FAIR WORK ACT 2009 (NO. 28, 2009)
Table of Provisions
CHAPTER 1--Introduction
PART 1-1--INTRODUCTION
Division 1--Preliminary
Division 2--Object of this Act
- 3 Object of this Act Guide to this Act
- 4 Guide to this Act
- 5 Terms and conditions of employment (Chapter 2)
- 6 Rights and responsibilities of employees, employers, organisations etc. (Chapter 3)
- 7 Compliance and enforcement (Chapter 4)
- 8 Administration (Chapter 5)
- 9 Miscellaneous (Chapter 6)
PART 1-2--DEFINITIONS
Division 1--Introduction
Division 2--The Dictionary
- 12 The Dictionary
Division 3--Definitions relating to the meanings of employee, employer etc
- 13 Meaning of national system employee
- 14 Meaning of national system employer
- 15 Ordinary meanings of employee and employer
Division 4--Other definitions
- 16 Meaning of base rate of pay
- 17 Meaning of child of a person
- 18 Meaning of full rate of pay
- 19 Meaning of industrial action
- 20 Meaning of ordinary hours of work for award/agreement free employees
- 21 Meaning of pieceworker
- 22 Meanings of service and continuous service
- 23 Meaning of small business employer
PART 1-3--APPLICATION OF THIS ACT
Division 1--Introduction
Division 2--Interaction with State and Territory laws
- 26 Act excludes State or Territory industrial laws
- 27 State and Territory laws that are not excluded by section 26
- 28 Act excludes prescribed State and Territory laws
- 29 Interaction of modern awards and enterprise agreements with State and Territory laws
- 30 Act may exclude State and Territory laws etc. in other cases
Division 3--Geographical application of this Act
- 31 Exclusion of persons etc. insufficiently connected with Australia
- 32 Regulations may modify application of this Act in certain parts of Australia
- 33 Extension of this Act to the exclusive economic zone and the continental shelf
- 34 Extension of this Act beyond the exclusive economic zone and the continental shelf
- 35 Meanings of Australian employer and Australian-based employee
- 35A Regulations excluding application of Act
- 36 Geographical application of offences
Division 4--Miscellaneous
- 37 Act binds Crown
- 38 Act not to apply so as to exceed Commonwealth power
- 39 Acquisition of property
- 40 Interaction between fair work instruments and public sector employment laws
CHAPTER 2--Terms and conditions of employment
PART 2-1--CORE PROVISIONS FOR THIS CHAPTER
Division 1--Introduction
Division 2--Core provisions for this Chapter
Subdivision A--Terms and conditions of employment provided under this Act- 43 Terms and conditions of employment provided under this Act Subdivision B--Terms and conditions of employment provided by the National Employment Standards
- 44 Contravening the National Employment Standards Subdivision C--Terms and conditions of employment provided by a modern award
- 45 Contravening a modern award
- 46 The significance of a modern award applying to a person
- 47 When a modern award applies to an employer, employee, organisation or outworker entity
- 48 When a modern award covers an employer, employee, organisation or outworker entity
- 49 When a modern award is in operation Subdivision D--Terms and conditions of employment provided by an enterprise agreement
- 50 Contravening an enterprise agreement
- 51 The significance of an enterprise agreement applying to a person
- 52 When an enterprise agreement applies to an employer, employee or employee organisation
- 53 When an enterprise agreement covers an employer, employee or employee organisation
- 54 When an enterprise agreement is in operation
Division 3--Interaction between the National Employment Standards, modern awards and enterprise agreements
Subdivision A--Interaction between the National Employment Standards and a modern award or an enterprise agreement- 55 Interaction between the National Employment Standards and a modern award or enterprise agreement
- 56 Terms of a modern award or enterprise agreement contravening section 55 have no effect Subdivision B--Interaction between modern awards and enterprise agreements
- 57 Interaction between modern awards and enterprise agreements
- 57A Designated outworker terms of a modern award continue to apply Subdivision C--Interaction between one or more enterprise agreements
- 58 Only one enterprise agreement can apply to an employee
PART 2-2--THE NATIONAL EMPLOYMENT STANDARDS
Division 1--Introduction
Division 2--The National Employment Standards
- 61 The National Employment Standards are minimum standards applying to employment of employees
Division 3--Maximum weekly hours
- 62 Maximum weekly hours
- 63 Modern awards and enterprise agreements may provide for averaging of hours of work
- 64 Averaging of hours of work for award/agreement free employees
Division 4--Requests for flexible working arrangements
Division 5--Parental leave and related entitlements
Subdivision A--General- 67 General rule--employee must have completed at least 12 months of service
- 68 General rule for adoption-related leave--child must be under 16 etc.
