Annotated Fair Work Act & related legislation 2017 [2017 edition.] 9780409347302, 0409347302

Table of contents :
Full Title
Copyright
Publisher’s Note
Features of this Book
Table of Cases
Table of Statutes
Table of Contents
Fair Work Act 2009
Table of Provisions
Table of Amendments
Fair Work Act 2009
Fair Work Regulations 2009
Table of Provisions
Table of Amendments
Fair Work Regulations 2009
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Table of Provisions
Table of Amendments
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009
Table of Provisions
Table of Amendments
Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009
Fair Work (Registered Organisations) Act 2009
Table of Provisions
Table of Amendments
Fair Work (Registered Organisations) Act 2009
Fair Work (Registered Organisations) Regulations 2009
Table of Provisions
Table of Amendments
Fair Work (Registered Organisations) Regulations 2009
Fair Work Commission Rules 2013
Table of Provisions
Table of Amendments
Fair Work Commission Rules 2013
Paid Parental Leave Act 2010
Commentary
Table of Provisions
Table of Amendments
Paid Parental Leave Act 2010
Paid Parental Leave Rules 2010
Table of Provisions
Table of Amendments
Paid Parental Leave Rules 2010
Independent Contractors Act 2006
Table of Provisions
Table of Amendments
Introductory Commentary
Independent Contractors Act 2006
Independent Contractors Regulations 2016
Table of Provisions
Table of Amendments
Independent Contractors Regulations 2016
Pending Legislation
Index

Citation preview

LEXISNEXIS ANNOTATED ACTS

ANNOTATED FAIR WORK ACT AND RELATED LEGISLATION 2017

2017 edition Legislation current as at 2 January 2017

LEXISNEXIS ANNOTATED ACTS

ANNOTATED FAIR WORK ACT AND RELATED LEGISLATION 2017

Joe Catanzariti Vice President, Fair Work Commission

Michael Byrnes Special Counsel, Clayton Utz

Ian Latham Barrister, Denman Chambers

Erik Young Barrister, 15 Wardell Chambers

Oshie Fagir Barrister, Greenway Chambers

Justine Turnbull Partner, Seyfarth Shaw

2017 EDITION LexisNexis Australia 2017

AUSTRALIA

ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRICA SWITZERLAND TAIWAN UNITED KINGDOM USA

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National Library of Australia Cataloguing-in-Publication entry

ISBN 9780409347296 ISBN eBook 9780409347302

©2017 Reed International Books Australia Pty Limited trading as LexisNexis This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Publisher’s Note Legislation The publisher, authors, contributors and endorsers of this publication each excludes liability for loss suffered by any person resulting in any way from the use of, or reliance on, this publication. © LexisNexis. The legislation reproduced in this work does not purport to be an official or authorised version.

Cross references The text of this book has been extracted from the three-volume looseleaf service Workplace Law — Fair Work and follows the internal arrangement of the looseleaf service. This book therefore contains cross-references to other areas of the looseleaf service that have not been extracted. Where this occurs, reference should be made to Workplace Law — Fair Work.

Fair Work Commission’s Approved Forms Please note the Fair Work Commission’s Approved Forms are not reproduced in this book. To access the forms please refer to the looseleaf service Workplace Law — Fair Work or alternatively the Fair Work Commission website, https://www.fwc.gov.au/about-us/resources/forms.

Acknowledgment The authors of this service acknowledge the contributions of former authors: Stephanie Vass, Partner, Piper Alderman, Amanda Jarquin, Solicitor, formerly of TressCox, Peta Tumpey, Partner, TressCox, Daniel O’Sullivan, Barrister, Denman Chambers, Daniel Sleeman, formerly a Senior Consultant at Workplace Advisory Group and Jacqueline Massey, Solicitor.

Features of this Book Introduction This volume of LexisNexis Annotated Acts provides practitioners and students with the essential Fair Work 2009 legislation. Reproduced are the Fair Work Act and Regulations 2009, Fair Work (Registered Organisations) Act and Regulations 2009, Fair Work (Transitional Provisions and Consequential Amendments) Act and Regulations 2009, Fair Work Commission Rules 2013, Paid Parental Leave Act and Rules 2010, Independent Contractors Act 2006 and the Independent Contractors Regulations 2016.

Legislation tabs This edition includes a Quick Reference Directory and grey shaded tabs on the side of the legislation to facilitate quick and easy access to information.

Annotations This edition has the annotations shaded in grey boxes, which have been added to facilitate quick and easy access to information.

Index The Index locates references to given topics in all the legislation published.

Running heads Running heads at the top of each page indicate the section and paragraph number of the legislation as set out on each page as follows: Left page: Right page:

s1 [5-100]

Currency of legislation

FAIR WORK LEGISLATION FAIR WORK ACT 2009

[5-100] s1

The legislation reflects the law as amended to 2 January 2017.

Legislative histories To find out the full name and date of assent and commencement of an amending Act, or the number and date of gazettal and commencement of an amending Rule, turn to the relevant Table of Amendments in front of the Act or Regulations. The Table of Amendments gives a complete list of all amendments to the legislation since the date of commencement or, where the Act is based on an official reprint, the date of the official reprint.

Historical notes Where a section or subsection, regulation or schedule has been amended, an historical note compiled by the editor has been inserted in square brackets, in small typeface, immediately beneath the provision. This note details the history of the provision as amended and the commencement date of the particular statute. The notes may also be read with the legislative histories of the Acts (see below). Examples [Div 3 insrt Act 55 of 2001 s 3 and Sch 2 item 13, opn 15 July 2001]

Division 3 was inserted into the principal Act by Schedule 2 item 13 of Act 55 of 2001, the insertion taking effect on 15 July 2001. [def subst Act 55 of 2001 s 3 and Sch 2 item 12, opn 15 July 2001]

The definition was completely replaced by the new definition inserted by Schedule 2 item 12 of Act 55 of 2001, the substitution taking effect on 15 July 2001.

Table of Cases “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” Known as The Australian Manufacturing Workers’ Union (AMWU) v Toyota Boshoku Australia Pty Ltd [2012] FWA 1135 …. [83250.15], [8-3250.45] (Asia Pacific) Pty Ltd v Dun Oir Investments Pty Ltd [2012] FCA 1460; BC201209965 …. [270-120.35] (Commission’s own motion) v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch and Jenny Craig Weight Loss Centres Pty Ltd [2010] WAIRComm 200 …. [5-1900.15] A v NSW (2007) 230 CLR 500; 233 ALR 584 …. [8-5680.45] A & L Silvestri Pty Ltd v CFMEU [2008] FCA 812; BC200804055 …. [270180.25] A & L Silvestri Pty Ltd (ACN 052 514 799) v Construction, Forestry, Mining and Energy Union (2005) 226 ALR 247 …. [8-5660.35.10] A B [2014] FWC 6723 …. [Com 95,030] ABB v Doumit [1996] AIRC 2069 …. [7-4320.55] ABC Transport Pty Ltd, Re [2012] FWAFB 3212 (26 April 2012); (2012) 221 IR 9 …. [9-5050.15] Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215; 53 ATR 30; [2003] AIRC 504 …. [270-115.2.5.01], [270-115.2.5] — v — (2003) 53 ATR 30; 122 IR 215 …. [270-115.2.5] Ablett v Gemco Rail Pty Ltd [2010] FWA 8124 …. [7-4070.15], [7-4070.30] Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) (2008) 37 WAR 450; 252 ALR 136; 228 FLR 318; 178 IR 168 …. [5970.70.10], [5-970.70.20], [5-970.70.30], [270-115.1.10], [270115.1.20], [270-115.1.30] Aboriginal Legal Services of WA Inc v Lawrence [2007] WAIRComm 435 …. [5-970.70.20] ACCC v Automotive, Food, Metals, Engineering, Printing and Kindred

Industries Union (2004) ATPR 42-002 …. [8-6460.30] ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532; 284 ALR 489 …. [5970.95.05], [270-115.2.5] — v Trifunovski ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146; 295 ALR 407; 235 IR 115 …. [270-115.2.5.01], [270-115.2.5] Achal v Electrolux Pty Ltd (1993) 50 IR 236; 143 QGIG 144 …. [7-4320.40] Achilleus Taxation Pty Ltd ATF The Achilleus Taxation Trust and another v Hobbs [2012] FWAFB 5679; BC201275122 …. [8-8010.07], [88010.25] ACI Operations Pty Ltd v Berri Ltd (2005) 15 VR 312 …. [8-5680.45] — v Field [2011] NSWIRComm 5 …. [5-1920.45], [5-1920.55] ACSEF v Metropolitan Coal Co of Sydney (1917) 11 CAR 984 …. [20695.95] ACT Visiting Medical Officers Association v AIRC (2006) 232 ALR 69; 153 IR 228 …. [270-115.2.5] ACTEW Corp Ltd v Pangallo (2002) 127 FCR 1 …. [270-180.25] Acting Public Service Cmr v ACPTOA (1917) 11 CAR 960 …. [20-695.80] Acworth v Boeing Australia Ltd [2007] AIRCFB 730; (2007) 166 IR 371 …. [7-4380.40] Adami v Maison de Luxe Ltd (1924) 35 CLR 143; 30 ALR 438; [1925] VLR 147 …. [10-250.40] Adams v Condamine Catchment Natural Resource Management Corporation Ltd T/A Condamine Alliance (2010) 205 IR 230 …. [5-1490.10] — v Hill (1984) 3 FCR 138 …. [20-6285.43] — v — (1984) 8 IR 137 …. [20-6285.43] Adamson v West Perth Football Club Inc (1979) 27 ALR 475; 39 FLR 199; (1979) ATPR 40-134 …. [5-970.70.30] Adlam v Noack (1998) 90 IR 31 …. [20-3010.15] Adler v ASIC (2003) 46 ACSR 504; 21 ACLC 1810; 179 FLR 1 …. [85660.30] — v DPP (Cth) (2004) 51 ACSR 1; 185 FLR 443; 22 ACLC 1460 …. [85680.5], [8-5720.10]

Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia (1999) 74 SASR 240; 90 IR 211 …. [Com 55,050] AFAP v TWU (1998 unreported) …. [8-8230.30] AFL Telecommunications Australia Pty Ltd [2014] FWC 7300 …. [61750.50], [6-1750.80] AFMEPKIU v Energy Developments Ltd (1996 unreported) …. [8-8450.60] AGC Industries Pty Ltd v CFMEU [2009] FWA 1631 …. [Com 60,050] Age Co Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2004) 133 IR 197 …. [5-1410.20], [5-1410.65], [Com 60,010], [Com 60,030] Age Company Ltd, Re The (2004 unreported) …. [5-1410.55] Agnew Gold Mining Company Pty Ltd [2010] FWA 7430 …. [6-9890.40], [7-120.21] Agnew Legal Pty Ltd re CLB No 1 Pty Ltd - Enterprise Agreement 2012 [2012] FWA 10861 …. [6-2010.45] Agri Labour Australia Pty Ltd [2015] FWC 5332 …. [6-2010.45] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 106 ALR 11; 59 A Crim R 255 …. [8-6460.25] Airline Hostesses’ Association, Re (1980) 37 ALR 110; 48 FLR 214 …. [20140.26.5], [20-140.26.30], [20-2655.80] Airlines of New South Wales Pty Ltd v New South Wales (No 2) (Airlines case (No 2) & Airlines of NSW case) (1965) 113 CLR 54; [1965] ALR 984; (1965) 38 ALJR 388 …. [5-970.73.01] Airport Fuel Services Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 4457; BC201070438 …. [6-1250.65] ALAEA re alteration to eligibility rule (2005 unreported) …. [20-2685.55] Alcan Australia Ltd, Re; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96; 123 ALR 193; 54 IR 475 …. [6-1250.20] Alcoa of Australia Ltd v Construction, Forestry, Mining and Energy Union [2015] FWCFB 1832 …. [6-4760] Alcwyn Roberts and Peter Collins v Coles Group Supply Chain Pty Ltd t/as Coles [2016] FWC 4898 …. [7-4380.20]

ALDI Foods Pty Ltd v Transport Workers’ Union of Australia and another [2012] FWAFB 9398 …. [6-1950.40] ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Ltd Partnership) [2012] FWA 161; BC201271567 …. [6-1950.40], [6-1950.65] Aldred v Hutchinson Pty Ltd [2012] FWA 8289 …. [7-4380.5] Alford v Healy (1951) 70 CAR 432 …. [20-2655.75] Alfred v Construction, Forestry, Mining & Energy Union (No 2) [2009] FMCA 1003; BC200909649 …. [8-5220.65] — v Lanscar (2007) 167 IR 320 …. [8-5220.75] — v Walter Construction Group [2003] FCA 993; BC200305472 …. [85660.35.10] — v Walter Construction Group Ltd [2005] FCA 497; BC200502625 …. [85220.50], [8-5220.55], [8-5220.60], [8-6460.25] ALHMWU v CSBP and Farmers Ltd (1996 unreported) …. [8-8230.30] Alice Springs Resort Enterprises Pty Ltd T/A Chifley Alice Springs Resort [2015] FWC 5863 …. [6-4120.46] Allen v BWIU (1985) 27 AILR 47 …. [20-3010.15] — v Flood [1898] AC 1 …. [Com 50,130] — v Fluor Construction Services Pty Ltd [2014] FWCFB 174 …. [87540.20], [8-8450.60] — v Townsend (1977) 16 ALR 301; 31 FLR 431 …. [20-1825.40], [202685.130], [20-2685.20], [20-2685.70], [20-3010.60], [20-5330.25], [205470.20], [20-6265.25] — v VBEF (1977) 16 ALR 69; 30 FLR 263 …. [20-3970.35] Allesch v Maunz (2000) 203 CLR 172; 173 ALR 648 …. [8-8850.30] Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 …. [74340.60] Alogaidi v Agad Property Consulting Pty Ltd [2014] FCCA 1883; BC201406835 …. [Com 55,150] Alphapharm Pty Ltd v Smithkline Beecham (Aust) Pty Ltd (1994) 49 FCR 250; 32 ALD 71; 121 ALR 373 …. [8-4980.5] Alphington Aged Care [2009] FWA 301; BC200970236 …. [6-4330.30]

Amalgamated Engineering Union, Re 148 CAR 1170 …. [20-2875.75] Amalgamated Metal Workers & Shipwrights Union v Carey (1981) 36 ALR 657; 54 FLR 386 …. [20-4145.20] Amalgamated Metals, Foundry and Shipwrights Union v Broken Hill Pty Co Ltd, Whyalla (Termination Change & Redundancy Case) (1984) 26 AILR 256; 294 CAR 175; 8 IR 34 …. [5-7470.40], [7-4300.10] Amalgamated Printing Trades Employees Union of New South Wales (1942) 47 CAR 590 …. [20,575.20], [20,575.30] Amalgamated Society of Carpenters & Joiners of Australia (Qld Branch) v Hawkins [1945] QWN 47 …. [20-590.30] Amalgamated Society of Engineers v Australian Institute of Marine Engineers (1909) 3 CAR 97 …. [20-2875.85] Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union (2009) 187 IR 119; [2009] FWA 44 …. [5-970.325.10], [Com 60,170] — v Ms V [2012] FWAFB 1616 …. [7-4340.20] Amcor Ltd v Construction Forestry Mining and Energy Union (2005) 214 ALR 56; 79 ALJR 703 …. [7-4380.35] Amiatu v Toll Ipec Pty Ltd [2015] FWC 3924 …. [Com 55,140] Amie Mac v Bank of Queensland Ltd [2015] FWC 774 …. [9-8785.20], [98790.35], [9-8795.05], [9-8795.30], [Com 95,030], [Com 95,040], [Com 95,050] AMIEU v Greenmountain Food Processing [2015] FCCA 2655 …. [85220.80] AMP Society Staff Association v Australian Insurance Staff’s Federation (1944) 53 CAR 836 …. [20-2875.70], [20-2875.85] AMWU, Re [2015] FWC 1843 …. [8-2140.35] an inquiry relating to an election for an office in the Victorian Baking Section of the Miscellaneous Workers Division of the Australian Liquor Hospitality & Miscellaneous Workers Union, In the matter of [1998] FCA 642 …. [20-4135.5] Andersen v Umbakumba Community Council (1994) 126 ALR 121; 56 IR 102; 1 IRCR 457; (1995) 30(1) AustLawyer 42h (note) …. [74320.50.01], [Com 55,050]

Anderson v James Sutherland [1941] SC 203 …. [5-970.95.25] — v Ritchie (1955) 81 CAR 118 …. [20-2655.65] Andrew Tung v Mos Burger Australia Pty Ltd T/A Mos Burger [2015] FWC 2678 …. [7-4590.1] Andrews v Uniting Church in Australia Frontier Services (1995) 60 IR 437 …. [8-5660.25], [8-6940.35] Anglican Care v NSW Nurses and Midwives Association [2015] FCAFC 81; BC201504848 …. [5-8090.12] Anglo Coal (Capcoal Management) Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2003] FCA 1073; BC200305851 …. [Com 60,030] Anita Goffett v Recruitment National Pty Ltd - Full Bench - (2009) 187 IR 262; [2009] AIRCFB 626 …. [8-9110.15] Annamunthodo v Oilfields Workers’ Trade Union [1961] AC 945; 3 All ER 621; (1961) 4 WIR 117; [1961] 3 WLR 650 …. [20-3010.70] Annetta v Ansett Australia (2000) 98 IR 233 …. [7-4340.20] Annette Megna v No 1 Riverside Quay (SEQ) Pty Ltd [2006] AIRC 519 …. [7-4320.40] Annual Wage Review 2009-10, Re (2010) 193 IR 380 …. [6-8110.35] Annual Wage Review 2010-11, Re (2011) 203 IR 119 …. [6-8110.35] Annual Wage Review 2011-12 [2012] FWA 5166 …. [6-8110.20] Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637; (1989) 95 ALR 211 …. [7-1810.10] ANZ Stadium Casual Employees Agreement 2009, Re [2010] FWAA 3758 …. [6-1950.10] APEA v Senior Managers Assn (Postal and Telecommunications Comm) (1991 unreported) …. [20-1115.65] Aperio Group (Aust) Pty Ltd t/as Aperio Finewrap v Sulemanovski [2011] FWAFB 1436; (2011) 203 IR 18 …. [7-4340.15] Appeal by Australian Municipal, Administrative, Clerical and Services Union, Re [2008] AIRCFB 96; (2008) 172 IR 1 …. [7-9920.70] Appeal by United Firefighters’ Union of Australia, Re (2009) 181 IR 6 ….

[20-2885.05], [20-2885.45] Applicant v Respondent [2010] FWA 1765 …. [8-9110.20] — v — [2014] FWC 6285 …. [Com 95,040] — v — [2014] FWC 2860 …. [8-8450.30] Applicant, The v General Manager and Company C [2014] FWC 3940 …. [9-8795.05], [Com 95,040] Application for, Inquiry, Election of Officers, Transport Workers Union, Re (1989) 89 ALR 575; 35 IR 223 …. [20-4130.30] Application/notification by The Australian Federated Union of Locomotive Employees, Queensland Union of Employees [2007] AIRC 419; BC200770496 …. [20,575.30] Application/Notification by Transport Workers’ Union of Australia [2007] AIRC 813 …. [Com 65,060] Applications/Notifications by Australian Petroleum Agents and Distributors Association, Re (2008) 171 IR 279; [2008] AIRC 11 …. [20-2875.125] APS Group (Placements) Pty Ltd v O’Loughlin (2009) 209 IR 351; [2011] FWAFB 5230 …. [7-4340.26] APSAA (NSW Branch), Re (1944) 53 CAR 95 …. [20-2655.75] APSAA, Re (NSW) Branch (1944) 54 CAR 95 …. [20-2655.65] Aquila Executive Search Pty Ltd v Chief Commissioner of State Revenue [2004] NSWADT 24 …. [270-115.2.5] Arbitration Court Registrars Association (1950) CAR 604 …. [20-2875.85] Armacell Australia Pty Ltd, Re (2010) 202 IR 38; [2010] FWAFB 9985 …. [6-1950.15], [6-2210.45], [6-2210.5] Arnott v Community and Public Sector Union BC9807005 …. [20-1825.75] Arthur Smith and Brett Kimball v Moore Paragon Australia Ltd - PR942856 [2004] AIRC 57 …. [7-4570.10] ARU, Re (1992 unreported) …. [20-1085.70] Asahi Diamond Industrial Australia Pty Ltd v Automotive Food Metals and Engineering Union (Asahi Test Case, March 1995) (1995) AILR 1165; 59 IR 385 …. [6-4330.1.5] ASC Pty Ltd v Automotive, Food, Metals, Engineering, Printing and

Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) [2012] FWA 418 …. [7-6290.01] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618 …. [88190.15], [8-8450.46] ASIC v Plymin (2002) 4 VR 168 …. [8-5660.35.5] Asmar, in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union [2012] FCA 1242; BC201208644 …. [203970.60] Associated Newspapers Ltd v Wilson [1995] 2 AC 454; [1995] 2 All ER 100; [1995] 2 WLR 354; [1995] ICR 406 …. [7-1790.10] Association of Architects, Engineers, Surveyors and Draughtsmen of Australia, The (1961) 97 CAR 867 …. [20-2875.85] Association of Professional Engineers Australia, Re (1948) 62 CAR 781 …. [20-2875.85] Association of Professional Engineers, Scientists and Managers, Australia, The v Peabody Energy Australia Coal Pty Ltd [2015] FWCFB 1451 …. [6-4330.20.1], [6-4330.22] Association of Professional Scientists of Australia, Re (1961)101 CAR 920 …. [20-2875.85] Atkinson v Midway Community Care Inc [2010] FWA 2907 …. [7-4070.35] ATS (Asia Pacific) Pty Ltd v Dun Oir Investments Pty Ltd [2012] FCA 1004; BC201206933 …. [270-120.35] Attorney-General v X (2000) 49 NSWLR 653 …. [7-4940.17], [8-8930.20] Aurizon Operations v Tristar Ltd; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB 540 …. [6-4120.10], [64120.40], [6-4120.50] Auspine Ltd v Construction, Forestry, Mining & Energy Union (2000) 97 IR 444 …. [5-1410.60], [7-1810.10] Australasian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165 …. [5-1140.15], [8-3460.40] — v Somerville Retail Services [2010] FWA 6737 …. [8-320.30], [8-580.1], [8-580.5], [8-580.7], [Com 65,070] Australasian Meat Industry Employees Union v Woolworths Ltd (2010) 192

IR 23 …. [6-1950.110] Australasian Meat Industry Employees Union, The v Somerville Retail Services [2010] FWA 6737 …. [Com 65,070] — v Woolworths Ltd [2009] FWA 849 …. [6-1950.100] Australasian Meat Industry Employees’ Union v Australian Food Corp Pty Ltd (2001) 116 FCR 19; 111 IR 425 …. [5-970.200.15], [8-870.20], [8870.25] — v Dardanup Butchering Company Pty Ltd (2011) 209 IR 1; [2011] FWA 3847 …. [8-580.7], [8-8230.10], [8-8230.20] — v Dardanup Butchering Unit Trust t/as Dardanup Butchery Company [2010] FWA 9197 …. [8-580.7] — v Fair Work Australia (2012) 203 FCR 389; 221 IR 318 …. [8-320.1], [8320.25], [8-560.30], [8-890.35], [Com 65,070] — v G & K O’Connor Pty Ltd (2000) 100 IR 383 …. [7-2850.10] — v Meneling Station Pty Ltd (1987) 18 FCR 51; 77 ALR 57; 16 IR 245 …. [8-5780.15] — v R J Gilbertson (Qld) Pty Ltd (1988 unreported) …. [7-1790.45] Australasian Meat Industry Employees’ Union, Re; Ex parte AFC Abattoirs Pty Ltd [1997] 15 Leg Rep 4; (1997) 73 IR 58 …. [8-6460.45] Australasian Meat Industry Employees’ Union, The [2013] FWCD 3707 …. [8-2160.01] Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 …. [74300.20], [7-4340.25], [7-4340.55], [Com 55,150] Australia Post v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2006) 157 IR 378 …. [5-1410.55] Australian Agricultural Co v Federated Engine Drivers Assn (1913) 17 CLR 261; 19 ALR 509 …. [20-2655.145] Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200; 127 ALD 453; 222 IR 316 …. [5-1410.70], [8-8210.55], [8-8310.25], [Com 60,020] — v Qantas Airways Ltd (2006) 160 IR 1 …. [7-1810.25], [8-5640.30] — v — [2014] FCA 32 …. [5-6510.30]

— v Qantas Airways Ltd (No 3) (2007) 162 FCR 392; 165 IR 464 …. [86940.15], [8-6940.45], [270-180.20], [270-180.40] Australian and International Pilots Association, Re (2007) 162 IR 121 …. [63680.35], [6-3680.45] — (2007) 170 IR 121 …. [20-2875.45], [20-2875.70], [20-2875.100] Australian Boot Trade Employees’ Federation v Vogt [1921] VLR 71; (1920) 27 ALR 19 …. [20-590.30] Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1 …. [8-5200.42] Australian Broadcasting Tribunal v Bond (1990) 21 ALD 1; 170 CLR 321; 94 ALR 11 …. [8-2140.15], [8-8230.10] Australian Building & Construction Commissioner v Abbott (No 4) (2011) 211 IR 267 …. [20-1870.10], [20-1870.51] — v Inner Strength Steel Fixing Pty Ltd [2012] FCA 499; BC201203073 …. [7-2600.45] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2009) 189 IR 37 …. [8-5200.45] — v McConnell Dowell Constructors (Aust) Pty Ltd (2012) 203 FCR 345; 222 IR 211 …. [20-535.15] Australian Building and Construction Commissioner (ABCC) v Mitchell [2011] FMCA 622; BC201106245 …. [8-1080.20] Australian Building Construction Employees and Builders’ Labourers’ Federation v Employment Advocate (2001) 114 FCR 22; 109 IR 194 …. [20-1870.10] Australian Central Credit Union Ltd [2011] FWA 3451; BC201170632 …. [7-120.8] Australian Commonwealth Shipping Board v Federated Seamens’ Union (1925) 36 CLR 442; 31 ALR 352 …. [20-695.05], [20-695.55] — v FSU of Aust (1925) 35 CLR 462; 31 ALR 97 …. [5-1410.20] Australian Community Services Employers Association, Queensland Union of Employers [2008] AIRC 592; BC200870155 …. [20,575.01], [20,575.45] Australian Competition & Consumer Commission v Black on White Pty Ltd

(2001) 110 FCR 1; ATPR 41-820 …. [8-5640.45] — v Warner Music Australia Pty Ltd [2000] FCA 647; BC200002570 …. [8-5660.30] Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (1999) 163 ALR 465; (1999) ATPR 41-692 …. [8-5660.35.5] — v FFE Building Services Ltd (2003) 130 FCR 37; (2003) ATPR 41-938 …. [8-5660.35.5] — v Leahy Petroleum Pty Ltd (No 2) (2005) 215 ALR 281 …. [8-5220.55] Australian Competition and Consumer Commission (ACCC) v Australian Safeway Stores Pty Ltd (No 2) (2001) 119 FCR 1; (2002) ATPR (Digest) 46-215 …. [8-5660.35.1] — v Francis (2004) 142 FCR 1; (2004) ATPR (Digest) 46-250 …. [86460.20], [8-6460.30] — v IPM Operation & Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162 …. [8-5640.40] Australian Conservation Foundation Inc v Cth (1980) 146 CLR 493; 45 LGRA 245; 28 ALR 257 …. [21-0235.10] Australian Education Union v Australian Principals Federation [2006] AIRC 601 …. [20-6265.55] — v Dept of Training and Employment (2002) 121 FCR 71; 117 IR 443 …. [270-180.25] — v General Manager of Fair Work Australia (2012) 246 CLR 117; 286 ALR 625; 86 ALJR 595 …. [20-585.15], [20-585.25] — v Lawler (2008) 169 FCR 327; 104 ALD 258; 174 IR 140 …. [20585.25], [20-2655.60], [20-3280.5], [20-3280.35] — v Victorian Principals Federation (2001) 113 IR 365 …. [20-505.100] Australian Education Union, Re; Ex parte Victoria (1994) 68 ALJR 617; 55 IR 303 …. [8-6460.45] — (1995) 184 CLR 188; 128 ALR 609; 58 IR 431 …. [8-6460.45] — (1995) 70 ALJR 173; 63 IR 447 …. [8-6460.45] Australian Electoral Commission v Hickson (1997) 76 IR 399 …. [204110.15], [20-4110.30]

Australian Exhibitions & Conferences Australasia Pty Ltd t/as Australian Exhibitions & Conferences [2012] FWAA 551; BC201270082 …. [64120.40] Australian Federation of Air Pilots v Ansett Transport Industries (No 2) (1991) 36 IR 219 …. [Com 65,010] — v Hamilton Island Enterprises Pty Ltd (No 2) (1989) 32 IR 46 …. [204620.01], [20-4620.30] Australian Federation of Airpilots v Flight West Airlines Pty Ltd (1997 unreported) …. [5-1410.20] Australian Federation of Construction Contractors v Australian Building Construction Employees’ and Builders Labourers’ Federation, Re (1984) 73 FLR 61; 8 IR 124 …. [20-695.90] Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126; 57 WN (NSW) 53; 14 LGR (NSW) 149 …. [8-8930.20] Australian Industry Group v ADJ Contracting Pty Ltd (2011) 213 IR 165; [2011] FWAFB 6684 …. [6-2350.15], [8-8190.15] — v AFMEU (2002) 125 FCR 529 …. [8-6460.25] — v — (2003) 130 FCR 524; (2003) 125 IR 449 …. [8-6460.25] — v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] AIRC 421 …. [7-5570.05], [7-5570.40] — v Fair Work Australia (2012) 205 FCR 339; 228 IR 35 …. [6-2350.15] Australian Industry Group and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1999 unreported) …. [51410.20], [5-1410.80] Australian Industry Group, Re (2010) 196 IR 125 …. [6-2350.1], [62350.15], [7-9920.85], [8-8850.5] Australian Journalists Association, Re; Ex parte Nicholson (1990) 27 FCR 75; 34 IR 436 …. [20-4135.5] Australian Letter Carriers Association, Re (1925) 21 CAR 168 …. [202875.85] Australian Licenced Aircraft Engineers Association [2014] FWC 3658 …. [20-2875.37], [20-2875.125] — v International Aviations Service Assistance Pty Ltd (2011) 193 FCR

526; 205 IR 392 …. [5-970.335.25], [7-1750.01], [7-1790.50], [85200.11], [8-5200.15] — v Qantas Airways Ltd [2014] FWC 358 …. [7-9940.1] — v Sunstate Airlines (Qld) Pty Ltd (2012) 208 FCR 386; 228 IR 72 …. [5970.335.20], [5-970.335.25] Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd (2011) 201 IR 441 …. [7-1790.10], [7-2850.30] — v — [2012] FWA 3939 …. [Com 65,050] — v — (2009) 180 IR 1 …. [5-1410.25] Australian Licensed Aircraft Engineers Association, Re (1963) 105 CAR 565 …. [20-2875.85] Australian Liquor, Hospitality and Miscellaneous Workers Union, Re (2002) 113 IR 300; [2002] AIRC 403 …. [20-2655.120], [20-4620.30] Australian Manufacturing Workers’ Union (AMWU) v Galintel Rolling Mills Pty Ltd T/A The Graham Group [2011] FWA 6326 …. [64350.05], [6-4350.10] Australian Manufacturing Workers’ Union v McCain Foods (Aust) Pty Ltd (2011) 214 IR 1; [2011] FWA 6810 …. [8-3250.10], [8-3250.60] Australian Manufacturing Workers’ Union (AMWU)-Queensland Branch v Main People Pty Ltd [2014] FWCFB 8429 …. [8-8850.5] Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd [2016] FWCFB 1151 …. [6-1950.40] Australian Maritime Officers’ Union, v Harbour City Ferries Pty Ltd and others [2015] FWCFB 3337 …. [6-1460.1], [6-1990.45] Australian Municipal, Administrative, Clerical [2013] FWC 1056 …. [88190.15] Australian Municipal, Administrative, Clerical and Services Union (2000 unreported) …. [20-2875.125], [20-2875.70] — v Australian Taxation Office (2007) 158 IR 148 …. [8-580.1], [Com 65,070] — v Greater Dandenong City Council (2000) 101 IR 143 …. [8-5220.50] — v Qantas Airways Ltd - T0301 [2000] AIRC 290 …. [5-9110.10]

— v Shire of Mundaring (2011) 213 IR 293 …. [7-3200.30] — v TAB Agents Association (SA Branch) Inc (2015) 251 IR 366; [2015] FWCFB 3545 …. [6-1730.40] — v Yarra Valley Water Corporation (2013) 232 IR 440; [2013] FWCFB 7453 …. [7-4940.30] Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385; 52 ALJR 407; 44 SAILR 354 …. [270-115.2.5] Australian National Hotels Pty Ltd v Jager (2000) 9 Tas R 153 …. [57330.35] Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd (2015) 228 FCR 225 …. [6-1810.1] Australian Nursing Federation (2000 unreported) …. [20-2875.80], [202875.85] — (2004 unreported) …. [20-2875.90] — (2005 unreported) …. [20-2875.55], [20-2875.90] — v Victorian Hospitals’ Industrial Association [2011] FWA 8756 …. [88210.50] — v — [2012] FWA 285 …. [6-4350.10], [6-4370.1] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; 246 ALR 35 …. [5-970.230.05], [8-5220.40], [8-5220.55], [85780.15] Australian Postal & Telecommunications Union, Re (1975) 25 FLR 90 …. [20-2655.60] Australian Postal Corp v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2009) 189 IR 262; [2009] FWAFB 599 …. [6-1250.3.5] — v Rushiti (2012) 224 IR 382; [2012] FWAFB 7423 …. [7-4340.15] Australian Postal Corporation v D’Rozario (2014) 222 FCR 303; 311 ALR 257 …. [8-8910.50], [Com 55,140] — v Gorman (2011) 196 FCR 126; 123 ALD 270 …. [7-4940.30] Australian Principals Federation [2006] AIRC 50 …. [20-505.10], [20505.35]

Australian Rail Tram & Bus Industry Union v Torrens Transit Services Pty Ltd [2001] FCA 975; BC200104369 …. [8-6460.25] Australian Rail, Tram and Bus Industry Union v Australian Rail Track Corporation (ARTC) [2012] FWA 6329 …. [6-1950.110], [6-1950.55] Australian Railways Union v National Union of Railwaymen of Australia (1993) 32 CAR 443 …. [20-2875.85] — v Victorian Railways Commissioners (ARU case) (1930) 44 CLR 319; [1931] ALR 37; (1930) 4 ALJR 338 …. [9-5960.05] Australian Red Cross Blood Service - re Australian Red Cross Blood Service South Australia Employee Enterprise Agreement 2011 [2011] FWA 6975 …. [5-4510.45] Australian Road Transport Industrial Organization v NatRoad Ltd [2013] 237 IR 147; [2013] FWCFB 8691 …. [20-505.105] Australian Salaried Medical Officers Federation,, Re [1989] 28 IR 431 …. [20-505.5] Australian Securities & Investments Commission (ASIC) v Adler (2002) 189 ALR 365; 20 ACLC 723 …. [8-6460.25] Australian Securities and Investment Commission v Doyle (2001) 38 ACSR 606 …. [20-5470.45] Australian Securities and Investments Commission v Petsas (2005) 23 ACLC 269 …. [8-5220.40] — v Rich (2009) 236 FLR 1; 75 ACSR 1 …. [20-5470.40] — v Rich (No 3) (2003) 45 ACSR 305; 21 ACLC 920 …. [8-5660.35.5] — v Vines (2003) 182 FLR 405; 48 ACSR 322 …. [20-5470.10] Australian Securities and Investments Commission (ASIC) v Hellicar (2012) 247 CLR 345; 286 ALR 501 …. [8-5660.30] — v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487; 245 ALR 29 …. [8-5680.5], [8-5700.15] — v Mining Projects Group Ltd (2007) 164 FCR 32; 65 ACSR 264 …. [85660.35.10] — v Warrenmang Ltd (2007) 63 ACSR 623; 25 ACLC 1589 …. [85700.40], [8-5740.20], [20-5470.45] Australian Ship and Wharf Workers’ Association v Waterside Workers

Federation (1919) 13 CAR 4 …. [20-505.5] Australian Tramways Employees’ Association, Re; Ex parte Ryan (1912) 6 CAR 49 …. [20-695.80] Australian Transport Officers Federation, Re (1989) 30 IR 225 at 231 …. [20-2875.70] Australian Workers’ Union v Skyway Executive Pty Ltd (2003 unreported) …. [5-1410.20] Australian Workers’ Union of Employees, Queensland, The v Etheridge Shire Council (2008) 171 FCR 102; 250 ALR 485; 175 IR 383 …. [5970.70.30], [270-115.1.30] Australian Workers’ Union, The [2015] FWCA 3956 …. [6-4120.40] Australian Workers Union v Bluescope Steel Ltd (2008) 171 IR 115 …. [51410.50], [5-1410.85] — v Leighton Contractors Pty Ltd (No 2) (2013) 232 FCR 428 …. [86940.65] Australian Workers Union and Nonferral Pty Ltd,, The (2004 unreported) …. [5-1410.25] Australian Workers’ Union v Amcor Packaging (Aust) Pty Ltd v ISS Integrated Services Pty Ltd [2009] FWA 1236 …. [8-580.7] — v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Tristar (2007) 164 IR 361 …. [6-4120.35], [64120.40] — v Bowen (No 2) (1948) 77 CLR 601; 22 ALJR 432 …. [20-3010.30], [203010.65], [20-3010.85], [20-3010.90] — v Coles [1917] VLR 332 …. [20-2655.145] — v Killarnee Civil & Concrete Contractors Pty Ltd, ITF The Thompson Family Trust and another [2011] FWAFB 4349; (2011) 212 IR 153 …. [6-1970.35] — v Leighton Contractors Pty Ltd (2012) 218 IR 140; [2012] FWAFB 207 …. [9-9170.05] — v — (2013) 209 FCR 191; 295 ALR 449 …. [6-1250.56], [6-1970.75], [99170.30] — v Rio Tinto Aluminium (Bell Bay) Ltd [2011] FWA 3878 …. [8-580.1],

[8-1350.1], [Com 65,120] — v Yallourn Energy Pty Ltd (2000) 95 IR 207 …. [8-6460.25] Australian Workers’ Union and others, The v Alcoa Australia Rolled Products Pty Ltd [2010] FWA 5674 …. [78900.60] Australian Workers’ Union of Employees, Queensland v Etheridge Shire Council (No 2) (2009) 178 IR 118 …. [270-180.25] Australian Workers’ Union, New South Wales and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (2002) 118 IR 1 …. [20-140.45.20] Australian Workers’ Union, Re; Ex parte Construction, Forestry, Mining and Energy Union (2002) 120 FCR 527; 114 IR 185 …. [8-6460.55], [202875.85] Australian Workers’ Union, The [2014] FWC 6916 …. [8-480.20] — v Brockman Engineering Pty Ltd [2015] FWC 2077 …. [8-3250.40] Australian Workers’ Union; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, The v The Australian Licenced Aircraft Engineers Association [2012] FWAFB 7398 …. [20-2260.60] Australian Workers’ Union; Australian Workers’ Union of Employees, Queensland v Ardent Leisure Ltd t/as Dreamworld [2009] FWA 926 …. [8-580.7] Automatic Fire Sprinklers Pty Ltd v Watson Share (1946) 72 CLR 435; [1946] ALR 390; (1946) 20 ALJR 189 …. [78900.60] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2004 unreported) …. [5-1410.55] — v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; BC201508307 …. [9-5960.55] — v ALS Industrial Australia Pty Ltd (No 2) [2015] FCAFC 166; BC201511318 …. [8-6940.08], [8-6940.10] — v Beynon [2013] FCA 390; BC201302029 …. [8-5640.45] — v Forstaff Pty Ltd (2004) 132 IR 326 …. [20-2130.45], [20-2135.45], [20-

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Booth v ARU (1931) 30 CAR 789 …. [20-2685.10] Boral Cement Ltd v Australian Workers’ Union [2012] FWAFB 350 …. [Com 60,185] Boral Resources (NSW) Pty Ltd v The Australian Workers’ Union [2009] FWA 1412 …. [Com 60,030] Bormann v Visy Board Pty Ltd [2011] FWA 1569 …. [7-4340.35] Bosch Chassis Systems Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FWA 1173 …. [Com 60,140] Bostik (Aust) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20; 34 AILR 186; 41 IR 452 …. [7-4300.10], [8-5200.11] Bourke v Mapstone (1984) 55 ALR 311 …. [270-180.5] Bourne v Campbell (1999) 93 IR 238 …. [20-4105.35] Bouzourou v The Ottoman Bank [1930] AC 271 …. [10-250.60] Bowden v Ottrey Homes - Cobram and District Retirement Villages Inc (t/as Ottrey Lodge) (2013) 229 IR 6 …. [7-4610.5] Bowers v Victoria Police [2011] FWA 2862 …. [6-4350.1] Bowker v DP World Melbourne Ltd T/A DP World; Maritime Union of Australia, The-Victorian Branch [2014] FWC 7381 …. [Com 95,050] Boyar v The House of Life [2011] FWA 7953 …. [7-3100.10], [7-4860.30] BPL Adelaide Pty Ltd [2015] FWC 3905 …. [8-320.4] Brackenridge v Toyota Motor Corp Aust Ltd (1996) 142 ALR 99 …. [10250.35] — v Toyota Motor Corp Australia Ltd (1996) 67 IR 162 …. [5-7330.35] Bradley v Bradley (1978) AR (NSW) 94 …. [5-970.95.50] Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64 …. [8-1080.25], [8-5220.45] Bramich v Transport Workers Union of Australia (2000) 97 FCR 204 …. [20-2655.65], [20-2685.80] Brammer v Deery Hotels (1974) 3 ALR 621; 22 FLR 276 …. [8-5060.15] Brian Roy v SNC-Lavalin Australia Pty Ltd (2013) 236 IR 255 …. [74380.5]

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970.95.47] Cahill v Construction, Forestry, Mining & Energy Union (No 4) (2009) 189 IR 304 …. [8-5220.65] — v Construction, Forestry, Mining and Energy Union (No 2) (2008) 170 FCR 357; 250 ALR 223; 175 IR 357 …. [5-1410.20], [5-1410.5], [51410.60] — v Sheet Metal Working Industrial Union of Australia (1956) 84 CAR 22 …. [20-3280.45] Cai v Tiy Loy & Co Ltd [2015] FCCA 715; BC201501997 …. [7-2850.24] Cains v Jenkins (1979) 26 ALR 652; 46 FLR 278 …. [20-3010.75] — v — (1979) 28 ALR 219; 42 FLR 188 …. [20-3010.80], [20-3010.85], [20-3010.90] Calderwood v SCI Operations Pty Ltd (1995) 130 ALR 456; 63 IR 49 …. [85660.35.5] Caldow v Pixell (1877) 2 CPD 562 …. [20-2650.10] Callo v Brouncker (1831) 4 C & P 518; 172 ER 807 …. [10-250.50] Cameron v Australian Workers Union (1959) 2 FLR 45 …. [20-2655.65], [20-2685.10], [20-2685.105], [20-2685.20], [20-2685.45], [20-2685.50], [20-2685.55], [20-2685.65], [20-2685.90] — v Davis (1960) 1 FLR 413 …. [20-3010.85] — v Hogan (1934) 51 CLR 358; [1934] VLR 280; [1934] ALR 298 …. [203010.105] Campbell v Electrical Trades Union (1958) 4 FLR 188 …. [20-2655.125] — v Gorman (1977) 18 ALR 108 …. [20-3010.70], [20-3010.85] Campbell & Connolly v Crawford (1985) 12 FCR 317; 13 IR 449 …. [202685.80] Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45; 169 ALR 677 …. [20-3530.10] Canceri v Taylor (1994) 123 ALR 667; 55 IR 316; 1 IRCR 120 …. [86940.30], [270-180.35], [270-180.5] Cannon v Poultry Harvesting Pty Ltd [2015] FWC 3126 …. [7-4340.80] Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276 …. [8-5220.40]

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Ho v AP Eagers Ltd (2010) 203 IR 376; [2010] FWA 5897 …. [7-4380.5] — v Professional Services Review Committee No 295 [2007] FCA 388; BC200701900 …. [7-3120.10] Hobbs v Achilleus Taxation Pty Ltd ATF the Achilleus Taxation Trust [2012] FWA 2907 …. [Com 55,050] Hodder v Australian Workers Union (1985) 9 FCR 498; 70 ALR 489; 11 IR 446 …. [20-2685.140], [20-2685.70] Hodge v R; Ex rel O’Sullivan (1907) 5 CLR 373 …. [20-140.80.5] Hodges v Webb [1920] 2 Ch 70 …. [Com 50,130] Hodgson v Amcor Ltd; Amcor Ltd v Barnes (2012) 264 FLR 1 …. [57470.27] — v Wilkinson (1968) 12 FLR 191; 122 CAR 909 …. [20-3010.30] Hodkinson v Commonwealth (2011) 248 FLR 409; 207 IR 129 …. [71750.01], [7-1790.15], [7-2310.20], [7-2330.30], [7-2330.35] Hoklas v Richmond Grove Wines T/A Orlando [2012] FWA 4011 …. [Com 75,230] Holland v Nude Pty Ltd t/as Nude Delicafe (2012) 224 IR 16; [2012] FWAFB 6508 …. [7-4940.25], [8-9110.30] Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263; 106 IR 80 …. [270-115.2.5], [270-115.2.5.01] Hornby v Close (1867) LR2QB 153 …. [20-3010.105] Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41; 55 ALR 417; 4 IPR 291 …. [20-5330.25] House v R (1936) 55 CLR 499; 10 ALJR 202 …. [7-4940.20], [7-4940.30], [Com 75,300] Howard v Cummins (1988) 27 IR 109 …. [8-6940.20], [8-9110.35], [270180.30], [270-180.45] HRX Holdings Pty Ltd v Pearson (2012) 205 FCR 169; 220 IR 350 …. [51920.30] Humberstone v Northern Timber Mills (1949) 79 CLR 389; [1949] ALR 985; (1949) 23 ALJR 584 …. [270-115.2.5] Hunter Douglas Hunter Douglas v SSX Services Pty Ltd t/as The Australian

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Taylor-Hunt v Downer EDI Works Pty Ltd [2010] FWA 4626 …. [53240.05], [7-4070.40] Technical and Further Education Commission t/as TAFE NSW v Pykett (2014) 240 IR 130; [2014] FWCFB 714 …. [7-4380.5], [7-4380.42], [74380.43] Technip Oceania Pty Ltd v Tracey [2011] FWAFB 6551 …. [6-1480.5] Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197; 87 IR 308 …. [5970.95.50] Telecommunications Technical Officers Association (1982) 285 CAR 774 …. [20-2655.60] Telstra Corp Ltd [2012] FWA 541 …. [7-120.21] — v Minister for Broadband, Communications and Digital Economy (2008) 166 FCR 64; 246 ALR 15 …. [8-8850.30] Telum Civil (Qld) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434 …. [5-970.105.20] Temple v Powell (2008) 173 IR 189; 169 FCR 169 …. [8-5640.25] Tempo Services v Klooger (2004 unreported) …. [Com 55,140] Tempo Services Ltd v — Print PR953337; (2004) 136 IR 358 …. [57470.30] Tenix Defence Pty Ltd v Galea (2003 unreported) …. [Com 55,150] Tenix Defence Systems Pty Ltd Certified Agreement 2001-2004 [2002] AIRC 531 …. [6-3680.05] Tenix Defence Systems Pty Ltd, Re (2002 unreported) …. [6-3680.40] Termination, Change and Redundancy Case; sub nom Amalgamated Metals Foundry and Shipwrights’ Union and BHP Co Ltd re Termination, Change and Redundancy (AILR) (Job Protection/Termination Change and Redundancy) (1985) 27 AILR 1; 295 CAR 673; 9 IR 115 …. [57470.30] Terry Shields Pty Ltd v Chief Cmr of Pay-roll Tax (NSW) (1989) 17 NSWLR 493; 98 ALR 559; 96 FLR 134; 89 ATC 4674 …. [7-960.45] Teterin v Resource Pacific Pty Ltd (2014) 244 IR 252 …. [7-4300.11] Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250 …. [8-5240.5]

Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (2015) 230 FCR 565; 317 ALR 636 …. [8-8910.1], [8-8910.35] Teys Australia Southern Pty Ltd [2015] FWC 4865 …. [6-1750.75] TG v SF Pty Ltd [2010] FWA 2650 …. [7-4380.45] Theatre Managers’ Association [2010] FWA 2020 …. [20-505.20] Thomas v Campbell (2003) 9 VR 136 …. [8-5780.10] — v Goona Warra Vineyard [2014] FWC 513 …. [Com 55,080] Thompson v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union of Australia (196 unreported) …. [20-2685.70] — v Hodder (1989) 21 FCR 467; 29 IR 339 …. [8-6940.35], [270-180.25], [270-180.45] — v Townsend (1979) 38 FLR 143; 21 AILR 329 …. [20-3010.15] Thornton v Mackay (1946) 56 CAR 561 …. [20-2655.60], [20-2655.95] Thorson v Pine (2004) 139 FCR 527; 134 IR 343 …. [9-3920.1], [9-3920.30] Tibaldi Smallgoods (Australasia) Pty Ltd v Rinaldi (2008) 172 IR 86 …. [57470.40] Timber and Allied Industries Award 1999, Re [2003] AIRC 1137 …. [88690.20] Toms v Harbour City Ferries Pty Ltd (2015) 321 ALR 224 …. [7-4300.10] Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 4 ALD 277; 36 ALR 64; 54 FLR 421 …. [8-8850.5] Top End Consulting Pty Ltd [2010] FWA 6442 …. [6-2010.30], [6-2010.45], [6-2210.5] Torpia v Empire Printing (Aust) Pty Ltd (2009) 234 FLR 103; 188 IR 306 …. [8-5200.80], [8-5640.45] — v Zarfati (2009) 178 IR 325 …. [8-6940.45], [270-180.40] Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368 …. [Com 60,130] Town v ATC (1983) 47 ALR 137; 67 FLR 48; 3 IR 476 …. [5-1410.70] Townsend v GMH [1983] 4 IR 358 …. [8-3250.55] Toyota Motor Corp Australia Ltd v Marmara (2014) 222 FCR 152 …. [6.3380.1]

Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96; 123 ALR 503; (1994) ATPR 41-342 …. [8-5660.35.5] — v TNT Management Pty Ltd (1984) 53 ALR 214; 15 A Crim R 172 …. [8-5660.35.5] Traffic Management Association of Australia Inc [2011] FWA 6802 …. [20505.55] Tramway Employees (Melbourne) Award, Re (1951) 72 CAR 26 …. [88230.10] Tran v Commonwealth (2010) 187 FCR 54; 271 ALR 1 …. [5-3420.10] Transfield Construction Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413; BC200206893 …. [5-1410.60] Transport Workers’ Union of Australia v BP Australia Ltd (2001) 187 ALR 697; 109 IR 39 …. [7-1790.10] — v Budget Rent A Car Operations Pty Ltd (2006) 148 IR 144 …. [5970.240.25] Transport Workers’ Union of New South Wales and WSN Environmental Solutions [2010] NSWIRComm 27 …. [7-4320.40] Transport Workers Union v School Bus Contractors Pty Ltd (2011) 246 FLR 430; 201 IR 327 …. [7-3200.37] Transport Workers Union of Australia (TWU) v DHL Exel Supply Chain (Aust) Pty (2008) 174 IR 44 …. [8-4980.5] Transport Workers Union of Australia, Re (1993) 50 IR 171 …. [270155.15] Transport Workers’ Union of Australia [2014] FWC 7469 …. [6-1440.40] — v Chubb Security Services Ltd [2012] FWA 2226; BC201271472 …. [61950.100] — v Coles Supermarkets Australia Pty Ltd [2015] FWC 1591 …. [6-4770.1] — v TNT Australia Pty Ltd [2011] FWA 1543 …. [6-4330.35] Transport Workers’ Union of Australia, NSW Branch v No Fuss Liquid Waste Pty Ltd [2011] FCA 982; BC201106693 …. [8-5200.15] Travis Manton v Belgian Beer Café Brussels Pty Ltd [2007] AIRC 933 …. [7-4320.50]

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Zappia v Universal Music Australia Pty Ltd T/A Universal Music Australia, (2012) 225 IR 122; [2012] FWAFB 6108 …. [7-4070.10] — v Universal Music Australia Pty Ltd t/as Universal Music Australia [2012] FWA 3208 …. [7-4070.10] Zhang v Royal Australian Chemical Institute Inc (2005) 144 FCR 347 …. [86940.45], [9-7810.01], [9-7810.25], [270-180.40] Zimmer-Vorhaus v Australian Institute of Marine & Power Engineers (1966) 8 FLR 468 …. [20-3280.5] Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561; [1956] ALR 123; (1955) 29 ALJR 698 …. [270-115.2.5] Zurich Australian Insurance Ltd v Amec Services Pty Ltd [1998] WASCA 68 …. [5-970.95.45]

Table of Statutes COMMONWEALTH A New Tax System (Family Assistance) (Administration) Act 1999 …. [111785.01], [121-100.01], [121-150.01] Acts Interpretation Act 1901 …. [5-2505.10] s 2B …. [5-970.100.20], [5-1900.45], [9-3920.25] s 2C …. [5-3200.20], [7-1810.15], [7-2850.21], [8-1080.30], [8-5640.15], [8-5680.35], [8-5700.35], [8-5760.15], [20-3530.25], [20-3545.20], [20-4130.20], [20-5975.25], [20-5980.20], [20-5985.15], [20-6435.10] s 13 …. [5-1350.21] s 15AB …. [20-7320.25] s 17(pd) …. [5-970.75.05] s 17(pe) …. [5-970.75.05] s 17(M) …. [20-2875.120] s 22(1)(aa) …. [8-5740.20] s 25A …. [9-3920.25] s 33(2A) …. [20-3010.20] Administrative Appeals Tribunal Act 1975 s 27 …. [8-4980.5] s 27(1) …. [8-4980.5] Building and Construction Industry Improvement Act 2005 …. [5970.101.10], [8-5640.25] Child Support (Registration and Collection) Act 1988 s 58 …. [Com 65,060] Conciliation and Arbitration Act 1904 …. [8-6460.05], [20-140.55.30], [20460.05], [20-590.40], [20-2875.125] s 4(1) …. [20-140.26.1], [20-140.30.5], [20-140.55.25], [20-2655.01], [202655.150]

s 58E …. [20-3010.05] s 60 …. [20-695.05] s 83 …. [20-695.55] s 104 …. [8-6460.05], [8-6460.20] s 133(1)(f) …. [20-2655.01], [20-2655.75], [20-2655.130] s 133A …. [20-7320.01] s 136 …. [20-590.5] s 140 …. [20-2685.01] s 140(1)(d) …. [20-7320.01] s 143 …. [20-695.01], [20-695.05], [20-695.55] s 143(1)(h) …. [20-695.70] s 143(1)(j) …. [20-695.70] s 143(2A) …. [20-695.10] s 143A …. [20-695.01], [20-695.05] s 143A(1) …. [20-695.70] s 146 …. [20-590.5] s 154 …. [20-140.10.5] s 158AA …. [20-140.10.1], [20-140.10.5] s 159(1) …. [20-4105.5] s 159(4)(b) …. [20-4110.5] s 161 …. [20-4110.5] s 162 …. [20-4110.5] s 170A …. [20-3970.01], [20-3970.05] s 170A(1) …. [20-3970.05] s 170A(3)(a) …. [20-3970.05] s 170A(4) …. [20-3970.05] s 171B …. [20-6265.05], [20-6265.10] s 171C …. [20-6265.10] s 171D …. [20-6285.05] s 197A …. [8-6940.05], [270-180.5]

Conciliation and Arbitration Act 1958 …. [20-3970.05] Conciliation and Arbitration Act 1974 s 132(2A) …. [20-2650.5] Consumer and Competition Act 2010 …. [5-3420.10], [8-5680.5], [86460.35] s 45 …. [8-6460.35] s 46 …. [8-6460.35] s 52 …. [5-3420.10] s 75B …. [8-5640.5], [8-5640.45], [20-5445.05] s 80 …. [5-3420.10] s 82 …. [5-3420.10] s 87 …. [5-3420.10] s 305A …. [8-6460.35] Corporations Act 2001 …. [8-5680.5], [Com 95,030] Pt 9.4B …. [5-3420.10] s 50 …. [20-140.60.20] s 50AAA …. [5-1490.10], [Com 40,090] s 180 …. [20-5470.45], [20-5475.25] s 180(1)(a) …. [20-5470.40] s 180(2) …. [20-5470.25] s 181 …. [20-5475.1], [20-5475.25] s 182 …. [20-5475.25], [20-5480.05], [20-5480.15] s 1317H …. [20-5475.25] s 1317M …. [8-5680.5] s 1317N …. [8-5700.5], [20-5980.01] s 1317P …. [8-5720.5], [8-5720.10], [20-5985.01] s 1317Q …. [8-5740.5], [8-5740.20] s 1325(4) …. [8-5060.1] Crimes Act 1914

s 4AA …. [5-970.230.05] s 16 …. [8-5620.10] s 16A …. [8-5680.15] Criminal Code Act 1995 s 3.1 …. [8-5680.45] s 4.1 …. [8-5680.45] s 4.1(2) …. [8-5680.45] Evidence Act 1995 s 128 …. [8-5660.35.5] s 132 …. [8-5660.35.5] s 140(1) …. [8-5660.35.1] s 140(2) …. [8-5660.35.1] s 160(2)(c) …. [8-5660.35.1] s 187 …. [8-5660.35.5] s 400(5) …. [8-5660.35.1] Fair Work (Registered Organisations) Act 2009 …. [20-590.40] Ch 8 Pt 3 Div 4 …. [20-140.5.5] Fair Work (Registered Organisations) Regulations 2009 reg 1 …. [21-0005.10] reg 3(1) …. [21-0065.30] reg 21 …. [20-460.30], [20-505.10], [20-505.120] reg 48 …. [21-0235.10] reg 60(7) …. [21-0300.10] reg 61 …. [21-0295.10] reg 62 …. [21-0295.10] reg 67(4)(d) …. [21-0300.10], [21-0325.10] reg 92(2) …. [21-0460.10]

reg 96(3)(d) …. [21-0460.10], [21-0470.10] reg 119 …. [20-2865.25] reg 121 …. [20-2875.120] reg 123 …. [20-2875.120] reg 141 …. [21-0735.10] reg 141(1)(b) …. [21-0780.10] reg 142 …. [21-0735.10] reg 143 …. [20-4105.55] reg 172 …. [21-0940.10] reg 173(3) …. [21-0940.10] reg 176(2) …. [21-0955.10] reg 176(3) …. [21-0955.10] Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Sch 14 …. [Com 65,040] Fair Work Act 2009 …. [6-4370.5], [7-5020.10], [8-580.1], [8-8190.25], [202255.01], [20-3530.40], [111-940.01], [111-975.01], [Com 40,010], [Com 60,010], [Com 60,015], [Com 60,020], [Com 60,030], [Com 60,050], [Com 60,055], [Com 60,120], [Com 60,140], [Com 60,170], [Com 75,010], [Com 75,020], [Com 95,070] Ch 1 Pt 1.2 …. [5-800.15] Ch 2 Pt 2.2 …. [Com 75,050] Div 11 …. [5-7330.40] Pt 2.4 Div 4 …. [Com 75,350] Div 7 …. [Com 75,350] Div 8 …. [Com 75,350] Pt 2.5 …. [Com 75,050]

Pt 2.6 …. [Com 75,050] Pt 2.8 …. [6-9660.25], [Com 40,010], [Com 40,100], [Com 75,350] Ch 3 …. [Com 50,010], [Com 60,055] Pt 2.3 …. [5-970.30.10] Pt 3 …. [8-580.1], [8-1350.1] Pt 3.1 …. [5-9290.15], [7-2850.30], [Com 50,010], [Com 50,030], [Com 75,050], [Com 75,200], [Com 75,350] Div 4 …. [Com 50,040], [Com 50,050], [Com 50,110], [Com 50,180], [Com 50,210] Div 8 …. [Com 50,230] Pt 3.2 …. [7-4360.25], [7-4380.42], [7-4940.25], [Com 75,350] Div 4 …. [Com 75,050] Pt 3.3 …. [Com 60,040]*, [Com 60,055], [Com 60,170], [Com 75,350] Div 6 …. [Com 60,170] Div 8 …. [Com 60,120], [Com 60,134], [Com 60,140] Div 9 …. [Com 60,150] Subdiv B …. [Com 60,050] Pt 3.4 …. [8-320.30], [Com 75,350] Div 5 …. [Com 75,350] Div 6 …. [Com 75,050], [Com 75,160] Pt 3.5 …. [Com 75,350] Div 2 …. [8-1350.1], [Com 60,040]* Div 3 …. [8-1350.1] Pt 3.6 Div 2 Subdiv B …. [Com 75,050] Pt 4.1 Div 2 …. [Com 75,050] Pt 6.2 Div 2 …. [Com 60,185]

Ch 4 Pt 4.1 …. [8-6480.15], [Com 50,030] Div 2 …. [Com 50,180] Ch 5 Pt 5.1 …. [Com 75,050] Div 9 …. [8-5620.15] Ch 6 Pt 6.2 …. [Com 60,015] Div 2 …. [Com 60,015] Pt 6.4B …. [Com 95,020] Pt 6.5 …. [9-8940.25] Pt 2 …. [7-160.1] Pt 2.1 …. [10-679] Pt 2.4 …. [6-1950.40] Pt 3 …. [6-2350.1], [8-2160-45], [8-2160-50], [Com 75,050] Pt 3.1 …. [Com 50,210] Pt 4.1 …. [Com 60,060] Pt 6.2 …. [9-5610.15] s 2 …. [5-1920.25] s 3A …. [6-1950.40] s C …. [8-8030.30] s 2B …. [9-9170.15] s 3 …. [6-8110.20], [8-580.1], [Com 60,170] s 6 …. [20-5070.10], [21-0065.05], [21-0065.10], [21-0065.15], [210065.25] s 11 …. [5-970.210.05], [5-970.240.10], [5-1410.30], [5-1410.35] s 12 …. [5-800.01], [5-800.05], [5-800.10], [5-970.90.20], [5-970.95.10], [5-970.97.10], [5-970.97.15], [5-970.101.05], [5-970.101.15], [5970.105.10], [5-970.105.15], [5-970.205.15], [5-970.205.20], [5970.210.10], [5-970.210.15], [5-970.240.05], [5-970.240.15], [5970.240.20], [5-970.325.05], [5-970.325.10], [5-970.325.15], [5-

970.330.10], [5-1140.20], [5-1350.5], [5-1350.10], [5-1350.15], [51350.25], [5-1490.10], [5-1490.20], [5-1490.25], [5-1490.30], [51730.10], [5-1730.15], [5-1900.20], [5-1920.10], [5-1940.15], [51940.20], [5-1940.30], [5-2505.05], [5-2790.5], [5-2790.10], [53200.10], [5-3200.15], [5-3220.15], [5-3220.20], [5-3240.25], [53240.35], [5-3240.40], [5-3240.45], [5-3240.50], [5-3240.55], [53260.25], [5-3260.30], [5-3260.35], [5-3400.10], [5-3400.20], [53420.15], [5-3440.20], [5-3440.25], [5-3440.30], [5-3440.35], [53440.45], [5-3440.55], [5-3670.15], [5-3670.20], [5-4170.01], [54170.05], [5-5450.15], [5-5640.10], [5-6070-10], [5-6510.10], [56510.25], [5-6510.35], [5-6510.55], [5-7330.10], [5-7330.15], [57330.20], [5-7330.25], [5-7490.20], [5-7820.20], [5-7820.25], [57820.30], [5-7820.35], [5-7820.40], [5-7840.15], [5-8330.05], [58330.10], [5-8330.20], [5-8330.25], [5-8330.30], [5-8330.35], [58350.5], [5-8350.10], [5-8730.5], [5-8750.10], [5-8750.15], [58750.20], [5-8870.15], [5-8870.20], [5-8870.25], [5-8870.30], [59050.10], [5-9050.30], [5-9050.35], [5-9050.40], [5-9050.45], [59050.50], [5-9150.20], [5-9150.25], [5-9150.30], [5-9170.10], [59170.15], [5-9290.5], [5-9290.10], [5-9310.1], [5-9730.05], [59730.10], [5-9730.15], [5-9730.20], [5-9730.25], [5-9730.35], [59870.15], [5-9870.20], [5-9870.30], [5-9870.35], [5-9870.40], [59870.45], [5-9870.50], [5-9870.55], [5-9870.60], [5-9910.5], [59910.10], [5-9910.15], [5-9910.20], [6-120.15], [6-120.20], [6120.25], [6-120.30], [6-200.5], [6-200.10], [6-200.15], [6-1040.5], [61040.10], [6-1250.10], [6-1250.15], [6-1250.25], [6-1250.40], [61250.45], [6-1250.50], [6-1250.60], [6-1250.70], [6-1250.75], [61440.5], [6-1440.20], [6-1750.10], [6-1750.15], [6-1750.25], [61750.35], [6-1750.40], [6-1750.45], [6-1750.55], [6-1750.60], [61750.70], [6-1950.15], [6-1950.20], [6-1950.35], [6-1950.45], [61950.60], [6-1950.70], [6-1950.75], [6-1950.80], [6-1970.10], [61970.15], [6-1970.20], [6-1970.25], [6-1970.30], [6-1970.40], [61970.45], [6-1970.50], [6-1970.55], [6-1990.25], [6-1990.30], [62010.10], [6-2010.20], [6-2010.35], [6-2010.40], [6-2210.1], [62210.15], [6-2210.30], [6-2210.35], [6-2210.40], [6-2210.50], [62210.55], [6-2920.25], [6-3680.15], [6-3680.25], [6-3680.30], [63860.10], [6-3860.15], [6-3860.25], [6-3860.30], [6-3860.35], [64100.30], [6-4100.35], [6-4100.40], [6-4120.25], [6-4120.30], [6-

4330.15], [6-6180.05], [6-6180.10], [6-8110.05], [6-8110.10], [68110.15], [6-8110.25], [6-8110.30], [6-9660.10], [6-9660.15], [69890.10], [7-120.5], [7-120.6], [7-120.7], [7-420.05], [7-420.10], [7960.20], [7-1750.17], [7-1770.05], [7-1770.30], [7-1770.40], [71770.45], [7-1770.55], [7-1770.60], [7-1770.65], [7-1770.75], [71770.80], [7-1770.85], [7-1770.95], [7-1770.100], [7-1770.105], [71790.35], [7-1790.40], [7-1790.65], [7-1790.80], [7-1810.05], [71850.05], [7-2080.05], [7-2600.5], [7-2600.25], [7-3580.15], [74070.45], [7-4070.50], [7-4070.55], [7-4070.60], [7-4070.75], [74320.60], [7-4380.15], [7-4380.30], [7-4570.5], [7-4610.10], [74880.10], [7-4930.25], [7-4940.10], [7-4950.15], [7-5020.5], [75300.10], [7-5300.15], [7-5490.20], [7-5570.35], [7-5570.45], [75570.50], [7-5570.55], [7-6100.15], [7-6100.20], [7-6100.25], [79100.10], [7-9100.25], [7-9100.30], [7-9100.35], [7-9710.10], [79710.15], [7-9730.15], [7-9730.20], [7-9730.25], [7-9730.30], [79730.35], [7-9730.40], [7-9730.45], [7-9730.50], [8-320.5], [8320.10], [8-320.15], [8-320.20], [8-480.20], [8-480.25], [8-480.30], [8480.35], [8-480.40], [8-480.45], [8-500.10], [8-500.20], [8-540.05], [8540.10], [8-540.20], [8-540.25], [8-830.10], [8-830.15], [8-830.20], [8830.25], [8-870.5], [8-870.10], [8-870.15], [8-1080.35], [8-1100.05], [8-1100.10], [8-1100.15], [8-2140.10], [8-2140.25], [8-2140.30], [82160-25], [8-2160-30], [8-2160-40], [8-2160.05], [8-2160.10], [82160.15], [8-2180.5], [8-2180.10], [8-2180.15], [8-2180.20], [82200.5], [8-2200.10], [8-2200.20], [8-2200.25], [8-3250.35], [83250.45], [8-3460.20], [8-3460.35], [8-3740.05], [8-3740.10], [83740.15], [8-4460.10], [8-4770.5], [8-4770.10], [8-4960.5], [84960.15], [8-4980.20], [8-4980.25], [8-4980.30], [8-4980.40], [84980.45], [8-4980.50], [8-4980.55], [8-4980.60], [8-4980.65], [85020.10], [8-5020.15], [8-5020.20], [8-5020.25], [8-5020.30], [85020.35], [8-5040.5], [8-5040.10], [8-5060.10], [8-5200.20], [85200.35], [8-5200.50], [8-5200.55], [8-5200.60], [8-5200.65], [85200.70], [8-5220.10], [8-5220.15], [8-5220.20], [8-5220.25], [85220.30], [8-5220.35], [8-5240.10], [8-5430.15], [8-5430.20], [85430.25], [8-5430.30], [8-5430.35], [8-5430.40], [8-5430.45], [85430.50], [8-5430.55], [8-5430.60], [8-5430.70], [8-5680.25], [85700.15], [8-5760.5], [8-5990.15], [8-6250.5], [8-6250.10], [86440.10], [8-6440.15], [8-6480.05], [8-6480.10], [8-6500.10], [8-

6500.20], [8-6500.30], [8-6690.10], [8-6730.05], [8-6730.10], [86920.20], [8-6960.10], [8-6980.10], [8-8030.15], [8-8210.15], [88210.20], [8-8210.25], [8-8210.30], [8-8310.35], [8-8310.50], [88450.5], [8-8450.15], [8-8450.20], [8-8450.25], [8-8450.35], [88450.40], [8-8450.45], [8-8470.5], [8-8470.10], [8-8690.5], [88690.10], [8-8690.15], [8-8910.15], [8-8910.20], [8-8910.25], [88910.30], [8-8930.10], [8-8930.15], [8-9365.05], [8-9365.10], [89365.15], [9-250.10], [9-2460.01], [9-2460.05], [9-2460.10], [93920.5], [9-3920.15], [9-4490.5], [9-4490.10], [9-4720.5], [94720.10], [9-5110.10], [9-5610.05], [9-5610.10], [9-5800.05], [95960.20], [9-5960.25], [9-5960.30], [9-5960.50], [9-7372.05], [97372.10], [9-7960.15], [9-8940.05], [9-8940.10], [9-8940.15], [98940.20], [9-9170.25], [9-9230.05], [9-9230.10], [9-9270.20], [99310.10], [9-9310.15], [10-235.10], [111-035.05], [78900.40], [78900.45], [Com 50,020], [Com 65,050], [Com 65,090], [Com 75,050] s 13 …. [5-970.95.10], [5-970.105.10], [5-1350.20], [5-1900.30], [51940.15], [5-2790.5], [5-4170.01], [5-7330.15], [5-8350.5], [61040.5], [6-3860.10], [6-6180.05], [6-9660.10], [6-9660.15], [7420.05], [7-420.10], [7-5300.10], [7-6100.15], [8-3740.05], [85020.20], [8-5040.5], [9-5610.05], [9-8940.10] s 13(2) …. [5-970.75.10] s 14 …. [5-970.30.15], [5-970.70.15], [5-970.105.15], [5-1140.5], [51490.30], [5-1900.35], [5-1940.20], [5-2790.10], [5-4170.05], [57330.20], [5-8350.10], [6-1040.10], [6-1730.25], [6-3860.15], [66180.10], [7-5300.15], [7-6100.20], [8-3740.10], [8-5020.25], [85040.10], [9-5610.10], [9-8940.15] s 15 …. [5-7330.15], [5-7330.20] s 15(1) …. [5-800.01], [7-9710.10], [8-4770.5], [8-6250.5], [9-2460.01], [9-4490.5], [9-7372.05], [9-8940.05] s 15(2) …. [5-800.05], [7-9710.15], [8-4770.10], [8-6250.10], [92460.05], [9-4490.10], [9-7372.10] s 16 …. [5-1350.30], [5-5720.10], [5-7470.10], [5-9150.5] s 18 …. [5-7330.25], [5-9150.15] s 19 …. [5-1410.70], [7-5490.25], [7-9100.30], [8-3250.45], [8-5200.40],

