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Prepared by the Office of Parliamentary Counsel, Canberra

Fair Work Act 2009

No. 28, 2009

Compilation No. 37

Compilation date: 9 April 2020

Includes amendments up to: Act No. 38, 2020

Registered: 5 May 2020

This compilation is in 2 volumes

Volume 1: sections 1–536H

Volume 2: sections 537–800

Schedules

Endnotes

Each volume has its own contents

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About this compilation

This compilation

This is a compilation of the Fair Work Act 2009 that shows the text of the law

as amended and in force on 9 April 2020 (the compilation date).

The notes at the end of this compilation (the endnotes) include information

about amending laws and the amendment history of provisions of the compiled

law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the

compiled law. Any uncommenced amendments affecting the law are accessible

on the Legislation Register (www.legislation.gov.au). The details of

amendments made up to, but not commenced at, the compilation date are

underlined in the endnotes. For more information on any uncommenced

amendments, see the series page on the Legislation Register for the compiled

law.

Application, saving and transitional provisions for provisions and

amendments

If the operation of a provision or amendment of the compiled law is affected by

an application, saving or transitional provision that is not included in this

compilation, details are included in the endnotes.

Editorial changes

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

the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as

modified but the modification does not amend the text of the law. Accordingly,

this compilation does not show the text of the compiled law as modified. For

more information on any modifications, see the series page on the Legislation

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a

provision of the law, details are included in the endnotes.

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Contents

Chapter 4—Compliance and enforcement 1

Part 4-1—Civil remedies 1

Division 1—Introduction 1 537 Guide to this Part ............................................................... 1 538 Meanings of employee and employer ................................ 2

Division 2—Orders 3

Subdivision A—Applications for orders 3 539 Applications for orders in relation to

contraventions of civil remedy provisions ......................... 3 540 Limitations on who may apply for orders etc. ................. 19 541 Applications for orders in relation to safety net

contractual entitlements ................................................... 21 542 Entitlements under contracts ........................................... 22 543 Applications for orders in relation to statutory

entitlements derived from contracts................................. 22 544 Time limit on applications ............................................... 23

Subdivision B—Orders 23 545 Orders that can be made by particular courts .................. 23 546 Pecuniary penalty orders ................................................. 25 547 Interest up to judgment .................................................... 26

Division 3—Small claims procedure 27 548 Plaintiffs may choose small claims procedure ................. 27

Division 4—General provisions relating to civil remedies 29 549 Contravening a civil remedy provision is not an

offence ............................................................................. 29 550 Involvement in contravention treated in same way

as actual contravention .................................................... 29 551 Civil evidence and procedure rules for proceedings

relating to civil remedy provisions .................................. 29 552 Civil proceedings after criminal proceedings .................. 30 553 Criminal proceedings during civil proceedings ............... 30 554 Criminal proceedings after civil proceedings .................. 30 555 Evidence given in proceedings for pecuniary

penalty not admissible in criminal proceedings ............... 30 556 Civil double jeopardy ...................................................... 31

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557 Course of conduct ............................................................ 31 557A Serious contravention of civil remedy provisions ........... 33 557B Liability of bodies corporate for serious

contravention ................................................................... 35 557C Presumption where records not provided ........................ 35 558 Regulations dealing with infringement notices................ 36

Division 4A—Responsibility of responsible franchisor entities

and holding companies for certain contraventions 37 558A Meaning of franchisee entity and responsible

franchisor entity .............................................................. 37 558B Responsibility of responsible franchisor entities

and holding companies for certain contraventions .......... 37 558C Right of responsible franchisor entity or holding

company to recover ......................................................... 41

Division 5—Unclaimed money 43 559 Unclaimed money ........................................................... 43

Part 4-2—Jurisdiction and powers of courts 45

Division 1—Introduction 45 560 Guide to this Part ............................................................. 45 561 Meanings of employee and employer .............................. 45

Division 2—Jurisdiction and powers of the Federal Court 46 562 Conferring jurisdiction on the Federal Court ................... 46 563 Exercising jurisdiction in the Fair Work Division

of the Federal Court ......................................................... 46 564 No limitation on Federal Court’s powers ........................ 47 565 Appeals from eligible State or Territory courts ............... 47

Division 3—Jurisdiction and powers of the Federal Circuit

Court 49 566 Conferring jurisdiction on the Federal Circuit

Court................................................................................ 49 567 Exercising jurisdiction in the Fair Work Division

of the Federal Circuit Court ............................................. 49 568 No limitation on Federal Circuit Court’s powers ............ 49

Division 4—Miscellaneous 50 569 Minister’s entitlement to intervene .................................. 50 569A State or Territory Minister’s entitlement to

intervene .......................................................................... 50

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570 Costs only if proceedings instituted vexatiously

etc. ................................................................................... 51 571 No imprisonment for failure to pay pecuniary

penalty ............................................................................. 51 572 Regulations dealing with matters relating to court

proceedings ..................................................................... 51

Chapter 5—Administration 52

Part 5-1—The Fair Work Commission 52

Division 1—Introduction 52 573 Guide to this Part ............................................................. 52 574 Meanings of employee and employer .............................. 53

Division 2—Establishment and functions of the Fair Work

Commission 54

Subdivision A—Establishment and functions of the Fair Work

Commission 54 575 Establishment of the Fair Work Commission .................. 54 576 Functions of the FWC ..................................................... 54 577 Performance of functions etc. by the FWC...................... 56 578 Matters the FWC must take into account in

performing functions etc.................................................. 56 579 FWC has privileges and immunities of the Crown .......... 56 580 Protection of FWC Members ........................................... 56

Subdivision B—Functions and powers of the President 57 581 Functions of the President ............................................... 57 581A Dealing with a complaint about an FWC Member .......... 57 581B Code of Conduct .............................................................. 59 582 Directions by the President .............................................. 59 583 President not subject to direction ..................................... 60 584 Delegation of functions and powers of the

President .......................................................................... 61

Subdivision C—Protection of persons involved in handling etc.

complaints about FWC Members 61 584B Protection of persons involved in handling etc.

complaints about FWC Members .................................... 61

Division 3—Conduct of matters before the FWC 63

Subdivision A—Applications to the FWC 63 585 Applications in accordance with procedural rules ........... 63

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586 Correcting and amending applications and

documents etc. ................................................................. 63 587 Dismissing applications ................................................... 63 588 Discontinuing applications .............................................. 64

Subdivision B—Conduct of matters before the FWC 64 589 Procedural and interim decisions ..................................... 64 590 Powers of the FWC to inform itself ................................. 64 591 FWC not bound by rules of evidence and

procedure ......................................................................... 65 592 Conferences ..................................................................... 65 593 Hearings .......................................................................... 66 594 Confidential evidence ...................................................... 67 595 FWC’s power to deal with disputes ................................. 67

Subdivision C—Representation by lawyers and paid agents and

Minister’s entitlement to make submissions 68 596 Representation by lawyers and paid agents ..................... 68 597 Minister’s entitlement to make submissions .................... 69 597A State or Territory Minister’s entitlement to make

submissions ..................................................................... 69

Subdivision D—Decisions of the FWC 70 598 Decisions of the FWC ..................................................... 70 599 FWC not required to decide an application in

terms applied for .............................................................. 70 600 Determining matters in the absence of a person .............. 71 601 Writing and publication requirements for the

FWC’s decisions ............................................................. 71 602 Correcting obvious errors etc. in relation to the

FWC’s decisions ............................................................. 72 603 Varying and revoking the FWC’s decisions .................... 72

Subdivision E—Appeals, reviews and referring questions of law 73 604 Appeal of decisions ......................................................... 73 605 Minister’s entitlement to apply for review of a

decision ........................................................................... 74 606 Staying decisions that are appealed or reviewed ............. 74 607 Process for appealing or reviewing decisions .................. 75 608 Referring questions of law to the Federal Court .............. 76

Subdivision F—Miscellaneous 76 609 Procedural rules ............................................................... 76 610 Regulations dealing with any FWC matters .................... 77

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611 Costs ................................................................................ 77

Division 4—Organisation of the FWC 79

Subdivision A—Functions etc. to be performed by a single FWC

Member, a Full Bench or an Expert Panel 79 612 FWC’s functions etc. may generally be performed

by single FWC Member .................................................. 79 613 Appeal of decisions ......................................................... 79 614 Review of decisions by a Full Bench .............................. 80 615 The President may direct a Full Bench to perform

function etc. ..................................................................... 80 615A When the President must direct a Full Bench to

perform function etc. ....................................................... 81 615B Transfer to a Full Bench from an FWC Member ............. 81 615C Transfer to the President from an FWC Member or

a Full Bench .................................................................... 82 616 FWC’s functions etc. that must be performed by a

Full Bench ....................................................................... 82 617 FWC’s functions etc. that must be performed by

an Expert Panel................................................................ 83

Subdivision B—Constitution of the FWC by a single FWC

Member, a Full Bench or an Expert Panel 85 618 Constitution and decision-making of a Full Bench .......... 85 619 Seniority of FWC Members ............................................ 85 620 Constitution and decision-making of an Expert

Panel ................................................................................ 86 621 Reconstitution of the FWC when single FWC

Member becomes unavailable ......................................... 87 622 Reconstitution of the FWC when FWC Member of

a Full Bench or an Expert Panel becomes

unavailable ...................................................................... 88 623 When new FWC Members begin to deal with

matters ............................................................................. 88 624 FWC’s decisions not invalid when improperly

constituted ....................................................................... 89

Subdivision C—Delegation of the FWC’s functions and powers 89 625 Delegation by the President of functions and

powers of the FWC ......................................................... 89

Division 5—FWC Members 91

Subdivision A—Appointment of FWC Members 91 626 Appointment of FWC Members ...................................... 91

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627 Qualifications for appointment of FWC Members .......... 91 628 Basis of appointment of FWC Members ......................... 93 629 Period of appointment of FWC Members ....................... 93

Subdivision B—Terms and conditions of FWC Members 94 629A Status of the President ..................................................... 94 630 Appointment of a Judge not to affect tenure etc. ............. 95 631 Dual federal and State appointments of Deputy

Presidents or Commissioners .......................................... 95 632 Dual federal and Territory appointments of Deputy

Presidents or Commissioners .......................................... 96 633 Outside work of FWC Members ..................................... 96 634 Oath or affirmation of office ........................................... 96 635 Remuneration of the President ........................................ 97 636 Application of Judges’ Pensions Act to the

President .......................................................................... 97 637 Remuneration of FWC Members other than the

President .......................................................................... 98 638 Remuneration of Deputy Presidents or

Commissioners performing duties on a part-time

basis ................................................................................. 99 639 Leave of absence of FWC Members other than the

President ........................................................................ 100 640 Disclosure of interests by FWC Members other

than the President .......................................................... 100 641 Termination of appointment on grounds of

misbehaviour or incapacity ............................................ 101 641A Minister may handle complaints about FWC

Members ........................................................................ 101 641B Modified application of the Judicial Misbehaviour

and Incapacity (Parliamentary Commissions) Act

2012 ............................................................................... 102 642 Suspension on grounds of misbehaviour or

incapacity ...................................................................... 109 643 Termination of appointment for bankruptcy, etc. .......... 110 644 Termination of appointment for outside work ............... 110 645 Resignation of FWC Members ...................................... 111 646 Other terms and conditions of FWC Members .............. 111 647 Appointment of acting President and Vice

President ........................................................................ 111 648 Appointment of acting Deputy Presidents and

Commissioners .............................................................. 112

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Division 6—Cooperation with the States 114 649 President to cooperate with prescribed State

industrial authorities ...................................................... 114 650 Provision of administrative support ............................... 114

Division 7—Seals and additional powers and functions of the

President and the General Manager 115 651 Seals .............................................................................. 115 652 Annual report ................................................................ 116 653 Reports about making enterprise agreements,

individual flexibility arrangements etc. ......................... 116 653A Arrangements with the Federal Court and the

Federal Circuit Court ..................................................... 118 654 President must provide certain information etc. to

the Minister and Fair Work Ombudsman ...................... 118 655 Disclosure of information by the FWC ......................... 118

Division 8—General Manager, staff and consultants 120

Subdivision A—Functions of the General Manager 120 656 Establishment ................................................................ 120 657 Functions and powers of the General Manager ............. 120 658 Directions from the President ........................................ 120 659 General Manager not otherwise subject to

direction ........................................................................ 121

Subdivision B—Appointment and terms and conditions of the

General Manager 121 660 Appointment of the General Manager ........................... 121 661 Remuneration of the General Manager .......................... 121 662 Leave of absence of the General Manager..................... 122 663 Outside work of the General Manager ........................... 122 664 Disclosure of interests to the President .......................... 122 665 Resignation of the General Manager ............................. 122 666 Termination of appointment of the General

Manager ........................................................................ 122 667 Other terms and conditions of the General

Manager ........................................................................ 123 668 Appointment of acting General Manager ...................... 123 669 Minister to consult the President ................................... 124

Subdivision C—Staff and consultants 124 670 Staff ............................................................................... 124

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671 Delegation by General Manager to staff ........................ 124 672 Persons assisting the FWC ............................................ 125 673 Consultants .................................................................... 125

Subdivision D—Application of the finance law 125 673A Application of the finance law....................................... 125

Division 9—Offences relating to the Fair Work Commission 127 674 Offences in relation to the FWC .................................... 127 675 Contravening an FWC order ......................................... 129 676 Intimidation etc. ............................................................ 130 677 Offences in relation to attending before the FWC ......... 130 678 False or misleading evidence ......................................... 131

Part 5-2—Office of the Fair Work Ombudsman 133

Division 1—Introduction 133 679 Guide to this Part ........................................................... 133 680 Meanings of employee and employer ............................ 133

Division 2—Fair Work Ombudsman 134

Subdivision A—Establishment and functions and powers of the

Fair Work Ombudsman 134 681 Establishment ................................................................ 134 682 Functions of the Fair Work Ombudsman ...................... 134 683 Delegation by the Fair Work Ombudsman .................... 135 684 Directions from the Minister ......................................... 136 685 Minister may require reports ......................................... 136 686 Annual report ................................................................ 136

Subdivision B—Appointment and terms and conditions of the

Fair Work Ombudsman 137 687 Appointment of the Fair Work Ombudsman ................. 137 688 Remuneration of the Fair Work Ombudsman ................ 137 689 Leave of absence of the Fair Work Ombudsman........... 138 690 Outside work of the Fair Work Ombudsman ................. 138 692 Resignation of the Fair Work Ombudsman ................... 138 693 Termination of appointment of the Fair Work

Ombudsman .................................................................. 138 694 Other terms and conditions of the Fair Work

Ombudsman .................................................................. 139 695 Appointment of acting Fair Work Ombudsman ............ 139

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Division 3—Office of the Fair Work Ombudsman 141

Subdivision A—Establishment of the Office of the Fair Work

Ombudsman 141 696 Establishment of the Office of the Fair Work

Ombudsman .................................................................. 141

Subdivision B—Staff and consultants etc. 141 697 Staff ............................................................................... 141 698 Persons assisting the Fair Work Ombudsman ............... 141 699 Consultants .................................................................... 142

Subdivision C—Appointment of Fair Work Inspectors 142 700 Appointment of Fair Work Inspectors ........................... 142 701 Fair Work Ombudsman is a Fair Work Inspector .......... 142 702 Identity cards ................................................................. 143

Subdivision D—Functions and powers of Fair Work Inspectors—

general 144 703 Conditions and restrictions on functions and

powers ........................................................................... 144 704 General directions by the Fair Work Ombudsman ........ 144 705 Particular directions by the Fair Work

Ombudsman .................................................................. 144 706 Purpose for which powers of inspectors may be

exercised ........................................................................ 145 707 When powers of inspectors may be exercised ............... 145 707A Hindering or obstructing the Fair Work

Ombudsman and inspectors etc. .................................... 146

Subdivision DA—Power to enter premises 146 708 Power of inspectors to enter premises ........................... 146 709 Powers of inspectors while on premises ........................ 147 710 Persons assisting inspectors ........................................... 148

Subdivision DB—Powers to ask questions and require records

and documents 148 711 Power to ask for person’s name and address ................. 148 712 Power to require persons to produce records or

documents ..................................................................... 149 712A Minister may nominate AAT presidential members

to issue FWO notices ..................................................... 149 712AA Fair Work Ombudsman may apply to nominated

AAT presidential member for FWO notice ................... 150 712AB Issue of FWO notice ...................................................... 152

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712AC Form and content of FWO notice .................................. 153 712AD Fair Work Ombudsman may give FWO notice to

person in relation to whom it is issued and vary

time for compliance ....................................................... 154 712AE Conduct of examination ................................................ 155 712B Requirement to comply with FWO notice ..................... 155 712C Payment for expenses incurred in attending as

required by an FWO notice ........................................... 156 712D Protection from liability relating to FWO notices ......... 156 712E Fair Work Ombudsman must notify

Commonwealth Ombudsman of issue of FWO

notice ............................................................................. 156 712F Review and report by Commonwealth

Ombudsman .................................................................. 157

Subdivision DC—Other rules relating to answers, records and

documents 159 713 Self-incrimination etc. ................................................... 159 713A Certain records and documents are inadmissible ........... 160 713AA Legal professional privilege .......................................... 160 714 Power to keep records or documents ............................. 160 714A Reports not to include information relating to an

individual’s affairs ......................................................... 161

Subdivision DD—Enforceable undertakings and compliance

notices 162 715 Enforceable undertakings relating to

contraventions of civil remedy provisions ..................... 162 716 Compliance notices ....................................................... 163 717 Review of compliance notices ....................................... 165

Subdivision E—Disclosure of information by the Office of the Fair

Work Ombudsman 166 718 Disclosure of information by the Office of the Fair

Work Ombudsman ........................................................ 166

Subdivision F—False or misleading information or documents 167 718A False or misleading information or documents .............. 167

Chapter 6—Miscellaneous 169

Part 6-1—Multiple actions 169

Division 1—Introduction 169 719 Guide to this Part ........................................................... 169

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720 Meanings of employee and employer ............................ 169

Division 2—Certain actions not permitted if alternative action

can be taken 170 721 Equal remuneration applications ................................... 170 722 Notification and consultation requirements

applications ................................................................... 170 723 Unlawful termination applications ................................ 171

Division 3—Preventing multiple actions 172

Subdivision A—Equal remuneration applications 172 724 Equal remuneration applications ................................... 172

Subdivision B—Applications and complaints relating to dismissal 173 725 General rule ................................................................... 173 726 Dismissal remedy bargaining order applications ........... 173 727 General protections FWC applications .......................... 173 728 General protections court applications .......................... 174 729 Unfair dismissal applications ........................................ 175 730 Unlawful termination FWC applications ....................... 175 731 Unlawful termination court applications ....................... 176 732 Applications and complaints under other laws .............. 176 733 Dismissal does not include failure to provide

benefits .......................................................................... 177

Subdivision C—General protections applications that do not

relate to dismissal 177 734 General rule ................................................................... 177

Part 6-2—Dealing with disputes 179

Division 1—Introduction 179 735 Guide to this Part ........................................................... 179 736 Meanings of employee and employer ............................ 179

Division 2—Dealing with disputes 180

Subdivision A—Model term about dealing with disputes 180 737 Model term about dealing with disputes ........................ 180

Subdivision B—Dealing with disputes 180 738 Application of this Division .......................................... 180 739 Disputes dealt with by the FWC .................................... 180 740 Dispute dealt with by persons other than the FWC ....... 181

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Part 6-3—Extension of National Employment Standards

entitlements 183

Division 1—Introduction 183 741 Guide to this Part ........................................................... 183 742 Meanings of employee and employer ............................ 183

Division 2—Extension of entitlement to unpaid parental leave

and related entitlements 184

Subdivision A—Main provisions 184 743 Object of this Division .................................................. 184 744 Extending the entitlement to unpaid parental leave

and related entitlements ................................................. 184 745 Contravening the extended parental leave

provisions ...................................................................... 186 746 References to the National Employment Standards

include extended parental leave provisions ................... 186 747 State and Territory laws that are not excluded .............. 186

Subdivision B—Modifications of the extended parental leave

provisions 187 748 Non-national system employees are not

award/agreement free employees .................................. 187 749 Modification of meaning of base rate of pay for

pieceworkers ................................................................. 187 750 Modification of meaning of full rate of pay for

pieceworkers ................................................................. 187 751 Modification of meaning of ordinary hours of

work—if determined by State industrial instrument ...... 187 752 Modification of meaning of ordinary hours of

work—if not determined by State industrial

instrument ...................................................................... 188 753 Modification of meaning of ordinary hours of

work—regulations may prescribe usual weekly

hours .............................................................................. 188 754 Modification of meaning of pieceworker ...................... 188 755 Modification of provision about interaction with

paid leave ...................................................................... 189 756 Modification of provision about relationship

between National Employment Standards and

agreements..................................................................... 189 757 Modification of power to make regulations ................... 189

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Division 3—Extension of entitlement to notice of termination or

payment in lieu of notice 190

Subdivision A—Main provisions 190 758 Object of this Division .................................................. 190 759 Extending entitlement to notice of termination or

payment in lieu of notice ............................................... 190 760 Contravening the extended notice of termination

provisions ...................................................................... 191 761 References to the National Employment Standards

include extended notice of termination provisions ........ 192 762 State and Territory laws that are not excluded .............. 192

Subdivision B—Modifications of the extended notice of

termination provisions 192 763 Non-national system employees are not

award/agreement free employees .................................. 192 764 Modification of meaning of full rate of pay for

pieceworkers ................................................................. 192 765 Modification of meaning of pieceworker ...................... 193 766 Modification of provision about notice of

termination by employee ............................................... 193 767 Modification of provision about relationship

between National Employment Standards and

agreements..................................................................... 193 768 Modification of power to make regulations ................... 193

Part 6-3A—Transfer of business from a State public sector

employer 195

Division 1—Introduction 195 768AA Guide to this Part ........................................................... 195 768AB Meanings of employee and employer ............................ 195

Division 2—Copying terms of State instruments when there is a

transfer of business 196 768AC What this Division is about ........................................... 196 768AD When does a transfer of business occur? ....................... 196 768AE Meaning of transferring employee, termination

time and re-employment time ......................................... 197

Division 3—Copied State instruments 198

Subdivision A—Guide to this Division 198 768AF What this Division is about ........................................... 198

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Subdivision B—Copied State instruments 198 768AG Contravening a copied State instrument ........................ 198 768AH What is a copied State instrument? ................................ 199 768AI What is a copied State award? ....................................... 199 768AJ What is a State award? .................................................. 200 768AK What is a copied State employment agreement? ........... 200 768AL What is a State employment agreement? ....................... 202 768AM When does a copied State instrument apply to a

person? .......................................................................... 203 768AN When does a copied State instrument cover a

person? .......................................................................... 204 768AO When is a copied State instrument in operation? ........... 206

Division 4—Interaction between copied State instruments and

the NES, modern awards and enterprise agreements 208

Subdivision A—Guide to this Division 208 768AP What this Division is about ........................................... 208

Subdivision B—Interaction with the NES 208 768AQ Interaction between the NES and a copied State

instrument ...................................................................... 208 768AR Provisions of the NES that allow instruments to

contain particular kinds of terms ................................... 208

Subdivision C—Interaction with modern awards 210 768AS Modern awards and copied State awards ....................... 210 768AT Modern awards and copied State employment

agreements..................................................................... 210

Subdivision D—Interaction with enterprise agreements 212 768AU Enterprise agreements and copied State

instruments .................................................................... 212

Division 5—Variation and termination of copied State

instruments 213

Subdivision A—Guide to this Division 213 768AV What this Division is about ........................................... 213

Subdivision B—Variation of copied State instruments 213 768AW Variation in limited circumstances ................................ 213 768AX Variation of copied State instruments............................ 213

Subdivision C—Termination of copied State instruments 216 768AY Termination in limited circumstances ........................... 216

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Division 6—FWC orders about coverage of copied State

instruments and other instruments 217

Subdivision A—Guide to this Division 217 768AZ What this Division is about ........................................... 217 768AZA Orders in relation to a transfer of business .................... 217

Subdivision B—Coverage orders 218 768BA FWC orders about coverage for transferring

employees ...................................................................... 218 768BB FWC orders about coverage for employee

organisations ................................................................. 219

Division 7—FWC orders about consolidating copied State

instruments etc. 221

Subdivision A—Guide to this Division 221 768BC What this Division is about ........................................... 221 768BCA Orders in relation to a transfer of business .................... 222

Subdivision B—Consolidation orders in relation to transferring

employees 222 768BD Consolidation orders in relation to transferring

employees ...................................................................... 222 768BE Consolidation order to deal with application and

coverage ........................................................................ 223 768BF Effect of this Act after a consolidation order is

made .............................................................................. 224

Subdivision C—Consolidation orders in relation to

non-transferring employees 224 768BG Consolidation orders in relation to non-transferring

employees ...................................................................... 224 768BH Consolidation order to deal with application and

coverage ........................................................................ 226 768BI Effect of this Act after a consolidation order is

made .............................................................................. 227

Division 8—Special rules for copied State instruments 228

Subdivision A—Guide to this Division 228 768BJ What this Division is about ........................................... 228

Subdivision B—Terms about disputes 229 768BK Where no term dealing with disputes ............................ 229

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Subdivision C—Service and entitlements of a transferring

employee 229 768BL Service for the purposes of this Act ............................... 229 768BM NES—working out non-accruing entitlements .............. 230 768BN NES—working out accruing entitlements ..................... 231 768BO Copied State instrument—service ................................. 232 768BP Copied State instrument—working out

non-accruing entitlements ............................................. 233 768BQ Copied State instrument—working out accruing

entitlements ................................................................... 234

Subdivision D—Cessation of copied State awards: avoiding

reductions in take-home pay 235 768BR Cessation not intended to result in reduction in

take-home pay ............................................................... 235 768BS Orders remedying reductions in take-home pay ............ 236 768BT Contravening a take-home pay order ............................. 237 768BU How long a take-home pay order continues to

apply .............................................................................. 237 768BV Interaction of take-home pay orders with modern

awards and enterprise agreements ................................. 237 768BW Application of this Act to take-home pay orders ........... 237

Subdivision E—Modification of this Act 238 768BX Modification of this Act for copied State

instruments .................................................................... 238

Subdivision F—Modification of the Transitional Act 239 768BY Modification of the Transitional Act for copied

State instruments ........................................................... 239

Subdivision G—Modification of the Registered Organisations Act 243 768BZ Modification of the Registered Organisations Act

for copied State instruments .......................................... 243

Division 9—Regulations 245 768CA Regulations .................................................................... 245

Part 6-4—Additional provisions relating to termination of

employment 247

Division 1—Introduction 247 769 Guide to this Part ........................................................... 247 770 Meanings of employee and employer ............................ 247

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Division 2—Termination of employment 248 771 Object of this Division .................................................. 248 772 Employment not to be terminated on certain

grounds .......................................................................... 248 773 Application for the FWC to deal with a dispute ............ 250 774 Time for application ...................................................... 250 775 Application fees............................................................. 251 776 Dealing with a dispute (other than by arbitration) ......... 251 777 Dealing with a dispute by arbitration............................. 252 778 Taking a dispute to court ............................................... 253 779 Appeal rights ................................................................. 253 779A Costs orders against parties ........................................... 254 780 Costs orders against lawyers and paid agents ................ 254 781 Applications for costs orders ......................................... 255 781A Schedule of costs ........................................................... 255 782 Contravening costs orders ............................................. 256 783 Reason for action to be presumed unless proved

otherwise ....................................................................... 256

Division 3—Notification and consultation requirements relating

to certain terminations of employment 257

Subdivision A—Object of this Division 257 784 Object of this Division .................................................. 257

Subdivision B—Requirement to notify Centrelink 257 785 Employer to notify Centrelink of certain proposed

terminations ................................................................... 257

Subdivision C—Failure to notify or consult registered employee

associations 258 786 FWC may make orders where failure to notify or

consult registered employee associations about

terminations ................................................................... 258 787 Orders that the FWC may make .................................... 260 788 Application to the FWC for order .................................. 260

Subdivision D—Limits on scope of this Division 261 789 Limits on scope of this Division .................................... 261

Part 6-4A—Special provisions about TCF outworkers 262

Division 1—Introduction 262 789AA Guide to this Part ........................................................... 262

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789AB Meanings of employee and employer ............................ 262 789AC Objects of this Part ........................................................ 262

Division 2—TCF contract outworkers taken to be employees in

certain circumstances 264 789BA Provisions covered by this Division .............................. 264 789BB TCF contract outworkers taken to be employees in

certain circumstances .................................................... 265 789BC Regulations relating to TCF outworkers who are

taken to be employees ................................................... 266

Division 3—Recovery of unpaid amounts 267 789CA When this Division applies ............................................ 267 789CB Liability of indirectly responsible entity for unpaid

amount ........................................................................... 269 789CC Demand for payment from an apparent indirectly

responsible entity ........................................................... 269 789CD Court order for entity to pay amount demanded ............ 270 789CE Effect of payment by entity (including entity’s

right to recover from responsible person) ...................... 271 789CF Division does not limit other liabilities or rights ........... 272

Division 4—Code of practice relating to TCF outwork 273 789DA Regulations may provide for a code .............................. 273 789DB Matters that may be dealt with in TCF outwork

code ............................................................................... 273 789DC Persons on whom obligations may be imposed by

TCF outwork code ......................................................... 274 789DD Other general matters relating to content of TCF

outwork code ................................................................. 275 789DE Relationship between the TCF outwork code and

other instruments ........................................................... 276

Division 5—Miscellaneous 278 789EA Part not intended to exclude or limit State or

Territory laws relating to outworkers ............................ 278

Part 6-4B—Workers bullied at work 279

Division 1—Introduction 279 789FA Guide to this Part ........................................................... 279 789FB Meanings of employee and employer ............................ 279

Division 2—Stopping workers being bullied at work 280 789FC Application for an FWC order to stop bullying ............. 280

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789FD When is a worker bullied at work? ................................ 280 789FE FWC to deal with applications promptly ....................... 281 789FF FWC may make orders to stop bullying ........................ 282 789FG Contravening an order to stop bullying ......................... 282 789FH Actions under work health and safety laws

permitted ....................................................................... 282 789FI This Part is not to prejudice Australia’s defence,

national security etc. ...................................................... 283 789FJ Declarations by the Chief of the Defence Force ............ 283 789FK Declarations by the Director-General of Security ......... 284 789FL Declarations by the Director-General of ASIS .............. 284

Part 6-4C—Coronavirus economic response 285

Division 1—Introduction 285 789GA Guide to this Part ........................................................... 285 789GB Object ............................................................................ 286 789GC Definitions ..................................................................... 287

Division 2—Employer payment obligations 289 789GD Obligation of employer to satisfy the wage

condition ........................................................................ 289 789GDA Minimum payment guarantee ........................................ 289 789GDB Hourly rate of pay guarantee ......................................... 290

Division 3—Jobkeeper enabling stand down 292 789GDC Jobkeeper enabling stand down ..................................... 292

Division 4—Duties, location and days of work 294 789GE Duties of work ............................................................... 294 789GF Location of work ........................................................... 294 789GG Days of work etc. .......................................................... 295

Division 5—Taking paid annual leave 297 789GJ Taking paid annual leave ............................................... 297

Division 6—Rules relating to jobkeeper enabling directions 298 789GK Reasonableness.............................................................. 298 789GL Continuing the employment of employees .................... 298 789GM Consultation .................................................................. 298 789GN Form of direction ........................................................... 299 789GP Duration ........................................................................ 299 789GQ Compliance ................................................................... 300

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Division 7—Service 301 789GR Service ........................................................................... 301

Division 8—Accrual rules 302 789GS Accrual rules ................................................................. 302

Division 9—Employee requests for secondary employment,

training etc. 303 789GU Employee requests for secondary employment,

training etc. .................................................................... 303

Division 10—Dealing with disputes 304 789GV FWC may deal with a dispute about the operation

of this Part ..................................................................... 304 789GW Contravening an FWC order dealing with a dispute

about the operation of this Part ...................................... 305

Division 11—Exclusions 306 789GX Exclusions ..................................................................... 306

Division 12—Protections 307 789GXA Misuse of jobkeeper enabling direction ......................... 307 789GY Protection of workplace rights ....................................... 307 789GZ Relationship with other laws etc. ................................... 307 789GZA Redundancy ................................................................... 308

Division 13—Review of this Part 309 789GZB Review of this Part ........................................................ 309

Part 6-5—Miscellaneous 310

Division 1—Introduction 310 790 Guide to this Part ........................................................... 310 791 Meanings of employee and employer ............................ 310

Division 2—Miscellaneous 311 792 Delegation by Minister .................................................. 311 793 Liability of bodies corporate ......................................... 311 794 Signature on behalf of body corporate ........................... 312 795 Public sector employer to act through employing

authority ........................................................................ 312 795A The Schedules ............................................................... 314 796 Regulations—general .................................................... 314 796A Regulations conferring functions ................................... 314 797 Regulations dealing with offences ................................. 314

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798 Regulations dealing with civil penalties ........................ 315 799 Regulations dealing with infringement notices.............. 315 800 Regulations dealing with exhibiting fair work

instruments .................................................................... 315

Schedule 1—Application, saving and transitional

provisions relating to amendments of this

Act 316

Part 1—Amendments made by the Fair Work Amendment

(Textile, Clothing and Footwear Industry) Act 2012 316 1 Definitions ..................................................................... 316 2 Section 789BB of amended Act applies to

contracts entered into after commencement .................. 316 3 Effect on TCF contract outworker’s entitlements .......... 317 4 Fair work instruments etc. made before

commencement.............................................................. 317 5 Application of Division 3 of Part 6-4A of amended

Act ................................................................................. 318 6 Application of subsection 203(2A) of amended

Act ................................................................................. 318 7 Regulations dealing with various matters ...................... 318

Part 2—Amendments made by the Superannuation Legislation

Amendment (Further MySuper and Transparency

Measures) Act 2012 320 8 Definitions ..................................................................... 320 9 Application of sections 149A and 155A of

amended Act .................................................................. 320 10 FWC to vary certain modern awards ............................. 320 11 FWC to update text of certain modern awards .............. 321 12 Application of paragraph 194(h) of amended Act ......... 321

Part 3—Amendments made by the Fair Work Amendment

(Respect for Emergency Services Volunteers) Act 2016 322 13 Definitions ..................................................................... 322 14 Application of amendments—objectionable

emergency management terms ...................................... 322

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Part 4—Amendments made by the Fair Work Amendment

(Protecting Vulnerable Workers) Act 2017 324 15 Definitions ..................................................................... 324 16 Application of amendments—unreasonable

requirements to spend or pay amounts .......................... 324 17 Saving of regulations—unreasonable deductions .......... 324 18 Application of amendments—increasing

maximum penalties for contraventions of certain

civil remedy provisions ................................................. 324 19 Application of amendments—responsibility of

responsible franchisor entities and holding

companies ...................................................................... 325 20 Application of amendments—hindering or

obstructing the Fair Work Ombudsman and

inspectors etc. ................................................................ 325 21 Application of power to give FWO notices ................... 325 22 Application of amendments relating to

self-incrimination etc. .................................................... 326 23 Application of requirement for reports not to

include information relating to an individual’s

affairs ............................................................................ 326 24 Application of amendments—false or misleading

information or documents.............................................. 326 24A Application of amendments—presumption where

records not provided ...................................................... 326

Part 5—Amendments made by the Fair Work Amendment

(Repeal of 4 Yearly Reviews and Other Measures) Act

2018 327

Division 1—General 327 25 Definitions ..................................................................... 327

Division 2—Amendments made by Schedule 1 to the amending

Act 328 26 Incomplete review of modern award ............................. 328 27 Dismissing applications ................................................. 329

Division 3—Amendments made by Schedule 2 to the amending

Act 330 28 Application of amendments—when employees

have genuinely agreed to an enterprise agreement ........ 330

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Division 4—Amendments made by Schedule 3 to the amending

Act 332 29 Application of section 641B of the amended Act .......... 332

Part 6—Amendments made by the Fair Work Amendment

(Corrupting Benefits) Act 2017 333 30 Disclosure by organisations and employers ................... 333

Part 8—Amendments made by the Fair Work Amendment

(Family and Domestic Violence Leave) Act 2018 334 39 Entitlement to unpaid family and domestic

violence leave ................................................................ 334 40 Resolving uncertainties and difficulties about

interaction between enterprise agreements and

unpaid family and domestic violence leave ................... 334

Schedule 2—Amendments made by the Fair Work

Amendment (Transfer of Business) Act

2012 336 1 Definitions ..................................................................... 336 2 Application of the amendments made by the

amending Act ................................................................ 336

Schedule 3—Amendments made by the Fair Work

Amendment Act 2012 337

Part 1—Preliminary 337 1 Definitions ..................................................................... 337

Part 2—Default superannuation (Schedule 1) 338 2 Schedule 1 to the amending Act .................................... 338 2A Transitional provision—when first variations of

default fund term take effect .......................................... 338 2B Transitional provision—modern awards made on

or after 1 January 2014 .................................................. 339

Part 3—Modern awards (Schedule 3) 340 3 Part 1 of Schedule 3 to the amending Act ..................... 340

Part 4—Enterprise agreements (Schedule 4) 341 4 Part 1 of Schedule 4 to the amending Act ..................... 341

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5 Part 2 of Schedule 4 to the amending Act ..................... 341 6 Part 3 of Schedule 4 to the amending Act ..................... 341 7 Part 4 of Schedule 4 to the amending Act ..................... 342 8 Part 5 of Schedule 4 to the amending Act ..................... 342

Part 5—General protections (Schedule 5) 343 9 Part 1 of Schedule 5 to the amending Act ..................... 343

Part 6—Unfair dismissal (Schedule 6) 344 10 Part 1 of Schedule 6 to the amending Act ..................... 344 11 Part 2 of Schedule 6 to the amending Act ..................... 344 12 Part 3 of Schedule 6 to the amending Act ..................... 344 13 Part 4 of Schedule 6 to the amending Act ..................... 344

Part 7—Industrial action (Schedule 7) 345 14 Part 1 of Schedule 7 to the amending Act ..................... 345 15 Part 2 of Schedule 7 to the amending Act ..................... 345 16 Part 3 of Schedule 7 to the amending Act ..................... 345

Part 8—The Fair Work Commission (Schedule 8) 346 17 Part 1 of Schedule 8 to the amending Act ..................... 346 18 Part 2 of Schedule 8 to the amending Act ..................... 346 19 Part 4 of Schedule 8 to the amending Act ..................... 346 20 Part 5 of Schedule 8 to the amending Act ..................... 346 21 Part 6 of Schedule 8 to the amending Act ..................... 346 22 Part 7 of Schedule 8 to the amending Act ..................... 347 23 Part 8 of Schedule 8 to the amending Act ..................... 347

Part 9—Changing the name of Fair Work Australia

(Schedule 9) 348 24 Transitional provision—President ................................. 348 25 Transitional provision—Deputy President .................... 349 26 Transitional provision—Commissioner ......................... 350 27 Transitional provision—Minimum Wage Panel

Member ......................................................................... 351 28 Operation of laws—things done by, or in relation

to, FWA ......................................................................... 352 29 Transitional provision—General Manager and

staff of FWA ................................................................. 352 30 Operation of section 7 and subsection 25B(1) of

the Acts Interpretation Act 1901 not limited ................. 353

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Part 10—Other amendments (Schedule 10) 354 31 Part 1 of Schedule 10 to the amending Act ................... 354

Part 11—Regulations 355 32 Regulations about application, transitional and

saving matters ................................................................ 355

Schedule 4—Amendments made by the Fair Work

Amendment Act 2013 356

Part 1—Preliminary 356 1 Definition ...................................................................... 356

Part 2—Family-friendly measures (Schedule 1) 357 2 Part 1 of Schedule 1 to the amending Act ..................... 357 3 Part 2 of Schedule 1 to the amending Act ..................... 357 4 Part 3 of Schedule 1 to the amending Act ..................... 357 5 Part 4 of Schedule 1 to the amending Act ..................... 357 6 Part 5 of Schedule 1 to the amending Act ..................... 358

Part 3—Modern awards objective (Schedule 2) 359 7 Schedule 2 to the amending Act .................................... 359

Part 4—Anti-bullying measure (Schedule 3) 360 8 Schedule 3 to the amending Act .................................... 360

Part 4A—Conferences (Schedule 3A) 361 8A Schedule 3A to the amending Act ................................. 361

Part 5—Right of entry (Schedule 4) 362 9 Schedule 4 to the amending Act .................................... 362

Part 6—Consent arbitration for general protections and

unlawful termination (Schedule 4A) 363 10 Schedule 4A to the amending Act ................................. 363

Part 7—The FWC (Schedule 5) 364 11 Item 4 of Schedule 5 to the amending Act..................... 364

Schedule 5—Amendments made by the Fair Work

Amendment Act 2015 365 1 Definition ...................................................................... 365

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2 Part 1 of Schedule 1 to the amending Act ..................... 365 9 Part 5 of Schedule 1 to the amending Act ..................... 365 11 Part 7 of Schedule 1 to the amending Act ..................... 365 14 Part 10 of Schedule 1 to the amending Act ................... 365

Endnotes 366

Endnote 1—About the endnotes 366

Endnote 2—Abbreviation key 368

Endnote 3—Legislation history 369

Endnote 4—Amendment history 377

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Compliance and enforcement Chapter 4

Civil remedies Part 4-1

Introduction Division 1

Section 537

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Chapter 4—Compliance and enforcement

Part 4-1—Civil remedies

Division 1—Introduction

537 Guide to this Part

This Part is about civil remedies. Certain provisions in this Act

impose obligations on certain persons. Civil remedies may be

sought in relation to contraventions of these civil remedy

provisions.

Subdivision A of Division 2 deals with applications for orders in

relation to contraventions of civil remedy provisions and safety net

contractual entitlements, and applications for orders to enforce

entitlements arising under subsection 542(1).

Subdivision B of Division 2 sets out the orders that can be made by

the Federal Court, the Federal Circuit Court or an eligible State or

Territory Court in relation to a contravention of a civil remedy

provision.

Division 3 sets out when proceedings relating to a contravention of

a civil remedy provision may be dealt with as small claims

proceedings.

Division 4 deals with general provisions relating to civil remedies,

including rules about evidence and procedure.

Division 4A imposes obligations on responsible franchisor entities

in relation to certain contraventions of civil remedy provisions by

franchisee entities and on holding companies in relation to certain

contraventions of civil remedy provisions by subsidiaries.

Division 5 deals with unclaimed money.

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Part 4-1 Civil remedies

Division 1 Introduction

Section 538

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538 Meanings of employee and employer

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

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

employees in certain circumstances).

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Section 539

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Division 2—Orders

Subdivision A—Applications for orders

539 Applications for orders in relation to contraventions of civil

remedy provisions

(1) A provision referred to in column 1 of an item in the table in

subsection (2) is a civil remedy provision.

(2) For each civil remedy provision, the persons referred to in column

2 of the item may, subject to sections 540 and 544 and Subdivision

B, apply to the courts referred to in column 3 of the item for orders

in relation to a contravention or proposed contravention of the

provision, including the maximum penalty referred to in column 4

of the item.

Note 1: Civil remedy provisions within a single Part may be grouped together

in a single item of the table.

Note 2: Applications cannot be made by an inspector in relation to a

contravention of a civil remedy provision by a person in certain cases

where an undertaking or compliance notice has been given (see

subsections 715(4) and 716(4A)).

Note 3: The regulations may also prescribe persons for the purposes of an item

in column 2 of the table (see subsection 540(8)).

Note 4: See section 557A in relation to a serious contravention of a civil

remedy provision.

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Standing, jurisdiction and maximum penalties

Item Column 1

Civil remedy

provision

Column 2

Persons

Column 3

Courts

Column 4

Maximum

penalty

Part 2-1—Core provisions

1 44(1) (a) an employee;

(b) an employee

organisation;

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

for a serious

contravention

—600 penalty

units; or

otherwise—60

penalty units

2 45 (other

than in

relation to a

contravention

or proposed

contravention

of an

outworker

term)

(a) an employee;

(b) an employer;

organisation;

(d) an employer

organisation;

(e) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

for a serious

contravention

—600 penalty

units; or

otherwise—60

penalty units

3 45 (in

relation to a

contravention

or proposed

contravention

of an

outworker

term)

(a) an outworker;

(b) an employer;

entity;

(d) an employee

organisation;

(e) an employer

organisation;

(f) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

for a serious

contravention

—600 penalty

units; or

otherwise—60

penalty units

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Standing, jurisdiction and maximum penalties

Item Column 1

Civil remedy

provision

Column 2

Persons

Column 3

Courts

Column 4

Maximum

penalty

4 50 (other

than in

relation to a

contravention

or proposed

contravention

of a term that

would be an

outworker

term if it

were

included in a

modern

award)

(a) an employee;

(b) an employer;

organisation to

which the

enterprise

agreement

concerned

applies;

(d) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

for a serious

contravention

—600 penalty

units; or

otherwise—60

penalty units

5 50 (in

relation to a

contravention

or proposed

contravention

of a term that

would be an

outworker

term if it

were

included in a

modern

award)

(a) an employee;

(b) an employer;

organisation;

(d) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

for a serious

contravention

—600 penalty

units; or

otherwise—60

penalty units

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Standing, jurisdiction and maximum penalties

Item Column 1

Civil remedy

provision

Column 2

Persons

Column 3

Courts

Column 4

Maximum

penalty

Part 2-4—Enterprise agreements

5A 179(1)

179(5)

(a) an employee;

(b) a bargaining

representative for

the proposed

enterprise

agreement;

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

60 penalty

units

5B 180(4A)

180(4B)

180(4C)

(a) an employee;

(b) a bargaining

representative for

the proposed

enterprise

agreement;

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

60 penalty

units

6 233 (a) an employee who

the proposed

enterprise

agreement will

cover;

(b) a bargaining

representative for

the proposed

enterprise

agreement;

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

60 penalty

units

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Standing, jurisdiction and maximum penalties

Item Column 1

Civil remedy

provision

Column 2

Persons

Column 3

Courts

Column 4

Maximum

penalty

Part 2-5—Workplace determinations

7 280 (a) an employee;

(b) an employer;

organisation to

which the

workplace

determination

concerned

applies;

(d) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

for a serious

contravention

—600 penalty

units; or

otherwise—60

penalty units

Part 2-6—Minimum wages

8 293 (a) an employee;

(b) an employee

organisation;

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

for a serious

contravention

—600 penalty

units; or

otherwise—60

penalty units

Part 2-7—Equal remuneration

9 305 (a) an employee;

(b) an employee

organisation;

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

for a serious

contravention

—600 penalty

units; or

otherwise—60

penalty units

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Standing, jurisdiction and maximum penalties

Item Column 1

Civil remedy

provision

Column 2

Persons

Column 3

Courts

Column 4

Maximum

penalty

Part 2-9—Other terms and conditions of employment

10 323(1)

323(3)

325(1)

328(1)

328(2)

328(3)

(a) an employee;

(b) an employee

organisation;

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

for a serious

contravention

—600 penalty

units; or

otherwise—60

penalty units

10A 325(1A) (a) a prospective

employee;

(b) an employee;

organisation;

(d) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

for a serious

contravention

—600 penalty

units; or

otherwise—60

penalty units

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Standing, jurisdiction and maximum penalties

Item Column 1

Civil remedy

provision

Column 2

Persons

Column 3

Courts

Column 4

Maximum

penalty

Part 3-1—General protections

11 340(1)

340(2)

343(1)

344

345(1)

346

348

349(1)

350(1)

350(2)

351(1)

352

353(1)

354(1)

355

357(1)

358

359

369(3)

(a) a person affected

by the

contravention;

(b) an industrial

association;

(a) the Federal

Court;

(b) the Federal

Circuit Court

60 penalty

units

12 378 (a) a person to whom

the costs are

payable;

(b) an industrial

association;

(a) the Federal

Court;

(b) the Federal

Circuit Court

60 penalty

units

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Section 539

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Standing, jurisdiction and maximum penalties

Item Column 1

Civil remedy

provision

Column 2

Persons

Column 3

Courts

Column 4

Maximum

penalty

Part 3-2—Unfair dismissal

13 405 (a) a person affected

by the

contravention;

(b) an employee

organisation;

(d) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

60 penalty

units

Part 3-3—Industrial action

14 417(1) (a) an employee;

(b) an employer;

organisation

covered by the

enterprise

agreement or

workplace

determination

concerned;

(d) a person affected

by the industrial

action;

(e) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court

60 penalty

units

15 421(1) (a) a person affected

by the

contravention;

(b) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court

60 penalty

units

16 434 an inspector the Federal Court 60 penalty

units

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Standing, jurisdiction and maximum penalties

Item Column 1

Civil remedy

provision

Column 2

Persons

Column 3

Courts

Column 4

Maximum

penalty

17 458(2) (a) an employee;

(b) an employer;

the protected

action ballot

order;

(d) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court

30 penalty

units

18 462(1)

462(3)

(a) an employee;

(b) an employer;

the protected

action ballot

order;

(d) the protected

action ballot

agent;

(e) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court

30 penalty

units

19 463(1)

463(2)

(a) an employee;

(b) an employer;

the protected

action ballot

order;

(d) the protected

action ballot

agent;

(e) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court

60 penalty

units

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12 Fair Work Act 2009

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Standing, jurisdiction and maximum penalties

Item Column 1

Civil remedy

provision

Column 2

Persons

Column 3

Courts

Column 4

Maximum

penalty

20 467(1) (a) an employee;

(b) an employer;

the protected

action ballot

order;

(d) the protected

action ballot

agent;

(e) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court

30 penalty

units

21 470(1) an inspector (a) the Federal

Court;

(b) the Federal

Circuit Court

60 penalty

units

22 473(1)

473(2)

(a) an employer;

(b) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court

60 penalty

units

23 474(1) an inspector (a) the Federal

Court;

(b) the Federal

Circuit Court

60 penalty

units

24 475(1)

475(2)

(a) an employer;

(b) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court

60 penalty

units

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Standing, jurisdiction and maximum penalties

Item Column 1

Civil remedy

provision

Column 2

Persons

Column 3

Courts

Column 4

Maximum

penalty

Part 3-4—Right of entry

25 482(3)

483(4)

483B(4)

483C(5)

483D(4)

483E(5)

494(1)

495(1)

496

497

498

499

500

501

502(1)

503(1)

504

506

509

521C(3)

521D(3)

(a) a person affected

by the

contravention;

(b) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court

60 penalty

units

26 517(1) an inspector (a) the Federal

Court;

(b) the Federal

Circuit Court

60 penalty

units

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14 Fair Work Act 2009

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Standing, jurisdiction and maximum penalties

Item Column 1

Civil remedy

provision

Column 2

Persons

Column 3

Courts

Column 4

Maximum

penalty

Part 3-5—Stand down

27 527 (a) an employee;

(b) an employee

organisation;

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

60 penalty

units

Part 3-6—Other rights and responsibilities

28 530(4) (a) an employee;

(b) a registered

employee

association;

(a) the Federal

Court;

(b) the Federal

Circuit Court

30 penalty

units

29 535(1)

535(2)

535(4)

536(1)

536(2)

536(3)

(a) an employee;

(b) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

for a serious

contravention

—600 penalty

units; or

otherwise—60

penalty units

Part 4-1—Civil remedies

29A 558B(1)

558B(2)

(a) an employee;

(b) an employee

organisation;

(a) the Federal

Court;

(b) the Federal

Circuit Court

60 penalty

units

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Standing, jurisdiction and maximum penalties

Item Column 1

Civil remedy

provision

Column 2

Persons

Column 3

Courts

Column 4

Maximum

penalty

Part 5-1—The Fair Work Commission

30 611(3) (a) a person to whom

the costs are

payable;

(b) an employee

organisation;

(d) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

60 penalty

units

Part 5-2—Office of the Fair Work Ombudsman

30A 707A(1) an inspector (a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

60 penalty

units

31 711(3) an inspector (a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

30 penalty

units

32 712(3) an inspector (a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

60 penalty

units

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16 Fair Work Act 2009

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Standing, jurisdiction and maximum penalties

Item Column 1

Civil remedy

provision

Column 2

Persons

Column 3

Courts

Column 4

Maximum

penalty

32A 712B(1) an inspector (a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

600 penalty

units

33 716(5) an inspector (a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

30 penalty

units

33A 718A(1) an inspector (a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

60 penalty

units

Part 6-3—Extension of National Employment Standards entitlements

34 745(1)

760

(a) an employee;

(b) a registered

employee

association;

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

60 penalty

units

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Standing, jurisdiction and maximum penalties

Item Column 1

Civil remedy

provision

Column 2

Persons

Column 3

Courts

Column 4

Maximum

penalty

Part 6-3A—Transfer of business from a State public sector employer

34A 768AG (a) the transferring

employee;

(b) an employer;

organisation;

(d) an employer

organisation;

(e) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

60 penalty

units

34B 768BT (a) the transferring

employee;

(b) an employer;

organisation;

(d) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

60 penalty

units

Part 6-4—Additional provisions relating to termination of employment

35 772(1)

777(3)

(a) a person affected

by the

contravention;

(b) an industrial

association;

(a) the Federal

Court;

(b) the Federal

Circuit Court

60 penalty

units

36 782 (a) a person to whom

the costs are

payable;

(b) an industrial

association;

(a) the Federal

Court;

(b) the Federal

Circuit Court

60 penalty

units

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Standing, jurisdiction and maximum penalties

Item Column 1

Civil remedy

provision

Column 2

Persons

Column 3

Courts

Column 4

Maximum

penalty

37 785(4) (a) an employee;

(b) a registered

employee

association;

(a) the Federal

Court;

(b) the Federal

Circuit Court

30 penalty

units

Part 6-4B—Workers bullied at work

38 789FG (a) a person affected

by the

contravention;

(b) an industrial

association;

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

60 penalty

units

Part 6-4C—Coronavirus economic response

39 789GD (a) an employee;

(b) an employee

organisation;

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

for a serious

contravention

—600 penalty

units; or

otherwise—60

penalty units

40 789GDA(2)

789GDB(2)

789GDB(3)

789GU

789GW

(a) an employee;

(b) an employee

organisation;

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

60 penalty

units

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Standing, jurisdiction and maximum penalties

Item Column 1

Civil remedy

provision

Column 2

Persons

Column 3

Courts

Column 4

Maximum

penalty

41 789GXA (a) an employee;

(b) an employee

organisation;

(a) the Federal

Court;

(b) the Federal

Circuit Court;

State or

Territory court

600 penalty

units

(3) The regulations may provide that a provision set out in the

regulations is a civil remedy provision.

(4) If the regulations make provision as mentioned in subsection (3):

(a) the regulations must set out:

(i) the persons who would be referred to in column 2; and

(ii) the courts that would be referred to in column 3; and

(iii) the maximum penalty that would be referred to in

column 4;

of the table in subsection (2) if there were an item for the

civil remedy provision in the table; and

(b) this Part has effect as if the matters referred to

subparagraphs (a)(i) to (iii) were set out in such an item in

the table.

Note: See section 798 for limits on the penalties that may be set out in the

regulations.

540 Limitations on who may apply for orders etc.

Employees, employers, outworkers and outworker entities

(1) The following persons may apply for an order under this Division,

in relation to a contravention or proposed contravention of a civil

remedy provision, only if the person is affected by the

contravention, or will be affected by the proposed contravention:

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20 Fair Work Act 2009

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(a) an employee;

(aa) a prospective employee;

(b) an employer;

(d) an outworker entity.

Employee organisations and registered employee associations

(2) An employee organisation or a registered employee association

may apply for an order under this Division, in relation to a

contravention or proposed contravention of a civil remedy

provision in relation to an employee, only if:

(a) the employee is affected by the contravention, or will be

affected by the proposed contravention; and

(b) the organisation or association is entitled to represent the

industrial interests of the employee.

(3) However, subsection (2) does not apply in relation to:

(a) items 4, 7 and 14 in the table in subsection 539(2); or

(b) a contravention or proposed contravention of:

(i) an outworker term in a modern award; or

(ii) a term in an enterprise agreement that would be an

outworker term if it were included in a modern award.

(4) An employee organisation may apply for an order under this

Division, in relation to a contravention or proposed contravention

of:

(a) an outworker term in a modern award; or

(b) a term in an enterprise agreement that would be an outworker

term if it were included in a modern award;

only if the employee organisation is entitled to represent the

industrial interests of an outworker to whom the term relates.

Employer organisations

(5) An employer organisation may apply for an order under this

Division, in relation to a contravention or proposed contravention

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Section 541

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of a civil remedy provision, only if the organisation has a member

who is affected by the contravention, or who will be affected by

the proposed contravention.

Industrial associations

(6) An industrial association may apply for an order under this

Division, in relation to a contravention or proposed contravention

of a civil remedy provision, only if:

(a) the industrial association is affected by the contravention, or

will be affected by the proposed contravention; or

(b) if the contravention is in relation to a person:

(i) the person is affected by the contravention, or will be

affected by the proposed contravention; and

(ii) the industrial association is entitled to represent the

industrial interests of the person.

(7) If an item in column 2 of the table in subsection 539(2) refers to an

industrial association then, to avoid doubt, an employee

organisation, a registered employee association or an employer

organisation may apply for an order, in relation to a contravention

or proposed contravention of a civil remedy provision, only if the

organisation or association is entitled to apply for the order under

subsection (6).

Regulations

(8) The regulations may prescribe a person for the purposes of an item

in column 2 of the table in subsection 539(2). The regulations may

provide that the person is prescribed only in relation to

circumstances specified in the regulations.

541 Applications for orders in relation to safety net contractual

entitlements

(1) This section applies if an inspector applies to a court for an order

under this Division, in relation to an employer’s contravention or

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22 Fair Work Act 2009

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proposed contravention of a provision or term referred to in

subsection (3) in relation to an employee.

(2) The inspector may also apply to the court, on behalf of the

employee, for an order in relation to the employer’s contravention,

or proposed contravention, of a safety net contractual entitlement

of the employee.

(3) The provisions and terms are the following:

(a) a provision of the National Employment Standards;

(b) a term of a modern award;

(d) a term of a workplace determination;

(e) a term of a national minimum wage order;

(f) a term of an equal remuneration order.

542 Entitlements under contracts

(1) For the purposes of this Part, a safety net contractual entitlement of

a national system employer or a national system employee, as in

force from time to time, also has effect as an entitlement of the

employer or employee under this Act.

(2) The entitlement has effect under this Act subject to any

modifications, by a law of the Commonwealth (including this Act

or a fair work instrument), a State or a Territory, of the safety net

contractual entitlement.

543 Applications for orders in relation to statutory entitlements

derived from contracts

A national system employer or a national system employee may

apply to the Federal Court or the Federal Circuit Court to enforce

an entitlement of the employer or employee arising under

subsection 542(1).

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Section 544

Fair Work Act 2009 23

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544 Time limit on applications

A person may apply for an order under this Division in relation to a

contravention of one of the following only if the application is

made within 6 years after the day on which the contravention

occurred:

(a) a civil remedy provision;

(b) a safety net contractual entitlement;

Note 1: This section does not apply in relation to general protections court

applications or unlawful termination court applications (see

subparagraphs 370(a)(ii) and 778(a)(ii)).

Note 2: For time limits on orders relating to underpayments, see

subsection 545(5).

Subdivision B—Orders

545 Orders that can be made by particular courts

Federal Court and Federal Circuit Court

(1) The Federal Court or the Federal Circuit Court may make any

order the court considers appropriate if the court is satisfied that a

person has contravened, or proposes to contravene, a civil remedy

provision.

Note 1: For the court’s power to make pecuniary penalty orders, see

section 546.

Note 2: For limitations on orders in relation to costs, see section 570.

Note 3: The Federal Court and the Federal Circuit Court may grant injunctions

in relation to industrial action under subsections 417(3) and 421(3).

Note 4: There are limitations on orders that can be made in relation to

contraventions of subsection 65(5), 76(4), 463(1) or 463(2) (which

deal with reasonable business grounds and protected action ballot

orders) (see subsections 44(2), 463(3) and 745(2)).

(2) Without limiting subsection (1), orders the Federal Court or

Federal Circuit Court may make include the following:

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24 Fair Work Act 2009

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(a) an order granting an injunction, or interim injunction, to

prevent, stop or remedy the effects of a contravention;

(b) an order awarding compensation for loss that a person has

suffered because of the contravention;

Eligible State or Territory courts

(3) An eligible State or Territory court may order an employer to pay

an amount to, or on behalf of, an employee of the employer if the

court is satisfied that:

(a) the employer was required to pay the amount under this Act

or a fair work instrument; and

(b) the employer has contravened a civil remedy provision by

failing to pay the amount.

Note 1: For the court’s power to make pecuniary penalty orders, see

section 546.

Note 2: For limitations on orders in relation to costs, see section 570.

(3A) An eligible State or Territory court may order an outworker entity

to pay an amount to, or on behalf of, an outworker if the court is

satisfied that:

(a) the outworker entity was required to pay the amount under a

modern award; and

(b) the outworker entity has contravened a civil remedy

provision by failing to pay the amount.

Note 1: For the court’s power to make pecuniary penalty orders, see

section 546.

Note 2: For limitations on orders in relation to costs, see section 570.

When orders may be made

(4) A court may make an order under this section:

(a) on its own initiative, during proceedings before the court; or

(b) on application.

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Time limit for orders in relation to underpayments

(5) A court must not make an order under this section in relation to an

underpayment that relates to a period that is more than 6 years

before the proceedings concerned commenced.

546 Pecuniary penalty orders

(1) The Federal Court, the Federal Circuit Court or an eligible State or

Territory court may, on application, order a person to pay a

pecuniary penalty that the court considers is appropriate if the court

is satisfied that the person has contravened a civil remedy

provision.

Note: Pecuniary penalty orders cannot be made in relation to conduct that

contravenes a term of a modern award, a national minimum wage

order or an enterprise agreement only because of the retrospective

effect of a determination (see subsections 167(3) and 298(2)).

