(3).

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

low-paid workplace determination means:

Section 12

made:

magistrates court means:

majority support determination: see subsection 236(1).

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

medical certificate means a certificate signed by a medical
practitioner.

medical practitioner means a person registered, or licensed, as a
medical practitioner under a law of a State or Territory that
provides for the registration or licensing of medical practitioners.
membership action: see subsection 350(3).

minimum employment period: see section 383.

minimum wages objective: see subsection 284(1).

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

miscellaneous modern award: see subsection 163(4).

model consultation term: see subsection 205(3).

model flexibility term: see subsection 202(5).

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modern award means a modern award made under Part 2-3.
modern award minimum wages: see subsection 284(3).
modern award powers: see subsection 134(2).

modern awards objective: see subsection 134(1).

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

modern enterprise awards objective: see subsection 168B(1).
modifications includes additions, omissions and substitutions.

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

MySuperproduct: see subsection 23A(1).

named employer award: see subsection 312(2).

National Employment Standards: see subsection 61(3).

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

national system employee: see section 13.

Note 1:   Sections 30C and 30M extend the meaning of national system

employee in relation to a referring State.

Note 2:    See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

national system employer: see section 14.

Note 1:   Sections 30D and 30N extend the meaning of national system

employer in relation to a referring State.

Note 2:    See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

new employer:

Section 12

nominal expiry date:

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

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

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

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

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

non-transferring employee:

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

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

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

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

objectionable term means a term that:

either of the following:

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

office, in an industrial association, means:

Section 12

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

officer, of an industrial association, means:

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

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

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

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

organisation means an organisation registered under the
Registered Organisations Act.

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

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

outworker means:

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

Section12

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

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

Note:     Sections 30F and 30Q extend the meaning of outworker entity in

relation to a referring State.

outworker terms: see subsection 140(3).

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

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

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

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

Section 12

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

partial work ban: see subsection 470(3).

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

passes the better off overall test:

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

pecuniary penalty order means an order under subsection 546(1).
penalty unit has the meaning given by section 4AA of the Crimes
Act 1914.

period of employment: see section 384.

permissible occasion: see sections 102 and 104.

permit holder means a person who holds an entry permit.
permit qualification matters: see subsection 513(1).

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

pieceworker: see section 21.

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

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

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post-industrial action negotiating period: see subsection 266(3).
premises includes:

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

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

President means the President of the FWC.

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

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

prohibited beneficiary: see subsection 536F(5).

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

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

Section 12

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

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

protected from unfair dismissal: see section 382.

protected industrial action: see section 408.

public holiday: see section 115.

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

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

recognised emergency management body: see subsection 109(3).
reduction in take-home pay: see subsection 768BR(3).

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

registered employee association means:

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

registered organisations officer or employee: see section 536E.

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

Section12

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

related body corporatehas the meaning given by the Corporations
Act 2001.

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

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

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

Section 12

Note:      Sections 641 and 642 deal with termination of appointment and

suspension on the grounds of misbehaviour or incapacity.

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

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

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

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

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

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

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

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

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

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

Section12

scope order: see subsection 238(1).

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

second stage test:

section 179A disclosable benefit: see subsection 179A(4).
section 179 disclosable benefit: see subsection 179(6).
serious breach declaration:see section 234.

serious contravention has the meaning given by section 557A.
serious misconduct has the meaning prescribed by the regulations.
service: see section 22.

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

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

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

Note:      Other parts of speech and grammatical forms of “sexually harass” (for

example, “sexual harassment”) have a corresponding meaning (see
section 18A of the Acts Interpretation Act 1901).

sexually harassed at work: see subsection 789FD(2A).

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

single enterprise: see section 168A.

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

Section 12

single interest employer authorisation: see subsection 248(1).
small business employer: see section 23.

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

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

special low-paid workplace determination: see subsection 260(4).
spouse includes a former spouse.

standard application period: see paragraph 156N(2)(a).
standardMySuperproduct: see subsection 23A(1A).

State award: see section 768AJ.

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

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

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

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

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

state of mind: see subsection 793(3).

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

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

Section12

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

State public sector employee, of a State, means:

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

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

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

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

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

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

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

Section 12

step-child'.without limiting who is a step-child of a person,
someone who is a child of the person's de facto partner is a
step-child of a person, if he or she would be the person's step-child
except that the person is not legally married to the de facto partner.
stillborn: see subsection 77A(2).

superannuation fund means a superannuation fund or a
superannuation scheme
.

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

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

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

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

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

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

TCF outwork code: see section 789DA.

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

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

termination of industrial action instrument: see

subsection 266(2).

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

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

Territory employer: see subsection 338(4).

test time: see subsection 193(6).

Section12

this Act includes the regulations.

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

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

transferable instrument: see subsection 312(1).

transfer of business:

subsection 311(1); and

transfer of employment: see subsection 22(7).

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

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

transferring employee:

transferring work:

Section 12

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

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

unfair dismissal application: see subsection 729(2).

unfairly dismissed: see section 385.

unlawful term of an enterprise agreement: see section 194.

unlawful termination court application: see subsection 776(4).
unlawful termination FWC application: see subsection 730(2).

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

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

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

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

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

unpaid pre-adoption leave means unpaid pre-adoption leave to
which a national system employee is entitled under section 85
.
unpaid special maternity leave means unpaid special maternity
leave to which a national system employee is entitled under
section 80
.

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

Vice President means a Vice President of the FWC.

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vocational placement means a placement that is:

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

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

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

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

worker:

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

workplace determination means:

workplace instrument means an instrument that:

workplace law means:

Section 12

workplace right: see subsection 341(1).

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

Section13

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

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

Note:     Sections 30C and 30M extend the meaning of national system

employee in relation to a referring State.

Section 14

Note 1:    In this context, Australia includes Norfolk Island, the Territory of

Christmas Island and the Territory of Cocos (Keeling) Islands (see the
definition of Australia in section 12).

Note 2:    Sections 30D and 30N extend the meaning of national system

employer in relation to a referring State.

Particular employers declared not to be national system employers

Endorsement of declarations

Section14A

Note:     Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not

apply to the endorsement, revocation or amendment (see regulations
made for the purposes of paragraph 54(2)(b) of that Act).

Employers that cannot be declared

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

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

Section 15

15 Ordinary meanings of employee and employer

Note:     Subsections 30E(1) and 30P(1) extend the meaning of employee in

relation to a referring State.

Note:     Subsections 30E(2) and 30P(2) extend the meaning of employer in

relation to a referring State.

15A Meaning of casual employee

Section15A

Note:     Under Division 4A of Part 2-2, a casual employee who has worked for

an employer for at least 12 months and has, during at least the last 6
months of that time, worked a regular pattern of hours on an ongoing
basis may be entitled to be offered, or request, conversion to full-time
employment or part-time employment.

Section 16

Division 4—Other definitions

General meaning

Meaning for pieceworkers in relation to entitlements under
National Employment Standards

Section17

Meaning for pieceworkers for the purpose of section 206

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

enterprise agreement.

17 Meaning of child of a person

Note:      For example, for the purpose of leave entitlements in relation to

immediate family under Division 7 of Part 2-2(which deals with
personal/carer’s leave, compassionate leave and unpaid family and
domestic violence leave):

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

(1) If there is a chain or series of 2 or more arrangements for the
supply or production of goods produced by TCF work performed
by a person (the worker), the following provisions have effect:

Section 18

General meaning

Meaning for pieceworkers in relation to entitlements under
National Employment Standards

Section19

Note:      In Automotive, Food, Metals, Engineering, Printing and Kindred

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

Section 20

Note:      In this section, employee and employer have their ordinary meanings

(see section 11).

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

Agreed ordinary hours of work

If there is no agreement

Section21

If the agreed hours are less than usual weekly hours

Regulations may prescribe usual weekly hours

21 Meaning of pieceworker

(1) A pieceworker is:

Note:     Sections 197 and 198 affect whether the FWC may approve an

enterprise agreement covering a national system employee that
includes a term that:

Section 22

General meaning

(3A) Regulations made for the purposes of paragraph (2)(c) may
prescribe different kinds of periods for the purposes of different
provisions of this Act (other than provisions to which

Section22

subsection (4) applies). If they do so, subsection (3) applies
accordingly.

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

Note:      Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2

deal, respectively, with requests for flexible working
arrangements, parental leave and related entitlements, and notice
of termination or payment in lieu of notice.

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

When service with one employer counts as service with another
employer

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

Section 22

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

Note:      This subsection does not apply to a transfer of employment between

non-associated entities, for the purpose of Division 6 of Part 2-2
(which deals with annual leave) or Subdivision B of Division 11 of
Part 2-2 (which deals with redundancy pay), if the second employer
decides not to recognise the employee’s service with the first
employer for the purpose of that Division or Subdivision (see
subsections 91(1) and 122(1)).

Note:     For example:

Meaning of transfer of employment etc.

Section23

Note:      Paragraph (a) applies whether or not there is a transfer of business

from the first employer to the second employer.

Section 23A

relation to the dismissal of an employee, or termination of an
employee’s employment, the employees that are to be counted
include (subject to paragraph (2)(b)):

23A Terms relating to superannuation

(IA) A standard MySuper product is a MySuper product that is not an
employer MySuper product.

(IB) An employer MySuper product is a tailored MySuper product or a
corporate MySuper product.

Section23A


making an application or submission) is a reference to the RSE
licensee (within the meaning of the Superannuation Industry
(Supervision) Act 1993)
of the fund doing that thing.


Section 24

Part 1-3—Application of this Act

Division 1—Introduction

24 Guide to this Part

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

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

Divisions 2A and 2B are about the extended application of this Act
in States that have referred to the Parliament of the Commonwealth
matters relating to this Act.

Division 3 is about the geographical application of this Act.

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

25 Meanings of employee and employer

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

Note:      See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances). However, that Division does not
apply for the purposes of Divisions 2A and 2B of this Part.

Section26

Division 2—Interaction with State and Territory laws

26 Act excludes State or Territory industrial laws

Section 26

order in relation to equal remuneration for work of equal or
comparable value; or

that is prescribed by the regulations.