[78900.35], [Com 60,010], [Com 60,030], [Com 60,055] s 19(1)(a) …. [5-1410.80] s 19(1)(b) …. [5-1410.80] s 19(1)(d) …. [5-1410.70] s 19(3) …. [5-1410.70] s 21 …. [5-1350.25], [5-9150.30], [6-8110.25] s 22 …. [5-7330.10], [5-8090.5] s 22(5) …. [Com 40,090] s 22(7)(b) …. [6-9890.45] s 26 …. [8-2160-25], [10-400.10] s 26(2) …. [8-2180.15] s 27(1)(c) …. [5-1920.25] s 27(D) …. [9-9170.20] s 28(1) …. [5-1940.01] s 28(2) …. [5-1940.01] s 28(3) …. [5-1940.01] s 30C …. [5-970.95.10], [5-970.105.10], [5-1940.15], [5-2790.5], [54170.01], [5-7330.15], [5-8350.5], [6-1040.5], [6-3860.10], [66180.05], [6-9660.10], [6-9660.15], [7-420.05], [7-420.10], [75300.10], [8-3740.05], [8-5020.20], [8-5040.5], [9-5610.05], [98940.10] s 30D …. [5-970.105.15], [5-1940.20], [5-2790.10], [5-4170.05], [57330.20], [5-8350.10], [6-1040.10], [6-3860.15], [6-6180.10], [75300.15], [8-3740.10], [8-5020.25], [8-5040.10], [9-5610.10], [98940.15] s 30E(1) …. [5-800.01], [7-9710.10], [8-4770.5], [8-6250.5], [9-2460.01], [9-4490.5], [9-7372.05], [9-8940.05] s 30E(2) …. [5-800.05], [7-9710.15], [8-4770.10], [8-6250.10], [92460.05], [9-4490.10], [9-7372.10] s 30L …. [5-1140.10] s 30M …. [5-970.95.10], [5-970.105.10], [5-7330.15], [8-5020.20], [85040.5]

s 30N …. [5-970.105.15], [5-7330.20], [8-5020.25], [8-5040.10] s 30P(1) …. [5-800.01], [7-9710.10], [8-4770.5], [8-6250.5], [9-2460.01], [9-4490.5], [9-7372.05], [9-8940.05] s 30P(2) …. [5-800.05], [7-9710.15], [8-4770.10], [8-6250.10], [92460.05], [9-4490.10], [9-7372.10] s 42 …. [5-3220.10], [5-3240.15], [5-3240.20], [5-3260.10], [5-3260.15], [5-3440.20], [5-3440.25] s 44 …. [5-5450.25] s 44(1) …. [5-7330.30] s 47 …. [5-3200.05], [5-3220.05], [7-4070.40] s 47(2) …. [5-970.30.20], [5-3240.10] s 48 …. [5-3240.10], [5-9050.15] s 49 …. [5-3440.40] s 50 …. [5-3420.20] s 51 …. [5-3420.20] s 52 …. [5-3420.05], [5-3440.60] s 53 …. [5-970.240.05], [5-3440.15], [6-1750.15], [6-1970.20], [61990.10], [6-2210.15], [6-4100.15] s 54 …. [5-3440.60] s 55 …. [5-6510.30] s 60 …. [5-5450.05], [5-5720.15], [5-5720.20], [5-6510.15], [5-6510.20], [5-7330.15], [5-7330.20], [5-7470.15], [5-7470.20], [5-7490.10], [57490.15], [5-7820.10], [5-7820.15], [5-7840.5], [5-7840.10], [58090.10] s 61(1) …. [5-5450.25] s 61(3) …. [5-1350.15], [5-8330.30], [5-9150.25] s 62(1) …. [5-4510.45] s 65(1A)(e) …. [Com 95,070] s 65(1A)(f) …. [Com 95,070] s 65(3) …. [111-035.05] s 65(5A) …. [9-5960.40]

s 69(1) …. [Com 40,090] s 69(2) …. [Com 40,090] s 70 …. [5-5450.15] s 83(2) …. [5-5450.10] s 84 …. [5-5450.20], [5-5450.25] s 86 …. [5-5720.15] s 87 …. [7-1770.75] s 90 …. [Com 60,015] s 90(2) …. [5-5720.35] s 91 …. [Com 40,090] s 96 …. [5-6070-15], [5-6510.40] s 102 …. [5-6510.55] s 106 …. [5-7330.35] s 107 …. [5-6510.05], [5-6510.60] s 107(2) …. [5-6510.05], [5-6510.30] s 107(5) …. [5-6510.30] s 109 …. [5-1920.10] s 117 …. [5-7330.35], [5-7330.36], [5-7330.40], [7-4340.67] s 117(2)(b) …. [5-7330.30] s 117(3) …. [5-7330.35] s 119 …. [5-7490.17] s 120 …. [5-7490.17] s 122 …. [Com 40,090] s 122(3) …. [Com 40,090] s 122(4) …. [Com 40,090] s 123 …. [5-7330.40], [7-4340.67] s 124 …. [Com 75,090] s 127 …. [6-1950.85] s 133 …. [5-8870.10], [5-9050.20], [5-9050.25], [5-9150.10], [5-9870.5], [5-9870.10], [6-120.5], [6-120.10]

s 134 …. [5-8750.20], [5-9730.35], [Com 75,050] s 140(3) …. [8-4980.60] s 142 …. [8-6460.20] s 144 …. [6-2210.50], [7-1770.55] s 155 …. [5-9390.15] s 156(1) …. [Com 75,050] s 156(2) …. [Com 75,050] s 157 …. [5-9730.40], [Com 75,350] s 158 …. [Com 75,350] s 160 …. [Com 75,250] s 161 …. [5-9910.25] s 168 …. [Com 75,160] s 170 …. [6-1250.30], [6-1250.35], [6-1440.10], [6-1440.15], [6-1730.15], [6-1730.20], [6-1750.20], [6-1750.30], [6-1950.25], [6-1950.30], [61990.15], [6-1990.20], [6-2210.20], [6-2210.25], [6-2920.15], [62920.20], [6-3680.10], [6-3680.20], [6-3860.15], [6-3860.20], [64100.20], [6-4100.25], [6-4120.15], [6-4120.20] s 170CC(3) …. [10-1315.20] s 170CC(4) …. [10-1315.20] s 171 …. [Com 60,120], [Com 75,050] s 172 …. [5-970.240.15], [6-1250.1], [6-1250.85], [6-1970.50], [63860.35] s 172(1)(a) …. [6-1250.20] s 172(1)(b) …. [6-1250.65] s 172(1)(c) …. [6-1250.20] s 172(2) …. [5-970.97.15], [6-1750.50], [6-1750.70] s 172(2)(b) …. [6-1250.3], [6-1250.55] s 172(3) …. [5-970.97.10], [6-1250.2.5], [6-1750.55] s 172(3)(b) …. [6-1250.3], [6-1250.55] s 172(4) …. [6-1440.25], [6-1750.45], [6-2210.35] s 172(5) …. [6-1250.2]

s 172(6) …. [6-1250.1.5] s 173 …. [6-1440.60], [6-1730.35], [6-4730.35] s 173(1) …. [6-1440.55], [6-1440.60] s 173(2) …. [6-1440.50] s 173(2)(a) …. [6-1440.60] s 173(2)(b) …. [6-1440.60] s 173(2)(c) …. [6-1440.60] s 173(2)(d) …. [6-1440.60] s 173(3) …. [6-1440.40], [6-1440.60] s 174(1A) …. [6-1460.1], [6-1440.40] s 174(3) …. [Com 50,030] s 174(4) …. [Com 50,030] s 176 …. [6-1440.5], [6-1750.10], [6-1970.15], [7-1770.05] s 176(1)(b) …. [6-1480.1] s 176(3) …. [6-1480.1], [8-4980.75] s 176(4) …. [6-1480.1] s 177 …. [6-1750.10] s 178(3) …. [10-795.10] s 178A(2) …. [6-1480.1] s 178B …. [6-1750.60] s 180 …. [6-1950.10.5] s 181 …. [6-1750.5], [6-1750.90], [Com 50,030] s 181(1) …. [6-1730.5], [6-1730.6], [6-1730.40], [6-1750.50], [Com 75,350] s 181(2) …. [6-1440.40] s 182(1) …. [6-1750.50], [6-1750.85] s 185 …. [6-1810.1], [Com 75,050] s 185(1) …. [6-1950.10.5], [Com 75,350] s 185(1A) …. [Com 75,350] s 185(2) …. [Com 75,350]

s 185(3) …. [6-1950.10.5], [Com 75,350] s 185(4) …. [6-1950.10.5], [Com 75,350] s 186 …. [6-1810.1], [6-1950.10], [Com 75,050] s 186(1) …. [6-1810.1], [6-1950.10.5] s 186(2)(c) …. [5-6510.30] s 186(3) …. [6-1950.40], [6-1950.100] s 186(3A) …. [6-1950.100] s 187 …. [Com 75,050] s 188 …. [6-1950.50] s 193(1) …. [6-1950.15] s 193(4) …. [6-2210.1] s 194 …. [6-1250.4], [Com 60,120] s 194(ba) …. [6-1250.4] s 194(f) …. [6-2350.1] s 201(1)(a) …. [6-2920.45] s 202 …. [6-2210.50], [7-1770.55] s 202(1) …. [6-2920.35.1], [6-2920.40] s 202(1)(a) …. [6-2920.50] s 202(1)(b) …. [6-2920.50] s 202(2) …. [6-2920.35.1] s 202(2)(a) …. [6-2920.45] s 202(4) …. [6-2920.35.1] s 202(5) …. [6-2920.35.1] s 203 …. [6-2920.50] s 203(2)(a) …. [6-2920.45] s 206(1) …. [6-3170.1] s 206(2) …. [6-3170.1] s 207 …. [6.3380.1] s 209 …. [6.3380.1] s 210 …. [Com 75,050]

s 210(1) …. [Com 75,350] s 210(2) …. [Com 75,350] s 210(3) …. [Com 75,350] s 211 …. [Com 75,050] s 217A …. [Com 75,050] s 219(1) …. [6-3860.06] s 219(2) …. [Com 75,050] s 220 …. [6.3885] s 220(2)(b) …. [6.3885] s 221 …. [6-3860.10] s 222(1) …. [Com 75,050], [Com 75,350] s 222(2) …. [Com 75,350] s 222(3) …. [Com 75,350] s 223 …. [Com 75,050] s 225 …. [Com 75,050] s 226(a) …. [6-4120.40] s 226(b) …. [6-4120.40] s 227 …. [6-4140.10] s 228 …. [6-1970.45], [6-4330.1.5], [6-4330.22], [6-4330.35], [64330.45], [6-4730.35], [7-5570.45], [Com 60,130] s 228(1) …. [6-4330.22], [6-4330.40], [6-4330.45], [6-4330.50] s 228(1)(d) …. [Com 50,175] s 228(1)(e) …. [Com 50,175] s 228(2) …. [6-4330.1.5], [6-4330.40], [6-4330.50] s 229 …. [6-4730.35], [Com 75,350] s 229(1) …. [Com 75,350] s 229(3) …. [6-4350.1.5], [Com 75,350] s 229(4) …. [Com 75,350] s 229(4)(c) …. [6-4350.05] s 229(4)(d) …. [6-4350.10]

s 229(5) …. [Com 75,350] s 230 …. [6-4330.35] s 230(1)(a) …. [6-4370.1] s 230(1)(b) …. [6-4370.1] s 230(1)(c) …. [6-4370.1] s 230(2)(b) …. [6-4755] s 230(3)(a)(i) …. [6-4755] s 231(1)(d) …. [Com 60,175] s 234 …. [Com 75,350] s 236 …. [6-1440.35], [6-4370.5], [6-4730.35] s 236(1) …. [6-4755] s 237 …. [6-4730.35] s 237(2) …. [6-4730.35] s 238 …. [6-4370.5] s 238(4) …. [6-4770.1] s 238(4A) …. [6-4770.1] s 240 …. [6-4330.5], [8-8310.10], [Com 60,010], [Com 75,350] s 240(1) …. [Com 75,350] s 240(4) …. [Com 75,110] s 242 …. [6-1440.30], [6-5142] s 246 …. [6-5142] s 247 …. [6-5410.1], [6-5570.1] s 247(3) …. [6-5410.1] s 248 …. [6-1250.75] s 249(1) …. [6-5570.1] s 249(3) …. [6-5570.1] s 253 …. [6-5820.1] s 254 …. [5-6510.01] s 254A …. [5-6070-1]

s 259 …. [20-6285.05] s 266(1) …. [5-970.325.10] s 267 …. [5-970.325.10] s 269(1) …. [5-970.325.05] s 284 …. [5-8750.15], [6-8110.35] s 284(1) …. [6-8110.35], [Com 75,050] s 284(3) …. [5-8330.25], [5-9730.25], [6-8110.15] s 285(1) …. [5-8330.05], [5-9730.05] s 287(2) …. [111-035.05] s 288(1) …. [6-4330.50] s 289 …. [Com 75,160] s 291 …. [Com 75,160] s 292 …. [Com 75,160] s 294 …. [111-035.05] s 296 …. [Com 75,250] s 298K(1) …. [7-1790.10], [7-1790.70] s 298V …. [7-2850.10] s 302 …. [Com 75,050] s 308 …. [6-9890.20], [6-9890.25], [7-120.3], [7-120.4] s 309 …. [6-9680.1] s 311 …. [6-9890.40], [6-9890.45], [7-1770.95] s 311(1) …. [6-9890.40], [Com 40,020] s 311(1)(b) …. [6-9890.30] s 311(1)(c) …. [6-9890.35], [6-9890.40] s 311(1)(d) …. [6-9890.40] s 311(2) …. [6-9890.40] s 311(3) …. [6-9890.5], [6-9890.40], [6-9890.45], [Com 40,020] s 311(4) …. [6-9890.40] s 311(5) …. [6-9890.40], [7-120.21], [Com 40,020] s 311(6) …. [6-9890.40]

s 312 …. [Com 40,030] s 312(2) …. [Com 40,030] s 313 …. [6-9930.1], [Com 40,060] s 314 …. [Com 40,070] s 314(1)(d) …. [Com 40,030] s 315 …. [Com 40,030] s 316 …. [Com 40,030] s 317 …. [Com 40,050], [Com 75,050] s 318 …. [6-9680.1], [7-120.21], [Com 40,030], [Com 40,060], [Com 40,070], [Com 40,080] s 318(1)(a) …. [Com 40,060] s 318(1)(b) …. [Com 40,060] s 318(2) …. [Com 40,060], [Com 75,350] s 318(3) …. [Com 40,070] s 318(3)(a)(ii) …. [7-120.21] s 318(3)(f) …. [7-120.21] s 318(4) …. [Com 40,070] s 319 …. [Com 40,030], [Com 40,070], [Com 75,050] s 319(1)(a) …. [Com 40,070] s 319(1)(b) …. [Com 40,070] s 319(1)(c) …. [Com 40,070] s 319(2) …. [Com 40,070], [Com 75,350] s 319(3) …. [Com 40,070] s 319(4) …. [Com 40,070] s 320 …. [7-160.1], [7-160.5], [Com 40,080], [Com 75,350] s 320(1) …. [7-160.1], [Com 40,080] s 320(2) …. [7-160.5] s 320(2)(a) …. [7-160.01] s 320(2)(a)(c) …. [7-160.01] s 320(2)(a)(b)(I) …. [7-160.01]

s 320(2)(a)(b)(II) …. [7-160.01] s 320(2)(c) …. [7-160.5] s 320(3) …. [Com 40,080], [Com 75,050], [Com 75,350] s 320(4) …. [Com 40,080] s 320(4)(e) …. [7-160.10] s 320(5) …. [Com 40,080] s 322 …. [7-960.10], [7-960.15] s 322(2)(b) …. [7-960.40] s 326(1) …. [5-9310.5] s 326(3) …. [5-9310.10] s 329 …. [5-970.30.20], [7-4610.15], [8-6940.65], [Com 40,030] s 330 …. [7-960.50] s 330(1) …. [7-1770.45] s 332 …. [7-4070.10] s 332(1) …. [Com 55,070] s 332(1)(a) …. [7-960.25] s 332(1)(c) …. [7-960.20] s 332(2) …. [Com 55,070] s 332(2)(b) …. [7-4070.30] s 332(2)(c) …. [7-4070.30] s 332(3) …. [7-960.20], [Com 55,070] s 333 …. [7-4070.65], [Com 40,030] s 335 …. [7-1770.20], [7-1770.25], [7-2330.15], [7-2330.20], [7-2600.15] s 336 …. [Com 50,010] s 336(b) …. [Com 50,010] s 338 …. [Com 50,050] s 339 …. [Com 50,050] s 340 …. [7-1750.01], [7-1750.25], [7-1790.35], [7-1790.50], [7-2040.15] s 340(1) …. [7-1790.50]

s 340(1)(a) …. [5-970.330.15], [7-1750.03] s 341 …. [7-1750.20], [7-1770.110], [7-1790.60] s 341(1)(a) …. [5-970.330.15], [7-1770.35], [7-1770.90], [7-1770.110] s 341(1)(b) …. [7-1770.110] s 341(1)(c) …. [7-1770.10], [7-1770.110] s 341(1)(c)(ii) …. [7-1770.10] s 341(C)(ii) …. [7-1770.50] s 342 …. [7-1750.01], [7-1750.15], [7-1790.10], [7-1790.35], [7-1790.50], [7-1790.60], [7-2040.01], [7-2310.05], [7-2310.45], [20-535.01], [Com 50,060], [Com 50,130] s 342(1) …. [7-1790.15], [7-2310.40], [Com 50,080], [Com 50,130] s 342(2) …. [Com 50,070] s 342(3) …. [Com 50,090] s 342(4) …. [Com 50,090] s 343 …. [7-1810.05], [7-1810.10], [7-2080.15], [Com 50,120], [Com 60,050] s 343(1) …. [7-1810.10], [7-1810.15], [7-1810.25] s 343(2) …. [7-1810.20] s 345(1) …. [7-1850.40] s 345(2) …. [7-1850.30] s 346 …. [7-1790.50], [7-2040.01], [7-2040.15], [Com 50,160] s 346(a) …. [7-2040.05] s 346(b) …. [7-2040.15] s 347 …. [7-1790.50], [7-2080.10], [7-4340.1], [Com 50,020] s 347(a) …. [Com 50,160] s 348 …. [Com 50,100], [Com 50,110], [Com 60,050] s 349 …. [Com 50,140], [Com 50,150] s 349(1)(a) …. [Com 50,150] s 349(1)(b)(ii) …. [Com 50,150] s 349(2) …. [Com 50,150]

s 350 …. [Com 50,160] s 351 …. [7-2040.15], [7-2310.40], [7-2310.45], [7-2330.30], [Com 95,070] s 351(1) …. [7-2310.20], [7-2310.35] s 351(2)(a) …. [7-2310.35] s 351(2)(b) …. [7-2310.15] s 351(2)(c) …. [7-2310.15] s 351(3) …. [7-2310.35] s 352 …. [5-6510.05], [7-2040.15], [7-2330.30] s 352(1) …. [7-2310.45] s 354 …. [7-2040.15] s 356 …. [5-970.330.15], [5-9290.10] s 357 …. [270-115.2.5] s 360 …. [7-2040.15] s 361 …. [7-1750.01], [7-2040.01], [7-2310.45], [7-2850.30], [9-8020.01] s 362 …. [Com 95,070] s 365 …. [7-3120.15], [7-3580.05], [7-3580.10], [7-3580.20], [8-8450.60], [Com 50,030], [Com 50,215], [Com 75,050], [Com 75,350] s 366 …. [7-3120.35], [Com 75,050], [Com 75,350] s 366(1) …. [7-3120.35] s 366(1)(b) …. [Com 50,030] s 366(2) …. [7-3120.35], [Com 50,230] s 366(2)(a) …. [7-3120.25] s 366(2)(e) …. [7-3120.15], [7-3120.25] s 368 …. [8-8450.60] s 368(2) …. [Com 75,110] s 370 …. [8-8450.60], [Com 50,230] s 370(2) …. [9-4720.5] s 371 …. [7-3200.37], [9-4720.5] s 371(2) …. [7-3200.37]

s 372 …. [7-3580.05], [7-3580.20], [Com 50,215], [Com 75,050] s 374(2) …. [Com 75,110] s 376 …. [7-3580.20], [Com 75,240], [Com 75,350] s 377 …. [7-3580.20], [Com 75,350] s 380 …. [7-4070.45], [7-4070.50], [7-4320.30], [7-4320.35], [7-4360.15], [7-4380.25], [7-4930.15] s 381 …. [7-4360.25], [Com 75,050] s 381(c) …. [7-4570.25] s 382 …. [7-960.50], [7-4070.85], [7-4570.20], [7-4860.15], [Com 95,070] s 382(a) …. [7-4110.1] s 382(b) …. [7-4070.25] s 382(b)(iii) …. [7-4070.10] s 382(B) “iii” …. [10-1315.10], [Com 55,070] s 383 …. [7-4070.70] s 384 …. [6-9890.40], [7-4110.1] s 384(b) …. [Com 40,090] s 384(1) …. [7-4110.1] s 384(2) …. [7-4110.1] s 384(2)(a) …. [7-4110.1], [7-4110.5] s 384(2)(a)(i) …. [7-4110.1] s 384(2)(a)(ii) …. [7-4110.1] s 384(2)(b) …. [6-9890.45] s 385 …. [7-1790.25], [7-1790.30], [Com 95,070] s 385(c) …. [7-4360.25] s 386 …. [7-1790.20], [7-2330.10], [7-4300.01], [7-4360.10], [7-4570.30], [9-5050.05], [9-5110.05] s 386(1) …. [7-4320.05] s 386(1)(a) …. [7-4320.65], [Com 95,070] s 386(1)(b) …. [7-4320.40], [7-4320.65], [Com 95,070]

s 386(2)(a) …. [7-4320.05], [7-4320.10], [7-4320.65] s 386(2)(b) …. [7-4320.05] s 386(2)(c) …. [7-4320.05] s 386(3) …. [7-4320.10] s 387 …. [7-4340.1], [7-4340.45], [Com 95,070] s 387(a) …. [7-4340.65] s 387(b) …. [7-4340.65] s 388 …. [7-4300.15], [7-4860.20] s 388(D) …. [7-4300.11] s 389 …. [7-4300.05], [7-4380.5], [7-4380.20], [7-4380.45], [7-4860.10] s 389(1) …. [7-4380.5] s 389(1)(a) …. [7-4380.1], [7-4380.35] s 389(2) …. [7-4300.11], [7-4380.5] s 390 …. [7-4300.20] s 390(3)(a) …. [7-4570.10] s 390(3)(b) …. [7-4570.15] s 391(4) …. [7-4590.1] s 392 …. [7-4570.15] s 392(3) …. [7-4590.1] s 393 …. [6-4120.40] s 393(2) …. [7-4610.30] s 394 …. [7-4860.25], [7-4950.35], [7-5040.35] s 394(1) …. [Com 75,350] s 394(3) …. [7-4820.20] s 394(3)(f) …. [7-4820.20] s 396 …. [7-4360.25], [7-4860.30], [Com 75,050] s 398 …. [7-1770.15], [7-4880.5], [7-4930.10] s 398(2) …. [Com 75,110] s 399 …. [7-4880.15], [7-4930.30], [Com 75,110] s 399A …. [7-4950.35], [7-5040.35], [8-8030.30]

s 400 …. [7-4940.15], [7-4940.30], [Com 75,300] s 400(1) …. [7-4940.30] s 400(2) …. [7-4940.20], [7-4940.30] s 400A …. [7-4950.35], [7-5040.35], [9-7960.50] s 401 …. [7-1850.01], [7-1850.40], [8-6940.07], [Com 75,350] s 402 …. [Com 75,240], [Com 75,350] s 404 …. [7-5020.10] s 407 …. [7-5570.25], [7-5570.30], [7-6100.15], [7-6100.20], [7-9100.15], [7-9100.20] s 408 …. [7-1770.85], [Com 60,020], [Com 60,040]* s 409 …. [6-1250.85], [7-5490.05], [Com 60,020], [Com 60,040]* s 409(5) …. [Com 60,010] s 410 …. [7-5490.10], [Com 60,020], [Com 60,040]* s 411 …. [7-5490.15], [Com 60,020], [Com 60,040]* s 413 …. [Com 60,040]* s 414 …. [Com 60,030], [Com 60,136] s 414(6) …. [Com 60,055] s 415 …. [Com 60,050], [Com 60,055], [Com 60,160] s 416 …. [Com 60,040]*, [Com 60,160] s 417 …. [8-4980.80], [Com 60,050], [Com 60,055] s 418 …. [Com 60,020], [Com 60,030], [Com 60,050], [Com 60,055], [Com 60,140], [Com 75,050] s 418(1) …. [7-6100.30], [Com 60,055] s 418(2) …. [Com 75,350] s 418(3) …. [Com 60,055] s 419 …. [Com 60,055], [Com 75,050] s 419(2) …. [Com 75,350] s 420 …. [Com 60,050] s 420(1) …. [Com 75,350] s 421 …. [Com 60,050], [Com 60,055]

s 421(2) …. [Com 60,055] s 423 …. [Com 75,350] s 424 …. [Com 60,030], [Com 60,170] s 424(2) …. [Com 75,350] s 424(3) …. [Com 75,350] s 425 …. [Com 60,030], [Com 60,170] s 426 …. [8-8190.15] s 428 …. [Com 75,350] s 437 …. [Com 75,350] s 437(1) …. [Com 75,350] s 438(1) …. [Com 75,350] s 441 …. [Com 60,136] s 443 …. [Com 60,130], [Com 75,050] s 443(1)(b) …. [Com 60,130] s 443(5) …. [Com 60,136] s 444 …. [Com 60,134] s 447 …. [Com 75,350] s 447(1) …. [Com 75,350] s 448 …. [Com 75,350] s 448(1) …. [Com 75,350] s 449(2)(e) …. [10-1540.10] s 457 …. [Com 75,160] s 462 …. [Com 60,134] s 463(5) …. [Com 60,136] s 469(b) …. [10-1540.10] s 470 …. [78900.15], [78900.20], [78900.25], [Com 60,150] s 470(1) …. [78900.50], [78900.60] s 470(3) …. [78900.45] s 471 …. [Com 60,150] s 471(1)(c) …. [Com 60,150]

s 471(3) …. [Com 60,150] s 471(4) …. [Com 60,150] s 472 …. [Com 60,150] s 472(3)(b) …. [Com 60,150] s 474 …. [Com 60,050] s 474(1) …. [Com 60,050] s 475 …. [Com 60,050] s 479 …. [7-9730.10], [8-480.15] s 480 …. [8-320.2], [8-320.25], [8-580.1], [8-890.35] s 481 …. [6-2350.1], [Com 65,060] s 481(3) …. [Com 65,060] s 482 …. [7-9940.1], [Com 65,050], [Com 65,060] s 482(1)(a) …. [Com 65,060] s 482(1)(b) …. [Com 65,060] s 482(1)(c) …. [Com 65,060] s 482(2) …. [7-9710.20], [8-480.10], [Com 65,050] s 482(2A) …. [7-9940.1], [Com 65,060] s 483 …. [Com 65,060] s 483A(4) …. [Com 65,090] s 483AA …. [Com 65,060] s 483AA(1) …. [Com 75,350] s 483AA(4) …. [Com 75,350] s 483B(3)(a) …. [Com 65,050] s 483B(3)(b) …. [Com 65,050] s 483D …. [Com 65,090] s 484 …. [6-2350.1], [8-320.2], [8-320.4], [8-320.25], [8-320.30], [81080.10], [8-2380.1], [Com 65,070] s 484(c) …. [8-320.30] s 487 …. [Com 65,050] s 487(2) …. [8-540.05]

s 488 …. [Com 65,100] s 489 …. [Com 65,050] s 490 …. [8-540.35] s 490(1) …. [Com 65,100] s 490(2) …. [8-320.25], [8-540.15], [Com 65,070] s 490(3) …. [Com 65,100] s 491 …. [8-890.35], [8-1350.1], [Com 65,100] s 492 …. [7-6100.01], [8-540.35], [8-580.1], [8-1350.1], [Com 65,070], [Com 65,100] s 492(1) …. [Com 65,070] s 492(1)(b) …. [Com 65,070] s 492(2) …. [8-580.1], [8-580.7], [Com 65,070] s 492(2)(a) …. [8-580.5] s 492(2)(b) …. [8-580.5] s 492(2)(b)(i) …. [8-580.7] s 492(2)(b)(ii) …. [8-580.7] s 492(2)(b)(iii) …. [8-580.7] s 492(3) …. [8-580.1] s 493 …. [Com 65,070], [Com 65,100] s 494 …. [8-2160-30] s 494(2) …. [8-870.15] s 494(3) …. [8-2180.20] s 495(2)(a) …. [Com 65,050] s 495(2)(b) …. [Com 65,050] s 498 …. [Com 65,080] s 499 …. [8-1350.1] s 500 …. [8-1080.10], [8-1080.25], [Com 65,070], [Com 65,100] s 501 …. [Com 65,110] s 502 …. [8-1080.15], [Com 65,110] s 503 …. [Com 65,050], [Com 65,100], [Com 65,110], [Com 65,130]

s 504 …. [Com 65,060], [Com 65,100], [Com 65,130] s 505 …. [8-1350.1], [Com 65,120], [Com 75,050] s 505(2) …. [Com 65,120] s 505(2)(a) …. [8-1350.1], [Com 65,120] s 505(2)(e) …. [8-1350.1], [Com 65,120] s 505(3) …. [Com 75,350] s 505(4) …. [8-1350.1], [Com 65,120] s 505(5) …. [Com 65,120] s 505(6) …. [Com 65,120] s 505A …. [Com 65,120] s 505A(4) …. [Com 65,120] s 506 …. [Com 65,120] s 507 …. [8-1510.30], [Com 65,130], [Com 75,160] s 508 …. [Com 65,140], [Com 75,260] s 508(4) …. [Com 65,140] s 509 …. [Com 65,140] s 510 …. [Com 65,130], [Com 75,160] s 510(1) …. [Com 65,130] s 510(4) …. [Com 65,130] s 510(5) …. [Com 65,040] s 510(6) …. [Com 65,040] s 511 …. [Com 65,130] s 512 …. [8-2140.20], [8-2160-50], [8-2160.01], [8-2200.5], [8-2200.25], [8-2200.35], [Com 65,040], [Com 75,350] s 513 …. [8-2160-50], [8-2160.20], [8-2200.25], [Com 65,040] s 513(1) …. [8-2200.35] s 513(1)(d) …. [5-970.101.10] s 513(1)(g) …. [8-2160.20] s 514 …. [Com 65,040] s 515 …. [8-500.15], [8-830.30], [8-2200.25], [8-2200.35], [Com 65,040]

s 515(1) …. [8-2200.35] s 515(2) …. [8-2200.35] s 515(4) …. [8-2200.35] s 516 …. [Com 65,040] s 517 …. [Com 65,130] s 517(1)(c) …. [Com 65,040] s 518 …. [8-2380.1], [Com 65,050] s 519 …. [8-480.25], [8-540.10], [Com 65,050], [Com 75,350] s 520 …. [Com 65,050] s 523 …. [8-3250.25], [8-3250.30], [8-3460.15] s 524 …. [8-3250.15], [8-3250.45], [8-3250.60] s 524(3) …. [8-3460.55] s 526 …. [8-3460.55], [8-3460.65], [Com 75,050] s 526(3) …. [Com 75,350] s 529 …. [8-4460.15], [8-4460.20] s 536 …. [8-4460.25] s 538 …. [8-4980.15], [8-4980.35], [8-5020.1], [8-5020.5], [8-5200.25], [8-5200.30], [8-5430.5], [8-5430.10], [8-5990.5], [8-5990.10], [86250.15] s 539 …. [5-3200.10], [5-3400.10], [5-5450.25], [5-7330.30], [7-1750.05], [7-1850.05], [7-2330.25], [7-9100.10], [8-870.5], [8-4460.10], [84980.10], [8-5060.5], [8-5200.10], [8-5680.25], [8-5700.15], [85760.5], [8-6460.10], [8-6460.15], [9-3920.5], [20-4110.15], [78900.10], [Com 50,190], [Com 50,210], [Com 60,090], [Com 95,060] s 539(1) …. [7-2080.05], [8-4960.5], [8-5640.20], [9-9270.10] s 539(2) …. [8-5800.10], [Com 50,215] s 539(3) …. [7-2080.05] s 539(6) …. [Com 50,190] s 542 …. [8-5020.40], [8-5040.15] s 543 …. [8-5020.40], [8-5040.15]

s 544 …. [8-5200.75], [Com 50,230], [Com 60,110] s 545 …. [5-5450.25], [8-5200.11], [8-5200.15], [Com 50,210], [Com 60,090], [Com 95,060] s 545(1) …. [8-5200.15], [8-5200.80] s 545(2) …. [8-5200.80] s 545(2)(c) …. [8-5200.66] s 546 …. [5-3420.20], [6-200.20], [8-5680.20], [8-5680.30], [8-5760.10], [8-5800.10], [8-6960.05], [Com 50,210], [Com 60,090] s 549 …. [8-5620.15], [Com 50,200], [Com 60,080] s 550(2) …. [Com 50,200], [Com 60,080] s 550(2)(a) …. [8-5640.25] s 550(2)(c) …. [8-5640.40] s 553 …. [8-5680.15], [20-5980.01] s 554 …. [8-5680.15], [20-5985.01] s 555 …. [8-5680.15] s 556 …. [8-5680.40] s 557(2) …. [8-5780.1] s 557(3) …. [8-5780.1] s 562 …. [20-6930.01], [Com 75,110] s 563 …. [8-6460.55] s 564 …. [8-6730.15] s 565 …. [8-6500.05], [8-6930.05] s 565(1B) …. [8-6500.05] s 569 …. [8-6930.01], [8-8470.25] s 570 …. [8-6500.15], [8-6940.07], [Com 50,220], [Com 60,100] s 570(2) …. [Com 50,220] s 574 …. [8-8450.10] s 575 …. [6-1750.40], [6-1970.40], [6-1990.30], [6-2010.35], [6-2210.40], [8-2200.10], [8-3460.35], [8-8310.35], [8-8890.15], [8-8910.20], [88930.10], [Com 75,030]

s 575(2)(c) …. [Com 75,130] s 575(2)(d) …. [Com 75,130] s 576 …. [Com 75,040], [Com 75,050] s 576(2)(c) …. [Com 75,070] s 576(2)(ca) …. [Com 75,110] s 577 …. [8-8930.25], [Com 75,040] s 578 …. [Com 75,120] s 578(A) …. [6-1950.40] s 580 …. [Com 75,120] s 582(2) …. [Com 75,150] s 585 …. [Com 75,180] s 586 …. [8-8010.10], [8-8010.25], [21-0065.35], [Com 75,160] s 586(B) …. [6-1440.40] s 587 …. [8-8030.30], [Com 75,200], [Com 95,050] s 587(a)(b) …. [8-8030.30] s 587(1) …. [8-9110.20] s 588 …. [Com 75,210] s 589 …. [7-4880.25], [Com 75,100] s 589(1) …. [8-8190.15] s 590 …. [Com 75,110], [Com 75,160] s 590(1) …. [8-8190.15], [Com 75,220] s 590(2) …. [Com 75,220] s 591 …. [Com 75,110], [Com 75,220] s 592 …. [8-8210.10], [Com 75,110], [Com 75,160] s 593 …. [8-8210.35] s 594 …. [Com 75,110] s 595 …. [Com 60,010] s 595(2) …. [Com 75,100] s 596 …. [8-8450.20], [8-8450.60], [Com 75,230] s 596(2) …. [8-8450.20], [8-8450.25], [8-8450.60], [Com 75,230]

s 596(2)(a) …. [8-8450.6], [8-8450.20], [Com 75,230] s 596(2)(b) …. [8-8450.11], [8-8450.50], [Com 75,230] s 596(2)(c) …. [8-8450.20], [Com 75,230] s 596(4) …. [8-8450.2], [8-8450.20], [Com 75,230] s 599 …. [Com 75,250] s 600 …. [Com 75,250] s 601 …. [Com 75,250] s 601(3) …. [Com 75,250] s 601(4) …. [Com 75,250] s 601(4)(b) …. [Com 75,160] s 601(5) …. [Com 75,250] s 601(6) …. [Com 75,250] s 602 …. [8-8690.20], [Com 75,160], [Com 75,250] s 603(3) …. [Com 75,250] s 604 …. [7-4940.15], [7-4940.30], [8-8890.05], [8-8890.30], [8-8910.10], [9-5960.55], [Com 75,300] s 604(1) …. [7-4940.30] s 604(1)(a) …. [6-2350.1] s 604(2) …. [Com 75,300] s 605 …. [8-8890.25], [8-8890.30], [8-8910.40], [Com 75,340] s 605(2) …. [Com 75,340] s 605(3) …. [Com 75,340] s 606 …. [Com 75,320], [Com 75,340] s 606(1) …. [8-8890.30] s 607 …. [8-8910.35], [8-8910.50] s 607(1) …. [Com 75,320] s 607(2) …. [Com 75,320], [Com 75,340] s 607(3) …. [Com 75,320], [Com 75,340] s 607(3)(a) …. [8-8910.1] s 607(3)(c) …. [8-8910.35]

s 608 …. [8-6460.40], [8-8930.25] s 608(1) …. [8-8930.5], [8-8930.25], [Com 75,330] s 608(2) …. [Com 75,330] s 608(3) …. [Com 75,330] s 608(4) …. [Com 75,330] s 609(1) …. [Com 75,170] s 610 …. [Com 75,170] s 611 …. [7-3580.20], [Com 75,350], [Com 95,050] s 611(1) …. [Com 75,240] s 611(2) …. [Com 75,240] s 612 …. [Com 75,260] s 613 …. [Com 75,260] s 613(1) …. [Com 75,310] s 613(2) …. [Com 75,310] s 617 …. [Com 75,050], [Com 75,130] s 618 …. [5-9730.10], [8-8210.20], [8-8890.10] s 618(1) …. [Com 75,260] s 618(2) …. [Com 75,260] s 618(3) …. [Com 75,260] s 618(4) …. [Com 75,260] s 619 …. [Com 75,260] s 620 …. [8-8210.15] s 620(2) …. [Com 75,130] s 621 …. [Com 75,270] s 622 …. [Com 75,270] s 623 …. [Com 75,270] s 625(1) …. [Com 75,160] s 625(2) …. [10-2420.10], [Com 75,160] s 625(3) …. [10-2420.10]

s 626(1) …. [Com 75,120] s 627(1) …. [Com 75,130] s 627(2) …. [Com 75,130] s 627(4) …. [Com 75,130] s 628(1) …. [Com 75,130] s 628(3) …. [Com 75,130] s 629(1) …. [Com 75,130] s 629(4) …. [Com 75,130] s 631 …. [5-970.235.15] s 633 …. [Com 75,130] s 633(3) …. [Com 75,130] s 650 …. [Com 75,080] s 652 …. [Com 75,130] s 653 …. [Com 75,150] s 653A …. [Com 75,070] s 656 …. [Com 75,150] s 659(2)(f) …. [7-2310.40] s 660 …. [Com 75,150] s 661 …. [5-7330.35] s 663 …. [Com 75,150] s 664 …. [Com 75,150] s 665 …. [Com 75,150] s 666 …. [Com 75,150] s 670 …. [Com 75,060], [Com 75,140] s 674 …. [9-5110.01] s 675 …. [Com 60,055] s 681 …. [Com 75,060], [Com 75,150] s 682(d) …. [Com 75,090] s 682(f) …. [Com 75,090] s 686 …. [Com 75,150]

s 687 …. [Com 75,150] s 690 …. [Com 75,150] s 691 …. [Com 75,150] s 692 …. [Com 75,150] s 693 …. [Com 75,150] s 695(2)(b) …. [8-8450.50] s 696 …. [Com 75,090] s 700 …. [Com 75,150] s 704 …. [Com 75,150] s 705 …. [Com 75,150] s 706 …. [9-3920.30], [111-940.01], [Com 75,150] s 706(1)(d) …. [111-940.01] s 706(2) …. [Com 75,150] s 708 …. [111-940.01], [Com 75,150] s 709 …. [Com 75,150] s 710 …. [Com 75,150] s 711 …. [111-940.01] s 712 …. [9-3920.30] s 712(4) …. [9-3920.20] s 713 …. [9-3920.20] s 715 …. [111-940.01] s 716 …. [111-940.01], [Com 75,150] s 723 …. [9-4720.7], [9-4720.15], [Com 95,070] s 725 …. [9-5050.25], [9-5190.25] s 732 …. [9-5190.25] s 732(3) …. [9-5190.05] s 733 …. [8-5720.10], [8-5720.20] s 737 …. [9-5960.15] s 738 …. [9-5960.47], [Com 60,010], [Com 75,350]

s 739 …. [9-5960.05], [9-5960.46] s 739(1) …. [9-5960.47] s 739(3) …. [9-5960.47] s 739(4) …. [9-5960.47] s 751(3) …. [8-580.1] s 757 …. [8-810.05] s 766 …. [8-500.05], [8-540.01] s 767 …. [8-1080.5], [8-1080.10] s 767(1) …. [8-1080.1], [8-1080.25] s 768AD …. [7-1770.95] s 770 …. [8-1650.05], [9-7810.15], [9-7810.20] s 771 …. [9-7810.40] s 772 …. [Com 75,350], [Com 95,070] s 772(1) …. [Com 75,050] s 772(2) …. [Com 75,050] s 773 …. [10-2945.10], [Com 75,050], [Com 75,200], [Com 75,350] s 774(2) …. [Com 75,350] s 776 …. [Com 75,050] s 776(2) …. [Com 75,110] s 777 …. [Com 75,050] s 778(1) …. [Com 75,050] s 779 …. [5-970.101.01], [5-970.210.20] s 779(2) …. [Com 75,350] s 779A …. [9-7960.50] s 780 …. [Com 75,240], [Com 75,350] s 789B(a) …. [7-5300.10] s 789B(b) …. [7-5300.15] s 789B(2) …. [7-5300.20] s 789BB(a) …. [6-6180.05], [6-9660.10], [6-9660.15], [7-420.05], [7420.10]

s 789BB(b) …. [6-6180.10] s 789BB(2) …. [5-800.10], [6-6180.15], [6-9660.20], [7-1310.20], [83740.15], [8-4770.12], [9-2460.10], [9-4490.12], [9-5610.12] s 789C(1) …. [Com 95,030] s 789FC(1) …. [9-8795.03], [Com 95,030] s 789FC(2) …. [Com 95,030] s 789FD …. [Com 95,030] s 789FD(1) …. [9-8795.03], [Com 95,030] s 789FD(1)(b) …. [Com 95,060] s 789FD(3) …. [Com 95,030] s 789FE(2) …. [Com 95,050] s 789FF …. [9-8795.03], [9-8795.40], [Com 95,030], [Com 95,060] s 789FF(1) …. [Com 95,060] s 789FF(2) …. [Com 95,060] s 789FF(B) …. [9-8795.03] s 789FG …. [Com 95,060] s 791 …. [9-9310.05] s 792 …. [7-2040.05] s 793 …. [5-970.210.20], [6-1810.1], [7-1810.10], [7-2040.05] s 794 …. [9-9170.30] s 795(1) …. [10-3075.10] s 795(4) …. [8-8470.20], [10-3075.10] s 798 …. [8-4960.5] s 824 …. [8-6940.05], [8-6940.25] s 824(1) …. [8-6940.45] s 824(2) …. [8-6940.45] s 827 …. [9-9170.01] s 1359 …. [7-1770.110] s “s329” …. [5-3240.40] s “s526” …. [Com 75,110]

s “s575” …. [8-8210.25] reg 1.07 …. [10-250.50] cl 124(1) …. [5-7820.45] Sch 4 …. [5-7330.35] Sch 6.1 …. [9-5800.01] Fair Work Australia Rules 2010 r 8 …. [7-5020.5] r 13 …. [7-5020.5] r 14 …. [7-5020.5] r 15 …. [7-5020.5] r 16 …. [7-5020.5] r 17 …. [7-5020.5] r 18 …. [7-5020.5] r 41 …. [7-5020.5] r 42 …. [7-5020.5] r 43 …. [7-5020.5] r 44 …. [7-5020.5] r 55 …. [7-5020.5] Fair Work Regulations 2009 …. [Com 65,080] reg 1.06 …. [21-0035.10] reg 1.07(5) …. [10-250.25] reg 1.12 …. [5-9150.30] reg 1.13 …. [10-405.10] reg 2.04(8) …. [10-785.10] reg 2.06 …. [10-833.10] reg 3.13 …. [10-1535.10] reg 3.13(5) …. [10-1535.10] reg 3.14(a) …. [10-1540.10] reg 3.21 …. [Com 60,150]

reg 3.22 …. [Com 60,150] reg 3.23 …. [Com 60,150] reg 3.24 …. [Com 60,150] reg 4.01 …. [8-5430.65] reg 5.01A …. [10-2420.10] reg 5.05(6)(c) …. [10-1315.15] reg 5.06 …. [Com 75,150] reg 6.03 …. [5-9150.30] reg 6.09 …. [21-0030.10] reg 305(6)(a) …. [10-1315.15] reg 305(6)(b) …. [10-1315.15] reg 305(6)(c)(i) …. [10-1315.15] reg 305(6)(c)(ii) …. [10-1315.15] reg 305(6)(c)(iii) …. [10-1315.15] r 1.07 …. [Com 55,100] r 2.13 …. [7-4070.65], [Com 55,070] r 3.01 …. [7-2330.30] r 3.05 …. [7-4070.80], [Com 55,070] r 3.05(2) …. [Com 55,070] r 3.05(3) …. [Com 55,070] r 3.05(4) …. [Com 55,070] r 3.05(5) …. [Com 55,070] r 3.05(6) …. [Com 55,070] r 3.45 …. [8-4460.30] r 3.46 …. [8-4460.30] r 4.01A …. [8-4960.20], [8-4980.70] Family Law Act 1975 s 63(1) …. [120-325.01] s 63C(1) …. [120-215.05], [120-260.01], [120-280.01]

s 64B(1) …. [120-115.01] Federal Court of Australia Act 1976 …. [8-6440.20], [8-6460.65] s 3 …. [8-5660.25] s 4 …. [8-6940.35] s 19(1) …. [8-6440.20] s 21 …. [8-6460.20], [8-6460.25] s 23 …. [8-5200.15], [8-6460.20] s 25(6) …. [8-6440.20] s 31A …. [8-9110.20], [8-9110.35] s 31A(3) …. [8-9110.35] s 32AA(1) …. [9-4720.7] s 43 …. [8-6940.30], [270-180.20], [270-180.35] s 51A(1) …. [8-5240.1], [8-5240.5] s 59(4) …. [8-5660.25] Federal Magistrates Act 1999 s 3 …. [8-5660.25] s 39 …. [8-6460.60] s 81(3) …. [8-5660.25] Independent Contractors Act 2006 …. [5-3240.30], [880-001] Pt 3 …. [270-175.5] s 4 …. [5-970.100.10], [5-3260.20], [270-120.20], [270-120.25], [270120.30], [270-150.15], [270-150.30], [270-155.10], [270-155.20], [270-160.15], [270-170.15], [270-170.30], [270-175.10], [270-175.20] s 5 …. [270-150.30], [270-155.20], [270-160.15], [270-170.30] s 5(1) …. [270-120.40] s 5(1)(a) …. [270-115.2.5] s 5(2) …. [270-120.40] s 5(4) …. [270-120.10], [270-120.40] s 12 …. [270-155.35], [270-160.10] s 12(1) …. [270-160.20]

s 12(4) …. [270-150.30], [270-160.15], [270-170.30] s 15 …. [270-170.45] s 15(1)(c) …. [270-170.35] s 15(1)(d) …. [270-170.1] s 15(4) …. [270-170.1] s 16(1) …. [270-175.5] s 16(2) …. [270-175.5] s 16(3) …. [880-001] s 16(4) …. [270-175.5] s 16(5) …. [880-001] s 17(1) …. [270-180.5], [270-180.15], [270-180.20], [270-180.40] s 17(2) …. [270-180.20], [270-180.40] s 17(3) …. [270-180.5] s 75(V) …. [270-180.25] s 104 …. [270-180.25] s 109 …. [270-180.25] s 347(1) …. [270-180.25] Independent Contractors Regulations 2007 reg 5 …. [270-160.20] Industrial Relations Act 1988 …. [7-4340.10], [20-140.30.1], [20140.55.30], [20-2875.125] s 4(1) …. [20-140.10.5], [20-140.30.5], [20-140.90.1] s 6 …. [20-140.26.10], [20-140.26.15], [20-140.26.20] s 9 …. [20-140.26.15] s 118A …. [20-2130.5], [20-2130.40] s 127B …. [270-175.1] s 170CK(2)(a) …. [7-2330.5] s 170DB …. [5-7330.05], [7-4340.67] s 170DC …. [7-4340.10]

s 170DE …. [7-4340.10] s 170DF …. [7-2330.5] s 170MB …. [5-970.240.25] s 195(1A) …. [20-2655.01] s 228 …. [20-5470.20] s 254 …. [20-140.25.1] s 261 …. [20-3280.1] s 261(2) …. [20-3280.1] s 261(3) …. [20-3280.1] s 261(4) …. [20-3280.1] s 261(5) …. [20-3280.1] s 261(6) …. [20-3280.1] s 347 …. [270-180.5] s 659 …. [7-2330.5] Industrial Relations Reform Act 1993 …. [7-4340.10], [8-6460.05] s 170DF …. [7-2330.5] Judiciary Act 1903 …. [8-6440.20] s 38(a) …. [8-6460.45] s 39B …. [8-6440.20] s 39B(1) …. [8-6440.20] s 44 …. [8-6460.45], [8-6460.55] Legislative Instruments Act 2003 s 13 …. [8-5660.25] Migration Act 1958 …. [5-970.95.60] s 5 …. [110-735.10] s 32 …. [110-735.15] s 457 …. [5-970.95.60] Paid Parental Leave Act 2010 Ch 2

Pt 2.2 …. [110-760.01], [110-885.10] Pt 2.3 …. [110-425.20], [110-430.25] Div 3 …. [C3A.65] Pt 2.4 …. [110-355.05] Ch 2 Pt 2.4 …. [111-755.05] Ch 3 Pt 3.5 …. [111-210.01] Div 2 …. [111-130.01], [111-205.05] Ch 3A Pt 3A.2 Div 5 …. [111725.35] Pt 3A.3 …. [111765.25], [113290.05] Pt 3A.4 …. [111-755.05], [111725.25], [111760.20], [111765.15], [C3A.1], [C3A.10], [C3A.60], [C3A.160] Pt 6.3 …. [113-725.01] s 3A(1)(b) …. [120-225.01] s 6 …. [110-620.45], [110-620.55], [110-665.01], [111-280.20], [111290.05], [111-380.05], [111-490.01], [111-490.10], [111-490.15], [111-490.20], [111-490.30], [111-490.35], [111-490.40], [111-490.45], [111-490.50], [111-490.55], [111-490.60], [111-495.01], [111-505.01], [111-505.10], [111-505.20], [111-510.01], [111-515.01], [111-540.05], [111-595.01], [111-725.01], [111-725.05], [111-740.01], [111-740.05], [111-745.01], [111-755.01], [111-755.05], [111-760.05], [111-760.10], [111-760.15], [111-765.01], [111-765.05], [111-765.10], [111-785.01], [111-790.01], [111-795.01], [111-795.10], [111-795.15], [111-795.20], [111-800.01], [111-805.01], [111-810.01], [111-810.05], [111-815.01], [111-815.05], [111-975.01], [111-980.05], [112-025.01], [112-070.05], [112-177.1], [112-335.05], [112-335.10], [112-340.05], [112-435.01], [112-550.01], [112-560.01], [112-565.01], [112-565.05], [112-570.01], [112-575.01], [112-670.01], [112-725.01], [113-290.01], [113-410.01], [113-435.01], [113-435.05], [113-455.01], [113-535.01], [113-560.01], [113-565.01], [113-565.05], [113-580.01], [113-590.01], [113-595.01],

[113-595.05], [113-600.01], [113-600.05], [113-620.01], [113-625.01], [113-625.05], [113-630.01], [113-640.01], [113-640.05], [113-645.01], [113-650.01], [113-775.01], [113-780.01], [121-275.01], [110620.60], [110620.75], [111725.25], [111725.30], [111725.35], [111725.40], [111760.20], [111765.15], [111765.20], [111765.25], [113290.05], [C3A.1], [C3A.5], [C3A.10], [C3A.15], [C3A.20], [C3A.25], [C3A.30], [C3A.50], [C3A.55], [C3A.60], [C3A.65], [C3A.70], [C3A.75], [C3A.80], [C3A.90], [C3A.95], [C3A.100], [C3A.105], [C3A.115], [C3A.120], [C3A.135], [C3A.140], [C3A.145], [C3A.150], [C3A.155], [C3A.160], [C3A.165], [C3A.170], [C3A.175], [C3A.180], [C3A.185], [C3A.190], [C3A.195], [C3A.200], [C3A.205] s 11(3) …. [110-425.30], [110-430.35], [110-435.45], [110-445.20] s 11(4) …. [110-425.25], [110-430.30], [110-435.35] s 11(5) …. [110-425.35], [110-430.40], [110-435.40], [110-440.25], [110445.25] s 13 …. [110-905.01], [111-380.05], [111-490.01], [111-495.01], [111505.10], [111-515.01], [111-595.01] s 14 …. [110-905.01], [111-380.05], [111-490.01], [111-495.01], [111505.10], [111-515.01], [111-595.01] s 14(6) …. [110-430.45] s 15 …. [110-905.01], [111-380.05], [111-490.01], [111-495.01], [111505.10], [111-515.01], [111-595.01] s 15(1) …. [110-435.50] s 15(2) …. [110-435.50] s 15(3) …. [110-435.50] s 15(3)(a)(i) …. [110-435.50] s 15(3)(a)(ii) …. [110-435.50] s 15(3)(b) …. [110-435.50] s 15(3)(c) …. [110-435.50] s 15(4)(a) …. [110-435.50] s 15(4)(b) …. [110-435.50] s 15(4)(c) …. [110-435.50]

s 16 …. [110-905.01], [111-380.05], [111-490.01], [111-495.01], [111505.10], [111-515.01], [111-595.01] s 17 …. [110-905.01], [111-380.05], [111-490.01], [111-495.01], [111505.10], [111-515.01], [111-595.01] s 18 …. [110-355.15], [110-465.01] s 25 …. [110-620.25], [111-600.01] s 26 …. [110-645.10], [111-490.05] s 31 …. [110-425.20], [110-430.25], [111-725.05], [111-765.10], [113290.01] s 31(3) …. [110-760.10] s 31(4A) …. [110620.65] s 32 …. [110-435.20], [110-535.10], [110-620.01], [110-640.01], [C3A.125] s 33 …. [110-640.01] s 33(b)(i) …. [110-645.01] s 33(b)(ii) …. [110-645.01] s 33(1) …. [110-645.01] s 33(1)(a) …. [110-645.01] s 33(2) …. [110-645.01] s 35 …. [110-640.01], [110-780.01], [110-785.01], [110-790.05] s 35(3) …. [110-655.01], [110-655.15] s 36(2) …. [110-640.01], [110-660.01] s 36(3) …. [110-640.01], [110-660.01] s 36A …. [110-640.01] s 36B …. [110-640.01] s 37 …. [110-435.25], [110-535.15], [110-620.05] s 45 …. [110-435.30], [110-535.20], [110-620.10], [C3A.75] s 46 …. [110-435.30], [110-535.20], [110-620.10], [C3A.75] s 47 …. [110-535.30], [110-620.15], [110-890.15], [113-430.05] s 47(2) …. [110620.75]

s 48 …. [111-210.15] s 49 …. [110-790.01] s 50 …. [110-785.20] s 50(a) …. [110-790.01] s 50(b) …. [110-790.01] s 51 …. [110-350.01], [110-425.05], [110-430.05], [110-435.05], [110440.05], [110-535.05], [110-645.15], [110-885.01], [110-890.01] s 53(2) …. [110-350.01], [110-425.05], [110-430.05], [110-435.05], [110440.05], [110-535.05], [110-645.15], [110-885.01], [110-890.01] s 53(3) …. [110-350.10], [110-425.10], [110-430.10], [110-435.10], [110440.10], [110-890.05] s 53(4) …. [110-350.20], [110-445.01] s 54 …. [110-355.01], [110-435.05], [110-890.01] s 54(1) …. [110-350.01], [110-425.05], [110-430.05], [110-440.05], [110465.05], [110-480.01], [110-535.05], [110-620.35], [110-645.15], [110-690.01], [110-695.01], [110-885.01], [111-045.05], [111-490.45], [112-335.05] s 54(1)(a) …. [110-350.01], [110-425.05], [110-430.05], [110-435.05], [110-440.05], [110-535.05], [110-645.15], [110-885.01], [110-890.01] s 54(1)(b) …. [110-350.01], [110-425.05], [110-430.05], [110-435.05], [110-440.05], [110-535.05], [110-645.15], [110-885.01], [110-890.01] s 54(2) …. [110-350.10], [110-425.10], [110-430.10], [110-435.10], [110440.10], [110-445.15], [110-480.10], [110-535.25], [110-620.45], [110-645.20], [110-690.15], [110-695.10], [110-890.05], [111-045.01], [111-490.50], [112-335.10] s 54(3) …. [110-350.20], [110-445.01], [110-620.50], [111-490.35] s 57(1) …. [110-355.10] s 61 …. [110-620.25] s 63 …. [111-170.01] s 63(3) …. [111-210.35], [111-490.15] s 64 …. [111-130.05], [111-210.05], [111-280.10], [111-380.10], [111385.01], [111-390.01], [111-395.01]

s 65(2) …. [111-165.01] s 67(2) …. [112-335.01] s 69A(a) …. ERROR s 69A(b) …. ERROR s 70 …. [111-940.01], [111-980.01], [112-050.01] s 72 …. [111-025.01], [112-050.01] s 73 …. [111-160.10], [111-210.25] s 74 …. [112-050.01] s 75 …. [111-160.01] s 75(1) …. [111-135.01], [111-210.30], [111-280.15], [111-505.05], [111725.20], [111-835.01], [111-860.01], [111-945.01], [112-160.01], [112-165.01], [112-175.01], [112-180.01], [112-210.01], [112-340.01] s 75(2) …. ERROR s 77 …. [120-715.01] s 84 …. [111-025.01] s 86 …. [112-050.01] s 86(1) …. [112-050.01] s 101 …. [111-725.15], ERROR s 101(1)(a) …. [110-535.01] s 101(5) …. [111-540.01] s 107 …. [111-210.01], [111-280.01], [111-285.01] s 108 …. [111-210.01], [111-280.01], [111-285.01], [111-290.01], ERROR s 108(1) …. [112-050.01] s 115AE(1) …. [112-177.1], [110620.60], [C3A.15], [C3A.50], [C3A.55], [C3A.105], [C3A.175], [C3A.180], [C3A.195], [C3A.205] s 115AE(3) …. [C3A.25] s 115AE(4) …. [C3A.30] s 115AE(6) …. [C3A.20] s 115BB …. [110-620.55], [111765.20], [C3A.100], [C3A.145], [C3A.155], [C3A.165], [C3A.170], [C3A.200]

s 115BC …. [C3A.35] s 115BE …. [C3A.40] s 115BG …. [C3A.45] s 115CB …. [111725.30], [111765.25], [113290.05] s 115CD …. [110-640.01] s 115CE …. [110-640.01], [C3A.65] s 115CF …. [110-640.01], [C3A.65] s 115CG …. [C3A.70], [C3A.125] s 115CK …. [C3A.75] s 115CL(2) …. [C3A.115] s 115DG(1) …. [C3A.5], [C3A.80], [C3A.135], [C3A.140] s 115EI(a) …. ERROR s 115EI(b) …. ERROR s 125(1) …. [111-765.30] s 125(2) …. [111-765.30] s 125(3) …. [111-765.30] s 125(4) …. [111-765.30] s 125(5) …. [111-765.30] s 128(1)(a) …. [111-795.05] s 130A …. ERROR s 141 …. [111-980.01] s 142 …. [111-940.01] s 142(2) …. [111-940.01] s 142(2)(a) …. [111-940.01] s 142(2)(b) …. [111-940.01] s 145 …. [8-5640.1] s 146 …. [111-490.60], [111-980.01] s 147 …. [112-045.01], [112-070.01] s 147(2) …. [112-435.01] s 157 …. [111-980.01], [112-070.01]

s 157(1) …. [112-045.01] s 157(2) …. [112-045.01] s 157(3) …. [111-280.20] s 158 …. [111-980.01], [112-070.01] s 159 …. [111-980.01], [112-045.01], [112-070.01] s 159(1)(d) …. [112-070.01] s 159(2)(f) …. [112-070.01] s 173(1) …. [112-230.01] s 174 …. [112-230.01] s 175(6) …. [121-160.01] s 193 …. [121-170.01] s 208 …. [111-160.01] s 233(3) …. ERROR s 233(4) …. ERROR s 237 …. ERROR s 240(4)(aa) …. ERROR s 245(4) …. ERROR s 245(5) …. ERROR s 249 …. ERROR s 249(2) …. ERROR s 251 …. ERROR s 252 …. ERROR s 257A …. ERROR s 271 …. [112-560.01] s 272(2) …. [113-285.01] s 272(3) …. [113-285.05] s 273(1)(d) …. [113-290.10] s 275 …. [110-645.01], [110-690.10] s 275(1)(e) …. [110-465.01]

s 275(1)(f) …. [110-475.01] s 276 …. [110-690.10] s 276(b) …. [110-645.01] s 277 …. [110-535.30], [110-890.15], [113-430.05] s 280 …. [111-795.15], [113-560.01], [113-565.01], [113-595.01], [113600.01] s 281 …. [111-795.20] s 306(4) …. [110-510.01], [110-550.01] Paid Parental Leave Rules Pt 2.3 Div 2.3.1 Subdiv 2.3.1.1 …. [110-620.40] Subdiv 2.3.1.2 …. [110-620.40] Subdiv 2.3.1.3 …. [110-620.40] Div 2.3.2 Subdiv 2.3.2.1 …. [110-650.01] Pt 2.4 Div 2.4.1 …. [110-870.01] Subdiv 2.4.1.1 …. [110-350.01], [110-355.01], [110-425.05], [110430.05], [110-435.05], [110-440.05], [110-465.05], [110-480.01], [110-535.05], [110-620.35], [110-645.15], [110-690.01], [110695.01], [110-885.01], [110-890.01], [111-045.05] Subdiv 2.4.1.2 …. [110-350.10], [110-425.10], [110-430.10], [110435.10], [110-440.10], [110-445.15], [110-480.10], [110-535.25], [110-620.45], [110-645.20], [110-690.15], [110-695.10], [110890.05], [111-045.01] Subdiv 2.4.1.3 …. [110-350.20], [110-445.01], [110-620.50] Pt 4.1 …. [111-795.05], [120-955.01] Pt 4.3 Div 4.3.2 …. [121-150.01] s 47 …. [110-645.25], [110-690.20], [110-695.15]

s 275 …. [110-695.05] s 276 …. [110-695.05] s 277 …. [110-645.25], [110-690.20], [110-695.15] r 1.3 …. [120-115.01], [120-215.05], [120-260.01], [120-280.01], [120325.01], [120-505.01], [120-510.01], [120-545.01], [120-575.01] r 1.4 …. [120-505.01], [120-510.01], [120-545.01] r 2.3 …. [120-210.01] r 2.3(b) …. [120-210.01] r 2.4 …. [120-210.01] r 2.4(b) …. [120-215.01] r 2.6 …. [120-225.01] r 2.26 …. [110-655.01] r 2.26(1)(b) …. [120-415.05] r 2.28 …. [120-505.05] r 2.30 …. [120-505.05] r 3.2 …. [111-200.01], [120-705.01], [120-715.01] r 3.2(g)(iii) …. [120-705.10] r 3.2(h)(ii) …. [120-705.10] r 3.3 …. [111-200.01] r 3.4 …. [111-205.01], [120-715.01] r 3.5 …. [120-800.01] r 4.5 …. [120-965.01] r 4.6(1)(a) …. [120-970.01] r 4.12 …. [121-000.01] r 4.19(4) …. [121-160.01] r 4.19(4)(a) …. [121-160.01] r 4.21(2) …. [121-170.01] r 6.2 …. [121-275.01] Privacy Act 1988 …. [111-785.01], [Com 65,060] s 6 …. [Com 65,060]

s 14 …. [120-970.01] Sch 1 …. [Com 65,060] Seas and Submerged Lands Act 1973 s 12 …. [5-970.75.10] Seat of Government Acceptance Act 1909 Sch 2 …. [5-970.55.10] Social Security (Administration) Act 1999 …. [111-785.01] Social Security Act 1947 …. [5-1410.25] Social Security Act 1991 …. [110-735.01], [110-735.05], [C3A.150] s 4(1) …. [C3A.150] s 28(1) …. [120-415.01] Workplace Relations Act 1996 s 122 …. [8-8930.1] s 188 …. [20-460.05] s 268(12) …. [20-4620.01], [20-4620.30] s 340 …. [6-1730.1] Workplace Relations Act 1996 …. [5-4510.05], [5-7330.35], [7-2600.35], [8-580.1], [8-5200.75], [8-5200.80], [20-140.90.5], [20-975.01], [202135.1], [20-2140.1], [20-2875.85], [20-2875.90], [20-4110.20], [Com 65,020], [Com 75,020] Ch 2 Pt 2 …. [20-140.30.10] Ch 3 Pt 3 …. [20-1825.75] Ch 4 …. [20-2025.5] Ch 7 Pt 2 …. [20-4150.15] Ch 11 Pt 2 …. [20-1825.20]

Pt 2 Div 7 …. [20-1825.45] s 3(g) …. [20-120.5] s 4 …. [5-970.50.01], [5-970.70.01], [5-970.90.01], [5-970.230.01], [5970.230.05.05], [5-970.237.01], [5-970.300.01], [270-115.1], [270115.1.1] s 4(1) …. [5-970.200.01], [20-140.26.5] s 6 …. [20-120.10], [20-120.15], [20-120.20], [20-120.25], [20-120.30], [20-120.35], [20-140.10.10], [20-140.10.15], [20-140.25.10], [20140.25.15], [20-140.30.20], [20-140.30.30], [20-140.45.1], [20140.45.10], [20-140.45.15], [20-465.05], [20-465.10], [20-465.15], [20-465.20], [20-465.25], [20-465.35], [20-470.05], [20-470.10], [20470.15], [20-470.20], [20-470.25], [20-470.30], [20-505.25], [20505.30], [20-505.45], [20-505.55], [20-505.60], [20-505.65], [20505.70], [20-505.80], [20-505.95], [20-505.110], [20-505.705], [20510.20], [20-510.25], [20-510.30], [20-510.35], [20-510.40], [20510.45], [20-510.55], [20-510.60], [20-535.25], [20-535.30], [20535.35], [20-535.40], [20-535.55], [20-585.10], [20-585.20], [20590.35], [20-1825.25], [20-1825.55], [20-1825.60], [20-1830.15], [201830.30], [20-1870.25], [20-1870.30], [20-1870.35], [20-1870.40], [20-1870.50], [20-1870.55], [20-2025.15], [20-2025.20], [20-2025.25], [20-2025.30], [20-2025.35], [20-2130.15], [20-2130.20], [20-2130.25], [20-2130.30], [20-2130.35], [20-2135.15], [20-2135.20], [20-2135.25], [20-2135.30], [20-2135.35], [20-2135.40], [20-2140.10], [20-2140.15], [20-2140.20], [20-2140.25], [20-2140.30], [20-2150.20], [20-2255.05], [20-2255.10], [20-2255.20], [20-2255.25], [20-2255.30], [20-2255.40], [20-2385.5], [20-2385.10], [20-2650.15], [20-2655.05], [20-2655.10], [20-2655.15], [20-2655.20], [20-2655.25], [20-2655.30], [20-2655.50], [20-2685.15], [20-2685.25], [20-2685.30], [20-2685.40], [202685.115], [20-2865.10], [20-2865.15], [20-2865.20], [20-2870.10], [20-2870.15], [20-2870.20], [20-2870.25], [20-2875.10], [20-2875.15], [20-2875.20], [20-2875.25], [20-2875.30], [20-2875.35], [20-2875.40], [20-2875.50], [20-2875.60], [20-2885.15], [20-2885.20], [20-2885.25], [20-2885.30], [20-2885.35], [20-2885.40], [20-2885.50], [20-2900.10], [20-3175.15], [20-3175.25], [20-3280.20], [20-3280.25], [20-3280.30], [20-3280.40], [20-3280.60], [20-3280.70], [20-3405.5], [20-3405.15],

[20-3415.15], [20-3530.5], [20-3530.20], [20-3545.15], [20-3970.20], [20-3970.25], [20-3970.30], [20-3970.45], [20-4105.25], [20-4105.35], [20-4105.50], [20-4135.25], [20-4140.10], [20-4140.15], [20-4140.20], [20-4145.10], [20-4150.20], [20-4150.25], [20-4620.10], [20-4620.15], [20-4840.5], [20-4840.10], [20-4840.15], [20-5330.10], [20-5330.15], [20-5330.20], [20-5330.30], [20-5330.35], [20-5435.10], [20-5435.15], [20-5435.20], [20-5440.10], [20-5440.20], [20-5440.25], [20-5960.05], [20-5985.05], [20-6265.15], [20-6265.20], [20-6265.35], [20-6265.40], [20-6285.25], [20-6285.30], [20-6285.40], [20-6285.45], [20-6285.50], [20-6285.55], [20-6285.60], [20-6435.15], [20-6930.10], [20-6930.15], [20-6935.05], [20-6935.15], [20-6935.25], [20-6935.30], [20-7105.20], [20-7110.20], [20-7145.15], [20,575.10], [20,575.15] s 7 …. [20-2875.110] s 8 …. [20-2875.110], [20-3530.35] s 9 …. [20-2655.45], [20-4105.45], [20-7145.25] s 9A …. [20-505.705] s 11 …. [20-505.5] s 12 …. [5-970.230.05.10], [5-970.230.05.15], [5-970.237.05], [5970.237.10], [5-970.237.15], [5-970.237.20], [5-4510.20], [54510.25], [8-5620.05], [8-5660.20], [20-3405.10] s 16 …. [5-1900.01], [5-1900.05] s 18 …. [20-505.15], [20-585.05] s 18A …. [20-460.20] s 18B …. [20-460.15], [20-535.10], [20-535.20] s 18C …. [20-460.25] s 18C(1) …. [20-510.40] s 18D …. [20-2025.10] s 19 …. [20-140.45.20], [20-585.05] s 19(1) …. [20-505.90] s 19(1)(f) …. [20-505.105] s 19(1)(h) …. [20-505.1105] s 19(1)(j) …. [20-505.115]

s 19(2) …. [20-505.115] s 20 …. [20-585.05] s 26 …. [20-585.15] s 26(2) …. [5-970.237.20] s 26A …. [20-585.25], [20-3545.01] s 27(c) …. [20-2655.105] s 27C …. [270-120.01] s 30(1)(c) …. [20-505.20] s 30(1)(c)(v) …. [20-2025.10] s 35 …. [20-1825.45], [20-1840.30], [20-2875.60] s 35(1) …. [20-1825.45] s 42 …. [5-4510.10], [5-4510.15] s 45 …. [8-8850.35] s 51(XX) …. [270-150.5] s 55(2) …. [20-505.5] s 59 …. [20-505.5] s 61 …. [8-7500.05] s 75 …. [20-2655.100] s 88 …. [20-1825.45] s 89 …. [20-1830.5] s 90 …. [20-1835.5], [20,575.01] s 91 …. [20-1840.5], [20-1840.45], [20-2875.70] s 92 …. [20-2875.60] s 93 …. [20-1825.5], [20-1825.15], [20-1825.30], [20-1825.35], [201825.50], [20-1825.70], [20-1830.10], [20-1830.20], [20-1830.25], [20-1835.10], [20-1835.15], [20-1835.30], [20-1840.10], [20-1840.15], [20-1840.20], [20-1840.25], [20-1840.30], [20-1840.35], [20-1840.40], [20-1865.10], [20-1865.15], [20-1865.20], [20-1870.15] s 93(1) …. [20-1825.45] s 108 …. [20-1825.20]

s 111(1)(d) …. [8-8690.1] s 111(1)(e) …. [8-8030.05] s 111(1)(l) …. [8-8010.05] s 111(1)(m) …. [8-8010.05] s 118 …. [20-1825.20] s 118(3) …. [20-2145.5] s 118A …. [20-2135.45], [20-2140.35] s 118A(1) …. [20-2135.45] s 118A(4) …. [20-2385.1] s 118A(5) …. [20-2150.5] s 118A(6) …. [20-2150.5] s 121(4) …. [8-8890.01] s 125 …. [20-1825.20] s 126 …. [20-1825.5], [20-1825.45] s 126(1) …. [20-1825.65] s 126(2) …. [20-1825.65] s 126(3) …. [20-1825.10] s 126(4) …. [20-1825.20] s 127 …. [20-1830.5] s 127(1) …. [20-1830.35] s 127A …. [270-150.1], [270-150.25], [880-001] s 127A(2) …. [270-155.1] s 127A(3) …. [270-155.1] s 127A(4) …. [270-170.1] s 127B …. [270-150.1], [880-001] s 129 …. [20-1840.1], [20-1840.5] s 129(1) …. [20-1840.45] s 129(3) …. [20-1840.45] s 129(5) …. [20-1840.45] s 130 …. [20-1865.1], [20-1865.5]

s 131 …. [20-1870.01] s 131(6) …. [20-1870.15], [20-1870.50] s 132 …. [20-2130.50] s 133 …. [20-2130.1], [20-2135.10], [20-2145.10] s 133(1) …. [20-2130.5], [20-2130.40] s 133(2) …. [20-2130.5], [20-2130.45] s 134 …. [20-2130.45], [20-2130.50], [20-2135.1], [20-2135.45], [202140.1] s 135 …. [20-2140.5] s 136 …. [20-2145.1], [20-2145.5] s 137 …. [20-2150.1], [20-2150.5] s 137(2) …. [20-2150.10] s 137A …. [20-2255.01] s 138 …. [20-2130.50] s 138A …. [20-2025.5], [20-2130.50] s 139 …. [20-975.05] s 140 …. [8-5660.15], [20-2650.1], [20-2650.5] s 140(1) …. [20-2650.20] s 140(2) …. [20-2650.20] s 141 …. [20-2655.55] s 141(c) …. [20-2655.125] s 141(1)(a) …. [20-2655.60] s 141(1)(b)(iii) …. [20-2655.75], [20-2655.130] s 141(1)(b)(iv) …. [20-2655.10], [20-2655.125] s 141(1)(b)(vii) …. [20-2655.95] s 141(1)(b)(xii) …. [20-3300.25] s 141(1)(c) …. [20-2655.75] s 141(1)(d)(ii) …. [20-2655.100] s 141(3)(d) …. [20-2655.80] s 141(4) …. [20-2655.65]

s 142 …. [20-2875.60] s 142(c) …. [20-2655.65] s 142(1)(c) …. [20-2655.80] s 143(3G)(c) …. [20-975.05] s 154A …. [5-7820.5] s 154B …. [5-7840.1] s 155 …. [20-2870.20] s 156 …. [20-2655.125], [20-2865.1], [20-2865.5] s 157 …. [20-140.45.20], [20-2870.1], [20-2870.5] s 158 …. [20-975.05], [20-2875.1], [20-2875.5], [20-2875.70] s 158(4) …. [20-2875.45], [20-2875.80] s 158(4)(b) …. [20-2875.45] s 158(5) …. [20-140.45.20] s 158(10)(a) …. [20-2875.60] s 158(10)(b) …. [20-2875.60] s 158(10)(c) …. [20-2875.5], [20-2875.60] s 158A …. [20-975.05], [20-2875.1] s 158D …. [20-975.05] s 158F …. [20-975.05] s 158FA …. [20-975.05] s 158G …. [20-975.05] s 158J …. [20-975.05] s 158L …. [20-975.05] s 158N(1)(a)(i) …. [20-975.05] s 158N(1)(a)(ii) …. [20-975.05] s 158P …. [20-975.05] s 158Q(2)(d) …. [20-975.05] s 158S …. [20-975.05] s 158U …. [20-975.05]

s 159(4) …. [20-2885.55] s 162 …. [20-2875.30], [20-2885.20] s 163 …. [20-3280.20] s 164 …. [20-3010.15] s 165 …. [20-1835.25], [20-3175.1], [20-4105.40] s 166 …. [20-2655.95] s 166(1) …. [20-3280.1], [20-3280.35] s 166(1)(b) …. [20-3280.35] s 166(2) …. [20-3280.1], [20-3280.35] s 166(3) …. [20-3280.1] s 166(4) …. [20-3280.1] s 166(5) …. [20-3280.1] s 166(6) …. [20-3280.1] s 169 …. [9-3920.1], [20-2655.95] s 170 …. [20-2655.120] s 170CG …. [7-4340.10] s 170CG(3) …. [7-4340.10] s 170CG(3)(a) …. [7-4340.20], [7-4340.25] s 170CG(3)(e) …. [7-4340.15] s 170CK(2)(a) …. [7-2330.5] s 170CK(2)(e) …. [9-7810.01] s 170CM …. [7-4340.67] s 170CS …. [270-180.40] s 170N …. [270-180.45] s 170NF …. [8-5620.01] s 171 …. [20-2655.95] s 174 …. [20-2655.95], [20-2655.100] s 174(1) …. [20-2655.100] s 174(2)(b)(i) …. [20-2655.100] s 175 …. [20-3530.1]

s 178 …. [5-1350.1] s 180 …. [20-3175.10] s 187A …. [20-120.5] s 187AA …. [7-9100.50] s 187AB …. [7-9100.50] s 188 …. [20-460.01], [20-460.05] s 189 …. [20-510.05] s 189(1) …. [20-505.1], [20-505.5], [20-505.120] s 189(1)(c) …. [20-975.05] s 189(2) …. [20-505.120] s 189(3) …. [20-505.120] s 189(4) …. [20-510.10] s 189(5) …. [20-505.1], [20-505.5], [20-510.10] s 190 …. [20-4105.35] s 191 …. [20-3970.60] s 192 …. [20-590.1], [20-590.5] s 193(1)(a) …. [20-3970.65] s 193(1)(b) …. [20-3970.65] s 194 …. [20-2650.5] s 200 …. [20-3975.05], [20-4105.1] s 200(1) …. [20-4105.5], [20-4105.55] s 200(2) …. [20-4105.5], [20-4105.55] s 200(3) …. [20-4105.5], [20-4105.55] s 201 …. [20-4105.55] s 201(B) …. [20-4105.55] s 203 …. [20-100.1], [20-2865.5] s 203A(1) …. [20-2870.5] s 204 …. [20-975.05], [20-2875.5] s 204(4) …. [20-2875.45]

s 204(4)(a) …. [20-2875.5] s 205 …. [20-2885.01], [20-4130.5] s 206 …. [20-4130.5], [20-4135.1], [20-4135.30] s 206(1) …. [20-4135.1], [20-4135.30] s 206(2) …. [20-4135.1] s 206(3) …. [20-4135.1] s 206(4) …. [20-4135.30] s 207 …. [20-4135.25] s 212 …. [20-7145.10] s 215 …. [20-3970.01] s 215(1) …. [20-3970.05] s 215(1)(b)(i) …. [20-3970.35] s 215(2) …. [20-3970.05] s 215(4) …. [20-3970.05] s 218 …. [20-4105.5] s 219 …. [20-4110.1], [20-4110.5] s 222 …. [20-4130.1], [20-4130.15] s 223(2) …. [20-4135.1] s 223(3) …. [20-4135.1] s 224 …. [20-4140.05] s 225 …. [20-4145.05] s 226 …. [20-4150.05] s 235 …. [5-5720.05] s 236 …. [20-1115.01] s 242 …. [20-140.10.15], [20-140.30.30], [20-4840.15] s 252(1) …. [20-4840.20] s 253(1) …. [20-4840.20] s 253ZE …. [20-1830.5] s 253ZG …. [20-1840.5], [20-1840.45] s 255 …. [20-6265.01], [20-6265.05]

s 256 …. [20-1830.5] s 257(1) …. [20-4840.20] s 258 …. [20-1840.5] s 262 …. [20-3405.1] s 272 …. [20-4840.1] s 273(1) …. [20-4840.20] s 275(1) …. [20-140.5.1] s 280 …. [5-5450.01] s 294 …. [20-695.05] s 295 …. [20-5620.01] s 296 …. [20-5625.01] s 298(1) …. [5-970.205.05] s 305 …. [20-3415.5], [20-3530.5], [20-5975.05] s 306 …. [20-5975.20], [20-5980.15], [20-6935.20], [20-7145.20] s 313 …. [20-5985.01] s 318 …. [20-6265.30] s 320 …. [20-1830.5] s 321 …. [20-1835.5] s 322 …. [20-1840.5], [20-6265.10] s 323 …. [20-6285.01] s 323(1)(a) …. [20-6285.35] s 329 …. [20-6435.30] s 334 …. [20-6560.01] s 346 …. [7-2850.30] s 347 …. [270-180.45] s 349(2) …. [20-1870.10] s 356 …. [5-9290.1], [6-1250.5] s 360 …. [7-2850.30] s 361 …. [7-2850.30], [20-2255.35]

s 361(1) …. [7-2850.30] s 362 …. [20-140.25.5] s 365 …. [7-3200.15] s 366 …. [7-3200.15], [20-2875.60] s 368 …. [7-3200.15] s 380 …. [7-4820.15] s 382 …. [6-3860.05] s 386 …. [7-4820.10] s 397A …. [6-4120.05] s 400 …. [7-1810.01], [270-170.25] s 412 …. [7-5570.01] s 414 …. [20-6935.01] s 420 …. [5-1410.1], [5-1410.5], [5-1410.10] s 507 …. [7-8900.05], [7-9100.05], [7-9100.50] s 514 …. [5-9110.01] s 518 …. [5-9330.01] s 539 …. [8-5620.05], [8-5660.20] s 545 …. [7-2850.20] s 554(2) …. [5-9910.1] s 576J(1) …. [5-8870.05] s 576M …. [5-8930.1] s 581 …. [6-9890.1] s 642(3) …. [7-4320.05] s 642(4) …. [7-4320.05] s 643(15) …. [7-4820.05] s 649(1) …. [7-4380.10] s 649(2) …. [7-4380.10] s 652(3) …. [7-4340.05], [7-4340.10], [7-4340.45] s 654(7) …. [7-4570.1] s 658(4) …. [7-4950.05]

s 659 …. [7-2310.01] s 659(2)(a) …. [7-2330.1], [7-2330.5] s 661 …. [5-7330.01], [5-7330.05] s 663(6) …. [7-3200.05] s 672 …. [9-5050.01] s 674(2) …. [9-4720.1] s 706 …. [9-3920.20] s 706(1)(a) …. [9-3920.20] s 712 …. [9-3920.20] s 716 …. [8-4960.10] s 718 …. [8-4960.1], [8-4980.1] s 719(1) …. [8-5780.1] s 719(2) …. [8-5780.1] s 719(3) …. [8-5780.1] s 719(9) …. [8-5060.1], [8-5060.20] s 722 …. [8-5240.1] s 726 …. [8-5990.1] s 728 …. [8-5640.1], [8-5640.5] s 729 …. [8-5660.1] s 731 …. [8-5680.1], [8-5680.5] s 732 …. [8-5700.1], [8-5740.1], [8-5740.5] s 733 …. [8-5720.1] s 735 …. [8-5760.1], [8-5760.20] s 736(a) …. [7-9730.05] s 737 …. [5-970.55.01], [5-970.70.30] s 742(1) …. [8-2140.05] s 749 …. [8-480.05] s 753(1) …. [8-830.05] s 756 …. [8-870.1]

s 758(3) …. [8-560.05] s 759 …. [8-830.05] s 765(2) …. [8-890.1] s 766 …. [8-830.05] s 767 …. [8-1100.01] s 767(3) …. [8-1100.01] s 767(4) …. [8-1100.01] s 779(1) …. [5-970.205.01], [5-970.205.05] s 792 …. [7-1790.1] s 793 …. [7-1750.10] s 807(4) …. [8-4980.1] s 809 …. [7-2850.1] s 809(2) …. [7-2850.15] s 809(23) …. [7-2850.15] s 824 …. [8-6940.01], [270-180.1] s 836 …. [8-4460.05] s 846 …. [9-9230.01] s 846(f) …. [9-250.01] s 846(g) …. [9-9270.01] s 847 …. [8-6460.01] s 855 …. [8-8190.15] s 856 …. [20-7110.01] s 900 …. [7-2600.1] s 900(2) …. [7-2600.30] cl 6 …. [20-5470.15], [20-5470.30], [20-5470.35], [20-5475.15], [205480.10], [20-5480.25], [20-5480.30], [20-5480.35], [20-5975.10], [20-5975.15], [20-5980.10], [20-5985.10] cl 181 …. [20-5475.25] cl 283 …. [20-5440.35] cl 285 …. [20-5470.45], [20-5480.40]

cl 285(1) …. [20-5470.25] cl 285(2) …. [20-5470.25] cl 286 …. [20-5475.25], [20-5480.40] cl 294 …. [20-5440.35] Sch 1 …. [20-1830.1], [20-2025.5], [20-2650.1], [20-5435.01], [205620.01], [20-5625.01], [20-6560.01], [Com 65,030] s 141 …. [20-3415.20] cl 88 …. [20-1825.5] cl 126 …. [20-1825.1], [20-1825.5] cl 132 …. [20-2025.5] cl 319 …. [20-1825.5] Sch 1B …. [20-140.26.5], [20-1825.5], [20-1865.5], [20-2025.5] Sch 6 …. [20-1835.25] Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002 Sch 1B …. [20-140.10.5], [20-140.30.5], [20-140.90.5] Workplace Relations Amendment (Termination of Employment) Act 2001 …. [7-4340.10] Workplace Relations Amendment (Work Choices) Act 2005 s 5(1) …. [20-120.5] s 5(2) …. [20-120.5] s 5(3)(e) …. [20-120.5] s 5(4) …. [20-120.5] Workplace Relations Regulations 1996 reg 112 …. [20-140.5.1] Workplace Relations Regulations 2006 Ch 2 reg 8.7 …. [6-1250.5] NEW SOUTH WALES

Evidence Act 1995 s 140(2) …. [7-2850.30] Industrial Arbitration Act 1944 …. [20-2655.100] Industrial Relations Act 1996 s 151 …. [5-970.90.10] s 151A …. [5-970.90.10] Long Service Leave Act 1955 …. [8-5200.51] Occupational Health and Safety Act 2000 …. [10-250.50] Work Health and Safety Act 2011 …. [Com 65,080] s 5 …. [Com 95,030] s 7 …. [Com 95,030] s 7(2) …. [Com 95,030] s 7(2A) …. [Com 95,030] s 7(2C) …. [Com 95,030] s 7(2D) …. [Com 95,030] s 7(2E) …. [Com 95,030] s 7(2F) …. [Com 95,030] s 7(2G) …. [Com 95,030] s 7(2H) …. [Com 95,030] VICTORIA Crimes Act 1958 s 21A(2)(da) …. [Com 95,070] s 21A(2)(db) …. [Com 95,070] s 21A(2)(dc) …. [Com 95,070] s 21A(2)(dd) …. [Com 95,070] s 21A(2)(g) …. [Com 95,070] s 21A(8) …. [Com 95,070] Occupational Health and Safety Act 1985 …. [5-970.101.10]

Occupational Health and Safety Act 2004 …. [Com 65,080] QUEENSLAND Anti-Discrimination Act 1991 s 108 …. [7-2310.35] WESTERN AUSTRALIA Industrial Relations Act 1979 …. [8-8230.10] s 49G …. [Com 65,080] s 49I …. [Com 65,080] Mines Safety and Inspection Act 1994 …. [Com 65,080] Occupational Safety and Health Act 1984 …. [Com 65,080] SOUTH AUSTRALIA Fair Work Act 1994 s 21 …. [5-970.90.15] TASMANIA Port Companies Act 1997 …. [5-970.70.30]

Table of Contents Publisher’s Note Features of this Book Table of Cases Table of Statutes Fair Work Act 2009 Table of Provisions Table of Amendments Fair Work Act 2009

Fair Work Regulations 2009 Table of Provisions Table of Amendments Fair Work Regulations 2009

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Table of Provisions Table of Amendments Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009 Table of Provisions

Table of Amendments Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009

Fair Work (Registered Organisations) Act 2009 Table of Provisions Table of Amendments Fair Work (Registered Organisations) Act 2009

Fair Work (Registered Organisations) Regulations 2009 Table of Provisions Table of Amendments Fair Work (Registered Organisations) Regulations 2009

Fair Work Commission Rules 2013 Table of Provisions Table of Amendments Fair Work Commission Rules 2013

Paid Parental Leave Act 2010 Commentary Table of Provisions Table of Amendments Paid Parental Leave Act 2010

Paid Parental Leave Rules 2010 Table of Provisions Table of Amendments Paid Parental Leave Rules 2010

Independent Contractors Act 2006

Table of Provisions Table of Amendments Introductory Commentary Independent Contractors Act 2006

Independent Contractors Regulations 2016 Table of Provisions Table of Amendments Independent Contractors Regulations 2016

Pending Legislation Index

[page 1]

Fair Work Act 2009 TABLE OF PROVISIONS Section

Title

Paragraph

CHAPTER 1 — INTRODUCTION PART 1-1 — INTRODUCTION

1 2

DIVISION 1 — PRELIMINARY Short title …. Commencement ….

[5-100] [5-120]

3

DIVISION 2 — OBJECT OF THIS ACT Object of this Act ….

[5-290]

4 5 6

7 8 9 9A

DIVISION 3 — GUIDE TO THIS ACT Guide to this Act …. Terms and conditions of employment (Chapter 2) …. Rights and responsibilities of employees, employers, organisations etc. (Chapter 3) …. Compliance and enforcement (Chapter 4) …. Administration (Chapter 5) …. Miscellaneous (Chapter 6) …. Application, transitional and saving provisions for amendments (Schedules)

[5-460] [5-480]

[5-500] [5-520] [5-540] [5-560]

….

[5-565] PART 1-2 — DEFINITIONS

10 11

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer ….

[5-780] [5-800]

12

DIVISION 2 — THE DICTIONARY The Dictionary ….

[5-970]

DIVISION 3 — DEFINITIONS RELATING TO THE MEANINGS OF EMPLOYEE, EMPLOYER ETC 13 Meaning of national system employee …. [5-1140] 14 Meaning of national system employer …. [5-1160] [page 2] Section

14A

15

16 17 17A 18 19 20 21

Title

Paragraph

Transitional matters relating to employers etc becoming, or ceasing to be, national system employers etc …. Ordinary meanings of employee and employer ….

[5-1170]

DIVISION 4 — OTHER DEFINITIONS Meaning of base rate of pay …. Meaning of child of a person …. Meaning of directly and indirectly (in relation to TCF work) …. Meaning of full rate of pay …. Meaning of industrial action …. Meaning of ordinary hours of work for award/agreement free employees …. Meaning of pieceworker ….

[5-1180]

[5-1350] [5-1370] [5-1375] [5-1390] [5-1410] [5-1430] [5-1450]

22 23 23A

Meanings of service and continuous service …. Meaning of small business employer …. Terms relating to superannuation ….

[5-1470] [5-1490] [5-1495]

PART 1-3 — APPLICATION OF THIS ACT

24 25

26 27 28 29

30

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer ….

[5-1710] [5-1730]

DIVISION 2 — INTERACTION WITH STATE AND TERRITORY LAWS Act excludes State or Territory industrial laws …. [5-1900] State and Territory laws that are not excluded by section 26 …. [5-1920] Act excludes prescribed State and Territory laws …. [5-1940] Interaction of modern awards and enterprise agreements with State and Territory laws …. [5-1960] Act may exclude State and Territory laws etc in other cases …. [5-1980]

DIVISION 2A — APPLICATION OF THIS ACT IN STATES THAT REFER MATTERS BEFORE 1 JULY 2009 30A Meaning of terms used in this Division …. [5-2020] 30B Meaning of referring State …. [5-2040] 30C Extended meaning of national system employee …. [5-2060] 30D Extended meaning of national system employer …. [5-2080] 30E Extended ordinary meanings of employee and employer …. [5-2100] 30F Extended meaning of outworker entity …. [5-2105]

30G

General protections ….

[5-2110]

[page 3] Section

30H 30J

Title

Division only has effect if supported by reference …. Application of the Acts Interpretation Act 1901 [Repealed] ….

Paragraph

[5-2115] [5-2120]

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 …. [5-2123] 30L Meaning of referring State …. [5-2126] 30M Extended meaning of national system employee …. [5-2129] 30N Extended meaning of national system employer …. [5-2132] 30P Extended ordinary meanings of employee and employer …. [5-2135] 30Q Extended meaning of outworker entity …. [5-2138] 30R General protections …. [5-2141] 30S Division only has effect if supported by reference …. [5-2145] DIVISION 3 — GEOGRAPHICAL APPLICATION OF THIS ACT 31 Exclusion of persons etc insufficiently connected with Australia …. [5-2150] 32 Regulations may modify application of this Act in certain parts of Australia …. [5-2170] 32A Rules may modify application of this Act in Norfolk Island …. [5-2175] 33 Extension of this Act to the exclusive

34

35 35A 36

37 38 39 40 40A

economic zone and the continental shelf …. Extension of this Act beyond the exclusive economic zone and the continental shelf …. Meanings of Australian employer and Australian-based employee …. Regulations excluding application of Act …. Geographical application of offences …. DIVISION 4 — MISCELLANEOUS Act binds Crown …. Act not to apply so as to exceed Commonwealth power …. Acquisition of property …. Interaction between fair work instruments and public sector employment laws …. Application of the Acts Interpretation Act 1901 ….