Determining amount of pecuniary penalty

(2) The pecuniary penalty must not be more than:

(a) if the person is an individual—the maximum number of

penalty units referred to in the relevant item in column 4 of

the table in subsection 539(2); or

(b) if the person is a body corporate—5 times the maximum

number of penalty units referred to in the relevant item in

column 4 of the table in subsection 539(2).

Payment of penalty

(3) The court may order that the pecuniary penalty, or a part of the

penalty, be paid to:

(a) the Commonwealth; or

(b) a particular organisation; or

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Recovery of penalty

(4) The pecuniary penalty may be recovered as a debt due to the

person to whom the penalty is payable.

No limitation on orders

(5) To avoid doubt, a court may make a pecuniary penalty order in

addition to one or more orders under section 545.

547 Interest up to judgment

(1) This section applies to an order (other than a pecuniary penalty

order) under this Division in relation to an amount that a person

was required to pay to, or on behalf of, another person under this

Act or a fair work instrument.

(2) In making the order the court must, on application, include an

amount of interest in the sum ordered, unless good cause is shown

to the contrary.

(3) Without limiting subsection (2), in determining the amount of

interest, the court must take into account the period between the

day the relevant cause of action arose and the day the order is

made.

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Section 548

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Division 3—Small claims procedure

548 Plaintiffs may choose small claims procedure

(1) Proceedings are to be dealt with as small claims proceedings under

this section if:

(a) a person applies for an order (other than a pecuniary penalty

order) under Division 2 from a magistrates court or the

Federal Circuit Court; and

(b) the order relates to an amount referred to in subsection (1A);

and

regulations or by the rules of the court, that he or she wants

the small claims procedure to apply to the proceedings.

(1A) The amounts are as follows:

(a) an amount that an employer was required to pay to, or on

behalf of, an employee:

(i) under this Act or a fair work instrument; or

(ii) because of a safety net contractual entitlement; or

(iii) because of an entitlement of the employee arising under

subsection 542(1);

(b) an amount that an outworker entity was required to pay to, or

on behalf of, an outworker under a modern award.

Limits on award

(2) In small claims proceedings, the court may not award more than:

(a) $20,000; or

(b) if a higher amount is prescribed by the regulations—that

higher amount.

Procedure

(3) In small claims proceedings, the court is not bound by any rules of

evidence and procedure and may act:

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(a) in an informal manner; and

(b) without regard to legal forms and technicalities.

(4) At any stage of the small claims proceedings, the court may amend

the papers commencing the proceedings if sufficient notice is given

to any party adversely affected by the amendment.

Legal representation

(5) A party to small claims proceedings may be represented in the

proceedings by a lawyer only with the leave of the court.

(6) If the court grants leave for a party to the proceedings to be

represented by a lawyer, the court may, if it considers appropriate,

do so subject to conditions designed to ensure that no other party is

unfairly disadvantaged.

(7) For the purposes of this section, a person is taken not to be

represented by a lawyer if the lawyer is an employee or officer of

the person.

Representation by an industrial association

(8) The regulations may provide for a party to small claims

proceedings to be represented in the proceedings, in specified

circumstances, by an official of an industrial association.

(9) However, if small claims proceedings are heard in a court of a

State, the regulations may so provide only if the law of the State

allows a party to be represented in that court in those

circumstances by officials of bodies representing interests related

to the matters in dispute.

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Section 549

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Division 4—General provisions relating to civil remedies

549 Contravening a civil remedy provision is not an offence

A contravention of a civil remedy provision is not an offence.

550 Involvement in contravention treated in same way as actual

contravention

(1) A person who is involved in a contravention of a civil remedy

provision is taken to have contravened that provision.

Note: If a person (the involved person) is taken under this subsection to have

contravened a civil remedy provision, the involved person’s

contravention may be a serious contravention (see

subsection 557A(5A)). Serious contraventions attract higher

maximum penalties (see subsection 539(2)).

(2) A person is involved in a contravention of a civil remedy provision

if, and only if, the person:

(a) has aided, abetted, counselled or procured the contravention;

(b) has induced the contravention, whether by threats or

promises or otherwise; or

indirectly, knowingly concerned in or party to the

contravention; or

(d) has conspired with others to effect the contravention.

551 Civil evidence and procedure rules for proceedings relating to

civil remedy provisions

A court must apply the rules of evidence and procedure for civil

matters when hearing proceedings relating to a contravention, or

proposed contravention, of a civil remedy provision.

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552 Civil proceedings after criminal proceedings

A court must not make a pecuniary penalty order against a person

for a contravention of a civil remedy provision if the person has

been convicted of an offence constituted by conduct that is

substantially the same as the conduct constituting the

contravention.

553 Criminal proceedings during civil proceedings

(1) Proceedings for a pecuniary penalty order against a person for a

contravention of a civil remedy provision are stayed if:

(a) criminal proceedings are commenced or have already

commenced against the person for an offence; and

(b) the offence is constituted by conduct that is substantially the

same as the conduct in relation to which the order would be

made.

(2) The proceedings for the order may be resumed if the person is not

convicted of the offence. Otherwise, the proceedings for the order

are dismissed.

554 Criminal proceedings after civil proceedings

Criminal proceedings may be commenced against a person for

conduct that is substantially the same as conduct constituting a

contravention of a civil remedy provision regardless of whether an

order has been made against the person under Division 2.

555 Evidence given in proceedings for pecuniary penalty not

admissible in criminal proceedings

(1) Evidence of information given, or evidence of production of

documents, by an individual is not admissible in criminal

proceedings against the individual if:

(a) the individual previously gave the information or produced

the documents in proceedings for a pecuniary penalty order

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against the individual for a contravention of a civil remedy

provision (whether or not the order was made); and

(b) the conduct alleged to constitute the offence is substantially

the same as the conduct in relation to which the order was

sought.

(2) However, this does not apply to criminal proceedings in relation to

the falsity of the evidence given by the individual in the

proceedings for the pecuniary penalty order.

556 Civil double jeopardy

If a person is ordered to pay a pecuniary penalty under a civil

remedy provision in relation to particular conduct, the person is not

liable to be ordered to pay a pecuniary penalty under some other

provision of a law of the Commonwealth in relation to that

conduct.

Note: A court may make other orders, such as an order for compensation, in

relation to particular conduct even if the court has made a pecuniary

penalty order in relation to that conduct (see subsection 546(5)).

557 Course of conduct

(1) For the purposes of this Part, 2 or more contraventions of a civil

remedy provision referred to in subsection (2) are, subject to

subsection (3), taken to constitute a single contravention if:

(a) the contraventions are committed by the same person; and

(b) the contraventions arose out of a course of conduct by the

person.

(2) The civil remedy provisions are the following:

(a) subsection 44(1) (which deals with contraventions of the

National Employment Standards);

(b) section 45 (which deals with contraventions of modern

awards);

agreements);

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(d) section 280 (which deals with contraventions of workplace

determinations);

(e) section 293 (which deals with contraventions of national

minimum wage orders);

(f) section 305 (which deals with contraventions of equal

remuneration orders);

(g) subsection 323(1) (which deals with methods and frequency

of payment);

(h) subsection 323(3) (which deals with methods of payment

specified in modern awards or enterprise agreements);

(i) subsection 325(1) (which deals with unreasonable

requirements on employees to spend or pay amounts);

(ia) subsection 325(1A) (which deals with unreasonable

requirements on prospective employees to spend or pay

amounts);

(j) subsection 417(1) (which deals with industrial action before

the nominal expiry date of an enterprise agreement etc.);

(k) subsection 421(1) (which deals with contraventions of orders

in relation to industrial action);

(l) section 434 (which deals with contraventions of Ministerial

directions in relation to industrial action);

(m) subsection 530(4) (which deals with notifying Centrelink of

certain proposed dismissals);

(n) subsections 535(1), (2) and (4) (which deal with employer

obligations in relation to employee records);

(o) subsections 536(1), (2) and (3) (which deal with employer

obligations in relation to pay slips);

(p) subsection 745(1) (which deals with contraventions of the

extended parental leave provisions);

(q) section 760 (which deals with contraventions of the extended

notice of termination provisions);

(r) subsection 785(4) (which deals with notifying Centrelink of

certain proposed terminations);

(s) any other civil remedy provisions prescribed by the

regulations.

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(3) Subsection (1) does not apply to a contravention of a civil remedy

provision that is committed by a person after a court has imposed a

pecuniary penalty on the person for an earlier contravention of the

provision.

557A Serious contravention of civil remedy provisions

(1) A contravention of a civil remedy provision by a person is a

serious contravention if:

(a) the person knowingly contravened the provision; and

(b) the person’s conduct constituting the contravention was part

of a systematic pattern of conduct relating to one or more

other persons.

Note: For the liability of bodies corporate for serious contraventions, see

section 557B.

Example: Generally, subsection 323(1) requires an employer to pay an employee

the full amount payable to the employee in relation to the performance

of work.

A contravention of subsection 323(1) is a serious contravention if the

employer knowingly does not pay the employee in full (even if the

employer does not know the exact amount of the underpayment) and

that contravention is part of a systematic pattern of conduct by the

employer. The systematic pattern of conduct of the employer may

relate to more than one employee and may consist of different

contraventions.

Systematic pattern of conduct

(2) In determining whether the person’s conduct constituting the

contravention of the provision was part of a systematic pattern of

conduct, a court may have regard to:

(a) the number of contraventions (the relevant contraventions)

of this Act committed by the person; and

(b) the period over which the relevant contraventions occurred;

and

contraventions; and

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(ca) the person’s response, or failure to respond, to any

complaints made about the relevant contraventions; and

(d) except if the provision contravened is section 535—whether

the person also contravened subsection 535(1), (2) or (4) by

failing to make or keep, in accordance with that section, an

employee record relating to the conduct constituting the

relevant contraventions; and

(e) except if the provision contravened is section 536—whether

the person also contravened subsection 536(1), (2) or (3) by

failing to give, in accordance with that section, a pay slip

relating to the conduct constituting the relevant

contraventions.

(3) Subsection (2) does not limit the matters that a court may have

regard to.

(4) Subsection 557(1) does not apply for the purposes of determining

whether the person’s conduct was part of a systematic pattern of

conduct.

(5) Subsection (4) does not otherwise affect the operation of

subsection 557(1) in relation to serious contraventions of civil

remedy provisions.

Involvement in a serious contravention

(5A) A person (the involved person) who is involved in a contravention

of a civil remedy provision by another person (the principal)

commits a serious contravention of the provision only if:

(a) the principal’s contravention was a serious contravention;

and

(b) the involved person knew that the principal’s contravention

was a serious contravention.

Application for a serious contravention order and alternative

orders

(6) If a person is applying for an order in relation to a serious

contravention of a civil remedy provision, the person’s application

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under subsection 539(2) must specify the relevant serious

contravention.

(7) If, in proceedings for an order in relation to a serious contravention

of a civil remedy provision, the court:

(a) is not satisfied that the person has committed a serious

contravention against that provision; and

(b) is satisfied that the person has contravened that provision;

the court may make a pecuniary penalty order against the person

not for the serious contravention but for the contravention of that

provision.

557B Liability of bodies corporate for serious contravention

(1) For the purposes of subsection 557A(1), a body corporate

knowingly contravenes a civil remedy provision if the body

corporate expressly, tacitly or impliedly authorised the

contravention.

(2) This section does not limit section 793.

557C Presumption where records not provided

(1) If:

(a) in proceedings relating to a contravention by an employer of

a civil remedy provision referred to in subsection (3), an

applicant makes an allegation in relation to a matter; and

(b) the employer was required:

(i) by subsection 535(1) or (2) to make and keep a record;

(ii) by regulations made for the purposes of

subsection 535(3) to make available for inspection a

record; or

(iii) by subsection 536(1) or (2) to give a pay slip;

in relation to the matter; and

the employer has the burden of disproving the allegation.

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(2) Subsection (1) does not apply if the employer provides a

reasonable excuse as to why there has not been compliance with

subsection 557C(1)(b).

(3) The civil remedy provisions are the following:

(a) subsection 44(1) (which deals with contraventions of the

National Employment Standards);

(b) section 45 (which deals with contraventions of modern

awards);

agreements);

(d) section 280 (which deals with contraventions of workplace

determinations);

(e) section 293 (which deals with contraventions of national

minimum wage orders);

(f) section 305 (which deals with contraventions of equal

remuneration orders);

(g) subsection 323(1) (which deals with methods and frequency

of payment);

(h) subsection 323(3) (which deals with methods of payment

specified in modern awards or enterprise agreements);

(i) subsection 325(1) (which deals with unreasonable

requirements to spend or pay amounts);

(j) any other civil remedy provisions prescribed by the

regulations.

558 Regulations dealing with infringement notices

(1) The regulations may provide for a person who is alleged to have

contravened a civil remedy provision to pay a penalty to the

Commonwealth as an alternative to civil proceedings.

(2) The penalty must not exceed one-tenth of the maximum penalty

that a court could have ordered the person to pay under section 546

if the court was satisfied that the person had contravened that

provision.

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Division 4A—Responsibility of responsible franchisor

entities and holding companies for certain

contraventions

558A Meaning of franchisee entity and responsible franchisor entity

(1) A person is a franchisee entity of a franchise if:

(a) the person is a franchisee (including a subfranchisee) in

relation to the franchise; and

(b) the business conducted by the person under the franchise is

substantially or materially associated with intellectual

property relating to the franchise.

(2) A person is a responsible franchisor entity for a franchisee entity

of a franchise if:

(a) the person is a franchisor (including a subfranchisor) in

relation to the franchise; and

(b) the person has a significant degree of influence or control

over the franchisee entity’s affairs.

558B Responsibility of responsible franchisor entities and holding

companies for certain contraventions

Responsible franchisor entities

(1) A person contravenes this subsection if:

(a) an employer who is a franchisee entity of a franchise

contravenes a civil remedy provision referred to in

subsection (7); and

(b) the person is a responsible franchisor entity for the franchisee

entity; and

franchisee entity’s capacity as a franchisee entity; and

(d) either:

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(i) the responsible franchisor entity or an officer (within the

meaning of the Corporations Act 2001) of the

responsible franchisor entity knew or could reasonably

be expected to have known that the contravention by the

franchisee entity would occur; or

(ii) at the time of the contravention by the franchisee entity,

the responsible franchisor entity or an officer (within the

meaning of the Corporations Act 2001) of the

responsible franchisor entity knew or could reasonably

be expected to have known that a contravention by the

franchisee entity of the same or a similar character was

likely to occur.

Note: This subsection is a civil remedy provision (see this Part).

Holding companies

(2) A person contravenes this subsection if:

(a) the person is a body corporate; and

(b) a subsidiary (within the meaning of the Corporations Act

2001) of the body corporate who is an employer contravenes

a civil remedy provision referred to in subsection (7); and

(i) the body corporate or an officer (within the meaning of

the Corporations Act 2001) of the body corporate knew

or could reasonably be expected to have known that the

contravention by the subsidiary would occur; or

(ii) at the time of the contravention by the subsidiary, the

body corporate or an officer (within the meaning of the

Corporations Act 2001) of the body corporate knew or

could reasonably be expected to have known that a

contravention by the subsidiary of the same or a similar

character was likely to occur.

Note: This subsection is a civil remedy provision (see this Part).

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Reasonable steps to prevent a contravention of the same or a

similar character

(3) A person does not contravene subsection (1) or (2) if, as at the time

of the contravention referred to in paragraph (1)(a) or (2)(b), the

person had taken reasonable steps to prevent a contravention by the

franchisee entity or subsidiary of the same or a similar character.

(4) For the purposes of subsection (3), in determining whether a

person took reasonable steps to prevent a contravention by a

franchisee entity or subsidiary (the contravening employer) of the

same or a similar character, a court may have regard to all relevant

matters, including the following:

(a) the size and resources of the franchise or body corporate (as

the case may be);

(b) the extent to which the person had the ability to influence or

control the contravening employer’s conduct in relation to

the contravention referred to in paragraph (1)(a) or (2)(b) or a

contravention of the same or a similar character;

contravening employer had a reasonable knowledge and

understanding of the requirements under the applicable

provisions referred to in subsection (7);

(d) the person’s arrangements (if any) for assessing the

contravening employer’s compliance with the applicable

provisions referred to in subsection (7);

(e) the person’s arrangements (if any) for receiving and

addressing possible complaints about alleged underpayments

or other alleged contraventions of this Act within:

(i) the franchise; or

(ii) the body corporate or any subsidiary (within the

meaning of the Corporations Act 2001) of the body

corporate;

as the case may be;

(f) the extent to which the person’s arrangements (whether legal

or otherwise) with the contravening employer encourage or

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require the contravening employer to comply with this Act or

any other workplace law.

(5) Subsection (4) does not limit subsection (3).

Civil proceedings in relation to contravention by franchisee entity

or subsidiary not required

(6) To avoid doubt, a reference in paragraph (1)(a) or (2)(b) to a

contravention by a franchisee entity or subsidiary includes any

contravention whether or not an order has been sought or made

against the franchisee entity or subsidiary under Division 2 for the

contravention.

Relevant civil remedy provisions

(7) The civil remedy provisions are the following:

(a) subsection 44(1) (which deals with contraventions of the

National Employment Standards);

(b) section 45 (which deals with contraventions of modern

awards);

agreements);

(d) section 280 (which deals with contraventions of workplace

determinations);

(e) section 293 (which deals with contraventions of national

minimum wage orders);

(f) section 305 (which deals with contraventions of equal

remuneration orders);

(g) subsection 323(1) (which deals with methods and frequency

of payment);

(h) subsection 323(3) (which deals with methods of payment

specified in modern awards or enterprise agreements);

(i) subsection 325(1) (which deals with unreasonable

requirements on employees to spend or pay amounts);

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(ia) subsection 325(1A) (which deals with unreasonable

requirements on prospective employees to spend or pay

amounts);

(j) subsection 328(1), (2) or (3) (which deal with employer

obligations in relation to guarantees of annual earnings);

(k) subsection 357(1) (which deals with misrepresenting

employment as an independent contracting arrangement);

(l) section 358 (which deals with dismissing an employee to

engage as an independent contractor);

(m) section 359 (which deals with misrepresentations to engage

an individual as an independent contractor);

(n) subsection 535(1), (2) or (4) (which deal with employer

obligations in relation to employee records);

(o) subsection 536(1), (2) or (3) (which deal with employer

obligations in relation to pay slips).

558C Right of responsible franchisor entity or holding company to

recover

(1) This section applies if:

(a) a person pays an amount to, or on behalf of, an employee

pursuant to an order under subsection 545(1) relating to a

contravention by the person of subsection 558B(1) or (2) in

relation to a franchisee entity or subsidiary (the contravening

employer); and

(b) the person has not otherwise recovered from the contravening

employer an amount (the recoverable amount) equal to the

amount paid by the person.

(2) The person may commence proceedings against the contravening

employer for payment to the person of so much of the recoverable

amount as has not been recovered.

(3) The proceedings may be commenced in:

(a) the Federal Court; or

(b) the Federal Circuit Court; or

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(4) The court may make an order requiring the contravening employer

to pay the person the recoverable amount (or so much of it as has

not been recovered from the contravening employer), if the court is

satisfied that this section applies as referred to in subsection (1).

(5) In making the order, the court must, on application, include an

amount of interest in the sum ordered, unless good cause is shown

to the contrary.

(6) Without limiting subsection (5), in determining the amount of

interest, the court must take into account the period between the

day when the amount referred to in paragraph (1)(a) was paid by

the person and the day when the order is made.

(7) Proceedings cannot be commenced under this section more than 6

years after the time when the person paid the amount referred to in

paragraph (1)(a).

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Division 5—Unclaimed money

559 Unclaimed money

Payment to the Commonwealth

(1) An employer may pay an amount to the Commonwealth if:

(a) the employer was required to pay the amount to an employee

under this Act or a fair work instrument; and

(b) the employee has left the employment of the employer

without having been paid the amount; and

because the employer does not know the employee’s

whereabouts.

Discharge of employer

(2) Payment of the amount to the Commonwealth is a sufficient

discharge to the employer, as against the employee, for the amount

paid.

Payment where money later claimed

(3) The Fair Work Ombudsman, on behalf of the Commonwealth,

must pay an amount to a person if:

(a) the amount has been paid to the Commonwealth under this

section; and

(b) the person has made a claim for the amount in accordance

with the form prescribed by the regulations; and

entitled to the amount.

Interest

(3A) If:

(a) an amount is paid to a person under subsection (3) at a

particular time; and

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(b) the amount is at least $100; and

Commonwealth under subsection (1) more than 6 months

before that time;

the Fair Work Ombudsman, on behalf of the Commonwealth, must

also pay to the person the amount of interest (if any) worked out in

accordance with an instrument under subsection (3B).

(3B) The Minister may make an instrument for the purposes of

subsection (3A).

(3C) An instrument under subsection (3B) may involve different rates of

interest for different periods over which the interest accrues. For

this purpose, rate includes a nil rate.

(3D) An instrument made under subsection (3B) is a legislative

instrument.

Appropriation of Consolidated Revenue Fund

(4) The Consolidated Revenue Fund is appropriated for the purposes

of subsection (3).

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Part 4-2—Jurisdiction and powers of courts

Division 1—Introduction

560 Guide to this Part

This Part is about the jurisdiction and powers of the courts in

relation to matters arising under this Act.

Divisions 2 and 3 confer jurisdiction on the Federal Court and the

Federal Circuit Court. That jurisdiction is generally required to be

exercised in the Fair Work Divisions of those courts.

Division 4 deals with intervention, costs, limitation on

imprisonment, and regulations, in relation to proceedings in the

Federal Court, the Federal Circuit Court and, in some cases, a court

of a State or Territory.

561 Meanings of employee and employer

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

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

employees in certain circumstances).

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Division 2—Jurisdiction and powers of the Federal Court

562 Conferring jurisdiction on the Federal Court

Jurisdiction is conferred on the Federal Court in relation to any

matter (whether civil or criminal) arising under this Act.

563 Exercising jurisdiction in the Fair Work Division of the Federal

Court

The jurisdiction conferred on the Federal Court under section 562

is to be exercised in the Fair Work Division of the Federal Court if:

(a) an application is made to the Federal Court under this Act; or

(b) a writ of mandamus or prohibition or an injunction is sought

in the Federal Court against a person holding office under

this Act; or

of Australia Act 1976 in relation to a matter arising under this

Act; or

(d) an injunction is sought under section 23 of the Federal Court

of Australia Act 1976 in relation to a matter arising under this

Act; or

(e) a prosecution is instituted in the Federal Court under this Act;

(f) an appeal is instituted in the Federal Court from a judgment

of the Federal Circuit Court or a court of a State or Territory

in a matter arising under this Act; or

(g) proceedings in relation to a matter arising under this Act are

transferred to the Federal Court from the Federal Circuit

Court; or

(h) the Federal Circuit Court or a court of a State or Territory

states a case or reserves a question for the consideration of

the Federal Court in a matter arising under this Act; or

(i) the President refers, under section 608 of this Act, a question

of law to the Federal Court; or

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(j) the High Court remits a matter arising under this Act to the

Federal Court.

564 No limitation on Federal Court’s powers

To avoid doubt, nothing in this Act limits the Federal Court’s

powers under section 21, 22 or 23 of the Federal Court of

Australia Act 1976.

565 Appeals from eligible State or Territory courts

Appeals from original decisions of eligible State or Territory

courts

(1) An appeal lies to the Federal Court from a decision of an eligible

State or Territory court exercising jurisdiction under this Act.

(1A) No appeal lies from a decision of an eligible State or Territory

court exercising jurisdiction under this Act, except:

(a) if the court was exercising summary jurisdiction—an appeal,

to that court or another eligible State or Territory court of the

same State or Territory, as provided for by a law of that State

or Territory; or

(b) in any case—an appeal as provided for by subsection (1).

Appeals from appellate decisions of eligible State or Territory

courts

(1B) An appeal lies to the Federal Court from a decision of an eligible

State or Territory court made on appeal from a decision that:

(a) was a decision of that court or another eligible State or

Territory court of the same State or Territory; and

(b) was made in the exercise of jurisdiction under this Act.

(1C) No appeal lies from a decision to which subsection (1B) applies,

except an appeal as provided for by that subsection.

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Leave to appeal not required

(2) It is not necessary to obtain the leave of the Federal Court, or the

court appealed from, in relation to an appeal under subsection (1)

or (1B).

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Division 3—Jurisdiction and powers of the Federal Circuit

Court

566 Conferring jurisdiction on the Federal Circuit Court

Jurisdiction is conferred on the Federal Circuit Court in relation to

any civil matter arising under this Act.

567 Exercising jurisdiction in the Fair Work Division of the Federal

Circuit Court

Jurisdiction conferred on the Federal Circuit Court under

section 566 is to be exercised in the Fair Work Division of the

Federal Circuit Court if:

(a) an application is made to the Federal Circuit Court under this

Act; or

(b) an injunction is sought under section 15 of the Federal

Circuit Court of Australia Act 1999 in relation to a matter

arising under this Act; or

Circuit Court of Australia Act 1999 in relation to a matter

arising under this Act; or

(d) proceedings in relation to a matter arising under this Act are

transferred to the Federal Circuit Court from the Federal

Court; or

(e) the High Court remits a matter arising under this Act to the

Federal Circuit Court.

568 No limitation on Federal Circuit Court’s powers

To avoid doubt, nothing in this Act limits the Federal Circuit

Court’s powers under section 14, 15 or 16 of the Federal Circuit

Court of Australia Act 1999.

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Division 4—Miscellaneous

569 Minister’s entitlement to intervene

(1) The Minister may intervene on behalf of the Commonwealth in

proceedings before a court (including a court of a State or

Territory) in relation to a matter arising under this Act if the

Minister believes it is in the public interest to do so.

(2) If the Minister intervenes, the Minister is taken to be a party to the

proceedings for the purposes of instituting an appeal from a

judgment given in the proceedings.

(3) Despite section 570, a court may make an order as to costs against

the Commonwealth if:

(a) the Minister intervenes under subsection (1); or

(b) the Minister institutes an appeal from a judgment as referred

to in subsection (2).

569A State or Territory Minister’s entitlement to intervene

(1) The Minister of a State or Territory who has responsibility for

workplace relations matters may intervene on behalf of the State or

Territory in proceedings before a court (including a court of a State

or Territory) in relation to a matter arising under this Act if he or

she believes it is in the public interest of the State or Territory to do

so.

(2) If the Minister of a State or Territory who has responsibility for

workplace relations matters intervenes, he or she is taken to be a

party to the proceedings for the purposes of instituting an appeal

from a judgment given in the proceedings.

(3) Despite section 570, a court may make an order as to costs against

a State or Territory if:

(a) the Minister of a State or Territory who has responsibility for

workplace relations matters intervenes under subsection (1);

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(b) he or she institutes an appeal from a judgment as referred to

in subsection (2).

570 Costs only if proceedings instituted vexatiously etc.

(1) A party to proceedings (including an appeal) in a court (including a

court of a State or Territory) in relation to a matter arising under

this Act may be ordered by the court to pay costs incurred by

another party to the proceedings only in accordance with

subsection (2) or section 569 or 569A.

Note: The Commonwealth might be ordered to pay costs under section 569.

A State or Territory might be ordered to pay costs under section 569A.

(2) The party may be ordered to pay the costs only if:

(a) the court is satisfied that the party instituted the proceedings

vexatiously or without reasonable cause; or

(b) the court is satisfied that the party’s unreasonable act or

omission caused the other party to incur the costs; or

(i) the party unreasonably refused to participate in a matter

before the FWC;

(ii) the matter arose from the same facts as the proceedings.

571 No imprisonment for failure to pay pecuniary penalty

(1) A court (including a court of a State or Territory) may not order a

person to serve a sentence of imprisonment if the person fails to

pay a pecuniary penalty imposed under this Act.

(2) This section applies despite any other law of the Commonwealth, a

State or a Territory.

572 Regulations dealing with matters relating to court proceedings

The regulations may provide for the fees to be charged in relation

to proceedings in a court (including a court of a State or Territory)

under this Act.

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Chapter 5—Administration

Part 5-1—The Fair Work Commission

Division 1—Introduction

573 Guide to this Part

This Part is about the Fair Work Commission.

Division 2 establishes and confers functions on the FWC. The

FWC consists of the President, Vice Presidents, Deputy Presidents,

Commissioners and Expert Panel Members. Division 2 also

confers functions on the President.

Division 3 deals with the conduct of matters before the FWC (such

as applications, representation by lawyers, the FWC’s decisions

and appeals).

Division 4 deals with the organisation of the FWC, who may

perform functions of the FWC and delegation of the FWC’s

functions and powers. Certain functions must be performed by a

Full Bench or an Expert Panel.

Division 5 deals with the appointment, terms and conditions of

FWC Members.

Division 6 deals with cooperation with the States.

Division 7 deals with the FWC’s seal. It also deals with other

powers and functions of the President and the General Manager

(including in relation to annual reports, reports on making

enterprise agreements, arrangements with certain courts, and

disclosing information obtained by the FWC).

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Division 8 is about the General Manager of the FWC (whose

function is to assist the President), staff of the FWC and others

assisting the FWC.

Division 9 contains offences in relation to the FWC.

574 Meanings of employee and employer

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

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

employees in certain circumstances).

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Division 2—Establishment and functions of the Fair Work

Commission

Subdivision A—Establishment and functions of the Fair Work

Commission

575 Establishment of the Fair Work Commission

(1) The body known immediately before the commencement of this

subsection as Fair Work Australia is continued in existence as the

Fair Work Commission.

Note: See also subsection 25B(1) of the Acts Interpretation Act 1901.

(2) The Fair Work Commission consists of:

(a) the President; and

(aa) 2 Vice Presidents; and

(b) such number of Deputy Presidents as, from time to time, hold

office under this Act; and

(d) 6 Expert Panel Members.

Note: The Fair Work Commission also has a General Manager and staff (see

Division 8).

576 Functions of the FWC

(1) The FWC has the functions conferred by this Act in relation to the

following subject matters:

(a) the National Employment Standards (Part 2-2);

(b) modern awards (Part 2-3);

(d) workplace determinations (Part 2-5);

(e) minimum wages (Part 2-6);

(f) equal remuneration (Part 2-7);

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(g) transfer of business (Part 2-8);

(h) general protections (Part 3-1);

(i) unfair dismissal (Part 3-2);

(j) industrial action (Part 3-3);

(k) right of entry (Part 3-4);

(l) stand down (Part 3-5);

(m) other rights and responsibilities (Part 3-6);

(n) the extension of the National Employment Standards

entitlements (Part 6-3);

(na) transfer of business from a State public sector employer

(Part 6-3A);

(o) unlawful termination protections (Part 6-4);

(p) special provisions about TCF outworkers (Part 6-4A);

(q) workers bullied at work (Part 6-4B);

(r) Coronavirus economic response (Part 6-4C).

(2) The FWC also has the following functions:

(aa) promoting cooperative and productive workplace relations

and preventing disputes;

(a) dealing with disputes as referred to in section 595;

(b) providing assistance and advice about its functions and

activities;

arrangement under section 650 or 653A;

(ca) mediating any proceedings, part of proceedings or matter

arising out of any proceedings that, under section 53A of the

Federal Court of Australia Act 1976 or section 34 of the

Federal Circuit Court of Australia Act 1999, have been

referred by the Fair Work Division of the Federal Court or

Federal Circuit Court to the FWC for mediation;

(d) any other function conferred on the FWC by a law of the

Commonwealth.

Note: Section 13 of the Registered Organisations Act confers an additional

function on the FWC.

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577 Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a

manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs

its functions and exercises its powers efficiently etc. (see section 581).

578 Matters the FWC must take into account in performing

functions etc.

In performing functions or exercising powers, in relation to a

matter, under a part of this Act (including this Part), the FWC must

take into account:

(a) the objects of this Act, and any objects of the part of this Act;

and

(b) equity, good conscience and the merits of the matter; and

by helping to prevent and eliminate discrimination on the

basis of race, colour, sex, sexual orientation, age, physical or

mental disability, marital status, family or carer’s

responsibilities, pregnancy, religion, political opinion,

national extraction or social origin.

579 FWC has privileges and immunities of the Crown

The FWC has the privileges and immunities of the Crown in right

of the Commonwealth.

580 Protection of FWC Members

An FWC Member has, in performing his or her functions or

exercising his or her powers as an FWC Member, the same

protection and immunity as a Justice of the High Court.

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Note: See also section 584B (which deals with protection of persons

involved in handling etc. complaints about FWC Members).

Subdivision B—Functions and powers of the President

581 Functions of the President

The President is responsible for ensuring that the FWC performs its

functions and exercises its powers in a manner that:

(a) is efficient; and

(b) adequately serves the needs of employers and employees

throughout Australia.

Note: The President must perform his or her own functions and exercise his

or her own powers in a manner that facilitates cooperation with

prescribed State industrial authorities (see section 649).

581A Dealing with a complaint about an FWC Member

(1) Without limiting section 581 (which deals with the functions of the

President), the President may:

(a) deal, in accordance with subsection (2) of this section, with a

complaint about the performance by another FWC Member

of his or her duties; and

(b) take any measures that the President believes are reasonably

necessary to maintain public confidence in the FWC,

including (but not limited to) temporarily restricting the

duties of the FWC Member.

Note 1: The complaint is a complaint about an FWC Member (see

section 12).

Note 2: The Minister may also handle complaints about FWC Members (see

section 641A).

(2) The President may deal with a complaint about an FWC Member

referred to in paragraph (1)(a) by doing either or both of the

following:

(a) deciding whether or not to handle the complaint and then

doing one of the following:

(i) dismissing the complaint;

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(ii) handling the complaint if the President has a relevant

belief in relation to the complaint;

(iii) arranging for any other person to assist the President to

handle the complaint if the President has a relevant

belief in relation to the complaint;

(b) arranging for any other complaint handlers to decide whether

or not to handle the complaint and then to do one of the

following:

(i) dismiss the complaint;

(ii) handle the complaint if each of the complaint handlers

has a relevant belief in relation to the complaint.

Note 1: A complaint handler (other than the President) may handle a

complaint by referring it to the President. The President may then do

either or both of the things referred to in paragraph (2)(a) or (b) in

respect of the complaint.

Note 2: For protections for persons involved in relation to handling a

complaint about an FWC Member, see section 584B.

Authorisation of persons or bodies

(3) The President may authorise, in writing, a person or a body to do

one or more of the following in relation to a complaint about an

FWC Member referred to in paragraph (1)(a) (whether in relation

to a specific complaint or generally):

(a) assist the President to handle the complaint or complaints;

(b) decide whether or not to handle the complaint or complaints;

(d) handle the complaint or complaints.

Referral to Minister

(4) The President must refer a complaint about an FWC Member

referred to in paragraph (1)(a) to the Minister if, after the complaint

has been handled in accordance with subsection (2), the President

is satisfied that:

(a) one or more of the circumstances that gave rise to the

complaint have been substantiated; and

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(b) each House of the Parliament should consider whether to

present to the Governor-General an address praying for the

termination of the appointment of the FWC Member.

Note: The appointment of an FWC Member may be terminated under

section 641 if each House of the Parliament presents such an address

to the Governor-General.

(5) The Minister must consider whether each House of the Parliament

should consider the matter referred to in paragraph (4)(b).

581B Code of Conduct

(1) After consulting the other FWC Members, the President may

determine a Code of Conduct for FWC Members.

(2) Subsection (1) does not limit section 582 (which deals with

directions by the President).

(3) The Code of Conduct must be published on the FWC’s website or

by any other means that the President considers appropriate.

(4) A determination under subsection (1) is not a legislative

instrument.

582 Directions by the President

The President may give directions

(1) The President may give directions under subsection (2) as to the

manner in which the FWC is to perform its functions, exercise its

powers or deal with matters.

(2) The President may give a direction that is of a general nature, or

that relates to a particular matter, to one or more of the following

persons:

(a) an FWC Member;

(b) a Full Bench;

(d) the General Manager.

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(3) The direction must not relate to a decision by the FWC.

(4) Without limiting subsection (2), the direction may be a direction of

the following kind:

(aa) a direction about the conduct of 4 yearly reviews of default

fund terms of modern awards under Division 4A of Part 2-3;

(ab) a direction about the exercise of modern award powers in

accordance with Division 5 of Part 2-3;

(b) a direction about the conduct of annual wage reviews;

or more single FWC Members or one or more Full Benches;

(d) a direction about the transfer between FWC Members

(including a transfer between Full Benches) of one or more

matters being dealt with by the FWC;

(e) a direction that a single FWC Member perform a function or

exercise a power in relation to the variation of a modern

award.

Persons must comply with the President’s directions

(5) A person to whom a direction is given must comply with the

direction.

Note: For directions to the General Manager, see section 658.

Direction is not a legislative instrument

(6) If a direction is in writing, the direction is not a legislative

instrument.

583 President not subject to direction

The President is not subject to direction by or on behalf of the

Commonwealth.

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584 Delegation of functions and powers of the President

(1) The President may, in writing, delegate to a Vice President or a

Deputy President all or any of the President’s functions or powers,

other than under:

(aa) paragraph 581A(1)(b) (which deals with taking measures to

maintain public confidence in the FWC); or

(a) section 620 (which deals with the constitution and

decision-making of an Expert Panel); or

(b) section 625 (which deals with the delegation of functions and

powers of the FWC).

(2) In performing functions or exercising powers under a delegation,

the delegate must comply with any directions of the President.

Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

Subdivision C—Protection of persons involved in handling etc.

complaints about FWC Members

584B Protection of persons involved in handling etc. complaints

about FWC Members

(1) A person who is exercising powers or performing functions under

or for the purposes of paragraph 581A(1)(a), subsections 581A(2)

to (5), or section 641A, in relation to a complaint about an FWC

Member, or assisting in exercising those powers or performing

those functions, has the same protection and immunity as a Justice

of the High Court.

(2) A witness requested to attend, or appearing, before a complaint

handler or any other person, in relation to a complaint about an

FWC Member, has the same protection, and is subject to the same

liabilities in proceedings, as a witness in a case tried by the High

Court.

(3) A lawyer assisting, or appearing on behalf of a person before, a

complaint handler or any other person, in relation to a complaint

about an FWC Member, has the same protection and immunity as a

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barrister has in appearing for a party in proceedings in the High

Court.

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Division 3—Conduct of matters before the FWC

Subdivision A—Applications to the FWC

585 Applications in accordance with procedural rules

An application to the FWC must be in accordance with the

procedural rules (if any) relating to applications of that kind.

Note 1: Certain provisions might impose additional requirements in relation to

particular kinds of applications (see for example subsection 185(2)).

Note 2: The FWC may, under section 587, dismiss an application that is not

made in accordance with the procedural rules.

586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other

document relating to a matter before the FWC, on any terms

that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an

application is made to the FWC.

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the

FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

Note: For another power of the FWC to dismiss an application for a remedy

for unfair dismissal made under Division 5 of Part 3-2, see

section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an

application under section 365 or 773 on the ground that the

application:

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(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

588 Discontinuing applications

A person who has applied to the FWC may discontinue the

application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.

Subdivision B—Conduct of matters before the FWC

589 Procedural and interim decisions

(1) The FWC may make decisions as to how, when and where a matter

is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter

before it.

(3) The FWC may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) This section does not limit the FWC’s power to make decisions.

590 Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in

relation to any matter before it in such manner as it considers

appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the

following ways:

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(a) by requiring a person to attend before the FWC;

(b) by inviting, subject to any terms and conditions determined

by the FWC, oral or written submissions;

records, or to provide any other information to the FWC;

(d) by taking evidence under oath or affirmation in accordance

with the regulations (if any);

(e) by requiring an FWC Member, a Full Bench or an Expert

Panel to prepare a report;

(f) by conducting inquiries;

(g) by undertaking or commissioning research;

(h) by conducting a conference (see section 592);

(i) by holding a hearing (see section 593).

591 FWC not bound by rules of evidence and procedure

The FWC is not bound by the rules of evidence and procedure in

relation to a matter before it (whether or not the FWC holds a

hearing in relation to the matter).

592 Conferences

(1) For the purpose of performing a function or exercising a power of

the FWC (other than a function or power under Part 2-6), the FWC

may direct a person to attend a conference at a specified time and

place.

Note: Part 2-6 deals with minimum wages. For the conduct of annual wage

reviews, see Subdivision B of Division 3 of Part 2-6.

(2) An FWC Member (other than an Expert Panel Member), or a

delegate of the FWC, is responsible for conducting the conference.

(3) The conference must be conducted in private, unless the person

responsible for conducting the conference directs that it be

conducted in public.

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Note: This subsection does not apply in relation to conferences conducted in

relation to unfair dismissal or general protection matters (see

sections 368, 374, 398 and 776).

(4) At a conference, the FWC may:

(a) mediate or conciliate; or

(b) make a recommendation or express an opinion.

(5) Subsection (4) does not limit what the FWC may do at a

conference.

593 Hearings

(1) The FWC is not required to hold a hearing in performing functions

or exercising powers, except as provided by this Act.

(2) If the FWC holds a hearing in relation to a matter, the hearing must

be held in public, except as provided by subsection (3).

Confidential evidence in hearings

(3) The FWC may make the following orders in relation to a hearing

that the FWC holds if the FWC is satisfied that it is desirable to do

so because of the confidential nature of any evidence, or for any

other reason:

(a) orders that all or part of the hearing is to be held in private;

(b) orders about who may be present at the hearing;

and addresses of persons appearing at the hearing;

(d) orders prohibiting or restricting the publication of, or the

disclosure to some or all of the persons present at the hearing

of, the following:

(i) evidence given in the hearing;

(ii) matters contained in documents before the FWC in

relation to the hearing.

(4) Subsection (3) does not apply to the publication of a submission

made to the FWC for consideration in an annual wage review (see

subsection 289(2)).

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594 Confidential evidence

(1) The FWC may make an order prohibiting or restricting the

publication of the following in relation to a matter before the FWC

(whether or not the FWC holds a hearing in relation to the matter)

if the FWC is satisfied that it is desirable to do so because of the

confidential nature of any evidence, or for any other reason:

(a) evidence given to the FWC in relation to the matter;

(b) the names and addresses of persons making submissions to

the FWC in relation to the matter;

received in evidence by the FWC in relation to the matter;

(d) the whole or any part of its decisions or reasons in relation to

the matter.

(2) Subsection (1) does not apply to the publication of a submission

made to the FWC for consideration in an annual wage review (see

subsection 289(2)).

595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expressly

authorised to do so under or in accordance with another provision

of this Act.

(2) The FWC may deal with a dispute (other than by arbitration) as it

considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

(3) The FWC may deal with a dispute by arbitration (including by

making any orders it considers appropriate) only if the FWC is

expressly authorised to do so under or in accordance with another

provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see

subsection 240(4)).

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(4) In dealing with a dispute, the FWC may exercise any powers it has

under this Subdivision.

Example: The FWC could direct a person to attend a conference under

section 592.

(5) To avoid doubt, the FWC must not exercise the power referred to

in subsection (3) in relation to a matter before the FWC except as

authorised by this section.

Subdivision C—Representation by lawyers and paid agents and

Minister’s entitlement to make submissions

596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a

person may be represented in a matter before the FWC (including

by making an application or submission to the FWC on behalf of

the person) by a lawyer or paid agent only with the permission of

the FWC.

(2) The FWC may grant permission for a person to be represented by a

lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently,

taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented

because the person is unable to represent himself, herself or

itself effectively; or

taking into account fairness between the person and other

persons in the same matter.

Note: Circumstances in which the FWC might grant permission for a person

to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non-English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

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(3) The FWC’s permission is not required for a person to be

represented by a lawyer or paid agent in making a written

submission under Part 2-3 or 2-6 (which deal with modern awards

and minimum wages).

(4) For the purposes of this section, a person is taken not to be

represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employers that is not registered under

the Registered Organisations Act; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

597 Minister’s entitlement to make submissions

(1) The Minister is entitled to make a submission for consideration in

relation to a matter before the FWC if:

(a) the matter is before a Full Bench and it is in the public

interest for the Minister to make a submission; or

(b) the matter involves public sector employment.

(2) Subsection (1) applies whether or not the FWC holds a hearing in

relation to the matter.

597A State or Territory Minister’s entitlement to make submissions

(1) The Minister of a State or Territory who has responsibility for

workplace relations matters is entitled to make a submission for

consideration in relation to a matter before the FWC if:

(a) the matter is before a Full Bench; and

(b) it is in the public interest of the State or Territory for the

Minister of the State or Territory to make a submission.

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(2) Subsection (1) applies whether or not the FWC holds a hearing in

relation to the matter.

Subdivision D—Decisions of the FWC

598 Decisions of the FWC

(1) A reference in this Part to a decision of the FWC includes any

decision of the FWC however described. However, to avoid doubt,

a reference to a decision of the FWC does not include an outcome

of a process carried out in accordance with subsection 595(2)

(which deals with the FWC’s power to deal with disputes).

Note: Examples of decisions that the FWC makes include making modern

awards, approving or refusing to approve enterprise agreements,

decisions as to how, when and where a matter is to be dealt with,

deciding whether to grant permission to hear an appeal, and decisions

in relation to appeals.

(2) If the FWC makes a decision that makes or varies an instrument, a

reference in this Part to a decision of the FWC includes the FWC’s

decision to make or vary the instrument in the particular terms

decided.

(3) A decision of the FWC that is described as an order must be made

by order.

Note: An example of a decision that is described as an order is a bargaining

order.

(4) A decision of the FWC that is not described as an order may be

made by order.

599 FWC not required to decide an application in terms applied for

Except as provided by this Act, the FWC is not required to make a

decision in relation to an application in the terms applied for.

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600 Determining matters in the absence of a person

The FWC may determine a matter before it in the absence of a

person who has been required to attend before it.

601 Writing and publication requirements for the FWC’s decisions

(1) The following decisions of the FWC must be in writing:

(a) a decision of the FWC made under a Part of this Act other

than this Part;

(b) an interim decision that relates to a decision to be made

under a Part of this Act other than this Part;

Note: For appeals and reviews, see sections 604 and 605.

(2) The FWC may give written reasons for any decision that it makes.

(3) A decision, and reasons, that are in writing must be expressed in

plain English and be easy to understand in structure and content.

(4) The FWC must publish the following, on its website or by any

other means that the FWC considers appropriate:

(a) a decision that is required to be in writing and any written

reasons that the FWC gives in relation to such a decision;

(b) an enterprise agreement that has been approved by the FWC

under Part 2-4.

The FWC must do so as soon as practicable after making the

decision or approving the agreement.

(5) Subsection (4) does not apply to any of the following decisions or

reasons in relation to such decisions:

(a) a decision to issue, or refuse to issue, a certificate under

paragraph 368(3)(a);

(d) a decision to impose conditions on an entry permit under

section 515;

(e) a decision to issue, or refuse to issue, an exemption

certificate under section 519;

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(f) a decision to issue, or refuse to issue, an affected member

certificate under section 520;

(g) a decision or reasons in relation to which an order is in

operation under paragraph 594(1)(d).

(6) Subsections (1) and (4) do not limit the FWC’s power to put

decisions in writing or publish decisions.

602 Correcting obvious errors etc. in relation to the FWC’s

decisions

(1) The FWC may correct or amend any obvious error, defect or

irregularity (whether in substance or form) in relation to a decision

of the FWC (other than an error, defect or irregularity in a modern

award or national minimum wage order).

Note 1: If the FWC makes a decision to make an instrument, the FWC may

correct etc. the instrument under this section (see subsection 598(2)).

Note 2: The FWC corrects modern awards and national minimum wage orders

under sections 160 and 296.

(2) The FWC may correct or amend the error, defect or irregularity:

(a) on its own initiative; or

(b) on application.

603 Varying and revoking the FWC’s decisions

(1) The FWC may vary or revoke a decision of the FWC that is made

under this Act (other than a decision referred to in subsection (3)).

Note: If the FWC makes a decision to make an instrument, the FWC may

vary or revoke the instrument under this subsection (see

subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or

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(ii) if the kind of decision is prescribed by the regulations—

a person prescribed by the regulations in relation to that

kind of decision.

(3) The FWC must not vary or revoke any of the following decisions

of the FWC under this section:

(a) a decision under Part 2-3 (which deals with modern awards);

(b) a decision under section 235 or Division 4, 7, 9 or 10 of

Part 2-4 (which deal with enterprise agreements);

determinations);

(d) a decision under Part 2-6 (which deals with minimum

wages);

(e) a decision under Division 3 of Part 2-8 (which deals with

transfer of business);

(f) a decision under Division 8 of Part 3-3 (which deals with

protected action ballots);

(g) a decision under section 472 (which deals with partial work

bans);

(h) a decision that is prescribed by the regulations.

Note: The FWC can vary or revoke decisions, and instruments made by

decisions, under other provisions of this Act (see, for example,

sections 447 and 448).

Subdivision E—Appeals, reviews and referring questions of law

604 Appeal of decisions

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or

an Expert Panel); or

(b) made under the Registered Organisations Act by:

(i) the General Manager (including a delegate of the

General Manager); or

(ii) the Registered Organisations Commissioner (including

a delegate of the Commissioner);

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may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC

must grant permission if the FWC is satisfied that it is in the public

interest to do so.

Note: Subsection (2) does not apply in relation to an application for an

unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to the FWC.

605 Minister’s entitlement to apply for review of a decision

(1) The Minister may apply to the FWC for a review to be conducted

by the FWC of a decision made by the FWC (other than a decision

of a Full Bench or an Expert Panel) if the Minister believes that the

decision is contrary to the public interest.

(2) Without limiting when the FWC may conduct a review, the FWC

must conduct a review of the decision if the FWC is satisfied that it

is in the public interest to conduct the review.

Note: The FWC must be constituted by a Full Bench to decide whether to

conduct a review, and to conduct the review (see section 614).

(3) In conducting a review:

(a) the FWC must take such steps as it considers appropriate to

ensure that each person with an interest in the review is made

aware of the review; and

(b) the Minister is entitled to make submissions for consideration

in the review.

(4) Nothing in this section affects any right of appeal or any power of

the FWC under section 604 or 607. A review of a decision and an

appeal of the decision may be dealt with together if the FWC

considers it appropriate.

606 Staying decisions that are appealed or reviewed

(1) If, under section 604 or 605, the FWC hears an appeal from, or

conducts a review of, a decision, the FWC may (except as provided

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by subsection (3)) order that the operation of the whole or part of

the decision be stayed, on any terms and conditions that the FWC

considers appropriate, until a decision in relation to the appeal or

review is made or the FWC makes a further order.

(2) If a Full Bench is hearing the appeal or conducting the review, an

order under subsection (1) in relation to the appeal or review may

be made by:

(a) the Full Bench; or

(b) the President; or

(d) a Deputy President.

(3) This section does not apply in relation to a decision to make a

protected action ballot order.

607 Process for appealing or reviewing decisions

(1) An appeal from, or a review of, a decision of the FWC, the General

Manager or the Registered Organisations Commissioner may be

heard or conducted without holding a hearing only if:

(a) it appears to the FWC that the appeal or review can be

adequately determined without persons making oral

submissions for consideration in the appeal or review; and

(b) the persons who would otherwise, or who will, make

submissions (whether oral or written) for consideration in the

appeal or review consent to the appeal or review being heard

or conducted without a hearing.

(2) The FWC may:

(a) admit further evidence; and

(b) take into account any other information or evidence.

(3) The FWC may do any of the following in relation to the appeal or

review:

(a) confirm, quash or vary the decision;

(b) make a further decision in relation to the matter that is the

subject of the appeal or review;

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an FWC Member (other than an Expert Panel Member) and:

(i) require the FWC Member to deal with the subject

matter of the decision; or

(ii) require the FWC Member to act in accordance with the

directions of the FWC.

608 Referring questions of law to the Federal Court

(1) The President may refer a question of law arising in a matter before

the FWC for the opinion of the Federal Court.

(2) A question of law referred under subsection (1) must be

determined by the Full Court of the Federal Court.

(3) The FWC may make a decision in relation to the matter even if the

Federal Court is determining the question of law, except if the

question is whether the FWC may exercise powers in relation to

the matter.

(4) Once the Federal Court has determined the question, the FWC may

only make a decision in relation to the matter that is not

inconsistent with the opinion of the Federal Court (if the FWC has

not already done so).

(5) However, if the FWC has made a decision in relation to the matter

that is inconsistent with the opinion of the Federal Court, the FWC

must vary the decision in such a way as to make it consistent with

the opinion of the Federal Court.

Subdivision F—Miscellaneous

609 Procedural rules

(1) After consulting the other FWC Members, the President may, by

legislative instrument, make procedural rules in relation to:

(a) the practice and procedure to be followed by the FWC; or

(b) the conduct of business in relation to matters allowed or

required to be dealt with by the FWC.

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(2) Without limiting subsection (1), the procedural rules may provide

for the following:

(a) the requirements for making an application to the FWC;

(b) the circumstances in which a lawyer or paid agent may make

an application or submission to the FWC on behalf of a

person who is entitled to make the application or submission;

submissions may or must be made to the FWC;

(d) the procedural requirements for making decisions of the

FWC;

(e) the form and manner in which the FWC gives directions and

notifies persons of things;

(ea) the requirements for making a notification to the FWC;

(f) who is notified by the FWC of things;

(g) the manner in which conferences are to be conducted in

relation to applications made under Part 3-1, 3-2 or Part 6-4

(which deal with general protections, unfair dismissal and

unlawful termination).

(3) To avoid doubt, subsection (1) includes the power to make

procedural rules in relation to any functions conferred on the FWC

by any other law of the Commonwealth.

610 Regulations dealing with any FWC matters

The regulations may provide for any matter that the procedural

rules may provide for.

Note: Regulations made under this section prevail over procedural rules (see

subsection 796(2)).

611 Costs

(1) A person must bear the person’s own costs in relation to a matter

before the FWC.

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(2) However, the FWC may order a person (the first person) to bear

some or all of the costs of another person in relation to an

application to the FWC if:

(a) the FWC is satisfied that the first person made the

application, or the first person responded to the application,

vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably

apparent to the first person that the first person’s application,

or the first person’s response to the application, had no

reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a

term of the order.

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

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Division 4—Organisation of the FWC

Subdivision A—Functions etc. to be performed by a single

FWC Member, a Full Bench or an Expert Panel

612 FWC’s functions etc. may generally be performed by single

FWC Member

(1) A function or power of the FWC may be performed or exercised by

a single FWC Member (other than an Expert Panel Member), as

directed by the President, except as provided by this Subdivision.

Note: The President gives directions under section 582.

(2) Action taken under subsection 508(1) (which deals with misuse of

rights under Part 3-4) must be taken by a Vice President or a

Deputy President, except as provided by section 615.

(3) This section does not limit the power of the President to delegate a

function or power of the FWC under section 625.

613 Appeal of decisions

(1) A Full Bench must (except as provided by subsection (2)):

(a) decide under section 604 whether to grant permission to

appeal a decision; and

(b) if the Full Bench decides to grant the permission—hear the

appeal in accordance with section 607.

Note: For the constitution of a Full Bench, see section 618.

(2) The President, a Vice President or a Deputy President directed by

the President, may:

(a) decide under section 604 whether to grant permission to

appeal:

(i) a decision of a delegate under subsection 625(2); or

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(ii) a decision of the General Manager (including a delegate

of the General Manager) under the Registered

Organisations Act; or

(iii) a decision of the Registered Organisations

Commissioner (including a delegate of the

Commissioner) under the Registered Organisations Act;

and

(b) if the President, the Vice President or the Deputy

President (as the case may be) grants the permission—hear

the appeal in accordance with section 607.

Note: The President gives directions under section 582.

614 Review of decisions by a Full Bench

A Full Bench must:

(a) decide under section 605 whether to conduct a review of a

decision; and

(b) if the Full Bench decides to conduct the review—conduct the

review in accordance with section 607.

Note: For the constitution of a Full Bench, see section 618.

615 The President may direct a Full Bench to perform function etc.

(1) A function or power of the FWC may be performed or exercised by

a Full Bench if the President so directs.

Note: The President gives directions under section 582.

(2) The President may direct that the function or power be exercised

by a Full Bench generally, or in relation to a particular matter or

class of matters.

(3) To avoid doubt, a reference in this section to a Full Bench includes

a reference to more than one Full Bench.

Note: For the constitution of a Full Bench, see section 618.

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615A When the President must direct a Full Bench to perform

function etc.

(1) The President must direct a Full Bench to perform a function or

exercise a power in relation to a matter if:

(a) an application is made under subsection (2); and

(b) the President is satisfied that it is in the public interest to do

so.

Note: The President gives directions under section 582.

(2) The following persons may apply to the FWC to have a Full Bench

perform a function or exercise a power in relation to a matter:

(a) a person who has made, or will make, submissions for

consideration in the matter;

(b) the Minister.

615B Transfer to a Full Bench from an FWC Member

(1) This section applies if:

(a) the President gives a direction referred to in section 615 or

615A that a function be performed or a power be exercised

by a Full Bench; and

(b) before the President gave the direction, the President had

given a direction (the earlier direction) to an FWC Member

to perform the function or exercise the power.

(2) The President is taken to have revoked the earlier direction.

(3) The Full Bench must, when performing the function or exercising

the power, take into account:

(a) everything that occurred before the FWC; and

(b) everything that the FWC did;

in relation to the matter before the Full Bench began to perform the

function or exercise the power.

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615C Transfer to the President from an FWC Member or a Full

Bench

(1) This section applies if:

(a) the President decides to perform a function or exercise a

power; and

(b) before the President made that decision, the President had

given a direction (the earlier direction) that the function be

performed or the power be exercised by a Full Bench or an

FWC Member.

(2) The President is taken to have revoked the earlier direction.

(3) The President must, when performing the function or exercising

the power, take into account:

(a) everything that occurred before the FWC; and

(b) everything that the FWC did;

in relation to the matter before the President began to perform the

function or exercise the power.

616 FWC’s functions etc. that must be performed by a Full Bench

Modern awards

(1) A modern award must be made under Part 2-3 by a Full Bench.

(2A) A 4 yearly review of default fund terms of modern awards must be

conducted under Division 4A of Part 2-3 by a Full Bench.

(3A) A determination that varies a default fund term of a modern award

made in a 4 yearly review conducted under Division 4A of Part 2-3

must be made by a Full Bench.

Note: A determination that varies a default fund term of a modern award

may be made by a single FWC Member under Division 5 of Part 2-3.

(3B) A determination that revokes a modern award under Division 5 of

Part 2-3 must be made by a Full Bench.

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(3C) Subject to subsection (3D), a determination that varies a modern

award under Division 5 of Part 2-3 (other than a determination

varying the default fund term of a modern award under

section 159A) must be made by a Full Bench.

(3D) The President may direct a single FWC Member to perform a

function or exercise a power:

(a) under section 159, 160 or 161 (varying a modern award); or

(b) in relation to any other variation under section 157 that the

President considers appropriate of:

(i) a modern award; or

(ii) if 2 or more modern awards relate to the same industry

or occupation—those awards.

Note: The President may give directions as to the manner in which the FWC

is to perform its functions or exercise its powers (see section 582).

Workplace determinations

(4) A workplace determination must be made under Part 2-5 by a Full

Bench.

Full Benches

(5) To avoid doubt, a reference in this section to a Full Bench includes

a reference to more than one Full Bench.

Note: For the constitution of a Full Bench, see section 618.

617 FWC’s functions etc. that must be performed by an Expert

Panel

Expert Panel for annual wage reviews

(1) An annual wage review must be conducted under Part 2-6 by an

Expert Panel constituted for the purposes of the review.

Note: For the constitution of an Expert Panel for the purposes of an annual

wage review, see section 620.

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(2) A national minimum wage order, or a determination, made in an

annual wage review must be made by an Expert Panel constituted

for the purposes of the review.

(3) A determination that varies a national minimum wage order must

be made under Part 2-6 by an Expert Panel constituted for the

purposes of the review.

Expert Panel for 4 yearly review of default fund terms

(4) In a 4 yearly review of default fund terms of modern awards, the

following must be made by an Expert Panel constituted for the

purposes of the review:

(a) the Default Superannuation List;

(b) a determination under section 156E on an application to have

a standard MySuper product included on the Default

Superannuation List;

(d) a determination under section 156P on an application made

in the standard application period to have an employer

MySuper product included on the Schedule of Approved

Employer MySuper Products.

Note: For the constitution of an Expert Panel for those purposes, see

subsection 620(1A).

Expert Panel for amending the Schedule of Approved Employer

MySuper Products

(5) If an application is made in the interim application period to have

an employer MySuper product included on the Schedule of

Approved Employer MySuper Products, the following must be

made by an Expert Panel constituted for the purposes of

determining the application:

(a) a determination under section 156P on the application;

(b) if the determination is to include the product on the

schedule—an amendment of the schedule to specify the

product.

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Note: For the constitution of an Expert Panel for those purposes, see

subsection 620(1A).

Subdivision B—Constitution of the FWC by a single FWC

Member, a Full Bench or an Expert Panel

618 Constitution and decision-making of a Full Bench

Constitution of a Full Bench

(1) A Full Bench constituted under this section consists of at least 3

FWC Members, including at least one FWC Member who is the

President, a Vice President or a Deputy President.

Note: An Expert Panel Member might form part of a Full Bench.

(2) The President may determine which FWC Members form part of a

Full Bench.

Making decisions

(3) A decision of a majority of the FWC Members on the Full Bench

prevails.

(4) However, if there is no majority, the decision of the FWC Member

who has seniority under section 619 prevails.

619 Seniority of FWC Members

(1) While the FWC is constituted by a Full Bench, the FWC Members

on the Full Bench have seniority according to the following order:

(a) the President;

(aa) the Vice Presidents, according to the days on which their

appointments as Vice Presidents took effect;

(ab) if 2 appointments as Vice Presidents took effect on the same

day—the Vice Presidents, according to the precedence

assigned to them in their instruments of appointment;

(b) the Deputy Presidents, according to the days on which their

appointments as Deputy Presidents took effect;

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on the same day—the Deputy Presidents, according to the

precedence assigned to them in their instruments of

appointment.

(2) The FWC Member on a Full Bench who has seniority under this

section is responsible for managing the Full Bench in performing

functions and exercising powers of the FWC.