- 69 Transfer of employment situations in which employee is entitled to continue on leave etc. Subdivision B--Parental leave
- 70 Entitlement to unpaid parental leave
- 71 The period of leave--other than for members of an employee couple who each intend to take leave
- 72 The period of leave--members of an employee couple who each intend to take leave
- 73 Pregnant employee may be required to take unpaid parental leave within 6 weeks before the birth
- 74 Notice and evidence requirements
- 75 Extending period of unpaid parental leave--extending to use more of available parental leave period
- 76 Extending period of unpaid parental leave--extending for up to 12 months beyond available parental leave period
- 77 Reducing period of unpaid parental leave
- 78 Employee who ceases to have responsibility for care of child
- 79 Interaction with paid leave Subdivision C--Other entitlements
- 80 Unpaid special maternity leave
- 81 Transfer to a safe job
- 82 Employee on paid no safe job leave may be asked to provide a further medical certificate
- 83 Consultation with employee on unpaid parental leave
- 84 Return to work guarantee
- 85 Unpaid pre-adoption leave
Division 6--Annual leave
- 86 Division applies to employees other than casual employees
- 87 Entitlement to annual leave
- 88 Taking paid annual leave
- 89 Employee not taken to be on paid annual leave at certain times
- 90 Payment for annual leave
- 91 Transfer of employment situations that affect entitlement to payment for period of untaken paid annual leave
- 92 Paid annual leave must not be cashed out except in accordance with permitted cashing out terms
- 93 Modern awards and enterprise agreements may include terms relating to cashing out and taking paid annual leave
- 94 Cashing out and taking paid annual leave for award/agreement free employees
Division 7--Personal
Subdivision A--Paid personal- 95 Subdivision applies to employees other than casual employees
- 96 Entitlement to paid personal/carer's leave
- 97 Taking paid personal/carer's leave
- 98 Employee taken not to be on paid personal/carer's leave on public holiday
- 99 Payment for paid personal/carer's leave
- 100 Paid personal/carer's leave must not be cashed out except in accordance with permitted cashing out terms
- 101 Modern awards and enterprise agreements may include terms relating to cashing out paid personal/carer's leave Subdivision B--Unpaid carer's leave
- 102 Entitlement to unpaid carer's leave
- 103 Taking unpaid carer's leave Subdivision C--Compassionate leave
- 104 Entitlement to compassionate leave
- 105 Taking compassionate leave
- 106 Payment for compassionate leave (other than for casual employees) Subdivision D--Notice and evidence requirements
- 107 Notice and evidence requirements
Division 8--Community service leave
- 108 Entitlement to be absent from employment for engaging in eligible community service activity
- 109 Meaning of eligible community service activity
- 110 Notice and evidence requirements
- 111 Payment to employees (other than casuals) on jury service
- 112 State and Territory laws that are not excluded
Division 9--Long service leave
- 113 Entitlement to long service leave
- 113A Enterprise agreements may contain terms discounting service under prior agreements etc. in certain circumstances
Division 10--Public holidays
- 114 Entitlement to be absent from employment on public holiday
- 115 Meaning of public holiday
- 116 Payment for absence on public holiday
Division 11--Notice of termination and redundancy pay
Subdivision A--Notice of termination or payment in lieu of notice- 117 Requirement for notice of termination or payment in lieu
- 118 Modern awards and enterprise agreements may provide for notice of termination by employees Subdivision B--Redundancy pay
- 119 Redundancy pay
- 120 Variation of redundancy pay for other employment or incapacity to pay
- 121 Exclusions from obligation to pay redundancy pay
- 122 Transfer of employment situations that affect the obligation to pay redundancy pay Subdivision C--Limits on scope of this Division
- 123 Limits on scope of this Division
Division 12--Fair Work Information Statement
- 124 Fair Work Ombudsman to prepare and publish Fair Work Information Statement
- 125 Giving new employees the Fair Work Information Statement
Division 13--Miscellaneous
- 126 Modern awards and enterprise agreements may provide for school-based apprentices and trainees to be paid loadings in lieu
- 127 Regulations about what modern awards and enterprise agreements can do
- 128 Relationship between National Employment Standards and agreements etc. permitted by this Part for award/agreement free employees
- 129 Regulations about what can be agreed to etc. in relation to award/agreement free employees
- 130 Restriction on taking or accruing leave or absence while receiving workers' compensation
- 131 Relationship with other Commonwealth laws
PART 2-3--MODERN AWARDS
Division 1--Introduction
Division 2--Overarching provisions
- 134 The modern awards objective
- 135 Special provisions relating to modern award minimum wages
Division 3--Terms of modern awards
Subdivision A--Preliminary- 136 What can be included in modern awards
- 137 Terms that contravene section 136 have no effect
- 138 Achieving the modern awards objective Subdivision B--Terms that may be included in modern awards
- 139 Terms that may be included in modern awards--general
- 140 Outworker terms
- 141 Industry-specific redundancy schemes
- 142 Incidental and machinery terms Subdivision C--Terms that must be included in modern awards
- 143 Coverage terms
- 144 Flexibility terms
- 145 Effect of individual flexibility arrangement that does not meet requirements of flexibility term
- 146 Terms about settling disputes
- 147 Ordinary hours of work
- 148 Base and full rates of pay for pieceworkers
- 149 Automatic variation of allowances Subdivision D--Terms that must not be included in modern awards
- 150 Objectionable terms
- 151 Terms about payments and deductions for benefit of employer etc.