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

Section27

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

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

Note:      Examples of incidental matters covered by paragraph (d) are entry to

premises for a purpose connected with workers compensation,
occupational health and safety or outworkers.

Section 28

conditions are provided for by the National Employment
Standards or may be included in a modern award;

Note:    See also section 112 for employee entitlements in relation to

engaging in eligible community service activities.

28 Act excludes prescribed State and Territory laws

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

Section29

State and Territory laws

Note:      In addition, a term of an enterprise agreement could be an unlawful

term and of no effect if it requires or permits a designated emergency
management body to act other than in accordance with a State or
Territory law and this affects or could affect thebody’s volunteers (see
paragraphs 194(baa), 195A(1)(d) and 253(1)(b)).

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

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

Section 30A

Division 2A—Application of this Act in States that refer
matters before 1 July 2009

30A Meaning of terms used in this Division

(1) In this Division:

amendment reference of a State means the reference by the
Parliament of the State to the Parliament of the Commonwealth of
the matters covered by subsection 30B(4).

excluded subject mattermeans any of the following matters:

(i) employee associations;

Section30A

except to the extent that this Act as originally enacted deals with
the matter (directly or indirectly), or requires or permits
instruments made or given effect under this Act so to deal with the
matter.

express amendment means the direct amendment of the text of this
Act (whether by the insertion, omission, repeal, substitution or
relocation of words or matter), but does not include the enactment
by a Commonwealth Act of a provision that has, or will have,
substantive effect otherwise than as part of the text of this Act.

fundamental workplace relations principles: see
subsection 30B(9).

initial reference of a State means the reference by the Parliament
of the State to the Parliament of the Commonwealth of the matters
covered by subsection 30B(3).

law enforcement officer means:

and, without limiting paragraphs (a), (b) and (c), includes a police
reservist, a police recruit, a police cadet, a junior constable, a

Section 30A

police medical officer, a special constable, an ancillary constable
or a protective services officer.

local government employee, of a State, means:

local government employer, of a State, means an employer that is:

referral law, of a State, means the law of the State that refers
matters, as mentioned in subsection 30B(1), to the Parliament of
the Commonwealth.

referred provisions means the provisions of this Division to the
extent to which they deal with matters that are included in the
legislative powers of the Parliaments of the States.

referred subject matters means any of the following:

(i) minimum terms and conditions of employment,

(including employment standards and minimum wages);

Section30A

(viii) union rights of entry and rights of access to records;

but does not include any excluded subject matter.

referring State: see section 30B.

State public sector employee, of a State, means:

Section 30A

and includes a law enforcement officer to whom subsection 30E(1)
applies.

State public sector employer, of a State, means an employer that
is:

and includes a holder of an office to whom subsection 30E(2)
applies.

transition reference of a State means the reference by the
Parliament of the State to the Parliament of the Commonwealth of
the matters covered by subsection 30B(5).

(2) Words or phrases in the definition of excluded subject matter in
subsection (1), or in the definition of
referred subject matters in
subsection (1), that are defined in this Act (other than in this
Division) have, in that definition, the meanings set out in this Act
as in force on 1 July 2009.

Section30B

30B Meaning of referring State

Reference of matters by State Parliament to Commonwealth
Parliament

This subsection has effect subject to subsection (6).

Reference covering referred provisions

Section 30B

amending this Act, as originally enacted, to include the referred
provisions.

Reference covering amendments

Reference covering transitional matters

Effect of termination of reference

Section30B

circumstances referred to in subsection (8)), terminate on the
same day.

in a manner that is inconsistent with one or more of the
fundamental workplace relations principles.

(a) that this Act should provide for, and continue to provide for,
the following:

Section 30C

(b) that there should be, and continue to be, in connection with
the operation of this Act, the following:

30C Extended meaning of national system employee

Note:      Section 30H may limit the extent to which this section extends the

meaning of national system employee.

30D Extended meaning of national system employer

Note:     Section 30H may limit the extent to which this section extends the

meaning of national system employer.

Section30E

30E Extended ordinary meanings of employee and employer

Note:      Section 30H may limit the extent to which this section extends the

meanings of employee and employer.

30F Extended meaning of outworker entity

(1) An outworker entity includes a person, other than in the person's
capacity as a national system employer, so far as:

Section 30G

of this Division, and the work is reasonably likely to be
performed in that State;

Note:      Section 30H may limit the extent to which this section extends the

meaning of outworker entity.

30G General protections

Note:      Section 30H may limit the extent to which this section extends the

application of Part 3-1.

30H Division only has effect if supported by reference

A provision of this Division has effect in relation to a State that is a
referring State because of this Division only to the extent that the
State's referral law refers to the Parliament of the Commonwealth
the matters mentioned in subsection 30B(1) that result in the
Parliament of the Commonwealth having sufficient legislative
power for the provision so to have effect.

Section30K

Division 2B—Application of this Act in States that refer
matters after 1 July 2009 but on or before

1 January 2010

30K Meaning of terms used in this Division

(1) In this Division:

amendment reference of a State means the reference by the
Parliament of the State to the Parliament of the Commonwealth of
the matters covered by subsection 30L(4).

excluded subject mattermeans any of the following matters:

Section 30K

except to the extent that this Act as originally enacted deals with
the matter (directly or indirectly), or requires or permits
instruments made or given effect under this Act so to deal with the
matter.

express amendment means the direct amendment of the text of this
Act (whether by the insertion, omission, repeal, substitution or
relocation of words or matter), but does not include the enactment
by a Commonwealth Act of a provision that has, or will have,
substantive effect otherwise than as part of the text of this Act.

fundamental workplace relations principles: see
subsection 30L(9).

initial reference of a State means the reference by the Parliament
of the State to the Parliament of the Commonwealth of the matters
covered by subsection 30L(3).

law enforcement officer means:

Section30K

and, without limiting paragraphs (a), (b) and (c), includes a police
reservist, a police recruit, a police cadet, a junior constable, a
police medical officer, a special constable, an ancillary constable
or a protective services officer.

local government employee, of a State, means:

local government employer, of a State, means an employer that is:

referral law, of a State, means the law of the State that refers
matters, as mentioned in subsection 30L(1), to the Parliament of
the Commonwealth.

referred provisions means the provisions of this Division to the
extent to which they deal with matters that are included in the
legislative powers of the Parliaments of the States.

referred subject matters means any of the following:

Section 30K

(viii) union rights of entry and rights of access to records;

but does not include any excluded subject matter.

Section30K

referring State: see section 30L.

State public sector employee, of a State, means:

and includes a law enforcement officer of the State.

State public sector employer, of a State, means an employer that
is:

and includes a holder of an office of the State whom the State's
referral law provides is to be taken, for the purposes of this Act, to
be an employer of law enforcement officers of the State.

transition reference of a State means the reference by the
Parliament of the State to the Parliament of the Commonwealth of
the matters covered by subsection 30L(5).

(2) Words or phrases in the definition of excluded subject matter in
subsection (1), or in the definition of
referred subject matters in
subsection (1), that are defined in this Act (other than in this
Division) have, in that definition, the meanings set out in this Act
as in force on 1 July 2009.

Section 30L

30L Meaning of referring State

Reference of matters by State Parliament to Commonwealth
Parliament

This subsection has effect subject to subsection (6).

Reference covering referred provisions

Section30L

amended by amendments enacted at any time before the State's
referral law commenced, to include the referred provisions.

Reference covering amendments

Reference covering transitional matters

to the regime provided for by this Act.

Effect of termination of reference

Section 30L

in a manner that is inconsistent with one or more of the
fundamental workplace relations principles.

Section30M

30M Extended meaning of national system employee

Note:     Section 30S may limit the extent to which this section extends the

meaning of national system employee.

30N Extended meaning of national system employer

Section 30P

Note:      Section 30S may limit the extent to which this section extends the

meaning of national system employer.

30P Extended ordinary meanings of employee and employer

Note:      Section 30S may limit the extent to which this section extends the

meanings of employee and employer.

30Q Extended meaning of outworker entity

(1) An outworker entity includes a person, other than in the person's
capacity as a national system employer, so far as:

Section30R

other nature) in a State that is a referring State because
of this Division, and the work is reasonably likely to be
performed in that State;

Note:      Section 30S may limit the extent to which this section extends the

meaning of outworker entity.

30R General protections

application of Part 3-1), and does not limit the operation of
sections 338 and 339 (which set out the application of that Part).
Note:      Section 30S may limit the extent to which this section extends the

application of Part 3-1.

30S Division only has effect if supported by reference

A provision of this Division has effect in relation to a State that is a
referring State because of this Division only to the extent that the
State's referral law refers to the Parliament of the Commonwealth
the matters mentioned in subsection 30L(1) that result in the
Parliament of the Commonwealth having sufficient legislative
power for the provision so to have effect.

Section 31

Division 3—Geographical application of this Act

31 Exclusion of persons etc. insufficiently connected with Australia

Note 1:   In this context, Australia includes Norfolk Island, the Territory of

Christmas Island, the Territory of Cocos (Keeling) Islands and the
coastal sea (see the definition of Australia in section 12 of this Act
and section 15B of the
Acts Interpretation Act 1901).

Note 2:    The regulations may prescribe the person or entity by reference to a

class (see subsection 13(3) of the Legislation Act 2003).

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

Australia

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

Section32A

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

Note:      This Act would, in the absence of any such regulations, apply in

relation to these areas in the same way as it applies in relation to the
rest of Australia.

32A Rules may modify application of this Act in Norfolk Island

Note:      This Act would, in the absence of any such rules, apply in relation to

Norfolk Island in the same way as it applies in relation to the rest of
Australia.

Section 33

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

Extension to Australian ships etc.

Extensions prescribed by regulations

Section34

Modifications relating to extended application

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

Extension relating to Greater Sunrise special regime area

in relation to acts, omissions, matters and things directly or
indirectly connected with the exploration of, or exploitation of the
natural resources of, the continental shelf in the Greater Sunrise
special regime area. This subsection has effect whether or not the
extension is affected by subsection (4) of this section.

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

Extension to Australian ships etc.

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

Section 34

Extensions prescribed by regulations

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

Section35

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

Section 35A

35A Regulations excluding application of Act

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

36 Geographical application of offences

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

Note:      The extended geographical application that this Division gives to this

Act will apply to the offences in this Act.

