Commonwealth of Australia Bills
[Index]
[Search]
[Download]
[Related Items]
[Help]
This is a Bill, not an Act. For current law, see the Acts databases.
FAIR WORK BILL 2008
2008
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work Bill 2008
No. , 2008
(Education, Employment and Workplace Relations)
A Bill for an Act relating to workplace re lations,
and for related purposes
i Fair Work Bill 2008 No. , 2008
Contents
Chapter 1--Introduction
1
Part 1-1--Introduction
1
Division 1--Preliminary
1
1
Short title ............................................................................................ 1
2
Commencement .................................................................................. 2
Division 2--Object of this Act
3
3
Object of this Act................................................................................ 3
Division 3--Guide to this Act
4
4
Guide to this Act ................................................................................. 4
5
Terms and conditions of employment (Chapter 2) ............................. 4
6
Rights and responsibilities of employees, employers,
organisations etc. (Chapter 3) ............................................................. 6
7
Compliance and enforcement (Chapter 4) .......................................... 7
8
Administration (Chapter 5)................................................................. 7
9
Miscellaneous (Chapter 6) .................................................................. 7
Part 1-2--Definitions
9
Division 1--Introduction
9
10
Guide to this Part ................................................................................ 9
11
Meanings of employee and employer ................................................. 9
Division 2--The Dictionary
10
12
The Dictionary .................................................................................. 10
Division 3--Definitions relating to the meanings of employee,
employer etc.
32
13
Meaning of national system employee.............................................. 32
14
Meaning of national system employer .............................................. 32
15
Ordinary meanings of employee and employer ................................ 33
Division 4--Other definitions
34
16
Meaning of base rate of pay ............................................................. 34
17
Meaning of child of a person ............................................................ 34
18
Meaning of full rate of pay ............................................................... 35
19
Meaning of industrial action ............................................................ 36
20
Meaning of ordinary hours of work for award/agreement free
employees ......................................................................................... 37
21
Meaning of pieceworker ................................................................... 38
22
Meanings of service and continuous service .................................... 39
Fair Work Bill 2008 No. , 2008 ii
23
Meaning of small business employer ................................................ 41
Part 1-3--Application of this Act
43
Division 1--Introduction
43
24
Guide to this Part .............................................................................. 43
25
Meanings of employee and employer ............................................... 43
Division 2--Interaction with State and Territory laws
44
26
Act excludes State or Territory industrial laws ................................ 44
27
State and Territory laws that are not excluded by section 26 ........... 45
28
Act excludes prescribed State and Territory laws ............................ 47
29
Interaction of modern awards and enterprise agreements with
State and Territory laws.................................................................... 48
30
Act may exclude State and Territory laws etc. in other cases .......... 48
Division 3--Geographical application of this Act
49
31
Exclusion of persons etc. insufficiently connected with
Australia............................................................................................ 49
32
Regulations may modify application of this Act in certain
parts of Australia............................................................................... 49
33
Extension of this Act to the exclusive economic zone and the
continental shelf................................................................................ 50
34
Extension of this Act beyond the exclusive economic zone
and the continental shelf ................................................................... 51
35
Meanings of Australian employer and Australian-based
employee ........................................................................................... 52
36
Geographical application of offences ............................................... 53
Division 4--Miscellaneous
54
37
Act binds Crown ............................................................................... 54
38
Act not to apply so as to exceed Commonwealth power.................. 54
39
Acquisition of property..................................................................... 55
40
Interaction between fair work instruments and public sector
employment laws .............................................................................. 55
Chapter 2--Terms and conditions of employment
57
Part 2-1--Core provisions for this Chapter
57
Division 1--Introduction
57
41
Guide to this Part .............................................................................. 57
42
Meanings of employee and employer ............................................... 58
Division 2--Core provisions for this Chapter
59
Subdivision A--Terms and conditions of employment provided
under this Act
59
iii Fair Work Bill 2008 No. , 2008
43
Terms and conditions of employment provided under this
Act..................................................................................................... 59
Subdivision B--Terms and conditions of employment provided by
the National Employment Standards
60
44
Contravening the National Employment Standards ......................... 60
Subdivision C--Terms and conditions of employment provided by
a modern award
60
45
Contravening a modern award.......................................................... 60
46
The significance of a modern award applying to a person ............... 60
47
When a modern award applies to an employer, employee,
organisation or outworker entity....................................................... 61
48
When a modern award covers an employer, employee,
organisation or outworker entity....................................................... 62
49
When a modern award is in operation .............................................. 63
Subdivision D--Terms and conditions of employment provided by
an enterprise agreement
64
50
Contravening an enterprise agreement ............................................. 64
51
The significance of an enterprise agreement applying to a
person................................................................................................ 64
52
When an enterprise agreement applies to an employer,
employee or employee organisation ................................................. 64
53
When an enterprise agreement covers an employer,
employee or employee organisation ................................................. 65
54
When an enterprise agreement is in operation.................................. 66
Division 3--Interaction between the National Employment
Standards, modern awards and enterprise
agreements
67
Subdivision A--Interaction between the National Employment
Standards and a modern award or an enterprise
agreement
67
55
Interaction between the National Employment Standards and
a modern award or enterprise agreement .......................................... 67
56
Terms of a modern award or enterprise agreement
contravening section 55 have no effect ............................................ 69
Subdivision B--Interaction between modern awards and
enterprise agreements
69
57
Interaction between modern awards and enterprise
agreements ........................................................................................ 69
Subdivision C--Interaction between one or more enterprise
agreements
69
58
Only one enterprise agreement can apply to an employee ............... 69
Fair Work Bill 2008 No. , 2008 iv
Part 2-2--The National Employme nt Standards
71
Division 1--Introduction
71
59
Guide to this Part .............................................................................. 71
60
Meanings of employee and employer ............................................... 71
Division 2--The National Employment Standards
72
61
The National Employment Standards are minimum standards
applying to employment of employees............................................. 72
Division 3--Maximum weekly hours
73
62
Maximum weekly hours ................................................................... 73
63
Modern awards and enterprise agreements may provide for
averaging of hours of work............................................................... 74
64
Averaging of hours of work for award/agreement free
employees ......................................................................................... 75
Division 4--Requests for flexible working arrangements
76
65
Requests for flexible working arrangements .................................... 76
66
State and Territory laws that are not excluded ................................. 77
Division 5--Parental leave and related entitlements
78
Subdivision A--General
78
67
General rule--employee must have completed at least 12
months of service .............................................................................. 78
68
General rule for adoption-related leave--child must be under
16 etc................................................................................................. 80
69
Transfer of employment situations in which employee is
entitled to continue on leave etc. ...................................................... 80
Subdivision B--Parental leave
81
70
Entitlement to unpaid parental leave ................................................ 81
71
The period of leave--other than for members of an employee
couple who each intend to take leave ............................................... 81
72
The period of leave--members of an employee couple who
each intend to take leave................................................................... 82
73
Pregnant employee may be required to take unpaid parental
leave within 6 weeks before the birth ............................................... 84
74
Notice and evidence requirements.................................................... 86
75
Extending period of unpaid parental leave--extending to use
more of available parental leave period ............................................ 87
76
Extending period of unpaid parental leave--extending for up
to 12 months beyond available parental leave period ....................... 88
77
Reducing period of unpaid parental leave ........................................ 90
78
Employee who ceases to have responsibility for care of child ......... 90
79
Interaction with paid leave................................................................ 90
v Fair Work Bill 2008 No. , 2008
Subdivision C--Other entitlements
91
80
Unpaid special maternity leave......................................................... 91
81
Transfer to a safe job ........................................................................ 92
82
Employee on paid no safe job leave may be asked to provide
a further medical certificate .............................................................. 93
83
Consultation with employee on unpaid parental leave ..................... 94
84
Return to work guarantee.................................................................. 95
85
Unpaid pre-adoption leave................................................................ 95
Division 6--Annual leave
97
86
Division applies to employees other than casual employees............ 97
87
Entitlement to annual leave .............................................................. 97
88
Taking paid annual leave .................................................................. 98
89
Employee not taken to be on paid annual leave at certain
times.................................................................................................. 99
90
Payment for annual leave.................................................................. 99
91
Transfer of employment situations that affect entitlement to
payment for period of untaken paid annual leave............................. 99
92
Paid annual leave must not be cashed out except in
accordance with permitted cashing out terms................................. 100
93
Modern awards and enterprise agreements may include terms
relating to cashing out and taking paid annual leave ...................... 100
94
Cashing out and taking paid annual leave for
award/agreement free employees ................................................... 101
Division 7--Personal/carer's leave and compassionate leave
103
Subdivision A--Paid personal/carer's leave
103
95
Subdivision applies to employees other than casual
employees ....................................................................................... 103
96
Entitlement to paid personal/carer's leave...................................... 103
97
Taking paid personal/carer's leave ................................................. 103
98
Employee taken not to be on paid personal/carer's leave on
public holiday ................................................................................. 104
99
Payment for paid personal/carer's leave......................................... 104
100
Paid personal/carer's leave must not be cashed out except in
accordance with permitted cashing out terms................................. 104
101
Modern awards and enterprise agreements may include terms
relating to cashing out paid personal/carer's leave......................... 104
Subdivision B--Unpaid carer's leave
105
102
Entitlement to unpaid carer's leave ................................................ 105
103
Taking unpaid carer's leave............................................................ 105
Subdivision C--Compassionate leave
105
104
Entitlement to compassionate leave................................................ 105
Fair Work Bill 2008 No. , 2008 vi
105
Taking compassionate leave ........................................................... 106
106
Payment for compassionate leave (other than for casual
employees) ...................................................................................... 106
Subdivision D--Notice and evidence requirements
107
107
Notice and evidence requirements.................................................. 107
Division 8--Community service leave
109
108
Entitlement to be absent from employment for engaging in
eligible community service activity................................................ 109
109
Meaning of eligible community service activity ............................. 109
110
Notice and evidence requirements.................................................. 111
111
Payment to employees (other than casuals) on jury service ........... 111
112
State and Territory laws that are not excluded ............................... 113
Division 9--Long service leave
114
113
Entitlement to long service leave.................................................... 114
Division 10--Public holidays
116
114
Entitlement to be absent from employment on public holiday....... 116
115
Meaning of public holiday.............................................................. 117
116
Payment for absence on public holiday .......................................... 118
Division 11--Notice of termination and redundancy pay
119
Subdivision A--Notice of termination or payment in lieu of notice
119
117
Requirement for notice of termination or payment in lieu ............. 119
118
Modern awards and enterprise agreements may provide for
notice of termination by employees................................................ 120
Subdivision B--Redundancy pay
120
119
Redundancy pay.............................................................................. 120
120
Variation of redundancy pay for other employment or
incapacity to pay ............................................................................. 121
121
Exclusions from obligation to pay redundancy pay ....................... 122
122
Transfer of employment situations that affect the obligation
to pay redundancy pay .................................................................... 122
Subdivision C--Limits on scope of this Division
123
123
Limits on scope of this Division ..................................................... 123
Division 12--Fair Work Information Statement
126
124
FWA to determine and publish Fair Work Information
Statement ........................................................................................ 126
125
Giving new employees the Fair Work Information Statement ....... 126
vii Fair Work Bill 2008 No. , 2008
Division 13--Miscellaneous
127
126
M odern awards and enterprise agreements may provide for
school-based apprentices and trainees to be paid loadings in
lieu .................................................................................................. 127
127
Regulations about what modern awards and enterprise
agreements can do........................................................................... 127
128
Relationship between National Employment Standards and
agreements etc. permitted by this Part for award/agreement
free employees ................................................................................ 127
129
Regulations about what can be agreed to etc. in relation to
award/agreement free employees ................................................... 128
130
Restriction on taking or accruing leave or absence while
receiving workers' compensation ................................................... 128
131
Relationship with other Commonwealth laws ................................ 129
Part 2-3--Modern awards
130
Division 1--Introduction
130
132
Guide to this Part ............................................................................ 130
133
Meanings of employee and employer ............................................. 131
Division 2--Overarching provisions
132
134
The modern awards objective ......................................................... 132
135
Special provisions relating to modern award minimum
wages .............................................................................................. 133
Division 3--Terms of modern awards
134
Subdivision A--Preliminary
134
136
What can be included in modern awards ........................................ 134
137
Terms that contravene section 136 have no effect.......................... 135
138
Achieving the modern awards objective......................................... 135
Subdivision B--Terms that may be included in modern awards
135
139
Terms that may be included in modern awards--general .............. 135
140
Outworker terms ............................................................................. 136
141
Industry-specific redundancy schemes ........................................... 137
142
Incidental and machinery terms...................................................... 138
Subdivision C--Terms that must be included in modern awards
138
143
Coverage terms ............................................................................... 138
144
Flexibility terms.............................................................................. 140
145
Effect of individual flexibility arrangement that does not
meet requirements of flexibility term ............................................. 141
146
Terms about settling disputes ......................................................... 142
147
Ordinary hours of work .................................................................. 142
148
Base and full rates of pay for pieceworkers.................................... 142
Fair Work Bill 2008 No. , 2008 viii
149
Automatic variation of allowances ................................................. 143
Subdivision D--Terms that must not be included in modern
awards
143
150
Objectionable terms ........................................................................ 143
151
Terms about payments and deductions for benefit of
employer etc.................................................................................... 143
152
Terms about right of entry .............................................................. 143
153
Terms that are discriminatory ......................................................... 143
154
Terms that contain State-based differences .................................... 144
155
Terms dealing with long service leave ........................................... 145
Division 4--4 yearly reviews of modern awards
146
156
4 yearly reviews of modern awards to be conducted...................... 146
Division 5--Exercising modern award powers outside 4 yearly
reviews and annual wage reviews
148
Subdivision A--Exercise of powers if necessary to achieve modern
awards objective
148
157
FWA may vary etc. modern awards if necessary to achieve
modern awards objective ................................................................ 148
158
Applications to vary, revoke or make modern award ..................... 149
Subdivision B--Other situations
151
159
Variation of modern award to update or omit name of
employer, organisation or outworker entity.................................... 151
160
Variation of modern award to remove ambiguity or
uncertainty or correct error ............................................................. 152
161
Variation of modern award on referral by HREOC........................ 152
Division 6--General provisions relating to modern award
powers
153
162
General............................................................................................ 153
163
Special criteria relating to changing coverage of modern
awards ............................................................................................. 153
164
Special criteria for revoking modern awards .................................. 154
165
When variation determinations come into operation, other
than determinations setting, varying or revoking modern
award minimum wages ................................................................... 154
166
When variation determinations setting, varying or revoking
modern award minimum wages come into operation..................... 155
167
Special rules relating to retrospective variations of awards ........... 156
168
Varied modern award must be published ....................................... 157
ix Fair Work Bill 2008 No. , 2008
Part 2-4--Ente rprise agreements
158
Division 1--Introduction
158
169
Guide to this Part ............................................................................ 158
170
Meanings of employee and employer ............................................. 159
171
Objects of this Part.......................................................................... 159
Division 2--Employers and employees may make enterprise
agreements
161
172
Making an enterprise agreement..................................................... 161
Division 3--Bargaining and representation during bargaining
163
173
Notice of employee representational rights .................................... 163
174
Content of notice of employee representational rights ................... 164
175
Relevant employee organisations to be given notice of
employer's intention to make greenfields agreements etc.............. 165
176
Bargaining representatives for proposed enterprise
agreements that are not greenfields agreements ............................. 166
177
Bargaining representatives for proposed greenfields
agreements ...................................................................................... 168
178
Appointment of bargaining representatives--other matters........... 168
179
Employer etc. must not refuse to recognise or bargain with
other bargaining representatives ..................................................... 169
Division 4--Approval of enterprise agreements
170
Subdivision A--Pre-approval steps and applications for FWA
approval
170
180
Employees must be given a copy of a proposed enterprise
agreement etc. ................................................................................. 170
181
Employers may request employees to approve a proposed
enterprise agreement ....................................................................... 171
182
When an enterprise agreement is made .......................................... 172
183
Entitlement of an employee organisation to have an
enterprise agreement cover it .......................................................... 173
184
Multi-enterprise agreement to be varied if not all employees
approve the agreement .................................................................... 173
185
Bargaining representative must apply for FWA approval of
an enterprise agreement .................................................................. 174
Subdivision B--Approval of enterprise agreements by FWA
175
186
When FWA must approve an enterprise agreement--general
requirements ................................................................................... 175
187
When FWA must approve an enterprise agreement--
additional requirements .................................................................. 177
188
When employees have genuinely agreed to an enterprise
agreement........................................................................................ 177
Fair Work Bill 2008 No. , 2008 x
189
FWA may approve an enterprise agreement that does not
pass better off overall test--public interest test.............................. 178
190
FWA may approve an enterprise agreement with
undertakings .................................................................................... 179
191
Effect of undertakings..................................................................... 180
192
When FWA may refuse to approve an enterprise agreement ......... 180
Subdivision C--Better off overall test
181
193
Passing the better off overall test.................................................... 181
Subdivision D--Unlawful terms
182
194
Meaning of unlawful term .............................................................. 182
195
Meaning of discriminatory term ..................................................... 183
Subdivision E--Approval requirements relating to particular
kinds of employees
184
196
Shiftworkers.................................................................................... 184
197
Pieceworkers--enterprise agreement includes pieceworker
term ................................................................................................. 184
198
Pieceworkers--enterprise agreement does not include a
pieceworker term ............................................................................ 185
199
School-based apprentices and school-based trainees ..................... 185
200
Outworkers ..................................................................................... 186
Subdivision F--Other matters
186
201
Approval decision to note certain matters ...................................... 186
Division 5--Mandatory terms of enterprise agreements
188
202
Enterprise agreements to include a flexibility term etc. ................. 188
203
Requirements to be met by a flexibility term ................................. 189
204
Effect of arrangement that does not meet requirements of
flexibility term ................................................................................ 190
205
Enterprise agreements to include a consultation term etc. ............. 191
Division 6--Base rate of pay under enterprise agreements
193
206
Base rate of pay under an enterprise agreement must not be
less than the modern award rate or the national minimum
wage order rate etc.......................................................................... 193
Division 7--Variation and termination of enterprise agreements
195
Subdivision A--Variation of enterprise agreements by employers
and employees
195
207
Variation of an enterprise agreement may be made by
employers and employees............................................................... 195
208
Employers may request employees to approve a proposed
variation of an enterprise agreement............................................... 196
209
When a variation of an enterprise agreement is made .................... 196
xi Fair Work Bill 2008 No. , 2008
210
Application for FWA approval of a variation of an enterprise
agreement........................................................................................ 197
211
When FWA must approve a variation of an enterprise
agreement........................................................................................ 197
212
FWA may approve a variation of an enterprise agreement
with undertakings............................................................................ 199
213
Effect of undertakings..................................................................... 200
214
When FWA may refuse to approve a variation of an
enterprise agreement ....................................................................... 201
215
Approval decision to note undertakings ......................................... 201
216
When variation comes into operation ............................................. 201
Subdivision B--Variations of enterprise agreements where there
is ambiguity, uncertainty or discrimination
201
217
Variation of an enterprise agreement to remove an ambiguity
or uncertainty .................................................................................. 201
218
Variation of an enterprise agreement on referral by HREOC ........ 202
Subdivision C--Termination of enterprise agreements by
employers and employees
203
219
Employers and employees may agree to terminate an
enterprise agreement ....................................................................... 203
220
Employers may request employees to approve a proposed
termination of an enterprise agreement .......................................... 203
221
When termination of an enterprise agreement is agreed to ............ 204
222
Application for FWA approval of a termination of an
enterprise agreement ....................................................................... 204
223
When FWA must approve a termination of an enterprise
agreement........................................................................................ 205
224
When termination comes into operation......................................... 205
Subdivision D--Termination of enterprise agreements after
nominal expiry date
206
225
Application for termination of an enterprise agreement after
its nominal expiry date.................................................................... 206
226
When FWA must terminate an enterprise agreement ..................... 206
227
When termination comes into operation......................................... 206
Division 8--FWA's general role in facilitating bargaining
207
Subdivision A--Bargaining orders
207
228
Bargaining representatives must meet the good faith
bargaining requirements ................................................................. 207
229
Applications for bargaining orders ................................................. 207
230
When FWA may make a bargaining order ..................................... 209
231
What a bargaining order must specify ............................................ 210
232
Operation of a bargaining order...................................................... 211
Fair Work Bill 2008 No. , 2008 xii
233
Contravening a bargaining order .................................................... 212
Subdivision B--Serious breach declarations
212
234
Applications for serious breach declarations .................................. 212
235
When FWA may make a serious breach declaration ...................... 212
Subdivision C--Majority support determinations and scope
orders
214
236
Majority support determinations..................................................... 214
237
When FWA must make a majority support determination ............. 214
238
Scope orders.................................................................................... 215
239
Operation of a scope order.............................................................. 217
Subdivision D--FWA may deal with a bargaining dispute on
request
218
240
Application for FWA to deal with a bargaining dispute................. 218
Division 9--Low-paid bargaining
219
241
Objects of this Division .................................................................. 219
242
Low-paid authorisations ................................................................. 219
243
When FWA must make a low-paid authorisation........................... 220
244
Variation of low-paid authorisations--general .............................. 222
245
Variation of low-paid authorisations--enterprise agreement
etc. comes into operation ................................................................ 223
246
FWA assistance for the low-paid.................................................... 223
Division 10--Single interest employer authorisations
224
Subdivision A--Declaration that employers may bargain together
for a proposed enterprise agreement
224
247
Ministerial declaration that employers may bargain together
for a proposed enterprise agreement ............................................... 224
Subdivision B--Single interest employer authorisations
225
248
Single interest employer authorisations.......................................... 225
249
When FWA must make a single interest employer
authorisation ................................................................................... 225
250
What a single interest employer authorisation must specify .......... 226
251
Variation of single interest employer authorisations ...................... 227
252
Variation to extend period single interest employer
authorisation is in operation............................................................ 228
Division 11--Other matters
229
253
Terms of an enterprise agreement that are of no effect .................. 229
254
Applications by bargaining representatives.................................... 229
255
Part does not empower FWA to make certain orders ..................... 230
256
Prospective employers and employees ........................................... 230
xiii Fair Work Bill 2008 No. , 2008
257
Enterprise agreements may incorporate material in force
from time to time etc....................................................................... 230
Part 2-5--Workplace determinations
231
Division 1--Introduction
231
258
Guide to this Part ............................................................................ 231
259
Meanings of employee and employer ............................................. 232
Division 2--Low-paid workplace determinations
233
260
Applications for low-paid workplace determinations..................... 233
261
When FWA must make a consent low-paid workplace
determination .................................................................................. 234
262
When FWA must make a special low-paid workplace
determination--general requirements ............................................ 234
263
When FWA must make a special low-paid workplace
determination--additional requirements ........................................ 236
264
Terms etc. of a low-paid workplace determination ........................ 236
265
No other terms ................................................................................ 237
Division 3--Industrial action related workplace determinations
238
266
When FWA must make an industrial action related
workplace determination ................................................................ 238
267
Terms etc. of an industrial action related workplace
determination .................................................................................. 239
268
No other terms ................................................................................ 240
Division 4--Bargaining related workplace determinations
241
269
When FWA must make a bargaining related workplace
determination .................................................................................. 241
270
Terms etc. of a bargaining related workplace determination ......... 242
271
No other terms ................................................................................ 243
Division 5--Core terms, mandatory terms and agreed terms of
workplace determinations etc.
244
272
Core terms of workplace determinations ........................................ 244
273
Mandatory terms of workplace determinations .............................. 245
274
Agreed terms for workplace determinations................................... 246
275
Factors FWA must take into account in deciding terms of a
workplace determination ................................................................ 246
Division 6--Operation, coverage and interaction etc. of
workplace determinations
248
276
When a workplace determination operates etc. .............................. 248
277
Employers, employees and employee organisations covered
by a workplace determination......................................................... 248
Fair Work Bill 2008 No. , 2008 xiv
278
Interaction of a workplace determination with enterprise
agreements etc. ............................................................................... 249
279
Act applies to a workplace determination as if it were an
enterprise agreement ....................................................................... 250
Division 7--Other matters
251
280
Contravening a workplace determination ....................................... 251
281
Applications by bargaining representatives.................................... 251
Part 2-6--Minimum wages
252
Division 1--Introduction
252
282
Guide to this Part ............................................................................ 252
283
Meanings of employee and employer ............................................. 253
Division 2--Overarching provisions
254
284
The minimum wages objective ....................................................... 254
Division 3--Annual wage reviews
256
Subdivision A--Main provisions
256
285
Annual wage reviews to be conducted ........................................... 256
286
When annual wage review determinations varying modern
awards come into operation ............................................................ 256
287
When national minimum wage orders come into operation ........... 257
Subdivision B--Provisions about conduct of annual wage reviews
258
288
General............................................................................................ 258
289
Everyone to have a reasonable opportunity to make and
comment on submissions ................................................................ 258
290
President may direct investigations and reports ............................. 259
291
Research must be published............................................................ 259
292
Varied wage rates must be published by 1 July.............................. 259
Division 4--National minimum wage orders
260
293
Contravening a national minimum wage order .............................. 260
294
Content of national minimum wage order--main provisions ........ 260
295
Content of national minimum wage order--other matters ............. 261
296
Variation of national minimum wage order to remove
ambiguity or uncertainty or correct error........................................ 262
297
When determinations varying national minimum wage
orders come into operation ............................................................. 262
298
Special rule about retrospective variations of national
minimum wage orders .................................................................... 263
299
When a national minimum wage order is in operation ................... 263
xv Fair Work Bill 2008 No. , 2008
Part 2-7--Equal remuneration
264
Division 1--Introduction
264
300
Guide to this Part ............................................................................ 264
301
Meanings of employee and employer ............................................. 264
Division 2--Equal remuneration orders
265
302
FWA may make an order requiring equal remuneration ................ 265
303
Equal remuneration order may increase, but must not reduce,
rates of remuneration ...................................................................... 266
304
Equal remuneration order may implement equal
remuneration in stages .................................................................... 266
305
Contravening an equal remuneration order .................................... 266
306
Inconsistency with modern awards, enterprise agreements
and orders of FWA ......................................................................... 266
Part 2-8--Transfer of business
267
Division 1--Introduction
267
307
Guide to this Part ............................................................................ 267
308
Meanings of employee and employer ............................................. 267
309
Object of this Part ........................................................................... 267
Division 2--Transfer of instruments
269
310
Application of this Division............................................................ 269
311
When does a transfer of business occur.......................................... 269
312
Instruments that may transfer ......................................................... 271
313
Transferring employees and new employer covered by
transferable instrument ................................................................... 271
314
New non-transferring employees of new employer may be
covered by transferable instrument................................................. 272
315
Organisations covered by transferable instrument ......................... 272
316
Transferring employees who are high income employees ............. 273
Division 3--Powers of FWA
275
317
FWA may make orders in relation to a transfer of business........... 275
318
Orders relating to instruments covering new employer and
transferring employees.................................................................... 275
319
Orders relating to instruments covering new employer and
non-transferring employees ............................................................ 276
320
Variation of transferable instruments ............................................. 278
Part 2-9--Other terms and condition of employment
280
Division 1--Introduction
280
321
Guide to this Part ............................................................................ 280
322
Meanings of employee and employer ............................................. 280
Fair Work Bill 2008 No. , 2008 xvi
Division 2--Payment of wages
281
323
Method and frequency of payment ................................................. 281
324
Permitted deductions ...................................................................... 282
325
Unreasonable requirements to spend amount ................................. 282
326
Certain terms have no effect ........................................................... 283
327
Things given or provided, and amounts required to be spent,
in contravention of this Division .................................................... 283
Division 3--Guarantee of annual earnings
285
328
Employer obligations in relation to guarantee of annual
earnings ........................................................................................... 285
329
High income employee ................................................................... 286
330
Guarantee of annual earnings and annual rate of guarantee ........... 286
331
Guaranteed period........................................................................... 287
332
Earnings .......................................................................................... 288
333
High income threshold.................................................................... 289
Chapter 3--Rights and responsibilities of employees,
employers, organisations etc.
290
Part 3-1--General protections
290
Division 1--Introduction
290
334
Guide to this Part ............................................................................ 290
335
Meanings of employee and employer ............................................. 290
336
Objects of this Part.......................................................................... 291
Division 2--Application of this Part
292
337
Application of this Part ................................................................... 292
338
Action to which this Part applies .................................................... 292
339
Additional effect of this Part........................................................... 293
Division 3--Workplace rights
295
340
Protection ........................................................................................ 295
341
Meaning of workplace right ........................................................... 295
342
Meaning of adverse action ............................................................. 297
343
Coercion.......................................................................................... 299
344
Undue influence or pressure ........................................................... 300
345
Misrepresentations .......................................................................... 300
Division 4--Industrial activities
301
346
Protection ........................................................................................ 301
347
Meaning of engages in industrial activity ...................................... 301
348
Coercion.......................................................................................... 302
349
Misrepresentations .......................................................................... 302
xvii Fair Work Bill 2008 No. , 2008
350
Inducements--membership action ................................................. 303
Division 5--Other protections
304
351
Discrimination ................................................................................ 304
352
Temporary absence--illness or injury............................................ 305
353
Bargaining services fees ................................................................. 305
354
Coverage by particular instruments ................................................ 306
355
Coercion--allocation of duties etc. to particular person ................ 306
356
Objectionable terms ........................................................................ 307
Division 6--Sham arrangements
308
357
Misrepresenting employment as independent contracting
arrangement .................................................................................... 308
358
Dismissing to engage as independent contractor............................ 308
359
Misrepresentation to engage as independent contractor ................. 308
Division 7--Ancillary rules
310
360
Multiple reasons for action ............................................................. 310
361
Reason for action to be presumed unless proved otherwise ........... 310
362
Advising, encouraging, inciting or coercing action ........................ 310
363
Actions of industrial associations ................................................... 310
364
Unincorporated industrial associations........................................... 312
Division 8--Compliance
313
Subdivision A--Contraventions involving dismissal
313
365
Application for FWA to deal with a dispute................................... 313
366
Time for application ....................................................................... 313
367
Application fees .............................................................................. 313
368
Conferences .................................................................................... 314
369
Certificate if dispute not resolved................................................... 314
370
Advice on general protections court application ............................ 314
371
General protections court applications ........................................... 315
Subdivision B--Other contraventions
315
372
Application for FWA to deal with a dispute................................... 315
373
Application fees .............................................................................. 315
374
Conferences .................................................................................... 316
375
Advice on general protections court application ............................ 316
Subdivision C--Conference costs
316
376
Costs orders against lawyers and paid agents................................. 316
377
Applications for costs orders .......................................................... 317
378
Contravening costs orders............................................................... 317
Fair Work Bill 2008 No. , 2008 xviii
Part 3-2--Unfair dismissal
318
Division 1--Introduction
318
379
Guide to this Part ............................................................................ 318
380
Meanings of employee and employer ............................................. 318
381
Object of this Part ........................................................................... 318
Division 2--Protection from unfair dismissal
320
382
When a person is protected from unfair dismissal.......................... 320
383
Meaning of minimum employment period ...................................... 320
384
Period of employment..................................................................... 320
Division 3--What is an unfair dismissal
322
385
What is an unfair dismissal............................................................. 322
386
Meaning of dismissed ..................................................................... 322
387
Criteria for considering harshness etc............................................. 323
388
The Small Business Fair Dismissal Code ....................................... 324
389
Meaning of genuine redundancy .................................................... 324
Division 4--Remedies for unfair dismissal
325
390
When FWA may order remedy for unfair dismissal ...................... 325
391
Remedy--reinstatement etc............................................................ 325
392
Remedy--compensation................................................................. 326
393
Monetary orders may be in instalments.......................................... 328
Division 5--Procedural matters
329
394
Application for unfair dismissal remedy ........................................ 329
395
Application fees .............................................................................. 329
396
Initial matters to be considered before merits................................. 330
397
Matters involving contested facts ................................................... 330
398
Conferences .................................................................................... 330
399
Hearings .......................................................................................... 331
400
Appeal rights................................................................................... 331
401
Costs orders against lawyers and paid agents................................. 331
402
Applications for costs orders .......................................................... 332
403
Schedule of costs ............................................................................ 332
404
Security for costs ............................................................................ 333
405
Contravening orders under this Part ............................................... 333
Part 3-3--Industrial action
334
Division 1--Introduction
334
406
Guide to this Part ............................................................................ 334
407
Meanings of employee and employer ............................................. 335
xix Fair Work Bill 2008 No. , 2008
Division 2--Protected industrial action
336
Subdivision A--What is protected industrial action
336
408
Protected industrial action .............................................................. 336
409
Employee claim action ................................................................... 336
410
Employee response action .............................................................. 338
411
Employer response action............................................................... 338
412
Pattern bargaining ........................................................................... 339
Subdivision B--Common requirements for industrial action to be
protected industrial action
340
413
Common requirements that apply for industrial action to be
protected industrial action............................................................... 340
414
Notice requirements for industrial action ....................................... 341
Subdivision C--Significance of industrial action being protected
industrial action
343
415
Immunity provision ........................................................................ 343
416
Employer response action--employer may refuse to make
payments to employees................................................................... 343
Division 3--No industrial action before nominal expiry date of
enterprise agreement etc.
