Commonwealth: Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth)

Fair Work Legislation Amendment (Closing Loopholes) Act 2023 No. 120, 2023 An Act to amend the law relating to workplace relations, work health and safety, workers' compensation and rehabilitation, certain independent contractors, the Asbestos Safety and Eradication Agency and registered organisations, and for related purposes Contents 1 Short title 2 Commencement 3 Schedules 4 Review of operation of amendments 4A Review of operation of Part 16A of Schedule 1 Schedule 1—Main amendments Part 2—Small business redundancy exemption Fair Work Act 2009 Part 6—Closing the labour hire loophole Fair Work Act 2009 Part 7—Workplace delegates' rights Division 1—Amendments commencing day after Royal Assent Fair Work Act 2009 Part 8—Strengthening protections against discrimination Fair Work Act 2009 Part 14—Wage theft Fair Work Act 2009 Federal Court of Australia Act 1976 Part 14A—Amendments relating to mediation and conciliation conference orders made under section 448A of the Fair Work Act 2009 Fair Work Act 2009 Part 16A—Right of entry—assisting health and safety representatives Fair Work Act 2009 Part 18—Application and transitional provisions Fair Work Act 2009 Schedule 2—Amendment of the Asbestos Safety and Eradication Agency Act 2013 Part 1—Main amendments Asbestos Safety and Eradication Agency Act 2013 Part 2—Application, saving and transitional provisions Schedule 3—Amendment of the Safety, Rehabilitation and Compensation Act 1988 Part 1—Post‑traumatic stress disorder Safety, Rehabilitation and Compensation Act 1988 Part 2—Rehabilitation assessments and examinations Safety, Rehabilitation and Compensation Act 1988 Schedule 4—Amendment of the Work Health and Safety Act 2011 Part 1—Industrial manslaughter Work Health and Safety Act 2011 Part 2—Category 1 offence Work Health and Safety Act 2011 Part 3—Corporate criminal liability Work Health and Safety Act 2011 Part 4—Commonwealth criminal liability Work Health and Safety Act 2011 Part 5—Criminal liability of public authorities Work Health and Safety Act 2011 Part 6—Penalties Division 1—Definitions Work Health and Safety Act 2011 Division 2—Categorised monetary penalties for offences Work Health and Safety Act 2011 Division 3—Tier A monetary penalties for offences Work Health and Safety Act 2011 Division 4—Tier B monetary penalties for offences Work Health and Safety Act 2011 Division 5—Tier C monetary penalties for offences Work Health and Safety Act 2011 Division 6—Tier D monetary penalties for offences Work Health and Safety Act 2011 Division 7—Tier F monetary penalties for offences Work Health and Safety Act 2011 Division 8—Tier H monetary penalties for offences Work Health and Safety Act 2011 Division 9—Penalties for WHS civil penalty provisions Work Health and Safety Act 2011 Division 10—Penalties prescribed by the regulations Work Health and Safety Act 2011 Division 11—Penalty amounts Work Health and Safety Act 2011 Part 7—Tied amendments Work Health and Safety Act 2011 Part 8—Family and Injured Workers Advisory Committee Work Health and Safety Act 2011 Fair Work Legislation Amendment (Closing Loopholes) Act 2023 No. 120, 2023 An Act to amend the law relating to workplace relations, work health and safety, workers' compensation and rehabilitation, certain independent contractors, the Asbestos Safety and Eradication Agency and registered organisations, and for related purposes [Assented to 14 December 2023] The Parliament of Australia enacts: 1 Short title This Act is the Fair Work Legislation Amendment (Closing Loopholes) Act 2023. 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 Provisions Commencement Date/Details 1. Sections 1 to 4 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 14 December 2023 3. Schedule 1, Part 2 The day after this Act receives the Royal Assent. 15 December 2023 7. Schedule 1, Part 6 The day after this Act receives the Royal Assent. 15 December 2023 8. Schedule 1, Part 7, Division 1 The day after this Act receives the Royal Assent. 15 December 2023 10. Schedule 1, Part 8 The day after this Act receives the Royal Assent. 15 December 2023 18. Schedule 1, items 213 to 222 The later of: (a) 1 January 2025; and (b) the day after the first time the Minister declares a Voluntary Small Business Wage Compliance Code under subsection 327B(1) of the Fair Work Act 2009. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur. 19. Schedule 1, items 223 and 224 The day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent. 14 June 2024 20. Schedule 1, items 225 to 236 At the same time as the provisions covered by table item 18. 20A. Schedule 1, Part 14A The day after this Act receives the Royal Assent. 15 December 2023 22A. Schedule 1, Part 16A The day after this Act receives the Royal Assent. 15 December 2023 24. Schedule 1, Part 18 The day after this Act receives the Royal Assent. 15 December 2023 25. Schedule 2 The day after this Act receives the Royal Assent. 15 December 2023 26. Schedule 3, Part 1 The day after this Act receives the Royal Assent. 15 December 2023 26A. Schedule 3, Part 2 The day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent. 14 June 2024 27. Schedule 4, Part 1 1 July 2024. 1 July 2024 28. Schedule 4, Parts 2 to 6 The day after this Act receives the Royal Assent. 15 December 2023 29. Schedule 4, Part 7 The later of: 15 December 2023 (a) at the same time as the provisions covered by table item 28; and (paragraph (a) applies) (b) immediately after the commencement of the Work Health and Safety Amendment Act 2023. 30. Schedule 4, Part 8 The day after this Act receives the Royal Assent. 15 December 2023 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. 4 Review of operation of amendments (1) The Minister must cause a review to be conducted of the operation of the amendments made by this Act. (2) Without limiting the matters that may be considered when conducting the review, the review must: (a) consider whether the operation of the amendments made by this Act is appropriate and effective; and (b) identify any unintended consequences of the amendments made by this Act; and (c) consider whether amendments of the Fair Work Act 2009, or any other legislation, are necessary to: (i) improve the operation of the amendments made by this Act; or (ii) rectify any unintended consequences identified under paragraph (b). (3) The review must start no later than 2 years after this section commences. (4) The persons who conduct the review must give the Minister a written report of the review within 6 months of the commencement of the review. (5) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report. 4A Review of operation of Part 16A of Schedule 1 (1) The Minister must cause a review to be conducted of the operation of the amendments made by Part 16A of Schedule 1 to this Act. (2) Without limiting the matters that may be considered when conducting the review, the review must: (a) consider whether the operation of the amendments made by that Part is appropriate and effective; and (b) identify any unintended consequences of the amendments made by that Part; and (c) consider whether amendments of the Fair Work Act 2009, or any other legislation, are necessary to: (i) improve the operation of the amendments made by that Part; or (ii) rectify any unintended consequences identified under paragraph (b). (3) The review must start no later than 9 months after that Part commences. (4) The persons who conduct the review must give the Minister a written report of the review within 6 months of the commencement of the review. (5) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report. Schedule 1—Main amendments Part 2—Small business redundancy exemption Fair Work Act 2009 26 Section 12 (definition of appointment) Repeal the definition, substitute: 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. 