Commonwealth: Fair Work Act 2009 (Cth)

Fair Work Act 2009 No. 28, 2009 Compilation No. 67 Compilation date: 26 February 2025 Includes amendments: Act No. 2, 2024 This compilation is in 4 volumes Volume 1: sections 1–257 Volume 2: sections 258–536NK Volume 3: sections 536NL–800 Volume 4: Schedules Endnotes Each volume has its own contents 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 26 February 2025 (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 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 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 Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Chapter 1—Introduction Part 1‑1—Introduction Division 1—Preliminary 1 Short title 2 Commencement Division 2—Object of this Act 3 Object of this Act Division 3—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) 6A Rights and responsibilities of regulated workers, regulated businesses, organisations etc. (Chapter 3A) 6B Rights and responsibilities of persons in a road transport contractual chain 7 Compliance and enforcement (Chapter 4) 8 Administration (Chapter 5) 9 Miscellaneous (Chapter 6) 9A Application, transitional and saving provisions for amendments (Schedules) Part 1‑2—Definitions Division 1—Introduction 10 Guide to this Part 11 Meanings of employee and employer 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 14A Transitional matters relating to employers etc. becoming, or ceasing to be, national system employers etc. 15 Ordinary meanings of employee and employer 15AA Determining the ordinary meanings of employee and employer 15AB Individual may elect that section 15AA does not apply 15AC Effect of an opt out notice 15AD Opt out notice may be revoked by an individual 15A Meaning of casual employee Division 3A—Definitions relating to regulated workers and persons in a road transport contractual chain Subdivision A—General 15B Meaning of collective agreement 15C Meaning of contractor high income threshold 15D Meaning of minimum standards guidelines 15E Meaning of minimum standards order 15F Meaning of regulated business 15G Meaning of regulated worker 15H Meaning of services contract 15J Prospective regulated workers 15K Effect of Chapter in determining whether a person is an employee or an employer 15KA Specific provision about the effect of certain provisions in determining whether a person is an employee or an employer Subdivision B—Digital platform work 15L Meaning of digital labour platform 15M Meaning of digital labour platform operator 15N Meaning of digital platform work 15P Meaning of employee‑like worker Subdivision C—Road transport industry 15Q Meaning of regulated road transport contractor 15R Meaning of road transport business 15RA Meanings of road transport contractual chain and in a road transport contractual chain 15RB Meaning of a road transport employee‑like worker 15S Meaning of road transport industry Division 4—Other definitions 16 Meaning of base rate of pay 17 Meaning of child of a person 17A Meaning of directly and indirectly (in relation to TCF work) 18 Meaning of full rate of pay 19 Meaning of industrial action 19A Meaning of industrial action: regulated workers 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 23A Terms relating to superannuation 23B Meaning of general building and construction work Part 1‑3—Application of this Act Division 1—Introduction 24 Guide to this Part 25 Meanings of employee and employer 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 2A—Application of this Act in States that refer matters before 1 July 2009 30A Meaning of terms used in this Division 30B Meaning of referring State 30C Extended meaning of national system employee 30D Extended meaning of national system employer 30E Extended ordinary meanings of employee and employer 30F Extended meaning of outworker entity 30G General protections 30H Division only has effect if supported by reference Division 2B—Application of this Act in States that refer matters after 1 July 2009 but on or before 1 January 2010 30K Meaning of terms used in this Division 30L Meaning of referring State 30M Extended meaning of national system employee 30N Extended meaning of national system employer 30P Extended ordinary meanings of employee and employer 30Q Extended meaning of outworker entity 30R General protections 30S Division only has effect if supported by reference Division 3—Geographical application of this Act 31 Exclusion of persons etc. insufficiently connected with Australia 32 Regulations may modify application of this Act in certain parts of Australia 32A Rules may modify application of this Act in Norfolk Island 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 40A Application of the Acts Interpretation Act 1901 40B Effect of the Migration Act 1958 Part 1‑4—Road transport industry objective and advisory group Division 1—Guide to this Part 40C Guide to this Part Division 2—The road transport objective 40D The road transport objective Division 3—Road Transport Advisory Group 40E Establishment of Road Transport Advisory Group 40F Membership of Road Transport Advisory Group 40G Road Transport Advisory Group subcommittees Chapter 2—Terms and conditions of employment Part 2‑1—Core provisions for this Chapter Division 1—Introduction 41 Guide to this Part 42 Meanings of employee and employer 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 59 Guide to this Part 60 Meanings of employee and employer 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 65 Requests for flexible working arrangements 65A Responding to requests for flexible working arrangements 65B Disputes about the operation of this Division 65C Arbitration 66 State and Territory laws that are not excluded Division 4A—Casual employment Subdivision