[5-2190]

[5-2210] [5-2230] [5-2250] [5-2270]

[5-2440] [5-2460] [5-2480] [5-2500] [5-2505]

CHAPTER 2 — TERMS AND CONDITIONS OF EMPLOYMENT PART 2-1 — CORE PROVISIONS FOR THIS CHAPTER

41

DIVISION 1 — INTRODUCTION Guide to this Part ….

[5-2770] [page 4]

Section

42

Title

Meanings of employee and employer ….

Paragraph

[5-2790]

DIVISION 2 — CORE PROVISIONS FOR THIS CHAPTER Subdivision A — Terms and conditions of employment provided under this

43

Act Terms and conditions of employment provided under this Act ….

[5-2960]

Subdivision B — Terms and conditions of employment provided by the National Employment Standards 44 Contravening the National Employment Standards …. [5-3080]

45 46 47

48

49

50 51 52

53

54

Subdivision C — Terms and conditions of employment provided by a modern award Contravening a modern award …. [5-3200] The significance of a modern award applying to a person …. [5-3220] When a modern award applies to an employer, employee, organisation or outworker entity …. [5-3240] When a modern award covers an employer, employee, organisation or outworker entity …. [5-3260] When a modern award is in operation …. [5-3280] Subdivision D — Terms and conditions of employment provided by an enterprise agreement Contravening an enterprise agreement …. [5-3400] The significance of an enterprise agreement applying to a person …. [5-3420] When an enterprise agreement applies to an employer, employee or employee organisation …. [5-3440] When an enterprise agreement covers an employer, employee or employee organisation …. [5-3460] When an enterprise agreement is in operation …. [5-3480]

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 …. [5-3650] 56 Terms of a modern award or enterprise agreement contravening section 55 have no effect …. [5-3670] Subdivision B — Interaction between modern awards and enterprise agreements 57 Interaction between modern awards and enterprise agreements …. [5-3790] 57A Designated outworker terms of a modern award continue to apply …. [5-3810] [page 5] Section

Title

Paragraph

Subdivision C — Interaction between one or more enterprise agreements 58 Only one enterprise agreement can apply to an employee …. [5-3930] PART 2-2 — THE NATIONAL EMPLOYMENT STANDARDS

59 60

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer ….

[5-4150] [5-4170]

DIVISION 2 — THE NATIONAL EMPLOYMENT STANDARDS 61 The National Employment Standards are

minimum standards applying to employment of employees ….

62 63

64

65 66

DIVISION 3 — MAXIMUM WEEKLY HOURS Maximum weekly hours …. Modern awards and enterprise agreements may provide for averaging of hours of work …. Averaging of hours of work for award/agreement free employees ….

[5-4340]

[5-4510]

[5-4530] [5-4550]

DIVISION 4 — REQUESTS FOR FLEXIBLE WORKING ARRANGEMENTS Requests for flexible working arrangements …. [5-4720] State and Territory laws that are not excluded …. [5-4740]

DIVISION 5 — PARENTAL LEAVE AND RELATED ENTITLEMENTS

67

68 69

70 71

72

Subdivision A — General General rule — employee must have completed at least 12 months of service …. General rule for adoption-related leave — child must be under 16 etc …. Transfer of employment situations in which employee is entitled to continue on leave etc …. Subdivision B — Parental leave Entitlement to unpaid parental leave …. The period of leave — other than for members of an employee couple who each intend to take leave …. The period of leave — members of an employee couple who each intend to take

[5-4910] [5-4930]

[5-4950]

[5-5070]

[5-5090]

73

74 75

leave …. Pregnant employee may be required to take unpaid parental leave within 6 weeks before the birth …. Notice and evidence requirements …. Extending period of unpaid parental leave — extending to use more of available parental leave period ….

[5-5110]

[5-5130] [5-5150]

[5-5170] [page 6]

Section

76

77 77A 78 79 79A 79B

80 81 81A 82

82A 83

Title

Extending period of unpaid parental leave — extending for up to 12 months beyond available parental leave period …. Reducing period of unpaid parental leave …. Pregnancy ends (other than by birth of a living child) or child born alive dies …. Employee who ceases to have responsibility for care of child …. Interaction with paid leave …. Keeping in touch days …. Unpaid parental leave not extended by paid leave or keeping in touch days …. Subdivision C — Other entitlements Unpaid special maternity leave …. Transfer to a safe job …. Paid no safe job leave …. Employee on paid no safe job leave may be asked to provide a further medical certificate …. Unpaid no safe job leave …. Consultation with employee on unpaid

Paragraph

[5-5190] [5-5210] [5-5215] [5-5230] [5-5250] [5-5255] [5-5260]

[5-5370] [5-5390] [5-5495]

[5-5410] [5-5425]

84 84A 85

86 87 88 89 90 91

92

93

94

parental leave …. Return to work guarantee …. Replacement employees …. Unpaid pre-adoption leave …. DIVISION 6 — ANNUAL LEAVE Division applies to employees other than casual employees …. Entitlement to annual leave …. Taking paid annual leave …. Employee not taken to be on paid annual leave at certain times …. Payment for annual leave …. Transfer of employment situations that affect entitlement to payment for period of untaken paid annual leave …. Paid annual leave must not be cashed out except in accordance with permitted cashing out terms …. Modern awards and enterprise agreements may include terms relating to cashing out and taking paid annual leave …. Cashing out and taking paid annual leave for award/agreement free employees ….

[5-5430] [5-5450] [5-5455] [5-5470]

[5-5640] [5-5660] [5-5680] [5-5700] [5-5720]

[5-5740]

[5-5760]

[5-5780] [5-5800] [page 7]

Section

Title

Paragraph

DIVISION 7 — PERSONAL/CARER’S LEAVE AND COMPASSIONATE LEAVE

95

Subdivision A — Paid personal/carer’s leave Subdivision applies to employees other than casual employees ….

[5-5970]

96 97 98

99 100

101

102 103

104 105 106

107

108

109 110 111 112

Entitlement to paid personal/carer’s leave …. Taking paid personal/carer’s leave …. Employee taken not to be on paid personal/carer’s leave on public holiday …. Payment for paid personal/carer’s leave …. Paid personal/carer’s leave must not be cashed out except in accordance with permitted cashing out terms …. Modern awards and enterprise agreements may include terms relating to cashing out paid personal/carer’s leave …. Subdivision B — Unpaid carer’s leave Entitlement to unpaid carer’s leave …. Taking unpaid carer’s leave …. Subdivision C — Compassionate leave Entitlement to compassionate leave …. Taking compassionate leave …. Payment for compassionate leave (other than for casual employees) …. Subdivision D — Notice and evidence requirements Notice and evidence requirements …. DIVISION 8 — COMMUNITY SERVICE LEAVE Entitlement to be absent from employment for engaging in eligible community service activity …. Meaning of eligible community service activity …. Notice and evidence requirements …. Payment to employees (other than casuals) on jury service …. State and Territory laws that are not

[5-5990] [5-6010]

[5-6030] [5-6050]

[5-6070]

[5-6090]

[5-6210] [5-6230]

[5-6350] [5-6370] [5-6390]

[5-6510]

[5-6680] [5-6700] [5-6720] [5-6740]

excluded ….

113 113A

114

[5-6760]

DIVISION 9 — LONG SERVICE LEAVE Entitlement to long service leave …. Enterprise agreements may contain terms discounting service under prior agreements etc in certain circumstances …. DIVISION 10 — PUBLIC HOLIDAYS Entitlement to be absent from employment on public holiday ….

[5-6930]

[5-6950]

[5-7120] [page 8]

Section

115 116

Title

Meaning of public holiday …. Payment for absence on public holiday ….

Paragraph

[5-7140] [5-7160]

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 …. [5-7330] 118 Modern awards and enterprise agreements may provide for notice of termination by employees …. [5-7350]

119 120 121

Subdivision B — Redundancy pay Redundancy pay …. Variation of redundancy pay for other employment or incapacity to pay …. Exclusions from obligation to pay redundancy pay ….

[5-7470] [5-7490] [5-7510]

122

123

Transfer of employment situations that affect the obligation to pay redundancy pay ….

[5-7530]

Subdivision C — Limits on scope of this Division Limits on scope of this Division ….

[5-7650]

DIVISION 12 — FAIR WORK INFORMATION STATEMENT 124 Fair Work Ombudsman to prepare and publish Fair Work Information Statement …. [5-7820] 125 Giving new employees the Fair Work Information Statement …. [5-7840]

126

127 128

129

130

131

DIVISION 13 — MISCELLANEOUS Modern awards and enterprise agreements may provide for school-based apprentices and trainees to be paid loadings in lieu …. Regulations about what modern awards and enterprise agreements can do …. Relationship between National Employment Standards and agreements etc permitted by this Part for award/agreement free employees …. Regulations about what can be agreed to etc in relation to award/agreement free employees …. Restriction on taking or accruing leave or absence while receiving workers’ compensation …. Relationship with other Commonwealth laws ….

[5-8010] [5-8030]

[5-8050]

[5-8070]

[5-8090] [5-8110]

PART 2-3 — MODERN AWARDS

132

DIVISION 1 — INTRODUCTION Guide to this Part ….

[5-8330]

133

Meanings of employee and employer ….

[5-8350] [page 9]

Section

134 135

Title

DIVISION 2 — OVERARCHING PROVISIONS The modern awards objective …. Special provisions relating to modern award minimum wages ….

Paragraph

[5-8520] [5-8540]

DIVISION 3 — TERMS OF MODERN AWARDS

136 137 138

139 140 141 142

Subdivision A — Preliminary What can be included in modern awards …. Terms that contravene section 136 have no effect …. Achieving the modern awards objective ….

[5-8710] [5-8730] [5-8750]

Subdivision B — Terms that may be included in modern awards Terms that may be included in modern awards — general …. [5-8870] Outworker terms …. [5-8890] Industry-specific redundancy schemes …. [5-8910] Incidental and machinery terms …. [5-8930]

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 …. [5-9050] 143A Coverage terms of modern enterprise awards …. [5-9060] 143B Coverage terms of State reference public sector modern awards …. [5-9060] 144 Flexibility terms …. [5-9070]

145

145A 146 147 148 149 149A 149B 149C 149D

Effect of individual flexibility arrangement that does not meet requirements of flexibility term …. Consultation about changes to rosters or hours of work …. Terms about settling disputes …. Ordinary hours of work …. Base and full rates of pay for pieceworkers …. Automatic variation of allowances …. Superannuation contributions for defined benefit members [Repealed] …. Term requiring avoidance of liability to pay superannuation guarantee charge …. Default fund terms …. Default fund term must provide for contributions to be made to certain funds ….

[5-9090] [5-9095] [5-9110] [5-9130] [5-9150] [5-9170] [5-9230] [5-9235] [5-9240]

[5-9245]

Subdivision D — Terms that must not be included in modern awards 150 Objectionable terms …. [5-9290] 151 Terms about payments and deductions for benefit of employer etc …. [5-9310] 152 Terms about right of entry …. [5-9330] [page 10] Section

153 154 155 155A

Title

Terms that are discriminatory …. Terms that contain State-based differences …. Terms dealing with long service leave …. Terms dealing with superannuation [Repealed] ….

Paragraph

[5-9350] [5-9370] [5-9390] [5-9475]

DIVISION 4 — 4 YEARLY REVIEWS OF MODERN AWARDS 156 4 yearly reviews of modern awards to be conducted …. [5-9560] DIVISION 4A — 4 YEARLY REVIEWS OF DEFAULT FUND TERMS OF MODERN AWARDS

156A

156B 156C 156D 156E 156F

156G 156H 156J 156K

Subdivision A — 4 yearly reviews of default fund terms 4 yearly reviews of default fund terms …. [5-9580] Subdivision B — The first stage of the 4 yearly review Making the Default Superannuation List …. Applications to list a standard MySuper product …. Submissions on applications to list a standard MySuper product …. Determining applications to list a standard MySuper product …. First stage criteria …. Subdivision C — Second stage of the 4 yearly review Review of the default fund term of modern awards …. Default fund term must specify certain superannuation funds …. Variation to comply with section 149D …. Transitional authorisation for certain superannuation funds ….

[5-9590] [5-9595] [5-9600] [5-9605] [5-9610]

[5-9620] [5-9625] [5-9630] [5-9635]

Subdivision D — The Schedule of Approved Employer MySuper Products 156L The Schedule of Approved Employer MySuper Products …. [5-9660] 156M FWC to invite applications to include employer MySuper products on schedule …. [5-9665] 156N Making applications to include employer

156P 156Q 156R 156S 156T

156U

MySuper products on schedule …. FWC to determine applications …. The first stage test …. Submissions about the first stage test …. The second stage test …. Submissions about the second stage test ….

[5-9670] [5-9675] [5-9680] [5-9685] [5-9690] [5-9695]

Subdivision E — Publishing documents under this Division Publishing documents under this Division …. [5-9710] [page 11]

Section

Title

Paragraph

DIVISION 5 — EXERCISING MODERN AWARD POWERS OUTSIDE 4 YEARLY REVIEWS AND ANNUAL WAGE REVIEWS Subdivision A — Exercise of powers if necessary to achieve modern awards objective 157 FWC may vary etc modern awards if necessary to achieve modern awards objective …. [5-9730] 158 Applications to vary, revoke or make modern award …. [5-9750]

159

159A 160

Subdivision B — Other situations Variation of modern award to update or omit name of employer, organisation or outworker entity …. Variation of default fund term of modern award …. Variation of modern award to remove ambiguity or uncertainty or correct error ….

[5-9870] [5-9875]

[5-9890]

161

Variation of modern award on referral by Australian Human Rights Commission ….

[5-9910]

DIVISION 6 — GENERAL PROVISIONS RELATING TO MODERN AWARD POWERS 162 General …. [6-100] 163 Special criteria relating to changing coverage of modern awards …. [6-120] 164 Special criteria for revoking modern awards …. [6-140] 165 When variation determinations come into operation, other than determinations setting, varying or revoking modern award minimum wages …. [6-160] 166 When variation determinations setting, varying or revoking modern award minimum wages come into operation …. [6-180] 167 Special rules relating to retrospective variations of awards …. [6-200] 168 Varied modern award must be published …. [6-220] DIVISION 7 — ADDITIONAL PROVISIONS RELATING TO MODERN ENTERPRISE AWARDS 168A Modern enterprise awards …. [6-410] 168B The modern enterprise awards objective …. [6-430] 168C Rules about making and revoking modern enterprise awards …. [6-450] 168D Rules about changing coverage of modern enterprise awards …. [6-470] DIVISION 8 — ADDITIONAL PROVISIONS RELATING TO STATE REFERENCE PUBLIC SECTOR MODERN AWARDS 168E State reference public sector modern awards …. [6-660] 168F The State reference public sector modern awards objective …. [6-680]

[page 12] Section

Title

168G

Making State reference public sector modern awards on application …. State reference public sector modern awards may contain State-based differences …. When State reference public sector modern awards come into operation …. Rules about revoking State reference public sector modern awards …. Rules about varying coverage of State reference public sector modern awards ….

168H 168J 168K 168L

Paragraph

[6-700] [6-720] [6-740] [6-760] [6-780]

PART 2-4 — ENTERPRISE AGREEMENTS

169 170 171

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer …. Objects of this Part ….

[6-1020] [6-1040] [6-1060]

DIVISION 2 — EMPLOYERS AND EMPLOYEES MAY MAKE ENTERPRISE AGREEMENTS 172 Making an enterprise agreement …. [6-1250] DIVISION 3 — BARGAINING AND REPRESENTATION DURING BARGAINING 173 Notice of employee representational rights …. [6-1440] 174 Content and form of notice of employee representational rights …. [6-1460] 176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements …. [6-1480] 177 Bargaining representatives for proposed enterprise agreements that are greenfields

178 178A 178B

agreements …. Appointment of bargaining representatives — other matters …. Revocation of appointment of bargaining representatives etc …. Notified negotiation period for a proposed single-enterprise agreement that is a greenfields agreement ….

[6-1490] [6-1500] [6-1520]

[6-1525]

DIVISION 4 — APPROVAL OF ENTERPRISE AGREEMENTS Subdivision A — Pre-approval steps and applications for the FWC’s approval 180 Employees must be given a copy of a proposed enterprise agreement etc …. [6-1710] 181 Employers may request employees to approve a proposed enterprise agreement …. [6-1730] 182 When an enterprise agreement is made …. [6-1750] [page 13] Section

183 184

185

185A

Title

Entitlement of an employee organisation to have an enterprise agreement cover it …. Multi-enterprise agreement to be varied if not all employees approve the agreement …. Bargaining representative must apply for the FWC’s approval of an enterprise agreement …. Material that must accompany an application under subsection 182(4) for approval of a greenfields agreement ….

Paragraph

[6-1770]

[6-1790]

[6-1810]

[6-1815]

186 187 188 189

190 191 192

193

194 195 195A

Subdivision B — Approval of enterprise agreements by the FWC When the FWC must approve an enterprise agreement — general requirements …. [6-1950] When the FWC must approve an enterprise agreement — additional requirements …. [6-1970] When employees have genuinely agreed to an enterprise agreement …. [6-1990] FWC may approve an enterprise agreement that does not pass better off overall test — public interest test …. [6-2010] FWC may approve an enterprise agreement with undertakings …. [6-2030] Effect of undertakings …. [6-2050] When the FWC may refuse to approve an enterprise agreement …. [6-2070] Subdivision C — Better off overall test Passing the better off overall test …. Subdivision D — Unlawful terms Meaning of unlawful term …. Meaning of discriminatory term …. Meaning of objectionable emergency management term ….

[6-2210]

[6-2350] [6-2370] [6-2375]

Subdivision E — Approval requirements relating to particular kinds of employees 196 Shiftworkers …. [6-2510] 197 Pieceworkers — enterprise agreement includes pieceworker term …. [6-2530] 198 Pieceworkers — enterprise agreement does not include a pieceworker term …. [6-2550] 199 School-based apprentices and school-based trainees …. [6-2570] 200 Outworkers …. [6-2590]

201

202

Subdivision F — Other matters Approval decision to note certain matters ….

[6-2730]

DIVISION 5 — MANDATORY TERMS OF ENTERPRISE AGREEMENTS Enterprise agreements to include a flexibility term etc …. [6-2920] [page 14]

Section

203 204 205

Title

Requirements to be met by a flexibility term …. Effect of arrangement that does not meet requirements of flexibility term …. Enterprise agreements to include a consultation term etc ….

Paragraph

[6-2940] [6-2960] [6-2980]

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 …. [6-3170] DIVISION 7 — VARIATION AND TERMINATION OF ENTERPRISE AGREEMENTS Subdivision A — Variation of enterprise agreements by employers and employees 207 Variation of an enterprise agreement may be made by employers and employees …. [6-3360] 208 Employers may request employees to approve a proposed variation of an enterprise agreement …. [6-3380]

209 210 211 212

213 214 215 216

When a variation of an enterprise agreement is made …. Application for the FWC’s approval of a variation of an enterprise agreement …. When the FWC must approve a variation of an enterprise agreement …. FWC may approve a variation of an enterprise agreement with undertakings …. Effect of undertakings …. When the FWC may refuse to approve a variation of an enterprise agreement …. Approval decision to note undertakings …. When variation comes into operation ….

[6-3400] [6-3420] [6-3440]

[6-3460] [6-3480] [6-3500] [6-3520] [6-3540]

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 …. [6-3680] 217A FWC may deal with certain disputes about variations …. [6-3700] 218 Variation of an enterprise agreement on referral by Australian Human Rights Commission …. [6-3720] Subdivision C — Termination of enterprise agreements by employers and employees 219 Employers and employees may agree to terminate an enterprise agreement …. [6-3860] 220 Employers may request employees to approve a proposed termination of an enterprise agreement …. [6-3880] 221 When termination of an enterprise agreement is agreed to …. [6-3900] 222 Application for the FWC’s approval of a termination of an enterprise agreement …. [6-3920]

[page 15] Section

223 224

Title

When the FWC must approve a termination of an enterprise agreement …. When termination comes into operation ….

Paragraph

[6-3940] [6-3960]

Subdivision D — Termination of enterprise agreements after nominal expiry date 225 Application for termination of an enterprise agreement after its nominal expiry date …. [6-4100] 226 When the FWC must terminate an enterprise agreement …. [6-4120] 227 When termination comes into operation …. [6-4140] DIVISION 8 — FWC’S GENERAL ROLE IN FACILITATING BARGAINING

228 229 230 231 232 233

234 235

Subdivision A — Bargaining orders Bargaining representatives must meet the good faith bargaining requirements …. Applications for bargaining orders …. When the FWC may make a bargaining order …. What a bargaining order must specify …. Operation of a bargaining order …. Contravening a bargaining order …. Subdivision B — Serious breach declarations Applications for serious breach declarations …. When the FWC may make a serious breach declaration ….

[6-4330] [6-4350] [6-4370] [6-4390] [6-4410] [6-4430]

[6-4570] [6-4590]

Subdivision C — Majority support determinations and scope orders 236 Majority support determinations …. [6-4730]

237 238 239

When the FWC must make a majority support determination …. Scope orders …. Operation of a scope order ….

[6-4750] [6-4770] [6-4790]

Subdivision D — FWC may deal with a bargaining dispute on request 240 Application for the FWC to deal with a bargaining dispute …. [6-4930]

241 242 243 244 245

246

DIVISION 9 — LOW-PAID BARGAINING Objects of this Division …. Low-paid authorisations …. When the FWC must make a low-paid authorisation …. Variation of low-paid authorisations — general …. Variation of low-paid authorisations — enterprise agreement etc comes into operation …. FWC’s assistance for the low-paid ….

[6-5120] [6-5140] [6-5160] [6-5180]

[6-5200] [6-5220] [page 16]

Section

Title

Paragraph

DIVISION 10 — SINGLE INTEREST EMPLOYER AUTHORISATIONS Subdivision A — Declaration that employers may bargain together for a proposed enterprise agreement 247 Ministerial declaration that employers may bargain together for a proposed enterprise agreement …. [6-5410]

248

Subdivision B — Single interest employer authorisations Single interest employer authorisations …. [6-5550]

249 250 251 252

253 254 254A 255 255A 256 256A 257

When the FWC must make a single interest employer authorisation …. What a single interest employer authorisation must specify …. Variation of single interest employer authorisations …. Variation to extend period single interest employer authorisation is in operation …. DIVISION 11 — OTHER MATTERS Terms of an enterprise agreement that are of no effect …. Applications by bargaining representatives …. Entitlement for volunteer bodies to make submissions …. Part does not empower the FWC to make certain orders …. Limitations relating to greenfields agreements …. Prospective employers and employees …. How employees, employers and employee organisations are to be described …. Enterprise agreements may incorporate material in force from time to time etc ….

[6-5570] [6-5590] [6-5610] [6-5630]

[6-5820] [6-5840] [6-5845] [6-5860] [6-5865] [6-5880] [6-5900] [6-5920]

PART 2-5 — WORKPLACE DETERMINATIONS

258 259

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer ….

[6-6160] [6-6180]

DIVISION 2 — LOW-PAID WORKPLACE DETERMINATIONS 260 Applications for low-paid workplace determinations …. [6-6370] 261 When the FWC must make a consent low-

262

263

264 265

paid workplace determination …. When the FWC must make a special lowpaid workplace determination — general requirements …. When the FWC must make a special lowpaid workplace determination — additional requirements …. Terms etc of a low-paid workplace determination …. No other terms ….

[6-6390]

[6-6410]

[6-6430] [6-6450] [6-6470] [page 17]

Section

Title

Paragraph

DIVISION 3 — INDUSTRIAL ACTION RELATED WORKPLACE DETERMINATIONS 266 When the FWC must make an industrial action related workplace determination …. [6-6660] 267 Terms etc of an industrial action related workplace determination …. [6-6680] 268 No other terms …. [6-6700] DIVISION 4 — BARGAINING RELATED WORKPLACE DETERMINATIONS 269 When the FWC must make a bargaining related workplace determination …. [6-6890] 270 Terms etc of a bargaining related workplace determination …. [6-6910] 271A Limitations relating to greenfields agreements …. [6-6915] 271 No other terms …. [6-6930] DIVISION 5 — CORE TERMS, MANDATORY TERMS AND AGREED TERMS OF WORKPLACE DETERMINATIONS ETC

272 273 274 275

Core terms of workplace determinations …. Mandatory terms of workplace determinations …. Agreed terms for workplace determinations …. Factors the FWC must take into account in deciding terms of a workplace determination ….

[6-7120] [6-7140] [6-7160]

[6-7180]

DIVISION 6 — OPERATION, COVERAGE AND INTERACTION ETC OF WORKPLACE DETERMINATIONS 276 When a workplace determination operates etc …. [6-7370] 277 Employers, employees and employee organisations covered by a workplace determination …. [6-7390] 278 Interaction of a workplace determination with enterprise agreements etc …. [6-7410] 279 Act applies to a workplace determination as if it were an enterprise agreement …. [6-7430]

280 281 281AA 281A

DIVISION 7 — OTHER MATTERS Contravening a workplace determination …. Applications by bargaining representatives …. Entitlement for volunteer bodies to make submissions …. How employees, employers and employee organisations are to be described ….

[6-7620] [6-7640] [6-7645] [6-7660]

PART 2-6 — MINIMUM WAGES

282 283

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer ….

[6-7900] [6-7920]

[page 18] Section

284

Title

DIVISION 2 — OVERARCHING PROVISIONS The minimum wages objective ….

Paragraph

[6-8110]

DIVISION 3 — ANNUAL WAGE REVIEWS

285 286

287

288 289 290 291 292

293 294 295 296

Subdivision A — Main provisions Annual wage reviews to be conducted …. When annual wage review determinations varying modern awards come into operation …. When national minimum wage orders come into operation etc ….

[6-8300]

[6-8320] [6-8340]

Subdivision B — Provisions about conduct of annual wage reviews General …. [6-8480] Everyone to have a reasonable opportunity to make and comment on submissions …. [6-8500] President may direct investigations and reports …. [6-8520] Research must be published …. [6-8540] Varied wage rates must be published …. [6-8560] DIVISION 4 — NATIONAL MINIMUM WAGE ORDERS Contravening a national minimum wage order …. [6-8750] Content of national minimum wage order — main provisions …. [6-8770] Content of national minimum wage order — other matters …. [6-8790] Variation of national minimum wage order to remove ambiguity or uncertainty or correct error …. [6-8810]

297

298 299

When determinations varying national minimum wage orders come into operation …. Special rule about retrospective variations of national minimum wage orders …. When a national minimum wage order is in operation ….

[6-8830] [6-8850] [6-8870]

PART 2-7 — EQUAL REMUNERATION

300 301

302 303 304

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer ….

[6-9110] [6-9130]

DIVISION 2 — EQUAL REMUNERATION ORDERS FWC may make an order requiring equal remuneration …. [6-9320] Equal remuneration order may increase, but must not reduce, rates of remuneration …. [6-9340] Equal remuneration order may implement equal remuneration in stages …. [6-9360] [page 19]

Section

305 306

Title

Contravening an equal remuneration order …. Inconsistency with modern awards, enterprise agreements and orders of the FWC ….

Paragraph

[6-9380]

[6-9400]

PART 2-8 — TRANSFER OF BUSINESS

307

DIVISION 1 — INTRODUCTION Guide to this Part ….

[6-9640]

308 309

310 311 312 313 314

315 316

317 318 319

320

Meanings of employee and employer …. Object of this Part …. DIVISION 2 — TRANSFER OF INSTRUMENTS Application of this Division …. When does a transfer of business occur …. Instruments that may transfer …. Transferring employees and new employer covered by transferable instrument …. New non-transferring employees of new employer may be covered by transferable instrument …. Organisations covered by transferable instrument …. Transferring employees who are high income employees …. DIVISION 3 — POWERS OF THE FWC FWC may make orders in relation to a transfer of business …. Orders relating to instruments covering new employer and transferring employees …. Orders relating to instruments covering new employer and non-transferring employees …. Variation of transferable instruments ….

[6-9660] [6-9680]

[6-9870] [6-9890] [6-9910] [6-9930]

[6-9950] [6-9970] [6-9990]

[7-100] [7-120]

[7-140] [7-160]

PART 2-9 — OTHER TERMS AND CONDITIONS OF EMPLOYMENT

321 322

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer ….

[7-400] [7-420]

323 324

DIVISION 2 — PAYMENT OF WAGES Method and frequency of payment …. Permitted deductions ….

[7-610] [7-630]

325 326 327

Unreasonable requirements to spend amount …. Certain terms have no effect …. Things given or provided, and amounts required to be spent, in contravention of this Division ….

[7-650] [7-670]

[7-690] [page 20]

Section

328 329 330 331 332 333 333A

Title

Paragraph

DIVISION 3 — GUARANTEE OF ANNUAL EARNINGS Employer obligations in relation to guarantee of annual earnings …. [7-880] High income employee …. [7-900] Guarantee of annual earnings and annual rate of guarantee …. [7-920] Guaranteed period …. [7-940] Earnings …. [7-960] High income threshold …. [7-980] Prospective employees …. [7-1000]

CHAPTER 3 — RIGHTS AND RESPONSIBILITIES OF EMPLOYEES, EMPLOYERS, ORGANISATIONS ETC PART 3-1 — GENERAL PROTECTIONS

334 335 336

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer …. Objects of this Part ….

[7-1290] [7-1310] [7-1330]

337 338

DIVISION 2 — APPLICATION OF THIS PART Application of this Part …. Action to which this Part applies ….

[7-1520] [7-1540]

339

Additional effect of this Part ….

[7-1560]

340 341 342 343 344 345

DIVISION 3 — WORKPLACE RIGHTS Protection …. Meaning of workplace right …. Meaning of adverse action …. Coercion …. Undue influence or pressure …. Misrepresentations ….

[7-1750] [7-1770] [7-1790] [7-1810] [7-1830] [7-1850]

346 347 348 349 350

DIVISION 4 — INDUSTRIAL ACTIVITIES Protection …. Meaning of engages in industrial activity …. Coercion …. Misrepresentations …. Inducements — membership action ….

[7-2040] [7-2060] [7-2080] [7-2100] [7-2120]

351 352

DIVISION 5 — OTHER PROTECTIONS Discrimination …. Temporary absence — illness or injury ….

[7-2310] [7-2330] [page 21]

Section

353 354 355 356

357 358

Title

Bargaining services fees …. Coverage by particular instruments …. Coercion — allocation of duties etc to particular person …. Objectionable terms …. DIVISION 6 — SHAM ARRANGEMENTS Misrepresenting employment as independent contracting arrangement …. Dismissing to engage as independent

Paragraph

[7-2350] [7-2370] [7-2390] [7-2410]

[7-2600]

359

360 361 362 363 364

contractor …. Misrepresentation to engage as independent contractor …. DIVISION 7 — ANCILLARY RULES Multiple reasons for action …. Reason for action to be presumed unless proved otherwise …. Advising, encouraging, inciting or coercing action …. Actions of industrial associations …. Unincorporated industrial associations ….

[7-2620] [7-2640]

[7-2830] [7-2850] [7-2870] [7-2890] [7-2910]

DIVISION 8 — COMPLIANCE

365 366 367 368 369 370 371

372 373 374 375

Subdivision A — Contraventions involving dismissal Application for the FWC to deal with a dismissal dispute …. Time for application …. Application fees …. Dealing with a dismissal dispute (other than by arbitration) …. Dealing with a dismissal dispute by arbitration …. Taking a dismissal dispute to court …. General protections court applications [Repealed] …. Subdivision B — Other contraventions Application for the FWC to deal with a nondismissal dispute …. Application fees …. Conferences …. Advice on general protections court application ….

[7-3100] [7-3120] [7-3140] [7-3160] [7-3180] [7-3200] [7-3220]

[7-3360] [7-3380] [7-3400] [7-3420]

375A 375B 376 377 377A 378

Subdivision C — Appeals and costs orders Appeal rights …. Costs orders against parties …. Costs orders against lawyers and paid agents …. Applications for costs orders …. Schedule of costs …. Contravening costs orders ….

[7-3560] [7-3580] [7-3600] [7-3620] [7-3640] [7-3660]

[page 22] Section

Title

Paragraph

PART 3-2 — UNFAIR DISMISSAL

379 380 381

382 383 384

385 386 387 388 389

390 391 392 393

394

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer …. Object of this Part ….

[7-3840] [7-3860] [7-3880]

DIVISION 2 — PROTECTION FROM UNFAIR DISMISSAL When a person is protected from unfair dismissal …. [7-4070] Meaning of minimum employment period …. [7-4090] Period of employment …. [7-4110] DIVISION 3 — WHAT IS AN UNFAIR DISMISSAL What is an unfair dismissal …. Meaning of dismissed …. Criteria for considering harshness etc …. The Small Business Fair Dismissal Code …. Meaning of genuine redundancy ….

[7-4300] [7-4320] [7-4340] [7-4360] [7-4380]

DIVISION 4 — REMEDIES FOR UNFAIR DISMISSAL When the FWC may order remedy for unfair dismissal …. [7-4570] Remedy — reinstatement etc …. [7-4590] Remedy — compensation …. [7-4610] Monetary orders may be in instalments …. [7-4630] DIVISION 5 — PROCEDURAL MATTERS Application for unfair dismissal remedy ….

[7-4820]

395 396 397 398 399 399A 400 400A 401 402 403 404 405

Application fees …. Initial matters to be considered before merits …. Matters involving contested facts …. Conferences …. Hearings …. Dismissing applications …. Appeal rights …. Costs orders against parties …. Costs orders against lawyers and paid agents …. Applications for costs orders …. Schedule of costs …. Security for costs …. Contravening orders under this Part ….

[7-4840] [7-4860] [7-4880] [7-4900] [7-4920] [7-4930] [7-4940] [7-4950] [7-4960] [7-4980] [7-5000] [7-5020] [7-5040] [page 23]

Section

Title

Paragraph

PART 3-3 — INDUSTRIAL ACTION

406 407

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer ….

[7-5280] [7-5300]

DIVISION 2 — PROTECTED INDUSTRIAL ACTION

408 409 410 411 412

Subdivision A — What is protected industrial action Protected industrial action …. Employee claim action …. Employee response action …. Employer response action …. Pattern bargaining ….

[7-5490] [7-5510] [7-5530] [7-5550] [7-5570]

Subdivision B — Common requirements for industrial action to be protected industrial action 413 Common requirements that apply for industrial action to be protected industrial action …. [7-5710] 414 Notice requirements for industrial action …. [7-5730] Subdivision C — Significance of industrial action being protected industrial action 415 Immunity provision …. [7-5870] 416 Employer response action — employer may refuse to make payments to employees …. [7-5890] 416A Employer response action does not affect continuity of employment …. [7-5910] DIVISION 3 — NO INDUSTRIAL ACTION BEFORE NOMINAL EXPIRY DATE OF ENTERPRISE AGREEMENT ETC 417 Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc …. [7-6100] DIVISION 4 — FWC ORDERS STOPPING ETC INDUSTRIAL ACTION 418 FWC must order that industrial action by employees or employers stop etc …. [7-6290] 419 FWC must order that industrial action by non-national system employees or nonnational system employers stop etc …. [7-6310] 420 Interim orders etc …. [7-6330] 421 Contravening an order etc …. [7-6350] DIVISION 5 — INJUNCTION AGAINST INDUSTRIAL ACTION IF PATTERN BARGAINING IS BEING ENGAGED IN 422 Injunction against industrial action if a bargaining representative is engaging in pattern bargaining …. [7-6540]

[page 24] Section

Title

Paragraph

DIVISION 6 — SUSPENSION OR TERMINATION OF PROTECTED INDUSTRIAL ACTION BY THE FWC 423 FWC may suspend or terminate protected industrial action — significant economic harm etc …. [7-6730] 424 FWC must suspend or terminate protected industrial action — endangering life etc …. [7-6750] 425 FWC must suspend protected industrial action — cooling off …. [7-6770] 426 FWC must suspend protected industrial action — significant harm to a third party …. [7-6790] 427 FWC must specify the period of suspension …. [7-6810] 428 Extension of a period of suspension …. [7-6830] 429 Employee claim action without a further protected action ballot after a period of suspension etc …. [7-6850] 430 Notice of employee claim action engaged in after a period of suspension etc …. [7-6870]

431 432 433 434

DIVISION 7 — MINISTERIAL DECLARATIONS Ministerial declaration terminating industrial action …. Informing people of declaration …. Ministerial directions to remove or reduce threat …. Contravening a Ministerial direction …. DIVISION 8 — PROTECTED ACTION BALLOTS

[7-7060] [7-7080] [7-7100] [7-7120]

435 436

437 438 439 440 441 442 443 444

445 446

447

Subdivision A — Introduction Guide to this Division …. Object of this Division …. Subdivision B — Protected action ballot orders Application for a protected action ballot order …. Restriction on when application may be made …. Joint applications …. Notice of application …. Application to be determined within 2 days after it is made …. Dealing with multiple applications together …. When the FWC must make a protected action ballot order …. FWC may decide on ballot agent other than the Australian Electoral Commission and independent advisor …. Notice of protected action ballot order …. Protected action ballot order may require 2 or more protected action ballots to be held at the same time …. Variation of protected action ballot order ….

[7-7310] [7-7330]

[7-7470] [7-7490] [7-7510] [7-7530] [7-7550] [7-7570] [7-7590]

[7-7610] [7-7630]

[7-7650] [7-7670] [page 25]

Section

448

449

Title

Revocation of protected action ballot order …. Subdivision C — Conduct of protected action ballot Protected action ballot to be conducted by Australian Electoral Commission or other

Paragraph

[7-7690]

450 451 452 453 454 455 456 457 458

459 460 461

462 463

464 465

466

specified ballot agent …. Directions for conduct of protected action ballot …. Timetable for protected action ballot …. Compilation of roll of voters …. Who is eligible to be included on the roll of voters …. Variation of roll of voters …. Protected action ballot papers …. Who may vote in protected action ballot …. Results of protected action ballot …. Report about conduct of protected action ballot …. Subdivision D — Effect of protected action ballot Circumstances in which industrial action is authorised by protected action ballot …. Immunity for persons who act in good faith on protected action ballot results …. Validity of protected action ballot etc not affected by technical breaches …. Subdivision E — Compliance Interferences etc with protected action ballot …. Contravening a protected action ballot order etc ….

[7-7830] [7-7850] [7-7870] [7-7890] [7-7910] [7-7930] [7-7950] [7-7970] [7-7990] [7-8010]

[7-8150] [7-8170] [7-8190]

[7-8330] [7-8350]

Subdivision F — Liability for costs of protected action ballot Costs of protected action ballot conducted by the Australian Electoral Commission …. [7-8490] Costs of protected action ballot conducted by protected action ballot agent other than the Australian Electoral Commission …. [7-8510] Costs of legal challenges …. [7-8530]

467 468 469

Subdivision G — Miscellaneous Information about employees on roll of voters not to be disclosed …. Records …. Regulations ….

[7-8670] [7-8690] [7-8710]

DIVISION 9 — PAYMENTS RELATING TO PERIODS OF INDUSTRIAL ACTION

470 471

Subdivision A — Protected industrial action Payments not to be made relating to certain periods of industrial action …. Payments relating to partial work bans ….

[7-8900] [7-8920] [page 26]

Section

472 473

Title

Orders by the FWC relating to certain partial work bans …. Accepting or seeking payments relating to periods of industrial action ….

Paragraph

[7-8940] [7-8960]

Subdivision B — Industrial action that is not protected industrial action 474 Payments not to be made relating to certain periods of industrial action …. [7-9100] 475 Accepting or seeking payments relating to periods of industrial action …. [7-9120]

476

477

Subdivision C — Miscellaneous Other responses to industrial action unaffected ….

[7-9260]

DIVISION 10 — OTHER MATTERS Applications by bargaining representatives ….

[7-9450]

PART 3-4 — RIGHT OF ENTRY

478 479 480

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer …. Object of this Part ….

[7-9690] [7-9710] [7-9730]

DIVISION 2 — ENTRY RIGHTS UNDER THIS ACT Subdivision A — Entry to investigate suspected contravention 481 Entry to investigate suspected contravention …. [7-9920] 482 Rights that may be exercised while on premises …. [7-9940] 483 Later access to record or document …. [7-9960] 483AA Application to the FWC for access to nonmember records …. [7-9980] Subdivision AA — Entry to investigate suspected contravention relating to TCF award workers 483A Entry to investigate suspected contravention relating to TCF award workers …. [8-100] 483B Rights that may be exercised while on premises …. [8-120] 483C Later access to record or document …. [8-140] 483D Entry onto other premises to access records and documents …. [8-160] 483E Later access to record or document — other premises …. [8-180]

484

486

Subdivision B — Entry to hold discussions Entry to hold discussions ….

[8-320]

Subdivision C — Requirements for permit holders Permit holder must not contravene this Subdivision ….

[8-460]

[page 27] Section

487 488 489 490 491 492 492A 493

494 495 496 497 498 499

500 501 502 503 504

Title

Giving entry notice or exemption certificate …. Contravening entry permit conditions …. Producing authority documents …. When right may be exercised …. Occupational health and safety requirements …. Location of interviews and discussions …. Route to location of interview and discussions …. Residential premises …. DIVISION 3 — STATE OR TERRITORY OHS RIGHTS Official must be permit holder to exercise State or Territory OHS right …. Giving notice of entry …. Contravening entry permit conditions …. Producing entry permit …. When right may be exercised …. Occupational health and safety requirements …. DIVISION 4 — PROHIBITIONS Permit holder must not hinder or obstruct …. Person must not refuse or delay entry …. Person must not hinder or obstruct permit holder …. Misrepresentations about things authorised by this Part …. Unauthorised use or disclosure of information or documents ….

Paragraph

[8-480] [8-500] [8-520] [8-540] [8-560] [8-580] [8-585] [8-600]

[8-790] [8-810] [8-830] [8-850] [8-870] [8-890]

[8-1080] [8-1100] [8-1120] [8-1140] [8-1160]

DIVISION 5 — POWERS OF THE FWC

505 505A 506

507

Subdivision A — Dealing with disputes FWC may deal with a dispute about the operation of this Part …. FWC may deal with a dispute about frequency of entry to hold discussions …. Contravening order made to deal with dispute …. Subdivision B — Taking action against permit holder FWC may take action against permit holder ….

[8-1350] [8-1355] [8-1370]

[8-1510]

Subdivision C — Restricting rights of organisations and officials where misuse of rights 508 FWC may restrict rights if organisation or official has misused rights …. [8-1650] 509 Contravening order made for misuse of rights …. [8-1670] Subdivision D — When the FWC must revoke or suspend entry permits 510 When the FWC must revoke or suspend entry permits …. [8-1810] [page 28] Section

511

Title

Paragraph

Subdivision E — General rules for suspending entry permits General rules for suspending entry permits …. [8-1950] DIVISION 6 — ENTRY PERMITS, ENTRY NOTICES AND CERTIFICATES

512 513 514 515 516 517

Subdivision A — Entry permits FWC may issue entry permits …. Considering application …. When the FWC must not issue permit …. Conditions on entry permit …. Expiry of entry permit …. Return of entry permits to the FWC ….

[8-2140] [8-2160] [8-2180] [8-2200] [8-2220] [8-2240]

518

Subdivision B — Entry notices Entry notice requirements ….

[8-2380]

519

Subdivision C — Exemption certificates Exemption certificates ….

[8-2520]

520

Subdivision D — Affected member certificates Affected member certificates ….

[8-2660]

Subdivision E — Miscellaneous Regulations dealing with instruments under this Part ….

[8-2800]

521

DIVISION 7 — ACCOMMODATION AND TRANSPORT ARRANGEMENTS IN REMOTE AREAS 521A Meaning of accommodation arrangement …. [8-2801] 521B Meaning of transport arrangement …. [8-2802] 521C Accommodation arrangements for remote areas …. [8-2803] 521D Transport arrangements for remote areas …. [8-2804] PART 3-5 — STAND DOWN

522 523

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer ….

[8-3040] [8-3060]

DIVISION 2 — CIRCUMSTANCES ALLOWING STAND DOWN 524 Employer may stand down employees in certain circumstances …. [8-3250] 525 Employee not stood down during a period of authorised leave or absence …. [8-3270]

526

DIVISION 3 — DEALING WITH DISPUTES FWC may deal with a dispute about the operation of this Part ….

[8-3460] [page 29]

Section

527

Title

Paragraph

Contravening an FWC order dealing with a dispute about the operation of this Part ….

[8-3480]

PART 3-6 — OTHER RIGHTS AND RESPONSIBILITIES

528 529

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer ….

[8-3720] [8-3740]

DIVISION 2 — NOTIFICATION AND CONSULTATION RELATING TO CERTAIN DISMISSALS

530

Subdivision A — Requirement to notify Centrelink Employer to notify Centrelink of certain proposed dismissals ….

[8-3930]

Subdivision B — Failure to notify or consult registered employee associations 531 FWC may make orders where failure to notify or consult registered employee associations about dismissals …. [8-4070] 532 Orders that the FWC may make …. [8-4090]

533

Application for an FWC order ….

[8-4110]

534

Subdivision C — Limits on scope of this Division Limits on scope of this Division ….

[8-4250]

DIVISION 3 — EMPLOYER OBLIGATIONS IN RELATION TO EMPLOYEE RECORDS AND PAY SLIPS 535 Employer obligations in relation to employee records …. [8-4440] 536 Employer obligations in relation to pay slips …. [8-4460] CHAPTER 4 — COMPLIANCE AND ENFORCEMENT PART 4-1 — CIVIL REMEDIES

537 538

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer ….

[8-4750] [8-4770]

DIVISION 2 — ORDERS

539

540 541 542

Subdivision A — Applications for orders Applications for orders in relation to contraventions of civil remedy provisions …. Limitations on who may apply for orders etc …. Applications for orders in relation to safety net contractual entitlements …. Entitlements under contracts ….

[8-4960] [8-4980] [8-5000] [8-5020] [page 30]

Section

543

Title

Applications for orders in relation to

Paragraph

544

545 546 547

548

statutory entitlements derived from contracts …. Time limit on applications ….

[8-5040] [8-5060]

Subdivision B — Orders Orders that can be made by particular courts …. Pecuniary penalty orders …. Interest up to judgment ….

[8-5200] [8-5220] [8-5240]

DIVISION 3 — SMALL CLAIMS PROCEDURE Plaintiffs may choose small claims procedure ….

[8-5430]

DIVISION 4 — GENERAL PROVISIONS RELATING TO CIVIL REMEDIES 549 Contravening a civil remedy provision is not an offence …. [8-5620] 550 Involvement in contravention treated in same way as actual contravention …. [8-5640] 551 Civil evidence and procedure rules for proceedings relating to civil remedy provisions …. [8-5660] 552 Civil proceedings after criminal proceedings …. [8-5680] 553 Criminal proceedings during civil proceedings …. [8-5700] 554 Criminal proceedings after civil proceedings …. [8-5720] 555 Evidence given in proceedings for pecuniary penalty not admissible in criminal proceedings …. [8-5740] 556 Civil double jeopardy …. [8-5760] 557 Course of conduct …. [8-5780] 558 Regulations dealing with infringement notices …. [8-5800]

559

DIVISION 5 — UNCLAIMED MONEY Unclaimed money ….

[8-5990]

PART 4-2 — JURISDICTION AND POWERS OF COURTS

560 561

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer ….

[8-6230] [8-6250]

DIVISION 2 — JURISDICTION AND POWERS OF THE FEDERAL COURT 562 Conferring jurisdiction on the Federal Court …. [8-6440] 563 Exercising jurisdiction in the Fair Work Division of the Federal Court …. [8-6460] 564 No limitation on Federal Court’s powers …. [8-6480] 565 Appeals from eligible State or Territory courts …. [8-6500] [page 31] Section

Title

Paragraph

DIVISION 3 — JURISDICTION AND POWERS OF THE FEDERAL CIRCUIT COURT 566 Conferring jurisdiction on the Federal Circuit Court …. [8-6690] 567 Exercising jurisdiction in the Fair Work Division of the Federal Circuit Court …. [8-6710] 568 No limitation on Federal Circuit Court’s powers …. [8-6730]

569 569A

DIVISION 4 — MISCELLANEOUS Minister’s entitlement to intervene …. State or Territory Minister’s entitlement to

[8-6920]

570 571 572

intervene …. Costs only if proceedings instituted vexatiously etc …. No imprisonment for failure to pay pecuniary penalty …. Regulations dealing with matters relating to court proceedings ….

[8-6930] [8-6940] [8-6960] [8-6980]

CHAPTER 5 — ADMINISTRATION PART 5-1 — THE FAIR WORK COMMISSION

573 574 574A

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer …. Schedule 1 [Repealed] ….

[8-7270] [8-7290] [8-7310]

DIVISION 2 — ESTABLISHMENT AND FUNCTIONS OF THE FAIR WORK COMMISSION Subdivision A — Establishment and functions of the Fair Work Commission 575 Establishment of the Fair Work Commission …. [8-7500] 576 Functions of the FWC …. [8-7520] 577 Performance of functions etc by the FWC …. [8-7540] 578 Matters the FWC must take into account in performing functions etc …. [8-7560] 579 FWC has privileges and immunities of the Crown …. [8-7580] 580 Protection of FWC Members …. [8-7600]

581 581A

Subdivision B — Functions and powers of the President Functions of the President …. [8-7740] Dealing with a complaint about an FWC Member …. [8-7745]

581B 582 583 584

Code of Conduct …. Directions by the President …. President not subject to direction …. Delegation of functions and powers of the President ….

[8-7750] [8-7760] [8-7780] [8-7800] [page 32]

Section

Title

Paragraph

Subdivision C — Protection of persons involved in handling etc complaints about FWC Members 584B Protection of persons involved in handling etc. complaints about FWC Members …. [8-7820] DIVISION 3 — CONDUCT OF MATTERS BEFORE THE FWC

585 586 587 588

589 590 591 592 593 594 595

Subdivision A — Applications to the FWC Applications in accordance with procedural rules …. Correcting and amending applications and documents etc …. Dismissing applications …. Discontinuing applications …. Subdivision B — Conduct of matters before the FWC Procedural and interim decisions …. Powers of the FWC to inform itself …. FWC not bound by rules of evidence and procedure …. Conferences …. Hearings …. Confidential evidence …. FWC’s power to deal with disputes ….

[8-7990] [8-8010] [8-8030] [8-8050]

[8-8190] [8-8210] [8-8230] [8-8250] [8-8270] [8-8290] [8-8310]

Subdivision C — Representation by lawyers and paid agents and Minister’s entitlement to make submissions 596 Representation by lawyers and paid agents …. [8-8450] 597 Minister’s entitlement to make submissions …. [8-8470] 597A State or Territory Minister’s entitlement to make submissions …. [8-8480]

598 599 600 601 602 603

604 605 606 607 608

Subdivision D — Decisions of the FWC Decisions of the FWC …. FWC not required to decide an application in terms applied for …. Determining matters in the absence of a person …. Writing and publication requirements for the FWC’s decisions …. Correcting obvious errors etc in relation to the FWC’s decisions …. Varying and revoking the FWC’s decisions ….

[8-8610] [8-8630] [8-8650] [8-8670] [8-8690] [8-8710]

Subdivision E — Appeals, reviews and referring questions of law Appeal of decisions …. [8-8850] Minister’s entitlement to apply for review of a decision …. [8-8870] Staying decisions that are appealed or reviewed …. [8-8890] Process for appealing or reviewing decisions …. [8-8910] Referring questions of law to the Federal Court …. [8-8930] [page 33]

Section

609 610 611

Title

Subdivision F — Miscellaneous Procedural rules …. Regulations dealing with any FWC matters …. Costs ….

Paragraph

[8-9070] [8-9090] [8-9110]

DIVISION 4 — ORGANISATION OF THE FWC Subdivision A — Functions etc to be performed by a single FWC member, a Full Bench or an Expert Panel 612 FWC’s functions etc may generally be performed by single FWC Member …. [8-9300] 613 Appeal of decisions …. [8-9320] 614 Review of decisions by a Full Bench …. [8-9340] 615 The President may direct a Full Bench to perform function etc …. [8-9360] 615A When the President must direct a Full Bench to perform function etc …. [8-9365] 615B Transfer to a Full Bench from an FWC Member …. [8-9370] 615C Transfer to the President from an FWC Member or a Full Bench …. [8-9375] 616 FWC’s functions etc that must be performed by a Full Bench …. [8-9380] 617 FWC’s functions etc that must be performed by an Expert Panel …. [8-9400] Subdivision B — Constitution of the FWC by a single FWC Member, a Full Bench or an Expert Panel 618 Constitution and decision-making of a Full Bench …. [8-9540] 619 Seniority of FWC Members …. [8-9560] 620 Constitution and decision-making of an Expert Panel …. [8-9580]

621 622

623 624

Reconstitution of the FWC when single FWC Member becomes unavailable …. Reconstitution of the FWC when FWC Member of a Full Bench or an Expert Panel becomes unavailable …. When new FWC Members begin to deal with matters …. FWC’s decisions not invalid when improperly constituted ….

[8-9600]

[8-9620] [8-9640] [8-9660]

Subdivision C — Delegation of the FWC’s functions and powers 625 Delegation by the President of functions and powers of the FWC …. [8-9800] [page 34] Section

Title

Paragraph

DIVISION 5 — FWC MEMBERS

626 627 628 629

629A 630 631 632

Subdivision A — Appointment of FWC members Appointment of FWC Members …. Qualifications for appointment of FWC Members …. Basis of appointment of FWC Members …. Period of appointment of FWC Members …. Subdivision B — Terms and conditions of FWC members Status of the President …. Appointment of a Judge not to affect tenure etc …. Dual federal and State appointments of Deputy Presidents or Commissioners …. Dual federal and Territory appointments of Deputy Presidents or Commissioners ….

[8-9990] [9-100] [9-120] [9-140]

[9-280] [9-300] [9-320] [9-340]

633 634 635 636 637 638

639 640 641 641A 642 643 644 645 646 647 648

649 650

Outside work of FWC Members …. Oath or affirmation of office …. Remuneration of the President …. Application of Judges’ Pensions Act to the President …. Remuneration of FWC Members other than the President …. Remuneration of Deputy Presidents or Commissioners performing duties on a part-time basis …. Leave of absence of FWC Members other than the President …. Disclosure of interests by FWC Members other than the President …. Termination of appointment on grounds of misbehaviour or incapacity …. Minister may handle complaints about FWC Members …. Suspension on grounds of misbehaviour or incapacity …. Termination of appointment for bankruptcy, etc …. Termination of appointment for outside work …. Resignation of FWC Members …. Other terms and conditions of FWC Members …. Appointment of acting President and Vice President …. Appointment of acting Deputy Presidents and Commissioners ….

[9-360] [9-380] [9-400] [9-420] [9-440]

[9-460] [9-480] [9-500] [9-520] [9-530] [9-540] [9-560] [9-580] [9-600] [9-620] [9-640] [9-660]

DIVISION 6 — COOPERATION WITH THE STATES President to cooperate with prescribed State industrial authorities …. [9-850] Provision of administrative support …. [9-870]

[page 35] Section

Title

Paragraph

DIVISION 7 — SEALS AND ADDITIONAL POWERS AND FUNCTIONS OF THE PRESIDENT AND THE GENERAL MANAGER 651 Seals …. [9-1060] 652 Annual report …. [9-1080] 653 Reports about making enterprise agreements, individual flexibility arrangements etc …. [9-1100] 653A Arrangements with the Federal Court and the Federal Circuit Court …. [9-1120] 654 President must provide certain information etc to the Minister and Fair Work Ombudsman …. [9-1140] 655 Disclosure of information by the FWC …. [9-1160] DIVISION 8 — GENERAL MANAGER, STAFF AND CONSULTANTS

656 657 658 659

Subdivision A — Functions of the General Manager Establishment …. Functions and powers of the General Manager …. Directions from the President …. General Manager not otherwise subject to direction ….

[9-1350] [9-1370] [9-1390] [9-1410]

Subdivision B — Appointment and terms and conditions of the General Manager 660 Appointment of the General Manager …. [9-1550] 661 Remuneration of the General Manager …. [9-1570] 662 Leave of absence of the General Manager …. [9-1590]

663 664 665 666

668 669

Outside work of the General Manager …. Disclosure of interests to the President …. Resignation of the General Manager …. Termination of appointment of the General Manager …. Other terms and conditions of the General Manager …. Appointment of acting General Manager …. Minister to consult the President ….

670 671 672 673

Subdivision C — Staff and consultants Staff …. Delegation by General Manager to staff …. Persons assisting the FWC …. Consultants ….

[9-1870] [9-1890] [9-1910] [9-1930]

673A

Subdivision D — Application of the finance law Application of the finance law ….

[9-1950]

667

[9-1610] [9-1630] [9-1650] [9-1670] [9-1690] [9-1710] [9-1730]

DIVISION 9 — OFFENCES RELATING TO THE FAIR WORK COMMISSION 674 Offences in relation to the FWC …. [9-2120] 675 Contravening an FWC order …. [9-2140] [page 36] Section

676 677 678

Title

Intimidation etc …. Offences in relation to attending before the FWC …. False or misleading evidence ….

Paragraph

[9-2160] [9-2180] [9-2200]

PART 5-2 — OFFICE OF THE FAIR WORK OMBUDSMAN DIVISION 1 — INTRODUCTION

679 680

Guide to this Part …. Meanings of employee and employer ….

[9-2440] [9-2460]

DIVISION 2 — FAIR WORK OMBUDSMAN Subdivision A — Establishment and functions and powers of the Fair Work Ombudsman 681 Establishment …. [9-2650] 682 Functions of the Fair Work Ombudsman …. [9-2670] 683 Delegation by the Fair Work Ombudsman …. [9-2690] 684 Directions from the Minister …. [9-2710] 685 Minister may require reports …. [9-2730] 686 Annual report …. [9-2750] Subdivision B — Appointment and terms and conditions of the Fair Work Ombudsman 687 Appointment of the Fair Work Ombudsman …. [9-2890] 688 Remuneration of the Fair Work Ombudsman …. [9-2910] 689 Leave of absence of the Fair Work Ombudsman …. [9-2930] 690 Outside work of the Fair Work Ombudsman …. [9-2950] 691 Disclosure of interests to the Minister [Repealed] …. [9-2970] 692 Resignation of the Fair Work Ombudsman …. [9-2990] 693 Termination of appointment of the Fair Work Ombudsman …. [9-3010] 694 Other terms and conditions of the Fair Work Ombudsman …. [9-3030] 695 Appointment of acting Fair Work Ombudsman …. [9-3050]

DIVISION 3 — OFFICE OF THE FAIR WORK OMBUDSMAN Subdivision A — Establishment of the office of the Fair Work Ombudsman 696 Establishment of the Office of the Fair Work Ombudsman …. [9-3240]

697 698 699

Subdivision B — Staff and consultants etc Staff …. Persons assisting the Fair Work Ombudsman …. Consultants ….

[9-3380] [9-3400] [9-3420] [page 37]

Section

700 701 702

703 704 705 706 707 708 709

Title

Paragraph

Subdivision C — Appointment of Fair Work Inspectors Appointment of Fair Work Inspectors …. [9-3560] Fair Work Ombudsman is a Fair Work Inspector …. [9-3580] Identity cards …. [9-3600] Subdivision D — Functions and powers of Fair Work Inspectors Conditions and restrictions on functions and powers …. [9-3740] General directions by the Fair Work Ombudsman …. [9-3760] Particular directions by the Fair Work Ombudsman …. [9-3780] Purpose for which powers of inspectors may be exercised …. [9-3800] When powers of inspectors may be exercised …. [9-3820] Power of inspectors to enter premises …. [9-3840] Powers of inspectors while on premises …. [9-3860]

710 711 712 713 713A 714 715

716 717

Persons assisting inspectors …. Power to ask for person’s name and address …. Power to require persons to produce records or documents …. Self-incrimination …. Certain records and documents are inadmissible …. Power to keep records or documents …. Enforceable undertakings relating to contraventions of civil remedy provisions …. Compliance notices …. Review of compliance notices ….

[9-3880] [9-3900] [9-3920] [9-3940] [9-3960] [9-3980]

[9-4000] [9-4020] [9-4040]

Subdivision E — Disclosure of information by the office of the Fair Work Ombudsman 718 Disclosure of information by the Office of the Fair Work Ombudsman …. [9-4180] CHAPTER 6 — MISCELLANEOUS PART 6-1 — MULTIPLE ACTIONS

719 720

721 722 723

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer ….

[9-4470] [9-4490]

DIVISION 2 — CERTAIN ACTIONS NOT PERMITTED IF ALTERNATIVE ACTION CAN BE TAKEN Equal remuneration applications …. [9-4680] Notification and consultation requirements applications …. [9-4700] Unlawful termination applications …. [9-4720] [page 38]

Section

Title

Paragraph

DIVISION 3 — PREVENTING MULTIPLE ACTIONS

724

725 726 727 728 729 730 731 732 733

Subdivision A — Equal remuneration applications Equal remuneration applications ….

[9-4910]

Subdivision B — Applications and complaints relating to dismissal General rule …. [9-5050] Dismissal remedy bargaining order applications …. [9-5070] General protections FWC applications …. [9-5090] General protections court applications …. [9-5110] Unfair dismissal applications …. [9-5130] Unlawful termination FWC applications …. [9-5150] Unlawful termination court applications …. [9-5170] Applications and complaints under other laws …. [9-5190] Dismissal does not include failure to provide benefits …. [9-5210]

Subdivision C — General protections applications that do not relate to dismissal 734 General rule …. [9-5350] PART 6-2 — DEALING WITH DISPUTES

735 736

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer ….

[9-5590] [9-5610]

DIVISION 2 — DEALING WITH DISPUTES

737

Subdivision A — Model term about dealing with disputes Model term about dealing with disputes …. [9-5800]

Subdivision B — Dealing with disputes Application of this Division …. Disputes dealt with by the FWC …. Dispute dealt with by persons other than the FWC ….

738 739 740

[9-5940] [9-5960] [9-5980]

PART 6-3 — EXTENSION OF NATIONAL EMPLOYMENT STANDARDS ENTITLEMENTS DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer ….

741 742

[9-6220] [9-6240]

DIVISION 2 — EXTENSION OF ENTITLEMENT TO UNPAID PARENTAL LEAVE AND RELATED ENTITLEMENTS

743

Subdivision A — Main provisions Object of this Division ….

[9-6430] [page 39]

Section

744 745 746

747

Title

Extending the entitlement to unpaid parental leave and related entitlements …. Contravening the extended parental leave provisions …. References to the National Employment Standards include extended parental leave provisions …. State and Territory laws that are not excluded ….

Paragraph

[9-6450] [9-6470]

[9-6490] [9-6510]

Subdivision B — Modifications of the extended parental leave provisions 748 Non-national system employees are not award/agreement free employees …. [9-6650]

749 750 751

752

753

754 755 756

757

Modification of meaning of base rate of pay for pieceworkers …. Modification of meaning of full rate of pay for pieceworkers …. Modification of meaning of ordinary hours of work — if determined by State industrial instrument …. Modification of meaning of ordinary hours of work — if not determined by State industrial instrument …. Modification of meaning of ordinary hours of work — regulations may prescribe usual weekly hours …. Modification of meaning of pieceworker …. Modification of provision about interaction with paid leave …. Modification of provision about relationship between National Employment Standards and agreements …. Modification of power to make regulations ….

[9-6670] [9-6690]

[9-6710]

[9-6730]

[9-6750] [9-6770] [9-6790]

[9-6810] [9-6830]

DIVISION 3 — EXTENSION OF ENTITLEMENT TO NOTICE OF TERMINATION OR PAYMENT IN LIEU OF NOTICE

758 759

760 761

762

Subdivision A — Main provisions Object of this Division …. Extending entitlement to notice of termination or payment in lieu of notice …. Contravening the extended notice of termination provisions …. References to the National Employment Standards include extended notice of termination provisions …. State and Territory laws that are not

[9-7020]

[9-7040] [9-7060]

[9-7080]

excluded ….

[9-7100]

Subdivision B — Modifications of the extended notice of termination provisions 763 Non-national system employees are not award/agreement free employees …. [9-7240] 764 Modification of meaning of full rate of pay for pieceworkers …. [9-7260] [page 40] Section

765 766 767

768

Title

Paragraph

Modification of meaning of pieceworker …. Modification of provision about notice of termination by employee …. Modification of provision about relationship between National Employment Standards and agreements …. Modification of power to make regulations ….

[9-7280] [9-7300]

[9-7320] [9-7340]

PART 6-3A — TRANSFER OF BUSINESS FROM A STATE PUBLIC SECTOR EMPLOYER

768AA 768AB

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer ….

[9-7370] [9-7372]

DIVISION 2 — COPYING TERMS OF STATE INSTRUMENTS WHEN THERE IS A TRANSFER OF BUSINESS 768AC What this Division is about …. [9-7380] 768AD When does a transfer of business occur? …. [9-7382] 768AE Meaning of transferring employee, termination time and re-employment time …. [9-7384]

DIVISION 3 — COPIED STATE INSTRUMENTS

768AF

768AG 768AH 768AI 768AJ 768AK 768AL 768AM 768AN 768AO

Subdivision A — Guide to this Division What this Division is about …. Subdivision B — Copied State instruments Contravening a copied State instrument …. What is a copied State instrument? …. What is a copied State award? …. What is a State award? …. What is a copied State employment agreement? …. What is a State employment agreement? …. When does a copied State instrument apply to a person? …. When does a copied State instrument cover a person? …. When is a copied State instrument in operation? ….

[9-7392]

[9-7394] [9-7396] [9-7398] [9-7400] [9-7402] [9-7404] [9-7406] [9-7408] [9-7410]

DIVISION 4 — INTERACTION BETWEEN COPIED STATE INSTRUMENTS AND THE NES, MODERN AWARDS AND ENTERPRISE AGREEMENTS

768AP

Subdivision A — Guide to this Division What this Division is about ….

[9-7418] [page 41]

Section

768AQ 768AR

Title

Subdivision B — Interaction with the NES Interaction between the NES and a copied State instrument …. Provisions of the NES that allow instruments

Paragraph

[9-7420]

to contain particular kinds of terms ….

768AS 768AT

768AU

Subdivision C — Interaction with modern awards Modern awards and copied State awards …. Modern awards and copied State employment agreements ….

[9-7422]

[9-7424] [9-7426]

Subdivision D — Interaction with enterprise agreements Enterprise agreements and copied State instruments …. [9-7428]

DIVISION 5 — VARIATION AND TERMINATION OF COPIED STATE INSTRUMENTS

768AV

Subdivision A — Guide to this Division What this Division is about ….

768AW 768AX

Subdivision B — Variation of copied State instruments Variation in limited circumstances …. [9-7438] Variation of copied State instruments …. [9-7440]

[9-7436]

Subdivision C — Termination of copied State instruments 768AY Termination in limited circumstances …. [9-7442] DIVISION 6 — FWC ORDERS ABOUT COVERAGE OF COPIED STATE INSTRUMENTS AND OTHER INSTRUMENTS

768AZ 768AZA

768BA 768BB

Subdivision A — Guide to this Division What this Division is about …. Orders in relation to a transfer of business …. Subdivision B — Coverage orders FWC orders about coverage for transferring employees …. FWC orders about coverage for employee organisations ….

[9-7450] [9-7452]

[9-7454] [9-7456]

DIVISION 7 — FWC ORDERS ABOUT CONSOLIDATING COPIED STATE INSTRUMENTS ETC

768BC 768BCA

Subdivision A — Guide to this Division What this Division is about …. Orders in relation to a transfer of business ….

[9-7464] [9-7466]

Subdivision B — Consolidation orders in relation to transferring employees 768BD Consolidation orders in relation to transferring employees …. [9-7468] 768BE Consolidation order to deal with application and coverage …. [9-7470] [page 42] Section

768BF

Title

Effect of this Act after a consolidation order is made ….

Paragraph

[9-7472]

Subdivision C — Consolidation orders in relation to non-transferring employees 768BG Consolidation orders in relation to nontransferring employees …. [9-7474] 768BH Consolidation order to deal with application and coverage …. [9-7476] 768BI Effect of this Act after a consolidation order is made …. [9-7478] DIVISION 8 — SPECIAL RULES FOR COPIED STATE INSTRUMENTS

768BJ

Subdivision A — Guide to this Division What this Division is about ….

[9-7486]

768BK

Subdivision B — Terms about disputes Where no term dealing with disputes ….

[9-7488]

Subdivision C — Service and entitlements of a transferring employee 768BL Service for the purposes of this Act …. [9-7490] 768BM NES — working out non-accruing entitlements …. [9-7492] 768BN NES — working out accruing entitlements …. [9-7494] 768BO Copied State instrument — service …. [9-7496] 768BP Copied State instrument — working out nonaccruing entitlements …. [9-7498] 768BQ Copied State instrument — working out accruing entitlements …. [9-7500] Subdivision D — Cessation of copied State awards: avoiding reductions in take-home pay 768BR Cessation not intended to result in reduction in take-home pay …. [9-7502] 768BS Orders remedying reductions in take-home pay …. [9-7504] 768BT Contravening a take-home pay order …. [9-7506] 768BU How long a take-home pay order continues to apply …. [9-7508] 768BV Interaction of take-home pay orders with modern awards and enterprise agreements …. [9-7510] 768BW Application of this Act to take-home pay orders …. [9-7512]

768BX

768BY

Subdivision E — Modification of this Act Modification of this Act for copied State instruments …. Subdivision F — Modification of the Transitional Act Modification of the Transitional Act for

[9-7514]

copied State instruments ….

[9-7516]

[page 43] Section

Title

Paragraph

Subdivision G — Modification of the Registered Organisations Act 768BZ Modification of the Registered Organisations Act for copied State instruments …. [9-7518]

768CA

DIVISION 9 — REGULATIONS Regulations ….

[9-7526]

PART 6-4 — ADDITIONAL PROVISIONS RELATING TO TERMINATION OF EMPLOYMENT

769 770

771 772 773 774 775 776 777 778 779 779A 780

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer …. DIVISION 2 — TERMINATION OF EMPLOYMENT Object of this Division …. Employment not to be terminated on certain grounds …. Application for the FWC to deal with a dispute …. Time for application …. Application fees …. Dealing with a dispute (other than by arbitration) …. Dealing with a dispute by arbitration …. Taking a dispute to court …. Appeal rights …. Costs orders against parties …. Costs orders against lawyers and paid agents ….

[9-7580] [9-7600]

[9-7790] [9-7810] [9-7830] [9-7850] [9-7870] [9-7890] [9-7910] [9-7930] [9-7950] [9-7960] [9-7970]

781 781A 782 783

Applications for costs orders …. Schedule of costs …. Contravening costs orders …. 4 Reason for action to be presumed unless proved otherwise ….

[9-7990] [9-8000] [9-8010] [9-8020]

DIVISION 3 — NOTIFICATION AND CONSULTATION REQUIREMENTS RELATING TO CERTAIN TERMINATIONS OF EMPLOYMENT

784

785

Subdivision A — Object of this Division Object of this Division ….

[9-8220]

Subdivision B — Requirement to notify Centrelink Employer to notify Centrelink of certain proposed terminations ….

[9-8360]

Subdivision C — Failure to notify or consult registered employee associations 786 FWC may make orders where failure to notify or consult registered employee associations about terminations …. [9-8500] [page 44] Section

Title

Paragraph

787 788

Orders that the FWC may make …. Application to the FWC for order ….

[9-8520] [9-8540]

789

Subdivision D — Limits on scope of this Division Limits on scope of this Division ….

[9-8680]

PART 6-4A — SPECIAL PROVISIONS ABOUT TCF OUTWORKERS DIVISION 1 — INTRODUCTION

789AA 789AB 789AC

Guide to this Part …. Meanings of employee and employer …. Objects of this Part ….

[9-8685] [9-8690] [9-8695]

DIVISION 2 — TCF CONTRACT OUTWORKERS TAKEN TO BE EMPLOYEES IN CERTAIN CIRCUMSTANCES 789BA Provisions covered by this Division …. [9-8700] 789BB TCF contract outworkers taken to be employees in certain circumstances …. [9-8705] 789BC Regulations relating to TCF outworkers who are taken to be employees …. [9-8710]

789CA 789CB 789CC 789CD 789CE

789CF

DIVISION 3 — RECOVERY OF UNPAID AMOUNTS When this Division applies …. Liability of indirectly responsible entity for unpaid amount …. Demand for payment from an apparent indirectly responsible entity …. Court order for entity to pay amount demanded …. Effect of payment by entity (including entity’s right to recover from responsible person) …. Division does not limit other liabilities or rights ….

[9-8715] [9-8720] [9-8725] [9-8730]

[9-8735] [9-8740]

DIVISION 4 — CODE OF PRACTICE RELATING TO TCF OUTWORK 789DA Regulations may provide for a code …. [9-8745] 789DB Matters that may be dealt with in TCF outwork code …. [9-8750] 789DC Persons on whom obligations may be imposed by TCF outwork code …. [9-8755] 789DD Other general matters relating to content of TCF outwork code …. [9-8760] 789DE Relationship between the TCF outwork code and other instruments …. [9-8765]

789EA

DIVISION 5 — MISCELLANEOUS Part not intended to exclude or limit State or Territory laws relating to outworkers ….

[9-8770] [page 45]

Section

Title

Paragraph

PART 6-4B — WORKERS BULLIED AT WORK

789FA 789FB

DIVISION 1 — INTRODUCTION Guide to this Part …. Meanings of employee and employer ….

[9-8780] [9-8785]

DIVISION 2 — STOPPING WORKERS BEING BULLIED AT WORK 789FC Application for an FWC order to stop bullying …. [9-8790] 789FD When is a worker bullied at work? …. [9-8795] 789FE FWC to deal with applications promptly …. [9-8800] 789FF FWC may make orders to stop bullying …. [9-8805] 789FG Contravening an order to stop bullying …. [9-8810] 789FH Actions under work health and safety laws permitted …. [9-8815] 789FI This Part is not to prejudice Australia’s defence, national security etc …. [9-8820] 789FJ Declarations by the Chief of the Defence Force …. [9-8825] 789FK Declarations by the Director-General of Security …. [9-8830] 789FL Declarations by the Director-General of ASIS …. [9-8835] PART 6-5 — MISCELLANEOUS DIVISION 1 — INTRODUCTION

790 791

792 793 794 795 795A 796 796A 797 798 799 800

Guide to this Part …. Meanings of employee and employer …. DIVISION 2 — MISCELLANEOUS Delegation by Minister …. Liability of bodies corporate …. Signature on behalf of body corporate …. Public sector employer to act through employing authority …. The Schedules …. Regulations — general …. Regulations conferring functions …. Regulations dealing with offences …. Regulations dealing with civil penalties …. Regulations dealing with infringement notices …. Regulations dealing with exhibiting fair work instruments ….

[9-8920] [9-8940]

[9-9130] [9-9150] [9-9170] [9-9190] [9-9195] [9-9210] [9-9230] [9-9250] [9-9270] [9-9290] [9-9310] [page 46]

Title

SCHEDULE 1 — APPLICATION, SAVING AND TRANSITIONAL PROVISIONS RELATING TO AMENDMENTS OF THIS ACT …. SCHEDULE 2 — AMENDMENTS MADE BY THE FAIR WORK AMENDMENT (TRANSFER OF BUSINESS) ACT 2012 …. SCHEDULE 3 — AMENDMENTS MADE BY THE FAIR WORK AMENDMENT ACT 2012 …. SCHEDULE 4 — AMENDMENTS MADE

Paragraph

[9-9580]

[9-9600]

[9-9620]

BY THE FAIR WORK AMENDMENT ACT 2013 …. SCHEDULE 5 — AMENDMENTS MADE BY THE FAIR WORK AMENDMENT ACT 2015 ….

[9-9640]

[9-9650]

[page 47]

Fair Work Act 2009 TABLE OF AMENDMENTS The Fair Work Act 2009 No 28 received Royal Assent on 7 April 2009. The Fair Work Act commences as follows: ss 1–2: 7 April 2009 (s 2); ss 3– 40, 573–718 and Sch 1: 26 May 2009 (FRLI No F2009L01818); ss 41–43, 50–54, 58, 169–281A, 300–327, 332, 333, 334–572, 719–740 an 769–800: 1 July 2009 (FRLI No F2009L02563); ss 44–49, 55–57A, 59–168, 282–299, 328–331, 333A and 741–768; 1 January 2010 (FRLI No F2009L02563). As amended by: Amending Legislation

Date of Date of Commencement Assent Fair Work (State Referral and 25 June 2009 ss 1–4, Sch 1 items 1–12, Sch Consequential and Other 3: 25 June 2009; Sch 5 Amendments) Act 2009 items 67, 70–72, Sch 12 COMMENTARY TO items 1–3: 1 July 2009 (s AWARD/AGREEMENT 2); Sch 2 Pt 2 Div 2, Sch 5 FREE EMPLOYEENo 54 items 68, 69: 1 January 2010 (s 2); Sch 5 item 80: the later of either immediately after the commencement of item 68 of Sch 5 (1 January 2010), or the commencement of item 38 of Sch 3 to the Disability Discrimination and Other Human Rights Legislation Amendment

Act 2009 provided this does commence (proposed commencement of item 38 is on the 28th day after the day the Act receives Royal Assent: 5 August 2009); Sch 5 items 81, 82: the later of either immediately after the commencement of item 70 (for item 81) or item 72 (for item 82) of Sch 5 (1 July 2009), or the commencement of item 38 of Sch 3 to the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 provided this does commence (proposed commencement of item 38 is on the 28th day after [page 48] Amending Legislation

Date of Assent

Date of Commencement

the day the Act receives Royal Assent: 5 August 2009) Fair Work (Transitional 25 June 2009 ss 1–4: 25 June 2009; Schs Provisions and 18, 22, Sch 23 items 1–2E, Consequential 8–22: 1 July 2009 (s 2); Amendments) Act 2009 Sch 6 Pt 3, Sch 23 items No 55 3–7: 1 January 2010 (s 2) Disability Discrimination and 8 July 2009 Sch 3, items 111–114: 1

Other Human Rights Legislation Amendment Act 2009 No 70 Fair Work Amendment (State 9 December Referrals and Other 2009 Measures) Act 2009 No 124

January 2010

Sch 1 items 1–6, 8–12, 14– 15. 17–41; Sch 2 items 125–132; Sch 3 items 1A, 4–17: 1 January 2010 (F2009L04605); Sch 1 items 13 and 16: 25 June 2009; Sch 1 item 7; Sch 3 items 1–3: 15 December 2009 (F2009L04605) Freedom of Information 31 May 2010 1 November 2010 (Gaz No Amendment (Reform) Act 22, 9 June 2010, p 1117) 2010 No 51 Sex and Age Discrimination 20 June 2011 Sch 2 Pt 2 Div 1: 29 July Legislation Amendment 2011 (F2011L01552) Act 2011 No 40 Fair Work Amendment 15 April 2012 Sch 1: 1 July 2012 (Textile, Clothing and Footwear Industry) Act 2012 No 33 Paid Parental Leave and 22 July 2012 Sch 2 Pt 2: 23 July 2012 Other Legislation Amendment (Dad and Partner Pay and Other Measures) Act 2012 No 109 Navigation (Consequential 13 September Sch 2 item 13: 1 July 2013 Amendments) Act 2012 2012 No 129 Statute Law Revision Act 22 September ss 1–3: 22 September 2012; 2012 No 136 2012 Sch 1 Pt 2: 1 August 2011; Sch 1 Pt 3 item 124: 1 July 2012; Sch 2 item 14: 1 July 2009

Statute Law Revision Act 2012 No 136

Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012 No 171

22 September ss 1–3: 22 September 2012; 2012 Sch 1 Pt 2: 1 August 2011; Sch 1 Pt 3 item 124: 1 July 2012; Sch 2 item 14: 1 July 2009 3 December 1 January 2013 2012 (F2012L02367)

[page 49] Amending Legislation Fair Work Amendment Act 2012 No 174

Date of Assent 4 December 2012

Date of Commencement ss 1–3: 4 December 2012; Sch 1: 1 January 2014; Sch 2: 1 July 2013; Schs 3–8: 1 January 2013; Sch 9 Pts 1– 2: 1 January 2013; Sch 9 Pt 3, items 1339–1383: 1 January 2013; Sch 9 Pt 3 item 1385: 1 January 2013; Sch 9 Pt 4: 1 January 2013; Sch 10: 1 January 2013; Sch 11: 4 December 2012 5 December 2012

Fair Work Amendment 4 December (Transfer of Business) Act 2012 2012 No 175 Federal Circuit Court of 14 March ss 1–3: 14 March 2013; Sch 1 Australia (Consequential 2013 items 234–246: 12 April Amendments) Act 2013 2013; Sch 2 Pt 1 item 1: 12 No 13 April 2013 Superannuation Legislation 26 June 2013 ss 1–3: 26 June 2013; Sch 1

Amendment (Service Pt 1 items 12B–12P: 1 Providers and Other January 2013 Governance Measures) Act 2013 No 61 Fair Work Amendment Act 28 June 2013 ss 1–3: 28 June 2013; Sch 1 2013 No 73 Pt 1–3: 1 July 2013; Sch 1 Pt 4: 1 January 2014; Sch 1 Pt 5: 1 July 2013; Sch 2: 1 January 2014; Sch 3: 1 January 2014; Sch 3A: 1 July 2013; Sch 4: 1 January 2014; Sch 4A: 1 January 2014; Sch 5 item 1: 5 December 2012; Sch 5 item 2: 1 July 2012: Sch 5 items 3 and 4: 1 July 2013; Sch 6 item 1: 1 January 2014; Sch 6 items 2–4: 28 June 2013; Sch 6 item 5: 1 July 2013; Sch 6 items 6– 8: 28 June 2013; Sch 6 items 9–10, 11–13 and 14; Sch 7: 28 June 2013 Sex Discrimination 28 June 2013 ss 1–3: 28 June 2013; Sch 1 Amendment (Sexual Pt 2 items 63C–63G: 1 Orientation, Gender August 2013 Identity and Intersex Status) Act 2013 No 98 Statute Law Revision Act 29 June 2013 29 June 2013 2013 No 103 Tax Laws Amendment 29 June 2013 29 June 2013 (Fairer Taxation of Excess Concessional Contributions) Act 2013 No 118

[page 50] Amending Legislation Statute Law Revision Act (No 1) 2014 No 31 Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014 No 62 Fair Work Amendment Act 2015 No 156

Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015 No 126 Law and Justice Legislation Amendment (Northern Territory Local Court) Act 2016 No 26 Territories Legislation Amendment Act 2016 No 33 Fair Work Amendment (Respect for Emergency Services Volunteers) Act 2016 No 62 Statute Law Revision (Spring 2016) Act 2016 No 67

Date of Date of Commencement Assent 28 May 2014 ss 1–3: 27 May 2014; Sch 1 items 25–33: 24 June 2014 30 June 2014 Sch 9 items 3–8: 1 July 2014

26 November Sch 1 items 1, 19–52, 56; Sch 2015 2: 27 November 2015; Sch 1 items 79, 80: 1 January 2016 10 September 5 March 2016 2015

23 March 2016

1 May 2016

23 March 2016

1 July 2016

12 October 2016

13 October 2016

20 October 2016

Sch 1 item 27: 17 November 2016 [page 51]

CHAPTER 1 — INTRODUCTION PART 1-1 — INTRODUCTION DIVISION 1 — PRELIMINARY

[5-100]

Short title

1 This Act may be cited as the Fair Work Act 2009.

[5-120]

Commencement

2 (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 Provision(s) Commencement 1. Sections 1 and 2 and The day on which this anything in this Act not Act receives the Royal elsewhere covered by Assent. this table 2. Sections 3 to 40 A single day to be fixed by Proclamation. 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. 3. Sections 41 to 572 A day or days to be fixed

Column 3 Date/Details 7 April 2009

26 May 2009 (see F2009L01818)

Sections 41–43, 50–54,

by Proclamation. A Proclamation must not specify a day that occurs before the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent. However, if any of the provision(s) do not commence 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.