- 152 Terms about right of entry
- 153 Terms that are discriminatory
- 154 Terms that contain State-based differences
- 155 Terms dealing with long service leave
Division 4--4 yearly reviews of modern awards
- 156 4 yearly reviews of modern awards to be conducted
Division 5--Exercising modern award powers outside 4 yearly reviews and annual wage reviews
Subdivision A--Exercise of powers if necessary to achieve modern awards objective- 157 FWA may vary etc. modern awards if necessary to achieve modern awards objective
- 158 Applications to vary, revoke or make modern award Subdivision B--Other situations
- 159 Variation of modern award to update or omit name of employer, organisation or outworker entity
- 160 Variation of modern award to remove ambiguity or uncertainty or correct error
- 161 Variation of modern award on referral by HREOC
Division 6--General provisions relating to modern award powers
- 162 General
- 163 Special criteria relating to changing coverage of modern awards
- 164 Special criteria for revoking modern awards
- 165 When variation determinations come into operation, other than determinations setting, varying or revoking modern award minimum wages
- 166 When variation determinations setting, varying or revoking modern award minimum wages come into operation
- 167 Special rules relating to retrospective variations of awards
- 168 Varied modern award must be published
PART 2-4--ENTERPRISE AGREEMENTS
Division 1--Introduction
- 169 Guide to this Part Subdivision A--of Division 4 deals with the approval of proposed enterprise agreements by employees and sets out when an enterprise agreement is made. Subdivision B--of Division 4 deals with the approval of enterprise agreements by FWA. The remaining Subdivisions of the Division deal with certain approval requirements, including in relation to genuine agreement by employees and the better off overall test.
- 170 Meanings of employee and employer
- 171 Objects of this Part
Division 2--Employers and employees may make enterprise agreements
- 172 Making an enterprise agreement
Division 3--Bargaining and representation during bargaining
- 173 Notice of employee representational rights
- 174 Content of notice of employee representational rights
- 176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements
- 178 Appointment of bargaining representatives--other matters
- 178A Revocation of appointment of bargaining representatives etc.
Division 4--Approval of enterprise agreements
Subdivision A--Pre-approval steps and applications for FWA approval- 180 Employees must be given a copy of a proposed enterprise agreement etc.
- 181 Employers may request employees to approve a proposed enterprise agreement
- 182 When an enterprise agreement is made
- 183 Entitlement of an employee organisation to have an enterprise agreement cover it
- 184 Multi-enterprise agreement to be varied if not all employees approve the agreement
- 185 Bargaining representative must apply for FWA approval of an enterprise agreement Subdivision B--Approval of enterprise agreements by FWA
- 186 When FWA must approve an enterprise agreement--general requirements
- 187 When FWA must approve an enterprise agreement--additional requirements
- 188 When employees have genuinely agreed to an enterprise agreement
- 189 FWA may approve an enterprise agreement that does not pass better off overall test--public interest test
- 190 FWA may approve an enterprise agreement with undertakings
- 191 Effect of undertakings
- 192 When FWA may refuse to approve an enterprise agreement Subdivision C--Better off overall test
- 193 Passing the better off overall test Subdivision D--Unlawful terms
- 194 Meaning of unlawful term
- 195 Meaning of discriminatory term Subdivision E--Approval requirements relating to particular kinds of employees
- 196 Shiftworkers
- 197 Pieceworkers--enterprise agreement includes pieceworker term
- 198 Pieceworkers--enterprise agreement does not include a pieceworker term
- 199 School-based apprentices and school-based trainees
- 200 Outworkers Subdivision F--Other matters
- 201 Approval decision to note certain matters
Division 5--Mandatory terms of enterprise agreements
- 202 Enterprise agreements to include a flexibility term etc.
- 203 Requirements to be met by a flexibility term
- 204 Effect of arrangement that does not meet requirements of flexibility term
- 205 Enterprise agreements to include a consultation term etc.
Division 6--Base rate of pay under enterprise agreements
- 206 Base rate of pay under an enterprise agreement must not be less than the modern award rate or the national minimum wage order rate etc.