A—Application of Division 66A Division applies to casual employees etc. 66AAA Object of this Division Subdivision B—Employee choice about casual employment 66AAB Employee notification 66AAC Employer response 66AAD Effect of employer acceptance of employee notification Subdivision D—Other provisions 66K Effect of change 66L Other rights and obligations 66M Disputes about the operation of this Division 66MA Arbitration 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 72A Flexible unpaid parental 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 76A Responding to requests for extension of unpaid parental leave 76B Disputes about extension of period of unpaid parental leave 76C Arbitration 77 Reducing period of unpaid parental leave 77A Effect of stillbirth or death of child on unpaid parental leave 78 Employee who ceases to have responsibility for care of child 78A Hospitalised children 79 Interaction with paid leave 79A Keeping in touch days 79B Unpaid parental leave not extended by paid leave or keeping in touch days Subdivision C—Other entitlements 80 Unpaid special parental leave 81 Transfer to a safe job 81A Paid no safe job leave 82 Employee on paid no safe job leave may be asked to provide a further medical certificate 82A Unpaid no safe job leave 83 Consultation with employee on unpaid parental leave 84 Return to work guarantee 84A Replacement employees 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/carer's leave, compassionate leave and paid family and domestic violence leave Subdivision A—Paid personal/carer's leave 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 at certain times 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 CA—Paid family and domestic violence leave 106A Entitlement to paid family and domestic violence leave 106B Taking paid family and domestic violence leave 106BA Payment for paid family and domestic violence leave 106C Confidentiality 106D Operation of paid family and domestic violence leave and leave for victims of crime 106E Entitlement to days of leave 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 10A—Superannuation contributions 116A Division does not apply to certain employees or employers in referring States 116B Employer's obligation to make superannuation contributions 116C Reduction of employer's liability to the extent of superannuation charge payments 116D Preventing multiple actions 116E Orders for compensation 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 Ombudsman to prepare and publish statements 124 Fair Work Ombudsman to prepare and publish Fair Work Information Statement 125 Giving new employees the Fair Work Information Statement 125A Fair Work Ombudsman to prepare and publish Casual Employment Information Statement 125B Giving employees the Casual Employment 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 132 Guide to this Part 133 Meanings of employee and employer 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 141A Terms permitting fixed term contracts 142 Incidental and machinery terms Subdivision C—Terms that must be included in modern awards 143 Coverage terms of modern awards other than modern enterprise awards and State reference public sector modern awards 143A Coverage terms of modern enterprise awards 143B Coverage terms of State reference public sector modern awards 144 Flexibility terms 145 Effect of individual flexibility arrangement that does not meet requirements of flexibility term 145A Consultation about changes to rosters or hours of work 146 Terms about settling disputes 147 Ordinary hours of work 148 Base and full rates of pay for pieceworkers 149 Automatic variation of allowances 149B Term requiring avoidance of liability to pay superannuation guarantee charge 149C Default fund terms 149D Default fund term must provide for contributions to be made to certain funds 149E Workplace delegates' rights 149F Right to disconnect 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 4A—4 yearly reviews of default fund terms of modern awards Subdivision A—4 yearly reviews of default fund terms 156A 4 yearly reviews of default fund terms Subdivision B—The first stage of the 4 yearly review 156B Making the Default Superannuation List 156C Applications to list a standard MySuper product 156D Submissions on applications to list a standard MySuper product 156E Determining applications to list a standard MySuper product 156F First stage criteria Subdivision C—Second stage of the 4 yearly review 156G Review of the default fund term of modern awards 156H Default fund term must specify certain superannuation funds 156J Variation to comply with section 149D 156K Transitional authorisation for certain superannuation funds Subdivision D—The Schedule of Approved Employer MySuper Products 156L The Schedule of Approved Employer MySuper Products 156M FWC to invite applications to include employer MySuper products on schedule 156N Making applications to include employer MySuper products on schedule 156P FWC to determine applications 156Q The first stage test 156R Submissions about the first stage test 156S The second stage test 156T Submissions about the second stage test Subdivision E—Publishing documents under this Division 156U Publishing documents under this Division Division 5—Exercising modern award powers Subdivision A—Exercise of powers if necessary to achieve modern awards objective 157 FWC 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 159A Variation of default fund term of modern award 160 Variation of modern award to remove ambiguity or uncertainty or correct error 161 Variation of modern award on referral by Australian Human Rights Commission 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 Division 7—Additional provisions relating to