Note: The FWC Member who has seniority also has a deciding vote if there

is no majority (see subsection 618(4)).

620 Constitution and decision-making of an Expert Panel

Constitution of an Expert Panel for annual wage reviews

(1) An Expert Panel constituted under this section for the purpose of

an annual wage review conducted under Part 2-6 consists of 7

FWC Members (except as provided by section 622), and must

include:

(a) the President; and

(b) 3 Expert Panel Members who have knowledge of, or

experience in, one or more of the following fields:

(i) workplace relations;

(ii) economics;

(iii) social policy;

(iv) business, industry or commerce.

Constitution of an Expert Panel for 4 yearly reviews of default fund

terms etc.

(1A) An Expert Panel constituted under this section for a purpose

referred to in subsection 617(4) or (5) consists of 7 FWC Members

(except as provided by section 622), and must include:

(a) the President, or a Vice President or Deputy President

appointed by the President to be the Chair of the Panel; and

(b) 3 Expert Panel Members who have knowledge of, or

experience in, one or more of the following fields:

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(i) finance;

(ii) investment management;

(iii) superannuation.

(2) The President may determine which FWC Members form part of

an Expert Panel.

(3) The following person is responsible for managing an Expert Panel

in performing the functions and exercising the powers referred to

in section 617:

(a) if paragraph (b) does not apply—the President;

(b) if the President has appointed a person to be the Chair of the

Expert Panel under paragraph 620(1A)(a)—the Chair.

Making decisions

(4) A decision of the majority of the FWC Members of an Expert

Panel prevails.

(5) However, if there is no majority, the decision of:

(a) if paragraph (b) does not apply—the President; or

(b) if the President has appointed a person to be the Chair of the

Expert Panel under paragraph 620(1A)(a)—the Chair;

prevails.

621 Reconstitution of the FWC when single FWC Member becomes

unavailable

(1) This section applies if:

(a) an FWC Member is dealing with a matter (other than by

forming part of a Full Bench or an Expert Panel in relation to

a matter); and

(b) the FWC Member becomes unavailable to continue dealing

with the matter before the matter is completely dealt with.

(2) The President must direct another FWC Member to constitute the

FWC for the purposes of dealing with the matter.

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Note: The new FWC Member must take into account everything that

happened before the FWC Member began to deal with the matter (see

section 623).

622 Reconstitution of the FWC when FWC Member of a Full Bench

or an Expert Panel becomes unavailable

(1) This section applies if:

(a) an FWC Member (the unavailable member) forms part of a

Full Bench or an Expert Panel in relation to a matter; and

(b) the FWC Member becomes unavailable to continue dealing

with the matter before the matter is completely dealt with.

(2) The Full Bench or the Expert Panel may continue to deal with the

matter without the unavailable member if the Full Bench or the

Expert Panel consists of the following:

(a) for the Expert Panel—the President and at least 2 Expert

Panel Members;

(b) for a Full Bench—at least 3 FWC Members, including at

least one FWC Member who is the President, a Vice

President or a Deputy President.

(3) Otherwise, the President must direct another FWC Member to form

part of the Full Bench or the Expert Panel. After the President does

so, the Full Bench or the Expert Panel may continue to deal with

the matter without the unavailable member.

Note: The new FWC Member must take into account everything that

happened before the FWC Member began to deal with the matter (see

section 623).

623 When new FWC Members begin to deal with matters

If an FWC Member begins to deal with a matter under section 621

or 622, the FWC Member must take into account everything that

occurred before the FWC, and everything that the FWC did, in

relation to the matter before the FWC Member began to deal with

the matter.

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624 FWC’s decisions not invalid when improperly constituted

A decision of the FWC is not invalid merely because it was made

by a Full Bench, or an Expert Panel, constituted otherwise than as

provided by this Division.

Note: If the FWC makes a decision to make an instrument while constituted

otherwise than as provided by this Division, the instrument is not

invalid (see subsection 598(2)).

Subdivision C—Delegation of the FWC’s functions and powers

625 Delegation by the President of functions and powers of the FWC

(1) The President may, in writing, delegate all or any of the following

powers of the FWC to the General Manager or a member of the

staff of the FWC:

(a) correcting or amending applications and documents, or

waiving irregularities, under section 586;

(b) informing itself as it considers appropriate under section 590

(other than the FWC’s power to hold a hearing);

(d) correcting or amending obvious errors, defects or

irregularities under section 602.

(2) The President may, in writing, delegate all or any of the following

functions or powers of the FWC to a person referred to in

subsection (3):

(a) publishing varied modern awards under section 168;

(b) publishing submissions under section 289;

(d) publishing varied wage rates under section 292;

(da) publishing the results of a protected action ballot under

section 457;

(f) imposing conditions on entry permits, revoking or

suspending entry permits, or banning the issue of any further

entry permits, under section 507 or 510;

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(g) the functions and powers of the FWC under Division 6 of

Part 3-4 (which deals with entry permits, entry notices and

certificates);

(h) publishing enterprise agreements under paragraph 601(4)(b);

(i) any function or power prescribed by the regulations.

(3) The people to whom a delegation may be given under

subsection (2) are any of the following:

(a) the General Manager;

(b) a member of the staff of the FWC who is an SES employee

or acting SES employee;

employees prescribed by the regulations.

(4) In performing functions or exercising powers under a delegation

under subsection (1) or (2), the delegate must comply with any

directions of the President.

Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

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Division 5—FWC Members

Subdivision A—Appointment of FWC Members

626 Appointment of FWC Members

(1) An FWC Member is to be appointed by the Governor-General by

written instrument.

(2) The instrument of appointment must specify whether the FWC

Member is the President, a Vice President, a Deputy President, a

Commissioner or an Expert Panel Member.

(3) The instrument of appointment must assign a precedence to the

FWC Member if:

(a) the FWC Member and one other FWC Member are appointed

as Vice Presidents on the same day; or

(b) the FWC Member and one or more other FWC Members are

appointed as Deputy Presidents on the same day.

Note: Precedence is relevant to the seniority of Vice Presidents and Deputy

Presidents (see paragraphs 619(1)(ab) and (c)).

(4) The same person must not hold, at the same time, an appointment

as both:

(a) an Expert Panel Member; and

(b) the President, a Vice President, a Deputy President or a

Commissioner.

627 Qualifications for appointment of FWC Members

President and Vice Presidents

(1) Before the Governor-General appoints a person as the President or

a Vice President, the Minister must be satisfied that the person:

(a) is or has been a Judge of a court created by the Parliament; or

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(b) is qualified for appointment because the person has

knowledge of, or experience in, one or more of the following

fields:

(i) workplace relations;

(ii) law;

(iii) business, industry or commerce.

(1A) Paragraph (1)(a) does not apply to a person who is a Judge of the

Federal Circuit Court.

Deputy Presidents

(2) Before the Governor-General appoints a person as a Deputy

President, the Minister must be satisfied that the person:

(a) either:

(i) is or has been a Judge of a court created by the

Parliament; or

(ii) has been a Judge of a court of a State or Territory; or

(b) has a high level of experience in the field of workplace

relations, including a high level of experience that has been

acquired:

(i) through legal practice; or

(ii) in the service of a peak council or another association

representing the interests of employers or employees; or

(iii) in the service of government or an authority of

government; or

(iv) in academia.

(2A) Subparagraph (2)(a)(i) does not apply to a person who is a Judge of

the Federal Circuit Court.

Commissioners

(3) Before the Governor-General appoints a person as a

Commissioner, the Minister must be satisfied that the person is

qualified for appointment because the person has knowledge of, or

experience in, one or more of the following fields:

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(a) workplace relations;

(b) law;

Expert Panel Members

(4) Before the Governor-General appoints a person as an Expert Panel

Member, the Minister must be satisfied that the person is qualified

for appointment because the person has knowledge of, or

experience in, one or more of the following fields:

(a) workplace relations;

(b) economics;

(d) business, industry or commerce;

(e) finance;

(f) investment management;

(g) superannuation.

628 Basis of appointment of FWC Members

President, Vice Presidents, Deputy Presidents and Commissioners

(1) The President, a Vice President, a Deputy President or a

Commissioner holds office on a full-time basis.

(2) A Deputy President or a Commissioner may perform his or her

duties on a part-time basis, with the President’s approval.

Expert Panel Members

(3) An Expert Panel Member holds office on a part-time basis.

629 Period of appointment of FWC Members

President, Vice Presidents, Deputy Presidents and Commissioners

(1) The President, a Vice President, a Deputy President or a

Commissioner holds office until the earliest of the following:

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(a) he or she attains the age of 65 years;

(b) he or she resigns or the appointment is terminated under this

Part.

Members of a prescribed State industrial authority

(2) Despite subsection (1), a person who is a member of a prescribed

State industrial authority may be appointed as a Deputy President

or Commissioner for a period specified in the instrument of

appointment.

Note: A member of a prescribed State industrial authority may hold office as

a Deputy President or Commissioner (see section 631).

(3) If a person is so appointed, the person holds office as Deputy

President or Commissioner until the earliest of the following:

(a) the specified period ends;

(b) the person ceases to be a member of the prescribed State

industrial authority;

Part.

Expert Panel Members

(4) An Expert Panel Member holds office for the period specified in

the instrument of appointment. The period must not exceed 5 years.

Note: An Expert Panel Member is eligible for reappointment (see

subsection 33(4A) of the Acts Interpretation Act 1901).

Subdivision B—Terms and conditions of FWC Members

629A Status of the President

The President has the same status as a Judge of the Federal Court.

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630 Appointment of a Judge not to affect tenure etc.

(1) The appointment of a Judge of a court created by the Parliament as

an FWC Member, or service by such a Judge as an FWC Member,

does not affect:

(a) the Judge’s tenure of office as a Judge; or

(b) the Judge’s rank, title, status, precedence, salary, annual or

other allowances or other rights or privileges as the holder of

his or her office as a Judge.

(2) For all purposes, the Judge’s service as the FWC Member is taken

to be service as a Judge.

631 Dual federal and State appointments of Deputy Presidents or

Commissioners

(1) Nothing in this Act prevents a Deputy President or Commissioner

from being appointed to, and holding at the same time, an office as

a member of a prescribed State industrial authority, with the

President’s approval.

(2) Nothing in this Act prevents a member of a prescribed State

industrial authority from being appointed to, and holding at the

same time, an office as a Deputy President or Commissioner.

Note 1: A member of a prescribed State industrial authority may hold office as

a Deputy President or Commissioner only if he or she is qualified for

appointment (see section 627).

Note 2: For the period of appointment, and remuneration and allowances, of a

Deputy President or Commissioner who is a member of a prescribed

State industrial authority, see sections 629 and 637.

(3) Subsections (1) and (2) have effect subject to any law of the

relevant State.

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632 Dual federal and Territory appointments of Deputy Presidents

or Commissioners

Nothing in this Act prevents a Deputy President or Commissioner

from being appointed to, and holding at the same time, one of the

following offices, with the President’s approval:

(a) an office as a member of a Commonwealth or Territory

tribunal prescribed by the regulations (other than a court);

(b) an office under a Commonwealth or Territory law.

633 Outside work of FWC Members

Vice Presidents, Deputy Presidents and Commissioners

(1) A Vice President, Deputy President or Commissioner (whether

performing duties on a full-time or part-time basis) must not

engage in paid work outside the duties of his or her office without

the President’s approval.

(2) However, the President’s approval is not required if the paid work

is an office or appointment in the Defence Force.

Expert Panel Members

(3) An Expert Panel Member must not engage in any paid work that,

in the President’s opinion, conflicts or may conflict with the proper

performance of his or her duties.

634 Oath or affirmation of office

Before beginning to discharge the duties of his or her office, an

FWC Member must take an oath or affirmation in accordance with

the regulations.

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635 Remuneration of the President

Remuneration if the President is not a Judge

(1) The President (other than a President who is a Judge of a court

created by the Parliament) is to be paid:

(a) salary at an annual rate equal to the annual rate of salary

payable to the Chief Justice of the Federal Court; and

(b) such travelling allowances as are determined from time to

time by the Remuneration Tribunal; and

Remuneration if the President is a Judge

(2) A President who is a Judge of a court created by the Parliament

must be paid an additional allowance, in accordance with

subsection (3), if the salary payable to the person as a Judge is less

than the salary that would be payable to the person as President

under subsection (1).

(3) The amount of the allowance is the difference between the Judge’s

salary and the salary that is payable to the President under

subsection (1).

Additional amount

(4) The President or a former President must be paid an amount in

accordance with subsection 7(5E) of the Remuneration Tribunal

Act 1973 if the President, or former President, would be entitled to

that amount had the President or former President held the office of

Chief Justice of the Federal Court instead of the office of President.

636 Application of Judges’ Pensions Act to the President

(1) The Judges’ Pensions Act 1968 does not apply to the President if:

(a) immediately before being appointed as the President, he or

she was one of the following (a public sector

superannuation scheme member):

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(i) an eligible employee for the purposes of the

Superannuation Act 1976;

(ii) a member of the superannuation scheme established by

deed under the Superannuation Act 1990;

(iii) an ordinary employer-sponsored member of PSSAP

(within the meaning of the Superannuation Act 2005);

and

(b) he or she does not make an election under subsection (2).

(2) The President may elect to cease to be a public sector

superannuation scheme member.

(3) The election must be made:

(a) within 3 months of the President’s appointment; and

(b) by written notice to the Minister.

(4) If the President makes the election:

(a) he or she is taken to have ceased to be a public sector

superannuation scheme member immediately before being

appointed as the President; and

(b) the Judges’ Pensions Act 1968 applies to him or her, and is

taken to have so applied, immediately after he or she was

appointed as the President.

637 Remuneration of FWC Members other than the President

Remuneration if an FWC Member is not a Judge

(1) An FWC Member (other than an FWC Member who is a Judge of

a court created by the Parliament) is to be paid the remuneration

that is determined by the Remuneration Tribunal. If no

determination of that remuneration by the Tribunal is in operation,

the FWC Member is to be paid the remuneration that is prescribed

by the regulations.

(2) An FWC Member is to be paid the allowances that are prescribed

by the regulations.

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(3) Subsections (1) and (2) have effect subject to the Remuneration

Tribunal Act 1973 and to section 638 (which deals with

remuneration of part-time Deputy Presidents and Commissioners).

(4) Despite subsections (1) to (3), if a person who is a member of a

prescribed State industrial authority is appointed as a Deputy

President or Commissioner, the person is not to be paid any

remuneration or allowances in relation to the office of Deputy

President or Commissioner other than any travel allowance

prescribed under subsection (2).

Remuneration if an FWC Member is a Judge

(5) An FWC Member who is a Judge (other than the Chief Justice of

the Federal Court) of a court created by the Parliament is to be paid

an additional allowance, in accordance with subsection (6), if the

salary payable to the person as a Judge is less than the salary that

would be payable to the person as an FWC Member under

subsection (1).

(6) The amount of the allowance is the difference between the Judge’s

salary and the salary that is payable to the FWC Member under

subsection (1).

Section does not apply to the President

(7) This section does not apply to the President.

638 Remuneration of Deputy Presidents or Commissioners

performing duties on a part-time basis

(1) If the President approves a Deputy President or Commissioner (the

part-time member) performing his or her duties on a part-time

basis, the President and the part-time member are to enter into a

written agreement specifying the proportion (the agreed

proportion) of full-time duties to be worked by the part-time

member.

(2) The agreed proportion may be varied by a written agreement

between the President and the part-time member.

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(3) The part-time member’s annual rate of salary at a particular time is

equal to the agreed proportion at that time of the annual rate of

salary that would be payable to the part-time member if he or she

were performing his or her duties on a full-time basis.

(4) The allowances that are to be paid to the part-time member under

section 637 are not affected by this section.

639 Leave of absence of FWC Members other than the President

(1) An FWC Member has the recreation leave entitlements that are

determined by the Remuneration Tribunal.

(2) The President may grant an FWC Member leave of absence, other

than recreation leave, on the terms and conditions as to

remuneration or otherwise as the President determines.

(3) In making a determination in accordance with this section, the

Remuneration Tribunal and the President must take into account:

(a) any past employment of the FWC Member in the service of a

State or an authority of a State; or

(b) any past service of the FWC Member as a member of an

authority of a State.

(4) This section does not apply to the President.

640 Disclosure of interests by FWC Members other than the

President

(1) This section applies if:

(a) an FWC Member (other than the President) is dealing, or will

deal, with a matter; and

(b) the FWC Member has or acquires any interest (the potential

conflict), pecuniary or otherwise, that conflicts or could

conflict with the proper performance of the FWC Member’s

functions in relation to the matter.

(2) The FWC Member must disclose the potential conflict to:

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(a) a person who has made, or will make, a submission for

consideration in the matter; and

(b) a person who the FWC Member considers is likely to make a

submission for consideration in the matter; and

(4) The President must give a direction to the FWC Member not to

deal, or to no longer deal, with the matter if:

(a) the President becomes aware that an FWC Member has a

potential conflict in relation to a matter (whether or not

because of a disclosure under subsection (2)); and

(b) the President considers that the FWC Member should not

deal, or should no longer deal, with the matter.

641 Termination of appointment on grounds of misbehaviour or

incapacity

The Governor-General may terminate the appointment of an FWC

Member if an address praying for the termination, on one of the

following grounds, is presented to the Governor-General by each

House of the Parliament in the same session:

(a) proved misbehaviour;

(b) the FWC Member is unable to perform the duties of his or

her office because of physical or mental incapacity.

641A Minister may handle complaints about FWC Members

The Minister may handle a complaint about the performance by an

FWC Member of his or her duties:

(a) for the purpose of considering whether each House of the

Parliament should consider whether to present to the

Governor-General an address praying for the termination of

the appointment of the FWC Member; and

(b) for the purpose of considering whether to advise the

Governor-General to suspend the FWC Member.

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Note 1: The appointment of an FWC Member may be terminated under

section 641 if each House of the Parliament presents such an address

to the Governor-General.

Note 2: The FWC Member may be suspended under section 642.

Note 3: The complaint is a complaint about an FWC Member (see

section 12).

Note 4: For protections for persons involved in relation to handling a

complaint about an FWC Member, see section 584B.

641B Modified application of the Judicial Misbehaviour and

Incapacity (Parliamentary Commissions) Act 2012

(1) The object of this section is to modify the application of the

Judicial Misbehaviour and Incapacity (Parliamentary

Commissions) Act 2012 (the JMIPC Act) so as to allow a

Commission to be established by the Houses of Parliament to

investigate and report on alleged misbehaviour or incapacity of an

FWC Member, so the Houses can be well-informed to consider

whether to pray for:

(a) the termination of the FWC Member’s appointment under

section 641; or

(b) the removal of the FWC Member from office under

section 82 or 86 of the WR Act (within the meaning of the

Transitional Act), as those sections continue to apply because

of the operation of item 2 of Schedule 18 to the Transitional

Act.

(2) The JMIPC Act applies, in addition to its general application, as if

a provision of that Act referred to in an item in column 1 of the

following table were amended as specified in column 2 of the item.

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Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary

Commissions) Act 2012

Item Column 1

Provision of the JMIPC

Act

Column 2

Amendment

1 Subsection 3(1) Omit “a Commonwealth judicial officer”,

substitute “an FWC Member”.

2 Subsection 3(1) Omit all the words after “whether to”,

substitute:

“pray for:

(a) for a non-transitioned FWC Member—the

termination of the FWC Member’s

appointment under section 641 of the FW

Act; or

(b) for a transitioned FWC Member—the

removal of the FWC Member from office

under section 82 or 86 of the WR Act (as

those sections continue to apply because of

the operation of item 2 of Schedule 18 to

the FW Transitional Act).”.

3 Paragraph 3(2)(b) Omit “removal of a Commonwealth judicial

officer under paragraph 72(ii) of the

Constitution”, substitute “termination of

appointment or removal from office of an

FWC Member under the relevant provisions

referred to in subsection (1)”.

4 Section 4 Omit “a Commonwealth judicial officer (that

is, a High Court judge or a judge of the

Federal Court of Australia, the Family Court

of Australia or the Federal Circuit Court of

Australia)”, substitute “an FWC Member”.

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Commissions) Act 2012

Item Column 1

Provision of the JMIPC

Act

Column 2

Amendment

5 Section 4 Omit “removal of the judicial officer, the

judicial officer may be removed by the

Governor-General in Council in accordance

with paragraph 72(ii) of the Constitution”,

substitute “termination of appointment or

removal from office of the FWC Member, the

FWC Member’s appointment may be

terminated, or the FWC Member may be

removed from office, by the

Governor-General in Council under the

applicable provisions of the FW Act or the

WR Act”.

6 Section 7 Insert:

FW Act means the Fair Work Act 2009.

FWC Member has the same meaning as in the

FW Act and includes a transitioned FWC

Member.

FW Transitional Act means the Fair Work

(Transitional Provisions and Consequential

Amendments) Act 2009.

7 Section 7 (definition of

incapacity)

Omit the definition (including the note),

substitute:

incapacity:

(a) in relation to the termination of

appointment of a non-transitioned FWC

Member under section 641 of the FW

Act—has the same meaning as in that

section; and

(b) in relation to the removal of a transitioned

FWC Member from office under

section 82 of the WR Act (as that section

continues to apply because of the operation

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Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary

Commissions) Act 2012

Item Column 1

Provision of the JMIPC

Act

Column 2

Amendment

of item 2 of Schedule 18 to the FW

Transitional Act)—has the same meaning

as in that section; and

FWC Member from office under

section 86 of the WR Act (as that section

continues to apply because of the operation

of item 2 of Schedule 18 to the FW

Transitional Act)—has the same meaning

as in that section; and

(d) in relation to the termination of

appointment of a member of the

Commission under section 73 of this

Act—has its ordinary meaning.

8 Section 7 (definition of

misbehaviour)

Omit the definition (including the note),

substitute:

misbehaviour:

(a) in relation to the termination of

appointment of a non-transitioned FWC

Member under section 641 of the FW

Act—has the same meaning as in that

section; and

(b) in relation to the removal of a transitioned

FWC Member from office under

section 82 of the WR Act (as that section

continues to apply because of the operation

of item 2 of Schedule 18 to the FW

Transitional Act)—has the same meaning

as in that section; and

FWC Member from office under

section 86 of the WR Act (as that section

continues to apply because of the operation

of item 2 of Schedule 18 to the FW

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Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary

Commissions) Act 2012

Item Column 1

Provision of the JMIPC

Act

Column 2

Amendment

Transitional Act)—has the same meaning

as in that section; and

(d) in relation to the termination of

appointment of a member of the

Commission under section 73 of this

Act—has its ordinary meaning.

9 Section 7 Insert:

non-transitioned FWC Member means an

FWC Member who is not a transitioned FWC

Member.

10 Section 7 (definition of

proved)

Omit the definition, substitute:

proved:

(a) in relation to the termination of

appointment of a non-transitioned FWC

Member for misbehaviour under

paragraph 641(a) of the FW Act—has the

same meaning as in that paragraph; and

(b) in relation to the termination of

appointment of a non-transitioned FWC

Member for incapacity under

paragraph 641(b) of the FW Act—means

the grounds referred to in that paragraph

are established; and

FWC Member from office for

misbehaviour or incapacity under

section 82 of the WR Act (as that section

continues to apply because of the operation

of item 2 of Schedule 18 to the FW

Transitional Act)—has the same meaning

as in that section; and

(d) in relation to the removal of a transitioned

FWC Member from office for

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Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary

Commissions) Act 2012

Item Column 1

Provision of the JMIPC

Act

Column 2

Amendment

misbehaviour or incapacity under

section 86 of the WR Act (as that section

continues to apply because of the operation

of item 2 of Schedule 18 to the FW

Transitional Act)—has the same meaning

as in that section.

11 Section 7 Insert:

transitioned FWC Member means a person

who is taken to be appointed as an FWA

Member under item 1 of Schedule 18 to the

FW Transitional Act.

WR Act has the same meaning as in the FW

Transitional Act.

WR Act repeal day has the same meaning as

in the FW Transitional Act.

12 Section 8 Omit “a Commonwealth judicial officer”,

substitute “an FWC Member”.

13 Section 8 Omit “removal of the judicial officer, the

judicial officer may be removed by the

Governor-General in Council in accordance

with paragraph 72(ii) of the Constitution”,

substitute “termination of appointment or

removal from office of the FWC Member, the

FWC Member’s appointment may be

terminated, or the FWC Member may be

removed from office, by the

Governor-General in Council under the

applicable provisions of the FW Act or the

WR Act”.

14 Subsection 9(1) Omit “Commonwealth judicial officer”,

substitute “FWC Member”.

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Section 641B

108 Fair Work Act 2009

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Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary

Commissions) Act 2012

Item Column 1

Provision of the JMIPC

Act

Column 2

Amendment

15 Subsection 9(1) (note 2) Omit “Commonwealth judicial officer”,

substitute “FWC Member”.

16 Paragraph 16(1)(b) Omit “a Commonwealth judicial officer”,

substitute “an FWC Member”.

17 Subsection 19(6) After paragraph 19(6)(c), insert:

(ca) an investigation into a complaint about an

FWC Member; and

18 Subsection 20(2) Omit “a Commonwealth judicial officer”,

substitute “an FWC Member”.

19 Subsection 20(2) Omit “the Commonwealth judicial officer”

(wherever occurring), substitute “the FWC

Member”.

20 Section 21 Omit “a Commonwealth judicial officer”

(wherever occurring), substitute “an FWC

Member”.

21 Paragraph 23(3)(a) Omit “Commonwealth judicial officer to

whom the investigation relates to perform his

or her duties as such an officer”, substitute

“FWC Member to whom the investigation

relates to perform his or her duties as an FWC

Member”.

22 Paragraph 23(3)(b) and

subparagraph 23(3)(c)(i)

Omit “judiciary”, substitute “Fair Work

Commission”.

23 Subparagraph 23(3)(c)(ii) Omit “Commonwealth judicial officer”,

substitute “FWC Member”.

24 Subsection 24(4) (heading) Omit “Commonwealth judicial officer”,

substitute “FWC Member”.

25 Subsections 24(4) and (5) Omit “Commonwealth judicial officer”

(wherever occurring), substitute “FWC

Member”.

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Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary

Commissions) Act 2012

Item Column 1

Provision of the JMIPC

Act

Column 2

Amendment

26 Paragraph 24(7)(c) Omit “Commonwealth judicial officer”,

substitute “FWC Member”.

27 Subdivision D of

Division 2 of Part 3

(heading)

Omit “Commonwealth judicial officer”,

substitute “FWC Member”.

28 Section 45 (heading) Omit “Commonwealth judicial officer”,

substitute “FWC Member”.

29 Subsections 45(1) and

46(2)

Omit “Commonwealth judicial officer”,

substitute “FWC Member”.

642 Suspension on grounds of misbehaviour or incapacity

Governor-General may suspend an FWC Member

(1) The Governor-General may suspend an FWC Member (other than

the President) from office:

(a) for misbehaviour; or

(b) if the FWC Member is unable to perform the duties of his or

her office because of physical or mental incapacity.

Statement of grounds

(2) The Minister must cause to be tabled in each House of Parliament,

within 7 sitting days of that House after the suspension, a statement

identifying the FWC Member and setting out the ground of the

suspension.

Resolution by a House of Parliament

(3) A House of the Parliament may, within 15 sitting days of that

House after the day on which the statement has been tabled in it,

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110 Fair Work Act 2009

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declare by resolution that the appointment of the FWC Member

should be terminated.

Suspension terminates

(4) If a House does not pass a resolution in that way, the suspension

terminates.

Appointment to be terminated

(5) If each House of the Parliament passes a resolution in that way, the

Governor-General must terminate the appointment of the FWC

Member.

Suspension not to affect entitlements

(6) The suspension of an FWC Member under this section does not

affect any entitlement of the FWC Member to be paid

remuneration, and allowances, in accordance with this Act.

643 Termination of appointment for bankruptcy, etc.

The Governor-General must terminate the appointment of an FWC

Member (other than the President) if:

(a) the FWC Member becomes bankrupt, applies to take the

benefit of any law for the relief of bankrupt or insolvent

debtors, compounds with his or her creditors, or makes an

assignment of his or her remuneration for the benefit of his or

her creditors; or

(b) the FWC Member is absent, except on leave of absence, for

14 consecutive days or for 28 days in any 12 months.

644 Termination of appointment for outside work

Vice Presidents, Deputy Presidents and Commissioners

(1) The Governor-General must terminate the appointment of a Vice

President, Deputy President or Commissioner if the Vice President,

Deputy President or Commissioner engages, except with the

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President’s approval, in paid work outside the duties of his or her

office (see subsection 633(1)).

Expert Panel Members

(2) The Governor-General must terminate the appointment of an

Expert Panel Member if the Expert Panel Member engages in paid

work that, in the President’s opinion, conflicts or may conflict with

the proper performance of his or her duties (see subsection 633(3)).

645 Resignation of FWC Members

(1) An FWC Member may resign his or her appointment by giving the

Governor-General a written resignation.

(2) The resignation takes effect on the day it is received by the

Governor-General or, if a later day is specified in the resignation,

on that later day.

646 Other terms and conditions of FWC Members

An FWC Member holds office on the terms and conditions (if any)

in relation to matters not covered by this Act that are determined

by the Governor-General.

647 Appointment of acting President and Vice President

Appointment by Governor-General

(1) The Governor-General may, by written instrument, appoint a Vice

President to act as the President:

(a) during a vacancy in the office of the President (whether or

not an appointment has previously been made to the office);

(b) during any period, or during all periods, when the President

is absent from duty or from Australia, or is, for any reason,

unable to perform the duties of the office.

Note: See also section 33A of the Acts Interpretation Act 1901, which

contains extra rules about acting appointments.

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Section 648

112 Fair Work Act 2009

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(1A) The Governor-General may, by written instrument, appoint a

Deputy President to act as a Vice President:

(a) during a vacancy in the office of a Vice President

(whether or not an appointment has previously been

made to the office); or

(b) during any period, or during all periods, when a Vice

President is absent from duty or from Australia, or is,

for any reason, unable to perform the duties of the

office.

Note: See also section 33A of the Acts Interpretation Act 1901, which

contains extra rules about acting appointments.

No invalidity

(2) Anything done by or in relation to a person purporting to act under

an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the

appointment; or

(d) the occasion for the person to act had not arisen or had

ceased.

Not disqualified

(3) A person is not disqualified from being appointed under

subsection (1) or (1A) merely because the person is over 65.

648 Appointment of acting Deputy Presidents and Commissioners

Appointment by Governor-General

(1) The Governor-General may, by written instrument, appoint a

person who is qualified for appointment as a Deputy President to

act as a Deputy President for a specified period (including a period

that exceeds 12 months).

Note: See also section 33A of the Acts Interpretation Act 1901, which

contains extra rules about acting appointments.

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(1A) The Governor-General may, by written instrument, appoint a

person who is qualified for appointment as a Commissioner to act

as a Commissioner for a specified period (including a period that

exceeds 12 months).

Note: See also section 33A of the Acts Interpretation Act 1901, which

contains extra rules about acting appointments.

(2) Before the Governor-General appoints a person under

subsection (1) or (1A), the Minister must be satisfied that the

appointment is necessary to enable the FWC to perform its

functions effectively.

No invalidity

(3) Anything done by or in relation to a person purporting to act under

an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the

appointment; or

(d) the occasion for the person to act had not arisen or had

ceased.

Not disqualified

(4) A person is not disqualified from being appointed under

subsection (1) or (1A) merely because the person is over 65.

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Section 649

114 Fair Work Act 2009

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Division 6—Cooperation with the States

649 President to cooperate with prescribed State industrial

authorities

(1) The President must perform his or her functions, and exercise his

or her powers, in a manner that facilitates and encourages

cooperation between the FWC and prescribed State industrial

authorities.

(2) Without limiting subsection (1), the President may invite the heads

of prescribed State industrial authorities, or the principal registrars

of prescribed State industrial authorities, to meet with the President

to exchange information and discuss matters of mutual interest in

relation to workplace relations.

650 Provision of administrative support

The President may make a written arrangement with a prescribed

State industrial authority for:

(a) the FWC to provide administrative support to the authority;

(b) the authority to provide administrative support to the FWC.

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Division 7

Section 651

Fair Work Act 2009 115

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Division 7—Seals and additional powers and functions of

the President and the General Manager

651 Seals

Seal of the FWC

(1) The FWC must have a seal on which are inscribed the words “The

Seal of the Fair Work Commission”.

Duplicate seals

(2) There are to be such duplicates of the seal of the FWC as the

President directs.

Note: The President gives directions under section 582.

(3) A document to which a duplicate seal of the FWC is affixed is

taken to have the seal of the FWC affixed to it.

Custody and use of the seal of the FWC and duplicate seals

(4) The seal of the FWC, and the duplicates of that seal, are to be kept

in such custody as the President directs and must not be used

except as authorised by the President.

Note: The President gives directions under section 582.

Judicial notice of the seal of the FWC

(5) All courts, judges and persons acting judicially must:

(a) take judicial notice of the imprint of the seal of the FWC

appearing on a document; and

(b) presume that the document was duly sealed.

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Manager

Section 652

116 Fair Work Act 2009

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652 Annual report

(1) The President must, as soon as practicable after the end of each

financial year, prepare a report on the operations of the FWC

during that year.

Note 1: See also section 34C of the Acts Interpretation Act 1901, which

contains extra rules about annual reports.

Note 2: The report prepared by the General Manager and given to the Minister

under section 46 of the Public Governance, Performance and

Accountability Act 2013 may be included in the report prepared under

this section.

(1A) A report prepared after the end of a financial year must be given to

the Minister by 15 October in the next financial year for

presentation to the Parliament.

(2) To avoid doubt, subsection (1) does not require or authorise the

disclosure of information for the purposes of the Privacy Act 1988.

653 Reports about making enterprise agreements, individual

flexibility arrangements etc.

Review and research

(1) The General Manager must:

(a) review the developments, in Australia, in making enterprise

agreements; and

(b) conduct research into the extent to which individual

flexibility arrangements under modern awards and enterprise

agreements are being agreed to, and the content of those

arrangements; and

National Employment Standards relating to:

(i) requests for flexible working arrangements under

subsection 65(1); and

(ii) requests for extensions of unpaid parental leave under

subsection 76(1); and

(d) conduct research into:

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(i) the circumstances in which employees make such

requests; and

(ii) the outcome of such requests; and

(iii) the circumstances in which such requests are refused.

(1A) The review and research must be conducted in relation to each of

the following periods:

(a) the 3 year period that starts when this section commences;

(b) each later 3 year period.

(2) Without limiting subsection (1), the General Manager must, in

conducting the review and research, consider the effect that the

matters referred to in paragraphs (1)(a) to (d) have had, during the

period, on the employment (including wages and conditions of

employment) of the following persons:

(a) women;

(b) part-time employees;

(d) mature age persons;

(e) young persons;

(f) any other persons prescribed by the regulations.

Report

(3) The General Manager must give the Minister a written report of the

review and research as soon as practicable, and in any event within

6 months, after the end of the period to which it relates.

(4) The Minister must cause a copy of the report to be tabled in each

House of the Parliament within 15 sitting days of that House after

the Minister receives the report.

(5) Subsections 34C(4) to (7) of the Acts Interpretation Act 1901 apply

to the report as if it were a periodic report as defined in

subsection 34C(1) of that Act.

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Section 653A

118 Fair Work Act 2009

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653A Arrangements with the Federal Court and the Federal Circuit

Court

The General Manager may make a written arrangement with the

Federal Court or the Federal Circuit Court for the FWC to provide

administrative support to the Fair Work Division of the Court.

654 President must provide certain information etc. to the Minister

and Fair Work Ombudsman

(1) The President must provide to the Minister and the Fair Work

Ombudsman information and copies of documents prescribed by

the regulations by the time, and in the form, prescribed.

(2) The regulations may prescribe:

(a) information that is publicly available, or derived from

information that is publicly available, relating to:

(i) a decision of the FWC; or

(ii) a notice, notification or application given or made to the

FWC; and

(b) a decision of the FWC that is publicly available.

655 Disclosure of information by the FWC

Information to which this section applies

(1) This section applies to the following information:

(a) information acquired by the FWC, or a member of the staff

of the FWC, in the course of performing functions or

exercising powers as the FWC;

(b) information acquired by a person in the course of assisting

the FWC under section 672, or in the course of performing

functions, or exercising powers, as a consultant under

section 673.

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Disclosure that is necessary or appropriate, or likely to assist

administration or enforcement

(2) The President may disclose, or authorise the disclosure of, the

information if the President reasonably believes:

(a) that it is necessary or appropriate to do so in the course of

performing functions, or exercising powers, of the FWC; or

(b) that the disclosure is likely to assist in the administration or

enforcement of a law of the Commonwealth, a State or a

Territory.

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Division 8 General Manager, staff and consultants

Section 656

120 Fair Work Act 2009

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Division 8—General Manager, staff and consultants

Subdivision A—Functions of the General Manager

656 Establishment

There is to be a General Manager of the Fair Work Commission.

657 Functions and powers of the General Manager

(1) The General Manager is to assist the President in ensuring that the

FWC performs its functions and exercises its powers.

(1A) The General Manager also has the following functions:

(a) any function conferred on him or her by a fair work

instrument;

(b) any function conferred on him or her by a law of the

Commonwealth.

Note: Sections 653 and 653A confer additional functions and powers on the

General Manager.

(2) The General Manager has power to do all things necessary or

convenient to be done for the purpose of performing his or her

functions.

658 Directions from the President

Despite the President’s power of direction under section 582, the

General Manager is not required to comply with a direction by the

President to the extent that:

(a) compliance with the direction would be inconsistent with the

General Manager’s performance of functions or exercise of

powers under the Public Governance, Performance and

Accountability Act 2013 in relation to the FWC; or

(b) the direction relates to the General Manager’s performance of

functions or exercise of powers under the Public Service Act

1999 in relation to the FWC; or

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of the review and research, and the preparation of the report,

under section 653.

659 General Manager not otherwise subject to direction

Except as provided by this or any other Act, the General Manager

is not subject to direction by or on behalf of the Commonwealth.

Subdivision B—Appointment and terms and conditions of the

General Manager

660 Appointment of the General Manager

(1) The General Manager is to be appointed by the Governor-General

by written instrument on the nomination of the President.

(2) The General Manager holds office on a full-time basis.

(3) The General Manager holds office for the period specified in the

instrument of appointment. The period must not exceed 5 years.

Note: The General Manager is eligible for reappointment (see

subsection 33(4A) of the Acts Interpretation Act 1901).

661 Remuneration of the General Manager

(1) The General Manager is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Tribunal is in operation, the General

Manager is to be paid the remuneration that is prescribed by the

regulations.

(2) The General Manager is to be paid the allowances that are

prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

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Section 662

122 Fair Work Act 2009

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662 Leave of absence of the General Manager

(1) The General Manager has the recreation leave entitlements that are

determined by the Remuneration Tribunal.

(2) The Minister may grant the General Manager leave of absence,

other than recreation leave, on the terms and conditions as to

remuneration or otherwise that the Minister determines.

663 Outside work of the General Manager

The General Manager must not engage in paid work outside the

duties of his or her office without the President’s approval.

664 Disclosure of interests to the President

(1) The General Manager must give written notice to the President of

all material personal interests that the General Manager has or

acquires that relate to the affairs of the FWC.

(2) Section 29 of the Public Governance, Performance and

Accountability Act 2013 (which deals with the duty to disclose

interests) does not apply to the General Manager.

665 Resignation of the General Manager

(1) The General Manager may resign his or her appointment by giving

the Governor-General a written resignation.

(2) The resignation takes effect on the day it is received by the

Governor-General or, if a later day is specified in the resignation,

on that later day.

666 Termination of appointment of the General Manager

(1) The Governor-General may terminate the appointment of the

General Manager:

(a) for misbehaviour; or

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(b) if the General Manager is unable to perform the duties of his

or her office because of physical or mental incapacity.

(2) The Governor-General must terminate the appointment of the

General Manager if:

(a) the General Manager becomes bankrupt, applies to take the

benefit of any law for the relief of bankrupt or insolvent

debtors, compounds with his or her creditors, or makes an

assignment of his or her remuneration for the benefit of his or

her creditors; or

(b) the General Manager is absent, except on leave of absence,

for 14 consecutive days or for 28 days in any 12 months; or

approval, in paid work outside the duties of his or her office

(see section 663); or

(d) the General Manager fails, without reasonable excuse, to

comply with section 664 (which deals with disclosure of

interests to the President).

667 Other terms and conditions of the General Manager

The General Manager holds office on the terms and conditions (if

any) in relation to matters not covered by this Act that are

determined by the Governor-General.

668 Appointment of acting General Manager

(1) The Minister may, by written instrument, appoint a person who is

nominated by the President to act as the General Manager:

(a) during a vacancy in the office of the General Manager

(whether or not an appointment has previously been made to

the office); or

(b) during any period, or during all periods, when the General

Manager is absent from duty or from Australia, or is, for any

reason, unable to perform the duties of the office.

Note: See also section 33A of the Acts Interpretation Act 1901, which

contains extra rules about acting appointments.

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Section 669

124 Fair Work Act 2009

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(2) Anything done by or in relation to a person purporting to act under

an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the

appointment; or

(d) the occasion to act had not arisen or had ceased.

669 Minister to consult the President

The Minister must consult the President before terms and

conditions are determined under section 667.

Subdivision C—Staff and consultants

670 Staff

(1) The staff of the FWC must be persons engaged under the Public

Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

(a) the General Manager and the staff of the FWC together

constitute a Statutory Agency; and

(b) the General Manager is the Head of that Statutory Agency.

671 Delegation by General Manager to staff

(1) The General Manager may, in writing, delegate all or any of his or

her functions or powers to:

(a) a member of the staff of the FWC who is an SES employee

or acting SES employee; or

(b) a member of the staff of the FWC who is in a class of

employees prescribed by the regulations.

(2) In performing functions or exercising powers under a delegation,

the delegate must comply with any directions of the General

Manager.

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Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

672 Persons assisting the FWC

The FWC may also be assisted:

(a) by employees of Agencies (within the meaning of the Public

Service Act 1999); or

(b) by officers and employees of a State or Territory; or

Commonwealth, a State or a Territory;

whose services are made available to the FWC in connection with

the performance of any of its functions.

673 Consultants

The General Manager may engage persons having suitable

qualifications and experience as consultants to the FWC.

Subdivision D—Application of the finance law

673A Application of the finance law

For the purposes of the finance law (within the meaning of the

Public Governance, Performance and Accountability Act 2013):

(a) the following group of persons is a listed entity:

(i) the General Manager;

(ii) the staff of the FWC referred to in section 670;

(iii) persons whose services are made available to the FWC

under section 672;

(iv) consultants engaged under section 673; and

(b) the listed entity is to be known as the Fair Work

Commission; and

entity; and

(d) the persons referred to in paragraph (a) are officials of the

listed entity; and

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Section 673A

126 Fair Work Act 2009

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(e) the purposes of the listed entity include the functions of the

General Manager referred to in section 657.

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Division 9—Offences relating to the Fair Work

Commission

674 Offences in relation to the FWC

Insulting or disturbing an FWC Member

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct insults or disturbs an FWC Member in

the performance of functions, or the exercise of powers, as an

FWC Member.

Penalty: Imprisonment for 12 months.

Using insulting language

(2) A person commits an offence if:

(a) the person uses insulting language towards another person;

and

(b) the person is reckless as to whether the language is insulting;

and

exercising powers, as an FWC Member.

Penalty: Imprisonment for 12 months.

Interrupting matters before the FWC

(3) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct interrupts a matter before the FWC.

Penalty: Imprisonment for 12 months.

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Creating or continuing a disturbance

(4) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct creates, or contributes to creating or

continuing, a disturbance; and

dealing with a matter.

Penalty: Imprisonment for 12 months.

Improper influence of FWC Members etc.

(5) A person commits an offence if:

(a) the person uses words (whether by writing or speech) that are

intended to improperly influence another person; and

(b) the other person is an FWC Member or a person attending

before the FWC.

Penalty: Imprisonment for 12 months.

Delegates of the FWC

(6) A reference in subsections (1) to (5) to the FWC or an FWC

Member includes a delegate of the FWC.

Adversely affecting public confidence in the FWC

(7) A person commits an offence if:

(a) the person publishes a statement; and

(b) the statement implies or states that an FWC Member

(whether identified or not) has engaged in misconduct in

relation to the performance of functions, or the exercise of

powers, as an FWC Member; and

(d) the publication is likely to have a significant adverse effect

on public confidence that the FWC is properly performing its

functions and exercising its powers.

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Penalty: 12 months imprisonment.

Note 1: Sections 135.1, 135.4, 139.1, 141.1 and 142.1 of the Criminal Code

create offences of using various dishonest means to influence a

Commonwealth public official.

Note 2: Sections 676 and 678 of this Act and sections 36A, 37, 38 and 40 of

the Crimes Act 1914 create offences relating to interference with a

witness. Section 39 of that Act makes it an offence to destroy anything

that may be required in evidence.

675 Contravening an FWC order

(1) A person commits an offence if:

(a) the FWC has made an order under this Act; and

(b) either of the following applies:

(i) the order applies to the person;

(ii) a term of the order applies to the person; and

(d) the conduct contravenes:

(i) a term of the order referred to in subparagraph (b)(i); or

(ii) the term referred to in subparagraph (b)(ii).

(2) However, subsection (1) does not apply to the following orders:

(a) an order under Part 2-3 (which deals with modern awards);

(b) a bargaining order;

(d) an order under Part 2-6 (which deals with minimum wages);

(e) an equal remuneration order;

(f) an order under Part 2-8 (which deals with transfer of

business);

(g) an order under Division 6 of Part 3-3 (which deals with the

suspension or termination of protected industrial action);

(h) a protected action ballot order, or an order in relation to a

protected action ballot order or a protected action ballot;

(i) an order under Part 3-5 (which deals with stand down);

(j) an order under Part 6-4B (which deals with workers bullied

at work);

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(k) an order under Part 6-4C (which deals with the Coronavirus

economic response).

Penalty: Imprisonment for 12 months.

(3) Strict liability applies to paragraphs (1)(a) and (b).

Note: For strict liability, see section 6.1 of the Criminal Code.

676 Intimidation etc.

A person commits an offence if:

(a) the person threatens, intimidates, coerces or prejudices

another person; and

(b) the person does so because the other person has given, or

proposes to give, information or documents to the FWC.

Penalty: Imprisonment for 12 months.

Note: A person may also contravene a civil remedy provision by threatening

etc. a person who has given, or proposes to give, information or

documents to the FWC (see section 343).

677 Offences in relation to attending before the FWC

Required to attend

(1) A person commits an offence if:

(a) the person has been required to attend before the FWC; and

(b) the person fails to attend as required.

Penalty: Imprisonment for 6 months.

Oath or affirmation

(2) A person commits an offence if:

(a) the person attends before the FWC; and

(b) the FWC requires the person to take an oath or make an

affirmation; and

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affirmation as required.

Penalty: Imprisonment for 6 months.

Questions or documents

(3) A person commits an offence if:

(a) the person attends before the FWC; and

(b) the FWC requires the person to answer a question or produce

a document; and

the document.

Penalty: Imprisonment for 6 months.

Reasonable excuse

(4) Subsection (1), (2) or (3) does not apply if the person has a

reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (4) (see subsection 13.3(3) of the Criminal Code).

(5) A reference in this section to the FWC or an FWC Member

includes a delegate of the FWC.

678 False or misleading evidence

Giving false or misleading evidence

(1) A person (the witness) commits an offence if:

(a) the witness gives sworn or affirmed evidence; and

(b) the witness gives the evidence as a witness:

(i) in a matter before the FWC; or

(ii) before a person taking evidence on behalf of the FWC

for use in a matter that the witness will start by

application to the FWC; and

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Penalty: Imprisonment for 12 months.

Note: A person will not commit an offence if the person carries out the

conduct constituting the offence under duress (see section 10.2 of the

Criminal Code).

Inducing or coercing another person to give false or misleading

evidence

(2) A person (the offender) commits an offence if:

(a) another person (the witness) has been, or will be, required to

appear as a witness in a matter before the FWC (whether the

person is to appear before the FWC or a delegate of the

FWC); and

(b) the offender induces, threatens or intimidates the witness to

give false or misleading evidence in the matter.

Penalty: Imprisonment for 12 months.

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Part 5-2—Office of the Fair Work Ombudsman

Division 1—Introduction

679 Guide to this Part

This Part is about the Office of the Fair Work Ombudsman.

Division 2 is about the Fair Work Ombudsman. The Fair Work

Ombudsman’s functions include promoting and monitoring

compliance with this Act, and providing education, assistance and

advice to employees, employers, outworkers, outworker entities

and organisations.

Division 3 is about the Office of the Fair Work Ombudsman. The

Office of the Fair Work Ombudsman consists of the Fair Work

Ombudsman, Fair Work Inspectors and staff.

The inspectors exercise compliance powers for purposes including

determining whether this Act is being complied with. The

compliance powers include the power to enter certain premises,

and to inspect and make copies of documents on the premises.

680 Meanings of employee and employer

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

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

employees in certain circumstances).

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Division 2—Fair Work Ombudsman

Subdivision A—Establishment and functions and powers of the

Fair Work Ombudsman

681 Establishment

There is to be a Fair Work Ombudsman.

682 Functions of the Fair Work Ombudsman

(1) The Fair Work Ombudsman has the following functions:

(a) to promote:

(i) harmonious, productive and cooperative workplace

relations; and

(ii) compliance with this Act and fair work instruments;

including by providing education, assistance and advice to

employees, employers, outworkers, outworker entities and

organisations and producing best practice guides to

workplace relations or workplace practices;

(b) to monitor compliance with this Act and fair work

instruments;

be contrary to this Act, a fair work instrument or a safety net

contractual entitlement;

(d) to commence proceedings in a court, or to make applications

to the FWC, to enforce this Act, fair work instruments and

safety net contractual entitlements;

(e) to refer matters to relevant authorities;

(f) to represent employees or outworkers who are, or may

become, a party to proceedings in a court, or a party to a

matter before the FWC, under this Act or a fair work

instrument, if the Fair Work Ombudsman considers that

representing the employees or outworkers will promote

compliance with this Act or the fair work instrument;

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(g) any other functions conferred on the Fair Work Ombudsman

by any Act.

Note 1: The Fair Work Ombudsman also has the functions of an inspector (see

section 701).

Note 2: In performing functions under paragraph (a), the Fair Work

Ombudsman might, for example, produce a best practice guide to

achieving productivity through bargaining.

(2) The Fair Work Ombudsman must consult with the FWC in

producing guidance material that relates to the functions of the

FWC.

683 Delegation by the Fair Work Ombudsman

(1) The Fair Work Ombudsman may, in writing, delegate to a member

of the staff of the Office of the Fair Work Ombudsman or to an

inspector all or any of the Fair Work Ombudsman’s functions or

powers under any Act (subject to subsections (1A) and (1B)).

(1A) The Fair Work Ombudsman must not delegate his or her functions

or powers as an inspector.

(1B) The Fair Work Ombudsman may delegate to a member of the staff

of the Office of the Fair Work Ombudsman who is an SES

employee or an acting SES employee:

(a) the power under subsection 712AA(1) to apply for the issue

of an FWO notice; and

(b) the power under subsection 712AD(1) to give an FWO

notice; and

of a later time.

Note: SES employee and acting SES employee are defined in the Acts

Interpretation Act 1901.

(2) In performing functions or exercising powers under a delegation,

the delegate must comply with any directions of the Fair Work

Ombudsman.

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684 Directions from the Minister

(1) The Minister may, by legislative instrument, give written directions

to the Fair Work Ombudsman about the performance of his or her

functions.

Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the

Legislation Act 2003 do not apply to the direction (see regulations

made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that

Act).

(2) The direction must be of a general nature only.

(3) The Fair Work Ombudsman must comply with the direction.

(4) The Fair Work Ombudsman is not required to comply with the

direction to the extent that it relates to the Fair Work

Ombudsman’s performance of functions, or exercise of powers,

under the Public Service Act 1999 in relation to the Office of the

Fair Work Ombudsman.

685 Minister may require reports

(1) The Minister may, in writing, direct the Fair Work Ombudsman to

give the Minister specified reports relating to the Fair Work

Ombudsman’s functions.

Note: A report must not include information relating to an individual’s

affairs (see section 714A).

(2) The Fair Work Ombudsman must comply with the direction.

(3) The direction, or the report (if made in writing), is not a legislative

instrument.

686 Annual report

To avoid doubt, the requirement on the Fair Work Ombudsman to

give an annual report to the Minister under section 46 of the Public

Governance, Performance and Accountability Act 2013 does not

require or authorise the disclosure of information for the purposes

of the Privacy Act 1988.

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Note: An annual report must not include information relating to an

individual’s affairs (see section 714A).

Subdivision B—Appointment and terms and conditions of the

Fair Work Ombudsman

687 Appointment of the Fair Work Ombudsman

(1) The Fair Work Ombudsman is to be appointed by the

Governor-General by written instrument.

(2) Before the Governor-General appoints a person as the Fair Work

Ombudsman, the Minister must be satisfied that the person:

(a) has suitable qualifications or experience; and

(b) is of good character.

(3) The Fair Work Ombudsman holds office on a full-time basis.

(4) The Fair Work Ombudsman holds office for the period specified in

the instrument of appointment. The period must not exceed 5 years.

Note: The Fair Work Ombudsman is eligible for reappointment (see

subsection 33(4A) of the Acts Interpretation Act 1901).

688 Remuneration of the Fair Work Ombudsman

(1) The Fair Work Ombudsman is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Tribunal is in operation, the Fair Work

Ombudsman is to be paid the remuneration that is prescribed by

the regulations.

(2) The Fair Work Ombudsman is to be paid the allowances that are

prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

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689 Leave of absence of the Fair Work Ombudsman

(1) The Fair Work Ombudsman has the recreation leave entitlements

that are determined by the Remuneration Tribunal.

(2) The Minister may grant the Fair Work Ombudsman leave of

absence, other than recreation leave, on the terms and conditions as

to remuneration or otherwise that the Minister determines.

690 Outside work of the Fair Work Ombudsman

The Fair Work Ombudsman must not engage in paid work outside

the duties of his or her office without the Minister’s approval.

692 Resignation of the Fair Work Ombudsman

(1) The Fair Work Ombudsman may resign his or her appointment by

giving the Governor-General a written resignation.

(2) The resignation takes effect on the day it is received by the

Governor-General or, if a later day is specified in the resignation,

on that later day.

693 Termination of appointment of the Fair Work Ombudsman

(1) The Governor-General may terminate the appointment of the Fair

Work Ombudsman:

(a) for misbehaviour; or

(b) if the Fair Work Ombudsman is unable to perform the duties

of his or her office because of physical or mental incapacity.

(2) The Governor-General must terminate the appointment of the Fair

Work Ombudsman if:

(a) the Fair Work Ombudsman becomes bankrupt, applies to

take the benefit of any law for the relief of bankrupt or

insolvent debtors, compounds with his or her creditors, or

makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

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(b) the Fair Work Ombudsman is absent, except on leave of

absence, for 14 consecutive days or for 28 days in any 12

months; or

Minister’s approval, in paid work outside the duties of his or

her office (see section 690); or

(d) the Fair Work Ombudsman fails, without reasonable excuse,

to comply with section 29 of the Public Governance,

Performance and Accountability Act 2013 (which deals with

the duty to disclose interests) or rules made for the purposes

of that section.

694 Other terms and conditions of the Fair Work Ombudsman

The Fair Work Ombudsman holds office on the terms and

conditions (if any) in relation to matters not covered by this Act

that are determined by the Governor-General.

695 Appointment of acting Fair Work Ombudsman

(1) The Minister may, by written instrument, appoint a person who is

qualified for appointment as the Fair Work Ombudsman to act as

the Fair Work Ombudsman:

(a) during a vacancy in the office of Fair Work Ombudsman

(whether or not an appointment has previously been made to

the office); or

(b) during any period, or during all periods, when the Fair Work

Ombudsman is absent from duty or from Australia, or is, for

any reason, unable to perform the duties of the office.

Note: See also section 33A of the Acts Interpretation Act 1901, which

contains extra rules about acting appointments.

(2) Anything done by or in relation to a person purporting to act under

an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the

appointment; or

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(d) the occasion to act had not arisen or had ceased.

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Division 3—Office of the Fair Work Ombudsman

Subdivision A—Establishment of the Office of the Fair Work

Ombudsman

696 Establishment of the Office of the Fair Work Ombudsman

(1) The Office of the Fair Work Ombudsman is established by this

section.

(2) The Office of the Fair Work Ombudsman consists of:

(a) the Fair Work Ombudsman; and

(b) the staff of the Office of the Fair Work Ombudsman; and

Subdivision B—Staff and consultants etc.

697 Staff

(1) The staff of the Office of the Fair Work Ombudsman must be

persons engaged under the Public Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

(a) the Fair Work Ombudsman and the staff of the Office of the

Fair Work Ombudsman together constitute a Statutory

Agency; and

(b) the Fair Work Ombudsman is the Head of that Statutory

Agency.

698 Persons assisting the Fair Work Ombudsman

The Fair Work Ombudsman may also be assisted:

(a) by employees of Agencies (within the meaning of the Public

Service Act 1999); or

(b) by officers and employees of a State or Territory; or

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Commonwealth, a State or a Territory;

whose services are made available to the Fair Work Ombudsman in

connection with the performance of any of his or her functions.

Note: For example, State or Territory employees could be made available to

assist the Fair Work Ombudsman in providing education in a

particular region.

699 Consultants

The Fair Work Ombudsman may engage persons having suitable

qualifications and experience as consultants to the Office of the

Fair Work Ombudsman.

Subdivision C—Appointment of Fair Work Inspectors

700 Appointment of Fair Work Inspectors

(1) The Fair Work Ombudsman may, in writing, appoint as a Fair

Work Inspector:

(a) a person who has been appointed, or who is employed, by the

Commonwealth; or

(b) a person who is employed by a State or Territory.

(2) The Fair Work Ombudsman may appoint a person as a Fair Work

Inspector only if the Fair Work Ombudsman is satisfied that the

person is of good character.

(3) A Fair Work Inspector is appointed for the period specified in the

instrument of appointment. The period must not exceed 4 years.

Note: A Fair Work Inspector is eligible for reappointment (see

subsection 33(4A) of the Acts Interpretation Act 1901).

701 Fair Work Ombudsman is a Fair Work Inspector

The Fair Work Ombudsman is a Fair Work Inspector by force of

this section.

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Section 702

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702 Identity cards

(1) The Fair Work Ombudsman must issue an identity card to an

inspector appointed under section 700.

(2) The Minister must issue an identity card to the Fair Work

Ombudsman.

Form of identity card

(3) The identity card must:

(a) be in the form approved by the Fair Work Ombudsman; and

(b) contain a recent photograph of the inspector.

Inspector must carry card

(4) An inspector must carry the identity card at all times when

performing functions or exercising powers as an inspector.

Offence

(5) A person commits an offence if:

(a) the person ceases to be an inspector; and

(b) the person does not, within 14 days of so ceasing, return the

person’s identity card to the Fair Work Ombudsman or the

Minister (as the case may be).

Penalty: 1 penalty unit.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Defence—card lost or destroyed

(7) Subsection (5) does not apply if the identity card was lost or

destroyed.

Note: A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the Criminal Code).

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Subdivision D—Functions and powers of Fair Work

Inspectors—general

703 Conditions and restrictions on functions and powers

(1) The functions, and powers (compliance powers), conferred on an

inspector are subject to such conditions and restrictions as are

specified in his or her instrument of appointment.

(2) To avoid doubt, the power to apply for the issue of an FWO notice

under section 712AA and the power to give an FWO notice under

section 712AD are not compliance powers.

704 General directions by the Fair Work Ombudsman

(1) The Fair Work Ombudsman may, by legislative instrument, give a

written direction to inspectors relating to the performance of their

functions or the exercise of their powers as inspectors.

(2) The direction must be of a general nature only, and cannot relate to

a particular case.

(3) An inspector must comply with the direction.

705 Particular directions by the Fair Work Ombudsman

(1) The Fair Work Ombudsman may give a direction to an inspector

relating to the performance of the inspector’s functions or the

exercise of the inspector’s powers as an inspector.

(2) The inspector must comply with the direction.

(3) If a direction is in writing, the direction is not a legislative

instrument.

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Section 706

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706 Purpose for which powers of inspectors may be exercised

(1) An inspector may exercise compliance powers (other than a power

under section 715 or 716) for one or more of the following

purposes (compliance purposes):

(a) determining whether this Act or a fair work instrument is

being, or has been, complied with;

(b) subject to subsection (2), determining whether a safety net

contractual entitlement is being, or has been, contravened by

a person;

functions or powers on inspectors;

(d) the purposes of a provision of another Act that confers

functions or powers on inspectors.

Note: The powers in sections 715 (which deals with enforceable

undertakings) and 716 (which deals with compliance notices) may be

exercised for the purpose of remedying the effects of certain

contraventions.

(2) An inspector may exercise compliance powers for the purpose

referred to in paragraph (1)(b) only if the inspector reasonably

believes that the person has contravened one or more of the

following:

(a) a provision of the National Employment Standards;

(b) a term of a modern award;

(d) a term of a workplace determination;

(e) a term of a national minimum wage order;

(f) a term of an equal remuneration order.

707 When powers of inspectors may be exercised

An inspector may exercise compliance powers:

(a) at any time during working hours; or

(b) at any other time, if the inspector reasonably believes that it

is necessary to do so for compliance purposes.

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707A Hindering or obstructing the Fair Work Ombudsman and

inspectors etc.

(1) A person must not intentionally hinder or obstruct:

(a) the Fair Work Ombudsman or an inspector in the

performance of his or her functions or the exercise of his or

her powers as the Fair Work Ombudsman or an inspector; or

(b) an assistant referred to in section 710 assisting an inspector

on premises; or

Ombudsman in the performance of his or her functions or the

exercise of his or her powers in relation to an FWO notice.