Division 7--Variation and termination of enterprise agreements
Subdivision A--Variation of enterprise agreements by employers and employees- 207 Variation of an enterprise agreement may be made by employers and employees
- 208 Employers may request employees to approve a proposed variation of an enterprise agreement
- 209 When a variation of an enterprise agreement is made
- 210 Application for FWA approval of a variation of an enterprise agreement
- 211 When FWA must approve a variation of an enterprise agreement
- 212 FWA may approve a variation of an enterprise agreement with undertakings
- 213 Effect of undertakings
- 214 When FWA may refuse to approve a variation of an enterprise agreement
- 215 Approval decision to note undertakings
- 216 When variation comes into operation Subdivision B--Variations of enterprise agreements where there is ambiguity, uncertainty or discrimination
- 217 Variation of an enterprise agreement to remove an ambiguity or uncertainty
- 217A FWA may deal with certain disputes about variations
- 218 Variation of an enterprise agreement on referral by HREOC Subdivision C--Termination of enterprise agreements by employers and employees
- 219 Employers and employees may agree to terminate an enterprise agreement
- 220 Employers may request employees to approve a proposed termination of an enterprise agreement
- 221 When termination of an enterprise agreement is agreed to
- 222 Application for FWA approval of a termination of an enterprise agreement
- 223 When FWA must approve a termination of an enterprise agreement
- 224 When termination comes into operation Subdivision D--Termination of enterprise agreements after nominal expiry date
- 225 Application for termination of an enterprise agreement after its nominal expiry date
- 226 When FWA must terminate an enterprise agreement
- 227 When termination comes into operation
Division 8--FWA's general role in facilitating bargaining
Subdivision A--Bargaining orders- 228 Bargaining representatives must meet the good faith bargaining requirements
- 229 Applications for bargaining orders
- 230 When FWA may make a bargaining order
- 231 What a bargaining order must specify
- 232 Operation of a bargaining order
- 233 Contravening a bargaining order Subdivision B--Serious breach declarations
- 234 Applications for serious breach declarations
- 235 When FWA may make a serious breach declaration Subdivision C--Majority support determinations and scope orders
- 236 Majority support determinations
- 237 When FWA must make a majority support determination
- 238 Scope orders
- 239 Operation of a scope order Subdivision D--FWA may deal with a bargaining dispute on request
- 240 Application for FWA to deal with a bargaining dispute
Division 9--Low-paid bargaining
- 241 Objects of this Division
- 242 Low-paid authorisations
- 243 When FWA must make a low-paid authorisation
- 244 Variation of low-paid authorisations--general
- 245 Variation of low-paid authorisations--enterprise agreement etc. comes into operation
- 246 FWA assistance for the low-paid
Division 10--Single interest employer authorisations
Subdivision A--Declaration that employers may bargain together for a proposed enterprise agreement- 247 Ministerial declaration that employers may bargain together for a proposed enterprise agreement Subdivision B--Single interest employer authorisations
- 248 Single interest employer authorisations
- 249 When FWA must make a single interest employer authorisation
- 250 What a single interest employer authorisation must specify
- 251 Variation of single interest employer authorisations
- 252 Variation to extend period single interest employer authorisation is in operation
Division 11--Other matters
- 253 Terms of an enterprise agreement that are of no effect
- 254 Applications by bargaining representatives
- 255 Part does not empower FWA to make certain orders
- 256 Prospective employers and employees
- 256A How employees, employers and employee organisations are to be described
- 257 Enterprise agreements may incorporate material in force from time to time etc.
PART 2-5--WORKPLACE DETERMINATIONS
Division 1--Introduction
Division 2--Low-paid workplace determinations
- 260 Applications for low-paid workplace determinations
- 261 When FWA must make a consent low-paid workplace determination
- 262 When FWA must make a special low-paid workplace determination--general requirements
- 263 When FWA must make a special low-paid workplace determination--additional requirements
- 264 Terms etc. of a low-paid workplace determination
- 265 No other terms
Division 3--Industrial action related workplace determinations
- 266 When FWA must make an industrial action related workplace determination
- 267 Terms etc. of an industrial action related workplace determination
- 268 No other terms
Division 4--Bargaining related workplace determinations
- 269 When FWA must make a bargaining related workplace determination
- 270 Terms etc. of a bargaining related workplace determination
- 271 No other terms
Division 5--Core terms, mandatory terms and agreed terms of workplace determinations etc
- 272 Core terms of workplace determinations
- 273 Mandatory terms of workplace determinations
- 274 Agreed terms for workplace determinations
- 275 Factors FWA must take into account in deciding terms of a workplace determination
Division 6--Operation, coverage and interaction etc
- 276 When a workplace determination operates etc.
- 277 Employers, employees and employee organisations covered by a workplace determination
- 278 Interaction of a workplace determination with enterprise agreements etc.
- 279 Act applies to a workplace determination as if it were an enterprise agreement
Division 7--Other matters
- 280 Contravening a workplace determination
- 281 Applications by bargaining representatives
- 281A How employees, employers and employee organisations are to be described
PART 2-6--MINIMUM WAGES
Division 1--Introduction
Division 2--Overarching provisions
Division 3--Annual wage reviews
Subdivision A--Main provisions- 285 Annual wage reviews to be conducted
- 286 When annual wage review determinations varying modern awards come into operation
- 287 When national minimum wage orders come into operation etc. Subdivision B--Provisions about conduct of annual wage reviews
- 288 General
- 289 Everyone to have a reasonable opportunity to make and comment on submissions
- 290 President may direct investigations and reports