modern enterprise awards 168A Modern enterprise awards 168B The modern enterprise awards objective 168C Rules about making and revoking modern enterprise awards 168D Rules about changing coverage of modern enterprise awards Division 8—Additional provisions relating to State reference public sector modern awards 168E State reference public sector modern awards 168F The State reference public sector modern awards objective 168G Making State reference public sector modern awards on application 168H State reference public sector modern awards may contain State‑based differences 168J When State reference public sector modern awards come into operation 168K Rules about revoking State reference public sector modern awards 168L Rules about varying coverage of State reference public sector modern awards Part 2‑4—Enterprise agreements Division 1—Introduction 169 Guide to this Part 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 172A Special measures to achieve equality Division 3—Bargaining and representation during bargaining 173 Notice of employee representational rights 174 Content and form of notice of employee representational rights 176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements 177 Bargaining representatives for proposed enterprise agreements that are greenfields agreements 177A Restrictions on removed persons being bargaining representatives 178 Appointment of bargaining representatives—other matters 178A Revocation of appointment of bargaining representatives etc. 178B Notified negotiation period for a proposed single‑enterprise agreement that is a greenfields agreement Division 4—Approval of enterprise agreements Subdivision A—Pre‑approval steps and applications for the FWC's approval 179 Disclosure by organisations that are bargaining representatives 179A Disclosure by employers 180 Certain pre‑approval requirements 180A Agreement of bargaining representatives that are employee organisations—proposed multi‑enterprise agreements 180B Agreement of bargaining representatives that are employee organisations—certain proposed single‑enterprise agreements 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 the FWC's approval of an enterprise agreement 185A Material that must accompany an application under subsection 182(4) for approval of a greenfields agreement Subdivision B—Approval of enterprise agreements by the FWC 186 When the FWC must approve an enterprise agreement—general requirements 187 When the FWC must approve an enterprise agreement—additional requirements 188 Determining whether an enterprise agreement has been genuinely agreed to by employees 188A Disclosure documents 188B Statement of principles on genuine agreement 189 FWC may approve an enterprise agreement that does not pass better off overall test—public interest test 190 FWC may approve an enterprise agreement with undertakings 191 Effect of undertakings 191A FWC may approve an enterprise agreement with amendments 191B Effect of amendment specified by FWC 192 When the FWC may refuse to approve an enterprise agreement Subdivision C—Better off overall test 193 Passing the better off overall test 193A Applying the better off overall test Subdivision D—Unlawful terms 194 Meaning of unlawful term 195 Meaning of discriminatory term 195A Meaning of objectionable emergency management 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. 205A Enterprise agreements to include a delegates' rights 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: general circumstances 207 Variation of an enterprise agreement may be made by employers and employees 207A Agreement of employee organisations covered by the agreement 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 the FWC's approval of a variation of an enterprise agreement 211 When the FWC must approve a variation of an enterprise agreement 212 FWC may approve a variation of an enterprise agreement with undertakings 213 Effect of undertakings 213A FWC may approve variation with amendments 213B Effect of amendment specified by FWC 214 When the FWC may refuse to approve a variation of an enterprise agreement 215 Approval decision to note undertakings 215A Approval decision to note amendments 216 When variation comes into operation Subdivision AA—Variation of supported bargaining agreement to add employer and employees (with consent) 216A Variation of supported bargaining agreement to add employer and employees 216AAA Terms of variation must be explained to employees 216AA Application for the FWC's approval of a variation of a supported bargaining agreement to add employer and employees 216AB When the FWC must approve a variation of a supported bargaining agreement to add employer and employees 216AC Determining whether the FWC would have been required to make a supported bargaining authorisation 216AD Determining whether a variation of a supported bargaining agreement to add employer and employees has been genuinely agreed to by affected employees 216AE When the FWC may refuse to approve a variation of a supported bargaining agreement to add employer and employees 216AF When variation comes into operation Subdivision AB—Variation of supported bargaining agreement to add employer and employees (without consent) 216B Application for the FWC to vary a supported bargaining agreement to add employer and employees 216BA When the FWC must make a variation of a supported bargaining agreement to add employer and employees 216BB When the FWC may refuse to make a variation of a supported bargaining agreement to add employer and employees 216BC When variation comes into operation Subdivision AC—Variation of cooperative workplace agreement to add employer and employees 216C Variation of cooperative workplace agreement to add employer