Section37

Division 4—Miscellaneous

37 Act binds Crown
38 Act not to apply so as to exceed Commonwealth power

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

that, if it were the provision’s only application, would be
within the Commonwealth’s legislative power;
it is the Parliament’s intention that the provision is not to have the
invalid application, but is to have every valid application.

(a) apart from this section, it is clear, taking into account the
provision’s context and the purpose or object underlying this
Act, that the provision was intended to have that valid

Section 39

application only if every invalid application, or a particular
invalid application, of the provision had also been within the
Commonwealth’s legislative power; or

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

39 Acquisition of property

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

employment laws

Generally, public sector employment laws prevail

When fair work instruments or their terms prevail

Section40A

Meaning of public sector employment law

Laws that fair work instruments never prevail over

Relationship with section 29

40A Application of the Acts Interpretation Act 1901

Section 41

Chapter 2—Terms and conditions of
employment

Part 2-1—Core provisions for this Chapter

Division 1—Introduction

41 Guide to this Part

This Part has the core provisions for this Chapter, which deals with
terms and conditions of employment of national system employees.
The main terms and conditions come from the National

Employment Standards, modern awards, enterprise agreements and
workplace determinations.

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

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

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

Note:       In most cases, this Act applies to a workplace

determination as if it were an enterprise agreement in
operation (see section 279). For the rules about
workplace determinations, see Part 2-5.

Division 3 deals with the interaction between the National

Employment Standards, modern awards and enterprise agreements.

Section42

42 Meanings of employee and employer

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

Note:      See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

Section 43

Division 2—Core provisions for this Chapter

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

Main terms and conditions

Note 1:    The situations in which a workplace determination, rather than a

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

Note 2:    Part 2-8 provides for the transfer of certain modern awards, enterprise

agreements and workplace determinations if there is a transfer of
business from an employee’s employer to another employer.

Note 3:    Copied State instruments provide the main terms and conditions of

employment for an employee to whom the instrument applies. See
Part 6-3A generally for the rules about those instruments.

Other terms and conditions

Note:      Part 2-9 deals with miscellaneous terms and conditions of

employment, such as payment of wages.

Section44

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

44 Contravening the National Employment Standards

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

Note 1:    Subsections 65(5) and 76(4) state that an employer may refuse a

request for flexible working arrangements, or an application to extend
unpaid parental leave, only on reasonable business grounds.

Note 2:   Modern awards and enterprise agreements include terms about settling

disputes in relation to the National Employment Standards (other than
disputes as to whether an employer had reasonable business grounds
under subsection 65(5) or 76(4)).

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

45 Contravening a modern award

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

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

Note 2:   A person does not contravene a term of a modern award unless the

award applies to the person: see subsection 46(1).

46 The significance of a modern award applying to a person

Section 47

Note:     Subsection (2) does not affect the ability of outworker terms in a

modern award to be enforced under Part 4-1 in relation to outworkers
who are not employees.

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

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

Note 1:    Section 57 provides that a modern award does not apply to an

employee (or to an employer, or an employee organisation, in relation
to the employee) in relation to particular employment at a time when
an enterprise agreement applies to the employee in relation to that
employment.

Note 2:   In a modern award, coverage of an outworker entity must be

expressed to relate only to outworker terms: see subsection 143(4).

Modern awards do not apply to high income employees

Modern awards apply to employees in relation to particular
employment

Section48

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

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

Note:     In a modern award, coverage of an outworker entity must be

expressed to relate only to outworker terms: see subsection 143(4).

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

Modern awards that have ceased to operate

Section 49

Modern awards cover employees in relation to particular
employment

49 When a modern award is in operation

When a modern award comes into operation

Note:     For when a State reference public sector modern award comes into

operation, see section 168 J.

When a determination revoking a modern award comes into
operation

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

Section50

start of the employee’s first full pay period that starts on or after
the day the award or determination comes into operation.

Modern awards operate until revoked

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

A person must not contravene a term of an enterprise agreement.
Note 1:    This section is a civil remedy provision (see Part 4-1).

Note 2:   A person does not contravene a term of an enterprise agreement unless

the agreement applies to the person: see subsection 51(1).

51 The significance of an enterprise agreement applying to a person

or employee organisation

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

Section 53

Enterprise agreements apply to employees in relation to particular
employment

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

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

Employees and employers

Employee organisations

Effect ofprovisions of this Act, FWC orders and court orders on
coverage

(a) a provision of this Act or of the Registered Organisations
Act;

Section54

Enterprise agreements that have ceased to operate

Enterprise agreements cover employees in relation to particular
employment

54 When an enterprise agreement is in operation

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

an employee.

Section 54

Section55

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

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

National Employment Standards must not be excluded

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

Note:     In determining what is permitted to be included in a modern award or

enterprise agreement by a provision referred to in paragraph (a), any
regulations made for the purpose of section 127 that expressly prohibit
certain terms must be taken into account.

Note:     See also the note to section 63 (which deals with the effect of

averaging arrangements).

Section 55

Ancillary and supplementary terms may be included

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

example) terms:

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

example) terms:

Note 3:    Terms that would not be permitted by paragraph (a) or (b) include (for

example) terms requiring an employee to give more notice of the
taking of unpaid parental leave than is required by section 74.

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

Section56

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

Note:      For example, if the award or agreement entitlement is to 6 weeks of

paid annual leave per year, the provisions of the National Employment
Standards relating to the accrual and taking of paid annual leave will
apply, as a minimum standard, to 4 weeks of that leave.

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

Note:     A term of a modern award has no effect to the extent that it

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

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

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

Section 57

Subdivision B—Interaction between modern awards and
enterprise agreements
57 Interaction between modern awards and enterprise agreements
57A Designated outworker terms of a modern award continue to
appty

Section58

Subdivision C—Interaction between one or more enterprise
agreements
58 Only one enterprise agreement can apply to an employee

Only one enterprise agreement can apply to an employee

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

then:

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

Section 58

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

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

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

Section59

Part 2-2—The National Employment Standards

Division 1—Introduction

59 Guide to this Part

This Part contains the National Employment Standards.

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

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

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

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

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

Section 60

60 Meanings of employee and employer

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

Note:      See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

Section61

Division 2—The National Employment Standards

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

subsection 55(5).

Note:      Subsection 55(5) allows enterprise agreements to include terms that

have the same (or substantially the same) effect as provisions of the
National Employment Standards.

(ba) offers and requests for casual conversion (Division 4A);

Section 62

Division 3—Maximum weekly hours

62 Maximum weekly hours

Maximum weekly hours of work

Employee may refuse to work unreasonable additional hours

Determining whether additional hours are reasonable

Section63

Authorised leave or absence treated as hours worked

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

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

(i) 38 hours; and

Section 64

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

(2) The terms of a modern award or enterprise agreement may provide
for average weekly hours that exceed the hours referred to in
paragraph (1)(a) or (b) if the excess hours are reasonable for the
purposes of subsection 62(1).

Note:      Hours in excess of the hours referred to in paragraph (1)(a) or (b) that

are worked in a week in accordance with averaging terms in a modern
award or enterprise agreement (whether the terms comply with
subsection (1) or (2)) will be treated as additional hours for the
purposes of section 62. The averaging terms will be relevant in
determining whether the additional hours are reasonable (see
paragraph 62(3)(i)).

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

Note:      Hours in excess of the hours referred to in paragraph (1)(a) or (b) that

are worked in a week in accordance with an agreed averaging
arrangement (whether the arrangement complies with subsection (1)
or (2)) will be treated as additional hours for the purposes of
section 62. The averaging arrangement will be relevant in determining
whether the additional hours are reasonable (see paragraph 62(3)(i)).

Section65

Division 4—Requests for flexible working arrangements

65 Requests for flexible working arrangements

Employee may request change in working arrangements

then the employee may request the employer for a change in
working arrangements relating to those circumstances.

Note:     Examples of changes in working arrangements include changes in

hours of work, changes in patterns of work and changes in location of
work.

(IA) The following are the circumstances:

(IB) To avoid doubt, and without limiting subsection (1), an employee
who:

Terms and conditions of employmentchapter 2
The National Employment StandardsPart 2-2
Requests for flexible working arrangementsDivision 4

Section 65

may request to work part-time to assist the employee to care for the
child.

(2A) For the purposes of applying paragraph (2)(a) in relation to an
employee who has had their employment converted under
Division 4A of Part 2-2, any period for which the employee was a
regular casual employee of the employer is taken to be continuous
service for the purposes of that paragraph.

Formal requirements

Agreeing to the request

Section66

(5A) Without limiting what are reasonable business grounds for the
purposes of subsection (5), reasonable business grounds include
the following:

66 State and Territory laws that are not excluded

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

Section 66A

Division 4A—Offers and requests for casual conversion

Subdivision A—Application of Division
66A Division applies to casual employees etc.
Subdivision B—Employer offers for casual conversion
66AA Subdivision does not apply to small business employers

This Subdivision does not apply in relation to an employer that is a
small business employer.

66B Employer offers

Note:    An employee who meets the requirements of paragraphs (a) and (b)

would also be a regular casual employee because the employee has
been employed by the employer on a regular and systematic basis.

Section66C

Note:      If an offer is accepted, the conversion to full-time employment or

part-time employment has effect for all purposes (see section 66K).

66C When employer offers not required

Section 66C

which cannot be accommodated within the days or times the
employee is available to work during that period;

Note:      If an employer fails to give notice to a casual employee, the employee

has a residual right to request conversion to full-time or part-time
employment in certain circumstances: see Subdivision C.

12 month period referred to in paragraph 66B(1)(a).

Section66D

66D Employee must give a response
66E Acceptances of offers

paragraphs (1)(a), (b) and (c) before giving the notice.

Subdivision C—Residual right to request casual conversion
66F Employee requests

(1) A casual employee may make a request of an employer under this
section if:

Section 66F

Note:      Nothing in this Subdivision prevents an employee from requesting to

convert to full-time or part-time employment outside the provisions of
this Division, or prevents an employer from granting such a request.

Section66G

consistent with the regular pattern of hours worked
during that period; and

Note:      If a request is accepted, the conversion to full-time employment or

part-time employment has effect for all purposes (see section 66K).