344
417
Industrial action must not be organised or engaged in before
nominal expiry date of enterprise agreement etc. ........................... 344
Division 4--FWA orders stopping etc. industrial action
346
418
FWA must order that industrial action by employees or
employers stop etc. ......................................................................... 346
419
FWA must order that industrial action by non-national
system employees or non-national system employers stop
etc.................................................................................................... 347
420
Interim orders etc. ........................................................................... 348
421
Contravening an order etc............................................................... 348
Division 5--Injunction against industrial action if pattern
bargaining is being engaged in
350
422
Injunction against industrial action if a bargaining
representative is engaging in pattern bargaining ............................ 350
Division 6--Suspension or termination of protected industrial
action by FWA
351
423
FWA may suspend or terminate protected industrial action--
significant economic harm etc. ....................................................... 351
424
FWA must suspend or terminate protected industrial
action--endangering life etc........................................................... 353
425
FWA must suspend protected industrial action--cooling off ........ 354
Fair Work Bill 2008 No. , 2008 xx
426
FWA must suspend protected industrial action--significant
harm to a third party ....................................................................... 354
427
FWA must specify the period of suspension .................................. 355
428
Extension of a period of suspension ............................................... 356
429
Employee claim action without a further protected action
ballot after a period of suspension etc. ........................................... 356
430
Notice of employee claim action engaged in after a period of
suspension etc. ................................................................................ 357
Division 7--Ministerial declarations
359
431
Ministerial declaration terminating industrial action ...................... 359
432
Informing people of declaration ..................................................... 359
433
Ministerial directions to remove or reduce threat ........................... 359
434
Contravening a Ministerial direction .............................................. 360
Division 8--Protected action ballots
361
Subdivision A--Introduction
361
435
Guide to this Division ..................................................................... 361
436
Object of this Division.................................................................... 361
Subdivision B--Protected action ballot orders
362
437
Application for a protected action ballot order............................... 362
438
Restriction on when application may be made ............................... 363
439
Joint applications ............................................................................ 363
440
Notice of application....................................................................... 363
441
Application to be determined within 2 days after it is made .......... 364
442
Dealing with multiple applications together................................... 364
443
When FWA must make a protected action ballot order ................. 364
444
FWA may decide on ballot agent other than the Australian
Electoral Commission and independent advisor............................. 365
445
Notice of protected action ballot order ........................................... 366
446
Protected action ballot order may require 2 or more protected
action ballots to be held at the same time ....................................... 366
447
Variation of protected action ballot order....................................... 367
448
Revocation of protected action ballot order.................................... 367
Subdivision C--Conduct of protected action ballot
368
449
Protected action ballot to be conducted by Australian
Electoral Commission or other specified ballot agent .................... 368
450
Directions for conduct of protected action ballot ........................... 368
451
Timetable for protected action ballot.............................................. 369
452
Compilation of roll of voters .......................................................... 370
453
Who is eligible to be included on the roll of voters........................ 370
454
Variation of roll of voters ............................................................... 371
xxi Fair Work Bill 2008 No. , 2008
455
Protected action ballot papers ......................................................... 372
456
Who may vote in protected action ballot ........................................ 373
457
Results of protected action ballot ................................................... 373
458
Report about conduct of protected action ballot............................. 373
Subdivision D--Effect of protected action ballot
375
459
Circumstances in which industrial action is authorised by
protected action ballot..................................................................... 375
460
Immunity for persons who act in good faith on protected
action ballot results ......................................................................... 376
461
Validity of protected action ballot etc. not affected by
technical breaches ........................................................................... 376
Subdivision E--Compliance
377
462
Interferences etc. with protected action ballot ................................ 377
463
Contravening a protected action ballot order etc. ........................... 379
Subdivision F--Liability for costs of protected action ballot
379
464
Costs of protected action ballot conducted by the Australian
Electoral Commission..................................................................... 379
465
Costs of protected action ballot conducted by protected
action ballot agent other than the Australian Electoral
Commission .................................................................................... 380
466
Costs of legal challenges ................................................................ 380
Subdivision G--Miscellaneous
381
467
Information about employees on roll of voters not to be
disclosed ......................................................................................... 381
468
Records ........................................................................................... 381
469
Regulations ..................................................................................... 382
Division 9--Payments relating to periods of industrial action
383
Subdivision A--Protected industrial action
383
470
Payments not to be made relating to certain periods of
industrial action .............................................................................. 383
471
Payments relating to partial work bans........................................... 384
472
Orders by FWA relating to certain partial work bans..................... 386
473
Accepting or seeking payments relating to periods of
industrial action .............................................................................. 386
Subdivision B--Industrial action that is not protected industrial
action
387
474
Payments not to be made relating to certain periods of
industrial action .............................................................................. 387
475
Accepting or seeking payments relating to periods of
industrial action .............................................................................. 388
Subdivision C--Miscellaneous
388
Fair Work Bill 2008 No. , 2008 xxii
476
Other responses to industrial action unaffected .............................. 388
Division 10--Other matters
389
477
Applications by bargaining representatives.................................... 389
Part 3-4--Right of entry
390
Division 1--Introduction
390
478
Guide to this Part ............................................................................ 390
479
Meanings of employee and employer ............................................. 390
480
Object of this Part ........................................................................... 390
Division 2--Entry rights under this Act
392
Subdivision A--Entry to investigate suspected contravention
392
481
Entry to investigate suspected contravention ................................. 392
482
Rights that may be exercised while on premises ............................ 392
483
Later access to record or document ................................................ 393
Subdivision B--Entry to hold discussions
394
484
Entry to hold discussions ................................................................ 394
485
Conscientious objection certificates ............................................... 394
Subdivision C--Requirements for permit holders
395
486
Permit holder must not contravene this Subdivision ...................... 395
487
Giving entry notice or exemption certificate .................................. 396
488
Contravening entry permit conditions ............................................ 396
489
Producing authority documents ...................................................... 396
490
When right may be exercised ......................................................... 397
491
Occupational health and safety requirements ................................. 397
492
Conduct of interviews in particular room etc. ................................ 397
493
Residential premises ....................................................................... 398
Division 3--State or Territory OHS rights
399
494
Official must be permit holder to exercise State or Territory
OHS right ........................................................................................ 399
495
Giving notice of entry ..................................................................... 400
496
Contravening entry permit conditions ............................................ 401
497
Producing entry permit ................................................................... 401
498
When right may be exercised ......................................................... 401
499
Occupational health and safety requirements ................................. 401
Division 4--Prohibitions
402
500
Permit holder must not hinder or obstruct ...................................... 402
501
Person must not refuse or delay entry............................................. 402
502
Person must not hinder or obstruct permit holder .......................... 402
503
Misrepresentations about things authorised by this Part ................ 402
xxiii Fair Work Bill 2008 No. , 2008
504
Unauthorised use or disclosure of employee records ..................... 403
Division 5--Powers of FWA
404
Subdivision A--Dealing with disputes
404
505
FWA may deal with a dispute about the operation of this
Part .................................................................................................. 404
506
Contravening order made to deal with dispute ............................... 405
Subdivision B--Taking action ag ainst permit holder
405
507
FWA may take action against permit holder .................................. 405
Subdivision C--Restricting rights of organisations and officials
where misuse of rights
405
508
FWA may restrict rights if organisation or official has
misused rights ................................................................................. 405
509
Contravening order made for misuse of rights ............................... 406
Subdivision D--When FWA must revoke or suspend entry
permits
407
510
When FWA must revoke or suspend entry permits........................ 407
Subdivision E--General rules for sus pending entry permits
408
511
General rules for suspending entry permits .................................... 408
Division 6--Entry permits, entry notices and certificates
409
Subdivision A--Entry permits
409
512
FWA may issue entry permits ........................................................ 409
513
Considering application .................................................................. 409
514
When FWA must not issue permit.................................................. 410
515
Conditions on entry permit ............................................................. 410
516
Expiry of entry permit .................................................................... 411
517
Return of entry permits to FWA ..................................................... 412
Subdivision B--Entry notices
412
518
Entry notice requirements............................................................... 412
Subdivision C--Exemption certificates
413
519
Exemption certificates .................................................................... 413
Subdivision D--Affected member certificates
414
520
Affected member certificates.......................................................... 414
Subdivision E--Miscellaneous
414
521
Regulations dealing with instruments under this Part .................... 414
Part 3-5--Stand down
416
Division 1--Introduction
416
522
Guide to this Part ............................................................................ 416
Fair Work Bill 2008 No. , 2008 xxiv
523
Meanings of employee and employer ............................................. 416
Division 2--Circumstances allowing stand down
417
524
Employer may stand down employees in certain
circumstances .................................................................................. 417
525
Employee not stood down during a period of authorised
leave or absence .............................................................................. 417
Division 3--Dealing with disputes
419
526
FWA may deal with a dispute about the operation of this
Part .................................................................................................. 419
527
Contravening an FWA order dealing with a dispute about the
operation of this Part....................................................................... 419
Part 3-6--Other rights and responsibilities
420
Division 1--Introduction
420
528
Guide to this Part ............................................................................ 420
529
Meanings of employee and employer ............................................. 420
Division 2--Notification and consultation relating to certain
dismissals
421
Subdivision A--Requirement to notify Centrelink
421
530
Employer to notify Centrelink of certain proposed dismissals....... 421
Subdivision B--Failure to notify or c onsult registered employee
associations
422
531
FWA may make orders where failure to notify or consult
registered employee associations about dismissals ........................ 422
532
Orders that FWA may make ........................................................... 423
533
Application for FWA order ............................................................ 424
Subdivision C--Limits on scope of this Division
424
534
Limits on scope of this Division ..................................................... 424
Division 3--Employer obligations in relation to employee
records and pay slips
426
535
Employer obligations in relation to employee records ................... 426
536
Employer obligations in relation to pay slips ................................. 426
Chapter 4--Compliance and enforcement
427
Part 4-1--Civil re medies
427
Division 1--Introduction
427
537
Guide to this Part ............................................................................ 427
538
Meanings of employee and employer ............................................. 427
xxv Fair Work Bill 2008 No. , 2008
Division 2--Orders
428
Subdivision A--Applications for orders
428
539
Applications for orders in relation to contraventions of civil
remedy provisions........................................................................... 428
540
Limitations on who may apply for orders etc. ................................ 438
541
Applications for orders in relation to safety net contractual
entitlements..................................................................................... 440
542
Entitlements under contracts........................................................... 440
543
Applications for orders in relation to statutory entitlements
derived from contracts .................................................................... 441
544
Time limit on applications .............................................................. 441
Subdivision B--Orders
441
545
Orders that can be made by particular courts ................................. 441
546
Pecuniary penalty orders................................................................. 442
547
Interest up to judgment ................................................................... 443
Division 3--Small claims procedure
445
548
Plaintiffs may choose small claims procedure................................ 445
Division 4--General provisions relating to civil remedies
447
549
Contravening a civil remedy provision is not an offence ............... 447
550
Involvement in contravention treated in same way as actual
contravention .................................................................................. 447
551
Civil evidence and procedure rules for proceedings relating
to civil remedy provisions .............................................................. 447
552
Civil proceedings after criminal proceedings ................................. 447
553
Criminal proceedings during civil proceedings .............................. 448
554
Criminal proceedings after civil proceedings ................................. 448
555
Evidence given in proceedings for pecuniary penalty not
admissible in criminal proceedings ................................................ 448
556
Civil double jeopardy ..................................................................... 449
557
Course of conduct ........................................................................... 449
558
Regulations dealing with infringement notices .............................. 450
Division 5--Unclaimed money
451
559
Unclaimed money ........................................................................... 451
Part 4-2--Jurisdiction and powe rs of courts
452
Division 1--Introduction
452
560
Guide to this Part ............................................................................ 452
561
Meanings of employee and employer ............................................. 452
Division 2--Jurisdiction and powers of the Federal Court
453
562
Conferring jurisdiction on the Federal Court.................................. 453
Fair Work Bill 2008 No. , 2008 xxvi
563
Exercising jurisdiction in the Fair Work Division of the
Federal Court .................................................................................. 453
564
No limitation on Federal Court's powers ....................................... 454
565
Appeals from eligible State or Territory courts .............................. 454
Division 3--Jurisdiction and powers of the Federal Magistrates
Court
455
566
Conferring jurisdiction on the Federal Magistrates Court .............. 455
567
Exercising jurisdiction in the Fair Work Division of the
Federal Magistrates Court............................................................... 455
568
No limitation on Federal Magistrates Court's powers.................... 455
Division 4--Miscellaneous
456
569
Minister's entitlement to intervene ................................................. 456
570
Costs only if proceedings instituted vexatiously etc....................... 456
571
No imprisonment for failure to pay pecuniary penalty................... 457
572
Regulations dealing with matters relating to court
proceedings ..................................................................................... 457
Chapter 5--Administration
458
Part 5-1--Fair Work Australia
458
Division 1--Introduction
458
573
Guide to this Part ............................................................................ 458
574
Meanings of employee and employer ............................................. 459
Division 2--Establishment and functions of Fair Work Australia
460
Subdivision A--Es tablishment and functions of Fair Work
Australia
460
575
Establishment of Fair Work Australia ............................................ 460
576
Functions of FWA .......................................................................... 460
577
Performance of functions etc. by FWA .......................................... 461
578
Matters FWA must take into account in performing functions
etc.................................................................................................... 461
579
FWA has privileges and immunities of the Crown ........................ 462
580
Protection of FWA Members.......................................................... 462
Subdivision B--Functions and powers of the President
462
581
Functions of the President .............................................................. 462
582
Directions by the President ............................................................. 462
583
President not subject to direction.................................................... 463
584
Delegation of functions and powers of the President ..................... 463
Division 3--Conduct of matters before FWA
465
Subdivision A--Applications to FWA
465
xxvii Fair Work Bill 2008 No. , 2008
585
Applications in accordance with procedural rules .......................... 465
586
Correcting and amending applications and documents etc............. 465
587
Dismissing applications .................................................................. 465
588
Discontinuing applications ............................................................. 466
Subdivision B--Conduct of matters before FWA
466
589
Procedural and interim decisions .................................................... 466
590
Powers of FWA to inform itself ..................................................... 466
591
FWA not bound by rules of evidence and procedure ..................... 467
592
Conferences .................................................................................... 467
593
Hearings .......................................................................................... 467
594
Confidential evidence ..................................................................... 468
595
FWA's power to deal with disputes................................................ 469
Subdivision C--Representation by lawyers and paid agents and
Minister's entitlement to make submissions
469
596
Representation by lawyers and paid agents .................................... 469
597
Minister's entitlement to make submissions................................... 470
Subdivision D--Decisions of FWA
470
598
Decisions of FWA .......................................................................... 470
599
FWA not required to decide an application in terms applied
for.................................................................................................... 471
600
Determining matters in the absence of a person ............................. 471
601
Writing and publication requirements for FWA's decisions .......... 471
602
Correcting obvious errors etc. in relation to FWA's decisions ...... 472
603
Varying and revoking FWA's decisions......................................... 473
Subdivision E--Appeals, reviews and referring questions of law
474
604
Appeal of decisions......................................................................... 474
605
Minister's entitlement to apply for review of a decision ................ 474
606
Staying decisions that are appealed or reviewed ............................ 475
607
Process for appealing or reviewing decisions ................................. 475
608
Referring questions of law to the Federal Court............................. 476
Subdivision F--Miscellaneous
477
609
Procedural rules .............................................................................. 477
610
Regulations dealing with FWA matters.......................................... 477
611
Costs ............................................................................................... 478
Division 4--Organisation of FWA
479
Subdivision A--Functions etc. to be performed by a single FWA
Member, a Full Bench or the Minimum Wage
Panel
479
612
FWA functions etc. may generally be performed by single
FWA Member ................................................................................. 479
Fair Work Bill 2008 No. , 2008 xxviii
613
Appeal of decisions to be heard by a Full Bench, the
President or a Deputy President...................................................... 479
614
Review of decisions by a Full Bench ............................................. 480
615
FWA functions etc. performed by a Full Bench on direction
by the President............................................................................... 480
616
FWA functions etc. that must be performed by a Full Bench ........ 480
617
FWA functions etc. that must be performed by the Minimum
Wage Panel ..................................................................................... 481
Subdivision B--Constitution of FWA by a single FWA Member, a
Full Bench or the Minimum Wage Panel
481
618
Constitution and decision-making of a Full Bench ........................ 481
619
Seniority of FWA Members ........................................................... 482
620
Constitution and decision-making of the Minimum Wage
Panel ............................................................................................... 482
621
Reconstitution of FWA when single FWA Member becomes
unavailable ...................................................................................... 483
622
Reconstitution of FWA when FWA Member of a Full Bench
or the Minimum Wage Panel becomes unavailable ....................... 483
623
When new FWA Members begin to deal with matters................... 484
624
FWA's decisions not invalid when improperly constituted ........... 484
Subdivision C--Delegation of FWA's functions and powers
484
625
Delegation by the President of functions and powers of FWA ...... 484
Division 5--FWA Members
486
Subdivision A--Appointment of FWA Members
486
626
Appointment of FWA Members ..................................................... 486
627
Qualifications for appointment of FWA Members......................... 486
628
Basis of appointment of FWA Members ........................................ 488
629
Period of appointment of FWA Members ...................................... 488
Subdivision B--Terms and conditions of FWA Members
489
630
Appointment of a Judge not to affect tenure etc............................. 489
631
Dual federal and State appointments of Deputy Presidents or
Commissioners ............................................................................... 489
632
Dual federal and Territory appointments of Deputy
Presidents or Commissioners.......................................................... 490
633
Outside employment of FWA Members......................................... 490
634
Oath or affirmation of office........................................................... 490
635
Remuneration of the President........................................................ 491
636
Application of Judges' Pensions Act to the President .................... 491
637
Remuneration of FWA Members other than the President ............ 492
638
Remuneration of Deputy Presidents or Commissioners
performing duties on a part-time basis ........................................... 493
xxix Fair Work Bill 2008 No. , 2008
639
Leave of absence of FWA Members other than the President ....... 494
640
Disclosure of interests by FWA Members other than the
President ......................................................................................... 494
641
Termination of appointment on grounds of misbehaviour or
incapacity ........................................................................................ 495
642
Suspension on grounds of misbehaviour or incapacity .................. 495
643
Termination of appointment for bankruptcy, etc. ........................... 496
644
Termination of appointment for outside employment .................... 497
645
Resignation of FWA Members ....................................................... 497
646
Other terms and conditions of FWA Members............................... 497
647
Appointment of acting President .................................................... 497
648
Appointment of acting Deputy Presidents ...................................... 498
Division 6--Cooperation with the States
500
649
President to cooperate with prescribed State industrial
authorities ....................................................................................... 500
650
Provision of administrative support................................................ 500
Division 7--Seals, reviews and reports, and disclosure of
information
501
651
Seals ................................................................................................ 501
652
Annual report .................................................................................. 501
653
Reviews and reports about making enterprise agreements............. 502
654
President must provide certain information etc. to the
Minister and Fair Work Ombudsman ............................................. 503
655
Disclosure of information by FWA ................................................ 503
Division 8--General Manager, staff and consultants
505
Subdivision A--Functions of the General Manager
505
656
Establishment.................................................................................. 505
657
Functions and powers of the General Manager .............................. 505
658
Directions from the President ......................................................... 505
659
General Manager not otherwise subject to direction ...................... 505
Subdivision B--Appointment and terms and conditions of the
General Manager
506
660
Appointment of the General Manager ............................................ 506
661
Remuneration of the General Manager........................................... 506
662
Leave of absence of the General Manager ..................................... 506
663
Outside employment of the General Manager ................................ 507
664
Disclosure of interests to the President........................................... 507
665
Resignation of the General Manager .............................................. 507
666
Termination of appointment of the General Manager .................... 507
667
Other terms and conditions of the General Manager ...................... 508
Fair Work Bill 2008 No. , 2008 xxx
668
Appointment of acting General Manager ....................................... 508
669
Minister to consult the President .................................................... 508
Subdivision C--Staff and consultants
509
670
Staff................................................................................................. 509
671
Delegation by General Manager to staff......................................... 509
672
Persons assisting FWA ................................................................... 509
673
Consultants ..................................................................................... 510
Division 9--Offences relating to Fair Work Australia
511
674
Offences in relation to FWA........................................................... 511
675
Contravening an FWA order .......................................................... 513
676
Intimidation etc. .............................................................................. 513
677
Offences in relation to attending before FWA ............................... 514
678
False or misleading evidence.......................................................... 515
Part 5-2--Office of the Fair Work Ombudsman
516
Division 1--Introduction
516
679
Guide to this Part ............................................................................ 516
680
Meanings of employee and employer ............................................. 516
Division 2--Fair Work Ombudsman
517
Subdivision A--Es tablishment and functions and powers of the
Fair Work Ombuds man
517
681
Establishment.................................................................................. 517
682
Functions of the Fair Work Ombudsman ....................................... 517
683
Delegation by the Fair Work Ombudsman ..................................... 518
684
Directions from the Minister .......................................................... 518
685
Minister may require reports .......................................................... 518
686
Annual report .................................................................................. 519
Subdivision B--Appointment and terms and conditions of the
Fair Work Ombuds man
519
687
Appointment of the Fair Work Ombudsman .................................. 519
688
Remuneration of the Fair Work Ombudsman ................................ 519
689
Leave of absence of the Fair Work Ombudsman ........................... 520
690
Outside employment of the Fair Work Ombudsman...................... 520
691
Disclosure of interests to the Minister ............................................ 520
692
Resignation of the Fair Work Ombudsman .................................... 520
693
Termination of appointment of the Fair Work Ombudsman .......... 520
694
Other terms and conditions of the Fair Work Ombudsman............ 521
695
Appointment of acting Fair Work Ombudsman ............................. 521
xxxi Fair Work Bill 2008 No. , 2008
Division 3--Office of the Fair Work Ombudsman
523
Subdivision A--Es tablishment of the Office of the Fair Work
Ombuds man
523
696
Establishment of the Office of the Fair Work Ombudsman ........... 523
Subdivision B--Staff and consultants etc.
523
697
Staff................................................................................................. 523
698
Persons assisting the Fair Work Ombudsman ................................ 523
699
Consultants ..................................................................................... 524
Subdivision C--Appointment of Fair Work Inspectors
524
700
Appointment of Fair Work Inspectors ............................................ 524
701
Fair Work Ombudsman is a Fair Work Inspector .......................... 524
702
Identity cards .................................................................................. 524
Subdivision D--Functions and powers of Fair Work Ins pectors
525
703
Conditions and restrictions on functions and powers ..................... 525
704
General directions by the Fair Work Ombudsman ......................... 526
705
Particular directions by the Fair Work Ombudsman ...................... 526
706
Purpose for which powers of inspectors may be exercised ............ 526
707
When powers of inspectors may be exercised ................................ 527
708
Power of inspectors to enter premises ............................................ 527
709
Powers of inspectors while on premises ......................................... 528
710
Persons assisting inspectors ............................................................ 528
711
Power to ask for person's name and address .................................. 529
712
Power to require persons to produce records or documents ........... 529
713
Self-incrimination ........................................................................... 530
714
Power to keep records or documents .............................................. 530
715
Enforceable undertakings relating to contraventions of civil
remedy provisions........................................................................... 530
716
Compliance notices ......................................................................... 532
717
Review of compliance notices ........................................................ 533
Subdivision E--Disclosure of information by the Office of the Fair
Work Ombuds man
534
718
Disclosure of information by the Office of the Fair Work
Ombudsman .................................................................................... 534
Chapter 6--Miscellaneous
536
Part 6-1--Multiple actions
536
Division 1--Introduction
536
719
Guide to this Part ............................................................................ 536
720
Meanings of employee and employer ............................................. 536
Fair Work Bill 2008 No. , 2008 xxxii
Division 2--Certain actions not permitted if alternative action
can be taken
537
721
Equal remuneration applications .................................................... 537
722
Notification and consultation requirements applications ............... 537
723
Unlawful termination applications ................................................. 538
Division 3--Preventing multiple actions
539
Subdivision A--Equal remuneration applications
539
724
Equal remuneration applications .................................................... 539
Subdivision B--Applications and complaints relating to dis missal
540
725
General rule .................................................................................... 540
726
Dismissal remedy bargaining order applications............................ 540
727
General protections FWA applications........................................... 540
728
General protections court applications ........................................... 541
729
Unfair dismissal applications.......................................................... 541
730
Unlawful termination FWA applications........................................ 542
731
Unlawful termination court applications ........................................ 542
732
Applications and complaints under other laws ............................... 542
733
Dismissal does not include failure to p rovide benefits ................... 543
Subdivision C--General protections applications that do not
relate to dis missal
543
734
General rule .................................................................................... 543
Part 6-2--Dealing with disputes
544
Division 1--Introduction
544
735
Guide to this Part ............................................................................ 544
736
Meanings of employee and employer ............................................. 544
Division 2--Dealing with disputes
545
Subdivision A--Model term about dealing with disputes
545
737
Model term about dealing with disputes......................................... 545
Subdivision B--Dealing with dis putes
545
738
Application of this Division............................................................ 545
739
Disputes dealt with by FWA........................................................... 545
740
Dispute dealt with by persons other than FWA.............................. 546
Part 6-3--Extension of National Employment Standards
entitlements
547
Division 1--Introduction
547
741
Guide to this Part ............................................................................ 547
742
Meanings of employee and employer ............................................. 547
xxxiii Fair Work Bill 2008 No. , 2008
Division 2--Extension of entitlement to unpaid parental leave
and related entitlements
548
Subdivision A--Main provisions
548
743
Object of this Division.................................................................... 548
744
Extending the entitlement to unpaid parental leave and
related entitlements ......................................................................... 548
745
Contravening the extended parental leave provisions .................... 549
746
References to the National Employment Standards include
extended parental leave provisions ................................................. 550
747
State and Territory laws that are not excluded ............................... 550
Subdivision B--Modifications of the extended parental leave
provisions
550
748
Non-national system employees are not award/agreement
free employees ................................................................................ 550
749
Modification of meaning of base rate of pay for
pieceworkers ................................................................................... 551
750
Modification of meaning of full rate of pay for pieceworkers ....... 551
751
Modification of meaning of ordinary hours of work--if
determined by State industrial instrument ...................................... 551
752
Modification of meaning of ordinary hours of work--if not
determined by State industrial instrument ...................................... 551
753
Modification of meaning of ordinary hours of work--
regulations may prescribe usual weekly hours ............................... 552
754
Modification of meaning of pieceworker ....................................... 552
755
Modification of provision about interaction with paid leave.......... 552
756
Modification of provision about relationship between
National Employment Standards and agreements .......................... 552
757
Modification of power to make regulations.................................... 553
Division 3--Extension of entitlement to notice of termination or
payment in lieu of notice
554
Subdivision A--Main provisions
554
758
Object of this Division.................................................................... 554
759
Extending entitlement to notice of termination or payment in
lieu of notice ................................................................................... 554
760
Contravening the extended notice of termination provisions ......... 555
761
References to the National Employment Standards include
extended notice of termination provisions...................................... 555
762
State and Territory laws that are not excluded ............................... 556
Subdivision B--Modifications of the extended notice of
termination provisions
556
Fair Work Bill 2008 No. , 2008 xxxiv
763
Non-national system employees are not award/agreement
free employees ................................................................................ 556
764
Modification of meaning of full rate of pay for pieceworkers ....... 556
765
Modification of meaning of pieceworker ....................................... 556
766
Modification of provision about notice of termination by
employee......................................................................................... 557
767
Modification of provision about relationship between
National Employment Standards and agreements .......................... 557
768
Modification of power to make regulations.................................... 557
Part 6-4--Additional provisions relating to termination of
employment
558
Division 1--Introduction
558
769
Guide to this Part ............................................................................ 558
770
Meanings of employee and employer ............................................. 558
Division 2--Termination of employment
559
771
Object of this Division.................................................................... 559
772
Employment not to be terminated on certain grounds .................... 559
773
Application for FWA to deal with a dispute................................... 561
774
Time for application ....................................................................... 561
775
Application fees .............................................................................. 562
776
Conferences .................................................................................... 562
777
Certificate if dispute not resolved................................................... 562
778
Advice on unlawful termination court application ......................... 562
779
Unlawful termination court applications ........................................ 563
780
Costs orders against lawyers and paid agents................................. 563
781
Applications for costs orders .......................................................... 564
782
Contravening costs orders............................................................... 564
783
Reason for action to be presumed unless proved otherwise ........... 564
Division 3--Notification and consultation requirements relating
to certain terminations of employment
565
Subdivision A--Object of this Division
565
784
Object of this Division.................................................................... 565
Subdivision B--Requirement to notify Ce ntrelink
565
785
Employer to notify Centrelink of certain proposed
terminations .................................................................................... 565
Subdivision C--Failure to notify or consult registered employee
associations
566
786
FWA may make orders where failure to notify or consult
registered employee associations about terminations..................... 566
xxxv Fair Work Bill 2008 No. , 2008
787
Orders that FWA may make ........................................................... 567
788
Application to FWA for order ........................................................ 568
Subdivision D--Limits on scope of this Division
568
789
Limits on scope of this Division ..................................................... 568
Part 6-5--Miscellaneous
570
Division 1--Introduction
570
790
Guide to this Part ............................................................................ 570
791
Meanings of employee and employer ............................................. 570
Division 2--Miscellaneous
571
792
Delegation by Minister ................................................................... 571
793
Liability of bodies corporate........................................................... 571
794
Signature on behalf of body corporate............................................ 572
795
Public sector employer to act through employing authority........... 572
796
Regulations--general ..................................................................... 574
797
Regulations dealing with offences .................................................. 574
798
Regulations dealing with civil penalties ......................................... 574
799
Regulations dealing with infringement notices .............................. 574
800
Regulations dealing with exhibiting fair work instruments............ 575
Fair Work Bill 2008 No. , 2008 1
A Bill for an Act relating to workplace relations,
1
and for related purposes
2
The Parliament of Australia enacts:
3
Chapter 1--Introduction
4
Part 1-1--Introduction
5
Division 1--Preliminary
6
1 Short title
7
This Act may be cited as the Fair Work Act 2008.
8
Chapter 1 Introduction
Part 1-1 Introduction
Division 1 Preliminary
Section 2
2 Fair Work Bill 2008 No. , 2008
2 Commence ment
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day on which this Act receives the
Royal Assent.
2. Sections 3 to
800
A day or days to be fixed by Proclamation.
A Proclamation must not specify a day that
occurs before the day on which the Fair
Work (Transitional Provisions and
Consequential Amendments) Act 2009
receives the Royal Assent.
However, if any of the provision(s) do not
commence with in the period of 6 months
beginning on the day on which the Fair
Work (Transitional Provisions and
Consequential Amendments) Act 2009
receives the Royal Assent, they commence
on the first day after the end of that period.
Note:
This table relates only to the provisions of this Act as originally
7
passed by both Houses of the Parliament and assented to. It will not be
8
expanded to deal with provisions inserted in this Act after assent.
9
(2) Column 3 of the table contains additional information that is not
10
part of this Act. Information in this column may be added to or
11
edited in any published version of this Act.
12
13
Introduction Chapter 1
Introduction Part 1-1
Object of this Act Division 2
Section 3
Fair Work Bill 2008 No. , 2008 3
1
Division 2--Object of this Act
2
3 Object of this Act
3
The object of this Act is to provide a balanced framework for
4
cooperative and productive workplace relations that promotes
5
national economic prosperity and social inclusion for all
6
Australians by:
7
(a) providing workplace relations laws that are fair to working
8
Australians, are flexible for businesses, promote productivity
9
and economic growth for Australia's future economic
10
prosperity and take into account Australia's international
11
labour obligations; and
12
(b) ensuring a guaranteed safety net of fair, relevant and
13
enforceable minimum terms and conditions through the
14
National Employment Standards, modern awards and
15
national minimum wage orders; and
16
(c) ensuring that the guaranteed safety net of fair, relevant and
17
enforceable minimum wages and conditions can no longer be
18
undermined by the making of statutory individual
19
employment agreements of any kind given that such
20
agreements can never be part of a fair workplace relations
21
system; and
22
(d) assisting employees to balance their work and family
23
responsibilities by providing for flexible working
24
arrangements; and
25
(e) enabling fairness and representation at work and the
26
prevention of discrimination by recognising the right to
27
freedom of association and the right to be represented,
28
protecting against unfair treatment and discrimination,
29
providing accessible and effective procedures to resolve
30
grievances and disputes and providing effective compliance
31
mechanisms; and
32
(f) achieving productivity and fairness through an emphasis on
33
enterprise-level collective bargaining underpinned by simple
34
good faith bargaining obligations and clear rules governing
35
industrial action.
36
37
Chapter 1 Introduction
Part 1-1 Introduction
Division 3 Guide to this Act
Section 4
4 Fair Work Bill 2008 No. , 2008
1
Division 3--Guide to this Act
2
4 Guide to this Act
3
Overview of this Act
4
(1) This Act is about workplace relations. It:
5
(a) provides for terms and conditions of employment
6
(Chapter 2); and
7
(b) sets out rights and responsibilities of employees, employers
8
and organisations in relation to that employment (Chapter 3);
9
and
10
(c) provides for compliance with, and enforcement of, this Act
11
(Chapter 4); and
12
(d) provides for the administration of this Act by establishing
13
Fair Work Australia and the Office of the Fair Work
14
Ombudsman (Chapter 5); and
15
(e) deals with other matters relating to the above (Chapter 6).
16
Overview of the rest of this Chapter
17
(2) The rest of this Chapter deals with:
18
(a) definitions that are used in this Act (Part 1-2); and
19
(b) the application of this Act (Part 1-3), including how this Act
20
interacts with certain State and Territory laws and its
21
geographical application.
22
Definitions
23
(3) Many of the terms in this Act are defined. The Dictionary in
24
section 12 contains a list of every term that is defined in this Act.
25
5 Terms and conditions of employment (Chapte r 2)
26
(1) Chapter 2 provides for terms and conditions of employment of
27
national system employees.
28
Introduction Chapter 1
Introduction Part 1-1
Gu ide to this Act Division 3
Section 5
Fair Work Bill 2008 No. , 2008 5
(2) Part 2-1 has the core provisions for the Chapter. It deals with
1
compliance with, and interaction between, the sources of the main
2
terms and conditions provided under this Act--the National
3
Employment Standards, modern awards and enterprise agreements.
4
Note:
Workplace determinations are another source of main terms and
5
conditions. In most cases, this Act applies to a workplace
6
determination as if it were an enterprise agreement in operation (see
7
section 279).
8
Main terms and conditions
9
(3) Part 2-2 contains the National Employment Standards, which are
10
minimum terms and conditions that apply to all national system
11
employees.
12
(4) Part 2-3 is about modern awards. A modern award is made for a
13
particular industry or occupation and provides additional minimum
14
terms and conditions for those national system employees to whom
15
it applies. A modern award can have terms that are ancillary or
16
supplementary to the National Employment Standards.
17
(5) Part 2-4 is about enterprise agreements. An enterprise agreement is
18
made at the enterprise level and provides terms and conditions for
19
those national system employees to whom it applies. An enterprise
20
agreement can have terms that are ancillary or supplementary to
21
the National Employment Standards.
22
(6) Part 2-5 is about workplace determinations. A workplace
23
determination provides terms and conditions for those national
24
system employees to whom it applies. A workplace determination
25
is made by FWA if certain conditions are met.
26
(7) Part 2-8 provides for the transfer of certain modern awards,
27
enterprise agreements, workplace determinations and other
28
instruments if there is a transfer of business from one national
29
system employer to another national system employer.
30
Other terms and conditions
31
(8) In addition, other terms and conditions of employment for national
32
system employees include those:
33
Chapter 1 Introduction
Part 1-1 Introduction
Division 3 Guide to this Act
Section 6
6 Fair Work Bill 2008 No. , 2008
(a) provided by a national minimum wage order (see Part 2-6) or
1
an equal remuneration order (see Part 2-7); and
2
(b) provided by Part 2-9 (which deals with the frequency and
3
method of making payments to employees, deductions from
4
payments and high-income employees).
5
6 Rights and responsibilities of employees, employers, organisations
6
etc. (Chapter 3)
7
(1) Chapter 3 sets out rights and responsibilities of national system
8
employees, national system employers, organisations and others
9
(such as independent contractors and industrial associations).
10
(2) Part 3-1 provides general workplace protections. It:
11
(a) protects workplace rights; and
12
(b) protects freedom of association and involvement in lawful
13
industrial activities; and
14
(c) provides other protections, including protection from
15
discrimination.
16
(3) Part 3-2 deals with unfair dismissal of national system employees,
17
and the granting of remedies when that happens.
18
(4) Part 3-3 deals mainly with industrial action by national system
19
employees and national system employers and sets out when
20
industrial action is protected industrial action. No action lies under
21
any law in force in a State or Territory in relation to protected
22
industrial action except in certain circumstances.
23
(5) Part 3-4 is about the rights of officials of organisations who hold
24
entry permits to enter premises for purposes related to their
25
representative role under this Act and under State or Territory OHS
26
laws. In exercising those rights, permit holders must comply with
27
the requirements set out in the Part.
28
(6) Part 3-5 allows a national system employer to stand down a
29
national system employee without pay in certain circumstances.
30
(7) Part 3-6 deals with other rights and responsibilities of national
31
system employers in relation to:
32
(a) termination of employment; and
33
Introduction Chapter 1
Introduction Part 1-1
Gu ide to this Act Division 3
Section 7
Fair Work Bill 2008 No. , 2008 7
(b) keeping records and giving payslips.
1
7 Compliance and enforce ment (Chapter 4)
2
(1) Chapter 4 provides for compliance with, and enforcement of, this
3
Act.
4
(2) Part 4-1 is about civil remedies. Certain provisions in this Act
5
impose obligations on certain persons. Civil remedies may be
6
sought in relation to contraventions of these civil remedy
7
provisions. Part 4-1:
8
(a) deals with applications for orders for contraventions of civil
9
remedy provisions; and
10
(b) sets out the orders the courts can make in relation to a
11
contravention of a civil remedy provision.
12
(3) Part 4-2 is about the jurisdiction and powers of the courts in
13
relation to matters arising under this Act.
14
8 Administration (Chapter 5)
15
(1) Chapter 5 provides for the administration of this Act by
16
establishing Fair Work Australia and the Office of the Fair Work
17
Ombudsman.
18
(2) Part 5-1 is about FWA. It:
19
(a) establishes and confers functions on FWA; and
20
(b) sets out how matters before FWA are to be conducted (for
21
example, how FWA is to deal with applications made to it).
22
(3) Part 5-2 is about the Office of the Fair Work Ombudsman. It:
23
(a) establishes and confers functions on the Fair Work
24
Ombudsman; and
25
(b) confers functions and powers on Fair Work Inspectors.
26
9 Miscellaneous (Chapter 6)
27
(1) Chapter 6 is a collection of miscellaneous matters that relate to the
28
other Chapters.
29
Chapter 1 Introduction
Part 1-1 Introduction
Division 3 Guide to this Act
Section 9
8 Fair Work Bill 2008 No. , 2008
(2) Part 6-1 provides rules relating to applications for remedies under
1
this Act. It prevents certain applications if other remedies are
2
available and prevents multiple applications or complaints in
3
relation to the same conduct.
4
(3) Part 6-2 is about dealing with disputes between national system
5
employees and their employers under modern awards, enterprise
6
agreements and contracts of employment.
7
(4) Part 6-3 extends the National Employment Standards relating to
8
unpaid parental leave and notice of termination to non-national
9
system employees.
10
(5) Part 6-4 contains provisions to give effect, or further effect, to
11
certain international agreements relating to termination of
12
employment.
13
(6) Part 6-5 deals with miscellaneous matters such as delegations and
14
regulations.
15
16
Introduction Chapter 1
Definitions Part 1-2
Introduction Division 1
Section 10
Fair Work Bill 2008 No. , 2008 9
1
Part 1-2--Definitions
2
Division 1--Introduction
3
10 Guide to this Part
4
This Part is about the terms that are defined in this Act.
5
Division 2 has the Dictionary (see section 12). The Dictionary is a
6
list of every term that is defined in this Act. A term will either be
7
defined in the Dictionary itself, or in another provision of this Act.
8
If another provision defines the term, the Dictionary will have a
9
signpost to that definition.
10
Division 3 has definitions relating to the meanings of employee
11
and employer.
12
Division 4 has some other definitions that apply across this Act.
13
11 Meanings of employee and employer
14
In this Part, employee and employer have their ordinary meanings.
15
16
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 12
10 Fair Work Bill 2008 No. , 2008
1
Division 2--The Dictionary
2
12 The Dictionary
3
In this Act:
4
4 yearly review of modern awards: see subsection 156(1).
5
access period for a proposed enterprise agreement: see subsection
6
180(4).
7
action includes an omission.
8
adoption-related leave: see subsection 67(5).
9
adverse action: see section 342.
10
affected employees for a variation of an enterprise agreement: see
11
subsection 207(2).
12
affected employer:
13
(a) in relation to an entry under Subdivision A of Division 2 of
14
Part 3-4: see subsection 482(2); and
15
(b) in relation to an entry in accordance with Division 3 of
16
Part 3-4: see subsection 495(2).
17
affected member certificate: see subsection 520(1).
18
agreed terms for a workplace determination: see section 274.
19
agreed to in relation to a termination of an enterprise agreement:
20
see section 221.
21
annual rate of an employee's guaranteed annual earnings: see
22
subsection 330(3).
23
annual wage review: see subsection 285(1).
24
applicable award-derived long service leave terms: see subsection
25
113(3).
26
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 12
Fair Work Bill 2008 No. , 2008 11
application or complaint under another law: see subsection
1
732(2).
2
applies:
3
(a) in relation to a modern award: see section 47; and
4
(b) in relation to an enterprise agreement: see section 52.
5
applies to employment generally: see subsection 26(4).
6
appointment of a bargaining representative means an appointment
7
of a bargaining representative under paragraph 176(1)(c) or (d) or
8
177(b).
9
appropriate safe job: see subsection 81(4).
10
approved by FWA, in relation to an enterprise agreement, means
11
approved by FWA under section 186 or 189.
12
associated entity has the meaning given by section 50AAA of the
13
Corporations Act 2001.
14
Australian-based employee: see subsections 35(2) and (3).
15
Australian employer: see subsection 35(1).
16
Australian ship means a ship that has Australian nationality under
17
section 29 of the Shipping Registration Act 1981.
18
authority documents: see subsection 489(3).
19
available parental leave period: see subsection 75(2).
20
award/agreement free employee means a national system
21
employee to whom neither a modern award nor an enterprise
22
agreement applies.
23
award covered employee for an enterprise agreement: see
24
subsection 193(4).
25
award modernisation process means the process of making
26
modern awards under Part 10A of the Workplace Relations Act
27
1996, as in force immediately before the commencement of
28
Part 2-3 of this Act (which deals with modern awards).
29
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 12
12 Fair Work Bill 2008 No. , 2008
bargaining order: see subsection 229(1).
1
bargaining related workplace determination: see subsection
2
269(1).
3
bargaining representative for a proposed enterprise agreement: see
4
sections 176 and 177.
5
bargaining services: see subsection 353(3).
6
bargaining services fee: see subsection 353(2).
7
base rate of pay: see section 16.
8
birth-related leave: see subsection 67(4).
9
child of a person: see subsection 17(1).
10
civil remedy provision: see subsection 539(1).
11
Commissioner means a Commissioner of FWA.
12
common requirements in relation to industrial action: see
13
section 413.
14
Commonwealth authority means:
15
(a) a body corporate established for a public purpose by or under
16
a law of the Commonwealth; or
17
(b) a body corporate:
18
(i) incorporated under a law of the Commonwealth or a
19
State or a Territory; and
20
(ii) in which the Commonwealth has a controlling interest.
21
Commonwealth place means a place referred to in paragraph 52(i)
22
of the Constitution, other than the seat of government.
23
compassionate leave means compassionate leave to which a
24
national system employee is entitled under section 104.
25
compliance powers: see section 703.
26
compliance purposes: see subsection 706(1).
27
conduct includes an omission.
28
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 12
Fair Work Bill 2008 No. , 2008 13
conduct of a protected action ballot: see subsection 458(5).
1
conscientious objection certificate: see subsection 485(2).
2
consent low-paid workplace determination: see subsection 260(2).
3
consistent with the Small Business Fair Dismissal Code: see
4
subsection 388(2).
5
constitutional corporation means a corporation to which
6
paragraph 51(xx) of the Constitution applies.
7
constitutionally-covered entity: see subsection 338(2).
8
constitutional trade or commerce means trade or commerce:
9
(a) between Australia and a place outside Australia; or
10
(b) among the States; or
11
(c) between a State and a Territory; or
12
(d) between 2 Territories; or
13
(e) within a Territory.
14
continental shelf means the continental shelf (as defined in the
15
Seas and Submerged Lands Act 1973) of Australia (including its
16
external Territories).
17
continuous service has a meaning affected by section 22.
18
coverage terms in relation to a modern award: see subsection
19
143(1).
20
covers:
21
(a) in relation to a modern award: see section 48; and
22
(b) in relation to an enterprise agreement: see section 53; and
23
(c) in relation to a workplace determination: see section 277.
24
day of placement: see subsection 67(6).
25
de facto partner of a national system employee:
26
(a) means a person who, although not legally married to the
27
employee, lives with the employee in a relationship as a
28
couple on a genuine domestic basis (whether the employee
29
and the person are of the same sex or different sexes); and
30
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 12
14 Fair Work Bill 2008 No. , 2008
(b) includes a former de facto partner of the employee.
1
Deputy President means a Deputy President of FWA.
2
discriminatory term of an enterprise agreement: see section 195.
3
dismissal remedy bargaining order application: see subsection
4
726(2).
5
dismissed: see section 386.
6
earnings: see subsections 332(1) and (2).
7
eligible community service activity: see section 109.
8
eligible State or Territory court means one of the following courts:
9
(a) a District, County or Local Court;
10
(b) a magistrates court;
11
(c) the Industrial Relations Court of South Australia;
12
(d) any other State or Territory court that is prescribed by the
13
regulations.