and employees 216CAA Terms of the variation must be explained to employees 216CA Application for the FWC's approval of a variation of a cooperative workplace agreement to add employer and employees 216CB When the FWC must approve a variation of a cooperative workplace agreement to add employer and employees 216CC Determining whether a variation of a cooperative workplace agreement to add employer and employees has been genuinely agreed to by affected employees 216CD When the FWC may refuse to approve a variation of a cooperative workplace agreement 216CE When variation comes into operation Subdivision AD—Variation of single interest employer agreement to add employer and employees 216D Variation of single interest employer agreement to add employer and employees—joint variation 216DAA Terms of variation must be explained to employees 216DA Application for the FWC's approval of a variation of a single interest employer agreement to add employer and employees—joint variation 216DB Application for the FWC's approval of a variation of a single interest employer agreement to add employer and employees—application by employee organisation 216DC When the FWC must approve a variation of a single interest employer agreement to add employer and employees 216DD Determining whether a variation of a single interest employer agreement to add employer and employees has been genuinely agreed to by affected employees 216DE When the FWC may refuse to approve a variation of a single interest employer agreement 216DF When variation comes into operation Subdivision AE—Variation of multi‑enterprise agreement to remove employer and employees 216E Variation of multi‑enterprise agreement to remove employer and employees with consent 216EA Application for the FWC's approval of variation 216EB When the FWC must approve variation of multi‑enterprise agreement to remove employer and employees 216EC When variation comes into operation 216ED Effect of variation 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 FWC may deal with certain disputes about variations 218 Variation of an enterprise agreement on referral by Australian Human Rights Commission Subdivision BA—Variation of enterprise agreements to correct or amend errors, defects or irregularities 218A Variation of enterprise agreements to correct or amend errors, defects or irregularities 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 the FWC's approval of a termination of an enterprise agreement 223 When the FWC 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 Terminating an enterprise agreement after its nominal expiry date 226A Guarantee of termination entitlements 227 When termination comes into operation Division 7A—Reconsideration of whether an enterprise agreement passes the better off overall test 227A Application for FWC to reconsider whether an enterprise agreement passes the better off overall test 227B Reconsideration of whether an enterprise agreement passes the better off overall test 227C Effect of undertakings 227D Effect of amendment 227E No creation of liability to pay pecuniary penalty for past conduct Division 8—FWC'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 the FWC 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—Intractable bargaining declarations 234 Applications for intractable bargaining declarations 235 When the FWC may make an intractable bargaining declaration 235A Post‑declaration negotiating period Subdivision C—Majority support determinations and scope orders 236 Majority support determinations 237 When the FWC must make a majority support determination 238 Scope orders 239 Operation of a scope order Subdivision D—FWC may deal with a bargaining dispute on request 240 Application for the FWC to deal with a bargaining dispute Subdivision E—Voting request orders 240A Application to FWC for voting request order 240B FWC must make voting request order Division 9—Supported bargaining 241 Objects of this Division 242 Supported bargaining authorisations 243 When the FWC must make a supported bargaining authorisation 243A Restrictions on making supported bargaining authorisations 244 Variation of supported bargaining authorisations—general 245 Variation of supported bargaining authorisations—enterprise agreement etc. comes into operation 246 FWC's assistance Division 10—Single interest employer authorisations 248 Single interest employer authorisations 249 When the FWC must make a single interest employer authorisation 249A Restriction on making single interest employer authorisations 250 What a single interest employer authorisation must specify 251 Variation of single interest employer authorisations 251A Restriction on variation of single interest employer authorisation 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 254A Entitlement for volunteer bodies to make submissions 255 Part does not empower the FWC to make certain orders 255A Limitations relating to greenfields agreements 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. An Act relating to workplace relations, and for related purposes Chapter 1—Introduction Part 1‑1—Introduction Division 1—Preliminary 1 Short title This Act may be cited as the Fair Work Act 2009. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 7 April 2009 2. Sections 3 to 40 A single day to be fixed by Proclamation. 26 May 2009 However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. (see F2009L01818) 3. Sections 41 to 572 A day or days to be fixed by Proclamation. Sections 41–43, 50–54, 58, 169–281A, 300–327, 332, 333, 334–572: 1 July 2009 (see F2009L02563) A Proclamation must not specify a day that occurs before the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent. Sections 44–49, 55–57A, 59–168, 282–299, 328–331, 333A: 1 January 2010 (see F2009L02563) However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent, they commence on the first day after the end of that period. 