66G Employer must give a response

The employer must give the employee a written response to the
request within 21 days after the request is given to the employer,
stating whether the employer grants or refuses the request.

66H Refusals of requests

Section 66J

which cannot be accommodated within the days or times the
employee is available to work during that period;

66J Grants of requests

paragraphs (1)(a), (b) and (c) before giving the notice.

Section66K

Subdivision D—Other provisions

66K Effect of conversion

To avoid doubt, an employee is taken, on and after the day
specified in a notice for the purposes of paragraph 66E(1)(c) or
66J(1)(c), to be a full-time employee or part-time employee of the
employer for the purposes of the following:

66L Other rights and obligations

Note:      The general protections provisions in Part 3-1 also prohibit the taking

of adverse action by an employer against an employee (which includes
a casual employee) because of a workplace right of the employee
under this Division.

66M Disputes about the operation of this Division

Application of this section

(1) This section applies to a dispute between an employer and
employee about the operation of this Division.

Section 66M

Note:     Modern awards and enterprise agreements must include a term that

provides a procedure for settling disputes in relation to the National
Employment Standards (see paragraph 146(b) and subsection 186(6)).

Resolving disputes

FWC may deal with disputes

Note:     For the purposes of paragraph (a), the FWC may deal with the dispute

as it considers appropriate, including by mediation, conciliation,
making a recommendation or expressing an opinion (see
subsection 595(2)).

Representatives

Section66M

Note:     A person may be represented by a lawyer or paid agent in a matter

before the FWC only with the permission of the FWC (see
section 596).

Section 67

Division 5—Parental leave and related entitlements

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

Employees other than casual employees

(1A) For the purposes of applying subsection (1) in relation to an
employee who has had their employment converted under
Division 4A of Part 2-2, any period for which the employee was a
regular casual employee of the employer is taken to be continuous
service for the purposes of that subsection.

Casual employees

Section67

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

Date at which employee must have completed 12 months of service

Meaning of birth-related leave

Meaning of adoption-related leave

Section 68

Meaning of day ofplacement

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

etc.

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

to continue on leave etc.

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

Section70

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

Note:      Steps covered by this subsection include (for example) complying

with a notice or evidence requirement of section 74 in relation to the
first employer.

Subdivision B—Parental leave

70 Entitlement to unpaid parental leave

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

Note:      The employee’s entitlement under this section may be affected by

other provisions of this Division.

couple who each intend to take leave

Application of this section

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

Section 71

Leave must be taken in single continuous period

When adoption-related leave must start

Section72

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

Note:      An employee whose leave starts under subsection (6) is still entitled

under section 76 to request an extension of the period of leave beyond
his or her available parental leave period. However, the period of
leave may not be extended beyond 24 months after the date of birth or
day of placement of the child (see subsection 76(7)).

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

Application of this section

Leave must be taken in single continuous period

Note 1:   An employee may take a form of paid leave at the same time as he or

she is on unpaid parental leave (see section 79).

Note 2:    For provisions affecting the rule in this subsection, see:

Section 72

When birth-related leave must start

When adoption-related leave must start

Limited entitlement to take concurrent leave

Section72

employee’s period of leave, if the concurrent leave complies with
the following requirements:

Note:      The concurrent leave is unpaid parental leave and so comes out of the

employee’s entitlement to 12 months of unpaid parental leave under
section 70.

Note:      The combined effect of this subsection, paragraph (5)(a) and

subsection 72A(9) is that members of an employee couple cannot take
longer than 8 weeks of unpaid parental leave at the same time,
whether the leave is taken under this section (including as concurrent
leave) or as flexible unpaid parental leave.

Section 72A

72A Flexible unpaid parental leave

Taking up to 30 days' leave during 24 months starting on date of
birth or day of placement

Note 1:   The flexible unpaid parental leave is unpaid parental leave and so

comes out of the employee’s entitlement to 12 months of unpaid
parental leave under section 70.

Note 2:    The number of days of flexible unpaid parental leave that the

employee takes must not be more than the number of flexible days
notified to the employer under subsection 74(3C) (subject to any
agreement under subsection 74(3D)).

How flexible unpaid parental leave may be taken

Effect of taking unpaid parental leave under other provisions

Section72A

Meaning of notional flexible period

Entitlement to take unpaid parental leave under other provisions
ends on taking flexible unpaid parental leave

Note:      This means that if the employee is to take unpaid parental leave under

another provision of this Division, the leave must be taken before the
employee takes the flexible unpaid parental leave.

Members of employee couples

Note:      The unpaid parental leave making up the first employee’s total could

be leave the first employee has taken under section 72 (including
concurrent leave) or flexible unpaid parental leave.

Multiple births

(a) the child and another child:

Section 73

(b) the employee takes flexible unpaid parental leave in relation
to the other child.

Interaction with sections 71 and 72

(11) Flexible unpaid parental leave taken by an employee is an
exception to the rules in sections 71 and 72 about:

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

Employer may ask employee to provide a medical certificate

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

Note:      Personal information given to an employer under this subsection may

be regulated under the Privacy Act 1988.

Section73

Employer may require employee to take unpaid parental leave

Note:      If the medical certificate contains a statement as referred to in

subparagraph (c)(i) and the employee has complied with the notice
and evidence requirements of section 74, then the employee is entitled
to be transferred to a safe job (see section 81) or to paid no safe job
leave (see section 81A).

When the period of leave must end

Note:     The combined effect of this subsection and subsection 72A(1) is that

the employer cannot require the employee to take any part of the
period of leave as flexible unpaid parental leave.

Section 74

Special rules about the period of leave

Note:      The period of leave is unpaid parental leave and so comes out of the

employee’s entitlement to 12 months of unpaid parental leave under
section 70.

74 Notice and evidence requirements

General requirement to give notice of taking leave

Notice requirements—leave to be taken under section 71 or 72

Section74

Notice requirements—flexible unpaid parental leave

(3A) If the leave is flexible unpaid parental leave, the employee must
give the notice to the employer:

(3B) However, the notice may be given at any later time if the employer
agrees.

(3C) The notice must specify the total number of days (flexible days) of
flexible unpaid parental leave that the employee intends to take in
relation to the child.

(3D) If the employer agrees, the employee may:

Taking leave under section 71 or 72—confirming or changing
intended start and end dates

Section 74

unless it is not practicable to do so.

(4A) Subsection (4) does not apply to a notice for a period of concurrent
leave referred to in subparagraph (2)(a)(ii).

Taking flexible unpaid parental leave—notifying days on which
employee will take leave

(4B) The employee must give the employer written notice of a flexible
day on which the employee will take flexible unpaid parental
leave:

(4C) If the employer agrees, the employee may change a day on which
the employee takes flexible unpaid parental leave from a day
specified in a notice under subsection (4B).

Evidencerequirements

Section75

(ii) that the child is, or will be,under 16 as at the day of
placement, or the expected day of placement, of the
child.

Example: If the application of paragraph 77A(1)(a) (which deals with the
stillbirth of a child) is relevant—certification by a medical practitioner
of the child as having been delivered.

Compliance

Note:      Personal information given to an employer under this section may be

regulated under the Privacy Act 1988.

75 Extending period of unpaid parental leave—extending to use
more of available parental leave period

Application of this section

Section 76

First extension by giving notice to employer

4 weeks before the end date of the original leave period. The notice
must specify the new end date for the leave.

Further extensions by agreement with employer

No entitlement to extension beyond available parental leave period

76 Extending period of unpaid parental leave—extending for up to
12 months beyond available parental leave period

Employee may request further period of leave

Note:     Extended periods of unpaid parental leave can include keeping in

touch days on which an employee performs work (see section 79A).

Section76

Making the request

Agreeing to the requested extension

Discussion

(5A) The employer must not refuse the request unless the employer has
given the employee a reasonable opportunity to discuss the request.

Special rules for employee couples

Section 77

No extension beyond 24 months after birth or placement

77 Reducing period of unpaid parental leave

If the employer agrees, an employee whose period of unpaid
parental leave has started may reduce the period of unpaid parental
leave he or she takes.

77A Effect of stillbirth or death of child on unpaid parental leave

Stillbirth—preserving entitlement to birth-related leave

then the employee is taken to be entitled to the unpaid parental
leave, despite the stillbirth of the child.

Section77A

Note:     One effect of this subsection is that if the employee has not given

notice in accordance with section 74 before the stillbirth of the child,
the employee can do so as soon as practicable (which may be a time
after the leave has started).

Stillbirth or death of child—cancelling leave or returning to work

Interaction with section 77

Section 78

78 Employee who ceases to have responsibility for care of child
78A Hospitalised children

Agreeing to not take unpaid parental leave for a period while child
remains in hospital

(1) If:

(a) a child is required to remain in hospital after the child's birth,
or is hospitalised immediately after the child's birth,
including because:

Section78A

(b) an employee, whether before or after the birth of the child,
gives notice in accordance with section 74 of the taking of a
period of unpaid parental leave (the original leave period) in
relation to the child;

then the employee may agree with his or her employer that the
employee will not take unpaid parental leave for a period (the
permitted work period) while the child remains in hospital.

Note:      Section 344 prohibits the exertion of undue influence or undue

pressure on the employee in relation to a decision by the employee
whether to agree.

Note:     One effect of paragraph (b) is that, if the employee takes periods of

unpaid parental leave either side of the permitted work period, the
periods are still treated as a single continuous period for the purposes
of sections 71 and 72.

When permitted work period must start

When permitted work period ends

Section 79

Only one permitted work period allowed

Evidence

Note:      Personal information given to an employer under this section may be

regulated under the Privacy Act 1988.

79 Interaction with paid leave

Note:      For example, if the employee has paid annual leave available, he or

she may (with the employer’s agreement) take some or all of that paid
annual leave at the same time as the unpaid parental leave.

Section79A

79A Keeping in touch days

The duration of the work the employee performs on that day is not
relevant for the purposes of this subsection.

Note:      The employer will be obliged, under the relevant contract of

employment or industrial instrument, to pay the employee for
performing work on a keeping in touch day.

Section 79B

deals with undue influence or pressure), to be a decision to make,
or not make, an arrangement under the National Employment
Standards.