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

(2) Subsection (1) does not apply if:

(a) the person has a reasonable excuse; or

(b) if the Fair Work Ombudsman or inspector referred to in

paragraph (1)(a) or (b) (as the case requires) was required to

show his or her identity card to the person under

subsection 708(3) or paragraph 711(3)(b)—the Fair Work

Ombudsman or inspector:

(i) failed to do so; or

(ii) failed to tell the person of the effect of this section.

(3) A reference in subsection (1) to the Fair Work Ombudsman

includes a reference to a delegate of the Fair Work Ombudsman.

Subdivision DA—Power to enter premises

708 Power of inspectors to enter premises

(1) An inspector may, without force:

(a) enter premises, if the inspector reasonably believes that this

Act or a fair work instrument applies to work that is being, or

applied to work that has been, performed on the premises; or

(b) enter business premises, if the inspector reasonably believes

that there are records or documents relevant to compliance

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purposes on the premises, or accessible from a computer on

the premises.

(2) Despite paragraph (1)(a), an inspector must not enter a part of

premises that is used for residential purposes unless the inspector

reasonably believes that the work referred to in that paragraph is

being performed on that part of the premises.

(3) The inspector must, either before or as soon as practicable after

entering premises, show his or her identity card to the occupier, or

another person who apparently represents the occupier, if the

occupier or other person is present at the premises.

709 Powers of inspectors while on premises

The inspector may exercise one or more of the following powers

while on the premises:

(a) inspect any work, process or object;

(b) interview any person;

access to, a record or document;

(d) require a person who has the custody of, or access to, a

record or document to produce the record or document to the

inspector either while the inspector is on the premises, or

within a specified period;

(e) inspect, and make copies of, any record or document that:

(i) is kept on the premises; or

(ii) is accessible from a computer that is kept on the

premises;

(f) take samples of any goods or substances in accordance with

any procedures prescribed by the regulations.

Note: See also sections 713, 713A and 714 (which deal with

self-incrimination and produced documents etc.).

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710 Persons assisting inspectors

(1) A person (the assistant) may accompany the inspector onto the

premises to assist the inspector if the Fair Work Ombudsman is

satisfied that:

(a) the assistance is necessary and reasonable; and

(b) the assistant has suitable qualifications and experience to

properly assist the inspector.

(2) The assistant:

(a) may do such things on the premises as the inspector requires

to assist the inspector to exercise compliance powers; but

(b) must not do anything that the inspector does not have power

to do.

(3) Anything done by the assistant is taken for all purposes to have

been done by the inspector.

Subdivision DB—Powers to ask questions and require records

and documents

711 Power to ask for person’s name and address

(1) An inspector may require a person to tell the inspector the person’s

name and address if the inspector reasonably believes that the

person has contravened a civil remedy provision.

(2) If the inspector reasonably believes that the name or address is

false, the inspector may require the person to give evidence of its

correctness.

(3) A person must comply with a requirement under subsection (1) or

(2) if:

(a) the inspector advises the person that he or she may

contravene a civil remedy provision if he or she fails to

comply with the requirement; and

(b) the inspector shows his or her identity card to the person.

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

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(4) Subsection (3) does not apply if the person has a reasonable

excuse.

712 Power to require persons to produce records or documents

(1) An inspector may require a person, by notice, to produce a record

or document to the inspector.

(2) The notice must:

(a) be in writing; and

(b) be served on the person; and

specified place within a specified period of at least 14 days.

The notice may be served by sending the notice to the person’s fax

number.

(3) A person who is served with a notice to produce must not fail to

comply with the notice.

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

(4) Subsection (3) does not apply if the person has a reasonable

excuse.

712A Minister may nominate AAT presidential members to issue

FWO notices

(1) The Minister may, by writing, nominate an AAT presidential

member to issue written notices (FWO notices) under

section 712AB.

(2) The Minister may nominate an AAT presidential member who is a

Judge to issue FWO notices under section 712AB only if the Judge

has consented, by writing, to the nomination.

(3) A nomination ceases to have effect if:

(a) the nominated AAT presidential member ceases to be an

AAT presidential member; or

(b) the Minister, by writing, withdraws the nomination.

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Section 712AA

150 Fair Work Act 2009

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(4) A nominated AAT presidential member has, in performing a

function of or connected with issuing an FWO notice under this

Subdivision, the same protection and immunity as a Justice of the

High Court has in relation to proceedings in the High Court.

712AA Fair Work Ombudsman may apply to nominated AAT

presidential member for FWO notice

General requirements

(1) The Fair Work Ombudsman may apply, in writing, to a nominated

AAT presidential member for the issue of an FWO notice referred

to in subsection (2) if the Fair Work Ombudsman believes on

reasonable grounds that a person:

(a) has information or documents relevant to an investigation by

an inspector into a suspected contravention of a provision of

this Act, a fair work instrument or a safety net contractual

entitlement that relates, directly or indirectly, to:

(i) the underpayment of wages, or other monetary

entitlements, of employees; or

(ii) the unreasonable deduction of amounts from amounts

owed to employees; or

(iii) the placing of unreasonable requirements on employees

to spend or pay amounts paid, or payable, to employees;

(iv) the unfair dismissal of an employee; or

(v) the bullying of a worker at work; or

(vi) the unlawful discrimination of a person in relation to

employment; or

(vii) a contravention of a provision of the National

Employment Standards; or

(viii) the coercion of an employee by an employer; and

(b) is capable of giving evidence that is relevant to such an

investigation.

(2) The FWO notice may require the person:

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(a) to give information to the Fair Work Ombudsman, or a

specified member of the staff of the Office of the Fair Work

Ombudsman; or

(b) to produce documents to the Fair Work Ombudsman, or a

specified member of the staff of the Office of the Fair Work

Ombudsman; or

member of the staff of the Office of the Fair Work

Ombudsman who is an SES employee or an acting SES

employee, and answer questions relevant to the investigation.

Form and content of application

(3) An application for an FWO notice must:

(a) if a form is prescribed by the regulations—be in that form;

and

(b) include any information prescribed by the regulations.

(4) An application for an FWO notice must not relate to more than one

person, but may relate to more than one investigation.

Application must be accompanied by affidavit

(5) An application for an FWO notice must be accompanied by an

affidavit by the Fair Work Ombudsman including the following:

(a) the name of the person to whom the application relates;

(b) details of the investigation (or investigations) to which the

application relates;

the person has information or documents, or is capable of

giving evidence, relevant to the investigation (or

investigations) referred to in paragraph (b);

(d) details of other methods used to attempt to obtain the

information, documents or evidence;

(e) the number (if any) of previous applications for an FWO

notice that the Fair Work Ombudsman has made in relation

to the person in respect of the investigation (or

investigations) referred to in paragraph (b);

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Section 712AB

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(f) information about whether the Fair Work Ombudsman has

made, or expects to make, any other applications for an FWO

notice in relation to the investigation (or investigations)

referred to in paragraph (b) and, if so, the persons to whom

those applications relate.

Further information

(6) A nominated AAT presidential member to whom an application for

an FWO notice is made may request the Fair Work Ombudsman to

give the presidential member further information in relation to the

application.

(7) If a request for further information is made under subsection (6),

the Fair Work Ombudsman must give the further information in

writing as soon as practicable after receiving the request.

712AB Issue of FWO notice

(1) A nominated AAT presidential member to whom an application for

an FWO notice has been made must issue the FWO notice if the

presidential member is satisfied of the following:

(a) that an inspector has commenced the investigation (or

investigations) to which the application relates;

(b) that there are reasonable grounds to believe that the person to

whom the application relates has information or documents,

or is capable of giving evidence, relevant to the investigation

(or investigations);

documents or evidence:

(i) has been attempted and has been unsuccessful; or

(ii) is not appropriate;

(d) that the information, documents or evidence would be likely

to be of assistance in the investigation (or investigations);

(e) that, having regard to all the circumstances, it would be

appropriate to issue the FWO notice;

(f) any other matter prescribed by the regulations.

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(2) A nominated AAT presidential member must not issue an FWO

notice except in the circumstances referred to in subsection (1).

(3) An FWO notice must not be issued in relation to more than one

person, but may be issued in relation to more than one

investigation.

(4) If:

(a) an application for an FWO notice is made in relation to more

than one investigation; and

(b) the nominated AAT presidential member to whom the

application is made is not satisfied of the matters referred to

in subsection (1) in relation to each of those investigations;

the nominated AAT presidential member must issue the FWO

notice in relation to the investigation (or investigations) in relation

to which the nominated AAT presidential member is satisfied of

the matters referred to in subsection (1).

712AC Form and content of FWO notice

An FWO notice must:

(a) if a form is prescribed by the regulations—be in that form;

and

(b) if the notice requires a person to give information under

paragraph 712AA(2)(a)—specify the time by which, and the

manner and form in which, the information is to be given;

and

paragraph 712AA(2)(b)—specify the time by which, and the

manner in which, the documents are to be produced; and

(d) if the notice requires a person to attend to answer questions

relevant to an investigation—specify the time and place for

the attendance; and

(e) be signed by the nominated AAT presidential member who

issued it; and

(f) include any other information prescribed by the regulations.

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Section 712AD

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712AD Fair Work Ombudsman may give FWO notice to person in

relation to whom it is issued and vary time for compliance

Fair Work Ombudsman may give FWO notice to person in relation

to whom it is issued

(1) If a nominated AAT presidential member issues an FWO notice,

the Fair Work Ombudsman may give the notice to the person in

relation to whom it is issued.

(2) If an FWO notice is not given to the person in relation to whom it

is issued within 3 months after the day on which it was issued, the

notice ceases to have effect at the end of that period.

Variation of time for compliance with FWO notice

(3) If:

(a) the Fair Work Ombudsman gives an FWO notice to a person

under subsection (1); and

(b) the time specified in the notice under paragraph 712AC(b),

person;

the Fair Work Ombudsman must, at the same time as the FWO

notice is given to the person, also give notice to the person of a

time later than the time specified in the notice.

(4) The Fair Work Ombudsman may, at any time after giving an FWO

notice to the person in relation to whom it is issued, give notice to

the person of a time later than the time:

(a) specified in the notice under paragraph 712AC(b), (c) or (d);

(b) notified under subsection (3).

(5) A later time notified under subsection (3) or (4) must be at least 14

days after the FWO notice is given to the person.

(6) If the person is notified of a later time under subsection (3) or (4),

the FWO notice has effect as if the later time (or the latest of those

times) were the time specified in the FWO notice.

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712AE Conduct of examination

Legal representation

(1) A person attending before the Fair Work Ombudsman, or a

member of the staff mentioned in paragraph 712AA(2)(c), may be

represented by a lawyer if the person chooses.

Oath or affirmation

(2) The Fair Work Ombudsman, or a member of the staff mentioned in

paragraph 712AA(2)(c), may require the information or answers to

be verified by, or given on, oath or affirmation, and either orally or

in writing. For that purpose, the Fair Work Ombudsman, or any

member of the staff of the Office of the Fair Work Ombudsman,

may administer the oath or affirmation.

(3) The oath or affirmation is an oath or affirmation that the

information or answers are or will be true.

712B Requirement to comply with FWO notice

(1) A person who has been given an FWO notice must do the

following (as applicable):

(a) give information or produce a document in accordance with

the notice;

(b) attend to answer questions in accordance with the notice;

under subsection 712AE(2);

(d) answer questions relevant to the investigation while attending

as required by the FWO notice.

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

(2) Subsection (1) does not apply to the extent that the person is not

capable of complying with the requirement.

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Section 712C

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712C Payment for expenses incurred in attending as required by an

FWO notice

(1) A person who attends as required by an FWO notice is (subject to

subsection (2)) entitled to be paid fees and allowances, fixed by or

calculated in accordance with the regulations, for reasonable

expenses (including legal expenses) incurred by the person in so

attending.

(2) The person is not entitled to be paid for expenses under this section

unless the person:

(a) applies, in writing, to the Fair Work Ombudsman for

payment of the expenses within 3 months after the

attendance; and

(b) provides to the Fair Work Ombudsman sufficient evidence to

establish that the person incurred the expenses.

(3) An application under paragraph (2)(a) must:

(a) if a form is prescribed by the regulations—be in that form;

and

(b) include any information prescribed by the regulations.

712D Protection from liability relating to FWO notices

A person who, in good faith, gives information, produces a record

or document, or answers a question, when required to do so under

an FWO notice is not liable to:

(a) any proceedings for contravening any other law because of

that conduct; or

(b) civil proceedings for loss, damage or injury of any kind

suffered by another person because of that conduct.

712E Fair Work Ombudsman must notify Commonwealth

Ombudsman of issue of FWO notice

(1) As soon as practicable after an FWO notice has been issued, the

Fair Work Ombudsman must:

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(a) notify the Commonwealth Ombudsman that the FWO notice

has been issued; and

(b) give the Commonwealth Ombudsman a copy of:

(i) the FWO notice; and

(ii) the affidavit that accompanied the application for the

FWO notice; and

(iii) any other information in relation to the FWO notice that

was given to the nominated AAT presidential member

who issued the notice.

(2) If notice under subsection 712AD(3) or (4) is given to a person, the

Fair Work Ombudsman must notify the Commonwealth

Ombudsman as soon as practicable after giving notice.

712F Review and report by Commonwealth Ombudsman

Fair Work Ombudsman to give report etc. to Commonwealth

Ombudsman

(1) As soon as practicable after an examination of a person under

paragraph 712AA(2)(c) is completed, the Fair Work Ombudsman

must give the Commonwealth Ombudsman:

(a) a report about the examination; and

(b) a video recording of the examination; and

(2) The report under paragraph (1)(a) must include:

(a) a copy of the FWO notice under which the examination was

conducted; and

(b) the following information:

(i) the time and place at which the examination was

conducted;

(ii) the name of each person who was present at the

examination;

(iii) any other information prescribed by the rules.

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Review of exercise of powers under this Subdivision

(3) The Commonwealth Ombudsman:

(a) must review the exercise of powers under this Subdivision by

the Fair Work Ombudsman and any member of the staff of

the Office of the Fair Work Ombudsman; and

(b) may do anything incidental or conducive to the performance

of that function.

(4) The Commonwealth Ombudsman’s powers under the Ombudsman

Act 1976 extend to a review by the Ombudsman under this section

as if the review were an investigation by the Ombudsman under

that Act.

(5) The exercise of those powers in relation to a review by the

Ombudsman under this section is taken, for all purposes, to be an

exercise of powers under the Ombudsman Act 1976.

Commonwealth Ombudsman to report to Parliament

(6) As soon as practicable after the end of each quarter of each

financial year, the Commonwealth Ombudsman must prepare and

present to the Parliament a report about examinations conducted

during that quarter. The report must include the results of reviews

conducted under this section during that quarter.

(7) The Commonwealth Ombudsman may prepare and present to the

Parliament any other reports about the results of reviews conducted

under this section the Commonwealth Ombudsman considers

appropriate.

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Subdivision DC—Other rules relating to answers, records and

documents

713 Self-incrimination etc.

Excuses that are not available

(1) A person is not excused from giving information, producing a

record or document, or answering a question, under

paragraph 709(d) or subsection 712(1), or under an FWO notice,

on the ground that to do so might tend to incriminate the person or

otherwise expose the person to a penalty or other liability.

Use/derivative use indemnity in relation to requirement under

paragraph 709(d) or subsection 712(1)

(2) In the case of an individual who produces a record or document,

under paragraph 709(d) or subsection 712(1), none of the

following:

(a) the record or document produced;

(b) producing the record or document;

indirect consequence of producing the record or document;

is admissible in evidence against the individual in criminal

proceedings, other than:

(d) proceedings for an offence against section 137.1 or 137.2 of

the Criminal Code that relates to this Act (false or misleading

information or documents); and

(e) proceedings for an offence against section 149.1 of the

Criminal Code that relates to this Act (obstruction of

Commonwealth officials).

Use indemnity in relation to FWO notices

(3) In the case of an individual who gives information, produces a

record or document, or answers a question, under an FWO notice,

any information or answer given, or record or document produced,

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is not admissible in evidence against the individual in proceedings,

other than:

(a) proceedings for a contravention of section 712B or 718A

(requirement to comply with FWO notice and false or

misleading information or documents); and

(b) proceedings for an offence against section 137.1 or 137.2 of

the Criminal Code that relates to this Act (false or misleading

information or documents); and

Criminal Code that relates to this Act (obstruction of

Commonwealth officials).

713A Certain records and documents are inadmissible

The following are not admissible in evidence in criminal

proceedings against an individual:

(a) any record or document inspected or copied under

paragraph 709(e) of which the individual had custody, or to

which the individual had access, when it was inspected or

copied;

(b) any information, document or thing obtained as a direct or

indirect consequence of inspecting or copying a record or

document of which the individual had custody, or to which

the individual had access, when it was inspected or copied

under paragraph 709(e).

713AA Legal professional privilege

Nothing in this Part requires a person to produce a document that

would disclose information that is the subject of legal professional

privilege.

714 Power to keep records or documents

(1) If a record or document is produced to the Fair Work Ombudsman,

an inspector or any other person in accordance with this

Subdivision, he or she may:

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(a) inspect, and make copies of, the record or document; and

(b) keep the record or document for such period as is necessary.

(2) While the Fair Work Ombudsman, an inspector or any other person

keeps a record or document, he or she must allow the following

persons to inspect, or make copies of, the record or document at all

reasonable times:

(a) the person who produced the record or document;

(b) any person otherwise entitled to possession of the record or

document;

paragraph (b).

714A Reports not to include information relating to an individual’s

affairs

(1) Information relating to the affairs of an individual must not be

included in a report under section 685 (which allows the Minister

to require reports) or in a report referred to in section 686 (which

deals with annual reports) if:

(a) the individual is named, or otherwise specifically identified,

in the report as the individual to whom the information

relates; or

(b) it is reasonably likely that people generally (other than

people to whom the individual has disclosed information

relating to the individual’s affairs) would be able to work out

the identity of the individual to whom the information relates.

(2) For the purposes of applying paragraph (1)(b) to information

relating to a particular individual’s affairs, the context in which the

information appears, and information that is otherwise publicly

available, must be taken into account (as well as any other relevant

matter).

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Subdivision DD—Enforceable undertakings and compliance

notices

715 Enforceable undertakings relating to contraventions of civil

remedy provisions

Application of this section

(1) This section applies if the Fair Work Ombudsman reasonably

believes that a person has contravened a civil remedy provision.

Accepting an undertaking

(2) The Fair Work Ombudsman may accept a written undertaking

given by the person in relation to the contravention, except as

provided by subsection (5).

Withdrawing or varying an undertaking

(3) The person may withdraw or vary the undertaking at any time, but

only with the Fair Work Ombudsman’s consent.

Relationship with orders in relation to contraventions of civil

remedy provisions

(4) An inspector must not apply for an order under Division 2 of

Part 4-1 in relation to a contravention of a civil remedy provision

by a person if an undertaking given by the person under this

section in relation to the contravention has not been withdrawn.

Note: A person other than an inspector who is otherwise entitled to apply for

an order in relation to the contravention may do so.

Relationship with compliance notices

(5) The Fair Work Ombudsman must not accept an undertaking in

relation to a contravention if the person has been given a notice in

relation to the contravention under section 716.

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Enforcement of undertakings

(6) If the Fair Work Ombudsman considers that the person who gave

the undertaking has contravened any of its terms, the Fair Work

Ombudsman may apply to the Federal Court, the Federal Circuit

Court or an eligible State or Territory Court for an order under

subsection (7).

(7) If the court is satisfied that the person has contravened a term of

the undertaking, the court may make one or more of the following

orders:

(a) an order directing the person to comply with the term of the

undertaking;

(b) an order awarding compensation for loss that a person has

suffered because of the contravention;

716 Compliance notices

Application of this section

(1) This section applies if an inspector reasonably believes that a

person has contravened one or more of the following:

(a) a provision of the National Employment Standards;

(b) a term of a modern award;

(d) a term of a workplace determination;

(e) a term of a national minimum wage order;

(f) a term of an equal remuneration order;

(g) a provision of Part 6-4C (which deals with the Coronavirus

economic response);

(h) a jobkeeper enabling direction (within the meaning of

Part 6-4C);

(i) a provision of an agreement authorised by Part 6-4C.

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Giving a notice

(2) The inspector may, except as provided by subsection (4), give the

person a notice requiring the person to do either or both of the

following within such reasonable time as is specified in the notice:

(a) take specified action to remedy the direct effects of the

contravention referred to in subsection (1);

(b) produce reasonable evidence of the person’s compliance with

the notice.

(3) The notice must also:

(a) set out the name of the person to whom the notice is given;

and

(b) set out the name of the inspector who gave the notice; and

(d) explain that a failure to comply with the notice may

contravene a civil remedy provision; and

(e) explain that the person may apply to the Federal Court, the

Federal Circuit Court or an eligible State or Territory Court

for a review of the notice on either or both of the following

grounds:

(i) the person has not committed a contravention set out in

the notice;

(ii) the notice does not comply with subsection (2) or this

subsection; and

(f) set out any other matters prescribed by the regulations.

Relationship with enforceable undertakings

(4) An inspector must not give a person a notice in relation to a

contravention if:

(a) the person has given an undertaking under section 715 in

relation to the contravention; and

(b) the undertaking has not been withdrawn.

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Relationship with civil remedy provisions

(4A) An inspector must not apply for an order under Division 2 of

Part 4-1 in relation to a contravention of a civil remedy provision

by a person if:

(a) the inspector has given the person a notice in relation to the

contravention; and

(b) either of the following subparagraphs applies:

(i) the notice has not been withdrawn, and the person has

complied with the notice;

(ii) the person has made an application under section 717 in

relation to the notice that has not been completely dealt

with.

Note: A person other than an inspector who is otherwise entitled to apply for

an order in relation to the contravention may do so.

(4B) A person who complies with a notice in relation to a contravention

of a civil remedy provision is not taken:

(a) to have admitted to contravening the provision; or

(b) to have been found to have contravened the provision.

Person must not fail to comply with notice

(5) A person must not fail to comply with a notice given under this

section.

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

(6) Subsection (5) does not apply if the person has a reasonable

excuse.

717 Review of compliance notices

(1) A person who has been given a notice under section 716 may apply

to the Federal Court, the Federal Circuit Court or an eligible State

or Territory Court for a review of the notice on either or both of the

following grounds:

(a) the person has not committed a contravention set out in the

notice;

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(b) the notice does not comply with subsection 716(2) or (3).

(2) At any time after the application has been made, the court may stay

the operation of the notice on the terms and conditions that the

court considers appropriate.

(3) The court may confirm, cancel or vary the notice after reviewing it.

Subdivision E—Disclosure of information by the Office of the

Fair Work Ombudsman

718 Disclosure of information by the Office of the Fair Work

Ombudsman

Information to which this section applies

(1) This section applies to the following information:

(a) information acquired by the Fair Work Ombudsman in the

course of performing functions, or exercising powers, as the

Fair Work Ombudsman;

(b) information acquired by an inspector in the course of

performing functions, or exercising powers, as an inspector;

of the Fair Work Ombudsman in the course of performing

functions, or exercising powers, as a member of that staff;

(d) information acquired by a person in the course of assisting

the Fair Work Ombudsman under section 698, or in the

course of performing functions, or exercising powers, as a

consultant under section 699;

(e) information acquired by a person in the course of assisting an

inspector under section 710.

Disclosure that is necessary or appropriate, or likely to assist

administration or enforcement

(2) The Fair Work Ombudsman may disclose, or authorise the

disclosure of, the information if the Fair Work Ombudsman

reasonably believes:

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(a) that it is necessary or appropriate to do so in the course of

performing functions, or exercising powers, under this Act;

(b) that the disclosure is likely to assist in the administration or

enforcement of a law of the Commonwealth, a State or a

Territory.

Disclosure to the Minister

(3) The Fair Work Ombudsman may disclose, or authorise the

disclosure of, the information to the Minister if the Fair Work

Ombudsman reasonably believes that the disclosure is likely to

assist the Minister to consider a complaint or issue in relation to a

matter arising under this Act.

Disclosure to the Department

(4) The Fair Work Ombudsman may disclose, or authorise the

disclosure of, the information to:

(a) the Secretary of the Department; or

(b) an SES employee, or an APS employee, in the Department;

for the purpose of briefing, or considering briefing, the Minister if

the Fair Work Ombudsman reasonably believes the disclosure is

likely to assist the Minister to consider a complaint or issue in

relation to a matter arising under this Act.

Subdivision F—False or misleading information or documents

718A False or misleading information or documents

(1) A person must not give information or produce a document to the

Fair Work Ombudsman, an inspector, or a person referred to in

subsection 712AA(2), (the official) exercising powers or

performing functions under, or in connection with, a law of the

Commonwealth if the person knows, or is reckless as to whether,

the information or the document:

(a) is false or misleading; or

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(b) for information—omits any matter or thing without which the

information is misleading.

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

Note 2: Sections 137.1 and 137.2 of the Criminal Code create offences for

providing false or misleading information or documents.

(2) Subsection (1) does not apply as a result of paragraph (1)(a) if the

information or the document is not false or misleading in a material

particular.

(3) Subsection (1) does not apply as a result of paragraph (1)(b) if the

information did not omit any matter or thing without which the

information is misleading in a material particular.

(4) Subsection (1) does not apply to a person who produces a

document if the document is accompanied by a written statement

signed by the person or, in the case of a body corporate, by a

competent officer of the body corporate:

(a) stating that the document is, to the knowledge of the person,

false or misleading in a material particular; and

(b) setting out, or referring to, the material particular in which

the document is, to the knowledge of the person, false or

misleading.

(5) Subsection (1) does not apply if, before the information was given

or the document was produced by a person to the official, the

official did not take reasonable steps to inform the person that the

person may be liable to a civil remedy for contravening

subsection (1).

(6) For the purposes of subsection (5), it is sufficient if the following

form of words is used:

“You may be liable to a civil remedy for giving false or misleading

information or producing false or misleading documents”.

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Chapter 6—Miscellaneous

Part 6-1—Multiple actions

Division 1—Introduction

719 Guide to this Part

This Part provides rules relating to applications for remedies under

this Act.

Division 2 prevents certain applications where other remedies are

available.

Division 3 prevents multiple applications or complaints in relation

to the same conduct.

720 Meanings of employee and employer

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

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

employees in certain circumstances).

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Division 2—Certain actions not permitted if alternative

action can be taken

721 Equal remuneration applications

(1) The FWC must not deal with an application for an equal

remuneration order if the FWC is satisfied that there is available to

the employees to whom the order will apply, an adequate

alternative remedy that:

(a) exists under a law of the Commonwealth (other than

Part 2-7) or a law of a State or Territory; and

(b) will ensure equal remuneration for work of equal or

comparable value for those employees.

(2) A remedy that:

(a) exists under a law of the Commonwealth, a State or a

Territory relating to discrimination in relation to

employment; and

(b) consists solely of compensation for past actions;

is not an adequate alternative remedy for the purposes of this

section.

722 Notification and consultation requirements applications

The FWC must not make an order under subsection 532(1) or

787(1) if the FWC is satisfied that there is available to the

applicant, or to the employees represented by the applicant, an

alternative remedy that:

(a) exists under a law of the Commonwealth (other than

Division 2 of Part 3-6 or Division 3 of Part 6-4) or a law of a

State or Territory; and

(b) will give effect, in relation to the employees and registered

employee associations concerned, to the requirements of

Article 13 of the ILO Convention (No. 158) concerning

Termination of Employment at the Initiative of the

Employer, done at Geneva on 22 June 1982 ([1994] ATS 4).

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Note: In 2009, the text of a Convention in the Australian Treaty Series was

accessible through the Australian Treaties Library on the AustLII

website (www.austlii.edu.au).

723 Unlawful termination applications

A person must not make an unlawful termination application in

relation to conduct if the person is entitled to make a general

protections court application in relation to the conduct.

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Division 3—Preventing multiple actions

Subdivision A—Equal remuneration applications

724 Equal remuneration applications

(1) The FWC must not deal with an application for an equal

remuneration order in relation to an employee if proceedings for an

alternative remedy:

(a) to ensure equal remuneration for work of equal or

comparable value for the employee; or

(b) against unequal remuneration for work of equal or

comparable value for the employee;

have commenced under a law of the Commonwealth (other than

Part 2-7) or a law of a State or Territory.

(2) Subsection (1) does not prevent the FWC from dealing with the

application if the proceedings for the alternative remedy:

(a) have been discontinued by the party who commenced the

proceedings; or

(b) have failed for want of jurisdiction.

(3) If an application has been made to the FWC for an equal

remuneration order in relation to an employee, a person is not

entitled to commence proceedings for an alternative remedy under

a law of the Commonwealth (other than Part 2-7) or a law of a

State or Territory:

(a) to ensure equal remuneration for work of equal or

comparable value for the employee; or

(b) against unequal remuneration for work of equal or

comparable value for the employee.

(4) Subsection (3) does not prevent a person from commencing

proceedings for an alternative remedy if:

(a) the applicant has discontinued the application for the equal

remuneration order; or

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(b) the application has failed for want of jurisdiction.

(5) A remedy that:

(a) exists under a law of the Commonwealth, a State or a

Territory relating to discrimination in relation to

employment; and

(b) consists solely of compensation for past actions;

is not an alternative remedy for the purposes of this section.

Subdivision B—Applications and complaints relating to

dismissal

725 General rule

A person who has been dismissed must not make an application or

complaint of a kind referred to in any one of sections 726 to 732 in

relation to the dismissal if any other of those sections applies.

726 Dismissal remedy bargaining order applications

(1) This section applies if:

(a) a dismissal remedy bargaining order application has been

made by, or on behalf of, the person in relation to the

dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the

application; or

(ii) failed for want of jurisdiction.

(2) A dismissal remedy bargaining order application is an application

for a bargaining order made on the ground that the person was

dismissed in contravention of the good faith bargaining

requirement in paragraph 228(1)(e).

727 General protections FWC applications

(1) This section applies if:

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(a) a general protections FWC application has been made by, or

on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the

application; or

(ii) failed for want of jurisdiction; or

(iii) resulted in the issue of a certificate under

paragraph 368(3)(a) (which provides for the FWC to

issue a certificate if the FWC is satisfied that all

reasonable attempts to resolve a dispute (other than by

arbitration) have been, or are likely to be, unsuccessful).

(1A) This section also applies if:

(a) a general protections FWC application has been made by, or

on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the

application; or

(ii) failed for want of jurisdiction; and

FWC under paragraph 368(3)(a) (which provides for the

FWC to issue a certificate if the FWC is satisfied that all

reasonable attempts to resolve a dispute (other than by

arbitration) have been, or are likely to be, unsuccessful); and

(d) a notification of the parties’ agreement to the FWC

arbitrating the dispute has been made as referred to in

paragraphs 369(1)(b) and (c).

(2) A general protections FWC application is an application under

section 365 for the FWC to deal with a dispute that relates to

dismissal.

728 General protections court applications

This section applies if:

(a) a general protections court application has been made by, or

on behalf of, the person in relation to the dismissal; and

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(b) the application has not:

(i) been withdrawn by the person who made the

application; or

(ii) failed for want of jurisdiction.

729 Unfair dismissal applications

(1) This section applies if:

(a) an unfair dismissal application has been made by the person

in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the

application; or

(ii) failed for want of jurisdiction; or

(iii) failed because the FWC was satisfied that the dismissal

was a case of genuine redundancy.

(2) An unfair dismissal application is an application under

subsection 394(1) for a remedy for unfair dismissal.

730 Unlawful termination FWC applications

(1) This section applies if:

(a) an unlawful termination FWC application has been made by,

or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the

application; or

(ii) failed for want of jurisdiction; or

(iii) resulted in the issue of a certificate under

paragraph 776(3)(a) (which provides for the FWC to

issue a certificate if the FWC is satisfied that all

reasonable attempts to resolve a dispute (other than by

arbitration) have been, or are likely to be, unsuccessful).

(1A) This section also applies if:

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(a) an unlawful termination FWC application has been made by,

or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the

application; or

(ii) failed for want of jurisdiction; and

FWC under paragraph 776(3)(a) (which provides for the

FWC to issue a certificate if the FWC is satisfied that all

reasonable attempts to resolve a dispute (other than by

arbitration) have been, or are likely to be, unsuccessful); and

(d) a notification of the parties’ agreement to the FWC

arbitrating the dispute has been made as referred to in

paragraphs 777(1)(b) and (c).

(2) An unlawful termination FWC application is an application under

section 773 for the FWC to deal with a dispute that relates to

dismissal.

731 Unlawful termination court applications

This section applies if:

(a) an unlawful termination court application has been made by,

or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the

application; or

(ii) failed for want of jurisdiction.

732 Applications and complaints under other laws

(1) This section applies if:

(a) an application or complaint under another law has been made

by, or on behalf of, the person in relation to the dismissal;

and

(b) the application or complaint has not:

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(i) been withdrawn by the person who made the

application; or

(ii) failed for want of jurisdiction.

(2) An application or complaint under another law is an application

or complaint made under:

(a) a law of the Commonwealth (other than this Act); or

(b) a law of a State or Territory.

(3) For the purposes of this Subdivision, if a complaint under the

Australian Human Rights Commission Act 1986 relates to a

dismissal only as a result of an amendment of the complaint, the

complaint is taken to be made when the complaint is amended.

733 Dismissal does not include failure to provide benefits

For the purposes of this Subdivision, a reference to an application

or complaint made in relation to a dismissal does not include a

reference to an application or complaint made only in relation to

failure by the employer concerned to provide a benefit to which the

dismissed person is entitled as a result of the dismissal.

Subdivision C—General protections applications that do not

relate to dismissal

734 General rule

(1) A person must not make a general protections court application in

relation to conduct that does not involve the dismissal of the person

if:

(a) an application or complaint under an anti-discrimination law

has been made by, or on behalf of, the person in relation to

the conduct; and

(b) the application or complaint has not:

(i) been withdrawn by the person who made the

application; or

(ii) failed for want of jurisdiction.

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(2) A person must not make an application or complaint under an

anti-discrimination law in relation to conduct that does not involve

the dismissal of the person if:

(a) a general protections court application has been made by, or

on behalf of, the person in relation to the conduct; and

(b) the application has not:

(i) been withdrawn by the person who made the

application; or

(ii) failed for want of jurisdiction.

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Section 735

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Part 6-2—Dealing with disputes

Division 1—Introduction

735 Guide to this Part

This Part is about dealing with disputes between national system

employees and their employers.

Division 2 deals with the powers of the FWC and other persons to

deal with a dispute if a modern award, enterprise agreement or

contract of employment includes a term that provides for the FWC

or the person to deal with the dispute.

736 Meanings of employee and employer

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

employer means a national system employer.

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

employees in certain circumstances).

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Division 2—Dealing with disputes

Subdivision A—Model term about dealing with disputes

737 Model term about dealing with disputes

The regulations must prescribe a model term for dealing with

disputes for enterprise agreements.

Subdivision B—Dealing with disputes

738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for

dealing with disputes, including a term in accordance with

section 146; or

(b) an enterprise agreement includes a term that provides a

procedure for dealing with disputes, including a term referred

to in subsection 186(6); or

a term that provides a procedure for dealing with disputes

between the employer and the employee, to the extent that

the dispute is about any matters in relation to the National

Employment Standards or a safety net contractual

entitlement; or

(d) a determination under the Public Service Act 1999 includes a

term that provides a procedure for dealing with disputes

arising under the determination or in relation to the National

Employment Standards.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or

allows the FWC to deal with a dispute.

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(2) The FWC must not deal with a dispute to the extent that the dispute

is about whether an employer had reasonable business grounds

under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment,

enterprise agreement or other written agreement to the FWC

dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises

the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to

a term of an enterprise agreement that has the same (or substantially

the same) effect as subsection 65(5) or 76(4) (see also

subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers

limited by the term.

(4) If, in accordance with the term, the parties have agreed that the

FWC may arbitrate (however described) the dispute, the FWC may

do so.

Note: The FWC may also deal with a dispute by mediation or conciliation,

or by making a recommendation or expressing an opinion (see

subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is

inconsistent with this Act, or a fair work instrument that applies to

the parties.

(6) The FWC may deal with a dispute only on application by a party to

the dispute.

740 Dispute dealt with by persons other than the FWC

(1) This section applies if a term referred to in section 738 requires or

allows a person other than the FWC to deal with a dispute.

(2) The person must not deal with a dispute to the extent that the

dispute is about whether an employer had reasonable business

grounds under subsection 65(5) or 76(4), unless:

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(a) the parties have agreed in a contract of employment,

enterprise agreement or other written agreement to the person

dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises

the person to deal with the matter.

Note: This does not prevent a person from dealing with a dispute relating to

a term of an enterprise agreement that has the same (or substantially

the same) effect as subsection 65(5) or 76(4) (see also

subsection 55(5)).

(3) If, in accordance with the term, the parties have agreed that the

person may arbitrate (however described) the dispute, the person

may do so.

(4) Despite subsection (3), the person must not make a decision that is

inconsistent with this Act, or a fair work instrument that applies to

the parties.

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Part 6-3—Extension of National Employment

Standards entitlements

Division 1—Introduction

741 Guide to this Part

This Part contains Divisions that extend some National

Employment Standards entitlements to non-national system

employees.

Division 2 extends the entitlements to unpaid parental leave, and

related entitlements.

Division 3 extends the entitlements to notice of termination or

payment in lieu of notice.

742 Meanings of employee and employer

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

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Section 743

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Division 2—Extension of entitlement to unpaid parental

leave and related entitlements

Subdivision A—Main provisions

743 Object of this Division

The object of this Division is to give effect, or further effect, to:

(a) the ILO Convention (No. 156) concerning Equal

Opportunities and Equal Treatment for Men and Women

Workers: Workers with Family Responsibilities, done at

Geneva on 23 June 1981 ([1991] ATS 7); and

(b) the Workers with Family Responsibilities Recommendation,

1981 (Recommendation No. R165) which the General

Conference of the ILO adopted on 23 June 1981;

by providing for a system of unpaid parental leave and related

entitlements, that will help men and women workers who have

responsibilities in relation to their dependent children:

activity; and

(d) to reconcile their employment and family responsibilities.

Note 1: In 2009, the text of a Convention in the Australian Treaty Series was

accessible through the Australian Treaties Library on the AustLII

website (www.austlii.edu.au).

Note 2: In 2009, the text of a Recommendation adopted by the General

Conference of the ILO was accessible through the ILO website

(www.ilo.org).

744 Extending the entitlement to unpaid parental leave and related

entitlements

Extension of Division 5 of Part 2-2 and related provisions

(1) The provisions of Division 5 of Part 2-2, and the related provisions

identified in subsection (2), apply in relation to a non-national

system employee as if:

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(a) any reference in the provisions to a national system employee

also included a reference to a non-national system employee;

and

(b) any reference in the provisions to a national system employer

also included a reference to a non-national system employer.

Note 1: Division 5 of Part 2-2 provides for unpaid parental leave and related

entitlements.

Note 2: This subsection applies to express references to national system

employees and national system employers, and to references that are

to national system employees and national system employers because

of section 60 or another similar section.

(2) The related provisions are the following, so far as they apply in

relation to Division 5 of Part 2-2 as it applies because of

subsection (1):

(a) the provisions of Divisions 2 and 13 of Part 2-2;

(b) any other provisions of this Act prescribed by the

regulations;

used (directly or indirectly) in provisions of Division 5 of

Part 2-2, or in provisions referred to in paragraph (a) or (b) of

this subsection.

Modifications are set out in Subdivision B

(3) The extended parental leave provisions have effect subject to the

modifications provided for in Subdivision B. The extended

parental leave provisions are the provisions of Division 5 of

Part 2-2, and the related provisions identified in subsection (2) of

this section, as they apply because of this section.

Regulations made for the purpose of provisions

(4) Subsection (1) also applies to any regulations made for the purpose

of a provision to which that subsection applies, other than a

provision that is modified by Subdivision B.

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Chapter 6 Miscellaneous

Part 6-3 Extension of National Employment Standards entitlements

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

Section 745

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745 Contravening the extended parental leave provisions

(1) A non-national system employer must not contravene the extended

parental leave provisions.

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

Note 2: The extended parental leave provisions also affect national system

employers (including as section 44 applies to them) and their national

system employees. This is because the provisions may result in a

national system employee, and a non-national system employee, being

an employee couple.

(2) However, an order cannot be made under Division 2 of Part 4-1 in

relation to a contravention (or alleged contravention) of

subsection 76(4).

Note: Subsection 76(4) states that an employer may refuse an application to

extend unpaid parental leave only on reasonable business grounds.

746 References to the National Employment Standards include

extended parental leave provisions

A reference in this Act, or another law of the Commonwealth, to

the National Employment Standards includes a reference to the

extended parental leave provisions.

747 State and Territory laws that are not excluded

This Act is not intended to apply to the exclusion of laws of a State

or Territory that provide employee entitlements in relation to the

birth or adoption of children, to the extent that those laws:

(a) apply to non-national system employees; and

(b) provide entitlements for those employees that are more

beneficial than the entitlements under the extended parental

leave provisions.

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

Section 748

Fair Work Act 2009 187

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Subdivision B—Modifications of the extended parental leave

provisions

748 Non-national system employees are not award/agreement free

employees

A non-national system employee is not an award/agreement free

employee for the purpose of the extended parental leave

provisions.

749 Modification of meaning of base rate of pay for pieceworkers

Section 16 has effect as if the following paragraph were added at

the end of subsection 16(2):

(d) the employee is a non-national system employee, and the

regulations prescribe, or provide for the determination of, the

employee’s base rate of pay for the purposes of the extended

parental leave provisions.

750 Modification of meaning of full rate of pay for pieceworkers

Section 18 has effect as if the following paragraph were added at

the end of subsection 18(2):

(d) the employee is a non-national system employee, and the

regulations prescribe, or provide for the determination of, the

employee’s full rate of pay for the purposes of the extended

parental leave provisions.

751 Modification of meaning of ordinary hours of work—if

determined by State industrial instrument

Section 20 has effect as if the following subsection were inserted

before subsection 20(1):

(1A) If a State industrial instrument applies to a non-national system

employee and specifies, or provides for the determination of, the

employee’s ordinary hours of work, the employee’s ordinary

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Part 6-3 Extension of National Employment Standards entitlements

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

Section 752

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hours of work are as specified in, or determined in accordance

with, that instrument.

752 Modification of meaning of ordinary hours of work—if not

determined by State industrial instrument

Section 20 has effect as if references in subsections 20(1), (2) and

(3) to an award/agreement free employee also included references

to a non-national system employee to whom either of the following

paragraphs applies:

(a) a State industrial instrument applies to the employee, but it

does not specify, or provide for the determination of, the

employee’s ordinary hours of work;

(b) no State industrial instrument applies to the employee.

753 Modification of meaning of ordinary hours of work—regulations

may prescribe usual weekly hours

Section 20 has effect as if the following subsection were added at

the end:

(5) For a non-national system employee:

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

(b) who does not have usual weekly hours of work; and

(i) a State industrial instrument applies to the employee,

but it does not specify, or provide for the determination

of, the employee’s ordinary hours of work;

(ii) no State industrial instrument applies to the employee;

the regulations may prescribe, or provide for the determination of,

hours that are taken to be the employee’s usual weekly hours of

work for the purposes of the extended parental leave provisions.

754 Modification of meaning of pieceworker

Section 21 has effect as if the following paragraph were added at

the end of subsection 21(1):

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Section 755

Fair Work Act 2009 189

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(d) a non-national system employee who is in a class of

employees prescribed by the regulations as pieceworkers for

the purpose of the extended parental leave provisions.

755 Modification of provision about interaction with paid leave

Section 79 applies as if subsections 79(2) and (3) were omitted.

756 Modification of provision about relationship between National

Employment Standards and agreements

Section 128 has effect as if references to an award/agreement free

employee also included references to a non-national system

employee.

757 Modification of power to make regulations

Section 129 has effect as if the following subsection were added at

the end:

(2) The regulations may:

(a) permit non-national system employers and non-national

system employees to agree on matters that would or might

otherwise be contrary to an extended parental leave

provision; and

(b) prohibit such employers and employees from agreeing on

matters, or prohibit such employers from making

requirements of such employees, that would or might

otherwise be permitted by an extended parental leave

provision.

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Chapter 6 Miscellaneous

Part 6-3 Extension of National Employment Standards entitlements

Division 3 Extension of entitlement to notice of termination or payment in lieu of

notice

Section 758

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Division 3—Extension of entitlement to notice of

termination or payment in lieu of notice

Subdivision A—Main provisions

758 Object of this Division

The object of this Division is to give effect, or further effect, to:

(a) the ILO Convention (No. 158) concerning Termination of

Employment at the Initiative of the Employer, done at

Geneva on 22 June 1982 ([1994] ATS 4); and

(b) the Termination of Employment Recommendation, 1982

(Recommendation No. R166) which the General Conference

of the ILO adopted on 22 June 1982.

Note 1: In 2009, the text of a Convention in the Australian Treaty Series was

accessible through the Australian Treaties Library on the AustLII

website (www.austlii.edu.au).

Note 2: In 2009, the text of a Recommendation adopted by the General

Conference of the ILO was accessible through the ILO website

(www.ilo.org).

759 Extending entitlement to notice of termination or payment in

lieu of notice

Extension of Subdivision A of Division 11 of Part 2-2 and related

provisions

(1) The provisions of Subdivision A of Division 11 of Part 2-2, and the

related provisions identified in subsection (2), apply in relation to a

non-national system employee as if:

(a) any reference in the provisions to a national system employee

also included a reference to a non-national system employee;

and

(b) any reference in the provisions to a national system employer

also included a reference to a non-national system employer.

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Extension of entitlement to notice of termination or payment in lieu of notice Division

Section 760

Fair Work Act 2009 191

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Note 1: Subdivision A of Division 11 of Part 2-2 provides for notice of

termination or payment in lieu of notice.

Note 2: This subsection applies to express references to national system

employees and national system employers, and to references that are

to national system employees and national system employers because

of section 60 or another similar section.

(2) The related provisions are the following, so far as they apply in

relation to Subdivision A of Division 11 of Part 2-2 as it applies

because of subsection (1):

(a) the provisions of Division 2, Subdivision C of Division 11,

and Division 13, of Part 2-2;

(b) any other provisions of this Act prescribed by the

regulations;

used (directly or indirectly) in provisions of Subdivision A of

Division 11 of Part 2-2, or in provisions referred to in

paragraph (a) or (b) of this subsection.

Modifications are set out in Subdivision B

(3) The extended notice of termination provisions have effect subject

to the modifications provided for in Subdivision B. The extended

notice of termination provisions are the provisions of Subdivision

A of Division 11 of Part 2-2, and the related provisions identified

in subsection (2) of this section, as they apply because of this

section.

Regulations made for the purpose of provisions

(4) Subsection (1) also applies to any regulations made for the purpose

of a provision to which that subsection applies, other than a

provision that is modified by Subdivision B.

760 Contravening the extended notice of termination provisions

A non-national system employer must not contravene the extended

notice of termination provisions.

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

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Chapter 6 Miscellaneous

Part 6-3 Extension of National Employment Standards entitlements

Division 3 Extension of entitlement to notice of termination or payment in lieu of

notice

Section 761

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761 References to the National Employment Standards include

extended notice of termination provisions

A reference in this Act, or another law of the Commonwealth, to

the National Employment Standards includes a reference to the

extended notice of termination provisions.

762 State and Territory laws that are not excluded

This Act is not intended to apply to the exclusion of laws of a State

or Territory that provide employee entitlements relating to notice

of termination of employment (or payment in lieu of notice), to the

extent that those laws:

(a) apply to non-national system employees; and

(b) provide entitlements for those employees that are more

beneficial than the entitlements under the extended notice of

termination provisions.

Subdivision B—Modifications of the extended notice of

termination provisions

763 Non-national system employees are not award/agreement free

employees

A non-national system employee is not an award/agreement free

employee for the purpose of the extended notice of termination

provisions.

764 Modification of meaning of full rate of pay for pieceworkers

Section 18 has effect as if the following paragraph were added at

the end of subsection 18(2):

(d) the employee is a non-national system employee, and the

regulations prescribe, or provide for the determination of, the

employee’s full rate of pay for the purposes of the extended

notice of termination provisions.

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Section 765

Fair Work Act 2009 193

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765 Modification of meaning of pieceworker

Section 21 has effect as if the following paragraph were added at

the end of subsection 21(1):

(d) a non-national system employee who is in a class of

employees prescribed by the regulations as pieceworkers for

the purpose of the extended notice of termination provisions.

766 Modification of provision about notice of termination by

employee

Section 118 has effect as if the following subsection were added at

the end:

(2) A State industrial instrument may include terms specifying the

period of notice a non-national system employee must give in order

to terminate his or her employment.

767 Modification of provision about relationship between National

Employment Standards and agreements

Section 128 has effect as if references to an award/agreement free

employee also included references to a non-national system

employee.

768 Modification of power to make regulations

Section 129 has effect as if the following subsection were added at

the end:

(2) The regulations may:

(a) permit non-national system employers and non-national

system employees to agree on matters that would or might

otherwise be contrary to an extended notice of termination

provision; and

(b) prohibit such employers and employees from agreeing on

matters, or prohibit such employers from making

requirements of such employees, that would or might

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Part 6-3 Extension of National Employment Standards entitlements

Division 3 Extension of entitlement to notice of termination or payment in lieu of

notice

Section 768

194 Fair Work Act 2009

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otherwise be permitted by an extended notice of termination

provision.

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Miscellaneous Chapter 6

Transfer of business from a State public sector employer Part 6-3A

Introduction Division 1

Section 768AA

Fair Work Act 2009 195

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Part 6-3A—Transfer of business from a State

public sector employer

Division 1—Introduction

768AA Guide to this Part

This Part provides for the transfer of certain terms and conditions

of employment when there is a transfer of business from a

non-national system employer that is a State public sector

employer (called “the old State employer”) to a national system

employer (called “the new employer”).

A transfer of business involves the transfer of employment of one

or more employees of the old State employer to the new employer.

Each of those employees is a “transferring employee”.

If there is a transfer of business, then this Part provides for certain

terms and conditions of employment with the old State employer to

be transferred to the employment of the transferring employee with

the new employer.

This Part achieves the transfer of those terms and conditions by

creating a new instrument—a “copied State instrument”—for each

transferring employee. The new instrument is a federal instrument

and is enforceable under this Act.

768AB Meanings of employee and employer

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

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Part 6-3A Transfer of business from a State public sector employer

Division 2 Copying terms of State instruments when there is a transfer of business

Section 768AC

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Division 2—Copying terms of State instruments when

there is a transfer of business

768AC What this Division is about

This Division sets out when there is a transfer of business from the

old State employer to the new employer.

768AD When does a transfer of business occur?

When there is a transfer of business

(1) There is a transfer of business from a non-national system

employer that is a State public sector employer of a State (the old

State employer) to a national system employer (the new employer)

if the following requirements are satisfied:

(a) the employment of a person who is a State public sector

employee of the old State employer has terminated;

(b) within 3 months after the termination, the person becomes

employed by the new employer;

new employer is the same, or substantially the same, as the

work the person performed for the old State employer;

(d) there is a connection between the old State employer and the

new employer as described in subsection (2), (3) or (4).

Transfer of assets from old State employer to new employer

(2) There is a connection between the old State employer and the new

employer if, in accordance with an arrangement between:

(a) the old State employer or an associated entity of the old State

employer; and

(b) the new employer or an associated entity of the new

employer;

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Copying terms of State instruments when there is a transfer of business Division 2

Section 768AE

Fair Work Act 2009 197

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the new employer, or the associated entity of the new employer,

owns or has the beneficial use of some or all of the assets (whether

tangible or intangible):

State employer, owned or had the beneficial use of; and

(d) that relate to, or are used in connection with, the transferring

work.

Old State employer outsources work to new employer

(3) There is a connection between the old State employer and the new

employer if the transferring work is performed by one or more

transferring employees, as employees of the new employer,

because the old State employer, or an associated entity of the old

State employer, has outsourced the transferring work to the new

employer or an associated entity of the new employer.

New employer is an associated entity of old employer

(4) There is a connection between the old State employer and the new

employer if the new employer is an associated entity of the old

State employer when the transferring employee becomes employed

by the new employer.

768AE Meaning of transferring employee, termination time and

re-employment time

(1) The person referred to in paragraph 768AD(1)(a) is a transferring

employee in relation to the transfer of business.

(2) The termination time of a transferring employee is the start of the

day the employment of the employee is terminated by the old State

employer.

(3) The re-employment time of a transferring employee is the start of

the day the employee becomes employed by the new employer.

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Chapter 6 Miscellaneous

Part 6-3A Transfer of business from a State public sector employer

Division 3 Copied State instruments

Section 768AF

198 Fair Work Act 2009

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Division 3—Copied State instruments

Subdivision A—Guide to this Division

768AF What this Division is about

If there is a transfer of business, then this Division provides for

certain terms and conditions of a transferring employee’s

employment with the old State employer to be transferred to the

employment with the new employer.

The transfer of those terms and conditions is achieved by creating a

new instrument—called a “copied State instrument”—for the

transferring employee. The new instrument is a federal instrument

that is enforceable under this Act.

There are 2 types of copied State instruments—a copied State

award and a copied State employment agreement.

A copied State award copies the terms of a State award that

covered the transferring employee and the old State employer

immediately before the termination of the employee’s employment

with the old State employer.

A copied State employment agreement copies the terms of a State

employment agreement that covered the transferring employee and

the old State employer immediately before the termination of the

employee’s employment with the old State employer.

Subdivision B—Copied State instruments

768AG Contravening a copied State instrument

A person must not contravene a term of a copied State instrument

for a transferring employee that applies to the person.

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

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Copied State instruments Division 3

Section 768AH

Fair Work Act 2009 199

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Note 2: For when a copied State instrument for a transferring employee

applies to a person, see section 768AM.

768AH What is a copied State instrument?

A copied State instrument for a transferring employee is the

following:

(a) a copied State award for the employee;

(b) a copied State employment agreement for the employee.

768AI What is a copied State award?

(1) If, immediately before the termination time of a transferring

employee:

(a) a State award (the original State award) was in operation

under the State industrial law of the State; and

(b) the original State award covered (however described in the

original State award or a relevant law of the State) the old

State employer and the transferring employee (whether or not

the original State award also covered other persons);

then a copied State award for the transferring employee is taken to

come into operation immediately after the termination time.

Note 1: Even though a copied State award comes into operation in relation to

the transferring employee, it will not be enforceable by the employee

or another person (for example, the new employer) unless and until it

applies to the employee or other person. In particular, it will not apply

to the employee or new employer before the employee becomes

employed by the new employer. For when the copied State award

applies to a person, see section 768AM.

Note 2: A copied State employment agreement for the transferring employee

may also come into operation immediately after the termination time,

see subsection 768AK(1). If it does, then the State’s interaction rules

that were in force immediately before the termination time apply for

the purposes of working out the interaction between the copied State

award and the copied State employment agreement (see item 11 of

Schedule 3A to the Transitional Act as that item applies in a modified

way because of section 768BY).

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Chapter 6 Miscellaneous

Part 6-3A Transfer of business from a State public sector employer

Division 3 Copied State instruments

Section 768AJ

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(2) The copied State award is taken to include the same terms as were

in the original State award immediately before the termination

time.

Note: The State’s instrument content rules that were in force immediately

before the termination time apply to the copied State award (see

item 10 of Schedule 3A to the Transitional Act as that item applies in

a modified way because of section 768BY).

(3) If the terms of the original State award were affected by an order, a

decision or a determination of a State industrial body or a court of

the State that was in operation immediately before the termination

time, the terms of the copied State award are taken to be similarly

affected by the terms of that order, decision or determination.

768AJ What is a State award?

(1) A State award is an instrument in relation to which the following

conditions are satisfied:

(a) the instrument regulates terms and conditions of

employment;

(b) the instrument was made under a State industrial law by a

State industrial body;

(2) However, the regulations may provide that an instrument of a

specified kind:

(a) is a State award; or

(b) is not a State award.

768AK What is a copied State employment agreement?

(1) If, immediately before the termination time of a transferring

employee:

(a) a State employment agreement (the original State

agreement) was in operation under a State industrial law of

the State; and

(b) the original State agreement covered (however described in

the original State agreement or a relevant law of the State)

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Copied State instruments Division 3

Section 768AK

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the old State employer and the transferring employee

(whether or not the original State agreement also covered

other persons);

then a copied State employment agreement for the transferring

employee is taken to come into operation immediately after the

termination time.

Note 1: Even though a copied State employment agreement comes into

operation for the transferring employee, it will not be enforceable by

the employee or another person (for example, the new employer)

unless and until it applies to the employee or other person. In

particular, it will not apply to the employee or new employer before

the employee becomes employed by the new employer. For when the

copied State employment agreement applies to a person, see

section 768AM.

Note 2: A copied State award for the transferring employee may also come

into operation immediately after the termination time, see

subsection 768AI(1). If it does, then the State’s interaction rules that

were in force immediately before the termination time apply for the

purposes of working out the interaction between the copied State

employment agreement and the copied State award (see item 11 of

Schedule 3A to the Transitional Act as that item applies in a modified

way because of section 768BY).

(2) The copied State employment agreement is taken to include the

same terms as were in the original State agreement immediately

before the termination time.

Note: The State’s instrument content rules that were in force immediately

before the termination time apply to the copied State employment

agreement (see item 10 of Schedule 3A to the Transitional Act as that

item applies in a modified way because of section 768BY).

(3) If the terms of the original State employment agreement were

affected by an order, a decision or a determination of a State

industrial body or a court of the State that was in operation

immediately before the termination time, the terms of the copied

State employment agreement are taken to be similarly affected by

the terms of that order, decision or determination.

(4) If the original State agreement is a collective State employment

agreement, the copied State employment agreement is a copied

State collective employment agreement.

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Chapter 6 Miscellaneous

Part 6-3A Transfer of business from a State public sector employer

Division 3 Copied State instruments

Section 768AL

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(5) If the original State agreement is an individual State employment

agreement, the copied State employment agreement is a copied

State individual employment agreement.

768AL What is a State employment agreement?

(1) A State employment agreement is:

(a) an agreement in relation to which the following conditions

are satisfied:

(i) the agreement is between a non-national system

employer and one or more of the employees of the

employer, or between a non-national system employer

and an association of employees registered under a State

industrial law;

(ii) the agreement determines terms and conditions of

employment of one or more employees of the employer;

(iii) the agreement was made under a State industrial law; or

(b) a determination in relation to which the following conditions

are satisfied:

(i) the determination determines terms and conditions of

employment;

(ii) the determination was made under a State industrial law

by a State industrial body;

(iii) the determination was made in a situation in which

parties who were negotiating for the making of an

agreement of a kind described in paragraph (a) had not

been able to reach an agreement;

(iv) the purpose of the determination was to resolve the

matters that were at issue in those negotiations.

(2) However, the regulations may provide that an instrument of a

specified kind:

(a) is a State employment agreement; or

(b) is not a State employment agreement.

(3) A State employment agreement is a State collective employment

agreement unless:

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Section 768AM

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(a) it is an agreement of a kind that, under the relevant State

industrial law, could only be entered into by a single

employee and a single employer; or

(b) the agreement is of a kind prescribed by the regulations.

(4) A State employment agreement referred to in paragraph (3)(a) or

(b) is a State individual employment agreement.

768AM When does a copied State instrument apply to a person?

Transferring employee and organisations

(1) A copied State instrument for a transferring employee applies to

the transferring employee or an organisation if:

(a) the instrument covers the employee or organisation; and

(b) the instrument is in operation; and

the instrument does not apply to the employee or

organisation; and

(d) immediately before the employee’s termination time, the

employee or organisation would have been:

(i) required by the law of the State to comply with terms of

the original State award or original State agreement for

the instrument; or

(ii) entitled under the law of the State to enforce terms of

the original State award or original State agreement for

the instrument.

New employer and other employers

(2) A copied State instrument for a transferring employee applies to an

employer (whether the new employer or another employer) if:

(a) the instrument covers the employer; and

(b) the instrument is in operation; and

the instrument does not apply to the employer; and

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Part 6-3A Transfer of business from a State public sector employer

Division 3 Copied State instruments

Section 768AN

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(d) immediately before the employee’s termination time, the old

State employer would have been:

(i) required by the law of the State to comply with terms of

the original State award or original State agreement for

the instrument; or

(ii) entitled under the law of the State to enforce terms of

the original State award or original State agreement for

the instrument.

Note: This subsection may operate in relation to an employer that is not the

new employer in the situation where there has been a later transfer of

business by the new employer (see Part 2-8).

Other circumstances when instrument applies

(3) A copied State instrument for a transferring employee also applies

to a person if an FWC order made under a provision of this Act

provides, or has the effect, that the instrument applies to the

person.

Instrument only applies in relation to transferring work

(4) A reference in this Act to a copied State instrument for a

transferring employee applying to the employee is a reference to

the instrument applying to the employee in relation to the

transferring work of the employee.

768AN When does a copied State instrument cover a person?

Transferring employee and new employer

(1) A copied State instrument for a transferring employee covers the

employee and the new employer in relation to the transferring work

from the employee’s re-employment time.

Employee organisation

(2) A copied State instrument for a transferring employee covers an

employee organisation in relation to the employee if:

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(a) the instrument covers the employee because of

subsection (1); and

(b) immediately before the employee’s termination time, the

original State award or original State agreement for the

instrument covered (however described in the original State

award or original State agreement or in a relevant law of the

State) the organisation in relation to the employee.

Employer organisation

(3) A copied State instrument for a transferring employee covers an

employer organisation in relation to the new employer if:

(a) the instrument covers the new employer because of

subsection (1); and

(b) immediately before the employee’s termination time, the

original State award or original State agreement for the

instrument covered (however described in the original State

award or original State agreement or in a relevant law of the

State) the organisation in relation to the old State employer.

Other circumstances when a person is covered

(4) A copied State instrument for a transferring employee also covers a

person if any of the following provides, or has the effect, that the

instrument covers the person:

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

Act;

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

Example: The FWC may make a consolidation order specifying that the

instrument covers a person specified in the order (see

subsections 768BE(1) and 768BH(1)).