58, 169–281A, 300– 327, 332, 333, 334– 572: 1 July 2009 (see F2009L02563) Sections 44–49, 55– 57A, 59–168, 282–299, 328–331, 333A: 1 January 2010 (see F2009L02563)

[page 52] Commencement information Column 1 Column 2 Provision(s) Commencement 4. Sections 573 to 718 At the same time as the provision(s) covered by table item 2. 5. Sections 719 to 800 A day or days to be fixed by Proclamation. A Proclamation must not

Column 3 Date/Details 26 May 2009

Sections 719–740, 769– 800: 1 July 2009 (see F2009L02563) Sections

6. Schedule 1

specify a day that occurs before the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent. However, if any of the provision(s) do not commence 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. At the same time as the provision(s) covered by table item 2.

741–768: 1 January 2010 (see F2009L02563)

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

[5-290]

Object of this Act

3 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:

providing workplace relations laws that are fair to working Australians, 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 (a)

[page 53] (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 (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 mediumsized businesses. [s 3 am Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009]

DIVISION 3 — GUIDE TO THIS ACT

[5-460]

Guide to this Act

4 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 (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). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 1, opn 1 Jan 2013]

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. 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. [subs (4) insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

[5-480] Terms and conditions of employment (Chapter 2) 5 (1) Chapter 2 provides for terms and conditions of employment of national system employees. [page 54] (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. [subs (6) am Act 174 of 2012 s 3 and Sch 9 item 2, opn 1 Jan 2013]

(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 (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).

[5-500] Rights and responsibilities of employees, employers, organisations etc (Chapter 3) 6 (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. [page 55] (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. (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.

[5-520]

Compliance and enforcement (Chapter 4)

7 (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.

[5-540]

Administration (Chapter 5)

8 (1) Chapter 5 provides for the administration of this Act by establishing the Fair Work Commission and the Office of the Fair Work Ombudsman. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 3, opn 1 Jan 2013]

(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). [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 4, 5, opn 1 Jan 2013]

(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.

[5-560]

Miscellaneous (Chapter 6)

9 (1) Chapter 6 is a collection of miscellaneous matters that relate to the other Chapters. [page 56] (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 the National Employment Standards relating to unpaid parental leave and notice of termination to non-national system employees. (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. [subs (4A) insrt Act 175 of 2012 s 3 and Sch 1 item 2, opn 5 Dec 2012]

(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. [subs (5A) insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

(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. [subs (5B) insrt Act 73 of 2013 s 3 and Sch 3 item 1, opn 1 Jan 2014]

(6) Part 6-5 deals with miscellaneous matters such as delegations and regulations.

[5-565] Application, transitional and saving provisions for amendments (Schedules)

9A 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. [s 9A subst Act 175 of 2012 s 3 and Sch 1 item 3, opn 5 Dec 2012]

PART 1-2 — DEFINITIONS DIVISION 1 — INTRODUCTION

[5-780]

Guide to this Part

10 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. [page 57] Division 4 has some other definitions that apply across this Act. [Editor’s note: Section 10 of this legislation is reproduced in this format in line with the official version.]

[5-800]

Meanings of employee and employer

11 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). [s 11 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY ON SECTION 11*

Employee — s 11 …. Employer — s 11 ….

[5-800.01] [5-800.05]

TCF contract outworkers — s 11 Note …. This Part — s 11 ….

[5-800.10] [5-800.15]

[5-800.01] Employee — s 11 See ss 12, 15(1), 30E(1) and 30P(1). [5-800.05] Employer — s 11 See ss 12, 15(2), 30E(2) and 30P(1). [5-800.10] TCF contract outworkers — s 11 Note See ss 12 and 789BB(2). [5-800.15] This Part — s 11 This Part is Pt 1-2. *Editor’s note: Commentary on s 11 by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

DIVISION 2 — THE DICTIONARY

[5-970]

The Dictionary

12 In this Act: 4 yearly review of modern awards: see subsection 156(1). access period for a proposed enterprise agreement: see subsection 180(4). accommodation arrangement: see subsections 521A(1) and (2). [def insrt Act 73 of 2013 s 3 and Sch 4 item 1, opn 1 Jan 2014]

action includes an omission. adoption-related leave: see subsection 67(5). adverse action: see section 342. affected employees for a variation of an enterprise agreement: see subsection 207(2). affected employer: (a) in relation to an entry under Subdivision A of Division 2 of Part 3-4: see subsection 482(2); and [page 58] (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. [def insrt Act 40 of 2011 s 3 and Sch 2 item 11, opn 29 July 2011]

agreed terms for a workplace determination: see section 274. agreed to in relation to a termination of an enterprise agreement: see section 221. 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). [def insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

applicable agreement-derived long service leave terms: see subsection 113(5). applicable award-derived long service leave terms: see subsection 113(3). 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 (c) in relation to a copied State instrument: see section 768AM. [def am Act 175 of 2012 s 3 and Sch 1 item 4, opn 5 Dec 2012]

applies to employment generally: see subsection 26(4). appointment of a bargaining representative means an appointment of a

bargaining representative under paragraph 176(1)(c) or (d) or 177(c). [def am Act 156 of 2015 Sch 1 item 19, opn 27 Nov 2015]

appropriate safe job: see subsection 81(3). [def am Act 73 of 2013 s 3 and Sch 1 item 22, opn 1 July 2013]

approved by FWA [def rep Act 174 of 2012 s 3 and Sch 9 item 6, opn 1 Jan 2013]

approved by the FWC, in relation to an enterprise agreement, means approved by the FWC under section 186 or 189. [def insrt Act 174 of 2012 s 3 and Sch 9 item 7, opn 1 Jan 2013]

associated entity has the meaning given by section 50AAA of the Corporations Act 2001. [page 59] COMMENTARY TO ASSOCIATED ENTITY*

Definition ….

[5-970.23.01]

[5-970.23.01] Definition See [5-1490.10].

____________________ 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. [def insrt Act 33 of 2016 s 3 and Sch 5 item 51, opn 1 July 2016]

Australian-based employee: see subsections 35(2) and (3). Australian employer: see subsection 35(1). 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. COMMENTARY TO AWARD/AGREEMENT FREE EMPLOYEE*

Derivation …. Enterprise agreement …. Modern award …. National system employee …. Outline of section ….

[5-970.30.01] [5-970.30.05] [5-970.30.10] [5-970.30.15] [5-970.30.20]

[5-970.30.01] Derivation The definition is new. [5-970.30.05] Enterprise agreement This is defined to mean a single-enterprise agreement; or a multienterprise agreement. [5-970.30.10] Modern award This is defined to mean a modern award made under Part 2-3. [5-970.30.15] National system employee See s 14. [5-970.30.20] Outline of section Section 47(2) states that modern awards do not apply to high income employees. High income employee is in turn defined in s 329 and Regulation 2.13. The Explanatory Memorandum to the Fair Work Bill stated at r. 103 that modern awards will not cover employees earning over $100,000 a year (indexed) who will be free to agree to their own pay and conditions without reference to awards. This will provide flexibility for employers and employees. The Government believes that these workers can negotiate their own arrangements and do not require the same level of safety net protection as lower paid employees. *Editor’s note: Commentary prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________ 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 [page 60] (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.

[def subst Act 55 of 2009 s 3 and Sch 6, opn 1 Jan 2010; am Act 54 of 2009 s 3 and Sch 2 opn 1 Jan 2010; Act 175 of 2012 s 3 and Sch 1 item 5, opn 5 Dec 2012]

ballot paper: see subsection 455(2). [def insrt Act 174 of 2012 s 3 and Sch 8 item 1, opn 1 Jan 2013]

bargaining order: see subsection 229(1). bargaining related workplace determination: see subsection 269(1). bargaining representative for a proposed enterprise agreement: see sections 176 and 177. [def am Act 156 of 2015 Sch 1 item 20, opn 27 Nov 2015]

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). bullied at work: see subsection 789FD(1). [def insrt Act 73 of 2013 s 3 and Sch 3 item 2, opn 1 Jan 2014]

child of a person: see subsection 17(1). civil remedy provision: see subsections 539(1) and (3). [def am Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009]

Commissioner means a Commissioner of the FWC. [def am Act 174 of 2012 s 3 and Sch 9 item 8, opn 1 Jan 2013]

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. [def insrt Act 33 of 2016 s 3 and Sch 5 item 51, opn 1 July 2016]

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.

COMMENTARY TO COMMONWEALTH AUTHORITY*

Derivation …. Body corporate established for a public purpose — para (a) …. Body corporate — para (a), (b) ….

[5-970.50.01] [5-970.50.05] [5-970.50.10] [page 61]

Incorporated under a law of the Commonwealth etc — para (b)(i) …. Body corporate in which the Commonwealth has a controlling interest — para (b)(ii) ….

[5-970.50.15] [5-970.50.20]

[5-970.50.01] Derivation Section 4 of the Workplace Relations Act 1996 (Cth). [5-970.50.05] Body corporate established for a public purpose — para (a) The reasoning in Queensland Law Society Inc v Albietz [1996] 2 Qd R 580; BC9600799 suggests that it is necessary to refer to the terms of the enactment establishing the body corporate to determine whether its purposes are public. See also Municipal Association of Victoria v VCAT [2004] VSC 146 (28 April 2004) at [26]. Although it may engage in significant private activities, where it performs a function within the province of government administered by the Commonwealth which has a public nature (such as providing for public welfare) it is a Commonwealth authority, at least in respect of that public function. In relation to bodies corporate generally, see the discussion in H E Renfree, The Executive Power of the Commonwealth of Australia, Law Book Co, Sydney, 1984, p 316 and following and see R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235 at 278; 13 ALR 273; 51 ALJR 362; BC7700027. Generally speaking, statutory authorities tend to be established where the body has a regulatory function and a company is incorporated where the body has a specifically commercial focus. [5-970.50.10] Body corporate — para (a), (b) The Shorter Oxford English Dictionary (3rd ed.) captures the ordinary meaning of ‘body corporate’ in a legal context in one of the meanings given for ‘body’: ‘An artificial “person” created by law; a corporation’. The same dictionary gives as the definition of ‘corporation’ in a legal context: ‘A body corporate legally authorised to act as a single individual; an artificial person created by royal charter, prescription, or legislative act, and having the capacity of perpetual succession’: Coochey v Commonwealth of Australia (2005) 149 FCR 321; 148 IR 361; [2005] FCA 1165 (24 August 2005); BC200507057 at [60]. In the same case at [67], Madgwick J rejected a argument that a body politic could not be a body corporate holding that as a matter of ordinary language and legal possibility, a body politic may also be a body corporate or be equated to such: they are not mutually exclusive categories. A body corporate may have a governmental character: various types of local government bodies both here and elsewhere in countries of the common law tradition are examples of this, as are some instances of specific-purpose, trading corporations set up by governments. There is no reason why a body politic, in the sense of an organised State or part of a State, might not also be a body corporate. It is generally recognised that a trust is not of itself a corporate entity but rather a legal relationship where one “person” (the trustee) holds property or rights on behalf of another (the beneficiary). In that

context, it is therefore necessary to consider the identity and nature of the trustee arrangements and potentially the beneficiaries: Dr Ij Hough Veterinary Surgery Veterinary Staff Enterprise Agreement 2006 and Glenelg Veterinary Clinic Veterinary Staff Enterprise Agreement 2006 [2006] SAIRComm 10 at [10]. [5-970.50.15] Incorporated under a law of the Commonwealth etc — para (b)(i) Paragraph (b)(i) significantly extends the reach of the definition. There is no need for the body corporate to be established for a public purpose. [5-970.50.20] Body corporate in which the Commonwealth has a controlling interest — para (b) (ii) This requirement is cumulative upon the requirement of para (b)(i) of the definition. The phrase “controlling interest” has a well known meaning. It means the person whose shareholding is such that that person is more powerful than all other shareholders put together in general meeting: see BW Noble Ltd v Inland Revenue Cmrs (1926) 12 TC 911 at 926 approved by Kitto J in Mendes v Cmr of Probate Duties (Vic) (1967) 122 CLR 152 at 161–2; [1967] ALR 649; [page 62] (1967) 41 ALJR 108; BC6700240. Compare D Noakes, “Dogs on the Wharves: Corporate Groups and the Waterfront Dispute” (1999) 11 AJCL 27 at 60–1. See also R v Portus: Ex parte McNeil & Qantas Empire Airways Ltd (1961) 105 CLR 537 at 450; [1962] ALR 81; (1961) 35 ALJR 201; BC6100830; and R v Portus; Ex parte FCU (1949) 79 CLR 428 at 434–5; 23 ALJR 621; BC4900460. *Editor’s note: Commentary prepared by John Trew QC updated by Ian Latham BA(Hons)/LLB.

____________________ 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. [def insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

Commonwealth place means a place referred to in paragraph 52(i) of the Constitution, other than the seat of government. COMMENTARY TO COMMONWEALTH PLACE*

Derivation …. Paragraph 52(1) …. Seat of government ….

[5-970.55.01] [5-970.55.05] [5-970.55.10]

[5-970.55.01] Derivation Section 737 Workplace Relations Act. [5-970.55.05] Paragraph 52(1) This defines Commonwealth place as the seat of government and all places acquired by the Commonwealth for public purposes. [5-970.55.10] Seat of government This is defined in Schedule 2 to the Seat of Government Acceptance Act 1909. It is the Australian Capital Territory.

*Editor’s note: Commentary on Commonwealth Place prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________ 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. [def insrt Act 174 of 2012 s 3 and Sch 8 item 57, opn 1 Jan 2013]

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). [def insrt Act 174 of 2012 s 3 and Sch 8 item 58, opn 1 Jan 2013]

compliance powers: see section 703. compliance purposes: see subsection 706(1). concurrent leave: see subsection 72(5). [def insrt Act 73 of 2013 s 3 and Sch 1 item 12, opn 1 July 2013]

conduct includes an omission. conduct of a protected action ballot: see subsection 458(5). [page 63] 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). [def insrt Act 54 of 2009 s 3 and Sch 3, opn 25 June 2009; am Act 33 of 2016 s 3 and Sch 5 item 52, opn 1 July 2016]

consent low-paid workplace determination: see subsection 260(2). 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). [def insrt Act 175 of 2012 s 3 and Sch 1 item 6, opn 5 Dec 2012]

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. COMMENTARY TO CONSTITUTIONAL CORPORATION*

Derivation …. History …. Corporation to which s 51(xx) of the Constitution applies …. Foreign corporations …. Trading corporation …. Financial corporations …. Examples …. Outline of definition ….

[5-970.70.01] [5-970.70.05] [5-970.70.10] [5-970.70.15] [5-970.70.20] [5-970.70.25] [5-970.70.30] [5-970.70.35]

[5-970.70.01] Derivation Section 4 of the Workplace Relations Act. [5-970.70.05] History The definition was inserted by the Workplace Relations Amendment (Work Choices) Act 2005 (No 135 of 2005), and replaced the earlier definition which included s 51(xx) corporations as well as bodies corporate incorporated in a territory and Commonwealth authorities. [5-970.70.10] Corporation to which s 51(xx) of the Constitution applies It is a foreign corporation

and a trading or financial corporation formed within the limits of the Commonwealth. For a discussion of the cases concerning what constitutes each of those corporations: see Lumb & Moens’ Constitution of the Commonwealth of Australia, 7th ed, 2007 at [286]; J D Heydon, Trade Practices, Law Book Co, Sydney, 1989, looseleaf at [2.2.60] and following and R Miller, [page 64] Miller’s Annotated Trade Practices Act, at [1.4.70], [1.4.75] and [1.4.130]. See the review in Quickenden v O’Connor (2001) 109 FCR 243; 184 ALR 260; [2001] FCA 303; BC200101151 at [41]–[47], [101] and Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) (2008) 252 ALR 136; 228 FLR 318; [2008] WASCA; BC200810885 at [39]–[54], of the five High Court decisions in which the nature of a s 51(xx) corporation is considered. [5-970.70.15] Foreign corporations The main purpose of the power to legislate with respect to foreign corporations must be directed to their business activities in Australia: see Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 365; 128 ALR 81; 69 ALJR 284; BC9506436 per Gaudron J; New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52; BC200609129 at [177], [178] and [181] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. To fall within the Act, such a corporation must be a foreign corporation within the meaning of s 51(xx) and therefore, to the extent that it employs employees to perform work in Australia, it is a national system employer as defined in s 14 of the FW Act: Glenn Gardner v Milka-Ware International Ltd [2010] FWA 1589; BC201070147 at [24]. See generally Jones v QinetiQ Pty Ltd t/as QinetiQ Australia [2013] FWC 3302 at [8]–[12]. [5-970.70.20] Trading corporation The business activities of corporations formed within Australia signify whether they are trading or financial corporations within the meaning of s 51(xx) of the Constitution: see Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 365; 128 ALR 81; 69 ALJR 284; BC9506436 per Gaudron J; New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52; BC200609129 at [55], [177], [178] and [181] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. Compare [533]–[539] per Kirby J. The earlier test, requiring a characterisation of a corporation by reference to the purpose for which it was formed (R v Trade Practices Tribunal; Ex parte St George CC (1974) 130 CLR 533; 2 ALR 371; 48 ALJR 26; BC7400012) was treated as incorrect after R v Judges of FCA; Ex parte WA National Football League (Inc) (1979) 143 CLR 190; 23 ALR 439; 53 ALJR 273; ATPR 40-103 and replaced by what is sometimes called the “activities test”. The expression “trading corporation” in s 51(xx) of the Constitution is treated as not being a term of art or one having a fixed meaning: Commonwealth v Tasmania (1983) 158 CLR 1 at 155, 240, 292–3; 46 ALR 625; 57 ALJR 450; BC8300075. A difficult question arises as to the level of trading activity required. The courts have used terms such as “substantial”, “not insubstantial” and the somewhat circular “sufficiently significant”. A useful summary of these terms is set out in E v Australian Red Cross Society (1991) 27 FCR 310 at 342; 99 ALR 601; ASC 56-029; BC9103001. As to the question as to whether trading is a substantial activity when measured in absolute dollar terms or whether substantiality is a relative term see Quickenden v Commissioner O’Connor of the Australian Industrial Relations Commission (2001) 109 FCR 243; 184 ALR 260; [2001] FCA 303; BC200101151 at [101], where Carr J noted that Murphy J in Adamson (at 239) and Wilcox J in E v Australian Red Cross Society (1991) 27 FCR 310; 99 ALR 601 at 633 and 635; ASC 56-029; BC9103001 appears to have regarded substantiality as being an absolute rather than a relative concept.

Such a view was rejected by the NSWIRC in Hardeman v Children’s Medical Research Institute (2007) 166 IR 196; [2007] NSWIRComm 189 at [56]. During argument in New South Wales v Commonwealth (2006) 231 ALR 1; 81 ALJR 34; [2006] HCA 52; BC200609129 Hayne J referred several times to the question of defining a trading corporation by its activities. He seems to have been suggesting that the High Court may have gone too far in embracing the activities test. However, he and the other members of the majority did not refer to that issue in their reasons for judgment. They merely observed at [55] that no party or intervener had questioned the appropriateness of the activities test. Mere passive investment is not the carrying on of a business: Federal Capital Press of Australia Pty Ltd and Commissioner for ACT Revenue [1995] ACTAAT 102 (1 February 1995). There is an interesting review of the activities test, its application to state instrumentalities, [page 65] non-profit organisations and other bodies, and how the High Court might reconsider the test in N Gouliaditis, “The meaning of ‘trading or financial corporations’: future directions” (2008) 19 PLR 110. In Aboriginal Legal Services of WA Inc v Lawrence [2007] WAIRComm 435 there is a survey, of many of the cases, determining whether a body corporate is a trading corporation within the meaning of s 51(xx) of the Constitution. Shahid v Australasian College of Dermatologists (2007) 72 IPR 555; [2007] FCA 693; BC200703509, Garvey v Institute of General Practice Inc (2007) 165 IR 62; [2007] NSWIRComm 159, Bankstown Handicapped Children’s Centre Association Inc v Hillman (2010) 182 FCR 483; 265 ALR 23; [2010] FCAFC 11; BC201000810 (25 February 2010) and Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) (2008) 252 ALR 136; 228 FLR 318; [2008] WASCA 254; BC200810885 illustrate how a court or Industrial Tribunal might approach the evaluation of the activities of a body corporate to determine whether it is a trading or financial corporation within the meaning of the definition of Constitutional Corporation until there is more authoritative guidance from the High Court. In the latter case, the principles were summarised by Steytler P at [68] (authorities omitted): (1) A corporation may be a trading corporation even though trading is not its predominant activity. (2) However, trading must be a substantial and not merely a peripheral activity. (3) In this context, “trading” is not given a narrow construction. It extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services. (4) The making of a profit is not an essential prerequisite to trade, but it is a usual concomitant. (5) The ends which a corporation seeks to serve by trading are irrelevant to its description. Consequently, the fact that the trading activities are conducted in the public interest or for a public purpose will not necessarily exclude the categorisation of those activities as “trade”. (6) Whether the trading activities of an incorporated body are sufficient to justify its categorisations as a “trading corporation” is a question of fact and degree. (7) The current activities of the corporation, while an important criterion for determining its characterisation, are not the only criterion. Regard must also be had to the intended purpose of the corporation, although a corporation that carries on trading activities can be found to be a trading corporation even if it was not originally established to trade.

(8) The commercial nature of an activity is an element in deciding whether the activity is in trade or trading. [5-970.70.25] Financial corporations In State Superannuation Board (Vic) v Trade Practices Commission (1982) 150 CLR 282; 44 ALR 1; 57 ALJR 89; BC8200133 it was accepted that the approach to the characterisation of a financial corporation should be the same as the approach to the characterisation of a trading corporation at 302. The majority also stated at 305 that the words “financial corporation” are not a term of art; nor do they have a special or settled legal meaning. They do no more than describe a corporation which engages in financial activities or perhaps is intended so to do. [5-970.70.30] Examples Port authorities In Maritime Union of Australia v Burnie Port Corp Pty Ltd (2000) 101 IR 435; [2000] FCA 1189; BC200004923, the Federal Court held at [38] that the respondent, formed under the Port Companies Act 1997 (Tas) was a constitutional corporation for the purposes of the Act in that case a trading corporation. [page 66] Universities A Full Court of the Federal Court in Quickenden v O’Connor (2001) 109 FCR 243; 184 ALR 260; [2001] FCA 303; BC200101151 at [47] and [101], held that a body corporate engaging in substantial or significant trading activities, notwithstanding that trading is not its primary purpose, was a trading corporation for the purposes of s 51(xx) of the Constitution and therefore a constitutional corporation. The court held that the same principles relevant to the characterisation of the corporation as a trading corporation were equally applicable to the characterisation as a financial corporation. In that case it held that the University of Western Australia was a financial trading corporation and also a trading corporation. In Re University of Wollongong (Academic Staff) Enterprise Agreement (1997) 74 IR 308 at 313–14, McIntyre VP, in the AIRC, certified an enterprise agreement because he held that the university, which was a party to the agreement, was a trading corporation. Registered organisations Rowe v Transport Workers’ Union of Australia (1998) 90 FCR 95; 160 ALR 66; BC9806874, was an application to strike out a statement of claim in which it was alleged that it did not disclose a cause of action. Cooper J held at 104 (FCR) that in the then state of the authorities it was not manifestly untenable that a registered organisation of employees and a registered state trade union were trading corporations for the purposes of s 51(xx) of the Constitution and therefore constitutional corporations to which the Workplace Relations Act applied. It was sufficient if the law in its legal and practical operation operated on or by reference to the business functions, activities and relationships of a constitutional corporation. Local government Local government councils have been held to be trading corporations: see the cases referred to in Burrows v Shire of Esperance (1998) 86 IR 75. See also Warroo Shire Council Employees’ Enterprise Agreement 2000, AIRC, Hodder C, 27 June 2000, Print S7187 and Eric Bell v Shire of Dalwallinu (2008) 176 IR 226; [2008] WAIRC 01269. Compare Mid Density Development Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579; (1992) 79 LGERA 30; (1993) ATPR (Digest) 46-100;

BC9203921, City of Mandurah v Hull (2000) 100 IR 406; [2000] WASCA 216; BC200004680 at [32]– [33]; Shire of Ravensthorpe v John Patrick Galea [2009] WAIRCom 1149 at [151]. It is not easy to reconcile these cases. In The Australian Workers’ Union of Employees, Queensland v Etheridge Shire Council (2008) 171 FCR 102; 250 ALR 485; [2008] FCA 1268; BC200807409 at [151], where Spender J held that the functions performed by that council lacked the essential quality of trade in that almost all of them ran at a loss and were directed to public benefit objectives within the shire. He stated that it was inconceivable that the framers of the Constitution and the parliament which enacted it intended that the Commonwealth should have power in respect of local government which is a creature of state government, having legislative and executive functions: at [22]. See generally Bryan Belling, Workchoices in Local Government, Abbott Tout Lawyers, 2006. Non profit organisations In E v Australian Red Cross Society (1991) 27 FCR 310; 99 ALR 601; ASC 56-029; BC9103001, Wilcox J held that trading activities did not include “gratuitous provision of a public welfare service, substantially at government expense”. This distinction was applied in Fowler v Syd-West Personnel Print, AIRC, McIntyre VP, 30 June 1998, Print Q2463. See also Kirinari Residential Services (Vic) and (NSW) Inc, AIRC O’Shea C, 13 June 1996, Print N2535 and the majority decision in Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) (2008) 252 ALR 136; 228 FLR 318; [2008] WASCA 254; BC200810885, Hardeman v Children’s Medical Research Institute (2007) 166 IR 196; [2007] NSWIRComm 189, Shields v Warringarri Aboriginal Corporation (2009) 202 IR 361; [2009] FWA 860, at [19]. However, that distinction may not always be easy to draw. In Bankstown Handicapped Children’s Centre Association Inc v Hillman (2010) 182 FCR 483; 265 ALR 23; [2010] FCAFC 11; BC201000810, the employer provided welfare and support services for people with [page 67] disabilities, children and young people, their families and carers. The New South Wales Department of Ageing, Disability and Home Care funded this. The Court held at [54] and [55] that: The Association undoubtedly provided services to the State and was remunerated for doing so. It is, in our opinion, a proper characterisation of the Association’s activities to describe them as selling those services to the State and, correspondingly, the State purchasing them. Indeed that was the language used in the header agreement which governed the contractual arrangements between the Association and DOCS. The provision of a given service under the header agreement resulted in an invoice from the Association to DOCS which it then paid. The prices at which the services were provided were negotiated between the parties having regard to the price at which others provide similar services. The Association employed personnel and acquired rental property to equip it for the task of providing those services. At least in its then manifestation (entailing its size, activities, property and personnel), its continued existence depended on its success in placing itself in a position in which it would continue to be remunerated by continuing to provide those services. All these matters appear to us to point to a relationship between the Association and DOCS as having been a commercial one involving trade in services. It is, of course, true that it is possible to characterise, as the Industrial Court did, the Association’s activities as the provision of public welfare services. However the fact that the acquisition of these services by DOCS was for this purpose does not appear to us to detract from the essentially commercial nature of the relationship.

Sporting organisations There is no reason why an incorporated club which is heavily engaged in trading activities should not be held to be such a corporation, despite the fact that its trading activities are related to its activities as a club and that it provides social functions, amenities and services for its members: Adamson v West Perth Football Club Inc (1979) 27 ALR 475; 39 FLR 199; (1979) ATPR 40-134. [5-970.70.35] Outline of definition The constitutional power of the Commonwealth described within s 51(xx) underpins much of the Fair Work Act and the Independent Contractors Act. That power was described presciently by Zines as the chief vehicle, apart from the financial powers, by which the Commonwealth would be able to regulate and control economic activity: Zines, The High Court and the Constitution, Fourth Edition 1997 at 99. It is tempting to seek a defining set of consistent principles from the authorities. It may be more appropriate to see the authorities as showing an expanding and evolving notion as to what is a corporation for the purposes of s 51(xx) of the Constitution: see Bankstown Handicapped Children’s Centre Association Inc v Hillman (2010) 182 FCR 483; 265 ALR 23; [2010] FCAFC 11; BC201000810 at [48]. Given the increasing role of corporations in our economy, it is unlikely that this expansion will be halted. *Editor’s note: Commentary prepared by John Trew QC and updated by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ constitutionally-covered business: see subsection 789FD(3). [def insrt Act 73 of 2013 s 3 and Sch 3 item 2, opn 1 Jan 2014]

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. [page 68] COMMENTARY TO CONSTITUTIONAL TRADE OR COMMERCE*

Territory ….

[5-970.73.01]

[5-970.73.01] Territory See s 2B of the Acts Interpretation Act 1901 for the defintion of Internal Territory and External Territory. See also [5-970.75.05].

Trade or commerce The words “trade” and “commerce” are commonly used words of the English language. [Nevertheless] the precise limits of what is or is not trade and commerce or what act is in or is not in trade or commerce cannot be definitively stated, either in general terms or for the purposes of any particular statutory provision in which the words appear. In marginal cases, the circumstances of the case must be considered and many factors must be taken into account: Plimer v Roberts (1997) 80 FCR 303 at 304; 150 ALR 235 at 238; [1997] FCA 1361; BC9706557 per Davies J. In Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; 92 ALR 193; [1990] HCA 17; BC9002935 at [603], the High Court held that the words “in trade or commerce” refer to “the central conception” of trade or commerce and not to the “immense field of activities” in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business. Similarly difficult to precisely delimit is the meaning of limitation of trade or commerce among the states. The words compel a distinction between trade and commerce with other countries, and among the States, on the one hand, and other forms of trade and commerce, on the other: Pape v Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23; BC200905831 per Heydon J in dissent at [436]. One of those forms is that of intrastate trade. Significant judicial discussion has taken place as to the dividing line between interstate and intrastate trade: see L Zines The High Court and the Constitution, Fourth Edition, Butterworths at 68–75. Cases such as Airlines of New South Wales Pty Ltd v New South Wales (No 2) (Airlines case (No 2) & Airlines of NSW case) (1965) 113 CLR 54; [1965] ALR 984; (1965) 38 ALJR 388; BC6500310 expressed the need to maintain this distinction. This rather narrow interpretation of interstate trade has been subject to criticism: see David Mccann, “First Head Revisited: A Single Industrial Relations System under the Trade and Commerce Power” [2004] SydLawRw 5; (2004) 26(1) Sydney Law Review 75. As Mccann has pointed out in that article, the High Court has given a broad meaning to the phrase in an industrial context. In Re Maritime Union of Australia; Ex parte CSL Shipping Inc (2003) 214 CLR 397; 200 ALR 39 at 48; [2003] HCA 43; BC200304324 at [36] the Court held that it is “well settled that, in the exercise of the trade and commerce power, the Parliament can validly regulate the conduct of persons employed in those activities which form part of trade and commerce with other countries and among the States. A ship journeying for reward is in commerce; those who co-operate in the journeying of the ship are in commerce and the wages of those persons and the conditions of their employment relate to that commerce”. This decision was not challenged in New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52; BC200609129 at [226]. In addition, the broad meaning given to the corporations power may have rendered academic much of this discussion. *Editor’s note: Commentary prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________ continental shelf means the continental shelf (as defined in the Seas and Submerged Lands Act 1973) of Australia (including its external Territories). COMMENTARY TO CONTINENTAL SHELF*

Derivation …. External Territories ….

[5-970.75.01] [5-970.75.05] [page 69]

Seas and Submerged Lands Act 1973 ….

[5-970.75.10]

[5-970.75.01] Derivation Section 4 Workplace Relations Act. [5-970.75.05] External Territories Section 17(pd) of the Acts Interpretation Act 1901 defines ‘External Territory’ to mean a Territory, not being an internal Territory, for the government of which as a Territory provision is made by any Act. Section 17(pe) in turn defines ‘Internal Territory’ to mean the Australian Capital Territory, the Jervis Bay Territory or the Northern Territory. External Territories can be acquired and relinquished: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Ame (2005) 222 CLR 439; 218 ALR 483; 79 ALJR 1309; [2005] HCA 36 at [28]. The Commonwealth Department of Territories lists the external territories as Christmas Island, Cocos (Keeling) Islands, Norfolk Island, Ashmore & Cartier Islands, Coral Sea Islands, Australian-Antarctic Territory, Heard Island and McDonald Islands: http://www.ag.gov.au/www/agd/agd.nsf/page/Territories_of_Australia accessed 12 February 2010. [5-970.75.10] Seas and Submerged Lands Act 1973 Section 12 of the Seas and Submerged Lands Act 1973 allows the Governor General to declare the limits of the whole or any part of the continental shelf of Australia. The validity of that legislation was upheld in New South Wales v Commonwealth (1975) 135 CLR 337; 8 ALR 1; [1975] HCA 58; BC7500073. Under s 12(1) the Minister may cause to be prepared and issued such charts as he or she thinks fit showing any matter relating to the limits of the continental shelf of Australia. Under s 13(2), such a chart is prima facie evidence of any matter shown on the chart relating to the limits of the continental shelf of Australia. *Editor’s note: Commentary on continental shelf prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________ continuous service has a meaning affected by section 22. copied State award: see subsection 768AI(1). [def insrt Act 175 of 2012 s 3 and Sch 1 item 7, opn 5 Dec 2012]

copied State collective employment agreement: see subsection 768AK(4). [def insrt Act 175 of 2012 s 3 and Sch 1 item 8, opn 5 Dec 2012]

copied State employment agreement: see subsection 768AK(1). [def insrt Act 175 of 2012 s 3 and Sch 1 item 9, opn 5 Dec 2012]

copied State individual employment agreement: see subsection 768AK(5). [def insrt Act 175 of 2012 s 3 and Sch 1 item 10, opn 5 Dec 2012]

copied State instrument: see section 768AH. [def insrt Act 175 of 2012 s 3 and Sch 1 item 11, opn 5 Dec 2012]

corporate MySuper product: see subsection 23A(3). [def insrt Act 174 of 2012 s 3 and Sch 1 item 1, opn 1 Jan 2014]

coverage terms: (a) in relation to a modern award (other than a modern enterprise award): see section 143; and (b) in relation to a modern enterprise award: see section 143A; and (c) in relation to a State reference public sector modern award: see section 143B. [def subst Act 55 of 2009 s 3 and Sch 6, opn 1 Jan 2010; am Act 54 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

covers: (a) in relation to a modern award: see section 48; and (b) in relation to an enterprise agreement: see section 53; and [page 70] (c) in relation to a workplace determination: see section 277; and (d) in relation to a copied State instrument: see section 768AN. [def am Act 175 of 2012 s 3 and Sch 1 item 12, opn 5 Dec 2012]

day of placement: see subsection 67(6). de facto partner of a national system employee: (a) means a person who, although not legally married to the employee, lives with the employee in a relationship as a couple on a genuine domestic basis (whether the employee and the person are of the same sex or different sexes); and (b) includes a former de facto partner of the employee. default fund employee: see subsection 149C(2). [def insrt Act 171 of 2012 s 3 and Sch 4 item 1, opn 1 Jan 2013; am Act 73 of 2013 s 3 and Sch 6 item 1, opn 1 Jan 2014]

default fund term: see subsection 149C(2). [def insrt Act 174 of 2012 s 3 and Sch 1 item 2, opn 1 Jan 2014]

Default Superannuation List: see subsection 156B(1). [def insrt Act 174 of 2012 s 3 and Sch 1 item 3, opn 1 Jan 2014]

defined benefit member has the meaning given by the Superannuation

Guarantee (Administration) Act 1992. [def insrt Act 171 of 2012 s 3 and Sch 4 item 2, opn 1 Jan 2013]

Deputy President means a Deputy President of the FWC. [def am Act 174 of 2012 s 3 and Sch 9 item 9, opn 1 Jan 2013] COMMENTARY ON DEPUTY PRESIDENT*

FWC …. Deputy President …. Outline of section ….

[5-970.77.01] [5-970.77.05] [5-970.77.10]

[5-970.77.01] FWC See s 12. [5-970.77.05] Deputy President See s 12. [5-970.77.10] Outline of section Sections 33, 37, 155, 162, 368 require certain powers to only be exercised by the President, a Vice President or a Deputy President. *Editor’s note: Commentary on “Deputy President” prepared by Ian Latham BA(Hons)/LLB (ANU) Barrister.

____________________ designated emergency management body: see subsections 195A(4) and (5). [def insrt Act 62 of 2016 s 3 and Sch 1 item 1, opn 13 Oct 2016]

designated outworker term of a modern award, enterprise agreement, workplace determination or other instrument, means any of the following terms, so far as the term relates to outworkers in the textile, clothing or footwear industry: (a) a term that deals with the registration of an employer or outworker entity; (b) a term that deals with the making and retaining of, or access to, records about work to which outworker terms of a modern award apply; (c) a term imposing conditions under which an arrangement may be entered into by an employer or an outworker entity for the performance of work, where the work is of a kind that is often performed by outworkers;

[page 71] (d) a term relating to the liability of an employer or outworker entity for work undertaken by an outworker under such an arrangement, including a term which provides for the outworker to make a claim against an employer or outworker entity; (e) a term that requires minimum pay or other conditions, including the National Employment Standards, to be applied to an outworker who is not an employee; (f) any other terms prescribed by the regulations. designated outworker terms entry: see subsection 483A(5). directly, when used in relation to TCF work: see section 17A. [def insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

Disability Discrimination Commissioner means the Disability Discrimination Commissioner appointed under the Disability Discrimination Act 1992. [def insrt Act 54 of 2009 s 3 and Sch 5, opn 1 July 2009]

discriminatory term of an enterprise agreement: see section 195. dismissal remedy bargaining order application: see subsection 726(2). dismissed: see section 386. earnings: see subsections 332(1) and (2). eligible community service activity: see section 109. eligible State or Territory court means one of the following courts: (a) a District, County or Local Court; (b) a magistrates court; (c) the Industrial Relations Court of South Australia; (ca) the Industrial Court of New South Wales; (d) any other State or Territory court that is prescribed by the regulations. [def am Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010] COMMENTARY TO ELIGIBLE STATE OR TERRITORY COURT*

Derivation ….

[5-970.90.01]

Constitutional basis …. Any other state or territory court …. Industrial Court of New South Wales …. Industrial Relations Court of South Australia …. Magistrates court ….

[5-970.90.05] [5-970.90.07] [5-970.90.10] [5-970.90.15] [5-970.90.20]

[5-970.90.01] Derivation Section 4 of the Workplace Relations Act 1996. [5-970.90.05] Constitutional basis The Commonwealth has power to confer federal jurisdiction upon a state court: Western Newspapers Pty Ltd v Warren (1994) 56 IR 340 at 344–346; 1 IRCR 393 at 397– 400; Construction Forestry Mining and Energy Union v Warren (1999) 85 FCR 599 at 601; 90 IR 1 at 2–3; [1999] FCA 312; BC9901183. [5-970.90.07] Any other state or territory court The courts referred to in the FWA form an exhaustive list of appropriate forums in which an employee may choose to commence proceedings against current and former employers: Ervin v Smipat Pty Ltd t/as LJ Hooker Burleigh Heads [page 72] [2013] QCATA 153 at [29]. It is true that the FWA, in a list of State laws unaffected by it, refers to “claims for enforcement of employment contracts”, but in my respectful view that provision should be read strictly as a residuary clause preserving State jurisdiction over contracts of employment not governed by an FWA award. This is not an academic point; in practice, and despite the wide embrace of the FWA, such arrangements are not uncommon: McGarry v Coates [2013] QCATA 32 at [12]. [5-970.90.10] Industrial Court of New South Wales See ss 151 and 151A of the Industrial Relations Act 1996 (NSW). [5-970.90.15] Industrial Relations Court of South Australia See s 21 of the Fair Work Act 1994 (SA). [5-970.90.20] Magistrates court See s 12 which defines a magistrates court to mean (a) a court constituted by a police, stipendiary or special magistrate; or (b) a court constituted by an industrial magistrate. Note that this has removed the requirement for an industrial magistrate to also be a police, stipendiary or special magistrate. *Editor’s note: Commentary prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ employee is defined in the first Division of each Part (other than Part 11) in which the term appears. Note 1: The definition in the Part will define employee either as a national system employee or as having its ordinary meaning. However, there may be particular provisions in the Part where a different meaning for the term is specified.

Note 2: If the term has its ordinary meaning, see further subsections 15(1), 30E(1) and 30P(1). Note 3: See also Division 2 of Part 6-4A (TCF contract outworkers taken to be employees in certain circumstances). [def am Act 54 of 2009 s 3 and Sch 1, opn 25 June 2009; Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010; Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY TO EMPLOYEE*

Derivation …. National system employee …. Ordinary meaning …. Distinction with bailees …. Distinction with directors …. Distinction with independent contractor …. Distinction with minister of religion …. Distinction with officer of an industrial organisation …. Distinction with partnership …. Distinction with defence force members …. Distinction with volunteers …. Estoppel …. Illegality ….

[5-970.95.05] [5-970.95.10] [5-970.95.15] [5-970.95.20] [5-970.95.25] [5-970.95.30] [5-970.95.35] [5-970.95.40] [5-970.95.45] [5-970.95.47] [5-970.95.50] [5-970.95.55] [5-970.95.60]

[5-970.95.05] Derivation The definition is new. For a history of similar provisions see ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532; 284 ALR 489; [2011] FCA 1204; BC201108276 (25 October 2011), 17 ANZ Insurance Cases 61–922 at [24]. [5-970.95.10] National system employee See ss 12, 13, 30C and 30M. [page 73] [5-970.95.15] Ordinary meaning Generally speaking, the ordinary meanings of employer and employee encompass but are not limited to national system employers and national system employees: Explanatory Memorandum to the Fair Work Bill at [28]. As to the distinction with independent contractor see [8015.2.5]. [5-970.95.20] Distinction with bailees The distinction with bailees has arisen many times in relation to taxi-cab drivers. The distinction is not always easy to draw. As Hill J said in De Luxe Red & Yellow Cabs Co-Operative (Trading) Society Ltd v Commissioner of Taxation [DeLuxe] (1997) 97 ATC 4770; 36 ATR 600; [1997] FCA 840; BC9703891 at [611]. The usual question which arises in disputes of the present kind is whether the contractual relationship between two parties is one of employment or whether the person alleged to be an employee is in

truth an independent contractor. The case law has thrown up a variety of judicial approaches and it may fairly be said that consistency in approach is often lacking. See generally Voros v Dick [2013] FWCFB 9339 at [14]–[25]. The categories are distinct. As Hill J held in DeLuxe at [610]–[611]: If the sole contractual arrangement between a driver and an operator were for the use of the taxi (ie a contract of bailment) there could be no employer-employee relationship. The categories may not, however, be mutually exclusive. Hill J held in DeLuxe at [612] that: It would, in theory, be possible for there to be found to be a bailment of the vehicle to the drivers as well as a relationship of employment between the operators and the drivers … For an example where a taxi-cab driver was held to be an employee see D McDougal and C Lukazsewski v Castlemaine Taxis Pty Ltd — PR921199 [2002] AIRC 957 (12 August 2002). [5-970.95.25] Distinction with directors The relationship of director is distinct from that of employee. As Lord Carmont held in Anderson v James Sutherland [1941] SC 203 at 213: “A director is not a servant”. In Peate v Federal Commissioner of Taxation (1964) 111 CLR 443; [1965] ALR 352; (1964) 38 ALJR 164; BC6400470 at 480, Windeyer J noted that: It is not in legal theory impossible or incompatible for a person to be both governing director in sole control of a company and servant of that company or its agent to contract on its behalf, “always assuming”, said Lord Morris, “that the company was not a sham”… While a director may also be an employee: Bearings Inc (Australia) Pty Ltd v Treloar (1999) 95 IR 169 at [106], there is a distinction between the two. As the Full Bench held at [108] that: The mere fact that someone is a director of a company is no impediment to that person entering into a contract of service with the company. This dual role — director and employee — can occur even if the person concerned is the sole governing director with full control of the company, and acts as the company’s agent in arranging her or his own contract of service. These things are possible because the company is a separate legal entity, distinct from the corporators, officers and employees of the company. It has been held that there is no problem about the sole governing director exercising control, say by giving orders to herself or himself as employee; the orders given would be the orders of the company transmitted by the person concerned as the company’s agent to her or him as employee. In one of the few decisions that dealt with the distinction between directors and employees, the English Employment Appeal Tribunal in Eaton v Robert Eaton Ltd [1988] ICR 202 at 304 C-F [page 74] stated that generally speaking a director is the holder of an office and is not in employment. Evidence is required to establish that the director is employed by a company. Indicators of employment may include: Descriptive terms such as managing director or technical director;

Agreement to employ; Whether remuneration is by way of salary; Whether payment is in advance Whether payment is by way of entitlement Whether the person was subject to control. See also Folami v Nigerline (UK) Ltd [1978] ICR 277 at 280C–E to similar effect. In the latter case, the court went slightly further and held that the appointment of a person as managing director along with the payment of a salary would lead to a presumption that the person was an employee. [5-970.95.30] Distinction with independent contractor As to the distinction with independent contractor see [8015.2.5]. [5-970.95.35] Distinction with minister of religion The position of a minister of religion depends upon the circumstances of the case, which may vary depending upon the church concerned: see Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; 187 ALR 92; [2002] HCA 8; BC200200663. Ultimately the clergyman in that case was held to be an employee: see Greek Orthodox Community of SA Inc v Ermogenous (2002) 223 LSJS 459; [2002] SASC 384; BC200207271. On the other hand an Anglican priest was held not to be an employee in Knowles v Anglican Property Trust, Diocese of Bathurst [1999] NSWIRComm 157 and Percy v Board of National Mission of Church of Scotland [2006] 2 AC 28; [2006] 4 ALL ER 1354; [2006] 2 WLR 353; [2005] UKHL 73 (Percy). [5-970.95.40] Distinction with officer of an industrial organisation “Officer” is the holder of an “office” and “office” is a concept not equivalent to employment: Wool Selling Brokers Officers Association of Australia v Employees Association of Wool Selling Brokers (1950) 67 CAR 224 at 226– 7. While not equivalent, the concepts are not mutually exclusive. As Schmidt J held in Edwards v Transport Workers Union of Australia (1995) 60 IR 466; [1995] NSWIRC 140; NSWIRComm 287 (Edwards) at 469: The holding of an office at the same time as the existence of a contract of employment is a situation not unknown to the law. This position is encountered in the public sector and also in the case of company directorships. The holding of such an office does not necessarily lead to the conclusion that an employment relationship also exists, nor however does it preclude that result. Whether the applicant in Edwards was an employee as well as an official was found to depend, firstly, on the rules of the respondent union and, secondly, on the conduct of the parties: Edwards at 470. The rules of an organisation may provide for a person to be employed as well as be an officer. In Roughan v Coulson (1982) 3 IR 393, the rules of the union provided that an elected organiser was both a member of the committee of management and an employee of the union. The court held at [397] that: if he were employed as an organiser, his duties would be regulated by his contract of employment and failure to perform satisfactorily as an organiser resulting in dismissal for breach of contract, would not affect his position as president for which office he was elevated… [page 75] The answer to the question of whether the applicant was an employee as well as an official must

depend, firstly, on the rules of the respondent union and, secondly, on the conduct of the parties: Edwards. In Mylan v Health Services Union NSW [2013] FCA 190; BC201300959, Buchanan J dealt with an argument that orders vacating an office had the effect of frustrating any accompanying employment. He held at [26]: I have no doubt that any employment which Mr Mylan may have held with the union was coextensive with holding office in the union and depended upon that circumstance. When he ceased to hold office in the union by operation of the union rules, the position was no different than if he had been displaced at an election. The circumstances upon which any employment depended no longer existed. Any employment was at an end without any necessity for action by the union. [5-970.95.45] Distinction with partnership As to the distinction between partner and employee see Twohill v Mental as Anything Touring Pty Ltd [2008] NSWIRComm 17 at [18]–[20]. It has generally been accepted that, while the existence of a partnership may be a strong contrary indication to the existence of a contract of employment…, it is not conclusive: Zurich Australian Insurance Ltd v Amec Services Pty Ltd [1998] WASCA 68. In Re Porter; Transport Workers’ Union of Australia [1989] FCA 226; (1989) 34 IR 179, Gray J held at [34]: It is established that the existence of a partnership is not necessarily inconsistent with the existence of an employment relationship between one of the partners as employee and another person … In particular, it will not be so inconsistent if the main purpose of the establishment of the partnership appears to be the securing of an advantageous position with respect to income tax. [5-970.95.47] Distinction with defence force members The Full Federal Court summarised the authorities in C v Commonwealth of Australia (2015) 234 FCR 81; 252 IR 471; [2015] FCAFC 113; BC201508033: [22] The legal history relating to the relationship between servicemen and women and the Crown can be traced back over many centuries: see China Navigation Company Limited v Attorney-General [1932] All ER Rep 626; [1932] 2 KB 197 at 214–6, 225–9, 242–3; (1932) 48 TLR 375. The authorities reviewed in this case establish that, at least since the reign of Charles II, the government and command of military forces had been vested in the Crown by prerogative right at common law and by statute. This meant, among other things that, as Lord Esher MR said in Mitchell v R [1896] 1 QB 121 at 123: [a service officer] cannot as between himself and the Crown take proceedings in the courts of law in respect of anything which has happened between him and the Crown in consequence of his being a soldier. The courts of law have nothing whatever to do with such a matter. [23] Soldiers served at the pleasure of the Crown and could have their services terminated with or without cause: Kaye v Attorney-General (Tas) (1956) 94 CLR 193 at 203; [1956] ALR 295; 30 ALJR 111; BC5600100. [24] Another implication of the common law position was that “neither commission nor enlistment in the services does or can amount to a contract with the Crown”: Commonwealth v Welsh (1947) 74 CLR 245 at 268; [1947] ALR 215; (1947) 21 ALJR 75; BC4700130, (Dixon J).

[page 76] The Court went on to conclude at [54] that: Under present arrangements, members of the Defence Force are not, by reason of their enlistment, party to any contract of service. They are not employees of the Commonwealth. [5-970.95.50] Distinction with volunteers As Macken J of the former New South Wales Industrial Commission has held in Bradley v Bradley (1978) AR (NSW) 94 at 97–8: … Work may be performed by one person for another for reasons which are fundamentally social, political, religious or out of filial duty or compassion … The law has long-recognised the existence of such contracts or arrangements and has steadfastly set its face against intruding itself into such areas unless there is an intention between the parties entering into such arrangements to make a legally enforceable bargain. A son may clean the family car, or mow the lawn of the family house, for a remuneration paid by the parents … Yet such an arrangement … lacks a fundamental dimension of any contract in that it is not entered into with the intention that a legally enforceable obligation should result from the formation of the arrangement… In Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197; 87 IR 308; BC9504248, a volunteer who worked on a Christian camping facility was held not to be an employee under the Workers Compensation Act. This conclusion was reached on the basis that neither of the parties had any intention to enter into legal relations. Accordingly there was no contract of employment between the parties. A better analysis may be that there was an intention to create legal relations but not to provide work as an employee. An example of this approach is that of Edmonds v Lawson [2000] QB 501; 2 WLR 1091; ICR 567; s EWCA Civ 69, where a barrister was found to have a contract with her Chambers but where that contract was not found to be one of employment. [5-970.95.55] Estoppel In Williams v MacMahon Mining Services Pty Ltd (2009) 231 FLR 59; 182 IR 104; [2009] FMCA 511; BC200904574 at [71], Lucev FM rejected a claim that an employee was estopped from denying that he was a casual employee. He held that: Macmahon Mining say that Mr Williams is estopped from denying that he agreed to being employed on the terms set out in the Contract of Employment and that his claim should not be allowed for that reason. Payne v Howison, an unreported decision of the Industrial Relations Commission of New South Wales in Court Session, is cited in support of that proposition. There are however more recent judgments of the Federal Court in relation to estoppel as it apply to statutory obligations and statutory guarantees of employee entitlements. Those judgments are binding on this court. Those judgments make it clear that: a) parties cannot contract out of a statutory obligation or statutory guarantee, other than to confer additional benefits; and b) an estoppel cannot defeat a statutory obligation or statutory guarantee. [5-970.95.60] Illegality In Smallwood v Ergo Asia Pty Ltd [2014] FWC 964, Cmr Bissett dealt with the question as to whether a contract of employment was invalid and unenforceable given its inconsistency with the Migration Act 1958 (Cth). The facts were that the contract involved a s 457 visa holder being employed by an employer who was not the sponsor of the s 457 visa holder. At [77]–[78], she found that it the contract was impliedly prohibited and thus invalid and unenforceable. It seems, at least impliedly, that the applicant was therefore seen to be not a party to a contract of employment and therefore not an employee.

*Editor’s note: Commentary prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________ employee A, in relation to a transfer of business referred to in Part 6-3A: see subsections 768BD(1) and 768BG(1). [def insrt Act 175 of 2012 s 3 and Sch 1 item 13, opn 5 Dec 2012]

[page 77] employee claim action: see section 409 and paragraph 471(4A)(c). employee couple: 2 national system employees are an employee couple if each of the employees is the spouse or de facto partner of the other. employee organisation means an organisation of employees. employee record, in relation to an employee, means: (a) something that is an employee record, in relation to the employee, for the purposes of the Privacy Act 1988; or (b) in the case of a TCF contract outworker who is taken to be an employee by Division 2 of Part 6-4A of this Act — something that would be an employee record, in relation to the outworker, for the purposes of the Privacy Act 1988, if the outworker were an employee for the purposes of that Act. [def subst Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

employee response action: see section 410 and paragraph 471(4A)(d). employee with a disability means a national system employee who is qualified for a disability support pension as set out in section 94 or 95 of the Social Security Act 1991, or who would be so qualified but for paragraph 94(1)(e) or 95(1)(c) of that Act. employer is defined in the first Division of each Part (other than Part 11) in which the term appears. Note 1: The definition in the Part will define employer either as a national system employer or as having its ordinary meaning. However, there may be particular provisions in the Part where a different meaning for the term is specified. Note 2: If the term has its ordinary meaning, see further subsections 15(2), 30E(2) and 30P(2). Note 3: See also Division 2 of Part 6-4A (TCF contract outworkers taken to be employees in certain circumstances).

[def am Act 54 of 2009 s 3 and Sch 1, opn 25 June 2009; Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010; Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

employer MySuper product: see subsection 23A(1B). [def insrt Act 174 of 2012 s 3 and Sch 1 item 3A, opn 1 Jan 2014]

employer organisation means an organisation of employers. employer response action: see section 411. employing authority: see subsection 795(6). engages in industrial activity: see section 347. enterprise means a business, activity, project or undertaking. enterprise agreement means: (a) a single-enterprise agreement; or (b) a multi-enterprise agreement. COMMENTARY TO ENTERPRISE AGREEMENT*

Derivation …. Multi-enterprise agreement ….

[5-970.97.05] [5-970.97.10] [page 78]

Single-enterprise agreement …. Outline of definition ….

[5-970.97.15] [5-970.97.20]

[5-970.97.05] Derivation The definition is new. [5-970.97.10] Multi-enterprise agreement See ss 12 and 172(3). [5-970.97.15] Single-enterprise agreement See ss 12 and 172(2). [5-970.97.20] Outline of definition The Explanatory Memorandum to the Fair Work Bill 2009 states at [133] that under the Bill there will be no distinction between union and non-union agreements. The Bill will provide for the creation of a single stream of collective, enterprise agreements that are to be made between an employer or employers and employees. As to the interpretation of enterprise agreements see Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472; BC201210254 at [16]–[20] (21 December 2012). See also Ian Latham, Interpreting the Fair Work Act: Some principles (2010) 1 WR 1, Philip Boncardo, “Enterprise Agreements and Contracts: Convergent and Divergent Approaches To Interpretation” (2011) 18 JCULR 56. *Editor’s note: Commentary on enterprise agreement prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________ entry notice: see subsection 487(2). entry permit: see section 512. equal remuneration for work of equal or comparable value: see subsection 302(2). equal remuneration order: see subsection 302(1). exclusive economic zone means the exclusive economic zone (as defined in the Seas and Submerged Lands Act 1973) of Australia (including its external Territories). exemption certificate: see subsection 519(1). exempt public sector superannuation scheme has the meaning given by the Superannuation Industry (Supervision) Act 1993. [def insrt Act 171 of 2012 s 3 and Sch 4 item 3, opn 1 Jan 2013]

Expert Panel means an Expert Panel constituted under section 620. [def insrt Act 174 of 2012 s 3 and Sch 2 item 1, opn 1 July 2013]

Expert Panel Member means an Expert Panel Member of the FWC. [def insrt Act 174 of 2012 s 3 and Sch 2 item 2, opn 1 July 2013]

extended notice of termination provisions: see subsection 759(3). extended parental leave provisions: see subsection 744(3). Fair Work Australia or FWA [def rep Act 174 of 2012 s 3 and Sch 9 item 10, opn 1 Jan 2013]

Fair Work Commission or FWC means the body continued in existence by section 575. [def insrt Act 174 of 2012 s 3 and Sch 9 item 11, opn 1 Jan 2013]

Fair Work Information Statement: see subsection 124(1). [page 79] Fair Work Inspector means: (a) a person appointed as a Fair Work Inspector under section 700; or

(b) the Fair Work Ombudsman in his or her capacity as a Fair Work Inspector under section 701. fair work instrument means: (a) a modern award; or (b) an enterprise agreement; or (c) a workplace determination; or (d) an FWC order. [def am Act 174 of 2012 s 3 and Sch 9 item 12, opn 1 Jan 2013]

Federal Circuit Court means the Federal Circuit Court of Australia. [def insrt Act 13 of 2013 s 3 and Sch 1 item 234, opn 12 Apr 2013]

Federal Court means the Federal Court of Australia. first employer, in relation to a transfer of employment: see subsection 22(7). first stage criteria: see section 156F. [def insrt Act 174 of 2012 s 3 and Sch 1 item 4, opn 1 Jan 2014]

first stage test: see section 156Q. [def insrt Act 174 of 2012 s 3 and Sch 1 item 4A, opn 1 Jan 2014]

fixed platform means an artificial island, installation or structure permanently attached to the sea-bed for the purpose of exploration for, or exploitation of, resources or for other economic purposes. flexibility term: (a) in relation to a modern award — see subsection 144(1); and (b) in relation to an enterprise agreement — see subsection 202(1). flight crew officer means a person who performs (whether with or without other duties) duties as a pilot, navigator or flight engineer of aircraft, and includes a person being trained for the performance of such duties. franchise has the meaning given by the Corporations Act 2001. Full Bench means a Full Bench of the FWC constituted under section 618. [def am Act 174 of 2012 s 3 and Sch 9 item 13, opn 1 Jan 2013]

full rate of pay: see section 18.

FWA [def rep Act 174 of 2012 s 3 and Sch 9 item 14, opn 1 Jan 2013]

FWC: see Fair Work Commission. [def insrt Act 174 of 2012 s 3 and Sch 9 item 15, opn 1 Jan 2013]

FWC member [def rep Act 31 of 2014 s 3 and Sch 1 item 25, opn 24 June 2014]

FWC Member means the President, a Vice President, a Deputy President, a Commissioner or an Expert Panel Member. [def insrt Act 31 of 2014 s 3 and Sch 1 item 26, opn 24 June 2014]

General Manager means the General Manager of the FWC. [def am Act 174 of 2012 s 3 and Sch 9 item 16, opn 1 Jan 2013]

[page 80] general protections court application: see subsection 368(4). [def am Act 73 of 2013 s 3 and Sch 4A item 1, opn 1 Jan 2014]

general protections FWA application [def rep Act 174 of 2012 s 3 and Sch 9 item 17, opn 1 Jan 2013]

general protections FWC application: see subsection 727(2). [def insrt Act 174 of 2012 s 3 and Sch 9 item 18, opn 1 Jan 2013]

general State industrial law: see subsection 26(3). genuinely agreed in relation to an enterprise agreement: see section 188. genuine redundancy: see section 389. good faith bargaining requirements: see section 228. greenfields agreement: see subsection 172(4). guaranteed period for a guarantee of annual earnings: see section 331. guarantee of annual earnings: see subsection 330(1). handle a complaint about an FWC Member means do one or more of the following acts relating to the complaint: (a) consider the complaint; (b) investigate the complaint;

(c) (d) (e) (f)

report on an investigation of the complaint; deal with a report of an investigation of the complaint; dispose of the complaint; refer the complaint to a person or body.

[def insrt Act 174 of 2012 s 3 and Sch 8 item 59, opn 1 Jan 2013]

high income employee: see section 329. high income threshold: see section 333. ILO means the International Labour Organization. immediate family of a national system employee means: (a) a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or (b) a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee. independent advisor for a protected action ballot means the person (if any) specified in the protected action ballot order as the independent advisor for the ballot. independent contractor is not confined to an individual. COMMENTARY TO INDEPENDENT CONTRACTOR*

Independent contractor …. Derivation …. Independent contractor …. Individual ….

[5-970.100.05] [5-970.100.10] [5-970.100.15] [5-970.100.20]

[5-970.100.05] Independent contractor Is not confined to an individual. [page 81] [5-970.100.10] Derivation Section 4 of the Independent Contractors Act 2006. [5-970.100.15] Independent contractor See [8015.2.5]. [5-970.100.20] Individual See Acts Interpretation Act 1901 s 2B. *Editor’s note: Commentary prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

indirectly, when used in relation to TCF work: see section 17A. [def insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

indirectly responsible entity, in relation to TCF work performed by a TCF outworker: see subsections 789CA(3), (4) and (5). [def insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

individual flexibility arrangement: (a) in relation to a modern award — see subsection 144(1); and (b) in relation to an enterprise agreement — see paragraph 202(1) (a). industrial action: see section 19. industrial action related workplace determination: see subsection 266(1). industrial association means: (a) an association of employees or independent contractors, or both, or an association of employers, that is registered or recognised as such an association (however described) under a workplace law; or (b) an association of employees, or independent contractors, or both (whether formed formally or informally), a purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors (as the case may be); or (c) an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment and/or independent contractors; and includes: (d) a branch of such an association; and (e) an organisation; and (f) a branch of an organisation. industrial body means: (a) the FWC; or (b) a court or commission (however described) performing or exercising, under an industrial law, functions and powers

corresponding to those conferred on the FWC by this Act; or (c) a court or commission (however described) performing or exercising, under a workplace law, functions and powers corresponding to those conferred on the FWC by the Registered Organisations Act. [def am Act 55 of 2009 s 3 and Sch 22, opn 1 July 2009; Act 175 of 2012 s 3 and Sch 1 item 16, opn 5 Dec 2012; Act 174 of 2012 s 3 and Sch 9 item 19, opn 1 Jan 2013]

industrial law means: (a) this Act; or (b) the Registered Organisations Act; or [page 82] (c) a law of the Commonwealth, however designated, that regulates the relationships between employers and employees; or (d) a State or Territory industrial law. [def am Act 55 of 2009 s 3 and Sch 22, opn 1 July 2009; Act 175 of 2012 s 3 and Sch 1 item 17, opn 5 Dec 2012] COMMENTARY TO INDUSTRIAL LAW*

Derivation Workplace Relations Act …. This Act …. Regulates the relationships …. State or Territory industrial law ….

[5-970.101.01] [5-970.101.05] [5-970.101.10] [5-970.101.15]

[5-970.101.01] Derivation Workplace Relations Act s 779. [5-970.101.05] This Act See s 12. [5-970.101.10] Regulates the relationships The Occupational Health and Safety Act 1985 (Vic) … regulates the relationship between employers and employees by imposing duties on employers to maintain a working environment that is in a safe condition and without health risks: Dowling v Fairfax Media Publications Pty Ltd (ACN 003 357 720) (Formerly John Fairfax Publications Pty Ltd) (2008) 172 FCR 96; 176 IR 346; [2008] FCA 1470; BC200808632 at [30]. The Workplace Relations Act is an “industrial law” for the purposes of s 513(1)(d) of the Act: Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Builders’ Labourers’ Divisional Branch [2014] FWCD 2437 at [62]. The Building and Construction Industry Improvement Act 2005 is an industrial law for the purposes of s 513(1)(d) of the Act: Construction, Forestry, Mining and Energy Union-Construction and General

Division, Queensland Builders’ Labourers’ Divisional Branch [2014] FWCD 2437 at [78]. [5-970.101.15] State or Territory industrial law See s 12. * Commentary on industrial law prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ industry-specific redundancy scheme means redundancy or termination payment arrangements in a modern award that are described in the award as an industry-specific redundancy scheme. inspector means a Fair Work Inspector. interim application period: see paragraph 156N(2)(b). [def insrt Act 174 of 2012 s 3 and Sch 1 item 5, opn 1 Jan 2014]

involved in: see section 550. irregularity, in relation to the conduct of a protected action ballot: see subsection 458(6). junior employee means a national system employee who is under 21. jury service pay: see subsection 111(6). jury service summons: see subsection 111(7). keeping in touch day: see subsections 79A(2) and (3). [def insrt Act 109 of 2012 s 3 and Sch 2, opn 23 July 2012]

[page 83] law enforcement officer has the same meaning as in subsection 30K(1). [def insrt Act 175 of 2012 s 3 and Sch 1 item 18, opn 5 Dec 2012]

lawyer means a person who is admitted to the legal profession by a Supreme Court of a State or Territory. local government employee has the same meaning as in subsection 30K(1). [def insrt Act 175 of 2012 s 3 and Sch 1 item 18A, opn 5 Dec 2012]

local government employer has the same meaning as in subsection 30K(1). [def insrt Act 175 of 2012 s 3 and Sch 1 item 18B, opn 5 Dec 2012]

lock out: see subsection 19(3). long term casual employee: a national system employee of a national system employer is a long term casual employee at a particular time if, at that time: (a) the employee is a casual employee; and (b) the employee has been employed by the employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months. COMMENTARY TO LONG TERM CASUAL EMPLOYEE*

Casual employee …. National system employee …. National system employer …. Outline of definition ….

[5-970.105.05] [5-970.105.10] [5-970.105.15] [5-970.105.20]

[5-970.105.05] Casual employee See [5-1490.15]. [5-970.105.10] National system employee See ss 12, 13, 30C and 30M. [5-970.105.15] National system employer See ss 12, 14, 30D and 30N. [5-970.105.20] Outline of definition This very definition suggests that legislature did not intend the expression “casual employee” to call up the general law approach. If the criterion in (b) is satisfied then the employee would likely not be a “casual employee” under the general law approach but the definition presupposes that an employee who satisfies the criterion in (b) can still be a “casual employee” within the meaning of (a): Telum Civil (Qld) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434. Note also [7-4110.1]. *Editor’s note: Commentary prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ low-paid authorisation: see subsection 242(1). low-paid workplace determination means: (a) a consent low-paid workplace determination; or (b) a special low-paid workplace determination. made: (a) in relation to an enterprise agreement: see section 182; and (b) in relation to a variation of an enterprise agreement: see section 209.

[page 84] magistrates court means: (a) a court constituted by a police, stipendiary or special magistrate; or (b) a court constituted by an industrial magistrate; or (c) the Local Court of the Northern Territory. [def am Act 26 of 2016 s 3 and Sch 1 item 21, opn 1 May 2016]

majority support determination: see subsection 236(1). maritime employee means a person who is, or whose occupation is that of, a master as defined in subsection 14(1) of the Navigation Act 2012, a seafarer as so defined or a pilot as so defined. [def am Act 129 of 2012 s 3 and Sch 2 item 13, opn 1 July 2013]

medical certificate means a certificate signed by a medical practitioner. medical practitioner means a person registered, or licensed, as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners. membership action: see subsection 350(3). minimum employment period: see section 383. Minimum Wage Panel [def rep Act 174 of 2012 s 3 and Sch 2 item 4, opn 1 July 2013]

Minimum Wage Panel Member [def rep Act 174 of 2012 s 3 and Sch 2 item 5, opn 1 July 2013]

minimum wages objective: see subsection 284(1). miscellaneous modern award: see subsection 163(4). model consultation term: see subsection 205(3). model flexibility term: see subsection 202(5). modern award means a modern award made under Part 2-3.

modern award minimum wages: see subsection 284(3). modern award powers: see subsection 134(2). modern awards objective: see subsection 134(1). modern enterprise award: see subsection 168A(2). [def insrt Act 55 of 2009 s 3 and Sch 6, opn 1 Jan 2010]

modern enterprise awards objective: see subsection 168B(1). [def insrt Act 55 of 2009 s 3 and Sch 6, opn 1 Jan 2010]

modifications includes additions, omissions and substitutions. multi-enterprise agreement means an enterprise agreement made as referred to in subsection 172(3). MySuper product: see subsection 23A(1). [def subst Act 174 of 2012 s 3 and Sch 1 item 5A, opn 1 Jan 2014]

named employer award: see subsection 312(2). National Employment Standards: see subsection 61(3). [page 85] national minimum wage order means a national minimum wage order made in an annual wage review. national system employee: see section 13. Note 1: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State. Note 2: See also Division 2 of Part 6-4A (TCF contract outworkers taken to be employees in certain circumstances). [def am Act 54 of 2009 s 3 and Sch 1, opn 25 June 2009; Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010; Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

national system employer: see section 14. Note 1: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State. Note 2: See also Division 2 of Part 6-4A (TCF contract outworkers taken to be employees in certain circumstances). [def am Act 54 of 2009 s 3 and Sch 1, opn 25 June 2009; Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010; Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

new employer:

(a) in relation to a transfer of business referred to in Part 2-8 — see subsection 311(1); and (b) in relation to a transfer of business referred to in Part 6-3A — see subsection 768AD(1). [def subst Act 175 of 2012 s 3 and Sch 1 item 19, opn 5 Dec 2012]

nominal expiry date: (a) of an enterprise agreement approved under section 186, means the date specified in the agreement as its nominal expiry date; or (b) of an enterprise agreement approved under section 189 (which deals with agreements that do not pass the better off overall test): see subsection 189(4); or (c) of a workplace determination, means the date specified in the determination as its nominal expiry date; or (d) of a copied State employment agreement: see subsection 768AO(5). [def am Act 175 of 2012 s 3 and Sch 1 item 20, opn 5 Dec 2012]

non-excluded matters: see subsection 27(2). non-member record or document: see subsection 482(2A). non-monetary benefits: see subsection 332(3). non-national system employee means an employee who is not a national system employee. non-national system employer means an employer that is not a national system employer. non-transferring employee: (a) in relation to a transfer of business referred to in Part 2-8 — see subsection 314(2); and (b) in relation to a transfer of business referred to in Part 6-3A — see subsection 768BG(2). [def subst Act 175 of 2012 s 3 and Sch 1 item 21, opn 5 Dec 2012]

[page 86]

notification time for a proposed enterprise agreement: see subsection 173(2). notified negotiation period for a proposed single-enterprise agreement that is a greenfields agreement: see section 178B. [def insrt Act 156 of 2015 Sch 1 item 21, opn 27 Nov 2015]

objectionable emergency management term of an enterprise agreement: see section 195A. [def insrt Act 62 of 2016 s 3 and Sch 1 item 1, opn 13 Oct 2016]

objectionable term means a term that: (a) requires, has the effect of requiring, or purports to require or have the effect of requiring; or (b) permits, has the effect of permitting, or purports to permit or have the effect of permitting; either of the following: (c) a contravention of Part 3-1 (which deals with general protections); (d) the payment of a bargaining services fee. occupier, of premises, includes a person in charge of the premises. COMMENTARY TO OCCUPIER*

Derivation …. History …. Occupier …. Person in charge …. Premises ….

[5-970.200.01] [5-970.200.05] [5-970.200.10] [5-970.200.15] [5-970.200.20]

[5-970.200.01] Derivation Section 4(1) of the Workplace Relations Act 1996. [5-970.200.05] History The definition of occupier was inserted in the Industrial Relations Act 1988 primarily in relation to the power of inspection to enter premises (see s 86(5)), although a cognate expression was used in the now repealed s 286, conferring power on trade union officials to enter premises to ensure the observance of an award. [5-970.200.10] Occupier It is not easy to give an accurate and exhaustive definition of the word “occupier”. Occupation includes possession as its primary element, but it also includes something more. Legal possession does not of itself constitute an occupation: R v Assessment Committee of St Pancras (1877) 2 QBD 581 at 588. There may be more than one occupier of premises: Darlaston v Parker (2010) 196 IR 307; [2010] FCA 771; BC201005179 (23 July 2010) at [93].

[5-970.200.15] Person in charge This extends the definition of occupier: Darlaston v Parker (2010) 196 IR 307; [2010] FCA 771; BC201005179 (23 July 2010) at [92]. A person who is in charge is able to decide who might or might not have access to premises. In some circumstances an officer of a company that occupies premises, whose duties include day to day control of the premises on behalf of the company, may properly be regarded as “a person in charge” of those premises: see Australasian Meat Industry Employees’ Union v Australian Food Corp Pty Ltd (2001) 111 IR 425; [2001] FCA 1709; BC200107640 at [61], [74] and [92]–[94]. [5-970.200.20] Premises See the definition in s 12. *Editor’s note: Commentary on “occupier” prepared by J L Trew QC LLB (Syd), Barrister updated by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ [page 87] office, in an industrial association, means: (a) an office of president, vice president, secretary or assistant secretary of the association; or (b) the office of a voting member of a collective body of the association, being a collective body that has power in relation to any of the following functions: (i) the management of the affairs of the association; (ii) the determination of policy for the association; (iii) the making, alteration or rescission of rules of the association; (iv) the enforcement of rules of the association, or the performance of functions in relation to the enforcement of such rules; or (c) an office the holder of which is, under the rules of the association, entitled to participate directly in any of the functions referred to in subparagraphs (b)(i) and (iv), other than an office the holder of which participates only in accordance with directions given by a collective body or another person for the purpose of implementing: (i) existing policy of the association; or

(ii) decisions concerning the association; or (d) an office the holder of which is, under the rules of the association, entitled to participate directly in any of the functions referred to in subparagraphs (b)(ii) and (iii); or (e) the office of a person holding (whether as trustee or otherwise) property: (i) of the association; or (ii) in which the association has a beneficial interest. Office of the Fair Work Ombudsman means the body established by section 696. officer, of an industrial association, means: (a) an official of the association; or (b) a delegate or other representative of the association. COMMENTARY TO OFFICER*

Derivation …. History …. Delegate or other representative …. Industrial association …. Official ….

[5-970.205.01] [5-970.205.05] [5-970.205.10] [5-970.205.15] [5-970.205.20]

[5-970.205.01] Derivation Section 779(1) of the Workplace Relations Act 1996. [5-970.205.05] History The definition at s 779(1) of the Workplace Relations Act 1996 was derived from the definition at s 298(1) of the pre-WorkChoices Workplace Relations Act. [5-970.205.10] Delegate or other representative An individual is not a ‘delegate or other representative’ of an organisation simply by reason of being a member of that organisation: Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131; [1999] FCA 1531; BC9907195 at [78]. [page 88] There is no definition of the term ‘delegate’ in the Act. Consequently the term must bear its ordi-nary meaning. In Cuevas v Freeman Motors Ltd (1975) 8 ALR 321; 25 FLR 67, Smithers and Evatt JJ said at 325: The expression ‘delegate’ in its ordinary meaning comprehends a person sent or deputed to act for or represent another or others…

In other words, the delegate is an agent of the union: Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251; [2001] FCA 1804; BC200108280 at [24]. [5-970.205.15] Industrial association See the definition in s 12. [5-970.205.20] Official See the definition in s 12. *Editor’s note: Commentary prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________ official, of an industrial association, means a person who holds an office in, or is an employee of, the association. COMMENTARY TO OFFICIAL*

Derivation …. Employee …. Industrial association …. Office …. Outline of Definition ….

[5-970.210.01] [5-970.210.05] [5-970.210.10] [5-970.210.15] [5-970.210.20]

[5-970.210.01] Derivation The definition is new. [5-970.210.05] Employee See s 11. [5-970.210.10] Industrial association See s 12. [5-970.210.15] Office See s 12. [5-970.210.20] Outline of Definition The Workplace Relations Act adopted an often uneasy distinction between the meaning of officer and employee. Section 779 gave the word officer an extended meaning that included employee. The use of the broader term “official” may be an attempt to resolve this difficulty. Note also the definition of official in s 793 that seems to include an agent. *Editor’s note: Commentary on official prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________ old employer, in relation to a transfer of business: see subsection 311(1). old State employer: see subsection 768AD(1). [def insrt Act 175 of 2012 s 3 and Sch 1 item 22, opn 5 Dec 2012]

ordinary hours of work of an award/agreement free employee: see section 20. organisation means an organisation registered under the Registered Organisations Act.

[def am Act 55 of 2009 s 3 and Sch 22, opn 1 July 2009; Act 175 of 2012 s 3 and Sch 1 item 23, opn 5 Dec 2012]

original State agreement, in relation to a copied State employment agreement: see paragraph 768AK(1)(a). [def insrt Act 175 of 2012 s 3 and Sch 1 item 24, opn 5 Dec 2012]

[page 89] original State award, in relation to a copied State award: see paragraph 768AI(1)(a). [def insrt Act 175 of 2012 s 3 and Sch 1 item 25, opn 5 Dec 2012]

outworker means: (a) an employee who, for the purpose of the business of his or her employer, performs work at residential premises or at other premises that would not conventionally be regarded as being business premises; or (b) an individual who, for the purpose of a contract for the provision of services, performs work: (i) in the textile, clothing or footwear industry; and (ii) at residential premises or at other premises that would not conventionally be regarded as being business premises. outworker entity means any of the following entities, other than in the entity’s capacity as a national system employer: (a) a constitutional corporation; (b) the Commonwealth; (c) a Commonwealth authority; (d) a body corporate incorporated in a Territory; (e) a person so far as: (i) the person arranges for work to be performed for the person (either directly or indirectly); and (ii) the work is of a kind that is often performed by outworkers; and

(iii) the arrangement is connected with a Territory. Note: Sections 30F and 30Q extend the meaning of outworker entity in relation to a referring State. [def am Act 54 of 2009 s 3 and Schs 1 and 3, opn 25 June 2009; Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

outworker terms: see subsection 140(3). paid agent, in relation to a matter before the FWC, means an agent (other than a bargaining representative) who charges or receives a fee to represent a person in the matter. [def am Act 174 of 2012 s 3 and Sch 9 item 22, opn 1 Jan 2013]

paid annual leave means paid annual leave to which a national system employee is entitled under section 87. paid no safe job leave means paid no safe job leave to which a national system employee is entitled under section 81A. [def am Act 73 of 2013 s 3 and Sch 1 item 23, opn 1 July 2013]

paid personal/carer’s leave means paid personal/carer’s leave to which a national system employee is entitled under section 96. paid work means work for financial gain or reward (whether as an employee, a self-employed person or otherwise). [def am Act 174 of 2012 s 3 and Sch 8 item 66, opn 1 Jan 2013]

partial work ban: see subsection 470(3). part of a single enterprise: see subsection 168A(6). [def insrt Act 55 of 2009 s 3 and Sch 6, opn 1 Jan 2010]

[page 90] passes the better off overall test: (a) in relation to an enterprise agreement that is not a greenfields agreement: see subsection 193(1); and (b) in relation to a greenfields agreement: see subsection 193(3). pattern bargaining: see section 412. peak council means a national or State council or federation that is effectively representative of a significant number of organisations (within the ordinary meaning of the term) representing employers or

employees in a range of industries. pecuniary penalty order means an order under subsection 546(1). penalty unit has the meaning given by section 4AA of the Crimes Act 1914. COMMENTARY TO PENALTY UNIT*

Derivation …. Amount of penalty unit ….

[5-970.230.01] [5-970.230.05]

[5-970.230.01] Derivation Section 4 of the Workplace Relations Act. [5-970.230.05] Amount of penalty unit Section 4AA of the Crimes Act 1914 defines the amount that a penalty unit represents to be $170. The Workplace Relations Amendment (Codifying Contempt Offences) Act 2004 (No 112 of 2004) replaced the monetary amounts of penalties appearing in the Act with penalty units. The amount of the penalties was also substantially increased. See Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; 246 ALR 35; [2008] FCAFC 8; BC200800758 at [14] for the details of the change in penalties for a body corporate since the commencement of the Industrial Relations Act 1988 in relation to contraventions of the requirement to pay amounts prescribed by an award. In addition, see Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 224 ALR 467; 147 IR 462; [2005] FCA 1847; BC200510901 at [72] for a discussion as to the effect of these increases upon sentencing. *Editor’s note: Commentary on Penalty unit provided by J L Trew QC LLB (Syd) updated by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ period of employment: see section 384. permissible occasion: see sections 102 and 104. permit holder means a person who holds an entry permit. permit qualification matters: see subsection 513(1). permitted matters in relation to an enterprise agreement: see subsection 172(1). pieceworker: see section 21. pilot, in relation to an aircraft, includes a pilot in command, co-pilot or pilot of any other description. post-declaration negotiating period: see subsection 269(2). post-industrial action negotiating period: see subsection 266(3).

[page 91] premises includes: (a) any land, building, structure, mine, mine working, aircraft, ship vessel, vehicle or place; and (b) a part of premises (including premises referred to in paragraph (a)). [def am Act 31 of 2014 s 3 and Sch 1 item 27, opn 24 June 2014] COMMENTARY TO PREMISES*

Derivation …. Ship …. Outline of definition ….

[5-970.230.05.05] [5-970.230.05.10] [5-970.230.05.15]

[5-970.230.05.05] Derivation Section 4 of the Workplace Relations Act. [5-970.230.05.10] Ship See s 12 and cl 1 of Sch 2. [5-970.230.05.15] Outline of definition [T]he word “premises” does not bear a precise meaning, but is a word which bears different meanings according to context: Molina v Zaknich (2001) 24 WAR 562; 125 A Crim R 401; [2001] WASCA 337; BC200106701 at [41]. This definition, expressed in inclusionary terms, is expansive: Kirby v JKC Australia LNG Pty Ltd (2015) 253 IR 382; [2015] FCA 1070; BC201509568 at [22]. While inclusionary, it is not unlimited in scope. As Jessup J held in Independent Education Union of Australia v Australian International Academy of Education Inc [2016] FCA 140; BC201601028 at [309]: It was submitted that the definition of “premises” in s 12 of the FW Act, whereby the term includes “any land, building, structure, mine, mine working, aircraft, ship, vessel, vehicle or place”, was a broad, inclusive one, and that “the different campuses of the school operated by the first respondent form part of the school’s premises”. I agree that the definition is an inclusive one, but I do not agree that the term, either in its ordinary meaning or as inclusively defined, would treat as a single premises two suburban locations about 1.5 km apart on separate landholdings. *Editor’s note: Commentary on Premises provided by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ pre-parental leave position: see subsection 83(2). prescribed State industrial authority means a State board, court, tribunal, body or official prescribed by the regulations. COMMENTARY TO PRESCRIBED STATE INDUSTRIAL AUTHORITY*

Prescribed State industrial authority …. Prescribed by the regulations …. Outline of definition ….