14
employee is defined in the first Division of each Part (other than
15
Part 1-1) in which the term appears.
16
Note 1:
The definition in the Part will define employee either as a national
17
system employee or as having its ordinary meaning. However, there
18
may be particular provisions in the Part where a different meaning for
19
the term is specified.
20
Note 2:
If the term has its ordinary meaning, see further subsection 15(1).
21
employee claim action: see section 409.
22
employee couple: 2 national system employees are an employee
23
couple if each of the employees is the spouse or de facto partner of
24
the other.
25
employee organisation means an organisation of employees.
26
employee record, in relation to an employee, has the meaning
27
given by the Privacy Act 1988.
28
employee response action: see section 410.
29
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 12
Fair Work Bill 2008 No. , 2008 15
employee with a disability means a national system employee who
1
is qualified for a disability support pension as set out in section 94
2
or 95 of the Social Security Act 1991, or who would be so qualified
3
but for paragraph 94(1)(e) or 95(1)(c) of that Act.
4
employer is defined in the first Division of each Part (other than
5
Part 1-1) in which the term appears.
6
Note 1:
The definition in the Part will define employer either as a national
7
system employer or as having its ordinary meaning. However, there
8
may be particular provisions in the Part where a different meaning for
9
the term is specified.
10
Note 2:
If the term has its ordinary meaning, see further subsection 15(2).
11
employer organisation means an organisation of employers.
12
employer response action: see section 411.
13
employing authority: see subsection 795(6).
14
engages in industrial activity: see section 347.
15
enterprise means a business, activity, project or undertaking.
16
enterprise agreement means:
17
(a) a single-enterprise agreement; or
18
(b) a multi-enterprise agreement.
19
entry notice: see subsection 487(2).
20
entry permit: see section 512.
21
equal remuneration for work of equal or comparable value: see
22
subsection 302(2).
23
equal remuneration order: see subsection 302(1).
24
exclusive economic zone means the exclusive economic zone (as
25
defined in the Seas and Submerged Lands Act 1973) of Australia
26
(including its external Territories).
27
exemption certificate: see subsection 519(1).
28
extended notice of termination provisions: see subsection 759(3).
29
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 12
16 Fair Work Bill 2008 No. , 2008
extended parental leave provisions: see subsection 744(3).
1
Fair Work Australia or FWA means the body established by
2
section 575.
3
Fair Work Information Statement: see subsection 124(1).
4
Fair Work Inspector means:
5
(a) a person appointed as a Fair Work Inspector under
6
section 700; or
7
(b) the Fair Work Ombudsman in his or her capacity as a Fair
8
Work Inspector under section 701.
9
fair work instrument means:
10
(a) a modern award; or
11
(b) an enterprise agreement; or
12
(c) a workplace determination; or
13
(d) an FWA order.
14
Federal Court means the Federal Court of Australia.
15
first employer, in relation to a transfer of employment: see
16
subsection 22(7).
17
fixed platform means an artificial island, installation or structure
18
permanently attached to the sea-bed for the purpose of exploration
19
for, or exploitation of, resources or for other economic purposes.
20
flexibility term:
21
(a) in relation to a modern award--see subsection 144(1); and
22
(b) in relation to an enterprise agreement--see subsection
23
202(1).
24
flight crew officer means a person who performs (whether with or
25
without other duties) duties as a pilot, navigator or flight engineer
26
of aircraft, and includes a person being trained for the performance
27
of such duties.
28
franchise has the meaning given by the Corporations Act 2001.
29
Full Bench means a Full Bench of FWA constituted under
30
section 618.
31
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 12
Fair Work Bill 2008 No. , 2008 17
full rate of pay: see section 18.
1
FWA: see Fair Work Australia.
2
FWA Member means the President, a Deputy President, a
3
Commissioner or a Minimum Wage Panel Member.
4
General Manager means the General Manager of FWA.
5
general protections court application: see subsection 370(2).
6
general protections FWA application: see subsection 727(2).
7
general State industrial law: see subsection 26(3).
8
genuinely agreed in relation to an enterprise agreement: see
9
section 188.
10
genuine redundancy: see section 389.
11
good faith bargaining requirements: see section 228.
12
greenfields agreement: see subsection 172(4).
13
guaranteed period for a guarantee of annual earnings: see
14
section 331.
15
guarantee of annual earnings: see subsection 330(1).
16
high income employee: see section 329.
17
high income threshold: see section 333.
18
ILO means the International Labour Organization.
19
immediate family of a national system employee means:
20
(a) a spouse, de facto partner, child, parent, grandparent,
21
grandchild or sibling of the employee; or
22
(b) a child, parent, grandparent, grandchild or sibling of a spouse
23
or de facto partner of the employee.
24
independent advisor for a protected action ballot means the person
25
(if any) specified in the protected action ballot order as the
26
independent advisor for the ballot.
27
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 12
18 Fair Work Bill 2008 No. , 2008
independent contractor is not confined to an individual.
1
individual flexibility arrangement:
2
(a) in relation to a modern award--see subsection 144(1); and
3
(b) in relation to an enterprise agreement--see paragraph
4
202(1)(a).
5
industrial action: see section 19.
6
industrial action related workplace determination: see subsection
7
266(1).
8
industrial association means:
9
(a) an association of employees or independent contractors, or
10
both, or an association of employers, that is registered or
11
recognised as such an association (however described) under
12
a workplace law; or
13
(b) an association of employees, or independent contractors, or
14
both (whether formed formally or informally), a purpose of
15
which is the protection and promotion of their interests in
16
matters concerning their employment, or their interests as
17
independent contractors (as the case may be); or
18
(c) an association of employers a principal purpose of which is
19
the protection and promotion of their interests in matters
20
concerning employment and/or independent contractors;
21
and includes:
22
(d) a branch of such an association; and
23
(e) an organisation; and
24
(f) a branch of an organisation.
25
industrial body means:
26
(a) FWA; or
27
(b) a court or commission (however described) performing or
28
exercising, under an industrial law, functions and powers
29
corresponding to those conferred on FWA by this Act; or
30
(c) a court or commission (however described) performing or
31
exercising, under a workplace law, functions and powers
32
corresponding to those conferred on FWA by Schedule 1 to
33
the Workplace Relations Act 1996.
34
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 12
Fair Work Bill 2008 No. , 2008 19
industrial law means:
1
(a) this Act; or
2
(b) Schedule 1 to the Workplace Relations Act 1996; or
3
(c) a law of the Commonwealth, however designated, that
4
regulates the relationships between employers and
5
employees; or
6
(d) a State or Territory industrial law.
7
industry-specific redundancy scheme means redundancy
8
arrangements in a modern award that are described in the award as
9
an industry-specific redundancy scheme.
10
inspector means a Fair Work Inspector.
11
involved in: see section 550.
12
irregularity, in relation to the conduct of a protected action ballot:
13
see subsection 458(6).
14
junior employee means a national system employee who is under
15
21.
16
jury service pay: see subsection 111(6).
17
jury service summons: see subsection 111(7).
18
lawyer means a person who is admitted to the legal profession by a
19
Supreme Court of a State or Territory.
20
lock out: see subsection 19(3).
21
long term casual employee: a national system employee of a
22
national system employer is a long term casual employee at a
23
particular time if, at that time:
24
(a) the employee is a casual employee; and
25
(b) the employee has been employed by the employer on a
26
regular and systematic basis for a sequence of periods of
27
employment during a period of at least 12 months.
28
low-paid authorisation: see subsection 242(1).
29
low-paid workplace determination means:
30
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 12
20 Fair Work Bill 2008 No. , 2008
(a) a consent low-paid workplace determination; or
1
(b) a special low-paid workplace determination.
2
made:
3
(a) in relation to an enterprise agreement: see section 182; and
4
(b) in relation to a variation of an enterprise agreement: see
5
section 209.
6
magistrates court means:
7
(a) a court constituted by a police, stipendiary or special
8
magistrate; or
9
(b) a court constituted by an industrial magistrate who is also a
10
police, stipendiary or special magistrate.
11
majority support determination: see subsection 236(1).
12
maritime employee means a person who is, or whose occupation is
13
that of, a master as defined in section 6 of the Navigation Act 1912,
14
a seaman as so defined or a pilot as so defined.
15
medical certificate means a certificate signed by a medical
16
practitioner.
17
medical practitioner means a person registered, or licensed, as a
18
medical practitioner under a law of a State or Territory that
19
provides for the registration or licensing of medical practitioners.
20
membership action: see subsection 350(3).
21
minimum employment period: see section 383.
22
Minimum Wage Panel means the Minimum Wage Panel of FWA
23
constituted under section 620.
24
Minimum Wage Panel Member means a Minimum Wage Panel
25
Member of FWA.
26
minimum wages objective: see subsection 284(1).
27
miscellaneous modern award: see subsection 163(4).
28
model consultation term: see subsection 205(3).
29
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 12
Fair Work Bill 2008 No. , 2008 21
model flexibility term: see subsection 202(5).
1
modern award means a modern award made under Part 2-3.
2
modern award minimum wages: see subsection 284(3).
3
modern award powers: see subsection 134(2).
4
modern awards objective: see subsection 134(1).
5
modifications includes additions, omissions and substitutions.
6
multi-enterprise agreement means an enterprise agreement made
7
as referred to in subsection 172(3).
8
named employer award: see subsection 312(2).
9
National Employment Standards: see subsection 61(3).
10
national minimum wage order means a national minimum wage
11
order made in an annual wage review.
12
national system employee: see section 13.
13
national system employer: see section 14.
14
new employer, in relation to a transfer of business: see subsection
15
311(1).
16
nominal expiry date:
17
(a) of an enterprise agreement approved under section 186,
18
means the date specified in the agreement as its nominal
19
expiry date; or
20
(b) of an enterprise agreement approved under section 189
21
(which deals with agreements that do not pass the better off
22
overall test): see subsection 189(4); or
23
(c) of a workplace determination, means the date specified in the
24
determination as its nominal expiry date.
25
non-excluded matters: see subsection 27(2).
26
non-monetary benefits: see subsection 332(3).
27
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 12
22 Fair Work Bill 2008 No. , 2008
non-national system employee means an employee who is not a
1
national system employee.
2
non-national system employer means an employer that is not a
3
national system employer.
4
non-transferring employee of a new employer, in relation to a
5
transfer of business: see subsection 314(2).
6
notification time for a proposed enterprise agreement: see
7
subsection 173(2).
8
objectionable term means a term that:
9
(a) requires, has the effect of requiring, or purports to require or
10
have the effect of requiring; or
11
(b) permits, has the effect of permitting, or purports to permit or
12
have the effect of permitting;
13
either of the following:
14
(c) a contravention of Part 3-1 (which deals with general
15
protections);
16
(d) the payment of a bargaining services fee.
17
occupier, of premises, includes a person in charge of the premises.
18
office, in an industrial association, means:
19
(a) an office of president, vice president, secretary or assistant
20
secretary of the association; or
21
(b) the office of a voting member of a collective body of the
22
association, being a collective body that has power in relation
23
to any of the following functions:
24
(i) the management of the affairs of the association;
25
(ii) the determination of policy for the association;
26
(iii) the making, alteration or rescission of rules of the
27
association;
28
(iv) the enforcement of rules of the association, or the
29
performance of functions in relation to the enforcement
30
of such rules; or
31
(c) an office the holder of which is, under the rules of the
32
association, entitled to participate directly in any of the
33
functions referred to in subparagraphs (b)(i) and (iv), other
34
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 12
Fair Work Bill 2008 No. , 2008 23
than an office the holder of which participates only in
1
accordance with directions given by a collective body or
2
another person for the purpose of implementing:
3
(i) existing policy of the association; or
4
(ii) decisions concerning the association; or
5
(d) an office the holder of which is, under the rules of the
6
association, entitled to participate directly in any of the
7
functions referred to in subparagraphs (b)(ii) and (iii); or
8
(e) the office of a person holding (whether as trustee or
9
otherwise) property:
10
(i) of the association; or
11
(ii) in which the association has a beneficial interest.
12
Office of the Fair Work Ombudsman means the body established
13
by section 696.
14
officer, of an industrial association, means:
15
(a) an official of the association; or
16
(b) a delegate or other representative of the association.
17
official, of an industrial association, means a person who holds an
18
office in, or is an employee of, the association.
19
old employer, in relation to a transfer of business: see subsection
20
311(1).
21
ordinary hours of work of an award/agreement free employee: see
22
section 20.
23
organisation means an organisation registered under Schedule 1 to
24
the Workplace Relations Act 1996.
25
outworker means:
26
(a) an employee who, for the purpose of the business of his or
27
her employer, performs work at residential premises or at
28
other premises that would not conventionally be regarded as
29
being business premises; or
30
(b) an individual who, for the purpose of a contract for the
31
provision of services, performs work:
32
(i) in the textile, clothing or footwear industry; and
33
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 12
24 Fair Work Bill 2008 No. , 2008
(ii) at residential premises or at other premises that would
1
not conventionally be regarded as being business
2
premises.
3
outworker entity means any of the following entities, other than in
4
the entity's capacity as a national system employer:
5
(a) a constitutional corporation;
6
(b) the Commonwealth;
7
(c) a Commonwealth authority;
8
(d) a body corporate incorporated in a Territory;
9
(e) a person who carries on an activity (whether of a commercial,
10
governmental or other nature) in a Territory in Australia, in
11
connection with the activity carried on in the Territory.
12
Note:
In this context, Australia includes the Territory of Christmas Island
13
and the Territory of Cocos (Keeling) Islands (see paragraph 17(a) of
14
the Acts Interpretation Act 1901).
15
outworker terms: see subsection 140(3).
16
paid agent, in relation to a matter before FWA, means an agent
17
(other than a bargaining representative) who charges or receives a
18
fee to represent a person in the matter.
19
paid annual leave means paid annual leave to which a national
20
system employee is entitled under section 87.
21
paid no safe job leave means paid no safe job leave to which a
22
national system employee is entitled under paragraph 81(3)(b).
23
paid personal/carer's leave means paid personal/carer's leave to
24
which a national system employee is entitled under section 96.
25
partial work ban: see subsection 470(3).
26
passes the better off overall test:
27
(a) in relation to an enterprise agreement that is not a greenfields
28
agreement: see subsection 193(1); and
29
(b) in relation to a greenfields agreement: see subsection 193(3).
30
pattern bargaining: see section 412.
31
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 12
Fair Work Bill 2008 No. , 2008 25
peak council means a national or State council or federation that is
1
effectively representative of a significant number of organisations
2
(within the ordinary meaning of the term) representing employers
3
or employees in a range of industries.
4
pecuniary penalty order means an order under subsection 546(1).
5
penalty unit has the meaning given by section 4AA of the Crimes
6
Act 1914.
7
period of employment: see section 384.
8
permissible occasion: see sections 102 and 104.
9
permit holder means a person who holds an entry permit.
10
permit qualification matters: see subsection 513(1).
11
permitted matters in relation to an enterprise agreement: see
12
subsection 172(1).
13
pieceworker: see section 21.
14
pilot, in relation to an aircraft, includes a pilot in command,
15
co-pilot or pilot of any other description.
16
post-declaration negotiating period: see subsection 269(2).
17
post-industrial action negotiating period: see subsection 266(3).
18
premises includes:
19
(a) any land, building, structure, mine, mine working, aircraft
20
ship, vessel, vehicle or place; and
21
(b) a part of premises (including premises referred to in
22
paragraph (a)).
23
pre-parental leave position: see subsection 83(2).
24
prescribed State industrial authority means a State board, court,
25
tribunal, body or official prescribed by the regulations.
26
President means the President of FWA.
27
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 12
26 Fair Work Bill 2008 No. , 2008
procedural rules means the procedural rules of FWA made under
1
section 609.
2
process or proceedings under a workplace law or workplace
3
instrument: see subsection 341(2).
4
prospective award covered employee for an enterprise agreement:
5
see subsection 193(5).
6
protected action ballot means a ballot conducted under Division 8
7
of Part 3-3.
8
protected action ballot agent for a protected action ballot means
9
the person that conducts the protected action ballot.
10
protected action ballot order: see subsection 437(1).
11
protected from unfair dismissal: see section 382.
12
protected industrial action: see section 408.
13
public holiday: see section 115.
14
public sector employment: see subsections 795(4) and (5).
15
public sector employment law: see subsection 40(3).
16
recognised emergency management body: see subsection 109(3).
17
registered employee association means:
18
(a) an employee organisation; or
19
(b) an association of employees or independent contractors, or
20
both, that is registered or recognised as such an association
21
(however described) under a State or Territory industrial law.
22
related body corporate has the meaning given by the Corporations
23
Act 2001.
24
relevant employee organisation, in relation to a greenfields
25
agreement, means an employee organisation that is entitled to
26
represent the industrial interests of one or more of the employees
27
who will be covered by the agreement, in relation to work to be
28
performed under the agreement.
29
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 12
Fair Work Bill 2008 No. , 2008 27
safety net contractual entitlement means an entitlement under a
1
contract between an employee and an employer that relates to any
2
of the subject matters described in:
3
(a) subsection 61(2) (which deals with the National Employment
4
Standards); or
5
(b) subsection 139(1) (which deals with modern awards).
6
school age, for a child, means the age at which the child is required
7
by a law of the State or Territory in which the child lives to start
8
attending school.
9
school-based apprentice means a national system employee who is
10
an apprentice to whom a school-based training arrangement
11
applies.
12
school-based trainee means a national system employee (other
13
than a school-based apprentice) to whom a school-based training
14
arrangement applies.
15
school-based training arrangement means a training arrangement
16
undertaken as part of a course of secondary education.
17
scope order: see subsection 238(1).
18
second employer, in relation to a transfer of employment: see
19
subsection 22(7).
20
serious breach declaration: see section 234.
21
serious misconduct has the meaning prescribed by the regulations.
22
service: see section 22.
23
setting modern award minimum wages: see subsection 284(4).
24
Sex Discrimination Commissioner means the Sex Discrimination
25
Commissioner appointed under the Sex Discrimination Act 1984.
26
ship includes a barge, lighter, hulk or other vessel.
27
single-enterprise agreement means an enterprise agreement made
28
as referred to in subsection 172(2).
29
single interest employer authorisation: see subsection 248(1).
30
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 12
28 Fair Work Bill 2008 No. , 2008
small business employer: see section 23.
1
Small Business Fair Dismissal Code means the Small Business
2
Fair Dismissal Code declared under subsection 388(1).
3
special low-paid workplace determination: see subsection 260(4).
4
spouse includes a former spouse.
5
State industrial instrument means an award, an agreement
6
(whether individual or collective), or another industrial instrument
7
or order, that:
8
(a) is made under, or recognised by, a law of a State that is a
9
State or Territory industrial law; and
10
(b) determines terms and conditions of employment.
11
state of mind: see subsection 793(3).
12
State or Territory anti-discrimination law: see subsection 351(3).
13
State or Territory industrial law: see subsection 26(2).
14
State or Territory OHS law: see subsection 494(3).
15
State or Territory OHS right: see subsection 494(2).
16
step-child: without limiting who is a step-child of a person,
17
someone who is a child of the person's de facto partner is a
18
step-child of a person, if he or she would be the person's step-child
19
except that the person is not legally married to the de facto partner.
20
termination of industrial action instrument: see subsection
21
266(2).
22
territorial sea, in relation to Australia, has the meaning given by
23
Division 1 of Part II of the Seas and Submerged Lands Act 1973.
24
Territory employer: see subsection 338(4).
25
test time: see subsection 193(6).
26
this Act includes the regulations.
27
trade and commerce employer: see subsection 338(3).
28
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 12
Fair Work Bill 2008 No. , 2008 29
training arrangement means a combination of work and training
1
that is subject to a training agreement, or a training contract, that
2
takes effect under a law of a State or Territory relating to the
3
training of employees.
4
transferable instrument: see subsection 312(1).
5
transfer of business: see subsection 311(1).
6
transfer of employment: see subsection 22(7).
7
transfer of employment between associated entities: see paragraph
8
22(8)(a).
9
transfer of employment between non-associated entities: see
10
paragraph 22(8)(b).
11
transferring employee, in relation to a transfer of business: see
12
subsection 311(2).
13
transferring work, in relation to a transfer of business: see
14
paragraph 311(1)(c).
15
unfair dismissal application: see subsection 729(2).
16
unfairly dismissed: see section 385.
17
unlawful term of an enterprise agreement: see section 194.
18
unlawful termination court application: see subsection 778(2).
19
unlawful termination FWA application: see subsection 730(2).
20
unpaid carer's leave means unpaid carer's leave to which a
21
national system employee is entitled under section 102.
22
unpaid parental leave means unpaid parental leave to which a
23
national system employee is entitled under section 70.
24
unpaid pre-adoption leave means unpaid pre-adoption leave to
25
which a national system employee is entitled under section 85.
26
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 12
30 Fair Work Bill 2008 No. , 2008
unpaid special maternity leave means unpaid special maternity
1
leave to which a national system employee is entitled under
2
section 80.
3
varying modern award minimum wages: see subsection 284(4).
4
vocational placement means a placement that is:
5
(a) undertaken with an employer for which a person is not
6
entitled to be paid any remuneration; and
7
(b) undertaken as a requirement of an education or training
8
course; and
9
(c) authorised under a law or an administrative arrangement of
10
the Commonwealth, a State or a Territory.
11
voluntary emergency management activity: see subsection 109(2).
12
waters above the continental shelf means any part of the area in,
13
on or over the continental shelf.
14
waterside worker has the meaning given by clause 1 of Schedule 2
15
to the Workplace Relations Act 1996 as in force immediately
16
before the commencement of this section.
17
working day means a day that is not a Saturday, a Sunday or a
18
public holiday.
19
workplace determination means:
20
(a) a low-paid workplace determination; or
21
(b) an industrial action related workplace determination; or
22
(c) a bargaining related workplace determination.
23
workplace instrument means an instrument that:
24
(a) is made under, or recognised by, a workplace law; and
25
(b) concerns the relationships between employers and
26
employees.
27
workplace law means:
28
(a) this Act; or
29
(b) Schedule 1 to the Workplace Relations Act 1996; or
30
(c) the Independent Contractors Act 2006; or
31
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 12
Fair Work Bill 2008 No. , 2008 31
(d) any other law of the Commonwealth, a State or a Territory
1
that regulates the relationships between employers and
2
employees (including by dealing with occupational health
3
and safety matters).
4
workplace right: see subsection 341(1).
5
work value reasons: see subsection 156(4).
6
7
Chapter 1 Introduction
Part 1-2 Definitions
Division 3 Definitions relating to the meanings of emp loyee, employer etc.
Section 13
32 Fair Work Bill 2008 No. , 2008
1
Division 3--Definitions relating to the meanings of
2
employee, employer etc.
3
13 Meaning of national system employee
4
A national system employee is an individual so far as he or she is
5
employed, or usually employed, as described in the definition of
6
national system employer in section 14, by a national system
7
employer, except on a vocational placement.
8
14 Meaning of national system employer
9
A national system employer is:
10
(a) a constitutional corporation, so far as it employs, or usually
11
employs, an individual; or
12
(b) the Commonwealth, so far as it employs, or usually employs,
13
an individual; or
14
(c) a Commonwealth authority, so far as it employs, or usually
15
employs, an individual; or
16
(d) a person so far as the person, in connection with
17
constitutional trade or commerce, employs, or usually
18
employs, an individual as:
19
(i) a flight crew officer; or
20
(ii) a maritime employee; or
21
(iii) a waterside worker; or
22
(e) a body corporate incorporated in a Territory, so far as the
23
body employs, or usually employs, an individual; or
24
(f) a person who carries on an activity (whether of a commercial,
25
governmental or other nature) in a Territory in Australia, so
26
far as the person employs, or usually employs, an individual
27
in connection with the activity carried on in the Territory.
28
Note:
In this context, Australia includes the Territory of Christmas Island
29
and the Territory of Cocos (Keeling) Islands (see paragraph 17(a) of
30
the Acts Interpretation Act 1901).
31
Introduction Chapter 1
Definitions Part 1-2
Definitions relating to the meanings of employee, emp loyer etc. Division 3
Section 15
Fair Work Bill 2008 No. , 2008 33
15 Ordinary meanings of employee and employer
1
(1) A reference in this Act to an employee with its ordinary meaning:
2
(a) includes a reference to a person who is usually such an
3
employee; and
4
(b) does not include a person on a vocational placement.
5
(2) A reference in this Act to an employer with its ordinary meaning
6
includes a reference to a person who is usually such an employer.
7
8
Chapter 1 Introduction
Part 1-2 Definitions
Division 4 Other definitions
Section 16
34 Fair Work Bill 2008 No. , 2008
1
Division 4--Other definitions
2
16 Meaning of base rate of pay
3
General meaning
4
(1) The base rate of pay of a national system employee is the rate of
5
pay payable to the employee for his or her ordinary hours of work,
6
but not including any of the following:
7
(a) incentive-based payments and bonuses;
8
(b) loadings;
9
(c) monetary allowances;
10
(d) overtime or penalty rates;
11
(e) any other separately identifiable amounts.
12
Meaning for pieceworkers in relation to entitlements under
13
National Employment Standards
14
(2) However, if one of the following paragraphs applies to a national
15
system employee who is a pieceworker, the employee's base rate
16
of pay, in relation to entitlements under the National Employment
17
Standards, is the base rate of pay referred to in that paragraph:
18
(a) a modern award applies to the employee and specifies the
19
employee's base rate of pay for the purposes of the National
20
Employment Standards;
21
(b) an enterprise agreement applies to the employee and specifies
22
the employee's base rate of pay for the purposes of the
23
National Employment Standards;
24
(c) the employee is an award/agreement free employee, and the
25
regulations prescribe, or provide for the determination of, the
26
employee's base rate of pay for the purposes of the National
27
Employment Standards.
28
17 Meaning of child of a person
29
(1) A child of a person includes:
30
Introduction Chapter 1
Definitions Part 1-2
Other defin itions Division 4
Section 18
Fair Work Bill 2008 No. , 2008 35
(a) someone who is a child of the person within the meaning of
1
the Family Law Act 1975; and
2
(b) an adopted child or step-child of the person.
3
It does not matter whether the child is an adult.
4
(2) If, under this section, one person is a child of another person, other
5
family relationships are also to be determined on the basis that the
6
child is a child of that other person.
7
Note:
For example, for the purpose of leave entitlements in relation to
8
immediate family under Division 7 of Part 2-2 (which deals with
9
personal/carer's leave and compassionate leave):
10
(a)
the other person is the parent of the child, and so is a member of
11
the child's immediate family; and
12
(b)
the child, and any other children, of the other person are siblings,
13
and so are members of each other's immediate family.
14
18 Meaning of full rate of pay
15
General meaning
16
(1) The full rate of pay of a national system employee is the rate of
17
pay payable to the employee, including all the following:
18
(a) incentive-based payments and bonuses;
19
(b) loadings;
20
(c) monetary allowances;
21
(d) overtime or penalty rates;
22
(e) any other separately identifiable amounts.
23
Meaning for pieceworkers in relation to entitlements under
24
National Employment Standards
25
(2) However, if one of the following paragraphs applies to a national
26
system employee who is a pieceworker, the employee's full rate of
27
pay, in relation to entitlements under the National Employment
28
Standards, is the full rate of pay referred to in that paragraph:
29
(a) a modern award applies to the employee and specifies the
30
employee's full rate of pay for the purposes of the National
31
Employment Standards;
32
Chapter 1 Introduction
Part 1-2 Definitions
Division 4 Other definitions
Section 19
36 Fair Work Bill 2008 No. , 2008
(b) an enterprise agreement applies to the employee and specifies
1
the employee's full rate of pay for the purposes of the
2
National Employment Standards;
3
(c) the employee is an award/agreement free employee, and the
4
regulations prescribe, or provide for the determination of, the
5
employee's full rate of pay for the purposes of the National
6
Employment Standards.
7
19 Meaning of industrial action
8
(1) Industrial action means action of any of the following kinds:
9
(a) the performance of work by an employee in a manner
10
different from that in which it is customarily performed, or
11
the adoption of a practice in relation to work by an employee,
12
the result of which is a restriction or limitation on, or a delay
13
in, the performance of the work;
14
(b) a ban, limitation or restriction on the performance of work by
15
an employee or on the acceptance of or offering for work by
16
an employee;
17
(c) a failure or refusal by employees to attend for work or a
18
failure or refusal to perform any work at all by employees
19
who attend for work;
20
(d) the lockout of employees from their employment by the
21
employer of the employees.
22
Note:
In Automotive, Food, Metals, Engineering, Printing and Kindred
23
Industries Union v The Age Company Limited, PR946290, the Full
24
Bench of the Australian Industrial Relations Commission considered
25
the nature of industrial action and noted that action will not be
26
industrial in character if it stands completely outside the area of
27
disputation and bargaining.
28
(2) However, industrial action does not include the following:
29
(a) action by employees that is authorised or agreed to by the
30
employer of the employees;
31
(b) action by an employer that is authorised or agreed to by, or
32
on behalf of, employees of the employer;
33
(c) action by an employee if:
34
(i) the action was based on a reasonable concern of the
35
employee about an imminent risk to his or her health or
36
safety; and
37
Introduction Chapter 1
Definitions Part 1-2
Other defin itions Division 4
Section 20
Fair Work Bill 2008 No. , 2008 37
(ii) the employee did not unreasonably fail to comply with a
1
direction of his or her employer to perform other
2
available work, whether at the same or another
3
workplace, that was safe and appropriate for the
4
employee to perform.
5
(3) An employer locks out employees from their employment if the
6
employer prevents the employees from performing work under
7
their contracts of employment without terminating those contracts.
8
20 Meaning of ordinary hours of work for award/agreement free
9
employees
10
Agreed ordinary hours of work
11
(1) The ordinary hours of work of an award/agreement free employee
12
are the hours agreed by the employee and his or her national
13
system employer as the employee's ordinary hours of work.
14
If there is no agreement
15
(2) If there is no agreement about ordinary hours of work for an
16
award/agreement free employee, the ordinary hours of work of the
17
employee in a week are:
18
(a) for a full time employee--38 hours; or
19
(b) for an employee who is not a full-time employee--the lesser
20
of:
21
(i) 38 hours; and
22
(ii) the employee's usual weekly hours of work.
23
If the agreed hours are less than usual weekly hours
24
(3) If, for an award/agreement free employee who is not a full-time
25
employee, there is an agreement under subsection (1) between the
26
employee and his or her national system employer, but the agreed
27
ordinary hours of work are less than the employee's usual weekly
28
hours of work, the ordinary hours of work of the employee in a
29
week are the lesser of:
30
(a) 38 hours; and
31
(b) the employee's usual weekly hours of work.
32
Chapter 1 Introduction
Part 1-2 Definitions
Division 4 Other definitions
Section 21
38 Fair Work Bill 2008 No. , 2008
Regulations may prescribe usual weekly hours
1
(4) For an award/agreement free employee who is not a full-time
2
employee and who does not have usual weekly hours of work, the
3
regulations may prescribe, or provide for the determination of,
4
hours that are taken to be the employee's usual weekly hours of
5
work for the purposes of subsections (2) and (3).
6
21 Meaning of pieceworker
7
(1) A pieceworker is:
8
(a) a national system employee to whom a modern award applies
9
and who is defined or described in the award as a
10
pieceworker; or
11
(b) a national system employee to whom an enterprise agreement
12
applies and who is defined or described in the agreement as a
13
pieceworker; or
14
(c) an award/agreement free employee who is in a class of
15
employees prescribed by the regulations as pieceworkers.
16
Note:
Sections 197 and 198 affect whether FWA may approve an enterprise
17
agreement covering a national system employee that includes a term
18
that:
19
(a)
defines or describes the employee as a pieceworker, if the
20
employee is covered by a modern award that is in operation and
21
does not include such a term; or
22
(b)
does not define or describe the employee as a pieceworker, if the
23
employee is covered by a modern award that is in operation and
24
includes such a term.
25
(2) Without limiting the way in which a class may be described for the
26
purposes of paragraph (1)(c), the class may be described by
27
reference to one or more of the following:
28
(a) a particular industry or part of an industry;
29
(b) a particular kind of work;
30
(c) a particular type of employment.
31
Introduction Chapter 1
Definitions Part 1-2
Other defin itions Division 4
Section 22
Fair Work Bill 2008 No. , 2008 39
22 Meanings of service and continuous service
1
General meaning
2
(1) A period of service by a national system employee with his or her
3
national system employer is a period during which the employee is
4
employed by the employer, but does not include any period (an
5
excluded period) that does not count as service because of
6
subsection (2).
7
(2) The following periods do not count as service:
8
(a) any period of unauthorised absence;
9
(b) any period of unpaid leave or unpaid authorised absence,
10
other than:
11
(i) a period of absence under Division 8 of Part 2-2 (which
12
deals with community service leave); or
13
(ii) a period of stand down under Part 3-5, under an
14
enterprise agreement that applies to the employee, or
15
under the employee's contract of employment; or
16
(iii) a period of leave or absence of a kind prescribed by the
17
regulations.
18
(3) An excluded period does not break a national system employee's
19
continuous service with his or her national system employer, but
20
does not count towards the length of the employee's continuous
21
service.
22
Meaning for Divisions 4 and 5, and Subdivision A of Division 11,
23
of Part 2-2
24
(4) For the purposes of Divisions 4 and 5, and Subdivision A of
25
Division 11, of Part 2-2:
26
(a) a period of service by a national system employee with his or
27
her national system employer is a period during which the
28
employee is employed by the employer, but does not include
29
any period of unauthorised absence; and
30
(b) a period of unauthorised absence does not break a national
31
system employee's continuous service with his or her
32
national system employer, but does not count towards the
33
length of the employee's continuous service; and
34
Chapter 1 Introduction
Part 1-2 Definitions
Division 4 Other definitions
Section 22
40 Fair Work Bill 2008 No. , 2008
(c) subsections (1), (2) and (3) do not apply.
1
Note:
Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2
2
deal, respectively, with requests for flexible working
3
arrangements, parental leave and related entitlements, and notice
4
of termination or payment in lieu of notice.
5
When service with one employer counts as service with another
6
employer
7
(5) If there is a transfer of employment (see subsection (7)) in relation
8
to a national system employee:
9
(a) any period of service of the employee with the first employer
10
counts as service of the employee with the second employer;
11
and
12
(b) the period between the termination of the employment with
13
the first employer and the start of the employment with the
14
second employer does not break the employee's continuous
15
service with the second employer (taking account of the
16
effect of paragraph (a)), but does not count towards the
17
length of the employee's continuous service with the second
18
employer.
19
Note:
This subsection does not apply to a transfer of employment between
20
non-associated entities, for the purpose of Division 6 of Part 2-2
21
(which deals with annual leave) or Subdivision B of Division 11 of
22
Part 2-2 (which deals with redundancy pay), if the second employer
23
decides not to recognise the employee's service with the first
24
employer for the purpose of that Division or Subdivision (see
25
subsections 91(1) and 122(1)).
26
(6) If the national system employee has already had the benefit of an
27
entitlement the amount of which was calculated by reference to a
28
period of service with the first employer, subsection (5) does not
29
result in that period of service with the first employer being
30
counted again when calculating the employee's entitlements of that
31
kind as an employee of the second employer.
32
Note:
For example:
33
(a)
the accrued paid annual leave to which the employee is entitled
34
as an employee of the second employer does not include any
35
period of paid annual leave that the employee has already taken
36
as an employee of the first employer; and
37
(b)
if an employee receives notice of termination or payment in lieu
38
of notice in relation to a period of service with the first employer,
39
Introduction Chapter 1
Definitions Part 1-2
Other defin itions Division 4
Section 23
Fair Work Bill 2008 No. , 2008 41
that period of service is not counted again in calculating the
1
amount of notice of termination, or payment in lieu, to which the
2
employee is entitled as an employee of the second employer.
3
Meaning of transfer of employment etc.
4
(7) There is a transfer of employment of a national system employee
5
from one national system employer (the first employer) to another
6
national system employer (the second employer) if:
7
(a) the following conditions are satisfied:
8
(i) the employee becomes employed by the second
9
employer not more than 3 months after the termination
10
of the employee's employment with the first employer;
11
(ii) the first employer and the second employer are
12
associated entities when the employee becomes
13
employed by the second employer; or
14
(b) the following conditions are satisfied:
15
(i) the employee is a transferring employee in relation to a
16
transfer of business from the first employer to the
17
second employer;
18
(ii) the first employer and the second employer are not
19
associated entities when the employee becomes
20
employed by the second employer.
21
Note:
Paragraph (a) applies whether or not there is a transfer of business
22
from the first employer to the second employer.
23
(8) A transfer of employment:
24
(a) is a transfer of employment between associated entities if
25
paragraph (7)(a) applies; and
26
(b) is a transfer of employment between non-associated entities
27
if paragraph (7)(b) applies.
28
23 Meaning of small business employer
29
(1) A national system employer is a small business employer at a
30
particular time if the employer employs fewer than 15 employees
31
at that time.
32
(2) For the purpose of calculating the number of employees employed
33
by the employer at a particular time:
34
Chapter 1 Introduction
Part 1-2 Definitions
Division 4 Other definitions
Section 23
42 Fair Work Bill 2008 No. , 2008
(a) subject to paragraph (b), all employees employed by the
1
employer at that time are to be counted; and
2
(b) a casual employee is not to be counted unless, at that time, he
3
or she has been employed by the employer on a regular and
4
systematic basis.
5
(3) For the purpose of calculating the number of employees employed
6
by the employer at a particular time, associated entities are taken to
7
be one entity.
8
(4) To avoid doubt, in determining whether a national system
9
employer is a small business employer at a particular time in
10
relation to the dismissal of an employee, or termination of an
11
employee's employment, the employees that are to be counted
12
include (subject to paragraph (2)(b)):
13
(a) the employee who is being dismissed or whose employment
14
is being terminated; and
15
(b) any other employee of the employer who is also being
16
dismissed or whose employment is also being terminated.
17
18
Introduction Chapter 1
Application of this Act Part 1-3
Introduction Division 1
Section 24
Fair Work Bill 2008 No. , 2008 43
1
Part 1-3--Application of this Act
2
Division 1--Introduction
3
24 Guide to this Part
4
This Part deals with the extent of the application of this Act.
5
Division 2 is about how this Act affects the operation of certain
6
State or Territory laws.
7
Division 3 is about the geographical application of this Act.
8
Division 4 deals with other matters relating to the application of
9
this Act.
10
25 Meanings of employee and employer
11
In this Part, employee and employer have their ordinary meanings.
12
13
Chapter 1 Introduction
Part 1-3 Application of this Act
Division 2 Interaction with State and Territory laws
Section 26
44 Fair Work Bill 2008 No. , 2008
1
Division 2--Interaction with State and Territory laws
2
26 Act excludes State or Territory industrial laws
3
(1) This Act is intended to apply to the exclusion of all State or
4
Territory industrial laws so far as they would otherwise apply in
5
relation to a national system employee or a national system
6
employer.