27 Section 12 Insert: 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. Corporations Act 2001: the reference to the Corporations Act 2001 in the definitions of insolvency practitioner and liquidator in this section is a reference to that Act: (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. insolvency practitioner for an employer means: (a) a liquidator of the employer; or (b) an administrator of the employer appointed under the Corporations Act 2001; or (c) a restructuring practitioner for the employer appointed under that Act; or (d) a person appointed as a receiver of property of the employer; or (e) a person who has possession or control of property of the employer for the purpose of enforcing: (i) a charge; or (ii) a mortgage; or (iii) a lien; or (iv) a pledge; or (v) a security interest, within the meaning of the Personal Property Securities Act 2009, to which that Act applies, other than a transitional security interest within the meaning of that Act; or (f) a bankruptcy trustee of the employer. liquidator means a liquidator appointed (provisionally or otherwise) under the Corporations Act 2001. members' voluntary winding up: see subsection 121(5). 28 At the end of section 121 Certain small businesses to pay redundancy pay (4) Despite subsection (1), an employee whose employment is terminated is entitled to be paid redundancy pay in accordance with this Division if: (a) at the time of the termination, section 119 did not apply to the termination because the employer was a small business employer; and (b) the employer is bankrupt or in liquidation (other than only because of a members' voluntary winding up); and (c) the employer is a small business employer because the employment of one or more employees was terminated; and (d) those terminations occurred: (i) on or after the day that is 6 months before the employer became bankrupt or went into liquidation; or (ii) if there was an insolvency practitioner (the last insolvency practitioner) for the employer on the business day before the employer became bankrupt or went into liquidation—on or after the day that is 6 months before the insolvency practitioner was appointed; or (iii) if, before the last insolvency practitioner was appointed, other insolvency practitioners for the employer were appointed without any intervening business days between any of those appointments—on or after the day that is 6 months before the first of those insolvency practitioners was appointed; or (iv) due to the insolvency of the employer. (5) A members' voluntary winding up is a winding up under section 495 of the Corporations Act 2001. Time of liquidation—members' voluntary winding up where company turns out to be insolvent (6) If a liquidator takes action under section 496 of the Corporations Act 2001 (company turns out to be insolvent) in relation to a small business employer whose liquidation began as a members' voluntary winding up, then, for the purposes of subparagraph (4)(d)(i), the time the employer goes into liquidation is the time the employer goes into liquidation because of the members' voluntary winding up. Application to partnerships (7) For the purposes of subsection (4), a small business employer that is a partnership is not bankrupt or in liquidation unless each partner of the partnership is bankrupt or in liquidation, as the case requires. Part 6—Closing the labour hire loophole Fair Work Act 2009 71 After paragraph 5(8)(a) Insert: (aa) provided by Part 2‑7A (which deals with regulated labour hire arrangement orders); and 72 Section 12 Insert: alternative protected rate of pay order: see subsection 306M(2). arbitrated protected rate of pay order: see subsection 306Q(1). covered employment instrument means: (a) an enterprise agreement; or (b) a workplace determination; or (c) a determination under section 24 of the Public Service Act 1999 that applies to a class of APS employees in an Agency (within the meaning of that Act); or (d) an instrument made under any other law of the Commonwealth (other than this Act), or of a State or a Territory, that provides for the terms and conditions of employment for a class of national system employees of: (i) the Commonwealth or a State or Territory; or (ii) an authority of the Commonwealth or of a State or Territory; or (e) any other instrument relating to the employment of a class of national system employees that: (i) is made under a law of the Commonwealth (other than this Act) or a State or Territory; and (ii) is prescribed by the regulations. host employment instrument: see subsection 306E(6). protected rate of pay: see section 306F. recurring extended exemption period: see subsection 306K(2). regulated employee: see subsection 306E(5). regulated host: see section 306C. regulated labour hire arrangement order: see subsection 306E(1). 72A At the end of section 201 Add: Approval decision to note that enterprise agreement to be new host employment instrument for regulated labour hire arrangement order (5) If: (a) the FWC approves an enterprise agreement; and (b) the enterprise agreement will become the host employment instrument covered by a regulated labour hire arrangement order because of section 306EB; the FWC must note in its decision to approve the agreement that the agreement will be the host employment instrument covered by the order. Note: Certain notification requirements also apply if the enterprise agreement will be the host employment instrument covered by a regulated labour hire arrangement order (see section 306EC). 73 After Part 2‑7 Insert: Part 2‑7A—Regulated labour hire arrangement orders Division 1—Introduction 306A Guide to this Part This Part is about regulated labour hire arrangement orders. Division 2 deals with the making of regulated labour hire arrangement orders by the FWC and sets out the obligations of employers and regulated hosts covered by those orders. Division 2 also deals with the making of alternative protected rate of pay orders by the FWC, the continued application of regulated labour hire arrangement orders in particular circumstances, and certain payments relating to termination of employment. Division 3 deals with disputes about the operation of this Part. Division 4 is about anti‑avoidance. Division 5 requires the FWC to make written guidelines in relation to the operation of this Part. 306B Meanings of employee and employer In this Part, employee means a national system employee, and employer means a national system employer. Note: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances). 