4. Sections 573 to 718 At the same time as the provision(s) covered by table item 2. 26 May 2009 5. Sections 719 to 800 A day or days to be fixed by Proclamation. Sections 719–740, 769–800: 1 July 2009 (see F2009L02563) A Proclamation must not specify a day that occurs before the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent. Sections 741–768: 1 January 2010 (see F2009L02563) However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent, they commence on the first day after the end of that period. 6. Schedule 1 At the same time as the provision(s) covered by table item 2. 26 May 2009 Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. Division 2—Object of this Act 3 Object of this Act The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by: (a) providing workplace relations laws that are fair to working Australians, promote job security and gender equality, are flexible for businesses, promote productivity and economic growth for Australia's future economic prosperity and take into account Australia's international labour obligations; and (b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and (c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and (ca) ensuring a safety net of fair and relevant minimum terms and conditions for regulated workers through enforceable minimum standards orders and related measures; and (caa) ensuring a safety net of fair and relevant minimum terms and conditions for persons in a road transport contractual chain through enforceable road transport contractual chain orders and through road transport contractual chain guidelines; and (cb) providing appropriate remedies in relation to unfair terms of services contracts; and (d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and (e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and (f) achieving productivity and fairness through an emphasis on enterprise‑level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and (g) acknowledging the special circumstances of small and medium‑sized businesses. Division 3—Guide to this Act 4 Guide to this Act Overview of this Act (1) This Act is about workplace relations. It: (a) provides for terms and conditions of employment (Chapter 2); and (b) sets out rights and responsibilities of employees, employers and organisations in relation to that employment (Chapter 3); and (ba) provides for minimum terms and conditions for regulated workers (Chapter 3A); and (bb) sets out measures to deal with unfair terms of services contracts (Chapter 3A); and (bc) provides for minimum terms and conditions for persons in a road transport contractual chain (Chapter 3B); and (c) provides for compliance with, and enforcement of, this Act (Chapter 4); and (d) provides for the administration of this Act by establishing the Fair Work Commission and the Office of the Fair Work Ombudsman (Chapter 5); and (e) deals with other matters relating to the above (Chapter 6). Overview of the rest of this Chapter (2) The rest of this Chapter deals with: (a) definitions that are used in this Act (Part 1‑2); and (b) the application of this Act (Part 1‑3), including how this Act interacts with certain State and Territory laws and its geographical application; (c) certain matters relating to the road transport industry (Part 1‑4). Definitions (3) Many of the terms in this Act are defined. The Dictionary in section 12 contains a list of every term that is defined in this Act. Application, saving and transitional provisions for amendments (4) Schedule 1 contains application, saving and transitional provisions relating to amendments of this Act. 5 Terms and conditions of employment (Chapter 2) (1) Chapter 2 provides for terms and conditions of employment of national system employees. (2) Part 2‑1 has the core provisions for the Chapter. It deals with compliance with, and interaction between, the sources of the main terms and conditions provided under this Act—the National Employment Standards, modern awards and enterprise agreements. Note: Workplace determinations are another source of main terms and conditions. In most cases, this Act applies to a workplace determination as if it were an enterprise agreement in operation (see section 279). Main terms and conditions (3) Part 2‑2 contains the National Employment Standards, which are minimum terms and conditions that apply to all national system employees. (4) Part 2‑3 is about modern awards. A modern award is made for a particular industry or occupation and provides additional minimum terms and conditions for those national system employees to whom it applies. A modern award can have terms that are ancillary or supplementary to the National Employment Standards. (5) Part 2‑4 is about enterprise agreements. An enterprise agreement is made at the enterprise level and provides terms and conditions for those national system employees to whom it applies. An enterprise agreement can have terms that are ancillary or supplementary to the National Employment Standards. (6) Part 2‑5 is about workplace determinations. A workplace determination provides terms and conditions for those national system employees to whom it applies. A workplace determination is made by the FWC if certain conditions are met. (7) Part 2‑8 provides for the transfer of certain modern awards, enterprise agreements, workplace determinations and other instruments if there is a transfer of business from one national system employer to another national system employer. Other terms and conditions (8) In addition, other terms and conditions of employment for national system employees include those: (a) provided by a national minimum wage order (see Part 2‑6) or an equal remuneration order (see Part 2‑7); and (aa) provided by Part 2‑7A (which deals with regulated labour hire arrangement orders); and (b) provided by Part 2‑9 (which deals with the frequency and method of making payments to employees, deductions from payments and high‑income employees). 