7
(2) A State or Territory industrial law is:
8
(a) a general State industrial law; or
9
(b) an Act of a State or Territory that applies to employment
10
generally and has one or more of the following as its main
11
purpose or one or more of its main purposes:
12
(i) regulating workplace relations (including industrial
13
matters, industrial activity, collective bargaining,
14
industrial disputes and industrial action);
15
(ii) providing for the establishment or enforcement of terms
16
and conditions of employment;
17
(iii) providing for the making and enforcement of
18
agreements (including individual agreements and
19
collective agreements), and other industrial instruments
20
or orders, determining terms and conditions of
21
employment;
22
(iv) prohibiting conduct relating to a person's membership
23
or non-membership of an industrial association;
24
(v) providing for rights and remedies connected with the
25
termination of employment;
26
(vi) providing for rights and remedies connected with
27
conduct that adversely affects an employee in his or her
28
employment; or
29
(c) a law of a State or Territory that applies to employment
30
generally and deals with leave (other than long service leave
31
or leave for victims of crime); or
32
(d) a law of a State or Territory providing for a court or tribunal
33
constituted by a law of the State or Territory to make an
34
Introduction Chapter 1
Application of this Act Part 1-3
Interaction with State and Territory laws Division 2
Section 27
Fair Work Bill 2008 No. , 2008 45
order in relation to equal remuneration for work of equal or
1
comparable value; or
2
(e) a law of a State or Territory providing for the variation or
3
setting aside of rights and obligations arising under a contract
4
of employment, or another arrangement for employment, that
5
a court or tribunal finds is unfair; or
6
(f) a law of a State or Territory that entitles a representative of a
7
trade union to enter premises; or
8
(g) an instrument made under a law described in paragraph (a),
9
(b), (c), (d), (e) or (f), so far as the instrument is of a
10
legislative character; or
11
(h) either of the following:
12
(i) a law that is a law of a State or Territory;
13
(ii) an instrument of a legislative character made under such
14
a law;
15
that is prescribed by the regulations.
16
(3) Each of the following is a general State industrial law:
17
(a) the Industrial Relations Act 1996 of New South Wales;
18
(b) the Industrial Relations Act 1999 of Queensland;
19
(c) the Industrial Relations Act 1979 of Western Australia;
20
(d) the Fair Work Act 1994 of South Australia;
21
(e) the Industrial Relations Act 1984 of Tasmania.
22
(4) A law or an Act of a State or Territory applies to employment
23
generally if it applies (subject to constitutional limitations) to:
24
(a) all employers and employees in the State or Territory; or
25
(b) all employers and employees in the State or Territory except
26
those identified (by reference to a class or otherwise) by a
27
law of the State or Territory.
28
For this purpose, it does not matter whether or not the law also
29
applies to other persons, or whether or not an exercise of a power
30
under the law affects all the persons to whom the law applies.
31
27 State and Territory laws that are not excluded by section 26
32
(1) Section 26 does not apply to a law of a State or Territory so far as:
33
(a) the law deals with either or both of the following:
34
Chapter 1 Introduction
Part 1-3 Application of this Act
Division 2 Interaction with State and Territory laws
Section 27
46 Fair Work Bill 2008 No. , 2008
(i) the prevention of discrimination (including
1
discrimination in relation to parental or carer
2
responsibilities);
3
(ii) the promotion of equal employment opportunity;
4
unless the law is, or is contained in, a State or Territory
5
industrial law; or
6
(b) the law is prescribed by the regulations as a law to which
7
section 26 does not apply; or
8
(c) the law deals with any non-excluded matters; or
9
(d) the law deals with rights or remedies incidental to:
10
(i) any matter covered by paragraph (a); or
11
(ii) any matter dealt with by a law to which paragraph (b)
12
applies; or
13
(iii) any non-excluded matters.
14
Note:
Examples of incidental matters covered by paragraph (d) are entry to
15
premises for a purpose connected with workers compensation,
16
occupational health and safety or outworkers.
17
(2) The non-excluded matters are as follows:
18
(a) superannuation;
19
(b) workers compensation;
20
(c) occupational health and safety;
21
(d) matters relating to outworkers;
22
(e) child labour;
23
(f) training arrangements, except in relation to terms and
24
conditions of employment to the extent that those terms and
25
conditions are provided for by the National Employment
26
Standards or may be included in a modern award;
27
(g) long service leave, except in relation to an employee who is
28
entitled under Division 9 of Part 2-2 to long service leave;
29
(h) leave for victims of crime;
30
(i) attendance for service on a jury, or for emergency service
31
duties;
32
Note:
See also section 112 for employee entitlements in relation to
33
engaging in eligible community service activities.
34
Introduction Chapter 1
Application of this Act Part 1-3
Interaction with State and Territory laws Division 2
Section 28
Fair Work Bill 2008 No. , 2008 47
(j) declaration, prescription or substitution of public holidays,
1
except in relation to the rights and obligations of an
2
employee or employer in relation to public holidays;
3
(k) the following matters relating to provision of essential
4
services or to situations of emergency:
5
(i) directions to perform work (including to perform work
6
at a particular time or place, or in a particular way);
7
(ii) directions not to perform work (including not to perform
8
work at a particular time or place, or in a particular
9
way);
10
(l) regulation of any of the following:
11
(i) employee organisations;
12
(ii) employer organisations;
13
(iii) members of employee organisations or of employer
14
organisations;
15
(m) workplace surveillance;
16
(n) business trading hours;
17
(o) claims for enforcement of contracts of employment, except
18
so far as the law in question provides for a matter to which
19
paragraph 26(2)(e) applies;
20
(p) any other matters prescribed by the regulations.
21
28 Act excludes prescribed State and Territory laws
22
(1) This Act is intended to apply to the exclusion of a law of a State or
23
Territory that is prescribed by the regulations.
24
(2) However, subsection (1) applies only so far as the law of the State
25
or Territory would otherwise apply in relation to a national system
26
employee or a national system employer.
27
(3) To avoid doubt, subsection (1) has effect even if the law is covered
28
by section 27 (so that section 26 does not apply to the law). This
29
subsection does not limit subsection (1).
30
Chapter 1 Introduction
Part 1-3 Application of this Act
Division 2 Interaction with State and Territory laws
Section 29
48 Fair Work Bill 2008 No. , 2008
29 Inte raction of modern awards and enterprise agreements with
1
State and Territory laws
2
(1) A modern award or enterprise agreement prevails over a law of a
3
State or Territory, to the extent of any inconsistency.
4
(2) Despite subsection (1), a term of a modern award or enterprise
5
agreement dealing with any of the following matters applies
6
subject to a law of a State or Territory to the extent that the law
7
deals with the matter:
8
(a) the prevention of discrimination (including discrimination in
9
relation to parental or carer responsibilities);
10
(b) the promotion of equal employment opportunity;
11
(c) a non-excluded matter;
12
(d) a matter prescribed by the regulations.
13
(3) Despite subsection (2), a term of a modern award or enterprise
14
agreement does not apply subject to a law of a State or Territory
15
that is prescribed by the regulations as a law to which modern
16
awards and enterprise agreements are not subject.
17
30 Act may exclude State and Territory laws etc. in other cases
18
This Division is not a complete statement of the circumstances in
19
which this Act and instruments made under it are intended to apply
20
to the exclusion of, or prevail over, laws of the States and
21
Territories or instruments made under those laws.
22
23
Introduction Chapter 1
Application of this Act Part 1-3
Geographical application of this Act Division 3
Section 31
Fair Work Bill 2008 No. , 2008 49
1
Division 3--Geographical application of this Act
2
31 Exclusion of persons etc. insufficiently connected with Australia
3
(1) A provision of this Act prescribed by the regulations does not
4
apply to a person or entity in Australia prescribed by the
5
regulations as a person to whom, or an entity to which, the
6
provision does not apply.
7
Note 1:
In this context, Australia includes the Territory of Christmas Island,
8
the Territory of Cocos (Keeling) Islands and the coastal sea (see
9
section 15B and paragraph 17(a) of the Acts Interpretation Act 1901).
10
Note 2:
The regulations may prescribe the person or entity by reference to a
11
class (see subsection 13(3) of the Legislative Instruments Act 2003).
12
(2) Before the Governor-General makes regulations for the purposes of
13
subsection (1) prescribing either or both of the following:
14
(a) a provision of this Act that is not to apply to a person or
15
entity;
16
(b) a person to whom, or an entity to which, a provision of this
17
Act is not to apply;
18
the Minister must be satisfied that the provision should not apply to
19
the person or entity in Australia because there is not a sufficient
20
connection between the person or entity and Australia.
21
32 Regulations may modify application of this Act in certain parts of
22
Australia
23
If the regulations prescribe modifications of this Act for its
24
application in relation to all or part of any one or more of the
25
following areas:
26
(a) all the waters of the sea on the landward side of the outer
27
limits of the territorial sea of Australia, including:
28
(i) such waters within the limits of a State or Territory; and
29
(ii) the airspace over, and the seabed and sub-soil beneath,
30
such waters;
31
(b) the Territory of Christmas Island;
32
(c) the Territory of Cocos (Keeling) Islands;
33
Chapter 1 Introduction
Part 1-3 Application of this Act
Division 3 Geographical application of this Act
Section 33
50 Fair Work Bill 2008 No. , 2008
then this Act has effect as so modified in relation to any such area
1
or part.
2
Note:
This Act would, in the absence of any such regulations, apply in
3
relation to these areas in the same way as it applies in relation to the
4
rest of Australia.
5
33 Extension of this Act to the exclusive economic zone and the
6
continental shelf
7
Extension to Australian ships etc.
8
(1) Without limiting subsection (3), this Act extends to or in relation
9
to:
10
(a) any Australian ship in the exclusive economic zone or in the
11
waters above the continental shelf; and
12
(b) any fixed platform in the exclusive economic zone or in the
13
waters above the continental shelf; and
14
(c) any ship, in the exclusive economic zone or in the waters
15
above the continental shelf, that:
16
(i) supplies, services or otherwise operates in connection
17
with a fixed platform in the exclusive economic zone or
18
in the waters above the continental shelf; and
19
(ii) operates to and from an Australian port; and
20
(d) any ship, in the exclusive economic zone or in the waters
21
above the continental shelf, that:
22
(i) is operated or chartered by an Australian employer; and
23
(ii) uses Australia as a base.
24
(2) For the purposes of extending this Act in accordance with
25
paragraph (1)(d):
26
(a) any reference in a provision of this Act to an employer is
27
taken to include a reference to an Australian employer; and
28
(b) any reference in a provision of this Act to an employee is
29
taken to include a reference to an employee of an Australian
30
employer.
31
Introduction Chapter 1
Application of this Act Part 1-3
Geographical application of this Act Division 3
Section 34
Fair Work Bill 2008 No. , 2008 51
Extensions prescribed by regulations
1
(3) Without limiting subsection (1), if the regulations prescribe further
2
extensions of this Act, or specified provisions of this Act, to or in
3
relation to the exclusive economic zone or to the waters above the
4
continental shelf, then this Act extends accordingly.
5
Modifications relating to extended application
6
(4) Despite subsections (1) and (3), if the regulations prescribe
7
modifications of this Act, or specified provisions of this Act, for its
8
operation under subsection (1) or (3) in relation to one or both of
9
the following:
10
(a) all or part of the exclusive economic zone;
11
(b) all or part of the continental shelf;
12
then, so far as this Act would, apart from this subsection, extend to
13
the zone or part, or to the continental shelf or part, it has effect as
14
so modified.
15
(5) For the purposes of subsection (4), the regulations may prescribe
16
different modifications in relation to different parts of the exclusive
17
economic zone or continental shelf.
18
34 Extension of this Act beyond the exclusive economic zone and the
19
continental shelf
20
Extension to Australian ships etc.
21
(1) Without limiting subsection (3), this Act extends to or in relation
22
to:
23
(a) any Australian ship outside the outer limits of the exclusive
24
economic zone and the continental shelf; and
25
(b) any ship, outside the outer limits of the exclusive economic
26
zone and the continental shelf, that:
27
(i) is operated or chartered by an Australian employer; and
28
(ii) uses Australia as a base.
29
(2) For the purposes of extending this Act in accordance with
30
paragraph (1)(b):
31
Chapter 1 Introduction
Part 1-3 Application of this Act
Division 3 Geographical application of this Act
Section 35
52 Fair Work Bill 2008 No. , 2008
(a) any reference in a provision of this Act to an employer is
1
taken to include a reference to an Australian employer; and
2
(b) any reference in a provision of this Act to an employee is
3
taken to include a reference to an employee of an Australian
4
employer.
5
Extensions prescribed by regulations
6
(3) Without limiting subsection (1), if the regulations prescribe further
7
extensions of this Act, or specified provisions of this Act, in
8
relation to all or part of the area outside the outer limits of the
9
exclusive economic zone and the continental shelf, then this Act, or
10
the specified provisions, extend accordingly to:
11
(a) any Australian employer;
12
(b) any Australian-based employee.
13
Modified application in the area outside the outer limits of the
14
exclusive economic zone and the continental shelf
15
(4) Despite subsections (1) and (3), if the regulations prescribe
16
modifications of this Act, or specified provisions of this Act, for
17
their operation under subsection (1) or (3) in relation to all or part
18
of the area outside the outer limits of the exclusive economic zone
19
and the continental shelf, then this Act, or the specified provisions,
20
have effect as so modified in relation to the area or part.
21
(5) For the purposes of subsection (4), the regulations may prescribe
22
different modifications in relation to different parts of the area
23
outside the outer limits of the exclusive economic zone and the
24
continental shelf.
25
35 Meanings of Australian employer and Australian-based employee
26
(1) An Australian employer is an employer that:
27
(a) is a trading corporation formed within the limits of the
28
Commonwealth (within the meaning of paragraph 51(xx) of
29
the Constitution); or
30
(b) is a financial corporation formed within the limits of the
31
Commonwealth (within the meaning of paragraph 51(xx) of
32
the Constitution); or
33
Introduction Chapter 1
Application of this Act Part 1-3
Geographical application of this Act Division 3
Section 36
Fair Work Bill 2008 No. , 2008 53
(c) is the Commonwealth; or
1
(d) is a Commonwealth authority; or
2
(e) is a body corporate incorporated in a Territory; or
3
(f) carries on in Australia, in the exclusive economic zone or in
4
the waters above the continental shelf an activity (whether of
5
a commercial, governmental or other nature), and whose
6
central management and control is in Australia; or
7
(g) is prescribed by the regulations.
8
(2) An Australian-based employee is an employee:
9
(a) whose primary place of work is in Australia; or
10
(b) who is employed by an Australian employer (whether the
11
employee is located in Australia or elsewhere); or
12
(c) who is prescribed by the regulations.
13
(3) However, paragraph (2)(b) does not apply to an employee who is
14
engaged outside Australia and the external Territories to perform
15
duties outside Australia and the external Territories.
16
36 Geographical application of offences
17
Division 14 (Standard geographical jurisdiction) of the Criminal
18
Code does not apply in relation to an offence against this Act.
19
Note:
The extended geographical application that this Division gives to this
20
Act will apply to the offences in this Act.
21
22
Chapter 1 Introduction
Part 1-3 Application of this Act
Division 4 Miscellaneous
Section 37
54 Fair Work Bill 2008 No. , 2008
1
Division 4--Miscellaneous
2
37 Act binds Crown
3
(1) This Act binds the Crown in each of its capacities.
4
(2) However, this Act does not make the Crown liable to be prosecuted
5
for an offence.
6
38 Act not to apply so as to exceed Commonwealth powe r
7
(1) Unless the contrary intention appears, if a provision of this Act:
8
(a) would, apart from this section, have an application (an
9
invalid application) in relation to:
10
(i) one or more particular persons, things, matters, places,
11
circumstances or cases; or
12
(ii) one or more classes (however defined or determined) of
13
persons, things, matters, places, circumstances or cases;
14
because of which the provision exceeds the Commonwealth's
15
legislative power; and
16
(b) also has at least one application (a valid application) in
17
relation to:
18
(i) one or more particular persons, things, matters, places,
19
circumstances or cases; or
20
(ii) one or more classes (however defined or determined) of
21
persons, things, matters, places, circumstances or cases;
22
that, if it were the provision's only application, would be
23
within the Commonwealth's legislative power;
24
it is the Parliament's intention that the provision is not to have the
25
invalid application, but is to have every valid application.
26
(2) Despite subsection (1), the provision is not to have a particular
27
valid application if:
28
(a) apart from this section, it is clear, taking into account the
29
provision's context and the purpose or object underlying this
30
Act, that the provision was intended to have that valid
31
application only if every invalid application, or a particular
32
Introduction Chapter 1
Application of this Act Part 1-3
Miscellaneous Division 4
Section 39
Fair Work Bill 2008 No. , 2008 55
invalid application, of the provision had also been within the
1
Commonwealth's legislative power; or
2
(b) the provision's operation in relation to that valid application
3
would be different in a substantial respect from what would
4
have been its operation in relation to that valid application if
5
every invalid application of the provision had been within the
6
Commonwealth's legislative power.
7
(3) Subsection (2) does not limit the cases where a contrary intention
8
may be taken to appear for the purposes of subsection (1).
9
(4) This section applies to a provision of this Act, whether enacted
10
before, at or after the commencement of this section.
11
39 Acquisition of property
12
This Act, or any instrument made under this Act, does not apply to
13
the extent that the operation of this Act or the instrument would
14
result in an acquisition of property (within the meaning of
15
paragraph 51(xxxi) of the Constitution) from a person otherwise
16
than on just terms (within the meaning of that paragraph).
17
40 Inte raction between fair work instruments and public sector
18
employment laws
19
Generally, public sector employment laws prevail
20
(1) A public sector employment law prevails over a fair work
21
instrument that deals with public sector employment, to the extent
22
of any inconsistency.
23
When fair work instruments or their terms prevail
24
(2) However, a fair work instrument, or a term of a fair work
25
instrument, that deals with public sector employment prevails over
26
a public sector employment law, to the extent of any inconsistency,
27
if:
28
(a) the instrument or term is prescribed by the regulations for the
29
purposes of that particular law; or
30
Chapter 1 Introduction
Part 1-3 Application of this Act
Division 4 Miscellaneous
Section 40
56 Fair Work Bill 2008 No. , 2008
(b) the instrument or term (other than an FWA order or a term of
1
an FWA order) is included in a class of instruments or terms
2
that are prescribed by the regulations for the purposes of that
3
particular law.
4
Meaning of public sector employment law
5
(3) A public sector employment law is a law of the Commonwealth
6
(other than this Act) or a Territory, or a term of an instrument made
7
under such a law, that deals with public sector employment.
8
Laws that fair work instruments never prevail over
9
(4) Subsection (2) does not apply to any provisions of the following
10
that are public sector employment laws:
11
(a) the Safety, Rehabilitation and Compensation Act 1988;
12
(b) the Superannuation Act 1976;
13
(c) the Superannuation Act 1990;
14
(d) the Superannuation Act 2005;
15
(e) the Superannuation (Productivity Benefit) Act 1988;
16
(f) an instrument made under a law referred to in any of the
17
above paragraphs.
18
Relationship with section 29
19
(5) This section prevails over section 29, to the extent of any
20
inconsistency.
21
22
Terms and conditions of employ ment Chapter 2
Core provisions for this Chapter Part 2-1
Introduction Division 1
Section 41
Fair Work Bill 2008 No. , 2008 57
1
Chapter 2--Terms and conditions of
2
employment
3
Part 2-1--Core provisions for this Chapter
4
Division 1--Introduction
5
41 Guide to this Part
6
This Part has the core provisions for this Chapter, which deals with
7
terms and conditions of employment of national system employees.
8
The main terms and conditions come from the National
9
Employment Standards, modern awards, enterprise agreements and
10
workplace determinations.
11
The National Employment Standards (Part 2-2) are minimum terms
12
and conditions that apply to all national system employees.
13
A modern award (see Part 2-3), an enterprise agreement (see
14
Part 2-4) or a workplace determination (see Part 2-5) provides
15
terms and conditions for those national system employees to whom
16
the award, agreement or determination applies. Only one of those
17
instruments can apply to an employee at a particular time.
18
Division 2 has the provisions to enforce the National Employment
19
Standards, modern awards and enterprise agreements. It also sets
20
out when a modern award or enterprise agreement applies to a
21
person and the significance of that for this Act.
22
Note:
In most cases, this Act applies to a workplace
23
determination as if it were an enterprise agreement in
24
operation (see section 279). For the rules about
25
workplace determinations, see Part 2-5.
26
Division 3 deals with the interaction between the National
27
Employment Standards, modern awards and enterprise agreements.
28
Chapter 2 Terms and conditions of employ ment
Part 2-1 Core provisions for this Chapter
Division 1 Introduction
Section 42
58 Fair Work Bill 2008 No. , 2008
42 Meanings of employee and employer
1
In this Part, employee means a national system employee, and
2
employer means a national system employer.
3
4
Terms and conditions of employ ment Chapter 2
Core provisions for this Chapter Part 2-1
Core provisions for this Chapter Division 2
Section 43
Fair Work Bill 2008 No. , 2008 59
1
Division 2--Core provisions for this Chapter
2
Subdivision A--Terms and conditions of employment provided
3
under this Act
4
43 Terms and conditions of employment provided unde r this Act
5
Main terms and conditions
6
(1) The main terms and conditions of employment of an employee that
7
are provided under this Act are those set out in:
8
(a) the National Employment Standards (see Part 2-2); and
9
(b) a modern award (see Part 2-3), an enterprise agreement (see
10
Part 2-4) or a workplace determination (see Part 2-5) that
11
applies to the employee.
12
Note 1:
The situations in which a workplace determination, rather than a
13
modern award or enterprise agreement, provides an employee's terms
14
and conditions of employment are limited. In most cases, this Act
15
applies to a workplace determination as if it were an enterprise
16
agreement in operation (see section 279). See Part 2-5 generally for
17
the rules on workplace determinations.
18
Note 2:
Part 2-8 provides for the transfer of certain modern awards, enterprise
19
agreements and workplace determinations if there is a transfer of
20
business from an employee's employer to another employer.
21
Other terms and conditions
22
(2) In addition, other terms and conditions of employment include:
23
(a) those terms and conditions arising from:
24
(i) a national minimum wage order (see Part 2-6); or
25
(ii) an equal remuneration order (see Part 2-7); and
26
(b) those terms and conditions provided by Part 2-9.
27
Note:
Part 2-9 deals with miscellaneous terms and conditions of
28
employment, such as payment of wages.
29
Chapter 2 Terms and conditions of employ ment
Part 2-1 Core provisions for this Chapter
Division 2 Core provisions for this Chapter
Section 44
60 Fair Work Bill 2008 No. , 2008
Subdivision B--Terms and conditions of employment provided
1
by the National Employment Standards
2
44 Contravening the National Employment Standards
3
(1) An employer must not contravene a provision of the National
4
Employment Standards.
5
Note:
This subsection is a civil remedy provision (see Part 4-1).
6
(2) However, an order cannot be made under Division 2 of Part 4-1 in
7
relation to a contravention (or alleged contravention) of subsection
8
65(5) or 76(4).
9
Note 1:
Subsections 65(5) and 76(4) state that an employer may refuse a
10
request for flexible working arrangements, or an application to extend
11
unpaid parental leave, only on reasonable business grounds.
12
Note 2:
Modern awards and enterprise agreements include terms about settling
13
disputes in relation to the National Employment Standards (other than
14
disputes as to whether an employer had reasonable business grounds
15
under subsection 65(5) or 76(4)).
16
Subdivision C--Terms and conditions of employment provided
17
by a modern award
18
45 Contravening a modern award
19
A person must not contravene a term of a modern award.
20
Note 1:
This section is a civil remedy provision (see Part 4-1).
21
Note 2:
A person does not contravene a term of a modern award unless the
22
award applies to the person: see subsection 46(1).
23
46 The significance of a mode rn award applying to a person
24
(1) A modern award does not impose obligations on a person, and a
25
person does not contravene a term of a modern award, unless the
26
award applies to the person.
27
(2) A modern award does not give a person an entitlement unless the
28
award applies to the person.
29
Terms and conditions of employ ment Chapter 2
Core provisions for this Chapter Part 2-1
Core provisions for this Chapter Division 2
Section 47
Fair Work Bill 2008 No. , 2008 61
Note:
This subsection does not affect the question whether an outworker
1
who is not an employee is an outworker to whom outworker terms in a
2
modern award relate, or is affected by a contravention of such terms.
3
47 When a modern award applies to an e mployer, e mployee,
4
organisation or outworke r entity
5
When a modern award applies to an employee, employer,
6
organisation or outworker entity
7
(1) A modern award applies to an employee, employer, organisation or
8
outworker entity if:
9
(a) the modern award covers the employee, employer,
10
organisation or outworker entity; and
11
(b) the modern award is in operation; and
12
(c) no other provision of this Act provides, or has the effect, that
13
the modern award does not apply to the employee, employer,
14
organisation or outworker entity.
15
Note 1:
Section 57 provides that a modern award does not apply to an
16
employee (or to an employer, or an employee organisation, in relation
17
to the employee) in relation to particular employment at a time when
18
an enterprise agreement applies to the emp loyee in relation to that
19
employment.
20
Note 2:
In a modern award, coverage of an outworker entity must be
21
expressed to relate only to outworker terms: see subsection 143(4).
22
Modern awards do not apply to high income employees
23
(2) However, a modern award does not apply to an employee (or to an
24
employer, or an employee organisation, in relation to the
25
employee) at a time when the employee is a high income
26
employee.
27
Modern awards apply to employees in relation to particular
28
employment
29
(3) A reference in this Act to a modern award applying to an employee
30
is a reference to the award applying to the employee in relation to
31
particular employment.
32
Chapter 2 Terms and conditions of employ ment
Part 2-1 Core provisions for this Chapter
Division 2 Core provisions for this Chapter
Section 48
62 Fair Work Bill 2008 No. , 2008
48 When a modern award covers an employe r, employee,
1
organisation or outworke r entity
2
When a modern award covers an employee, employer,
3
organisation or outworker entity
4
(1) A modern award covers an employee, employer, organisation or
5
outworker entity if the award is expressed to cover the employee,
6
employer, organisation or outworker entity.
7
Note:
In a modern award, coverage of an outworker entity must be
8
expressed to relate only to outworker terms: see subsection 143(4).
9
Effect of other provisions of this Act, FWA orders or court orders
10
on coverage
11
(2) A modern award also covers an employee, employer, organisation
12
or outworker entity if any of the following provides, or has the
13
effect, that the award covers the employee, employer, organisation
14
or outworker entity:
15
(a) a provision of this Act;
16
(b) an FWA order made under a provision of this Act;
17
(c) an order of a court.
18
(3) Despite subsections (1) and (2), a modern award does not cover an
19
employee, employer, organisation or outworker entity if any of the
20
following provides, or has the effect, that the award does not cover
21
the employee, employer or organisation or outworker entity:
22
(a) a provision of this Act;
23
(b) an FWA order made under a provision of this Act;
24
(c) an order of a court.
25
Modern awards that have ceased to operate
26
(4) Despite subsections (1) and (2), a modern award that has ceased to
27
operate does not cover an employee, employer, organisation or
28
outworker entity.
29
Terms and conditions of employ ment Chapter 2
Core provisions for this Chapter Part 2-1
Core provisions for this Chapter Division 2
Section 49
Fair Work Bill 2008 No. , 2008 63
Modern awards cover employees in relation to particular
1
employment
2
(5) A reference to a modern award covering an employee is a
3
reference to the award covering the employee in relation to
4
particular employment.
5
49 When a modern award is in operation
6
When a modern award comes into operation
7
(1) A modern award comes into operation:
8
(a) on 1 July in the next financial year after it is made; or
9
(b) if it is made on 1 July in a financial year--on that day.
10
(2) However, if FWA specifies another day as the day on which the
11
modern award comes into operation, it comes into operation on
12
that other day. FWA must not specify another day unless it is
13
satisfied that it is appropriate to do so.
14
(3) The specified day must not be earlier than the day on which the
15
modern award is made.
16
When a determination revoking a modern award comes into
17
operation
18
(4) A determination revoking a modern award comes into operation on
19
the day specified in the determination.
20
(5) The specified day must not be earlier than the day on which the
21
determination is made.
22
Modern awards and revocation determinations take effect from
23
first full pay period
24
(6) A modern award, or a determination revoking a modern award,
25
does not take effect in relation to a particular employee until the
26
start of the employee's first full pay period that starts on or after
27
the day the award or determination comes into operation.
28
Chapter 2 Terms and conditions of employ ment
Part 2-1 Core provisions for this Chapter
Division 2 Core provisions for this Chapter
Section 50
64 Fair Work Bill 2008 No. , 2008
Modern awards operate until revoked
1
(7) A modern award continues in operation until it is revoked.
2
Subdivision D--Terms and conditions of employment provided
3
by an enterprise agreement
4
50 Contravening an enterprise agreement
5
A person must not contravene a term of an enterprise agreement.
6
Note 1:
This section is a civil remedy provision (see Part 4-1).
7
Note 2:
A person does not contravene a term of an enterprise agreement unless
8
the agreement applies to the person: see subsection 51(1).
9
51 The significance of an ente rprise agreement applying to a person
10
(1) An enterprise agreement does not impose obligations on a person,
11
and a person does not contravene a term of an enterprise
12
agreement, unless the agreement applies to the person.
13
(2) An enterprise agreement does not give a person an entitlement
14
unless the agreement applies to the person.
15
52 When an enterprise agreement applies to an employe r, employee
16
or e mployee organisation
17
When an enterprise agreement applies to an employee, employer
18
or organisation
19
(1) An enterprise agreement applies to an employee, employer or
20
employee organisation if:
21
(a) the agreement is in operation; and
22
(b) the agreement covers the employee, employer or
23
organisation; and
24
(c) no other provision of this Act provides, or has the effect, that
25
the agreement does not apply to the employee, employer or
26
organisation.
27
Terms and conditions of employ ment Chapter 2
Core provisions for this Chapter Part 2-1
Core provisions for this Chapter Division 2
Section 53
Fair Work Bill 2008 No. , 2008 65
Enterprise agreements apply to employees in relation to particular
1
employment
2
(2) A reference in this Act to an enterprise agreement applying to an
3
employee is a reference to the agreement applying to the employee
4
in relation to particular employment.
5
53 When an enterprise agreement covers an employer, employee or
6
employee organisation
7
Employees and employers
8
(1) An enterprise agreement covers an employee or employer if the
9
agreement is expressed to cover (however described) the employee
10
or the employer.
11
Employee organisations
12
(2) An enterprise agreement covers an employee organisation:
13
(a) for an enterprise agreement that is not a greenfields
14
agreement--if FWA has noted in its decision to approve the
15
agreement that the agreement covers the organisation (see
16
subsection 201(2)); or
17
(b) for a greenfields agreement--if the agreement is made by the
18
organisation.
19
Effect of provisions of this Act, FWA orders and court orders on
20
coverage
21
(3) An enterprise agreement also covers an employee, employer or
22
employee organisation if any of the following provides, or has the
23
effect, that the agreement covers the employee, employer or
24
organisation:
25
(a) a provision of this Act;
26
(b) an FWA order made under a provision of this Act;
27
(c) an order of a court.
28
(4) Despite subsections (1), (2) and (3), an enterprise agreement does
29
not cover an employee, employer or employee organisation if any
30
Chapter 2 Terms and conditions of employ ment
Part 2-1 Core provisions for this Chapter
Division 2 Core provisions for this Chapter
Section 54
66 Fair Work Bill 2008 No. , 2008
of the following provides, or has the effect, that the agreement does
1
not cover the employee, employer or organisation:
2
(a) another provision of this Act;
3
(b) an FWA order made under another provision of this Act;
4
(c) an order of a court.
5
Enterprise agreements that have ceased to operate
6
(5) Despite subsections (1), (2) and (3), an enterprise agreement that
7
has ceased to operate does not cover an employee, employer or
8
employee organisation.
9
Enterprise agreements cover employees in relation to particular
10
employment
11
(6) A reference in this Act to an enterprise agreement covering an
12
employee is a reference to the agreement covering the employee in
13
relation to particular employment.
14
54 When an enterprise agreement is in operation
15
(1) An enterprise agreement approved by FWA operates from:
16
(a) 7 days after the agreement is approved; or
17
(b) if a later day is specified in the agreement--that later day.
18
(2) An enterprise agreement ceases to operate on the earlier of the
19
following days:
20
(a) the day on which a termination of the agreement comes into
21
operation under section 224 or 227;
22
(b) the day on which section 58 first has the effect that there is
23
no employee to whom the agreement applies.
24
Note:
Section 58 deals with when an enterprise agreement ceases to apply to
25
an employee.
26
(3) An enterprise agreement that has ceased to operate can never
27
operate again.
28
29
Terms and conditions of employ ment Chapter 2
Core provisions for this Chapter Part 2-1
Interaction between the National Emp loyment Standards, modern awards and enterprise
agreements Division 3
Section 55
Fair Work Bill 2008 No. , 2008 67
1
Division 3--Interaction between the National Employment
2
Standards, modern awards and enterprise
3
agreements
4
Subdivision A--Interaction between the National Employment
5
Standards and a modern award or an enterprise
6
agreement
7
55 Inte raction between the National Employment Standards and a
8
modern award or ente rprise agreement
9
National Employment Standards must not be excluded
10
(1) A modern award or enterprise agreement must not exclude the
11
National Employment Standards or any provision of the National
12
Employment Standards.
13
Terms expressly permitted by Part 2-2 or regulations may be
14
included
15
(2) A modern award or enterprise agreement may include any terms
16
that the award or agreement is expressly permitted to include:
17
(a) by a provision of Part 2-2 (which deals with the National
18
Employment Standards); or
19
(b) by regulations made for the purposes of section 127.
20
Note:
In determining what is permitted to be included in a modern award or
21
enterprise agreement by a provision referred to in paragraph (a), any
22
regulations made for the purpose of section 127 that expressly prohibit
23
certain terms must be taken into account.
24
(3) The National Employment Standards have effect subject to terms
25
included in a modern award or enterprise agreement as referred to
26
in subsection (2).
27
Note:
See also the note to section 63 (which deals with the effect of
28
averaging arrangements).
29
Chapter 2 Terms and conditions of employ ment
Part 2-1 Core provisions for this Chapter
Division 3 Interaction between the National Emp loy ment Standards, modern awards
and enterprise agreements
Section 55
68 Fair Work Bill 2008 No. , 2008
Ancillary and supplementary terms may be included
1
(4) A modern award or enterprise agreement may also include the
2
following kinds of terms:
3
(a) terms that are ancillary or incidental to the operation of an
4
entitlement of an employee under the National Employment
5
Standards;
6
(b) terms that supplement the National Employment Standards;
7
but only if the effect of those terms is not detrimental to an
8
employee in any respect, when compared to the National
9
Employment Standards.
10
Note 1:
Ancillary or incidental terms permitted by paragraph (a) include (for
11
example) terms:
12
(a)
under which, instead of taking paid annual leave at the rate of
13
pay required by section 90, an employee may take twice as much
14
leave at half that rate of pay; or
15
(b)
that specify when payment under section 90 for paid annual leave
16
must be made.
17
Note 2:
Supplementary terms permitted by paragraph (b) include (for
18
example) terms:
19
(a)
that increase the amount of paid annual leave to which an
20
employee is entitled beyond the number of weeks that applies
21
under section 87; or
22
(b)
that provide for an employee to be paid for taking a period of
23
paid annual leave or paid/personal carer's leave at a rate of pay
24
that is higher than the employee's base rate of pay (which is the
25
rate required by sections 90 and 99).
26
Note 3:
Terms that would not be permitted by paragraph (a) or (b) include (for
27
example) terms requiring an employee to give more notice of the
28
taking of unpaid parental leave than is required by section 74.
29
(5) A term of a modern award or enterprise agreement that is permitted
30
by subsection (4) does not contravene subsection (1).
31
Note:
A term of a modern award has no effect to the extent that it
32
contravenes this section (see section 56). An enterprise agreement that
33
includes a term that contravenes this section must not be approved
34
(see section 186) and a term of an enterprise agreement has no effect
35
to the extent that it contravenes this section (see section 56).
36
Terms and conditions of employ ment Chapter 2
Core provisions for this Chapter Part 2-1
Interaction between the National Emp loyment Standards, modern awards and enterprise
agreements Division 3
Section 56
Fair Work Bill 2008 No. , 2008 69
56 Terms of a modern award or enterprise agreement contravening
1
section 55 have no effect
2
A term of a modern award or enterprise agreement has no effect to
3
the extent that it contravenes section 55.
4
Subdivision B--Interaction between modern awards and
5
enterprise agreements
6
57 Inte raction between modern awards and enterprise agreements
7
(1) A modern award does not apply to an employee in relation to
8
particular employment at a time when an enterprise agreement
9
applies to the employee in relation to that employment.
10
(2) If a modern award does not apply to an employee in relation to
11
particular employment because of subsection (1), the award does
12
not apply to an employer, or an employee organisation, in relation
13
to the employee.
14
Subdivision C--Interaction between one or more enterprise
15
agreements
16
58 Only one enterprise agreement can apply to an employee
17
Only one enterprise agreement can apply to an employee
18
(1) Only one enterprise agreement can apply to an employee at a
19
particular time.
20
General rule--later agreement does not apply until earlier
21
agreement passes its nominal expiry date
22
(2) If:
23
(a) an enterprise agreement (the earlier agreement) applies to an
24
employee in relation to particular employment; and
25
(b) another enterprise agreement (the later agreement) that
26
covers the employee in relation to the same employment
27
comes into operation; and
28
Chapter 2 Terms and conditions of employ ment
Part 2-1 Core provisions for this Chapter
Division 3 Interaction between the National Emp loy ment Standards, modern awards
and enterprise agreements
Section 58
70 Fair Work Bill 2008 No. , 2008
(c) subsection (3) (which deals with a single-enterprise
1
agreement replacing a multi-enterprise agreement) does not
2
apply;
3
then:
4
(d) if the earlier agreement has not passed its nominal expiry
5
date:
6
(i) the later agreement cannot apply to the employee in
7
relation to that employment until the earlier agreement
8
passes its nominal expiry date; and
9
(ii) the earlier agreement ceases to apply to the employee in
10
relation to that employment when the earlier agreement
11
passes its nominal expiry date, and can never so apply
12
again; or
13
(e) if the earlier agreement has passed its nominal expiry date--
14
the earlier agreement ceases to apply to the employee when
15
the later agreement comes into operation, and can never so
16
apply again.
17
Special rule--single-enterprise agreement replaces
18
multi-enterprise agreement
19
(3) Despite subsection (2), if:
20
(a) a multi-enterprise agreement applies to an employee in
21
relation to particular employment; and
22
(b) a single-enterprise agreement that covers the employee in
23
relation to the same employment comes into operation;
24
the multi-enterprise agreement ceases to apply to the employee in
25
relation to that employment when the single-enterprise agreement
26
comes into operation, and can never so apply again.
27
28
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Introduction Division 1
Section 59
Fair Work Bill 2008 No. , 2008 71
1
Part 2-2--The National Employment Standards
2
Division 1--Introduction
3
59 Guide to this Part
4
This Part contains the National Employment Standards.
5
Division 2 identifies the National Employment Standards, the
6
detail of which is set out in Divisions 3 to 12.
7
Division 13 contains miscellaneous provisions relating to the
8
National Employment Standards.
9
The National Employment Standards are minimum standards that
10
apply to the employment of national system employees. Part 2-1
11
(which deals with the core provisions for this Chapter) contains the
12
obligation for employers to comply with the National Employment
13
Standards (see section 44).
14
The National Employment Standards also underpin what can be
15
included in modern awards and enterprise agreements. Part 2-1
16
provides that the National Employment Standards cannot be
17
excluded by modern awards or enterprise agreements, and contains
18
other provisions about the interaction between the National
19
Employment Standards and modern awards or enterprise
20
agreements (see sections 55 and 56).
21
Divisions 2 and 3 of Part 6-3 extend the operation of the parental
22
leave and notice of termination provisions of the National
23
Employment Standards to employees who are not national system
24
employees.
25
60 Meanings of employee and employer
26
In this Part, employee means a national system employee, and
27
employer means a national system employer.