- 291 Research must be published
- 292 Varied wage rates must be published by 1 July
Division 4--National minimum wage orders
- 293 Contravening a national minimum wage order
- 294 Content of national minimum wage order--main provisions
- 295 Content of national minimum wage order--other matters
- 296 Variation of national minimum wage order to remove ambiguity or uncertainty or correct error
- 297 When determinations varying national minimum wage orders come into operation
- 298 Special rule about retrospective variations of national minimum wage orders
- 299 When a national minimum wage order is in operation
PART 2-7--EQUAL REMUNERATION
Division 1--Introduction
Division 2--Equal remuneration orders
- 302 FWA may make an order requiring equal remuneration
- 303 Equal remuneration order may increase, but must not reduce, rates of remuneration
- 304 Equal remuneration order may implement equal remuneration in stages
- 305 Contravening an equal remuneration order
- 306 Inconsistency with modern awards, enterprise agreements and orders of FWA
PART 2-8--TRANSFER OF BUSINESS
Division 1--Introduction
Division 2--Transfer of instruments
- 310 Application of this Division
- 311 When does a transfer of business occur
- 312 Instruments that may transfer
- 313 Transferring employees and new employer covered by transferable instrument
- 314 New non-transferring employees of new employer may be covered by transferable instrument
- 315 Organisations covered by transferable instrument
- 316 Transferring employees who are high income employees
Division 3--Powers of FWA
- 317 FWA may make orders in relation to a transfer of business
- 318 Orders relating to instruments covering new employer and transferring employees
- 319 Orders relating to instruments covering new employer and non-transferring employees
- 320 Variation of transferable instruments
PART 2-9--OTHER TERMS AND CONDITION OF EMPLOYMENT
Division 1--Introduction
Division 2--Payment of wages
- 323 Method and frequency of payment
- 324 Permitted deductions
- 325 Unreasonable requirements to spend amount
- 326 Certain terms have no effect
- 327 Things given or provided, and amounts required to be spent, in contravention of this Division
Division 3--Guarantee of annual earnings
- 328 Employer obligations in relation to guarantee of annual earnings
- 329 High income employee
- 330 Guarantee of annual earnings and annual rate of guarantee
- 331 Guaranteed period
- 332 Earnings
- 333 High income threshold
- 333A Prospective employees
CHAPTER 3--Rights and responsibilities of employees, employers, organisations etc
PART 3-1--GENERAL PROTECTIONS
Division 1--Introduction
Division 2--Application of this Part
- 337 Application of this Part
- 338 Action to which this Part applies
- 339 Additional effect of this Part
Division 3--Workplace rights
- 340 Protection
- 341 Meaning of workplace right
- 342 Meaning of adverse action
- 343 Coercion
- 344 Undue influence or pressure
- 345 Misrepresentations
Division 4--Industrial activities
- 346 Protection
- 347 Meaning of engages in industrial activity
- 348 Coercion
- 349 Misrepresentations
- 350 Inducements--membership action
Division 5--Other protections
- 351 Discrimination
- 352 Temporary absence--illness or injury
- 353 Bargaining services fees
- 354 Coverage by particular instruments
- 355 Coercion--allocation of duties etc. to particular person
- 356 Objectionable terms
Division 6--Sham arrangements
- 357 Misrepresenting employment as independent contracting arrangement
- 358 Dismissing to engage as independent contractor
- 359 Misrepresentation to engage as independent contractor
Division 7--Ancillary rules
- 360 Multiple reasons for action
- 361 Reason for action to be presumed unless proved otherwise
- 362 Advising, encouraging, inciting or coercing action
- 363 Actions of industrial associations
- 364 Unincorporated industrial associations
Division 8--Compliance
Subdivision A--Contraventions involving dismissal- 365 Application for FWA to deal with a dispute
- 366 Time for application
- 367 Application fees
- 368 Conferences
- 369 Certificate if dispute not resolved
- 370 Advice on general protections court application
- 371 General protections court applications Subdivision B--Other contraventions
- 372 Application for FWA to deal with a dispute
- 373 Application fees
- 374 Conferences
- 375 Advice on general protections court application Subdivision C--Conference costs
- 376 Costs orders against lawyers and paid agents
- 377 Applications for costs orders
- 378 Contravening costs orders
PART 3-2--UNFAIR DISMISSAL
Division 1--Introduction
Division 2--Protection from unfair dismissal
- 382 When a person is protected from unfair dismissal
- 383 Meaning of minimum employment period
- 384 Period of employment
Division 3--What is an unfair dismissal
- 385 What is an unfair dismissal
- 386 Meaning of dismissed
- 387 Criteria for considering harshness etc.
- 388 The Small Business Fair Dismissal Code
- 389 Meaning of genuine redundancy
Division 4--Remedies for unfair dismissal
- 390 When FWA may order remedy for unfair dismissal
- 391 Remedy--reinstatement etc.
- 392 Remedy--compensation
- 393 Monetary orders may be in instalments
Division 5--Procedural matters
- 394 Application for unfair dismissal remedy
- 395 Application fees
- 396 Initial matters to be considered before merits
- 397 Matters involving contested facts
- 398 Conferences
- 399 Hearings
- 400 Appeal rights
- 401 Costs orders against lawyers and paid agents
- 402 Applications for costs orders
- 403 Schedule of costs
- 404 Security for costs
- 405 Contravening orders under this Part
PART 3-3--INDUSTRIAL ACTION
Division 1--Introduction
Division 2--Protected industrial action
Subdivision A--What is protected industrial action- 408 Protected industrial action
- 409 Employee claim action
- 410 Employee response action
- 411 Employer response action
- 412 Pattern bargaining Subdivision B--Common requirements for industrial action to be protected industrial action
- 413 Common requirements that apply for industrial action to be protected industrial action
- 414 Notice requirements for industrial action Subdivision C--Significance of industrial action being protected industrial action
- 415 Immunity provision
- 416 Employer response action--employer may refuse to make payments to employees
Division 3--No industrial action before nominal expiry date of enterprise agreement etc
- 417 Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.