306C Meaning of regulated host A regulated host is: (a) a constitutional corporation; or (b) the Commonwealth; or (c) a Commonwealth authority; or (d) a person, so far as work is performed for the person in connection with constitutional trade or commerce, and the work is of a kind that would ordinarily be performed by: (i) a flight crew officer; or (ii) a maritime employee; or (iii) a waterside worker; or (e) a body corporate incorporated in a Territory; or (f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as work is performed for the person in connection with the activity carried on in the Territory; or (g) a person, so far as work is performed for the person in a Territory in Australia; or (h) any person in a State that is a referring State because of Division 2A or 2B of Part 1‑3. 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 in section 12). 306D References to kinds of work and work performed for a person etc. (1) A reference in this Part to work of a kind includes a reference to work that is substantially of that kind. (2) A reference in this Part to work performed for a person includes a reference to work performed wholly or principally for the benefit of: (a) the person; or (b) an enterprise carried on by the person; or (c) a joint venture or common enterprise engaged in by the person and one or more other persons. (3) To avoid doubt, in determining for the purposes of this Part whether work is or is to be performed for a person by an employee of an employer, it does not matter whether there is or will be any agreement between the person and the employer relating to the performance of the work. Division 2—Regulated labour hire arrangement orders Subdivision A—Making regulated labour hire arrangement orders 306E FWC may make a regulated labour hire arrangement order Regulated labour hire arrangement order (1) The FWC must, on application by a person mentioned in subsection (7), make an order (a regulated labour hire arrangement order) if the FWC is satisfied that: (a) an employer supplies or will supply, either directly or indirectly, one or more employees of the employer to perform work for a regulated host; and (b) a covered employment instrument that applies to the regulated host would apply to the employees if the regulated host were to employ the employees to perform work of that kind; and (c) the regulated host is not a small business employer. Note: The FWC may make other decisions under this Part which relate to regulated labour hire arrangement orders: see Subdivisions C (short‑term arrangements) and D (alternative protected rate of pay orders) of this Division, and Division 3 (dealing with disputes). (1A) Despite subsection (1), the FWC must not make the order unless it is satisfied that the performance of the work is not or will not be for the provision of a service, rather than the supply of labour, having regard to the matters in subsection (7A). (2) Despite subsection (1), the FWC must not make the order if the FWC is satisfied that it is not fair and reasonable in all the circumstances to do so, having regard to any matters in subsection (8) in relation to which submissions have been made. (3) For the purposes of paragraph (1)(a), it does not matter: (a) whether the supply is the result of an agreement, or one or more agreements; or (b) if there are one or more agreements relating to the supply—whether an agreement is between: (i) the regulated host and the employer; or (ii) the regulated host and a person other than the employer; or (iii) the employer and a person other than the regulated host; or (iv) any 2 persons who are neither the regulated host nor the employer; or (c) whether the regulated host and employer are related bodies corporate. Note: If related bodies corporate with different corporate branding do not provide labour to each other, a regulated labour hire arrangement order cannot be made because labour is not supplied in the way mentioned in paragraph (1)(a). (4) For the purposes of paragraph (1)(b), in determining whether a covered employment instrument would apply to the employees, it does not matter on what basis the employees are or would be employed. Regulated employee and host employment instrument (5) An employee referred to in paragraph (1)(a) is a regulated employee. (6) The covered employment instrument referred to in paragraph (1)(b) is a host employment instrument. Who may apply for an order (7) The following persons may apply for the order: (a) a regulated employee; (b) an employee of the regulated host; (c) an employee organisation that is entitled to represent the industrial interests of an employee mentioned in paragraph (a) or (b); (d) the regulated host. Matters that must be considered in relation to whether work is for the provision of a service (7A) For the purposes of subsection (1A), the matters are as follows: (a) the involvement of the employer in matters relating to the performance of the work; (b) the extent to which, in practice, the employer or a person acting on behalf of the employer directs, supervises or controls (or will direct, supervise or control) the regulated employees when they perform the work, including by managing rosters, assigning tasks or reviewing the quality of the work; (c) the extent to which the regulated employees use or will use systems, plant or structures of the employer to perform the work; (d) the extent to which either the employer or another person is or will be subject to industry or professional standards or responsibilities in relation to the regulated employees; (e) the extent to which the work is of a specialist or expert nature. Matters to be considered if submissions are made (8) For the purposes of subsection (2), the matters are as follows: (a) the pay arrangements that apply to employees of the regulated host (or related bodies corporate of the regulated host) and the regulated employees, including in relation to: (i) whether the host employment instrument applies only to a particular class or group of employees; and (ii) whether, in practice, the host employment instrument has ever applied to an employee at a classification, job level or grade that would be applicable to the regulated employees; and (iii) the rate of pay that would be payable to the regulated employees if the order were made; (c) the history of industrial arrangements applying to the regulated host and the employer; (d) the relationship between the regulated host and the employer, including whether they are related bodies corporate or engaged in a joint venture or common enterprise; (da) if the performance of the work is or will be wholly or principally for the benefit of a joint venture or common enterprise engaged in by the regulated host and one or more other persons: (i) the nature of the regulated host's interests in the joint venture or common enterprise; and (ii) the pay arrangements that apply to employees of any of the other persons engaged in the joint venture or common enterprise (or related bodies corporate of those other persons); (e) the terms and nature of the arrangement under which the work will be performed, including: (i) the period for which the arrangement operates or will operate; and (ii) the location of the work being performed or to be performed under the arrangement; and (iii) the industry in which the regulated host and the employer operate; and (iv) the number of employees of the employer performing work, or who are to perform work, for the regulated host under the arrangement; (f) any other matter the FWC considers relevant. What an order must specify (9) A regulated labour hire arrangement order must specify: (a) the regulated host covered by the order; and (b) the employer covered by the order under this section; and (c) the regulated employees covered by the order under this section; and (d) the host employment instrument covered by the order; and (e) the day the order comes into force, which must be: (i) if the order is made before 1 November 2024—that day or a later day; or (ii) otherwise—the day the order is made or a later day. Note: For paragraphs (b) and (c), additional employers and regulated employees of those employers may be covered by the order under section 306EA. What an order may specify (10) A regulated labour hire arrangement order may specify when the order ceases to be in force. Note: For variation and revocation of a regulated labour hire arrangement order, see section 603. 