28
29
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 2 The National Emp loyment Standards
Section 61
72 Fair Work Bill 2008 No. , 2008
1
Division 2--The National Employment Standards
2
61 The National Employment Standards are minimum standards
3
applying to employment of employees
4
(1) This Part sets minimum standards that apply to the employment of
5
employees.
6
(2) The minimum standards relate to the following matters:
7
(a) maximum weekly hours (Division 3);
8
(b) requests for flexible working arrangements (Division 4);
9
(c) parental leave and related entitlements (Division 5);
10
(d) annual leave (Division 6);
11
(e) personal/carer's leave and compassionate leave (Division 7);
12
(f) community service leave (Division 8);
13
(g) long service leave (Division 9);
14
(h) public holidays (Division 10);
15
(i) notice of termination and redundancy pay (Division 11);
16
(j) Fair Work Information Statement (Division 12).
17
(3) Divisions 3 to 12 constitute the National Employment Standards.
18
19
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Maximu m weekly hours Division 3
Section 62
Fair Work Bill 2008 No. , 2008 73
1
Division 3--Maximum weekly hours
2
62 Maximum weekly hours
3
Maximum weekly hours of work
4
(1) An employer must not request or require an employee to work
5
more than the following number of hours in a week unless the
6
additional hours are reasonable:
7
(a) for a full-time employee--38 hours; or
8
(b) for an employee who is not a full-time employee--the lesser
9
of:
10
(i) 38 hours; and
11
(ii) the employee's ordinary hours of work in a week.
12
Employee may refuse to work unreasonable additional hours
13
(2) The employee may refuse to work additional hours (beyond those
14
referred to in paragraph (1)(a) or (b)) if they are unreasonable.
15
Determining whether additional hours are reasonable
16
(3) In determining whether additional hours are reasonable or
17
unreasonable for the purposes of subsections (1) and (2), the
18
following must be taken into account:
19
(a) any risk to employee health and safety from working the
20
additional hours;
21
(b) the employee's personal circumstances, including family
22
responsibilities;
23
(c) the needs of the workplace or enterprise in which the
24
employee is employed;
25
(d) whether the employee is entitled to receive overtime
26
payments, penalty rates or other compensation for, or a level
27
of remuneration that reflects an expectation of, working
28
additional hours;
29
(e) any notice given by the employer of any request or
30
requirement to work the additional hours;
31
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 3 Maximu m weekly hours
Section 63
74 Fair Work Bill 2008 No. , 2008
(f) any notice given by the employee of his or her intention to
1
refuse to work the additional hours;
2
(g) the usual patterns of work in the industry, or the part of an
3
industry, in which the employee works;
4
(h) the nature of the employee's role, and the employee's level of
5
responsibility;
6
(i) whether the additional hours are in accordance with
7
averaging terms included under section 63 in a modern award
8
or enterprise agreement that applies to the employee, or with
9
an averaging arrangement agreed to by the employer and
10
employee under section 64;
11
(j) any other relevant matter.
12
Authorised leave or absence treated as hours worked
13
(4) For the purposes of subsection (1), the hours an employee works in
14
a week are taken to include any hours of leave, or absence, whether
15
paid or unpaid, that the employee takes in the week and that are
16
authorised:
17
(a) by the employee's employer; or
18
(b) by or under a term or condition of the employee's
19
employment; or
20
(c) by or under a law of the Commonwealth, a State or a
21
Territory, or an instrument in force under such a law.
22
63 Modern awards and enterprise agreements may provide for
23
averaging of hours of work
24
A modern award or enterprise agreement may include terms
25
providing for the averaging of hours of work over a specified
26
period. The average weekly hours over the period must not exceed:
27
(a) for a full-time employee--38 hours; or
28
(b) for an employee who is not a full-time employee--the lesser
29
of:
30
(i) 38 hours; and
31
(ii) the employee's ordinary hours of work in a week.
32
Note:
Hours in excess of the hours referred to in paragraph (a) or (b) that are
33
worked in a week in accordance with averaging terms in a modern
34
award or enterprise agreement will be treated as additional hours for
35
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Maximu m weekly hours Division 3
Section 64
Fair Work Bill 2008 No. , 2008 75
the purpose of section 62, but the averaging terms will be relevant in
1
determining whether the additional hours are reasonable (see
2
paragraph 62(3)(i)).
3
64 Averaging of hours of work for award/agreement free employees
4
An employer and an award/agreement free employee may agree in
5
writing to an averaging arrangement under which hours of work
6
over a specified period of not more than 26 weeks are averaged.
7
The average weekly hours over the specified period must not
8
exceed:
9
(a) for a full-time employee--38 hours; or
10
(b) for an employee who is not a full-time employee--the lesser
11
of:
12
(i) 38 hours; and
13
(ii) the employee's ordinary hours of work in a week.
14
Note:
Hours in excess of the hours referred to in paragraph (a) or (b) that are
15
worked in a week in accordance with an agreed averaging
16
arrangement will be treated as additional hours for the purpose of
17
section 62, but the averaging arrangement will be relevant in
18
determining whether the additional hours are reasonable (see
19
paragraph 62(3)(i)).
20
21
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 4 Requests for flexib le wo rking arrangements
Section 65
76 Fair Work Bill 2008 No. , 2008
1
Division 4--Requests for flexible working arrangements
2
65 Requests for flexible working arrangements
3
Employee may request change in working arrangements
4
(1) An employee who is a parent, or has a responsibility for the care,
5
of a child under school age may request the employer for a change
6
in working arrangements to assist the employee to care for the
7
child.
8
Note:
Examples of changes in working arrangements include changes in
9
hours of work, changes in patterns of work and changes in location of
10
work.
11
(2) The employee is not entitled to make the request unless:
12
(a) for an employee other than a casual employee--the employee
13
has completed at least 12 months of continuous service with
14
the employer immediately before making the request; or
15
(b) for a casual employee--the employee:
16
(i) is a long term casual employee of the employer
17
immediately before making the request; and
18
(ii) has a reasonable expectation of continuing employment
19
by the employer on a regular and systematic basis.
20
Formal requirements
21
(3) The request must:
22
(a) be in writing; and
23
(b) set out details of the change sought and of the reasons for the
24
change.
25
Agreeing to the request
26
(4) The employer must give the employee a written response to the
27
request within 21 days, stating whether the employer grants or
28
refuses the request.
29
(5) The employer may refuse the request only on reasonable business
30
grounds.
31
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Requests for flexible working arrangements Division 4
Section 66
Fair Work Bill 2008 No. , 2008 77
(6) If the employer refuses the request, the written response under
1
subsection (4) must include details of the reasons for the refusal.
2
66 State and Territory laws that are not excluded
3
This Act is not intended to apply to the exclusion of laws of a State
4
or Territory that provide employee entitlements in relation to
5
flexible working arrangements, to the extent that those entitlements
6
are more beneficial to employees than the entitlements under this
7
Division.
8
9
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 5 Parental leave and related entitlements
Section 67
78 Fair Work Bill 2008 No. , 2008
1
Division 5--Parental leave and related entitlements
2
Subdivision A--General
3
67 General rule--employee must have completed at least 12 months
4
of service
5
Employees other than casual employees
6
(1) An employee, other than a casual employee, is not entitled to leave
7
under this Division (other than unpaid pre-adoption leave) unless
8
the employee has, or will have, completed at least 12 months of
9
continuous service with the employer immediately before the date
10
that applies under subsection (3).
11
Casual employees
12
(2) A casual employee, is not entitled to leave (other than unpaid
13
pre-adoption leave) under this Division unless:
14
(a) the employee is, or will be, a long term casual employee of
15
the employer immediately before the date that applies under
16
subsection (3); and
17
(b) but for:
18
(i) the birth or expected birth of the child; or
19
(ii) the placement or the expected placement of the child; or
20
(iii) if the employee is taking a period of unpaid parental
21
leave that starts under subsection 71(6) or paragraph
22
72(3)(b) or 72(4)(b)--the taking of the leave;
23
the employee would have a reasonable expectation of
24
continuing employment by the employer on a regular and
25
systematic basis.
26
Date at which employee must have completed 12 months of service
27
(3) For the purpose of subsections (1) and (2), the date that applies is:
28
(a) unless paragraph (b) or (c) applies:
29
(i) if the leave is birth-related leave--the date of birth, or
30
the expected date of birth, of the child; or
31
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Parental leave and related entitlements Division 5
Section 67
Fair Work Bill 2008 No. , 2008 79
(ii) if the leave is adoption-related leave--the day of
1
placement, or the expected day of placement, of the
2
child; or
3
(b) for an employee taking a period of unpaid parental leave that
4
is to start within 12 months after the birth or placement of the
5
child under subsection 71(6)--the date on which the
6
employee's period of leave is to start; or
7
(c) for a member of an employee couple taking a period of
8
unpaid parental leave that is to start under paragraph 72(3)(b)
9
or 72(4)(b) after the period of unpaid parental leave of the
10
other member of the employee couple--the date on which the
11
employee's period of leave is to start.
12
Meaning of birth-related leave
13
(4) Birth-related leave means leave of either of the following kinds:
14
(a) unpaid parental leave taken in association with the birth of a
15
child (see section 70);
16
(b) unpaid special maternity leave (see section 80).
17
Meaning of adoption-related leave
18
(5) Adoption-related leave means leave of either of the following
19
kinds:
20
(a) unpaid parental leave taken in association with the placement
21
of a child for adoption (see section 70);
22
(b) unpaid pre-adoption leave (see section 85).
23
Meaning of day of placement
24
(6) The day of placement, in relation to the adoption of a child by an
25
employee, means the earlier of the following days:
26
(a) the day on which the employee first takes custody of the
27
child for the adoption;
28
(b) the day on which the employee starts any travel that is
29
reasonably necessary to take custody of the child for the
30
adoption.
31
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 5 Parental leave and related entitlements
Section 68
80 Fair Work Bill 2008 No. , 2008
68 General rule for adoption-related leave--child must be under 16
1
etc.
2
An employee is not entitled to adoption-related leave unless the
3
child that is, or is to be, placed with the employee for adoption:
4
(a) is, or will be, under 16 as at the day of placement, or the
5
expected day of placement, of the child; and
6
(b) has not, or will not have, lived continuously with the
7
employee for a period of 6 months or more as at the day of
8
placement, or the expected day of placement, of the child;
9
and
10
(c) is not (otherwise than because of the adoption) a child of the
11
employee or the employee's spouse or de facto partner.
12
69 Transfer of employment situations in which e mployee is entitled
13
to continue on leave etc.
14
(1) If:
15
(a) there is a transfer of employment in relation to an employee;
16
and
17
(b) the employee has already started a period of leave under this
18
Division when his or her employment with the first employer
19
ends;
20
the employee is entitled to continue on that leave for the rest of that
21
period.
22
(2) If:
23
(a) there is a transfer of employment in relation to an employee;
24
and
25
(b) the employee has, in relation to the first employer, already
26
taken a step that is required or permitted by a provision of
27
this Division in relation to taking a period of leave;
28
the employee is taken to have taken the step in relation to the
29
second employer.
30
Note:
Steps covered by this subsection include (for example) giving the first
31
employer notice under subsection 74(1), confirmation or advice under
32
subsection 74(4) or evidence under subsection 74(5).
33
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Parental leave and related entitlements Division 5
Section 70
Fair Work Bill 2008 No. , 2008 81
Subdivision B--Parental leave
1
70 Entitle ment to unpaid parental leave
2
An employee is entitled to 12 months of unpaid parental leave if:
3
(a) the leave is associated with:
4
(i) the birth of a child of the employee or the employee's
5
spouse or de facto partner; or
6
(ii) the placement of a child with the employee for
7
adoption; and
8
(b) the employee has or will have a responsibility for the care of
9
the child.
10
Note 1:
Entitlement is also affected by section 67 (which deals with length of
11
the employee's service) and, for adoption, section 68 (which deals
12
with the age etc. of the adopted child).
13
Note 2:
The 12 months is reduced by the amount of any unpaid special
14
maternity leave the employee has taken (see subsection 80(7)).
15
71 The period of leave--other than for me mbers of an employee
16
couple who each intend to take leave
17
Application of this section
18
(1) This section applies to an employee who intends to take unpaid
19
parental leave if:
20
(a) the employee is not a member of an employee couple; or
21
(b) the employee is a member of an employee couple, but the
22
other member of the couple does not intend to take unpaid
23
parental leave.
24
Leave must be taken in single continuous period
25
(2) The employee must take the leave in a single continuous period.
26
Note:
An employee may take a form of paid leave at the same time as he or
27
she is on unpaid parental leave (see section 79).
28
When birth-related leave must start
29
(3) If the leave is birth-related leave for a female employee who is
30
pregnant with, or gives birth to, the child, the period of leave may
31
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 5 Parental leave and related entitlements
Section 72
82 Fair Work Bill 2008 No. , 2008
start up to 6 weeks before the expected date of birth of the child,
1
but must not start later than the date of birth of the child.
2
(4) If the leave is birth-related leave but subsection (3) does not apply,
3
the period of leave must start on the date of birth of the child.
4
When adoption-related leave must start
5
(5) If the leave is adoption-related leave, the period of leave must start
6
on the day of placement of the child.
7
Leave may start later for employees whose spouse or de facto
8
partner is not an employee
9
(6) Despite subsections (3) to (5), the period of leave may start at any
10
time within 12 months after the date of birth or day of placement of
11
the child if:
12
(a) the employee has a spouse or de facto partner who is not an
13
employee; and
14
(b) the spouse or de facto partner has a responsibility for the care
15
of the child for the period between the date of birth or day of
16
placement of the child and the start date of the leave.
17
Note:
An employee whose leave starts under subsection (6) is still entitled
18
under section 76 to request an extension of the period of leave beyond
19
his or her available parental leave period. However, the period of
20
leave may not be extended beyond 24 months after the date of birth or
21
day of placement of the child (see subsection 76(7)).
22
72 The period of leave--members of an employee couple who each
23
intend to take leave
24
Application of this section
25
(1) This section applies to an employee couple if each of the
26
employees intends to take unpaid parental leave.
27
Leave must be taken in single continuous period
28
(2) Each employee must take the leave in a single continuous period.
29
Note:
An employee may take a form of paid leave at the same time as he or
30
she is on unpaid parental leave (see section 79).
31
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Parental leave and related entitlements Division 5
Section 72
Fair Work Bill 2008 No. , 2008 83
When birth-related leave must start
1
(3) If the leave is birth-related leave:
2
(a) one employee's period of leave must start first, in accordance
3
with the following rules:
4
(i) if the member of the employee couple whose period of
5
leave starts first is a female employee who is pregnant
6
with, or gives birth to, the child--the period of leave
7
may start up to 6 weeks before the expected date of birth
8
of the child, but must not start later than the date of birth
9
of the child;
10
(ii) if subparagraph (i) does not apply--the period of leave
11
must start on the date of birth of the child; and
12
(b) the other employee's period of leave must start immediately
13
after the end of the first employee's period of leave (or that
14
period as extended under section 75 or 76).
15
When adoption-related leave must start
16
(4) If the leave is adoption-related leave:
17
(a) one employee's period of leave must start on the day of
18
placement of the child; and
19
(b) the other employee's period of leave must start immediately
20
after the end of the first employee's period of leave (or that
21
period as extended under section 75 or 76).
22
Limited entitlement to take concurrent leave
23
(5) If one of the employees takes a period (the first employee's period
24
of leave) of unpaid parental leave in accordance with
25
paragraph (3)(a) or (4)(a), the other employee may take a period of
26
unpaid parental leave (the concurrent leave) during the first
27
employee's period of leave, if the concurrent leave complies with
28
the following requirements:
29
(a) the concurrent leave must be for a period of 3 weeks or less;
30
(b) unless the employer agrees as referred to in paragraph (c), the
31
concurrent leave must not start before, and must not end
32
more than 3 weeks after:
33
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 5 Parental leave and related entitlements
Section 73
84 Fair Work Bill 2008 No. , 2008
(i) if the leave is birth-related leave--the date of birth of
1
the child; or
2
(ii) if the leave is adoption-related leave--the day of
3
placement of the child;
4
(c) if the employer agrees, the concurrent leave may (subject to
5
paragraph (a)):
6
(i) start earlier than is permitted by paragraph (b); or
7
(ii) end up to 3 weeks later than is permitted by
8
paragraph (b).
9
(6) Concurrent leave taken by an employee:
10
(a) is an exception to the rule that the employee must take his or
11
her leave in a single continuous period (see subsection (2));
12
and
13
(b) is an exception to the rules about when the employee's period
14
of unpaid parental leave must start (see subsection (3) or (4)).
15
Note:
The concurrent leave is unpaid parental leave and so comes out of the
16
employee's entitlement to 12 months of unpaid parental leave under
17
section 70.
18
73 Pregnant e mployee may be required to take unpaid parental
19
leave within 6 weeks before the birth
20
Employer may ask employee to provide a medical certificate
21
(1) If a pregnant employee who is entitled to unpaid parental leave
22
(whether or not she has complied with section 74) continues to
23
work during the 6 week period before the expected date of birth of
24
the child, the employer may ask the employee to give the employer
25
a medical certificate containing the following statements (as
26
applicable):
27
(a) a statement of whether the employee is fit for work;
28
(b) if the employee is fit for work--a statement of whether it is
29
inadvisable for the employee to continue in her present
30
position during a stated period because of:
31
(i) illness, or risks, arising out of the employee's
32
pregnancy; or
33
(ii) hazards connected with the position.
34
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Parental leave and related entitlements Division 5
Section 73
Fair Work Bill 2008 No. , 2008 85
Note:
Personal information given to an employer under this subsection may
1
be regulated under the Privacy Act 1988.
2
Employer may require employee to take unpaid parental leave
3
(2) The employer may require the employee to take a period of unpaid
4
parental leave (the period of leave) as soon as practicable if:
5
(a) the employee does not give the employer the requested
6
certificate within 7 days after the request; or
7
(b) within 7 days after the request, the employee gives the
8
employer a medical certificate stating that the employee is
9
not fit for work; or
10
(c) the following subparagraphs are satisfied:
11
(i) within 7 days after the request, the employee gives the
12
employer a medical certificate stating that the employee
13
is fit for work, but that it is inadvisable for the employee
14
to continue in her present position for a stated period for
15
a reason referred to in subparagraph (1)(b)(i) or (ii);
16
(ii) section 81 does not apply to the employee.
17
Note:
If the medical certificate contains a statement as referred to in
18
subparagraph (c)(i) and section 81 applies to the employee, the
19
employee is entitled under that section to be transferred to a safe job,
20
or to paid no safe job leave.
21
When the period of leave must end
22
(3) The period of leave must not end later than the earlier of the
23
following:
24
(a) the end of the pregnancy;
25
(b) if the employee has given the employer notice of the taking
26
of a period of leave connected with the birth of the child
27
(whether it is unpaid parental leave or some other kind of
28
leave)--the start date of that leave.
29
Special rules about the period of leave
30
(4) The period of leave:
31
(a) is an exception to the rule that the employee must take her
32
unpaid parental leave in a single continuous period (see
33
subsection 71(2) or 72(2)); and
34
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 5 Parental leave and related entitlements
Section 74
86 Fair Work Bill 2008 No. , 2008
(b) is an exception to the rules about when the employee's period
1
of unpaid parental leave must start (see subsections 71(3) and
2
(6), or subsection 72(3)).
3
Note:
The period of leave is unpaid parental leave and so comes out of the
4
employee's entitlement to 12 months of unpaid parental leave under
5
section 70.
6
(5) The employee is not required to comply with section 74 in relation
7
to the period of leave.
8
74 Notice and evidence requirements
9
Notice
10
(1) An employee must give his or her employer written notice of the
11
taking of unpaid parental leave under section 71 or 72 by the
12
employee.
13
(2) The notice must be given to the employer:
14
(a) at least 10 weeks before starting the leave; or
15
(b) if that is not practicable--as soon as practicable (which may
16
be a time after the leave has started).
17
(3) The notice must specify the intended start and end dates of the
18
leave.
19
Confirmation or change of intended start and end dates
20
(4) At least 4 weeks before the intended start date specified in the
21
notice given under subsection (1), the employee must:
22
(a) confirm the intended start and end dates of the leave; or
23
(b) advise the employer of any changes to the intended start and
24
end dates of the leave;
25
unless it is not practicable to do so.
26
Evidence
27
(5) An employee who has given his or her employer notice of the
28
taking of unpaid parental leave must, if required by the employer,
29
give the employer evidence that would satisfy a reasonable person:
30
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Parental leave and related entitlements Division 5
Section 75
Fair Work Bill 2008 No. , 2008 87
(a) if the leave is birth-related leave--of the date of birth, or the
1
expected date of birth, of the child; or
2
(b) if the leave is adoption-related leave:
3
(i) of the day of placement, or the expected day of
4
placement, of the child; and
5
(ii) that the child is, or will be, under 16 as at the day of
6
placement, or the expected day of placement, of the
7
child.
8
(6) Without limiting subsection (5), an employer may require the
9
evidence referred to in paragraph (5)(a) to be a medical certificate.
10
Compliance
11
(7) An employee is not entitled to take unpaid parental leave under
12
section 71 or 72 unless the employee complies with this section.
13
Note:
Personal information given to an employer under this section may be
14
regulated under the Privacy Act 1988.
15
75 Extending period of unpaid parental leave--extending to use
16
more of available parental leave period
17
Application of this section
18
(1) This section applies if:
19
(a) an employee has, in accordance with section 74, given notice
20
of the taking of a period of unpaid parental leave (the
21
original leave period); and
22
(b) the original leave period is less than the employee's available
23
parental leave period; and
24
(c) the original leave period has started.
25
(2) The employee's available parental leave period is 12 months, less
26
any periods of the following kinds:
27
(a) a period of concurrent leave that the employee has taken in
28
accordance with subsection 72(5);
29
(b) a period of unpaid parental leave that the employee has been
30
required to take under subsection 73(2) or 82(2);
31
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 5 Parental leave and related entitlements
Section 76
88 Fair Work Bill 2008 No. , 2008
(c) a period by which the employee's entitlement to unpaid
1
parental leave is reduced under paragraph 76(6)(c);
2
(d) a period of special maternity leave that the employee has
3
taken.
4
First extension by giving notice to employer
5
(3) The employee may extend the period of unpaid parental leave by
6
giving his or her employer written notice of the extension at least 4
7
weeks before the end date of the original leave period. The notice
8
must specify the new end date for the leave.
9
(4) Only one extension is permitted under subsection (3).
10
Further extensions by agreement with employer
11
(5) If the employer agrees, the employee may further extend the period
12
of unpaid parental leave one or more times.
13
No entitlement to extension beyond available parental leave period
14
(6) The employee is not entitled under this section to extend the period
15
of unpaid parental leave beyond the employee's available parental
16
leave period.
17
76 Extending period of unpaid parental leave--extending for up to
18
12 months beyond available parental leave period
19
Employee may request further period of leave
20
(1) An employee who takes unpaid parental leave for his or her
21
available parental leave period may request his or her employer to
22
agree to an extension of unpaid parental leave for the employee for
23
a further period of up to 12 months immediately following the end
24
of the available parental leave period.
25
Making the request
26
(2) The request must be in writing, and must be given to the employer
27
at least 4 weeks before the end of the available parental leave
28
period.
29
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Parental leave and related entitlements Division 5
Section 76
Fair Work Bill 2008 No. , 2008 89
Agreeing to the requested extension
1
(3) The employer must give the employee a written response to the
2
request stating whether the employer grants or refuses the request.
3
The response must be given as soon as practicable, and not later
4
than 21 days, after the request is made.
5
(4) The employer may refuse the request only on reasonable business
6
grounds.
7
(5) If the employer refuses the request, the written response under
8
subsection (3) must include details of the reasons for the refusal.
9
Special rules for employee couples
10
(6) The following paragraphs apply in relation to a member of an
11
employee couple extending a period of unpa id parental leave in
12
relation to a child under this section:
13
(a) the request must specify any amount of unpaid parental leave
14
and unpaid special maternity leave that the other member of
15
the employee couple has taken, or will have taken, in relation
16
to the child before the extension starts;
17
(b) the period of the extension cannot exceed 12 months, less any
18
period of unpaid parental leave or unpaid special maternity
19
leave that the other member of the employee couple has
20
taken, or will have taken, in relation to the child before the
21
extension starts;
22
(c) the amount of unpaid parental leave to which the other
23
member of the employee couple is entitled under section 70
24
in relation to the child is reduced by the period of the
25
extension.
26
No extension beyond 24 months after birth or placement
27
(7) Despite any other provision of this Division, the employee is not
28
entitled to extend the period of unpaid parental leave beyond 24
29
months after the date of birth or day of placement of the child.
30
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 5 Parental leave and related entitlements
Section 77
90 Fair Work Bill 2008 No. , 2008
77 Reducing period of unpaid parental leave
1
If the employer agrees, an employee whose period of unpaid
2
parental leave has started may reduce the period of unpaid parental
3
leave he or she takes.
4
78 Employee who ceases to have responsibility for care of child
5
(1) This section applies to an employee who has taken unpaid parental
6
leave in relation to a child if the employee ceases to have any
7
responsibility for the care of the child.
8
(2) The employer may give the employee written notice requiring the
9
employee to return to work on a specified day.
10
(3) The specified day:
11
(a) must be at least 4 weeks after the notice is given to the
12
employee; and
13
(b) if the leave is birth-related leave taken by a female employee
14
who has given birth--must not be earlier than 6 weeks after
15
the date of birth of the child.
16
(4) The employee's entitlement to unpaid parental leave in relation to
17
the child ends immediately before the specified day.
18
79 Inte raction with paid leave
19
(1) This Subdivision (except for subsections (2) and (3)) does not
20
prevent an employee from taking any other kind of paid leave
21
while he or she is taking unpaid parental leave. If the employee
22
does so, the taking of that other paid leave does not break the
23
continuity of the period of unpaid parental leave.
24
Note:
For example, if the employee has paid annual leave available, he or
25
she may (with the employer's agreement) take some or all of that paid
26
annual leave at the same time as the unpaid parental leave.
27
(2) An employee is not entitled to take paid personal/carer's leave or
28
compassionate leave while he or she is taking unpaid parental
29
leave.
30
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Parental leave and related entitlements Division 5
Section 80
Fair Work Bill 2008 No. , 2008 91
(3) An employee is not entitled to any payment under Division 8
1
(which deals with community service leave) in relation to activities
2
the employee engages in while taking unpaid parental leave.
3
Subdivision C--Other entitlements
4
80 Unpaid special maternity leave
5
Entitlement to unpaid special maternity leave
6
(1) A female employee is entitled to a period of unpaid special
7
maternity leave if she is not fit for work during that period because:
8
(a) she has a pregnancy-related illness; or
9
(b) she has been pregnant, and the pregnancy ends within 28
10
weeks of the expected date of birth of the child otherwise
11
than by the birth of a living child.
12
Note:
Entitlement is also affected by section 67 (which deals with the length
13
of the employee's service).
14
Notice and evidence
15
(2) An employee must give her employer notice of the taking of
16
unpaid special maternity leave by the employee.
17
(3) The notice:
18
(a) must be given to the employer as soon as practicable (which
19
may be a time after the leave has started); and
20
(b) must advise the employer of the period, or expected period,
21
of the leave.
22
(4) An employee who has given her employer notice of the taking of
23
unpaid special maternity leave must, if required by the employer,
24
give the employer evidence that would satisfy a reasonable person
25
that the leave is taken for a reason specified in subsection (1).
26
(5) Without limiting subsection (4), an employer may require the
27
evidence referred to in that subsection to be a medical certificate.
28
(6) An employee is not entitled to take unpaid special maternity leave
29
unless the employee complies with subsections (2) to (4).
30
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 5 Parental leave and related entitlements
Section 81
92 Fair Work Bill 2008 No. , 2008
Taking of special maternity leave reduces entitlement to unpaid
1
parental leave
2
(7) A female employee's entitlement to 12 months of unpaid parental
3
leave associated with the birth of a child (see section 70) is reduced
4
by the amount of any unpaid special maternity leave taken by the
5
employee while she was pregnant.
6
Note:
Personal information given to an employer under this section may be
7
regulated under the Privacy Act 1988.
8
81 Transfer to a safe job
9
Application of this section
10
(1) This section applies to a pregnant employee if:
11
(a) she is entitled to unpaid parental leave; and
12
(b) she has already complied with the notice and evidence
13
requirements of section 74 for taking unpaid parental leave;
14
and
15
(c) she gives her employer evidence that would satisfy a
16
reasonable person that she is fit for work, but that it is
17
inadvisable for her to continue in her present position during
18
a stated period (the risk period) because of:
19
(i) illness, or risks, arising out of her pregnancy; or
20
(ii) hazards connected with that position.
21
Note:
Personal information given to an employer under this subsection may
22
be regulated under the Privacy Act 1988.
23
(2) Without limiting paragraph (1)(c), an employer may require the
24
evidence referred to in that paragraph to be a medical certificate.
25
Employee entitled to appropriate safe job or paid no safe job leave
26
during risk period
27
(3) If this section applies to an employee:
28
(a) if there is an appropriate safe job available--the employer
29
must transfer the employee to that job for the risk period,
30
with no other change to the employee's terms and conditions
31
of employment; or
32
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Parental leave and related entitlements Division 5
Section 82
Fair Work Bill 2008 No. , 2008 93
(b) if there is no appropriate safe job available--the employee is
1
entitled to take paid no safe job leave for the risk period.
2
(4) An appropriate safe job is a safe job that has:
3
(a) the same ordinary hours of work as the employee's present
4
position; or
5
(b) a different number of ordinary hours agreed to by the
6
employee.
7
Payment to employee if transferred to appropriate safe job
8
(5) Without limiting paragraph (3)(a), if the employee is transferred to
9
an appropriate safe job for the risk period, the employer must pay
10
the employee for the safe job at the employee's full rate of pay (for
11
the position she was in before the transfer) for the hours that she
12
works in the risk period.
13
Payment to employee if on paid no safe job leave
14
(6) If the employee takes paid no safe job leave for the risk period, the
15
employer must pay the employee at the employee's base rate of
16
pay for the employee's ordinary hours of work in the risk period.
17
Risk period ends if pregnancy ends
18
(7) If the employee's pregnancy ends before the end of the risk period,
19
the risk period ends when the pregnancy ends.
20
82 Employee on paid no safe job leave may be asked to provide a
21
further medical certificate
22
Employer may ask employee to provide a medical certificate
23
(1) If an employee is on paid no safe job leave during the 6 week
24
period before the expected date of birth of the child, the employer
25
may ask the employee to give the employer a medical certificate
26
stating whether the employee is fit for work.
27
Note:
Personal information given to an employer under this subsection may
28
be regulated under the Privacy Act 1988.
29
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 5 Parental leave and related entitlements
Section 83
94 Fair Work Bill 2008 No. , 2008
Employer may require employee to take unpaid parental leave
1
(2) The employer may require the employee to take a period of unpaid
2
parental leave (the period of leave) as soon as practicable if:
3
(a) the employee does not give the employer the requested
4
certificate within 7 days after the request; or
5
(b) within 7 days after the request, the employee gives the
6
employer a certificate stating that the employee is not fit for
7
work.
8
Entitlement to paid no safe job leave ends
9
(3) When the period of leave starts, the employee's entitlement to paid
10
no safe job leave ends.
11
When the period of leave must end etc.
12
(4) Subsections 73(3), (4) and (5) apply to the period of leave.
13
83 Consultation with e mployee on unpaid parental leave
14
(1) If:
15
(a) an employee is on unpaid parental leave; and
16
(b) the employee's employer makes a decision that will have a
17
significant effect on the status, pay or location of the
18
employee's pre-parental leave position;
19
the employer must take all reasonable steps to give the employee
20
information about, and an opportunity to discuss, the effect of the
21
decision on that position.
22
(2) The employee's pre-parental leave position is:
23
(a) unless paragraph (b) applies, the position the employee held
24
before starting the unpaid parental leave; or
25
(b) if, before starting the unpaid parental leave, the employee:
26
(i) was transferred to a safe job because of her pregnancy;
27
or
28
(ii) reduced her working hours due to her pregnancy;
29
the position the employee held immediately before that
30
transfer or reduction.
31
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Parental leave and related entitlements Division 5
Section 84
Fair Work Bill 2008 No. , 2008 95
84 Return to work guarantee
1
On ending unpaid parental leave, an employee is entitled to return
2
to:
3
(a) the employee's pre-parental leave position; or
4
(b) if that position no longer exists--an available position for
5
which the employee is qualified and suited nearest in status
6
and pay to the pre-parental leave position.
7
85 Unpaid pre-adoption leave
8
Entitlement to unpaid pre-adoption leave
9
(1) An employee is entitled to up to 2 days of unpaid pre-adoption
10
leave to attend any interviews or examinations required in order to
11
obtain approval for the employee's adoption of a child.
12
Note:
Entitlement is also affected by section 68 (which deals with the age
13
etc. of the adopted child).
14
(2) However, an employee is not entitled to take a period of unpaid
15
pre-adoption leave if:
16
(a) the employee could instead take some other form of leave;
17
and
18
(b) the employer directs the employee to take that other form of
19
leave.
20
(3) An employee who is entitled to a period of unpaid pre-adoption
21
leave is entitled to take the leave as:
22
(a) a single continuous period of up to 2 days; or
23
(b) any separate periods to which the employee and the employer
24
agree.
25
Notice and evidence
26
(4) An employee must give his or her employer notice of the taking of
27
unpaid pre-adoption leave by the employee.
28
(5) The notice:
29
(a) must be given to the employer as soon as practicable (which
30
may be a time after the leave has started); and
31
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 5 Parental leave and related entitlements
Section 85
96 Fair Work Bill 2008 No. , 2008
(b) must advise the employer of the period, or expected period,
1
of the leave.
2
(6) An employee who has given his or her employer notice of the
3
taking of unpaid pre-adoption leave must, if required by the
4
employer, give the employer evidence that would satisfy a
5
reasonable person that the leave is taken to attend an interview or
6
examination as referred to in subsection (1).
7
(7) An employee is not entitled to take unpaid pre-adoption leave
8
unless the employee complies with subsections (4) to (6).
9
Note:
Personal information given to an employer under this section may be
10
regulated under the Privacy Act 1988.
11
12
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Annual leave Division 6
Section 86
Fair Work Bill 2008 No. , 2008 97
1
Division 6--Annual leave
2
86 Division applies to employees other than casual employees
3
This Division applies to employees, other than casual employees.
4
87 Entitle ment to annual leave
5
Amount of leave
6
(1) For each year of service with his or her employer, an employee is
7
entitled to:
8
(a) 4 weeks of paid annual leave; or
9
(b) 5 weeks of paid annual leave, if:
10
(i) a modern award applies to the employee and defines or
11
describes the employee as a shiftworker for the purposes
12
of the National Employment Standards; or
13
(ii) an enterprise agreement applies to the employee and
14
defines or describes the employee as a shiftworker for
15
the purposes of the National Employment Standards; or
16
(iii) the employee qualifies for the shiftworker annual leave
17
entitlement under subsection (3) (this relates to
18
award/agreement free employees).
19
Note:
Section 196 affects whether FWA may approve an enterprise
20
agreement covering an employee, if the employee is covered by a
21
modern award that is in operation and defines or describes the
22
employee as a shiftworker for the purposes of the National
23
Employment Standards.
24
Accrual of leave
25
(2) An employee's entitlement to paid annual leave accrues
26
progressively during a year of service according to the employee's
27
ordinary hours of work, and accumulates from year to year.
28
Note:
If an employee's employment ends during what would otherwise have
29
been a year of service, the employee accrues paid annual leave up to
30
when the employment ends.
31
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 6 Annual leave
Section 88
98 Fair Work Bill 2008 No. , 2008
Award/agreement free employees who qualify for the shiftworker
1
entitlement
2
(3) An award/agreement free employee qualifies for the shiftworker
3
annual leave entitlement if:
4
(a) the employee:
5
(i) is employed in an enterprise in which shifts are
6
continuously rostered 24 hours a day for 7 days a week;
7
and
8
(ii) is regularly rostered to work those shifts; and
9
(iii) regularly works on Sundays and public holidays; or
10
(b) the employee is in a class of employees prescribed by the
11
regulations as shiftworkers for the purposes of the National
12
Employment Standards.
13
(4) However, an employee referred to in subsection (3) does not
14
qualify for the shiftworker annual leave entitlement if the
15
employee is in a class of employees prescribed by the regulations
16
as not being qualified for that entitlement.
17
(5) Without limiting the way in which a class may be described for the
18
purposes of paragraph (3)(b) or subsection (4), the class may be
19
described by reference to one or more of the following:
20
(a) a particular industry or part of an industry;
21
(b) a particular kind of work;
22
(c) a particular type of employment.
23
88 Taking paid annual leave
24
(1) Paid annual leave may be taken for a period agreed between an
25
employee and his or her employer.
26
(2) The employer must not unreasonably refuse to agree to a request
27
by the employee to take paid annual leave.
28
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Annual leave Division 6
Section 89
Fair Work Bill 2008 No. , 2008 99
89 Employee not taken to be on paid annual leave at certain times
1
Public holidays
2
(1) If the period during which an employee takes paid annual leave
3
includes a day or part-day that is a public holiday in the place
4
where the employee is based for work purposes, the employee is
5
taken not to be on paid annual leave on that public holiday.
6
Other periods of leave
7
(2) If the period during which an employee takes paid annual leave
8
includes a period of any other leave (other than unpaid parental
9
leave) under this Part, or a period of absence from employment
10
under Division 8 (which deals with community service leave), the
11
employee is taken not to be on paid annual leave for the period of
12
that other leave or absence.
13
90 Payment for annual leave
14
(1) If, in accordance with this Division, an employee takes a period of
15
paid annual leave, the employer must pay the employee at the
16
employee's base rate of pay for the employee's ordinary hours of
17
work in the period.
18
(2) If, when the employment of an employee ends, the employee has a
19
period of untaken paid annual leave, the employer must pay the
20
employee the amount that would have been payable to the
21
employee had the employee taken that period of leave.
22
91 Transfer of employment situations that affect entitle ment to
23
payment for period of untaken paid annual leave
24
Transfer of employment situation in which employer may decide
25
not to recognise employee's service with first employer
26
(1) Subsection 22(5) does not apply (for the purpose of this Division)
27
to a transfer of employment between non-associated entities in
28
relation to an employee, if the second employer decides not to
29
recognise the employee's service with the first employer (for the
30
purpose of this Division).
31
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 6 Annual leave
Section 92
100 Fair Work Bill 2008 No. , 2008
Employee is not entitled to payment for untaken annual leave if
1
service with first employer counts as service with second employer
2
(2) If subsection 22(5) applies (for the purpose of this Division) to a
3
transfer of employment in relation to an employee, the employee is
4
not entitled to be paid an amount under subsection 90(2) for a
5
period of untaken paid annual leave.
6
Note:
Subsection 22(5) provides that, generally, if there is a transfer of
7
employment, service with the first employer counts as service with the
8
second employer.
9
92 Paid annual leave must not be cashed out except in accordance
10
with permitted cashing out terms
11
Paid annual leave must not be cashed out, except in accordance
12
with:
13
(a) cashing out terms included in a modern award or enterprise
14
agreement under section 93, or
15
(b) an agreement between an employer and an award/agreement
16
free employee under subsection 94(1).
17
93 Modern awards and enterprise agreements may include terms
18
relating to cashing out and taking paid annual leave
19
Terms about cashing out paid annual leave
20
(1) A modern award or enterprise agreement may include terms
21
providing for the cashing out of paid annual leave by an employee.