[5-970.235.05] [5-970.235.10] [5-970.235.15]

[5-970.235.05] Prescribed State industrial authority Means a State board, court, tribunal, body or official prescribed by the regulations. [5-970.235.10] Prescribed by the regulations See reg 1.06. [page 92] [5-970.235.15] Outline of definition The Explanatory Memorandum to the Fair Work Regulations at [8] notes that: This regulation provides that the Industrial Relations Commission of New South Wales, the Queensland Industrial Relations Commission, the Western Australian Industrial Relations Commission, the Industrial Relations Commission of South Australia and the Tasmanian Industrial Commission are prescribed State industrial authorities for the purposes of the Act. Section 631 of the Act provides for concurrent appointments to Fair Work Australia (FWA) and a prescribed State industrial authority. *Editor’s note: Commentary prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ President means the President of the FWC. [def am Act 174 of 2012 s 3 and Sch 9 item 23, opn 1 Jan 2013]

procedural rules means the procedural rules of the FWC made under section 609. [def am Act 174 of 2012 s 3 and Sch 9 item 24, opn 1 Jan 2013]

process or proceedings under a workplace law or workplace instrument: see subsection 341(2). prospective award covered employee for an enterprise agreement: see subsection 193(5). protected action ballot means a ballot conducted under Division 8 of Part 3-3. protected action ballot agent for a protected action ballot means the person that conducts the protected action ballot. protected action ballot order: see subsection 437(1). protected from unfair dismissal: see section 382.

protected industrial action: see section 408. public holiday: see section 115. public sector employment: see subsections 795(4) and (5). public sector employment law: see subsection 40(3). recognised emergency management body: see subsection 109(3). reduction in take-home pay: see subsection 768BR(3). [def insrt Act 175 of 2012 s 3 and Sch 1 item 26, opn 5 Dec 2012]

re-employment time, in relation to a transferring employee covered by a transfer of business referred to in Part 6-3A: see subsection 768AE(3). [def insrt Act 175 of 2012 s 3 and Sch 1 item 27, opn 5 Dec 2012]

registered employee association means: (a) an employee organisation; or (b) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under a State or Territory industrial law. COMMENTARY TO REGISTERED EMPLOYEE ASSOCIATION*

Derivation ….

[5-970.237.01] [page 93]

Employee organisation …. Employees …. Independent contractors …. State or Territory industrial law ….

[5-970.237.05] [5-970.237.10] [5-970.237.15] [5-970.237.20]

[5-970.237.01] Derivation The definition is loosely derived from the definition of Trade Union in s 4 of the Workplace Relations Act 1996. [5-970.237.05] Employee organisation See s 12. [5-970.237.10] Employees See s 12. [5-970.237.15] Independent contractors See s 12, [8015.2.5]. [5-970.237.20] State or Territory industrial law See ss 12 and 26(2). *Editor’s note: Commentary prepared by Ian Latham BA(Hons)/ LLB (ANU), Barrister.

____________________ Registered Organisations Act means the Fair Work (Registered Organisations) Act 2009. [def insrt Act 175 of 2012 s 3 and Sch 1 item 28, opn 5 Dec 2012]

reinstatement includes appointment by an associated entity in the circumstances provided for in an order to which subsection 391(1A) applies. related body corporate has the meaning given by the Corporations Act 2001. relevant belief: a person has a relevant belief in relation to a complaint about an FWC Member if: (a) the person believes that if one or more of the circumstances that gave rise to the complaint were substantiated, the circumstances would justify considering: (i) terminating the appointment of the FWC Member in accordance with section 641; or (ii) (other than if the FWC Member is the President) suspending the FWC Member from office in accordance with section 642; or (b) the person believes that if one or more of the circumstances that gave rise to the complaint were substantiated, the circumstances may: (i) adversely affect, or have adversely affected, the performance of duties by the FWC Member; or (ii) have the capacity to adversely affect, or have adversely affected, the reputation of the FWC. Note: Sections 641 and 642 deal with termination of appointment and suspension on the grounds of misbehaviour or incapacity. [def insrt Act 174 of 2012 s 3 and Sch 8 item 60, opn 1 Jan 2013]

relevant employee organisation, in relation to a greenfields agreement, means an employee organisation that is entitled to represent the industrial interests of one or more of the employees who will be covered by the agreement, in relation to work to be performed under the agreement.

[page 94] COMMENTARY TO RELEVANT EMPLOYEE ORGANISATION*

Covered by the agreement …. Employee …. Greenfields agreement …. Employee organisation …. Entitled to represent ….

[5-970.240.05] [5-970.240.10] [5-970.240.15] [5-970.240.20] [5-970.240.25]

[5-970.240.05] Covered by the agreement See ss 12 and 53. [5-970.240.10] Employee See s 11. [5-970.240.15] Greenfields agreement See ss 12 and 172. [5-970.240.20] Employee organisation See s 12. [5-970.240.25] Entitled to represent The phrase is long standing dating back to s 170MB of the Industrial Relations Act 1988. The Commission has dealt with that phrase on the basis that the entitlement to represent is defined by the eligibility rules of the applicant: see Transport Workers’ Union of Australia v Budget Rent A Car Operations Pty Ltd (2006) 148 IR 144 at [12]. Nevertheless as the Full Bench held in ResMed Limited [2014] FWCFB 2418 at [10]: The expression “entitled to represent the industrial interests of the employee” and similar expressions are used in a large number of provisions in the Act in relation to the rights of employee organisations. The Act does not expressly define when an employee organisation is entitled to represent the industrial interests of employees, but the parties’ submissions proceeded on the premise that such an entitlement only arises when the organisation’s eligibility rules permit it to enrol as members the relevant employees. That is the way the issue has been approached in a number of Federal Court decisions and accordingly for the purpose of this decision we will proceed on the same basis. Paragraph 690 of the Explanatory Memorandum to the Fair Work Act qualifies the definition somewhat: A demarcation order may provide that an employee organisation is not entitled to represent the industrial interests of a particular class or group of employees, despite those employees being eligible to be members of that employee organisation. *Editors’ note: Commentary to relevant employee organisation prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________ responsible person, in relation to TCF work performed by a TCF outworker: see subsection 789CA(1).

[def insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

risk period: see subsections 81(1) and (5). [def am Act 73 of 2013 s 3 and Sch 1 item 24, opn 1 July 2013]

safety net contractual entitlement means an entitlement under a contract between an employee and an employer that relates to any of the subject matters described in: (a) subsection 61(2) (which deals with the National Employment Standards); or (b) subsection 139(1) (which deals with modern awards). Schedule of Approved Employer MySuper Products: see paragraph 156L(1)(a). [def insrt Act 174 of 2012 s 3 and Sch 1 item 5B, opn 1 Jan 2014]

[page 95] school age, for a child, means the age at which the child is required by a law of the State or Territory in which the child lives to attend school. [def am Act 73 of 2013 s 3 and Sch 1 item 16, opn 1 July 2013]

school-based apprentice means a national system employee who is an apprentice to whom a school-based training arrangement applies. school-based trainee means a national system employee (other than a school-based apprentice) to whom a school-based training arrangement applies. school-based training arrangement means a training arrangement undertaken as part of a course of secondary education. scope order: see subsection 238(1). second employer, in relation to a transfer of employment: see subsection 22(7). second stage test: (a) in relation to a standard MySuper product — see subsection 156H(2); and (b) in relation to an employer MySuper product — see section 156S.

[def insrt Act 174 of 2012 s 3 and Sch 1 item 6, opn 1 Jan 2014]

serious breach declaration: see section 234. serious misconduct has the meaning prescribed by the regulations. service: see section 22. setting modern award minimum wages: see subsection 284(4). Sex Discrimination Commissioner means the Sex Discrimination Commissioner appointed under the Sex Discrimination Act 1984. ship includes a barge, lighter, hulk or other vessel. single enterprise: see section 168A. [def insrt Act 55 of 2009 s 3 and Sch 6, opn 1 Jan 2010]

single-enterprise agreement means an enterprise agreement made as referred to in subsection 172(2). single interest employer authorisation: see subsection 248(1). small business employer: see section 23. Small Business Fair Dismissal Code means the Small Business Fair Dismissal Code declared under subsection 388(1). special low-paid workplace determination: see subsection 260(4). spouse includes a former spouse. standard application period: see paragraph 156N(2)(a). [def insrt Act 174 of 2012 s 3 and Sch 1 item 6A, opn 1 Jan 2014]

standard MySuper product: see subsection 23A(1A). [def insrt Act 174 of 2012 s 3 and Sch 1 item 6B, opn 1 Jan 2014]

State award: see section 768AJ. [def insrt Act 175 of 2012 s 3 and Sch 1 item 29, opn 5 Dec 2012]

[page 96] State collective employment agreement: see subsection 768AL(3). [def insrt Act 175 of 2012 s 3 and Sch 1 item 30, opn 5 Dec 2012]

State employment agreement: see subsections 768AL(1) and (2). [def insrt Act 175 of 2012 s 3 and Sch 1 item 31, opn 5 Dec 2012]

State individual employment agreement: see subsection 768AL(4). [def insrt Act 175 of 2012 s 3 and Sch 1 item 32, opn 5 Dec 2012]

State industrial instrument means an award, an agreement (whether individual or collective), or another industrial instrument or order, that: (a) is made under, or recognised by, a law of a State that is a State or Territory industrial law; and (b) determines terms and conditions of employment. State industrial law means a law of a State that is a State or Territory industrial law. [def insrt Act 175 of 2012 s 3 and Sch 1 item 33, opn 5 Dec 2012]

state of mind: see subsection 793(3). State or Territory industrial law: see subsection 26(2). State or Territory OHS law: see subsection 494(3). State or Territory OHS right: see subsection 494(2). State public sector employee, of a State, means: (a) an employee of a State public sector employer of the State; or (b) any other non-national system employee in the State of a kind specified in the regulations; and includes a law enforcement officer of the State but does not include a local government employee of the State. [def insrt Act 175 of 2012 s 3 and Sch 1 item 34, opn 5 Dec 2012]

State public sector employer, of a State, means a non-national system employer that is: (a) the State, the Governor of the State or a Minister of the State; or (b) a body corporate that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or (c) a body corporate in which the State has a controlling interest; or (d) a person who employs individuals for the purposes of an unincorporated body that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or

(e) any other employer in the State of a kind specified in the regulations; and includes a non-national system employer of a law enforcement officer of the State but does not include a local government employer of the State. [def insrt Act 175 of 2012 s 3 and Sch 1 item 35, opn 5 Dec 2012]

State reference public sector employee: see subsection 168E(3). [def insrt Act 54 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

State reference public sector employer: see subsection 168E(4). [def insrt Act 54 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

State reference public sector modern award: see subsection 168E(2). [def insrt Act 54 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

[page 97] State reference public sector modern awards objective: see section 168F. [def insrt Act 54 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

step-child: without limiting who is a step-child of a person, someone who is a child of the person’s de facto partner is a step-child of a person, if he or she would be the person’s step-child except that the person is not legally married to the de facto partner. superannuation fund means a superannuation fund or a superannuation scheme. [def insrt Act 174 of 2012 s 3 and Sch 1 item 7, opn 1 Jan 2014]

tailored MySuper product: see subsection 23A(2). [def insrt Act 174 of 2012 s 3 and Sch 1 item 8, opn 1 Jan 2014]

take-home pay: see subsection 768BR(2). [def insrt Act 175 of 2012 s 3 and Sch 1 item 36, opn 5 Dec 2012]

take-home pay order: see subsection 768BS(1). [def insrt Act 175 of 2012 s 3 and Sch 1 item 37, opn 5 Dec 2012]

TCF award means an instrument prescribed by the regulations for the purposes of this definition.

TCF award worker: see subsection 483A(1A). [def insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

TCF contract outworker: see subsection 789BB(2). [def insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

TCF outwork code: see section 789DA. [def insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

TCF outworker means an outworker in the textile, clothing or footwear industry. [def am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

TCF work means work in the textile, clothing or footwear industry. [def insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

termination of industrial action instrument: see subsection 266(2). termination time, in relation to a transferring employee covered by a transfer of business referred to in Part 6-3A: see subsection 768AE(2). [def insrt Act 175 of 2012 s 3 and Sch 1 item 38, opn 5 Dec 2012]

territorial sea, in relation to Australia, has the meaning given by Division 1 of Part II of the Seas and Submerged Lands Act 1973. Territory employer: see subsection 338(4). test time: see subsection 193(6). this Act includes the regulations. trade and commerce employer: see subsection 338(3). training arrangement means a combination of work and training that is subject to a training agreement, or a training contract, that takes effect under a law of a State or Territory relating to the training of employees. [page 98] COMMENTARY TO TRAINING ARRANGEMENT*

Derivation …. Outline of section ….

[5-970.300.01] [5-970.300.05]

[5-970.300.01] Derivation The definition is similar to that set out ats 4 of the Workplace Relations Act

1996. [5-970.300.05] Outline of section The distinction between training and work is reflected in the definition of ‘training arrangement’: Construction, Forestry, Mining & Energy Union (Construction & General Division) v Master Builders Group Training Scheme Inc (2007) 168 IR 164; [2007] FCAFC 165; BC200709208 at [16]. See also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Excelior Pty Ltd (2012) 224 IR 99; [2012] FMCA 621; BC201205229 at [55] (18 July 2012); Rohrlach v Career Employment Group Inc [2012] SAIRComm 7 at [31] (29 May 2012); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638; BC201310626 at [57]. *Editor’s note: Commentary on Training Arrangement provided by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ transferable instrument: see subsection 312(1). transfer of business: (a) for a transfer of business between a national system employer and another national system employer — see subsection 311(1); and (b) for a transfer of business between a non-national system employer that is a State public sector employer and a national system employer — see subsection 768AD(1). [def subst Act 175 of 2012 s 3 and Sch 1 item 39, opn 5 Dec 2012]

transfer of employment: see subsection 22(7). transfer of employment between associated entities: see paragraph 22(8)(a). transfer of employment between non-associated entities: see paragraph 22(8)(b). transferring employee: (a) in relation to a transfer of business referred to in Part 2-8 — see subsection 311(2); and (b) in relation to a transfer of business referred to in Part 6-3A — see subsection 768AE(1). [def subst Act 175 of 2012 s 3 and Sch 1 item 40, opn 5 Dec 2012]

transferring work: (a) in relation to a transfer of business referred to in Part 2-8 — see

paragraph 311(1)(c); and (b) in relation to a transfer of business referred to in Part 6-3A — see paragraph 768AD(1)(c). [def subst Act 175 of 2012 s 3 and Sch 1 item 41, opn 5 Dec 2012]

Transitional Act means the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. [def insrt Act 175 of 2012 s 3 and Sch 1 item 42, opn 5 Dec 2012]

[page 99] transport arrangement: see subsections 521B(1) and (2). [def insrt Act 73 of 2013 s 3 and Sch 4 item 1, opn 1 Jan 2014]

unfair dismissal application: see subsection 729(2). unfairly dismissed: see section 385. unlawful term of an enterprise agreement: see section 194. unlawful termination court application: see subsection 776(4). [def am Act 73 of 2013 s 3 and Sch 4A item 13, opn 1 Jan 2014]

unlawful termination FWA application [def rep Act 174 of 2012 s 3 and Sch 9 item 25, opn 1 Jan 2013]

unlawful termination FWC application: see subsection 730(2). [def insrt Act 174 of 2012 s 3 and Sch 9 item 26, opn 1 Jan 2013]

unpaid amount, in relation to TCF work performed by a TCF outworker: see subsections 789CA(1) and (4). [def insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

unpaid carer’s leave means unpaid carer’s leave to which a national system employee is entitled under section 102. unpaid no safe job leave means unpaid no safe job leave to which a national system employee is entitled under section 82A. [def insrt Act 73 of 2013 s 3 and Sch 1 item 24, opn 1 July 2013]

unpaid parental leave means unpaid parental leave to which a national system employee is entitled under section 70. unpaid pre-adoption leave means unpaid pre-adoption leave to which a

national system employee is entitled under section 85. unpaid special maternity leave means unpaid special maternity leave to which a national system employee is entitled under section 80. varying modern award minimum wages: see subsection 284(4). Vice President means a Vice President of the FWC. [def insrt Act 174 of 2012 s 3 and Sch 8 item 17, opn 1 Jan 2013]

vocational placement means a placement that is: (a) undertaken with an employer for which a person is not entitled to be paid any remuneration; and (b) undertaken as a requirement of an education or training course; and (c) authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory. voluntary emergency management activity: see subsection 109(2). volunteer of a designated emergency management body: see subsection 195A(6). [def insrt Act 62 of 2016 s 3 and Sch 1 item 1, opn 13 Oct 2016]

waters above the continental shelf means any part of the area in, on or over the continental shelf. waterside worker has the meaning given by clause 1 of Schedule 2 to the Workplace Relations Act 1996 as in force immediately before the commencement of this section. [page 100] worker: (a) in Part 6-4B — see subsection 789FC(2); and (b) otherwise—has its ordinary meaning. [def insrt Act 73 of 2013 s 3 and Sch 3 item 2, opn 1 Jan 2014]

working day means a day that is not a Saturday, a Sunday or a public holiday. workplace determination means:

(a) a low-paid workplace determination; or (b) an industrial action related workplace determination; or (c) a bargaining related workplace determination. COMMENTARY TO WORKPLACE DETERMINATION*

Derivation …. Bargaining related workplace determination …. Industrial action related workplace determination …. Low-paid workplace determination ….

[5-970.325.01] [5-970.325.05] [5-970.325.10] [5-970.325.15]

[5-970.325.01] Derivation The section is new. [5-970.325.05] Bargaining related workplace determination See s 12 definition of “bargaining related workplace determination” and s 269(1). [5-970.325.10] Industrial action related workplace determination See s 12 and s 266(1). Once protected action is terminated, an arbitrated settlement will be imposed upon the parties, now by Fair Work Australia, then by the Australian Industrial Relations Commission. Section 267 of the Fair Work Act 2009 deals with the terms of an industrial action related workplace determination: Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union (2009) 187 IR 119; [2009] FWA 44 (3 August 2009) at [40]. [5-970.325.15] Low-paid workplace determination See s 12. Where the bargaining representatives for an agreement in the low-paid stream are genuinely unable to reach agreement on some or all of the issues arising in bargaining, FWA may in certain circumstances make a low-paid workplace determination. The availability of this special stream of bargaining for a multi-enterprise agreement recognises the particular difficulties facing low-paid employees. These difficulties are often particularly acute when the employees are trying to bargain collectively for the first time. The purpose of the lowpaid authorisation is to limit access to the stream, and to the additional benefits associated with it, to those employers and employees who meet the criteria in cl 243. See the Explanatory Memorandum to the Fair Work Bill 2009 at paragraphs 996–7. *Editor’s note: Commentary on Workplace Determination prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ workplace instrument means an instrument that: (a) is made under, or recognised by, a workplace law; and (b) concerns the relationships between employers and employees. COMMENTARY TO WORKPLACE INSTRUMENT*

Derivation …. Concerns the relationships between employers and

[5-970.330.01]

employees ….

[5-970.330.05] [page 101]

Workplace law …. Outline of definition ….

[5-970.330.10] [5-970.330.15]

[5-970.330.01] Derivation The definition is new. [5-970.330.05] Concerns the relationships between employers and employees The phrase is similar to the phrase “matters pertaining to the relations of employers and employees”. The cases emphasise that “matters pertaining” to the relations of employers and employees must pertain to the relation of employees as such and employers as such, that is, employees in their capacity as employees, and employers in their capacity as employers: Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; 209 ALR 116; [2004] HCA 40; BC200405590 (2 September 2004) at [60]. [5-970.330.10] Workplace law See s 12 definition of “workplace law”, below, and commentary at [5970.335.01]–[5-970.335.35]. [5-970.330.15] Outline of definition This definition is relevant to the protection in Part 3-1 of a person’s workplace rights (see subcl 341(1)): Explanatory Memorandum to the Explanatory Memorandum to the Fair Work Bill at [1360]–[1361]. Note also the effect of s 356. An argument that a common law contract was a workplace instrument was described as arguable in the context of a strike out application: Barnett v Territory Insurance Office [2011] FCA 155; BC201100709 at [17] (22 February 2011). That argument was rejected at final hearing where the court held in Barnett v Territory Insurance Office (2011) 196 FCR 116; 211 IR 439; [2011] FCA 968; BC201106395 at [32] that: The mere fact of the existence of a contract of employment does not enliven the relevant concept of recognition contained within the definition of “workplace instrument”. If it were simply the existence of a contract of employment on which the particular enactment operated, the expression of “made under or recognised by” would have been unnecessary. It would have been easy to have indicated that s 340(1)(a) includes a right under a contract of employment. It is also more consistent with the grouping of “workplace law”, “workplace instrument” and “order made by an industrial body” in s 341(1)(a) that the reference to recognition by a workplace law in the definition “workplace instrument” should refer to an instrument that is given legal effect or legal life by a provision of an enactment. *Editor’s note: Commentary to Workplace Instrument prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ workplace law means: (a) this Act; or

(b) the Registered Organisations Act; or (c) the Independent Contractors Act 2006; or (d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters). [def am Act 55 of 2009 s 3 and Sch 22, opn 1 July 2009; Act 175 of 2012 s 3 and Sch 1 item 43, opn 5 Dec 2012] COMMENTARY TO WORKPLACE LAW*

Derivation …. Employee …. Employer ….

[5-970.335.01] [5-970.335.05] [5-970.335.10] [page 102]

Law …. Regulates the relationships …. The Registered Organisations Act …. This Act ….

[5-970.335.20] [5-970.335.25] [5-970.355.30] [5-970.355.35]

[5-970.335.01] Derivation The definition is new. [5-970.335.05] Employee See s 12 definition of “employee”. [5-970.335.10] Employer See s 12 definition of “employer”. [5-970.335.20] Law The term “law” extends to regulations made under an enactment. As Logan J stated in Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd (2012) 208 FCR 386; [2012] FCA 1222; BC201208429 (6 November 2012) at [30]: Had Parliament intended to confine the scope of paragraph (d) of the definition of “workplace law” to “enactments” it would have been easy to have used that narrower term. There is no evident statutory purpose served by excluding from coverage of the protection given to a worker by s 340 what would otherwise be a “workplace right” because it is found in a regulation rather than an enactment. [5-970.335.25] Regulates the relationships It is trite that this descriptive clause must be construed as a whole. Not only must the law “regulate” but there must be an object of regulation of a particular specified kind — “relationships between employers and employees”: Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd (2012) 208 FCR 386; [2012] FCA 1222; BC201208429 at [32] (6 November 2012). In that case, the court held at [33] that the object of aircraft safety legislation was not the relationship between that person as an employee and his employer, but

rather that of air safety by the imposition of particular reporting obligations. Justice Logan in Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd (2011) 193 FCR 526; 205 IR 392; [2011] FCA 333; BC201101868 (8 April 2011), examined definitions of “regulate” as follows (at [235]–[236]): [I]t is useful to note that the verb “regulate” (which is not defined in the WR Act) is defined by the Macquarie Dictionary, 4th Edition, in the following ways: 1. to control or direct by rule, principle, method, etc. 2. to adjust to some standard or requirements, as amount, degree, etc: to regulate the temperature 3. to adjust so as to ensure accuracy of operation: to regulate a watch. 4. to put in good order: to regulate the digestion. The Shorter Oxford English Dictionary, 5th Edition, defines “regulate” as: 1. control, govern, or direct by rule or regulation: subject to guidance or restriction: adapt to circumstances or surroundings. Bring or reduce (a personal group) to order. 2. alter or control with reference to some standard or purpose; adjust (a clock or other machine) so that the working may be accurate. For the purposes of administrative law, courts have contrasted the concept of regulation with that of prohibition. In Country Roads Board v Neale Ads Pty Ltd (1930) 43 CLR 126, at 133, Knox CJ, Starke J and Dixon J noted that the word “regulate” primarily bears a restrictive meaning, which implies the continued existence of the thing to be regulated. By contrast, the power to prohibit an activity totally carries with it an understanding that the activity may be totally prohibited or permitted subject to some form of regulation. [page 103] The fact that such a law also regulates other relationships as well does not take it outside the definition or “workplace law”: Bayford v Maxxia Pty Ltd (2011) 207 IR 50; [2011] FMCA 202; BC201102324 at [141]. The phrase is not unlimited in scope. Justice Logan explained in Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd (2012) 208 FCR 386; 228 IR 72; [2012] FCA 1222; BC201208429 at [33] that: … Common to the definitions of “workplace instrument” and “workplace law” in s 12 of the Fair Work Act is the object of the relationship between employer and employee. Provisions which do no more than use the status of employer or employee as an incidental touchstone for the imposition of duties serving other ends do not fall within the terms of these definitions. In Construction, Forestry, Mining and Electrical Union (CFMEU) v Leighton Contractors Pty Ltd (2012) 225 IR 197; [2012] FMCA 487; BC201205589, the Queensland Workers Compensation Act was held to be a workplace law. Likewise, in Stephens v Australian Postal Corporation (2011) 207 IR 405; [2011] FMCA 448; BC201105075 at [15]–[16], the Safety, Rehabilitation and Compensation Act 1988 (Cth) was held to be a workplace law. On the other hand, the Aged Care Act 1997 (Cth) was held not to be a workplace law in Buckley v Terrigal Grosvenor Lodge (Erina) Pty Ltd (No 2) (2015) 298 FLR 429; [2015] FCCA 2267; BC201507970 at [63]. [5-970.355.30] The Registered Organisations Act See s 12 definition of “Registered Organisations

Act”. [5-970.355.35] This Act See s 12 definition of “this Act”. * Editor’s note: Commentary to Workplace Law prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ workplace right: see subsection 341(1). work value reasons: see subsection 156(4).

DIVISION 3 — DEFINITIONS RELATING TO THE MEANINGS OF EMPLOYEE, EMPLOYER ETC

[5-1140]

Meaning of national system employee

13 A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement. Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State. [s 13 am Act 54 of 2009 s 3 and Sch 1, opn 25 June 2009; Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010] COMMENTARY TO SECTION 13*

Derivation …. National system employer — s 13 …. Referring state — s 13 …. Usually employed — s 13 …. Vocational employment — s 13 …. Outline of section ….

[5-1140.1] [5-1140.5] [5-1140.10] [5-1140.15] [5-1140.20] [5-1140.25]

[5-1140.1] Derivation The section is new. [page 104] [5-1140.5] National system employer — s 13 See s 14. [5-1140.10] Referring state — s 13 See s 30L.

[5-1140.15] Usually employed — s 13 Since at least 1910, federal industrial legislation has included in its definitions of “employee” unemployed persons in an industry, since it is conceivable that there may be a dispute in an industry where in fact there are no contractual relations existing at the time: see Australasian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165; [2003] FCA 910; BC200304866 at [30]. That extension of the common law definition is expressly set out in the Act. Whether a person will fall within that definition will need to be determined in the light of all the circumstances of the case: Belandra at [43]. [5-1140.20] Vocational employment — s 13 See s 12. [5-1140.25] Outline of section In C v Commonwealth of Australia [2015] FCAFC 113; BC201508033, Tracey, Buchanan and Katzmann JJ held that: … The evident purpose of these provisions [ss 13 and 14] is to extend the operation of the FW Act beyond the regulation of terms and conditions of employment of the employees of constitutional corporations and to do so by relying on additional heads of power such as the trade and commerce power and the territories power… *Editor’s note: Commentary to s 13 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[5-1160]

Meaning of national system employer

14 (1) A national system employer is: (a) a constitutional corporation, so far as it employs, or usually employs, an individual; or (b) the Commonwealth, so far as it employs, or usually employs, an individual; or (c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or (d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as: (i) a flight crew officer; or (ii) a maritime employee; or (iii) a waterside worker; or (e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; 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 the person employs, or usually employs, an individual in

connection with the activity carried on in the Territory. Note 1: 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). Note 2: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State. [subs (1) am Act 33 of 2016 s 3 and Sch 5 item 53, opn 1 July 2016]

Particular employers declared not to be national system employers (2) Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if: [page 105] (a) that employer: (i) is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or (ii) is a body established for a local government purpose by or under a law of a State or Territory; or (iii) is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and (b) that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and (c) an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer. [subs (2) insrt Act 124 of 2009 s 3 and Sch 3, opn 15 Dec 2009]

(3) Paragraph (2)(b) does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of employer. [subs (3) insrt Act 124 of 2009 s 3 and Sch 3, opn 15 Dec 2009]

Endorsement of declarations

(4) The Minister may, in writing: (a) endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or (b) revoke or amend such an endorsement. [subs (4) insrt Act 124 of 2009 s 3 and Sch 3, opn 15 Dec 2009]

(5) An endorsement, revocation or amendment under subsection (4) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the endorsement, revocation or amendment. Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the endorsement, revocation or amendment (see regulations made for the purposes of paragraph 54(2)(b) of that Act). [subs (5) insrt Act 124 of 2009 s 3 and Sch 3, opn 15 Dec 2009; am Act 126 of 2015 s 3 and Sch 1 items 209, 210, opn 5 Mar 2016]

Employers that cannot be declared (6) Subsection (2) does not apply to an employer that: (a) generates, supplies or distributes electricity; or (b) supplies or distributes gas; or (c) provides services for the supply, distribution or release of water; or (d) operates a rail service or a port; unless the employer is a body established for a local government purpose by or under a law of a State or Territory, or is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, such a body. [subs (6) insrt Act 124 of 2009 s 3 and Sch 3, opn 15 Dec 2009]

(7) Subsection (2) does not apply to an employer if the employer is an Australian university (within the meaning of the Higher Education Support Act 2003) that is established by or under a law of a State or Territory. [subs (7) insrt Act 124 of 2009 s 3 and Sch 3, opn 15 Dec 2009] [s 14 am Act 54 of 2009 s 3 and Sch 1, opn 25 June 2009; Act 124 of 2009 s 3 and Schs 1 and 3, opn 15 Dec 2009]

[page 106]

[5-1170]

Transitional matters relating to

employers etc becoming, or ceasing to be, national system employers etc 14A (1) The regulations may make provisions of a transitional, application or saving nature in relation to any of the following: (a) an employer ceasing to be a national system employer because subsection 14(2) applies to the employer; (b) an individual ceasing to be a national system employee because an employer ceases to be a national system employer for the reason referred to in paragraph (a); (c) an employer becoming a national system employer because subsection 14(2) ceases to apply to the employer; (d) an individual becoming a national system employee because an employer becomes a national system employer for the reason referred to in paragraph (c). (2) Without limiting subsection (1), regulations made for the purpose of that subsection may: (a) modify provisions of this Act or the Transitional Act; or (b) provide for the application (with or without modifications) of provisions of this Act, or the Transitional Act, to matters to which they would otherwise not apply. [subs (2) am Act 175 of 2012 s 3 and Sch 1 item 44, opn 5 Dec 2012] [s 14A insrt Act 124 of 2009 s 3 and Sch 3, opn 15 Dec 2009]

[5-1180] Ordinary meanings of employee and employer 15 (1) A reference in this Act to an employee with its ordinary meaning: (a) includes a reference to a person who is usually such an employee; and (b) does not include a person on a vocational placement. Note: Subsections 30E(1) and 30P(1) extend the meaning of employee in relation to a referring State. [subs (1) am Act 54 of 2009 s 3 and Sch 1, opn 25 June 2009; Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

(2) A reference in this Act to an employer with its ordinary meaning includes a reference to a person who is usually such an employer. Note: Subsections 30E(2) and 30P(2) extend the meaning of employer in relation to a referring State. [subs (2) am Act 54 of 2009 s 3 and Sch 1, opn 25 June 2009; Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

DIVISION 4 — OTHER DEFINITIONS

[5-1350]

Meaning of base rate of pay

16 General meaning (1) The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following: (a) incentive-based payments and bonuses; (b) loadings; (c) monetary allowances; (d) overtime or penalty rates; (e) any other separately identifiable amounts. [page 107] Meaning for pieceworkers in relation to entitlements under National Employment Standards (2) Despite subsection (1), if one of the following paragraphs applies to a national system employee who is a pieceworker, the employee’s base rate of pay, in relation to entitlements under the National Employment Standards, is the base rate of pay referred to in that paragraph: (a) a modern award applies to the employee and specifies the employee’s base rate of pay for the purposes of the National Employment Standards; (b) an enterprise agreement applies to the employee and specifies the employee’s base rate of pay for the purposes of the National Employment Standards;

(c) the employee is an award/agreement free employee, and the regulations prescribe, or provide for the determination of, the employee’s base rate of pay for the purposes of the National Employment Standards. Meaning for pieceworkers for the purpose of section 206 (3) The regulations may prescribe, or provide for the determination of, the base rate of pay, for the purpose of section 206, of an employee who is a pieceworker. If the regulations do so, the employee’s base rate of pay, for the purpose of that section, is as prescribed by, or determined in accordance with, the regulations. Note: Section 206 deals with an employee’s base rate of pay under an enterprise agreement. COMMENTARY TO SECTION 16*

Derivation …. Award/agreement free employee — s 16(2)(c) …. Enterprise agreement — s 16(2)(b), Note …. National Employment Standards — s 16(2), (a), (b), (c) …. National system employee — s 16(1), (2) …. Note — s 12 Note …. Penalty — s 16(1)(d) …. Pieceworker — s 12(2), (3) …. Outline of Section ….

[5-1350.1] [5-1350.5] [5-1350.10] [5-1350.15] [5-1350.20] [5-1350.21] [5-1350.22] [5-1350.25] [5-1350.30]

[5-1350.1] Derivation This section is new, although it does have some similarities with the definition of basic periodic rate of pay in s 178 of the Workplace Relations Act 1996. [5-1350.5] Award/agreement free employee — s 16(2)(c) See s 12 definition of “award/agreement free employee” and commentary at [5-970.30.01]–[5-970.30.20]. [5-1350.10] Enterprise agreement — s 16(2)(b), Note See s 12 definition of enterprise agreement and commentary at [5-970.97.05]–[5-970.97.20]. [5-1350.15] National Employment Standards — s 16(2), (a), (b), (c) See ss 12 and 61(3). [5-1350.20] National system employee — s 16(1), (2) See s 13 at [5-1150]. [5-1350.21] Note — s 12 Note Section 13 of the Acts Interpretation Act 1901 provides that all material from and including the first section of an Act to the end of the last section of the Act is part of the Act. This changes the traditional position that notes do not form part of an Act. As to the traditional position, see D C Pearce & R S Geddes, Statutory Interpretation in Australia, 6th ed, LexisNexis Butterworths,

Sydney, 2006 at [4.49]. [page 108] [5-1350.22] Penalty — s 16(1)(d) The description of a payment is not determinative. As Katzmann J held in Maughan Thiem Auto Sales Pty Ltd v Cooper (2014) 222 FCR 1; [2014] FCAFC 94; BC201405977 at [24]: I accept that merely because it is described as a “penalty rate” does not mean that it is. It might equally have been called a shift loading or allowance… [5-1350.25] Pieceworker — s 12(2), (3) See ss 12 and 21 at [5-1450]. [5-1350.30] Outline of Section The Explanatory Memorandum to the Fair Work Bill 2009 states at para 74 that: The definition is relevant to calculating the amount payable to an employee when they take various forms of leave under the NES, including paid annual leave, paid personal carer’s leave, payment for an absence from work on a public holiday or when a female employee takes paid no safe job leave. The definition is expressed as a general concept — the rate of pay payable to the employee for his or her ordinary hours of work — together with the exclusion of certain other separately identifiable amounts. The Fair Work Australia Full Bench in Warren [2011] FWAFB 6709 (29 November 2011) found (at [30]) that: any amount paid with respect to the specified matters in s 16 and any other separately identified amount is not included within the definition of base rate of pay and is not required to be paid for absences on annual leave. In our view it is not relevant whether the amounts are paid as separate amounts or are identifiable components of a rolled-up rate. Either way they have the character of payments excluded from the definition. *Editor’s note Commentary to s 16 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[5-1370]

Meaning of child of a person

17 (1) A child of a person includes: (a) someone who is a child of the person within the meaning of the Family Law Act 1975; and (b) an adopted child or step-child of the person. It does not matter whether the child is an adult. (2) If, under this section, one person is a child of another person, other family relationships are also to be determined on the basis that the child is a

child of that other person. Note: For example, for the purpose of leave entitlements in relation to immediate family under Division 7 of Part 2-2 (which deals with personal/carer’s leave and compassionate leave):

(a) the other person is the parent of the child, and so is a member of the child’s immediate family; and (b) the child, and any other children, of the other person are siblings, and so are members of each other’s immediate family.

[5-1375] Meaning of directly and indirectly (in relation to TCF work) 17A (1) If there is a chain or series of 2 or more arrangements for the supply or production of goods produced by TCF work performed by a person (the worker), the following provisions have effect: [page 109] (a) the work is taken to be performed directly for the person (the direct principal) who employed or engaged the worker (and the direct principal is taken to have arranged for the work to be performed directly for the direct principal); (b) the work is taken to be performed indirectly for each other person (an indirect principal) who is a party to any of the arrangements in the chain or series (and each indirect principal is taken to have arranged for the work to be performed indirectly for the indirect principal). (2) This section does not limit the circumstances in which TCF work is performed directly or indirectly for a person (or in which a person arranges for TCF work to be performed directly or indirectly for the person). (3) This section does not apply for the purposes of Division 2A or 2B of Part 1-3. [s 17A insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

[5-1390]

Meaning of full rate of pay

18 General meaning (1) The full rate of pay of a national system employee is the rate of pay payable to the employee, including all the following: (a) incentive-based payments and bonuses; (b) loadings; (c) monetary allowances; (d) overtime or penalty rates; (e) any other separately identifiable amounts. Meaning for pieceworkers in relation to entitlements under National Employment Standards (2) However, if one of the following paragraphs applies to a national system employee who is a pieceworker, the employee’s full rate of pay, in relation to entitlements under the National Employment Standards, is the full rate of pay referred to in that paragraph: (a) a modern award applies to the employee and specifies the employee’s full rate of pay for the purposes of the National Employment Standards; (b) an enterprise agreement applies to the employee and specifies the employee’s full rate of pay for the purposes of the National Employment Standards; (c) the employee is an award/agreement free employee, and the regulations prescribe, or provide for the determination of, the employee’s full rate of pay for the purposes of the National Employment Standards.

[5-1410]

Meaning of industrial action

19 (1) Industrial action means action of any of the following kinds: (a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

a ban, limitation or restriction on the performance of work by an (b) employee or on the acceptance of or offering for work by an employee; (c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work; [page 110] (d) the lockout of employees from their employment by the employer of the employees. Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(2) However, industrial action does not include the following: (a) action by employees that is authorised or agreed to by the employer of the employees; (b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer; (c) action by an employee if: (i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and (ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform. (3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts. Note: In this section, employee and employer have their ordinary meanings (see section 11). COMMENTARY TO SECTION 191

Derivation …. History ….

[5-1410.1] [5-1410.5]

Constitutional support …. Authorised or agreed to by the employer — s 19(2)(a) …. Ban, limitation or restriction on work etc — s 19(1)(b) …. Effect on common law contract …. Employee — s 19(1)(a), (b), (c), (d), (2)(a),(b), (c),(i), (ii), (3), Note 2, …. Employer — s 19(1)(d), (2)(a),(b), (c)(ii), (3), Note 2, …. Failure to attend or perform work — s 19(1)(c) …. Imminent risk to his or her health or safety — s 19(2)(c) (i) …. Industrial action — s 19(1), Note 1, (2) …. Industrial action: action that is not industrial …. Industrial action: picketing …. Industrial Action: termination/resignation …. Lockout — s 19(1)(d), (3) …. Manner different — s 19(1)(a) …. Performance of work by an employee — s 19(1)(a), (b), (c) …. Preventing — s 19(3) …. Outline of section ….

[5-1410.10] [5-1410.15] [5-1410.20] [5-1410.25] [5-1410.30] [5-1410.35] [5-1410.40] [5-1410.45] [5-1410.50] [5-1410.55] [5-1410.60] [5-1410.65] [5-1410.70] [5-1410.75] [5-1410.80] [5-1410.81] [5-1410.85]

[5-1410.1] Derivation Section 420 of the Workplace Relations Act 1996. That definition has its origins in s 4 of the Conciliation and Arbitration Act 1904. [page 111] [5-1410.5] History The definition in the 1904 Act was inserted by s 3(c) of Act No 108 of 1977: see Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441; [2009] FCA 223; BC200901537; (13 March 2009) at [88]–[89]. It was adopted in similar terms into the Industrial Relations Act 1988. Until 1930 strikes and lock-outs were defined in the 1904 Act, but those definitions were removed by Act No 43 of 1930. For an outline of the history of the Commonwealth Parliament’s attitude to the right to strike and lock-out by employer, see G McCarry, “Amicable Agreements, Equitable Awards and Industrial Disorder” (1991) 13 Syd Law Rev 299. For differences between the definition in the 1904 Act and the 1988 Act see Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463; 165 ALR 550; 91 IR 198; [1999] FCA 1108; BC9904631 at [43]. Section 420 of the Workplace Relations Act was inserted by the Workplace

Relations Amendment (Work Choices) Act 2005 (No 153 of 2005). See Cahill v Construction, Forestry, Mining and Energy Union (No 2) (2008) 170 FCR 357; 250 ALR 223; 175 IR 357; [2008] FCA 1292; BC200807432 at [33] and following for a comparison of the pre-Work Choices definition and s 420 of the Workplace Relations Act. The current section was inserted by 28 of 2009. That section makes a number of drafting changes and deletes ss 420(2) and (4). [5-1410.10] Constitutional support The constitutional support for s 420 of the Workplace Relations Act was challenged in New South Wales v Commonwealth (2006) 229 CLR 1; 156 IR 1; 231 ALR 1; [2006] HCA 52; BC200609129 at [258] primarily on the grounds that the definition of industrial action was so broad as to that it was not a law with respect to corporations. The challenge was rejected at [258]. [5-1410.15] Authorised or agreed to by the employer — s 19(2)(a) Where an employee refuses to perform a task within the scope of the contract of employment which that person is directed to perform and elects to perform instead other work which would have to be done at some other, later time, the employer is not to be taken to have accepted the benefit of that work unless there has been an unequivocal indication that the compliance with the earlier direction is no longer required. Mere inaction by the employer does not of itself amount to an acceptance of the benefit of alternative work under the contract in place of that which the employee has been directed to perform: see Independent Education Union of Australia v Canonical Administrators (1998) 87 FCR 49; 157 ALR 531; 84 IR 123; BC9804646. [5-1410.20] Ban, limitation or restriction on work etc — s 19(1)(b) The central meaning of the term “ban” in the industrial, as in its ordinary usage, is to “prohibit or interdict”: Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) v Laing (1998) 89 FCR 17; (1999) 159 ALR 73 at 86–7; (1998) 86 IR 142; BC9805905; see also Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441; [2009] FCA 223; BC200901537 (13 March 2009) at [90]. Failure to attend a voluntary function does not constitute industrial action: Metropolitan Fire & Emergency Services Board v United Firefighters’ Union of Australia — [2008] AIRC 966 (19 December 2008) at [27]. On the other hand, in Otis Elevator Company v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia — PR91 7469 [2002] AIRC 511 at [33], Cmr Whelan noted that a “work to rule” may also be “illegitimate” action involving a breach of the contract of employment by the workers concerned. “Organising a meeting of employees during work time, even without the employer’s permission, will not necessarily constitute the imposition of a ‘ban, limitation or restriction’ upon the performance of work”: Qantas Airways Ltd v Transport Workers Union of Australia [2011] FCA 470; BC201102981 (13 May 2011) at [318]. This paragraph may be more limited than its predecessor in that it only applies to employees. On the other hand it no longer relies on work being performed in accordance with an industrial instrument. Under the former sections, industrial action could be undertaken by persons who were [page 112] not employees but who were offering themselves for work, such as regular casual employees. Australian Commonwealth Shipping Board v FSU of Aust (1925) 35 CLR 462; 31 ALR 97; BC2500011, is an example of persons acting in combination refusing to accept employment in order to enforce compliance by the board with a demand that it only accept crews chosen by ballot. In NMHG Distribution Pty Ltd t/as Yale Asia Pacific v Automotive, Food, Metals, Engineering, Printing and

Kindred Industries Union (2000) 104 IR 158, a full bench of the commission held that where a union and its members employed by an employer at its plant imposed a ban upon employees of a contractor (a secondary boycott) from carrying out work at the plant, that action was a ban on the performance of work. Compare Cahill v Construction, Forestry, Mining and Energy Union (No 2) (2008) 170 FCR 357; 250 ALR 223; 175 IR 357; [2008] FCA 1292; BC200807432 at [58], where it was suggested that the ban, limitation or restriction on the performance of work must be imposed “by the employee”. Compare also Williams v Automotive, Foods, Metals, Engineering, Printing Kindred Industries Union (No 2) (2009) 184 IR 367; [2009] FCA 103; BC200900789 at [34]. There is some uncertainty as to whether and to what extent conduct by an employer is industrial action. In Australian Federation of Airpilots v Flight West Airlines Pty Ltd (AIRC, Bacon C, Print P5229, 18 September 1997, unreported) the applicant claimed that the airline was engaging in industrial action by engaging contract pilots during the course of an industrial dispute about pilot salaries. The commission held that the employer’s action did not constitute industrial action because it had been motivated by the commercial realities of the employer’s business rather than to engage in industrial action against the applicant and its members. In National Union of Workers v Geoffrey Thompson Fruit Packing Co Pty Ltd (1998) 77 IR 395 the commission held that an employer was engaging in industrial action by demanding that employees either perform work pursuant to the terms of a particular award or perform no work at all. Before that demand had been made the employees had worked pursuant to the terms of another award with the concurrence of the employer. When the employees refused to accept the change in award, the employer refused to accept the performance of any work at all. The employer’s conduct was described as a limitation or restriction on employees’ acceptance of or offering for work within the definition of industrial action. In Construction, Forestry, Mining and Energy Union (CFMEU) v MP Group Pty Ltd (AIRC, Giudice P, MacBean SDP and Holmes C, Print R7493, 23 July 1999, unreported) a full bench of the commission declined to interfere with the conclusion of a member of the commission at first instance that, in the circumstances, termination of the employment of a workers’ health and safety representative did not come within the meaning of the definition. The employee was employed by a subcontractor on a building site and was the elected health and safety representative on that site. The principal contractor directed the subcontractor that the employee should be removed from the site within 7 days. At first instance the commissioner decided that if the subcontractor were to terminate the employee’s employment in those circumstances, the termination would not constitute industrial action within the definition. The principal argument was that the termination would constitute industrial action because the relevant industrial agreement dealt in detail with the role of workplace health and safety representatives. It was also argued that the agreement permitted employees to choose the health and safety representative. The commissioner, and subsequently the full bench, rejected the submission that the termination of employment would constitute a relevant limitation or restriction on work. In Australian Workers’ Union v Skyway Executive Pty Ltd (AIRC, Lacy SDP, PR940166, 3 November 2003, unreported) the commission held that an employer directing an employee not to attend for work was applying a ban within the meaning of that expression in para (b) and (c) of the definition of industrial action. The above decisions were referred to with apparent approval in The Age Co Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2004) 133 IR 197; Print PR946290 where a full bench of the commission held that making employees redundant and terminating their employment because the [page 113]

company closed a plant and moved its operations to another plant, was not industrial action within the meaning of the definition. The full bench left open the possibility at [41]–[46] that dismissal of employees during a dispute may be within the meaning of the definition in a case where the dismissal occurred to coerce the employees to accept different conditions of employment. In Construction, Forestry, Mining and Energy Union v Anglo Coal (Moranbah North Management) Pty Ltd [2004] FCA 604; BC200402652 at [4] and [22] Dowsett J doubted that the language of the definition of “industrial action” apart from the reference to lockout, described actions of employers. He stated at [4] that “[o]nly by straining the language could one apply it to actions by employers.” In that case the action was an employer standing-down employees during protected action. It has been held that an organisation can undertake industrial action: Australian Industry Group and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union AIRC, Munro J, Sydney, 25 November 1999, Print S 1325; see also Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441; [2009] FCA 223; BC200901537 (13 March 2009) at [95]–[96] although this must be subject to the same doubt as that expressed by Dowsett J. The debate may be of academic interest given the effect of s 550 as to accessorial liability: see generally Qantas Airways Ltd v Transport Workers Union of Australia [2011] FCA 470; BC201102981 (13 May 2011) at [323]–[327]. [5-1410.25] Effect on common law contract The effect of industrial action is to interrupt the industrial (rather than the contractual) relationship existing between the employees and the employer. A strike and most other forms of industrial action will almost always involve a breach of contract by the individual employee. A lock-out will almost always involve a breach of contract by the employer. Such conduct may constitute a repudiation of the contract of employment: see Macken et al, Law of Employment, 5th ed, Law Book Co, Sydney, 2002, pp 220–3. See also Hall v General Motors-Holden’s Ltd (1979) 45 FLR 272, where the Federal Court held that the employer was justified in summarily dismissing an employee engaged in a strike, due to the employee’s refusal to perform the contract of employment. Construction Forestry, Mining and Energy Union (CFMEU) v Master Builders’ Association of Victoria (No 2) (2000) 100 FCR 395; 171 ALR 140; 96 IR 274; [2000] FCA 169; BC200001177. As mentioned previously, industrial action will in most cases result in a breach of the common law contract of employment. In Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd, (2009) 180 IR 1; [2009] AIRC 268 it was said that at [205]–[206] that where there is an award or agreement applicable to a contract of employment it is necessary to ascertain what the industrial instrument expressly or impliedly states about the payment of remuneration. The instrument is not to be construed as taking away the employer’s right acknowledged by the common law to withhold payment of wages for periods of non-performance of duty unless the language of the industrial instrument intractably compels such a construction. An employer who accepts part-performance by the employee of the duties required to be performed under the contract of employment because the employee has instituted work bans may accept such partperformance, in such case the employer waives its right to insist on full performance of all the duties associated with the contract of employment, and may be held to be consenting to the partial work bans: Gapes v Commercial Bank of Australia Ltd (1980) 37 ALR 20; 41 FLR 27. In Gapes’ case the employee refused to perform certain of his ordinary duties which were significant. Initially, the employer insisted that the employee leave the employer’s premises unless the employee agreed to perform all the duties he was contracted to perform. The employer allowed this direction to lapse and permitted the employee to remain and resume some of his duties. The court held that the employer had waived its direction that the employee cease work altogether and had accepted part-performance. Gapes’ case may be contrasted with the judgment of the Miles v Wakefield Metropolitan District Council [1987] AC 539; [1987] 2 WLR 795; [1987] ICR 368. In that case the plaintiff was engaged as a superintendent registrar, one of his duties being to conduct wedding ceremonies on Saturday

mornings. The union, in support of a wages campaign, placed a work ban on the [page 114] performance of wedding ceremonies on Saturday mornings. The plaintiff otherwise performed all the other duties required during the week and on the Saturday morning. The employer had informed the plaintiff that they would not pay to the plaintiff his salary unless he performed all his duties on Saturday mornings and informed the plaintiff that unless he was prepared to abide by his contract of employment he should not present himself for work on Saturday morning. The plaintiff presented himself for work on Saturday morning and refused to perform the wedding ceremonies. The House of Lords held that any form of industrial action by an employee is a breach of contract. Industrial action in the form of work bans and go-slows is a breach of contract entitling the employer to withhold the wages which would otherwise have been payable. In this case the employer had not accepted partial performance of the contract: see also Csomore v PSB (NSW) (1986) 10 NSWLR 587; 17 IR 275; BC8600576. In relation to directions given to employees to work strictly in accordance with the rules, that is, a “work to rule” campaign which potentially destroys the commercial intention of the parties who enter the contract, the English Court of Appeal has held that such a campaign will constitute a breach of the contract: see Secretary of State for Employment v Associated Society of Locomotive Engineers and Firemen (No 2) [1972] 2 QB 455; [1972] 2 All ER 949; [1972] 2 WLR 1370; [1972] ICR 19; (1972) 13 KIR 1. Whether the “industrial action” results in the termination of the contract by the employer was considered by the full Federal Court in the decision of Savage v Director-General of Social Services (Fed C of A, full bench, No 267/82, 4 August 1983, unreported). In that case the court was considering an almost identical definition of “industrial action” in the Social Security Act 1947 (Cth). The case involved employees who had been engaged in industrial action and dismissed as a result of refusing to sign letters agreeing to work pursuant to the relevant award. The court held that the dismissal was tactical only and that the employer did not intend to sever the employment relationship permanently. Further, the court was of the opinion that it is a question of fact in each case whether termination of the employment relationship is permanent or still within the area of negotiation. Termination is not necessarily inconsistent with an intention by the employer to resume the relationship. A similar point was raised in Power Packing Casemakers Ltd v Faust [1983] QB 471; [1983] 2 All ER 166; [1983] 2 WLR 439; [1983] ICR 292; where the English Court of Appeal decided that industrial action (in the form of overtime bans in support of wage negotiations) need not be action which would otherwise be in breach of the contract if it is action being used as a bargaining weapon: at 476. The court held that industrial action is designed to apply pressure on the employer by disrupting the employer’s business in order to gain concessions: at 480. In Construction Forestry, Mining and Energy Union v Ezard Distributors Pty Ltd (AIRC, Watson SDP, print R3029, 16 March 1999, unreported) it was suggested that an employer’s stand-down of employees might constitute industrial action because it would be a restriction on the performance of work, or an acceptance of or offering for work, within the meaning of para (b) of the definition. See also Construction Forestry, Mining and Energy Union v Carter Holt Harvey Wood Products Australia Ltd (AIRC, Watson SDP, print R3466, 30 March 1999, unreported); and the Delphic observation in Re CitiPower Ltd (AIRC, Polites SDP, Acton DP and Frawley C, print 4460, 26 August 1997, unreported); repeated in National Union of Workers v Geoffrey Thompson Fruit Packing Co Pty Ltd (1998) 77 IR 395. A stand down due to WorkCover prohibition notices being issued was held not to constitute industrial action in The Australian Workers Union and Nonferral Pty Ltd, AIRC, Hingley C,

Melbourne, 6 July 2004, [PR948977] at [34]. Communication intended to affect the performance of work is industrial action because of its instrumental character: Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) v Laing (1998) 89 FCR 17; (1999) 159 ALR 73 at 87; (1998) 86 IR 142; BC9805905. [page 115] [5-1410.30] Employee — s 19(1)(a), (b), (c), (d), (2)(a),(b), (c),(i), (ii), (3), Note 2, See Note 2 and the definition in s 11. [5-1410.35] Employer — s 19(1)(d), (2)(a),(b), (c)(ii), (3), Note 2, See Note 2 and the definition in s 11. [5-1410.40] Failure to attend or perform work — s 19(1)(c) When employees refuse to attend work at the direction of their union, that conduct is “industrial action”: see Skilled Engineering Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2001) 108 IR 116; [2001] FCA 1397; BC200105915 at [2]. Compare Burgess v Stevedoring Services Ltd [2002] All ER (D) 290 (Jul); [2002] 1 WLR 2838; [2002] UKPC 39. [5-1410.45] Imminent risk to his or her health or safety — s 19(2)(c)(i) The definition requires that the relevant industrial action be at least based upon the person taking the action having a genuine and reasonable belief about an imminent risk to the health and safety of that person or of others. In addition, the action taken must be proportionate to the risk. Dispute settlement procedures relevant to safety disputes at the site must have been fully complied with: Re Rheem Rydalmere Plant Industrial Action Order 2002 AIRC, Munro J, 9 April 2003, PR929970. [5-1410.50] Industrial action — s 19(1), Note 1, (2) The characterisation of conduct in relation to industrial action depends on the facts and circumstances of each case: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Amcor Packaging (Australia) Pty Ltd AIRC, Richards C, Brisbane, 12 August 2004, PR950592. The taking of action on a collective basis may constitute industrial action even it did not constitute industrial action when taken individually: Australian Workers Union v Bluescope Steel Ltd (2008) 171 IR 115; [2008] AIRCFB 24 (15 January 2008). [5-1410.55] Industrial action: action that is not industrial It might fairly easily be concluded that a definition of industrial action is intended to be confined to action which occurs in the course of an industrial dispute or bargaining in relation to a demand concerning the conditions to be afforded by an employer to its employees. In such a case purely political strikes may not constitute industrial action. It seems likely that the legislature did not intend to include conduct which stands completely outside the area of disputation and bargaining. Accordingly the word industrial should be given some weight: Re The Age Company Ltd AIRC, Giudice J, Harrison SDP, Simmonds C, Melbourne, 11 May 2004, PR946290. Similarly, action that is taken for commercial reasons outside disputation and bargaining does not constitute industrial action: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union AIRC, Hamilton DP, Melbourne, 28 May 2004, PR947070 at [38]. Political action per se is not an exception to the definition: Australia Post v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2006) 157 IR 378; PR97424 Foggo C, 7 July 2006 at [34]. The exception for purely political action

should be subject to the express political objectives held by many industrial associations and the industrial relevance of many political issues: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union AIRC, Hamilton DP, Melbourne, 28 May 2004, PR947070 at [25]. The Full Bench in The Age did not go so far as to determine that politically motivated action could not be industrial action, particularly when connected to unresolved negotiations about a common law deed to protect industrial rights: Nestle Australia Ltd and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union AIRC, Simonds C, 10 July 2006, PR973247. For an interesting case discussing the distinction between industrial vis-à-vis political and social action, see Master Builders’ Association of New South Wales v Australian Building Construction Employees & BLF (1974) 3 ALR 305; 23 FLR 356 (the Green Bans case). [page 116] [5-1410.60] Industrial action: picketing In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) v Laing (1998) 89 FCR 17; 159 ALR 73; 86 IR 142; BC9805905 French J said at (FCR) 32: To constitute ‘industrial action’ … picketing must fall within the statutory definition of that term. It is not the performance of work. It can only qualify as industrial action if it amounts to a ‘ban, limitation or restriction on the performance of work’. So a picket line whose purpose is to prevent or deter or discourage employees from attending on their employer’s premises and from carrying out their work could constitute a ban. However, in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200; 159 ALR 1; 84 IR 314; BC9805887 a full court of the Federal Court (Spender, Moore and Branson JJ) said of para (c) of the former definition at (FCR) 213: … it is unlikely that picketing is conduct comprehended by the expression ‘a … restriction on the performance of work’ … Having regard to the context in which that expression appears, it is more likely to relate to restrictions imposed by an employee or a group of employees on the work they do so as to limit the scope of that work or the time or the circumstances in which it is done. While the expression ‘a … restriction … on acceptance of or offering for work’ … might comprehend picketing of the latter type which prevented employees who were continuing to work from attending the workplace, it is unlikely to have such a wide meaning if the other elements … relate to circumstances of the type just discussed. It is likely that [the subsection] in its entirety is directed to the conduct of employees who engage in conduct limiting the work they do or the circumstances in which they offer to do it. In Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463; 165 ALR 550; 91 IR 198; [1999] FCA 1108; BC9904631 Wilcox and Cooper JJ (with whom Burchett J agreed at [119]) said at [69]: A ‘picket’, in the industrial relations setting, is a person who stands outside an establishment to make a protest, to dissuade or to prevent employees, suppliers, clients or customers of the employer from entering the establishment. ‘To picket’ is to post or serve as a picket at an establishment. A ‘picket line’ is a line of persons acting as pickets. At [51] they pointed out that activities falling within the general description of “picketing” may range from a protest in which the picketers do no more than communicate their views to persons

entering or leaving particular premises, through various degrees of hindrance to total prevention of ingress and egress. At [52] they held: Activity that merely involves communication of information to persons entering or leaving a site is not ‘industrial action’, within the meaning of the definition in the Workplace Relations Act. Such activity clearly cannot constitute a ‘ban, limitation or restriction on the performance of work’ by the picketers. If the picketers do no more than communicate information, it is immaterial that the recipient of the information may be persuaded not to perform, accept or offer for work. On the other hand, if the picket takes the form of preventing or hindering people from performing, accepting or offering for work, its effect is to limit or restrict the performance of work, or the acceptance of, or offering for, work. Such conduct may be regarded as falling literally within para (c) of the definition of ‘industrial action’. However, … we think the paragraph ought to be read as applying only to limitations on the work of those imposing the ban. The joint judgment continued that picketing which does not involve obstruction and besetting does not fall within the description of “industrial action”: it does not relate to the performance of work: see [71]. The judges then said at [72]–[75]: Picketing which interferes with a person’s liberty and freedom of movement infringes that person’s common law rights; in particular, the right to free passage in public places and on [page 117] public roads and footpaths: see Williams v Hursey at 78–79; City of Melbourne v Barry (1922) 31 CLR 174 at 196 and 206; 29 ALR 86; City of Keilor v O’Donohue (1971) 126 CLR 353 at 363, Fourmile v Selpam Pty Ltd (1998) 80 FCR 151; 152 ALR 294 at 186. There is a presumption in the interpretation of statutes that there is no intention to interfere with common law rights or basic common law doctrines unless the words of the statute expressly or necessarily require that result: Baker v Campbell (1983) 153 CLR 52; 49 ALR 385 at 123; 57 ALJR 749. To interpret para (c) of the definition of ‘industrial action’ in such a way as to include picketing infringing upon the rights and freedoms of others, would be to confer statutory immunity on such conduct; provided only it was engaged in upon proper notice to the employer and for the purposes of negotiating a certified agreement or an AWA. It would authorise interference with the rights, not only of the employer, but also of other affected persons who, but for the immunity, would have a right of action at common law. The interpretation would substitute, for a remedy in common law courts of competent jurisdiction, a mere right to apply to the Commission for an order prohibiting the conduct. Bearing in mind the presumption mentioned in the last paragraph, we do not think the definition should be interpreted in that way. We do not discern a clear indication in the Act that Parliament contemplated that picketing involving obstruction and besetting, and which therefore amounts to an actionable tort, may be protected industrial action, provided only it did not involve, or was not likely to involve, personal injury, wilful or reckless destruction of property or unlawful taking, keeping or use of property. … conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment. See also Auspine Ltd v Construction, Forestry, Mining & Energy Union (2000) 97 IR 444; [2000] FCA 501; BC200001861 at [35]–[39] and Cahill v Construction, Forestry, Mining and Energy Union (No 2) (2008) 170 FCR 357; 250 ALR 223; 175 IR 357; [2008] FCA 1292; BC200807432 at [35] and

following. In relation to cases concerning the point at which picketing becomes tortious see Barloworld Coating (Aust) Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers’ Union (2001) 108 IR 107; [2001] NSWSC 826; BC200105793 at [16] and McCoy Constructions Pty Ltd v Dabrowski [2001] QSC 413; BC200106742. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Langley BC200404666 Finkelstein J said at [12]–[13] that it was not clear what the three cases, Laing, CFMEU, and Davids Distribution, established: One possible interpretation is that picketers only engage in industrial action when they are limiting or restricting the performance of their own work. This is a reasonable approach which requires picketers to be manning the picket lines on a work day. It is also seems to be the view of Goldberg J in Original Juice Co Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 675; [BC200102906] at para [32]. Alternatively, the wider view of para (c) expressed by French J may still [be] open. Thus in Transfield Construction Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413; [BC200206893] Merkel J said at para [46] that notwithstanding Davids Distribution ‘a picket line, established by unions or their organisers for the purpose of preventing and deterring or discouraging employees from attending at their employer’s premises and from carrying out their work, could constitute industrial action’. Reconciling the two views is difficult. Presumably what Merkel J had in mind is that because in Davids Distribution Wilcox and Cooper JJ said (at [FCR] 491) that industrial action should not include picketing which infringes the (legal) rights and freedoms of others, it followed that if the picket was for the purpose of preventing, deterring or discouraging employees from attending work in a way which did not render those employees in breach of their duties the conduct fell within para (c) of the definition. [page 118] [5-1410.65] Industrial Action: termination/resignation In Age Co Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2004) 133 IR 197; PR946290 employees were made redundant and their employment terminated when a newspaper closed its production plant and transferred its operations elsewhere. A full bench of the AIRC quashed an order made pursuant to s 127 preventing the employer giving effect to the terminations of employment. The full bench held at [16] and [47] that s 127 is only available to stop or prevent conduct that is within the definition of industrial action. They held that para (a) was inapplicable when an employer terminated the employment of its employees. The requirement that there be a change in the way work was performed involved action by one or more employees and the employer’s action in terminating their employment was not action of that kind. The alternative requirement that there be the adoption of a practice in relation to work was also not present in the case of such terminations. Neither resignation not termination of employment is industrial action: Busicom Solutions P/L and Automotive, Foods Metals, Engineering, Printing and Kindred Industries Union [2007] AIRC 287 (13 April 2007) at [37]. [5-1410.70] Lockout — s 19(1)(d), (3) See s 19(3). Section 19 contemplates that an employer may take industrial action by locking out employees from their employment by preventing the employees from performing work under their contracts of

employment without terminating those contracts: s 19(1)(d) and 19(3). The Act does not contemplate an employer taking any industrial action short of locking out an employee: Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200; 222 IR 316; [2012] FCAFC 65; BC201202894 at [18]. A lockout does not require a total shut down of the business. The imposition of a lock out allows an employer to limit or restrict the amount of work it allows its employees to undertake: Construction, Forestry, Mining and Energy Union (CFMEU) v Master Builders’ Association of Victoria (No 2) (2000) 100 FCR 395; 171 ALR 140; [2000] FCA 169; BC200001177 at [30]. It has been suggested that the principle of “no work as directed, no pay” is a form of lock-out: see G McCarry, ‘Sanctions and Industrial Action: the impact of the Industrial Relations Reform Act’ (1994) 7 AJLL 198. If striking employees agree to return to work and an employer refuses to allow the employees to commence work this could also be a lockout: see Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140; 72 ALR 173; 21 IR 177; BC8701789. See Construction, Forestry, Mining and Energy Union (CFMEU) v MBAV (No 2) (2000) 100 FCR 395; 171 ALR 140; 96 IR 274; [2000] FCA 169; BC200001177 at [43] where it was held that a refusal by an employer to offer overtime during a bargaining period was a lockout within the meaning of s 170ML(4) and conduct within the meaning of para (c) of the definition of “industrial action”. Employees innocent of industrial action who are stood down as a result of such action (pursuant to an employer’s lawful right to stand-down) are not locked out by the employer, nor are they acting in concert with the employees who are engaged in industrial action. Employees in this situation are stooddown because there is insufficient work for them to do: Town v ATC (1983) 47 ALR 137; 67 FLR 48; 3 IR 476. In ‘The Right to Take Industrial Action’ in A New Province for Legalism: Legal Issues and the Deregulation of Industrial Relations, (ed P Ronfeldt and R McCallum), ACIRT, Sydney, 1993, at p 35, G McCarry suggested that an ultimatum by an employer to its employees during the course of an industrial dispute requiring the employees to accept work changes may constitute industrial action: For example, … the ultimatum could arguably constitute a restriction or limitation on offering for work in connection with that dispute and so fall within para (c) of the definition; or it could be a restriction on offering for work in accordance with an award, if such there be, and so within para (b). In addition, it may be that to come within these words there must be an actual as distinct from a threatened restriction or limitation. [page 119] [5-1410.75] Manner different — s 19(1)(a) This requires that there be either the performance of work different from that in which it is customarily performed, or the adoption of a particular practice in relation to the work. In R v Bowen; Ex parte AMWSU (1980) 144 CLR 462; 32 ALR 343; BC8000110 Gibbs J held that that requirement involves a departure from the customary manner of performing the work or the adoption of a new practice in relation to the work with the result that it is restricted, limited or delayed. Such action includes work bans, go slows and work to rule where the other requirements of the paragraph are satisfied, namely that the work is covered by an award etc, or the new practice is adopted in connection with an industrial dispute. In Corkill v CFMEU (1996) 65 IR 320 it was argued that the presence of protesters in a forest meant that forestry workers had to perform their work in a manner different from that in which they customarily performed it and accordingly industrial action was occurring. Wilcox CJ in rejecting the argument said at 323: I doubt that a case such as that was within the contemplation of Parliament when the definition was

enacted. It is noteworthy that each of paras (a)–(d) are concerned with restrictions imposed by workers, not restrictions imposed upon them as a result of activities of others. That conclusion is consistent with the reasoning of the full court of the Federal Court in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463; 165 ALR 550; 91 IR 198; [1999] FCA 1108; BC9904631. It is significant that no reference is made in the definition to a strike as to what is sufficient for industrial action, no doubt because it is not easy to know what constitutes a strike: see the discussion in Construction, Forestry, Mining and Energy Union (CFMEU) v MBAV (No 2) (2000) 100 FCR 395; 171 ALR 140; 96 IR 274; [2000] FCA 169; BC200001177 at [32]. [5-1410.80] Performance of work by an employee — s 19(1)(a), (b), (c) In Re Mornington Peninsula Shire Council (2011) 210 IR 419; [2011] FWAFB 4809; BC201170092 at [25]–[27], the Full Bench held that: In our view, the term “the performance of work” within s 19(1)(b) of the Act is not restricted to how the tasks associated with a particular job are performed. It involves for example when work is performed, where work is performed, how work is performed and the conditions under which work is performed. Clearly ss 19(1)(a) and (b) of the Act are directed at different conduct. In s 19(1)(a) the conduct must cause a particular result, namely a restriction or limitation on, or a delay in the performance of work. In s 19(1)(b) of the Act there need be no result from the conduct; there must simply be a ban limitation or restriction on the performance of work or on the acceptance of or offering for work by an employee. It has been doubted whether the definitions that refer to the actions of employees have any applications to employers: Construction, Forestry, Mining and Energy Union v Anglo Coal (Moranbah North Management) Pty Ltd [2004] FCA 604; BC200402652, 13 May 2004 at [4]. By contrast it was held in The Australian Industry Group And Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union AIRC, Munro J Sydney, 25 November 1999, Print S1325, that an organisation could impose industrial action. [5-1410.81] Preventing — s 19(3) In writing of a predecessor provision s 170ML, Goldberg J in Construction, Forestry, Mining and Energy Union (CFMEU) v Master Builders’ Association of Victoria (No 2) (2000) 100 FCR 395; 96 IR 274; [2000] FCA 169; BC200001177 at [41] held that: The expression “preventing” in the context of s l70ML(4) involves the doing of an act which has the consequence that employees cannot perform work which, if performed, would be work performed under their contracts of employment. The concept of “preventing” in the context of [page 120] s 170ML(4) is not limited to a situation of putting up a barrier or bar to something which is going to happen in the absence of some supervening event stopping it; it also covers a situation where something is stopped in circumstances where if it was allowed or granted it would occur in a particular way. [5-1410.85] Outline of section It is necessary to properly characterise the impugned action and then to determine that it falls within one or more of the kinds of action specified before a determination can be

made as to whether the action so characterised also comes within one of the exclusions: Australian Workers Union v Bluescope Steel Ltd (2008) 171 IR 115; [2008] AIRCFB 24 (15 January 2008). note: Commentary to s 19 has been prepared by Dorothea Catts B JURIS (NSW) LLB (NSW), Solicitor, JL Trew QC LLB (Syd), Barrister and updated by Ian Latham BA (Hons) LLB (ANU), Barrister. 1Editor’s

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[5-1430] Meaning of ordinary hours of work for award/agreement free employees 20 Agreed ordinary hours of work (1) The ordinary hours of work of an award/agreement free employee are the hours agreed by the employee and his or her national system employer as the employee’s ordinary hours of work. If there is no agreement (2) If there is no agreement about ordinary hours of work for an award/agreement free employee, the ordinary hours of work of the employee in a week are: (a) for a full time employee — 38 hours; or (b) for an employee who is not a full-time employee — the lesser of: (i) 38 hours; and (ii) the employee’s usual weekly hours of work. If the agreed hours are less than usual weekly hours (3) If, for an award/agreement free employee who is not a full-time employee, there is an agreement under subsection (1) between the employee and his or her national system employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work, the ordinary hours of work of the employee in a week are the lesser of: (a) 38 hours; and (b) the employee’s usual weekly hours of work. Regulations may prescribe usual weekly hours (4) For an award/agreement free employee who is not a full-time employee

and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subsections (2) and (3).

[5-1450]

Meaning of pieceworker

21 (1) A pieceworker is: (a) a national system employee to whom a modern award applies and who is defined or described in the award as a pieceworker; or (b) a national system employee to whom an enterprise agreement applies and who is defined or described in the agreement as a pieceworker; or [page 121] (c) an award/agreement free employee who is in a class of employees prescribed by the regulations as pieceworkers. Note: Sections 197 and 198 affect whether the FWC may approve an enterprise agreement covering a national system employee that includes a term that: (a) defines or describes the employee as a pieceworker, if the employee is covered by a modern award that is in operation and does not include such a term; or (b) does not define or describe the employee as a pieceworker, if the employee is covered by a modern award that is in operation and includes such a term. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 27, opn 1 Jan 2013]

(2) Without limiting the way in which a class may be described for the purposes of paragraph (1)(c), the class may be described by reference to one or more of the following: (a) a particular industry or part of an industry; (b) a particular kind of work; (c) a particular type of employment.

[5-1470] service

Meanings of service and continuous

22 General meaning (1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2). (2) The following periods do not count as service: (a) any period of unauthorised absence; (b) any period of unpaid leave or unpaid authorised absence, other than: (i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or (ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or (iii) a period of leave or absence of a kind prescribed by the regulations; (c) any other period of a kind prescribed by the regulations. [subs (2) am Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009]

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service. (3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly. [subs (3A) insrt Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009]

Meaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2 (4) For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2: (a) a period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include:

[page 122] (i) any period of unauthorised absence; or (ii) any other period of a kind prescribed by the regulations; and (b) a period referred to in subparagraph (a)(i) or (ii) does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service; and (c) subsections (1), (2) and (3) do not apply. Note: Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2 deal, respectively, with requests for flexible working arrangements, parental leave and related entitlements, and notice of termination or payment in lieu of notice. [subs (4) am Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009]

(4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly. [subs (4A) insrt Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009]

When service with one employer counts as service with another employer (5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee: (a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and (b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer. Note: This subsection does not apply to a transfer of employment between non-associated entities, for the purpose of Division 6 of Part 2-2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2-2 (which deals with redundancy pay), if the second employer decides not to recognise the employee’s service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1)).

(6) If the national system employee has already had the benefit of an entitlement the amount of which was calculated by reference to a period of service with the first employer, subsection (5) does not result in that period of service with the first employer being counted again when calculating the employee’s entitlements of that kind as an employee of the second employer. Note: For example: (a) the accrued paid annual leave to which the employee is entitled as an employee of the second employer does not include any period of paid annual leave that the employee has already taken as an employee of the first employer; and (b) if an employee receives notice of termination or payment in lieu of notice in relation to a period of service with the first employer, that period of service is not counted again in calculating the amount of notice of termination, or payment in lieu, to which the employee is entitled as an employee of the second employer.

Meaning of transfer of employment etc. (7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if: [page 123] (a) the following conditions are satisfied: (i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer; (ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or (b) the following conditions are satisfied: (i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer; (ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer. Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the

second employer.

(8) A transfer of employment: (a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and (b) is a transfer of employment between non-associated entities if paragraph (7)(b) applies.

[5-1490]

Meaning of small business employer

23 (1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time. (2) For the purpose of calculating the number of employees employed by the employer at a particular time: (a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and (b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis. (3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity. (4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)): (a) the employee who is being dismissed or whose employment is being terminated; and (b) any other employee of the employer who is also being dismissed or whose employment is also being terminated. COMMENTARY TO SECTION 23*

Derivation …. Associated entities — s 23(3) …. Casual — s 23(2)(b) …. Employee — s 23(1), (2), (a), (b), (3), (4), (a), (b) ….

[5-1490.05] [5-1490.10] [5-1490.15] [5-1490.20]

Employer — s 23(1), (2), (a), (b), (3), (4), (b) ….

[5-1490.25] [page 124]

National system employer — s 23(1), (4) …. Regular and systematic basis — s 23(2)(b) …. Outline of Section ….

[5-1490.30] [5-1490.35] [5-1490.40]

[5-1490.05] Derivation The section is new. [5-1490.10] Associated entities — s 23(3) See s 12 of this Act and s 50AAA of the Corporations Act 2001. That section states relevantly that: (1) One entity (the associate) is an associated entity of another entity (the principal) if subs (2), (3), (4), (5), (6) or (7) is satisfied… Those subsections refer to common control or investment and significant influence. Control is in turn defined in s 50AA by reference to the practical influence that the first entity can exert over the second entity’s financial and operating policies. Somewhat surprisingly; most of the cases on this section have come out of the Fair Work Commission. Some principles are clear from those cases. To determine whether an entity is an ‘associated entity’ it is necessary to look beyond organisational and logistical arrangements. The presence of a common web site, shared publicity material and information sharing does not prove control for the purposes of the definition: Myburgh v Variety NSW the Children’s Charity [2011] FWA 7925 at [19]–[20]. Similarly, funding arrangements were held not to be evidence of control in Adams v Condamine Catchment Natural Resource Management Corporation Ltd T/A Condamine Alliance (2010) 205 IR 230; [2010] FWA 5374 at [23]. The fact that two entities share resources such as premises does not result in them being considered associated entities: Gravolin v Master Accident Repair Centre [2013] FWC 1002 at [21]. [5-1490.15] Casual — s 23(2)(b) In J Bailey v Red Earth Nominees Pty Ltd t/as Taltarni Vineyards — PR964240 [2005] AIRC 933; (26 October 2005), SDP Watson held at [25] that: … the words “casual employee” have no settled meaning in Australian domestic law and the determination of the true character of the employment will require consideration of all the facts and circumstances bearing upon the nature of the engagement. As Connor C warned in Kalinda Ferguson and Belinda Betts v Pleasant Way Motel Pty Ltd [2011] FWA 3815; BC201171606 at [19]: Often the expressions “casual” and “part time” have no fixed meaning, dependent upon the circumstances of each case and frequently the term “casual” is used to denote arrangements which, in fact, are not casual. Care must always be exercised to distinguish permanent part-time employment which is not irregular from employment which is irregular and thereby properly regarded as casual. The question as to employment as a casual employee is a question of fact and depends upon the facts and circumstances of the case: Serco (Australia) Pty Ltd v Moreno (1996) 65 IR 145; 76 WAIG 937. Employment status is a function of the common law employment contract provided it is consistent

with applicable laws and other instruments. Some awards proceed on the assumption that status is governed by the contract and attach entitlements to employees depending on their common law employment status. Others impose limitations on the scope of casual employment that potentially override the position at common law: Nardy House v Perry (2016) 257 IR 248; [2016] FWCFB 1621 at [26]. See also [5-970.105.05]. The concept of casual employment within the common law of employment, untrammelled by award prescription, is generally taken to connote an employee who works under a series of separate and distinct contracts of employment entered into for a fixed period to meet the [page 125] exigencies of particular work requirements of an employer, rather than under a single and ongoing contract of indefinite duration: Serco (Australia) Pty Ltd v Moreno (1996) 65 IR 145; 76 WAIG 937. The informality, uncertainty and irregularity of an engagement supports a conclusion that the employment has the characteristic of being casual. Conversely regular and systematic engagements with a reasonable expectation of continuing employment are usually not characteristic of casual employment: Cetin v Ripon Pty Ltd t/as Parkview Hotel Print PR938639; (2003) 127 IR 205. Certain indicia may point to the nature of the contract, but are not determinative taken alone. These may include: the classifying name given to the worker and initially accepted by the parties; the provisions of the relevant award; the reasonable expectation that work would be available to the worker; the number of hours worked per week; whether the employment was regular; whether the worker worked in accordance with a roster published in advance; whether there was reasonable, mutual expectation of continuity of employment; whether notice is required by an worker prior to him or her being absent on leave; whether the employer reasonably expected that work would be available; whether the employee had a consistent starting time and set finishing time; there may be other indicia: Serco (Australia) Pty Ltd v Moreno (1996) 65 IR 145; 76 WAIG 937. As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa: Shortland v The Smiths Snackfood Co Ltd (2010) 198 IR 237; [2010] FWAFB 5709 at [10]. [5-1490.20] Employee — s 23(1), (2), (a), (b), (3), (4), (a), (b) See s 12. [5-1490.25] Employer — s 23(1), (2), (a), (b), (3), (4), (b) See s 12. [5-1490.30] National system employer — s 23(1), (4) See ss 12 and 14. [5-1490.35] Regular and systematic basis — s 23(2)(b) In situations where there is not a clear pattern

or roster of hours and days worked nor a clear agreed arrangement between the employer and employee, evidence of regular and systematic employment may be established where: the employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular: Ponce v DJT Staff Management Services Pty Ltd t/as Daly’s Traffic [2010] FWA 2078 at [76]. [5-1490.40] Outline of Section The Explanatory Memorandum to the Fair Work Bill 2008 states at [122] that “[t]he definition of small business employer is relevant to determining an employer’s obligation to pay redundancy pay under clause 119 (see paragraph 121(b)), provide [page 126] notice of termination of employment under clause 117 (see paragraph 123(3)(a)), determine the applicable minimum employment period (see clause 383) and determine the applicability of the Small Business Fair Dismissal Code (see clause 388).” *Editor’s Note: Commentary to s 23 prepared by Ian Latham BA (Hons)/LLB (ANU), Barrister.

____________________

[5-1495]

Terms relating to superannuation

23A (1) MySuper product has the meaning given by the Superannuation Industry (Supervision) Act 1993. (1A) A standard MySuper product is a MySuper product that is not an employer MySuper product. (1B) An employer MySuper product is a tailored MySuper product or a corporate MySuper product. (2) A tailored MySuper product is a MySuper product in relation to which section 29TB of the Superannuation Industry (Supervision) Act 1993 is satisfied. (3) A corporate MySuper product is a MySuper product that is offered by a superannuation fund that: (a) is a standard employer-sponsored fund (within the meaning of the Superannuation Industry (Supervision) Act 1993); and (b) is not a public offer superannuation fund (within the meaning of that Act); and

(c) has: (i) one standard employer-sponsor (within the meaning of that Act); or (ii) 2 or more standard employer-sponsors (within the meaning of that Act) that are associates of each other for the purposes of that Act. (4) A reference in this Act to a superannuation fund doing a thing in relation to a matter (for example, offering a MySuper product or making an application or submission) is a reference to the RSE licensee (within the meaning of the Superannuation Industry (Supervision) Act 1993) of the fund doing that thing. [s 23A insrt Act 174 of 2012 s 3 and Sch 1 item 9, opn 1 Jan 2014]

PART 1-3 — APPLICATION OF THIS ACT DIVISION 1 — INTRODUCTION

[5-1710]

Guide to this Part

24 This Part deals with the extent of the application of this Act. Division 2 is about how this Act affects the operation of certain State or Territory laws. Divisions 2A and 2B are about the extended application of this Act in States that have referred to the Parliament of the Commonwealth matters relating to this Act. Division 3 is about the geographical application of this Act. Division 4 deals with other matters relating to the application of this Act. [Editor’s note: Section 24 of this legislation is reproduced in this format in line with the official version.] [s 24 subst Act 54 of 2009 s 3 and Sch 1, opn 25 June 2009; am Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

[page 127]

[5-1730]

Meanings of employee and employer

25 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). However, that Division does not apply for the purposes of Divisions 2A and 2B of this Part. [s 25 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY TO SECTION 25

Derivation …. Employee — s 25 …. Employer – s 25 ….