Circumstances when a person is not covered

(5) Despite subsections (1), (2), (3) and (4), a copied State instrument

for a transferring employee does not cover a person if any of the

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Chapter 6 Miscellaneous

Part 6-3A Transfer of business from a State public sector employer

Division 3 Copied State instruments

Section 768AO

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following provides, or has the effect, that the instrument does not

cover the person:

(a) a provision of this Act;

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

Example: If, after the transferring employee’s re-employment time, an enterprise

agreement starts to cover the employee, subsection 768AU(2)

provides that a copied State instrument for the employee ceases to

cover the employee.

(6) Despite subsections (1), (2), (3) and (4), a copied State instrument

for a transferring employee that has ceased to operate does not

cover a person.

Covered only in relation to transferring work

(7) A reference to a copied State instrument for a transferring

employee covering the employee is a reference to the instrument

covering the employee in relation to the transferring work of the

employee.

768AO When is a copied State instrument in operation?

When instrument comes into operation

(1) A copied State instrument for a transferring employee comes into

operation immediately after the employee’s termination time.

When copied State award ceases to operate

(2) A copied State award for a transferring employee ceases to operate

at the following time:

(a) unless paragraph (b) applies—the end of the period (the

default period) that is 5 years or such longer period as is

prescribed by the regulations, starting on the day the

employee’s termination time occurred;

(b) if the regulations allow the FWC to make an order to extend

the period of operation of a copied State award for a

transferring employee and, in accordance with those

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regulations, the FWC makes an order that the award operates

for a period that is longer than the default period—the end of

that period.

(3) The regulations may:

(a) prescribe circumstances in which the FWC may make an

order for the purposes of paragraph (2)(b); and

(b) prescribe a maximum period that the order may specify; and

order.

When copied State agreement ceases to operate

(4) A copied State employment agreement for a transferring employee

ceases to operate when it is terminated, which may happen before

or after the nominal expiry date of the agreement.

Note 1: See section 768AY for how the copied State employment agreement

can be terminated.

Note 2: If, after the transferring employee’s re-employment time with the new

employer, an enterprise agreement is made that covers the employee

and the new employer, then the copied State employment agreement

will cease to cover the employee and the new employer and will never

cover them again, see section 768AU.

(5) The nominal expiry date of a copied State employment agreement

for a transferring employee is:

(a) the day the original State agreement would nominally have

expired under the State industrial law of the State; or

(b) if that day falls after the end of 4 years beginning on the day

the employee’s termination time occurs—the last day of that

4-year period.

Once instrument ceases operation, can never operate again

(6) A copied State instrument for a transferring employee that has

ceased to operate can never operate again.

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Chapter 6 Miscellaneous

Part 6-3A Transfer of business from a State public sector employer

Division 4 Interaction between copied State instruments and the NES, modern awards

and enterprise agreements

Section 768AP

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Division 4—Interaction between copied State instruments

and the NES, modern awards and enterprise

agreements

Subdivision A—Guide to this Division

768AP What this Division is about

This Division provides for how copied State instruments interact

with the National Employment Standards, modern awards and

enterprise agreements.

Subdivision B—Interaction with the NES

768AQ Interaction between the NES and a copied State instrument

To the extent that a term of a copied State instrument for a

transferring employee is detrimental to the employee, in any

respect, when compared to an entitlement of the employee under

the National Employment Standards, the term of the instrument is

of no effect.

768AR Provisions of the NES that allow instruments to contain

particular kinds of terms

Application of particular provisions of the NES

(1) The following provisions have effect, on and after the

re-employment time of a transferring employee, as if a reference to

a modern award or an enterprise agreement included a reference to

a copied State instrument for the transferring employee:

(a) section 63 (which allows terms dealing with averaging of

hours of work);

(b) section 93 (which allows terms dealing with cashing out and

taking paid annual leave);

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paid personal/carer’s leave);

(d) subsection 107(5) (which allows terms dealing with evidence

requirements for paid personal/carer’s leave etc.);

(e) subsection 115(3) (which allows terms dealing with

substitution of public holidays);

(f) section 118 (which allows terms dealing with an employee

giving notice to terminate his or her employment);

(g) subsections 121(2) and (3) (which allow terms specifying

situations in which the redundancy pay entitlement under

section 119 does not apply);

(h) section 126 (which allows terms providing for school-based

apprentices and trainees to be paid loadings in lieu).

Terms about paid annual leave and personal/carer’s leave

(2) If a copied State instrument for a transferring employee:

(a) includes terms referred to in subsection 93(1) but the terms

do not include the requirements referred to in

subsection 93(2); or

(b) includes terms referred to in subsection 101(1) but the terms

do not include the requirements referred to in

subsection 101(2);

then the instrument is taken to include terms that include the

requirements.

Shiftworker annual leave entitlement

(3) If a copied State instrument for a transferring employee applies to

the employee, then subsections 87(3) to (5) have effect, on and

after the employee’s re-employment time, in the same way as they

apply to an award/agreement free employee.

Note: If the transferring employee qualifies for the shiftworker annual leave

entitlement under those subsections, the employee will be entitled to 5

(rather than 4) weeks of paid annual leave.

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Part 6-3A Transfer of business from a State public sector employer

Division 4 Interaction between copied State instruments and the NES, modern awards

and enterprise agreements

Section 768AS

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Subdivision C—Interaction with modern awards

768AS Modern awards and copied State awards

(1) While a copied State award for a transferring employee:

(a) covers the employee, or an employer (whether the new

employer or another national system employer) or other

person in relation to the employee; and

(b) is in operation;

a modern award does not cover the employee, or the employer or

other person in relation to the employee.

Note 1: When the copied State award for a transferring employee ceases to

cover the employee, a modern award will start to cover the employee,

or an employer or other person in relation to the employee.

Note 2: This subsection may operate in relation to an employer that is not the

new employer in the situation where there has been a later transfer of

business by the new employer (see Part 2-8).

(2) Subsection (1) does not apply for the purposes of section 193

(which is about the better off overall test for enterprise

agreements).

Note: For the purposes of determining whether an enterprise agreement that

covers a transferring employee passes the better off overall test,

subsection (2) allows the enterprise agreement to be compared against

a modern award that covers the employee.

(3) This section has effect subject to any FWC order about coverage

under subsection 768BA(1).

768AT Modern awards and copied State employment agreements

Copied State collective employment agreements

(1) If a copied State collective employment agreement for a

transferring employee and a modern award both apply:

(a) to the employee; or

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(b) to an employer (whether the new employer or another

national system employer) or another person in relation to the

employee;

then the copied State collective employment agreement for the

employee prevails over the modern award, to the extent of any

inconsistency.

Note 1: This subsection has effect subject to item 17 of Schedule 9 to the

Transitional Act as that item applies in a modified way because of

section 768BY. That item, as modified, requires that the base rate of

pay under the copied State employment agreement must not be less

than the modern award rate.

Note 2: This subsection may operate in relation to an employer that is not the

new employer in the situation where there has been a later transfer of

business by the new employer (see Part 2-8).

Copied State individual employment agreements

(2) While a copied State individual employment agreement for a

transferring employee applies:

(a) to the employee; or

(b) to an employer (whether the new employer or another

national system employer) or another person in relation to the

employee;

a modern award does not apply to the employee, or to the employer

or other person in relation to the employee.

Note 1: However, a modern award can cover the transferring employee while

the copied State individual employment agreement applies.

Note 2: This subsection has effect subject to item 17 of Schedule 9 to the

Transitional Act as that item applies in a modified way because of

section 768BY. That item, as modified, requires that the base rate of

pay under the copied State employment agreement must not be less

than the modern award rate.

Note 3: This subsection may operate in relation to an employer that is not the

new employer in the situation where there has been a later transfer of

business by the new employer (see Part 2-8).

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Part 6-3A Transfer of business from a State public sector employer

Division 4 Interaction between copied State instruments and the NES, modern awards

and enterprise agreements

Section 768AU

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FWC coverage orders

(3) This section has effect subject to any FWC order about coverage

under subsection 768BA(1).

Subdivision D—Interaction with enterprise agreements

768AU Enterprise agreements and copied State instruments

(1) While a copied State instrument for a transferring employee covers

the employee and the new employer in relation to the transferring

work, an enterprise agreement that covers the new employer at the

employee’s re-employment time does not cover the employee in

relation to that work.

Note 1: The fact that a copied State collective employment agreement for a

transferring employee covers the employee does not prevent the

employee and the new employer from replacing that agreement at any

time with an enterprise agreement, regardless of whether the

employee’s copied State collective employment agreement has passed

its nominal expiry date.

Note 2: Industrial action must not be taken before the nominal expiry date of a

copied State collective employment agreement for a transferring

employee (see item 4 of Schedule 13 to the Transitional Act as that

item applies in a modified way because of section 768BY).

(2) However, if after the re-employment time, another enterprise

agreement starts to cover the employee and the new employer in

relation to the transferring work, then the copied State instrument

for the employee ceases to cover the employee and the new

employer and can never cover them again.

(3) This section has effect subject to any FWC order about coverage

under subsection 768BA(1).

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Section 768AV

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Division 5—Variation and termination of copied State

instruments

Subdivision A—Guide to this Division

768AV What this Division is about

This Division sets out when a copied State instrument may be

varied or terminated.

Subdivision B—Variation of copied State instruments

768AW Variation in limited circumstances

A copied State instrument for a transferring employee cannot be

varied except under:

(a) section 768AX; or

(b) item 20 of Schedule 3A to the Transitional Act (which deals

with variation of discriminatory instruments) as that item has

effect because of section 768BY; or

with variation of instruments in annual wage reviews) as that

item has effect because of section 768BY; or

(d) Division 4 of Part 3 of Schedule 11 to the Transitional Act

(which deals with transfer of business) as that Division has

effect because of section 768BY.

768AX Variation of copied State instruments

Application of this section

(1A) This section applies if there is, or is likely to be, a transfer of

business.

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Section 768AX

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Variations that may be made

(1) The FWC may vary a copied State instrument for a transferring

employee:

(a) to remove terms that the FWC is satisfied are not, or will not

be, capable of meaningful operation or to vary those terms so

that they are capable of meaningful operation; or

(b) to remove an ambiguity or uncertainty in the instrument; or

aligned to the working arrangements of the new employer’s

enterprise; or

(d) to resolve an uncertainty or difficulty relating to the

interaction between the instrument and the National

Employment Standards, or to make the instrument operate

effectively with the National Employment Standards; or

(e) if the instrument is a copied State employment agreement—

to resolve an uncertainty or difficulty relating to the

interaction between the instrument and a modern award; or

(f) to remove terms that are inconsistent with Part 3-1 (which

deals with general protections), or to vary terms to make

them consistent with that Part.

Note: Paragraph (d) does not affect a term of the copied State instrument

that is permitted by a provision of the National Employment Standards

as the provision has effect under section 768AR.

Who may apply for a variation

(2) The FWC may make a variation under subsection (1):

(a) on its own initiative; or

(b) on application by a person who is, or is likely to be, covered

by the copied State instrument; or

represent the industrial interests of an employee who is, or is

likely to be, covered by the copied State instrument.

Note: The copied State instrument for the transferring employee may also

cover another transferring employee or a non-transferring employee if

a consolidation order is made.

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Matters that the FWC must take into account

(3) In deciding whether to make a variation under subsection (1), the

FWC must take into account the following:

(a) the views of:

(i) the employees who would be affected by the copied

State instrument as varied; and

(ii) the new employer or a person who is likely to be the

new employer;

(b) whether any employees would be disadvantaged by the

copied State instrument as varied in relation to their terms

and conditions of employment;

agreement—the nominal expiry date of the agreement;

(d) whether the copied State instrument, without the variation,

would have a negative impact on the productivity of the new

employer’s workplace;

(e) whether the new employer would incur significant economic

disadvantage as a result of the copied State instrument,

without the variation;

(f) the degree of business synergy between the copied State

instrument, without the variation, and any workplace

instrument that already covers the new employer;

(g) the public interest.

Variation relating to the NES

(4) If there is a dispute about the making of a variation for the

purposes of paragraph (1)(d), the FWC may compare the

entitlements that are in dispute:

(a) on a “line-by-line” basis, comparing individual terms; or

(b) on a “like-by-like” basis, comparing entitlements according

to particular subject areas; or

sees fit.

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Chapter 6 Miscellaneous

Part 6-3A Transfer of business from a State public sector employer

Division 5 Variation and termination of copied State instruments

Section 768AY

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(5) The regulations may make provisions that apply to determining, for

the purposes of paragraph (1)(d), whether terms of a copied State

instrument for a transferring employee are, or are not, detrimental

in any respect when compared to entitlements under the National

Employment Standards.

When variation may be made

(6) A variation may be made under subsection (1) in relation to a

copied State instrument of a transferring employee:

(a) before the copied State instrument comes into operation, if it

is likely that the instrument will come into operation; and

(b) before the employee is a transferring employee, if it is likely

that the employee will become a transferring employee.

Restriction on when variation may come into operation

(7) A variation under subsection (1) operates from the day specified in

the variation, which may be a day before the variation is made.

Subdivision C—Termination of copied State instruments

768AY Termination in limited circumstances

(1) A copied State instrument for a transferring employee cannot be

terminated except under items 22, 23, 24, 25 and 26 of

Schedule 3A to the Transitional Act (which deal with termination

of State employment agreements) as those items have effect

because of section 768BY.

(2) A copied State instrument for a transferring employee that has been

terminated ceases to operate and can never operate again.

Note: A copied State instrument that does not operate cannot cover a person

(see subsection 768AN(6)).

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Section 768AZ

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Division 6—FWC orders about coverage of copied State

instruments and other instruments

Subdivision A—Guide to this Division

768AZ What this Division is about

This Division allows the FWC to make an order that a copied State

instrument for a transferring employee does not, or will not, cover

the employee and that an enterprise agreement or named employer

award that covers the new employer covers, or will cover, the

employee instead.

It also allows the FWC to make an order that a copied State

instrument for a transferring employee does not, or will not, cover

an employee organisation but instead covers, or will cover, another

employee organisation.

768AZA Orders in relation to a transfer of business

(1) This Division provides for orders to be made if there is, or is likely

to be, a transfer of business.

(2) An order may be made under this Division in relation to a copied

State instrument of a transferring employee:

(a) before the copied State instrument comes into operation, if it

is likely that the instrument will come into operation; and

(b) before the employee is a transferring employee, if it is likely

that the employee will become a transferring employee.

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Part 6-3A Transfer of business from a State public sector employer

Division 6 FWC orders about coverage of copied State instruments and other

instruments

Section 768BA

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Subdivision B—Coverage orders

768BA FWC orders about coverage for transferring employees

Orders that the FWC may make

(1) The FWC may make the following orders:

(a) an order that a copied State instrument for a transferring

employee that would, or would be likely to, cover the

transferring employee and the new employer because of

subsection 768AN(1) does not, or will not, cover the

transferring employee and the new employer;

(b) an order that an enterprise agreement or named employer

award that covers the new employer at the transferring

employee’s re-employment time covers, or will cover, the

transferring employee.

Who may apply for an order

(2) The FWC may make an order under subsection (1):

(a) on its own initiative; or

(b) on application by any of the following:

(i) a transferring employee or an employee who is likely to

be a transferring employee;

(ii) the new employer or a person who is likely to be the

new employer;

(iii) an employee organisation that is entitled to represent the

industrial interests of an employee referred to in

subparagraph (i);

(iv) if the application relates to an enterprise agreement—an

employee organisation that is, or is likely to be, covered

by the agreement.

Matters that the FWC must take into account

(3) In deciding whether to make an order under subsection (1), the

FWC must take into account the following:

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(a) the views of:

(i) the employees who would be affected by the order; and

(ii) the new employer or a person who is likely to be the

new employer;

(b) whether any employees would be disadvantaged by the order

in relation to their terms and conditions of employment;

or an enterprise agreement—the nominal expiry date of the

agreement;

(d) whether the copied State instrument would have a negative

impact on the productivity of the new employer’s workplace;

(e) whether the new employer would incur significant economic

disadvantage as a result of the copied State instrument

covering the new employer;

(f) the degree of business synergy between the copied State

instrument and any workplace instrument that already covers

the new employer;

(g) the public interest.

Restriction on when order may come into operation

(4) An order under subsection (1) must not come into operation in

relation to a particular transferring employee before the later of the

following:

(a) the transferring employee’s re-employment time;

(b) the day on which the order is made.

768BB FWC orders about coverage for employee organisations

(1) The FWC may make an order that:

(a) a copied State instrument for a transferring employee that

would, or would be likely to, cover an employee organisation

(the first employee organisation) in relation to the

transferring employee because of subsection 768AN(2) does

not, or will not, cover the organisation; and

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Division 6 FWC orders about coverage of copied State instruments and other

instruments

Section 768BB

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(b) another employee organisation (the second employee

organisation) is, or will be, covered by the copied State

instrument in relation to the employee.

(2) When making an order under subsection (1), the FWC must

consider whether the second employee organisation is a federal

counterpart (within the meaning of section 9A of the Registered

Organisations Act) of the first employee organisation.

(3) The regulations may:

(a) prescribe circumstances in which the FWC may make an

order for the purposes of subsection (1); and

(b) otherwise make provision in relation to the making of the

order.

(4) An order under subsection (1) must be made in accordance with

any regulations that are made for the purposes of subsection (3).

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Section 768BC

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Division 7—FWC orders about consolidating copied State

instruments etc.

Subdivision A—Guide to this Division

768BC What this Division is about

This Division allows the FWC to consolidate the various

workplace instruments that may apply in the new employer’s

workplace. It achieves this by allowing the FWC to make an order

that a copied State instrument for a particular transferring

employee is also a copied State instrument for one or more other

transferring employees or non-transferring employees.

Subdivision B deals with consolidating copied State instruments

for transferring employees. Under that Subdivision, the FWC may

make an order that the copied State instrument for a transferring

employee (“employee A”) is also the copied State instrument for

one or more other transferring employees. If the FWC makes a

consolidation order for those other transferring employees, then

this Act is modified so that the copied State instrument for

employee A is also the copied State instrument for those other

transferring employees (see section 768BF).

Subdivision C deals with non-transferring employees. Under that

Subdivision, the FWC may make an order that the copied State

instrument for employee A (who is a transferring employee) is also

the copied State instrument for one or more non-transferring

employees. If the FWC makes a consolidation order for those

non-transferring employees, then this Act is modified so that the

copied State instrument for employee A is also the copied State

instrument for those non-transferring employees (see

section 768BI).

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Part 6-3A Transfer of business from a State public sector employer

Division 7 FWC orders about consolidating copied State instruments etc.

Section 768BCA

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768BCA Orders in relation to a transfer of business

(1) This Division provides for orders to be made if there is, or is likely

to be, a transfer of business.

(2) An order may be made under this Division in relation to a copied

State instrument of a transferring employee:

(a) before the copied State instrument comes into operation, if it

is likely that the instrument will come into operation; and

(b) before the employee is a transferring employee, if it is likely

that the employee will become a transferring employee.

Subdivision B—Consolidation orders in relation to transferring

employees

768BD Consolidation orders in relation to transferring employees

Consolidation order

(1) The FWC may make an order (a consolidation order) that a copied

State instrument for a transferring employee (employee A) is also a

copied State instrument for one or more other transferring

employees.

Who may apply for order

(2) The FWC may make a consolidation order under subsection (1):

(a) on its own initiative; or

(b) on application by any of the following:

(i) a transferring employee, or an employee who is likely to

be a transferring employee;

(ii) the new employer or a person who is likely to be the

new employer;

(iii) an employee organisation that is entitled to represent the

industrial interests of an employee referred to in

subparagraph (i).

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Section 768BE

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Matters that the FWC must take into account

(3) In deciding whether to make a consolidation order under

subsection (1), the FWC must take into account the following:

(a) the views of:

(i) the employees who would be affected by the order; and

(ii) the new employer or a person who is likely to be the

new employer;

(b) whether any employees would be disadvantaged by the order

in relation to their terms and conditions of employment;

agreement—the nominal expiry date of the agreement;

(d) whether the copied State instrument for employee A would

have a negative impact on the productivity of the new

employer’s workplace;

(e) whether the new employer would incur significant economic

disadvantage if the order were not made;

(f) the degree of business synergy between the copied State

instrument for employee A and any workplace instrument

that already covers the new employer;

(g) the public interest.

Restriction on when order may come into operation

(4) A consolidation order under subsection (1) must not come into

operation in relation to a particular transferring employee (other

than employee A) before the later of the following:

(a) the transferring employee’s re-employment time;

(b) the day on which the order is made.

768BE Consolidation order to deal with application and coverage

(1) A consolidation order under subsection 768BD(1) must specify

when the copied State instrument for employee A applies to, and

covers:

(a) another transferring employee; and

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Section 768BF

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(b) the new employer in relation to the other transferring

employee; and

employee;

which must not be before the other transferring employee’s

re-employment time.

(2) Once the consolidation order comes into operation in relation to the

other transferring employee, the copied State instrument for the

other transferring employee ceases to operate.

768BF Effect of this Act after a consolidation order is made

If the FWC makes a consolidation order under

subsection 768BD(1), then this Act has effect in relation to a

particular transferring employee (other than employee A), from the

time the order comes into operation in relation to that employee, as

if a reference in relation to that employee to the copied State

instrument for that employee were a reference to the copied State

instrument for employee A.

Subdivision C—Consolidation orders in relation to

non-transferring employees

768BG Consolidation orders in relation to non-transferring

employees

Consolidation order

(1) The FWC may make an order (a consolidation order) that a copied

State instrument for a transferring employee (employee A) also is,

or will be, a copied State instrument for one or more

non-transferring employees who perform, or are likely to perform,

the transferring work.

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Non-transferring employees

(2) A non-transferring employee of a new employer is a national

system employee of the new employer who is not a transferring

employee.

Who may apply for order

(3) The FWC may make a consolidation order under subsection (1):

(a) on its own initiative; or

(b) on application by any of the following:

(i) a non-transferring employee who performs, or is likely

to perform, the transferring work;

(ii) the new employer or a person who is likely to be the

new employer;

(iii) an employee organisation that is entitled to represent the

industrial interests of an employee referred to in

subparagraph (i);

(iv) if the application relates to an enterprise agreement—an

employee organisation that is, or is likely to be, covered

by the agreement.

Matters that the FWC must take into account

(4) In deciding whether to make a consolidation order under

subsection (1), the FWC must take into account the following:

(a) the views of:

(i) the employees who would be affected by the order; and

(ii) the new employer or a person who is likely to be the

new employer;

(b) whether any employees would be disadvantaged by the order

in relation to their terms and conditions of employment;

or an enterprise agreement—the nominal expiry date of the

agreement;

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Section 768BH

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(d) whether the copied State instrument for employee A would

have a negative impact on the productivity of the new

employer’s workplace;

(e) whether the new employer would incur significant economic

disadvantage if the order were not made;

(f) the degree of business synergy between the copied State

instrument for employee A and any workplace instrument

that already covers the new employer;

(g) the public interest.

Restriction on when order may come into operation

(5) A consolidation order under subsection (1) must not come into

operation in relation to a particular non-transferring employee

before the later of the following:

(a) the time when the non-transferring employee starts to

perform the transferring work for the new employer;

(b) the day on which the order is made.

768BH Consolidation order to deal with application and coverage

(1) A consolidation order under subsection 768BG(1) must specify

when the copied State instrument for employee A applies to, and

covers:

(a) a non-transferring employee; and

(b) the new employer in relation to the non-transferring

employee; and

employee;

in relation to the transferring work.

(2) If an enterprise agreement covers the non-transferring employee

and the new employer, the order must also specify that the

agreement does not cover:

(a) the non-transferring employee; or

(b) the new employer in relation to the non-transferring

employee; or

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Section 768BI

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employee;

in relation to that work.

768BI Effect of this Act after a consolidation order is made

If the FWC makes a consolidation order under

subsection 768BG(1), then this Act has effect in relation to a

particular non-transferring employee, from the time the order

comes into operation in relation to that employee, as if:

(a) the copied State instrument for employee A were also the

copied State instrument for that employee; and

(b) that employee were a transferring employee in relation to that

copied State instrument.

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Division 8 Special rules for copied State instruments

Section 768BJ

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Division 8—Special rules for copied State instruments

Subdivision A—Guide to this Division

768BJ What this Division is about

This Division has a collection of special rules for copied State

instruments for transferring employees.

Subdivision B deals with the case where a copied State instrument

for a transferring employee does not have a term about settling

disputes about matters arising under the instrument. In that case,

the model term prescribed by the regulations is taken to be a term

of the instrument.

Subdivision C is about working out service and entitlements of a

transferring employee. This is particularly relevant for working out

the employee’s entitlements under the National Employment

Standards and the copied State instrument for the employee.

Subdivision D deals with the case where a copied State award for a

transferring employee ceases to operate and the employee suffers a

reduction in take home pay. That Subdivision allows the FWC to

make a take-home pay order to compensate the employee.

Subdivision E modifies particular provisions of this Act in relation

to copied State instruments.

Subdivision F modifies particular provisions of the Transitional

Act in relation to copied State instruments.

Subdivision G modifies particular provisions of the Registered

Organisations Act in relation to copied State instruments.

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Section 768BK

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Subdivision B—Terms about disputes

768BK Where no term dealing with disputes

(1) If a copied State instrument for a transferring employee does not

include a term that provides a procedure for settling disputes about

matters arising under the instrument, then the instrument is taken to

include the model term that is prescribed by the regulations for

settling disputes about matters arising under a copied State

instrument for a transferring employee.

Note: This section deals with the situation where the original State award or

original State agreement for the copied State instrument did not

include a term about settling disputes about matters arising under the

award or agreement.

(2) For the purposes of subsection (1), the model term prescribed for a

copied State award for a transferring employee may be the same or

different from the model term prescribed for a copied State

employment agreement for a transferring employee.

Subdivision C—Service and entitlements of a transferring

employee

768BL Service for the purposes of this Act

General rule

(1) Service of a transferring employee with the old State employer that

occurred before the employee’s termination time also counts as

service of the employee with the new employer for the purposes of

this Act (including for the purposes of determining the employee’s

entitlements under the National Employment Standards) after the

employee’s re-employment time.

Gap between termination time and re-employment time

(2) If there is a period of time between the employee’s termination

time with the old State employer and the employee’s

re-employment time with the new employer, then that period:

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(a) does not break the employee’s continuous service with the

new employer (taking account of the effect of

subsection (1)); but

(b) does not count towards the length of the employee’s

continuous service with the new employer.

768BM NES—working out non-accruing entitlements

Application of this section

(1) This section applies for the purposes of determining the

entitlements of a transferring employee under the National

Employment Standards, other than entitlements to:

(a) paid annual leave; or

(b) paid personal/carer’s leave.

Note: For entitlements to paid annual leave and paid personal/carer’s leave

under the National Employment Standards, see section 768BN.

No double entitlement

(2) If, before or after the employee’s termination time, the employee

has the benefit of an entitlement, the amount of which is calculated

by reference to a period of service, then subsection 768BL(1) does

not result in that period of service with the old State employer

being counted again when calculating the employee’s entitlements

of that kind under the National Employment Standards.

(3) To avoid doubt, subsection (2) does not require the employee to

serve any initial qualifying period of service for long service leave

again.

Limitation on application of general rule to redundancy pay

(4) If the terms and conditions of employment that applied to the

employee’s employment by the old State employer immediately

before the employee’s termination time did not provide for an

entitlement to redundancy pay, then subsection 768BL(1) does not

apply in relation to the employee and the new employer for the

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Section 768BN

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purposes of Subdivision B of Division 11 of Part 2-2 (which deals

with redundancy pay).

(5) If a State industrial body could have made an order giving the

employee an entitlement to redundancy pay (however described),

had the employee’s employment been terminated for redundancy

(however described) before the employee’s termination time, then:

(a) the terms and conditions of the employee’s employment

referred to in subsection (4) are taken to have provided for an

entitlement to redundancy pay; and

(b) paragraph 121(1)(b) does not apply in relation to the

employee during the 12 months starting at the employee’s

re-employment time.

Note: Because of paragraph (b), the employee may therefore be entitled to

redundancy pay under section 119 if the employee’s employment is

terminated by the new employer during the 12-month period starting

at the employee’s termination time, even if the new employer is a

small business employer.

768BN NES—working out accruing entitlements

Application of this section

(1) This section applies for the purposes of determining the

entitlements of a transferring employee under the National

Employment Standards to:

(a) paid annual leave; or

(b) paid personal/carer’s leave;

if the employee had, immediately before the employee’s

termination time, an accrued entitlement to an amount of:

(d) paid personal or carer’s leave (however described).

Note: For other entitlements under the National Employment Standards, see

section 768BM.

Leave accrued for purposes of the NES

(2) The provisions of the National Employment Standards relating to:

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(a) taking that kind of leave (including rates of pay while taking

leave); or

(b) cashing-out that kind of leave;

apply as a minimum standard to the accrued leave, after the

employee’s re-employment time, as if it had accrued under the

National Employment Standards.

No double entitlement

(3) However, if before or after the employee’s termination time, the

old State employer paid the employee an amount in relation to

some or all of the accrued leave, then for the purposes of

subsection (2), the amount of accrued leave is reduced accordingly.

Working out whether leave accrued

(4) For the purposes of subsection (1), it does not matter whether the

entitlement to leave accrued under:

(a) the original State award or original State agreement for the

copied State instrument for the employee; or

(b) a State industrial law of the State.

768BO Copied State instrument—service

General rule

(1) Service of a transferring employee with the old State employer

that:

(a) occurred before the employee’s termination time; and

(b) counted for the purposes of the application to the employee

of the original State award or original State agreement for the

copied State instrument for the employee;

also counts as service of the employee with the new employer for

the purposes of the application to the employee of the copied State

instrument after the employee’s re-employment time.

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Section 768BP

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Gap between termination time and re-employment time

(2) If there is a period of time between the employee’s termination

time with the old State employer and the employee’s

re-employment time with the new employer, then that period:

(a) does not break the employee’s continuous service with the

new employer (taking account of the effect of

subsection (1)); but

(b) does not count towards the length of the employee’s

continuous service with the new employer.

Effect of consolidation order

(3) If the FWC makes a consolidation order under

subsection 768BD(1), then, despite section 768BF, the original

State award or original State agreement referred to in

paragraph (1)(b) of this section is the original State award or

original State agreement for the copied State instrument for the

employee before the consolidation order was made.

768BP Copied State instrument—working out non-accruing

entitlements

Application of this section

(1) This section applies for the purposes of determining the

entitlements of a transferring employee under a copied State

instrument for the employee, other than entitlements to:

(a) annual leave (however described); or

(b) personal leave or carer’s leave (however described).

Note: For entitlements to annual leave or personal leave or carer’s leave

under the copied State instrument, see section 768BQ.

No double entitlement

(2) If, before or after the employee’s termination time, the employee

has the benefit of an entitlement, the amount of which is calculated

by reference to a period of service, then subsection 768BO(1) does

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not result in that period of service with the old State employer

being counted again when calculating the employee’s entitlements

of that kind under the copied State instrument for the employee.

(3) To avoid doubt, subsection (2) does not require the employee to

serve any initial qualifying period of service for long service leave

again.

768BQ Copied State instrument—working out accruing entitlements

Application of this section

(1) This section applies for the purposes of determining the

entitlements of a transferring employee under the copied State

instrument for the employee to:

(a) annual leave (however described); or

(b) personal leave or carer’s leave (however described).

Note: For other entitlements under the copied State instrument, see

section 768BP.

Leave accrued for purposes of the instrument

(2) If the employee had, immediately before the employee’s

termination time, an accrued entitlement to an amount of:

(a) annual leave (however described); or

(b) personal leave or carer’s leave (however described);

then the accrued leave is taken to have accrued under the copied

State instrument for the employee.

No double entitlement

(3) However, if before or after the employee’s termination time, the

old State employer paid the employee an amount in relation to

some or all of the accrued leave, then for the purposes of

subsection (2), the amount of accrued leave is reduced accordingly.

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Section 768BR

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Working out whether leave accrued

(4) For the purposes of subsection (2), it does not matter whether the

leave accrued under:

(a) the original State award or original State agreement for the

copied State instrument; or

(b) a State industrial law of the State.

Subdivision D—Cessation of copied State awards: avoiding

reductions in take-home pay

768BR Cessation not intended to result in reduction in take-home

pay

(1) If a copied State award for a transferring employee ceases to

operate because of subsection 768AO(2), the cessation is not

intended to result in a reduction in the take-home pay of the

employee.

(2) A transferring employee’s take-home pay is the pay the employee

actually receives:

(a) including wages and incentive-based payments, and

additional amounts such as allowances and overtime; but

(b) disregarding the effect of any deductions that are made as

permitted by section 324.

Note: Deductions permitted by section 324 may (for example) include

deductions under salary sacrificing arrangements.

(3) A transferring employee suffers a reduction in take-home pay if,

and only if:

(a) when the copied State award for the employee ceases to

operate because of subsection 768AO(2), the employee

becomes a person to whom a modern award applies; and

(b) the employee is employed in the same position as (or a

position that is comparable to) the position he or she was

employed in immediately before the cessation of the copied

State award; and

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particular hours or for a particular quantity of work after the

cessation of the copied State award is less than what would

have been the employee’s take-home pay for those hours or

that quantity of work immediately before the cessation; and

(d) that reduction in the employee’s take-home pay is

attributable to the cessation of the copied State award.

768BS Orders remedying reductions in take-home pay

(1) If the FWC is satisfied that a transferring employee to whom a

modern award applies has suffered a reduction in take-home pay,

the FWC may make any order (a take-home pay order) requiring,

or relating to, the payment of an amount or amounts to the

employee that the FWC considers appropriate to remedy the

situation.

(2) The FWC may make a take-home pay order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a transferring employee who has suffered a reduction in

take-home pay;

(ii) an organisation that is entitled to represent the industrial

interests of the employee.

(3) The FWC must not make a take-home pay order if:

(a) the FWC considers that the reduction in take-home pay is

minor or insignificant; or

(b) the FWC is satisfied that the employee has been adequately

compensated in other ways for the reduction.

(4) The FWC must ensure that a take-home pay order is expressed so

that:

(a) it does not apply to a transferring employee unless the

employee has actually suffered a reduction in take-home pay;

and

(b) if the take-home pay payable to the employee under the

modern award increases after the order is made, there is a

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Section 768BT

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corresponding reduction in any amount payable to the

employee under the order.

(5) If the FWC is satisfied that an application for a take-home pay

order has already been made in relation to a transferring employee,

the FWC may dismiss any later application that is made under

these provisions in relation to the same employee.

768BT Contravening a take-home pay order

A person must not contravene a term of a take-home pay order that

applies to the person.

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

768BU How long a take-home pay order continues to apply

A take-home pay order made in relation to a transferring employee

to whom a particular modern award applies continues to apply in

relation to the employee (subject to the terms of the order) for so

long as the modern award continues to cover the employee.

Note: It does not matter if the modern award stops applying to the employee

because an enterprise agreement starts to apply.

768BV Interaction of take-home pay orders with modern awards

and enterprise agreements

A term of a modern award or an enterprise agreement has no effect

in relation to a transferring employee to the extent that it is less

beneficial to the employee than a term of a take-home pay order

that applies to the employee.

768BW Application of this Act to take-home pay orders

This Act applies as if the following provisions included a reference

to a take-home pay order:

(a) subsection 675(2) (which is about FWC orders);

(b) subsection 706(2) (which is about powers of inspectors).

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Section 768BX

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Subdivision E—Modification of this Act

768BX Modification of this Act for copied State instruments

This Act has effect in relation to a transferring employee on and

after the employee’s re-employment time as if a reference in a

provision referred to in column 1 to a term referred to in column 2

included a reference to the term referred to in column 3.

Modification of this Act for copied State instruments

Item Column 1

Provision of this Act

Column 2

Current term

Column 3

New term

1 Division 2 of Part 2-9

(payment of wages)

modern award copied State award for the

transferring employee

2 Division 2 of Part 2-9

(payment of wages)

enterprise

agreement

copied State employment

agreement for the transferring

employee

3 Division 3 of Part 2-9

(guarantee of annual

earnings)

modern award copied State award for the

transferring employee

4 Division 3 of Part 2-9

(guarantee of annual

earnings)

enterprise

agreement

copied State employment

agreement for the transferring

employee

5 Part 3-2 (unfair

dismissal)

modern award copied State award for the

transferring employee

6 Part 3-2 (unfair

dismissal)

enterprise

agreement

copied State employment

agreement for the transferring

employee

7 Division 9 of Part 3-3

(payments relating to

periods of industrial

action)

modern award copied State award for the

transferring employee

8 Division 9 of Part 3-3

(payments relating to

periods of industrial

action)

enterprise

agreement

copied State employment

agreement for the transferring

employee

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Section 768BY

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Modification of this Act for copied State instruments

Item Column 1

Provision of this Act

Column 2

Current term

Column 3

New term

9 subsection 481(1)

(right of entry)

fair work

instrument

copied State instrument for the

transferring employee

10 subsection 524(2)

(stand down)

enterprise

agreement

copied State instrument for the

transferring employee

11 Part 4-1 (compliance) fair work

instrument

copied State instrument for the

transferring employee

12 section 657 (General

Manager)

fair work

instrument

copied State instrument for the

transferring employee

13 Part 5-2 (Fair Work

Ombudsman)

fair work

instrument

copied State instrument for the

transferring employee

14 Part 5-2 (Fair Work

Ombudsman)

modern award copied State award for the

transferring employee

15 Part 5-2 (Fair Work

Ombudsman)

enterprise

agreement

copied State employment

agreement for the transferring

employee

16 Part 6-2 (dealing with

disputes)

modern award copied State award for the

transferring employee

17 Part 6-2 (dealing with

disputes)

enterprise

agreement

copied State employment

agreement for the transferring

employee

18 Part 6-2 (dealing with

disputes)

fair work

instrument

copied State instrument for the

transferring employee

Subdivision F—Modification of the Transitional Act

768BY Modification of the Transitional Act for copied State

instruments

(1) Each relevant transitional provision (see subsection (2)) has effect

in relation to a transferring employee as if a reference to a term

referred to in column 1 were a reference to the term referred to in

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column 2. The provision has effect from the time specified in

column 3 of the table in subsection (2).

Modification of the Transitional Act and regulations for copied State

instruments

Item Column 1

Current term

Column 2

New term

1 Division 2B State instrument copied State instrument for the transferring

employee

2 Division 2B State award copied State award for the transferring

employee

3 Division 2B State award

applying (within the meaning

of the Transitional Act) to a

person

copied State award for the transferring

employee applying (within the meaning of

this Act) to a person

4 Division 2B State award

covering (within the meaning

of the Transitional Act) a

person

copied State award for the transferring

employee covering (within the meaning of

this Act) a person

5 Division 2B State employment

agreement

copied State employment agreement for

the transferring employee

6 collective Division 2B State

employment agreement

copied State collective employment

agreement for the transferring employee

7 individual Division 2B State

employment agreement

copied State individual employment

agreement for the transferring employee

8 Division 2B State employment

agreement applying (within

the meaning of the

Transitional Act) to a person

copied State employment agreement for

the transferring employee applying (within

the meaning of this Act) to a person

9 Division 2B State employment

agreement covering (within

the meaning of the

Transitional Act) a person

copied State employment agreement for

the transferring employee covering (within

the meaning of this Act) a person

10 nominal expiry date of a

Division 2B State employment

agreement

nominal expiry date of a copied State

employment agreement for the transferring

employee

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Section 768BY

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Modification of the Transitional Act and regulations for copied State

instruments

Item Column 1

Current term

Column 2

New term

11 Division 2B referral

commencement

transferring employee’s termination time

12 Division 2B State reference

employee

transferring employee

13 Division 2B referring State the State of the old State employer

14 source State the State of the old State employer

(2) For the purposes of subsection (1), the relevant transitional

provisions are:

(a) the provisions of the Transitional Act that are listed in

column 1; and

(b) the regulations made for the purposes of those provisions.

Modification of the Transitional Act and regulations for copied State

instruments

Item Column 1

Relevant transitional

provision

Column 2

Which is about

Column 3

Relevant time

1 item 10 of Schedule 3A instrument content rules the transferring

employee’s

termination time

2 item 11 of Schedule 3A instrument interaction

rules

the transferring

employee’s

termination time

3 item 13 (other than note

1 and note 2) of

Schedule 3A

references to State

industrial bodies

the transferring

employee’s

termination time

4 item 17 of Schedule 3A no loss of accrued rights

etc. when instrument

terminates

the transferring

employee’s

re-employment time

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Section 768BY

242 Fair Work Act 2009

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Modification of the Transitional Act and regulations for copied State

instruments

Item Column 1

Relevant transitional

provision

Column 2

Which is about

Column 3

Relevant time

5 item 20 of Schedule 3A variation of

discriminatory

instruments

the transferring

employee’s

termination time

6 item 22 of Schedule 3A collective agreements–

termination by agreement

the transferring

employee’s

re-employment time

7 item 23 of Schedule 3A collective agreements–

termination by the FWC

the transferring

employee’s

re-employment time

8 item 24 of Schedule 3A individual agreements–

termination by agreement

the transferring

employee’s

re-employment time

9 item 25 of Schedule 3A individual agreements–

termination conditional

on enterprise agreement

the transferring

employee’s

re-employment time

10 item 26 of Schedule 3A individual agreements–

unilateral termination by

the FWC

the transferring

employee’s

re-employment time

11 item 47 of Schedule 3A employee not

award/agreement free

the transferring

employee’s

re-employment time

12 item 48 of Schedule 3A calculating an

employee’s ordinary

hours of work

the transferring

employee’s

re-employment time

13 items 19, 20 and 21 of

Schedule 4

interaction with the NES the transferring

employee’s

re-employment time

14 Part 5 of Schedule 9 base rates of pay the transferring

employee’s

re-employment time

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Section 768BZ

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Modification of the Transitional Act and regulations for copied State

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Item Column 1

Relevant transitional

provision

Column 2

Which is about

Column 3

Relevant time

15 Division 4 of Part 3 of

Schedule 11

transfer of business the transferring

employee’s

re-employment time

16 item 4 of Schedule 12 general protections the transferring

employee’s

termination time

17 items 2, 3, 4 and 17 of

Schedule 13

industrial action the transferring

employee’s

re-employment time

18 item 4B of Schedule 16

(as that item relates to

subitems 25(6) and (7) of

Schedule 3A) and

item 16 of Schedule 16

(as that item relates to

item 4B of Schedule 16)

compliance relating to

conditional terminations

of individual

employment agreements

the transferring

employee’s

re-employment time

19 items 12 and 13 of

Schedule 16 and item 16

of Schedule 16 (as that

item relates to those

items)

compliance relating to

non-disclosure

obligations

the transferring

employee’s

re-employment time

Subdivision G—Modification of the Registered Organisations

Act

768BZ Modification of the Registered Organisations Act for copied

State instruments

(1) The Registered Organisations Act has effect in relation to a

transferring employee on and after the employee’s termination time

as if:

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(a) a reference in that Act to a modern award included a

reference to a copied State award for the employee; and

(b) a reference in that Act to an enterprise agreement included a

reference to a copied State employment agreement for the

employee.

(2) The regulations may deal with other matters relating to how the

Registered Organisations Act applies in relation to a transferring

employee.

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Section 768CA

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Division 9—Regulations

768CA Regulations

(1) The regulations may:

(a) make provision in relation to the transition from State awards

and State employment agreements to copied State

instruments; and

(b) make provision in relation to the transition from copied State

instruments to modern awards and enterprise agreements;

and

instruments for transferring employees; and

(d) provide that provisions of this Act or the Transitional Act

apply in relation to transferring employees or new employers

with specified modifications; and

(e) otherwise make provision relating to how provisions of this

Act or the Transitional Act apply in relation to transferring

employees or new employers; and

(f) make provision in relation to non-transferring employees of

the new employer; and

(g) provide that provisions of this Act or the Transitional Act

apply in relation to the non-transferring employees with

specified modifications; and

(h) make other provision in relation to the matters dealt with in

this Part.

(2) Without limiting subsection (1), the regulations may:

(a) modify provisions of this Act or the Transitional Act, or

provide for the application (with or without modifications) of

provisions of this Act or the Transitional Act to matters to

which they would otherwise not apply; and

(b) provide differently for the purposes of different provisions,

or in relation to different situations.

(3) However, this section does not allow regulations to:

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(a) modify a provision so as to impose an obligation which, if

contravened, constitutes an offence; or

(b) include new provisions that create offences.

(4) The provisions of this Part (including this section) that provide for

regulations to deal with matters do not limit each other.

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Introduction Division 1

Section 769

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Part 6-4—Additional provisions relating to

termination of employment

Division 1—Introduction

769 Guide to this Part

This Part contains provisions to give effect, or further effect, to

certain international agreements relating to discrimination and

termination of employment.

Division 2 makes it unlawful for an employer to terminate an

employee’s employment for certain reasons. Division 2 also deals

with compliance. In most cases, a dispute that involves the

termination of an employee’s employment will be dealt with by a

court only if the dispute has not been resolved by the FWC.

Division 3 sets out notification and consultation requirements in

relation to certain terminations of employment.

770 Meanings of employee and employer

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

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Section 771

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Division 2—Termination of employment

771 Object of this Division

The object of this Division is to give effect, or further effect, to:

(a) the ILO Convention (No. 111) concerning Discrimination in

respect of Employment and Occupation, done at Geneva on

25 June 1958 ([1974] ATS 12); and

(b) the ILO Convention (No. 156) concerning Equal

Opportunities and Equal Treatment for Men and Women

Workers: Workers with Family Responsibilities, done at

Geneva on 23 June 1981 ([1991] ATS 7); and

Employment at the Initiative of the Employer, done at

Geneva on 22 June 1982 ([1994] ATS 4); and

(d) the Termination of Employment Recommendation, 1982

(Recommendation No. R166) which the General Conference

of the ILO adopted on 22 June 1982.

Note 1: In 2009, the text of a Convention in the Australian Treaty Series was

accessible through the Australian Treaties Library on the AustLII

website (www.austlii.edu.au).

Note 2: In 2009, the text of a Recommendation adopted by the General

Conference of the ILO was accessible through the ILO website

(www.ilo.org).

772 Employment not to be terminated on certain grounds

(1) An employer must not terminate an employee’s employment for

one or more of the following reasons, or for reasons including one

or more of the following reasons:

(a) temporary absence from work because of illness or injury of

a kind prescribed by the regulations;

(b) trade union membership or participation in trade union

activities outside working hours or, with the employer’s

consent, during working hours;

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(d) seeking office as, or acting or having acted in the capacity of,

a representative of employees;

(e) the filing of a complaint, or the participation in proceedings,

against an employer involving alleged violation of laws or

regulations or recourse to competent administrative

authorities;

(f) race, colour, sex, sexual orientation, age, physical or mental

disability, marital status, family or carer’s responsibilities,

pregnancy, religion, political opinion, national extraction or

social origin;

(g) absence from work during maternity leave or other parental

leave;

(h) temporary absence from work for the purpose of engaging in

a voluntary emergency management activity, where the

absence is reasonable having regard to all the circumstances.

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

(2) However, subsection (1) does not prevent a matter referred to in

paragraph (1)(f) from being a reason for terminating a person’s

employment if:

(a) the reason is based on the inherent requirements of the

particular position concerned; or

(b) if the person is a member of the staff of an institution that is

conducted in accordance with the doctrines, tenets, beliefs or

teachings of a particular religion or creed—the employment

is terminated:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of

adherents of that religion or creed.

(3) To avoid doubt, if:

(a) an employer terminates an employee’s employment; and

(b) the reason, or a reason, for the termination is that the position

held by the employee no longer exists, or will no longer

exist; and

employee no longer exists, or will no longer exist, is the

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employee’s absence, or proposed or probable absence, during

maternity leave or other parental leave;

the employee’s employment is taken, for the purposes of

paragraph (1)(g), to have been terminated for the reason, or for

reasons including the reason, of absence from work during

maternity leave or other parental leave.

(4) For the purposes of subsection (1), subsection 109(2) (which deals

with the meaning of voluntary emergency management activity)

has effect as if the word employee had its ordinary meaning.

773 Application for the FWC to deal with a dispute

If:

(a) an employer has terminated an employee’s employment; and

(b) the employee, or an industrial association that is entitled to

represent the industrial interests of the employee, alleges that

the employee’s employment was terminated in contravention

of subsection 772(1);

the employee, or the industrial association, may apply to the FWC

for the FWC to deal with the dispute.

774 Time for application

(1) An application under section 773 must be made:

(a) within 21 days after the employment was terminated; or

(b) within such further period as the FWC allows under

subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that

there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the employee to dispute the termination;

and

delay); and

(d) the merits of the application; and

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(e) fairness as between the person and other persons in a like

position.

775 Application fees

(1) The application must be accompanied by any fee prescribed by the

regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under

section 773; and

(b) a method for indexing the fee; and

waived or refunded.

776 Dealing with a dispute (other than by arbitration)

(1) If an application is made under section 773, the FWC must deal

with the dispute (other than by arbitration).

Note: The FWC may deal with a dispute by mediation or conciliation, or by

making a recommendation or expressing an opinion (see

subsection 595(2)).

(2) Any conference conducted for the purposes of dealing with the

dispute (other than by arbitration) must be conducted in private,

despite subsection 592(3).

Note: For conferences, see section 592.

(3) If the FWC is satisfied that all reasonable attempts to resolve the

dispute (other than by arbitration) have been, or are likely to be,

unsuccessful, then:

(a) the FWC must issue a certificate to that effect; and

(b) if the FWC considers, taking into account all the materials

before it, that arbitration under section 777, or an unlawful

termination court application, in relation to the dispute would

not have a reasonable prospect of success, the FWC must

advise the parties accordingly.

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Section 777

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(4) An unlawful termination court application is an application to a

court under Division 2 of Part 4-1 for orders in relation to a

contravention of subsection 772(1).

777 Dealing with a dispute by arbitration

(1) This section applies if:

(a) the FWC issues a certificate under paragraph 776(3)(a) in

relation to the dispute; and

(b) the parties notify the FWC that they agree to the FWC

arbitrating the dispute; and

(i) is given to the FWC within 14 days after the day the

certificate is issued, or within such period as the FWC

allows on an application made during or after those 14

days; and

(ii) complies with any requirements prescribed by the

procedural rules; and

(d) sections 726, 727, 728, 729, 731 and 732 do not apply.

Note: Sections 726, 727, 728, 729, 731 and 732 prevent multiple

applications or complaints of a kind referred to in those sections from

being made in relation to the same dispute. A notification can only be

made under this section where there is no such other application or

complaint in relation to the dispute at the time the notification is

made. Generally, once a notification is made no such application or

complaint can be made in relation to the dispute (see section 730).

(2) The FWC may deal with the dispute by arbitration, including by

making one or more of the following orders:

(a) an order for reinstatement of the employee;

(b) an order for the payment of compensation to the employee;

remuneration lost;

(d) an order to maintain the continuity of the employee’s

employment;

(e) an order to maintain the period of the employee’s continuous

service with the employer.

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(3) A person to whom an order under subsection (2) applies must not

contravene a term of the order.

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

778 Taking a dispute to court

A person who is entitled to apply under section 773 for the FWC to

deal with a dispute must not make an unlawful termination court

application in relation to the dispute unless:

(a) both of the following apply:

(i) the FWC has issued a certificate under

paragraph 776(3)(a) in relation to the dispute;

(ii) the unlawful termination court application is made

within 14 days after the day the certificate is issued, or

within such period as the court allows on an application

made during or after those 14 days; or

(b) the unlawful termination court application includes an

application for an interim injunction.

Note 1: Generally, if the parties notify the FWC that they agree to the FWC

arbitrating the dispute (see subsection 777(1)), an unlawful

termination court application cannot be made in relation to the dispute

(see sections 730 and 731).

Note 2: For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV

Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of

Australia set down principles relating to the exercise of its discretion

under a similarly worded provision of the Industrial Relations Act

1988.

779 Appeal rights

(1) Despite subsection 604(2), the FWC must not grant permission to

appeal from a decision made by the FWC under subsection 777(2)

(which is about arbitration of a dispute) unless the FWC considers

that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the

FWC in relation to a matter arising under subsection 777(2) can

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Section 779A

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only, to the extent that it is an appeal on a question of fact, be made

on the ground that the decision involved a significant error of fact.

779A Costs orders against parties

(1) The FWC may make an order for costs against a party (the first

party) to a dispute for costs incurred by the other party to the

dispute if:

(a) an application for the FWC to deal with the dispute has been

made under section 773; and

(b) the FWC is satisfied that the first party caused those costs to

be incurred because of an unreasonable act or omission of the

first party in connection with the conduct or continuation of

the dispute.

(2) The FWC may make an order under subsection (1) only if the other

party to the dispute has applied for it in accordance with

section 781.

(3) This section does not limit the FWC’s power to order costs under

section 611.

780 Costs orders against lawyers and paid agents

(1) This section applies if:

(a) an application for the FWC to deal with a dispute has been

made under section 773; and

(b) a person who is a party to the dispute has engaged a lawyer

or paid agent (the representative) to represent the person in

the dispute; and

permission to be represented by the representative.

(2) The FWC may make an order for costs against the representative

for costs incurred by the other party to the dispute if the FWC is

satisfied that the representative caused those costs to be incurred

because:

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(a) the representative encouraged the person to start, continue or

respond to the dispute and it should have been reasonably

apparent that the person had no reasonable prospect of

success in the dispute; or

(b) of an unreasonable act or omission of the representative in

connection with the conduct or continuation of the dispute.

(3) The FWC may make an order under this section only if the other

party to the dispute has applied for it in accordance with

section 781.

(4) This section does not limit the FWC’s power to order costs under

section 611.

781 Applications for costs orders

An application for an order for costs in relation to an application

under section 773 must be made within 14 days after the FWC

finishes dealing with the dispute.

781A Schedule of costs

(1) A schedule of costs may be prescribed in relation to items of

expenditure likely to be incurred in relation to matters that can be

covered by an order under section 611, 779A or 780 in relation to

an application under section 773, including expenses arising from

the representation of a party by a person or organisation other than

on a legal professional basis.

(2) If a schedule of costs is prescribed for the purposes of

subsection (1), then, in awarding costs under section 611, 779A or

780 in relation to an application under section 773, the FWC:

(a) is not limited to the items of expenditure appearing in the

schedule; but

(b) if an item does appear in the schedule—must not award costs

in relation to that item at a rate or of an amount that exceeds

the rate or amount appearing in the schedule.

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782 Contravening costs orders

A person to whom an order for costs made under section 779A or

780 applies must not contravene a term of the order.

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

783 Reason for action to be presumed unless proved otherwise

(1) If:

(a) in an application in relation to a contravention of

subsection 772(1), it is alleged that a person took, or is

taking, action for a particular reason; and

(b) taking that action for that reason would constitute a

contravention of subsection 772(1);

it is presumed that the action was, or is being, taken for that reason,

unless the person proves otherwise.

(2) Subsection (1) does not apply in relation to orders for an interim

injunction.

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Division 3—Notification and consultation requirements

relating to certain terminations of employment

Subdivision A—Object of this Division

784 Object of this Division

The object of this Division is to give effect, or further effect, to:

(a) the ILO Convention (No. 158) concerning Termination of

Employment at the Initiative of the Employer, done at

Geneva on 22 June 1982 ([1994] ATS 4); and

(b) the Termination of Employment Recommendation, 1982

(Recommendation No. R166) which the General Conference

of the ILO adopted on 22 June 1982.

Note 1: In 2009, the text of a Convention in the Australian Treaty Series was

accessible through the Australian Treaties Library on the AustLII

website (www.austlii.edu.au).

Note 2: In 2009, the text of a Recommendation adopted by the General

Conference of the ILO was accessible through the ILO website

(www.ilo.org).

Subdivision B—Requirement to notify Centrelink

785 Employer to notify Centrelink of certain proposed terminations

(1) If an employer decides to terminate the employment of 15 or more

employees for reasons of an economic, technological, structural or

similar nature, or for reasons including such reasons, the employer

must give a written notice about the proposed terminations to the

Chief Executive Officer of the Commonwealth Services Delivery

Agency (Centrelink).

(2) The notice must be in the form (if any) prescribed by the

regulations and set out:

(a) the reasons for the terminations; and

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(b) the number and categories of employees likely to be affected;

and

intends to carry out the terminations.

(3) The notice must be given:

(a) as soon as practicable after making the decision; and

(b) before terminating an employee’s employment in accordance

with the decision.

(4) The employer must not terminate an employee’s employment in

accordance with the decision unless the employer has complied

with this section.

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

(5) The orders that may be made under subsection 545(1) in relation to

a contravention of subsection (4) of this section:

(a) include an order requiring the employer not to terminate the

employment of employees in accordance with the decision,

except as permitted by the order; but

(b) do not include an order granting an injunction.

Subdivision C—Failure to notify or consult registered employee

associations

786 FWC may make orders where failure to notify or consult

registered employee associations about terminations

(1) The FWC may make an order under subsection 787(1) if it is

satisfied that:

(a) an employer has decided to terminate the employment of 15

or more employees for reasons of an economic,

technological, structural or similar nature, or for reasons

including such reasons; and

(b) the employer has not complied with subsection (2) (which

deals with notifying relevant registered employee

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associations) or subsection (3) (which deals with consulting

relevant registered employee associations); and

when he or she made the decision, that one or more of the

employees were members of a registered employee

association.

Notifying relevant registered employee associations

(2) An employer complies with this subsection if:

(a) the employer notifies each registered employee association of

which any of the employees was a member, and that was

entitled to represent the industrial interests of that member, of

the following:

(i) the proposed terminations and the reasons for them;

(ii) the number and categories of employees likely to be

affected;

(iii) the time when, or the period over which, the employer

intends to carry out the terminations; and

(b) the notice is given:

(i) as soon as practicable after making the decision; and

(ii) before terminating an employee’s employment in

accordance with the decision.

Consulting relevant registered employee associations

(3) An employer complies with this subsection if:

(a) the employer gives each registered employee association of

which any of the employees was a member, and that was

entitled to represent the industrial interests of that member,

an opportunity to consult the employer on:

(i) measures to avert or minimise the proposed

terminations; and

(ii) measures (such as finding alternative employment) to

mitigate the adverse effects of the proposed

terminations; and

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(b) the opportunity is given:

(i) as soon as practicable after making the decision; and

(ii) before terminating an employee’s employment in

accordance with the decision.

787 Orders that the FWC may make

(1) The FWC may make whatever orders it considers appropriate, in

the public interest, to put:

(a) the employees; and

(b) each registered employee association referred to in

paragraph 786(2)(a) or (3)(a);

in the same position (as nearly as can be done) as if the employer

had complied with subsections 786(2) and (3).

(2) The FWC must not, under subsection (1), make orders for any of

the following:

(a) reinstatement of an employee;

(b) withdrawal of a notice of termination if the notice period has

not expired;

(d) payment of severance pay;

(e) disclosure of confidential information or commercially

sensitive information relating to the employer, unless the

recipient of such information gives an enforceable

undertaking not to disclose the information to any other

person;

(f) disclosure of personal information relating to a particular

employee, unless the employee has given written consent to

the disclosure of the information and the disclosure is in

accordance with that consent.

788 Application to the FWC for order

The FWC may make the order only on application by:

(a) one of the employees; or

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(b) a registered employee association referred to in

paragraph 786(2)(a) or (3)(a); or

represent the industrial interests of one of the employees.

Subdivision D—Limits on scope of this Division

789 Limits on scope of this Division

(1) This Division does not apply in relation to any of the following

employees:

(a) an employee employed for a specified period of time, for a

specified task, or for the duration of a specified season;

(b) an employee whose employment is terminated because of

serious misconduct;

(d) an employee (other than an apprentice) to whom a training

arrangement applies and whose employment is for a specified

period of time or is, for any reason, limited to the duration of

the training arrangement;

(e) a daily hire employee working in the building and

construction industry (including working in connection with

the erection, repair, renovation, maintenance, ornamentation

or demolition of buildings or structures);

(f) a daily hire employee working in the meat industry in

connection with the slaughter of livestock;

(g) a weekly hire employee working in connection with the meat

industry and whose termination of employment is determined

solely by seasonal factors;

(h) an employee prescribed by the regulations as an employee in

relation to whom this Division does not apply.

(2) Paragraph (1)(a) does not prevent this Division from applying in

relation to an employee if a substantial reason for employing the

employee as described in that paragraph was to avoid the

application of this Division.

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Part 6-4A Special provisions about TCF outworkers

Division 1 Introduction

Section 789AA

262 Fair Work Act 2009

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Part 6-4A—Special provisions about TCF

outworkers

Division 1—Introduction

789AA Guide to this Part

This Part contains special provisions about TCF outworkers.

Division 2 provides for TCF contract outworkers to be taken to be

employees in certain circumstances for the purposes of most of the

provisions of this Act.

Division 3 provides for TCF outworkers (whether employees or

contractors) to recover unpaid remuneration from entities that are

indirectly responsible for work done by the outworkers.

Division 4 allows the regulations to prescribe a code dealing with

standards of conduct and practice relating to TCF outwork.

Division 5 contains miscellaneous provisions.

789AB Meanings of employee and employer

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

789AC Objects of this Part

The objects of this Part are to eliminate exploitation of outworkers

in the textile, clothing and footwear industry, and to ensure that

those outworkers are employed or engaged under secure, safe and

fair systems of work, by:

(a) providing nationally consistent rights and protections for

those outworkers, regardless of whether they are employees

or contractors; and

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(b) establishing an effective mechanism by which those

outworkers can recover amounts owing to them in relation to

their work from other parties in a supply chain; and

practice to be complied with by parties in a supply chain.