22
(2) The terms must require that:
23
(a) paid annual leave must not be cashed out if the cashing out
24
would result in the employee's remaining accrued entitlement
25
to paid annual leave being less than 4 weeks; and
26
(b) each cashing out of a particular amount of paid annual leave
27
must be by a separate agreement in writing between the
28
employer and the employee; and
29
(c) the employee must be paid at least the full amount that would
30
have been payable to the employee had the employee taken
31
the leave that the employee has forgone.
32
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Annual leave Division 6
Section 94
Fair Work Bill 2008 No. , 2008 101
Terms about requirements to take paid annual leave
1
(3) A modern award or enterprise agreement may include terms
2
requiring an employee, or allowing for an employee to be required,
3
to take paid annual leave in particular circumstances, but only if
4
the requirement is reasonable.
5
Terms about taking paid annual leave
6
(4) A modern award or enterprise agreement may include terms
7
otherwise dealing with the taking of paid annual leave.
8
94 Cashing out and taking paid annual leave for award/agreement
9
free employees
10
Agreements to cash out paid annual leave
11
(1) An employer and an award/agreement free employee may agree to
12
the employee cashing out a particular amount of the employee's
13
accrued paid annual leave.
14
(2) The employer and the employee must not agree to the employee
15
cashing out an amount of paid annual leave if the agreement would
16
result in the employee's remaining accrued entitlement to paid
17
annual leave being less than 4 weeks.
18
(3) Each agreement to cash out a particular amount of paid annual
19
leave must be a separate agreement in writing.
20
(4) The employer must pay the employee at least the full amount that
21
would have been payable to the employee had the employee taken
22
the leave that the employee has forgone.
23
Requirements to take paid annual leave
24
(5) An employer may require an award/agreement free employee to
25
take a period of paid annual leave, but only if the requirement is
26
reasonable.
27
Note:
A requirement to take paid annual leave may be reasonable if, for
28
example:
29
(a)
the employee has accrued an excessive amount of paid annual
30
leave; or
31
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 6 Annual leave
Section 94
102 Fair Work Bill 2008 No. , 2008
(b)
the employer's enterprise is being shut down for a period (for
1
example, between Christmas and New Year).
2
Agreements about taking paid annual leave
3
(6) An employer and an award/agreement free employee may agree on
4
when and how paid annual leave may be taken by the employee.
5
Note:
Matters that could be agreed include, for example, the following:
6
(a)
that paid annual leave may be taken in advance of accrual;
7
(b)
that paid annual leave must be taken within a fixed period of time
8
after it is accrued;
9
(c)
the form of application for paid annual leave;
10
(d)
that a specified period of notice must be given before taking paid
11
annual leave.
12
13
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Personal/carer's leave and compassionate leave Division 7
Section 95
Fair Work Bill 2008 No. , 2008 103
1
Division 7--Personal/carer's leave and compassionate
2
leave
3
Subdivision A--Paid personal/carer's leave
4
95 Subdivision applies to employees other than casual employees
5
This Subdivision applies to employees, other than casual
6
employees.
7
96 Entitle ment to paid pe rsonal/carer's leave
8
Amount of leave
9
(1) For each year of service with his or her employer, an employee is
10
entitled to 10 days of paid personal/carer's leave.
11
Accrual of leave
12
(2) An employee's entitlement to paid personal/carer's leave accrues
13
progressively during a year of service according to the employee's
14
ordinary hours of work, and accumulates from year to year.
15
97 Taking paid personal/care r's leave
16
An employee may take paid personal/carer's leave if the leave is
17
taken:
18
(a) because the employee is not fit for work because of a
19
personal illness, or personal injury, affecting the employee;
20
or
21
(b) to provide care or support to a member of the employee's
22
immediate family, or a member of the employee's household,
23
who requires care or support because of:
24
(i) a personal illness, or personal injury, affecting the
25
member; or
26
(ii) an unexpected emergency affecting the member.
27
Note:
The notice and evidence requirements of section 107 must be
28
complied with.
29
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 7 Personal/carer's leave and co mpassionate leave
Section 98
104 Fair Work Bill 2008 No. , 2008
98 Employee taken not to be on paid pe rsonal/carer's leave on
1
public holiday
2
If the period during which an employee takes paid personal/carer's
3
leave includes a day or part-day that is a public holiday in the place
4
where the employee is based for work purposes, the employee is
5
taken not to be on paid personal/carer's leave on that public
6
holiday.
7
99 Payment for paid personal/care r's leave
8
If, in accordance with this Subdivision, an employee takes a period
9
of paid personal/carer's leave, the employer must pay the employee
10
at the employee's base rate of pay for the employee's ordinary
11
hours of work in the period.
12
100 Paid personal/care r's leave must not be cashed out except in
13
accordance with pe rmitted cashing out te rms
14
Paid personal/carer's leave must not be cashed out, except in
15
accordance with cashing out terms included in a modern award or
16
enterprise agreement under section 101.
17
101 Modern awards and enterprise agreements may include terms
18
relating to cashing out paid personal/carer's leave
19
(1) A modern award or enterprise agreement may include terms
20
providing for the cashing out of paid personal/carer's leave by an
21
employee.
22
(2) The terms must require that:
23
(a) paid personal/carer's leave must not be cashed out if the
24
cashing out would result in the employee's remaining
25
accrued entitlement to paid personal/carer's leave being less
26
than 15 days; and
27
(b) each cashing out of a particular amount of paid
28
personal/carer's leave must be by a separate agreement in
29
writing between the employer and the employee; and
30
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Personal/carer's leave and compassionate leave Division 7
Section 102
Fair Work Bill 2008 No. , 2008 105
(c) the employee must be paid at least the full amount that would
1
have been payable to the employee had the employee taken
2
the leave that the employee has forgone.
3
Subdivision B--Unpaid carer's leave
4
102 Entitle ment to unpaid care r's leave
5
An employee is entitled to 2 days of unpaid carer's leave for each
6
occasion (a permissible occasion) when a member of the
7
employee's immediate family, or a member of the employee's
8
household, requires care or support because of:
9
(a) a personal illness, or personal injury, affecting the member;
10
or
11
(b) an unexpected emergency affecting the member.
12
103 Taking unpaid carer's leave
13
(1) An employee may take unpaid carer's leave for a particular
14
permissible occasion if the leave is taken to provide care or support
15
as referred to in section 102.
16
(2) An employee may take unpaid carer's leave for a particular
17
permissible occasion as:
18
(a) a single continuous period of up to 2 days; or
19
(b) any separate periods to which the employee and his or her
20
employer agree.
21
(3) An employee cannot take unpaid carer's leave during a particular
22
period if the employee could instead take paid personal/carer's
23
leave.
24
Note:
The notice and evidence requirements of section 107 must be
25
complied with.
26
Subdivision C--Compassionate leave
27
104 Entitle ment to compassionate leave
28
An employee is entitled to 2 days of compassionate leave for each
29
occasion (a permissible occasion) when a member of the
30
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 7 Personal/carer's leave and co mpassionate leave
Section 105
106 Fair Work Bill 2008 No. , 2008
employee's immediate family, or a member of the employee's
1
household:
2
(a) contracts or develops a personal illness that poses a serious
3
threat to his or her life; or
4
(b) sustains a personal injury that poses a serious threat to his or
5
her life; or
6
(c) dies.
7
105 Taking compassionate leave
8
(1) An employee may take compassionate leave for a particular
9
permissible occasion if the leave is taken:
10
(a) to spend time with the member of the employee's immediate
11
family or household who has contracted or developed the
12
personal illness, or sustained the personal injury, referred to
13
in section 104; or
14
(b) after the death of the member of the employee's immediate
15
family or household referred to in section 104.
16
(2) An employee may take compassionate leave for a particular
17
permissible occasion as:
18
(a) a single continuous 2 day period; or
19
(b) 2 separate periods of 1 day each; or
20
(c) any separate periods to which the employee and his or her
21
employer agree.
22
(3) If the permissible occasion is the contraction or development of a
23
personal illness, or the sustaining of a personal injury, the
24
employee may take the compassionate leave for that occasion at
25
any time while the illness or injury persists.
26
Note:
The notice and evidence requirements of section 107 must be
27
complied with.
28
106 Payment for compassionate leave (other than for casual
29
employees)
30
If, in accordance with this Subdivision, an employee, other than a
31
casual employee, takes a period of compassionate leave, the
32
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Personal/carer's leave and compassionate leave Division 7
Section 107
Fair Work Bill 2008 No. , 2008 107
employer must pay the employee at the employee's base rate of
1
pay for the employee's ordinary hours of work in the period.
2
Note:
For casual employees, compassionate leave is unpaid leave.
3
Subdivision D--Notice and evidence requirements
4
107 Notice and evidence requirements
5
Notice
6
(1) An employee must give his or her employer notice of the taking of
7
leave under this Division by the employee.
8
(2) The notice:
9
(a) must be given to the employer as soon as practicable (which
10
may be a time after the leave has started); and
11
(b) must advise the employer of the period, or expected period,
12
of the leave.
13
Evidence
14
(3) An employee who has given his or her employer notice of the
15
taking of leave under this Division must, if required by the
16
employer, give the employer evidence that would satisfy a
17
reasonable person that:
18
(a) if it is paid personal/carer's leave--the leave is taken for a
19
reason specified in section 97; or
20
(b) if it is unpaid carer's leave--the leave is taken for a
21
permissible occasion in circumstances specified in subsection
22
103(1); or
23
(c) if it is compassionate leave--the leave is taken for a
24
permissible occasion in circumstances specified in subsection
25
105(1).
26
Compliance
27
(4) An employee is not entitled to take leave under this Division unless
28
the employee complies with this section.
29
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 7 Personal/carer's leave and co mpassionate leave
Section 107
108 Fair Work Bill 2008 No. , 2008
Modern awards and enterprise agreements may include evidence
1
requirements
2
(5) A modern award or enterprise agreement may include terms
3
relating to the kind of evidence that an employee must provide in
4
order to be entitled to paid personal/carer's leave, unpaid carer's
5
leave or compassionate leave.
6
Note:
Personal information given to an employer under this section may be
7
regulated under the Privacy Act 1988.
8
9
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Co mmunity service leave Division 8
Section 108
Fair Work Bill 2008 No. , 2008 109
1
Division 8--Community service leave
2
108 Entitle ment to be absent from employme nt for engaging in
3
eligible community service activity
4
An employee who engages in an eligible community service
5
activity is entitled to be absent from his or her employment for a
6
period if:
7
(a) the period consists of one or more of the following:
8
(i) time when the employee engages in the activity;
9
(ii) reasonable travelling time associated with the activity;
10
(iii) reasonable rest time immediately following the activity;
11
and
12
(b) unless the activity is jury service--the employee's absence is
13
reasonable in all the circumstances.
14
109 Meaning of eligible community service activity
15
General
16
(1) Each of the following is an eligible community service activity:
17
(a) jury service (including attendance for jury selection) that is
18
required by or under a law of the Commonwealth, a State or a
19
Territory; or
20
(b) a voluntary emergency management activity (see
21
subsection (2)); or
22
(c) an activity prescribed in regulations made for the purpose of
23
subsection (4).
24
Voluntary emergency management activities
25
(2) An employee engages in a voluntary emergency management
26
activity if, and only if:
27
(a) the employee engages in an activity that involves dealing
28
with an emergency or natural disaster; and
29
(b) the employee engages in the activity on a voluntary basis
30
(whether or not the employee directly or indirectly takes or
31
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 8 Co mmun ity service leave
Section 109
110 Fair Work Bill 2008 No. , 2008
agrees to take an honorarium, gratuity or similar payment
1
wholly or partly for engaging in the activity); and
2
(c) the employee is a member of, or has a member-like
3
association with, a recognised emergency management body;
4
and
5
(d) either:
6
(i) the employee was requested by or on behalf of the body
7
to engage in the activity; or
8
(ii) no such request was made, but it would be reasonable to
9
expect that, if the circumstances had permitted the
10
making of such a request, it is likely that such a request
11
would have been made.
12
(3) A recognised emergency management body is:
13
(a) a body, or part of a body, that has a role or function under a
14
plan that:
15
(i) is for coping with emergencies and/or disasters; and
16
(ii) is prepared by the Commonwealth, a State or a
17
Territory; or
18
(b) a fire-fighting, civil defence or rescue body, or part of such a
19
body; or
20
(c) any other body, or part of a body, a substantial purpose of
21
which involves:
22
(i) securing the safety of persons or animals in an
23
emergency or natural disaster; or
24
(ii) protecting property in an emergency or natural disaster;
25
or
26
(iii) otherwise responding to an emergency or natural
27
disaster; or
28
(d) a body, or part of a body, prescribed by the regulations;
29
but does not include a body that was established, or is continued in
30
existence, for the purpose, or for purposes that include the purpose,
31
of entitling one or more employees to be absent from their
32
employment under this Division.
33
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Co mmunity service leave Division 8
Section 110
Fair Work Bill 2008 No. , 2008 111
Regulations may prescribe other activities
1
(4) The regulations may prescribe an activity that is of a community
2
service nature as an eligible community service activity.
3
110 Notice and evidence requirements
4
Notice
5
(1) An employee who wants an absence from his or her employment to
6
be covered by this Division must give his or her employer notice of
7
the absence.
8
(2) The notice:
9
(a) must be given to the employer as soon as practicable (which
10
may be a time after the absence has started); and
11
(b) must advise the employer of the period, or expected period,
12
of the absence.
13
Evidence
14
(3) An employee who has given his or her employer notice of an
15
absence under subsection (1) must, if required by the employer,
16
give the employer evidence that would satisfy a reasonable person
17
that the absence is because the employee has been or will be
18
engaging in an eligible community service activity.
19
Compliance
20
(4) An employee's absence from his or her employment is not covered
21
by this Division unless the employee complies with this section.
22
Note:
Personal information given to an employer under this section may be
23
regulated under the Privacy Act 1988.
24
111 Payment to employees (other than casuals) on jury service
25
Application of this section
26
(1) This section applies if:
27
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 8 Co mmun ity service leave
Section 111
112 Fair Work Bill 2008 No. , 2008
(a) in accordance with this Division, an employee is absent from
1
his or her employment for a period because of jury service;
2
and
3
(b) the employee is not a casual employee.
4
Employee to be paid base rate of pay
5
(2) Subject to subsections (3), (4) and (5), the employer must pay the
6
employee at the employee's base rate of pay for the employee's
7
ordinary hours of work in the period.
8
Evidence
9
(3) The employer may require the employee to give the employer
10
evidence that would satisfy a reasonable person:
11
(a) that the employee has taken all necessary steps to obtain any
12
amount of jury service pay to which the employee is entitled;
13
and
14
(b) of the total amount (even if it is a nil amount) of jury service
15
pay that has been paid, or is payable, to the employee for the
16
period.
17
Note:
Personal information given to an employer under this subsection may
18
be regulated under the Privacy Act 1988.
19
(4) If, in accordance with subsection (3), the employer requires the
20
employee to give the employer the evidence referred to in that
21
subsection:
22
(a) the employee is not entitled to payment under subsection (2)
23
unless the employee provides the evidence; and
24
(b) if the employee provides the evidence--the amount payable
25
to the employee under subsection (2) is reduced by the total
26
amount of jury service pay that has been paid, or is payable,
27
to the employee, as disclosed in the evidence.
28
Payment only required for first 10 days of absence
29
(5) If an employee is absent because of jury service in relation to a
30
particular jury service summons for a period, or a number of
31
periods, of more than 10 days in total:
32
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Co mmunity service leave Division 8
Section 112
Fair Work Bill 2008 No. , 2008 113
(a) the employer is only required to pay the employee for the
1
first 10 days of absence; and
2
(b) the evidence provided in response to a requirement under
3
subsection (3) need only relate to the first 10 days of absence;
4
and
5
(c) the reference in subsection (4) to the total amount of jury
6
service pay as disclosed in evidence is a reference to the total
7
amount so disclosed for the first 10 days of absence.
8
Meaning of jury service pay
9
(6) Jury service pay means an amount paid in relation to jury service
10
under a law of the Commonwealth, a State or a Territory, other
11
than an amount that is, or that is in the nature of, an
12
expense-related allowance.
13
Meaning of jury service summons
14
(7) Jury service summons means a summons or other instruction
15
(however described) that requires a person to attend for, or
16
perform, jury service.
17
112 State and Territory laws that are not excluded
18
(1) This Act is not intended to apply to the exclusion of laws of a State
19
or Territory that provide employee entitlements in relation to
20
engaging in eligible community service activities, to the extent that
21
those entitlements are more beneficial to employees than the
22
entitlements under this Division.
23
Note:
For example, this Act would not apply to the exclusion of a State or
24
Territory law providing for a casual employee to be paid jury service
25
pay.
26
(2) If the community service activity is an activity prescribed in
27
regulations made for the purpose of subsection 109(4),
28
subsection (1) of this section has effect subject to any provision to
29
the contrary in the regulations.
30
31
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 9 Long service leave
Section 113
114 Fair Work Bill 2008 No. , 2008
1
Division 9--Long service leave
2
113 Entitle ment to long service leave
3
General rule
4
(1) An employee is entitled to long service leave in accordance with
5
applicable award-derived long service leave terms (see
6
subsection (3)).
7
Note:
This Act does not exclude State and Territory laws that deal with long
8
service leave, except in relation to employees who are entitled to long
9
service leave under this Division (see paragraph 27(2)(g)).
10
General rule does not apply while workplace agreement, AWA etc.
11
continues to apply
12
(2) However, subsection (1) does not apply if:
13
(a) a workplace agreement, or an AWA, that came into operation
14
before the commencement of this Part applies to the
15
employee; or
16
(b) one of the following kinds of instrument that came into
17
operation before the commencement of this Part applies to
18
the employee and expressly deals with long service leave:
19
(i) a preserved State agreement;
20
(ii) a workplace determination;
21
(iii) a pre-reform certified agreement;
22
(iv) a pre-reform AWA;
23
(v) a section 170MX award;
24
(vi) an old IR agreement;
25
(vii) an employment agreement.
26
Note:
If there ceases to be any agreement or instrument of a kind referred to
27
in paragraph (a) or (b) that applies to the employee, the employee will,
28
at that time, become entitled under subsection (1) to long service leave
29
in accordance with applicable award-derived long service leave terms.
30
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Long service leave Division 9
Section 113
Fair Work Bill 2008 No. , 2008 115
What are applicable award-derived long service leave terms?
1
(3) Applicable award-derived long service leave terms, in relation to
2
an employee, are terms of an award:
3
(a) that would have applied to the employee immediately before
4
the commencement of this Part if:
5
(i) the employee had, at that time, been in his or her current
6
circumstances of employment; and
7
(ii) no workplace agreement, AWA or workplace
8
determination had (whether at that time or earlier)
9
applied to the employee; and
10
(b) that would have entitled the employee to long service leave
11
(or that relate to matters that are ancillary or incidental to
12
such an entitlement).
13
References are to instruments as defined in the Workplace
14
Relations Act 1996
15
(4) References in this section to a kind of instrument are references to
16
that kind of instrument as defined in the Workplace Relations Act
17
1996, as in force immediately before the commencement of this
18
Part.
19
20
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 10 Pub lic ho lidays
Section 114
116 Fair Work Bill 2008 No. , 2008
1
Division 10--Public holidays
2
114 Entitle ment to be absent from employme nt on public holiday
3
Employee entitled to be absent on public holiday
4
(1) An employee is entitled to be absent from his or her employment
5
on a day or part-day that is a public holiday in the place where the
6
employee is based for work purposes.
7
Reasonable requests to work on public holidays
8
(2) However, an employer may request an employee to work on a
9
public holiday if the request is reasonable.
10
(3) If an employer requests an employee to work on a public holiday,
11
the employee may refuse the request if:
12
(a) the request is not reasonable; or
13
(b) the refusal is reasonable.
14
(4) In determining whether a request, or a refusal of a request, to work
15
on a public holiday is reasonable, the following must be taken into
16
account:
17
(a) the nature of the employer's workplace or enterprise
18
(including its operational requirements), and the nature of the
19
work performed by the employee;
20
(b) the employee's personal circumstances, including family
21
responsibilities;
22
(c) whether the employee could reasonably expect that the
23
employer might request work on the public holiday;
24
(d) whether the employee is entitled to receive overtime
25
payments, penalty rates or other compensation for, or a level
26
of remuneration that reflects an expectation of, work on the
27
public holiday;
28
(e) the type of employment of the employee (for example,
29
whether full-time, part-time, casual or shiftwork);
30
(f) the amount of notice in advance of the public holiday given
31
by the employer when making the request;
32
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Public holidays Division 10
Section 115
Fair Work Bill 2008 No. , 2008 117
(g) in relation to the refusal of a request--the amount of notice in
1
advance of the public holiday given by the employee when
2
refusing the request;
3
(h) any other relevant matter.
4
115 Meaning of public holiday
5
The public holidays
6
(1) The following are public holidays:
7
(a) each of these days:
8
(i) 1 January (New Year's Day);
9
(ii) 26 January (Australia Day);
10
(iii) Good Friday;
11
(iv) Easter Monday;
12
(v) 25 April (Anzac Day);
13
(vi) the Queen's birthday holiday (on the day on which it is
14
celebrated in a State or Territory or a region of a State
15
or Territory);
16
(vii) 25 December (Christmas Day);
17
(viii) 26 December (Boxing Day);
18
(b) any other day, or part-day, declared or prescribed by or under
19
a law of a State or Territory to be observed generally within
20
the State or Territory, or a region of the State or Territory, as
21
a public holiday, other than a day or part-day, or a kind of
22
day or part-day, that is excluded by the regulations from
23
counting as a public holiday.
24
Substituted public holidays under State or Territory laws
25
(2) If, under (or in accordance with a procedure under) a law of a State
26
or Territory, a day or part-day is substituted for a day or part-day
27
that would otherwise be a public holiday because of subsection (1),
28
then the substituted day or part-day is the public holiday.
29
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 10 Pub lic ho lidays
Section 116
118 Fair Work Bill 2008 No. , 2008
Substituted public holidays under modern awards and enterprise
1
agreements
2
(3) A modern award or enterprise agreement may include terms
3
providing for an employer and employee to agree on the
4
substitution of a day or part-day for a day or part-day that would
5
otherwise be a public holiday because of subsection (1) or (2).
6
Substituted public holidays for award/agreement free employees
7
(4) An employer and an award/agreement free employee may agree on
8
the substitution of a day or part-day for a day or part-day that
9
would otherwise be a public holiday because of subsection (1) or
10
(2).
11
Note:
This Act does not exclude State and Territory laws that deal with the
12
declaration, prescription or substitution of public holidays, but it does
13
exclude State and Territory laws that relate to the rights and
14
obligations of an employee or employer in relation to public holidays
15
(see paragraph 27(2)(j)).
16
116 Payment for absence on public holiday
17
If, in accordance with this Division, an employee is absent from his
18
or her employment on a day or part-day that is a public holiday, the
19
employer must pay the employee at the employee's base rate of
20
pay for the employee's ordinary hours of work on the day or
21
part-day.
22
Note:
If the employee does not have ordinary hours of work on the public
23
holiday, the employee is not entitled to payment under this section.
24
For example, the employee is not entitled to payment if the employee
25
is a casual employee who is not rostered on for the public holiday, or
26
is a part-time employee whose part-time hours do not include the day
27
of the week on which the public holiday occurs.
28
29
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Notice of termination and redundancy pay Division 11
Section 117
Fair Work Bill 2008 No. , 2008 119
1
Division 11--Notice of termination and redundancy pay
2
Subdivision A--Notice of termination or payment in lieu of
3
notice
4
117 Requirement for notice of termination or payme nt in lieu
5
Notice specifying day of termination
6
(1) An employer must not terminate an employee's employment unless
7
the employer has given the employee written notice of the day of
8
the termination (which cannot be before the day the notice is
9
given).
10
Note 1:
Section 123 describes situations in which this section does not apply.
11
Note 2:
Sections 28A and 29 of the Acts Interpretation Act 1901 provide how
12
a notice may be given. In particular, the notice may be given to an
13
employee by:
14
(a)
delivering it personally; or
15
(b)
leaving it at the employee's last known address; or
16
(c)
sending it by pre-paid post to the employee's last known address.
17
Amount of notice or payment in lieu of notice
18
(2) The employer must not terminate the employee's employment
19
unless:
20
(a) the time between giving the notice and the day of the
21
termination is at least the period (the minimum period of
22
notice) worked out under subsection (3); or
23
(b) the employer has paid the employee payment in lieu of notice
24
of at least the amount the employer would have been liable to
25
pay the employee at the full rate of pay for the hours he or
26
she would have worked had the employment continued until
27
the end of the minimum period of notice.
28
(3) Work out the minimum period of notice as follows:
29
(a) first, work out the period using the following table:
30
31
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 11 Notice of termination and redundancy pay
Section 118
120 Fair Work Bill 2008 No. , 2008
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
1
(b) then increase the period by 1 week if the employee is over 45
2
years old and has completed at least 2 years of continuous
3
service with the employer at the end of the day the notice is
4
given.
5
118 Modern awards and enterprise agreements may provide for
6
notice of termination by employees
7
A modern award or enterprise agreement may include terms
8
specifying the period of notice an employee must give in order to
9
terminate his or her employment.
10
Subdivision B--Redundancy pay
11
119 Redundancy pay
12
Entitlement to redundancy pay
13
(1) An employee is entitled to be paid redundancy pay by the
14
employer if the employee's employment is terminated:
15
(a) at the employer's initiative because the employer no longer
16
requires the job done by the employee to be done by anyone,
17
except where this is due to the ordinary and customary
18
turnover of labour; or
19
(b) because of the insolvency or bankruptcy of the employer.
20
Note:
Sections 121, 122 and 123 describe situations in which the employee
21
does not have this entitlement.
22
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Notice of termination and redundancy pay Division 11
Section 120
Fair Work Bill 2008 No. , 2008 121
Amount of redundancy pay
1
(2) The amount of the redundancy pay equals the total amount payable
2
to the employee for the redundancy pay period worked out using
3
the following table at the employee's base rate of pay for his or her
4
ordinary hours of work:
5
6
Redundancy pay period
Employee's period of continuous service
with the employer on termination
Redundancy
pay period
1
At least 1 year but less than 2 years
4 weeks
2
At least 2 years but less than 3 years
6 weeks
3
At least 3 years but less than 4 years
7 weeks
4
At least 4 years but less than 5 years
8 weeks
5
At least 5 years but less than 6 years
10 weeks
6
At least 6 years but less than 7 years
11 weeks
7
At least 7 years but less than 8 years
13 weeks
8
At least 8 years but less than 9 years
14 weeks
9
At least 9 years but less than 10 years
16 weeks
10 At least 10 years
12 weeks
120 Variation of redundancy pay for other employment or
7
incapacity to pay
8
(1) This section applies if:
9
(a) an employee is entitled to be paid an amount of redundancy
10
pay by the employer because of section 119; and
11
(b) the employer:
12
(i) obtains other acceptable employment for the employee;
13
or
14
(ii) cannot pay the amount.
15
(2) On application by the employer, FWA may determine that the
16
amount of redundancy pay is reduced to a specified amount (which
17
may be nil) that FWA considers appropriate.
18
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 11 Notice of termination and redundancy pay
Section 121
122 Fair Work Bill 2008 No. , 2008
(3) The amount of redundancy pay to which the employee is entitled
1
under section 119 is the reduced amount specified in the
2
determination.
3
121 Exclusions from obligation to pay re dundancy pay
4
Section 119 does not apply to the termination of an employee's
5
employment if, immediately before the time of the termination, or
6
at the time when the person was given notice of the termination as
7
described in subsection 117(1) (whichever happened first):
8
(a) the employee's period of continuous service with the
9
employer is less than 12 months; or
10
(b) the employer is a small business employer.
11
122 Transfer of employment situations that affect the obligation to
12
pay redundancy pay
13
Transfer of employment situation in which employer may decide
14
not to recognise employee's service with first employer
15
(1) Subsection 22(5) does not apply (for the purpose of this
16
Subdivision) to a transfer of employment between non-associated
17
entities in relation to an employee if the second employer decides
18
not to recognise the employee's service with the first employer (for
19
the purpose of this Subdivision).
20
Employee is not entitled to redundancy pay if service with first
21
employer counts as service with second employer
22
(2) If subsection 22(5) applies (for the purpose of this Subdivision) to
23
a transfer of employment in relation to an employee, the employee
24
is not entitled to redundancy pay under section 119 in relation to
25
the termination of his or her employment with the first employer.
26
Note:
Subsection 22(5) provides that, generally, if there is a transfer of
27
employment, service with the first employer counts as service with the
28
second employer.
29
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Notice of termination and redundancy pay Division 11
Section 123
Fair Work Bill 2008 No. , 2008 123
Employee not entitled to redundancy pay if refuses employment in
1
certain circumstances
2
(3) An employee is not entitled to redundancy pay under section 119
3
in relation to the termination of his or her employment with an
4
employer (the first employer) if:
5
(a) the employee rejects an offer of employment made by
6
another employer (the second employer) that:
7
(i) is on terms and conditions substantially similar to, and,
8
considered on an overall basis, no less favourable than,
9
the employee's terms and conditions of employment
10
with the first employer immediately before the
11
termination; and
12
(ii) recognises the employee's service with the first
13
employer, for the purpose of this Subdivision; and
14
(b) had the employee accepted the offer, there would have been a
15
transfer of employment in relation to the employee.
16
(4) If FWA is satisfied that subsection (3) operates unfairly to the
17
employee, FWA may order the first employer to pay the employee
18
a specified amount of redundancy pay (not exceeding the amount
19
that would be payable but for subsection (3)) that FWA considers
20
appropriate. The first employer must pay the employee that amount
21
of redundancy pay.
22
Subdivision C--Limits on scope of this Division
23
123 Limits on scope of this Division
24
Employees not covered by this Division
25
(1) This Division does not apply to any of the following employees:
26
(a) an employee employed for a specified period of time, for a
27
specified task, or for the duration of a specified season;
28
(b) an employee whose employment is terminated because of
29
serious misconduct;
30
(c) a casual employee;
31
(d) an employee (other than an apprentice) to whom a training
32
arrangement applies and whose employment is for a specified
33
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 11 Notice of termination and redundancy pay
Section 123
124 Fair Work Bill 2008 No. , 2008
period of time or is, for any reason, limited to the duration of
1
the training arrangement;
2
(e) an employee prescribed by the regulations as an employee to
3
whom this Division does not apply.
4
(2) Paragraph (1)(a) does not prevent this Division from applying to an
5
employee if a substantial reason for employing the employee as
6
described in that paragraph was to avoid the application of this
7
Division.
8
Other employees not covered by notice of termination provisions
9
(3) Subdivision A does not apply to:
10
(a) an employee who has not completed at least the following
11
period of continuous service with his or her employer
12
immediately before the time of the termination, or at the time
13
when the person was given notice of the termination as
14
described in subsection 117(1) (whichever happened first):
15
(i) if the employer is not a small business employer at that
16
time--6 months of service;
17
(ii) if the employer is a small business employer at that
18
time--12 months of service;
19
(b) a daily hire employee working in the building and
20
construction industry (including working in connection with
21
the erection, repair, renovation, maintenance, ornamentation
22
or demolition of buildings or structures); or
23
(c) a daily hire employee working in the meat industry in
24
connection with the slaughter of livestock; or
25
(d) a weekly hire employee working in connection with the meat
26
industry and whose termination of employment is determined
27
solely by seasonal factors; or
28
(e) an employee prescribed by the regulations as an employee to
29
whom that Subdivision does not apply.
30
Other employees not covered by redundancy pay provisions
31
(4) Subdivision B does not apply to:
32
(a) an employee who is an apprentice; or
33
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Notice of termination and redundancy pay Division 11
Section 123
Fair Work Bill 2008 No. , 2008 125
(b) an employee to whom an industry-specific redundancy
1
scheme in a modern award applies; or
2
(c) an employee to whom a redundancy scheme in an enterprise
3
agreement applies if:
4
(i) the scheme is an industry-specific redundancy scheme
5
that is incorporated by reference (and as in force from
6
time to time) into the enterprise agreement from a
7
modern award that is in operation; and
8
(ii) the employee is covered by the industry-specific
9
redundancy scheme in the modern award; or
10
(d) an employee prescribed by the regulations as an employee to
11
whom that Subdivision does not apply.
12
13
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 12 Fair Work Information Statement
Section 124
126 Fair Work Bill 2008 No. , 2008
1
Division 12--Fair Work Information Statement
2
124 FWA to determine and publish Fair Work Information
3
Statement
4
(1) FWA must determine a Fair Work Information Statement. FWA
5
must publish the Statement in the Gazette.
6
Note:
If FWA changes the Statement, it must publish the new version of the
7
Statement in the Gazette.
8
(2) The Statement must contain information about the following:
9
(a) the National Employment Standards;
10
(b) modern awards;
11
(c) agreement-making under this Act;
12
(d) the right to freedom of association;
13
(e) the role of FWA and the Fair Work Ombudsman.
14
(3) The regulations may prescribe other matters relating to the content
15
or form of the Statement, or the manner in which employers may
16
give the Statement to employees.
17
125 Giving ne w employees the Fair Work Information Statement
18
(1) An employer must give each employee the Fair Work Information
19
Statement before, or as soon as practicable after, the employee
20
starts employment.
21
(2) Subsection (1) does not require the employer to give the employee
22
the Statement more than once in any 12 months.
23
Note:
This is relevant if the employer employs the employee more than once
24
in the 12 months.
25
26
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Miscellaneous Division 13
Section 126
Fair Work Bill 2008 No. , 2008 127
1
Division 13--Miscellaneous
2
126 Modern awards and enterprise agreements may provide for
3
school-based apprentices and trainees to be paid loadings
4
in lieu
5
A modern award or enterprise agreement may provide for
6
school-based apprentices or school-based trainees to be paid
7
loadings in lieu of any of the following:
8
(a) paid annual leave;
9
(b) paid personal/carer's leave;
10
(c) paid absence under Division 10 (which deals with public
11
holidays).
12
Note:
Section 199 affects whether FWA may approve an enterprise agreement
13
covering an employee who is a school-based apprentice or school-based
14
trainee, if the employee is covered by a modern award that is in
15
operation and provides for the employee to be paid loadings in lieu of
16
paid annual leave, paid personal/carer's leave or paid absence under
17
Division 10.
18
127 Regulations about what modern awards and enterprise
19
agreements can do
20
The regulations may:
21
(a) permit modern awards or enterprise agreements or both to
22
include terms that would or might otherwise be contrary to
23
this Part or section 55 (which deals with the interaction
24
between the National Employment Standards and a modern
25
award or enterprise agreement); or
26
(b) prohibit modern awards or enterprise agreements or both
27
from including terms that would or might otherwise be
28
permitted by a provision of this Part or section 55.
29
128 Relationship between National Employme nt Standards and
30
agreements etc. permitted by this Part for
31
award/agreement free employees
32
The National Employment Standards have effect subject to:
33
Chapter 2 Terms and conditions of employ ment
Part 2-2 The National Employ ment Standards
Division 13 Miscellaneous
Section 129
128 Fair Work Bill 2008 No. , 2008
(a) an agreement between an employer and an award/agreement
1
free employee or a requirement made by an employer of an
2
award/agreement free employee, that is expressly permitted
3
by a provision of this Part; or
4
(b) an agreement between an employer and an award/agreement
5
free employee that is expressly permitted by regulations
6
made for the purpose of section 129.
7
Note 1:
In determining what matters are permitted to be agreed or required
8
under paragraph (a), any regulations made for the purpose of
9
section 129 that expressly prohibit certain agreements or requirements
10
must be taken into account.
11
Note 2:
See also the note to section 64 (which deals with the effect of
12
averaging arrangements).
13
129 Regulations about what can be agreed to etc. in relation to
14
award/agreement free employees
15
The regulations may:
16
(a) permit employers, and award/agreement free employees, to
17
agree on matters that would or might otherwise be contrary to
18
this Part; or
19
(b) prohibit employers and award/agreement free employees
20
from agreeing on matters, or prohibit employers from making
21
requirements of such employees, that would or might
22
otherwise be permitted by a provision of this Part.
23
130 Restriction on taking or accruing leave or absence while
24
receiving workers' compensation
25
(1) An employee is not entitled to take or accrue any leave or absence
26
(whether paid or unpaid) under this Part during a period (a
27
compensation period) when the employee is absent from work
28
because of a personal illness, or a personal injury, for which the
29
employee is receiving compensation payable under a law (a
30
compensation law) of the Commonwealth, a State or a Territory
31
that is about workers' compensation.
32
(2) Subsection (1) does not prevent an employee from taking or
33
accruing leave during a compensation period if the taking or
34
accruing of the leave is permitted by a compensation law.
35
Terms and conditions of employ ment Chapter 2
The National Employ ment Standards Part 2 -2
Miscellaneous Division 13
Section 131
Fair Work Bill 2008 No. , 2008 129
(3) Subsection (1) does not prevent an employee from taking unpaid
1
parental leave during a compensation period.
2
131 Relationship with other Commonwealth laws
3
This Part establishes minimum standards and so is intended to
4
supplement, and not to override, entitlements under other laws of
5
the Commonwealth.
6
7
Chapter 2 Terms and conditions of employ ment
Part 2-3 Modern awards
Division 1 Introduction
Section 132
130 Fair Work Bill 2008 No. , 2008
1
Part 2-3--Modern awards
2
Division 1--Introduction
3
132 Guide to this Part
4
This Part provides for FWA to make, vary and revoke modern
5
awards. Modern awards may set minimum terms and conditions for
6
national system employees in particular industries or occupations.
7
Modern awards can have terms that are ancillary or supplementary
8
to the National Employment Standards (see Part 2-1).
9
Division 2 provides for the modern awards objective. This requires
10
FWA to ensure that modern awards, together with the National
11
Employment Standards, provide a fair and relevant minimum
12
safety net of terms and conditions, taking into account certain
13
social and economic factors. Division 2 also contains special
14
provisions about modern award minimum wages.
15
Division 3 deals with the terms of modern awards.
16
Division 4 provides for FWA to conduct 4 yearly reviews of
17
modern awards.
18
Division 5 provides for FWA to exercise modern award powers
19
outside the system of 4 yearly reviews in certain circumstances.
20
Division 6 contains some general provisions relating to modern
21
award powers.
22
The obligation to comply with a modern award is in section 45 (in
23
Part 2-1).
24
In relation to minimum wages in modern awards, FWA has powers
25
both under this Part and under Part 2-6 (which deals with minimum
26
wages). The following is a summary of FWA's powers under the 2
27
Parts:
28
Terms and conditions of employ ment Chapter 2
Modern awards Part 2-3
Introduction Division 1
Section 133
Fair Work Bill 2008 No. , 2008 131
(a) the initial making of a modern award setting modern award
1
minimum wages can only occur under this Part;
2
(b) the main power to vary modern award minimum wages is in
3
annual wage reviews under Part 2-6;
4
(c) modern award minimum wages can also be varied under this
5
Part, but only for work value reasons or in other limited
6
circumstances;
7
(d) modern award minimum wages can be set (otherwise than in
8
the initial making of a modern award) or revoked either under
9
this Part or in annual wage reviews under Part 2-6.
10
133 Meanings of employee and employer
11
In this Part, employee means a national system employee, and
12
employer means a national system employer.
13
14
Chapter 2 Terms and conditions of employ ment
Part 2-3 Modern awards
Division 2 Overarch ing provisions
Section 134
132 Fair Work Bill 2008 No. , 2008
1
Division 2--Overarching provisions
2
134 The modern awards objective
3
What is the modern awards objective?