Note:     Performance of work on keeping in touch days is also dealt with, for

the purposes of parental leave pay, in sections 49 and 50 of the Paid
Parental Leave Act 2010.

79B Unpaid parental leave not extended by paid leave or keeping in
touch days

If, during a period of unpaid parental leave, an employee:

taking that leave or performing that work does not have the effect
of extending the period of unpaid parental leave.

Subdivision C—Other entitlements
80 Unpaid special maternity leave

Entitlement to unpaid special maternity leave

(1) A female employee is entitled to a period of unpaid special
maternity leave if she is not fit for work during that period because:

Section80

Note 1:    Entitlement is also affected by section 67 (which deals with the length

of the employee’s service).

Note 1A: If the child is stillborn, the female employee may be entitled to unpaid
parental leave (see section 77A).

Note 2:    If a female employee has an entitlement to paid personal/carer’s leave

(see section 96), she may take that leave instead of taking unpaid
special maternity leave under this section.

Notice and evidence

Note:      Personal information given to an employer under this section may be

regulated under the Privacy Act 1988.

Section 81

81 Transfer to a safe job

Note:     Personal information given to an employer under this subsection may

be regulated under the Privacy Act 1988.

Note:      If there is no appropriate safe job available, then the employee may be

entitled to paid no safe job leave under section 81A or unpaid no safe
job leave under 82 A.

81A Paid no safe job leave

(1) If:

Section82

then the employee is entitled to paid no safe job leave for the risk
period.

82 Employee on paid no safe job leave may be asked to provide a
further medical certificate

Employer may ask employee to provide a medical certificate

Note:      Personal information given to an employer under this subsection may

be regulated under the Privacy Act 1988.

Employer may require employee to take unpaid parental leave

Entitlement to paid no safe job leave ends

Section 82A

When the period of leave must end etc.

82A Unpaid no safe job leave

then the employee is entitled to unpaid no safe job leave for the
risk period.

83 Consultation with employee on unpaid parental leave

If:

the employer must take all reasonable steps to give the employee
information about, and an opportunity to discuss, the effect of the
decision on that position.

84 Return to work guarantee

On ending a period of unpaid parental leave, an employee is
entitled to return to:

(a) the employee’s pre-parental leave position; or

Section84A

(b) if that position no longer exists—an available position for
which the employee is qualified and suited nearest in status
and pay to the pre-parental leave position.

84A Replacement employees
85 Unpaid pre-adoption leave

Entitlement to unpaid pre-adoption leave

Note:     Entitlement is also affected by section 68 (which deals with the age

etc. of the adopted child).

Section 85

Notice and evidence

Note:      Personal information given to an employer under this section may be

regulated under the Privacy Act 1988.

Section86

Division 6—Annual leave

86 Division applies to employees other than casual employees

This Division applies to employees, other than casual employees.

87 Entitlement to annual leave

Amount of leave

Note:     Section 196 affects whether the FWC may approve an enterprise

agreement covering an employee, if the employee is covered by a
modern award that is in operation and defines or describes the
employee as a shiftworker for the purposes of the National
Employment Standards.

Accrual of leave

Section 88

Note:     If an employee’s employment ends during what would otherwise have

been a year of service, the employee accrues paid annual leave up to
when the employment ends.

Award/agreement free employees who qualify for the shiftworker
entitlement

88 Taking paid annual leave

Section89

89 Employee not taken to be on paid annual leave at certain times

Public holidays

Other periods of leave

90 Payment for annual leave

payment for period of untaken paid annual leave

Transfer of employment situation in which employer may decide
not to recognise employee's service with first employer

(1) Subsection 22(5) does not apply (for the purpose of this Division)
to a transfer of employment between non-associated entities in
relation to an employee, if the second employer decides not to

Section 92

recognise the employee’s service with the first employer (for the
purpose of this Division).

Employee is not entitled to payment for untaken annual leave if
service with first employer counts as service with second employer

(2) If subsection 22(5) applies (for the purpose of this Division) to a
transfer of employment in relation to an employee, the employee is
not entitled to be paid an amount under subsection 90(2) for a
period of untaken paid annual leave.

Note:      Subsection 22(5) provides that, generally, if there is a transfer of

employment, service with the first employer counts as service with the
second employer.

with permitted cashing out terms

Paid annual leave must not be cashed out, except in accordance
with:

relating to cashing out and taking paid annual leave

Terms about cashing out paid annual leave

Section94

Terms about requirements to take paid annual leave

Terms about taking paid annual leave

94 Cashing out and taking paid annual leave for award/agreement
free employees

Agreements to cash out paid annual leave

Section 94

Requirements to take paid annual leave

Note:      A requirement to take paid annual leave may be reasonable if, for

example:

Agreements about taking paid annual leave

Note:      Matters that could be agreed include, for example, the following:

Section95

Division 7—Personal/carer’s leave, compassionate leave
and unpaid family and domestic violence leave

Subdivision A—Paid personal/carer’s leave
95 Subdivision applies to employees other than casual employees

This Subdivision applies to employees, other than casual
employees.

96 Entitlement to paid personal/carer’s leave

Amount of leave

Accrual of leave

97 Taking paid personal/carer’s leave

An employee may take paid personal/carer’s leave if the leave is
taken:

Section 98

Note 1:    The notice and evidence requirements of section 107 must be

complied with.

Note 2:   If a female employee has an entitlement to paid personal/carer’s leave,

she may take that leave instead of taking unpaid special maternity
leave under section 80.

public holiday

If the period during which an employee takes paid personal/carer’s
leave includes a day or part-day that is a public holiday in the place
where the employee is based for work purposes, the employee is
taken not to be on paid personal/carer’s leave on that public
holiday.

99 Payment for paid personal/carer’s leave

If, in accordance with this Subdivision, an employee takes a period
of paid personal/carer’s leave, the employer must pay the employee
at the employee’s base rate of pay forthe employee’s ordinary
hours of work in the period.

accordance with permitted cashing out terms

Paid personal/carer’s leave must not be cashed out, except in
accordance with cashing out terms included in a modern award or
enterprise agreement under section 101.

relating to cashing out paid personal/carer’s leave

Section102

Subdivision B—Unpaid carer’s leave
102 Entitlement to unpaid carer’s leave

An employee is entitled to 2 days of unpaid carer’s leave for each
occasion (a permissible occasion) when a member of the
employee’s immediate family, or a member of the employee’s
household, requires care or support because of:

103 Taking unpaid carer’s leave

Section 104

Note:      The notice and evidence requirements of section 107 must be

complied with.

Subdivision C—Compassionate leave
104 Entitlement to compassionate leave

Note:      For the definition of a stillborn child, see subsection 77A(2).

105 Taking compassionate leave

(1) An employee may take compassionate leave for a particular
permissible occasion if the leave is taken:

Section106

Note:      The notice and evidence requirements of section 107 must be

complied with.

106 Payment for compassionate leave (other than for casual
employees)

If, in accordance with this Subdivision, an employee, other than a
casual employee, takes a period of compassionate leave, the
employer must pay the employee at the employee’s base rate of
pay forthe employee’s ordinary hours of work in the period.

Note:      For casual employees, compassionate leave is unpaid leave.

Section 106A

Subdivision CA—Unpaid family and domestic violence leave
106A Entitlement to unpaid family and domestic violence leave

the start of the employee’s employment is taken to be the start of
the employee’s first employment with that employer.

106B Taking unpaid family and domestic violence leave

(1) The employee may take unpaid family and domestic violence leave
if:

Section106C

Note 1:    Examples of actions, by an employee who is experiencing family and

domestic violence, that could be covered by paragraph (b) are
arranging for the safety of the employee or a close relative (including
relocation), attending urgent court hearings or accessing police
services.

Note 2:    The notice and evidence requirements of section 107 must be

complied with.

Note:     Immediate family is defined in section 12.

106C Confidentiality

Note:      Information covered by this section that is personal information may

also be regulated under the Privacy Act 1988.

Section 106D

106D Operation of unpaid family and domestic violence leave and
leave for victims of crime

Note:      Leave for victims of crime is a non-excluded matter under

paragraph 27(2)(h).

106E Entitlement to days of leave

What constitutes a day of leave for the purposes of this Subdivision
is taken to be the same as what constitutes a day of leave for the
purposes of sections 72A and 85 and Subdivisions B and C.

Subdivision D—Notice and evidence requirements
107 Notice and evidence requirements

Notice

Section107

Evidence

Compliance

Modern awards and enterprise agreements may include evidence
requirements

Note:      Personal information given to an employer under this section may be

regulated under the Privacy Act 1988.

Section 108

Division 8—Community service leave

eligible community service activity

An employee who engages in an eligible community service
activity is entitled to be absent from his or her employment for a
period if:

General

Voluntary emergency management activities

(a) the employee engages in an activity that involves dealing
with an emergency or natural disaster; and

Section109

but does not include a body that was established, or is continued in
existence, for the purpose, or for purposes that include the purpose,
of entitling one or more employees to be absent from their
employment under this Division.

Section 110

Regulations may prescribe other activities

110 Notice and evidence requirements

Notice

Evidence

Compliance

Note:      Personal information given to an employer under this section may be

regulated under the Privacy Act 1988.

111 Payment to employees (other than casuals) on jury service

Application of this section

(1) This section applies if:

Sectionlll

Employee to be paid base rate of pay

Evidence

Note:     Personal information given to an employer under this subsection may

be regulated under the Privacy Act 1988.

Section 112

Payment only required for first 10 days of absence

Meaning of jury service pay

Meaning of jury service summons

112 State and Territory laws that are not excluded

(1) This Act is not intended to apply to the exclusion of laws of a State
or Territory that provide employee entitlements in relation to
engaging in eligible community service activities, to the extent that
those entitlements are more beneficial to employees than the
entitlements under this Division.

Note:      For example, this Act would not apply to the exclusion of a State or

Territory law providing for a casual employee to be paid jury service
pay.

Section112

Section 113

Division 9—Long service leave

113 Entitlement to long service leave

Entitlement in accordance with applicable award-derived long
service leave terms

Note:      This Act does not exclude State and Territory laws that deal with long

service leave, except in relation to employees who are entitled to long
service leave under this Division (see paragraph 27(2)(g)), and except
as provided in subsection 113A(3).