306EA Regulated labour hire arrangement order may cover additional arrangements Determination that application covers additional employers and employees (1) If an application for a regulated labour hire arrangement order is made in relation to a regulated host, an employer and one or more employees of the employer, the FWC may determine that the application is taken to also relate to: (a) one or more other employers (each of which is an additional employer) that the FWC is satisfied supply or will supply, in the manner referred to in paragraph 306E(1)(a), one or more employees to perform work, for the regulated host, of the kind in relation to which the application was made; and (b) the employees referred to in paragraph (a) of this subsection (each of whom is an additional regulated employee). Note: The employees referred to in paragraph (a) of this subsection are regulated employees (see subsection 306E(5)). (2) The FWC may make the determination: (a) on its own initiative; or (b) on application by any of the following: (i) the applicant for the order or any other person who could have applied for the order (see subsection 306E(7)); (ii) the employer mentioned in paragraph 306E(1)(a); (iii) an employer that supplies or will supply employees as referred to in paragraph (1)(a) of this section; (iv) a person who is such an employee; (v) an employee organisation that is entitled to represent the industrial interests of such an employee. (3) If the FWC makes such a determination, the FWC must seek the views of the following before deciding whether to make the regulated labour hire arrangement order: (a) the additional regulated employees; (b) employee organisations that are entitled to represent the industrial interests of the additional regulated employees; (c) the additional employers. Additional employers and employees in regulated labour hire arrangement order (4) Subject to subsections (5) and (6), if the FWC makes a determination under subsection (1) in relation to an application for a regulated labour hire arrangement order, the FWC may specify in the regulated labour hire arrangement order (if made) that, in addition to the persons referred to in paragraphs 306E(9)(b) and (c), the order also covers: (a) any or all of the additional employers; and (b) additional regulated employees of those employers. (5) The FWC must not specify an additional employer or additional regulated employees of the employer under subsection (4) unless: (a) the FWC is satisfied of the matters mentioned in subsection 306E(1) in relation to the additional employer and the additional regulated employees; and (b) the FWC is satisfied that the covered employment instrument that would apply to the additional regulated employees, as referred to in paragraph 306E(1)(b), is the host employment instrument covered by the order; and (c) the FWC is satisfied that the performance of the work by the additional regulated employees is not or will not be for the provision of a service, rather than the supply of labour, having regard to the matters in subsection 306E(7A) in relation to the additional employer and the additional regulated employees. (6) The FWC must not specify an additional employer or additional regulated employees of the employer under subsection (4) if the FWC is satisfied that it is not fair and reasonable in all the circumstances to do so, having regard to: (a) the views (if any) of persons referred to in subsection (3); and (b) any matters mentioned in subsection 306E(8) in relation to which submissions are made, to the extent the submissions relate to the additional employer and the additional regulated employees. 306EB Application of regulated labour hire arrangement order to new covered employment instrument (1) This section applies if: (a) a regulated labour hire arrangement order is in force; and (b) the host employment instrument covered by the order ceases to apply to the regulated host covered by the order, or to a class of employees of the regulated host covered by the order, in connection with another covered employment instrument (the new instrument) starting to apply to the regulated host or those employees; and (c) the new instrument would apply to the regulated employees covered by the order if the regulated host were to employ the employees to perform work of a kind to which the order relates. (2) From the time the new instrument starts to apply to the regulated host or the class of employees mentioned in paragraph (1)(b), the order has effect (and may be dealt with) as if the new instrument were the host employment instrument covered by the order. (3) For the purposes of paragraph (1)(c), in determining whether a covered employment instrument would apply to the employees, it does not matter on what basis the employees are or would be employed. 306EC Notification requirements in relation to new covered employment instrument Notification by regulated host (1) If a regulated labour hire arrangement order in force covers a regulated host and an event mentioned in subsection (2) occurs, the regulated host must, as soon as practicable after the event occurs, give written notice to any employers covered by the order of: (a) the event; and (b) the effect that the event will have or would have in relation to the order. Note: This subsection is a civil remedy provision (see Part 4‑1). (2) The events are the following: (a) approval, by employees, of a covered employment instrument that will, if it comes into operation, become the host employment instrument covered by the order because of section 306EB; (b) any other approval or making of a covered employment instrument that will, if it comes into operation, become the host employment instrument covered by the order because of section 306EB, other than an approval by the FWC of an enterprise agreement (see subsection (3) of this section). Notification by FWC (3) If the FWC approves an enterprise agreement that, because of section 306EB, will become the host employment instrument covered by a regulated labour hire arrangement order, the FWC must, as soon as practicable after the approval, give written notice to any employers covered by the order of: (a) the approval of the enterprise agreement; and (b) the effect of the approval in relation to the order. 