4
(1) FWA must ensure that modern awards, together with the National
5
Employment Standards, provide a fair and relevant minimum
6
safety net of terms and conditions, taking into account:
7
(a) relative living standards and the needs of the low paid; and
8
(b) the need to encourage collective bargaining; and
9
(c) the need to promote social inclusion through increased
10
workforce participation; and
11
(d) the need to promote flexible modern work practices and the
12
efficient and productive performance of work; and
13
(e) the principle of equal remuneration for work of equal or
14
comparable value; and
15
(f) the likely impact of any exercise of modern award powers on
16
business, including on productivity, employment costs and
17
the regulatory burden; and
18
(g) the need to ensure a simple, easy to understand, stable and
19
sustainable modern award system for Australia that avoids
20
unnecessary overlap of modern awards; and
21
(h) the likely impact of any exercise of modern award powers on
22
employment growth, inflation and the sustainability,
23
performance and competitiveness of the national economy.
24
This is the modern awards objective.
25
When does the modern awards objective apply?
26
(2) The modern awards objective applies to the performance or
27
exercise of FWA's modern award powers, which are:
28
(a) FWA's functions or powers under this Part; and
29
(b) FWA's functions or powers under Part 2-6, so far as they
30
relate to modern award minimum wages.
31
Note:
FWA must also take into account the objects of this Act and any other
32
applicable provisions. For example, if FWA is setting, varying or
33
Terms and conditions of employ ment Chapter 2
Modern awards Part 2-3
Overarching provisions Division 2
Section 135
Fair Work Bill 2008 No. , 2008 133
revoking modern award minimum wages, the minimum wages
1
objective also applies (see section 284).
2
135 Special provisions relating to modern award minimum wages
3
(1) Modern award minimum wages cannot be varied under this Part
4
except as follows:
5
(a) modern award minimum wages can be varied if FWA is
6
satisfied that the variation is justified by work value reasons
7
(see subsections 156(3) and 157(2));
8
(b) modern award minimum wages can be varied under
9
section 160 (which deals with variation to remove
10
ambiguities or correct errors) or section 161 (which deals
11
with variation on referral by HREOC).
12
Note 1:
The main power to vary modern award minimum wages is in annual
13
wage reviews under Part 2-6. Modern award minimum wages can also
14
be set or revoked in annual wage reviews.
15
Note 2:
For the meanings of modern award minimum wages, and setting and
16
varying such wages, see section 284.
17
(2) In exercising its powers under this Part to set, vary or revoke
18
modern award minimum wages, FWA must take into account the
19
rate of the national minimum wage as currently set in a national
20
minimum wage order.
21
22
Chapter 2 Terms and conditions of employ ment
Part 2-3 Modern awards
Division 3 Terms of modern awards
Section 136
134 Fair Work Bill 2008 No. , 2008
1
Division 3--Terms of modern awards
2
Subdivision A--Preliminary
3
136 What can be included in modern awards
4
Terms that may or must be included
5
(1) A modern award must only include terms that are permitted or
6
required by:
7
(a) Subdivision B (which deals with terms that may be included
8
in modern awards); or
9
(b) Subdivision C (which deals with terms that must be included
10
in modern awards); or
11
(c) section 55 (which deals with interaction between the National
12
Employment Standards and a modern award or enterprise
13
agreement); or
14
(d) Part 2-2 (which deals with the National Employment
15
Standards).
16
Note 1:
Subsection 55(4) permits inclusion of terms that are ancillary or
17
incidental to, or that supplement, the National Employment Standards.
18
Note 2:
Part 2-2 includes a number of provisions permitting inclusion of terms
19
about particular matters.
20
Terms that must not be included
21
(2) A modern award must not include terms that contravene:
22
(a) Subdivision D (which deals with terms that must not be
23
included in modern awards); or
24
(b) section 55 (which deals with the interaction between the
25
National Employment Standards and a modern award or
26
enterprise agreement).
27
Note:
The provisions referred to in subsection (2) limit the terms that can be
28
included in modern awards under the provisions referred to in
29
subsection (1).
30
Terms and conditions of employ ment Chapter 2
Modern awards Part 2-3
Terms of modern awards Division 3
Section 137
Fair Work Bill 2008 No. , 2008 135
137 Terms that contrave ne section 136 have no effect
1
A term of a modern award has no effect to the extent that it
2
contravenes section 136.
3
138 Achieving the modern awards objective
4
A modern award may include terms that it is permitted to include,
5
and must include terms that it is required to include, only to the
6
extent necessary to achieve the modern awards objective and (to
7
the extent applicable) the minimum wages objective.
8
Subdivision B--Terms that may be included in modern awards
9
139 Terms that may be included in modern awards--general
10
(1) A modern award may include terms about any of the following
11
matters:
12
(a) minimum wages (including wage rates for junior employees,
13
employees with a disability and employees to whom training
14
arrangements apply), and:
15
(i) skill-based classifications and career structures; and
16
(ii) incentive-based payments, piece rates and bonuses;
17
(b) type of employment, such as full-time employment, casual
18
employment, regular part-time employment and shift work,
19
and the facilitation of flexible working arrangements,
20
particularly for employees with family responsibilities;
21
(c) arrangements for when work is performed, including hours of
22
work, rostering, notice periods, rest breaks and variations to
23
working hours;
24
(d) overtime rates;
25
(e) penalty rates, including for any of the following:
26
(i) employees working unsocial, irregular or unpredictable
27
hours;
28
(ii) employees working on weekends or public holidays;
29
(iii) shift workers;
30
(f) annualised wage arrangements that:
31
Chapter 2 Terms and conditions of employ ment
Part 2-3 Modern awards
Division 3 Terms of modern awards
Section 140
136 Fair Work Bill 2008 No. , 2008
(i) have regard to the patterns of work in an occupation,
1
industry or enterprise; and
2
(ii) provide an alternative to the separate payment of wages
3
and other monetary entitlements; and
4
(iii) include appropriate safeguards to ensure that individual
5
employees are not disadvantaged;
6
(g) allowances, including for any of the following:
7
(i) expenses incurred in the course of employment;
8
(ii) responsibilities or skills that are not taken into account
9
in rates of pay;
10
(iii) disabilities associated with the performance of particular
11
tasks or work in particular conditions or locations;
12
(h) leave, leave loadings and arrangements for taking leave;
13
(i) superannuation;
14
(j) procedures for consultation, representation and dispute
15
settlement.
16
(2) Any allowance included in a modern award must be separately and
17
clearly identified in the award.
18
140 Outworker terms
19
(1) A modern award may include either or both of the following:
20
(a) terms relating to the conditions under which an employer
21
may employ employees who are outworkers;
22
(b) terms relating to the conditions under which an outworker
23
entity may arrange for work to be performed for the entity
24
(either directly or indirectly), if the work is, or is reasonably
25
likely to be, performed by outworkers.
26
(2) Without limiting subsection (1), terms referred to in that subsection
27
may include terms relating to the pay or conditions of outworkers.
28
(3) The following terms of a modern award are outworker terms:
29
(a) terms referred to in subsection (1);
30
(b) terms that are incidental to terms referred to in subsection (1),
31
included in the modern award under subsection 142(1);
32
Terms and conditions of employ ment Chapter 2
Modern awards Part 2-3
Terms of modern awards Division 3
Section 141
Fair Work Bill 2008 No. , 2008 137
(c) machinery terms in relation to terms referred to in
1
subsection (1), included in the modern award under
2
subsection 142(2).
3
141 Industry-specific redundancy schemes
4
When can a modern award include an industry-specific
5
redundancy scheme?
6
(1) A modern award may include an industry-specific redundancy
7
scheme if the scheme was included in the award:
8
(a) in the award modernisation process; or
9
(b) in accordance with subsection (2).
10
Note:
An employee to whom an industry-specific redundancy scheme in a
11
modern award applies is not entitled to the redundancy entitlements in
12
Subdivision B of Division 11 of Part 2-2.
13
Coverage of industry-specific redundancy schemes must not be
14
extended
15
(2) If:
16
(a) a modern award includes an industry-specific redundancy
17
scheme; and
18
(b) FWA is making or varying another modern award under
19
Division 4 or 5 so that it (rather than the modern award
20
referred to in paragraph (a)) will cover some or all of the
21
classes of employees who are covered by the scheme;
22
FWA may include the scheme in that other modern award.
23
However, FWA must not extend the coverage of the scheme to
24
classes of employees that it did not previously cover.
25
Varying industry-specific redundancy schemes
26
(3) FWA may only vary an industry-specific redundancy scheme in a
27
modern award under Division 4 or 5:
28
(a) by varying the amount of any redundancy payment in the
29
scheme; or
30
(b) in accordance with a provision of Subdivision B of
31
Division 5 (which deals with varying modern awards in some
32
limited situations).
33
Chapter 2 Terms and conditions of employ ment
Part 2-3 Modern awards
Division 3 Terms of modern awards
Section 142
138 Fair Work Bill 2008 No. , 2008
(4) In varying an industry-specific redundancy scheme as referred to in
1
subsection (3), FWA:
2
(a) must not extend the coverage of the scheme to classes of
3
employees that it did not previously cover; and
4
(b) must retain the industry-specific character of the scheme.
5
Omitting industry-specific redundancy schemes
6
(5) FWA may vary a modern award under Division 4 or 5 by omitting
7
an industry-specific redundancy scheme from the award.
8
142 Incidental and machinery te rms
9
Incidental terms
10
(1) A modern award may include terms that are:
11
(a) incidental to a term that is permitted or required to be in the
12
modern award; and
13
(b) essential for the purpose of making a particular term operate
14
in a practical way.
15
Machinery terms
16
(2) A modern award may include machinery terms, including formal
17
matters (such as a title, date or table of contents).
18
Subdivision C--Terms that must be included in modern
19
awards
20
143 Coverage terms
21
Coverage terms must be included
22
(1) A modern award must include terms (coverage terms) setting out
23
the employers, employees, organisations and outworker entities
24
that are covered by the award, in accordance with this section.
25
Employers and employees
26
(2) A modern award must be expressed to cover:
27
Terms and conditions of employ ment Chapter 2
Modern awards Part 2-3
Terms of modern awards Division 3
Section 143
Fair Work Bill 2008 No. , 2008 139
(a) specified employers; and
1
(b) specified employees of employers covered by the modern
2
award.
3
Organisations
4
(3) A modern award may be expressed to cover one or more specified
5
organisations, in relation to all or specified employees or
6
employers that are covered by the award.
7
Outworker entities
8
(4) A modern award may be expressed to cover, but only in relation to
9
outworker terms included in the award, specified outworker
10
entities.
11
How coverage is expressed
12
(5) For the purposes of subsections (2) to (4):
13
(a) employers may be specified by name or by inclusion in a
14
specified class or specified classes; and
15
(b) employees must be specified by inclusion in a specified class
16
or specified classes; and
17
(c) organisations must be specified by name; and
18
(d) outworker entities may be specified by name or by inclusion
19
in a specified class or specified classes.
20
(6) Without limiting the way in which a class may be described for the
21
purposes of subsection (5), the class may be described by reference
22
to a particular industry or part of an industry, or particular kinds of
23
work.
24
Employees not traditionally covered by awards etc.
25
(7) A modern award must not be expressed to cover classes of
26
employees:
27
(a) who, because of the nature or seniority of their role, have
28
traditionally not been covered by awards (whether made
29
under laws of the Commonwealth or the States); or
30
Chapter 2 Terms and conditions of employ ment
Part 2-3 Modern awards
Division 3 Terms of modern awards
Section 144
140 Fair Work Bill 2008 No. , 2008
(b) who perform work that is not of a similar nature to work that
1
has traditionally been regulated by such awards.
2
Note:
For example, in some industries, managerial employees have
3
traditionally not been covered by awards.
4
144 Flexibility terms
5
Flexibility terms must be included
6
(1) A modern award must include a term (a flexibility term) enabling
7
an employee and his or her employer to agree on an arrangement
8
(an individual flexibility arrangement) varying the effect of the
9
award in relation to the employee and the employer, in order to
10
meet the genuine needs of the employee and employer.
11
Effect of individual flexibility arrangements
12
(2) If an employee and employer agree to an individual flexibility
13
arrangement under a flexibility term in a modern award:
14
(a) the modern award has effect in relation to the employee and
15
the employer as if it were varied by the flexibility
16
arrangement; and
17
(b) the arrangement is taken, for the purposes of this Act, to be a
18
term of the modern award.
19
(3) To avoid doubt, the individual flexibility arrangement does not
20
change the effect the modern award has in relation to the employer
21
and any other employee.
22
Requirements for flexibility terms
23
(4) The flexibility term must:
24
(a) identify the terms of the modern award the effect of which
25
may be varied by an individual flexibility arrangement; and
26
(b) require that the employee and the employer genuinely agree
27
to any individual flexibility arrangement; and
28
(c) require the employer to ensure that any individual flexibility
29
arrangement must result in the employee being better off
30
overall than the employee would have been if no individual
31
flexibility arrangement were agreed to; and
32
Terms and conditions of employ ment Chapter 2
Modern awards Part 2-3
Terms of modern awards Division 3
Section 145
Fair Work Bill 2008 No. , 2008 141
(d) set out how any flexibility arrangement may be terminated by
1
the employee or the employer; and
2
(e) require the employer to ensure that any individual flexibility
3
arrangement must be in writing and signed:
4
(i) in all cases--by the employee and the employer; and
5
(ii) if the employee is under 18--by a parent or guardian of
6
the employee; and
7
(f) require the employer to ensure that a copy of any individual
8
flexibility arrangement must be given to the employee.
9
(5) Except as required by subparagraph (4)(e)(ii), the flexibility term
10
must not require that any individual flexibility arrangement agreed
11
to by an employer and employee under the term must be approved,
12
or consented to, by another person.
13
145 Effect of individual flexibility arrangement that does not meet
14
require ments of flexibility term
15
Application of this section
16
(1) This section applies if:
17
(a) an employee and employer agree to an arrangement that
18
purports to be an individual flexibility arrangement under a
19
flexibility term in a modern award; and
20
(b) the arrangement does not meet a requirement set out in
21
section 144.
22
Note:
A failure to meet such a requirement may be a contravention of a
23
provision of Part 3-1 (which deals with general protections).
24
Arrangement has effect as if it were an individual flexibility
25
arrangement
26
(2) The arrangement has effect as if it were an individual flexibility
27
arrangement.
28
Employer contravenes flexibility term in specified circumstances
29
(3) If subsection 144(4) requires the employer to ensure that the
30
arrangement meets the requirement, the employer contravenes the
31
flexibility term of the award.
32
Chapter 2 Terms and conditions of employ ment
Part 2-3 Modern awards
Division 3 Terms of modern awards
Section 146
142 Fair Work Bill 2008 No. , 2008
Flexibility arrangement may be terminated by agreement or notice
1
(4) The flexibility term is taken to provide (in addition to any other
2
means of termination of the arrangement that the term provides)
3
that the arrangement can be terminated:
4
(a) by either the employee, or the employer, giving written
5
notice of not more than 28 days; or
6
(b) by the employee and the employer at any time if they agree,
7
in writing, to the termination.
8
146 Terms about settling disputes
9
Without limiting paragraph 139(1)(j), a modern award must
10
include a term that provides a procedure for settling disputes:
11
(a) about any matters arising under the award; and
12
(b) in relation to the National Employment Standards.
13
Note:
FWA or a person must not settle a dispute about whether an employer
14
had reasonable business grounds under subsection 65(5) or 76(4) (see
15
subsections 739(2) and 740(2)).
16
147 Ordinary hours of work
17
A modern award must include terms specifying, or providing for
18
the determination of, the ordinary hours of work for each
19
classification of employee covered by the award and each type of
20
employment permitted by the award.
21
Note:
An employee's ordinary hours of work are significant in determining
22
the employee's entitlements under the National Employment
23
Standards.
24
148 Base and full rates of pay for pieceworkers
25
If a modern award defines or describes employees covered by the
26
award as pieceworkers, the award must include terms specifying,
27
or providing for the determination of, base and full rates of pay for
28
those employees for the purposes of the National Employment
29
Standards.
30
Note:
An employee's base and full rates of pay are significant in
31
determining the employee's entitlements under the National
32
Employment Standards.
33
Terms and conditions of employ ment Chapter 2
Modern awards Part 2-3
Terms of modern awards Division 3
Section 149
Fair Work Bill 2008 No. , 2008 143
149 Automatic variation of allowances
1
If a modern award includes allowances that FWA considers are of
2
a kind that should be varied when wage rates in the award are
3
varied, the award must include terms providing for the automatic
4
variation of those allowances when wage rates in the award are
5
varied.
6
Subdivision D--Terms that must not be included in modern
7
awards
8
150 Objectionable terms
9
A modern award must not include an objectionable term.
10
151 Terms about payments and deductions for benefit of employer
11
etc.
12
A modern award must not include a term that has no effect because
13
of subsection 326(1) (which deals with unreasonable payments and
14
deductions for the benefit of an employer) or subsection 326(3)
15
(which deals with unreasonable requirements to spend an amount).
16
152 Terms about right of entry
17
A modern award must not include terms that require or authorise
18
an official of an organisation to enter premises:
19
(a) to hold discussions with, or interview, an employee; or
20
(b) to inspect any work, process or object.
21
153 Terms that are discriminatory
22
Discriminatory terms must not be included
23
(1) A modern award must not include terms that discriminate against
24
an employee because of, or for reasons including, the employee's
25
race, colour, sex, sexual preference, age, physical or mental
26
disability, marital status, family or carer's responsibilities,
27
pregnancy, religion, political opinion, national extraction or social
28
origin.
29
Chapter 2 Terms and conditions of employ ment
Part 2-3 Modern awards
Division 3 Terms of modern awards
Section 154
144 Fair Work Bill 2008 No. , 2008
Certain terms are not discriminatory
1
(2) A term of a modern award does not discriminate against an
2
employee:
3
(a) if the reason for the discrimination is the inherent
4
requirements of the particular position held by the employee;
5
or
6
(b) merely because it discriminates, in relation to employment of
7
the employee as a member of the staff of an institution that is
8
conducted in accordance with the doctrines, tenets, beliefs or
9
teachings of a particular religion or creed:
10
(i) in good faith; and
11
(ii) to avoid injury to the religious susceptibilities of
12
adherents of that religion or creed.
13
(3) A term of a modern award does not discriminate against an
14
employee merely because it provides for minimum wages for:
15
(a) all junior employees, or a class of junior employees; or
16
(b) all employees with a disability, or a class of employees with
17
a disability; or
18
(c) all employees to whom training arrangements apply, or a
19
class of employees to whom training arrangements apply.
20
154 Terms that contain State-based differences
21
General rule--State-based difference terms must not be included
22
(1) A modern award must not include terms and conditions of
23
employment (State-based difference terms) that:
24
(a) are determined by reference to State or Territory boundaries;
25
or
26
(b) are not capable of having effect in each State and Territory.
27
When State-based difference terms may be included
28
(2) However, a modern award may include State-based difference
29
terms if the terms were included in the award:
30
(a) in the award modernisation process; or
31
(b) in accordance with subsection (3);
32
Terms and conditions of employ ment Chapter 2
Modern awards Part 2-3
Terms of modern awards Division 3
Section 155
Fair Work Bill 2008 No. , 2008 145
but only for up to 5 years starting on the day on which the first
1
modern award that included those terms came into operation.
2
(3) If:
3
(a) a modern award includes State-based difference terms as
4
permitted under subsection (2); and
5
(b) FWA is making or varying another modern award so that it
6
(rather than the modern award referred to in paragraph (a))
7
will cover some or all of the classes of employees who are
8
covered by those terms;
9
FWA may include those terms in that other modern award.
10
However, FWA must not extend the coverage of those terms to
11
classes of employees that they did not previously cover.
12
155 Terms dealing with long service leave
13
A modern award must not include terms dealing with long service
14
leave.
15
16
Chapter 2 Terms and conditions of employ ment
Part 2-3 Modern awards
Division 4 4 yearly rev iews of modern awards
Section 156
146 Fair Work Bill 2008 No. , 2008
1
Division 4--4 yearly reviews of modern awards
2
156 4 yearly reviews of modern awards to be conducted
3
Timing of 4 yearly reviews
4
(1) FWA must conduct a 4 yearly review of modern awards starting as
5
soon as practicable after each 4th anniversary of the
6
commencement of this Part.
7
Note 1:
FWA must be constituted by a Full Bench to conduct 4 yearly reviews
8
of modern awards, and to make determinations and modern awards in
9
those reviews (see subsections 616(1), (2) and (3)).
10
Note 2:
The President may give directions about the conduct of 4 yearly
11
reviews of modern awards (see section 582).
12
What has to be done in a 4 yearly review?
13
(2) In a 4 yearly review of modern awards, FWA:
14
(a) must review all modern awards; and
15
(b) may make:
16
(i) one or more determinations varying modern awards;
17
and
18
(ii) one or more modern awards; and
19
(iii) one or more determinations revoking modern awards.
20
Note:
Special criteria apply to changing coverage of modern awards or
21
revoking modern awards (see sections 163 and 164).
22
Variation of modern award minimum wages must be justified by
23
work value reasons
24
(3) In a 4 yearly review of modern awards, FWA may make a
25
determination varying modern award minimum wages only if
26
FWA is satisfied that the variation of modern award minimum
27
wages is justified by work value reasons.
28
(4) Work value reasons are reasons justifying the amount that
29
employees should be paid for doing a particular kind of work,
30
being reasons related to any of the following:
31
Terms and conditions of employ ment Chapter 2
Modern awards Part 2-3
4 yearly reviews of modern awards Division 4
Section 156
Fair Work Bill 2008 No. , 2008 147
(a) the nature of the work;
1
(b) the level of skill or responsibility involved in doing the work;
2
(c) the conditions under which the work is done.
3
Each modern award to be reviewed in its own right
4
(5) A 4 yearly review of modern awards must be such that each
5
modern award is reviewed in its own right. However, this does not
6
prevent FWA from reviewing 2 or more modern awards at the
7
same time.
8
9
Chapter 2 Terms and conditions of employ ment
Part 2-3 Modern awards
Division 5 Exercising modern award powers outside 4 yearly reviews and annual wage
reviews
Section 157
148 Fair Work Bill 2008 No. , 2008
1
Division 5--Exercising modern award powers outside 4
2
yearly reviews and annual wage reviews
3
Subdivision A--Exercise of powers if necessary to achieve
4
modern awards objective
5
157 FWA may vary etc. modern awards if necessary to achieve
6
modern awards objective
7
(1) FWA may:
8
(a) make a determination varying a modern award, otherwise
9
than to vary modern award minimum wages; or
10
(b) make a modern award; or
11
(c) make a determination revoking a modern award;
12
if FWA is satisfied that making the determination or modern award
13
outside the system of 4 yearly reviews of modern awards is
14
necessary to achieve the modern awards objective.
15
Note 1:
FWA must be constituted by a Full Bench to make a modern award
16
(see subsection 616(1)).
17
Note 2:
Special criteria apply to changing coverage of modern awards or
18
revoking modern awards (see sections 163 and 164).
19
Note 3:
If FWA is setting modern award minimum wages, the minimum
20
wages objective also applies (see section 284).
21
(2) FWA may make a determination varying modern award minimum
22
wages if FWA is satisfied that:
23
(a) the variation of modern award minimum wages is justified by
24
work value reasons; and
25
(b) making the determination outside the system of annual wage
26
reviews and the system of 4 yearly reviews of modern awards
27
is necessary to achieve the modern awards objective.
28
Note:
As FWA is varying modern award minimum wages, the minimum
29
wages objective also applies (see section 284).
30
(3) FWA may make a determination or modern award under this
31
section:
32
(a) on its own initiative; or
33
Terms and conditions of employ ment Chapter 2
Modern awards Part 2-3
Exercising modern award powers outside 4 yearly rev iews and annual wage reviews
Division 5
Section 158
Fair Work Bill 2008 No. , 2008 149
(b) on application under section 158.
1
158 Applications to vary, revoke or make modern award
2
(1) The following table sets out who may apply for the making of a
3
determination varying or revoking a modern award, or for the
4
making of a modern award, under section 157:
5
6
Who may make an application?
Item
Column 1
This kind of application ...
Column 2
may be made by ...
1
an application to vary, o mit o r
include terms (other than outworker
terms or coverage terms) in a
modern award
(a) an emp loyer, emp loyee 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 emp loyers or
emp loyees that are covered by
the modern award.
2
an application to vary, o mit o r
include outworker terms in a modern
award
(a) an emp loyer, emp loyee or
outworker entity that is or would
be covered by the outworker
terms; or
(b) an organisation that is entitled to
represent the industrial interests
of one or more outworkers to
whom the outworker terms relate
or would relate.
3
an application to vary or include
coverage terms in a modern award to
increase the range of emp loyers,
emp loyees or organisations that are
covered by the award
(a) an emp loyer, emp loyee or
organisation that would become
covered by the modern award; or
(b) an organisation that is entitled to
represent the industrial interests
of one or more emp loyers or
emp loyees 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
(a) an outworker entity that would
become covered by the
outworker terms; or
(b) an organisation that is entitled to
Chapter 2 Terms and conditions of employ ment
Part 2-3 Modern awards
Division 5 Exercising modern award powers outside 4 yearly reviews and annual wage
reviews
Section 158
150 Fair Work Bill 2008 No. , 2008
Who may make an application?
Item
Column 1
This kind of application ...
Column 2
may be made by ...
outworker terms
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 o mit
coverage terms in a modern award to
reduce the range of emp loyers,
emp loyees or organisations that are
covered by the award
(a) an emp loyer, emp loyee 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 emp loyers or
emp loyees that would stop being
covered by the modern award.
6
an application to vary or o mit
coverage terms in a modern award to
reduce the range of outworker
entities that are covered by
outworker terms
(a) an outworker entity that would
stop being covered by the
outworker terms; or
(b) an organisation that is entitled to
represent the industrial interests
of one or more outworkers who
would stop being outworkers to
whom the outworker terms
relate.
7
an application for the making of a
modern award
(a) an emp loyee 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 emp loyers or
emp loyees that would be covered
by the modern award.
8
an application to revoke a modern
award
(a) an emp loyer, emp loyee 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 emp loyers or
Terms and conditions of employ ment Chapter 2
Modern awards Part 2-3
Exercising modern award powers outside 4 yearly rev iews and annual wage reviews
Division 5
Section 159
Fair Work Bill 2008 No. , 2008 151
Who may make an application?
Item
Column 1
This kind of application ...
Column 2
may be made by ...
emp loyees that are covered by
the modern award.
(2) Subject to the requirements of the table about who can make what
1
kind of application, an applicant may make applications for 2 or
2
more related things at the same time.
3
Note:
For example, an applicant may apply for the making of a modern
4
award and for the related revocation of an existing modern award.
5
Subdivision B--Other situations
6
159 Variation of mode rn award to update or omit name of
7
employer, organisation or outworke r entity
8
(1) FWA may make a determination varying a modern award:
9
(a) to reflect a change in the name of an employer, organisation
10
or outworker entity; or
11
(b) to omit the name of an organisation, employer or outworker
12
entity from the modern award, if:
13
(i) the registration of the organisation has been cancelled
14
under the Workplace Relations Act 1996; or
15
(ii) the employer, organisation or outworker entity has
16
ceased to exist; or
17
(c) if the modern award is a named employer award and the
18
named employer is the old employer in a transfer of
19
business--to reflect the transfer of business to the new
20
employer.
21
(2) FWA may make a determination under this section:
22
(a) in any case--on its own initiative; or
23
(b) if paragraph (1)(a) or (b) applies--on application by the
24
employer, organisation or outworker entity referred to in that
25
paragraph; or
26
(c) if paragraph (1)(c) applies--on application by:
27
(i) the old employer or the new employer; or
28
Chapter 2 Terms and conditions of employ ment
Part 2-3 Modern awards
Division 5 Exercising modern award powers outside 4 yearly reviews and annual wage
reviews
Section 160
152 Fair Work Bill 2008 No. , 2008
(ii) a transferring employee who was covered by the
1
modern award as an employee of the old employer; or
2
(iii) an organisation that is entitled to represent the industrial
3
interests of the old employer, the new employer, or one
4
or more employees referred to in subparagraph (ii).
5
160 Variation of mode rn award to re move ambiguity or unce rtainty
6
or correct error
7
(1) FWA may make a determination varying a modern award to
8
remove an ambiguity or uncertainty or to correct an error.
9
(2) FWA may make the determination:
10
(a) on its own initiative; or
11
(b) on application by an employer, employee, organisation or
12
outworker entity that is covered by the modern award.
13
161 Variation of mode rn award on referral by HREOC
14
(1) FWA must review a modern award if the award is referred to it
15
under section 46PW of the Human Rights and Equal Opportunity
16
Commission Act 1986 (which deals with discriminatory industrial
17
instruments).
18
(2) The Sex Discrimination Commissioner is entitled to make
19
submissions to FWA for consideration in the review.
20
(3) If FWA considers that the modern award reviewed requires a
21
person to do an act that would be unlawful under Part II of the Sex
22
Discrimination Act 1984 (but for the fact that the act would be
23
done in direct compliance with the modern award), FWA must
24
make a determination varying the modern award so that it no
25
longer requires the person to do an act that would be so unlawful.
26
Note:
Special criteria apply to changing coverage of modern awards (see
27
section 163).
28
29
Terms and conditions of employ ment Chapter 2
Modern awards Part 2-3
General provisions relating to modern award powers Division 6
Section 162
Fair Work Bill 2008 No. , 2008 153
1
Division 6--General provisions relating to modern award
2
powers
3
162 General
4
This Division contains some specific provisions relevant to the
5
exercise of modern award powers. For other provisions relevant to
6
the exercise of modern award powers, see the general provisions
7
about FWA's processes in Part 5-1.
8
Note:
Relevant provisions of Part 5-1 include the following:
9
(a)
section 582 (which deals with the President's power to give
10
directions);
11
(b)
section 590 (which deals with FWA's discretion to inform itself
12
as it considers appropriate, including by commissioning
13
research);
14
(c)
section 596 (which deals with being represented in a matter
15
before FWA);
16
(d)
section 601 (which deals with writing and publication
17
requirements).
18
163 Special criteria relating to changing coverage of modern awards
19
Special rule about reducing coverage
20
(1) FWA must not make a determination varying a modern award so
21
that certain employers or employees stop being covered by the
22
award unless FWA is satisfied that they will instead become
23
covered by another modern award (other than the miscellaneous
24
modern award) that is appropriate for them.
25
Special rule about making a modern award
26
(2) FWA must not make a modern award covering certain employers
27
or employees unless FWA has considered whether it should,
28
instead, make a determination varying an existing modern award to
29
cover them.
30
Chapter 2 Terms and conditions of employ ment
Part 2-3 Modern awards
Division 6 General provisions relating to modern award powers
Section 164
154 Fair Work Bill 2008 No. , 2008
Special rule about covering organisations
1
(3) FWA must not make a modern award, or make a determination
2
varying a modern award, so that an organisation becomes covered
3
by the award, unless the organisation is entitled to represent the
4
industrial interests of one or more employers or employees who are
5
or will be covered by the award.
6
The miscellaneous modern award
7
(4) The miscellaneous modern award is the modern award that is
8
expressed to cover employees who are not covered by any other
9
modern award.
10
164 Special criteria for revoking modern awards
11
FWA must not make a determination revoking a modern award
12
unless FWA is satisfied that:
13
(a) the award is obsolete or no longer capable of operating; or
14
(b) all the employees covered by the award are covered by a
15
different modern award (other than the miscellaneous modern
16
award) that is appropriate for them, or will be so covered
17
when the revocation comes into operation.
18
165 When variation determinations come into ope ration, other than
19
determinations setting, varying or revoking modern
20
award minimum wages
21
Determinations come into operation on specified day
22
(1) A determination under this Part that varies a modern award (other
23
than a determination that sets, varies or revokes modern award
24
minimum wages) comes into operation on the day specified in the
25
determination.
26
Note 1:
For when a modern award, or a revocation of a modern award, comes
27
into operation, see section 49.
28
Note:
For when a determination under this Part setting, varying or revoking
29
modern award minimum wages comes into operation, see section 166.
30
Terms and conditions of employ ment Chapter 2
Modern awards Part 2-3
General provisions relating to modern award powers Division 6
Section 166
Fair Work Bill 2008 No. , 2008 155
(2) The specified day must not be earlier than the day on which the
1
determination is made, unless:
2
(a) the determination is made under section 160 (which deals
3
with variation to remove ambiguities or correct errors); and
4
(b) FWA is satisfied that there are exceptional circumstances that
5
justify specifying an earlier day.
6
Determinations take effect from first full pay period
7
(3) The determination does not take effect in relation to a particular
8
employee until the start of the employee's first full pay period that
9
starts on or after the day the determination comes into operation.
10
166 When variation determinations setting, varying or revoking
11
modern award minimum wages come into operation
12
Determinations generally come into operation on 1 July
13
(1) A determination under this Part that sets, varies or revokes modern
14
award minimum wages comes into operation:
15
(a) on 1 July in the next financial year after it is made; or
16
(b) if it is made on 1 July in a financial year--on that day.
17
Note:
Modern award minimum wages can also be set, varied or revoked by
18
determinations made in annual wage reviews. For when those
19
determinations come into operation, see section 286.
20
FWA may specify another day of operation if appropriate
21
(2) However, if FWA specifies another day in the determination as the
22
day on which it comes into operation, the determination comes into
23
operation on that other day. FWA must not specify another day
24
unless it is satisfied that it is appropriate to do so.
25
(3) The specified day must not be earlier than the day on which the
26
determination is made, unless:
27
(a) the determination is made under section 160 (which deals
28
with variation to remove ambiguities or correct errors); and
29
(b) FWA is satisfied that there are exceptional circumstances that
30
justify specifying an earlier day.
31
Chapter 2 Terms and conditions of employ ment
Part 2-3 Modern awards
Division 6 General provisions relating to modern award powers
Section 167
156 Fair Work Bill 2008 No. , 2008
Determinations may take effect in stages
1
(4) FWA may specify in the determination that changes to modern
2
award minimum wages made by the determination take effect in
3
stages if FWA is satisfied that it is appropriate to do so.
4
Determinations take effect from first full pay period
5
(5) A change to modern award minimum wages made by the
6
determination does not take effect in relation to a particular
7
employee until the start of the employee's first full pay period that
8
starts on or after:
9
(a) unless paragraph (b) applies--the day the determination
10
comes into operation; or
11
(b) if the determination takes effect in stages under
12
subsection (4)--the day the change to modern award
13
minimum wages is specified to take effect.
14
167 Special rules relating to retrospective variations of awards
15
Application of this section
16
(1) This section applies if a determination varying a modern award has
17
a retrospective effect because it comes into operation under
18
subsection 165(2) or 166(3) on a day before the day on which the
19
determination is made.
20
No effect on past approval of enterprise agreement or variation
21
(2) If, before the determination was made, an enterprise agreement or a
22
variation of an enterprise agreement was approved by FWA, the
23
validity of the approval is not affected by the retrospective effect of
24
the determination.
25
No creation of liability to pay pecuniary penalty for past conduct
26
(3) If:
27
(a) a person engaged in conduct before the determination was
28
made; and
29
Terms and conditions of employ ment Chapter 2
Modern awards Part 2-3
General provisions relating to modern award powers Division 6
Section 168
Fair Work Bill 2008 No. , 2008 157
(b) but for the retrospective effect of the determination, the
1
conduct would not have contravened a term of the modern
2
award or an enterprise agreement;
3
a court must not order the person to pay a pecuniary penalty under
4
Division 2 of Part 4-1 in relation to the conduct, on the grounds
5
that the conduct contravened a term of the modern award or
6
enterprise agreement.
7
Note 1:
This subsection does not affect the powers of a court to make other
8
kinds of orders under Division 2 of Part 4-1.
9
Note 2:
A determination varying a modern award could result in a
10
contravention of a term of an enterprise agreement because of the
11
effect of subsection 206(2).
12
168 Varied mode rn award must be published
13
(1) If FWA makes a determination under this Part or Part 2-6 (which
14
deals with minimum wages) varying a modern award, FWA must
15
publish the award as varied as soon as practicable.
16
(2) The publication may be on FWA's website or by any other means
17
that FWA considers appropriate.
18
19
Chapter 2 Terms and conditions of employ ment
Part 2-4 Enterprise agreements
Division 1 Introduction
Section 169
158 Fair Work Bill 2008 No. , 2008
1
Part 2-4--Enterprise agreements
2
Division 1--Introduction
3
169 Guide to this Part
4
This Part is about enterprise agreements. An enterprise agreement
5
is made at the enterprise level and provides terms and conditions
6
for those national system employees to whom it applies. An
7
enterprise agreement can have terms that are ancillary or
8
supplementary to the National Employment Standards.
9
Division 2 deals with the making of enterprise agreements about
10
permitted matters. An enterprise agreement (including a
11
greenfields agreement) may be a single-enterprise agreement or a
12
multi-enterprise agreement.
13
Division 3 deals with the right of employees to be represented by a
14
bargaining representative during bargaining for a proposed
15
enterprise agreement. It also sets out the persons who are
16
bargaining representatives for such agreements.
17
Subdivision A of Division 4 deals with the approval of proposed
18
enterprise agreements by employees and sets out when an
19
enterprise agreement is made.
20
Subdivision B of Division 4 deals with the approval of enterprise
21
agreements by FWA. The remaining Subdivisions of the Division
22
deal with certain approval requirements, including in relation to
23
genuine agreement by employees and the better off overall test.
24
Division 5 deals with the mandatory terms of enterprise
25
agreements relating to individual flexibility arrangements and
26
consultation requirements.
27
Division 6 deals with the base rate of pay under an enterprise
28
agreement.
29
Terms and conditions of employ ment Chapter 2
Enterprise agreements Part 2-4
Introduction Division 1
Section 170
Fair Work Bill 2008 No. , 2008 159
Division 7 deals with the variation and termination of enterprise
1
agreements.
2
Division 8 provides for FWA to facilitate bargaining by making
3
bargaining orders, serious breach declarations, majority support
4
determinations and scope orders. It also permits bargaining
5
representatives to apply for FWA to deal with bargaining disputes.
6
Division 9 provides for the making of low-paid authorisations in
7
relation to proposed multi-enterprise agreements. The effect of
8
such an authorisation is that specified employers are subject to
9
certain rules that would not otherwise apply (for example,
10
bargaining orders that would not usually be available for
11
multi-enterprise agreements will be available). It also permits
12
FWA to assist the bargaining representatives for such agreements.
13
Division 10 deals with single interest employer authorisations. The
14
effect of such an authorisation is that the employers specified in the
15
authorisation are single interest employers in relation to a proposed
16
enterprise agreement.
17
Division 11 deals with other matters relating to enterprise
18
agreements.
19
170 Meanings of employee and employer
20
In this Part, employee means a national system employee, and
21
employer means a national system employer.
22
171 Objects of this Part
23
The objects of this Part are:
24
(a) to provide a simple, flexible and fair framework that enables
25
collective bargaining in good faith, particularly at the
26
enterprise level, for enterprise agreements that deliver
27
productivity benefits; and
28
(b) to enable FWA to facilitate good faith bargaining and the
29
making of enterprise agreements, including through:
30
(i) making bargaining orders; and
31
Chapter 2 Terms and conditions of employ ment
Part 2-4 Enterprise agreements
Division 1 Introduction
Section 171
160 Fair Work Bill 2008 No. , 2008
(ii) dealing with disputes where the bargaining
1
representatives request assistance; and
2
(iii) ensuring that applications to FWA for approval of
3
enterprise agreements are dealt with without delay.