6 Rights and responsibilities of employees, employers, organisations etc. (Chapter 3) (1) Chapter 3 sets out rights and responsibilities of national system employees, national system employers, organisations and others (such as independent contractors and industrial associations). (2) Part 3‑1 provides general workplace protections. It: (a) protects workplace rights; and (b) protects freedom of association and involvement in lawful industrial activities; and (c) provides other protections, including protection from discrimination. (3) Part 3‑2 deals with unfair dismissal of national system employees, and the granting of remedies when that happens. (4) Part 3‑3 deals mainly with industrial action by national system employees and national system employers and sets out when industrial action is protected industrial action. No action lies under any law in force in a State or Territory in relation to protected industrial action except in certain circumstances. (5) Part 3‑4 is about the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role under this Act and under State or Territory OHS laws. In exercising those rights, permit holders must comply with the requirements set out in the Part. (6) Part 3‑5 allows a national system employer to stand down a national system employee without pay in certain circumstances. (6A) Part 3‑5A prohibits sexual harassment of workers, persons seeking to become workers and persons conducting businesses or undertakings, and provides for the granting of remedies when that happens. (7) Part 3‑6 deals with other rights and responsibilities of national system employers in relation to: (a) termination of employment; and (b) keeping records and giving payslips; and (c) advertising rates of pay. (8) Part 3‑7 deals with offences in relation to corrupting benefits. 6A Rights and responsibilities of regulated workers, regulated businesses, organisations etc. (Chapter 3A) (1) Chapter 3A sets out rights and responsibilities of certain regulated workers who perform work under services contracts, and of certain regulated businesses, organisations and others. (2) Part 3A‑1 has the core provisions for the Chapter. It deals with compliance with the instruments made under the Chapter (minimum standards orders, minimum standards guidelines and collective agreements) and interaction issues. (3) Part 3A‑2 is about minimum standards orders and minimum standards guidelines, which can be made for certain regulated workers. (4) Part 3A‑3 deals with unfair termination and unfair deactivation of certain regulated workers, and the granting of remedies when that happens. (5) Part 3A‑4 is about collective agreements. A collective agreement is made between a regulated business and an organisation. It provides terms and conditions for those regulated workers to whom it applies. (6) Part 3A‑5 is about unfair contract terms of services contracts. It provides for certain remedies if a services contract includes an unfair term. 6B Rights and responsibilities of persons in a road transport contractual chain (1) Chapter 3B sets out rights and responsibilities of persons in a road transport contractual chain. (2) Part 3B‑1 has the core provisions for the Chapter. It deals with compliance with road transport contractual chain orders made under the Chapter and interaction issues. (3) Part 3B‑2 is about road transport contractual chain orders and road transport contractual chain guidelines, which can be made for certain persons in a road transport contractual chain. 7 Compliance and enforcement (Chapter 4) (1) Chapter 4 provides for compliance with, and enforcement of, this Act. (2) Part 4‑1 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. Part 4‑1: (a) deals with applications for orders for contraventions of civil remedy provisions; and (b) sets out the orders the courts can make in relation to a contravention of a civil remedy provision. (3) Part 4‑2 is about the jurisdiction and powers of the courts in relation to matters arising under this Act. 8 Administration (Chapter 5) (1) Chapter 5 provides for the administration of this Act by establishing the Fair Work Commission and the Office of the Fair Work Ombudsman. (2) Part 5‑1 is about the Fair Work Commission. It: (a) establishes and confers functions on the FWC; and (b) sets out how matters before the FWC are to be conducted (for example, how the FWC is to deal with applications made to it). (3) Part 5‑2 is about the Office of the Fair Work Ombudsman. It: (a) establishes and confers functions on the Fair Work Ombudsman; and (b) confers functions and powers on Fair Work Inspectors. 9 Miscellaneous (Chapter 6) (1) Chapter 6 is a collection of miscellaneous matters that relate to the other Chapters. (2) Part 6‑1 provides rules relating to applications for remedies under this Act. It prevents certain applications if other remedies are available and prevents multiple applications or complaints in relation to the same conduct. (3) Part 6‑2 is about dealing with disputes between national system employees and their employers under modern awards, enterprise agreements and contracts of employment. (4) Part 6‑3 extends provisions of the National Employment Standards relating to unpaid parental leave, paid family and domestic violence leave and notice of termination to employees not otherwise covered by the provisions. (4A) Part 6‑3A provides for the transfer of terms and conditions of employment that are provided for in particular State industrial instruments if there is a transfer of business from a non‑national system employer that is a State public sector employer of the State to a national system employer. (5) Part 6‑4 contains provisions to give effect, or further effect, to certain international agreements relating to termination of employment. (5A) Part 6‑4A contains special provisions about TCF outworkers. (5B) Part 6‑4B allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying. (6) Part 6‑5 deals with miscellaneous matters such as delegations and regulations. 