[5-1730.05] [5-1730.10] [5-1730.15]

[5-1730.05] Derivation The section is new. [5-1730.10] Employee — s 25 See s 12. [5-1730.15] Employer – s 25 See s 12.

____________________

DIVISION 2 — INTERACTION WITH STATE AND TERRITORY LAWS

[5-1900] Act excludes State or Territory industrial laws 26 (1) This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer. (2) A State or Territory industrial law is: (a) a general State industrial law; or (b) an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes: (i) regulating workplace relations (including industrial matters, industrial activity, collective bargaining, industrial disputes and industrial action); (ii) providing for the establishment or enforcement of terms and conditions of employment;

providing for the making and enforcement of agreements (iii) (including individual agreements and collective agreements), and other industrial instruments or orders, determining terms and conditions of employment; (iv) prohibiting conduct relating to a person’s membership or nonmembership of an industrial association; (v) providing for rights and remedies connected with the termination of employment; (vi) providing for rights and remedies connected with conduct that adversely affects an employee in his or her employment; or (c) a law of a State or Territory that applies to employment generally and deals with leave (other than long service leave or leave for victims of crime); or (d) a law of a State or Territory providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal or comparable value; or [page 128] (e) a law of a State or Territory providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; or (f) a law of a State or Territory that entitles a representative of a trade union to enter premises; or (g) an instrument made under a law described in paragraph (a), (b), (c), (d), (e) or (f), so far as the instrument is of a legislative character; or (h) either of the following: (i) a law that is a law of a State or Territory; (ii) an instrument of a legislative character made under such a law;

that is prescribed by the regulations. (3) Each of the following is a general State industrial law: (a) the Industrial Relations Act 1996 of New South Wales; (b) the Industrial Relations Act 1999 of Queensland; (c) the Industrial Relations Act 1979 of Western Australia; (d) the Fair Work Act 1994 of South Australia; (e) the Industrial Relations Act 1984 of Tasmania. (4) A law or an Act of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to: (a) all employers and employees in the State or Territory; or (b) all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory. For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies. COMMENTARY TO SECTION 26*

Derivation …. Constitutional basis …. Applies to employment generally — s 26(2)(c) …. Instrument is of a legislative character — s 26(2)(g) …. Industrial association — s 26(2)(b) …. Law of a state or territory — s 26(2)(c), (d), (e), (f), (h) (i), (4) …. National system employee — s 26(1) …. National system employer — s 26(1) …. State — s 26(1), (2), (a), (b), (c), (d), (e), (f), (h)(i), (3), (4) …. Territory — s 26(1), (2), (a), (b), (c), (d), (e), (f), (h)(i), (3), (4) …. Outline of section …. [5-1900.01] Derivation Section 16 of the Workplace Relations Act 1996.

[5-1900.01] [5-1900.05] [5-1900.10] [5-1900.15] [5-1900.20] [5-1900.25] [5-1900.30] [5-1900.35] [5-1900.40] [5-1900.45] [5-1900.50]

[5-1900.05] Constitutional basis The predecessor to this section was challenged in State of New South Wales v Commonwealth of Australia (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52; BC200609129. The majority of the High Court at [364] and [370] rejected submissions that s 16 of the Workplace Relations Act 1996 was not a law dealing with a subject matter assigned to the [page 129] Commonwealth parliament but merely a law aimed at preventing state legislative action because it sought to exclude the operation of state laws on matters in respect of which the Commonwealth had not attempted to legislate. [5-1900.10] Applies to employment generally — s 26(2)(c) The Explanatory Memorandum to the Fair Work Bill 2008 at [137] states that examples of state or territory laws that apply to employment generally are laws dealing with annual leave for all employees in the state or laws setting state-wide minimum terms and conditions of employment. Examples of laws that do not apply to employment generally include laws that apply to a single industry sector, or to a particular class of employees and their employers or to only one employer and its employees (eg, a law creating a body corporate and setting terms and conditions of employment for its employees). [5-1900.15] Instrument is of a legislative character — s 26(2)(g) A state award is an instrument made under the Act which is of a legislative character: (Commission’s own motion) v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch and Jenny Craig Weight Loss Centres Pty Ltd [2010] WAIRComm 200 at [15]. [5-1900.20] Industrial association — s 26(2)(b) See s 12. [5-1900.25] Law of a state or territory — s 26(2)(c), (d), (e), (f), (h)(i), (4) The distinction with an Act of a state or territory would suggest that such laws are the common law. [5-1900.30] National system employee — s 26(1) See s 13. [5-1900.35] National system employer — s 26(1) See s 14. [5-1900.40] State — s 26(1), (2), (a), (b), (c), (d), (e), (f), (h)(i), (3), (4) See Acts Interpretation Act 1901 s 2B. [5-1900.45] Territory — s 26(1), (2), (a), (b), (c), (d), (e), (f), (h)(i), (3), (4) See Acts Interpretation Act 1901, s 2B. [5-1900.50] Outline of section The Explanatory Memorandum to the Fair Work Bill 2008 stated at [128] that the Bill is intended to cover the workplace relations field by excluding the application of state and territory industrial laws to national system employers and their employees. This approach was upheld by the High Court in State of New South Wales v Commonwealth of Australia (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52; BC200609129. Kiefel J of the Federal Court has said of an earlier version of this section that it “may be said to mark out the field of relations between a constitutional corporation, in its capacity as employer, and individuals, in their capacity as employees of the corporation, as the subject of the Commonwealth’s exclusive law-making with the exception of the laws identified in subs (2) and (3): Tristar Steering & Suspension Ltd v Industrial Relations Commission of New South Wales (2007) 158 FCR 104; 240 ALR 62; [2007] FCAFC 50; BC200702509 at [10]. See generally Latham, The Tristar case: Defining the

field of Commonwealth power over workplace relations, Industrial Law NSW Bulletin 48, June 2007, LexisNexis Butterworths. Note s 30 raises the possibility of further exclusion of laws of the states and territories or instruments made under those laws. *Editors’ note: Commentary to section 26 by Ian Latham BA/LLB (Hons) (ANU), Barrister.

____________________

[5-1920] State and Territory laws that are not excluded by section 26 27 (1A) Section 26 does not apply to any of the following laws: (a) the Anti-Discrimination Act 1977 of New South Wales; [page 130] (b) (c) (d) (e) (f) (g) (h)

the Equal Opportunity Act 2010 of Victoria; the Anti-Discrimination Act 1991 of Queensland; the Equal Opportunity Act 1984 of Western Australia; the Equal Opportunity Act 1984 of South Australia; the Anti-Discrimination Act 1998 of Tasmania; the Discrimination Act 1991 of the Australian Capital Territory; the Anti-Discrimination Act of the Northern Territory.

[subs (1A) am Act 136 of 2012 s 3 and Sch 1 item 122, opn 1 Aug 2011]

(1) Section 26 does not apply to a law of a State or Territory so far as: (b) the law is prescribed by the regulations as a law to which section 26 does not apply; or (c) the law deals with any non-excluded matters; or (d) the law deals with rights or remedies incidental to: (i) any law referred to in subsection (1A); or (ii) any matter dealt with by a law to which paragraph (b) applies; or (iii) any non-excluded matters. Note: Examples of incidental matters covered by paragraph (d) are entry to premises for a purpose connected with workers compensation, occupational health and safety or outworkers. [subs (1) am Act 54 of 2009 s 3 and Sch 3, opn 25 June 2009] Editor’s note: There is no para (a) in subs 27(1).

(2) The non-excluded matters are as follows: (a) superannuation;

(b) workers compensation; (c) occupational health and safety; (d) matters relating to outworkers (within the ordinary meaning of the term); (e) child labour; (f) training arrangements, except in relation to terms and conditions of employment to the extent that those terms and conditions are provided for by the National Employment Standards or may be included in a modern award; (g) long service leave, except in relation to an employee who is entitled under Division 9 of Part 2-2 to long service leave; (h) leave for victims of crime; (i) attendance for service on a jury, or for emergency service duties; Note: See also section 112 for employee entitlements in relation to engaging in eligible community service activities.

(j)

declaration, prescription or substitution of public holidays, except in relation to the rights and obligations of an employee or employer in relation to public holidays; (k) the following matters relating to provision of essential services or to situations of emergency: (i) directions to perform work (including to perform work at a particular time or place, or in a particular way); (ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way); [page 131] (l)

regulation of any of the following: (i) employee associations; (ii) employer associations; (iii) members of employee associations associations;

or

of

employer

(m) workplace surveillance; (n) business trading hours; (o) claims for enforcement of contracts of employment, except so far as the law in question provides for a matter to which paragraph 26(2)(e) applies; (p) any other matters prescribed by the regulations. COMMENTARY ON SECTION 27*

Derivation …. Deals with — s 27(c), (d) …. Eligible community service activities — s 27(2) …. Employee — s 27(2)(g), note, (j), (l)(i), (iii) …. Employer — s 27(2)(j), (l)(ii), (iii) …. Employer association — s 27(2)(l)(ii), (iii) …. Enforcement of contracts of employment — s 27(2)(o) …. Long Service Leave — s 27(2)(g) …. Training arrangements — s 27(2)(f) …. Workers compensation — s 27(1) Note, (2)(b) …. Outworkers — s 27(1) Note, (2)(d) …. Outline of section ….

[5-1920.01] [5-1920.05] [5-1920.10] [5-1920.15] [5-1920.20] [5-1920.25] [5-1920.30] [5-1920.35] [5-1920.40] [5-1920.45] [5-1920.50] [5-1920.55]

[5-1920.01] Derivation Section 16 of the Workplace Relations Act 1996. [5-1920.05] Deals with — s 27(c), (d) [A] “law deal[ing]” … must deal with the matter itself and directly in the sense that the express subject matter of the legislation is the specified matter (or perhaps one of a number of them). On this approach, a law which may authorise a tribunal or court to deal with the subject matter is not a law dealing with the matter: Endeavour Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2007) 165 FCR 1; 243 ALR 222; [2007] FCAFC 177; BC200710043 at [65]. [5-1920.10] Eligible community service activities — s 27(2) NOTE: See ss 12 and 109. [5-1920.15] Employee — s 27(2)(g), note, (j), (l)(i), (iii) See s 12. [5-1920.20] Employer — s 27(2)(j), (l)(ii), (iii) See s 12. [5-1920.25] Employer association — s 27(2)(l)(ii), (iii) Pursuant to s 27(1)(c) and (2) of the Fair Work Act, national system employers (including constitutional corporations) can be members of a State registered organisation: Pharmacy Guild of Western Australia (Organisation of Employers) v (Not applicable) [2012] WAIRComm 711 at [31].

[5-1920.30] Enforcement of contracts of employment — s 27(2)(o) In HRX Holdings Pty Ltd v Pearson (2012) 205 FCR 169; 220 IR 350; [2012] FCA 161; BC201200823, Buchanan J held that the Restraint of Trade Act was protected by s 27. He held at [46] that it: is not necessary to consider whether the Restraints Act is a State industrial law (although it is not) because s 27 of the Fair Work Act provides (by s 27(1)(c)) that s 26 does not apply to a State law so far as the State law deals with “non-excluded matters”. Non-excluded matters [page 132] include (s 27(2)(o)) “claims for enforcement of contracts of employment” (subject to an exception not here relevant). The present claim is one to enforce a contract of employment. The Restraints Act deals with the issues raised by the claim. It is not a State law to which s 26(1) applies. The argument advanced is without substance, on the face of the Fair Work Act. [5-1920.35] Long Service Leave — s 27(2)(g) In Endeavour Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2007) 165 FCR 1; 243 ALR 222; [2007] FCAFC 177; BC200710043 at [70], the Full Federal Court held that the Industrial Court of New South Wales erred in concluding that New South Wales Commission has power to make an award binding a constitutional corporation in relation to long service leave. As McKenna Cmr explained in Re St Marys Rugby League Club Ltd 2010 (2010) 206 IR 126; [2010] FWA 8300 at [26], “[m]inimum long service leave standards are to be dealt with by the relevant statutes in the States and Territories, except as addressed in Ch 2, Pt 2-2, Div 9 of the Fair Work Act”. Commissioner McKenna went on to hold at [29] that: It is no longer permissible to make an enterprise agreement that derogates from long service leave entitlements under State or Territory laws. [5-1920.40] Training arrangements — s 27(2)(f) See s 12. [5-1920.45] Workers compensation — s 27(1) Note, (2)(b) The reference to “workers compensation” in s 26(2)(b) of the FWAct cannot, in my view, be construed narrowly. In enacting the provision the Commonwealth Parliament must be taken to have known that the laws of the State and Territories, in particular New South Wales, dealing with workers compensation were not limited to regulating payments by way of compensation to injured workers, but extended to rehabilitation and other matters relating to the management of workers suffering workplace injury: ACI Operations Pty Ltd v Field [2011] NSWIRComm 5 at [42]. [5-1920.50] Outworkers — s 27(1) Note, (2)(d) See s 12. [5-1920.55] Outline of section Sections 27(1) and (2) of the FW Act are a clear statement of intention that the Act is not intended to cover the field insofar as that field includes the subjects listed in s 27(2), thereby leaving room for the operation of such State laws as do not conflict with Commonwealth law in respect of that subject matter: ACI Operations Pty Ltd v Field [2011] NSWIRComm 5 at [35]. That is not the end of the story. As Reeves J held in Ramsay v Sunbuild Pty Ltd (2014) 221 FCR 315; 241 IR 70; [2014] FCA 54; BC201400373 at [76] on an obiter basis: Nonetheless, the paramount position of the Commonwealth Parliament in relation to industrial matters, elucidated above, makes it incontrovertible that the Commonwealth retains the exclusive

power to make whatever industrial laws it considers are appropriate. Permitting the States or Territories to make laws on occupational, health and safety matters under s 27(2)(c) of the FWA does not, in my view, affect this paramount position, whether that relates to occupational, health and safety matters, or industrial law matters generally. It necessarily follows that, if the Commonwealth Parliament chose to make such laws in a way that gave rise to a relevant inconsistency or repugnancy with a law made by the Northern Territory Legislative Assembly — even the Northern Territory’s WHS Act — then clearly that law would give way to the Commonwealth law… *Editors’ note: Commentary on s 27 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[5-1940] Act excludes prescribed State and Territory laws 28 (1) This Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations. [page 133] (2) However, subsection (1) applies only so far as the law of the State or Territory would otherwise apply in relation to a national system employee or a national system employer. (3) To avoid doubt, subsection (1) has effect even if the law is covered by section 27 (so that section 26 does not apply to the law). This subsection does not limit subsection (1). COMMENTARY ON SECTION 28*

Derivation …. In relation to — s 28(2) …. Law of the State or Territory — s 28(1), (2) …. National system employee — s 28(2) …. National system employer — s 28(2) …. The Regulations — s 28(1) …. This Act — s 28(1) …. Outline of section ….

[5-1940.01] [5-1940.05] [5-1940.10] [5-1940.15] [5-1940.20] [5-1940.25] [5-1940.30] [5-1940.35]

[5-1940.01] Derivation Section 28(1) is derived from s 16(4) of the Workplace Relations Act 1996.

Section 28(2) is new. Section 28(3) is derived from s 16(5) of the Workplace Relations Act 1996. [5-1940.05] In relation to — s 28(2) See [9-5050.10]. [5-1940.10] Law of the State or Territory — s 28(1), (2) See [5-1900.25]. [5-1940.15] National system employee — s 28(2) See ss 12, 13, 30C. [5-1940.20] National system employer — s 28(2) See ss 12, 14, 30D. [5-1940.25] The Regulations — s 28(1) See reg 1.14. [5-1940.30] This Act — s 28(1) See s 12. [5-1940.35] Outline of section This section empowers the Commonwealth to intrude into the field of laws excluded from the reach of the Act by s 27. As the Explanatory Memorandum to the Fair Work Bill explains at [146]: Clause 28 provides that the regulations may prescribe additional State or Territory laws that are excluded, so far as they would otherwise apply to national system employers and their employees, even if the law is not excluded by reason of cl 27. This enables the regulations to prescribe an excluded State or Territory law in circumstances where it would not be appropriate for regulations under paragraph 26(2)(h) to prescribe such a law as a State or Territory industrial law (a definition which is also relevant in Pt 3-4 (Right of entry)). *Editors’ note: Commentary on s 28 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[5-1960] Interaction of modern awards and enterprise agreements with State and Territory laws 29 (1) A modern award or enterprise agreement prevails over a law of a State or Territory, to the extent of any inconsistency. (2) Despite subsection (1), a term of a modern award or enterprise agreement applies subject to the following: [page 134] (a) any law covered by subsection 27(1A); (b) any law of a State or Territory so far as it is covered by paragraph

27(1)(b), (c) or (d). Note: In addition, a term of an enterprise agreement could be an unlawful term and of no effect if it requires or permits a designated emergency management body to act other than in accordance with a State or Territory law and this affects or could affect the body’s volunteers (see paragraphs 194(baa), 195A(1)(d) and 253(1)(b)). [subs (2) am Act 62 of 2016 s 3 and Sch 1 item 2, opn 13 Oct 2016]

(3) Despite subsection (2), a term of a modern award or enterprise agreement does not apply subject to a law of a State or Territory that is prescribed by the regulations as a law to which modern awards and enterprise agreements are not subject.

[5-1980] Act may exclude State and Territory laws etc in other cases 30 This Division is not a complete statement of the circumstances in which this Act and instruments made under it are intended to apply to the exclusion of, or prevail over, laws of the States and Territories or instruments made under those laws.

DIVISION 2A — APPLICATION OF THIS ACT IN STATES THAT REFER MATTERS BEFORE 1 JULY 2009 [Div 2A insrt Act 54 of 2009 s 3 and Sch 1, opn 25 June 2009; am Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

[5-2020]

Meaning of terms used in this Division

30A (1) In this Division: amendment [def rep Act 124 of 2009 s 3 and Sch 1, opn 25 June 2009]

amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30B(4). [def insrt Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

excluded subject matter means any of the following matters: (a) a matter dealt with in a law referred to in subsection 27(1A) of this Act;

(b) (c) (d) (e)

superannuation; workers compensation; occupational health and safety; matters relating to outworkers (within the ordinary meaning of the term); (f) child labour; (g) training arrangements; (h) long service leave; (i) leave for victims of crime; (j) attendance for service on a jury, or for emergency service duties; (k) declaration, prescription or substitution of public holidays; (l) the following matters relating to provision of essential services or to situations of emergency: (i) directions to perform work (including to perform work at a particular time or place, or in a particular way); [page 135]

(m)

(n) (o) (p)

(ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way); regulation of any of the following: (i) employee associations; (ii) employer associations; (iii) members of employee associations or of employer associations; workplace surveillance; business trading hours; claims for enforcement of contracts of employment, except so far as a law of a State provides for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal

finds is unfair; (q) rights or remedies incidental to a matter referred to in a preceding paragraph of this definition; except to the extent that this Act as originally enacted deals with the matter (directly or indirectly), or requires or permits instruments made or given effect under this Act so to deal with the matter. [def subst Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

express amendment means the direct amendment of the text of this Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter), but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act. [def am Act 124 of 2009 s 3 and Sch 1, opn 25 June 2009]

fundamental workplace relations principles: see subsection 30B(9). [def insrt Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

initial reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30B(3). [def insrt Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

law enforcement officer means: (a) a member of a police force or police service; or (b) a person appointed to a position for the purpose of being trained as a member of a police force or police service; or (c) a person who has the powers and duties of a member of a police force or police service; and, without limiting paragraphs (a), (b) and (c), includes a police reservist, a police recruit, a police cadet, a junior constable, a police medical officer, a special constable, an ancillary constable or a protective services officer. [def subst Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

local government employee, of a State, means: (a) an employee of a local government employer of the State; or (b) any other employee in the State of a kind specified in the regulations.

[def insrt Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

local government employer, of a State, means an employer that is: (a) a body corporate that is established for a local government purpose by or under a law of a State; or [page 136] (b) a body corporate in which a body to which paragraph (a) applies has, or 2 or more such bodies together have, a controlling interest; or (c) a person who employs individuals for the purposes of an unincorporated body that is established for a local government purpose by or under a law of a State; or (d) any other body corporate that is a local government body in the State of a kind specified in the regulations; or (e) any other person who employs individuals for the purposes of an unincorporated body that is a local government body in the State of a kind specified in the regulations. [def insrt Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

referral law, of a State, means the law of the State that refers matters, as mentioned in subsection 30B(1), to the Parliament of the Commonwealth. referred provisions means the provisions of this Division to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States. referred subject matters means any of the following: (a) terms and conditions of employment, including any of the following: (i) minimum terms and conditions of employment, (including employment standards and minimum wages); (ii) terms and conditions of employment contained in instruments (including instruments such as awards, determinations and enterprise-level agreements);

(b)

(c)

(d) (e)

(iii) bargaining in relation to terms and conditions of employment; (iv) the effect of a transfer of business on terms and conditions of employment; terms and conditions under which an outworker entity may arrange for work to be performed for the entity (directly or indirectly), if the work is of a kind that is often performed by outworkers; rights and responsibilities of persons, including employees, employers, independent contractors, outworkers, outworker entities, associations of employees or associations of employers, being rights and responsibilities relating to any of the following: (i) freedom of association in the context of workplace relations, and related protections; (ii) protection from discrimination relating to employment; (iii) termination of employment; (iv) industrial action; (v) protection from payment of fees for services related to bargaining; (vi) sham independent contractor arrangements; (vii) standing down employees without pay; (viii)union rights of entry and rights of access to records; compliance with, and enforcement of, this Act; the administration of this Act; [page 137]

(f) the application of this Act; (g) matters incidental or ancillary to the operation of this Act or of instruments made or given effect under this Act; but does not include any excluded subject matter. [def am Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

referring State: see section 30B. State public sector employee, of a State, means: (a) an employee of a State public sector employer of the State; or (b) any other employee in the State of a kind specified in the regulations; and includes a law enforcement officer to whom subsection 30E(1) applies. State public sector employer, of a State, means an employer that is: (a) the State, the Governor of the State or a Minister of the State; or (b) a body corporate that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or (c) a body corporate in which the State has a controlling interest; or (d) a person who employs individuals for the purposes of an unincorporated body that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or (e) any other employer in the State of a kind specified in the regulations; and includes a holder of an office to whom subsection 30E(2) applies. [def am Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

transition reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30B(5). [def insrt Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

(2) Words or phrases in the definition of excluded subject matter in subsection (1), or in the definition of referred subject matters in subsection (1), that are defined in this Act (other than in this Division) have, in that definition, the meanings set out in this Act as in force on 1 July 2009. [subs (2) insrt Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010] [s 30A am Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

[5-2040]

Meaning of referring State

30B Reference of matters by State Parliament to Commonwealth Parliament (1) A State is a referring State if the Parliament of the State has, before 1 July 2009, referred the matters covered by subsections (3), (4) and (5) in relation to the State to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution: (a) if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and (b) if and to the extent that the matters are included in the legislative powers of the Parliament of the State. This subsection has effect subject to subsection (6). [subs (1) am Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

[page 138] (2) A State is a referring State even if: (a) the State’s referral law provides that the reference to the Parliament of the Commonwealth of any or all of the matters covered by subsections (3), (4) and (5) is to terminate in particular circumstances; or (b) the State’s referral law provides that particular matters, or all matters, relating to State public sector employees, or State public sector employers, of the State are not included in any or all of the matters covered by subsections (3), (4) and (5); or (c) the State’s referral law provides that particular matters, or all matters, relating to local government employees, or local government employers, of the State are not included in any or all of the matters covered by subsections (3), (4) and (5). [subs (2) am Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

(3) Reference covering referred provisions This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by amending this Act, as originally enacted, to

include the referred provisions. (4) Reference covering amendments This subsection covers the referred subject matters to the extent of making laws with respect to those matters by making express amendments of this Act. (5) Reference covering transitional matters This subsection covers making laws with respect to the transition from the regime provided for by: (a) the Workplace Relations Act 1996; or (b) a law of a State relating to workplace relations; to the regime provided for by this Act. (6) Effect of termination of reference Despite anything to the contrary in a referral law of a State, a State ceases to be a referring State if any or all of the following occurs: (a) the State’s initial reference terminates; (b) the State’s amendment reference terminates, and neither of subsections (7) and (8) apply to the termination; (c) the State’s transition reference terminates. [subs (6) subst Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

(7) A State does not cease to be a referring State because of the termination of its amendment reference if: (a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and (b) the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and (c) that State’s amendment reference, and the amendment reference of every other referring State (other than a referring State that has terminated its amendment reference in the circumstances referred to in subsection (8)), terminate on the same day. [subs (7) insrt Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

(8) A State does not cease to be a referring State because of the termination of its amendment reference if: (a) the termination is effected by the Governor of that State fixing a

day by proclamation as the day on which the reference terminates; and [page 139] (b) the day fixed is no earlier than the first day after the end of the period of 3 months beginning on the day on which the proclamation is published; and (c) the Governor of that State, as part of the proclamation by which the termination is to be effected, declares that, in the opinion of the Governor, this Act: (i) is proposed to be amended (by an amendment introduced into the Parliament by a Minister); or (ii) has been amended; in a manner that is inconsistent with one or more of the fundamental workplace relations principles. [subs (8) insrt Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

(9) The following are the fundamental workplace relations principles: (a) that this Act should provide for, and continue to provide for, the following: (i) a strong, simple and enforceable safety net of minimum employment standards; (ii) genuine rights and responsibilities to ensure fairness, choice and representation at work, including the freedom to choose whether or not to join and be represented by a union or participate in collective activities; (iii) collective bargaining at the enterprise level with no provision for individual statutory agreements; (iv) fair and effective remedies available through an independent umpire; (v) protection from unfair dismissal; (b) that there should be, and continue to be, in connection with the

operation of this Act, the following: (i) an independent tribunal system; (ii) an independent authority able to assist employers and employees within a national workplace relations system. [subs (9) insrt Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

[5-2060] Extended meaning of national system employee 30C (1) A national system employee includes: (a) any individual in a State that is a referring State because of this Division so far as he or she is employed, or usually employed, as described in paragraph 30D(1)(a), except on a vocational placement; and (b) a law enforcement officer of the State to whom subsection 30E(1) applies. [subs (1) am Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

(2) This section does not limit the operation of section 13 (which defines a national system employee). Note: Section 30H may limit the extent to which this section extends the meaning of national system employee.

[5-2080] Extended meaning of national system employer 30D (1) A national system employer includes: (a) any person in a State that is a referring State because of this Division so far as the person employs, or usually employs, an individual; and (b) a holder of an office to whom subsection 30E(2) applies. [subs (1) am Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

[page 140]

(2) This section does not limit the operation of section 14 (which defines a national system employer). Note: Section 30H may limit the extent to which this section extends the meaning of national system employer.

[5-2100] Extended ordinary meanings of employee and employer 30E (1) A reference in this Act to an employee with its ordinary meaning includes a reference to a law enforcement officer of a State that is a referring State because of this Division if the State’s referral law so provides for the purposes of that law. [subs (1) am Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

(2) A reference in this Act to an employer with its ordinary meaning includes a reference to a holder of an office of a State that is a referring State because of this Division if the State’s referral law provides, for the purposes of that law, that the holder of the office is taken to be the employer of a law enforcement officer of the State. [subs (2) am Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

(3) This section does not limit the operation of section 15 (which deals with references to employee and employer with their ordinary meanings). Note: Section 30H may limit the extent to which this section extends the meanings of employee and employer.

[5-2105]

Extended meaning of outworker entity

30F (1) An outworker entity includes a person, other than in the person’s capacity as a national system employer, so far as: (a) the person arranges for work to be performed for the person (either directly or indirectly); and (b) the work is of a kind that is often performed by outworkers; and (c) one or more of the following applies: (i) at the time the arrangement is made, one or more parties to the arrangement is in a State that is a referring State because of this Division; (ii) the work is to be performed in a State that is a referring State

because of this Division; (iii) the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a State that is a referring State because of this Division, and the work is reasonably likely to be performed in that State; (iv) the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a State that is a referring State because of this Division, and the work is to be performed in connection with that activity. [subs (1) am Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

(2) This section does not limit the operation of the definition of outworker entity in section 12. Note: Section 30H may limit the extent to which this section extends the meaning of outworker entity.

[page 141]

[5-2110]

General protections

30G (1) Part 3-1 (which deals with general protections) applies to action taken in a State that is a referring State because of this Division. [subs (1) am Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

(2) This section applies despite section 337 (which limits the application of Part 3-1), and does not limit the operation of sections 338 and 339 (which set out the application of that Part). Note: Section 30H may limit the extent to which this section extends the application of Part 3-1.

[5-2115] Division only has effect if supported by reference 30H A provision of this Division has effect in relation to a State that is a referring State because of this Division only to the extent that the State’s referral law refers to the Parliament of the Commonwealth the matters mentioned in subsection 30B(1) that result in the Parliament of the Commonwealth having sufficient legislative power for the provision so to

have effect. [s 30H am Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

[5-2120] Application of the Acts Interpretation Act 1901 30J [s 30J rep Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

DIVISION 2B — APPLICATION OF THIS ACT IN STATES THAT REFER MATTERS AFTER 1 JULY 2009 BUT ON OR BEFORE 1 JANUARY 2010 [Div 2B insrt Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

[5-2123]

Meaning of terms used in this Division

30K (1) In this Division: amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(4). excluded subject matter means any of the following matters: (a) a matter dealt with in a law referred to in subsection 27(1A) of this Act; (b) superannuation; (c) workers compensation; (d) occupational health and safety; (e) matters relating to outworkers (within the ordinary meaning of the term); (f) child labour; (g) training arrangements; (h) long service leave; (i) leave for victims of crime; (j) attendance for service on a jury, or for emergency service duties; (k) declaration, prescription or substitution of public holidays;

(l)

the following matters relating to provision of essential services or to situations of emergency: (i) directions to perform work (including to perform work at a particular time or place, or in a particular way); [page 142]

(ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way); (m) regulation of any of the following: (i) employee associations; (ii) employer associations; (iii) members of employee associations or of employer associations; (n) workplace surveillance; (o) business trading hours; (p) claims for enforcement of contracts of employment, except so far as a law of a State provides for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; (q) rights or remedies incidental to a matter referred to in a preceding paragraph of this definition; except to the extent that this Act as originally enacted deals with the matter (directly or indirectly), or requires or permits instruments made or given effect under this Act so to deal with the matter. express amendment means the direct amendment of the text of this Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter), but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act. fundamental workplace relations principles: see subsection 30L(9).

initial reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(3). law enforcement officer means: (a) a member of a police force or police service; or (b) a person appointed to a position for the purpose of being trained as a member of a police force or police service; or (c) a person who has the powers and duties of a member of a police force or police service; and, without limiting paragraphs (a), (b) and (c), includes a police reservist, a police recruit, a police cadet, a junior constable, a police medical officer, a special constable, an ancillary constable or a protective services officer. local government employee, of a State, means: (a) an employee of a local government employer of the State; or (b) any other employee in the State of a kind specified in the regulations. local government employer, of a State, means an employer that is: (a) a body corporate that is established for a local government purpose by or under a law of a State; or (b) a body corporate in which a body to which paragraph (a) applies has, or 2 or more such bodies together have, a controlling interest; or (c) a person who employs individuals for the purposes of an unincorporated body that is established for a local government purpose by or under a law of a State; or (d) any other body corporate that is a local government body in the State of a kind specified in the regulations; or [page 143] (e) any other person who employs individuals for the purposes of an

unincorporated body that is a local government body in the State of a kind specified in the regulations. referral law, of a State, means the law of the State that refers matters, as mentioned in subsection 30L(1), to the Parliament of the Commonwealth. referred provisions means the provisions of this Division to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States. referred subject matters means any of the following: (a) terms and conditions of employment, including any of the following: (i) minimum terms and conditions of employment, (including employment standards and minimum wages); (ii) terms and conditions of employment contained in instruments (including instruments such as awards, determinations and enterprise-level agreements); (iii) bargaining in relation to terms and conditions of employment; (iv) the effect of a transfer of business on terms and conditions of employment; (b) terms and conditions under which an outworker entity may arrange for work to be performed for the entity (directly or indirectly), if the work is of a kind that is often performed by outworkers; (c) rights and responsibilities of persons, including employees, employers, independent contractors, outworkers, outworker entities, associations of employees or associations of employers, being rights and responsibilities relating to any of the following: (i) freedom of association in the context of workplace relations, and related protections; (ii) protection from discrimination relating to employment; (iii) termination of employment; (iv) industrial action;

(v) protection from payment of fees for services related to bargaining; (vi) sham independent contractor arrangements; (vii) standing down employees without pay; (viii)union rights of entry and rights of access to records; (d) compliance with, and enforcement of, this Act; (e) the administration of this Act; (f) the application of this Act; (g) matters incidental or ancillary to the operation of this Act or of instruments made or given effect under this Act; but does not include any excluded subject matter. referring State: see section 30L. State public sector employee, of a State, means: (a) an employee of a State public sector employer of the State; or (b) any other employee in the State of a kind specified in the regulations; and includes a law enforcement officer of the State. [page 144] State public sector employer, of a State, means an employer that is: (a) the State, the Governor of the State or a Minister of the State; or (b) a body corporate that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or (c) a body corporate in which the State has a controlling interest; or (d) a person who employs individuals for the purposes of an unincorporated body that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or (e) any other employer in the State of a kind specified in the

regulations; and includes a holder of an office of the State whom the State’s referral law provides is to be taken, for the purposes of this Act, to be an employer of law enforcement officers of the State. transition reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(5). (2) Words or phrases in the definition of excluded subject matter in subsection (1), or in the definition of referred subject matters in subsection (1), that are defined in this Act (other than in this Division) have, in that definition, the meanings set out in this Act as in force on 1 July 2009.

[5-2126]

Meaning of referring State

30L Reference of matters by State Parliament to Commonwealth Parliament (1) A State is a referring State if the Parliament of the State has, after 1 July 2009 but on or before 1 January 2010, referred the matters covered by subsections (3), (4) and (5) in relation to the State to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution: (a) if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and (b) if and to the extent that the matters are included in the legislative powers of the Parliament of the State. This subsection has effect subject to subsection (6). (2) A State is a referring State even if: (a) the State’s referral law provides that the reference to the Parliament of the Commonwealth of any or all of the matters covered by subsections (3), (4) and (5) is to terminate in particular circumstances; or (b) the State’s referral law provides that particular matters, or all matters, relating to State public sector employees, or State public sector employers, of the State are not included in any or all of the

matters covered by subsections (3), (4) and (5); or (c) the State’s referral law provides that particular matters, or all matters, relating to local government employees, or local government employers, of the State are not included in any or all of the matters covered by subsections (3), (4) and (5). Reference covering referred provisions (3) This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by amending this Act, as originally [page 145] enacted, and as subsequently amended by amendments enacted at any time before the State’s referral law commenced, to include the referred provisions. Reference covering amendments (4) This subsection covers the referred subject matters to the extent of making laws with respect to those matters by making express amendments of this Act. Reference covering transitional matters (5) This subsection covers making laws with respect to the transition from the regime provided for by: (a) the Workplace Relations Act 1996 (as it continues to apply because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009); or (b) a law of a State relating to workplace relations or industrial relations; to the regime provided for by this Act. Effect of termination of reference (6) Despite anything to the contrary in a referral law of a State, a State ceases to be a referring State if any or all of the following occurs:

(a) the State’s initial reference terminates; (b) the State’s amendment reference terminates, and neither of subsections (7) and (8) apply to the termination; (c) the State’s transition reference terminates. (7) A State does not cease to be a referring State because of the termination of its amendment reference if: (a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and (b) the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and (c) that State’s amendment reference, and the amendment reference of every other referring State (other than a referring State that has terminated its amendment reference in the circumstances referred to in subsection (8)), terminate on the same day. (8) A State does not cease to be a referring State because of the termination of its amendment reference if: (a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and (b) the day fixed is no earlier than the first day after the end of the period of 3 months beginning on the day on which the proclamation is published; and (c) the Governor of that State, as part of the proclamation by which the termination is to be effected, declares that, in the opinion of the Governor, this Act: (i) is proposed to be amended (by an amendment introduced into the Parliament by a Minister); or (ii) has been amended; in a manner that is inconsistent with one or more of the fundamental workplace relations principles. (9) The following are the fundamental workplace relations principles:

(a) that this Act should provide for, and continue to provide for, the following: [page 146] (i)

a strong, simple and enforceable safety net of minimum employment standards; (ii) genuine rights and responsibilities to ensure fairness, choice and representation at work, including the freedom to choose whether or not to join and be represented by a union or participate in collective activities; (iii) collective bargaining at the enterprise level with no provision for individual statutory agreements; (iv) fair and effective remedies available through an independent umpire; (v) protection from unfair dismissal; (b) that there should be, and continue to be, in connection with the operation of this Act, the following: (i) an independent tribunal system; (ii) an independent authority able to assist employers and employees within a national workplace relations system.

[5-2129] Extended meaning of national system employee 30M (1) A national system employee includes: (a) any individual in a State that is a referring State because of this Division so far as he or she is employed, or usually employed, as described in paragraph 30N(1)(a), except on a vocational placement; and (b) a law enforcement officer of the State to whom subsection 30P(1) applies. (2) This section does not limit the operation of section 13 (which defines a

national system employee). Note: Section 30S may limit the extent to which this section extends the meaning of national system employee.

[5-2132] Extended meaning of national system employer 30N (1) A national system employer includes: (a) any person in a State that is a referring State because of this Division so far as the person employs, or usually employs, an individual; and (b) a holder of an office to whom subsection 30P(2) applies. (2) This section does not limit the operation of section 14 (which defines a national system employer). Note: Section 30S may limit the extent to which this section extends the meaning of national system employer.

[5-2135] Extended ordinary meanings of employee and employer 30P (1) A reference in this Act to an employee with its ordinary meaning includes a reference to a law enforcement officer of a referring State if the State’s referral law so provides for the purposes of that law. (2) A reference in this Act to an employer with its ordinary meaning includes a reference to a holder of an office of a State if the State’s referral law provides, for the purposes of that law, that the holder of the office is taken to be the employer of a law enforcement officer of the State. [page 147] (3) This section does not limit the operation of section 15 (which deals with references to employee and employer with their ordinary meanings). Note: Section 30S may limit the extent to which this section extends the meanings of employee and employer.

[5-2138]

Extended meaning of outworker entity

30Q (1) An outworker entity includes a person, other than in the person’s capacity as a national system employer, so far as: (a) the person arranges for work to be performed for the person (either directly or indirectly); and (b) the work is of a kind that is often performed by outworkers; and (c) one or more of the following applies: (i) at the time the arrangement is made, one or more parties to the arrangement is in a State that is a referring State because of this Division; (ii) the work is to be performed in a State that is a referring State because of this Division; (iii) the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a State that is a referring State because of this Division, and the work is reasonably likely to be performed in that State; (iv) the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a State that is a referring State because of this Division, and the work is to be performed in connection with that activity. (2) This section does not limit the operation of the definition of outworker entity in section 12. Note: Section 30S may limit the extent to which this section extends the meaning of outworker entity.

[5-2141]

General protections

30R (1) Part 3-1 (which deals with general protections) applies to action taken in a State that is a referring State because of this Division. (2) This section applies despite section 337 (which limits the application of Part 3-1), and does not limit the operation of sections 338 and 339 (which set out the application of that Part). Note: Section 30S may limit the extent to which this section extends the application of Part 3–1.

[5-2145]

Division only has effect if supported by

reference 30S A provision of this Division has effect in relation to a State that is a referring State because of this Division only to the extent that the State’s referral law refers to the Parliament of the Commonwealth the matters mentioned in subsection 30L(1) that result in the Parliament of the Commonwealth having sufficient legislative power for the provision so to have effect. [page 148]

DIVISION 3 — GEOGRAPHICAL APPLICATION OF THIS ACT

[5-2150] Exclusion of persons etc insufficiently connected with Australia 31 (1) A provision of this Act prescribed by the regulations does not apply to a person or entity in Australia prescribed by the regulations as a person to whom, or an entity to which, the provision does not apply. Note 1: In this context, Australia includes Norfolk Island, the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea (see the definition of Australia in section 12 of this Act and section 15B of the Acts Interpretation Act 1901). Note 2: The regulations may prescribe the person or entity by reference to a class (see subsection 13(3) of the Legislation Act 2003). [subs (1) am Act 126 of 2015 s 3 and Sch 1 item 211, opn 5 Mar 2016; Act 33 of 2016 s 3 and Sch 5 item 54, opn 1 July 2016]

(2) Before the Governor-General makes regulations for the purposes of subsection (1) prescribing either or both of the following: (a) a provision of this Act that is not to apply to a person or entity; (b) a person to whom, or an entity to which, a provision of this Act is not to apply; the Minister must be satisfied that the provision should not apply to the person or entity in Australia because there is not a sufficient connection between the person or entity and Australia.

[5-2170] Regulations may modify application of this Act in certain parts of Australia 32 If the regulations prescribe modifications of this Act for its application in relation to all or part of any one or more of the following areas: (a) all the waters of the sea on the landward side of the outer limits of the territorial sea of Australia, including: (i) such waters within the limits of a State or Territory; and (ii) the airspace over, and the seabed and sub-soil beneath, such waters; (b) the Territory of Christmas Island; (c) the Territory of Cocos (Keeling) Islands; then this Act has effect as so modified in relation to any such area or part. Note: This Act would, in the absence of any such regulations, apply in relation to these areas in the same way as it applies in relation to the rest of Australia.

[5-2175] Rules may modify application of this Act in Norfolk Island 32A (1) The Minister may, by legislative instrument, make rules prescribing modifications of this Act for its application in relation to Norfolk Island. (2) To avoid doubt, the rules may not do the following: (a) create an offence or civil penalty; (b) provide powers of: (i) arrest or detention; or (ii) entry, search or seizure; (c) impose a tax; (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act; [page 149]

(e) directly amend the text of this Act. (3) If the rules prescribe modifications of this Act for its application in relation to Norfolk Island, then this Act has effect as so modified in relation to Norfolk Island. Note: This Act would, in the absence of any such rules, apply in relation to Norfolk Island in the same way as it applies in relation to the rest of Australia. [s 32A insrt Act 33 of 2016 s 3 and Sch 5 item 55, opn 1 July 2016]

[5-2190] Extension of this Act to the exclusive economic zone and the continental shelf 33 Extension to Australian ships etc. (1) Without limiting subsection (3), this Act extends to or in relation to: (a) any Australian ship in the exclusive economic zone or in the waters above the continental shelf; and (b) any fixed platform in the exclusive economic zone or in the waters above the continental shelf; and (c) any ship, in the exclusive economic zone or in the waters above the continental shelf, that: (i) supplies, services or otherwise operates in connection with a fixed platform in the exclusive economic zone or in the waters above the continental shelf; and (ii) operates to and from an Australian port; and (d) any ship, in the exclusive economic zone or in the waters above the continental shelf, that: (i) is operated or chartered by an Australian employer; and (ii) uses Australia as a base. (2) For the purposes of extending this Act in accordance with paragraph (1)(d): (a) any reference in a provision of this Act to an employer is taken to include a reference to an Australian employer; and (b) any reference in a provision of this Act to an employee is taken to include a reference to an employee of an Australian employer.

Extensions prescribed by regulations (3) Without limiting subsection (1), if the regulations prescribe further extensions of this Act, or specified provisions of this Act, to or in relation to the exclusive economic zone or to the waters above the continental shelf, then this Act extends accordingly. Modifications relating to extended application (4) Despite subsections (1) and (3), if the regulations prescribe modifications of this Act, or specified provisions of this Act, for its operation under subsection (1) or (3) in relation to one or both of the following: (a) all or part of the exclusive economic zone; (b) all or part of the continental shelf; then, so far as this Act would, apart from this subsection, extend to the zone or part, or to the continental shelf or part, it has effect as so modified. (5) For the purposes of subsection (4), the regulations may prescribe different modifications in relation to different parts of the exclusive economic zone or continental shelf. [page 150]

[5-2210] Extension of this Act beyond the exclusive economic zone and the continental shelf 34 Extension to Australian ships etc (1) Without limiting subsection (3), this Act extends to or in relation to: (a) any Australian ship outside the outer limits of the exclusive economic zone and the continental shelf; and (b) any ship, outside the outer limits of the exclusive economic zone and the continental shelf, that: (i) is operated or chartered by an Australian employer; and (ii) uses Australia as a base. (2) For the purposes of extending this Act in accordance with paragraph

(1)(b): (a) any reference in a provision of this Act to an employer is taken to include a reference to an Australian employer; and (b) any reference in a provision of this Act to an employee is taken to include a reference to an employee of an Australian employer. Extensions prescribed by regulations (3) Without limiting subsection (1), if the regulations prescribe further extensions of this Act, or specified provisions of this Act, in relation to all or part of the area outside the outer limits of the exclusive economic zone and the continental shelf, then this Act, or the specified provisions, extend accordingly to: (a) any Australian employer; and (b) any Australian-based employee. (3A) For the purposes of extending this Act in accordance with subsection (3): (a) any reference in a provision of this Act to an employer is taken to include a reference to: (i) an Australian employer; and (ii) an employer of an Australian-based employee; and (b) any reference in a provision of this Act to an employee is taken to include a reference to: (i) an employee of an Australian employer; and (ii) an Australian-based employee. Modified application in the area outside the outer limits of the exclusive economic zone and the continental shelf (4) Despite subsections (1) and (3), if the regulations prescribe modifications of this Act, or specified provisions of this Act, for their operation under subsection (1) or (3) in relation to all or part of the area outside the outer limits of the exclusive economic zone and the continental shelf, then this Act, or the specified provisions, have effect as so modified in relation to the area or part. (5) For the purposes of subsection (4), the regulations may prescribe

different modifications in relation to different parts of the area outside the outer limits of the exclusive economic zone and the continental shelf.

[5-2230] Meanings of Australian employer and Australian-based employee 35 (1) An Australian employer is an employer that: (a) is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or [page 151] (b) is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or (c) is the Commonwealth; or (d) is a Commonwealth authority; or (e) is a body corporate incorporated in a Territory; or (f) carries on in Australia, in the exclusive economic zone or in the waters above the continental shelf an activity (whether of a commercial, governmental or other nature), and whose central management and control is in Australia; or (g) is prescribed by the regulations. (2) An Australian-based employee is an employee: (a) whose primary place of work is in Australia; or (b) who is employed by an Australian employer (whether the employee is located in Australia or elsewhere); or (c) who is prescribed by the regulations. (3) However, paragraph (2)(b) does not apply to an employee who is engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories.

[5-2250]

Regulations excluding application of Act

35A (1) Regulations made for the purposes of section 32 or subsection 33(4) or 34(4) may exclude the application of the whole of this Act in relation to all or a part of an area referred to in section 32 or subsection 33(4) or 34(4) (as the case may be). (2) If subsection (1) applies, this Act has effect as if it did not apply in relation to that area or that part of that area.

[5-2270]

Geographical application of offences

36 Division 14 (Standard geographical jurisdiction) of the Criminal Code does not apply in relation to an offence against this Act. Note: The extended geographical application that this Division gives to this Act will apply to the offences in this Act.

DIVISION 4 — MISCELLANEOUS

[5-2440]

Act binds Crown

37 (1) This Act binds the Crown in each of its capacities. (2) However, this Act does not make the Crown liable to be prosecuted for an offence.

[5-2460] Act not to apply so as to exceed Commonwealth power 38 (1) Unless the contrary intention appears, if a provision of this Act: (a) would, apart from this section, have an application (an invalid application) in relation to: (i) one or more particular persons, things, matters, places, circumstances or cases; or (ii) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

[page 152] because of which the provision exceeds the Commonwealth’s legislative power; and (b) also has at least one application (a valid application) in relation to: (i) one or more particular persons, things, matters, places, circumstances or cases; or (ii) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases; that, if it were the provision’s only application, would be within the Commonwealth’s legislative power; it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application. (2) Despite subsection (1), the provision is not to have a particular valid application if: (a) apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or (b) the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power. (3) Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1). (4) This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.

[5-2480]

Acquisition of property

39 This Act, or any instrument made under this Act, does not apply to the

extent that the operation of this Act or the instrument would result in an acquisition of property (within the meaning of paragraph 51 (xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).

[5-2500] Interaction between fair work instruments and public sector employment laws 40 Generally, public sector employment laws prevail (1) A public sector employment law prevails over a fair work instrument that deals with public sector employment, to the extent of any inconsistency. When fair work instruments or their terms prevail (2) However, a fair work instrument, or a term of a fair work instrument, that deals with public sector employment prevails over a public sector employment law, to the extent of any inconsistency, if: (a) the instrument or term is prescribed by the regulations for the purposes of that particular law; or (b) the instrument or term (other than an FWC order or a term of an FWC order) [page 153] is included in a class of instruments or terms that are prescribed by the regulations for the purposes of that particular law. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 28, opn 1 Jan 2013]

Meaning of public sector employment law (3) A public sector employment law is a law of the Commonwealth (other than this Act) or a Territory, or a term of an instrument made under such a law, that deals with public sector employment. Laws that fair work instruments never prevail over (4) Subsection (2) does not apply to any provisions of the following that

are public sector employment laws: (a) the Safety, Rehabilitation and Compensation Act 1988; (b) the Superannuation Act 1976; (c) the Superannuation Act 1990; (d) the Superannuation Act 2005; (e) the Superannuation (Productivity Benefit) Act 1988; (f) an instrument made under a law referred to in any of the above paragraphs. Relationship with section 29 (5) This section prevails over section 29, to the extent of any inconsistency.

[5-2505] Application of the Acts Interpretation Act 1901 40A (1) The Acts Interpretation Act 1901, as in force on 25 June 2009, applies to this Act. (2) Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Act. [s 40A insrt Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010] COMMENTARY TO SECTION 40A*

Derivation …. This Act …. Outline of section ….

[5-2505.01] [5-2505.05] [5-2505.10]

[5-2505.01] Derivation The section has significant similarities to s 100.5 of the Criminal Code Amendment (Terrorism) Act 2002. [5-2505.05] This Act See s 12. [5-2505.10] Outline of section The Explanatory Memorandum to the Fair Work Amendment (State Referrals and House of Representatives Other Measures) Bill 2009 unhelpfully repeats the section. The Explanatory Memorandum to the Criminal Code Amendment (Terrorism) Act 2002 is more helpful, if only by analogy. Paragraph 10 refers to the powers there referred by the states: The scope of what is referred by a State Parliament is determined by that Parliament. As the scope of the matters referred is in part determined by reference to a particular text, proposed section

100.5 provides that the text referred is to be interpreted in accordance with the Acts Interpretation Act 1901 of the Commonwealth as in force on the day on which Schedule 1 of the Bill commences. This is intended to preclude any argument that the matters referred [page 154] differ from State to State (as a result of differences in the local interpretation legislation) or that the scope of the reference may change as a result of amendments of the Acts Interpretation Act 1901… *Editor’s note: Commentary to s 40A prepared by Ian Latham BA (Hons), LLB (ANU), Barrister.

____________________

[page 155]

CHAPTER 2 — TERMS AND CONDITIONS OF EMPLOYMENT PART 2-1 — CORE PROVISIONS FOR THIS CHAPTER DIVISION 1 — INTRODUCTION

[5-2770]

Guide to this Part

41 This Part has the core provisions for this Chapter, which deals with terms and conditions of employment of national system employees. The main terms and conditions come from the National Employment Standards, modern awards, enterprise agreements and workplace determinations. The National Employment Standards (Part 2-2) are minimum terms and conditions that apply to all national system employees. A modern award (see Part 2-3), an enterprise agreement (see Part 2-4) or a workplace determination (see Part 2-5) provides terms and conditions for those national system employees to whom the award, agreement or determination applies. Only one of those instruments can apply to an employee at a particular time. Division 2 has the provisions to enforce the National Employment Standards, modern awards and enterprise agreements. It also sets out when a modern award or enterprise agreement applies to a person and the significance of that for this Act. Note: In most cases, this Act applies to a workplace determination as if it were an enterprise agreement in operation (see section 279). For the rules about workplace determinations, see Part 2-5. Division 3 deals with the interaction between the National Employment Standards, modern awards and enterprise agreements. [Editor’s note: Section 41 of this legislation is reproduced in this format in line with the official version.]

[5-2790]

Meanings of employee and employer

42 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). [s 42 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY TO SECTION 42*

Derivation …. National system employee …. National system employer ….

[5-2790.01] [5-2790.5] [5-2790.10]

[5-2790.01] Derivation The section is new. [5-2790.5] National system employee See ss 12, 13, 30C. [5-2790.10] National system employer See ss 12, 14, 30D. *Editors’ note: Commentary to s 42 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ [page 156]

DIVISION 2 — CORE PROVISIONS FOR THIS CHAPTER Subdivision A — Terms and conditions of employment provided under this Act

[5-2960] Terms and conditions of employment provided under this Act 43 Main terms and conditions (1) The main terms and conditions of employment of an employee that are provided under this Act are those set out in: (a) the National Employment Standards (see Part 2-2); and (b) a modern award (see Part 2-3), an enterprise agreement (see Part 24) or a workplace determination (see Part 2-5) that applies to the

employee. Note 1: The situations in which a workplace determination, rather than a modern award or enterprise agreement, provides an employee’s terms and conditions of employment are limited. In most cases, this Act applies to a workplace determination as if it were an enterprise agreement in operation (see section 279). See Part 2-5 generally for the rules on workplace determinations. Note 2: Part 2-8 provides for the transfer of certain modern awards, enterprise agreements and workplace determinations if there is a transfer of business from an employee’s employer to another employer. Note 3: Copied State instruments provide the main terms and conditions of employment for an employee to whom the instrument applies. See Part 6-3A generally for the rules about those instruments. [subs (1) am Act 175 of 2012 s 3 and Sch 1 item 45, opn 5 Dec 2012]

Other terms and conditions (2) In addition, other terms and conditions of employment include: (a) those terms and conditions arising from: (i) a national minimum wage order (see Part 2-6); or (ii) an equal remuneration order (see Part 2-7); and (b) those terms and conditions provided by Part 2-9. Note: Part 2-9 deals with miscellaneous terms and conditions of employment, such as payment of wages.

Subdivision B — Terms and conditions of employment provided by the National Employment Standards

[5-3080] Contravening the National Employment Standards 44 (1) An employer must not contravene a provision of the National Employment Standards. Note: This subsection is a civil remedy provision (see Part 4-1).

(2) However, an order cannot be made under Division 2 of Part 4-1 in relation to a contravention (or alleged contravention) of subsection 65(5) or 76(4). Note 1: Subsections 65(5) and 76(4) state that an employer may refuse a request for flexible working arrangements, or an application to extend unpaid parental leave, only on reasonable business grounds.

[page 157] Note 2: Modern awards and enterprise agreements include terms about settling disputes in relation to the National Employment Standards (other than disputes as to whether an employer had reasonable business grounds under subsection 65(5) or 76(4)). COMMENTARY ON SECTION 44*

Derivation …. Civil remedy provisions — s 44 Note …. Contravene — s 44(1) …. Employer — s 44(1), Note 1, Note 2 …. Enterprise agreement — s 44 Note 2 …. Flexible working arrangements — s 44 Note 1 …. Modern award — s 44 Note 2 …. National employment standards — s 44(1), Note 2 …. Reasonable business grounds — s 44 Note 1, Note 2 …. Terms about settling disputes — s 44 Note 1 …. Outline of section ….

[5-3080.01] [5-3080.05] [5-3080.10] [5-3080.15] [5-3080.20] [5-3080.25] [5-3080.30] [5-3080.35] [5-3080.40] [5-3080.45] [5-3080.50]

[5-3080.01] Derivation The section is new. [5-3080.05] Civil remedy provisions — s 44 Note See ss 12 and 539 at [8-4960] and commentary to s 539. at [8-4960.1]–[8-4960.25]. [5-3080.10] Contravene — s 44(1) See [5-3400.15]. [5-3080.15] Employer — s 44(1), Note 1, Note 2 See s 42. [5-3080.20] Enterprise agreement — s 44 Note 2 See ss 12 and 172. [5-3080.25] Flexible working arrangements — s 44 Note 1 See s 65. [5-3080.30] Modern award — s 44 Note 2 See s 12. [5-3080.35] National employment standards — s 44(1), Note 2 See ss 12 and 61. [5-3080.40] Reasonable business grounds — s 44 Note 1, Note 2 See s 65(5A). [5-3080.45] Terms about settling disputes — s 44 Note 1 See s 186(6). [5-3080.50] Outline of section Clause 44 provides that an employer must not contravene a provision of the NES. Similar clauses provide that a person to whom a modern award or an enterprise agreement applies must not contravene a term of the award (cl 45) or agreement (cl 50): Explanatory Memorandum to the Fair Work Bill 2009 at [186].

*Editor’s note: Commentary on s 44 prepared by Ian Latham BA(Hons)/LLB (ANU).

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Subdivision C — Terms and conditions of employment provided by a modern award

[5-3200]

Contravening a modern award

45 A person must not contravene a term of a modern award. Note 1: This section is a civil remedy provision (see Part 4-1). Note 2: A person does not contravene a term of a modern award unless the award applies to the person: see subsection 46(1).

[page 158] COMMENTARY TO SECTION 45

Derivation …. Applies — s 45 Note 2 …. Civil remedy provision — s 45 Note 1 …. Contravene — s 45, Note 2 …. Modern award — s 45, Note 2 …. Person — s 45, Note 2 ….

[5-3200.01] [5-3200.05] [5-3200.10] [5-3200.11] [5-3200.15] [5-3200.20]

[5-3200.01] Derivation The section is new. [5-3200.05] Applies — s 45 Note 2 See s 47 and commentary at [5-3240.01]–[5-3240.60]. [5-3200.10] Civil remedy provision — s 45 Note 1 See ss 12 and 539 at [8-4960] and commentary to s 539 at [8-4960.1]–[8-4960.25]. [5-3200.11] Contravene — s 45, Note 2 See [8-4960.11]. [5-3200.15] Modern award — s 45, Note 2 See s 12 definition of “modern award”. [5-3200.20] Person — s 45, Note 2 Acts Interpretation Act s 2C.

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[5-3220]

The significance of a modern award

applying to a person 46 (1) A modern award does not impose obligations on a person, and a person does not contravene a term of a modern award, unless the award applies to the person. (2) A modern award does not give a person an entitlement unless the award applies to the person. Note: Subsection (2) does not affect the ability of outworker terms in a modern award to be enforced under Part 4-1 in relation to outworkers who are not employees. COMMENTARY TO SECTION 46*

Derivation …. Applies to the person — 46(1), (2) …. Employees — Note …. Modern award — s 46(1), (2), Note …. Outworker — Note …. Outline of section ….

[5-3220.01] [5-3220.05] [5-3220.10] [5-3220.15] [5-3220.20] [5-3220.25]

[5-3220.01] Derivation This section is new. [5-3220.05] Applies to the person — 46(1), (2) See s 47. [5-3220.10] Employees — Note See s 42. [5-3220.15] Modern award — s 46(1), (2), Note See s 12. [5-3220.20] Outworker — Note See s 12. [5-3220.25] Outline of section “A modern award or enterprise agreement applies to a person if the relevant instrument is in operation, covers the person and actually confers entitlements or imposes obligations on that person at a particular time. It is only where the award or agreement [page 159] applies to a person that the person has obligations under the instrument which the person is capable of contravening”: Explanatory Memorandum to the Fair Work Bill 2008 at para 200. *Editor’s note: Commentary to ss 45 and 46 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[5-3240] When a modern award applies to an employer, employee, organisation or outworker entity 47 When a modern award applies to an employee, employer, organisation or outworker entity (1) A modern award applies to an employee, employer, organisation or outworker entity if: (a) the modern award covers the employee, employer, organisation or outworker entity; and (b) the modern award is in operation; and (c) no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity. Note 1: Section 57 provides that a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment. Note 2: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).

Modern awards do not apply to high income employees (2) However, a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee. Modern awards apply to employees in relation to particular employment (3) A reference in this Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment. COMMENTARY TO SECTION 47*

Derivation …. Applies — s 47(1), (a), (b), (c), Note 1, Note 2, (2), (3) …. Covers — s 47(1)(a), Note 1 …. Employee — s 47(1), (a), (c), Note 1, (2), (3) ….

[5-3240.01] [5-3240.05] [5-3240.10] [5-3240.15]

Employer — s 47(1), (a), (c), Note 1, (2) …. Employee organisation — s 47 Note 1 …. Employment — s 47 Note 1, (3) …. Enterprise agreement — s 47, Note 1 …. High income employees — s 47(2) …. Modern award — s 47(1), (a), (b), (c), Note 1, Note 2, (2), (3) …. Organisation — s 47(1), (a), (c) …. Outworker entity — s 47(1), (a), (c), Note 2 …. Outline of Section ….

[5-3240.20] [5-3240.25] [5-3240.30] [5-3240.35] [5-3240.40] [5-3240.45] [5-3240.50] [5-3240.55] [5-3240.60]

[5-3240.01] Derivation The section is new. [page 160] [5-3240.05] Applies — s 47(1), (a), (b), (c), Note 1, Note 2, (2), (3) Applies is an alternative narrower concept than covers: Taylor-Hunt v Downer EDI Works Pty Ltd [2010] FWA 4626 at [37]. [5-3240.10] Covers — s 47(1)(a), Note 1 See s 48. Coverage of a modern award or enterprise agreement is a broader concept than application of the award or agreement. An award or agreement that covers a person does not necessarily apply to the person. For example, an award will not apply to a person where an agreement applies to the person (see cl 57) or where the person is a high-income employee (see subcl 47(2)): Explanatory Memorandum to the Fair Work Act at [201]. [5-3240.15] Employee — s 47(1), (a), (c), Note 1, (2), (3) See s 42. [5-3240.20] Employer — s 47(1), (a), (c), Note 1, (2) See s 42. [5-3240.25] Employee organisation — s 47 Note 1 See s 12. [5-3240.30] Employment — s 47 Note 1, (3) See commentary to Independent Contractor in s 4 of the Independent Contractors Act 2006 at [8015.2.5]. [5-3240.35] Enterprise agreement — s 47, Note 1 See s 12. [5-3240.40] High income employees — s 47(2) See s 12 and s 329. [5-3240.45] Modern award — s 47(1), (a), (b), (c), Note 1, Note 2, (2), (3) See s 12. [5-3240.50] Organisation — s 47(1), (a), (c) See s 12. [5-3240.55] Outworker entity — s 47(1), (a), (c), Note 2 See s 12. [5-3240.60] Outline of Section The Act distinguishes between the application and the coverage of modern awards. The distinction is important in relation to the interaction between modern awards and enterprise agreements and the rights of high income employees. In Seventh-Day Adventist Aged Care

(South Queensland) Ltd [2011] FWA 5103 at note 7, it was held that modern awards covered the employees in question but did not apply due to the existence of a preserved collective agreement. If an enterprise agreement was approved by Fair Work Australia, the modern awards would continue to cover but not apply to the employees. *Editor’s note: Commentary to s 47 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[5-3260] When a modern award covers an employer, employee, organisation or outworker entity 48 When a modern award covers an employee, employer, organisation or outworker entity (1) A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity. Note: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).

Effect of other provisions of this Act, FWC orders or court orders on coverage (2) A modern award also covers an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award covers the employee, employer, organisation or outworker entity: [page 161] (a) a provision of this Act or of the Registered Organisations Act; (b) an FWC order made under a provision of this Act; (c) an order of a court. [subs (2) am Act 55 of 2009 s 3 and Sch 22, opn 1 July 2009; Act 175 of 2012 s 3 and Sch 1 item 46, opn 5 Dec 2012; Act 174 of 2012 s 3 and Sch 9 items 29, 30, opn 1 Jan 2013]

(3) Despite subsections (1) and (2), a modern award does not cover an employee, employer, organisation or outworker entity if any of the following

provides, or has the effect, that the award does not cover the employee, employer or organisation or outworker entity: (a) a provision of this Act; (b) an FWC order made under a provision of this Act; (c) an order of a court. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 30, opn 1 Jan 2013]

Modern awards that have ceased to operate (4) Despite subsections (1) and (2), a modern award that has ceased to operate does not cover an employee, employer, organisation or outworker entity. Modern awards cover employees in relation to particular employment (5) A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment. COMMENTARY TO SECTION 48*

Derivation …. Covers — s 48(1), Note, (2), (3), (4), (5) …. Employee — s 48(1), (2), (3), (4), (5) …. Employer — s 48(1), (2), (3), (4) …. Employment — s 48(5) …. Modern award — s 48(1), Note, (2), (3), (4), (5) …. Organisation — s 48(1), (2), (3), (4) …. Outworker entity — s 48(1), Note, (2), (3), (4), (c) …. Outline of Section ….

[5-3260.01] [5-3260.05] [5-3260.10] [5-3260.15] [5-3260.20] [5-3260.25] [5-3260.30] [5-3260.35] [5-3260.40]

[5-3260.01] Derivation The section is new. [5-3260.05] Covers — s 48(1), Note, (2), (3), (4), (5) See [5-3240.10]. [5-3260.10] Employee — s 48(1), (2), (3), (4), (5) See s 42. [5-3260.15] Employer — s 48(1), (2), (3), (4) See s 42. [5-3260.20] Employment — s 48(5) See commentary to “Independent Contractor” in s 4 of the Independent Contractors Act 2006 at [8015.2.5]. [5-3260.25] Modern award — s 48(1), Note, (2), (3), (4), (5) See s 12.

[5-3260.30] Organisation — s 48(1), (2), (3), (4) See s 12. [5-3260.35] Outworker entity — s 48(1), Note, (2), (3), (4), (c) See s 12. [page 162] [5-3260.40] Outline of Section See [5-3240.60]. The appropriate test for determining award coverage is to apply the principal purpose test. The test “requires assessment of the principal purpose, or primary function, for which the employee was employed”: Layton v North Goonyella Coal Mines Pty Ltd (2007) 166 IR 394; [2007] AIRCFB 713 at [25]. “This test has traditionally been applied by courts and tribunals in determining award coverage … s 48 of the Act does not displace this test, nor does the Explanatory Memorandum give any indication that parliament intended it to do so”: Gray v Hamilton James & Bruce Pty Ltd [2011] FWA 4104 at [16]. See also Tucker v Digital Diagnostic Imaging Pty Ltd [2011] FWA 1767 at [19]. *Commentary to s 48 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[5-3280]

When a modern award is in operation

49 When a modern award comes into operation (1) A modern award comes into operation: (a) on 1 July in the next financial year after it is made; or (b) if it is made on 1 July in a financial year — on that day. (2) However, if the FWC specifies another day as the day on which the modern award comes into operation, it comes into operation on that other day. The FWC must not specify another day unless it is satisfied that it is appropriate to do so. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 31, 32, opn 1 Jan 2013]

(3) The specified day must not be earlier than the day on which the modern award is made. Note: For when a State reference public sector modern award comes into operation, see section 168J. [subs (3) am Act 54 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

When a determination revoking a modern award comes into operation (4) A determination revoking a modern award comes into operation on the day specified in the determination. (5) The specified day must not be earlier than the day on which the

determination is made. Modern awards and revocation determinations take effect from first full pay period (6) A modern award, or a determination revoking a modern award, does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after the day the award or determination comes into operation. Modern awards operate until revoked (7) A modern award continues in operation until it is revoked.

Subdivision D — Terms and conditions of employment provided by an enterprise agreement

[5-3400]

Contravening an enterprise agreement

50 A person must not contravene a term of an enterprise agreement. Note 1: This section is a civil remedy provision (see Part 4-1). Note 2: A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see subsection 51(1).

[page 163] COMMENTARY TO SECTION 50*

Derivation …. Civil remedy provision — 50 Note 1 …. Contravene — s 50 …. Enterprise agreement — s 50, Note 2 …. Person — s 50, Note 2 …. [5-3400.05] Derivation The section is new. [5-3400.10] Civil remedy provision — 50 Note 1 See ss 12 and 539. [5-3400.15] Contravene — s 50 See 2B of the Acts Interpretation Act. [5-3400.20] Enterprise agreement — s 50, Note 2 See s 12.

[5-3400.05] [5-3400.10] [5-3400.15] [5-3400.20] [5-3400.25]

[5-3400.25] Person — s 50, Note 2 See Acts Interpretation Act s 2C. *Editor’s note: Commentary on the definition of s 50 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[5-3420] The significance of an enterprise agreement applying to a person 51 (1) An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person. (2) An enterprise agreement does not give a person an entitlement unless the agreement applies to the person. COMMENTARY TO SECTION 51*

Derivation …. Applies — s 51(1), (2) …. Contravene — s 51(1) …. Enterprise agreement — s 52(1), (2) …. Outline of section ….

[5-3420.01] [5-3420.05] [5-3420.10] [5-3420.15] [5-3420.20]

[5-3420.01] Derivation The section is new. [5-3420.05] Applies — s 51(1), (2) See s 52. [5-3420.10] Contravene — s 51(1) In BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291; BC201315229 at [96] Collier J quoted Besanko J’s observations in the full court decision of Tran v Commonwealth (2010) 187 FCR 54; 271 ALR 1; [2010] FCAFC 80; BC201004938 at [182]–[185] as follows: As an ordinary English word, contravention is capable of a wide meaning and one which includes breaches of statutory rules of conduct or norms as well as offences. A dictionary definition of the verb “contravene” is as follows: 1. v.t 1. go counter to; infringe (a law, rule, etc); [page 164] The New Shorter Oxford English Dictionary on Historical Principles (Clarendon Press, Oxford, 3rd ed, 1993). Furthermore, s 22(1)(j) of the AIA provides that, unless the contrary intention appears, “contravene includes failure to comply with”.

There are many examples in Commonwealth legislation of the words “contravene” or “contravention” being used to describe breaches of sections which do not constitute criminal offences, although usually some form of civil penalty or relief attends the breach (see, for example, Trade Practices Act 1974 (Cth) ss 52, 80, 82 and 87; Corporations Act 2001 (Cth) Part 9.4B). There are authorities too which make it clear that, depending on the statutory context, contravention may have a wider meaning than offence… [5-3420.15] Enterprise agreement — s 52(1), (2) See s 12. [5-3420.20] Outline of section The section forms part of the mechanism of enforcement of the Act. As Bromberg J has held in National Tertiary Education Industry Union v Swinburne University of Technology [2013] FCA 1128; BC201314255 at [15]: Section 50 of the Act provides that a person must not contravene a term of an enterprise agreement if, as s 51 provides, that agreement applies to the person. By s 546 the court is empowered to order that a person pay a pecuniary penalty “that the court considers is appropriate.” *Editor’s note: Commentary on the definition of s 51 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[5-3440] When an enterprise agreement applies to an employer, employee or employee organisation 52 When an enterprise agreement applies to an employee, employer or organisation (1) An enterprise agreement applies to an employee, employer or employee organisation if: (a) the agreement is in operation; and (b) the agreement covers the employee, employer or organisation; and (c) no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation. Enterprise agreements apply to employees in relation to particular employment (2) A reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.

COMMENTARY TO SECTION 52*

Derivation …. Apply — s 52(1)(c), (2) …. Covers —s 52(1)(b) …. Employee — s 52(1)(b), (c), (2) ….

[5-3440.05] [5-3440.10] [5-3440.15] [5-3440.20] [page 165]

Employer — s 52(1)(b), (c) …. Employee organisation — s 52(1) …. Enterprise agreement — s 52(1), (2) …. Operation — s 51(1)(a) …. Organisation — s 52(1)(b), (c)…. Particular employment — s 52(2)…. This Act — s 52(1)(c), (2) …. Outline of section ….

[5-3440.25] [5-3440.30] [5-3440.35] [5-3440.40] [5-3440.45] [5-3440.50] [5-3440.55] [5-3440.60]

[5-3440.05] Derivation The section is new. [5-3440.10] Apply — s 52(1)(c), (2) [5-3440.15] Covers —s 52(1)(b) See s 53. [5-3440.20] Employee — s 52(1)(b), (c), (2) See ss 12 and 42. [5-3440.25] Employer — s 52(1)(b), (c) See ss 12 and 42. [5-3440.30] Employee organisation — s 52(1) See s 12. [5-3440.35] Enterprise agreement — s 52(1), (2) See s 12. [5-3440.40] Operation — s 51(1)(a) See s 49. [5-3440.45] Organisation — s 52(1)(b), (c) See s 12. [5-3440.50] Particular employment — s 52(2) The Explanatory Memorandum to the Fair Work Bill 2009 at para 205 explains that: This means that, if a national system employee has more than one job, each job is treated separately in determining the effect of an award or agreement on the employee’s entitlements in relation to each job. For instance, the rule that only one enterprise agreement can operate in relation to a person at a particular time (see clause 58) does not mean that two agreements cannot cover, or apply to, an employee in relation to two different jobs. [5-3440.55] This Act — s 52(1)(c), (2) See s 12.

[5-3440.60] Outline of section The following was held in Ramsay Health Care Australia Pty Ltd v Australian Worker’s Union (Qld) [2012] FWAFB 4033; BC201273758 at [10] that: Section 52 provides that an enterprise agreement applies to an employee and employer if the agreement is in operation, covers the employee and employer and no other provision of the Act provides, or has the effect, that the agreement does not apply to the employer and employee. The time when an enterprise agreement is in operation is referred to in s 54. *Editor’s note: Commentary on the definition of s 52 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[5-3460] When an enterprise agreement covers an employer, employee or employee organisation 53 Employees and employers (1) An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer. [page 166] Employee organisations (2) An enterprise agreement covers an employee organisation: (a) for an enterprise agreement that is not a greenfields agreement — if the FWC has noted in its decision to approve the agreement that the agreement covers the organisation (see subsection 201(2)); or (b) for a greenfields agreement — if the agreement is made by the organisation. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 33, opn 1 Jan 2013]

Effect of provisions of this Act, FWC orders and court orders on coverage (3) An enterprise agreement also covers an employee, employer or employee organisation if any of the following provides, or has the effect, that the agreement covers the employee, employer or organisation:

(a) a provision of this Act or of the Registered Organisations Act; (b) an FWC order made under a provision of this Act; (c) an order of a court. [subs (3) am Act 55 of 2009 s 3 and Sch 22, opn 1 July 2009; Act 175 of 2012 s 3 and Sch 1 item 47, opn 5 Dec 2012; Act 174 of 2012 s 3 and Sch 9 items 34, 35, opn 1 Jan 2013]

(4) Despite subsections (1), (2) and (3), an enterprise agreement does not cover an employee, employer or employee organisation if any of the following provides, or has the effect, that the agreement does not cover the employee, employer or organisation: (a) another provision of this Act; (b) an FWC order made under another provision of this Act; (c) an order of a court. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 35, opn 1 Jan 2013]

Enterprise agreements that have ceased to operate (5) Despite subsections (1), (2) and (3), an enterprise agreement that has ceased to operate does not cover an employee, employer or employee organisation. Enterprise agreements cover employees in relation to particular employment (6) A reference in this Act to an enterprise agreement covering an employee is a reference to the agreement covering the employee in relation to particular employment.

[5-3480] When an enterprise agreement is in operation 54 (1) An enterprise agreement approved by the FWC operates from: (a) 7 days after the agreement is approved; or (b) if a later day is specified in the agreement — that later day. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 36, opn 1 Jan 2013]

(2) An enterprise agreement ceases to operate on the earlier of the following days:

the day on which a termination of the agreement comes into (a) operation under section 224 or 227; (b) the day on which section 58 first has the effect that there is no employee to whom the agreement applies. Note: Section 58 deals with when an enterprise agreement ceases to apply to an employee.

(3) An enterprise agreement that has ceased to operate can never operate again. [page 167]

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

[5-3650] Interaction between the National Employment Standards and a modern award or enterprise agreement 55 National Employment Standards must not be excluded (1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards. Terms expressly permitted by Part 2-2 or regulations may be included (2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include: (a) by a provision of Part 2-2 (which deals with the National Employment Standards); or (b) by regulations made for the purposes of section 127. Note: In determining what is permitted to be included in a modern award or enterprise agreement by a

provision referred to in paragraph (a), any regulations made for the purpose of section 127 that expressly prohibit certain terms must be taken into account.

(3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2). Note: See also the note to section 63 (which deals with the effect of averaging arrangements).

Ancillary and supplementary terms may be included (4) A modern award or enterprise agreement may also include the following kinds of terms: (a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards; (b) terms that supplement the National Employment Standards; but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards. Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms: (a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or (b) that specify when payment under section 90 for paid annual leave must be made. Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms: (a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or (b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay (which is the rate required by sections 90 and 99). Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring an employee to give more notice of the taking of unpaid parental leave than is required by section 74.

[page 168] Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards (5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment

Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4). Effect of terms that give an employee the same entitlement as under the National Employment Standards (6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards: (a) those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and (b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement. Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.

Terms permitted by subsection (4) or (5) do not contravene subsection (1) (7) To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1). Note: A term of a modern award has no effect to the extent that it contravenes this section (see section 56). An enterprise agreement that includes a term that contravenes this section must not be approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it contravenes this section (see section 56).

[5-3670] Terms of a modern award or enterprise agreement contravening section 55 have no effect 56 A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55. COMMENTARY TO SECTION 56*

Derivation …. Contravene — s 56 …. Enterprise agreement — s 56 …. Modern Award – s 56 …. Outline of section ….

[5-3670.05] [5-3670.10] [5-3670.15] [5-3670.20] [5-3670.25]

[5-3670.05] Derivation The section is new. [5-3670.10] Contravene — s 56 See 2B of the Acts Interpretation Act. [5-3670.15] Enterprise agreement — s 56 See s 12. [page 169] [5-3670.20] Modern Award – s 56 See s 12. [5-3670.25] Outline of section In Goodstart Early Learning Limited re Goodstart Early Learning Enterprise Agreement 2012 [2012] FWA 2408; BC201272337 (10 April 2012) at [13];; Cmr Hampton held that: the terms of an enterprise agreement may duplicate, beneficially supplement and provide ancillary provisions to the NES, and may also deal with certain NES related matters that are expressly delegated to enterprise agreements (and awards). However, an approvable agreement cannot include terms that Fair Work Australia considers would contravene these interaction rules for the NES. I also interpose that as a result of s 56 of the Act, should the NES be subsequently found to operate in a manner that means the agreement provision does contravene that operation, the agreement term would have no effect. *Editor’s note: Commentary on the definition of s 56 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

Subdivision B — Interaction between modern awards and enterprise agreements

[5-3790] Interaction between modern awards and enterprise agreements 57 (1) A modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment. (2) If a modern award does not apply to an employee in relation to particular employment because of subsection (1), the award does not apply to an employer, or an employee organisation, in relation to the employee.

[5-3810] Designated outworker terms of a modern award continue to apply 57A (1) This section applies if, at a particular time: (a) an enterprise agreement applies to an employer; and (b) a modern award covers the employer (whether the modern award covers the employer in the employer’s capacity as an employer or an outworker entity); and (c) the modern award includes one or more designated outworker terms. (2) Despite section 57, the designated outworker terms of the modern award apply at that time to the following: (a) the employer; (b) each employee who is both: (i) a person to whom the enterprise agreement applies; and (ii) a person who is covered by the modern award; (c) each employee organisation that is covered by the modern award. (3) To avoid doubt: (a) designated outworker terms of a modern award can apply to an employer under subsection (2) even if none of the employees of the employer is an outworker; and (b) to the extent to which designated outworker terms of a modern award apply to an employer, an employee or an employee

organisation because of subsection (2), the modern award applies to the employer, employee or organisation. [page 170]

Subdivision C — Interaction between one or more enterprise agreements

[5-3930] Only one enterprise agreement can apply to an employee 58 Only one enterprise agreement can apply to an employee (1) Only one enterprise agreement can apply to an employee at a particular time. General rule — later agreement does not apply until earlier agreement passes its nominal expiry date (2) If: (a) an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment; and (b) another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation; and (c) subsection (3) (which deals with a single-enterprise agreement replacing a multi-enterprise agreement) does not apply; then: (d) if the earlier agreement has not passed its nominal expiry date: (i) the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date; and (ii) the earlier agreement ceases to apply to the employee in relation to that employment when the earlier agreement passes its nominal expiry date, and can never so apply again; or

if the earlier agreement has passed its nominal expiry date — the (e) earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again. Special rule — single-enterprise agreement replaces multi-enterprise agreement (3) Despite subsection (2), if: (a) a multi-enterprise agreement applies to an employee in relation to particular employment; and (b) a single-enterprise agreement that covers the employee in relation to the same employment comes into operation; the multi-enterprise agreement ceases to apply to the employee in relation to that employment when the single-enterprise agreement comes into operation, and can never so apply again.

PART 2-2 — THE NATIONAL EMPLOYMENT STANDARDS DIVISION 1 — INTRODUCTION

[5-4150]

Guide to this Part

59 This Part contains the National Employment Standards. Division 2 identifies the National Employment Standards, the detail of which is set out in Divisions 3 to 12. [page 171] Division 13 contains miscellaneous provisions relating to the National Employment Standards. The National Employment Standards are minimum standards that apply to the employment of national system employees. Part 2-1 (which deals with the core provisions for this Chapter) contains the obligation for employers to comply with the National Employment Standards (see section 44). The National Employment Standards also underpin what can be included in modern awards and enterprise agreements. Part 2-1 provides that the National Employment Standards cannot be excluded by modern awards or enterprise agreements, and contains other provisions about the interaction

between the National Employment Standards and modern awards or enterprise agreements (see sections 55 and 56). Divisions 2 and 3 of Part 6-3 extend the operation of the parental leave and notice of termination provisions of the National Employment Standards to employees who are not national system employees. [Editor’s note: Section 59 of this legislation is reproduced in this format in line with the official version.]

[5-4170]

Meanings of employee and employer

60 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). [s 60 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY TO SECTION 60*

National system employee — s 60 …. National system employer — s 60 ….

[5-4170.01] [5-4170.05]

[5-4170.01] National system employee — s 60 See s 12 definition of “national system employee”, ss 13 and 30C. [5-4170.05] National system employer — s 60 See s 12 definition of “national system employer”, ss 14 and 30D. *Editors’ note: Commentary to s 60 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

DIVISION 2 — THE NATIONAL EMPLOYMENT STANDARDS

[5-4340] The National Employment Standards are minimum standards applying to employment of employees 61 (1) This Part sets minimum standards that apply to the employment of employees which cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5).

Note: Subsection 55(5) allows enterprise agreements to include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards.