306ED Varying regulated labour hire arrangement order to cover new employers (1) This section applies if: (a) a regulated labour hire arrangement order that covers a regulated host and one or more employers, and relates to a kind of work, is in force or has been made but is not yet in force; and (b) one or more other employers (each of which is a new employer) start or will start to supply employees (each of whom is a relevant regulated employee) to perform work of that kind for the regulated host, in a manner referred to in paragraph 306E(1)(a); and (c) the new employers are not covered by any regulated labour hire arrangement order (whether in force, or made but not yet in force) that covers or will cover the relevant regulated employees in relation to the performance of that work; and (d) the FWC did not make a determination under subsection 306EA(1) in relation to the new employers and the application for the regulated labour hire arrangement order. Note: The employees referred to in paragraph (b) of this subsection are regulated employees (see subsection 306E(5)). Regulated host must make application (2) As soon as practicable after the regulated host becomes aware of the circumstances referred to in paragraph (1)(b), the regulated host must apply to the FWC for an order under this section varying the regulated labour hire arrangement order to cover the new employers and the relevant regulated employees of those employers. Note: This subsection is a civil remedy provision (see Part 4‑1). (3) Section 588 (discontinuing applications) does not apply in relation to the application unless the circumstances referred to in paragraph (1)(b) of this section no longer exist. (4) As soon as possible after the application is made, the regulated host must give written notice of the following to each of the new employers: (a) that the application has been made; (b) the effect of subsection (11) in relation to the application. Note: This subsection is a civil remedy provision (see Part 4‑1). FWC must decide whether to make variation order (5) The FWC must: (a) decide whether to make an order under this section varying the regulated labour hire arrangement order in accordance with subsection (6) or (7) to cover: (i) any or all of the new employers; and (ii) relevant regulated employees of those employers; and (b) take all reasonable steps to make the decision before the time any of those employees start to perform the work referred to in paragraph (1)(b). (6) The FWC must vary the regulated labour hire arrangement order to cover a new employer and the relevant regulated employees of the employer if the regulated host and the new employer notify the FWC that the regulated host and the new employer agree to the making of the variation. (7) Subject to subsections (8) and (9), the FWC must also vary the regulated labour hire arrangement order to cover a new employer and the relevant regulated employees of the employer if the FWC is satisfied of the matters referred to in subsection 306E(1) in relation to the regulated host, the new employer and the relevant regulated employees. (8) The FWC must not vary the regulated labour hire arrangement order in accordance with subsection (7) unless the FWC is satisfied that the performance of the work by the relevant regulated employees is not or will not be for the provision of a service, rather than the supply of labour, having regard to the matters referred to in subsection 306E(7A) in relation to the new employer and the relevant regulated employees. (9) The FWC must not vary the regulated labour hire arrangement order in accordance with subsection (7) if the FWC is satisfied that it is not fair and reasonable in all the circumstances to make the variation, having regard to any matters referred to in subsection 306E(8) in relation to which submissions have been made in respect of the variation. When variation order comes into force (10) An order under this section comes into force on a day specified in the order. Interim arrangements before FWC decides application (11) If the FWC does not decide whether to make an order under this section by the time referred to in paragraph (5)(b), the regulated labour hire arrangement order is taken (so long as it is in force) to cover the new employers and the relevant regulated employees from the time the application for the order under this section is made until: (a) if the FWC decides not to make an order under this section—the time the FWC makes that decision; or (b) if the FWC decides to make an order under this section—the time that order comes into force. 306EE Notifying tenderers etc. of regulated labour hire arrangement order (1) This section applies if: (a) a regulated host is covered by a regulated labour hire arrangement order that is in force or has been made but is not yet in force; and (b) a tender process is conducted: (i) by or on behalf of the regulated host; or (ii) for the purposes of a joint venture or common enterprise engaged in by the regulated host and one or more other persons. (2) If it could reasonably be expected that one or more employers would, as a result of the tender process, become covered by the regulated labour hire arrangement order because of section 306ED, the regulated host must ensure that, from the start of the tender process, all prospective tenderers are advised, in writing, that if one or more tenderers are successful in the process: (a) one or more employers could become covered by the regulated labour hire arrangement order; and (b) the employers could be required to pay employees of the employers who perform work for the regulated host, in accordance with this Part, in connection with the work. Note: This subsection is a civil remedy provision (see Part 4‑1). (3) If the regulated host is required to apply to the FWC in relation to one or more employers under subsection 306ED(2) as a result of the tender process, the regulated host must, as soon as practicable after the end of the tender process, advise the successful tenderer or tenderers in that process (whether or not they are the employers), in writing, of the following: (a) that the regulated host is required to make the application; (b) the effect of subsection 306ED(11) in relation to the application; (c) that if the FWC decides to vary the order under section 306ED to cover those employers, and the order is in force or comes into force, the employers will be required to pay employees of the employers who perform work for the regulated host, in accordance with this Part, in connection with the work. Note: This subsection is a civil remedy provision (see Part 4‑1). Subdivision B—Obligations of employers and regulated hosts etc. when a regulated labour hire arrangement order is in force 306F Protected rate of pay payable to employees if a regulated labour hire arrangement order is in force Application of section (1) This section applies if a regulated labour hire arrangement order is in force that covers a regulated host, an employer and a regulated employee of the employer. Employer must not pay less than protected rate of pay (2) The employer must pay the regulated employee at no less than the protected rate of pay for the employee in connection with the work performed by the employee for the regulated host. Note: This subsection is a civil remedy provision (see Part 4‑1). Exceptions (3) The employer does not contravene subsection (2) if the employer pays the regulated employee at less than the protected rate of