9A Application, transitional and saving provisions for amendments (Schedules) The Schedules contain application, transitional and saving provisions relating to amendments of this Act. Note: Application, transitional and saving provisions relating to the enactment of this Act, and States becoming referring States, are in the Transitional Act. Part 1‑2—Definitions Division 1—Introduction 10 Guide to this Part This Part is about the terms that are defined in this Act. Division 2 has the Dictionary (see section 12). The Dictionary is a list of every term that is defined in this Act. A term will either be defined in the Dictionary itself, or in another provision of this Act. If another provision defines the term, the Dictionary will have a signpost to that definition. Division 3 has definitions relating to the meanings of employee and employer. Division 4 has some other definitions that apply across this Act. 11 Meanings of employee and employer In this Part, employee and employer have their ordinary meanings. Note: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances). Division 2—The Dictionary 12 The Dictionary In this Act: accommodation arrangement: see subsections 521A(1) and (2). action includes an omission. adoption‑related leave: see subsection 67(5). adverse action: see section 342. affected employees: (a) for a variation of an enterprise agreement under Subdivision A of Division 7 of Part 2‑4: see subsection 207(2); and (b) for a variation of an enterprise agreement under Subdivision AA, AB or AC of Division 7 of Part 2‑4 to add an employer to a supported bargaining agreement or a cooperative workplace agreement: means an employee employed by the employer at the time the variation is made who will be covered by the agreement if the variation is approved (or made) by the FWC; and (c) for a variation of an enterprise agreement under Subdivision AD of Division 7 of Part 2‑4 (variation of single interest employer agreement to add employer and employees): see paragraphs 216D(1)(b) and 216DB(1)(b); and (d) for a variation of an enterprise agreement under Subdivision AE of Division 7 of Part 2‑4 (variation of multi‑enterprise agreement to remove employer and employees): see paragraph 216E(1)(b). affected employer: (a) in relation to an entry under Subdivision A of Division 2 of Part 3‑4: see subsection 482(2); and (aa) in relation to an entry under section 483A other than a designated outworker terms entry: see paragraph 483B(3)(a); and (ab) in relation to a designated outworker terms entry under section 483A: see paragraph 483B(3)(b); and (b) in relation to an entry in accordance with Division 3 of Part 3‑4: see paragraph 495(2)(a); and (c) in relation to a State or Territory OHS right to inspect or otherwise access an employee record: see paragraph 495(2)(b). affected member certificate: see subsection 520(1). Age Discrimination Commissioner means the Age Discrimination Commissioner appointed under the Age Discrimination Act 2004. aggrieved person in relation to an alleged contravention of Division 2 of Part 3‑5A (prohibiting sexual harassment in connection with work): see subsection 527F(1). agreed terms for a workplace determination: see section 274. agreed to in relation to a termination of an enterprise agreement: see section 221. alternative protected rate of pay order: see subsection 306M(2). annual rate of an employee's guaranteed annual earnings: see subsection 330(3). annual wage review: see subsection 285(1). anti‑discrimination law: see subsection 351(3). apparent indirectly responsible entity: see subsection 789CC(2). applicable agreement‑derived long service leave terms: see subsection 113(5). applicable award‑derived long service leave terms: see subsection 113(3). applicable time: see subsection 23B(2). application or complaint under another law: see subsection 732(2). applies: (a) in relation to a modern award: see section 47; and (b) in relation to an enterprise agreement: see section 52; and (ba) in relation to a minimum standards order: see section 536JD; and (bb) in relation to a collective agreement: see section 536JL; and (bc) in relation to a road transport contractual chain order: see section 536NR; and (c) in relation to a copied State instrument: see section 768AM. applies to employment generally: see subsection 26(4). appointment: (a) of a bargaining representative means an appointment of a bargaining representative under paragraph 176(1)(c) or (d) or 177(c); and (b) of an insolvency practitioner includes a person becoming an insolvency practitioner: (i) by taking possession or control of property; or (ii) by operation of law. appropriate safe job: see subsection 81(3). approved by the FWC, in relation to an enterprise agreement, means approved by the FWC under section 186 or 189. arbitrated protected rate of pay order: see subsection 306Q(1). ART President or Deputy President means the President, a Judicial Deputy President or a Non‑Judicial Deputy President of the Administrative Review Tribunal. associated entity has the meaning given by section 50AAA of the Corporations Act 2001. associated regulated