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Section 789BA

264 Fair Work Act 2009

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Division 2—TCF contract outworkers taken to be

employees in certain circumstances

789BA Provisions covered by this Division

(1) This Division covers the provisions of this Act, other than the

following provisions (and other than regulations made for the

purposes of the following provisions):

(a) Division 1, and this Division, of this Part;

(b) Divisions 2A and 2B of Part 1-3 (application of this Act in

referring States);

(d) Part 3-5 (stand down);

(e) Part 6-3 (extension of National Employment Standards

entitlements);

(ea) Part 6-3A (transfer of business from a State public sector

employer);

(f) Part 6-4 (additional provisions relating to termination of

employment);

(g) Part 1 of Schedule 1.

(2) Provisions of this Act that are not covered by this Division are to

be interpreted disregarding the effect of this Division in relation to

other provisions of this Act.

Note: For example, references to national system employees and national

system employers, in provisions of this Act that are not covered by

this Division, are to be interpreted disregarding the effect of this

Division in relation to the definitions of those expressions in

sections 13 and 14.

(3) References in provisions that are covered by this Division to

matters dealt with in, or occurring under, provisions of this Act that

are not covered by this Division (the excluded provisions) are to be

interpreted having regard to the fact that this Division does not

apply for the purposes of the excluded provisions.

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Section 789BB

Fair Work Act 2009 265

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789BB TCF contract outworkers taken to be employees in certain

circumstances

(1) For the purposes of the provisions covered by this Division:

(a) a TCF contract outworker is taken to be an employee (within

the ordinary meaning of that expression), and to be a national

system employee, in relation to particular TCF work

performed by the outworker, if:

(i) the work is performed directly or indirectly for a

Commonwealth outworker entity; and

(ii) if the entity is a constitutional corporation—the work is

performed for the purposes of a business undertaking of

the corporation; and

(b) the person (whether a Commonwealth outworker entity

referred to in subparagraph (a)(i) or another person) that

engages the outworker is taken to be the employer (within the

ordinary meaning of that expression), and to be a national

system employer, of the outworker in relation to the TCF

work.

Note 1: See section 17A for when TCF work is performed directly or

indirectly for a person.

Note 2: See also section 789BC, which allows regulations to deal with matters

relating to TCF contract outworkers who are taken by this section to

be employees.

(2) A TCF contract outworker is a TCF outworker who performs

work other than as an employee.

(3) In interpreting any of the following for the purposes of the

provisions covered by this Division:

(a) provisions of this Act;

(b) any instrument that is relevant to the relationship between the

TCF contract outworker and the person referred to in

paragraph (1)(b);

an interpretation that is consistent with the objective stated in

subsection (4) is to be preferred to an interpretation that is not

consistent with that objective.

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Division 2 TCF contract outworkers taken to be employees in certain circumstances

Section 789BC

266 Fair Work Act 2009

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(4) The objective is that a TCF contract outworker who is taken to be

an employee in relation to TCF work should have the same rights

and obligations in relation to the work as an employee would have

if he or she were employed by the person referred to in

paragraph (1)(b) to do the work.

(5) This section has effect subject to regulations made for the purposes

of section 789BC.

789BC Regulations relating to TCF outworkers who are taken to be

employees

(1) For the purpose of furthering the objective stated in

subsection 789BB(4), the regulations may do either or both of the

following in relation to TCF outworkers (deemed employees) who

are taken by section 789BB to be employees of other persons

(deemed employers) in relation to TCF work:

(a) provide that provisions covered by this Division apply in

relation to deemed employees and deemed employers with

specified modifications;

(b) otherwise make provision relating to how provisions covered

by this Division apply in relation to deemed employees and

deemed employers.

(2) Regulations made for the purposes of subsection (1) may provide

differently:

(a) for the purposes of different provisions; or

(b) in relation to different situations.

(3) This section does not allow regulations to:

(a) modify a provision that creates an offence, or that imposes an

obligation which, if contravened, constitutes an offence; or

(b) include new provisions that create offences.

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Section 789CA

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Division 3—Recovery of unpaid amounts

789CA When this Division applies

Outworker not paid for TCF work in certain circumstances

(1) This Division applies if:

(a) a TCF outworker performs TCF work for a person (the

responsible person):

(i) as an employee of the responsible person; or

(ii) under a contract for the provision of services to the

responsible person; and

(b) the responsible person does not pay an amount (the unpaid

amount) that is payable, in relation to the TCF work, by the

responsible person:

(i) to the outworker; or

(ii) to another person, for the benefit of the outworker;

on or before the day when the amount is due for payment;

and

(i) a contract; or

(ii) this Act, or an instrument made under or in accordance

with this Act; or

(iii) another law of the Commonwealth; or

(iv) a transitional instrument as continued in existence by

Schedule 3 to the Transitional Act; or

(v) a State or Territory industrial law, or a State industrial

instrument.

Note: For the purpose of this Division, the effect of Division 2 must be taken

into account in determining whether a TCF outworker performs work

as a national system employee of a national system employer.

(2) Without limiting paragraph (1)(b), the unpaid amount may (subject

to paragraph (1)(c)) be an amount of any of the following kinds

that relates to (or is attributable to) the TCF work:

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(a) an amount payable by way of remuneration or commission;

(b) an amount payable in respect of leave;

superannuation fund;

(d) an amount payable by way of reimbursement for expenses

incurred.

Meaning of indirectly responsible entity

(3) Subject to subsections (4) and (5), a person is an indirectly

responsible entity in relation to the TCF work if:

(a) the person is a Commonwealth outworker entity; and

(b) the TCF work was performed indirectly:

(i) for the entity; and

(ii) if the entity is a constitutional corporation—for the

purposes of a business undertaking of the corporation.

Note: See section 17A for when TCF work is performed indirectly for a

person.

Extent of liability of indirectly responsible entity

(4) If subsection (3) is satisfied in relation to a Commonwealth

outworker entity and part only of the TCF work:

(a) the entity is an indirectly responsible entity in relation to that

part of the TCF work; and

(b) for the purposes of applying this Division in relation to the

entity and that part of the TCF work, the unpaid amount is

so much only of the amount referred to in paragraph (1)(b) as

is attributable to that part of the TCF work.

Retailer of goods not an indirectly responsible entity in certain

circumstances

(5) If:

(a) a Commonwealth outworker entity, as a retailer, sells goods

produced by the TCF work; and

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(b) the entity does not have any right to supervise or otherwise

control the performance of the work before the goods are

delivered to the entity;

the entity is not an indirectly responsible entity in relation to the

TCF work.

789CB Liability of indirectly responsible entity for unpaid amount

(1) Each indirectly responsible entity (or the indirectly responsible

entity, if there is only one) is liable to pay the unpaid amount.

(3) If there are 2 or more indirectly responsible entities, those entities

are jointly and severally liable for the payment of the unpaid

amount.

(4) Subject to subsection 789CE(1A), this section does not affect the

liability of the responsible person to pay the unpaid amount.

789CC Demand for payment from an apparent indirectly

responsible entity

(1) The TCF outworker, or a person acting on behalf of the outworker,

may give an apparent indirectly responsible entity a written

demand for payment of the amount that the outworker reasonably

believes the entity is liable for under section 789CB.

(2) An entity is an apparent indirectly responsible entity in relation to

the TCF work if the TCF outworker reasonably believes that the

entity is an indirectly responsible entity in relation to the TCF

work.

(3) The demand must:

(a) specify the amount, and identify the responsible person; and

(b) include particulars of the TCF work to which the amount

relates, and why the amount is payable by the entity to which

the demand is given; and

time, proceedings may be commenced against the entity

under section 789CD.

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Section 789CD

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(4) The time specified for the purpose of paragraph (3)(c) must not be

less than 14 days after the demand is given to the entity.

789CD Court order for entity to pay amount demanded

(1) If:

(a) in accordance with section 789CC, an apparent indirectly

responsible entity has been given a demand for payment of a

specified amount; and

(b) the amount has not been paid in full by the time specified in

the demand;

a person or organisation specified in subsection (2) (the applicant)

may commence proceedings for an order requiring the entity to pay

the specified amount.

(2) The proceedings may be commenced:

(a) by the TCF outworker; or

(b) on the TCF outworker’s behalf, by:

(i) an organisation that is entitled to represent the industrial

interests of the outworker; or

(ii) an inspector.

(3) The proceedings may be commenced in:

(a) the Federal Court; or

(b) the Federal Circuit Court; or

(4) Subject only to subsections (5) and (6), the court may make an

order requiring the entity to pay, to the outworker or to another

person on the outworker’s behalf, the specified amount (or so

much of that amount as the applicant alleges is still owing).

(5) The court must not make an order under subsection (4) if the entity

satisfies the court that the entity is not liable under section 789CB

to pay any of the specified amount.

(6) If the entity satisfies the court that the amount of the entity’s

liability under section 789CB is less than the specified amount (or

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is less than so much of that amount as the applicant alleges is still

owing), the court must not make an order under subsection (4)

requiring the entity to pay more than that lesser amount.

(7) In making the order, the court must, on application, include an

amount of interest in the sum ordered, unless good cause is shown

to the contrary.

(8) Without limiting subsection (7), in determining the amount of

interest, the court must take into account the period between the

day when the unpaid amount was due for payment by the

responsible person and the day when the order is made.

(9) Proceedings cannot be commenced under this section more than 6

years after the time when the unpaid amount became due for

payment by the responsible person.

789CE Effect of payment by entity (including entity’s right to

recover from responsible person)

(1) This section applies if an entity pays an amount in discharge of a

liability of the entity under section 789CB, or pursuant to an order

under section 789CD.

(1A) The payment discharges the liability of the responsible person for

the unpaid amount, to the extent of the payment. This does not

affect any right that the entity has to recover an equivalent amount

from the responsible person (under this section or otherwise) or

from another person, or to be otherwise indemnified in relation to

the making of the payment.

(2) The entity may, in accordance with this section, recover from the

responsible person an amount (the recoverable amount) equal to

the sum of:

(a) the amount paid by the entity as mentioned in subsection (1);

and

(b) any interest paid by the entity in relation to that amount

pursuant to an order under section 789CD.

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Section 789CF

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(3) The entity may recover the recoverable amount:

(a) by offsetting it against any amount that the entity owes to the

responsible person; or

(b) by action against the responsible person under subsection (4).

(4) The entity may commence proceedings against the responsible

person for payment to the entity of the recoverable amount. The

proceedings may be commenced in:

(a) the Federal Court; or

(b) the Federal Circuit Court; or

(5) The court may make an order requiring the responsible person to

pay the entity the recoverable amount (or so much of it as is still

owing) if the court is satisfied that:

(a) this section applies as mentioned in subsection (1); and

(b) the entity has not otherwise recovered the recoverable

amount in full from the responsible person.

(6) In making the order the court must, on application, include an

amount of interest in the sum ordered, unless good cause is shown

to the contrary.

(7) Without limiting subsection (6), in determining the amount of

interest, the court must take into account the period between the

day when the recoverable amount was paid by the entity and the

day when the order is made.

(8) Proceedings cannot be commenced under this section more than 6

years after the time when the entity paid the recoverable amount.

789CF Division does not limit other liabilities or rights

Nothing in this Division limits any other liability or right in respect

of the entitlement of the TCF outworker to the unpaid amount (or

to have the unpaid amount paid to another person for the

outworker’s benefit).

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Section 789DA

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Division 4—Code of practice relating to TCF outwork

789DA Regulations may provide for a code

For the purpose of furthering the objects of this Part, the

regulations may prescribe a code (the TCF outwork code) dealing

with standards of conduct and practice to be complied with in

relation to any of the following:

(a) the employment or engagement of TCF outworkers;

(b) arranging for TCF work to be performed, if the work:

(i) is to be performed by TCF outworkers; or

(ii) is of a kind that is often performed by TCF outworkers;

Note 1: In situations where there is a chain or series of arrangements for the

supply or production of goods, the TCF outwork code may (subject to

section 789DC) impose obligations on any persons that are parties to

arrangements in that chain or series.

Note 2: References in other provisions to “this Act” include the code, because

the code is in the regulations and is therefore within the definition of

this Act in section 12.

789DB Matters that may be dealt with in TCF outwork code

(1) The matters that may be dealt with in the TCF outwork code

include (but are not limited to) the following:

(a) record keeping requirements;

(b) reporting on compliance with record keeping requirements,

or with other requirements of the code;

of the code.

(2) The TCF outwork code must not specify wages or other

entitlements for TCF outworkers.

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Section 789DC

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789DC Persons on whom obligations may be imposed by TCF

outwork code

(1) The TCF outwork code may only impose obligations on a person if

one or more of subsections (2) to (5) applies to the person.

Note: See also subsection (6), which limits the matters in relation to which

obligations may be imposed.

(2) This subsection applies to a person if the person is a national

system employer that employs TCF outworkers.

Note: For the purpose of this Division, the effect of Division 2 must be taken

into account in determining whether a person is a national system

employer that employs TCF outworkers.

(3) This subsection applies to a person if:

(a) the person is a Commonwealth outworker entity; and

(b) the person arranges for TCF work to be performed (directly

or indirectly):

(i) for the person; and

(ii) if the person is a constitutional corporation—for the

purposes of a business undertaking of the corporation;

and

(i) is to be performed by TCF outworkers; or

(ii) is of a kind often performed by TCF outworkers.

Note: See section 17A for when a person arranges for TCF work to be

performed directly or indirectly for the person.

(4) This subsection applies to a person if:

(a) the person arranges for TCF work to be performed; and

(b) the work:

(i) is to be performed by TCF outworkers; or

(ii) is of a kind often performed by TCF outworkers; and

(i) for another person, being a Commonwealth outworker

entity; and

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(ii) if that Commonwealth outworker entity is a

constitutional corporation—for the purposes of a

business undertaking of that corporation.

(5) This subsection applies to a person if the person is a constitutional

corporation that sells goods produced by TCF work.

(6) The capacity for the TCF outwork code to impose obligations on a

person is subject to the following limitations:

(a) the obligations that may be imposed on a person because

subsection (2) applies to the person are limited to obligations

relating to the person’s employment of TCF outworkers;

(b) the obligations that may be imposed on a person because

subsection (3) applies to the person are limited to obligations

relating to TCF work (or an arrangement for TCF work)

because of which that subsection applies to the person;

subsection (4) applies to the person are limited to obligations

relating to TCF work (or an arrangement for TCF work)

because of which that subsection applies to the person;

(d) the obligations that may be imposed on a person because

subsection (5) applies to the person are limited to obligations

relating to the person being a seller of goods as referred to in

that subsection.

789DD Other general matters relating to content of TCF outwork

code

(1) The TCF outwork code may be expressed to apply in relation to:

(a) all persons covered by section 789DC, or specified classes of

those persons; and

(b) all TCF work, or specified classes of TCF work.

Note: A class of person or TCF work may (for example) be identified by

reference to a particular sector of the textile, clothing or footwear

industry.

(2) The TCF outwork code may provide differently for:

(a) different classes of persons covered by section 789DC; or

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Section 789DE

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(b) different classes of TCF work; or

789DE Relationship between the TCF outwork code and other

instruments

(1) A TCF award prevails over the TCF outwork code, to the extent of

any inconsistency.

(2) The TCF outwork code prevails over any of the following, to the

extent of any inconsistency:

(a) an enterprise agreement;

(b) a workplace determination;

existence by Schedule 3 to the Transitional Act.

(3) Subject to subsection (5), the TCF outwork code may:

(a) make provision in relation to a matter by applying, adopting

or incorporating any matter contained in an instrument or

other writing as in force or existing from time to time; or

(b) make provision to the effect that compliance with a specified

term of an instrument or other writing as in force or existing

from time to time is taken to satisfy a particular requirement

of the code.

(4) The kinds of instrument or other writing by reference to which the

TCF outwork code may make provision as mentioned in

subsection (3) include (but are not limited to) the following:

(a) a TCF award;

(b) a code (however described), dealing with matters relating to

outworkers, that is made under a law of a State or Territory.

(5) The TCF outwork code cannot make provision as mentioned in

subsection (3) by reference to any of the following:

(a) an enterprise agreement;

(b) a workplace determination;

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existence by Schedule 3 to the Transitional Act.

(6) Subsections (3) and (4) have effect despite subsection 14(2) of the

Legislation Act 2003.

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Section 789EA

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Division 5—Miscellaneous

789EA Part not intended to exclude or limit State or Territory laws

relating to outworkers

(1) This Part is not intended to exclude or limit the operation of a law

of a State or Territory (or an instrument made under a law of a

State or Territory), to the extent that the law (or instrument) relates

to outworkers and is capable of operating concurrently with this

Part.

(2) A reference in subsection (1) to this Part includes a reference to

any regulations made for the purposes of this Part.

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Introduction Division 1

Section 789FA

Fair Work Act 2009 279

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Part 6-4B—Workers bullied at work

Division 1—Introduction

789FA Guide to this Part

This Part allows a worker who has been bullied at work to apply to

the FWC for an order to stop the bullying.

789FB Meanings of employee and employer

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

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Division 2 Stopping workers being bullied at work

Section 789FC

280 Fair Work Act 2009

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Division 2—Stopping workers being bullied at work

789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied

at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in

the Work Health and Safety Act 2011, but does not include a

member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a

worker is an individual who performs work in any capacity, including

as an employee, a contractor, a subcontractor, an outworker, an

apprentice, a trainee, a student gaining work experience or a

volunteer.

(3) The application must be accompanied by any fee prescribed by the

regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this

section; and

(b) a method for indexing the fee; and

waived or refunded.

789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered

business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a

group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

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(2) To avoid doubt, subsection (1) does not apply to reasonable

management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning

of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a

Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered

business.

789FE FWC to deal with applications promptly

(1) The FWC must start to deal with an application under

section 789FC within 14 days after the application is made.

Note: For example, the FWC may start to inform itself of the matter under

section 590, it may decide to conduct a conference under section 592,

or it may decide to hold a hearing under section 593.

(2) However, the FWC may dismiss an application under

section 789FC if the FWC considers that the application might

involve matters that relate to:

(a) Australia’s defence; or

(b) Australia’s national security; or

section 12E of the Work Health and Safety Act 2011) of the

Australian Federal Police; or

(d) an existing or future international operation (within the

meaning of section 12E of the Work Health and Safety Act

2011) of the Australian Federal Police.

Note: For another power of the FWC to dismiss applications under

section 789FC, see section 587.

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Section 789FF

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789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or

a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied

at work by the individual or group;

then the FWC may make any order it considers appropriate (other

than an order requiring payment of a pecuniary amount) to prevent

the worker from being bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into

account:

(a) if the FWC is aware of any final or interim outcomes arising

out of an investigation into the matter that is being, or has

been, undertaken by another person or body—those

outcomes; and

(b) if the FWC is aware of any procedure available to the worker

to resolve grievances or disputes—that procedure; and

out of any procedure available to the worker to resolve

grievances or disputes—those outcomes; and

(d) any matters that the FWC considers relevant.

789FG Contravening an order to stop bullying

A person to whom an order under section 789FF applies must not

contravene a term of the order.

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

789FH Actions under work health and safety laws permitted

Section 115 of the Work Health and Safety Act 2011 and

corresponding provisions of corresponding WHS laws (within the

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meaning of that Act) do not apply in relation to an application

under section 789FC.

Note: Ordinarily, if a worker makes an application under section 789FC for

an FWC order to stop the worker from being bullied at work, then

section 115 of the Work Health and Safety Act 2011 and

corresponding provisions of corresponding WHS laws would prohibit

a proceeding from being commenced, or an application from being

made or continued, under those laws in relation to the bullying. This

section removes that prohibition.

789FI This Part is not to prejudice Australia’s defence, national

security etc.

Nothing in this Part requires or permits a person to take, or to

refrain from taking, any action if the taking of the action, or the

refraining from taking the action, would be, or could reasonably be

expected to be, prejudicial to:

(a) Australia’s defence; or

(b) Australia’s national security; or

section 12E of the Work Health and Safety Act 2011) of the

Australian Federal Police; or

(d) an existing or future international operation (within the

meaning of section 12E of the Work Health and Safety Act

2011) of the Australian Federal Police.

789FJ Declarations by the Chief of the Defence Force

(1) Without limiting section 789FI, the Chief of the Defence Force

may, by legislative instrument, declare that all or specified

provisions of this Part do not apply in relation to a specified

activity.

(2) A declaration under subsection (1) may only be made with the

approval of the Minister and, if made with that approval, has effect

according to its terms.

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789FK Declarations by the Director-General of Security

(1) Without limiting section 789FI, the Director-General of Security

may, by legislative instrument, declare that all or specified

provisions of this Part do not apply in relation to a person carrying

out work for the Director-General.

(2) A declaration under subsection (1) may only be made with the

approval of the Minister and, if made with that approval, has effect

according to its terms.

789FL Declarations by the Director-General of ASIS

(1) Without limiting section 789FI, the Director-General of the

Australian Secret Intelligence Service may, by legislative

instrument, declare that all or specified provisions of this Part do

not apply in relation to a person carrying out work for the

Director-General.

(2) A declaration under subsection (1) may only be made with the

approval of the Minister and, if made with that approval, has effect

according to its terms.

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Section 789GA

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Part 6-4C—Coronavirus economic response

Division 1—Introduction

789GA Guide to this Part

The purpose of this Part is to assist employers who qualify for the

jobkeeper scheme to deal with the economic impact of the

Coronavirus known as COVID-19.

This Part authorises an employer who qualifies for the jobkeeper

scheme to give a jobkeeper enabling stand down direction to an

employee (including to reduce hours of work).

This Part authorises an employer who qualifies for the jobkeeper

scheme to give a direction to an employee about:

(a) the duties to be performed by the employee; or

(b) the location of the employee’s work.

This Part authorises an employer who qualifies for the jobkeeper

scheme and an employee to make an agreement in relation to:

(a) the days or times when the employee is to perform

work; or

(b) the employee taking annual leave, including at half

pay.

This Part provides that an employer who qualifies for the jobkeeper

scheme must consult an employee (or a representative of the

employee) before giving a direction.

This Part provides that:

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(a) a direction given by an employer who qualifies for

the jobkeeper scheme to an employee does not

apply to the employee if the direction is

unreasonable in all of the circumstances; and

(b) a direction given by an employer who qualifies for

the jobkeeper scheme to an employee in relation to

the duties to be performed by the employee, or the

location of the employee’s work, does not apply to

the employee unless the employer reasonably

believes the direction is necessary to continue the

employment of one or more employees of the

employer.

This Part provides for other safeguards relating to directions given

by employers who qualify for the jobkeeper scheme, including a

rule that this Part will at all times operate subject to listed laws.

This Part provides that the FWC may deal with a dispute about the

operation of this Part.

Note: The core provisions of this Part (namely, Divisions 2, 3, 4, 5, 6, 9 and

11) will be repealed on 28 September 2020.

789GB Object

The object of this Part is to:

(a) make temporary changes to assist the Australian people to

keep their jobs, and maintain their connection to their

employers, during the unprecedented economic downturn

and work restrictions arising from:

(i) the COVID-19 pandemic; and

(ii) government initiatives to slow the transmission of

COVID-19; and

(b) help sustain the viability of Australian businesses during the

COVID-19 pandemic, including by preparing the Australian

economy to recover with speed and strength after a period of

hibernation; and

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(d) ensure the continued effective operation of occupational

health and safety laws during the COVID-19 pandemic; and

(e) help ensure that, where reasonably possible, employees:

(i) remain productively employed during the COVID-19

pandemic; and

(ii) continue to contribute to the business of their employer

where it is safe and possible for the business to continue

operating.

789GC Definitions

In this Part:

designated employment provision means:

(a) a provision of this Act (other than a provision of this Part or a

provision mentioned in section 789GZ); or

(b) a provision of:

(i) a fair work instrument; or

(ii) a contract of employment; or

(iii) a transitional instrument (within the meaning of item 2

of Schedule 3 to the Transitional Act).

employee means a national system employee.

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

employees in certain circumstances).

employer means a national system employer.

fortnight means a 14-day period beginning on a Monday.

hourly rate of pay guarantee has the meaning given by

section 789GDB.

jobkeeper enabling direction means a direction authorised by

section 789GDC, 789GE or 789GF.

jobkeeper payment means a payment that:

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(a) is payable by the Commonwealth in accordance with the

jobkeeper payment rules; and

(b) is known as jobkeeper payment.

jobkeeper payment rules means rules made under the Coronavirus

Economic Response Package (Payments and Benefits) Act 2020.

licence includes:

(a) registration; and

(b) permit.

minimum payment guarantee has the meaning given by

section 789GDA.

qualifies for the jobkeeper scheme has the same meaning as in the

jobkeeper payment rules.

wage condition means the wage condition set out in the jobkeeper

payment rules.

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Section 789GD

Fair Work Act 2009 289

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Division 2—Employer payment obligations

789GD Obligation of employer to satisfy the wage condition

If:

(a) an employer qualifies for the jobkeeper scheme; and

(b) the employer would be entitled to jobkeeper payment for an

employee for a fortnight if (among other things) the

employer satisfied the wage condition in respect of the

employee for the fortnight;

the employer must ensure that the wage condition has been

satisfied in respect of the employee by the end of the fortnight.

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

Note 2: Under the jobkeeper payment rules, a jobkeeper payment is a payment

to an employer for a particular employee for a fortnight.

789GDA Minimum payment guarantee

(1) For the purposes of this Part, the minimum payment guarantee

consists of the rule set out in subsection (2).

(2) If a jobkeeper payment is payable to an employer for an employee

of the employer for a fortnight, the employer must ensure that the

total amount payable to the employee in respect of the fortnight is

not less than the greater of the following:

(a) the amount of jobkeeper payment payable to the employer

for the employee for the fortnight;

(b) the amounts payable to the employee in relation to the

performance of work during the fortnight.

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

Note 2: Amounts referred to in this subsection (other than paragraph (a))

include the following, if they become payable in respect of the

fortnight:

(a) incentive-based payments and bonuses;

(b) loadings;

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(d) overtime or penalty rates;

(e) leave payments.

789GDB Hourly rate of pay guarantee

(1) For the purposes of this Part, the hourly rate of pay guarantee

consists of the rules set out in subsections (2) and (3).

Minimum rate of pay—jobkeeper enabling stand down

(2) If a jobkeeper enabling direction given by an employer under

section 789GDC (jobkeeper enabling stand down) applies to an

employee of the employer, the employer must ensure that the

employee’s base rate of pay (worked out on an hourly basis) is not

less than the base rate of pay (worked out on an hourly basis) that

would have been applicable to the employee if the direction had

not been given to the employee.

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

Minimum rate of pay—duties of work

(3) If a jobkeeper enabling direction given by an employer under

section 789GE (duties of work) applies to an employee of the

employer, the employer must ensure that the employee’s base rate

of pay (worked out on an hourly basis) is not less than the greater

of the following:

(a) the base rate of pay (worked out on an hourly basis) that

would have been applicable to the employee if the direction

had not been given to the employee;

(b) the base rate of pay (worked out on an hourly basis) that is

applicable to the duties the employee is performing.

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

Base rate of pay for certain payment arrangements

(4) If:

(a) an employee is paid otherwise than:

(i) on an hourly basis; or

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(ii) by reference to an hourly rate of pay; and

(b) a workplace instrument applicable to the employee:

(i) specifies the employee’s base rate of pay for the

purposes of the National Employment Standards; or

(ii) sets out a method for working out the employee’s base

rate of pay for the purposes of the National Employment

Standards;

then, for the purposes of this section, the employee’s base rate of

pay is:

(d) the amount worked out using the method set out in the

workplace instrument;

as the case requires.

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Section 789GDC

292 Fair Work Act 2009

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Division 3—Jobkeeper enabling stand down

789GDC Jobkeeper enabling stand down

(1) If:

(a) after the commencement of this section, an employer of an

employee gave the employee a direction (the jobkeeper

enabling stand down direction) to:

(i) not work on a day or days on which the employee

would usually work; or

(ii) work for a lesser period than the period which the

employee would ordinarily work on a particular day or

days; or

(iii) work a reduced number of hours (compared with the

employee’s ordinary hours of work);

during a period (the jobkeeper enabling stand down period);

and

(b) when the jobkeeper enabling stand down direction was given,

the employer qualified for the jobkeeper scheme; and

employee’s normal days or hours during the jobkeeper

enabling stand down period because of changes to business

attributable to:

(i) the COVID-19 pandemic; or

(ii) government initiatives to slow the transmission of

COVID-19; and

(d) the implementation of the jobkeeper enabling stand down

direction is safe, having regard to (without limitation) the

nature and spread of COVID-19; and

(e) the employer becomes entitled to one or more jobkeeper

payments for the employee:

(i) for a period that consists of or includes the jobkeeper

enabling stand down period; or

(ii) for periods that, when considered together, consist of or

include the jobkeeper enabling stand down period;

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the jobkeeper enabling stand down direction is authorised by this

section.

(2) If the jobkeeper enabling stand down direction applies to the

employee, then, during the jobkeeper enabling stand down period,

the employer is still required to comply with:

(a) section 789GD (which deals with satisfying the wage

condition); and

(b) the minimum payment guarantee (see section 789GDA); and

but is not otherwise required to make payments to the employee in

respect of the jobkeeper enabling stand down period.

(3) The jobkeeper enabling stand down direction does not apply to the

employee during a period when the employee:

(a) is taking paid or unpaid leave that is authorised by the

employer; or

(b) is otherwise authorised to be absent from the employee’s

employment.

Note: An employee may take paid or unpaid leave (for example, annual

leave) during all or part of a period during which the jobkeeper

enabling stand down direction would otherwise apply to the employee.

(4) For the purposes of subparagraph (1)(a)(iii), the reduced number of

hours may be nil.

(5) This section has effect despite a designated employment provision.

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Section 789GE

294 Fair Work Act 2009

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Division 4—Duties, location and days of work

789GE Duties of work

(1) If:

(a) after the commencement of this section, an employer of an

employee directed the employee to perform any duties during

a period (the relevant period) that are within the employee’s

skill and competency; and

(b) when the direction was given, the employer qualified for the

jobkeeper scheme; and

nature and spread of COVID-19; and

(d) in a case where the employee was required to have a licence

or qualification in order to perform those duties—the

employee had the licence or qualification; and

(e) those duties are reasonably within the scope of the

employer’s business operations; and

(f) the employer becomes entitled to one or more jobkeeper

payments for the employee:

(i) for a period that consists of or includes the relevant

period; or

(ii) for periods that, when considered together, consist of or

include the relevant period;

the direction is authorised by this section.

(2) This section has effect despite a designated employment provision.

789GF Location of work

(1) If:

(a) after the commencement of this section, an employer of an

employee directed the employee to perform duties during a

period (the relevant period) at a place that is different from

the employee’s normal place of work, including the

employee’s home; and

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(b) when the direction was given, the employer qualified for the

jobkeeper scheme; and

(d) if the place is not the employee’s home—the place does not

require the employee to travel a distance that is unreasonable

in all the circumstances, including the circumstances

surrounding the COVID-19 pandemic; and

(e) the performance of the employee’s duties at the place is:

(i) safe, having regard to (without limitation) the nature

and spread of COVID-19; and

(ii) reasonably within the scope of the employer’s business

operations; and

(f) the employer becomes entitled to one or more jobkeeper

payments for the employee:

(i) for a period that consists of or includes the relevant

period; or

(ii) for periods that, when considered together, consist of or

include the relevant period;

the direction is authorised by this section.

(2) This section has effect despite a designated employment provision.

789GG Days of work etc.

(1) If:

(a) an employer of an employee qualifies for the jobkeeper

scheme; and

(b) the employer is entitled to one or more jobkeeper payments

for the employee; and

agreement with the employer under subsection (2);

the employee:

(d) must consider the request; and

(e) must not unreasonably refuse the request.

(2) If:

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(a) after the commencement of this section, an employer and an

employee of the employer agree in writing to the employee

performing duties during a period (the relevant period):

(i) on different days; or

(ii) at different times;

compared with the employee’s ordinary days or times of

work; and

(b) when the agreement was made, the employer qualified for the

jobkeeper scheme; and

those times is:

(i) safe, having regard to (without limitation) the nature

and spread of COVID-19; and

(ii) reasonably within the scope of the employer’s business

operations; and

(d) the agreement does not have the effect of reducing the

employee’s number of hours of work (compared with the

employee’s ordinary hours of work); and

(e) the employer becomes entitled to one or more jobkeeper

payments for the employee:

(i) for a period that consists of or includes the relevant

period; or

(ii) for periods that, when considered together, consist of or

include the relevant period;

the agreement is authorised by this section.

(3) This section has effect despite a designated employment provision.

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Section 789GJ

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Division 5—Taking paid annual leave

789GJ Taking paid annual leave

(1) If:

(a) the employer of an employee qualifies for the jobkeeper

scheme; and

(b) the employer is entitled to one or more jobkeeper payments

for the employee; and

annual leave; and

(d) complying with the request will not result in the employee

having a balance of paid annual leave of fewer than 2 weeks;

the employee:

(e) must consider the request; and

(f) must not unreasonably refuse the request.

(2) If:

(a) after the commencement of this section, an employer and an

employee of the employer agree in writing to the employee

taking twice as much paid annual leave, at half the

employee’s rate of pay, for a period (the relevant period);

and

(b) when the agreement was made, the employer qualified for the

jobkeeper scheme; and

payments for the employee:

(i) for a period that consists of or includes the relevant

period; or

(ii) for periods that, when considered together, consist of or

include the relevant period;

the agreement is authorised by this section.

(3) This section has effect despite a designated employment provision.

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Section 789GK

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Division 6—Rules relating to jobkeeper enabling directions

789GK Reasonableness

A jobkeeper enabling direction given by an employer to an

employee of the employer does not apply to the employee if the

direction is unreasonable in all of the circumstances.

Note: A direction may be unreasonable depending on the impact of the

direction on any caring responsibilities the employee may have.

789GL Continuing the employment of employees

(1) A jobkeeper enabling direction given by an employer to an

employee of the employer under section 789GE (duties of work) or

789GF (location of work) has no effect unless the employer has

information before the employer that leads the employer to

reasonably believe that the direction is necessary to continue the

employment of one or more employees of the employer.

(2) In determining whether a jobkeeper enabling direction given by an

employer to an employee of the employer (the relevant employee)

is necessary to continue the employment of one or more employees

of the employer, it is immaterial that a similar jobkeeper enabling

direction could have been given by the employer to an employee of

the employer other than the relevant employee.

789GM Consultation

(1) A jobkeeper enabling direction given by an employer to an

employee of the employer does not apply to the employee unless:

(a) the employer gave the employee written notice of the

employer’s intention to give the direction; and

(b) the employer did so:

(i) at least 3 days before the direction was given; or

(ii) if the employee genuinely agreed to a lesser notice

period—during that lesser notice period; and

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employee (or a representative of the employee) about the

direction.

(2) The regulations may require that a notice under paragraph (1)(a)

must be in a prescribed form.

(3) Subsection (1) does not apply to a jobkeeper enabling direction

(the relevant direction) given by an employer to an employee of

the employer under a particular section of this Part if:

(a) the employer previously complied with paragraphs (1)(a), (b)

and (c) in relation to a proposal to give the employee another

direction under that section; and

(b) in the course of consulting the employee (or a representative

of the employee) about the proposal, the employee (or the

representative of the employee) expressed views to the

employer; and

relevant direction.

(4) An employer must keep a written record of a consultation under

paragraph (1)(c):

(a) with an employee of the employer; or

(b) with a representative of an employee of the employer.

789GN Form of direction

(1) A jobkeeper enabling direction must be in writing.

(2) The regulations may require that a jobkeeper enabling direction

must be in a prescribed form.

789GP Duration

(1) A jobkeeper enabling direction given by an employer to an

employee of the employer under a particular section of this Part

continues in effect until:

(a) it is withdrawn or revoked by the employer; or

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Section 789GQ

300 Fair Work Act 2009

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(b) it is replaced by a new jobkeeper enabling direction given by

the employer to the employee under that section.

(2) Subsection (1) has effect subject to:

(a) subsection (3); and

(b) an order made by the FWC under Division 10.

(3) A jobkeeper enabling direction ceases to have effect at the start of

28 September 2020.

789GQ Compliance

If a jobkeeper enabling direction given by an employer applies to

an employee of the employer, the employee must comply with the

direction.

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Division 7—Service

789GR Service

(1) For the purposes of this Act, if an employee is subject to a

jobkeeper enabling direction during a period, that period counts as

service.

(2) Subsection (1) has effect in addition to section 22.

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Division 8 Accrual rules

Section 789GS

302 Fair Work Act 2009

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Division 8—Accrual rules

789GS Accrual rules

(1) If a jobkeeper enabling direction under section 789GDC (jobkeeper

enabling stand down) applies to an employee, the employee

accrues leave entitlements as if the direction had not been given.

(2) If a jobkeeper enabling direction under section 789GDC (jobkeeper

enabling stand down) applies to an employee, the following are to

be calculated as if the direction had not been given:

(a) redundancy pay;

(b) payment in lieu of notice of termination.

(3) If an employee takes paid annual leave in accordance with an

agreement under subsection 789GJ(2), the employee accrues leave

entitlements as if the agreement had not been made.

(4) If an employee takes paid annual leave in accordance with an

agreement under subsection 789GJ(2), the following are to be

calculated as if the agreement had not been made:

(a) redundancy pay;

(b) payment in lieu of notice of termination.

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Employee requests for secondary employment, training etc. Division 9

Section 789GU

Fair Work Act 2009 303

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Division 9—Employee requests for secondary employment,

training etc.

789GU Employee requests for secondary employment, training etc.

If:

(a) a jobkeeper enabling direction given by an employer under

section 789GDC (jobkeeper enabling stand down) applies to

an employee of the employer; and

(b) the employee gives the employer any of the following

requests:

(i) a request to engage in reasonable secondary

employment;

(ii) a request for training;

(iii) a request for professional development;

the employer:

(d) must not unreasonably refuse the request.

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

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Section 789GV

304 Fair Work Act 2009

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Division 10—Dealing with disputes

789GV FWC may deal with a dispute about the operation of this

Part

(1) The FWC may deal with a dispute about the operation of this Part.

(2) The FWC may deal with a dispute by arbitration.

Note: The FWC may also deal with a dispute by mediation or conciliation,

or by making a recommendation or expressing an opinion (see

subsection 595(2)).

(3) The FWC may deal with a dispute only on application by any of

the following:

(a) an employee;

(b) an employer;

(d) an employer organisation.

(4) The FWC may make any of the following orders:

(a) an order that the FWC considers desirable to give effect to a

jobkeeper enabling direction;

(b) an order setting aside a jobkeeper enabling direction;

(i) setting aside a jobkeeper enabling direction; and

(ii) substituting a different jobkeeper enabling direction;

(d) any other order that the FWC considers appropriate.

(5) The FWC must not make an order under paragraph (4)(a) or (c) on

or after 28 September 2020.

(6) An order made by the FWC under paragraph (4)(a) ceases to have

effect at the start of 28 September 2020.

(7) In dealing with the dispute, the FWC must take into account

fairness between the parties concerned.

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Section 789GW

Fair Work Act 2009 305

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789GW Contravening an FWC order dealing with a dispute about

the operation of this Part

A person must not contravene a term of an FWC order dealing with

a dispute about the operation of this Part.

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

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Division 11 Exclusions

Section 789GX

306 Fair Work Act 2009

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Division 11—Exclusions

789GX Exclusions

The Minister may, by legislative instrument, exclude one or more

specified employers from the operation of any or all of the

following provisions:

(a) section 789GDC;

(b) section 789GE;

(d) section 789GG;

(e) section 789GJ.

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Protections Division 12

Section 789GXA

Fair Work Act 2009 307

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Division 12—Protections

789GXA Misuse of jobkeeper enabling direction

An employer must not purport to give a jobkeeper enabling

direction if:

(a) the direction is not authorised by this Part; and

(b) the employer knows that the direction is not authorised by

this Part.

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

789GY Protection of workplace rights

For the avoidance of doubt, each of the following is a workplace

right within the meaning of Part 3-1:

(a) the benefit that an employee of an employer has or derives

because of an obligation of the employer under

section 789GD to satisfy the wage condition;

(b) agreeing, or not agreeing, to perform duties:

(i) on different days; or

(ii) at different times;

in accordance with subsection 789GG(2);

compliance with a request under subsection 789GJ(1);

(d) agreeing, or not agreeing, to take paid annual leave in

accordance with subsection 789GJ(2);

(e) making a request under section 789GU (secondary

employment, training etc.).

789GZ Relationship with other laws etc.

(1) This Part will at all times operate subject to the following:

(a) Division 2 of Part 2-9 (payment of wages etc.);

(b) Part 3-1 (general protections);

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(d) section 772 (employment not to be terminated on certain

grounds);

(e) an anti-discrimination law;

(f) a law of the Commonwealth, a State or a Territory, so far as

the law deals with health and safety obligations of employers

or employees;

(g) a law of the Commonwealth, a State or a Territory, so far as

the law deals with workers’ compensation.

(2) This Part has effect subject to a person’s right to be represented, or

collectively represented, by an employee organisation or employer

organisation.

789GZA Redundancy

The giving of a jobkeeper enabling direction does not amount to a

redundancy.

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Section 789GZB

Fair Work Act 2009 309

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Division 13—Review of this Part

789GZB Review of this Part

(1) The Minister must cause an independent review to be conducted of

the operation of this Part.

(2) The review must start on or before:

(a) 28 July 2020; or

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

(3) The persons who conduct the review must:

(a) complete the review; and

(b) give the Minister a written report of the review;

on or before:

(d) if a later day is specified in the regulations—that later day.

(4) The Minister must cause a copy of the report to be tabled in each

House of the Parliament within 5 sitting days of that House after

the report is given to the Minister.

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Division 1 Introduction

Section 790

310 Fair Work Act 2009

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Part 6-5—Miscellaneous

Division 1—Introduction

790 Guide to this Part

This Part deals with miscellaneous matters such as delegations and

regulations.

791 Meanings of employee and employer

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

employer means a national system employer.

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

employees in certain circumstances).

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Section 792

Fair Work Act 2009 311

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Division 2—Miscellaneous

792 Delegation by Minister

(1) The Minister may, in writing, delegate all or any of his or her

functions or powers under this Act (except under section 32A) to:

(a) the Secretary of the Department; or

(b) an SES employee, or acting SES employee, in the

Department.

(2) In performing functions or exercising powers under a delegation,

the delegate must comply with any directions of the Minister.

Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

793 Liability of bodies corporate

Conduct of a body corporate

(1) Any conduct engaged in on behalf of a body corporate:

(a) by an officer, employee or agent (an official) of the body

within the scope of his or her actual or apparent authority; or

(b) by any other person at the direction or with the consent or

agreement (whether express or implied) of an official of the

body, if the giving of the direction, consent or agreement is

within the scope of the actual or apparent authority of the

official;

is taken, for the purposes of this Act and the procedural rules, to

have been engaged in also by the body.

State of mind of a body corporate

(2) If, for the purposes of this Act or the procedural rules, it is

necessary to establish the state of mind of a body corporate in

relation to particular conduct, it is enough to show:

(a) that the conduct was engaged in by a person referred to in

paragraph (1)(a) or (b); and

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(b) that the person had that state of mind.

Meaning of state of mind

(3) The state of mind of a person includes:

(a) the knowledge, intention, opinion, belief or purpose of the

person; and

(b) the person’s reasons for the intention, opinion, belief or

purpose.

Disapplication of Part 2.5 of the Criminal Code

(4) Part 2.5 of Chapter 2 of the Criminal Code does not apply to an

offence against this Act.

Note: Part 2.5 of the Criminal Code deals with corporate criminal

responsibility.

(5) In this section, employee has its ordinary meaning.

794 Signature on behalf of body corporate

For the purposes of this Act, a document may be signed on behalf

of a body corporate by an authorised officer of the body and need

not be made under the body’s seal.

795 Public sector employer to act through employing authority

Employer to act through employing authority

(1) For the purposes of this Act and the procedural rules, the employer

of an employee (a public sector employee) employed in public

sector employment must act only through the employee’s

employing authority acting on behalf of the employer.

Acts done by or to employing authority

(2) For the purposes of this Act and the procedural rules, anything

done by or to a public sector employee’s employing authority

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acting on behalf of the employee’s employer is taken to have been

done by or to the employer (as the case may be).

Application of subsections (1) and (2)

(3) Subsections (1) and (2) apply despite any other law of the

Commonwealth, a State or a Territory.

Meaning of public sector employment

(4) Public sector employment means employment of, or service by, a

person in any capacity (whether permanently or temporarily, and

whether full-time or part-time):

(a) under the Public Service Act 1999 or the Parliamentary

Service Act 1999; or

(b) by or in the service of a Commonwealth authority; or

employment by that Territory, including a law relating to the

Australian Capital Territory Government Service; or

(d) by or in the service of:

(i) an enactment authority as defined by section 3 of the

A.C.T. Self-Government (Consequential Provisions) Act

1988; or

(ii) a body corporate incorporated by or under a law of the

Australian Capital Territory and in which the Australian

Capital Territory has a controlling interest;

other than an authority or body prescribed by the regulations;

(e) under a law of the Northern Territory relating to the Public

Service of the Northern Territory; or

(f) by or in the service of a Northern Territory authority; or

(g) by or in the service of a person prescribed by the regulations;

(h) under a law prescribed by the regulations.

(5) However, public sector employment does not include:

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314 Fair Work Act 2009

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(a) employment of, or service by, a person prescribed by the

regulations; or

(b) employment or service under a law prescribed by the

regulations.

This subsection does not apply for the purposes of section 40.

Note: Section 40 deals with the interaction between fair work instruments

and public sector employment laws.

Meaning of employing authority

(6) An employing authority of an employee is the person prescribed

by the regulations as the employee’s employing authority.

795A The Schedules

The Schedules have effect.

Note: The Schedules contain application, transitional and saving provisions

relating to amendments of this Act.

796 Regulations—general

(1) The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) Regulations made under this Act prevail over procedural rules

made under this Act, to the extent of any inconsistency.

796A Regulations conferring functions

The regulations may confer functions on the following:

(a) the FWC;

(b) the General Manager.

797 Regulations dealing with offences

(1) The regulations may provide for offences against the regulations.

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Section 798

Fair Work Act 2009 315

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(2) The penalties for offences must not be more than 20 penalty units.

798 Regulations dealing with civil penalties

(1) The regulations may provide for civil penalties for contravention of

the regulations.

(2) The penalties for contravention must not be more than:

(a) 20 penalty units for an individual; or

(b) 100 penalty units for a body corporate.

799 Regulations dealing with infringement notices

Infringement notices for offences

(1) The regulations may provide for a person who is alleged to have

committed an offence against the regulations to pay a penalty to

the Commonwealth as an alternative to prosecution.

(2) The penalty must not exceed one-fifth of the maximum penalty

prescribed by the regulations for that offence.

800 Regulations dealing with exhibiting fair work instruments

The regulations may provide for the exhibiting, on the premises of

an employer, of a fair work instrument or a term of a fair work

instrument.

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Schedule 1 Application, saving and transitional provisions relating to amendments of

this Act

Part 1 Amendments made by the Fair Work Amendment (Textile, Clothing and

Footwear Industry) Act 2012

Clause 1

316 Fair Work Act 2009

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Schedule 1—Application, saving and

transitional provisions relating to

amendments of this Act Note: See section 795A.

Part 1—Amendments made by the Fair Work

Amendment (Textile, Clothing and

Footwear Industry) Act 2012

1 Definitions

In this Part:

amended Act means this Act as amended by the amending Act.

amending Act means the Fair Work Amendment (Textile, Clothing

and Footwear Industry) Act 2012.

commencement means the commencement of this Part.

deemed employee means a TCF contract outworker who is taken

by section 789BB of the amended Act to be an employee.

deemed employer means a person who is taken by section 789BB

of the amended Act to be the employer of a deemed employee.

2 Section 789BB of amended Act applies to contracts entered into

after commencement

(1) Section 789BB of the amended Act applies in relation to particular

TCF work performed by a TCF contract outworker only if the

contract for the provision of services, for the purpose of which the

outworker performs the work, is entered into after commencement.

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Industry) Act 2012 Part 1

Clause 3

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(2) Subclause (1) does not prevent regulations made for the purposes

of section 789BC of the amended Act, or clause 7 of this Part, from

dealing with the effect, in relation to a person who is taken by

section 789BB of the amended Act to be an employee, of matters

that occurred before commencement.

3 Effect on TCF contract outworker’s entitlements

Accrued entitlements not affected

(1) The amendments made by the amending Act do not affect any

entitlement that a TCF contract outworker had accrued before

commencement.

Effect of modern award term requiring National Employment

Standards to be applied to TCF contract outworker

(2) To avoid doubt, if:

(a) a term of a modern award requires the principal of a TCF

contract outworker to apply the National Employment

Standards to the outworker as if the outworker were an

employee; and

(b) because of Division 2 of Part 6-4A of the amended Act, the

outworker is taken to be an employee (being a national

system employee) of the principal for the purposes of

Part 2-2 of the amended Act (the National Employment

Standards);

then, to the extent that the term gives the outworker an entitlement

that is the same as an entitlement (the NES entitlement) of the

outworker (as a national system employee) under the National

Employment Standards, the term operates in parallel with the

outworker’s NES entitlement, but not so as to give the outworker a

double benefit.

4 Fair work instruments etc. made before commencement

(1) This clause applies in relation to:

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(a) a fair work instrument made before commencement; or

(b) a transitional instrument as continued in existence by

Schedule 3 to the Transitional Act.

(2) A reference in the instrument to an employee or an employer does

not include a deemed employee or a deemed employer, unless the

instrument is, after commencement, varied to make it clear that the

reference is intended to include a deemed employee or deemed

employer.

(3) This clause is not to be taken to confer a power to vary the

instrument.

5 Application of Division 3 of Part 6-4A of amended Act

For the purposes of Division 3 of Part 6-4A of the amended Act, an

entity is not an indirectly responsible entity in relation to particular

TCF work if the arrangement to which the entity is a party, being

the arrangement because of which the work can be regarded as

being performed indirectly for the entity, was entered into before

commencement.

6 Application of subsection 203(2A) of amended Act

Subsection 203(2A) of the amended Act applies in relation to

enterprise agreements made after commencement.

7 Regulations dealing with various matters

Application, saving and transitional

(1) The regulations may make provisions dealing with matters of an

application, saving or transitional nature relating to the

amendments made by the amending Act.

(2) The provisions of this Part have effect subject to any regulations

that are made for the purpose of subclause (1).

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Application to TCF outworkers of provisions of the Transitional

Act

(3) The regulations may make provisions dealing with how the

Transitional Act applies in relation to TCF outworkers.

(4) Without limiting subclause (3), regulations made for the purposes

of that subclause may:

(a) provide that the Transitional Act applies with specified

modifications; or

(b) otherwise make provision relating to how provisions of that

Act apply.

Retrospective application of regulations

(5) Subsection 12(2) (retrospective application of legislative

instruments) of the Legislation Act 2003 does not apply to

regulations made for the purposes of subclause (1) or (3) of this

clause.

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this Act

Part 2 Amendments made by the Superannuation Legislation Amendment (Further

MySuper and Transparency Measures) Act 2012

Clause 8

320 Fair Work Act 2009

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Part 2—Amendments made by the Superannuation

Legislation Amendment (Further MySuper

and Transparency Measures) Act 2012

8 Definitions

In this Part:

amended Act means this Act as amended by the Superannuation

Legislation Amendment (Further MySuper and Transparency

Measures) Act 2012.

9 Application of sections 149A and 155A of amended Act

Sections 149A and 155A of the amended Act apply in relation to a

modern award that is in operation on or after 1 January 2014,

whether or not the award was made before that day.

10 FWC to vary certain modern awards

(1) This clause applies in relation to a modern award if the award:

(a) is made before 1 January 2014; and

(b) is in operation on that day; and

relevant term) of the kind mentioned in section 149A of the

amended Act.

(2) The FWC must, by 31 December 2013, make a determination

varying the modern award to include the relevant term.

(3) A determination made under subclause (2) comes into operation on

(and takes effect from) 1 January 2014.

(4) Section 168 applies to a determination made under subclause (2) as

if it were a determination made under Part 2-3.

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11 FWC to update text of certain modern awards

(1) This clause applies in relation to a modern award if the award:

(a) is made before 1 January 2014; and

(b) is in operation on that day; and

term) of the kind mentioned in section 155A of the amended

Act that specifies a fund or scheme (a non-complying fund

or scheme) that does not satisfy paragraph (1)(a) or (b) of

that section.

(2) The FWC must ensure that the text of the modern award as

published by the FWC does not include a non-complying fund or

scheme in the relevant term.

(3) The FWC must do so by 1 January 2014 (despite section 155A of

the amended Act).

12 Application of paragraph 194(h) of amended Act

Paragraph 194(h) of the amended Act applies in relation to an

enterprise agreement that is approved by the FWC on or after

1 January 2014.

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Part 3 Amendments made by the Fair Work Amendment (Respect for Emergency

Services Volunteers) Act 2016

Clause 13

322 Fair Work Act 2009

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Part 3—Amendments made by the Fair Work

Amendment (Respect for Emergency

Services Volunteers) Act 2016

13 Definitions

In this Part:

amended Act means this Act as amended by the Fair Work

Amendment (Respect for Emergency Services Volunteers) Act

2016.

commencement means the commencement of this Part.

14 Application of amendments—objectionable emergency

management terms

Application of amendments

(1) The amended Act applies, after commencement, in relation to

enterprise agreements approved, and workplace determinations

made, before or after commencement.

(2) Sections 254A and 281AA of the amended Act apply in relation to

a matter that is before the FWC on or after commencement, even if

the matter was before the FWC before commencement.

Enterprise agreements approved before commencement—

preservation of terms in accordance with amended Act

(3) If an enterprise agreement approved before commencement

includes an objectionable emergency management term, a term of

the agreement has effect after commencement to the extent that:

(a) the term can have effect in accordance with the amended Act;

and

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(b) it would not exceed the Commonwealth’s legislative power

for the term so to have effect.

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Part 4 Amendments made by the Fair Work Amendment (Protecting Vulnerable

Workers) Act 2017

Clause 15

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Part 4—Amendments made by the Fair Work

Amendment (Protecting Vulnerable

Workers) Act 2017

15 Definitions

In this Part:

amended Act means this Act as amended by the Fair Work

Amendment (Protecting Vulnerable Workers) Act 2017.

16 Application of amendments—unreasonable requirements to

spend or pay amounts

Subsections 325(1) and (1A) of the amended Act apply in relation

to requirements made after this clause commences.

17 Saving of regulations—unreasonable deductions

Regulations in force, immediately before the commencement of

this clause, for the purposes of subsection 326(2) of the Fair Work

Act 2009 have effect after that commencement as if they had been

made for the purposes of subsection 326(2) of the amended Act.

18 Application of amendments—increasing maximum penalties for

contraventions of certain civil remedy provisions

(1) Sections 539, 557A and 557B of the amended Act apply in relation

to conduct engaged in on or after the commencement of this Part.

(2) If:

(a) conduct was engaged in by a person before and after that

commencement; and

(b) the conduct is part of a course of conduct referred to in

subsection 557(1);

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the conduct engaged in before that commencement is to be treated

as constituting a separate contravention from the conduct engaged

in after that commencement for the purposes of section 557.

(3) However, a court may still consider a contravention of a civil

remedy provision (whether or not the provision is referred to in

subsection 557(2)) by a person that occurred before the

commencement of this Part for the purposes of determining

whether a person’s conduct was part of a systematic pattern of

conduct referred to in paragraph 557A(1)(b).

19 Application of amendments—responsibility of responsible

franchisor entities and holding companies

(1) Section 558B of the amended Act applies in relation to

contraventions of civil remedy provisions by franchisee entities or

subsidiaries that occur after the end of the period of 6 weeks

beginning on the day this Part commences.

(2) To avoid doubt, in determining for the purposes of

paragraph 558B(1)(d) or (2)(c) of the amended Act whether a

person could reasonably be expected to have had knowledge as

referred to in that paragraph, a court may have regard to conduct

that occurred, or circumstances existing, before the end of the

period referred to in subclause (1).

20 Application of amendments—hindering or obstructing the Fair

Work Ombudsman and inspectors etc.

Section 707A of the amended Act applies in relation to conduct

engaged in at or after the commencement of this Part.

21 Application of power to give FWO notices

Sections 712A to 712F of the amended Act apply in relation to an

FWO notice given after this Part commences, whether the

investigation to which the notice relates is begun before or after the

commencement of this Part.

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this Act

Part 4 Amendments made by the Fair Work Amendment (Protecting Vulnerable

Workers) Act 2017

Clause 22

326 Fair Work Act 2009

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22 Application of amendments relating to self-incrimination etc.

Section 713 of the amended Act applies in relation to information

given, records or documents produced or questions answered after

the commencement of this Part.

23 Application of requirement for reports not to include information

relating to an individual’s affairs

Section 714A of the amended Act applies in relation to reports

prepared after the commencement of this Part.

24 Application of amendments—false or misleading information or

documents

Subsections 535(4) and 536(3) and section 718A of the amended

Act apply in relation to conduct engaged in after the

commencement of this Part.

24A Application of amendments—presumption where records not

provided

Section 557C of the amended Act applies in relation to

contraventions of civil remedy provisions that occur after the

commencement of this Part.

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Schedule 1

Amendments made by the Fair Work Amendment (Repeal of 4 Yearly Reviews and

Other Measures) Act 2018 Part 5

General Division 1

Clause 25

Fair Work Act 2009 327

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Part 5—Amendments made by the Fair Work

Amendment (Repeal of 4 Yearly Reviews

and Other Measures) Act 2018

Division 1—General

25 Definitions

In this Part:

4 yearly review of modern awards has the meaning given by this

Act, as in force immediately before the commencement of

Schedule 1 to the amending Act.

amended Act means this Act as amended by the amending Act.

amending Act means the Fair Work Amendment (Repeal of 4

Yearly Reviews and Other Measures) Act 2018.

Schedule 1 commencement day means the day on which

Schedule 1 to the amending Act commences.

Schedule 2 commencement day means the day on which

Schedule 2 to the amending Act commences.

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this Act

Part 5 Amendments made by the Fair Work Amendment (Repeal of 4 Yearly Reviews

and Other Measures) Act 2018

Division 2 Amendments made by Schedule 1 to the amending Act

Clause 26

328 Fair Work Act 2009

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Division 2—Amendments made by Schedule 1 to the

amending Act

26 Incomplete review of modern award

Scope

(1) This clause applies in relation to a review of a modern award

conducted as part of a 4 yearly review of modern awards if:

(a) the review of the modern award commenced before the

Schedule 1 commencement day; and

(b) immediately before that day, the review of the modern award

had not been completed.

Saving

(2) Despite the repeal of:

(a) Division 4 of Part 2-3 (which deals with 4 yearly reviews of

modern awards); and

(b) paragraph 582(4)(a) (which deals with directions by the

President); and

functions etc. that must be performed by a Full Bench);

by the amending Act, those provisions continue to apply, in

relation to the review of the modern award, as if those repeals had

not happened.

(3) Despite the repeal of paragraph 582(4)(a) (which deals with

directions by the President) by the amending Act, a direction given

by the President to an FWC Member under that paragraph that was

in force immediately before the Schedule 1 commencement day

continues to have effect, in relation to the review of the modern

award, as if that repeal had not happened.

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Amendments made by the Fair Work Amendment (Repeal of 4 Yearly Reviews and

Other Measures) Act 2018 Part 5

Amendments made by Schedule 1 to the amending Act Division 2

Clause 27

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Common issues

(4) For the purposes of this clause, it is immaterial whether the review

of the modern award is conducted in relation to an issue that the

modern award has in common with another modern award.

27 Dismissing applications

(1) On or after the Schedule 1 commencement day, the FWC may

dismiss an application under section 158 to vary, revoke or make a

modern award if the FWC is satisfied that the specific matters in

relation to which the application is made were dealt with, or are

being dealt with, in a 4 yearly review of modern awards.

Note: For another power of the FWC to dismiss applications under

section 158, see section 587.

(2) This clause does not limit when the FWC may dismiss an

application under section 158.

Sunset provision

(3) This clause ceases to have effect at the end of 2 years after the

Schedule 1 commencement day.

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this Act

Part 5 Amendments made by the Fair Work Amendment (Repeal of 4 Yearly Reviews

and Other Measures) Act 2018

Division 3 Amendments made by Schedule 2 to the amending Act

Clause 28

330 Fair Work Act 2009

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Division 3—Amendments made by Schedule 2 to the

amending Act

28 Application of amendments—when employees have genuinely

agreed to an enterprise agreement

(1) The amendments of section 188 of this Act made by Schedule 2 to

the amending Act apply in relation to an application made under

section 185 of this Act for approval of an enterprise agreement if

the application is made:

(a) on or after the Schedule 2 commencement day; or

(b) before the Schedule 2 commencement day, if circumstances

covered by subclause (2) apply.

(2) The circumstances covered by this subclause are:

(a) on or before the Schedule 2 commencement day, the FWC

had neither approved, nor refused to approve, the enterprise

agreement; or

(b) before the Schedule 2 commencement day:

(i) the FWC approved, or refused to approve, the enterprise

agreement; and

(ii) an application was made under section 604 for an

appeal against the decision to approve, or refuse to

approve, the enterprise agreement; and

(iii) the FWC had not yet made a final decision on the

appeal; or

(i) within 21 days before the Schedule 2 commencement

day, the FWC approved, or refused to approve, the

enterprise agreement;

(ii) immediately before the Schedule 2 commencement day,

an application had not been made under section 604 for

an appeal against the decision to approve, or refuse to

approve, the enterprise agreement;

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Other Measures) Act 2018 Part 5

Amendments made by Schedule 2 to the amending Act Division 3

Clause 28

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(iii) within 21 days after the FWC approved, or refused to

approve, the enterprise agreement, an application is

made under section 604 for an appeal against that

decision.

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this Act

Part 5 Amendments made by the Fair Work Amendment (Repeal of 4 Yearly Reviews

and Other Measures) Act 2018

Division 4 Amendments made by Schedule 3 to the amending Act

Clause 29

332 Fair Work Act 2009

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Division 4—Amendments made by Schedule 3 to the

amending Act

29 Application of section 641B of the amended Act

Section 641B of the amended Act applies in relation to alleged

misbehaviour or incapacity of an FWC Member occurring before

or after the commencement of Schedule 3 to the amending Act.