Note:      If there ceases to be any agreement or instrument of a kind referred to

in paragraph (a) or (b) that applies to the employee, the employee will,
at that time, become entitled under subsection (1) to long service leave
in accordance with applicable award-derived long service leave terms.

Section113

(3A) For the purpose of subparagraph (3)(a)(i), the test time is:

Entitlement in accordance with applicable agreement-derived long
service leave terms

Section 113A

the FWC may, on application by, or on behalf of, a person to
whom the instrument applies, make an order that those terms of the
instrument (and any terms that are ancillary or incidental to those
terms) are applicable agreement-derived long service leave terms.

References to instruments

113A Enterprise agreements may contain terms discounting service
under prior agreements etc. in certain circumstances

(1) This section applies if:

(a) an instrument (the first instrument) of one of the following
kinds that came into operation before the commencement of
this Part applies to an employee on or after the
commencement of this Part:

Section113A

(viii) an old IR agreement;

(ix) a section 170MX award; and

Section 114

Division 10—Public holidays

114 Entitlement to be absent from employment on public holiday

Employee entitled to be absent on public holiday

Reasonable requests to work on public holidays

Section115

115 Meaning of public holiday

The public holidays

Substituted public holidays under State or Territory laws

Section 116

Substituted public holidays under modern awards and enterprise
agreements

Substituted public holidays for award/agreement free employees

Note:      This Act does not exclude State and Territory laws that deal with the

declaration, prescription or substitution of public holidays, but it does
exclude State and Territory laws that relate to the rights and
obligations of an employee or employer in relation to public holidays
(see paragraph 27(2)(j)).

116 Payment for absence on public holiday

If, in accordance with this Division, an employee is absent from his
or her employment on a day or part-day that is a public holiday, the
employer must pay the employee at the employee’s base rate of
pay forthe employee’s ordinary hours of work on the day or
part-day.

Note:     If the employee does not have ordinary hours of work on the public

holiday, the employee is not entitled to payment under this section.
For example, the employee is not entitled to payment if the employee
is a casual employee who is not rostered on for the public holiday, or
is a part-time employee whose part-time hours do not include the day
of the week on which the public holiday occurs.

Section117

Division 11—Notice of termination and redundancy pay

Subdivision A—Notice of termination or payment in lieu of
notice
117 Requirement for notice of termination or payment in lieu

Notice specifying day of termination

Note 1:    Section 123 describes situations in which this section does not apply.

Note 2:    Sections 28A and 29 of the Acts Interpretation Act 1901 provide how

a notice may be given. In particular, the notice may be given to an
employee by:

Amount of notice or payment in lieu of notice

Section 118

(a) first, work out the period using the following table:

Period

Employee’s period of continuous service with
the employer at the end of the day the notice
is given

Period

1

Not more than 1 year

1 week

2

More than 1 year but not more than 3 years

2 weeks

3

More than 3 years but not more than 5 years

3 weeks

4

More than 5 years

4 weeks

notice of termination by employees

A modern award or enterprise agreement may include terms
specifying the period of notice an employee must give in order to
terminate his or her employment.

Subdivision B—Redundancy pay

119 Redundancy pay

Entitlement to redundancy pay

Section120

except where this is due to the ordinary and customary
turnover of labour; or

Note:      Sections 121, 122 and 123 describe situations in which the employee

does not have this entitlement.

Amount of redundancy pay

120 Variation of redundancy pay for other employment or
incapacity to pay

Section 121

121 Exclusions from obligation to pay redundancy pay

Section122

122 Transfer of employment situations that affect the obligation to
pay redundancy pay

Transfer of employment situation in which employer may decide
not to recognise employee's service with first employer

Employee is not entitled to redundancy pay if service with first
employer counts as service with second employer

Note:      Subsection 22(5) provides that, generally, if there is a transfer of

employment, service with the first employer counts as service with the
second employer.

Employee not entitled to redundancy pay if refuses employment in
certain circumstances

Section 123

Subdivision C—Limits on scope of this Division
123 Limits on scope of this Division

Employees not cowered by this Division

Other employees not covered by notice of termination provisions

Section123

Other employees not cowered by redundancy pay provisions

Section 124

Division 12—Fair Work Ombudsman to prepare and
publish statements

Information Statement

Note:     If the Fair Work Ombudsman changes the Statement, the Fair Work

Ombudsman must publish the new version of the Statement in the
Gazette.

125 Giving new employees the Fair Work Information Statement

(1) An employer must give each employee the Fair Work Information
Statement before, or as soon as practicable after, the employee
starts employment.

Section125A

Note:     This is relevant if the employer employs the employee more than once

in the 12 months.

125A Fair Work Ombudsman to prepare and publish Casual
Employment Information Statement

Note:     If the Fair Work Ombudsman changes the Statement, the Fair Work

Ombudsman must publish the new version of the Statement in the
Gazette.

(da) casual conversion entitlements of casual employees
employed by small business employers;

Section 125B

125B Giving new employees the Casual Employment Information
Statement

Note:     This is relevant if the employer employs the employee more than once

in the 12 months.

Section126

Division 13—Miscellaneous

school-based apprentices and trainees to be paid loadings
in lieu

A modern award or enterprise agreement may provide for
school-based apprentices or school-based trainees to be paid
loadings in lieu of any of the following:

Note:    Section 199 affects whether the FWC may approve an enterprise

agreement covering an employee who is a school-based

apprentice or school-based trainee, if the employee is covered by
a modern award that is in operation and provides for the
employee to be paid loadings in lieu of paid annual leave, paid
personal/carer's leave or paid absence under Division 10.

agreements can do

The regulations may:

Section 128

agreements etc. permitted by this Part for
award/agreement free employees

The National Employment Standards have effect subject to:

Note 1:    In determining what matters are permitted to be agreed or required

under paragraph (a), any regulations made for the purpose of
section 129 that expressly prohibit certain agreements or requirements
must be taken into account.

Note 2:    See also the note to section 64 (which deals with the effect of

averaging arrangements).

award/agreement free employees

The regulations may:

receiving workers’ compensation

(1) An employee is not entitled to take or accrue any leave or absence
(whether paid or unpaid) under this Part during a period (a
compensation period) when the employee is absent from work
because of a personal illness, or a personal injury, for which the

Section131

employee is receiving compensation payable under a law (a
compensation law) of the Commonwealth, a State or a Territory
that is about workers' compensation.

131 Relationship with other Commonwealth laws

This Part establishes minimum standards and so is intended to
supplement, and not to override, entitlements under other laws of
the Commonwealth.

Section 132

Part 2-3—Modern awards

Division 1—Introduction

132 Guide to this Part

This Part provides for the FWC to make, vary and revoke modern
awards. Modern awards may set minimum terms and conditions for
national system employees in particular industries or occupations.
Modern awards can have terms that are ancillary or supplementary
to the National Employment Standards (see Part 2-1).

Division 2 provides for the modern awards objective. This requires
the FWC to ensure that modern awards, together with the National
Employment Standards, provide a fair and relevant minimum
safety net of terms and conditions, taking into account certain
social and economic factors. Division 2 also contains special
provisions about modern award minimum wages.

Division 3 deals with the terms of modern awards.

Division 4A provides for the FWC to conduct 4 yearly reviews of
default fund terms of modern awards.

It also sets out the process for making the Schedule of Approved
Employer MySuper products in a 4 yearly review, and amending
the schedule after it is made to include other employer MySuper
products. If an employer MySuper product is on the schedule, an
employer covered by a modern award can make contributions, for
the benefit of a default fund employee, to a superannuation fund
that offers the product (see subsection 149D(1A)).

Division 5 provides for the FWC to exercise modern award powers
in certain circumstances.

Section133

Division 6 contains some general provisions relating to modern
award powers.

Division 7 contains additional provisions relating to modern
enterprise awards.

Division 8 contains additional provisions relating to State reference
public sector modern awards.

The obligation to comply with a modern award is in section 45 (in
Part 2-1).

In relation to minimum wages in modern awards, the FWC has
powers both under this Part and under Part 2-6 (which deals with
minimum wages). The following is a summary of the FWC's
powers under the 2 Parts:

133 Meanings of employee and employer

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

Note:     See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

Section 134

Division 2—Overarching provisions

134 The modern awards objective

What is the modern awards objective?

(da) the need to provide additional remuneration for:

This is the modern awards objective.

Section135

When does the modern awards objective apply?

Note:     The FWC must also take into account the objects of this Act and any

other applicable provisions. For example, if the FWC is setting,
varying or revoking modern award minimum wages, the minimum
wages objective also applies (see section 284).

135 Special provisions relating to modern award minimum wages

Note 1:   The main power to vary modern award minimum wages is in annual

wage reviews under Part 2-6. Modern award minimum wages can also
be set or revoked in annual wage reviews.

Note 2:   For the meanings of modern award minimum wages, and setting and

varying such wages, see section 284.

Section 136

Division 3—Terms of modern awards

Subdivision A—Preliminary

136 What can be included in modern awards

Terms that may or must be included

Note 1:    Subsection 55(4) permits inclusion of terms that are ancillary or

incidental to, or that supplement, the National Employment Standards.

Note 2:   Part 2-2 includes a number of provisions permitting inclusion of terms

about particular matters.

Terms that must not be included

Note:      The provisions referred to in subsection (2) limit the terms that can be

included in modern awards under the provisions referred to in
subsection (1).

Section137

137 Terms that contravene section 136 have no effect

A term of a modern award has no effect to the extent that it
contravenes section 136.

138 Achieving the modern awards objective

A modern award may include terms that it is permitted to include,
and must include terms that it is required to include, only to the
extent necessary to achieve the modern awards objective and (to
the extent applicable) the minimum wages objective.

Subdivision B—Terms that may be included in modern awards
139 Terms that may be included in modern awards—general

(1) A modern award may include terms about any of the following
matters:

Section 140

140 Outworker terms

Note:     A person who is an employer may also be an outworker entity (see the

definition of outworker entity in section 12).

(a) terms referred to in subsection (1);

Section141

141 Industry-specific redundancy schemes

When can a modern award include an industry-specific
redundancy scheme?