pay because: (a) the regulated host provides information to the employer under section 306H (which deals with information about the protected rate of pay); and (b) the employer reasonably relies on the information for the purposes of working out the protected rate of pay for the regulated employee; and (c) the information is incorrect in a material particular. (3A) The employer does not contravene subsection (2) if: (a) the regulated labour hire arrangement order covers the employer because of the operation of subsection 306ED(11); and (b) the employer pays the regulated employee at less than the protected rate of pay because the employer has not been either: (i) notified that the regulated host has made an application under subsection 306ED(2) (which deals with certain variation orders); or (ii) for an employer who was a successful tenderer in a tender process—advised under subsection 306EE(2) or (3) (which deal with notifying tenderers) in relation to the regulated labour hire arrangement order. Meaning of protected rate of pay (4) Unless subsection (5) applies, the protected rate of pay for the regulated employee is the full rate of pay that would be payable to the employee if the host employment instrument covered by the regulated labour hire arrangement order were to apply to the employee. (5) If the regulated employee is a casual employee, and there is no covered employment instrument that applies to the regulated host that provides for work of that kind to be performed by casual employees, the protected rate of pay for the regulated employee is the full rate of pay that would be payable to the employee if: (a) the employee were an employee other than a casual employee and the host employment instrument covered by the regulated labour hire arrangement order were to apply to the employee; and (b) the base rate of pay that would be payable to the employee, in the circumstances referred to in paragraph (a), were increased by 25%. (6) Despite subsections (4) and (5), if the employer is a national system employer only because of section 30D or 30N, the protected rate of pay for the regulated employee does not include any amount that relates to an excluded subject matter within the meaning of subsection 30A(1) or 30K(1). Note: Sections 30D and 30N extend the meaning of national system employer. (7) If the regulated employee is a pieceworker and paragraph 16(2)(b) would apply to the employee were the host employment instrument to apply to the employee, the base rate of pay that would be payable to the employee for the purposes of subsection (5) of this section is taken to be the base rate of pay that would be referred to in that paragraph. (8) If the regulated employee is a pieceworker and paragraph 18(2)(b) would apply to the employee were the host employment instrument to apply to the employee, the full rate of pay that would be payable to the employee for the purposes of subsections (4) and (5) of this section is taken to be the full rate of pay that would be referred to in that paragraph. (9) To avoid doubt, this section does not require that a regulated employee referred to in subsection (5) be taken to be an employee other than a casual employee for the purposes of determining entitlements to kinds of leave, or any other purpose, except determining the protected rate of pay for the regulated employee. Requirement to pay no less than protected rate of pay applies despite other fair work instruments etc. (10) Subsection (2) applies despite any provision of: (a) a fair work instrument (other than an instrument made by the FWC under this Part) that applies to the regulated employee; or (b) a covered employment instrument (other than a fair work instrument) that applies to the regulated employee; or (c) the regulated employee's contract of employment; that provides for a rate of pay for the regulated employee that is less than the protected rate of pay for the regulated employee. Note: See also section 306N (effect of alternative protected rate of pay order) and subsection 306Q(6) (effect of arbitrated protected rate of pay order). 306G Exceptions from requirement to pay protected rate of pay Training arrangements (1) Section 306F does not apply to a regulated employee if a training arrangement applies to the employee in respect of the work performed for the regulated host. Certain short‑term arrangements (2) Section 306F does not apply to a regulated employee if: (a) no determination for the purposes of paragraph 306J(2)(a) (no exemption period) that applies to the employee in respect of the work performed for the regulated host is in force; and (b) the employee performs, or is to perform, the work for the regulated host during: (i) if neither subparagraph (ii) nor (iii) applies—a period of no longer than 3 months; or (ii) if a determination in force under section 306J specifies a period as the exemption period for the regulated host, the employer and the work—a period of no longer than the period specified; or (iii) if subparagraph (ii) does not apply and the work commences during a recurring extended exemption period for work of the kind performed by the employee for the regulated host—a period of no longer than the remainder of the extended exemption period, or a period of no longer than 3 months, whichever ends later. (3) However, if the regulated employee does in fact perform the work for longer than the maximum period applicable under paragraph (2)(b), as a result of a variation to or the making of one or more agreements, section 306F applies to the regulated employee on and after the day the agreements are varied or made. 306H Obligations of regulated hosts covered by a regulated labour hire arrangement order Application of this section (1) This section applies to a regulated host and an employer if the regulated host and employer are covered by a regulated labour hire arrangement order that is in force. Ability to request information regarding protected rate of pay (2) If the employer reasonably considers that the employer does not have all of the information needed regarding what is the protected rate of pay for one or more regulated employees of the employer covered by the order, the employer may request, in writing, that the regulated host provide the employer with specified information needed. (3) The regulated host must comply with the request: (a) as soon as reasonably practicable; and (b) in any event, within such a period as would reasonably enable the employer to comply with its obligations under section 306F (protected rate of pay payable to employees if a regulated labour hire arrangement order is in force) in relation to the employees. Note: This subsection is a civil remedy provision (see Part 4‑1). Manner of complying with request (4) The regulated host may comply with the request by: (a) providing the employer with the information requested; or (b) providing information, for each relevant pay period of the employees, setting out the protected rate of pay for each employee for the period. Subdivision C—Short‑term arrangements 306J Determination altering exemption period for short‑term arrangements (1) This section applies if: (a) a regulated labour hire arrangement order is in force that covers a regulated host, an employer and one or more regulated employees of the employer performing work