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Schedule 1

Amendments made by the Fair Work Amendment (Corrupting Benefits) Act 2017 Part

Clause 30

Fair Work Act 2009 333

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Part 6—Amendments made by the Fair Work

Amendment (Corrupting Benefits) Act

2017

30 Disclosure by organisations and employers

The amendments of Subdivision A of Division 4 of Part 2-4 made

by Schedule 2 to the Fair Work Amendment (Corrupting Benefits)

Act 2017 apply in relation to a proposed enterprise agreement for

which the access period under subsection 180(4) begins on or after

the commencement of this Part.

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this Act

Part 8 Amendments made by the Fair Work Amendment (Family and Domestic

Violence Leave) Act 2018

Clause 39

334 Fair Work Act 2009

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Part 8—Amendments made by the Fair Work

Amendment (Family and Domestic

Violence Leave) Act 2018

39 Entitlement to unpaid family and domestic violence leave

(1) Subdivision CA of Division 7 of Part 2-2, as inserted by the Fair

Work Amendment (Family and Domestic Violence Leave) Act

2018, applies in relation to an employee whose employment started

before the commencement of that Act as if the period:

(a) starting on that commencement; and

(b) ending on the first day after that commencement that is an

anniversary of the day the employment started;

were a 12 month period.

(2) For the purposes of this clause, if an employee is employed by a

particular employer:

(a) as a casual employee; or

(b) for a specified period of time, for a specified task or for the

duration of a specified season;

the start of the employee’s employment is taken to be the start of

the employee’s first employment with that employer.

40 Resolving uncertainties and difficulties about interaction between

enterprise agreements and unpaid family and domestic

violence leave

(1) On application by an employer, employee or employee

organisation covered by an enterprise agreement that was made

before the commencement of the Fair Work Amendment (Family

and Domestic Violence Leave) Act 2018, the FWC may make a

determination varying the agreement:

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Leave) Act 2018 Part 8

Clause 40

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(a) to resolve an uncertainty or difficulty relating to the

interaction between the agreement and the following (the

unpaid family and domestic violence leave provisions):

(i) the provisions of Subdivision CA of Division 7 of

Part 2-2;

(ii) section 107, to the extent that it relates to taking leave

under that Subdivision; or

(b) to make the agreement operate effectively with the unpaid

family and domestic violence leave provisions.

(2) A variation of an enterprise agreement under this clause operates

from the day specified in the determination, which may be a day

before the determination is made.

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Schedule 2 Amendments made by the Fair Work Amendment (Transfer of Business)

Act 2012

Clause 1

336 Fair Work Act 2009

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Schedule 2—Amendments made by the Fair

Work Amendment (Transfer of

Business) Act 2012 Note: See section 795A.

1 Definitions

In this Schedule:

amending Act means the Fair Work Amendment (Transfer of

Business) Act 2012.

commencement means the commencement of this Schedule.

2 Application of the amendments made by the amending Act

The amendments made by the amending Act apply in relation to a

transfer of business referred to in Part 6-3A (as inserted by item 1

of Schedule 1 to the amending Act), but only if the connection

between the old State employer and the new employer referred to

in paragraph 768AD(1)(d) (as inserted by that item) occurs on or

after commencement.

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Preliminary Part 1

Clause 1

Fair Work Act 2009 337

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Schedule 3—Amendments made by the Fair

Work Amendment Act 2012 Note: See section 795A.

Part 1—Preliminary

1 Definitions

In this Schedule:

amending Act means the Fair Work Amendment Act 2012.

doing a thing includes making an instrument.

FWA (short for Fair Work Australia) means the body referred to in

section 575, as in force immediately before the commencement of

Part 1 of Schedule 9 to the amending Act.

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Schedule 3 Amendments made by the Fair Work Amendment Act 2012

Part 2 Default superannuation (Schedule 1)

Clause 2

338 Fair Work Act 2009

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Part 2—Default superannuation (Schedule 1)

2 Schedule 1 to the amending Act

(1) Section 149B, subsection 149C(1) and section 149D (as inserted by

Schedule 1 to the amending Act) apply in relation to a modern

award that:

(a) is made on or after 1 January 2014; or

(b) is made before 1 January 2014 and that is varied on or after

that day under Division 4A of Part 2-3 (as inserted by

Schedule 1 to the amending Act).

(2) Despite the repeal of sections 149A and 155A made by Schedule 1

to the amending Act, those sections continue in force in relation to

a modern award that:

(a) is made before 1 January 2014; and

(b) is not varied on or after that day under Division 4A of

Part 2-3 (as inserted by Schedule 1 to the amending Act).

(3) The amendments made by items 15, 18, 19 and 20 of Schedule 1 to

the amending Act apply in relation to a modern award that is in

operation on or after 1 January 2014, whether or not the award was

made before that day.

2A Transitional provision—when first variations of default fund

term take effect

(1) This clause applies to the first 4 yearly review of default fund

terms of modern awards under Division 4A of Part 2-3 (as inserted

by Schedule 1 to the amending Act).

(2) In the review, determinations under that Division (whether made

under section 156H or 156J) varying the default fund term of a

modern award:

(a) must take effect at the same time; and

(b) must not take effect before 1 January 2015.

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Clause 2B

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2B Transitional provision—modern awards made on or after

1 January 2014

If a modern award is made in the period that starts on 1 January

2014 and ends on 31 December 2017, then, until the default fund

term of the award is varied after that period under Division 4A of

Part 2-3 (as inserted by Schedule 1 to the amending Act), this Act

has effect in relation to the award as if subsection 149D(1A) (as

inserted by that Schedule) were as follows:

Superannuation funds offering employer MySuper products

(1A) A default fund term of a modern award must permit an employer

covered by the award to make contributions, for the benefit of a

default fund employee, to a superannuation fund that offers an

employer MySuper product that relates to the employer.

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Schedule 3 Amendments made by the Fair Work Amendment Act 2012

Part 3 Modern awards (Schedule 3)

Clause 3

340 Fair Work Act 2009

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Part 3—Modern awards (Schedule 3)

3 Part 1 of Schedule 3 to the amending Act

(1) This clause applies if, before the commencement of Part 1 of

Schedule 3 to the amending Act (which is about variation etc. of

modern awards):

(a) a determination was made under subsection 160(1) (about

varying a modern award); or

(b) an application was made under subsection 160(2) (about

varying a modern award).

(2) The determination and the application are as valid, and are taken

always to have been as valid, as they would have been if

paragraphs 160(2)(c) and (d) (as inserted by Part 1 of Schedule 3 to

the amending Act) had been in force at the time the determination

or application was made.

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Amendments made by the Fair Work Amendment Act 2012 Schedule 3

Enterprise agreements (Schedule 4) Part 4

Clause 4

Fair Work Act 2009 341

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Part 4—Enterprise agreements (Schedule 4)

4 Part 1 of Schedule 4 to the amending Act

The amendment made by Part 1 of Schedule 4 to the amending Act

(which is about enterprise agreements covering a single employee)

applies in relation to enterprise agreements that are purportedly

made after the commencement of that Part.

5 Part 2 of Schedule 4 to the amending Act

The amendments made by Part 2 of Schedule 4 to the amending

Act (which is about bargaining representatives) apply in relation to

appointments of bargaining representatives that are made after the

commencement of that Part.

6 Part 3 of Schedule 4 to the amending Act

(1) The amendment made by Part 3 of Schedule 4 to the amending Act

(which is about unlawful terms) applies in relation to enterprise

agreements that are made before or after the commencement of that

Part.

(2) However, if:

(a) an enterprise agreement that was made before the

commencement of that Part included a term referred to in

paragraph 194(ba) (as inserted by Part 3 of Schedule 4 to the

amending Act); and

(b) a person made an election in accordance with that term

before the commencement of that Part;

then the amendment does not apply in relation to that person.

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Part 4 Enterprise agreements (Schedule 4)

Clause 7

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7 Part 4 of Schedule 4 to the amending Act

The amendment made by Part 4 of Schedule 4 to the amending Act

(which is about scope orders) applies in relation to applications for

a scope order that are made after the commencement of that Part.

8 Part 5 of Schedule 4 to the amending Act

(1) The amendments made by Part 5 of Schedule 4 to the amending

Act (which is about notice of employee representational rights)

apply in relation to notices of employee representational rights that

are given after the commencement of that Part.

(2) Regulations that:

(a) were made for the purposes of subsection 174(6) before the

commencement of Part 5 of Schedule 4 to the amending Act;

and

(b) were in force immediately before that commencement;

continue in force (and may be dealt with) after that commencement

as if they had been made for the purposes of subsection 174(1A)

(as inserted by Part 5 of Schedule 4 to the amending Act).

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General protections (Schedule 5) Part 5

Clause 9

Fair Work Act 2009 343

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Part 5—General protections (Schedule 5)

9 Part 1 of Schedule 5 to the amending Act

The amendment made by Part 1 of Schedule 5 to the amending Act

(which is about time limits for making applications) applies in

relation to dismissals that take effect after the commencement of

that Part.

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Part 6 Unfair dismissal (Schedule 6)

Clause 10

344 Fair Work Act 2009

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Part 6—Unfair dismissal (Schedule 6)

10 Part 1 of Schedule 6 to the amending Act

The amendment made by Part 1 of Schedule 6 to the amending Act

(which is about time limits for making applications) applies in

relation to dismissals that take effect after the commencement of

that Part.

11 Part 2 of Schedule 6 to the amending Act

The amendments made by Part 2 of Schedule 6 to the amending

Act (which is about the power to dismiss applications) apply in

relation to dismissals that take effect after the commencement of

that Part.

12 Part 3 of Schedule 6 to the amending Act

The amendments made by Part 3 of Schedule 6 to the amending

Act (which is about costs orders against parties) apply in relation to

dismissals that take effect after the commencement of that Part.

13 Part 4 of Schedule 6 to the amending Act

The amendment made by Part 4 of Schedule 6 to the amending Act

(which is about costs orders against lawyers and paid agents)

applies in relation to dismissals that take effect after the

commencement of that Part.

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Industrial action (Schedule 7) Part 7

Clause 14

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Part 7—Industrial action (Schedule 7)

14 Part 1 of Schedule 7 to the amending Act

The amendments made by Part 1 of Schedule 7 to the amending

Act (which is about electronic voting in protected action ballots)

apply in relation to applications for protected action ballot orders

that are made after the commencement of that Part.

15 Part 2 of Schedule 7 to the amending Act

The amendments made by Part 2 of Schedule 7 to the amending

Act (which is about employees to be balloted in protected action

ballots) apply in relation to applications for protected action ballot

orders that are made after the commencement of that Part.

16 Part 3 of Schedule 7 to the amending Act

The amendments made by Part 3 of Schedule 7 to the amending

Act (which is about conducting protected action ballots) apply in

relation to protected action ballot orders that are made after the

commencement of that Part.

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Part 8 The Fair Work Commission (Schedule 8)

Clause 17

346 Fair Work Act 2009

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Part 8—The Fair Work Commission (Schedule 8)

17 Part 1 of Schedule 8 to the amending Act

The amendment made by Part 1 of Schedule 8 to the amending Act

(which is about stay orders) applies in relation to orders under

subsection 606(1) that are made after the commencement of that

Part.

18 Part 2 of Schedule 8 to the amending Act

The amendments made by Part 2 of Schedule 8 to the amending

Act (which is about conflicts of interest) apply in relation to

matters that an FWC member begins to deal with before or after

the commencement of that Part.

19 Part 4 of Schedule 8 to the amending Act

The amendments made by Part 4 of Schedule 8 to the amending

Act (which is about appointing acting Commissioners) apply in

relation to appointments that are made after the commencement of

that Part.

20 Part 5 of Schedule 8 to the amending Act

The amendments made by Part 5 of Schedule 8 to the amending

Act (which is about appointing the General Manager) apply in

relation to appointments and acting appointments that are made

after the commencement of that Part.

21 Part 6 of Schedule 8 to the amending Act

The amendments made by Part 6 of Schedule 8 to the amending

Act (which is about Vice Presidents) apply in relation to

appointments that take effect after the commencement of that Part.

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The Fair Work Commission (Schedule 8) Part 8

Clause 22

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22 Part 7 of Schedule 8 to the amending Act

The amendments made by Part 7 of Schedule 8 to the amending

Act (which is about handling complaints) apply after the

commencement of that Part in relation to a complaint about an

FWC Member, regardless of whether:

(a) the complaint is made before or after that commencement; or

(b) the circumstances that give rise to the complaint occur before

or after that commencement.

23 Part 8 of Schedule 8 to the amending Act

The amendments made by Part 8 of Schedule 8 to the amending

Act (which is about engaging in outside work) apply in relation to

paid work that is engaged in after the commencement of that Part.

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Schedule 3 Amendments made by the Fair Work Amendment Act 2012

Part 9 Changing the name of Fair Work Australia (Schedule 9)

Clause 24

348 Fair Work Act 2009

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Part 9—Changing the name of Fair Work Australia

(Schedule 9)

24 Transitional provision—President

(1) The person holding office as the President of FWA immediately

before the commencement of Part 1 of Schedule 9 to the amending

Act continues to hold office as the President of the FWC.

(2) If, before that commencement, a thing was done by, or in relation

to, the President of FWA, then, for the purposes of the operation of

any law on or after that commencement, the thing is taken to have

been done by, or in relation to, the President of the FWC.

(3) For the purposes of subclause (2), a thing done before that

commencement under a provision amended by Part 1, 2 or 3 of

Schedule 9 to the amending Act has effect from that

commencement as if it were done under that provision as amended.

However, this is not taken to change the time at which the thing

was actually done.

(4) The Minister may, by writing, determine that subclause (2):

(a) does not apply in relation to a specified thing done by, or in

relation to, the President of FWA; or

(b) applies as if the reference in that subclause to the President of

the FWC were a reference to the FWC; or

the FWC were a reference to another FWC member.

A determination under this subclause has effect accordingly.

(5) A determination made under subclause (4) is not a legislative

instrument.

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25 Transitional provision—Deputy President

(1) Subject to subclause (2), a person holding office as a Deputy

President of FWA immediately before the commencement of

Part 1 of Schedule 9 to the amending Act continues to hold office

as a Deputy President of the FWC.

(2) If, immediately before that commencement, a person:

(a) is a member of a prescribed State industrial authority; and

(b) holds office as a Deputy President of FWA;

the person continues to hold office as a Deputy President of the

FWC for the balance of the person’s term of appointment that

remains immediately before that commencement.

(3) If, before that commencement, a thing was done by, or in relation

to, a Deputy President of FWA, then, for the purposes of the

operation of any law on or after that commencement, the thing is

taken to have been done by, or in relation to, a Deputy President of

the FWC.

(4) For the purposes of subclause (3), a thing done before that

commencement under a provision amended by Part 1, 2 or 3 of

Schedule 9 to the amending Act has effect from that

commencement as if it were done under that provision as amended.

However, this is not taken to change the time at which the thing

was actually done.

(5) The Minister may, by writing, determine that subclause (3):

(a) does not apply in relation to a specified thing done by, or in

relation to, a Deputy President of FWA; or

(b) applies as if the reference in that subclause to the Deputy

President of the FWC were a reference to the FWC; or

President of the FWC were a reference to another FWC

member.

A determination under this subclause has effect accordingly.

(6) A determination made under subclause (5) is not a legislative

instrument.

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Part 9 Changing the name of Fair Work Australia (Schedule 9)

Clause 26

350 Fair Work Act 2009

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26 Transitional provision—Commissioner

(1) Subject to subclause (2), a person holding office as a

Commissioner of FWA immediately before the commencement of

Part 1 of Schedule 9 to the amending Act continues to hold office

as a Commissioner of the FWC.

(2) If, immediately before that commencement, a person:

(a) is a member of a prescribed State industrial authority; and

(b) holds office as a Commissioner of FWA;

the person continues to hold office as a Commissioner of the FWC

for the balance of the person’s term of appointment that remains

immediately before that commencement.

(3) If, before that commencement, a thing was done by, or in relation

to, a Commissioner of FWA, then, for the purposes of the

operation of any law on or after that commencement, the thing is

taken to have been done by, or in relation to, a Commissioner of

the FWC.

(4) For the purposes of subclause (3), a thing done before that

commencement under a provision amended by Part 1, 2 or 3 of

Schedule 9 to the amending Act has effect from that

commencement as if it were done under that provision as amended.

However, this is not taken to change the time at which the thing

was actually done.

(5) The Minister may, by writing, determine that subclause (3):

(a) does not apply in relation to a specified thing done by, or in

relation to, a Commissioner of FWA; or

(b) applies as if the reference in that subclause to a

Commissioner of the FWC were a reference to the FWC; or

Commissioner of the FWC were a reference to another FWC

member.

A determination under this subclause has effect accordingly.

(6) A determination made under subclause (5) is not a legislative

instrument.

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Amendments made by the Fair Work Amendment Act 2012 Schedule 3

Changing the name of Fair Work Australia (Schedule 9) Part 9

Clause 27

Fair Work Act 2009 351

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27 Transitional provision—Minimum Wage Panel Member

(1) A person holding office as a Minimum Wage Panel Member of

FWA immediately before the commencement of Part 1 of

Schedule 9 to the amending Act continues to hold office:

(a) as a Minimum Wage Panel Member of the FWC; and

(b) for the balance of the person’s term of appointment that

remains immediately before that commencement.

(2) If, before that commencement, a thing was done by, or in relation

to, a Minimum Wage Panel Member of FWA, then, for the

purposes of the operation of any law on or after that

commencement, the thing is taken to have been done by, or in

relation to, a Minimum Wage Panel Member of the FWC.

(3) For the purposes of subclause (2), a thing done before that

commencement under a provision amended by Part 1, 2 or 3 of

Schedule 9 to the amending Act has effect from that

commencement as if it were done under that provision as amended.

However, this is not taken to change the time at which the thing

was actually done.

(4) The Minister may, by writing, determine that subclause (2):

(a) does not apply in relation to a specified thing done by, or in

relation to, a Minimum Wage Panel Member of FWA; or

(b) applies as if the reference in that subclause to a Minimum

Wage Panel Member of the FWC were a reference to the

FWC; or

Wage Panel Member of the FWC were a reference to another

FWC member.

A determination under this subclause has effect accordingly.

(5) A determination made under subclause (4) is not a legislative

instrument.

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Schedule 3 Amendments made by the Fair Work Amendment Act 2012

Part 9 Changing the name of Fair Work Australia (Schedule 9)

Clause 28

352 Fair Work Act 2009

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28 Operation of laws—things done by, or in relation to, FWA

(1) If, before the commencement of Part 1 of Schedule 9 to the

amending Act, a thing was done by, or in relation to, FWA, then,

for the purposes of the operation of any law on or after that

commencement, the thing is taken to have been done by, or in

relation to, the FWC.

(2) For the purposes of subclause (1), a thing done before that

commencement under a provision amended by Part 1, 2 or 3 of

Schedule 9 to the amending Act has effect from that

commencement as if it were done under that provision as amended.

However, this is not taken to change the time at which the thing

was actually done.

(3) The Minister may, by writing, determine that subclause (1):

(a) does not apply in relation to a specified thing done by, or in

relation to, FWA; or

(b) applies as if the reference in that subclause to the FWC were

a reference to the President of the FWC; or

a reference to another FWC member.

A determination under this subclause has effect accordingly.

(4) A determination made under subclause (3) is not a legislative

instrument.

29 Transitional provision—General Manager and staff of FWA

General Manager

(1) The person holding office as the General Manager of FWA

immediately before the commencement of Part 1 of Schedule 9 to

the amending Act continues to hold office:

(a) as the General Manager of the FWC; and

(b) for the balance of the person’s term of appointment that

remains immediately before that commencement.

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Changing the name of Fair Work Australia (Schedule 9) Part 9

Clause 30

Fair Work Act 2009 353

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(2) If, before that commencement, a thing was done by, or in relation

to, the General Manager of FWA, then, for the purposes of the

operation of any law on or after that commencement, the thing is

taken to have been done by, or in relation to, the General Manager

of the FWC.

(3) For the purposes of subclause (2), a thing done before that

commencement under a provision amended by Part 1, 2 or 3 of

Schedule 9 to the amending Act has effect from that

commencement as if it were done under that provision as amended.

However, this is not taken to change the time at which the thing

was actually done.

(4) The Minister may, by writing, determine that subclause (2):

(a) does not apply in relation to a specified thing done by, or in

relation to, the General Manager of FWA; or

(b) applies as if the reference in that subclause to the General

Manager of the FWC were a reference to the

Commonwealth.

A determination under this subclause has effect accordingly.

(5) A determination made under subclause (4) is not a legislative

instrument.

Staff

(6) A person who, immediately before that commencement, was a

member of the staff of FWA, continues, on and after that

commencement, as a member of the staff of the FWC.

30 Operation of section 7 and subsection 25B(1) of the Acts

Interpretation Act 1901 not limited

This Part and Schedule 9 to the amending Act do not limit the

operation of section 7 or subsection 25B(1) of the Acts

Interpretation Act 1901.

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Schedule 3 Amendments made by the Fair Work Amendment Act 2012

Part 10 Other amendments (Schedule 10)

Clause 31

354 Fair Work Act 2009

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Part 10—Other amendments (Schedule 10)

31 Part 1 of Schedule 10 to the amending Act

The amendment made by Part 1 of Schedule 10 to the amending

Act (which is about costs orders in court proceedings) applies in

relation to proceedings commenced after the commencement of

that Part.

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Amendments made by the Fair Work Amendment Act 2012 Schedule 3

Regulations Part 11

Clause 32

Fair Work Act 2009 355

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Part 11—Regulations

32 Regulations about application, transitional and saving matters

(1) The regulations may prescribe matters of an application,

transitional or saving nature relating to the amendments and

repeals made by the amending Act.

(2) Without limiting subclause (1), the regulations may:

(a) provide that Part 9 of this Schedule or Part 4 of Schedule 9 to

the amending Act applies with specified modifications; or

(b) provide that the Transitional Act applies with specified

modifications.

(3) The provisions referred to in subclause (2) have effect subject to

regulations made for the purposes of this clause.

(4) Subsection 12(2) (retrospective application of legislative

instruments) of the Legislation Act 2003 does not apply to:

(a) regulations relating to the amendments and repeals made by

Schedule 9 to the amending Act; and

(b) regulations made for the purposes of subclause (2).

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Schedule 4 Amendments made by the Fair Work Amendment Act 2013

Part 1 Preliminary

Clause 1

356 Fair Work Act 2009

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Schedule 4—Amendments made by the Fair

Work Amendment Act 2013 Note: See section 795A.

Part 1—Preliminary

1 Definition

In this Schedule:

amending Act means the Fair Work Amendment Act 2013.

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Amendments made by the Fair Work Amendment Act 2013 Schedule 4

Family-friendly measures (Schedule 1) Part 2

Clause 2

Fair Work Act 2009 357

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Part 2—Family-friendly measures (Schedule 1)

2 Part 1 of Schedule 1 to the amending Act

The amendments made by Part 1 of Schedule 1 to the amending

Act apply in relation to a period of unpaid special maternity leave

that starts after the commencement of that Part.

3 Part 2 of Schedule 1 to the amending Act

The amendments made by Part 2 of Schedule 1 to the amending

Act apply in relation to the taking of unpaid parental leave by

members of an employee couple if the first taking of leave by

either member of the employee couple occurs after the

commencement of that Part.

4 Part 3 of Schedule 1 to the amending Act

The amendments made by Part 3 of Schedule 1 to the amending

Act apply in relation to a request that is made under

subsection 65(1) after the commencement of that Part.

5 Part 4 of Schedule 1 to the amending Act

Application of amendments

(1) The amendment made by item 19 of Schedule 1 to the amending

Act applies in relation to a modern award that is in operation on or

after 1 January 2014, whether or not the award was made before

that day.

(2) The amendments made by items 20 and 21 of Schedule 1 to the

amending Act apply in relation to an enterprise agreement that is

made after the commencement of Part 4 of that Schedule.

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Schedule 4 Amendments made by the Fair Work Amendment Act 2013

Part 2 Family-friendly measures (Schedule 1)

Clause 6

358 Fair Work Act 2009

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Transitional provision

(3) If:

(a) a modern award is made before 1 January 2014; and

(b) the modern award is in operation on that day; and

include a term (the relevant term) of the kind mentioned in

section 145A (as inserted by item 19 of Schedule 1 to the

amending Act);

then the FWC must, by 31 December 2013, make a determination

varying the modern award to include the relevant term.

(4) A determination made under subclause (3) comes into operation on

(and takes effect from) 1 January 2014.

(5) Section 168 applies to a determination made under subclause (3) as

if it were a determination made under Part 2-3.

6 Part 5 of Schedule 1 to the amending Act

The amendments made by Part 5 of Schedule 1 to the amending

Act apply in relation to evidence that is given under section 81

after the commencement of that Part.

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Amendments made by the Fair Work Amendment Act 2013 Schedule 4

Modern awards objective (Schedule 2) Part 3

Clause 7

Fair Work Act 2009 359

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Part 3—Modern awards objective (Schedule 2)

7 Schedule 2 to the amending Act

The amendment made by Schedule 2 to the amending Act applies

in relation to a modern award that is made or varied after the

commencement of that Schedule.

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Schedule 4 Amendments made by the Fair Work Amendment Act 2013

Part 4 Anti-bullying measure (Schedule 3)

Clause 8

360 Fair Work Act 2009

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Part 4—Anti-bullying measure (Schedule 3)

8 Schedule 3 to the amending Act

The amendments made by Schedule 3 to the amending Act apply

in relation to an application that is made under section 789FC (as

inserted by item 6 of that Schedule) after the commencement of

that Schedule.

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Amendments made by the Fair Work Amendment Act 2013 Schedule 4

Conferences (Schedule 3A) Part 4A

Clause 8A

Fair Work Act 2009 361

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Part 4A—Conferences (Schedule 3A)

8A Schedule 3A to the amending Act

The amendments made by Schedule 3A to the amending Act apply

in relation to a matter that arises before or after the commencement

of that Schedule, whether or not a conference starts to be

conducted in relation to the matter before or after that

commencement.

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Schedule 4 Amendments made by the Fair Work Amendment Act 2013

Part 5 Right of entry (Schedule 4)

Clause 9

362 Fair Work Act 2009

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Part 5—Right of entry (Schedule 4)

9 Schedule 4 to the amending Act

Application of amendment relating to sections 492 and 492A

(1) The amendment made by item 7 of Schedule 4 to the amending Act

applies in relation to interviews conducted and discussions held

after the commencement of that item.

Application of amendments relating to section 505A

(2) The amendments made by items 12 and 13 of Schedule 4 to the

amending Act apply in relation to the frequency of entry after the

commencement of those items.

Application of amendments relating to accommodation

arrangements and transport arrangements

(3) The amendments made by items 14 and 15 of Schedule 4 to the

amending Act do not apply in relation to arrangements entered into

before the commencement of those items.

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Amendments made by the Fair Work Amendment Act 2013 Schedule 4

Consent arbitration for general protections and unlawful termination (Schedule 4A)

Part 6

Clause 10

Fair Work Act 2009 363

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Part 6—Consent arbitration for general protections

and unlawful termination (Schedule 4A)

10 Schedule 4A to the amending Act

(1) The amendments made by Part 1 of Schedule 4A to the amending

Act apply in relation to dismissals that take effect after the

commencement of that Schedule.

(2) The amendments made by Part 2 of Schedule 4A to the amending

Act apply in relation to employment that is terminated after the

commencement of that Schedule.

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Schedule 4 Amendments made by the Fair Work Amendment Act 2013

Part 7 The FWC (Schedule 5)

Clause 11

364 Fair Work Act 2009

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Part 7—The FWC (Schedule 5)

11 Item 4 of Schedule 5 to the amending Act

The amendment made by item 4 of Schedule 5 to the amending Act

applies in relation to an appointment made after the

commencement of that Schedule.

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Amendments made by the Fair Work Amendment Act 2015 Schedule 5

Clause 1

Fair Work Act 2009 365

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Schedule 5—Amendments made by the Fair

Work Amendment Act 2015 Note: See section 795A.

1 Definition

In this Schedule:

amending Act means the Fair Work Amendment Act 2015.

2 Part 1 of Schedule 1 to the amending Act

The amendment made by Part 1 of Schedule 1 to the amending Act

applies in relation to a request made after the commencement of

that Part.

9 Part 5 of Schedule 1 to the amending Act

The amendments made by Part 5 of Schedule 1 to the amending

Act, so far as they concern proposed enterprise agreements, apply

in relation to a proposed enterprise agreement if an employer

agrees to bargain for the proposed enterprise agreement after the

commencement of that Part.

11 Part 7 of Schedule 1 to the amending Act

The amendment of section 437 made by Part 7 of Schedule 1 to the

amending Act applies in relation to an application made under that

section, if the application was made after the commencement of

that Part.

14 Part 10 of Schedule 1 to the amending Act

Paragraph 559(3A)(c) applies in relation to an amount that was

paid to the Commonwealth under subsection 559(1) after the

commencement of Part 10 of Schedule 1 to the amending Act.

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Endnotes

Endnote 1—About the endnotes

366 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that

has amended (or will amend) the compiled law. The information includes

commencement details for amending laws and details of any application, saving

or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at

the provision (generally section or equivalent) level. It also includes information

about any provision of the compiled law that has been repealed in accordance

with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make

editorial and presentational changes to a compiled law in preparing a

compilation of the law for registration. The changes must not change the effect

of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief

outline of the changes in general terms. Full details of any changes can be

obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe

the amendment to be made. If, despite the misdescription, the amendment can

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Endnotes

Endnote 1—About the endnotes

Fair Work Act 2009 367

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

be given effect as intended, the amendment is incorporated into the compiled

law and the abbreviation “(md)” added to the details of the amendment included

in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the

abbreviation “(md not incorp)” is added to the details of the amendment

included in the amendment history.

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Endnotes

Endnote 2—Abbreviation key

368 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Endnote 2—Abbreviation key

ad = added or inserted o = order(s)

am = amended Ord = Ordinance

amdt = amendment orig = original

c = clause(s) par = paragraph(s)/subparagraph(s)

C[x] = Compilation No. x /sub-subparagraph(s)

Ch = Chapter(s) pres = present

def = definition(s) prev = previous

Dict = Dictionary (prev…) = previously

disallowed = disallowed by Parliament Pt = Part(s)

Div = Division(s) r = regulation(s)/rule(s)

ed = editorial change reloc = relocated

exp = expires/expired or ceases/ceased to have renum = renumbered

effect rep = repealed

F = Federal Register of Legislation rs = repealed and substituted

gaz = gazette s = section(s)/subsection(s)

LA = Legislation Act 2003 Sch = Schedule(s)

LIA = Legislative Instruments Act 2003 Sdiv = Subdivision(s)

(md) = misdescribed amendment can be given SLI = Select Legislative Instrument

effect SR = Statutory Rules

(md not incorp) = misdescribed amendment Sub-Ch = Sub-Chapter(s)

cannot be given effect SubPt = Subpart(s)

mod = modified/modification underlining = whole or part not

No. = Number(s) commenced or to be commenced

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Endnotes

Endnote 3—Legislation history

Fair Work Act 2009 369

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Endnote 3—Legislation history

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Fair Work Act 2009 28, 2009 7 Apr 2009 s 3–40: 26 May 2009

(s 2(1) item 2)

s 41–43, 50–54, 58, 169–

281A, 300–327, 332,

333, 334–572, 719–740

and 769–800: 1 July

2009 (s 2(1) items 3, 5)

s 44–49, 55–57A, 59–

168, 282–299, 328–331,

333A and 741–768: 1

Jan 2010 (s 2(1) items 3,

s 573–718 and Sch 1:

26 May 2009 (s 2(1)

items 4, 6)

Remainder: 7 Apr 2009

(s 2(1) item 1)

Fair Work (State

Referral and

Consequential and Other

Amendments) Act 2009

54, 2009 25 June

2009

Sch 1 (items 1–12) and

Sch 3: 25 June 2009

(s 2(1) items 2–4, 9)

Sch 2 (items 52–63),

Sch 5 (items 67–72, 80)

and Sch 12 (items 1–3):

1 Jan 2009 (s 2(1)

items 8, 15–18, 34)

Sch 5 (items 81, 82):

5 Aug 2009 (s 2(1)

items 19, 20)

Sch 20

as amended by

Statute Law Revision

Act 2012

136, 2012 22 Sept

2012

Sch 2 (item 14): 1 July

2009 (s 2(1) item 14)

—

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Endnotes

Endnote 3—Legislation history

370 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Fair Work (Transitional

Provisions and

Consequential

Amendments) Act 2009

55, 2009 25 June

2009

Sch 6 (items 18–28) and

Sch 23 (items 3–7):

1 Jan 2010 (s 2(1)

items 4, 10, 11)

Sch 18 (items 21, 21A–

21G, 22), Sch 22

(items 92–95, 405, 583,

584) and Sch 23

(items 1–2E, 8–22):

1 July 2009 (s 2(1)

items 5, 8, 9, 12–16)

Act No 55, 2009

(as amended)

Disability

Discrimination and

Other Human Rights

Legislation Amendment

Act 2009

70, 2009 8 July 2009 Sch 3 (items 111–114):

1 Jan 2010 (s 2(1)

item 8)

—

Fair Work Amendment

(State Referrals and

Other Measures) Act

2009

124, 2009 9 Dec 2009 Sch 1 (items 1–6, 8–12,

14, 15, 17–41), Sch 3

(items 1A, 4–17) and

Sch 2 (items 125–132):

1 Jan 2010 (s 2(1)

items 2, 4, 6, 8, 10, 11,

13)

Sch 1 (item 7) and Sch 3

(items 1–3): 15 Dec

2009 (s 2(1) items 3, 13)

Sch 1 (items 13, 16):

29 June 2009 (s 2(1)

item 5, 7)

Sch 1 (item 42): 9 Dec

2009 (s 2(1) item 9)

Sch 1 (item 42)

Freedom of Information

Amendment (Reform)

Act 2010

51, 2010 31 May

2010

Sch 5 (item 34): 1 Nov

2010 (s 2(1) item 7)

—

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Endnote 3—Legislation history

Fair Work Act 2009 371

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Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Sex and Age

Discrimination

Legislation Amendment

Act 2011

40, 2011 20 June

2011

Sch 2 (items 11–13):

29 July 2011 (see

F2011L01552)

—

Fair Work Amendment

(Textile, Clothing and

Footwear Industry) Act

2012

33, 2012 15 Apr

2012

Sch 1: 1 July 2012 (see

F2012L01396)

Remainder: Royal

Assent

—

Paid Parental Leave and

Other Legislation

Amendment (Dad and

Partner Pay and Other

Measures) Act 2012

109, 2012 22 July

2012

Sch 2 (items 9–21):

23 July 2012

—

Navigation

(Consequential

Amendments) Act 2012

129, 2012 13 Sept

2012

Sch 2 (item 13): 1 July

2013 (see s 2(1))

—

Statute Law Revision

Act 2012

136, 2012 22 Sept

2012

Sch 1 (items 122, 123): 1

Aug 2011

Sch 1 (item 124): 1 July

2012 (s 2(1) item 4)

Sch 2 (item 14): 1 July

2009 (s 2(1) item 14)

—

Superannuation

Legislation Amendment

(Further MySuper and

Transparency Measures)

Act 2012

171, 2012 3 Dec 2012 Sch 4 (items 1–8): 1 Jan

2013 (s 2(1) item 19)

—

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Endnote 3—Legislation history

372 Fair Work Act 2009

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Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Fair Work Amendment

Act 2012

174, 2012 4 Dec 2012 Sch 1: 1 Jan 2014

Sch 2 (items 1–61):

1 July 2013

Sch 3–7 and Sch 8

(items 1–45, 57–76):

1 Jan 2013 (see

F2012L02450)

Sch 9 (items 1–886,

1339–1383) and Sch 10:

1 Jan 2013

Sch 11: Royal Assent

—

as amended by

Fair Work

Amendment Act 2013

73, 2013 28 June

2013

Sch 6 (items 9–11, 14):

(see 73, 2013 below)

—

Superannuation Laws

Amendment

(MySuper Capital

Gains Tax Relief and

Other Measures) Act

2013

89, 2013 28 June

2013

Sch 3: Royal Assent —

Fair Work Amendment

(Transfer of Business)

Act 2012

175, 2012 4 Dec 2012 Sch 1 (items 1–13, 16–

67): 5 Dec 2012

—

Federal Circuit Court of

Australia (Consequential

Amendments) Act 2013

13, 2013 14 Mar

2013

Sch 1 (items 234–246)

and Sch 2 (item 1): 12

Apr 2013 (s 2(1) items 2,

Sch 3 (item 96): never

commenced (s 2(1)

item 19)

—

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Endnote 3—Legislation history

Fair Work Act 2009 373

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Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Superannuation

Legislation Amendment

(Service Providers and

Other Governance

Measures) Act 2013

61, 2013 26 June

2013

Sch 1 (items 12B–12P):

1 Jan 2013 (s 2(1)

item 8B)

—

Fair Work Amendment

Act 2013

73, 2013 28 June

2013

Sch 1 (items 1–18, 22–

30), Sch 3A, Sch 5

(items 3, 4) and Sch 6

(item 5): 1 July 2013

(s 2(1) items 2, 4, 6A,

10, 13)

Sch 1 (items 19–21), Sch

2, Sch 3, Sch 4, Sch 4A

and Sch 6 (item 1): 1 Jan

2014 (s 2(1) items 3, 5–

7, 7A, 11)

Sch 5 (item 1): 5 Dec

2012 (s 2(1) item 8)

Sch 5 (item 2): 1 July

2012 (s 2(1) item 9)

Sch 6 (items 2–4, 6–8)

and Sch 7: 28 June 2013

(s 2(1) items 12, 14, 18)

Sch 6 (items 9–14): 1

Jan 2013 (s 2(1)

items 15–17)

—

Sex Discrimination

Amendment (Sexual

Orientation, Gender

Identity and Intersex

Status) Act 2013

98, 2013 28 June

2013

Sch 1 (items 63C–63G):

1 Aug 2013 (s 2(1)

item 2)

—

Statute Law Revision

Act 2013

103, 2013 29 June

2013

Sch 1 (item 47): 29 June

2013 (s 2(1) item 2)

—

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Endnotes

Endnote 3—Legislation history

374 Fair Work Act 2009

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Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Tax Laws Amendment

(Fairer Taxation of

Excess Concessional

Contributions) Act 2013

118, 2013 29 June

2013

Sch 1 (items 3, 110):

29 June 2013 (s 2(1)

items 2, 11)

Sch 1 (item 110)

Statute Law Revision

Act (No. 1) 2014

31, 2014 27 May

2014

Sch 1 (items 25–33):

24 June 2014 (s 2(1)

item 2)

—

Public Governance,

Performance and

Accountability

(Consequential and

Transitional Provisions)

Act 2014

62, 2014 30 June

2014

Sch 6 (item 40), Sch 9

(items 3–11) and Sch 14:

1 July 2014 (s 2(1)

items 6, 14)

Sch 14

as amended by

Public Governance

and Resources

Legislation

Amendment Act

(No. 1) 2015

36, 2015 13 Apr

2015

Sch 2 (items 7–9) and

Sch 7: 14 Apr 2015 (s 2)

Sch 7

as amended by

Acts and

Instruments

(Framework

Reform)

(Consequential

Provisions) Act

2015

126, 2015 10 Sept

2015

Sch 1 (item 486): 5 Mar

2016 (s 2(1) item 2)

—

Acts and Instruments

(Framework Reform)

(Consequential

Provisions) Act 2015

126, 2015 10 Sept

2015

Sch 1 (item 495): 5 Mar

2016 (s 2(1) item 2)

—

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Endnotes

Endnote 3—Legislation history

Fair Work Act 2009 375

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Acts and Instruments

(Framework Reform)

(Consequential

Provisions) Act 2015

126, 2015 10 Sept

2015

Sch 1 (items 209–215):

5 Mar 2016 (s 2(1)

item 2)

—

Fair Work Amendment

Act 2015

156, 2015 26 Nov

2015

Sch 1 (items 1, 19–52,

56) and Sch 2: 27 Nov

2015 (s 2(1) items 2, 5,

Sch 1 (items 79, 80):

1 Jan 2016 (s 2(1)

item 8)

Remainder: 26 Nov 2015

(s 2(1) item 1)

s 4

Law and Justice

Legislation Amendment

(Northern Territory

Local Court) Act 2016

26, 2016 23 Mar

2016

Sch 1 (items 21, 34, 35):

1 May 2016 (s 2(1)

item 2)

Sch 1 (items 34,

35)

Territories Legislation

Amendment Act 2016

33, 2016 23 Mar

2016

Sch 5 (items 51–56):

1 July 2016 (s 2(1)

item 7)

—

Fair Work Amendment

(Respect for Emergency

Services Volunteers) Act

2016

62, 2016 12 Oct

2016

13 Oct 2016 (s 2(1)

item 1)

—

Statute Law Revision

(Spring 2016) Act 2016

67, 2016 20 Oct

2016

Sch 1 (item 27): 17 Nov

2016 (s 2(1) item 2)

—

Fair Work (Registered

Organisations)

Amendment Act 2016

79, 2016 24 Nov

2016

Sch 1 (items 1–5, 129–

137): 1 May 2017 (s 2(1)

item 2)

Sch 1 (items 129–

137)

Fair Work Amendment

(Corrupting Benefits)

Act 2017

84, 2017 16 Aug

2017

Sch 1 and 2: 11 Sept

2017 (s 2(1) item 2)

—

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Endnotes

Endnote 3—Legislation history

376 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Statute Update (Winter

2017) Act 2017

93, 2017 23 Aug

2017

Sch 1 (item 11): 20 Sept

2017 (s 2(1) item 2)

—

Fair Work Amendment

(Protecting Vulnerable

Workers) Act 2017

101, 2017 14 Sept

2017

15 Sept 2017 (s 2(1)

item 1)

—

Fair Work Amendment

(Family and Domestic

Violence Leave) Act

2018

169, 2018 11 Dec

2018

12 Dec 2018 (s 2(1)

item 1)

—

Fair Work Amendment

(Repeal of 4 Yearly

Reviews and Other

Measures) Act 2018

170, 2018 11 Dec

2018

Sch 1: 1 Jan 2018 (s 2(1)

item 2)

Sch 2, Sch 3 (item 1) and

Sch 4: 12 Dec 2018 (s

2(1) item 3)

—

Timor Sea Maritime

Boundaries Treaty

Consequential

Amendments Act 2019

57, 2019 7 Aug 2019 Sch 1 (items 72, 73): 30

Aug 2019 (s 2(1) item 2)

—

Coronavirus Economic

Response Package

Omnibus (Measures

No. 2) Act 2020

38, 2020 9 Apr 2020 Sch 1 (items 1–5): 9 Apr

2020 (s 2(1) item 2)

Sch 1 (items 6–10): 28

Sept 2020 (s 2(1) item 3)

Sch 1 (item 10)

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Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 377

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Endnote 4—Amendment history

Provision affected How affected

Chapter 1

Part 1-1

Division 2

s 3 .................................................. am No 55, 2009

Division 3

s 4 .................................................. am Nos 33 and 174, 2012

s 5 .................................................. am No 174, 2012

s 6 .................................................. am No 84, 2017

s 8 .................................................. am No 174, 2012

s 9 .................................................. am Nos 33 and 175, 2012; No 73, 2013

s 9A ............................................... ad No 33, 2012

rs No 175, 2012

Part 1-2

Division 1

s 11 ................................................ am No 33, 2012

Division 2

s 12 ................................................ am Nos 54, 55 and 124, 2009; No 40, 2011; Nos 33, 109, 129, 171,

174 and 175, 2012; No 13 and 73, 2013; No 31, 2014; No 156, 2015;

No 26, 2016; No 33, 2016; No 62, 2016; No 84, 2017; No 101, 2017;

No 169, 2018; No 170, 2018; No 57, 2019

Division 3

s 13 ................................................ am No 54, 2009; No 124, 2009

s 14 ................................................ am No 54, 2009; No 124, 2009; No 126, 2015; No 33, 2016

s 14A ............................................. ad No 124, 2009

am No 175, 2012

s 15 ................................................ am No 54, 2009; No 124, 2009

Division 4

s 17 ................................................ am No 169, 2018

s 17A ............................................. ad No 33, 2012

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Endnotes

Endnote 4—Amendment history

378 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 20 ................................................ am No 93, 2017

s 21 ................................................ am No 174, 2012

s 22 ................................................ am No 55, 2009

s 23A ............................................. ad No 174, 2012

Part 1-3

Division 1

s 24 ................................................ rs No 54, 2009

am No 124, 2009

s 25 ................................................ am No 33, 2012

Division 2

s 27 ................................................ am No 54, 2009; No 136, 2012

s 29 ................................................ am No 62, 2016

Division 2A

Division 2A heading ..................... rs No 124, 2009

Division 2A ................................... ad No 54, 2009

s 30A ............................................. ad No 54, 2009

am No 124, 2009

s 30B ............................................. ad No 54, 2009

am No 124, 2009

s 30C ............................................. ad No 54, 2009

am No 124, 2009

s 30D ............................................. ad No 54, 2009

am No 124, 2009

s 30E ............................................. ad No 54, 2009

am No 124, 2009

s 30F .............................................. ad No 54, 2009

am No 124, 2009

s 30G ............................................. ad No 54, 2009

am No 124, 2009

s 30H ............................................. ad No 54, 2009

am No 124, 2009

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Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 379

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 30J .............................................. ad No 54, 2009

rep No 124, 2009

Division 2B

Division 2B ................................... ad No 124, 2009

s 30K ............................................. ad No 124, 2009

s 30L ............................................. ad No 124, 2009

s 30M ............................................ ad No 124, 2009

s 30N ............................................. ad No 124, 2009

s 30P .............................................. ad No 124, 2009

s 30Q ............................................. ad No 124, 2009

s 30R ............................................. ad No 124, 2009

s 30S .............................................. ad No 124, 2009

Division 3

s 31 ................................................ am No 126, 2015; No 33, 2016

s 32A ............................................. ad No 33, 2016

s 33 ................................................ am No 57, 2019

Division 4

s 40 ................................................ am No 174, 2012

s 40A ............................................. ad No 124, 2009

Chapter 2

Part 2-1

Division 1

s 42 ................................................ am No 33, 2012

Division 2

Subdivision A

s 43 ................................................ am No 175, 2012

Subdivision C

s 48 ................................................ am No 55, 2009; No 174, 2012; No 175, 2012

s 49 ................................................ am No 54, 2009; No 174, 2012

Subdivision D

s 53 ................................................ am No 55, 2009; No 174, 2012; No 175, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

380 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 54 ................................................ am No 174, 2012

Part 2-2

Division 1

s 60 ................................................ am No 33, 2012

Division 2

s 61 ................................................ am No 169, 2018

Division 3

s 63 ................................................ am No 55, 2009

s 64 ................................................ am No 55, 2009

Division 4

s 65 ................................................ am No 73, 2013

Division 5

Subdivision A

s 67 ................................................ am No 73, 2013

Subdivision B

s 70 ................................................ am No 109, 2012

s 71 ................................................ am No 109, 2012; No 73, 2013

s 72 ................................................ am No 109, 2012, No 73, 2013

s 73 ................................................ am No 73, 2013

s, 74 ............................................... am No 73, 2013

s 75 ................................................ am No 73, 2013

s 76 ................................................ am No 109, 2012; No 73, 2013; No 156, 2015

s 77A ............................................. ad No 109, 2012

s 78 ................................................ am No 109, 2012

s 79A ............................................. ad No 109, 2012

s 79B ............................................. ad No 109, 2012

Subdivision C

s 80 ................................................ am No 73, 2013

s 81 ................................................ rs No 73, 2013

s 81A ............................................. ad No 73, 2013

s 82A ............................................. ad No 73, 2013

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 381

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 84A ............................................. ad No 109, 2012

am No 174, 2012

Division 6

s 87 ................................................ am No 174, 2012

Division 7

Division 7 heading ........................ am No 169, 2018

Subdivision A

s 97 ................................................ am No 73, 2013

Subdivision CA

Subdivision CA ............................. ad No 169, 2018

s 106A ........................................... ad No 169, 2018

s 106B ........................................... ad No 169, 2018

s 106C ........................................... ad No 169, 2018

s 106D ........................................... ad No 169, 2018

s 106E ........................................... ad No 169, 2018

Subdivision D

s 107 .............................................. am No 169, 2018

Division 9

s 113 .............................................. am No 124, 2009; Nos 174 and 175, 2012

s 113A ........................................... am No 175, 2012

Division 11

Subdivision B

s 120 .............................................. am No 174, 2012

s 122 .............................................. am No 174, 2012

Division 12

s 124 .............................................. am No 174, 2012

Division 13

s 126 .............................................. am No 174, 2012

Part 2-3

Division 1

s 132 .............................................. am No 54, 2009; No 55, 2009; No 174, 2012; No 170, 2018

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

382 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 133 .............................................. am No 33, 2012

Division 2

s 134 .............................................. am No 174, 2012; No 73, 2013

s 135 .............................................. am No 70, 2009; No 174, 2012; No 170, 2018

Division 3

Subdivision B

s 140 .............................................. am No 55, 2009

s 141 .............................................. am No 174, 2012; No 170, 2018

Subdivision C

s 143 .............................................. am Nos 54, 2009; No 55, 2009; No 175, 2012

s 143A ........................................... ad No 55, 2009

s 143B ........................................... ad No 54, 2009

s 145A ........................................... ad No 73, 2013

s 146 .............................................. am No 174, 2012

s 149 .............................................. am No 174, 2012

s 149A ........................................... ad No 171, 2012

rep No 174, 2012

s 149B ........................................... ad No 174, 2012

s 149C ........................................... ad No 174, 2012

s 149D ........................................... ad No 174, 2012

Subdivision D

s 151 .............................................. rs No 101, 2017

s 153 .............................................. am No 98, 2013

s 154 .............................................. am No 174, 2012

s 155A ........................................... ad No 171, 2012

am No 61, 2013

rep No 174, 2012

Division 4 ...................................... rep No 170, 2018

s 156 .............................................. am No 174, 2012

rep No 170, 2018

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Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 383

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Division 4A

Division 4A ................................... ad No 174, 2012

Subdivision A

s 156A ........................................... ad No 174, 2012

Subdivision B

s 156B ........................................... ad No 174, 2012

s 156C ........................................... ad No 174, 2012

s 156D ........................................... ad No 174, 2012

s 156E ........................................... ad No 174, 2012

s 156F ............................................ ad No 174, 2012

Subdivision C

s 156G ........................................... ad No 174, 2012

s 156H ........................................... ad No 174, 2012

s 156J ............................................ ad No 174, 2012

s 156K ........................................... ad No 174, 2012

Subdivision D

s 156L ........................................... ad No 174, 2012

s 156M .......................................... ad No 174, 2012

s 156N ........................................... ad No 174, 2012

s 156P ............................................ ad No 174, 2012

s 156Q ........................................... ad No 174, 2012

s 156R ........................................... ad No 174, 2012

s 156S ............................................ ad No 174, 2012

s 156T ........................................... ad No 174, 2012

Subdivision E

s 156U ........................................... ad No 174, 2012

Division 5

Division 5 heading ........................ rs No 170, 2018

Subdivision A

s 157 .............................................. am No 174, 2012; No 170, 2018

s 158 .............................................. am No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

384 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Subdivision B

s 159 .............................................. am No 174, 2012

s 159A ........................................... ad No 174, 2012

s 160 .............................................. am No 174, 2012

s 161 .............................................. am No 54, 2009; No 70, 2009; No 40, 2011; No 174, 2012

Division 6

s 162 .............................................. am No 174, 2012

s 163 .............................................. am No 174, 2012

s 164 .............................................. am No 174, 2012

s 165 .............................................. am No 174, 2012

s 166 .............................................. am No 174, 2012

s 167 .............................................. am No 174, 2012

s 168 .............................................. am No 174, 2012

Division 7

Division 7 ...................................... ad No 55, 2009

s 168A ........................................... ad No 55, 2009

s 168B ........................................... ad No 55, 2009

am No 174, 2012

s 168C ........................................... ad No 55, 2009

am No 174, 2012; No 175, 2012

s 168D ........................................... ad No 55, 2009

am No 174, 2012

Division 8

Division 8 ...................................... ad No 54, 2009

s 168E ........................................... ad No 54, 2009

am No 124, 2009

s 168F ............................................ ad No 54, 2009

am No 174, 2012

s 168G ........................................... ad No 54, 2009

am No 174, 2012; No 175, 2012

s 168H ........................................... ad No 54, 2009

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 385

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 168J ............................................ ad No 54, 2009

s 168K ........................................... ad No 54, 2009

am No 174, 2012

s 168L ........................................... ad No 54, 2009

am No 174, 2012

Part 2-4

Division 1

s 169 .............................................. am No 174, 2012

s 170 .............................................. am No 33, 2012

s 171 .............................................. am No 174, 2012

Division 2

s 172 .............................................. am No 174, 2012; No 156, 2015

Division 3

s 174 .............................................. am No 174, 2012

s 176 .............................................. am No 174, 2012; No 73, 2013

s 177 .............................................. ad No 156, 2015

s 178 .............................................. am No 156, 2015

s 178A ........................................... am No 156, 2015

s 178B ........................................... ad No 156, 2015

Division 4

Subdivision A

Subdivision A heading .................. am No 174, 2012

s 179 .............................................. ad No 84, 2017

s 179A ........................................... ad No 84, 2017

s 180 .............................................. am No 84, 2017

s 182 .............................................. am No 156, 2015

s 183 .............................................. am No 174, 2012

s 185 .............................................. am No 174, 2012; No 156, 2015

s 185A ........................................... ad No 156, 2015

Subdivision B

Subdivision B heading .................. am No 174, 2012

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Endnotes

Endnote 4—Amendment history

386 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 186 .............................................. am No 174, 2012; No 156, 2015

s 187 .............................................. am No 174, 2012; No 156, 2015

s 188 .............................................. am No 174, 2012; No 170, 2018

s 188A ........................................... ad No 84, 2017

s 189 .............................................. am No 174, 2012

s 190 .............................................. am No 174, 2012; No 156, 2015

s 191 .............................................. am No 174, 2012

s 192 .............................................. am No 174, 2012; No 156, 2015

Subdivision C

s 193 .............................................. am No 174, 2012; No 156, 2015

Subdivision D

s 194 .............................................. am No 171, 2012; No 174, 2012; No 62, 2016

s 195 .............................................. am No 98, 2013

s 195A ........................................... ad No 62, 2016

Subdivision E

s 196 .............................................. am No 174, 2012

s 197 .............................................. am No 174, 2012

s 198 .............................................. am No 174, 2012

s 199 .............................................. am No 174, 2012

s 200 .............................................. am No 174, 2012

Subdivision F

s 201 .............................................. am No 174, 2012; No 156, 2015

Division 5

s 203 .............................................. am No 33, 2012

s 205 .............................................. am No 73, 2013; No 62, 2016

Division 7

Subdivision A

s 207 .............................................. am No 174, 2012

s 210 .............................................. am No 174, 2012

s 211 .............................................. am No 174, 2012; No 156, 2015

s 212 .............................................. am No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 387

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 213 .............................................. am No 174, 2012

s 214 .............................................. am No 174, 2012

s 215 .............................................. am No 174, 2012

Subdivision B

s 217 .............................................. am No 174, 2012

s 217A ........................................... am No 174, 2012

s 218 .............................................. am No 54, 2009; No 70, 2009; No 40, 2011; No 174, 2012

Subdivision C

s 219 .............................................. am No 174, 2012

s 222 .............................................. am No 174, 2012

s 223 .............................................. am No 174, 2012

Subdivision D

s 225 .............................................. am No 174, 2012

s 226 .............................................. am No 174, 2012

Division 8

Division 8 heading ........................ am No 174, 2012

Subdivision A

s 228 .............................................. am No 156, 2015

s 229 .............................................. am No 174, 2012; No 156, 2015

s 230 .............................................. am No 174, 2012; No 156, 2015

s 231 .............................................. am No 174, 2012

s 232 .............................................. am No 174, 2012; No 156, 2015

Subdivision B

s 234 .............................................. am No 174, 2012; No 156, 2015

s 235 .............................................. am No 174, 2012; No 156, 2015

Subdivision C

s 236 .............................................. am No 174, 2012

s 237 .............................................. am No 174, 2012

s 238 .............................................. am No 174, 2012; No 156, 2015

s 239 .............................................. am No 174, 2012

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Endnotes

Endnote 4—Amendment history

388 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Subdivision D

Subdivision D heading .................. am No 174, 2012

s 240 .............................................. am No 174, 2012; No 156, 2015

Division 9

s 241 .............................................. am No 174, 2012

s 242 .............................................. am No 174, 2012

s 243 .............................................. am No 174, 2012

s 244 .............................................. am No 174, 2012

s 245 .............................................. am No 174, 2012

s 246 .............................................. am No 174, 2012

Division 10

Subdivision B

s 248 .............................................. am No 174, 2012

s 249 .............................................. am No 174, 2012

s 250 .............................................. am No 174, 2012

s 251 .............................................. am No 174, 2012

s 252 .............................................. am No 174, 2012

Division 11

s 253 .............................................. am No 101, 2017

s 254A ........................................... ad No 62, 2016

s 255 .............................................. am No 174, 2012; No 156, 2015

s 255A ........................................... ad No 156, 2015

Part 2-5

Division 1

s 258 .............................................. am No 174, 2012; No 62, 2016

s 259 .............................................. am No 33, 2012

Division 2

s 260 .............................................. am No 174, 2012

s 261 .............................................. am No 174, 2012

s 262 .............................................. am No 174, 2012

s 263 .............................................. am No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 389

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 264 .............................................. am No 174, 2012

Division 3

s 266 .............................................. am No 174, 2012

s 267 .............................................. am No 174, 2012

Division 4

s 269 .............................................. am No 174, 2012; No 156, 2015

s 270 .............................................. am No 174, 2012

s 271A ........................................... ad No 156, 2015

Division 5

s 272 .............................................. am No 174, 2012

s 273 .............................................. am No 174, 2012

s 275 .............................................. am No 174, 2012

Division 6

s 277 .............................................. am No 174, 2012

s 279 .............................................. am No 54, 2009

Division 7

s 281AA ........................................ ad No 62, 2016

Part 2-6

Division 1

s 282 .............................................. am No 174, 2012

s 283 .............................................. am No 33, 2012

Division 2

s 284 .............................................. am No 174, 2012

Division 3

Subdivision A

s 285 .............................................. am No 174, 2012

s 286 .............................................. am No 174, 2012

s 287 .............................................. am No 174, 2012

Subdivision B

s 288 .............................................. am No 174, 2012

s 289 .............................................. am No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

390 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 290 .............................................. am No 174, 2012

s 291 .............................................. am No 174, 2012

s 292 .............................................. am No 54, 2009; No 55, 2009; No 174, 2012

Division 4

s 296 .............................................. am No 174, 2012

s 297 .............................................. am No 174, 2012

Part 2-7

Division 1

s 300 .............................................. am No 174, 2012

s 301 .............................................. am No 33, 2012

Division 2

s 302 .............................................. am No 174, 2012

s 303 .............................................. am No 174, 2012

s 304 .............................................. am No 174, 2012

s 306 .............................................. am No 174, 2012

Part 2-8

Division 1

s 307 .............................................. am Nos 174 and 175, 2012

s 308 .............................................. am No 33, 2012

Division 2

s 312 .............................................. am No 55, 2009; No 174, 2012

s 313 .............................................. am No 174, 2012

s 314 .............................................. am No 174, 2012

s 315 .............................................. am No 174, 2012

Division 3

Division 3 heading ........................ am No 174, 2012

s 317 .............................................. am No 174, 2012

s 318 .............................................. am No 174, 2012

s 319 .............................................. am No 174, 2012

s 320 .............................................. am No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 391

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Part 2-9

Part 2-9 heading ............................ rs No 55, 2009

Division 1

s 322 .............................................. am No 33, 2012

Division 2

Division 2 heading ........................ rs No 101, 2017

s 324 .............................................. am No 174, 2012

s 325 .............................................. am No 101, 2017

s 326 .............................................. rs No 101, 2017

s 327 .............................................. am No 101, 2017

Division 3

s 332 .............................................. am No 118, 2013

Chapter 3

Part 3-1

Division 1

s 334 .............................................. am No 174, 2012

s 335 .............................................. am No 33, 2012

s 336 .............................................. am No 174, 2012

Division 2

s 337 .............................................. am No 54, 2009; No 124, 2009

Division 3

s 341 .............................................. am No 174, 2012; No 175, 2012

s 344 .............................................. am No 109, 2012

Division 5

s 351 .............................................. am No 136, 2012; No 98, 2013

Division 7

s 361 .............................................. am No 73, 2013

Division 8

Subdivision A

s 365 .............................................. am No 174, 2012; No 73, 2013

s 366 .............................................. am No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

392 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 367 .............................................. am No 174, 2012

s 368 .............................................. am No 174, 2012

rs No 73, 2013

s 369 .............................................. am No 174, 2012

rs No 73, 2013

s 370 .............................................. am No 174, 2012

rs No 73, 2013

s 371 .............................................. am No 55, 2009; No 174, 2012

rep No 73, 2013

Subdivision B

s 372 .............................................. am No 174, 2012; No 73, 2013

s 373 .............................................. am No 174, 2012

s 374 .............................................. am No 174, 2012

s 375 .............................................. am No 174, 2012

Subdivision C

Subdivision C ................................ rs No 73, 2013

s 375A ........................................... ad No 73, 2013

s 375B ........................................... ad No 73, 2013

s 376 .............................................. am No 174, 2012

rs No 73, 2013

s 377 .............................................. am No 174, 2012

rs No 73, 2013

s 377A ........................................... ad No 73, 2013

s 378 .............................................. rs No 73, 2013

Part 3-2

Division 1

s 379 .............................................. am No 174, 2012

s 380 .............................................. am No 33, 2012

Division 3

s 385 .............................................. am No 174, 2012

s 387 .............................................. am No 174, 2012

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Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 393