Note:     An employee to whom an industry-specific redundancy scheme in a

modern award applies is not entitled to the redundancy entitlements in
Subdivision B of Division 11 of Part 2-2.

Coverage of industry-specific redundancy schemes must not be
extended

the FWC may include the scheme in that other modern award.
However, the FWC must not extend the coverage of the scheme to
classes of employees that it did not previously cover.

Varying industry-specific redundancy schemes

Section 142

Omitting industry-specific redundancy schemes

142 Incidental and machinery terms

Incidental terms

Machinery terms

Section143

Subdivision C—Terms that must be included in modern
awards

Coverage terms must be included

Employers and employees

Organisations

Outworker entities

How coverage is expressed

Section 143

Employees not traditionally cowered by awards etc.

Note:      For example, in some industries, managerial employees have

traditionally not been covered by awards.

Modern enterprise awards

State reference public sector modern awards

Section143A

reference public sector transitional award (within the meaning of
the Transitional Act), or employers in relation to those employees.

143A Coverage terms of modern enterprise awards

Coverage terms must be included

Enterprises

Employers and employees

Section 143A

Organisations

Outworker entities

How coverage etc. is expressed

Employees not traditionally covered by awards etc.

Note:      For example, in some industries, managerial employees have

traditionally not been covered by awards.

Section143B

143B Coverage terms of State reference public sector modern
awards

Coverage terms must be included

Employers and employees

Organisations

Outworker entities

How coverage etc. is expressed

Section 144

144 Flexibility terms

Flexibility terms must be included

Effect of individual flexibility arrangements

Requirements for flexibility terms

Section145

overall than the employee would have been if no individual
flexibility arrangement were agreed to; and

145 Effect of individual flexibility arrangement that does not meet
requirements of flexibility term

Application of this section

Note:      A failure to meet such a requirement may be a contravention of a

provision of Part 3-1 (which deals with general protections).

Arrangement has effect as if it were an individual flexibility
arrangement

Section 145A

Employer contravenes flexibility term in specified circumstances

Flexibility arrangement may be terminated by agreement or notice

145A Consultation about changes to rosters or hours of work
146 Terms about settling disputes

Without limiting paragraph 139(1)(j), a modern award must
include a term that provides a procedure for settling disputes:

Section147

Note:     The FWC or a person must not settle a dispute about whether an

employer had reasonable business grounds under subsection 65(5) or
76(4) (see subsections 739(2) and 740(2)).

147 Ordinary hours of work

A modern award must include terms specifying, or providing for
the determination of, the ordinary hours of work for each
classification of employee covered by the award and each type of
employment permitted by the award.

Note:     An employee’s ordinary hours of work are significant in determining

the employee’s entitlements under the National Employment
Standards.

148 Base and full rates of pay for pieceworkers

If a modern award defines or describes employees covered by the
award as pieceworkers, the award must include terms specifying,
or providing for the determination of, base and full rates of pay for
those employees for the purposes of the National Employment
Standards.

Note:     An employee’s base and full rates of pay are significant in

determining the employee’s entitlements under the National
Employment Standards.

149 Automatic variation of allowances

If a modern award includes allowances that the FWC considers are
of a kind that should be varied when wage rates inthe award are
varied, the award must include terms providing for the automatic
variation of those allowances when wage rates in the award are
varied.

Section 149B

149B Term requiring avoidance of liability to pay superannuation
guarantee charge

A modern award must include a term that requires an employer
covered by the award to make contributions to a superannuation
fund for the benefit of an employee covered by the award so as to
avoid liability to pay superannuation guarantee charge under the
Superannuation Guarantee Charge Act 1992 in relation to the
employee.

149C Default fund terms
149D Default fund term must provide for contributions to be made
to certain funds

Specified superannuation fund offering standard MySuper product

if:

1992 in relation to the employee if the employer does not

Section149D

make contributions to a superannuation fund for the benefit
of the employee; and

Note:      If a superannuation fund is specified in the default fund term of a

modern award in relation to a standard MySuper product and, in
addition to offering the standard MySuper product, the fund offers a
tailored MySuper product that a default fund employee is entitled to
hold, then any contributions made by the employer to the fund for the
benefit of that employee will be paid into the tailored MySuper
product instead of the standard MySuper product (see section 29WB
of the Superannuation Industry (Supervision) Act 1993).

Superannuation funds offering employer MySuper products on the
schedule

(1A) A default fund term of a modern award must permit an employer
covered by the award to make contributions, for the benefit of a
default fund employee, to a superannuation fund that offers an
employer MySuper product that:

Note:     The Schedule of Approved Employer MySuper Products is made

during a 4 yearly review of default fund terms of modern awards
under Division 4A of Part 2-3.

Defined Benefits Scheme

Exempt public sector superannuation scheme

Section 150

default fund employee, to a superannuation fund that is an exempt
public sector superannuation scheme.

State public sector superannuation scheme

Transitionally authorised superannuation fund

Subdivision D—Terms that must not be included in modern
awards
150 Objectionable terms

A modern award must not include an objectionable term.

etc.

A modern award must not include a term that has no effect because
of:

Section152

152 Terms about right of entry

A modern award must not include terms that require or authorise
an official of an organisation to enter premises:

153 Terms that are discriminatory

Discriminatory terms must not be included

Certain terms are not discriminatory

Section 154

154 Terms that contain State-based differences

General rule—State-based difference terms must not be included

When State-based difference terms may be included

but only for up to 5 years starting on the day on which the first
modern award that included those terms came into operation.

the FWC may include those terms in that other modern award.
However, the FWC must not extend the coverage of those terms to
classes of employees that they did not previously cover.

Section155

155 Terms dealing with long service leave

A modern award must not include terms dealing with long service
leave.

Section 156A

Division 4A—4 yearly reviews of default fund terms of
modern awards

Subdivision A—4 yearly reviews of default fund terms
156A 4 yearly reviews of default fund terms

Timing of 4 yearly reviews

Note:     The President may give directions about the conduct of those reviews

(see section 582).

Two stages of the 4 yearly reviews

First stage—the Default Superannuation List

Note:      In the first stage, the FWC must be constituted by an Expert Panel for

the purposes of making the list and determining applications to
include standard MySuper products on the list (see paragraphs
617(4)(a) and (b)).

Second stage—reviewing and varying default fund terms

Section156B

Note:     For the second stage, the FWC must be constituted by a Full Bench

(see subsections 616(2A) and (3A)).

The Schedule of Approved Employer MySuper Products

Note:     The FWC must be constituted by an Expert Panel for the purposes of

making the schedule and determining applications to include employer
MySuper products on the schedule (see paragraphs 617(4)(c) and (d)).

Subdivision B—The first stage of the 4 yearly review
156B Making the Default Superannuation List
156C Applications to list a standard MySuper product

Section 156D

156D Submissions on applications to list a standard MySuper
product

then the person or body must disclose that interest in the
submission.

Section156E

156E Determining applications to list a standard MySuper product

the FWC is satisfied that including the product on the list would be
in the best interests of default fund employees to whom modern
awards apply or a particular class of those employees.

156F First stage criteria

The first stage criteria are as follows:

Section 156G

fUnd, including whether there are mechanisms in place to
deal with conflict of interest;

Subdivision C—Second stage of the 4 yearly review
156G Review of the default fund term of modern awards

Section156H

then the person or body must disclose that interest in the
submission.

156H Default fund term must specify certain superannuation funds

Note:     See subsection (3) for when the default fund term may specify more

than 15 superannuation funds.

Section 156J

156J Variation to comply with section 149D

If, at the time of the 4 yearly review, the default fUnd term of a
modern award does not comply with section 149D, the FWC must
make a determination varying the term so that it does.

156K Transitional authorisation for certain superannuation funds
Subdivision D—The Schedule of Approved Employer MySuper
Products
156L The Schedule of Approved Employer MySuper Products

Note:     If an employer MySuper product is on the schedule, an employer

covered by a modern award can make contributions, for the benefit of
a default fund employee, to a superannuation fund that offers the
product (see subsection 149D(1A)).

Section156M

Note:     The FWC must be constituted by an Expert Panel for the purposes of

amending the schedule (see paragraph 617(5)(b)).

156M FWC to invite applications to include employer MySuper
products on schedule
156N Making applications to include employer MySuper products
on schedule

(i) starts immediately after the schedule is made under
paragraph 156L(1)(a); and

Section 156P

(ii) ends immediately before the next 4th anniversary of the
commencement of this Part.

Note:     Paragraph (2)(a) deals with applications that are made in a 4 yearly

review of default fund terms, and paragraph (2)(b) deals with
applications that are made outside a 4 yearly review.

156P FWC to determine applications

(1) If an application is made under subsection 156N(1) to have an
employer MySuper product included on the schedule, the FWC
must make a determination about whether to include the product on
the schedule.

Section156Q

Note:     The FWC must be constituted by an Expert Panel for the purposes of

making this determination (see paragraphs 617(4)(d) and (5)(a)).

156Q The first stage test

An employer MySuper product satisfies the first stage test if the
FWC is satisfied that including the product on the Schedule of
Approved Employer MySuper Products would be in the best
interests of default fund employees, or a particular class of those
employees, taking into account:

156R Submissions about the first stage test

then the person or body must disclose that interest in the
submission.

Section 156S

156S The second stage test

An employer MySuper product satisfies the second stage test if the
FWC is satisfied that including the product on the Schedule of
Approved Employer MySuper Products would be in the best
interests of default fund employees of an employer to which the
product relates, or a particular class of those employees, taking into
account:

156T Submissions about the second stage test

then the person or body must disclose that interest in the
submission.

Section156U

Subdivision E—Publishing documents under this Division
156U Publishing documents under this Division

If the FWC is required by this Division to publish a document, the
FWC must publish the document on its website or by any other
means that the FWC considers appropriate.

Section 157

Division 5—Exercising modern award powers

Subdivision A—Exercise of powers if necessary to achieve
modern awards objective
157FWC may vary etc. modern awards if necessary to achieve
modern awards objective

if the FWC is satisfied that making the determination or modern
award is necessary to achieve the modern awards objective.