for the regulated host; or (b) a regulated labour hire arrangement order has been made but is not yet in force that covers a regulated host, an employer and one or more regulated employees of the employer performing work for the regulated host; or (c) an application for a regulated labour hire arrangement order that would cover a regulated host, an employer and one or more regulated employees of the employer performing work for the regulated host has been made to the FWC under section 306E but has not been finally determined. (2) The FWC may determine that, in relation to the regulated host, the employer and work to be performed by one or more regulated employees of the employer: (a) there is no exemption period for the purposes of section 306G; or (b) a specified period of less than 3 months is the exemption period for the purposes of that section; or (c) a specified period of more than 3 months is the exemption period for the purposes of that section. Note: The exemption period is used in determining whether the exception to pay the protected rate of pay in the case of short‑term arrangements in subsection 306G(2) applies. 306K Determination of recurring extended exemption period (1) This section applies if: (a) a regulated labour hire arrangement order is in force that covers a regulated host, one or more employers and one or more regulated employees performing work for the regulated host; or (b) a regulated labour hire arrangement order has been made but is not yet in force that covers a regulated host, one or more employers and one or more regulated employees performing work for the regulated host; or (c) an application for a regulated labour hire arrangement order that would cover a regulated host, one or more employers and one or more regulated employees performing work for the regulated host has been made to the FWC under section 306E but has not been finally determined. (2) The FWC may determine that a specified period of more than 3 months, starting on a specified day of the year in specified consecutive years, is a recurring extended exemption period for the regulated host in relation to a specified kind of work to which the regulated labour hire arrangement order relates. 306L Making and effect of determinations under this Subdivision Who may apply for determination (1) The FWC may make a determination under this Subdivision only on application by: (a) the regulated host, an employer covered by the regulated labour hire arrangement order or a regulated employee covered by the order who is performing or is to perform work for the regulated host; or (b) an organisation entitled to represent the industrial interests of any of those persons. Time for making determination (2) The FWC must decide whether or not to make the determination as quickly as possible after the application is made. Requirements for making determination (3) Before deciding whether or not to make the determination, the FWC must seek the views of any person or organisation that, apart from the applicant, could have applied for the determination under subsection (1). (4) The FWC may make the determination only if satisfied that there are exceptional circumstances that justify making it, having regard to: (a) whether the purpose of the proposed exemption period or recurring extended exemption period relates to satisfying a seasonal or short‑term need for workers; and (b) the industry in which the work is performed or is to be performed; and (c) the circumstances of: (i) the regulated host; and (ii) any relevant employers covered by the regulated labour hire arrangement order; and (d) the views (if any) of any persons or organisations mentioned in subsection (1); and (e) for a determination made for the purposes of paragraph 306J(2)(c)—the principle that the longer the period to be specified in the determination, the greater the justification required; and (f) for a determination that a period is a recurring extended exemption period for a regulated host for a kind of work—the principle that the longer the period to be specified in the determination, and the greater the number of recurrences of that period to be specified, the greater the justification required; and (g) any other matter the FWC considers relevant. When determination comes into force (5) The determination comes into force on the later of the day the regulated labour hire arrangement order comes into force, and the following: (a) for a determination under section 306J that there is no exemption period for the purposes of section 306G—the day it is made; (b) for a determination under section 306J that there is an exemption period of more than, or less than, 3 months for the purposes of section 306G—the day it is made or a later day specified in the determination; (c) for a determination under section 306K (which deals with recurring extended exemption periods)—the day it is made or a later day specified in the determination. Subdivision D—Alternative protected rate of pay orders 306M Making an alternative protected rate of pay order Application of this section (1) This section applies if: (a) a regulated labour hire arrangement order is in force that covers a regulated host, an employer and a regulated employee of the employer performing work for the regulated host; or (b) a regulated labour hire arrangement order has been made but is not yet in force that covers a regulated host, an employer and a regulated employee of the employer performing work for the regulated host; or (c) an application for a regulated labour hire arrangement order that would cover a regulated host, an employer and a regulated employee of the employer performing work for the regulated host has been made to the FWC under section 306E but has not been finally determined. Alternative protected rate of pay order (2) The FWC may make an order (an alternative protected rate of pay order) specifying: (a) how the rate of pay at which the employer must pay the regulated employee in connection with the work is to be worked out; and (b) that the employer must pay the rate of pay worked out in that way to the regulated employee in connection with the work. Rate of pay (3) The rate of pay for the purposes of paragraph (2)(a) must be the protected rate of pay for the regulated employee that would apply if the references in section 306F to the host employment instrument covered by the regulated labour hire arrangement order were instead references to a specified covered employment instrument that: (a) applies to a related body corporate of the regulated host and would apply to a person employed by the related body corporate to perform work of that kind; or (b) applies to the regulated host and would apply to a person employed by the regulated host to perform work of that kind in circumstances that do not apply in relation to the employee. Who may apply (4) The FWC may make an alternative protected rate of pay order only on application by the employee, the employer, the regulated host or an organisation entitled to represent the industrial interests of any of those persons. Time for making (5) The FWC must decide whether or not to make the order as quickly as possible after the application is made. Criteria for making etc. (6) The FWC must not make the order unless satisfied that: (a) it would be unreasonable for the