business for a regulated worker: see subsection 350B(5). associated with an underpayment amount: see subsection 546A(1). Australia means the Commonwealth of Australia and, when used in a geographical sense, includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory. Australian‑based employee: see subsections 35(2) and (3). Australian employer: see subsection 35(1). Australian government: see subsection 794A(2). Australian ship means a ship that has Australian nationality under section 29 of the Shipping Registration Act 1981. authority documents: see subsection 489(3). available parental leave period: see subsection 75(2). award/agreement free employee means a national system employee to whom neither a modern award nor an enterprise agreement applies. award covered employee for an enterprise agreement: see subsection 193(4). award modernisation process means: (a) the process of making modern awards under Part 10A of the Workplace Relations Act 1996, as continued by Part 2 of Schedule 5 of the Transitional Act; and (b) the enterprise instrument modernisation process provided for by Part 2 of Schedule 6 of the Transitional Act; and (c) the State reference public sector transitional award modernisation process provided for by Part 2 of Schedule 6A of the Transitional Act. ballot paper: see subsection 455(2). Bankruptcy Act 1966: a reference to the Bankruptcy Act 1966 or a provision of that Act is a reference to that Act or provision: (a) applying of its own force; or (b) applying, with or without modifications, because of a law of the Commonwealth, a State or a Territory. bankruptcy trustee of a person means the trustee under the Bankruptcy Act 1966 of the person's estate in bankruptcy. bargaining order: see subsection 229(1). bargaining representative for a proposed enterprise agreement: see sections 176 and 177. bargaining services: see subsection 353(3). bargaining services fee: see subsection 353(2). base rate of pay: see section 16. birth‑related leave: see subsection 67(4). breastfeeding: (a) includes the act of expressing milk; and (b) includes: (i) an act of breastfeeding; and (ii) breastfeeding over a period of time. bullied at work: see subsection 789FD(1). cash or in kind payment: see subsection 536F(4). casual employee: see section 15A. child of a person: see subsection 17(1). civil remedy provision: see subsections 539(1) and (3). close relative: see subsection 106B(3). collective agreement: see section 15B. Commissioner means a Commissioner of the FWC. common requirements in relation to industrial action: see section 413. Commonwealth means the Commonwealth of Australia and, when used in a geographical sense, includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory. Commonwealth authority means: (a) a body corporate established for a public purpose by or under a law of the Commonwealth; or (b) a body corporate: (i) incorporated under a law of the Commonwealth or a State or a Territory; and (ii) in which the Commonwealth has a controlling interest. Commonwealth Ombudsman means the person for the time being holding office as Ombudsman under the Ombudsman Act 1976. Commonwealth outworker entity means an entity that is an outworker entity otherwise than because of section 30F or 30Q. Note: Sections 30F and 30Q extend the meaning of outworker entity in relation to a referring State. Commonwealth place means a place referred to in paragraph 52(i) of the Constitution, other than the seat of government. compassionate leave means compassionate leave to which a national system employee is entitled under section 104. complaint about an FWC Member means a complaint referred to in paragraph 581A(1)(a) or section 641A. complaint handler means: (a) the President; or (b) a person who is authorised by the President under subsection 581A(3); or (c) a person who is a member of a body that is authorised by the President under subsection 581A(3). compliance powers: see section 703. compliance purposes: see subsection 706(1). conduct includes an omission. conduct of a protected action ballot: see subsection 458(5). connected with a Territory: an arrangement for work to be performed for a person (either directly or indirectly) is connected with a Territory if one or more of the following apply: (a) at the time the arrangement is made, one or more parties to the arrangement is in a Territory in Australia; (b) the work is to be performed in such a Territory; (c) the person carries on an activity (whether of a commercial, governmental or other nature) in such a Territory, and the work is reasonably likely to be performed in that Territory; (d) the person carries on an activity (whether of a commercial, governmental or other nature) in such a Territory, and the work is to be performed in connection with that activity. Note: In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia). consistent with the Digital Labour Platform Deactivation Code: see subsection 536LJ(3). consistent with the Road Transport Industry Termination Code: see subsection 536LN(3). consistent with the Small Business Fair Dismissal Code: see subsection 388(2). consolidation order: (a) in relation to a transferring employee—see subsection 768BD(1); and (b) in relation to a non‑transferring employee—see subsection 768BG(1). constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. constitutionally‑covered business: see subsection 789FD(3). constitutionally‑covered entity: see subsection 338(2). constitutional trade or commerce means trade or commerce: (a) between Australia and a place outside Australia; or (b) among the States; or (c) between a State and a Territory; or (d) between 2 Territories; or (e) within a Territory. consultation notice for a collective agreement: see subsection