Division 4--FWA orders stopping etc
- 418 FWA must order that industrial action by employees or employers stop etc.
- 419 FWA must order that industrial action by non-national system employees or non-national system employers stop etc.
- 420 Interim orders etc.
- 421 Contravening an order etc.
Division 5--Injunction against industrial action if pattern bargaining is being engaged in
- 422 Injunction against industrial action if a bargaining representative is engaging in pattern bargaining
Division 6--Suspension or termination of protected industrial action by FWA
- 423 FWA may suspend or terminate protected industrial action--significant economic harm etc.
- 424 FWA must suspend or terminate protected industrial action--endangering life etc.
- 425 FWA must suspend protected industrial action--cooling off
- 426 FWA must suspend protected industrial action--significant harm to a third party
- 427 FWA must specify the period of suspension
- 428 Extension of a period of suspension
- 429 Employee claim action without a further protected action ballot after a period of suspension etc.
- 430 Notice of employee claim action engaged in after a period of suspension etc.
Division 7--Ministerial declarations
- 431 Ministerial declaration terminating industrial action
- 432 Informing people of declaration
- 433 Ministerial directions to remove or reduce threat
- 434 Contravening a Ministerial direction
Division 8--Protected action ballots
Subdivision A--Introduction- 435 Guide to this Division Subdivision B--provides for FWA to make a protected action ballot order, on application by a bargaining representative of an employee who will be covered by a proposed enterprise agreement, requiring a protected action ballot to be conducted. Subdivision C--deals with the conduct of a protected action ballot. Subdivision D--deals with the effect of a protected action ballot. Subdivision E--deals with compliance matters in relation to a protected action ballot. Subdivision F--deals with the liability for the costs of a protected action ballot. Subdivision G--deals with records and other miscellaneous matters.
- 436 Object of this Division Subdivision B--Protected action ballot orders
- 437 Application for a protected action ballot order
- 438 Restriction on when application may be made
- 439 Joint applications
- 440 Notice of application
- 441 Application to be determined within 2 days after it is made
- 442 Dealing with multiple applications together
- 443 When FWA must make a protected action ballot order
- 444 FWA may decide on ballot agent other than the Australian Electoral Commission and independent advisor
- 445 Notice of protected action ballot order
- 446 Protected action ballot order may require 2 or more protected action ballots to be held at the same time
- 447 Variation of protected action ballot order
- 448 Revocation of protected action ballot order Subdivision C--Conduct of protected action ballot
- 449 Protected action ballot to be conducted by Australian Electoral Commission or other specified ballot agent
- 450 Directions for conduct of protected action ballot
- 451 Timetable for protected action ballot
- 452 Compilation of roll of voters
- 453 Who is eligible to be included on the roll of voters
- 454 Variation of roll of voters
- 455 Protected action ballot papers
- 456 Who may vote in protected action ballot
- 457 Results of protected action ballot
- 458 Report about conduct of protected action ballot Subdivision D--Effect of protected action ballot
- 459 Circumstances in which industrial action is authorised by protected action ballot
- 460 Immunity for persons who act in good faith on protected action ballot results
- 461 Validity of protected action ballot etc. not affected by technical breaches Subdivision E--Compliance
- 462 Interferences etc. with protected action ballot
- 463 Contravening a protected action ballot order etc. Subdivision F--Liability for costs of protected action ballot
- 464 Costs of protected action ballot conducted by the Australian Electoral Commission
- 465 Costs of protected action ballot conducted by protected action ballot agent other than the Australian Electoral Commission
- 466 Costs of legal challenges Subdivision G--Miscellaneous
- 467 Information about employees on roll of voters not to be disclosed
- 468 Records
- 469 Regulations
Division 9--Payments relating to periods of industrial action
Subdivision A--Protected industrial action- 470 Payments not to be made relating to certain periods of industrial action
- 471 Payments relating to partial work bans
- 472 Orders by FWA relating to certain partial work bans
- 473 Accepting or seeking payments relating to periods of industrial action Subdivision B--Industrial action that is not protected industrial action
- 474 Payments not to be made relating to certain periods of industrial action
- 475 Accepting or seeking payments relating to periods of industrial action Subdivision C--Miscellaneous
- 476 Other responses to industrial action unaffected
Division 10--Other matters
- 477 Applications by bargaining representatives
PART 3-4--RIGHT OF ENTRY
Division 1--Introduction
Division 2--Entry rights under this Act
Subdivision A--Entry to investigate suspected contravention- 481 Entry to investigate suspected contravention
- 482 Rights that may be exercised while on premises
- 483 Later access to record or document
- 483AA Application to FWA for access to non-member records Subdivision AA--Entry to investigate suspected contravention relating to TCF outworkers
- 483A Entry to investigate suspected contravention relating to TCF outworkers
- 483B Rights that may be exercised while on premises
- 483C Later access to record or document
- 483D Entry onto other premises to access records and documents
- 483E Later access to record or document--other premises Subdivision B--Entry to hold discussions
- 484 Entry to hold discussions Subdivision C--Requirements for permit holders
- 486 Permit holder must not contravene this Subdivision
- 487 Giving entry notice or exemption certificate
- 488 Contravening entry permit conditions
- 489 Producing authority documents
- 490 When right may be exercised
- 491 Occupational health and safety requirements
- 492 Conduct of interviews in particular room etc.