requirement in section 306F, that the employer pay the regulated employee at no less than the protected rate of pay, to apply in connection with that work (including, for example, because the rate would be insufficient or would be excessive); and (b) there is a covered employment instrument of the kind referred to in paragraph (3)(a) or (b). (7) Before deciding whether to make the order, the FWC must seek the views of the following: (a) the employer; (b) the regulated host; (c) the employer to which a covered employment instrument to be specified in the order for the purposes of subsection (3) applies (if not the regulated host); (d) the employee; (e) employees to whom the covered employment instrument to be specified in the order for the purposes of subsection (3) applies; (f) organisations entitled to represent the industrial interests of any of the persons referred to in paragraphs (a) to (e). (8) In deciding whether to make the order, the FWC must have regard to: (a) whether the host employment instrument covered by the regulated labour hire arrangement order applies only to a particular class or group of employees; and (b) whether, in practice, the host employment instrument has ever applied to an employee at a classification, job level or grade that would be applicable to the regulated employee; and (c) the views (if any) of any persons or organisations mentioned in subsection (7); (d) the rate of pay that would be payable to the regulated employee in connection with the work if the order were made; and (e) any other matter the FWC considers relevant. Exception for short‑term arrangements (9) In making an order under this section, the FWC must ensure that, if an exception in section 306G would apply to the requirement to pay the regulated employee at no less than the protected rate of pay, the exception also applies in relation to the requirement to pay the employee at the rate worked out under the alternative protected rate of pay order. 306N Effect of alternative protected rate of pay order When alternative protected rate of pay order comes into force (1) An alternative protected rate of pay order comes into force: (a) if the order is made before the regulated labour hire arrangement order to which the order relates comes into force: (i) on the day the regulated labour hire arrangement order comes into force; or (ii) on a later day specified in the alternative protected rate of pay order; or (b) otherwise—on the day the alternative protected rate of pay order is made, or on a later day specified in the order. Effect of alternative protected rate of pay order (2) If: (a) a regulated labour hire arrangement order is in force that covers a regulated host, an employer and work performed by a regulated employee of the employer; and (b) an alternative protected rate of pay order is made in relation to the regulated labour hire arrangement order; then: (c) the alternative protected rate of pay order applies in relation to so much of the work as is performed during the period that the alternative protected rate of pay order is in force; and (d) during that period, the alternative protected rate of pay order has effect despite section 306F (protected rate of pay payable to employees if a regulated labour hire arrangement order is in force), and despite any provision of the following that provides for a lower rate of pay than that worked out in accordance with the order: (i) a fair work instrument that applies to the regulated employee; (ii) a covered employment instrument (other than a fair work instrument) that applies to the regulated employee; (iii) the regulated employee's contract of employment. Person must not contravene an alternative protected rate of pay order (3) A person must not contravene a term of an alternative protected rate of pay order. Note: This subsection is a civil remedy provision (see Part 4‑1). Subdivision E—Termination payments 306NA Determining amounts of payments relating to termination of employment Application of this section (1) This section applies if: (a) a regulated employee's employment is or is to be terminated; and (b) the employee is or has been covered by a regulated labour hire arrangement order. Determining amounts of payments relating to termination of employment (2) Subject to subsection (5), if an amount that the employee's employer is required to pay to the employee (or to a person on the employee's behalf) in relation to the termination of the employment is to be determined wholly or partly on the basis of a rate of pay in relation to the employee, the rate of pay for the purposes of determining the amount is: (a) if the employee is covered by subsection (3) in relation to the amount—the applicable rate of pay that results from the operation of this Part; or (b) in any other case—the applicable rate of pay to which the employee is entitled apart from the operation of this Part. (3) This subsection covers the employee in relation to the amount if: (a) immediately before the termination of the employment occurs or is to occur, the employee is or will be covered by a regulated labour hire arrangement order in force in relation to work performed by the employee for a regulated host; and (b) the termination of the employment occurs or is to occur during a period in which the employee is performing work for the regulated host, including a period when the employee is taking paid or unpaid leave, or is absent, in connection with that work and the leave or absence is authorised: (i) by the employee's employer; or (ii) by or under a term or condition of the employee's employment; or (iii) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law; and (c) the rate of pay mentioned in paragraph (2)(a) is higher than the rate mentioned in paragraph (2)(b); and (d) unless the amount is a payment in lieu of notice of termination—the employee has not performed work for any other regulated host in relation to the employee's employment with the employer. (4) If the performance of the work for the regulated host relates to a joint venture or common enterprise engaged in by the regulated host and one or more other persons, then for the purposes of paragraph (3)(d), disregard any work that is taken to be performed for those other persons because of the operation of paragraph 306D(2)(c). Excluded subject matters (5) If the employer is a national system employer only because of section 30D or 30N, nothing in this Part, including the determination of any rate of pay under or in accordance with this Part, affects any amount: (a) that the employer is required to pay to the employee (or to a person on the employee's behalf) in relation to the termination of the employment; and (b) which relates to an excluded subject matter within the meaning of subsection 30A(1) or 30K(1). Interaction with fair work instruments etc. (6) This section applies despite: (a) a fair work instrument that applies to the employee; or (b) a covered employment instrument (other than a fair work instrument) that applies to the employee; or (c) the employee's contract of employment. Division 3—Dealing with disputes 306P Disputes about the operation of this Part When this Division applies to a dispute (1) This Division applies to a dispute about the operation of this Part if: (a) a regulated labour hire arrangement order is in