(2) The minimum standards relate to the following matters: (a) maximum weekly hours (Division 3); (b) requests for flexible working arrangements (Division 4); [page 172] (c) parental leave and related entitlements (Division 5); (d) annual leave (Division 6); (e) personal/carer’s leave and compassionate leave (Division 7); (f) community service leave (Division 8); (g) long service leave (Division 9); (h) public holidays (Division 10); (i) notice of termination and redundancy pay (Division 11); (j) Fair Work Information Statement (Division 12). (3) Divisions 3 to 12 constitute the National Employment Standards.

DIVISION 3 — MAXIMUM WEEKLY HOURS

[5-4510]

Maximum weekly hours

62 Maximum weekly hours of work (1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable: (a) for a full-time employee — 38 hours; or (b) for an employee who is not a full-time employee — the lesser of: (i) 38 hours; and (ii) the employee’s ordinary hours of work in a week. Employee may refuse to work unreasonable additional hours

(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable. Determining whether additional hours are reasonable (3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account: (a) any risk to employee health and safety from working the additional hours; (b) the employee’s personal circumstances, including family responsibilities; (c) the needs of the workplace or enterprise in which the employee is employed; (d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours; (e) any notice given by the employer of any request or requirement to work the additional hours; (f) any notice given by the employee of his or her intention to refuse to work the additional hours; (g) the usual patterns of work in the industry, or the part of an industry, in which the employee works; (h) the nature of the employee’s role, and the employee’s level of responsibility; (i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64; (j) any other relevant matter. [page 173]

Authorised leave or absence treated as hours worked (4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised: (a) by the employee’s employer; or (b) by or under a term or condition of the employee’s employment; or (c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law. COMMENTARY TO SECTION 62*

Derivation …. Employee — s 62(1), (a), (b), (ii), (2), (3)(a), (b), (c), (d), (f), (g), (h), (i), (4), (a), (b) …. Employer — s 62(1), (3)(e), (i), (4)(a) …. Enterprise Agreement — s 62(3)(i) …. Modern Award — s 62(3)(i) …. Reasonable — s 62(1), (2), (3) …. The following …. Unreasonable hours …. Outline of Section ….

[5-4510.05] [5-4510.10] [5-4510.15] [5-4510.20] [5-4510.25] [5-4510.30] [5-4510.35] [5-4510.40] [5-4510.45]

[5-4510.05] Derivation Section 226 of the Workplace Relations Act 1996. For an example of the use of this section, see Inspector Trundle (Workplace Ombudsman) v M & K Angelopoulos Pty Ltd [2009] FMCA 37; BC200900227. [5-4510.10] Employee — s 62(1), (a), (b), (ii), (2), (3)(a), (b), (c), (d), (f), (g), (h), (i), (4), (a), (b) See s 42. [5-4510.15] Employer — s 62(1), (3)(e), (i), (4)(a) See s 42. [5-4510.20] Enterprise Agreement — s 62(3)(i) See s 12. [5-4510.25] Modern Award — s 62(3)(i) See s 12. [5-4510.30] Reasonable — s 62(1), (2), (3) The word “reasonable” has often been declared to mean “reasonable in all the circumstances of the case.” “The real question, in my opinion, is to determine what circumstances are relevant”: Opera House Investment Pty Ltd v Devon Buildings Pty Ltd (1936) 55 CLR 110; [1936] ALR 218; (1936) ALJR 35b; BC3600036. [5-4510.35] The following The Explanatory Memorandum to the Fair Work Bill 2008 stated at [250] that, “The relevance of each of these factors and the weight to be given to each of them will vary according to the particular circumstances. In some cases, a single factor will be of great importance and

outweigh all others. Other cases will require a balancing exercise between factors.” [5-4510.40] Unreasonable hours Section 62 prohibits an employer from requiring or requesting an employee to work unreasonable additional hours. Whether additional hours are reasonable is to be judged against the range of factors set out in s 62(3) of the Act, and which includes consideration of whether the additional hours are in accordance with averaging terms included in a modern award or enterprise agreement that applies to the employee: Construction, Forestry, Mining and Energy Union v Asurco Contracting Pty Ltd [2012] FWA 6512 at [34] (1 August 2012). [page 174] “The number of hours may be reasonable or unreasonable depending upon the way in which they interplay with the other factors. What might be a reasonable number of additional hours in some circumstances may not be in others. If, after this analysis, the situation is neutral then it would be appropriate to take into account the ACTU’s submission that unreasonable hours commenced at 44 and the finding in the Working Hours Case at [73] that standard hours were between 35 and 44 hours a week and that extended hours were more than 44 hours a week”: MacPherson v Coal & Allied Mining Services Pty Ltd (No 2) (2009) 189 IR 50; [2009] FMCA 881; BC200908245 at [41]. [5-4510.45] Outline of Section Subclause 62(1) provides that an employer must not request or require an employee to work more than a specified number of hours in a week, unless the additional hours are reasonable: Explanatory Memorandum to the Fair Work Bill 2008 at [244]. This section has been rarely used to penalise the imposition of unreasonable hours. Section 62 is nevertheless relevant in determining whether an enterprise agreement contravenes the National Employment Standards: see Australian Red Cross Blood Service — re Australian Red Cross Blood Service South Australia Employee Enterprise Agreement 2011 [2011] FWA 6975 at [28]–[31]. It may also be relevant in determining whether a dismissal is harsh, unjust or unreasonable: see Westblade v Harvey & Dunn Pty Ltd t/as Albury Auto Body Repairs (2010) 203 IR 362; [2010] FWA 4961 at [53]–[55]. *Editor’s Note: Commentary to s 62 prepared by Ian Latham BA (Hons)/LLB (ANU), Barrister.

____________________

[5-4530] Modern awards and enterprise agreements may provide for averaging of hours of work 63 (1) A modern award or enterprise agreement may include terms providing for the averaging of hours of work over a specified period. The average weekly hours over the period must not exceed: (a) for a full-time employee — 38 hours; or (b) for an employee who is not a full-time employee — the lesser of:

(i) 38 hours; and (ii) the employee’s ordinary hours of work in a week. (2) The terms of a modern award or enterprise agreement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1). Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with averaging terms in a modern award or enterprise agreement (whether the terms comply with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)). [subs (2) insrt Act 55 of 2009 s 3 and Sch 23, opn 1 Jan 2010] [s 63 am Act 55 of 2009 s 3 and Sch 23, opn 1 Jan 2010]

[5-4550] Averaging of hours of work for award/agreement free employees 64 (1) An employer and an award/agreement free employee may agree in writing to an averaging arrangement under which hours of work over a specified period of not more than 26 weeks are averaged. The average weekly hours over the specified period must not exceed: (a) for a full-time employee — 38 hours; or [page 175] (b) for an employee who is not a full-time employee — the lesser of: (i) 38 hours; and (ii) the employee’s ordinary hours of work in a week. (2) The agreed averaging arrangement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1). Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with an agreed averaging arrangement (whether the arrangement complies with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging arrangement will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)). [subs (2) insrt Act 55 of 2009 s 3 and Sch 23, opn 1 Jan 2010] [s 64 am Act 55 of 2009 s 3 and Sch 23, opn 1 Jan 2010]

DIVISION 4 — REQUESTS FOR FLEXIBLE WORKING ARRANGEMENTS

[5-4720] Requests for flexible working arrangements 65 (1) Employee may request change in working arrangements If: (a) any of the circumstances referred to in subsection (1A) apply to an employee; and

(b) the employee would like to change his or her working arrangements because of those circumstances; then the employee may request the employer for a change in working arrangements relating to those circumstances. Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work. [subs (1) subst Act 73 of 2013 s 3 and Sch 1 item 17, opn 1 July 2013]

(1A) The following are the circumstances: (a) the employee is the parent, or has responsibility for the care, of a child who is of school age or younger; (b) the employee is a carer (within the meaning of the Carer Recognition Act 2010); (c) the employee has a disability; (d) the employee is 55 or older; (e) the employee is experiencing violence from a member of the employee’s family; (f) the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family. [subs (1A) insrt Act 73 of 2013 s 3 and Sch 1 item 17, opn 1 July 2013]

(1B) To avoid doubt, and without limiting subsection (1), an employee who: (a) is a parent, or has responsibility for the care, of a child; and (b) is returning to work after taking leave in relation to the birth or adoption of the child; [page 176] may request to work part-time to assist the employee to care for the child. [subs (1B) insrt Act 73 of 2013 s 3 and Sch item 17, opn 1 July 2013]

(2) The employee is not entitled to make the request unless: (a) for an employee other than a casual employee — the employee has

completed at least 12 months of continuous service with the employer immediately before making the request; or (b) for a casual employee — the employee: (i) is a long term casual employee of the employer immediately before making the request; and (ii) has a reasonable expectation of continuing employment by the employer on a regular and systematic basis. Formal requirements (3) The request must: (a) be in writing; and (b) set out details of the change sought and of the reasons for the change. Agreeing to the request (4) The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request. (5) The employer may refuse the request only on reasonable business grounds. (5A) Without limiting what are reasonable business grounds for the purposes of subsection (5), reasonable business grounds include the following: (a) that the new working arrangements requested by the employee would be too costly for the employer; (b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee; (c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee; (d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity; (e) that the new working arrangements requested by the employee

would be likely to have a significant negative impact on customer service. [subs (5A) insrt Act 73 of 2013 s 3 and Sch 3 item 18, opn 1 July 2013]

(6) If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.

[5-4740] State and Territory laws that are not excluded 66 This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to flexible working arrangements, to the extent that those entitlements are more beneficial to employees than the entitlements under this Division. [page 177]

DIVISION 5 — PARENTAL LEAVE AND RELATED ENTITLEMENTS Subdivision A — General

[5-4910] General rule — employee must have completed at least 12 months of service 67 Employees other than casual employees (1) An employee, other than a casual employee, is not entitled to leave under this Division (other than unpaid pre-adoption leave or unpaid no safe job leave) unless the employee has, or will have, completed at least 12 months of continuous service with the employer immediately before the date that applies under subsection (3). [subs (1) am Act 73 of 2013 s 3 and Sch 1 item 25, opn 1 July 2013]

Casual employees (2) A casual employee, is not entitled to leave (other than unpaid pre-

adoption leave or unpaid no safe job leave) under this Division unless: (a) the employee is, or will be, a long term casual employee of the employer immediately before the date that applies under subsection (3); and (b) but for: (i) the birth or expected birth of the child; or (ii) the placement or the expected placement of the child; or (iii) if the employee is taking a period of unpaid parental leave that starts under subsection 71(6) or paragraph 72(3)(b) or 72(4)(b) — the taking of the leave; the employee would have a reasonable expectation of continuing employment by the employer on a regular and systematic basis. [subs (2) am Act 73 of 2013 s 3 and Sch 1 item 25, opn 1 July 2013]

Date at which employee must have completed 12 months of service (3) For the purpose of subsections (1) and (2), the date that applies is: (a) unless paragraph (b) or (c) applies: (i) if the leave is birth-related leave — the date of birth, or the expected date of birth, of the child; or (ii) if the leave is adoption-related leave — the day of placement, or the expected day of placement, of the child; or (b) for an employee taking a period of unpaid parental leave that is to start within 12 months after the birth or placement of the child under subsection 71(6) — the date on which the employee’s period of leave is to start; or (c) for a member of an employee couple taking a period of unpaid parental leave that is to start under paragraph 72(3)(b) or 72(4)(b) after the period of unpaid parental leave of the other member of the employee couple — the date on which the employee’s period of leave is to start. Meaning of birth-related leave (4) Birth-related leave means leave of either of the following kinds: (a) unpaid parental leave taken in association with the birth of a child

(see section 70); (b) unpaid special maternity leave (see section 80). [page 178] Meaning of adoption-related leave (5) Adoption-related leave means leave of either of the following kinds: (a) unpaid parental leave taken in association with the placement of a child for adoption (see section 70); (b) unpaid pre-adoption leave (see section 85). Meaning of day of placement (6) The day of placement, in relation to the adoption of a child by an employee, means the earlier of the following days: (a) the day on which the employee first takes custody of the child for the adoption; (b) the day on which the employee starts any travel that is reasonably necessary to take custody of the child for the adoption.

[5-4930] General rule for adoption-related leave — child must be under 16 etc 68 An employee is not entitled to adoption-related leave unless the child that is, or is to be, placed with the employee for adoption: (a) is, or will be, under 16 as at the day of placement, or the expected day of placement, of the child; and (b) has not, or will not have, lived continuously with the employee for a period of 6 months or more as at the day of placement, or the expected day of placement, of the child; and (c) is not (otherwise than because of the adoption) a child of the employee or the employee’s spouse or de facto partner.

[5-4950] Transfer of employment situations in which employee is entitled to continue on leave etc 69 (1) If: (a) there is a transfer of employment in relation to an employee; and (b) the employee has already started a period of leave under this Division when his or her employment with the first employer ends; the employee is entitled to continue on that leave for the rest of that period. (2) If: (a) there is a transfer of employment in relation to an employee; and (b) the employee has, in relation to the first employer, already taken a step that is required or permitted by a provision of this Division in relation to taking a period of leave; the employee is taken to have taken the step in relation to the second employer. Note: Steps covered by this subsection include (for example) giving the first employer notice under subsection 74(1), confirmation or advice under subsection 74(4) or evidence under subsection 74(5).

Subdivision B — Parental leave

[5-5070]

Entitlement to unpaid parental leave

70 An employee is entitled to 12 months of unpaid parental leave if: (a) the leave is associated with: (i) the birth of a child of the employee or the employee’s spouse or de facto partner; or [page 179] (ii) the placement of a child with the employee for adoption; and (b) the employee has or will have a responsibility for the care of the child. Note: Entitlement is also affected by:

(a) section 67 (which deals with length of the employee’s service); and (b) for pregnancy and birth — subsection 77A(3) (which applies if the pregnancy ends other than by the child being born alive, or if the child dies after birth); and (c) for adoption — section 68 (which deals with the age etc of the adopted child). [s 70 am Act 109 of 2012 s 3 and Sch 2, opn 23 July 2012; Act 73 of 2013 s 3 and Sch 1 items 1, 2, opn 1 July 2013]

[5-5090] The period of leave — other than for members of an employee couple who each intend to take leave 71 Application of this section (1) This section applies to an employee who intends to take unpaid parental leave if: (a) the employee is not a member of an employee couple; or (b) the employee is a member of an employee couple, but the other member of the couple does not intend to take unpaid parental leave. Leave must be taken in single continuous period (2) The employee must take the leave in a single continuous period. Note 1: An employee may take a form of paid leave at the same time as he or she is on unpaid parental leave (see section 79). Note 2: Periods of unpaid parental leave can include keeping in touch days on which an employee performs work (see section 79A). [subs (2) am Act 109 of 2012 s 3 and Sch 2, opn 23 July 2012]

(3) If the leave is birth-related leave for a female employee who is pregnant with, or gives birth to, the child, the period of leave may start: (a) up to 6 weeks before the expected date of birth of the child; or (b) earlier, if the employer and employee so agree; but must not start later than the date of birth of the child. Note 1: If the employee is not fit for work, she may be entitled to: (a) paid personal leave under Subdivision A of Division 7; or (b) unpaid special maternity leave under section 80.

Note 2: If it is inadvisable for the employee to continue in her present position, she may be entitled: (a) to be transferred to an appropriate safe job under section 81; or (b) to paid no safe job leave under section 81A; or (c) to unpaid no safe job leave under section 82A. Note 3: Section 344 prohibits the exertion of undue influence or undue pressure on the employee in relation to a decision by the employee whether to agree as mentioned in paragraph (3)(b) of this section. [subs (3) subst Act 109 of 2012 s 3 and Sch 2, opn 23 July 2012; am Act 73 of 2013 s 3 and Sch 1 item 26, opn 1 July 2013]

(4) If the leave is birth-related leave but subsection (3) does not apply, the period of leave must start on the date of birth of the child. [page 180] When adoption-related leave must start (5) If the leave is adoption-related leave, the period of leave must start on the day of placement of the child. Leave may start later for employees whose spouse or de facto partner is not an employee (6) Despite subsections (3) to (5), the period of leave may start at any time within 12 months after the date of birth or day of placement of the child if: (a) the employee has a spouse or de facto partner who is not an employee; and (b) the spouse or de facto partner has a responsibility for the care of the child for the period between the date of birth or day of placement of the child and the start date of the leave. Note: An employee whose leave starts under subsection (6) is still entitled under section 76 to request an extension of the period of leave beyond his or her available parental leave period. However, the period of leave may not be extended beyond 24 months after the date of birth or day of placement of the child (see subsection 76(7)).

[5-5110] The period of leave — members of an employee couple who each intend to take leave 72 Application of this section

(1) This section applies to an employee couple if each of the employees intends to take unpaid parental leave. Leave must be taken in single continuous period (2) Each employee must take the leave in a single continuous period. Note 1: An employee may take a form of paid leave at the same time as he or she is on unpaid parental leave (see section 79). Note 2: Periods of unpaid parental leave can include keeping in touch days on which an employee performs work (see section 79A). [subs (2) am Act 109 of 2012 s 3 and Sch 2, opn 23 July 2012]

When birth-related leave must start (3) If the leave is birth-related leave: (a) one employee’s period of leave must start first, in accordance with the following rules: (i) if the member of the employee couple whose period of leave starts first is a female employee who is pregnant with, or gives birth to, the child — the period of leave may start up to 6 weeks before the expected date of birth of the child, or earlier if the employer and employee so agree, but must not start later than the date of birth of the child; (ii) if subparagraph (i) does not apply — the period of leave must start on the date of birth of the child; and (b) the other employee’s period of leave must start immediately after the end of the first employee’s period of leave (or that period as extended under section 75 or 76). [subs (3) am Act 109 of 2012 s 3 and Sch 2, opn 23 July 2012]

[page 181] When adoption-related leave must start (4) If the leave is adoption-related leave: (a) one employee’s period of leave must start on the day of placement of the child; and

the other employee’s period of leave must start immediately after (b) the end of the first employee’s period of leave (or that period as extended under section 75 or 76). Limited entitlement to take concurrent leave (5) If one of the employees takes a period (the first employee’s period of leave) of unpaid parental leave in accordance with paragraph (3)(a) or (4)(a), the other employee may take a period of unpaid parental leave (the concurrent leave) during the first employee’s period of leave, if the concurrent leave complies with the following requirements: (a) the concurrent leave must not be longer than 8 weeks in total; (b) the concurrent leave may be taken in separate periods, but, unless the employer agrees, each period must not be shorter than 2 weeks; (c) unless the employer agrees, the concurrent leave must not start before: (i) if the leave is birth-related leave — the date of birth of the child; or (ii) if the leave is adoption-related leave — the day of placement of the child. [subs (5) am Act 73 of 2013 s 3 and Sch 1 item 13, opn 1 July 2013]

(6) Concurrent leave taken by an employee: (a) is an exception to the rule that the employee must take his or her leave in a single continuous period (see subsection (2)); and (b) is an exception to the rules about when the employee’s period of unpaid parental leave must start (see subsection (3) or (4)). Note: The concurrent leave is unpaid parental leave and so comes out of the employee’s entitlement to 12 months of unpaid parental leave under section 70.

[5-5130] Pregnant employee may be required to take unpaid parental leave within 6 weeks before the birth 73 Employer may ask employee to provide a medical certificate (1) If a pregnant employee who is entitled to unpaid parental leave

(whether or not she has complied with section 74) continues to work during the 6 week period before the expected date of birth of the child, the employer may ask the employee to give the employer a medical certificate containing the following statements (as applicable): (a) a statement of whether the employee is fit for work; (b) if the employee is fit for work — a statement of whether it is inadvisable for the employee to continue in her present position during a stated period because of: (i) illness, or risks, arising out of the employee’s pregnancy; or (ii) hazards connected with the position. Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

Employer may require employee to take unpaid parental leave (2) The employer may require the employee to take a period of unpaid parental leave (the period of leave) as soon as practicable if: (a) the employee does not give the employer the requested certificate within 7 days after the request; or [page 182] (b) within 7 days after the request, the employee gives the employer a medical certificate stating that the employee is not fit for work; or (c) the following subparagraphs are satisfied: (i) within 7 days after the request, the employee gives the employer a medical certificate stating that the employee is fit for work, but that it is inadvisable for the employee to continue in her present position for a stated period for a reason referred to in subparagraph (1)(b)(i) or (ii); (ii) the employee has not complied with the notice and evidence requirements of section 74 for taking unpaid parental leave. Note: If the medical certificate contains a statement as referred to in subparagraph (c)(i) and the employee has complied with the notice and evidence requirements of section 74, then the employee is entitled to be transferred to a safe job (see section 81) or to paid no safe job leave (see section

81A). [subs (2) am Act 73 of 2013 s 3 and Sch 1 item 28, opn 1 July 2013]

When the period of leave must end (3) The period of leave must not end later than the earlier of the following: (a) the end of the pregnancy; (b) if the employee has given the employer notice of the taking of a period of leave connected with the birth of the child (whether it is unpaid parental leave or some other kind of leave) — the start date of that leave. Special rules about the period of leave (4) The period of leave: (a) is an exception to the rule that the employee must take her unpaid parental leave in a single continuous period (see subsection 71(2) or 72(2)); and (b) is an exception to the rules about when the employee’s period of unpaid parental leave must start (see subsections 71(3) and (6), or subsection 72(3)). Note: The period of leave is unpaid parental leave and so comes out of the employee’s entitlement to 12 months of unpaid parental leave under section 70.

(5) The employee is not required to comply with section 74 in relation to the period of leave.

[5-5150]

Notice and evidence requirements

74 Notice (1) An employee must give his or her employer written notice of the taking of unpaid parental leave under section 71 or 72 by the employee. (2) The employee must give the notice to the employer: (a) at least: (i) 10 weeks before starting the leave, unless subparagraph (ii) applies; or (ii) if the leave is to be taken in separate periods of concurrent leave (see paragraph 72(5)(b)) and the leave is not the first of

those periods of concurrent leave — 4 weeks before starting the period of concurrent leave; or (b) if that is not practicable — as soon as practicable (which may be a time after the leave has started). [subs (2) subst Act 73 of 2013 s 3 and Sch 1 item 14, opn 1 July 2013]

(3) The notice must specify the intended start and end dates of the leave. [page 183] Confirmation or change of intended start and end dates (4) At least 4 weeks before the intended start date specified in the notice given under subsection (1), the employee must: (a) confirm the intended start and end dates of the leave; or (b) advise the employer of any changes to the intended start and end dates of the leave; unless it is not practicable to do so. (4A) Subsection (4) does not apply to a notice for a period of concurrent leave referred to in subparagraph (2)(a)(ii). [subs (4A) insrt Act 73 of 2013 s 3 and Sch 1 item 15, opn 1 July 2013]

Evidence (5) An employee who has given his or her employer notice of the taking of unpaid parental leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person: (a) if the leave is birth-related leave — of the date of birth, or the expected date of birth, of the child; or (b) if the leave is adoption-related leave: (i) of the day of placement, or the expected day of placement, of the child; and (ii) that the child is, or will be, under 16 as at the day of placement, or the expected day of placement, of the child. (6) Without limiting subsection (5), an employer may require the evidence

referred to in paragraph (5)(a) to be a medical certificate. Compliance (7) An employee is not entitled to take unpaid parental leave under section 71 or 72 unless the employee complies with this section. Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

[5-5170] Extending period of unpaid parental leave — extending to use more of available parental leave period 75 Application of this section (1) This section applies if: (a) an employee has, in accordance with section 74, given notice of the taking of a period of unpaid parental leave (the original leave period); and (b) the original leave period is less than the employee’s available parental leave period; and (c) the original leave period has started. (2) The employee’s available parental leave period is 12 months, less any periods of the following kinds: (a) a period of concurrent leave that the employee has taken in accordance with subsection 72(5); (b) a period of unpaid parental leave that the employee has been required to take under subsection 73(2) or 82(2); [page 184] (c) a period by which the employee’s entitlement to unpaid parental leave is reduced under paragraph 76(6)(c). (d) [repealed] [subs (2) am Act 73 of 2013 s 3 and Sch 1 items 3, 4, opn 1 July 2013]

First extension by giving notice to employer (3) The employee may extend the period of unpaid parental leave by giving his or her employer written notice of the extension at least 4 weeks before the end date of the original leave period. The notice must specify the new end date for the leave. (4) Only one extension is permitted under subsection (3).

Further extensions by agreement with employer (5) If the employer agrees, the employee may further extend the period of unpaid parental leave one or more times. No entitlement to extension beyond available parental leave period (6) The employee is not entitled under this section to extend the period of unpaid parental leave beyond the employee’s available parental leave period.

[5-5190] Extending period of unpaid parental leave — extending for up to 12 months beyond available parental leave period 76 Employee may request further period of leave (1) An employee who takes unpaid parental leave for his or her available parental leave period may request his or her employer to agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months immediately following the end of the available parental leave period. Note: Extended periods of unpaid parental leave can include keeping in touch days on which an employee performs work (see section 79A). [subs (1) am Act 109 of 2012 s 3 and Sch 2, opn 23 July 2012]

Making the request (2) The request must be in writing, and must be given to the employer at least 4 weeks before the end of the available parental leave period. Agreeing to the requested extension (3) The employer must give the employee a written response to the request

stating whether the employer grants or refuses the request. The response must be given as soon as practicable, and not later than 21 days, after the request is made. (4) The employer may refuse the request only on reasonable business grounds. (5) If the employer refuses the request, the written response under subsection (3) must include details of the reasons for the refusal. Discussion (5A) The employer must not refuse the request unless the employer has given the employee a reasonable opportunity to discuss the request. [subs (5A) insrt Act 156 of 2015 Sch 1 item 1, opn 27 Nov 2015]

[page 185] Special rules for employee couples (6) The following paragraphs apply in relation to a member of an employee couple extending a period of unpaid parental leave in relation to a child under this section: (a) the request must specify any amount of unpaid parental leave that the other member of the employee couple has taken, or will have taken, in relation to the child before the extension starts; (b) the period of the extension cannot exceed 12 months, less any period of unpaid parental leave that the other member of the employee couple has taken, or will have taken, in relation to the child before the extension starts; (c) the amount of unpaid parental leave to which the other member of the employee couple is entitled under section 70 in relation to the child is reduced by the period of the extension. [subs (6) am Act 73 of 2013 s 3 and Sch 1 items 5, 6, opn 1 July 2013]

No extension beyond 24 months after birth or placement (7) Despite any other provision of this Division, the employee is not entitled to extend the period of unpaid parental leave beyond 24 months after

the date of birth or day of placement of the child.

[5-5210] leave

Reducing period of unpaid parental

77 If the employer agrees, an employee whose period of unpaid parental leave has started may reduce the period of unpaid parental leave he or she takes.

[5-5215] Pregnancy ends (other than by birth of a living child) or child born alive dies 77A (1) Application of this section This section applies to unpaid parental leave, if: (a) the leave is birth-related leave; and (b) either: (i) the pregnancy ends other than by the child being born alive; or (ii) the child dies after being born. (2) Cancellation of leave Before the leave starts: (a) the employee may give the employer written notice cancelling the leave; or (b) the employer may give the employee written notice cancelling the leave. Example: Subsections (2) and (3) do not apply if: (a) the child dies after being born; and (b) the employee is the female employee who gave birth to the child. This is because in this case the leave must not start later than the date of birth of the child (see subsection 71(3)).

(3) If the employee or employer does so, the employee is not entitled to unpaid parental leave in relation to the child. Note: If the employee is the female employee who was pregnant with the child and the employee is not fit for work, she may be entitled to: (a) paid personal leave under Subdivision A of Division 7; or (b) unpaid special maternity leave under section 80.

[page 186] (4) Return to work The employee may give the employer written notice that the employee wishes to return to work: (a) after the start of the period of leave, but before its end; and (b) within 4 weeks after the employer receives the notice. (5) The employer: (a) may give the employee written notice requiring the employee to return to work on a specified day; and (b) must do so if the employee gives the employer written notice under subsection (4); unless the leave has not started and the employer cancels it under subsection (2). (6) The specified day must be after the start of the period of leave, and: (a) if subsection (4) applies — within 4 weeks after the employer receives the notice under that subsection; or (b) otherwise — at least 6 weeks after the notice is given to the employee under subsection (5). (7) The employee’s entitlement to unpaid parental leave in relation to the child ends immediately before the specified day. (8) Interaction with section 77 This section does not limit section 77 (which deals with the employee ending the period of unpaid parental leave with the agreement of the employer). [s 77A insrt Act 109 of 2012 s 3 and Sch 2, opn 23 July 2012]

[5-5230] Employee who ceases to have responsibility for care of child 78 (1) This section applies to an employee who has taken unpaid parental leave in relation to a child if the employee ceases to have any responsibility for the care of the child. (1A) However, this section does not apply if section 77A applies to the unpaid parental leave (because the unpaid parental leave is birth-related leave

and either the pregnancy ends other than by the child being born alive or the child dies after being born). [subs (1A) insrt Act 109 of 2012 s 3 and Sch 2, opn 23 July 2012]

(2) The employer may give the employee written notice requiring the employee to return to work on a specified day. (3) The specified day: (a) must be at least 4 weeks after the notice is given to the employee; and (b) if the leave is birth-related leave taken by a female employee who has given birth — must not be earlier than 6 weeks after the date of birth of the child. (4) The employee’s entitlement to unpaid parental leave in relation to the child ends immediately before the specified day.

[5-5250]

Interaction with paid leave

79 (1) This Subdivision (except for subsections (2) and (3)) does not prevent an employee from taking any other kind of paid leave while he or she is taking unpaid [page 187] parental leave. If the employee does so, the taking of that other paid leave does not break the continuity of the period of unpaid parental leave. Note: For example, if the employee has paid annual leave available, he or she may (with the employer’s agreement) take some or all of that paid annual leave at the same time as the unpaid parental leave.

(2) An employee is not entitled to take paid personal/carer’s leave or compassionate leave while he or she is taking unpaid parental leave. (3) An employee is not entitled to any payment under Division 8 (which deals with community service leave) in relation to activities the employee engages in while taking unpaid parental leave.

[5-5255]

Keeping in touch days

79A (1) This Subdivision does not prevent an employee from performing work for his or her employer on a keeping in touch day while he or she is taking unpaid parental leave. If the employee does so, the performance of that work does not break the continuity of the period of unpaid parental leave. (2) A day on which the employee performs work for the employer during the period of leave is a keeping in touch day if: (a) the purpose of performing the work is to enable the employee to keep in touch with his or her employment in order to facilitate a return to that employment after the end of the period of leave; and (b) both the employee and the employer consent to the employee performing work for the employer on that day; and (c) the day is not within: (i) if the employee suggested or requested that he or she perform work for the employer on that day — 14 days after the date of birth, or day of placement, of the child to which the period of leave relates; or (ii) otherwise — 42 days after the date of birth, or day of placement, of the child; and (d) the employee has not already performed work for the employer or another entity on 10 days during the period of leave that were keeping in touch days. The duration of the work the employee performs on that day is not relevant for the purposes of this subsection. Note: The employer will be obliged, under the relevant contract of employment or industrial instrument, to pay the employee for performing work on a keeping in touch day.

(3) The employee’s decision whether to give the consent mentioned in paragraph (2)(b) is taken, for the purposes of section 344 (which deals with undue influence or pressure), to be a decision to make, or not make, an arrangement under the National Employment Standards. (4) For the purposes of paragraph (2)(d), treat as 2 separate periods of unpaid parental leave: (a) a period of unpaid parental leave taken during the employee’s available parental leave period; and (b) a period of unpaid parental leave taken as an extension of the leave

referred to in paragraph (a) for a further period immediately following the end of the available parental leave period. [page 188] Note: Performance of work on keeping in touch days is also dealt with, for the purposes of parental leave pay, in sections 49 and 50 of the Paid Parental Leave Act 2010. [s 79A insrt Act 109 of 2012 s 3 and Sch 2, opn 23 July 2012] COMMENTARY TO SECTION 79A*

Employee — s 79A(1), (2), (3), (4) …. Day of placement — s 79A(2)(c)(i), (ii) ….

[5-5255.1] [5-5255.5]

[5-5255.1] Employee — s 79A(1), (2), (3), (4) See definition in s 6 of the Paid Parental Leave Act 2010. [5-5255.5] Day of placement — s 79A(2)(c)(i), (ii) See s 6 and definition in s 275(3) of the Paid Parental Leave Act 2010. *Editor’s note: Commentary to s 79A prepared by Jacqueline Massey, Solicitor.

____________________

[5-5260] Unpaid parental leave not extended by paid leave or keeping in touch days 79B If, during a period of unpaid parental leave, an employee: (a) takes paid leave; or (b) performs work for his or her employer on a keeping in touch day; taking that leave or performing that work does not have the effect of extending the period of unpaid parental leave. [s 79B insrt Act 109 of 2012 s 3 and Sch 2, opn 23 July 2012] COMMENTARY TO SECTION 79B*

Employee …. [5-5260.1] Employee See definition in s 6 of the Paid Parental Leave Act 2010.

[5-5260.1]

*Editor’s note: Commentary to s 79B prepared by Jacqueline Massey, Solicitor.

____________________

Subdivision C — Other entitlements

[5-5370]

Unpaid special maternity leave

80 Entitlement to unpaid special maternity leave (1) A female employee is entitled to a period of unpaid special maternity leave if she is not fit for work during that period because: (a) she has a pregnancy-related illness; or (b) she has been pregnant, and the pregnancy ends within 28 weeks of the expected date of birth of the child otherwise than by the birth of a living child. Note 1: Entitlement is also affected by section 67 (which deals with the length of the employee’s service). Note 2: If a female employee has an entitlement to paid personal/carer’s leave (see section 96), she may take that leave instead of taking unpaid special maternity leave under this section. [subs (1) am Act 73 of 2013 s 3 and Sch 1 items 7, 8, opn 1 July 2013]

[page 189] Notice and evidence (2) An employee must give her employer notice of the taking of unpaid special maternity leave by the employee. (3) The notice: (a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and (b) must advise the employer of the period, or expected period, of the leave. (4) An employee who has given her employer notice of the taking of unpaid special maternity leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason specified in subsection (1).

(5) Without limiting subsection (4), an employer may require the evidence referred to in that subsection to be a medical certificate. (6) An employee is not entitled to take unpaid special maternity leave unless the employee complies with subsections (2) to (4). (7) [subs (7) rep Act 73 of 2013 s 3 and Sch 1 item 9, opn 1 July 2013] Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

[5-5390]

Transfer to a safe job

81 (1) This section applies to a pregnant employee if she gives her employer evidence that would satisfy a reasonable person that she is fit for work, but that it is inadvisable for her to continue in her present position during a stated period (the risk period) because of: (a) illness, or risks, arising out of her pregnancy; or (b) hazards connected with that position. Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

(2) If there is an appropriate safe job available, then the employer must transfer the employee to that job for the risk period, with no other change to the employee’s terms and conditions of employment. Note: If there is no appropriate safe job available, then the employee may be entitled to paid no safe job leave under section 81A or unpaid no safe job leave under 82A.

(3) An appropriate safe job is a safe job that has: (a) the same ordinary hours of work as the employee’s present position; or (b) a different number of ordinary hours agreed to by the employee. (4) If the employee is transferred to an appropriate safe job for the risk period, the employer must pay the employee for the safe job at the employee’s full rate of pay (for the position she was in before the transfer) for the hours that she works in the risk period. (5) If the employee’s pregnancy ends before the end of the risk period, the risk period ends when the pregnancy ends. (6) Without limiting subsection (1), an employer may require the evidence to be a medical certificate.

[s 81 subst Act 73 of 2013 s 3 and Sch 1 item 29, opn 1 July 2013]

[page 190]

[5-5495]

Paid no safe job leave

81A (1) If: (a) section 81 applies to a pregnant employee but there is no appropriate safe job available; and (b) the employee is entitled to unpaid parental leave; and (c) the employee has complied with the notice and evidence requirements of section 74 for taking unpaid parental leave; then the employee is entitled to paid no safe job leave for the risk period. (2) If the employee takes paid no safe job leave for the risk period, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the risk period. [s 81A insrt Act 73 of 2013 s 3 and Sch 1 item 29, opn 1 July 2013]

[5-5410] Employee on paid no safe job leave may be asked to provide a further medical certificate 82 Employer may ask employee to provide a medical certificate (1) If an employee is on paid no safe job leave during the 6 week period before the expected date of birth of the child, the employer may ask the employee to give the employer a medical certificate stating whether the employee is fit for work. Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

Employer may require employee to take unpaid parental leave (2) The employer may require the employee to take a period of unpaid parental leave (the period of leave) as soon as practicable if: (a) the employee does not give the employer the requested certificate within 7 days after the request; or

(b) within 7 days after the request, the employee gives the employer a certificate stating that the employee is not fit for work. Entitlement to paid no safe job leave ends (3) When the period of leave starts, the employee’s entitlement to paid no safe job leave ends. When the period of leave must end etc. (4) Subsections 73(3), (4) and (5) apply to the period of leave.

[5-5425]

Unpaid no safe job leave

82A (1) If: (a) section 81 applies to a pregnant employee but there is no appropriate safe job available; and (b) the employee is not entitled to unpaid parental leave; and (c) if required by the employer — the employee has given the employer evidence that would satisfy a reasonable person of the pregnancy; then the employee is entitled to unpaid no safe job leave for the risk period. (2) Without limiting subsection (1), an employer may require the evidence referred to in paragraph (1)(c) to be a medical certificate. [s 82A insrt Act 73 of 2013 s 3 and Sch 3 item 30, opn 1 July 2013]

[page 191]

[5-5430] Consultation with employee on unpaid parental leave 83 (1) If: (a) an employee is on unpaid parental leave; and (b) the employee’s employer makes a decision that will have a significant effect on the status, pay or location of the employee’s

pre-parental leave position; the employer must take all reasonable steps to give the employee information about, and an opportunity to discuss, the effect of the decision on that position. (2) The employee’s pre-parental leave position is: (a) unless paragraph (b) applies, the position the employee held before starting the unpaid parental leave; or (b) if, before starting the unpaid parental leave, the employee: (i) was transferred to a safe job because of her pregnancy; or (ii) reduced her working hours due to her pregnancy; the position the employee held immediately before that transfer or reduction.

[5-5450]

Return to work guarantee

84 On ending unpaid parental leave, an employee is entitled to return to: (a) the employee’s pre-parental leave position; or (b) if that position no longer exists — an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position. COMMENTARY TO SECTION 84*

Derivation …. Employee — s 84 …. Pre-parental leave position — s 84(a), (b) …. Unpaid parental leave — s 84 …. Outline of section …. Liability for contravening s 84 ….

[5-5450.01] [5-5450.05] [5-5450.10] [5-5450.15] [5-5450.20] [5-5450.25]

[5-5450.01] Derivation The section is loosely derived from s 280 of the Workplace Relations Act 1996. That section was described by FM Lucev as guaranteeing an “employee who has taken maternity leave the right to return to the position held immediately before the start of the maternity related leave period … those provisions make it clear that an employer is not entitled to terminate an employee’s service whilst the employee is on maternity leave: Liquor, Hospitality and Miscellaneous Union (LHMU) v Cuddles Management Pty Ltd (2009) 183 IR 89; [2009] FMCA 463; BC200904520 at [117]. [5-5450.05] Employee — s 84 See s 60.

[5-5450.10] Pre-parental leave position — s 84(a), (b) s 83(2). [5-5450.15] Unpaid parental leave — s 84 See s 12 and s 70. [5-5450.20] Outline of section This division establishes minimum parental leave and related entitlements for eligible national system employees: The Explanatory Memorandum to the Fair Work Bill 2008 at [274]. One of these entitlements is the return to work guarantee in s 84. [page 192] [5-5450.25] Liability for contravening s 84 In Turnbull v Symantec (Australia) Pty Ltd (2013) 280 FLR 184; [2013] FCCA 1771; BC201314353, the court noted that s 84 does not itself impose liability for its contravention, and that it only created an entitlement. Rather, liability for its contravention arises pursuant to the interaction of s 61(1) (by which s 84 is a National Employment Standard), s 44 (which provides that a National Employment Standard must not be contravened), s 539 (by which contravention of s 44 gives rise to civil penalties) and s 545 (which provides for the orders which may be made for contravention of, inter alia, s 44). The effect of s 84 was held as follows: … an obligation on the employer to inform the employee of the existence, if there is one, of an “available position for which the employee is qualified and suited nearest in status and pay to the pre-parental position”, and to offer that position to the employee. To so interpret s 84 promotes the evident purpose of the provision. An entitlement has value only if, and to the extent that, the beneficiary of the entitlement is aware of it. And, particularly in the case of large and complex businesses such as that of Symantec, whether or not there is an “available position” is something that would be peculiarly within the knowledge of the employer, not the employee. (at [56]). In relation to the meaning of “available position”, it was held that: [W]hether or not a position that is available overseas, or is available in a legal entity separate from the employer, is an “available position” for the purpose of s 84 of the Act depends on whether it is within the power of the employer to make that position available. Whether it is within the power of the employer in any given case is a question of fact to be decided in the circumstances of the particular case. (at [60]). In relation to the meaning of “available position”, it was held that: [Section] 84 of the Act requires the employer to determine whether there are available positions comparable in status and pay with the pre-parental leave position and, if there are two or more such positions, the employer must make available to the employee the available position which is nearest in pay and status to the pre-parental leave position. If there is no available position comparable in pay or status with the pre-parental leave position, the employer will have no obligation under s 84 to make any position available to the employee. (at [63]). *Editors’ note: Commentary prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________

[5-5455]

Replacement employees

84A Before an employer engages an employee to perform the work of

another employee who is going to take, or is taking, unpaid parental leave, the employer must notify the replacement employee: (a) that the engagement to perform that work is temporary; and (b) of the rights: (i) the employer; and (ii) the employee taking unpaid parental leave; have under subsections 77A(2) and (3) (which provide a right to cancel the leave if the pregnancy ends other than by the birth of a living child or if the child dies after birth); and (c) of the rights the employee taking unpaid parental leave has under: (i) subsections 77A(4) to (6) (which provide a right to end the leave early if the pregnancy ends other than by the birth of a living child or if the child dies after birth); and [page 193] (ii) section 84 (which deals with the return to work guarantee); and (d) of the effect of section 78 (which provides the employer with a right to require the employee taking unpaid parental leave to return to work if the employee ceases to have any responsibility for the care of the child). [s 84A insrt Act 109 of 2012 s 3 and Sch 2, opn 23 July 2012; am Act 174 of 2012 s 3 and Sch 10 item 2, opn 1 Jan 2013] COMMENTARY TO SECTION 84A*

Employee ….

[5-5455.1]

[5-5455.1] Employee See definition in s 6 of the Paid Parental Leave Act 2010. *Editor’s note: Commentary to s 84A prepared by Jacqueline Massey, Solicitor.

____________________

[5-5470]

Unpaid pre-adoption leave

85 Entitlement to unpaid pre-adoption leave (1) An employee is entitled to up to 2 days of unpaid pre-adoption leave to attend any interviews or examinations required in order to obtain approval for the employee’s adoption of a child. Note: Entitlement is also affected by section 68 (which deals with the age etc. of the adopted child).

(2) However, an employee is not entitled to take a period of unpaid preadoption leave if: (a) the employee could instead take some other form of leave; and (b) the employer directs the employee to take that other form of leave. (3) An employee who is entitled to a period of unpaid pre-adoption leave is entitled to take the leave as: (a) a single continuous period of up to 2 days; or (b) any separate periods to which the employee and the employer agree. Notice and evidence (4) An employee must give his or her employer notice of the taking of unpaid pre-adoption leave by the employee. (5) The notice: (a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and (b) must advise the employer of the period, or expected period, of the leave. (6) An employee who has given his or her employer notice of the taking of unpaid pre-adoption leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken to attend an interview or examination as referred to in subsection (1). (7) An employee is not entitled to take unpaid pre-adoption leave unless the employee complies with subsections (4) to (6). Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

[page 194]

DIVISION 6 — ANNUAL LEAVE

[5-5640] Division applies to employees other than casual employees 86 This Division applies to employees, other than casual employees. COMMENTARY TO SECTION 86*

Casual employees — s 86 …. Employees — s 86 …. This Division ….

[5-5640.05] [5-5640.10] [5-5640.15]

[5-5640.05] Casual employees — s 86 See [5-970.105.20]. [5-5640.10] Employees — s 86 See s 12. [5-5640.15] This Division This division is Div 6. *Editor’s note: Commentary to s 86 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[5-5660]

Entitlement to annual leave

87 Amount of leave (1) For each year of service with his or her employer, an employee is entitled to: (a) 4 weeks of paid annual leave; or (b) 5 weeks of paid annual leave, if: (i) a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or (ii) an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or (iii) the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this relates to award/agreement free employees).

Note: Section 196 affects whether the FWC may approve an enterprise agreement covering an employee, if the employee is covered by a modern award that is in operation and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 37, opn 1 Jan 2013]

Accrual of leave (2) An employee’s entitlement to paid annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year. Note: If an employee’s employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up to when the employment ends.

Award/agreement free employees who qualify for the shiftworker entitlement (3) An award/agreement free employee qualifies for the shiftworker annual leave entitlement if: (a) the employee: (i) is employed in an enterprise in which shifts are continuously rostered 24 hours a day for 7 days a week; and [page 195] (ii) is regularly rostered to work those shifts; and (iii) regularly works on Sundays and public holidays; or (b) the employee is in a class of employees prescribed by the regulations as shiftworkers for the purposes of the National Employment Standards. (4) However, an employee referred to in subsection (3) does not qualify for the shiftworker annual leave entitlement if the employee is in a class of employees prescribed by the regulations as not being qualified for that entitlement. (5) Without limiting the way in which a class may be described for the purposes of paragraph (3)(b) or subsection (4), the class may be described by reference to one or more of the following: (a) a particular industry or part of an industry;

(b) a particular kind of work; (c) a particular type of employment.

[5-5680]

Taking paid annual leave

88 (1) Paid annual leave may be taken for a period agreed between an employee and his or her employer. (2) The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.

[5-5700] Employee not taken to be on paid annual leave at certain times 89 Public holidays (1) If the period during which an employee takes paid annual leave includes a day or part-day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid annual leave on that public holiday. Other periods of leave (2) If the period during which an employee takes paid annual leave includes a period of any other leave (other than unpaid parental leave) under this Part, or a period of absence from employment under Division 8 (which deals with community service leave), the employee is taken not to be on paid annual leave for the period of that other leave or absence.

[5-5720]

Payment for annual leave

90 (1) If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period. (2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

[page 196] COMMENTARY TO SECTION 90*

Derivation …. Base rate of pay — s 90(1) …. Employees — s 90(1), (2) …. Employer — s 9(1), (2) …. Ordinary hours of work — s 90 …. This Division — s 90(1) …. Outline of section ….

[5-5720.05] [5-5720.10] [5-5720.15] [5-5720.20] [5-5720.25] [5-5720.30] [5-5720.35]

[5-5720.05] Derivation The section has some similarities to s 235 of the Workplace Relations Act 1996. [5-5720.10] Base rate of pay — s 90(1) See s 16. [5-5720.15] Employees — s 90(1), (2) See ss 60 and 86. [5-5720.20] Employer — s 9(1), (2) See s 60. [5-5720.25] Ordinary hours of work — s 90 The starting point for construing paid leave entitlements under the National Employment Standards is the ordinary hours of work of the employees concerned: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v BCS Infrastructure Support Pty Ltd [2013] FCCA 291; BC201309825 at [72] (24 May 2013). See ss 20, 147. [5-5720.30] This Division — s 90(1) This division is Div 6. [5-5720.35] Outline of section Section 90(2) of the FW Act provides that if, when the employment of an employee ends, and the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave: Director of the Fair Work Building Industry Inspectorate v Zion Tiling Pty Ltd (No 2) [2013] FCCA 1288; BC201312805 at [23]. *Editor’s note: Commentary to s 90 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[5-5740] Transfer of employment situations that affect entitlement to payment for period of untaken paid annual leave

91 Transfer of employment situation in which employer may decide not to recognise employee’s service with first employer (1) Subsection 22(5) does not apply (for the purpose of this Division) to a transfer of employment between non-associated entities in relation to an employee, if the second employer decides not to recognise the employee’s service with the first employer (for the purpose of this Division). Employee is not entitled to payment for untaken annual leave if service with first employer counts as service with second employer (2) If subsection 22(5) applies (for the purpose of this Division) to a transfer of employment in relation to an employee, the employee is not entitled to be paid an amount under subsection 90(2) for a period of untaken paid annual leave. Note: Subsection 22(5) provides that, generally, if there is a transfer of employment, service with the first employer counts as service with the second employer.

[page 197]

[5-5760] Paid annual leave must not be cashed out except in accordance with permitted cashing out terms 92 Paid annual leave must not be cashed out, except in accordance with: (a) cashing out terms included in a modern award or enterprise agreement under section 93, or (b) an agreement between an employer and an award/agreement free employee under subsection 94(1).

[5-5780] Modern awards and enterprise agreements may include terms relating to cashing out and taking paid annual leave 93 Terms about cashing out paid annual leave

(1) A modern award or enterprise agreement may include terms providing for the cashing out of paid annual leave by an employee. (2) The terms must require that: (a) paid annual leave must not be cashed out if the cashing out would result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks; and (b) each cashing out of a particular amount of paid annual leave must be by a separate agreement in writing between the employer and the employee; and (c) the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone. Terms about requirements to take paid annual leave (3) A modern award or enterprise agreement may include terms requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable. Terms about taking paid annual leave (4) A modern award or enterprise agreement may include terms otherwise dealing with the taking of paid annual leave.

[5-5800] Cashing out and taking paid annual leave for award/agreement free employees 94 Agreements to cash out paid annual leave (1) An employer and an award/agreement free employee may agree to the employee cashing out a particular amount of the employee’s accrued paid annual leave. (2) The employer and the employee must not agree to the employee cashing out an amount of paid annual leave if the agreement would result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks. (3) Each agreement to cash out a particular amount of paid annual leave must be a separate agreement in writing.

(4) The employer must pay the employee at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone. [page 198] Requirements to take paid annual leave (5) An employer may require an award/agreement free employee to take a period of paid annual leave, but only if the requirement is reasonable. Note: A requirement to take paid annual leave may be reasonable if, for example:

(a) the employee has accrued an excessive amount of paid annual leave; or (b) the employer’s enterprise is being shut down for a period (for example, between Christmas and New Year). Agreements about taking paid annual leave (6) An employer and an award/agreement free employee may agree on when and how paid annual leave may be taken by the employee. Note: Matters that could be agreed include, for example, the following:

(a) that paid annual leave may be taken in advance of accrual; (b) that paid annual leave must be taken within a fixed period of time after it is accrued; (c) the form of application for paid annual leave; (d) that a specified period of notice must be given before taking paid annual leave.

DIVISION 7 — PERSONAL/CARER’S LEAVE AND COMPASSIONATE LEAVE Subdivision A — Paid personal/carer’s leave

[5-5970]

Subdivision applies to employees other

than casual employees 95 This Subdivision applies to employees, other than casual employees. COMMENTARY TO SECTION 95*

Casual employees — s 95 …. Employees — s 95 …. This Subdivision — s 95 ….

[5-5970-01] [5-5970-05] [5-5970-10]

[5-5970-01] Casual employees — s 95 See [7-4110.1]. [5-5970-05] Employees — s 95 See s 60. [5-5970-10] This Subdivision — s 95 This Subdivision is Subdiv A. *Editor’s Note: Commentary to s 95 by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[5-5990] leave

Entitlement to paid personal/carer’s

96 Amount of leave (1) For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave. Accrual of leave (2) An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year. [page 199]

[5-6010]

Taking paid personal/carer’s leave

97 An employee may take paid personal/carer’s leave if the leave is taken: (a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or

(b) to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of: (i) a personal illness, or personal injury, affecting the member; or (ii) an unexpected emergency affecting the member. Note 1: The notice and evidence requirements of section 107 must be complied with. Note 2: If a female employee has an entitlement to paid personal/carer’s leave, she may take that leave instead of taking unpaid special maternity leave under section 80. [s 97 am Act 73 of 2013 s 3 and Sch 1 item 11, opn 1 July 2013]

[5-6030] Employee taken not to be on paid personal/carer’s leave on public holiday 98 If the period during which an employee takes paid personal/carer’s leave includes a day or part-day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid personal/carer’s leave on that public holiday.

[5-6050]

Payment for paid personal/carer’s leave

99 If, in accordance with this Subdivision, an employee takes a period of paid personal/carer’s leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

[5-6070] Paid personal/carer’s leave must not be cashed out except in accordance with permitted cashing out terms 100 Paid personal/carer’s leave must not be cashed out, except in accordance with cashing out terms included in a modern award or enterprise agreement under section 101. COMMENTARY TO SECTION 100*

Derivation …. Cashed out — s 100 ….

[5-6070-1] [5-6070-5]

Modern Award — s 100 …. Paid personal/carer’s leave — s 100 …. Outline of section ….

[5-6070-10] [5-6070-15] [5-6070-20]

[5-6070-1] Derivation Section 245A Workplace Relations Act 1996. [5-6070-5] Cashed out — s 100 In Construction, Forestry, Mining and Energy Union v Jeld-Wen Glass Australia Pty Ltd (2012) 213 FCR 549; 218 IR 108; [2012] FCA 45; BC201200299, Gray J held: [page 200] [18] The online edition of the Macquarie Dictionary defines “cash out” as meaning “to take in monetary form”. It gives as an example “to cash out one’s annual leave.” It is interesting that there is also a definition of “cash in”, which means “to obtain cash for”. The example given is “to cash in an insurance policy.” The use of prepositions that are antonyms, in conjunction with the word “cash” as a verb, gives rise to two expressions that are highly similar, if not identical, in meaning. There is nothing to indicate that the phrases “cashed out” and “cashing out”, used in ss 100 and 101 of the Fair Work Act, have anything other than their ordinary meaning, which in this case corresponds with the dictionary meaning. In other words, s 100 provides that paid personal/carer’s leave must not be taken in monetary form (as distinct from in the form of leave), otherwise than in accordance with terms included in a modern award or enterprise agreement, which comply with the standards in s 101(2) and provide for such leave to be taken in monetary form. [19] It is clear that it is the entitlement to take paid personal/carer’s leave that is capable of being cashed out, rather than the leave itself. If leave is taken, there is an obligation on the employer to pay the employee at the appropriate rate, pursuant to s 99 of the Fair Work Act … It is only untaken leave entitlements for which a monetary payment could substitute… [20] … The mere fact that money was paid in advance would not render the payment any less a payment in substitution for the entitlement than if the payment were made after the entitlement had accrued… [5-6070-10] Modern Award — s 100 See s 12. [5-6070-15] Paid personal/carer’s leave — s 100 See s 96. [5-6070-20] Outline of section The Explanatory Memorandum to the Fair Work Bill 2008 states at [397] that: Clause 100 makes clear that paid personal/carer’s leave may only be cashed out in accordance with the terms included in a modern award or enterprise agreement under clause 101. The cashing out terms ensures that employees retain access to paid leave in the event of illness or injury: Explanatory Memorandum to the Fair Work Bill 2008 at [398]. *Commentary to s 100 prepared by Ian Latham BA(Hons)/LLB (ANU).

____________________

[5-6090] Modern awards and enterprise agreements may include terms relating to cashing out paid personal/carer’s leave 101 (1) A modern award or enterprise agreement may include terms providing for the cashing out of paid personal/carer’s leave by an employee. (2) The terms must require that: (a) paid personal/carer’s leave must not be cashed out if the cashing out would result in the employee’s remaining accrued entitlement to paid personal/carer’s leave being less than 15 days; and (b) each cashing out of a particular amount of paid personal/carer’s leave must be by a separate agreement in writing between the employer and the employee; and (c) the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone. [page 201]

Subdivision B — Unpaid carer’s leave

[5-6210]

Entitlement to unpaid carer’s leave

102 An employee is entitled to 2 days of unpaid carer’s leave for each occasion (a permissible occasion) when a member of the employee’s immediate family, or a member of the employee’s household, requires care or support because of: (a) a personal illness, or personal injury, affecting the member; or (b) an unexpected emergency affecting the member.

[5-6230]

Taking unpaid carer’s leave

103 (1) An employee may take unpaid carer’s leave for a particular permissible occasion if the leave is taken to provide care or support as

referred to in section 102. (2) An employee may take unpaid carer’s leave for a particular permissible occasion as: (a) a single continuous period of up to 2 days; or (b) any separate periods to which the employee and his or her employer agree. (3) An employee cannot take unpaid carer’s leave during a particular period if the employee could instead take paid personal/carer’s leave. Note: The notice and evidence requirements of section 107 must be complied with.

Subdivision C — Compassionate leave

[5-6350]

Entitlement to compassionate leave

104 An employee is entitled to 2 days of compassionate leave for each occasion (a permissible occasion) when a member of the employee’s immediate family, or a member of the employee’s household: (a) contracts or develops a personal illness that poses a serious threat to his or her life; or (b) sustains a personal injury that poses a serious threat to his or her life; or (c) dies.

[5-6370]

Taking compassionate leave

105 (1) An employee may take compassionate leave for a particular permissible occasion if the leave is taken: (a) to spend time with the member of the employee’s immediate family or household who has contracted or developed the personal illness, or sustained the personal injury, referred to in section 104; or (b) after the death of the member of the employee’s immediate family or household referred to in section 104. (2) An employee may take compassionate leave for a particular permissible occasion as:

(a) a single continuous 2 day period; or (b) 2 separate periods of 1 day each; or (c) any separate periods to which the employee and his or her employer agree. [page 202] (3) If the permissible occasion is the contraction or development of a personal illness, or the sustaining of a personal injury, the employee may take the compassionate leave for that occasion at any time while the illness or injury persists. Note: The notice and evidence requirements of section 107 must be complied with.

[5-6390] Payment for compassionate leave (other than for casual employees) 106 If, in accordance with this Subdivision, an employee, other than a casual employee, takes a period of compassionate leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period. Note: For casual employees, compassionate leave is unpaid leave.

Subdivision D — Notice and evidence requirements

[5-6510]

Notice and evidence requirements

107 Notice (1) An employee must give his or her employer notice of the taking of leave under this Division by the employee. (2) The notice: (a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and (b) must advise the employer of the period, or expected period, of the leave.

Evidence (3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that: (a) if it is paid personal/carer’s leave — the leave is taken for a reason specified in section 97; or (b) if it is unpaid carer’s leave — the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or (c) if it is compassionate leave — the leave is taken for a permissible occasion in circumstances specified in subsection 105(1). Compliance (4) An employee is not entitled to take leave under this Division unless the employee complies with this section. Modern awards and enterprise agreements may include evidence requirements (5) A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave. Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

[page 203] COMMENTARY TO SECTION 107*

Derivation …. As soon as practicable — 107(2)(a) …. Compassionate leave — s 107(3)(c), (5) …. Employee — 107(1), (3), (4), (5) …. Employer — 107(1), (2)(a), (b), (3), Note …. Enterprise agreement — 107(5) …. Evidence — 107(3), (5) …. Modern Award — 107(5) ….

[5-6510.01] [5-6510.05] [5-6510.10] [5-6510.15] [5-6510.20] [5-6510.25] [5-6510.30] [5-6510.35]

Personal/carer’s leave — 107(3)(a), (b), (5) …. Satisfy a reasonable person — s 107(3) …. This division — s 107(1), (3), (4) …. Unpaid carer’s leave — s 107(3)(b), (5) …. Outline of section ….

[5-6510.40] [5-6510.45] [5-6510.50] [5-6510.55] [5-6510.60]

[5-6510.01] Derivation The section is loosely derived from s 254 of the Workplace Relations Act 1996. [5-6510.05] As soon as practicable — 107(2)(a) The statutory entitlement is expressly shown by s 107(2) not to be conditioned upon the prior presentation of notice and evidence of illness, and allows a retrospective giving of notice “as soon as practicable” and evidence “if required by the employer” … It is not difficult to understand why it will be common that an employee may need to commence the taking of sick leave before being able to notify his or her employee and provide a medical certificate. In this context, it is unlikely that the legislature intended that an employer could avoid contravention of s 352 by dismissing employees for short term absences, before the elapse of a specified or reasonable time for giving notice and evidence of the taking of sick leave. It is not unreasonable to construe the legislation, including s 352, as intending to encourage employers not to take any dismissal action for a temporary absence of an employee, without first inquiring whether the absence might be attributable to injury or illness covered by sick leave, or at least waiting until the elapse of a specified or reasonable time to receive notice and evidence of this in accordance with s 107 and other notification requirements of the terms of employment: Kavassilas v Migration Training Australia Pty Ltd [2012] FMCA 22; BC201200438 at [65] (27 January 2012). “The range of facts and circumstances which can bear on what is practicable is a wide range: the choice of that word is a choice away from the narrow, the restrictive and the theoretical. A requirement that a meeting is to be held as soon as practicable is not a requirement that a meeting be held as soon as possible, nor in the least time which can be arranged” (Vision Nominees Pty Ltd v Pangea Resources Ltd (1988) 14 NSWLR 38 at 43; 13 ACLR 529; 6 ACLC 770.) [5-6510.10] Compassionate leave — s 107(3)(c), (5) See s 12. [5-6510.15] Employee — 107(1), (3), (4), (5) See s 60. [5-6510.20] Employer — 107(1), (2)(a), (b), (3), Note See s 60. [5-6510.25] Enterprise agreement — 107(5) See s 12. [5-6510.30] Evidence — 107(3), (5) While s 107(5) of the Act permits enterprise agreements to include terms relating to the kind of evidence that an employee must provide to an employer there is no provision within s 107 which permits an enterprise agreement from containing a term which provides for notice requirements which are more onerous on an employee than the notice requirements of s 107(2) of the Act. [page 204] Where an enterprise agreement seeks to replace the operation of s 107(2) of the Act with a more onerous notice requirement such a term of an enterprise agreement would appear to contravene s 55 of

the Act and an enterprise agreement with such a term could not be approved by the Commission given the operation of s 186(2)(c) of the Act: Vos Construction and Joinery Pty Ltd re Vos Construction & Joinery Pty Ltd Enterprise Agreement (Construction North) 2013–2016 [2013] FWC 4009 at [40]–[41] (20 June 2013). On the other hand, Rares J held in Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32 at [64] that: An employee’s statutory, certified agreement or analogous industrial award based entitlement to take sick leave does not displace the contractual relationship in which, at some point, the employer is entitled to make its own business arrangements to adjust for the impact that the leave caused by the sickness of the employment will have on it and to address its obligations under the Work Health and Safety Act and its analogues. [5-6510.35] Modern Award — 107(5) See s 12. [5-6510.40] Personal/carer’s leave — 107(3)(a), (b), (5) See s 96. [5-6510.45] Satisfy a reasonable person — s 107(3) Subclause 107(3) enables an employer to require an employee who has given notice to provide evidence that would satisfy a reasonable person that the employee is entitled to the leave. The types of evidence commonly requested include a medical certificate or statutory declaration. It may not be reasonable on every occasion of personal illness for an employer to require an employee to provide a medical certificate. However, in cases of an absence extending beyond a short period or repeated absences on particular days (eg, before or after a weekend or public holiday), it may be reasonable for an employer to request a medical certificate in support of the employee’s request for leave: Explanatory Memorandum to the Fair Work Bill 2009 at [415]. [5-6510.50] This division — s 107(1), (3), (4) This Division is Div 7. [5-6510.55] Unpaid carer’s leave — s 107(3)(b), (5) See ss 12 and 102. [5-6510.60] Outline of section Section 107 of the FWA is part of the National Employment Standards. It prescribes the steps by which an employee can make out his or her right to particular occasions of personal/carer’s leave as well as the basis on which an employer can lawfully refuse to treat absences as such leave. Section 107 of the FWA provides that an employee must give his or her employer notice of the taking of, relevantly, personal/carer’s leave and, if required by the employer, must give the employer evidence that would satisfy a reasonable person that the leave was taken because of illness or injury to the employee or to a member of their family or by an unexpected emergency suffered by a member of their family: Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2013] FCCA 473; BC201310505 at [149]. *Editor’s note: Commentary to s 107 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

DIVISION 8 — COMMUNITY SERVICE LEAVE

[5-6680] Entitlement to be absent from employment for engaging in eligible community

service activity 108 An employee who engages in an eligible community service activity is entitled to be absent from his or her employment for a period if: (a) the period consists of one or more of the following: (i) time when the employee engages in the activity; [page 205] (ii) reasonable travelling time associated with the activity; (iii) reasonable rest time immediately following the activity; and (b) unless the activity is jury service — the employee’s absence is reasonable in all the circumstances.

[5-6700] activity

Meaning of eligible community service

109 General (1) Each of the following is an eligible community service activity: (a) jury service (including attendance for jury selection) that is required by or under a law of the Commonwealth, a State or a Territory; or (b) a voluntary emergency management activity (see subsection (2)); or (c) an activity prescribed in regulations made for the purpose of subsection (4). Voluntary emergency management activities (2) An employee engages in a voluntary emergency management activity if, and only if: (a) the employee engages in an activity that involves dealing with an emergency or natural disaster; and (b) the employee engages in the activity on a voluntary basis (whether

or not the employee directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity); and (c) the employee is a member of, or has a member-like association with, a recognised emergency management body; and (d) either: (i) the employee was requested by or on behalf of the body to engage in the activity; or (ii) no such request was made, but it would be reasonable to expect that, if the circumstances had permitted the making of such a request, it is likely that such a request would have been made. (3) A recognised emergency management body is: (a) a body, or part of a body, that has a role or function under a plan that: (i) is for coping with emergencies and/or disasters; and (ii) is prepared by the Commonwealth, a State or a Territory; or (b) a fire-fighting, civil defence or rescue body, or part of such a body; or (c) any other body, or part of a body, a substantial purpose of which involves: (i) securing the safety of persons or animals in an emergency or natural disaster; or (ii) protecting property in an emergency or natural disaster; or (iii) otherwise responding to an emergency or natural disaster; or (d) a body, or part of a body, prescribed by the regulations; but does not include a body that was established, or is continued in existence, for the purpose, or for purposes that include the purpose, of entitling one or more employees to be absent from their employment under this Division. Regulations may prescribe other activities (4) The regulations may prescribe an activity that is of a community service nature as an eligible community service activity.

[page 206]

[5-6720]

Notice and evidence requirements

110 Notice (1) An employee who wants an absence from his or her employment to be covered by this Division must give his or her employer notice of the absence. (2) The notice: (a) must be given to the employer as soon as practicable (which may be a time after the absence has started); and (b) must advise the employer of the period, or expected period, of the absence. Evidence (3) An employee who has given his or her employer notice of an absence under subsection (1) must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the absence is because the employee has been or will be engaging in an eligible community service activity. Compliance (4) An employee’s absence from his or her employment is not covered by this Division unless the employee complies with this section. Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

[5-6740] Payment to employees (other than casuals) on jury service 111 Application of this section (1) This section applies if: (a) in accordance with this Division, an employee is absent from his or her employment for a period because of jury service; and (b) the employee is not a casual employee.

Employee to be paid base rate of pay (2) Subject to subsections (3), (4) and (5), the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period. Evidence (3) The employer may require the employee to give the employer evidence that would satisfy a reasonable person: (a) that the employee has taken all necessary steps to obtain any amount of jury service pay to which the employee is entitled; and (b) of the total amount (even if it is a nil amount) of jury service pay that has been paid, or is payable, to the employee for the period. Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

(4) If, in accordance with subsection (3), the employer requires the employee to give the employer the evidence referred to in that subsection: (a) the employee is not entitled to payment under subsection (2) unless the employee provides the evidence; and [page 207] (b) if the employee provides the evidence — the amount payable to the employee under subsection (2) is reduced by the total amount of jury service pay that has been paid, or is payable, to the employee, as disclosed in the evidence. Payment only required for first 10 days of absence (5) If an employee is absent because of jury service in relation to a particular jury service summons for a period, or a number of periods, of more than 10 days in total: (a) the employer is only required to pay the employee for the first 10 days of absence; and (b) the evidence provided in response to a requirement under subsection (3) need only relate to the first 10 days of absence; and

(c) the reference in subsection (4) to the total amount of jury service pay as disclosed in evidence is a reference to the total amount so disclosed for the first 10 days of absence. Meaning of jury service pay (6) Jury service pay means an amount paid in relation to jury service under a law of the Commonwealth, a State or a Territory, other than an amount that is, or that is in the nature of, an expense-related allowance. Meaning of jury service summons (7) Jury service summons means a summons or other instruction (however described) that requires a person to attend for, or perform, jury service.

[5-6760] State and Territory laws that are not excluded 112 (1) This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to engaging in eligible community service activities, to the extent that those entitlements are more beneficial to employees than the entitlements under this Division. Note: For example, this Act would not apply to the exclusion of a State or Territory law providing for a casual employee to be paid jury service pay.

(2) If the community service activity is an activity prescribed in regulations made for the purpose of subsection 109(4), subsection (1) of this section has effect subject to any provision to the contrary in the regulations.

DIVISION 9 — LONG SERVICE LEAVE

[5-6930]

Entitlement to long service leave

113 Entitlement in accordance with applicable award-derived long service leave terms (1) If there are applicable award-derived long service leave terms (see subsection (3)) in relation to an employee, the employee is entitled to long service leave in accordance with those terms. Note: This Act does not exclude State and Territory laws that deal with long service leave, except in relation to employees who are entitled to long service leave under this Division (see paragraph 27(2)

(g)), and except as provided in subsection 113A(3).

[page 208] (2) However, subsection (1) does not apply if: (a) a workplace agreement, or an AWA, that came into operation before the commencement of this Part applies to the employee; or (b) one of the following kinds of instrument that came into operation before the commencement of this Part applies to the employee and expressly deals with long service leave: (i) an enterprise agreement; (ii) a preserved State agreement; (iii) a workplace determination; (iv) a pre-reform certified agreement; (v) a pre-reform AWA; (vi) a section 170MX award; (vii) an old IR agreement. Note: If there ceases to be any agreement or instrument of a kind referred to in paragraph (a) or (b) that applies to the employee, the employee will, at that time, become entitled under subsection (1) to long service leave in accordance with applicable award-derived long service leave terms.

(3) Applicable award-derived long service leave terms, in relation to an employee, are: (a) terms of an award, or a State reference transitional award, that (disregarding the effect of any instrument of a kind referred to in subsection (2)): (i) would have applied to the employee at the test time (see subsection (3A)) if the employee had, at that time, been in his or her current circumstances of employment; and (ii) would have entitled the employee to long service leave; and (b) any terms of the award, or the State reference transitional award, that are ancillary or incidental to the terms referred to in paragraph (a). [subs (3) am Act 124 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

(3A) For the purpose of subparagraph (3)(a)(i), the test time is: (a) immediately before the commencement of this Part; or (b) if the employee is a Division 2B State reference employee (as defined in Schedule 2 to the Transitional Act) — immediately before the Division 2B referral commencement (as defined in that Schedule). [subs (3A) insrt Act 124 of 2009 s 3 and Sch 2, opn 1 Jan 2010; am Act 175 of 2012 s 3 and Sch 1 item 48, opn 5 Dec 2012]

Entitlement in accordance with applicable agreement-derived long service leave terms (4) If there are applicable agreement-derived long service leave terms (see subsection (5)) in relation to an employee, the employee is entitled to long service leave in accordance with those terms. (5) There are applicable agreement-derived long service leave terms, in relation to an employee if: (a) an order under subsection (6) is in operation in relation to terms of an instrument; and (b) those terms of the instrument would have applied to the employee immediately before the commencement of this Part if the employee had, at that time, been in his or her current circumstances of employment; and [page 209] (c) there are no applicable award-derived long service leave terms in relation to the employee. (6) If the FWC is satisfied that: (a) any of the following instruments that was in operation immediately before the commencement of this Part contained terms entitling employees to long service leave: (i) an enterprise agreement; (ii) a collective agreement;

(iii) a pre-reform certified agreement; (iv) an old IR agreement; and (b) those terms constituted a long service leave scheme that was applying in more than one State or Territory; and (c) the scheme, considered on an overall basis, is no less beneficial to the employees than the long service leave entitlements that would otherwise apply in relation to the employees under State and Territory laws; the FWC may, on application by, or on behalf of, a person to whom the instrument applies, make an order that those terms of the instrument (and any terms that are ancillary or incidental to those terms) are applicable agreement-derived long service leave terms. [subs (6) am Act 174 of 2012 s 3 and Sch 9 item 38, opn 1 Jan 2013]

References to instruments (7) References in this section to a kind of instrument (other than an enterprise agreement) are references to a transitional instrument of that kind, as continued in existence by Schedule 3 to the Transitional Act. [subs (7) am Act 175 of 2012 s 3 and Sch 1 item 49, opn 5 Dec 2012]

[5-6950] Enterprise agreements may contain terms discounting service under prior agreements etc in certain circumstances 113A (1) This section applies if: (a) an instrument (the first instrument) of one of the following kinds that came into operation before the commencement of this Part applies to an employee on or after the commencement of this Part: (i) an enterprise agreement; (ii) a workplace agreement; (iii) a workplace determination; (iv) a preserved State agreement; (v) an AWA;

(vi) a pre-reform certified agreement; (vii) a pre-reform AWA; (viii)an old IR agreement; (ix) a section 170MX award; and (b) the instrument states that the employee is not entitled to long service leave; and (c) the instrument ceases, for whatever reason, to apply to the employee; and [page 210] (d) immediately after the first instrument ceases to apply, an enterprise agreement (the replacement agreement) starts to apply to the employee. (2) The replacement agreement may include terms to the effect that an employee’s service with the employer during a specified period (the excluded period) (being some or all of the period when the first instrument applied to the employee) does not count as service for the purpose of determining whether the employee is qualified for long service leave, or the amount of long service leave to which the employee is entitled, under this Division or under a law of a State or Territory. (3) If the replacement agreement includes terms as permitted by subsection (2), the excluded period does not count, and never again counts, as service for the purpose of determining whether the employee is qualified for long service leave, or the amount of long service leave to which the employee is entitled, under this Division or under a law of a State or Territory, unless a later agreement provides otherwise. This subsection has effect despite sections 27 and 29. (4) References in this section to a kind of instrument (other than an enterprise agreement) are references to a transitional instrument of that kind, as continued in existence by Schedule 3 to the Transitional Act. [subs (4) am Act 175 of 2012 s 3 and Sch 1 item 50, opn 5 Dec 2012]

DIVISION 10 — PUBLIC HOLIDAYS

[5-7120] Entitlement to be absent from employment on public holiday 114 Employee entitled to be absent on public holiday (1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes. Reasonable requests to work on public holidays (2) However, an employer may request an employee to work on a public holiday if the request is reasonable. (3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if: (a) the request is not reasonable; or (b) the refusal is reasonable. (4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account: (a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee; (b) the employee’s personal circumstances, including family responsibilities; (c) whether the employee could reasonably expect that the employer might request work on the public holiday; (d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday; [page 211] (e) the type of employment of the employee (for example, whether

full-time, part-time, casual or shiftwork); (f) the amount of notice in advance of the public holiday given by the employer when making the request; (g) in relation to the refusal of a request — the amount of notice in advance of the public holiday given by the employee when refusing the request; (h) any other relevant matter.

[5-7140]

Meaning of public holiday

115 The public holidays (1) The following are public holidays: (a) each of these days: (i) 1 January (New Year’s Day); (ii) 26 January (Australia Day); (iii) Good Friday; (iv) Easter Monday; (v) 25 April (Anzac Day); (vi) the Queen’s birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory); (vii) 25 December (Christmas Day); (viii)26 December (Boxing Day); (b) any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the regulations from counting as a public holiday. Substituted public holidays under State or Territory laws (2) If, under (or in accordance with a procedure under) a law of a State or Territory, a day or part-day is substituted for a day or part-day that would otherwise be a public holiday because of subsection (1), then the substituted

day or part-day is the public holiday. Substituted public holidays under modern awards and enterprise agreements (3) A modern award or enterprise agreement may include terms providing for an employer and employee to agree on the substitution of a day or partday for a day or part-day that would otherwise be a public holiday because of subsection (1) or (2). Substituted public holidays for award/agreement free employees (4) An employer and an award/agreement free employee may agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday because of subsection (1) or (2). Note: This Act does not exclude State and Territory laws that deal with the declaration, prescription or substitution of public holidays, but it does exclude State and Territory laws that relate to the rights and obligations of an employee or employer in relation to public holidays (see paragraph 27(2)(j)).

[page 212]

[5-7160]

Payment for absence on public holiday

116 If, in accordance with this Division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part-day. Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs.

DIVISION 11 — NOTICE OF TERMINATION AND REDUNDANCY PAY Subdivision A — Notice of termination or payment in lieu of notice

[5-7330] Requirement for notice of termination or payment in lieu 117 Notice specifying day of termination (1) An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given). Note 1: Section 123 describes situations in which this section does not apply. Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by: (a) delivering it personally; or (b) leaving it at the employee’s last known address; or (c) sending it by pre-paid post to the employee’s last known address.

Amount of notice or payment in lieu of notice (2) The employer must not terminate the employee’s employment unless: (a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or (b) the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice. (3) Work out the minimum period of notice as follows: (a) first, work out the period using the following table: Period Employee’s period of continuous service with the employer at the end of the day the notice is given

Period

1

Not more than 1 year

1 week

2

More than 1 year but not more than 3 2 weeks

years 3

More than 3 years but not more than 5 years

3 weeks

4

More than 5 years

4 weeks

[page 213] (b) then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given. COMMENTARY TO SECTION 117*

Derivation …. History …. Continuous service — s 117(3)(a), (b) …. Employee — s 117(1), Note 2, (2), (b), (3)(a), (b) …. Employer — s 117(1), (2), (b), (3)(a), (b) …. Full rate of pay — s 117(2)(b) …. Must not terminate — s 117(1), (2) …. Notice — s 117(1), Note 2 (2)(a), (b), (3), (a), (b) …. Terminate s 117(1), (2) …. Outline of section ….

[5-7330.01] [5-7330.05] [5-7330.10] [5-7330.15] [5-7330.20] [5-7330.25] [5-7330.30] [5-7330.35] [5-7330.36] [5-7330.40]

[5-7330.01] Derivation Section 661 of the Workplace Relations Act 1996 [5-7330.05] History Section 661 was derived from 170DB of the Industrial Relations Act 1988. [5-7330.10] Continuous service — s 117(3)(a), (b) See the definitions in s 12 and 22. [5-7330.15] Employee — s 117(1), Note 2, (2), (b), (3)(a), (b) See the definition in ss 12, 13, 15, 30C, 30M and 60. [5-7330.20] Employer — s 117(1), (2), (b), (3)(a), (b) See the definitions in ss 12, 14, 15, 30D, 30N and 60. [5-7330.25] Full rate of pay — s 117(2)(b) See the definitions in ss 12 and 18. [5-7330.30] Must not terminate — s 117(1), (2) Section 117(2)(b) entitles the employer to terminate employment by payment in lieu of notice as an alternative to providing actual notice of termination: see

McCarry, “Termination of Employment, Payment in Lieu of Notice, Garden Leave and the Right to Work”, (1999) 12(1) AJLL 57 at 60. This is a different right to that which exists at common law. If payment in lieu of notice is not allowed by the employment contract and the employee does not consent to payment in lieu of notice, failure to provide actual notice is a breach of contract, for which damages would ordinarily be payable, subject to any payments made by the employer that are set off against the damages, and subject also to any discount for the employee’s failure to mitigate damages: Sanders v Snell (1998) 196 CLR 329; 157 ALR 491; [1998] HCA 64; BC9805142; Delaney v Staples [1992]1 AC 687; [1992] 1 All ER 944; 2 WLR 451; Johnson v Unisys Ltd; [2003] 1 AC 518; [2001] 2 All ER 801; [2001] 2 WLR 1076; [2001] UKHL 13. In such a situation, the dismissed employee has a remedy in damages “against the master for breach of the contract to continue the relationship for the contractual period. He gets damages for the time he would have served if he had been given proper notice, less, of course, anything he has, or ought to have earned, in alternative employment.” Per Lord Denning MR in Hill v CA Parsons Ltd (1972) Ch 305 at 314; [1971] 3 All ER 1345; 3 WLR 995. The date of termination must be clear or be able to be ascertained: Morton Suntour Fabrics v Shaw (1967) 2 ITR 84. [page 214] The normal principles for the assessment of damages in a breach of contract case apply. The general rule is that stated by Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39, where his Lordship defined the measure of damages as: “That sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation.”: Rankin v Marine Power International Pty Ltd [2001] VSC 150; 107 IR 117 at [403] and [404]. The section is a civil remedy provision: see ss 44(1) and 539. [5-7330.35] Notice — s 117(1), Note 2 (2)(a), (b), (3), (a), (b) The required minimum period of notice is worked out according to the table set out in s 117(3). The notice period is a sliding scale geared to years of service, up to four weeks for an employee with more than five years of service. An additional week is provided if the employee is over 45 years old and has completed at least two years of continuous service with the employer. The Explanatory Memorandum to the Industrial Relations Reform Bill 1993 stated that the section required an employee be given at least the specified notice of termination, unless the employee was guilty of misconduct that would make this requirement unreasonable. It also stated that the section gives effect to Article 11 of the Termination of Employment Convention: See Sch 4. There is considerable doubt as to whether the section confers a right upon an employer to terminate a contract of employment by giving notice in accordance with the section: see J Macken, Law of Employment, 5th ed, Lawbook Co, Sydney, 2002, p 170. It is clear that the provisions of a statute or statutory instrument are not part of the contract of employment unless expressly incorporated; Bryne & Frew v Aust Airlines Ltd (1995) 185 CLR 410 at 421; 131 ALR 422; [1995] HCA 24; BC9506439. That decision arose from an argument as to whether a clause of an industrial award was incorporated into the contract of employment. The award was a piece of delegated legislation. It was there said at [11]: “in a system of industrial regulation where some, but not all, of the incidents of an employment relationship are determined by award, it is plainly unnecessary that the contract of employment

should provide for those matters already covered by the award. The contract may provide additional benefits, but cannot derogate from the terms and conditions imposed by the award and, as we have said, the award operates with statutory force to secure those terms and conditions. Neither from the point of view of the employer nor the employee is there any need to convert those statutory rights and obligations to contractual rights and obligations.” This decision was further elaborated upon in BHP Iron Ore Pty Ltd v AWU (2000) 102 FCR 97 at 121; 171 ALR 680 at 701; [2000] FCA 430; BC200001614 at [81] where it was held by a Full Court of the Federal Court that if an award is to be incorporated into a contract of employment, express provision to that effect is required. One line of authority states that a notice provision in an industrial award merely means that the employment provision shall not be put an end to unless notice as therein prescribed shall be given, and they do not interfere with the rights of the parties with respect to longer notice by contract or otherwise: see Kilminster v Sun Newspapers (1931) 46 CLR 284 at 289; 5 ALJR 285; 32 SR (NSW) 313; 9 WN (NSW) 113a. It has been held that the notice period required under s 117 and its predecessors does not displace any more generous express contractual provision for termination by notice, nor an implied contractual provision for termination by “reasonable” notice: see Stewart v Nickles [1999] FCA 888; BC9903640. To similar effect, Madgwick J stated in Westen v Union des Assurance de Paris (1996) 88 IR 259 at 263; [1996] IRCA 610 that: “While I lean strongly against the notions that ‘due notice’, as I have put it, could be other than reasonable notice, or that, as was submitted by the respondent, an award prescribing a minimal standard of notice to apply to everyone in the industry, including the least skilled and [page 215] experienced officer on administrative work (a letter-opener, perhaps) ought to prevail over an otherwise implied contractual right for reasonable notice, I do not need, as will appear, to decide the matter.” On the other hand, it has been held in Brackenridge v Toyota Motor Corp Australia Ltd (1996) 67 IR 162 at 189 by Beazley J that: “However, the award still governs the employment to the extent that the express terms of the employment do not make some greater or more beneficial provision … It follows that where an Award governs a particular aspect of employment, there is no room for the implication of a term relating to precisely the same subject matter.” This part of the decision was not disturbed on appeal. It was followed by the Full Bench of the Tasmanian Supreme Court in the case of Jager v ANA (TASSC 54); see Australian National Hotels Pty Ltd v Jager (2000) 9 Tas R 153; [2000] TASSC 43; BC200002349 (Jager) (although with a slightly different statutory regime). The High Court refused special leave to appeal in Jager. Jager was followed by Marshall J in Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23 at 38; [2001] FCA 807; BC200103467: overturned on a different basis in Elliot v Kodak Australasian Pty Ltd (2001) 129 IR 251; [2001] FCA 1804; BC200108280. In Bognar v Merck Sharp & Dohme (Australia) Pty Ltd [2008] FMCA 571; BC200803578 at [127]–[134], the Federal Magistrates Court held that the notice provisions in the Workplace Relations Act left no room to imply a term of reasonable notice: compare Graeske v 5KA Broadcasters (1988) 55 SAIR 702 at 716 where Russell J held that: The provisions of the Award do not … nor do they purport to interfere with the applicant’s right, ex contractu, for a period of notice longer than that prescribed by … the Award. (See Kilminster v Sun Newspapers Ltd (1931) 46 CLR 284; 5 ALJR 285; 32 SR (NSW) 313; BC3115268). See also Bright v Pierce, Magistrates Court of Victoria

https://www.magistratescourt.vic.gov.au/jurisdictions/judgments-and-decisions/industrial-divisionjudgments/industrial-division-judgments-2011 at [20] and Elton v Bywater Medical Management Pty Ltd [2011] QDC 114 at [28] where Bognar was distinguished on the basis that: The trouble with Bognar is that it was involved, in essence, with the application of an award provision which did provide for an actual rather than a minimum period of notice. So much appears for the consideration by O’Sullivan FM at [125]–[134]. Any further consideration in that case of s 661 is obiter. A similar point was looked at in Hastings v JH Corporate Security Services Pty Ltd [2000] SASC 216; BC200003785 at [7] where it was held that a term of reasonable notice would not be implied into an AWA in the face of express terms concerning the termination of employment. There is a point of distinction in that it was common ground that the plaintiff’s contract of employment was an Australian Workplace Agreement made pursuant to the Workplace Relations Act 1996 (Cth): at [4]. The Full Bench of the Industrial Relations Commission of NSW held in Hansen Yuncken Pty Ltd v Costopoulos [2004] NSWIRComm 249; 136 IR 61 that they had no power under s 106 to determine a period of notice in excess of the period set out in the relevant federal award. The decision of a Full Court of the Federal Court in University of Wollongong v National Tertiary Education Industry Union [2002] FCAFC 85; [2002] FCA 360; BC200201211, illustrates the importance of considering whether the power to dismiss an employee summarily for misconduct under the predecessor to s 117 is consistent with any other binding procedural requirements under the employment contract or an industrial agreement. [page 216] [5-7330.36] Terminate s 117(1), (2) The meaning of the phrase in s 117 was described in Fair Work Ombudsman v FL Press Pty Ltd [2015] FCCA 1578; BC201505276 at [229] as being “concerned with situations where an employer is the moving party and ends the employee’s employment”. [5-7330.40] Outline of section The section is part of Division 11 that deals with notice of termination and redundancy pay. Section 117 provides that an employer must not terminate an employee’s employment unless the employee has been given a required period of notice of termination, or pay in lieu of notice. The section does not apply to fixed term employees, employees terminated because of serious misconduct, casual employees, trainees or daily hire employees working in the building and construction industry or in the meat industry in connection with the slaughter of lifestock: see s 123. *Editor’s note: Commentary prepared by Emily Hammond BA LLB (Syd) and John Trew QC LLB (Syd). Updated by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[5-7350] Modern awards and enterprise agreements may provide for notice of termination by employees 118 A modern award or enterprise agreement may include terms

specifying the period of notice an employee must give in order to terminate his or her employment.