- 493 Residential premises
Division 3--State or Territory OHS rights
- 494 Official must be permit holder to exercise State or Territory OHS right
- 495 Giving notice of entry
- 496 Contravening entry permit conditions
- 497 Producing entry permit
- 498 When right may be exercised
- 499 Occupational health and safety requirements
Division 4--Prohibitions
- 500 Permit holder must not hinder or obstruct
- 501 Person must not refuse or delay entry
- 502 Person must not hinder or obstruct permit holder
- 503 Misrepresentations about things authorised by this Part
- 504 Unauthorised use or disclosure of information or documents
Division 5--Powers of FWA
Subdivision A--Dealing with disputes- 505 FWA may deal with a dispute about the operation of this Part
- 506 Contravening order made to deal with dispute Subdivision B--Taking action against permit holder
- 507 FWA may take action against permit holder Subdivision C--Restricting rights of organisations and officials where misuse of rights
- 508 FWA may restrict rights if organisation or official has misused rights
- 509 Contravening order made for misuse of rights Subdivision D--When FWA must revoke or suspend entry permits
- 510 When FWA must revoke or suspend entry permits Subdivision E--General rules for suspending entry permits
- 511 General rules for suspending entry permits
Division 6--Entry permits, entry notices and certificates
Subdivision A--Entry permits- 512 FWA may issue entry permits
- 513 Considering application
- 514 When FWA must not issue permit
- 515 Conditions on entry permit
- 516 Expiry of entry permit
- 517 Return of entry permits to FWA Subdivision B--Entry notices
- 518 Entry notice requirements Subdivision C--Exemption certificates
- 519 Exemption certificates Subdivision D--Affected member certificates
- 520 Affected member certificates Subdivision E--Miscellaneous
- 521 Regulations dealing with instruments under this Part
PART 3-5--STAND DOWN
Division 1--Introduction
Division 2--Circumstances allowing stand down
- 524 Employer may stand down employees in certain circumstances
- 525 Employee not stood down during a period of authorised leave or absence
Division 3--Dealing with disputes
- 526 FWA may deal with a dispute about the operation of this Part
- 527 Contravening an FWA order dealing with a dispute about the operation of this Part
PART 3-6--OTHER RIGHTS AND RESPONSIBILITIES
Division 1--Introduction
- 528 Guide to this Part Subdivision A--of Division 2 deals with notifying the Chief Executive Officer of the Commonwealth Services Delivery Agency (Centrelink) about the proposed dismissals. Subdivision B--of Division 2 provides for FWA to make orders if the employer fails to notify and consult relevant industrial associations. Subdivision C--of Division 2 provides that that Division does not apply in relation to certain employees.
- 529 Meanings of employee and employer
Division 2--Notification and consultation relating to certain dismissals
Subdivision A--Requirement to notify Centrelink- 530 Employer to notify Centrelink of certain proposed dismissals Subdivision B--Failure to notify or consult registered employee associations
- 531 FWA may make orders where failure to notify or consult registered employee associations about dismissals
- 532 Orders that FWA may make
- 533 Application for FWA order Subdivision C--Limits on scope of this Division
- 534 Limits on scope of this Division
Division 3--Employer obligations in relation to employee records and pay slips
- 535 Employer obligations in relation to employee records
- 536 Employer obligations in relation to pay slips
CHAPTER 4--Compliance and enforcement
PART 4-1--CIVIL REMEDIES
Division 1--Introduction
- 537 Guide to this Part Subdivision A--of Division 2 deals with applications for orders in relation to contraventions of civil remedy provisions and safety net contractual entitlements, and applications for orders to enforce entitlements arising under subsection 542(1). Subdivision B--of Division 2 sets out the orders that can be made by the Federal Court, the Federal Magistrates Court or an eligible State or Territory Court in relation to a contravention of a civil remedy provision.
- 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
- 558 Regulations dealing with infringement notices
Division 5--Unclaimed money
- 559 Unclaimed money
PART 4-2--JURISDICTION AND POWERS OF COURTS
Division 1--Introduction
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 Magistrates Court
- 566 Conferring jurisdiction on the Federal Magistrates Court
- 567 Exercising jurisdiction in the Fair Work Division of the Federal Magistrates Court
- 568 No limitation on Federal Magistrates Court's powers
Division 4--Miscellaneous
- 569 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--FAIR WORK AUSTRALIA
Division 1--Introduction
Division 2--Establishment and functions of Fair Work Australia
Subdivision A--Establishment and functions of Fair Work Australia- 575 Establishment of Fair Work Australia
- 576 Functions of FWA
- 577 Performance of functions etc. by FWA
- 578 Matters FWA must take into account in performing functions etc.