Note 1:    Generally, the FWC must be constituted by a Full Bench to make,

vary or revoke a modern award. However, the President may direct a
single FWC Member to make a variation (see section 616).

Note 2:    Special criteria apply to changing coverage of modern awards or

revoking modern awards (see sections 163 and 164).

Note 3:   If the FWC is setting modern award minimum wages, the minimum

wages objective also applies (see section 284).

Note:     As the FWC is varying modern award minimum wages, the minimum

wages objective also applies (see section 284).

(2A) Work value reasons are reasons justifying the amount that
employees should be paid for doing a particular kind of work,
being reasons related to any of the following:

Section158

158 Applications to vary, revoke or make modern award

Section 158

Who may make an application?

Item

Column 1

This kind of application ...

Column 2
may be made by ...

3

an application to vary or include
coverage terms in a modern award to
increase the range of employers,
employees or organisations that are
covered by the award

  • (a) an employer, employee or
    organisation that would become
    covered by the modern award; or

  • (b) an organisationthat is entitled to
    represent the industrial interests
    of one or more employers or
    employees that would become
    covered by the modern award.

4

an application to vary or include
coverage terms in a modern award to
increase the range of outworker
entities that are covered by
outworker terms

  • (a) an outworker entity that would
    become covered by the
    outworker terms; or

  • (b) an organisation that is entitled to
    represent the industrial interests
    of one or more outworkers who
    would become outworkers to
    whom the outworker terms
    relate.

5

an application to vary or omit
coverage terms in a modern award to
reduce the range of employers,
employees or organisations that are
covered by the award

  • (a) an employer, employee or
    organisation that would stop
    being covered by the modern
    award; or

  • (b) an organisation that is entitled to
    represent the industrial interests
    of one or more employers or
    employees that would stop being
    covered by the modern award.

6

an application to vary or omit
coverage terms in a modern award to
reduce the range of outworker
entities that are covered by
outworker terms

  • (a) an outworker entity that would
    stop being covered by the
    outworker terms; or

  • (b) an organisation that is entitled to
    represent the industrial interests
    of one or more outworkers who
    would stop being outworkers to
    whom the outworker terms
    relate.

Section159

Who may make an application?

Item

Column 1

This kind of application ...

Column 2
may be made by ...

7

an application for the making of a
modern award

  • (a) an employee or employer that
    would be covered by the modern
    award; or

  • (b) an organisation that is entitled to
    represent the industrial interests
    of one or more employers or
    employees that would be covered
    by the modern award.

8

an application to revoke a modern
award

  • (a) an employer, employee or
    organisation that is covered by
    the modern award; or

  • (b) an organisation that is entitled to
    represent the industrial interests
    of one or more employers or
    employees that are covered by
    the modern award.

Note:     The FWC may dismiss an application to vary, revoke or make a

modern award in certain circumstances (see section 587).

Note:     For example, an applicant may apply for the making of a modern

award and for the related revocation of an existing modern award.

Subdivision B—Other situations

159 Variation of modern award to update or omit name of
employer, organisation or outworker entity

Section 159A

159A Variation of default fund term of modern award

Section160

160 Variation of modern award to remove ambiguity or uncertainty
or correct error

Section 161

161 Variation of modern award on referral by Australian Human
Rights Commission

Note:      Special criteria apply to changing coverage of modern awards (see

section 163).

Section162

Division 6—General provisions relating to modern award
powers

162 General

This Division contains some specific provisions relevant to the
exercise of modern award powers. For other provisions relevant to
the exercise of modern award powers, see the general provisions
about the FWC’s processes in Part 5-1.

Note:      Relevant provisions of Part 5-1 include the following:

163 Special criteria relating to changing coverage of modern awards

Special rule about reducing coverage

Special rule about making a modern award

Section 164

Special rule about covering organisations

The miscellaneous modern award

164 Special criteria for revoking modern awards

The FWC must not make a determination revoking a modern
award unless the FWC is satisfied that:

determinations setting, varying or revoking modern
award minimum wages

Determinations come into operation on specified day

(1) A determination under this Part that varies a modern award (other
than a determination that sets, varies or revokes modern award
minimum wages) comes into operation on the day specified in the
determination.

Note 1:    For when a modern award, or a revocation of a modern award, comes

into operation, see section 49.

Note:      For when a determination under this Part setting, varying or revoking

modern award minimum wages comes into operation, see section 166.

Section166

Determinations take effect from first full pay period

166 When variation determinations setting, varying or revoking
modern award minimum wages come into operation

Determinations generally come into operation on 1 July

Note:     Modern award minimum wages can also be set, varied or revoked by

determinations made in annual wage reviews. For when those
determinations come into operation, see section 286.

FWC may specify another day of operation if appropriate

Section 167

Determinations may take effect in stages

Determinations take effect from first full pay period

167 Special rules relating to retrospective variations of awards

Application of this section

No effect on past approval of enterprise agreement or variation

Section168

No creation of liability to pay pecuniary penalty for past conduct

a court must not order the person to pay a pecuniary penalty under
Division 2 of Part 4-1 in relation to the conduct, on the grounds
that the conduct contravened a term of the modern award or
enterprise agreement.

Note 1:   This subsection does not affect the powers of a court to make other

kinds of orders under Division 2 of Part 4-1.

Note 2:    A determination varying a modern award could result in a

contravention of a term of an enterprise agreement because of the
effect of subsection 206(2).

168 Varied modern award must be published

Section 168A

Division 7—Additional provisions relating to modern
enterprise awards

168A Modern enterprise awards

(a) the bodies corporate are taken to be one employer; and

Section168B

(b) the single enterprises are taken to be one single enterprise.

Note:     However, a modern enterprise award could just relate to a part of that

single enterprise.

(6) A part of a single enterprise includes, for example:

168B The modern enterprise awards objective

What is the modern enterprise awards objective?

When does the modern enterprise awards objective apply?

References to the modern awards objective

168C Rules about making and revoking modern enterprise awards

Making modern enterprise awards

(1) The FWC must not, under this Part:

Section 168C

Note:     Modern enterprise awards can be made only in accordance with the

enterprise instrument modernisation process provided for by Part 2 of
Schedule 6 of the Transitional Act.

Revoking modern enterprise awards

Section168D

168D Rules about changing coverage of modern enterprise awards

Section 168E

Division 8—Additional provisions relating to State
reference public sector modern awards

168E State reference public sector modern awards
168F The State reference public sector modern awards objective

The State reference public sector modern awards objective

(1) The FWC must recognise:

(a) the need to facilitate arrangements for State reference public
sector employers and State reference public sector employees

Section168G

that are appropriately adapted to the effective administration
of a State; and

(b) that State reference public sector modern awards may
provide terms and conditions tailored to reflect employment
arrangements that have been developed in relation to State
reference public sector employers and State reference public
sector employees.

This is the State reference public sector modern awards objective.

When does the State reference public sector modern awards
objective apply?

References to the modern awards objective

168G Making State reference public sector modern awards on
application

Section 168H

168H State reference public sector modern awards may contain
State-based differences

Section 154 (which deals with terms that contain State-based
differences) does not apply in relation to State reference public
sector modern awards.

168J When State reference public sector modern awards come into
operation

Section 49 does not apply for the purpose of determining when a
State reference public sector modern award comes into operation.
Instead, the modern award comes into operation on the day on
which it is expressed to commence, being a day that is not earlier
than the day on which the modern award is made.

Section168K

168K Rules about revoking State reference public sector modern
awards

Section 168L

168L Rules about varying coverage of State reference public sector
modern awards

Section169

Part 2-4—Enterprise agreements

Division 1—Introduction

169 Guide to this Part

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

Division 2 deals with the making of enterprise agreements about
permitted matters. An enterprise agreement (including a
greenfields agreement) may be a single-enterprise agreement or a
multi-enterprise agreement.

Division 3 deals with the right of employees to be represented by a
bargaining representative during bargaining for a proposed
enterprise agreement. It also sets out the persons who are
bargaining representatives for such agreements.

Subdivision A of Division 4 deals with the approval of proposed
enterprise agreements by employees and sets out when an
enterprise agreement is made.

Subdivision B of Division 4 deals with the approval of enterprise
agreements by the FWC. The remaining Subdivisions of the
Division deal with certain approval requirements, including in
relation to genuine agreement by employees and the better off
overall test.

Division 5 deals with the mandatory terms of enterprise
agreements relating to individual flexibility arrangements and
consultation requirements.

Section 170

Division 6 deals with the base rate of pay under an enterprise
agreement.

Division 7 deals with the variation and termination of enterprise
agreements.

Division 8 provides for the FWC to facilitate bargaining by making
bargaining orders, serious breach declarations, majority support
determinations and scope orders. It also permits bargaining
representatives to apply for the FWC to deal with bargaining
disputes.

Division 9 provides for the making of low-paid authorisations in
relation to proposed multi-enterprise agreements. The effect of
such an authorisation is that specified employers are subject to
certain rules that would not otherwise apply (for example,
bargaining orders that would not usually be available for
multi-enterprise agreements will be available). It also permits the
FWC to assist the bargaining representatives for such agreements.

Division 10 deals with single interest employer authorisations. The
effect of such an authorisation is that the employers specified in the
authorisation are single interest employers in relation to a proposed
enterprise agreement.

Division 11 deals with other matters relating to enterprise
agreements.

170 Meanings of employee and employer

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

Note:     See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

171 Objects of this Part

The objects of this Part are:

Section171

Section 172

Division 2—Employers and employees may make
enterprise agreements

172 Making an enterprise agreement

Enterprise agreements may be made about permitted matters

Note 1:    For when an enterprise agreement covers an employer, employee or

employee organisation, see section 53.

Note 2:    An employee organisation that was a bargaining representative for a

proposed enterprise agreement that is not a greenfields agreement will
be covered by the agreement if the organisation notifies the FWC
under section 183 that it wants to be covered.

Single-enterprise agreements

Section172

Note:     The expression genuine new enterpriseincludes a genuine new

business, activity, project or undertaking (see the definition of
enterprise in section 12).

Multi-enterprise agreements

Note:     The expression genuine new enterpriseincludes a genuine new

business, activity, project or undertaking (see the definition of
enterprise in section 12).

Greenfields agreements