4
5
Terms and conditions of employ ment Chapter 2
Enterprise agreements Part 2-4
Emp loyers and employees may make enterprise agreements Division 2
Section 172
Fair Work Bill 2008 No. , 2008 161
1
Division 2--Employers and employees may make
2
enterprise agreements
3
172 Making an enterprise agreement
4
Enterprise agreements may be made about permitted matters
5
(1) An agreement (an enterprise agreement) that is about one or more
6
of the following matters (the permitted matters) may be made in
7
accordance with this Part:
8
(a) matters pertaining to the relationship between an employer
9
that will be covered by the agreement and that employer's
10
employees who will be covered by the agreement;
11
(b) matters pertaining to the relationship between the employer
12
or employers, and the employee organisation or employee
13
organisations, that will be covered by the agreement;
14
(c) deductions from wages for any purpose authorised by an
15
employee who will be covered by the agreement;
16
(d) how the agreement will operate.
17
Note 1:
For when an enterprise agreement covers an employer, employee or
18
employee organisation, see section 53.
19
Note 2:
An employee organisation that was a bargaining representative for a
20
proposed enterprise agreement will be covered by the agreement if the
21
organisation notifies FWA under section 183 that it wants to be
22
covered.
23
Single-enterprise agreements
24
(2) An employer, or 2 or more employers that are single interest
25
employers, may make an enterprise agreement (a single-enterprise
26
agreement):
27
(a) with the employees who are employed at the time the
28
agreement is made and who will be covered by the
29
agreement; or
30
(b) with one or more relevant employee organisations if:
31
(i) the agreement relates to a genuine new enterprise that
32
the employer or employers are establishing or propose
33
to establish; and
34
Chapter 2 Terms and conditions of employ ment
Part 2-4 Enterprise agreements
Division 2 Employers and emp loyees may make enterprise agreements
Section 172
162 Fair Work Bill 2008 No. , 2008
(ii) the employer or employers have not employed any of
1
the persons who will be necessary for the normal
2
conduct of that enterprise.
3
Note:
The expression genuine new enterprise includes a genuine new
4
business, activity, project or undertaking (see the definition of
5
enterprise in section 12).
6
Multi-enterprise agreements
7
(3) Two or more employers that are not all single interest employers
8
may make an enterprise agreement (a multi-enterprise agreement):
9
(a) with the employees who are employed at the time the
10
agreement is made and who will be covered by the
11
agreement; or
12
(b) with one or more relevant employee organisations if:
13
(i) the agreement relates to a genuine new enterprise that
14
the employers are establishing or propose to establish;
15
and
16
(ii) the employers have not employed any of the persons
17
who will be necessary for the normal conduct of that
18
enterprise.
19
Note:
The expression genuine new enterprise includes a genuine new
20
business, activity, project or undertaking (see the definition of
21
enterprise in section 12).
22
Greenfields agreements
23
(4) A single-enterprise agreement made as referred to in
24
paragraph (2)(b), or a multi-enterprise agreement made as referred
25
to in paragraph (3)(b), is a greenfields agreement.
26
Single interest employers
27
(5) Two or more employers are single interest employers if:
28
(a) the employers are engaged in a joint venture or common
29
enterprise; or
30
(b) the employers are related bodies corporate; or
31
(c) the employers are specified in a single interest employer
32
authorisation that is in operation in relation to the proposed
33
enterprise agreement concerned.
34
35
Terms and conditions of employ ment Chapter 2
Enterprise agreements Part 2-4
Bargaining and representation during bargaining Division 3
Section 173
Fair Work Bill 2008 No. , 2008 163
1
Division 3--Bargaining and representation during
2
bargaining
3
173 Notice of employee representational rights
4
Employer to notify each employee of representational rights
5
(1) An employer that will be covered by a proposed enterprise
6
agreement that is not a greenfields agreement must take all
7
reasonable steps to give notice of the right to be represented by a
8
bargaining representative to each employee who:
9
(a) will be covered by the agreement; and
10
(b) is employed at the notification time for the agreement.
11
Note:
For the content of the notice, see section 174.
12
Notification time
13
(2) The notification time for a proposed enterprise agreement is the
14
time when:
15
(a) the employer agrees to bargain, or initiates bargaining, for the
16
agreement; or
17
(b) a majority support determination in relation to the agreement
18
comes into operation; or
19
(c) a scope order in relation to the agreement comes into
20
operation; or
21
(d) a low-paid authorisation in relation to the agreement that
22
specifies the employer comes into operation.
23
Note:
The employer cannot request employees to approve the agreement
24
under section 181 until 21 days after the last notice is given (see
25
subsection 181(2)).
26
When notice must be given
27
(3) The employer must give the notice as soon as practicable, and not
28
later than 14 days, after the notification time for the agreement.
29
Chapter 2 Terms and conditions of employ ment
Part 2-4 Enterprise agreements
Division 3 Bargaining and representation during bargaining
Section 174
164 Fair Work Bill 2008 No. , 2008
Notice need not be given in certain circumstances
1
(4) An employer is not required to give a notice to an employee under
2
subsection (1) in relation to a proposed enterprise agreement if the
3
employer has already given the employee a notice under that
4
subsection within a reasonable period before the notification time
5
for the agreement.
6
How notices are given
7
(5) The regulations may prescribe how notices under subsection (1)
8
may be given.
9
174 Content of notice of employee representational rights
10
Application of this section
11
(1) This section applies if an employer that will be covered by a
12
proposed enterprise agreement is required to give a notice under
13
subsection 173(1) to an employee.
14
Content of notice--employee may appoint a bargaining
15
representative
16
(2) The notice must specify that the employee may appoint a
17
bargaining representative to represent the employee:
18
(a) in bargaining for the agreement; and
19
(b) in a matter before FWA that relates to bargaining for the
20
agreement.
21
Content of notice--default bargaining representative
22
(3) If subsection (4) does not apply, the notice must explain that:
23
(a) if the employee is a member of an employee organisation that
24
is entitled to represent the industrial interests of the employee
25
in relation to work that will be performed under the
26
agreement; and
27
(b) the employee does not appoint another person as his or her
28
bargaining representative for the agreement;
29
Terms and conditions of employ ment Chapter 2
Enterprise agreements Part 2-4
Bargaining and representation during bargaining Division 3
Section 175
Fair Work Bill 2008 No. , 2008 165
the organisation will be the bargaining representative of the
1
employee.
2
Content of notice--bargaining representative if a low-paid
3
authorisation is in operation
4
(4) If a low-paid authorisation in relation to the agreement that
5
specifies the employer is in operation, the notice must explain the
6
effect of paragraph 176(1)(b) and subsection 176(2) (which deal
7
with bargaining representatives for such agreements).
8
Content of notice--copy of instrument of appointment to be given
9
(5) The notice must explain the effect of paragraph 178(2)(a) (which
10
deals with giving a copy of an instrument of appointment of a
11
bargaining representative to an employee's employer).
12
175 Relevant employee organisations to be given notice of
13
employer's intention to make greenfields agreements etc.
14
Notice of intention to make greenfields agreement
15
(1) An employer that agrees to bargain, or initiates bargaining, for a
16
proposed greenfields agreement must take all reasonable steps to
17
give notice of its intention to make the agreement to each
18
employee organisation that is a relevant employee organisation in
19
relation to the agreement.
20
Note:
The agreement cannot be made until 14 days after the last notice is
21
given (see subsection 182(4)).
22
(2) Subsection (1) does not apply if the employer does not know, or
23
could not reasonably be expected to know, that the employee
24
organisation is a relevant employee organisation in relation to the
25
agreement.
26
Content of notice
27
(3) The notice must state that the relevant employee organisation is a
28
bargaining representative for the agreement.
29
Chapter 2 Terms and conditions of employ ment
Part 2-4 Enterprise agreements
Division 3 Bargaining and representation during bargaining
Section 176
166 Fair Work Bill 2008 No. , 2008
When notice must be given
1
(4) The employer must give the notice, as soon as practicable, and not
2
later than 14 days, after the obligation to give the notice first arises.
3
Copy of notice to be given to FWA
4
(5) The employer must give a copy of the notice to FWA at the same
5
time as, or as soon as practicable after, the notice is given to the
6
relevant employee organisation.
7
How notices are given
8
(6) The regulations may prescribe how notices under subsection (1)
9
may be given.
10
176 Bargaining representatives for proposed enterprise agreements
11
that are not greenfields agreements
12
Bargaining representatives
13
(1) The following paragraphs set out the persons who are bargaining
14
representatives for a proposed enterprise agreement that is not a
15
greenfields agreement:
16
(a) an employer that will be covered by the agreement is a
17
bargaining representative for the agreement;
18
(b) an employee organisation is a bargaining representative of an
19
employee who will be covered by the agreement if:
20
(i) the employee is a member of the organisation; and
21
(ii) in the case where the agreement is a multi-enterprise
22
agreement in relation to which a low-paid authorisation
23
is in operation--the organisation applied for the
24
authorisation;
25
unless the employee has appointed another person under
26
paragraph (c) as his or her bargaining representative for the
27
agreement; or
28
(c) a person is a bargaining representative of an employee who
29
will be covered by the agreement if the employee appoints, in
30
writing, the person as his or her bargaining representative for
31
the agreement;
32
Terms and conditions of employ ment Chapter 2
Enterprise agreements Part 2-4
Bargaining and representation during bargaining Division 3
Section 176
Fair Work Bill 2008 No. , 2008 167
(d) a person is a bargaining representative of an employer that
1
will be covered by the agreement if the employer appoints, in
2
writing, the person as his or her bargaining representative for
3
the agreement.
4
Bargaining representatives for a proposed multi-enterprise
5
agreement if a low-paid authorisation is in operation
6
(2) If:
7
(a) the proposed enterprise agreement is a multi-enterprise
8
agreement in relation to which a low-paid authorisation is in
9
operation; and
10
(b) an employee organisation applied for the authorisation; and
11
(c) but for this subsection, the organisation would not be a
12
bargaining representative of an employee who will be
13
covered by the agreement;
14
the organisation is taken to be a bargaining representative of such
15
an employee unless:
16
(d) the employee is a member of another employee organisation
17
that also applied for the authorisation; or
18
(e) the employee has appointed another person under
19
paragraph (1)(c) as his or her bargaining representative for
20
the agreement.
21
Requirement relating to employee organisations
22
(3) Despite subsections (1) and (2), an employee organisation cannot
23
be a bargaining representative of an employee unless the
24
organisation is entitled to represent the industrial interests of the
25
employee in relation to work that will be performed under the
26
agreement.
27
Employee may appoint himself or herself
28
(4) To avoid doubt, an employee who will be covered by the
29
agreement may appoint, under paragraph (1)(c), himself or herself
30
as his or her bargaining representative for the agreement.
31
Note:
Section 228 sets out the good faith bargaining requirements.
32
Applications may be made for bargaining orders that require
33
Chapter 2 Terms and conditions of employ ment
Part 2-4 Enterprise agreements
Division 3 Bargaining and representation during bargaining
Section 177
168 Fair Work Bill 2008 No. , 2008
bargaining representatives to meet the good faith bargaining
1
requirements (see section 229).
2
177 Bargaining representatives for proposed greenfields agreements
3
The following paragraphs set out the persons who are bargaining
4
representatives for a proposed greenfields agreement:
5
(a) an employer that will be covered by the agreement is a
6
bargaining representative for the agreement;
7
(b) a person is a bargaining representative of an employer that
8
will be covered by the agreement if the employer appoints, in
9
writing, the person as his or her bargaining representative for
10
the agreement;
11
(c) a relevant employee organisation in relation to the agreement
12
is a bargaining representative for the agreement.
13
Note:
Section 228 sets out the good faith bargaining requirements.
14
Applications may be made for bargaining orders that require
15
bargaining representatives to meet the good faith bargaining
16
requirements (see section 229).
17
178 Appointment of bargaining representatives--other matters
18
When appointment of a bargaining representative comes into force
19
(1) An appointment of a bargaining representative comes into force on
20
the day specified in the instrument of appointment.
21
Copies of instruments of appointment must be given
22
(2) A copy of an instrument of appointment of a bargaining
23
representative for a proposed enterprise agreement must:
24
(a) for an appointment made by an employee who will be
25
covered by the agreement--be given to the employee's
26
employer; and
27
(b) for an appointment made by an employer that will be covered
28
by a proposed enterprise agreement that is not a greenfields
29
agreement--be given, on request, to a bargaining
30
representative of an employee who will be covered by the
31
agreement; and
32
Terms and conditions of employ ment Chapter 2
Enterprise agreements Part 2-4
Bargaining and representation during bargaining Division 3
Section 179
Fair Work Bill 2008 No. , 2008 169
(c) for an appointment made by an employer that will be covered
1
by a proposed greenfields agreement--be given, on request,
2
to a relevant employee organisation that is a bargaining
3
representative for the agreement.
4
Regulations may prescribe matters relating to qualifications and
5
appointment
6
(3) The regulations may prescribe matters relating to the qualifications
7
or appointment of bargaining representatives.
8
179 Employe r etc. must not refuse to recognise or bargain with
9
other bargaining representatives
10
(1) An employer that will be covered by a proposed enterprise
11
agreement, or a bargaining representative of such an employer,
12
must not refuse to recognise or bargain with another bargaining
13
representative for the agreement.
14
Note:
This subsection is a civil remedy provision (see Part 4-1).
15
(2) Subsection (1) does not apply if the employer or the bargaining
16
representative does not know, or could not reasonably be expected
17
to know, that the other person is a bargaining representative for the
18
agreement.
19
20
Chapter 2 Terms and conditions of employ ment
Part 2-4 Enterprise agreements
Division 4 Approval of enterprise agreements
Section 180
170 Fair Work Bill 2008 No. , 2008
1
Division 4--Approval of enterprise agreements
2
Subdivision A--Pre-approval steps and applications for FWA
3
approval
4
180 Employees must be given a copy of a proposed enterprise
5
agreement etc.
6
Pre-approval requirements
7
(1) Before an employer requests under subsection 181(1) that
8
employees approve a proposed enterprise agreement by voting for
9
the agreement, the employer must comply with the requirements
10
set out in this section.
11
Employees must be given copy of the agreement etc.
12
(2) The employer must take all reasonable steps to ensure that:
13
(a) during the access period for the agreement, the employees
14
(the relevant employees) employed at the time who will be
15
covered by the agreement are given a copy of the following
16
materials:
17
(i) the written text of the agreement;
18
(ii) any other material incorporated by reference in the
19
agreement; or
20
(b) the relevant employees have access, throughout the access
21
period for the agreement, to a copy of those materials.
22
(3) The employer must take all reasonable steps to notify the relevant
23
employees of the following by the start of the access period for the
24
agreement:
25
(a) the time and place at which the vote will occur;
26
(b) the voting method that will be used.
27
(4) The access period for a proposed enterprise agreement is the 7-day
28
period ending immediately before the start of the voting process
29
referred to in subsection 181(1).
30
Terms and conditions of employ ment Chapter 2
Enterprise agreements Part 2-4
Approval of enterprise agreements Division 4
Section 181
Fair Work Bill 2008 No. , 2008 171
Terms of the agreement must be explained to employees etc.
1
(5) The employer must take all reasonable steps to ensure that:
2
(a) the terms of the agreement, and the effect of those terms, are
3
explained to the relevant employees; and
4
(b) the explanation is provided in an appropriate manner taking
5
into account the particular circumstances and needs of the
6
relevant employees.
7
(6) Without limiting paragraph (5)(b), the following are examples of
8
the kinds of employees whose circumstances and needs are to be
9
taken into account for the purposes of complying with that
10
paragraph:
11
(a) employees from culturally and linguistically diverse
12
backgrounds;
13
(b) young employees;
14
(c) employees who did not have a bargaining representative for
15
the agreement.
16
181 Employe rs may request employees to approve a proposed
17
enterprise agreement
18
(1) An employer that will be covered by a proposed enterprise
19
agreement may request the employees employed at the time who
20
will be covered by the agreement to approve the agreement by
21
voting for it.
22
(2) The request must not be made until at least 21 days after the day on
23
which the last notice under subsection 173(1) (which deals with
24
giving notice of employee representational rights) in relation to the
25
agreement is given.
26
(3) Without limiting subsection (1), the employer may request that the
27
employees vote by ballot or by an electronic method.
28
Chapter 2 Terms and conditions of employ ment
Part 2-4 Enterprise agreements
Division 4 Approval of enterprise agreements
Section 182
172 Fair Work Bill 2008 No. , 2008
182 When an enterprise agreement is made
1
Single-enterprise agreement that is not a greenfields agreement
2
(1) If the employees of the employer, or each employer, that will be
3
covered by a proposed single-enterprise agreement that is not a
4
greenfields agreement have been asked to approve the agreement
5
under subsection 181(1), the agreement is made when a majority of
6
those employees who cast a valid vote approve the agreement.
7
Multi-enterprise agreement that is not a greenfields agreement
8
(2) If:
9
(a) a proposed enterprise agreement is a multi-enterprise
10
agreement; and
11
(b) the employees of each of the employers that will be covered
12
by the agreement have been asked to approve the agreement
13
under subsection 181(1); and
14
(c) those employees have voted on whether or not to approve the
15
agreement; and
16
(d) a majority of the employees of at least one of those
17
employers who cast a valid vote have approved the
18
agreement;
19
the agreement is made immediately after the end of the voting
20
process referred to in subsection 181(1).
21
Greenfields agreement
22
(3) A greenfields agreement is made when it has been signed by each
23
employer and each relevant employee organisation that will be
24
covered by the agreement.
25
(4) A greenfields agreement is not made unless the agreement is
26
signed as referred to in subsection (3) at least 14 days after the day
27
on which the last notice under subsection 175(1) (which deals with
28
giving notice of the intention to make a greenfields agreement etc.)
29
in relation to the agreement is given.
30
Terms and conditions of employ ment Chapter 2
Enterprise agreements Part 2-4
Approval of enterprise agreements Division 4
Section 183
Fair Work Bill 2008 No. , 2008 173
183 Entitle ment of an e mployee organisation to have an enterprise
1
agreement cover it
2
(1) After an enterprise agreement that is not a greenfields agreement is
3
made, an employee organisation that was a bargaining
4
representative for the proposed enterprise agreement concerned
5
may give FWA a written notice stating that the organisation wants
6
the enterprise agreement to cover it.
7
(2) The notice must be given to FWA, and a copy given to each
8
employer covered by the enterprise agreement, before FWA
9
approves the agreement.
10
Note:
FWA must note in its decision to approve the enterprise agreement
11
that the agreement covers the employee organisation (see subsection
12
201(2)).
13
184 Multi-enterprise agreement to be varied if not all employees
14
approve the agreement
15
Application of this section
16
(1) This section applies if:
17
(a) a multi-enterprise agreement is made; and
18
(b) the agreement was not approved by the employees of all of
19
the employers that made a request under subsection 181(1) in
20
relation to the agreement.
21
Variation of agreement
22
(2) Before a bargaining representative applies under section 185 for
23
approval of the agreement, the bargaining representative must vary
24
the agreement so that the agreement is expressed to cover only the
25
following:
26
(a) each employer whose employees approved the agreement;
27
(b) the employees of each of those employers.
28
(3) The bargaining representative who varies the agreement as referred
29
to in subsection (2) must give written notice of the variation to all
30
the other bargaining representatives for the agreement.
31
Chapter 2 Terms and conditions of employ ment
Part 2-4 Enterprise agreements
Division 4 Approval of enterprise agreements
Section 185
174 Fair Work Bill 2008 No. , 2008
(4) The notice must specify the employers and employees that the
1
agreement as varied covers.
2
(5) Subsection (3) does not require the bargaining representative to
3
give a notice to a person if the bargaining representative does not
4
know, or could not reasonably be expected to know, that the person
5
is a bargaining representative for the agreement.
6
185 Bargaining representative must apply for FWA approval of an
7
enterprise agreement
8
Application for approval
9
(1) If an enterprise agreement is made, a bargaining representative for
10
the agreement must apply to FWA for approval of the agreement.
11
Material to accompany the application
12
(2) The application must be accompanied by:
13
(a) a signed copy of the agreement; and
14
(b) any declarations that are required by the procedural rules to
15
accompany the application.
16
When the application must be made
17
(3) If the agreement is not a greenfields agreement, the application
18
must be made:
19
(a) within 14 days after the agreement is made; or
20
(b) if in all the circumstances FWA considers it fair to extend
21
that period--within such further period as FWA allows.
22
(4) If the agreement is a greenfields agreement, the application must
23
be made within 14 days after the agreement is made.
24
Signature requirements
25
(5) The regulations may prescribe requirements relating to the signing
26
of enterprise agreements.
27
Terms and conditions of employ ment Chapter 2
Enterprise agreements Part 2-4
Approval of enterprise agreements Division 4
Section 186
Fair Work Bill 2008 No. , 2008 175
Subdivision B--Approval of enterprise agreements by FWA
1
186 When FWA must approve an ente rprise agreement--general
2
require ments
3
Basic rule
4
(1) If an application for the approval of an enterprise agreement is
5
made under section 185, FWA must approve the agreement under
6
this section if the requirements set out in this section and
7
section 187 are met.
8
Note:
FWA may approve an enterprise agreement under this section with
9
undertakings (see section 190).
10
Requirements relating to the safety net etc.
11
(2) FWA must be satisfied that:
12
(a) if the agreement is not a greenfields agreement--the
13
agreement has been genuinely agreed to by the employees
14
covered by the agreement; and
15
(b) if the agreement is a multi-enterprise agreement:
16
(i) the agreement has been genuinely agreed to by each
17
employer covered by the agreement; and
18
(ii) no person coerced, or threatened to coerce, any of the
19
employers to make the agreement; and
20
(c) the terms of the agreement do not contravene section 55
21
(which deals with the interaction between the National
22
Employment Standards and enterprise agreements etc.); and
23
(d) the agreement passes the better off overall test.
24
Note 1:
For when an enterprise agreement has been genuinely agreed to by
25
employees, see section 188.
26
Note 2:
FWA may approve an enterprise agreement that does not pass the
27
better off overall test if approval would not be contrary to the public
28
interest (see section 189).
29
Note 3:
The terms of an enterprise agreement may supplement the National
30
Employment Standards (see paragraph 55(4)(b)).
31
Chapter 2 Terms and conditions of employ ment
Part 2-4 Enterprise agreements
Division 4 Approval of enterprise agreements
Section 186
176 Fair Work Bill 2008 No. , 2008
Requirement that the group of employees covered by the agreement
1
is fairly chosen
2
(3) If:
3
(a) the agreement does not cover all the employees of the
4
employer or employers covered by the agreement; and
5
(b) the group of employees covered by the agreement is not
6
geographically, operationally or organisationally distinct;
7
FWA must be satisfied that the group was fairly chosen.
8
Requirement that there be no unlawful terms
9
(4) FWA must be satisfied that the agreement does not include any
10
unlawful terms (see Subdivision D of this Division).
11
Requirement for a nominal expiry date etc.
12
(5) FWA must be satisfied that:
13
(a) the agreement specifies a date as its nominal expiry date; and
14
(b) the date will not be more than 4 years after the day on which
15
FWA approves the agreement.
16
Requirement for a term about settling disputes
17
(6) FWA must be satisfied that the agreement includes a term:
18
(a) that provides a procedure that requires or allows FWA, or
19
another person who is independent of the employers,
20
employees or employee organisations covered by the
21
agreement, to settle disputes:
22
(i) about any matters arising under the agreement; and
23
(ii) in relation to the National Employment Standards; and
24
(b) that allows for the representation of employees covered by
25
the agreement for the purposes of that procedure.
26
Note:
FWA or a person must not settle a dispute about whether an employer
27
had reasonable business grounds under subsection 65(5) or 76(4) (see
28
subsections 739(2) and 740(2)).
29
Terms and conditions of employ ment Chapter 2
Enterprise agreements Part 2-4
Approval of enterprise agreements Division 4
Section 187
Fair Work Bill 2008 No. , 2008 177
187 When FWA must approve an ente rprise agreement--additional
1
require ments
2
Additional requirements
3
(1) This section sets out additional requirements that must be met
4
before FWA approves an enterprise agreement under section 186.
5
Requirement that approval not be inconsistent with good faith
6
bargaining etc.
7
(2) FWA must be satisfied that approving the agreement would not be
8
inconsistent with or undermine good faith bargaining by one or
9
more bargaining representatives for a proposed enterprise
10
agreement, or an enterprise agreement, in relation to which a scope
11
order is in operation.
12
Requirement relating to notice of variation of agreement
13
(3) If a bargaining representative is required to vary the agreement as
14
referred to in subsection 184(2), FWA must be satisfied that the
15
bargaining representative has complied with that subsection and
16
subsection 184(3) (which deals with giving notice of the variation).
17
Requirements relating to particular kinds of employees
18
(4) FWA must be satisfied as referred to in any provisions of
19
Subdivision E of this Division that apply in relation to the
20
agreement.
21
Note:
Subdivision E of this Division deals with approval requirements
22
relating to particular kinds of employees.
23
188 When employees have genuinely agreed to an enterprise
24
agreement
25
An enterprise agreement has been genuinely agreed to by the
26
employees covered by the agreement if FWA is satisfied that:
27
(a) the employer, or each of the employers, covered by the
28
agreement complied with the following provisions in relation
29
to the agreement:
30
Chapter 2 Terms and conditions of employ ment
Part 2-4 Enterprise agreements
Division 4 Approval of enterprise agreements
Section 189
178 Fair Work Bill 2008 No. , 2008
(i) subsections 180(2), (3) and (5) (which deal with
1
pre-approval steps);
2
(ii) subsection 181(2) (which requires that employees not be
3
requested to approve an enterprise agreement until 21
4
days after the last notice of employee representational
5
rights is given); and
6
(b) the agreement was made in accordance with whichever of
7
subsection 182(1) or (2) applies (those subsections deal with
8
the making of different kinds of enterprise agreements by
9
employee vote); and
10
(c) there are no other reasonable grounds for believing that the
11
agreement has not been genuinely agreed to by the
12
employees.
13
189 FWA may approve an enterprise agreement that does not pass
14
better off overall test--public interest test
15
Application of this section
16
(1) This section applies if:
17
(a) FWA is not required to approve an enterprise agreement
18
under section 186; and
19
(b) the only reason for this is that FWA is not satisfied that the
20
agreement passes the better off overall test.
21
Approval of agreement if not contrary to the public interest
22
(2) FWA may approve the agreement under this section if FWA is
23
satisfied that, because of exceptional circumstances, the approval
24
of the agreement would not be contrary to the public interest.
25
Note:
FWA may approve an enterprise agreement under this section with
26
undertakings (see section 190).
27
(3) An example of a case in which FWA may be satisfied of the matter
28
referred to in subsection (2) is where the agreement is part of a
29
reasonable strategy to deal with a short-term crisis in, and to assist
30
in the revival of, the enterprise of an employer covered by the
31
agreement.
32
Terms and conditions of employ ment Chapter 2
Enterprise agreements Part 2-4
Approval of enterprise agreements Division 4
Section 190
Fair Work Bill 2008 No. , 2008 179
Nominal expiry date
1
(4) The nominal expiry date of an enterprise agreement approved by
2
FWA under this section is the earlier of the following:
3
(a) the date specified in the agreement as the nominal expiry date
4
of the agreement;
5
(b) 2 years after the day on which FWA approved the agreement.
6
190 FWA may approve an enterprise agreement with undertak ings
7
Application of this section
8
(1) This section applies if:
9
(a) an application for the approval of an enterprise agreement has
10
been made under section 185; and
11
(b) FWA has a concern that the agreement does not meet the
12
requirements set out in sections 186 and 187.
13
Approval of agreement with undertakings
14
(2) FWA may approve the agreement under section 186 if FWA is
15
satisfied that an undertaking accepted by FWA under
16
subsection (3) of this section meets the concern.
17
Undertakings
18
(3) FWA may only accept a written undertaking from one or more
19
employers covered by the agreement if FWA is satisfied that the
20
effect of accepting the undertaking is not likely to:
21
(a) cause financial detriment to any employee covered by the
22
agreement; or
23
(b) result in substantial changes to the agreement.
24
FWA must seek views of bargaining representatives
25
(4) FWA must not accept an undertaking under subsection (3) unless
26
FWA has sought the views of each person who FWA knows is a
27
bargaining representative for the agreement.
28
Chapter 2 Terms and conditions of employ ment
Part 2-4 Enterprise agreements
Division 4 Approval of enterprise agreements
Section 191
180 Fair Work Bill 2008 No. , 2008
Signature requirements
1
(5) The undertaking must meet any requirements relating to the
2
signing of undertakings that are prescribed by the regulations.
3
191 Effect of undertakings
4
(1) If:
5
(a) FWA approves an enterprise agreement after accepting an
6
undertaking under subsection 190(3) in relation to the
7
agreement; and
8
(b) the agreement covers a single employer;
9
the undertaking is taken to be a term of the agreement, as the
10
agreement applies to the employer.
11
(2) If:
12
(a) FWA approves an enterprise agreement after accepting an
13
undertaking under subsection 190(3) in relation to the
14
agreement; and
15
(b) the agreement covers 2 or more employers;
16
the undertaking is taken to be a term of the agreement, as the
17
agreement applies to each employer that gave the undertaking.
18
192 When FWA may refuse to approve an enterprise agreement
19
(1) If an application for the approval of an enterprise agreement is
20
made under section 185, FWA may refuse to approve the
21
agreement if FWA considers that compliance with the terms of the
22
agreement may result in:
23
(a) a person committing an offence against a law of the
24
Commonwealth; or
25
(b) a person being liable to pay a pecuniary penalty in relation to
26
a contravention of a law of the Commonwealth.
27
(2) Subsection (1) has effect despite sections 186 and 189 (which deal
28
with the approval of enterprise agreements).
29
(3) If FWA refuses to approve an enterprise agreement under this
30
section, FWA may refer the agreement to any person or body FWA
31
considers appropriate.
32
Terms and conditions of employ ment Chapter 2
Enterprise agreements Part 2-4
Approval of enterprise agreements Division 4
Section 193
Fair Work Bill 2008 No. , 2008 181
Subdivision C--Better off overall test
1
193 Passing the better off overall test
2
When a non-greenfields agreement passes the better off overall test
3
(1) An enterprise agreement that is not a greenfields agreement passes
4
the better off overall test under this section if FWA is satisfied, as
5
at the test time, that each award covered employee, and each
6
prospective award covered employee, for the agreement would be
7
better off overall if the agreement applied to the employee than if
8
the relevant modern award applied to the employee.
9
FWA must disregard individual flexibility arrangement
10
(2) If, under the flexibility term in the relevant modern award, an
11
individual flexibility arrangement has been agreed to by an award
12
covered employee and his or her employer, FWA must disregard
13
the individual flexibility arrangement for the purposes of
14
determining whether the agreement passes the better off overall
15
test.
16
When a greenfields agreement passes the better off overall test
17
(3) A greenfields agreement passes the better off overall test under
18
this section if FWA is satisfied, as at the test time, that the
19
prospective award covered employees for the agreement would be
20
better off overall if the agreement applied to the employees than if
21
the relevant modern award applied to the employees.
22
Award covered employee
23
(4) An award covered employee for an enterprise agreement is an
24
employee who:
25
(a) is covered by the agreement; and
26
(b) at the test time, is covered by a modern award (the relevant
27
modern award) that:
28
(i) is in operation; and
29
(ii) covers the employee in relation to the work that he or
30
she is to perform under the agreement; and
31
Chapter 2 Terms and conditions of employ ment
Part 2-4 Enterprise agreements
Division 4 Approval of enterprise agreements
Section 194
182 Fair Work Bill 2008 No. , 2008
(iii) covers his or her employer.
1
Prospective award covered employee
2
(5) A prospective award covered employee for an enterprise
3
agreement is a person who, if he or she were an employee at the
4
test time of an employer covered by the agreement:
5
(a) would be covered by the agreement; and
6
(b) would be covered by a modern award (the relevant modern
7
award) that:
8
(i) is in operation; and
9
(ii) would cover the person in relation to the work that he or
10
she would perform under the agreement; and
11
(iii) covers the employer.
12
Test time
13
(6) The test time is the time the application for approval of the
14
agreement by FWA was made under section 185.
15
Subdivision D--Unlawful terms
16
194 Meaning of unlawful term
17
A term of an enterprise agreement is an unlawful term if it is:
18
(a) a discriminatory term; or
19
(b) an objectionable term; or
20
(c) if a particular employee would be protected from unfair
21
dismissal under Part 3-2 after completing a period of
22
employment of at least the minimum employment period--a
23
term that confers an entitlement or remedy in relation to a
24
termination of the employee's employment that is unfair
25
(however described) before the employee has completed that
26
period; or
27
(d) a term that excludes the application to, or in relation to, a
28
person of a provision of Part 3-2 (which deals with unfair
29
dismissal), or modifies the application of such a provision in
30
a way that is detrimental to, or in relation to, a person; or
31
Terms and conditions of employ ment Chapter 2
Enterprise agreements Part 2-4
Approval of enterprise agreements Division 4
Section 195
Fair Work Bill 2008 No. , 2008 183
(e) a term that is inconsistent with a provision of Part 3-3 (which
1
deals with industrial action); or
2
(f) a term that provides for an entitlement:
3
(i) to enter premises for a purpose referred to in section 481
4
(which deals with investigation of suspected
5
contraventions); or
6
(ii) to enter premises to hold discussions of a kind referred
7
to in section 484;
8
other than in accordance with Part 3-4 (which deals with
9
right of entry); or
10
(g) a term that provides for the exercise of a State or Territory
11
OHS right other than in accordance with Part 3-4 (which
12
deals with right of entry).
13
195 Meaning of discriminatory term
14
Discriminatory term
15
(1) A term of an enterprise agreement is a discriminatory term to the
16
extent that it discriminates against an employee covered by the
17
agreement because of, or for reasons including, the employee's
18
race, colour, sex, sexual preference, age, physical or mental
19
disability, marital status, family or carer's responsibilities,
20
pregnancy, religion, political opinion, national extraction or social
21
origin.
22
Certain terms are not discriminatory terms
23
(2) A term of an enterprise agreement does not discriminate against an
24
employee:
25
(a) if the reason for the discrimination is the inherent
26
requirements of the particular position concerned; or
27
(b) merely because it discriminates, in relation to employment of
28
the employee as a member of the staff of an institution that is
29
conducted in accordance with the doctrines, tenets, beliefs or
30
teachings of a particular religion or creed:
31
(i) in good faith; and
32
(ii) to avoid injury to the religious susceptibilities of
33
adherents of that religion or creed.
34
Chapter 2 Terms and conditions of employ ment
Part 2-4 Enterprise agreements
Division 4 Approval of enterprise agreements
Section 196
184 Fair Work Bill 2008 No. , 2008
(3) A term of an enterprise agreement does not discriminate against an
1
employee merely because it provides for wages for:
2
(a) all junior employees, or a class of junior employees; or
3
(b) all employees with a disability, or a class of employees with
4
a disability; or
5
(c) all employees to whom training arrangements apply, or a
6
class of employees to whom training arrangements apply.
7
Subdivision E--Approval requirements relating to particular
8
kinds of employees
9
196 Shiftworkers
10
Application of this section
11
(1) This section applies if:
12
(a) an employee is covered by an enterprise agreement; and
13
(b) a modern award that is in operation and covers the employee
14
defines or describes the employee as a shiftworker for the
15
purposes of the National Employment Standards.
16
Shiftworkers and the National Employment Standards
17
(2) FWA must be satisfied that the agreement defines or describes the
18
employee as a shiftworker for the purposes of the National
19
Employment Standards.
20
Note:
Section 87 provides an employee with an entitlement to 5 weeks of
21
paid annual leave if an enterprise agreement that applies to the
22
employee defines or describes the employee as a shiftworker for the
23
purposes of the National Employment Standards.
24
197 Pieceworkers--enterprise agreement includes pieceworker term
25
Application of this section
26
(1) This section applies if:
27
(a) an enterprise agreement that covers an employee includes a
28
term that defines or describes the employee as a pieceworker;
29
and
30
Terms and conditions of employ ment Chapter 2
Enterprise agreements Part 2-4
Approval of enterprise agreements Division 4
Section 198
Fair Work Bill 2008 No. , 2008 185
(b) a modern award that is in operation and covers the employee
1
does not include such a term.
2
No detriment test
3
(2) FWA must be satisfied that the effect of including such a term in
4
the agreement is not detrimental to the employee in relation to the
5
entitlements of the employee under the National Employment
6
Standards.
7
198 Pieceworkers--enterprise agreement does not include a
8
pieceworker term
9
Application of this section
10
(1) This section applies if:
11
(a) an enterprise agreement that covers an employee does not
12
include a term that defines or describes the employee as a
13
pieceworker; and
14
(b) a modern award that is in operation and covers the employee
15
includes such a term.
16
No detriment test
17
(2) FWA must be satisfied that the effect of not including such a term
18
in the agreement is not detrimental to the employee in relation to
19
the entitlements of the employee under the National Employment
20
Standards.
21
199 School-based apprentices and school-based trainees
22
Application of this section
23
(1) This section applies if:
24
(a) an employee who is a school-based apprentice or a
25
school-based trainee is covered by an enterprise agreement;
26
and
27
(b) the agreement provides for the employee to be paid loadings
28
(the agreement loadings) in lieu of any of the following:
29
(i) paid annual leave;
30
Chapter 2 Terms and conditions of employ ment
Part 2-4 Enterprise agreements
Division 4 Approval of enterprise agreements
Section 200
186 Fair Work Bill 2008 No. , 2008
(ii) paid personal/carer's leave;
1
(iii) paid absence under Division 10 of Part 2-2 (which deals
2
with public holidays); and
3
(c) a modern award that is in operation and covers the employee
4
provides for the employee to be paid loadings (the award
5
loadings) in lieu of leave or absence of that kind.
6
No detriment test
7
(2) FWA must be satisfied that the amount or rate (as the case may be)
8
of the agreement loadings is not detrimental to the employee when
9
compared to the amount or rate of the award loadings.
10
200 Outworkers
11
Application of this section
12
(1) This section applies if:
13
(a) an employee who is an outworker is covered by an enterprise
14
agreement; and
15
(b) a modern award that is in operation and covers the employee
16
includes outworker terms.
17
Agreement must include outworker terms etc.
18
(2) FWA must be satisfied that:
19
(a) the agreement includes terms of that kind; and
20
(b) those terms of the agreement are not detrimental to the
21
employee when compared to the outworker terms of the
22
modern award.
23
Subdivision F--Other matters
24
201 Approval decision to note certain matters
25
Approval decision to note model terms included in an enterprise
26
agreement
27
(1) If:
28
(a) FWA approves an enterprise agreement; and
29
Terms and conditions of employ ment Chapter 2
Enterprise agreements Part 2-4
Approval of enterprise agreements Division 4
Section 201
Fair Work Bill 2008 No. , 2008 187
(b) either or both of the following apply:
1
(i) the model flexibility term is taken, under subsection
2
202(4), to be a term of the agreement;
3
(ii) the model consultation term is taken, under subsection
4
205(2), to be a term of the agreement;
5
FWA must note in its decision to approve the agreement that those
6
terms are so included in the agreement.
7
Approval decision to note that an enterprise agreement covers an
8
employee organisation
9
(2) If:
10
(a) an employee organisation has given a notice under subsection
11
183(1) that the organisation wants the enterprise agreement
12
to cover it; and
13
(b) FWA approves the agreement;
14
FWA must note in its decision to approve the agreement that the
15
agreement covers the organisation.
16
Approval decision to note undertakings
17
(3) If FWA approves an enterprise agreement after accepting an
18
undertaking under subsection 190(3) in