- 579 FWA has privileges and immunities of the Crown
- 580 Protection of FWA Members Subdivision B--Functions and powers of the President
- 581 Functions of the President
- 582 Directions by the President
- 583 President not subject to direction
- 584 Delegation of functions and powers of the President
Division 3--Conduct of matters before FWA
Subdivision A--Applications to FWA- 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 FWA
- 589 Procedural and interim decisions
- 590 Powers of FWA to inform itself
- 591 FWA not bound by rules of evidence and procedure
- 592 Conferences
- 593 Hearings
- 594 Confidential evidence
- 595 FWA'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 Subdivision D--Decisions of FWA
- 598 Decisions of FWA
- 599 FWA 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 FWA's decisions
- 602 Correcting obvious errors etc. in relation to FWA's decisions
- 603 Varying and revoking FWA'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 FWA matters
- 611 Costs
Division 4--Organisation of FWA
Subdivision A--Functions etc- 612 FWA functions etc. may generally be performed by single FWA Member
- 613 Appeal of decisions to be heard by a Full Bench, the President or a Deputy President
- 614 Review of decisions by a Full Bench
- 615 FWA functions etc. performed by a Full Bench on direction by the President
- 616 FWA functions etc. that must be performed by a Full Bench
- 617 FWA functions etc. that must be performed by the Minimum Wage Panel Subdivision B--Constitution of FWA by a single FWA Member, a Full Bench or the Minimum Wage Panel
- 618 Constitution and decision-making of a Full Bench
- 619 Seniority of FWA Members
- 620 Constitution and decision-making of the Minimum Wage Panel
- 621 Reconstitution of FWA when single FWA Member becomes unavailable
- 622 Reconstitution of FWA when FWA Member of a Full Bench or the Minimum Wage Panel becomes unavailable
- 623 When new FWA Members begin to deal with matters
- 624 FWA's decisions not invalid when improperly constituted Subdivision C--Delegation of FWA's functions and powers
- 625 Delegation by the President of functions and powers of FWA
Division 5--FWA Members
Subdivision A--Appointment of FWA Members- 626 Appointment of FWA Members
- 627 Qualifications for appointment of FWA Members
- 628 Basis of appointment of FWA Members
- 629 Period of appointment of FWA Members Subdivision B--Terms and conditions of FWA Members
- 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 employment of FWA Members
- 634 Oath or affirmation of office
- 635 Remuneration of the President
- 636 Application of Judges' Pensions Act to the President
- 637 Remuneration of FWA Members other than the President
- 638 Remuneration of Deputy Presidents or Commissioners performing duties on a part-time basis
- 639 Leave of absence of FWA Members other than the President
- 640 Disclosure of interests by FWA Members other than the President
- 641 Termination of appointment on grounds of misbehaviour or incapacity
- 642 Suspension on grounds of misbehaviour or incapacity
- 643 Termination of appointment for bankruptcy, etc.
- 644 Termination of appointment for outside employment
- 645 Resignation of FWA Members
- 646 Other terms and conditions of FWA Members
- 647 Appointment of acting President
- 648 Appointment of acting Deputy Presidents
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 Magistrates Court
- 654 President must provide certain information etc. to the Minister and Fair Work Ombudsman
- 655 Disclosure of information by FWA
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 employment 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 FWA
- 673 Consultants
Division 9--Offences relating to Fair Work Australia
- 674 Offences in relation to FWA
- 675 Contravening an FWA order
- 676 Intimidation etc.
- 677 Offences in relation to attending before FWA
- 678 False or misleading evidence
PART 5-2--OFFICE OF THE FAIR WORK OMBUDSMAN
Division 1--Introduction
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 employment of the Fair Work Ombudsman
- 691 Disclosure of interests to the Minister
- 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
- 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
- 708 Power of inspectors to enter premises
- 709 Powers of inspectors while on premises
- 710 Persons assisting inspectors
- 711 Power to ask for person's name and address
- 712 Power to require persons to produce records or documents
- 713 Self-incrimination
- 714 Power to keep records or documents
- 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
CHAPTER 6--Miscellaneous
PART 6-1--MULTIPLE ACTIONS
Division 1--Introduction
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 FWA applications
- 728 General protections court applications
- 729 Unfair dismissal applications
- 730 Unlawful termination FWA 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
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 FWA
- 740 Dispute dealt with by persons other than FWA
PART 6-3--EXTENSION OF NATIONAL EMPLOYMENT STANDARDS ENTITLEMENTS
Division 1--Introduction
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 6-4--ADDITIONAL PROVISIONS RELATING TO TERMINATION OF EMPLOYMENT
Division 1--Introduction
Division 2--Termination of employment
- 771 Object of this Division
- 772 Employment not to be terminated on certain grounds
- 773 Application for FWA to deal with a dispute
- 774 Time for application
- 775 Application fees
- 776 Conferences
- 777 Certificate if dispute not resolved
- 778 Advice on unlawful termination court application
- 779 Unlawful termination court applications
- 780 Costs orders against lawyers and paid agents
- 781 Applications for costs orders
- 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 FWA may make orders where failure to notify or consult registered employee associations about terminations
- 787 Orders that FWA may make
- 788 Application to FWA for order Subdivision D--Limits on scope of this Division
- 789 Limits on scope of this Division
PART 6-5--MISCELLANEOUS
Division 1--Introduction
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
- 796 Regulations--general
- 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