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Division 4

s 390 .............................................. am No 174, 2012

s 391 .............................................. am No 174, 2012

s 392 .............................................. am No 174, 2012

s 393 .............................................. am No 174, 2012

Division 5

s 394 .............................................. am No 174, 2012

s 395 .............................................. am No 174, 2012

s 396 .............................................. am No 174, 2012

s 397 .............................................. am No 174, 2012

s 398 .............................................. am No 174, 2012

s 399 .............................................. am No 174, 2012

s 399A ........................................... ad No 174, 2012

s 400 .............................................. am No 174, 2012; No 73, 2013

s 400A ........................................... ad No 174, 2012

s 401 .............................................. am No 174, 2012

s 402 .............................................. am No 174, 2012

s 403 .............................................. am No 174, 2012

Part 3-3

Division 1

s 406 .............................................. am No 174, 2012

s 407 .............................................. am No 33, 2012

Division 2

Subdivision A

s 409 .............................................. am No 174, 2012

s 410 .............................................. am No 174, 2012

s 411 .............................................. am No 55, 2009

Subdivision C

s 416A ........................................... ad No 55, 2009

Division 3

s 417 .............................................. am No 174, 2012; No 13, 2013

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

394 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Division 4

Division 4 heading ........................ am No 174, 2012

s 418 .............................................. am No 174, 2012

s 419 .............................................. am No 174, 2012

s 420 .............................................. am No 174, 2012

s 421 .............................................. am No 13, 2013

Division 5

s 422 .............................................. am No 13, 2013

Division 6

Division 6 heading ........................ am No 174, 2012

s 423 .............................................. am No 124, 2009; No 174, 2012

s 424 .............................................. am No 124, 2009; No 174, 2012

s 425 .............................................. am No 174, 2012

s 426 .............................................. am No 124, 2009; No 174, 2012

s 427 .............................................. am No 174, 2012

s 428 .............................................. am No 174, 2012

s 430 .............................................. am No 174, 2012

Division 7

s 432 .............................................. am No 174, 2012

Division 8

Subdivision A

s 435 .............................................. am No 174, 2012

Subdivision B

s 437 .............................................. am No 174, 2012; No 156, 2015

s 441 .............................................. am No 174, 2012

s 442 .............................................. am No 174, 2012

s 443 .............................................. am No 174, 2012

s 444 .............................................. am No 174, 2012

s 445 .............................................. am No 174, 2012

s 446 .............................................. am No 174, 2012

s 447 .............................................. am No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

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Endnote 4—Amendment history

Fair Work Act 2009 395

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 448 .............................................. am No 174, 2012

Subdivision C

s 449 .............................................. am No 174, 2012

s 450 .............................................. am No 174, 2012

s 451 .............................................. am No 174, 2012

s 452 .............................................. am No 174, 2012

s 453 .............................................. am No 174, 2012

s 454 .............................................. am No 174, 2012

s 455 .............................................. am No 174, 2012

s 457 .............................................. am No 174, 2012

s 458 .............................................. am No 174, 2012

Subdivision D

s 459 .............................................. am No 174, 2012

s 460 .............................................. am No 174, 2012

s 461 .............................................. am No 174, 2012

Subdivision E

s 462 .............................................. am No 174, 2012

s 463 .............................................. am No 174, 2012

Subdivision G

s 467 .............................................. am No 174, 2012

Division 9

Subdivision A

s 471 .............................................. am No 174, 2012

s 472 .............................................. am No 174, 2012

Part 3-4

Division 1

s 478 .............................................. am Nos 33 and 174, 2012; No 73, 2013

s 480 .............................................. am No 33, 2012

Division 2

Subdivision A

s 481 .............................................. am No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

396 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 483AA ........................................ am No 174, 2012

Subdivision AA

Subdivision AA heading ............... rs No 33, 2012

s 483A ........................................... am No 33, 2012; No 73, 2013

s 483B ........................................... am No 33, 2012

Subdivision B

s 484 .............................................. am No 33, 2012; No 73, 2013

Subdivision C

s 487 .............................................. am No 174, 2012

s 489 .............................................. am No 174, 2012

s 491 .............................................. am No 174, 2012

s 492 .............................................. rs No 73, 2013

s 492 .............................................. am No 174, 2012; No 73, 2013

s 492A ........................................... ad No 73, 2013

Division 3

s 499 .............................................. am No 174, 2012

Division 4

s 500 .............................................. am No 73, 2013

Division 5

Division 5 heading ........................ am No 174, 2012

Subdivision A

s 505 .............................................. am No 174, 2012; No 73, 2013

s 505A ........................................... ad No 73, 2013

s 506 .............................................. am No 73, 2013

Subdivision B

s 507 .............................................. am No 174, 2012

Subdivision C

s 508 .............................................. am No 174, 2012

Subdivision D

Subdivision D heading .................. am No 174, 2012

s 510 .............................................. am No 51, 2010; No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 397

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Subdivision E

s 511 .............................................. am No 174, 2012

Division 6

Subdivision A

s 512 .............................................. am No 174, 2012

s 513 .............................................. am No 174, 2012

s 514 .............................................. am No 174, 2012

s 515 .............................................. am No 174, 2012; No 73, 2013

s 516 .............................................. am No 174, 2012

s 517 .............................................. am No 174, 2012

Subdivision B

s 518 .............................................. am No 33, 2012

Subdivision C

s 519 .............................................. am No 174, 2012

Subdivision D

s 520 .............................................. am No 174, 2012

Division 7

Division 7 ...................................... ad No 73, 2013

s 521A ........................................... ad No 73, 2013

s 521B ........................................... ad No 73, 2013

s 521C ........................................... ad No 73, 2013

s 521D ........................................... ad No 73, 2013

Part 3-5

Division 1

s 522 .............................................. am No 174, 2012

Division 3

s 526 .............................................. am No 174, 2012

s 527 .............................................. am No 174, 2012

Part 3-6

Division 1

s 528 .............................................. am No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

398 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 529 .............................................. am No 33, 2012

Division 2

Subdivision B

s 531 .............................................. am No 174, 2012

s 532 .............................................. am No 174, 2012

s 533 .............................................. am No 174, 2012

Division 3

s 535 .............................................. am No 101, 2017

s 536 .............................................. am No 109, 2012; No 101, 2017

Part 3-7

Part 3-7 .......................................... ad No 84, 2017

Division 1

s 536A ........................................... ad No 84, 2017

s 536B ........................................... ad No 84, 2017

s 536C ........................................... ad No 84, 2017

s 536CA ........................................ ad No 84, 2017

Division 2

s 536D ........................................... ad No 84, 2017

s 536E ........................................... ad No 84, 2017

Division 3

s 536F ............................................ ad No 84, 2017

s 536G ........................................... ad No 84, 2017

s 536H ........................................... ad No 84, 2017

Chapter 4

Part 4-1

Division 1

s 537 .............................................. am No 13, 2013; No 101, 2017

s 538 .............................................. am No 33, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 399

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Division 2

Subdivision A

s 539 .............................................. am No 55, 2009; Nos 174 and 175, 2012; No 13 and 73, 2013; No 67,

2016; No 84, 2017; No 101, 2017; No 38, 2020 (Sch 1 item 6)

s 540 .............................................. am No 55, 2009; No 101, 2017

s 543 .............................................. am No 13, 2013

s 544 .............................................. am No 73, 2013

Subdivision B

s 545 .............................................. am No 13, 2013

s 546 .............................................. am No 13, 2013

Division 3

s 548 .............................................. am No 13, 2013

Division 4

s 550 .............................................. am No 101, 2017

s 557 .............................................. am No 101, 2017

s 557A ........................................... ad No 101, 2017

s 557B ........................................... ad No 101, 2017

s 557C ........................................... ad No 101, 2017

s 558 .............................................. am No 55, 2009

Division 4A

Division 4A ................................... ad No 101, 2017

s 558A ........................................... ad No 101, 2017

s 558B ........................................... ad No 101, 2017

s 558C ........................................... ad No 101, 2017

Division 5

s 559 .............................................. am No 156, 2015

Part 4-2

Division 1

s 560 .............................................. am No 13, 2013

s 561 .............................................. am No 33, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

400 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Division 2

s 563 .............................................. am No 13, 2013

s 565 .............................................. am No 124, 2009

Division 3

Division 3 heading ........................ rs No 13, 2013

s 566 .............................................. am No 13, 2013

s 567 .............................................. am No 13, 2013

s 568 .............................................. am No 13, 2013

Division 4

s 569A ........................................... ad No 124, 2009

s 570 .............................................. am No 124, 2009; No 174, 2012

Chapter 5

Part 5-1

Part 5-1 heading ............................ rs No 174, 2012

Division 1

s 573 .............................................. am No 174, 2012

s 574 .............................................. am No 33, 2012

s 574A ........................................... rep No 55, 2009

Division 2

Division 2 heading ........................ am No 174, 2012

Subdivision A

Subdivision A heading .................. am No 174, 2012

s 575 .............................................. am No 55, 2009; No 174, 2012

s 576 .............................................. am No 55, 2009; No 174, 2012; No 175, 2012; No 13, 2013; No 73,

2013; No 79, 2016; No 38, 2020

s 577 .............................................. am No 174, 2012

s 578 .............................................. am No 174, 2012; No 98, 2013

s 579 .............................................. am No 174, 2012

s 580 .............................................. am No 174, 2012

Subdivision B

s 581 .............................................. am No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 401

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 581A ........................................... ad No 174, 2012

s 581B ........................................... ad No 174, 2012

s 582 .............................................. am No 174, 2012; No 170, 2018

s 584 .............................................. am No 174, 2012; No 73, 2013

Subdivision C

Subdivision C ................................ ad No 174, 2012

s 584B ........................................... ad No 174, 2012

Division 3

Division 3 heading ........................ am No 174, 2012

Subdivision A

Subdivision A heading .................. am No 174, 2012

s 585 .............................................. am No 174, 2012

s 586 .............................................. am No 174, 2012

s 587 .............................................. am No 174, 2012

s 588 .............................................. am No 174, 2012

Subdivision B

Subdivision B heading .................. am No 174, 2012

s 589 .............................................. am No 174, 2012

s 590 .............................................. am No 174, 2012

s 591 .............................................. am No 174, 2012

s 592 .............................................. am No 174, 2012; No 73, 2013

s 593 .............................................. am No 174, 2012

s 594 .............................................. am No 174, 2012

s 595 .............................................. am No 174, 2012; No 73, 2013

Subdivision C

s 596 .............................................. am No 174, 2012; No 175, 2012

s 597 .............................................. am No 174, 2012

s 597A ........................................... ad No 124, 2009

am No 174, 2012

Subdivision D

Subdivision D heading .................. am No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

402 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 598 .............................................. am No 174, 2012

s 599 .............................................. am No 174, 2012

s 600 .............................................. am No 174, 2012

s 601 .............................................. am No 174, 2012; No 73, 2013

s 602 .............................................. am No 174, 2012

s 603 .............................................. am No 174, 2012; No 73, 2013

Subdivision E

s 604 .............................................. am No 124, 2009; No 174, 2012; No 175, 2012; No 79, 2016

s 605 .............................................. am No 174, 2012

s 606 .............................................. am No 174, 2012

s 607 .............................................. am No 124, 2009; No 174, 2012; No 79, 2016

s 608 .............................................. am No 174, 2012

Subdivision F

s 609 .............................................. am No 174, 2012; No 73, 2013

s 610 .............................................. am No 174, 2012

s 611 .............................................. am No 174, 2012

Division 4

Division 4 heading ........................ am No 174, 2012

Subdivision A

Subdivision A heading .................. am No 174, 2012

s 612 .............................................. am No 174, 2012

s 613 .............................................. am No 124, 2009; No 174, 2012; No 175, 2012; No 79, 2016

s 615 .............................................. am No 174, 2012

s 615A ........................................... ad No 174, 2012

s 615B ........................................... ad No 174, 2012

am No 31, 2014

s 615C ........................................... ad No 174, 2012

am No 31, 2014

s 616 .............................................. am No 174, 2012; No 170, 2018

s 617 .............................................. am No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 403

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Subdivision B

Subdivision B heading .................. rs No 174, 2012

am No 174, 2012

s 618 .............................................. am No 174, 2012

s 619 .............................................. am No 174, 2012

s 620 .............................................. am No 174, 2012

s 621 .............................................. am No 174, 2012

s 622 .............................................. am No 55, 2009; No 174, 2012; No 31, 2014

s 623 .............................................. am No 174, 2012

s 624 .............................................. am No 174, 2012

Subdivision C

Subdivision C heading .................. am No 174, 2012

s 625 .............................................. am No 174, 2012

Division 5

Division 5 heading ........................ am No 174, 2012

Subdivision A

Subdivision A heading .................. am No 174, 2012

s 626 .............................................. am No 174, 2012

s 627 .............................................. am No 174, 2012; No 13, 2013

s 628 .............................................. am No 174, 2012

s 629 .............................................. am No 174, 2012

Subdivision B

Subdivision B heading .................. am No 174, 2012

s 629A ........................................... ad No 55, 2009

s 630 .............................................. am No 174, 2012

s 632 .............................................. am No 174, 2012; No 73, 2013

s 633 .............................................. am No 174, 2012

s 634 .............................................. am No 174, 2012

s 637 .............................................. am No 174, 2012

s 639 .............................................. am No 174, 2012

s 640 .............................................. am No 174, 2012; No 31, 2014

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

404 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 641 .............................................. am No 174, 2012

s 641A ........................................... ad No 174, 2012

s 641B ........................................... ad No 170, 2018

s 642 .............................................. am No 174, 2012

s 643 .............................................. am No 174, 2012

s 644 .............................................. am No 174, 2012 (as am by No 73, 2013)

s 645 .............................................. am No 174, 2012

s 646 .............................................. am No 174, 2012

s 647 .............................................. am No 174, 2012

s 648 .............................................. am No 174, 2012

Division 6

s 649 .............................................. am No 124, 2009; No 174, 2012

s 650 .............................................. am No 174, 2012

Division 7

s 651 .............................................. am No 174, 2012

s 652 .............................................. am No 174, 2012; No 62, 2014

s 653A ........................................... am No 174, 2012; No 13, 2013

s 654 .............................................. am No 55, 2009; No 174, 2012

s 655 .............................................. am No 174, 2012

Division 8

Subdivision A

s 656 .............................................. am No 174, 2012

s 657 .............................................. am No 174, 2012

s 658 .............................................. am No 174, 2012; No 62, 2014

Subdivision B

s 660 .............................................. am No 174, 2012

s 663 .............................................. am No 174, 2012

s 664 .............................................. rs No 62, 2014

s 666 .............................................. am No 174, 2012

s 668 .............................................. am No 174, 2012

s 669 .............................................. am No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 405

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Subdivision C

s 670 .............................................. am No 174, 2012; No 73, 2013

s 671 .............................................. am No 174, 2012

s 672 .............................................. am No 174, 2012

s 673 .............................................. am No 174, 2012

Subdivision D

s 673A ........................................... ad No 62, 2014

Division 9

Division 9 heading ........................ am No 174, 2012

s 674 .............................................. am No 174, 2012

s 675 .............................................. am No 174, 2012; No 73, 2013; No 38, 2020

s 676 .............................................. am No 174, 2012

s 677 .............................................. am No 174, 2012

s 678 .............................................. am No 174, 2012

Part 5-2

Division 1

s 680 .............................................. am No 33, 2012

Division 2

Subdivision A

s 682 .............................................. am No 174, 2012

s 683 .............................................. am No 101, 2017

s 684 .............................................. am No 126, 2015

s 685 .............................................. am No 101, 2017

s 686 .............................................. rs No 62, 2014

am No 101, 2017

Subdivision B

s 690 .............................................. am No 174, 2012

s 691 .............................................. rep No 62, 2014

s 693 .............................................. am No 174, 2012; No 62, 2014

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

406 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Division 3

Subdivision D

Subdivision D heading .................. rs No 101, 2017

s 703 .............................................. am No 101, 2017

s 707A ........................................... ad No 101, 2017

Subdivision DA

Subdivision DA heading ............... ad No 101, 2017

s 709 .............................................. am No 54, 2009

Subdivision DB

Subdivision DB heading ................ ad No 101, 2017

s 712A ........................................... ad No 101, 2017

s 712AA ........................................ ad No 101, 2017

s 712AB ........................................ ad No 101, 2017

s 712AC ........................................ ad No 101, 2017

s 712AD ........................................ ad No 101, 2017

s 712AE ......................................... ad No 101, 2017

s 712B ........................................... ad No 101, 2017

s 712C ........................................... ad No 101, 2017

s 712D ........................................... ad No 101, 2017

s 712E ........................................... ad No 101, 2017

s 712F ............................................ ad No 101, 2017

Subdivision DC

Subdivision DC heading ................ ad No 101, 2017

s 713 .............................................. am No 54, 2009; No 103, 2013

rs No 101, 2017

s 713A ........................................... ad No 54, 2009

s 713AA ........................................ ad No 101, 2017

s 714 .............................................. am No 101, 2017

s 714A ........................................... ad No 101, 2017

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 407

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Subdivision DD

Subdivision DD heading ............... ad No 101, 2017

s 715 .............................................. am No 13, 2013

s 716 .............................................. am No 13, 2013; No 38, 2020

s 717 .............................................. am No 13, 2013

Subdivision F

Subdivision F ................................ ad No 101, 2017

s 718A ........................................... ad No 101, 2017

Chapter 6

Part 6-1

Division 1

s 720 .............................................. am No 33, 2012

Division 2

s 721 .............................................. am No 174, 2012

s 722 .............................................. am No 55, 2009; No 174, 2012

Division 3

Subdivision A

s 724 .............................................. am No 174, 2012

Subdivision B

s 727 .............................................. am No 174, 2012; No 73, 2013

s 729 .............................................. am No 174, 2012

s 730 .............................................. am No 174, 2012; No 73, 2013

s 732 .............................................. am No 70, 2009

Part 6-2

Division 1

s 735 .............................................. am No 174, 2012

s 736 .............................................. am No 33, 2012

Division 2

Subdivision B

s 739 .............................................. am No 174, 2012

s 740 .............................................. am No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

408 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Part 6-3A

Part 6-3A ....................................... ad No 175, 2012

Division 1

s 768AA ........................................ ad No 175, 2012

s 768AB ........................................ ad No 175, 2012

Division 2

s 768AC ........................................ ad No 175, 2012

s 768AD ........................................ ad No 175, 2012

s 768AE ......................................... ad No 175, 2012

Division 3

Subdivision A

s 768AF ......................................... ad No 175, 2012

Subdivision B

s 768AG ........................................ ad No 175, 2012

s 768AH ........................................ ad No 175, 2012

s 768AI .......................................... ad No 175, 2012

s 768AJ ......................................... ad No 175, 2012

s 768AK ........................................ ad No 175, 2012

s 768AL ......................................... ad No 175, 2012

s 768AM ....................................... ad No 175, 2012

am No 174, 2012

s 768AN ........................................ ad No 175, 2012

am No 174, 2012

s 768AO ........................................ ad No 175, 2012

am No 174, 2012

Division 4

Subdivision A

s 768AP ......................................... ad No 175, 2012

Subdivision B

s 768AQ ........................................ ad No 175, 2012

s 768AR ........................................ ad No 175, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 409

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Subdivision C

s 768AS ......................................... ad No 175, 2012

am No 174, 2012

s 768AT ......................................... ad No 175, 2012

am No 174, 2012

Subdivision D

s 768AU ........................................ ad No 175, 2012

am No 174, 2012

Division 5

Subdivision A

s 768AV ........................................ ad No 175, 2012

Subdivision B

s 768AW ....................................... ad No 175, 2012

s 768AX ........................................ ad No 175, 2012

am No 174, 2012

Subdivision C

s 768AY ........................................ ad No 175, 2012

Division 6

Division 6 heading ........................ am No 174, 2012

Subdivision A

s 768AZ ......................................... ad No 175, 2012

am No 174, 2012

s 768AZA ...................................... ad No 175, 2012

Subdivision B

s 768BA ........................................ ad No 175, 2012

am No 174, 2012

s 768BB......................................... ad No 175, 2012

am No 174, 2012

Division 7

Division 7 heading ........................ am No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

410 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Subdivision A

s 768BC......................................... ad No 175, 2012

am No 174, 2012

s 768BCA ...................................... ad No 175, 2012

Subdivision B

s 768BD ........................................ ad No 175, 2012

am No 174, 2012

s 768BE ......................................... ad No 175, 2012

s 768BF ......................................... ad No 175, 2012

am No 174, 2012

Subdivision C

s 768BG ........................................ ad No 175, 2012

am No 174, 2012

s 768BH ........................................ ad No 175, 2012

s 768BI .......................................... ad No 175, 2012

am No 174, 2012

Division 8

Subdivision A

s 768BJ .......................................... ad No 175, 2012

am No 174, 2012

Subdivision B

s 768BK ........................................ ad No 175, 2012

Subdivision C

s 768BL ......................................... ad No 175, 2012

s 768BM ........................................ ad No 175, 2012

s 768BN ........................................ ad No 175, 2012

s 768BO ........................................ ad No 175, 2012

am No 174, 2012

s 768BP ......................................... ad No 175, 2012

s 768BQ ........................................ ad No 175, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 411

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Subdivision D

s 768BR......................................... ad No 175, 2012

s 768BS ......................................... ad No 175, 2012

am No 174, 2012

s 768BT ......................................... ad No 175, 2012

s 768BU ........................................ ad No 175, 2012

s 768BV ........................................ ad No 175, 2012

s 768BW ....................................... ad No 175, 2012

am No 174, 2012

Subdivision E

s 768BX ........................................ ad No 175, 2012

Subdivision F

s 768BY ........................................ ad No 175, 2012

am No 174, 2012

Subdivision G

s 768BZ ......................................... ad No 175, 2012

Division 9

s 768CA ........................................ ad No 175, 2012

Part 6-4

Division 1

s 769 .............................................. am No 174, 2012

Division 2

s 772 .............................................. am No 98, 2013

s 773 .............................................. am No 174, 2012

s 774 .............................................. am No 174, 2012; No 73, 2013

s 775 .............................................. am No 174, 2012

s 776 .............................................. am No 174, 2012

rs No 73, 2013

s 777 .............................................. am No 174, 2012

rs No 73, 2013

s 778 .............................................. am No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

412 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

rs No 73, 2013

s 779 .............................................. am No 55, 2009; No 174, 2012

rs No 73, 2013

s 779A ........................................... ad No 73, 2013

s 780 .............................................. am No 174, 2012

rs No 73, 2013

s 781 .............................................. am No 174, 2012

rs No 73, 2013

s 781A ........................................... ad No 73, 2013

s 782 .............................................. am No 73, 2013

s 783 .............................................. am No 73, 2013

Division 3

Subdivision C

s 786 .............................................. am No 174, 2012

s 787 .............................................. am No 174, 2012

s 788 .............................................. am No 174, 2012

Part 6-4A

Part 6-4A ....................................... ad No 33, 2012

Division 1

s 789AA ........................................ ad No 33, 2012

s 789AB ........................................ ad No 33, 2012

s 789AC ........................................ ad No 33, 2012

Division 2

s 789BA ........................................ ad No 33, 2012

am No 175, 2012

s 789BB......................................... ad No 33, 2012

s 789BC......................................... ad No 33, 2012

Division 3

s 789CA ........................................ ad No 33, 2012

am No 175, 2012

s 789CB......................................... ad No 33, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 413

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 789CC......................................... ad No 33, 2012

am No 136, 2012

s 789CD ........................................ ad No 33, 2012

am No 13, 2013

s 789CE ......................................... ad No 33, 2012

am No 13, 2013

s 789CF ......................................... ad No 33, 2012

Division 4

s 789DA ........................................ ad No 33, 2012

s 789DB ........................................ ad No 33, 2012

s 789DC ........................................ ad No 33, 2012

s 789DD ........................................ ad No 33, 2012

s 789DE ......................................... ad No 33, 2012

am No 175, 2012; No 126, 2015

Division 5

s 789EA ......................................... ad No 33, 2012

Part 6-4B

Part 6-4B ....................................... ad No 73, 2013

Division 1

s 789FA ......................................... ad No 73, 2013

s 789FB ......................................... ad No 73, 2013

Division 2

s 789FC ......................................... ad No 73, 2013

s 789FD ......................................... ad No 73, 2013

s 789FE ......................................... ad No 73, 2013

s 789FF ......................................... ad No 73, 2013

s 789FG ......................................... ad No 73, 2013

s 789FH ......................................... ad No 73, 2013

s 789FI .......................................... ad No 73, 2013

s 789FJ .......................................... ad No 73, 2013

s 789FK ......................................... ad No 73, 2013

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

414 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 789FL ......................................... ad No 73, 2013

Part 6-4C

Part 6-4C ....................................... ad No 38, 2020

Division 1

s 789GA ........................................ ad No 38, 2020

rep No 38, 2020

s 789GB ........................................ ad No 38, 2020

rep No 38, 2020

s 789GC ........................................ ad No 38, 2020

am No 38, 2020

Division 2

Division 2 ...................................... rep No 38, 2020

s 789GD ........................................ ad No 38, 2020

rep No 38, 2020

s 789GDA ..................................... ad No 38, 2020

rep No 38, 2020

s 789GDB...................................... ad No 38, 2020

rep No 38, 2020

Division 3

Division 3 ...................................... rep No 38, 2020

s 789GDC...................................... ad No 38, 2020

rep No 38, 2020

Division 4

Division 4 ...................................... rep No 38, 2020

s 789GE ......................................... ad No 38, 2020

rep No 38, 2020

s 789GF ......................................... ad No 38, 2020

rep No 38, 2020

s 789GG ........................................ ad No 38, 2020

rep No 38, 2020

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 415

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Division 5

Division 5 ...................................... rep No 38, 2020

s 789GJ ......................................... ad No 38, 2020

rep No 38, 2020

Division 6

Division 6 ...................................... rep No 38, 2020

s 789GK ........................................ ad No 38, 2020

rep No 38, 2020

s 789GL ......................................... ad No 38, 2020

rep No 38, 2020

s 789GM ....................................... ad No 38, 2020

rep No 38, 2020

s 789GN ........................................ ad No 38, 2020

rep No 38, 2020

s 789GP ......................................... ad No 38, 2020

rep No 38, 2020

s 789GQ ........................................ ad No 38, 2020

rep No 38, 2020

Division 7

s 789GR ........................................ ad No 38, 2020

Division 8

s 789GS ......................................... ad No 38, 2020

Division 9

Division 9 ...................................... rep No 38, 2020

s 789GU ........................................ ad No 38, 2020

rep No 38, 2020

Division 10

s 789GV ........................................ ad No 38, 2020

s 789GW ....................................... ad No 38, 2020

Division 11

Division 11 .................................... rep No 38, 2020

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

416 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

s 789GX ........................................ ad No 38, 2020

rep No 38, 2020

Division 12

s 789GXA ..................................... ad No 38, 2020

s 789GY ........................................ ad No 38, 2020

s 789GZ ......................................... ad No 38, 2020

s 789GZA ...................................... ad No 38, 2020

Division 13

s 789GZB ...................................... ad No 38, 2020

Part 6-5

Division 1

s 791 .............................................. am No 33, 2012

Division 2

s 792 .............................................. am No 33, 2016

s 795A ........................................... ad No 33, 2012

rs No 175, 2012

s 796A ........................................... ad No 55, 2009

am No 174, 2012

s 799 .............................................. am No 55, 2009

Schedule 1

Schedule 1 ..................................... rep No 55, 2009

ad No 33, 2012

Part 1

c 1 ................................................. rep No 55, 2009

ad No 33, 2012

c 2 ................................................. rep No 55, 2009

ad No 33, 2012

c 3 ................................................. rep No 55, 2009

ad No 33, 2012

c 4 ................................................. rep No 55, 2009

ad No 33, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 417

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

am No 175, 2012

c 5 ................................................. rep No 55, 2009

ad No 33, 2012

c 6 ................................................. rep No 55, 2009

ad No 33, 2012

c 7 ................................................. rep No 55, 2009

ad No 33, 2012

am No 175, 2012; No 126, 2015

Part 2

Part 2 ............................................. ad No 171, 2012

c 8 ................................................. ad No 171, 2012

c 9 ................................................. ad No 171, 2012

c 10................................................ ad No 171, 2012

am No 61, 2013

c 11................................................ ad No 171, 2012

am No 61, 2013

c 12................................................ ad No 171, 2012

am No 61, 2013

Part 3

Part 3 ............................................. ad No 62, 2016

c 13................................................ ad No 62, 2016

c 14................................................ ad No 62, 2016

Part 4

Part 4 ............................................. ad No 101, 2017

c 15................................................ ad No 101, 2017

c 16................................................ ad No 101, 2017

c 17................................................ ad No 101, 2017

c 18................................................ ad No 101, 2017

c 19................................................ ad No 101, 2017

c 20................................................ ad No 101, 2017

c 21................................................ ad No 101, 2017

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

418 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

c 22................................................ ad No 101, 2017

c 23................................................ ad No 101, 2017

c 24................................................ ad No 101, 2017

c 24A ............................................. ad No 101, 2017

Part 5

Part 5 ............................................. ad No 170, 2018

Division 1

c 25................................................ ad No 170, 2018

Division 2

c 26................................................ ad No 170, 2018

c 27................................................ ad No 170, 2018

exp end of 31 Dec 2019 (Sch 1 (c 27(3)))

Division 3

c 28................................................ ad No 170, 2018

Division 4

c 29................................................ ad No 170, 2018

Part 6

Part 6 ............................................. ad No 84, 2017

c 30................................................ ad No 84, 2017

Part 8

Part 8 ............................................. ad No 169, 2018

c 39................................................ ad No 169, 2018

c 40................................................ ad No 169, 2018

Schedule 2

Schedule 2 ..................................... ad No 175, 2012

c 1 ................................................. ad No 175, 2012

c 2 ................................................. ad No 175, 2012

Schedule 3

Schedule 3 ..................................... ad No 174, 2012

Part 1

c 1 ................................................. ad No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 419

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Part 2

c 2 ................................................. ad No 174, 2012

c 2A ............................................... ad No 174, 2012 (as am by No 89, 2013)

c 2B ............................................... ad No 174, 2012 (as am by No 89, 2013)

Part 3

c 3 ................................................. ad No 174, 2012

Part 4

c 4 ................................................. ad No 174, 2012

c 5 ................................................. ad No 174, 2012

c 6 ................................................. ad No 174, 2012

c 7 ................................................. ad No 174, 2012

c 8 ................................................. ad No 174, 2012

Part 5

c 9 ................................................. ad No 174, 2012

Part 6

c 10................................................ ad No 174, 2012

c 11................................................ ad No 174, 2012

c 12................................................ ad No 174, 2012

c 13................................................ ad No 174, 2012

Part 7

c 14................................................ ad No 174, 2012

c 15................................................ ad No 174, 2012

c 16................................................ ad No 174, 2012

Part 8

c 17................................................ ad No 174, 2012

c 18................................................ ad No 174, 2012

c 19................................................ ad No 174, 2012

c 20................................................ ad No 174, 2012

c 21................................................ ad No 174, 2012

c 22................................................ ad No 174, 2012

c 23................................................ ad No 174, 2012

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

420 Fair Work Act 2009

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Part 9

c 24................................................ ad No 174, 2012

c 25................................................ ad No 174, 2012

c 26................................................ ad No 174, 2012

c 27................................................ ad No 174, 2012

c 28................................................ ad No 174, 2012

c 29................................................ ad No 174, 2012

c 30................................................ ad No 174, 2012

Part 10

c 31................................................ ad No 174, 2012

Part 11

c 32................................................ ad No 174, 2012

am No 126, 2015

Schedule 4

Schedule 4 ..................................... ad No 73, 2013

Part 1

c 1 ................................................. ad No 73, 2013

Part 2

c 2 ................................................. ad No 73, 2013

c 3 ................................................. ad No 73, 2013

c 4 ................................................. ad No 73, 2013

c 5 ................................................. ad No 73, 2013

c 6 ................................................. ad No 73, 2013

Part 3

c 7 ................................................. ad No 73, 2013

Part 4

c 8 ................................................. ad No 73, 2013

Part 4A

c 8A ............................................... ad No 73, 2013

Part 5

c 9 ................................................. ad No 73, 2013

Authorised Version C2020C00153 registered 05/05/2020

Endnotes

Endnote 4—Amendment history

Fair Work Act 2009 421

Compilation No. 37 Compilation date: 09/04/2020 Registered: 05/05/2020

Provision affected How affected

Part 6

c 10................................................ ad No 73, 2013

Part 7

c 11................................................ ad No 73, 2013

Schedule 5

Schedule 5 ..................................... ad No 156, 2015

Authorised Version C2020C00153 registered 05/05/2020

Chapter 4—Compliance and enforcement

Part 4-1—Civil remedies

Division 1—Introduction

537 Guide to this Part
538 Meanings of employee and employer

Division 2—Orders

Subdivision A—Applications for orders

539 Applications for orders in relation to contraventions of civil remedy provisions
540 Limitations on who may apply for orders etc.
541 Applications for orders in relation to safety net contractual entitlements
542 Entitlements under contracts
543 Applications for orders in relation to statutory entitlements derived from contracts
544 Time limit on applications

Subdivision B—Orders

545 Orders that can be made by particular courts
546 Pecuniary penalty orders
547 Interest up to judgment

Division 3—Small claims procedure

548 Plaintiffs may choose small claims procedure

Division 4—General provisions relating to civil remedies

549 Contravening a civil remedy provision is not an offence
550 Involvement in contravention treated in same way as actual contravention
551 Civil evidence and procedure rules for proceedings relating to civil remedy provisions
552 Civil proceedings after criminal proceedings
553 Criminal proceedings during civil proceedings
554 Criminal proceedings after civil proceedings
555 Evidence given in proceedings for pecuniary penalty not admissible in criminal proceedings
556 Civil double jeopardy
557 Course of conduct
557A Serious contravention of civil remedy provisions
557B Liability of bodies corporate for serious contravention
557C Presumption where records not provided
558 Regulations dealing with infringement notices

Division 4A—Responsibility of responsible franchisor entities and holding companies for certain contraventions

558A Meaning of franchisee entity and responsible franchisor entity
558B Responsibility of responsible franchisor entities and holding companies for certain contraventions
558C Right of responsible franchisor entity or holding company to recover

Division 5—Unclaimed money

559 Unclaimed money

Part 4-2—Jurisdiction and powers of courts

Division 1—Introduction

560 Guide to this Part
561 Meanings of employee and employer

Division 2—Jurisdiction and powers of the Federal Court

562 Conferring jurisdiction on the Federal Court
563 Exercising jurisdiction in the Fair Work Division of the Federal Court
564 No limitation on Federal Court’s powers
565 Appeals from eligible State or Territory courts

Division 3—Jurisdiction and powers of the Federal Circuit Court

566 Conferring jurisdiction on the Federal Circuit Court
567 Exercising jurisdiction in the Fair Work Division of the Federal Circuit Court
568 No limitation on Federal Circuit Court’s powers

Division 4—Miscellaneous

569 Minister’s entitlement to intervene
569A State or Territory Minister’s entitlement to intervene
570 Costs only if proceedings instituted vexatiously etc.
571 No imprisonment for failure to pay pecuniary penalty
572 Regulations dealing with matters relating to court proceedings

Chapter 5—Administration

Part 5-1—The Fair Work Commission

Division 1—Introduction

573 Guide to this Part
574 Meanings of employee and employer

Division 2—Establishment and functions of the Fair Work Commission

Subdivision A—Establishment and functions of the Fair Work Commission

575 Establishment of the Fair Work Commission
576 Functions of the FWC
577 Performance of functions etc. by the FWC
578 Matters the FWC must take into account in performing functions etc.
579 FWC has privileges and immunities of the Crown
580 Protection of FWC Members

Subdivision B—Functions and powers of the President

581 Functions of the President
581A Dealing with a complaint about an FWC Member
581B Code of Conduct
582 Directions by the President
583 President not subject to direction
584 Delegation of functions and powers of the President

Subdivision C—Protection of persons involved in handling etc. complaints about FWC Members

584B Protection of persons involved in handling etc. complaints about FWC Members

Division 3—Conduct of matters before the FWC

Subdivision A—Applications to the FWC

585 Applications in accordance with procedural rules
586 Correcting and amending applications and documents etc.
587 Dismissing applications
588 Discontinuing applications

Subdivision B—Conduct of matters before the FWC

589 Procedural and interim decisions
590 Powers of the FWC to inform itself
591 FWC not bound by rules of evidence and procedure
592 Conferences
593 Hearings
594 Confidential evidence
595 FWC’s power to deal with disputes

Subdivision C—Representation by lawyers and paid agents and Minister’s entitlement to make submissions

596 Representation by lawyers and paid agents
597 Minister’s entitlement to make submissions
597A State or Territory Minister’s entitlement to make submissions

Subdivision D—Decisions of the FWC

598 Decisions of the FWC
599 FWC not required to decide an application in terms applied for
600 Determining matters in the absence of a person
601 Writing and publication requirements for the FWC’s decisions
602 Correcting obvious errors etc. in relation to the FWC’s decisions
603 Varying and revoking the FWC’s decisions

Subdivision E—Appeals, reviews and referring questions of law

604 Appeal of decisions
605 Minister’s entitlement to apply for review of a decision
606 Staying decisions that are appealed or reviewed
607 Process for appealing or reviewing decisions
608 Referring questions of law to the Federal Court

Subdivision F—Miscellaneous

609 Procedural rules
610 Regulations dealing with any FWC matters
611 Costs

Division 4—Organisation of the FWC

Subdivision A—Functions etc. to be performed by a single FWC Member, a Full Bench or an Expert Panel

612 FWC’s functions etc. may generally be performed by single FWC Member
613 Appeal of decisions
614 Review of decisions by a Full Bench
615 The President may direct a Full Bench to perform function etc.
615A When the President must direct a Full Bench to perform function etc.
615B Transfer to a Full Bench from an FWC Member
615C Transfer to the President from an FWC Member or a Full Bench
616 FWC’s functions etc. that must be performed by a Full Bench
617 FWC’s functions etc. that must be performed by an Expert Panel

Subdivision B—Constitution of the FWC by a single FWC Member, a Full Bench or an Expert Panel

618 Constitution and decision-making of a Full Bench
619 Seniority of FWC Members
620 Constitution and decision-making of an Expert Panel
621 Reconstitution of the FWC when single FWC Member becomes unavailable
622 Reconstitution of the FWC when FWC Member of a Full Bench or an Expert Panel becomes unavailable
623 When new FWC Members begin to deal with matters
624 FWC’s decisions not invalid when improperly constituted

Subdivision C—Delegation of the FWC’s functions and powers

625 Delegation by the President of functions and powers of the FWC

Division 5—FWC Members

Subdivision A—Appointment of FWC Members

626 Appointment of FWC Members
627 Qualifications for appointment of FWC Members
628 Basis of appointment of FWC Members
629 Period of appointment of FWC Members

Subdivision B—Terms and conditions of FWC Members

629A Status of the President
630 Appointment of a Judge not to affect tenure etc.
631 Dual federal and State appointments of Deputy Presidents or Commissioners
632 Dual federal and Territory appointments of Deputy Presidents or Commissioners
633 Outside work of FWC Members
634 Oath or affirmation of office
635 Remuneration of the President
636 Application of Judges’ Pensions Act to the President
637 Remuneration of FWC Members other than the President
638 Remuneration of Deputy Presidents or Commissioners performing duties on a part-time basis
639 Leave of absence of FWC Members other than the President
640 Disclosure of interests by FWC Members other than the President
641 Termination of appointment on grounds of misbehaviour or incapacity
641A Minister may handle complaints about FWC Members
641B Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012
642 Suspension on grounds of misbehaviour or incapacity
643 Termination of appointment for bankruptcy, etc.
644 Termination of appointment for outside work
645 Resignation of FWC Members
646 Other terms and conditions of FWC Members
647 Appointment of acting President and Vice President
648 Appointment of acting Deputy Presidents and Commissioners

Division 6—Cooperation with the States

649 President to cooperate with prescribed State industrial authorities
650 Provision of administrative support

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

651 Seals
652 Annual report
653 Reports about making enterprise agreements, individual flexibility arrangements etc.
653A Arrangements with the Federal Court and the Federal Circuit Court
654 President must provide certain information etc. to the Minister and Fair Work Ombudsman
655 Disclosure of information by the FWC

Division 8—General Manager, staff and consultants

Subdivision A—Functions of the General Manager

656 Establishment
657 Functions and powers of the General Manager
658 Directions from the President
659 General Manager not otherwise subject to direction

Subdivision B—Appointment and terms and conditions of the General Manager

660 Appointment of the General Manager
661 Remuneration of the General Manager
662 Leave of absence of the General Manager
663 Outside work of the General Manager
664 Disclosure of interests to the President
665 Resignation of the General Manager
666 Termination of appointment of the General Manager
667 Other terms and conditions of the General Manager
668 Appointment of acting General Manager
669 Minister to consult the President

Subdivision C—Staff and consultants

670 Staff
671 Delegation by General Manager to staff
672 Persons assisting the FWC
673 Consultants

Subdivision D—Application of the finance law

673A Application of the finance law

Division 9—Offences relating to the Fair Work Commission

674 Offences in relation to the FWC
675 Contravening an FWC order
676 Intimidation etc.
677 Offences in relation to attending before the FWC
678 False or misleading evidence

Part 5-2—Office of the Fair Work Ombudsman

Division 1—Introduction

679 Guide to this Part
680 Meanings of employee and employer

Division 2—Fair Work Ombudsman

Subdivision A—Establishment and functions and powers of the Fair Work Ombudsman

681 Establishment
682 Functions of the Fair Work Ombudsman
683 Delegation by the Fair Work Ombudsman
684 Directions from the Minister
685 Minister may require reports
686 Annual report

Subdivision B—Appointment and terms and conditions of the Fair Work Ombudsman

687 Appointment of the Fair Work Ombudsman
688 Remuneration of the Fair Work Ombudsman
689 Leave of absence of the Fair Work Ombudsman
690 Outside work of the Fair Work Ombudsman
692 Resignation of the Fair Work Ombudsman
693 Termination of appointment of the Fair Work Ombudsman
694 Other terms and conditions of the Fair Work Ombudsman
695 Appointment of acting Fair Work Ombudsman

Division 3—Office of the Fair Work Ombudsman

Subdivision A—Establishment of the Office of the Fair Work Ombudsman

696 Establishment of the Office of the Fair Work Ombudsman

Subdivision B—Staff and consultants etc.

697 Staff
698 Persons assisting the Fair Work Ombudsman
699 Consultants

Subdivision C—Appointment of Fair Work Inspectors

700 Appointment of Fair Work Inspectors
701 Fair Work Ombudsman is a Fair Work Inspector
702 Identity cards

Subdivision D—Functions and powers of Fair Work Inspectors—general

703 Conditions and restrictions on functions and powers
704 General directions by the Fair Work Ombudsman
705 Particular directions by the Fair Work Ombudsman
706 Purpose for which powers of inspectors may be exercised
707 When powers of inspectors may be exercised
707A Hindering or obstructing the Fair Work Ombudsman and inspectors etc.

Subdivision DA—Power to enter premises

708 Power of inspectors to enter premises
709 Powers of inspectors while on premises
710 Persons assisting inspectors

Subdivision DB—Powers to ask questions and require records and documents

711 Power to ask for person’s name and address
712 Power to require persons to produce records or documents
712A Minister may nominate AAT presidential members to issue FWO notices
712AA Fair Work Ombudsman may apply to nominated AAT presidential member for FWO notice
712AB Issue of FWO notice
712AC Form and content of FWO notice
712AD Fair Work Ombudsman may give FWO notice to person in relation to whom it is issued and vary time for compliance
712AE Conduct of examination
712B Requirement to comply with FWO notice
712C Payment for expenses incurred in attending as required by an FWO notice
712D Protection from liability relating to FWO notices
712E Fair Work Ombudsman must notify Commonwealth Ombudsman of issue of FWO notice
712F Review and report by Commonwealth Ombudsman

Subdivision DC—Other rules relating to answers, records and documents

713 Self-incrimination etc.
713A Certain records and documents are inadmissible
713AA Legal professional privilege
714 Power to keep records or documents
714A Reports not to include information relating to an individual’s affairs

Subdivision DD—Enforceable undertakings and compliance notices

715 Enforceable undertakings relating to contraventions of civil remedy provisions
716 Compliance notices
717 Review of compliance notices

Subdivision E—Disclosure of information by the Office of the Fair Work Ombudsman

718 Disclosure of information by the Office of the Fair Work Ombudsman

Subdivision F—False or misleading information or documents

718A False or misleading information or documents

Chapter 6—Miscellaneous

Part 6-1—Multiple actions

Division 1—Introduction

719 Guide to this Part
720 Meanings of employee and employer

Division 2—Certain actions not permitted if alternative action can be taken

721 Equal remuneration applications
722 Notification and consultation requirements applications
723 Unlawful termination applications

Division 3—Preventing multiple actions

Subdivision A—Equal remuneration applications

724 Equal remuneration applications

Subdivision B—Applications and complaints relating to dismissal

725 General rule
726 Dismissal remedy bargaining order applications
727 General protections FWC applications
728 General protections court applications
729 Unfair dismissal applications
730 Unlawful termination FWC applications
731 Unlawful termination court applications
732 Applications and complaints under other laws
733 Dismissal does not include failure to provide benefits

Subdivision C—General protections applications that do not relate to dismissal

734 General rule

Part 6-2—Dealing with disputes

Division 1—Introduction

735 Guide to this Part
736 Meanings of employee and employer

Division 2—Dealing with disputes

Subdivision A—Model term about dealing with disputes

737 Model term about dealing with disputes

Subdivision B—Dealing with disputes

738 Application of this Division
739 Disputes dealt with by the FWC
740 Dispute dealt with by persons other than the FWC

Part 6-3—Extension of National Employment Standards entitlements

Division 1—Introduction

741 Guide to this Part
742 Meanings of employee and employer

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

Subdivision A—Main provisions

743 Object of this Division
744 Extending the entitlement to unpaid parental leave and related entitlements
745 Contravening the extended parental leave provisions
746 References to the National Employment Standards include extended parental leave provisions
747 State and Territory laws that are not excluded

Subdivision B—Modifications of the extended parental leave provisions

748 Non-national system employees are not award/agreement free employees
749 Modification of meaning of base rate of pay for pieceworkers
750 Modification of meaning of full rate of pay for pieceworkers
751 Modification of meaning of ordinary hours of work—if determined by State industrial instrument
752 Modification of meaning of ordinary hours of work—if not determined by State industrial instrument
753 Modification of meaning of ordinary hours of work—regulations may prescribe usual weekly hours
754 Modification of meaning of pieceworker
755 Modification of provision about interaction with paid leave
756 Modification of provision about relationship between National Employment Standards and agreements
757 Modification of power to make regulations

Division 3—Extension of entitlement to notice of termination or payment in lieu of notice

Subdivision A—Main provisions

758 Object of this Division
759 Extending entitlement to notice of termination or payment in lieu of notice
760 Contravening the extended notice of termination provisions
761 References to the National Employment Standards include extended notice of termination provisions
762 State and Territory laws that are not excluded

Subdivision B—Modifications of the extended notice of termination provisions

763 Non-national system employees are not award/agreement free employees
764 Modification of meaning of full rate of pay for pieceworkers
765 Modification of meaning of pieceworker
766 Modification of provision about notice of termination by employee
767 Modification of provision about relationship between National Employment Standards and agreements
768 Modification of power to make regulations

Part 6-3A—Transfer of business from a State public sector employer

Division 1—Introduction

768AA Guide to this Part
768AB Meanings of employee and employer

Division 2—Copying terms of State instruments when there is a transfer of business

768AC What this Division is about
768AD When does a transfer of business occur?
768AE Meaning of transferring employee, termination time and re-employment time

Division 3—Copied State instruments

Subdivision A—Guide to this Division

768AF What this Division is about

Subdivision B—Copied State instruments

768AG Contravening a copied State instrument
768AH What is a copied State instrument?
768AI What is a copied State award?
768AJ What is a State award?
768AK What is a copied State employment agreement?
768AL What is a State employment agreement?
768AM When does a copied State instrument apply to a person?
768AN When does a copied State instrument cover a person?
768AO When is a copied State instrument in operation?

Division 4—Interaction between copied State instruments and the NES, modern awards and enterprise agreements

Subdivision A—Guide to this Division

768AP What this Division is about

Subdivision B—Interaction with the NES

768AQ Interaction between the NES and a copied State instrument
768AR Provisions of the NES that allow instruments to contain particular kinds of terms

Subdivision C—Interaction with modern awards

768AS Modern awards and copied State awards
768AT Modern awards and copied State employment agreements

Subdivision D—Interaction with enterprise agreements

768AU Enterprise agreements and copied State instruments

Division 5—Variation and termination of copied State instruments

Subdivision A—Guide to this Division

768AV What this Division is about

Subdivision B—Variation of copied State instruments

768AW Variation in limited circumstances
768AX Variation of copied State instruments

Subdivision C—Termination of copied State instruments

768AY Termination in limited circumstances

Division 6—FWC orders about coverage of copied State instruments and other instruments

Subdivision A—Guide to this Division

768AZ What this Division is about
768AZA Orders in relation to a transfer of business

Subdivision B—Coverage orders

768BA FWC orders about coverage for transferring employees
768BB FWC orders about coverage for employee organisations

Division 7—FWC orders about consolidating copied State instruments etc.

Subdivision A—Guide to this Division

768BC What this Division is about
768BCA Orders in relation to a transfer of business

Subdivision B—Consolidation orders in relation to transferring employees

768BD Consolidation orders in relation to transferring employees
768BE Consolidation order to deal with application and coverage
768BF Effect of this Act after a consolidation order is made

Subdivision C—Consolidation orders in relation to non-transferring employees

768BG Consolidation orders in relation to non-transferring employees
768BH Consolidation order to deal with application and coverage
768BI Effect of this Act after a consolidation order is made

Division 8—Special rules for copied State instruments

Subdivision A—Guide to this Division

768BJ What this Division is about

Subdivision B—Terms about disputes

768BK Where no term dealing with disputes

Subdivision C—Service and entitlements of a transferring employee

768BL Service for the purposes of this Act
768BM NES—working out non-accruing entitlements
768BN NES—working out accruing entitlements
768BO Copied State instrument—service
768BP Copied State instrument—working out non-accruing entitlements
768BQ Copied State instrument—working out accruing entitlements

Subdivision D—Cessation of copied State awards: avoiding reductions in take-home pay

768BR Cessation not intended to result in reduction in take-home pay
768BS Orders remedying reductions in take-home pay
768BT Contravening a take-home pay order
768BU How long a take-home pay order continues to apply
768BV Interaction of take-home pay orders with modern awards and enterprise agreements
768BW Application of this Act to take-home pay orders

Subdivision E—Modification of this Act

768BX Modification of this Act for copied State instruments

Subdivision F—Modification of the Transitional Act

768BY Modification of the Transitional Act for copied State instruments

Subdivision G—Modification of the Registered Organisations Act

768BZ Modification of the Registered Organisations Act for copied State instruments

Division 9—Regulations

768CA Regulations

Part 6-4—Additional provisions relating to termination of employment

Division 1—Introduction

769 Guide to this Part
770 Meanings of employee and employer

Division 2—Termination of employment

771 Object of this Division
772 Employment not to be terminated on certain grounds
773 Application for the FWC to deal with a dispute
774 Time for application
775 Application fees
776 Dealing with a dispute (other than by arbitration)
777 Dealing with a dispute by arbitration
778 Taking a dispute to court
779 Appeal rights
779A Costs orders against parties
780 Costs orders against lawyers and paid agents
781 Applications for costs orders
781A Schedule of costs
782 Contravening costs orders
783 Reason for action to be presumed unless proved otherwise

Division 3—Notification and consultation requirements relating to certain terminations of employment

Subdivision A—Object of this Division

784 Object of this Division

Subdivision B—Requirement to notify Centrelink

785 Employer to notify Centrelink of certain proposed terminations

Subdivision C—Failure to notify or consult registered employee associations

786 FWC may make orders where failure to notify or consult registered employee associations about terminations
787 Orders that the FWC may make
788 Application to the FWC for order

Subdivision D—Limits on scope of this Division

789 Limits on scope of this Division

Part 6-4A—Special provisions about TCF outworkers

Division 1—Introduction

789AA Guide to this Part
789AB Meanings of employee and employer
789AC Objects of this Part

Division 2—TCF contract outworkers taken to be employees in certain circumstances

789BA Provisions covered by this Division
789BB TCF contract outworkers taken to be employees in certain circumstances
789BC Regulations relating to TCF outworkers who are taken to be employees

Division 3—Recovery of unpaid amounts

789CA When this Division applies
789CB Liability of indirectly responsible entity for unpaid amount
789CC Demand for payment from an apparent indirectly responsible entity
789CD Court order for entity to pay amount demanded
789CE Effect of payment by entity (including entity’s right to recover from responsible person)
789CF Division does not limit other liabilities or rights

Division 4—Code of practice relating to TCF outwork

789DA Regulations may provide for a code
789DB Matters that may be dealt with in TCF outwork code
789DC Persons on whom obligations may be imposed by TCF outwork code
789DD Other general matters relating to content of TCF outwork code
789DE Relationship between the TCF outwork code and other instruments

Division 5—Miscellaneous

789EA Part not intended to exclude or limit State or Territory laws relating to outworkers

Part 6-4B—Workers bullied at work

Division 1—Introduction

789FA Guide to this Part
789FB Meanings of employee and employer

Division 2—Stopping workers being bullied at work

789FC Application for an FWC order to stop bullying
789FD When is a worker bullied at work?
789FE FWC to deal with applications promptly
789FF FWC may make orders to stop bullying
789FG Contravening an order to stop bullying
789FH Actions under work health and safety laws permitted
789FI This Part is not to prejudice Australia’s defence, national security etc.
789FJ Declarations by the Chief of the Defence Force
789FK Declarations by the Director-General of Security
789FL Declarations by the Director-General of ASIS

Part 6-4C—Coronavirus economic response

Division 1—Introduction

789GA Guide to this Part
789GB Object
789GC Definitions

Division 2—Employer payment obligations

789GD Obligation of employer to satisfy the wage condition
789GDA Minimum payment guarantee
789GDB Hourly rate of pay guarantee

Division 3—Jobkeeper enabling stand down

789GDC Jobkeeper enabling stand down

Division 4—Duties, location and days of work

789GE Duties of work
789GF Location of work
789GG Days of work etc.

Division 5—Taking paid annual leave

789GJ Taking paid annual leave

Division 6—Rules relating to jobkeeper enabling directions

789GK Reasonableness
789GL Continuing the employment of employees
789GM Consultation
789GN Form of direction
789GP Duration
789GQ Compliance

Division 7—Service

789GR Service

Division 8—Accrual rules

789GS Accrual rules

Division 9—Employee requests for secondary employment, training etc.

789GU Employee requests for secondary employment, training etc.

Division 10—Dealing with disputes

789GV FWC may deal with a dispute about the operation of this Part
789GW Contravening an FWC order dealing with a dispute about the operation of this Part

Division 11—Exclusions

789GX Exclusions

Division 12—Protections

789GXA Misuse of jobkeeper enabling direction
789GY Protection of workplace rights
789GZ Relationship with other laws etc.
789GZA Redundancy

Division 13—Review of this Part

789GZB Review of this Part

Part 6-5—Miscellaneous

Division 1—Introduction

790 Guide to this Part
791 Meanings of employee and employer

Division 2—Miscellaneous

792 Delegation by Minister
793 Liability of bodies corporate
794 Signature on behalf of body corporate
795 Public sector employer to act through employing authority
795A The Schedules
796 Regulations—general
796A Regulations conferring functions
797 Regulations dealing with offences
798 Regulations dealing with civil penalties
799 Regulations dealing with infringement notices
800 Regulations dealing with exhibiting fair work instruments

Schedule 1—Application, saving and transitional provisions relating to amendments of this Act

Part 1—Amendments made by the Fair Work Amendment (Textile, Clothing and Footwear Industry) Act 2012

1 Definitions
2 Section 789BB of amended Act applies to contracts entered into after commencement
3 Effect on TCF contract outworker’s entitlements
4 Fair work instruments etc. made before commencement
5 Application of Division 3 of Part 6-4A of amended Act
6 Application of subsection 203(2A) of amended Act
7 Regulations dealing with various matters

Part 2—Amendments made by the Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012

8 Definitions
9 Application of sections 149A and 155A of amended Act
10 FWC to vary certain modern awards
11 FWC to update text of certain modern awards
12 Application of paragraph 194(h) of amended Act

Part 3—Amendments made by the Fair Work Amendment (Respect for Emergency Services Volunteers) Act 2016

13 Definitions
14 Application of amendments—objectionable emergency management terms

Part 4—Amendments made by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017

15 Definitions
16 Application of amendments—unreasonable requirements to spend or pay amounts
17 Saving of regulations—unreasonable deductions
18 Application of amendments—increasing maximum penalties for contraventions of certain civil remedy provisions
19 Application of amendments—responsibility of responsible franchisor entities and holding companies
20 Application of amendments—hindering or obstructing the Fair Work Ombudsman and inspectors etc.
21 Application of power to give FWO notices
22 Application of amendments relating to self-incrimination etc.
23 Application of requirement for reports not to include information relating to an individual’s affairs
24 Application of amendments—false or misleading information or documents
24A Application of amendments—presumption where records not provided

Part 5—Amendments made by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018

Division 1—General

25 Definitions

Division 2—Amendments made by Schedule 1 to the amending Act

26 Incomplete review of modern award
27 Dismissing applications

Division 3—Amendments made by Schedule 2 to the amending Act

28 Application of amendments—when employees have genuinely agreed to an enterprise agreement

Division 4—Amendments made by Schedule 3 to the amending Act

29 Application of section 641B of the amended Act

Part 6—Amendments made by the Fair Work Amendment (Corrupting Benefits) Act 2017

30 Disclosure by organisations and employers

Part 8—Amendments made by the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018

39 Entitlement to unpaid family and domestic violence leave
40 Resolving uncertainties and difficulties about interaction between enterprise agreements and unpaid family and domestic violence leave

Schedule 2—Amendments made by the Fair Work Amendment (Transfer of Business) Act 2012

1 Definitions
2 Application of the amendments made by the amending Act

Schedule 3—Amendments made by the Fair Work Amendment Act 2012

Part 1—Preliminary

1 Definitions

Part 2—Default superannuation (Schedule 1)

2 Schedule 1 to the amending Act
2A Transitional provision—when first variations of default fund term take effect
2B Transitional provision—modern awards made on or after 1 January 2014

Part 3—Modern awards (Schedule 3)

3 Part 1 of Schedule 3 to the amending Act

Part 4—Enterprise agreements (Schedule 4)

4 Part 1 of Schedule 4 to the amending Act
5 Part 2 of Schedule 4 to the amending Act
6 Part 3 of Schedule 4 to the amending Act
7 Part 4 of Schedule 4 to the amending Act
8 Part 5 of Schedule 4 to the amending Act

Part 5—General protections (Schedule 5)

9 Part 1 of Schedule 5 to the amending Act

Part 6—Unfair dismissal (Schedule 6)

10 Part 1 of Schedule 6 to the amending Act
11 Part 2 of Schedule 6 to the amending Act
12 Part 3 of Schedule 6 to the amending Act
13 Part 4 of Schedule 6 to the amending Act

Part 7—Industrial action (Schedule 7)

14 Part 1 of Schedule 7 to the amending Act
15 Part 2 of Schedule 7 to the amending Act
16 Part 3 of Schedule 7 to the amending Act

Part 8—The Fair Work Commission (Schedule 8)

17 Part 1 of Schedule 8 to the amending Act
18 Part 2 of Schedule 8 to the amending Act
19 Part 4 of Schedule 8 to the amending Act
20 Part 5 of Schedule 8 to the amending Act
21 Part 6 of Schedule 8 to the amending Act
22 Part 7 of Schedule 8 to the amending Act
23 Part 8 of Schedule 8 to the amending Act

Part 9—Changing the name of Fair Work Australia (Schedule 9)

24 Transitional provision—President
25 Transitional provision—Deputy President
26 Transitional provision—Commissioner
27 Transitional provision—Minimum Wage Panel Member
28 Operation of laws—things done by, or in relation to, FWA
29 Transitional provision—General Manager and staff of FWA
30 Operation of section 7 and subsection 25B(1) of the Acts Interpretation Act 1901 not limited

Part 10—Other amendments (Schedule 10)

31 Part 1 of Schedule 10 to the amending Act

Part 11—Regulations

32 Regulations about application, transitional and saving matters

Schedule 4—Amendments made by the Fair Work Amendment Act 2013

Part 1—Preliminary

1 Definition

Part 2—Family-friendly measures (Schedule 1)

2 Part 1 of Schedule 1 to the amending Act
3 Part 2 of Schedule 1 to the amending Act
4 Part 3 of Schedule 1 to the amending Act
5 Part 4 of Schedule 1 to the amending Act
6 Part 5 of Schedule 1 to the amending Act

Part 3—Modern awards objective (Schedule 2)

7 Schedule 2 to the amending Act

Part 4—Anti-bullying measure (Schedule 3)

8 Schedule 3 to the amending Act

Part 4A—Conferences (Schedule 3A)

8A Schedule 3A to the amending Act

Part 5—Right of entry (Schedule 4)

9 Schedule 4 to the amending Act

Part 6—Consent arbitration for general protections and unlawful termination (Schedule 4A)

10 Schedule 4A to the amending Act

Part 7—The FWC (Schedule 5)

11 Item 4 of Schedule 5 to the amending Act

Schedule 5—Amendments made by the Fair Work Amendment Act 2015

1 Definition
2 Part 1 of Schedule 1 to the amending Act
9 Part 5 of Schedule 1 to the amending Act
11 Part 7 of Schedule 1 to the amending Act
14 Part 10 of Schedule 1 to the amending Act

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