Subdivision B — Redundancy pay

[5-7470]

Redundancy pay

119 Entitlement to redundancy pay (1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated: (a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or (b) because of the insolvency or bankruptcy of the employer. Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.

Amount of redundancy pay (2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work: Redundancy pay period Employee’s period of continuous service with the employer on termination

Redundancy pay period

1

At least 1 year but less than 2 years

4 weeks

2

At least 2 years but less than 3 years

6 weeks

3

At least 3 years but less than 4 years

7 weeks

4

At least 4 years but less than 5 years

8 weeks

5

At least 5 years but less than 6 years

10 weeks

6

At least 6 years but less than 7 years

11 weeks

[page 217]

7

At least 7 years but less than 8 years

13 weeks

8

At least 8 years but less than 9 years

14 weeks

9

At least 9 years but less than 10 years 16 weeks

10

At least 10 years

12 weeks

COMMENTARY TO SECTION 119*

Derivation …. Base rate of pay — s 119(2) …. Employee — s 119(1), (a), Note, (2) …. Employer — s 119(1), (a), (b) …. Employer’s initiative — s 119(1)(a) …. Employment is terminated — s 119(1)(a) …. Ordinary and customary turnover of labour — s 119(1) (a) …. Ordinary hours of work — s 118(2) …. Outline of section ….

[5-7470.05] [5-7470.10] [5-7470.15] [5-7470.20] [5-7470.25] [5-7470.27] [5-7470.30] [5-7470.35] [5-7470.40]

[5-7470.05] Derivation The section is new. [5-7470.10] Base rate of pay — s 119(2) See s 16. [5-7470.15] Employee — s 119(1), (a), Note, (2) See s 60. [5-7470.20] Employer — s 119(1), (a), (b) See s 60. [5-7470.25] Employer’s initiative — s 119(1)(a) See [7-4320.55]. [5-7470.27] Employment is terminated — s 119(1)(a) Section 119(1) does not define “redundancy”, rather it sets out the limited circumstances in which an employee becomes entitled to redundancy pay under the NES: Construction, Forestry, Mining and Energy Union (CFMEU) and others v Spotless Facility Services Pty Ltd [2015] FWCFB 1162 at [60]. The requirement for termination means that the test for redundancy is narrower than at common law. In Hodgson v Amcor Ltd; Amcor Ltd v Barnes (2012) 264 FLR 1; [2012] VSC 94; BC201201355 at [371], Vickery J, held that the common law concept of “redundancy” comes down to the following propositions:

(a) A job becomes redundant when the job of the employee ceases to exist because the employer, for whatever reason, whether by reason of reorganisation, mechanization, change in demand or other reason, no longer desires to have it performed by anyone; (b) This can occur either when the role no longer exists or the duties have so changed that for all practical purposes the original role no longer exists; (c) However, redundancy is not limited to the circumstance where the employer, no longer desires to have the work previously performed by the terminated employee done by anyone; (d) A redundancy may also arise upon the redistribution of job functions, where the duties performed by an employee are redistributed among other employees. In this case the employer still requires the duties to be performed, but the reorganisation may give rise to a redundancy. In this event, although the duties remain to be performed, “for all practical purposes the original role no longer exists” because the duties are divided and assigned amongst others. In such a case the question is whether any function or duty remains to be performed by the employee. A redundancy will occur if, after the reorganisation, the employee in question is left with no duties to discharge; and [page 218] (e) Redundancy will not arise where the termination of employment is carried out solely because of any personal act or default of the employee terminated or for any consideration peculiar to that employee. As to the meaning of genuine redundancy under the Act see [7-4380.35]. [5-7470.30] Ordinary and customary turnover of labour — s 119(1)(a) The definition of this term seems to be derived from a decision of Fisher J in Shop Distributive & Allied Employees Association (NSW) v Countdown Stores (1983) AILR 387; [1983] AR (NSW) 485; (1983) 7 IR 273 at 277 where his Honour held that “Many employees, particularly in the building construction, contracting and subcontracting industries are employed on terms which contemplate intermittency in employment … Payments on severance would appear to be inappropriate to these circumstances and may contain an element of double counting.” The phrase was included in the orders from the Termination, Change and Redundancy Case; sub nom Amalgamated Metals Foundry and Shipwrights’ Union and BHP Co Ltd re Termination, Change and Redundancy (AILR) (Job Protection/Termination Change and Redundancy) (1985) 27 AILR 1; 295 CAR 673; 9 IR 115 at 128. Each case depends upon its own circumstances: Tempo Services Ltd v Klooger Print PR953337; (2004) 136 IR 358 at [16]. In Garcia v Limro Pty Ltd Print PR933625, Lawson C fairly described the meaning of the phrase as being at an “interpretative impasse”. [5-7470.35] Ordinary hours of work — s 118(2) See s 12. [5-7470.40] Outline of section The section sets out a scale for redundancy pay which is based upon the scale set out in the Amalgamated Metals, Foundry and Shipwrights Union v Broken Hill Pty Co Ltd, Whyalla (Termination Change & Redundancy Case) (1984) 26 AILR 256; 294 CAR 175; 8 IR 34 at 76. As to the difficulties in implying a term as to redundancy at common law see Tibaldi Smallgoods (Australasia) Pty Ltd v Rinaldi (2008) 172 IR 86; [2008] VSC 112; BC200802467 at [49], [52] (11 April 2008), Whittaker v Unisys Australia Pty Ltd (2010) 26 VR 668; 192 IR 311; [2010] VSC 9; BC201000166.

*Editor’s Note: Commentary on s 119 prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________

[5-7490] Variation of redundancy pay for other employment or incapacity to pay 120 (1) This section applies if: (a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and (b) the employer: (i) obtains other acceptable employment for the employee; or (ii) cannot pay the amount. (2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 38, opn 1 Jan 2013]

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination. COMMENTARY TO SECTION 120*

Derivation ….

[5-7490.05] [page 219]

Because of section 119 — s 120(1)(a) …. Cannot pay — s 120(1)(b)(ii) …. Employee — s 120(1)(a), (2)(b)(i), (3) …. Employer — s 120(1)(a), (b), (2) …. Entitled to be paid — s 120(1)(a) …. FWC — s 120(2) …. Obtains — s 120(1)(b)(i) …. Other acceptable employment — s 120(1)(b)(i) …. Outline of section ….

[5-7490.06] [5-7490.08] [5-7490.10] [5-7490.15] [5-7490.17] [5-7490.20] [5-7490.25] [5-7490.30] [5-7490.35]

[5-7490.05] Derivation The section is new. It is derived from the Termination, Change and

Redundancy Case. See Australian Clothing Trades Award 1982(1) AIRC, 12 September 1990, Print G0207 [C037], (1990) 140 IR 123 at 126–7. [5-7490.06] Because of section 119 — s 120(1)(a) One issue that has arisen is where the entitlement to redundancy payments arises not from s 119 but from the terms of an enterprise agreement. A Full Bench of the FWC dealt with this quite difficult point in Maritime Union of Australia v FBIS International Protective Services (Aust) Pty Ltd [2014] FWCFB 6737. In that case; the Full Bench held that an entitlement to redundancy payment under an enterprise agreement did not impliedly displace the entitlement to redundancy payment under s 119. Accordingly the entitlement arose because of s 119. It explained at [25]: Nonetheless to the extent that the … Agreement provides the same entitlement to redundancy pay as the NES entitlement, the entitlement to redundancy pay may be sourced both in the … Agreement and in the NES because they “operate in parallel”. The entitlement may be enforced under either source but not both sources so as not “to give a double benefit”. This is the effect of s 55(6). [5-7490.08] Cannot pay — s 120(1)(b)(ii) In Cohen [2014] FWC 1103 at [6]; Commissioner Roe held that: The words of the legislation are quite clear. Exemption cannot be granted simply because payment of the entitlement would be inconvenient or difficult. Exemption can only be granted if the employer cannot pay. That is a situation where the employer is not financially competent, or possessed of the necessary funds to make the payment. As Commissioner Deegan held in Villa Crerarii Pty Ltd v Kahl [2013] FWC 903 at [13]: The legislation envisages that there will be cases in which it is appropriate to remove an employer’s obligation to make a redundancy payment on the ground that the employer is unable to pay. In very few cases would it be appropriate to do so, particularly given the effect such an order would have on the employee’s right should the company be wound up. The decisions acknowledge that an appropriate case for such an order is one where the order would have a beneficial effect on the prospects of other employees. It is my decision that this is such a case. If the company is required to make the payment to Mr Kahl it may well have the effect of putting in jeopardy the employment of the remaining employees. As Mr Kahl has found finding other employment in the area so difficult I am reluctant to take any course which may bring about such a result. [5-7490.10] Employee — s 120(1)(a), (2)(b)(i), (3) See s 60. [5-7490.15] Employer — s 120(1)(a), (b), (2) See s 60. [5-7490.17] Entitled to be paid — s 120(1)(a) In Lee Crane Hire Pty Ltd [2015] FWC 4727 (23 July 2015), Cmr Spencer at [27] held: [page 220] … that an entitlement to redundancy pay must exist, in order for the Commission to consider varying that redundancy pay entitlement. Where there is no entitlement under s 119 there can be no order to reduce the “entitlement” pursuant to s 120. [5-7490.20] FWC — s 120(2) See s 12. [5-7490.25] Obtains — s 120(1)(b)(i) The word “obtains” does not appear in its context to mean actually obtain in the fullest sense possible. In circumstances like those occurring at the company one

employer is incapable in law of effecting a contract of employment between his employee and another employer whether by assignment or otherwise; the creation of the legal relationship of master and servant depends on a mutuality being arrived at between the individual and the incoming employer. Therefore, the pursuit of alternative employment by the outgoing employer cannot be expected, by reason of itself alone, to produce new employment; there will usually and perhaps always remain the opportunity for the incoming employer, and the employee, to disagree as to matters such as terms of employment, suitability of the job to the employee and vice versa so that alternative employment may not eventuate. It follows that “obtain” must be given some lesser meaning. The Shorter Oxford Dictionary (3rd ed, revised) provides as its relevant meaning, the definition of “obtain” as “to procure or gain, as the result of purpose and effort”. It seems to us that meaning is of assistance here; that is, the employer by purpose and effort may establish an opportunity which suits the employee and which crystallises as alternative employment of an acceptable kind: Australian Clothing Trades Award 1982(1) AIRC, 12 September 1990, Print G0207 [C037], (1990) 140 IR 123 at 127. The Full Bench went on to describe the test at [128] in this way: the intention is not to impose an absolute test on the employer’s ability to “obtain” alternative employment but rather it refers to action which causes acceptable alternative employment to become available to the redundant employee. The employer must be a strong, moving force towards the creation of the available opportunity. The Commission has made it clear that the word “obtains” in s 122(1)(b)(i) should be given a very broad interpretation: Datacom Systems Vic Pty Ltd v Khan and another [2013] FWC 1327 (4 March 2013) at [12]. Despite this, a Full Bench of the Commission has made it clear that the actions of an employer involving no more than establishing contact be-tween the employees and the new employer with the effect that employees were able to apply for jobs with the new employer falls well short of action which “causes acceptable alternative employment to become available to the redundant employee”: Maritime Union of Australia, The v FBIS International Protective Services (Aust) Pty Ltd [2014] FWCFB 6737 (21 October 2014) at [54]. [5-7490.30] Other acceptable employment — s 120(1)(b)(i) What constitutes “acceptable alternative employment” is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect. Yet, the use of the qualification “acceptable” is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others: Australian Clothing Trades Award 1982(1) AIRC, 12 September 1990, Print G0207 [C037], (1990) 140 IR 123 at 128. The onus lies upon the employer to prove that the alternative employment is acceptable: Clothing & Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226 at [231]. [page 221] Acceptable alternative employment is not necessarily identical employment and that the AIRC has previously found alternative employment to be acceptable notwithstanding inconvenience to employees and some detrimental alteration to the terms and conditions of employment: Feltex Australia Pty Ltd v Textile, Clothing and Footwear Union of Australia, AIRC, 21 December 2006, (PR975471), (2006)

158 IR 463 at [6]. The determination of that issue may involve a consideration of such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and travelling time: Vicstaff Pty Ltd (t/as Stratco) v May (2010) 204 IR 233; [2010] FWA 3141 at [25]. In Spotless Services Australia Ltd [2013] FWC 4484 at [14], DP Sams summarised the authorities and distilled the principles as follows: a) the determination of what constitutes acceptable alternative employment is an objective exercise; b) mere rejection by the employee of alternative employment does not make it objectively unacceptable; c) comparable or equivalent pay and conditions, including hours of work and continuity of service are important and relevant considerations; d) to be acceptable, the new employment would need to take account of the employees’ skills, seniority, experience and capacity to perform the job; e) the location and additional travel times to and from work are a relevant consideration. For example, an offer of reemployment to another State would not ordinarily be found to be “acceptable employment”; f) “acceptable employment” need not be identical employment and may still be considered acceptable, notwithstanding there might be additional inconvenience or a detrimental alteration to the terms and conditions of employment; g) employees should not unreasonably refuse offers of alternative employment merely because they wish to access the benefits of redundancy pay. In Datamars (Australia) Pty Ltd [2015] FWC 1269; SDP Richards dealt with an argument that the amount of redundancy payment could be reduced even if there was no acceptable alternative employment. After reviewing the authorities, the SDP held at [81] that: it is not the case that where an offer of alternative employment has been made (but does not amount to “acceptable alternative employment” under the Act) the redundancy obligation should be discounted to the degree that the alternative offer approaches acceptability. [5-7490.35] Outline of section This clause enables an employer to apply to FWA for a determination reducing the employer’s liability to pay redundancy pay under cl 119 to a specified amount (that may be nil) if FWA considers it appropriate: Explanatory Memorandum to the Fair Work Act at [4]. *Editor’s note: Commentary on s 120 prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________

[5-7510] Exclusions from obligation to pay redundancy pay 121 (1) Section 119 does not apply to the termination of an employee’s employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first): (a) the employee’s period of continuous service with the employer is less than 12 months; or (b) the employer is a small business employer. (2) A modern award may include a term specifying other situations in which section 119 does not apply to the termination of an employee’s employment. [page 222] (3) If a modern award that is in operation includes such a term (the award term), an enterprise agreement may: (a) incorporate the award term by reference (and as in force from time to time) into the enterprise agreement; and (b) provide that the incorporated term covers some or all of the employees who are also covered by the award term.

[5-7530] Transfer of employment situations that affect the obligation to pay redundancy pay 122 Transfer of employment situation in which employer may decide not to recognise employee’s service with first employer (1) Subsection 22(5) does not apply (for the purpose of this Subdivision) to a transfer of employment between non-associated entities in relation to an employee if the second employer decides not to recognise the employee’s service with the first employer (for the purpose of this Subdivision).

Employee is not entitled to redundancy pay if service with first employer counts as service with second employer (2) If subsection 22(5) applies (for the purpose of this Subdivision) to a transfer of employment in relation to an employee, the employee is not entitled to redundancy pay under section 119 in relation to the termination of his or her employment with the first employer. Note: Subsection 22(5) provides that, generally, if there is a transfer of employment, service with the first employer counts as service with the second employer.

Employee not entitled to redundancy pay if refuses employment in certain circumstances (3) An employee is not entitled to redundancy pay under section 119 in relation to the termination of his or her employment with an employer (the first employer) if: (a) the employee rejects an offer of employment made by another employer (the second employer) that: (i) is on terms and conditions substantially similar to, and, considered on an overall basis, no less favourable than, the employee’s terms and conditions of employment with the first employer immediately before the termination; and (ii) recognises the employee’s service with the first employer, for the purpose of this Subdivision; and (b) had the employee accepted the offer, there would have been a transfer of employment in relation to the employee. (4) If the FWC is satisfied that subsection (3) operates unfairly to the employee, the FWC may order the first employer to pay the employee a specified amount of redundancy pay (not exceeding the amount that would be payable but for subsection (3)) that the FWC considers appropriate. The first employer must pay the employee that amount of redundancy pay. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 38, opn 1 Jan 2013]

[page 223]

Subdivision C — Limits on scope of this Division

[5-7650]

Limits on scope of this Division

123 Employees not covered by this Division (1) This Division does not apply to any of the following employees: (a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season; (b) an employee whose employment is terminated because of serious misconduct; (c) a casual employee; (d) an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement; (e) an employee prescribed by the regulations as an employee to whom this Division does not apply. (2) Paragraph (1)(a) does not prevent this Division from applying to an employee if a substantial reason for employing the employee as described in that paragraph was to avoid the application of this Division. Other employees not covered by notice of termination provisions (3) Subdivision A does not apply to: (b) a daily hire employee working in the building and construction industry (including working in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures); or (c) a daily hire employee working in the meat industry in connection with the slaughter of livestock; or (d) a weekly hire employee working in connection with the meat industry and whose termination of employment is determined solely by seasonal factors; or (e) an employee prescribed by the regulations as an employee to whom that Subdivision does not apply. Other employees not covered by redundancy pay provisions

(4) Subdivision B does not apply to: (a) an employee who is an apprentice; or (b) an employee to whom an industry-specific redundancy scheme in a modern award applies; or (c) an employee to whom a redundancy scheme in an enterprise agreement applies if: (i) the scheme is an industry-specific redundancy scheme that is incorporated by reference (and as in force from time to time) into the enterprise agreement from a modern award that is in operation; and (ii) the employee is covered by the industry-specific redundancy scheme in the modern award; or (d) an employee prescribed by the regulations as an employee to whom that Subdivision does not apply. [page 224]

DIVISION 12 — FAIR WORK INFORMATION STATEMENT

[5-7820] Fair Work Ombudsman to prepare and publish Fair Work Information Statement 124 (1) The Fair Work Ombudsman must prepare a Fair Work Information Statement. The Fair Work Ombudsman must publish the Statement in the Gazette. Note: If the Fair Work Ombudsman changes the Statement, the Fair Work Ombudsman must publish the new version of the Statement in the Gazette. (2) The Statement must contain information about the following: (a) the National Employment Standards; (b) modern awards; (c) agreement-making under this Act; (d) the right to freedom of association;

(e) (f) (g) (h)

the role of the FWC and the Fair Work Ombudsman; termination of employment; individual flexibility arrangements; right of entry (including the protection of personal information by privacy laws).

[subs (2) am Act 174 of 2012 s 3 and Sch 9 item 39, opn 1 Jan 2013]

(3) The Fair Work Information Statement is not a legislative instrument. (4) The regulations may prescribe other matters relating to the content or form of the Statement, or the manner in which employers may give the Statement to employees. COMMENTARY TO SECTION 124*

Derivation …. Employee — s 124(4) …. Employer — s 124(4), (2) …. Fair Work Information Statement — s 124(1) …. Individual flexibility arrangements — s 124(2)(g) …. Modern awards — s 124(2)(b) …. National Employment Standards — s 124(2)(a) …. This Act — s 124(2)(c) …. Outline of section ….

[5-7820.5] [5-7820.10] [5-7820.15] [5-7820.20] [5-7820.25] [5-7820.30] [5-7820.35] [5-7820.40] [5-7820.45]

[5-7820.5] Derivation Section 154A Workplace Relations Act 1996. [5-7820.10] Employee — s 124(4) See s 60. [5-7820.15] Employer — s 124(4), (2) See s 60. [5-7820.20] Fair Work Information Statement — s 124(1) See s 12. [5-7820.25] Individual flexibility arrangements — s 124(2)(g) See s 12. [5-7820.30] Modern awards — s 124(2)(b) See s 12. [5-7820.35] National Employment Standards — s 124(2)(a) See s 12. [5-7820.40] This Act — s 124(2)(c) See s 12. [page 225]

[5-7820.45] Outline of section Clause 124(1) requires FWA to determine a Fair Work Information Statement and publish the Statement in the Gazette: Explanatory Memorandum to the Fair Work Act at para 493.

*Editor’s note: Commentary to s 124 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister. ____________________

[5-7840] Giving new employees the Fair Work Information Statement 125 (1) An employer must give each employee the Fair Work Information Statement before, or as soon as practicable after, the employee starts employment. (2) Subsection (1) does not require the employer to give the employee the Statement more than once in any 12 months. Note: This is relevant if the employer employs the employee more than once in the 12 months. COMMENTARY TO SECTION 125*

Derivation …. Employee — s 125(1), (2), Note …. Employer — s 125(1), (2) Note …. Fair Work Information Statement — s 125(1) …. More than once — s 125(2), Note …. Outline of section ….

[5-7840.1] [5-7840.5] [5-7840.10] [5-7840.15] [5-7840.20] [5-7840.25]

[5-7840.1] Derivation There is some similarity with s 154B of the Workplace Relations Act 1996. [5-7840.5] Employee — s 125(1), (2), Note See s 60. [5-7840.10] Employer — s 125(1), (2) Note See s 60. [5-7840.15] Fair Work Information Statement — s 125(1) See s 12. A copy can be found at http://www.fairwork.gov.au/employment/fair-work-information-statement/pages/default.aspx. [5-7840.20] More than once — s 125(2), Note The Explanatory Memorandum to the Fair Work Bill 2008 gives the example of a casual employee at para 496. [5-7840.25] Outline of section “[T]he Fair Work Information Statement serves important purposes to alert employees as to the ten minimum workplace entitlements in the National Employment Standards, and as to the sources of their workplace rights and avenues for redress. The court should not minimise

nor brush aside the importance of the entitlement of an employee to be given the Statement at the commencement of his or her employment”: see Farah v Ahn [2012] FMCA 44; BC201200457 (3 February 2012) at [109].

*Editor’s note: Commentary on s 125 prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister. ____________________

DIVISION 13 — MISCELLANEOUS

[5-8010] Modern awards and enterprise agreements may provide for school-based apprentices and trainees to be paid loadings in lieu 126 A modern award or enterprise agreement may provide for schoolbased apprentices or school-based trainees to be paid loadings in lieu of any of the following: [page 226] (a) paid annual leave; (b) paid personal/carer’s leave; (c) paid absence under Division 10 (which deals with public holidays). Note: Section 199 affects whether the FWC may approve an enterprise agreement covering an employee who is a school-based apprentice or school-based trainee, if the employee is covered by a modern award that is in operation and provides for the employee to be paid loadings in lieu of paid annual leave, paid personal/carer’s leave or paid absence under Division 10. [s 126 am Act 174 of 2012 s 3 and Sch 9 item 40, opn 1 Jan 2013]

[5-8030] Regulations about what modern awards and enterprise agreements can do 127 The regulations may: (a) permit modern awards or enterprise agreements or both to include terms that would or might otherwise be contrary to this Part or

section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement); or (b) prohibit modern awards or enterprise agreements or both from including terms that would or might otherwise be permitted by a provision of this Part or section 55.

[5-8050] Relationship between National Employment Standards and agreements etc permitted by this Part for award/agreement free employees 128 The National Employment Standards have effect subject to: (a) an agreement between an employer and an award/agreement free employee or a requirement made by an employer of an award/agreement free employee, that is expressly permitted by a provision of this Part; or (b) an agreement between an employer and an award/agreement free employee that is expressly permitted by regulations made for the purpose of section 129. Note 1: In determining what matters are permitted to be agreed or required under paragraph (a), any regulations made for the purpose of section 129 that expressly prohibit certain agreements or requirements must be taken into account. Note 2: See also the note to section 64 (which deals with the effect of averaging arrangements).

[5-8070] Regulations about what can be agreed to etc in relation to award/agreement free employees 129 The regulations may: (a) permit employers, and award/agreement free employees, to agree on matters that would or might otherwise be contrary to this Part; or (b) prohibit employers and award/agreement free employees from agreeing on matters, or prohibit employers from making requirements of such employees, that would or might otherwise be permitted by a provision of this Part. [page 227]

[5-8090] Restriction on taking or accruing leave or absence while receiving workers’ compensation 130 (1) An employee is not entitled to take or accrue any leave or absence (whether paid or unpaid) under this Part during a period (a compensation period) when the employee is absent from work because of a personal illness, or a personal injury, for which the employee is receiving compensation payable under a law (a compensation law) of the Commonwealth, a State or a Territory that is about workers’ compensation. (2) Subsection (1) does not prevent an employee from taking or accruing leave during a compensation period if the taking or accruing of the leave is permitted by a compensation law. (3) Subsection (1) does not prevent an employee from taking unpaid parental leave during a compensation period. COMMENTARY TO SECTION 130*

Derivation …. Accrue any leave — s 130(1) …. Employee — s 130(1), (2), (3) …. Permitted — s 130(2) …. Outline of Section ….

[5-8090.1] [5-8090.5] [5-8090.10] [5-8090.12] [5-8090.15]

[5-8090.1] Derivation The section is new. [5-8090.5] Accrue any leave — s 130(1) See s 22 for meaning of service and continuous service. That section states that periods of unpaid leave and unpaid authorised absence, which may include an employee’s absence on workers compensation, do not count as service: see generally Webster v Toni and Guy Port Melbourne Pty Ltd t/as Toni and Guy Port Melbourne [2010] FWA 4540; BC201070443 at [10]. [5-8090.10] Employee — s 130(1), (2), (3) See s 60. [5-8090.12] Permitted — s 130(2) In Anglican Care v NSW Nurses and Midwives Association [2015] FCAFC 81; BC201504848, the majority held at [45]–[47]: Apart from the archaic use of the verb “permit” to connote “commit, submit, hand over, leave, resign or yield”, the first meaning of the transitive verb given in the Oxford English Dictionary is: To allow the occurrence of (an action, etc.); to allow (something) to be carried out or to take place; to give permission or opportunity for. The next meaning is: To allow or give consent to (a person or thing) to do or undergo something.

The meaning given to the adjective “permitted” (of a thing, action, etc.) is “allowed, not forbidden”. [page 228] [5-8090.15] Outline of Section The Explanatory Memorandum to the Fair Work Bill 2009 says somewhat mystifyingly at paragraph 509 that: The effect of clause 130 is to ‘switch-off’ the leave accrual and taking rules in this Part for the period of the employee’s absence from work in receipt of workers’ compensation. It is not intended that the provisions of this clause impact on the calculation of an employee’s service or continuous service under clause 22. Despite this explanation, the section seems to envisage that any accrual is protected provided that it arises under a Federal Act, State Act or award, industrial agreement or contract of employment.

*Editor’s note: Commentary prepared by Ian Latham BA(Hons)/LLB (ANU). ____________________

[5-8110] laws

Relationship with other Commonwealth

131 This Part establishes minimum standards and so is intended to supplement, and not to override, entitlements under other laws of the Commonwealth. COMMENTARY TO SECTION 131*

Derivation …. Laws of the Commonwealth — s 131 …. This Part — s 131 …. Outline of section ….

[5-8110.1] [5-8110.5] [5-8110.10] [5-8110.15]

[5-8110.1] Derivation The section is new. [5-8110.5] Laws of the Commonwealth — s 131 An interesting question arises as to whether the common law is a law of the Commonwealth. McHugh J has held that law of the Commonwealth is simply a law made under or by the authority of the Parliament of the Commonwealth: Re Colina; Ex parte Torney (1999) 200 CLR 386; 166 ALR 545; [1999] HCA 57; BC9906747 at [45] (21 October 1999); see also at [25], cf [75]–[80]. [5-8110.10] This Part — s 131 This part is Pt 2-2. [5-8110.15] Outline of section The Explanatory Memorandum to the Fair Work Bill uses the example

that the unpaid parental leave provisions in Div 5 of Pt 2-2 would not affect the entitlement to paid maternity leave under the Maternity Leave (Commonwealth Employees) Act 1973: Explanatory Memorandum to the Fair Work Bill 2009 at [511].

*Editor’s note: Commentary to s 131 prepared by Ian Latham BA (Hons)/LLB (ANU), Barrister. ____________________

PART 2-3 — MODERN AWARDS DIVISION 1 — INTRODUCTION

[5-8330]

Guide to this Part

132 This Part provides for the FWC to make, vary and revoke modern awards. Modern awards may set minimum terms and conditions for national system employees in particular industries or occupations. Modern awards can have terms that are ancillary or supplementary to the National Employment Standards (see Part 2-1). [page 229] Division 2 provides for the modern awards objective. This requires the FWC to ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account certain social and economic factors. Division 2 also contains special provisions about modern award minimum wages. Division 3 deals with the terms of modern awards. Division 4 provides for the FWC to conduct 4 yearly reviews of modern awards (other than in relation to default fund terms of modern awards). Division 4A provides for the FWC to conduct 4 yearly reviews of default fund terms of modern awards. It also sets out the process for making the Schedule of Approved Employer MySuper products in a 4 yearly review, and amending the schedule after it is made to include other employer MySuper products. If an employer MySuper product is on the schedule, an employer covered by a modern award can make contributions, for the benefit of a default fund employee, to a superannuation fund that offers the product (see subsection 149D(1A)). Division 5 provides for the FWC to exercise modern award powers outside the system of 4 yearly reviews in certain circumstances. Division 6 contains some general provisions relating to modern award powers. Division 7 contains additional provisions relating to modern enterprise awards. Division 8 contains additional provisions relating to State reference public sector modern awards.

The obligation to comply with a modern award is in section 45 (in Part 2-1). In relation to minimum wages in modern awards, the FWC has powers both under this Part and under Part 2-6 (which deals with minimum wages). The following is a summary of the FWC’s powers under the 2 Parts: (a) the initial making of a modern award setting modern award minimum wages can only occur under this Part; (b) the main power to vary modern award minimum wages is in annual wage reviews under Part 2-6; (c) modern award minimum wages can also be varied under this Part, but only for work value reasons or in other limited circumstances; (d) modern award minimum wages can be set (otherwise than in the initial making of a modern award) or revoked either under this Part or in annual wage reviews under Part 2-6. [Editor’s note: Section 132 of this legislation is reproduced in this format in line with the official version.] [s 132 am Act 54 of 2009 s 3 and Sch 2, opn 1 Jan 2009; Act 55 of 2009 s 3 and Sch 6, opn 1 Jan 2010; Act 174 of 2012 s 3 and Sch 9 items 41, 42, opn 1 Jan 2013; s 3 and Sch 1 items 10, 11, opn 1 Jan 2014] COMMENTARY TO SECTION 132*

Derivation …. Annual wage reviews — s 132 …. Eligible State or Territory court — s 132 …. Fair — s 132 …. Modern award — s 132 …. Modern award minimum wages — s 132 …. National employment standards — s 132 ….

[5-8330.01] [5-8330.05] [5-8330.10] [5-8330.15] [5-8330.20] [5-8330.25] [5-8330.30] [page 230]

National minimum wage order — s 132 …. Outline of section ….

[5-8330.35] [5-8330.40]

[5-8330.01] Derivation The section is new. [5-8330.05] Annual wage reviews — s 132 See ss 12 and 285(1). [5-8330.10] Eligible State or Territory court — s 132 See s 12. [5-8330.15] Fair — s 132 Fairness has been defined as just, unbiased, equitable, impartial. The meaning of just in turn was defined as requiring a consideration of the basis of the claim. Equity required the consideration of the interests of all of the parties: Pope v Lawler (1996) 41 ALD; [1996] FCA 1446 (7 May 1996); BC9601660. The word is of broad content. There is a danger in trying to

precisely define its meaning: National Mutual Life Association of Australasia Ltd v Campbell (2000) 99 FCR 562; [2000] FCA 852; BC200003461 at [36]. [5-8330.20] Modern award — s 132 See s 12. [5-8330.25] Modern award minimum wages — s 132 See ss 12 and 284(3). [5-8330.30] National employment standards — s 132 See s 12 and s 61(3). [5-8330.35] National minimum wage order — s 132 See s 12. [5-8330.40] Outline of section The Explanatory Memorandum to the Fair Work Bill stated at r 16 that the intention of award modernisation is to create modern awards that reduce regulation, are relevant to the needs of employers and employees, provide (along with the NES) the definition of minimum wages and conditions of employment and are fewer in number. The Part broadly requires the Commission to make modern awards in accordance with an award modernisation request. A request and further amendments to the request has been made by the Minister. The consolidated version is set out at: http://www.airc.gov.au/awardmod/download/request_cons_290509.pdf [the consolidated request]. A number of principles can be found in the consolidated request and the cases arising from it. i. The modern award together with any legislated employment standards must provide a fair minimum safety net of enforceable terms and conditions: s 576E — Procedure for carrying out award modernisation process, Request from the Minister for Employment and Workplace Relations — 28 March 2008 [2008] AIRCFB 717; (2008) 177 IR 8 at [10]. ii. Modern awards should focus on differences in the nature of work and conditions rather than historical demarcations between employer and employee organisations: s 576E — Procedure for carrying out award modernisation process, Request from the Minister for Employment and Workplace Relations — 28 March 2008 [2008] AIRCFB 717; (2008) 177 IR 8 at [10]. Modern Awards should not bind employers covered by enterprise awards: consolidated request at 2(e). iii. The procedure for award modernisation primarily involves the lodgement of proposals, submissions and other material by interested parties, pre-drafting consultations, publication of exposure drafts by the Commission, lodgement of proposals submissions and other material in relation to the drafts by the parties, further consultations and, finally, publication of the modern awards by the Commission. While “the publication of exposure drafts is a critical step in the process, the drafts reflect a provisional view only and changes can and will be made on the basis of the material advanced by the parties. In some cases the drafts may be incomplete because the Commission has not had sufficient information to form even a provisional view in relation to a particular matter”: Request from Minister for Employment and Workplace Relations 28 March 2008 (Award Modernisation) [2009] AIRCFB 450 (22 May 2009), 182 IR 413 at [3]. [page 231] iv. Within each industry/occupation the principal federal award will usually be the starting point for drafting: s 576E — Procedure for carrying out award modernisation process Request from the Minister for Employment and Workplace Relations — 28 March 2008 [2008] AIRC 387 at [11].

v.

vi.

vii. viii.

ix.

x.

xi.

xii.

The creation of modern awards is not intended to disadvantage employees or increase employer costs: the consolidated request paragraphs 2(c) and (d). It is not easy to see how these objectives can both be satisfied. Transitional provisions must be developed, that, in a practical way, take account of the intention of the consolidated request that modern awards not disadvantage employees or increase costs for employers: quoted with approval in Request from Minister for Employment and Workplace Relations 28 March 2008 (Award Modernisation) [2009] AIRCFB 450 (22 May 2009) at [21]. Awards are to be made primarily on broad industry lines: Award Modernisation Statement [2008] AIRCFB 708, (2008) 177 IR 5 at [4]. Modern Awards are not binding on organisations at all: Request from Minister for Employment and Workplace Relations 28 March 2008 (Award Modernisation) [2009] AIRCFB 450 (22 May 2009), (2009) 182 IR 413 at [11]; Re Request from the Minister for Employment and Workplace Relations — 20 March 2008 Award Modernisation (AM 2008/112), [2008] AIRCFB 1000, (2008) 177 IR 364 at [20] — [22]. Modern awards are not to contain State or Territory based differences although there is provision for such differences for a transitional period of five years: Request from Minister for Employment and Workplace Relations 28 March 2008 (Award Modernisation) [2009] AIRCFB 450 (22 May 2009), (2009) 182 IR 413 at [4]. It is not appropriate to include provisions providing expressly for seasonal employment in modern awards unless there is a particular reason for doing so: Request from Minister for Employment and Workplace Relations 28 March 2008 (Award Modernisation) [2009] AIRCFB 450 (22 May 2009), 182 IR 413 at [8]. Many allowances in pre-reform awards and NAPSAs are inappropriate for inclusion in a modern award because they apply only to one establishment or in one State or Territory. Others may be of uncertain application, excessively detailed, difficult to apply, of little monetary value or simply obsolete: Request from Minister for Employment and Workplace Relations 28 March 2008 (Award Modernisation) [2009] AIRCFB 450 (22 May 2009), (2009) 182 IR 413 at [9]. “Applications to vary the substantive terms of modern awards will be considered on their merits. It should be noted, however, that the Commission would be unlikely to alter substantive award terms so recently made after a comprehensive review of the relevant facts and circumstances including award and NAPSA provisions applying across the Commonwealth. Normally a significant change in circumstances would be required before the Commission would embark on a reconsideration. A variation in the Minister’s award modernisation request made after the modern award might constitute such a change”: Re Request from the Minister for Employment and Workplace Relations — 28 March 2008 Award Modernisation Statement (AM 2008/1) [2009] AIRCFB 645, (2009) 184 IR 246 at [3].

*Editor’s note: Commentary on s 132 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister. ____________________

[5-8350]

Meanings of employee and employer

133 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). [s 133 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

[page 232] COMMENTARY TO SECTION 133*

Derivation …. National system employee …. National system employer ….

[5-8350.1] [5-8350.5] [5-8350.10]

[5-8350.1] Derivation The section is new. [5-8350.5] National system employee See ss 12, 13, s 30C. [5-8350.10] National system employer See ss 12, 14, 30D.

*Editors’ note: [Commentary to s 133 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.] ____________________

DIVISION 2 — OVERARCHING PROVISIONS

[5-8520]

The modern awards objective

134 What is the modern awards objective? (1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account: (a) relative living standards and the needs of the low paid; and (b) the need to encourage collective bargaining; and (c) the need to promote social inclusion through increased workforce participation; and (d) the need to promote flexible modern work practices and the

efficient and productive performance of work; and (da) the need to provide additional remuneration for: (i) employees working overtime; or (ii) employees working unsocial, irregular or unpredictable hours; or (iii) employees working on weekends or public holidays; or (iv) employees working shifts; and (e) the principle of equal remuneration for work of equal or comparable value; and (f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and (g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and (h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy. This is the modern awards objective. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 43, opn 1 Jan 2013; Act 73 of 2013 s 3 and Sch 2 item 1, opn 1 Jan 2014]

When does the modern awards objective apply? (2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are: (a) the FWC’s functions or powers under this Part; and [page 233] (b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages. Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the

minimum wages objective also applies (see section 284). [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 44–46, opn 1 Jan 2013]

[5-8540] Special provisions relating to modern award minimum wages 135 (1) Modern award minimum wages cannot be varied under this Part except as follows: (a) modern award minimum wages can be varied if the FWC is satisfied that the variation is justified by work value reasons (see subsections 156(3) and 157(2)); (b) modern award minimum wages can be varied under section 160 (which deals with variation to remove ambiguities or correct errors) or section 161 (which deals with variation on referral by the Australian Human Rights Commission). Note 1: The main power to vary modern award minimum wages is in annual wage reviews under Part 2-6. Modern award minimum wages can also be set or revoked in annual wage reviews. Note 2: For the meanings of modern award minimum wages, and setting and varying such wages, see section 284. [subs (1) am Act 70 of 2009 s 3 and Sch 3, opn 1 Jan 2010; Act 174 of 2012 s 3 and Sch 9 item 47, opn 1 Jan 2013]

(2) In exercising its powers under this Part to set, vary or revoke modern award minimum wages, the FWC must take into account the rate of the national minimum wage as currently set in a national minimum wage order. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 47, opn 1 Jan 2013]

DIVISION 3 — TERMS OF MODERN AWARDS Subdivision A — Preliminary

[5-8710]

What can be included in modern awards

136 Terms that may or must be included (1) A modern award must only include terms that are permitted or required by: (a) Subdivision B (which deals with terms that may be included in modern awards); or

(b) Subdivision C (which deals with terms that must be included in modern awards); or (c) section 55 (which deals with interaction between the National Employment Standards and a modern award or enterprise agreement); or (d) Part 2-2 (which deals with the National Employment Standards). Note 1: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards. Note 2: Part 2-2 includes a number of provisions permitting inclusion of terms about particular matters.

[page 234] Terms that must not be included (2) A modern award must not include terms that contravene: (a) Subdivision D (which deals with terms that must not be included in modern awards); or (b) section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement). Note: The provisions referred to in subsection (2) limit the terms that can be included in modern awards under the provisions referred to in subsection (1).

[5-8730] no effect

Terms that contravene section 136 have

137 A term of a modern award has no effect to the extent that it contravenes section 136. COMMENTARY TO SECTION 137*

Derivation …. Modern award — s 137 …. Outline of section ….

[5-8730.1] [5-8730.5] [5-8730.10]

[5-8730.1] Derivation The section is new. [5-8730.5] Modern award — s 137 See s 12. [5-8730.10] Outline of section The Explanatory Memorandum to the Fair Work Bill 2008 states at para 526 that the section would mean, for example, that a term of a modern award that excludes a term of the National Employment Standards (by providing a lesser entitlement, or no entitlement) will be of no effect.

*Editor’s note: Commentary to s 137 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister. ____________________

[5-8750]

Achieving the modern awards objective

138 A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective. COMMENTARY TO SECTION 138*

Derivation …. Modern award — s 138 …. Minimum wages objective — s 138 …. Modern awards objective — s 138 …. Outline of section …. [5-8750.5] Derivation The section is new.

[5-8750.5] [5-8750.10] [5-8750.15] [5-8750.20] [5-8750.25]

[5-8750.10] Modern award — s 138 See s 12. [5-8750.15] Minimum wages objective — s 138 See ss 12 and 284. [5-8750.20] Modern awards objective — s 138 See ss 12 and 134. [page 235] [5-8750.25] Outline of section The Explanatory Memorandum to the Fair Work Bill 2009 at para 527 states that the scope and effect of permitted and mandatory terms of a modern award must be directed at achieving the modern awards objective of a fair and relevant safety net that accords with community standards and expectations.

*Editor’s note: Commentary to s 138 prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister. ____________________

Subdivision B — Terms that may be included in modern awards

[5-8870] Terms that may be included in modern awards — general 139 (1) A modern award may include terms about any of the following matters: (a) minimum wages (including wage rates for junior employees, employees with a disability and employees to whom training arrangements apply), and: (i) skill-based classifications and career structures; and (ii) incentive-based payments, piece rates and bonuses; (b) type of employment, such as full-time employment, casual employment, regular part-time employment and shift work, and the facilitation of flexible working arrangements, particularly for employees with family responsibilities; (c) arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours; (d) overtime rates;

(e) penalty rates, including for any of the following: (i) employees working unsocial, irregular or unpredictable hours; (ii) employees working on weekends or public holidays; (iii) shift workers; (f) annualised wage arrangements that: (i) have regard to the patterns of work in an occupation, industry or enterprise; and (ii) provide an alternative to the separate payment of wages and other monetary entitlements; and (iii) include appropriate safeguards to ensure that individual employees are not disadvantaged; (g) allowances, including for any of the following: (i) expenses incurred in the course of employment; (ii) responsibilities or skills that are not taken into account in rates of pay; (iii) disabilities associated with the performance of particular tasks or work in particular conditions or locations; (h) leave, leave loadings and arrangements for taking leave; (i) superannuation; (j) procedures for consultation, representation and dispute settlement. (2) Any allowance included in a modern award must be separately and clearly identified in the award. COMMENTARY TO SECTION 139*

Derivation …. Employees — s 139(1)(a), (b), (e)(i), (ii), (f)(iii) ….

[5-8870.05] [5-8870.10] [page 236]

Enterprise — s 139(f)(i) …. Junior employees — s 139(1)(a) …. Minimum wages — s 139(1) …. Modern award — s 139(1), (2) ….

[5-8870.15] [5-8870.20] [5-8870.22] [5-8870.25]

Training arrangements — s 139(1)(a) …. Outline of section ….

[5-8870.30] [5-8870.35]

[5-8870.05] Derivation Section 576J(1) of the Workplace Relations Act 1996. [5-8870.10] Employees — s 139(1)(a), (b), (e)(i), (ii), (f)(iii) See s 133. [5-8870.15] Enterprise — s 139(f)(i) See s 12. [5-8870.20] Junior employees — s 139(1)(a) See s 12. [5-8870.22] Minimum wages — s 139(1) As to the breadth of the term wages at common law see Visscher v Teekay Shipping (Australia) Pty Ltd (No 4) [2012] FCA 1247; BC201208643 at [81]–[83]. [5-8870.25] Modern award — s 139(1), (2) See s 12. [5-8870.30] Training arrangements — s 139(1)(a) See s 12. [5-8870.35] Outline of section The Explanatory Memorandum to the Fair Work Bill 2009 states at [529] that “[c]lause 139 sets out the kinds of terms that may be included in modern awards. These terms reflect those that the legislation instigating the award modernisation process permits modern awards to include (see section 576J of the WR Act).” The Explanatory Memorandum to the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 states in turn at [42] that “[n]ew subsection 576J(1) would set out the list of allowable modern award matters. Each of the allowable modern award matters would have its ordinary workplace relations meaning. The scope of the matters would be affected by any direction in an award modernisation request about how, or whether, a particular matter may be dealt with in a modern award”.

*Editor’s note: Commentary to s 139 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister. ____________________

[5-8890]

Outworker terms

140 (1) A modern award may include either or both of the following: (a) terms relating to the conditions under which an employer may employ employees who are outworkers; (b) terms relating to the conditions under which an outworker entity may arrange for work to be performed for the entity (either directly or indirectly), if the work is of a kind that is often performed by outworkers. Note: A person who is an employer may also be an outworker entity (see the definition of outworker entity in section 12).

[subs (1) am Act 55 of 2009 s 3 and Sch 23, opn 1 Jan 2010]

(2) Without limiting subsection (1), terms referred to in that subsection may include terms relating to the pay or conditions of outworkers. (3) The following terms of a modern award are outworker terms: (a) terms referred to in subsection (1); [page 237] (b) terms that are incidental to terms referred to in subsection (1), included in the modern award under subsection 142(1); (c) machinery terms in relation to terms referred to in subsection (1), included in the modern award under subsection 142(2).

[5-8910]

Industry-specific redundancy schemes

141 When can a modern award include an industry-specific redundancy scheme? (1) A modern award may include an industry-specific redundancy scheme if the scheme was included in the award: (a) in the award modernisation process; or (b) in accordance with subsection (2). Note: An employee to whom an industry-specific redundancy scheme in a modern award applies is not entitled to the redundancy entitlements in Subdivision B of Division 11 of Part 2-2.

Coverage of industry-specific redundancy schemes must not be extended (2) If: (a) a modern award includes an industry-specific redundancy scheme; and (b) the FWC is making or varying another modern award under Division 4 or 5 so that it (rather than the modern award referred to in paragraph (a)) will cover some or all of the classes of employees who are covered by the scheme; the FWC may include the scheme in that other modern award. However, the FWC must not extend the coverage of the scheme to classes of employees

that it did not previously cover. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 48, opn 1 Jan 2013]

Varying industry-specific redundancy schemes (3) The FWC may only vary an industry-specific redundancy scheme in a modern award under Division 4 or 5: (a) by varying the amount of any redundancy payment in the scheme; or (b) in accordance with a provision of Subdivision B of Division 5 (which deals with varying modern awards in some limited situations). [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 49, opn 1 Jan 2013]

(4) In varying an industry-specific redundancy scheme as referred to in subsection (3), the FWC: (a) must not extend the coverage of the scheme to classes of employees that it did not previously cover; and (b) must retain the industry-specific character of the scheme. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 50, opn 1 Jan 2013]

Omitting industry-specific redundancy schemes (5) The FWC may vary a modern award under Division 4 or 5 by omitting an industry-specific redundancy scheme from the award. [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 51, opn 1 Jan 2013]

[5-8930]

Incidental and machinery terms

142 Incidental terms (1) A modern award may include terms that are: [page 238] (a) incidental to a term that is permitted or required to be in the modern award; and (b) essential for the purpose of making a particular term operate in a

practical way. Machinery terms (2) A modern award may include machinery terms, including formal matters (such as a title, date or table of contents). COMMENTARY TO SECTION 142*

Derivation …. Incidental to — s 142(1)(a) …. Modern Award — s 142(1), (a), (2) …. Permitted — s 142(1) …. Outline of section ….

[5-8930.1] [5-8930.5] [5-8930.10] [5-8930.15] [5-8930.20]

[5-8930.1] Derivation Section 576M of the Workplace Relations Act. [5-8930.5] Incidental to — s 142(1)(a) “To be genuinely incidental to a clause that does pertain to the requisite relationship, the terms of an incidental clause must be linked in its operation to such a clause. In the Commission’s view, to be an incidental clause requires that there be identified in that clause’s own terms a demonstrable and intended nexus with the requisite clause”: NSW Teachers Credit Union Ltd v Finance Sector Union of Australia re FSU/NSW Teachers Credit Union Enterprise Agreement 2003 — PR936565 [2003] AIRC 1038 (22 August 2003) at [27]. “As both the Macquarie and the Oxford Dictionary confirm, ‘incidental’ can be used with at least two different meanings. The Oxford English Dictionary defines ‘incidental’ to mean: ‘Occurring or liable to occur in fortuitous or subordinate conjunction with something else of which it forms no essential part; casual.’ The Macquarie Dictionary includes a similar meaning for “incidental “… However, the Macquarie Dictionary gives the word ‘incidental’ a different meaning when used in the phrase ‘incidental to’; this phrase it defines to mean ‘liable to happen in connection with; naturally appertaining to’. The Oxford English Dictionary provides a somewhat similar definition of ‘incidental to’”: Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources (2007) 166 FCR 154; 243 ALR 241; [2007] FCAFC 175; BC200710042 (22 November 2007) at [46]–[47]. [5-8930.10] Modern Award — s 142(1), (a), (2) See s 21. [5-8930.15] Permitted — s 142(1) See s 139. [5-8930.20] Outline of section “Clause 142 permits a modern award to include incidental or machinery terms”: Explanatory Memorandum to Fair Work Bill 2008 para 559.

*Editor’s note: Commentary to s 142 by Ian Latham BA(Hons) LLB (ANU), Barrister. ____________________

Subdivision C — Terms that must be included in modern awards

[5-9050] Coverage terms of modern awards other than modern enterprise awards and State reference public sector modern awards 143 Coverage terms must be included (1) A modern award must include terms (coverage terms) setting out the employers, employees, organisations and outworker entities that are covered by the award, in accordance with this section. [page 239] Employers and employees (2) A modern award must be expressed to cover: (a) specified employers; and (b) specified employees of employers covered by the modern award. Organisations (3) A modern award may be expressed to cover one or more specified organisations, in relation to all or specified employees or employers that are covered by the award. Outworker entities (4) A modern award may be expressed to cover, but only in relation to outworker terms included in the award, specified outworker entities. How coverage is expressed (5) For the purposes of subsections (2) to (4): (a) employers may be specified by name or by inclusion in a specified class or specified classes; and (b) employees must be specified by inclusion in a specified class or specified classes; and (c) organisations must be specified by name; and

outworker entities may be specified by name or by inclusion in a (d) specified class or specified classes. (6) Without limiting the way in which a class may be described for the purposes of subsection (5), the class may be described by reference to a particular industry or part of an industry, or particular kinds of work. Employees not traditionally covered by awards etc (7) A modern award must not be expressed to cover classes of employees: (a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or (b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards. Note: For example, in some industries, managerial employees have traditionally not been covered by awards.

(8) Modern enterprise awards A modern award (other than a modern enterprise award) must be expressed not to cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Transitional Act), or employers in relation to those employees. [subs (8) insrt Act 55 of 2009 s 3 and Sch 6, opn 1 Jan 2010; am Act 175 of 2012 s 3 and Sch 1 item 51, opn 5 Dec 2012]

(9) This section does not apply to modern enterprise awards. [subs (9) insrt Act 55 of 2009 s 3 and Sch 6, opn 1 Jan 2010]

(10) State reference public sector modern awards A modern award (other than a State reference public sector modern award) must be expressed not to cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Transitional Act, or employers in relation to those employees. [subs (10) insrt Act 54 of 2009 s 3 and Sch 2, opn 1 Jan 2010; am Act 175 of 2012 s 3 and Sch 1 item 51, opn 5 Dec 2012]

[page 240]

(11) This section does not apply to State reference public sector modern awards. [subs (11) insrt Act 54 of 2009 s 3 and Sch 2, opn 1 Jan 2010] [s 143 am Act 54 of 2009 s 3 and Sch 2, opn 1 Jan 2010] COMMENTARY TO SECTION 143*

Derivation …. Coverage terms — s 143(1) …. Covered by the award — s 143(1), (3) …. Employee — s 143(1), (2)(b), (3), (5)(b), (6), (7), (8), (10) …. Employer — s 143(1), (2)(a), (b), (3), (5)(a), (8), (10) …. Modern award — s 143(1), (2), (b), (3), (4), (7), (8), (9), (10), (11) …. Modern enterprise awards — s 143(7), (8), (9) …. Organisations — s 143(1), (3), (5)(c) …. Outworker entities — s 143(1), (4), (5)(d) …. State reference public sector modern award — s 143(10), (11) …. Traditionally not been covered — s 143(7)(a) …. Outline of Section …. [5-9050.05] Derivation The section is new. [5-9050.10] Coverage terms — s 143(1) See s 12. [5-9050.15] Covered by the award — s 143(1), (3) See s 48. [5-9050.20] Employee — s 143(1), (2)(b), (3), (5)(b), (6), (7), (8), (10) See s 133. [5-9050.25] Employer — s 143(1), (2)(a), (b), (3), (5)(a), (8), (10) See s 133. [5-9050.30] Modern award — s 143(1), (2), (b), (3), (4), (7), (8), (9), (10), (11) See s 12. [5-9050.35] Modern enterprise awards — s 143(7), (8), (9) See s 12. [5-9050.40] Organisations — s 143(1), (3), (5)(c) See s 12. [5-9050.45] Outworker entities — s 143(1), (4), (5)(d) See s 12. [5-9050.50] State reference public sector modern award — s 143(10), (11) See s 12.

[5-9050.05] [5-9050.10] [5-9050.15] [5-9050.20] [5-9050.25] [5-9050.30] [5-9050.35] [5-9050.40] [5-9050.45] [5-9050.50] [5-9050.55] [5-9050.60]

[5-9050.55] Traditionally not been covered — s 143(7)(a) In discussing the Finance Industry — Finance Company Employees’ Award 2001, Cmr Lee stated that the intention of the Full Bench in creating modern awards was not to cover modern award employees that are not engaged as professional employees, or who are truly and basically executive officers: Faulder v Lanteri Partners Financial Management Pty Ltd T/A Lanteri Partners Group [2012] FWA 4801 at [33] (28 June 2012). See Award Modernisation — Decision — re Stage 4 modern awards [2009] AIRCFB 945 (4 December 2009) at [149]–[152] for an example of a draft clause. As to a practical example see Farland v Canon Information Systems Research Australia Pty Ltd t/as Cisra [2011] FWA 1913; BC201170417 (6 April 2011) at [13]–[14]. [page 241] [5-9050.60] Outline of Section FWA is required to include in a modern award terms that clearly identify the persons and bodies that are covered by the award: Explanatory Memorandum to the Fair Work Bill 2008 at [565].

*Editor’s note: Commentary on s 143 prepared by Ian Latham BA(Hons)/LLB(ANU), Barrister. ____________________

[5-9060] awards

Coverage terms of modern enterprise

143A (1) Coverage terms must be included A modern enterprise award must include terms (coverage terms) setting out, in accordance with this section: (a) the enterprise or enterprises to which the modern enterprise award relates; and (b) the employers, employees and organisations that are covered by the modern enterprise award. (2) Enterprises A modern enterprise award must be expressed to relate: (a) to a single enterprise (or a part of a single enterprise) only; or (b) to one or more enterprises, but only if the employers all carry on similar business activities under the same franchise and are: (i) franchisees of the same franchisor; or (ii) related bodies corporate of the same franchisor; or (iii) any combination of the above.

(3) Employers and employees A modern enterprise award must be expressed to cover: (a) a specified employer that carries on, or specified employers that carry on, the enterprise or enterprises referred to in subsection (2); and (b) specified employees of employers covered by the modern enterprise award. (4) Organisations A modern enterprise award may be expressed to cover one or more specified organisations, in relation to: (a) all or specified employees covered by the award; or (b) the employer, or all or specified employers, covered by the award. (5) Outworker entities A modern enterprise award must not be expressed to cover outworker entities. (6) How coverage etc is expressed For the purposes of subsection (2), an enterprise must be specified: (a) if paragraph (2)(a) applies to the enterprise — by name; or (b) if paragraph (2)(b) applies to the enterprise — by name, or by the name of the franchise. (7) For the purposes of subsections (3) and (4): (a) an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and (b) employees must be specified by inclusion in a specified class or specified classes; and (c) organisations must be specified by name. (8) Employees not traditionally covered by awards etc A modern enterprise award must not be expressed to cover classes of employees: (a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or [page 242]

(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards. Note: For example, in some industries, managerial employees have traditionally not been covered by awards. [s 143A insrt Act 55 of 2009 s 3 and Sch 6, opn 1 Jan 2010]

[5-9060] Coverage terms of State reference public sector modern awards 143B (1) Coverage terms must be included A State reference public sector modern award must include terms (coverage terms) setting out, in accordance with this section, the employers, employees and organisations that are covered by the modern award. (2) Employers and employees The coverage terms must be such that: (a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers; and (b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers. (3) Organisations A State reference public sector modern award may be expressed to cover one or more specified organisations, in relation to: (a) all or specified employees covered by the modern award; or (b) the employer, or all or specified employers, covered by the modern award. (4) Outworker entities A State reference public sector modern award must not be expressed to cover outworker entities. (5) How coverage etc is expressed For the purposes of this section: (a) an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and (b) employees must be specified by inclusion in a specified class or specified classes; and (c) organisations must be specified by name. [s 143B insrt Act 54 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

[5-9070]

Flexibility terms

144 Flexibility terms must be included (1) A modern award must include a term (a flexibility term) enabling an employee and his or her employer to agree on an arrangement (an individual flexibility arrangement) varying the effect of the award in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer. Effect of individual flexibility arrangements (2) If an employee and employer agree to an individual flexibility arrangement under a flexibility term in a modern award: (a) the modern award has effect in relation to the employee and the employer as if it were varied by the flexibility arrangement; and (b) the arrangement is taken, for the purposes of this Act, to be a term of the modern award. [page 243] (3) To avoid doubt, the individual flexibility arrangement does not change the effect the modern award has in relation to the employer and any other employee. Requirements for flexibility terms (4) The flexibility term must: (a) identify the terms of the modern award the effect of which may be varied by an individual flexibility arrangement; and (b) require that the employee and the employer genuinely agree to any individual flexibility arrangement; and (c) require the employer to ensure that any individual flexibility arrangement must result in the employee being better off overall than the employee would have been if no individual flexibility arrangement were agreed to; and (d) set out how any flexibility arrangement may be terminated by the

employee or the employer; and (e) require the employer to ensure that any individual flexibility arrangement must be in writing and signed: (i) in all cases — by the employee and the employer; and (ii) if the employee is under 18 — by a parent or guardian of the employee; and (f) require the employer to ensure that a copy of any individual flexibility arrangement must be given to the employee. (5) Except as required by subparagraph (4)(e)(ii), the flexibility term must not require that any individual flexibility arrangement agreed to by an employer and employee under the term must be approved, or consented to, by another person.

[5-9090] Effect of individual flexibility arrangement that does not meet requirements of flexibility term 145 Application of this section (1) This section applies if: (a) an employee and employer agree to an arrangement that purports to be an individual flexibility arrangement under a flexibility term in a modern award; and (b) the arrangement does not meet a requirement set out in section 144. Note: A failure to meet such a requirement may be a contravention of a provision of Part 3-1 (which deals with general protections).

Arrangement has effect as if it were an individual flexibility arrangement (2) The arrangement has effect as if it were an individual flexibility arrangement. Employer contravenes flexibility term in specified circumstances (3) If subsection 144(4) requires the employer to ensure that the arrangement meets the requirement, the employer contravenes the flexibility term of the award.

Flexibility arrangement may be terminated by agreement or notice (4) The flexibility term is taken to provide (in addition to any other means of termination of the arrangement that the term provides) that the arrangement can be terminated: [page 244] (a) by either the employee, or the employer, giving written notice of not more than 28 days; or (b) by the employee and the employer at any time if they agree, in writing, to the termination.

[5-9095] Consultation about changes to rosters or hours of work 145A (1) Without limiting paragraph 139(1)(j), a modern award must include a term that: (a) requires the employer to consult employees about a change to their regular roster or ordinary hours of work; and (b) allows for the representation of those employees for the purposes of that consultation. (2) The term must require the employer: (a) to provide information to the employees about the change; and (b) to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and (c) to consider any views about the impact of the change that are given by the employees. [s 145A insrt Act 73 of 2013 s 3 and Sch 1 item 19, opn 1 Jan 2014]

[5-9110]

Terms about settling disputes

146 Without limiting paragraph 139(1)(j), a modern award must include a

term that provides a procedure for settling disputes: (a) about any matters arising under the award; and (b) in relation to the National Employment Standards. Note: The FWC or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)). [s 146 am Act 174 of 2012 s 3 and Sch 9 item 52, opn 1 Jan 2013] COMMENTARY TO SECTION 146*

Derivation …. Long service leave — s 146 …. Matters arising — s 146(a) …. Modern award — s 146 …. National Employment Standards — s 146(b) …. Procedure for settling disputes — s 146 …. Outline of section ….

[5-9110.01] [5-9110.05] [5-9110.10] [5-9110.15] [5-9110.20] [5-9110.25] [5-9110.30]

[5-9110.01] Derivation The section is new. It has some similarities to s 514 of the Workplace Relations Act 1996. [5-9110.05] Long service leave — s 146 See Pt 2-2 Div 9. [5-9110.10] Matters arising — s 146(a) The words “arising under the award” are arguably broader than the words over “the application of the award”. As held in Australian Municipal, Administrative, Clerical and Services Union v Qantas Airways Ltd — T0301 [2000] AIRC 290 (7 September 2000) per Munro J, Polites SDP, Cribb C (quoting CFMEU v Gordonstone Coal Management Pty Ltd (1997) 75 IR 249; 24 July 1997, Munro J, Polites SDP and Hodder C, Print [page 245] P3415): “the expression ‘disputes over the application of the agreement’ includes disputes about matters arising under the Agreement, and perhaps is not merely co-extensive with that formulation”. [5-9110.15] Modern award — s 146 See s 12. [5-9110.20] National Employment Standards — s 146(b) See s 12. [5-9110.25] Procedure for settling disputes — s 146 See Pt 6-2. Arbitration is not an essential ingredient of dispute settlement procedures: Re Woolworths Ltd (t/as Produce and Recycling Distribution Centre) [2010] FWAFB 1464; (2010) 192 IR 124 (26 February 2010) at [28]. As such, the legislation follows the non interventionist approach of WorkChoices. That approach was made clear in the Second Reading Speech to the Workchoices amendments: Commonwealth Parliamentary Debates, 2 November 2005, p 19, http://www.aph.gov.au/hansard/reps/dailys/dr021105.pdf, when the Minister stated:

The AIRC will retain its powers to resolve disputes arising under agreements but only where those functions are expressly conferred on it by the parties. This view was reinforced in the Explanatory Memorandum to the Workplace Relations Amendment (Work Choices) Bill 2005 at [2356] where it was said: It is intended that the AIRC would proceed in accordance with the wishes of the parties, rather than the AIRC being primarily responsible for choosing the ways in which dispute resolution should be attempted or guiding the parties to what the AIRC considers being the most appropriate outcome. [5-9110.30] Outline of section The section sets out the requirement for a dispute settlement procedure. See similar provisions for enterprise agreements at Pt 6-2.

*Editor’s note: Commentary on s 146 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister. ____________________

[5-9130]

Ordinary hours of work

147 A modern award must include terms specifying, or providing for the determination of, the ordinary hours of work for each classification of employee covered by the award and each type of employment permitted by the award. Note: An employee’s ordinary hours of work are significant in determining the employee’s entitlements under the National Employment Standards. COMMENTARY TO SECTION 147*

Derivation …. Employee — s 147, Note …. Modern award — s 147 …. National Employment Standards — Note …. Ordinary hours of work — s 147, Note …. Outline of section ….

[5-9130.1] [5-9130.5] [5-9130.10] [5-9130.15] [5-9130.20] [5-9130.25]

[5-9130.1] Derivation The section is new. [5-9130.5] Employee — s 147, Note See s 133. [5-9130.10] Modern award — s 147 See s 12. [page 246] [5-9130.15] National Employment Standards — Note See s 12 and s 61(3).

[5-9130.20] Ordinary hours of work — s 147, Note In Moloney v Beverage Engineering Pty Ltd (2007) 212 FLR 285; [2007] FMCA 1072; BC200705527 (12 July 2007), at [83]–[85] while dealing with s 661 of the WRA, the court collected and analysed the authorities as to ordinary hours and found that ordinary hours of work did not include hours worked as overtime. [5-9130.25] Outline of section The Explanatory Memorandum to the Fair Work Bill 2008 at para 582 states that the definition is necessary because “many of the entitlements (such as paid annual leave) under the NES are calculated on the basis of an employee’s ordinary hours of work”.

*Editor’s note: Commentary to s 147 by Ian Latham BA(Hons) LLB (ANU), Barrister. ____________________

[5-9150] Base and full rates of pay for pieceworkers 148 If a modern award defines or describes employees covered by the award as pieceworkers, the award must include terms specifying, or providing for the determination of, base and full rates of pay for those employees for the purposes of the National Employment Standards. Note: An employee’s base and full rates of pay are significant in determining the employee’s entitlements under the National Employment Standards. COMMENTARY TO SECTION 148*

Derivation …. Base rate of pay — Note …. Employee — s 148, Note …. Full rate of pay — Note …. Modern award — s 148 …. National employment standards — s 148, Note …. Pieceworker — s 148 …. Outline of Section …. [5-9150.1] Derivation The section is new. [5-9150.5] Base rate of pay — Note See s 16. [5-9150.10] Employee — s 148, Note See s 133. [5-9150.15] Full rate of pay — Note See s 18.

[5-9150.1] [5-9150.5] [5-9150.10] [5-9150.15] [5-9150.20] [5-9150.25] [5-9150.30] [5-9150.35]

[5-9150.20] Modern award — s 148 See s 12. [5-9150.25] National employment standards — s 148, Note See ss 12 and 61(3). [5-9150.30] Pieceworker — s 148 See ss 12, 21 and regs 1.12 and 6.03. [5-9150.35] Outline of Section Section 148 only applies if a modern award defines or describes employees covered by the award as pieceworkers. In such a case, the modern award must include terms specifying, or providing for the determination of, base and full rates of pay for those employees for the purposes of the National Employment Standards. This becomes relevant when calculating a pieceworker’s entitlements (eg, to paid annual leave) under the National Employment Standards: Explanatory Memorandum to the Fair Work Bill 2009 at [583].

*Editor’s note: Commentary to s 148 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister. ____________________ [page 247]

[5-9170]

Automatic variation of allowances

149 If a modern award includes allowances that the FWC considers are of a kind that should be varied when wage rates in the award are varied, the award must include terms providing for the automatic variation of those allowances when wage rates in the award are varied. [s 149 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012; Act 174 of 2012 s 3 and Sch 9 item 53, opn 1 Jan 2013] COMMENTARY TO SECTION 149*

Derivation …. FWC — s 149 …. Modern award — s 149 …. Outline of section ….

[5-9170.5] [5-9170.10] [5-9170.15] [5-9170.20]

[5-9170.5] Derivation The section is new. [5-9170.10] FWC — s 149 See s 12. [5-9170.15] Modern award — s 149 See s 12. [5-9170.20] Outline of section The Explanatory Memorandum to the Fair Work Bill 2008 at para 584

states that the intention of the section is to ensure variation of such allowances automatically occurs as a result of an annual wage review that varies minimum wages, and is not limited to 4 yearly reviews.

*Editor’s note: Commentary to s 149 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister. ____________________

[5-9230] Superannuation contributions for defined benefit members 149A [s 149A rep Act 174 of 2012 s 3 and Sch 1 item 12, opn 1 Jan 2014]

[5-9235] Term requiring avoidance of liability to pay superannuation guarantee charge 149B A modern award must include a term that requires an employer covered by the award to make contributions to a superannuation fund for the benefit of an employee covered by the award so as to avoid liability to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the employee. [s 149B insrt Act 174 of 2012 s 3 and Sch 1 item 13, opn 1 Jan 2014]

[5-9240]

Default fund terms

149C (1) A modern award must include a default fund term that complies with section 149D. (2) A default fund term is a term of a modern award that requires, permits or prohibits an employer covered by the award to make contributions to a superannuation fund for the benefit of an employee (a default fund employee) who: (a) is covered by the award; and (b) has no chosen fund (within the meaning of the Superannuation Guarantee (Administration) Act 1992). [s 149C insrt Act 174 of 2012 s 3 and Sch 1 item 13, opn 1 Jan 2014]

[page 248]

[5-9245] Default fund term must provide for contributions to be made to certain funds 149D Specified superannuation fund offering standard MySuper product (1) A default fund term of a modern award must require an employer covered by the award to make contributions, for the benefit of a default fund employee, to a superannuation fund that: (a) offers a standard MySuper product; and (b) is specified in the default fund term of the award in relation to that product; if: (c) the employer will be liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the employee if the employer does not make contributions to a superannuation fund for the benefit of the employee; and (d) the employer is not making contributions to a superannuation fund referred to in subsection (1A), (2), (3), (4) or (5) for the benefit of the employee. Note: If a superannuation fund is specified in the default fund term of a modern award in relation to a standard MySuper product and, in addition to offering the standard MySuper product, the fund offers a tailored MySuper product that a default fund employee is entitled to hold, then any contributions made by the employer to the fund for the benefit of that employee will be paid into the tailored MySuper product instead of the standard MySuper product (see section 29WB of the Superannuation Industry (Supervision) Act 1993).

Superannuation funds offering employer MySuper products on the schedule (1A) A default fund term of a modern award must permit an employer covered by the award to make contributions, for the benefit of a default fund employee, to a superannuation fund that offers an employer MySuper product that: (a) relates to the employer; and

(b) is on the Schedule of Approved Employer MySuper Products. Note: The Schedule of Approved Employer MySuper Products is made during a 4 yearly review of default fund terms of modern awards under Division 4A of Part 2-3.

Defined Benefits Scheme (2) A default fund term of a modern award must permit an employer covered by the award to make contributions, for the benefit of a default fund employee, to a superannuation fund in relation to which a default fund employee is a defined benefit member. Exempt public sector superannuation scheme (3) A default fund term of a modern award must permit an employer covered by the award to make contributions, for the benefit of a default fund employee, to a superannuation fund that is an exempt public sector superannuation scheme. State public sector superannuation scheme (4) A default fund term of a modern award must permit an employer covered by the award to make contributions, for the benefit of a default fund employee, to a superannuation fund that: (a) is a public sector superannuation scheme (within the meaning of the Superannuation Industry (Supervision) Act 1993); and (b) a law of a State requires the employer to make contributions to for the benefit of the employee. [page 249] Transitionally authorised superannuation fund (5) A default fund term of a modern award must permit an employer covered by the award to make contributions, for the benefit of a default fund employee, to a superannuation fund in relation to which a transitional authorisation is in operation under section 156K. [s 149D insrt Act 174 of 2012 s 3 and Sch 1 item 13, opn 1 Jan 2014]

Subdivision D — Terms that must not be included in modern

awards

[5-9290]

Objectionable terms

150 A modern award must not include an objectionable term. COMMENTARY TO SECTION 150*

Derivation …. Modern award …. Objectionable term …. Outline of section ….

[5-9290.1] [5-9290.5] [5-9290.10] [5-9290.15]

[5-9290.1] Derivation The section is new. There are some similarities with s 356 of the Workplace Relations Act. [5-9290.5] Modern award See s 12. [5-9290.10] Objectionable term See s 12. Note the effect of s 356. [5-9290.15] Outline of section The section prohibits a modern award from requiring or permitted a contravention of Pt 3–1 and the payment of a bargaining services fee.

*Editor’s note: Commentary to s 150 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister. ____________________

[5-9310] Terms about payments and deductions for benefit of employer etc 151 A modern award must not include a term that has no effect because of subsection 326(1) (which deals with unreasonable payments and deductions for the benefit of an employer) or subsection 326(3) (which deals with unreasonable requirements to spend an amount). COMMENTARY TO SECTION 151*

Modern award — s 151 …. Unreasonable payments — s 151 …. Unreasonable requirements — s 151 …. Outline of Section ….

[5-9310.1] [5-9310.5] [5-9310.10] [5-9310.15]

[5-9310.1] Modern award — s 151 See s 12. [5-9310.5] Unreasonable payments — s 151 See s 326(1). [5-9310.10] Unreasonable requirements — s 151 See s 326(3). [page 250] [5-9310.15] Outline of Section The outline of this section is best set out in cl 151 of the Explanatory Memorandum to the Fair Work Bill 2009 at [588] which states “although such terms are of no effect, this clause ensures that such terms are not included in awards, as their inclusion (even though inoperative) could be confusing and create uncertainty”.

*Editor’s note: Commentary to s 151 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister. ____________________

[5-9330]

Terms about right of entry

152 A modern award must not include terms that require or authorise an official of an organisation to enter premises: (a) to hold discussions with, or interview, an employee; or (b) to inspect any work, process or object. COMMENTARY TO SECTION 152U*

Derivation …. Employee — s 152 …. Modern award — s 152 …. Organisation — s 152 …. Premises — s 152 …. Outline of section ….

[5-9330.01] [5-9330.05] [5-9330.10] [5-9330.15] [5-9330.20] [5-9330.25]

[5-9330.01] Derivation The section is new. There are some similarities with s 518 of the Workplace Relations Act 1996. [5-9330.05] Employee — s 152 See s 133. [5-9330.10] Modern award — s 152 See s 12. [5-9330.15] Organisation — s 152 See s 12.

[5-9330.20] Premises — s 152 See s 12. [5-9330.25] Outline of section The section is designed to prevent the granting of entry rights by provisions of modern awards. Right of entry is dealt with in Pt 3-4.

*Editor’s note: Commentary on s 152 prepared by Ian Latham BA(Hons) LLB(ANU), Barrister. ____________________

[5-9350]

Terms that are discriminatory

153 Discriminatory terms must not be included (1) A modern award must not include terms that discriminate against an employee because of, or for reasons including, the employee’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. [subs (1) am Act 98 of 2013 s 3 and Sch 1 item 63C, opn 1 Aug 2013]

Certain terms are not discriminatory (2) A term of a modern award does not discriminate against an employee: (a) if the reason for the discrimination is the inherent requirements of the particular position held by the employee; or [page 251] (b) merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed: (i) in good faith; and (ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed. (3) A term of a modern award does not discriminate against an employee merely because it provides for minimum wages for:

(a) all junior employees, or a class of junior employees; or (b) all employees with a disability, or a class of employees with a disability; or (c) all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.

[5-9370] Terms that contain State-based differences 154 General rule — State-based difference terms must not be included (1) A modern award must not include terms and conditions of employment (State-based difference terms) that: (a) are determined by reference to State or Territory boundaries; or (b) are expressed to operate in one or more, but not every, State and Territory. When State-based difference terms may be included (2) However, a modern award may include State-based difference terms if the terms were included in the award: (a) in the award modernisation process; or (b) in accordance with subsection (3); but only for up to 5 years starting on the day on which the first modern award that included those terms came into operation. (3) If: (a) a modern award includes State-based difference terms as permitted under subsection (2); and (b) the FWC is making or varying another modern award so that it (rather than the modern award referred to in paragraph (a)) will cover some or all of the classes of employees who are covered by those terms; the FWC may include those terms in that other modern award. However, the FWC must not extend the coverage of those terms to classes of employees that they did not previously cover. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 54, opn 1 Jan 2013]

[5-9390]

Terms dealing with long service leave

155 A modern award must not include terms dealing with long service leave. COMMENTARY TO SECTION 155*

Derivation …. Long service leave — s 155 …. Modern award — s 155 ….

[5-9390.01] [5-9390.05] [5-9390.10] [page 252]

Outline of section ….

[5-9390.15]

[5-9390.01] Derivation The section is new. [5-9390.05] Long service leave — s 155 See Pt 2-2 Div 9. [5-9390.10] Modern award — s 155 See s 12. [5-9390.15] Outline of section “Section 155 of the Fair Work Act provides that a modern award must not include terms dealing with long service leave, whereas there is no similar prohibition in relation to enterprise agreements dealing with long service leave”: St Marys Rugby League Club Ltd re St Marys Rugby League Club Ltd Employees Enterprise Agreement 2010 (2010) 63 AILR 101-276; [2010] FWA 8300 (12 November 2010) at [27]. “This clause is not intended to prevent terms that have an incidental effect on long service leave entitlements — such as a term that states whether a particular type of leave counts as service”: Explanatory Memorandum to the Fair Work Bill 2008 at para 598. *Editor’s note: Commentary on s 155 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[5-9475]

Terms dealing with superannuation

155A [s 155A rep Act 174 of 2012 s 3 and Sch 1 item 14, opn 1 Jan 2014]

DIVISION 4 — 4 YEARLY REVIEWS OF MODERN AWARDS

[5-9560] 4 yearly reviews of modern awards to be conducted

156 Timing of 4 yearly reviews (1) The FWC must conduct a 4 yearly review of modern awards starting as soon as practicable after each 4th anniversary of the commencement of this Part. Note 1: The FWC must be constituted by a Full Bench to conduct 4 yearly reviews of modern awards, and to make determinations and modern awards in those reviews (see subsections 616(1), (2) and (3)). Note 2: The President may give directions about the conduct of 4 yearly reviews of modern awards (see section 582). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 55, opn 1 Jan 2013]

What has to be done in a 4 yearly review? (2) In a 4 yearly review of modern awards, the FWC: (a) must review all modern awards; and (b) may make: (i) one or more determinations varying modern awards; and (ii) one or more modern awards; and (iii) one or more determinations revoking modern awards; and (c) must not review, or make a determination to vary, a default fund term of a modern award. Note 1: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164). Note 2: For reviews of default fund terms of modern awards, see Division 4A. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 56, opn 1 Jan 2013; s 3 and Sch 1 items 15–17, opn 1 Jan 2014]

[page 253] Variation of modern award minimum wages must be justified by work value reasons (3) In a 4 yearly review of modern awards, the FWC may make a determination varying modern award minimum wages only if the FWC is satisfied that the variation of modern award minimum wages is justified by work value reasons. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 56, opn 1 Jan 2013]

(4) Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following: (a) the nature of the work; (b) the level of skill or responsibility involved in doing the work; (c) the conditions under which the work is done. Each modern award to be reviewed in its own right (5) A 4 yearly review of modern awards must be such that each modern award is reviewed in its own right. However, this does not prevent the FWC from reviewing 2 or more modern awards at the same time. [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 56, opn 1 Jan 2013]

DIVISION 4A — 4 YEARLY REVIEWS OF DEFAULT FUND TERMS OF MODERN AWARDS [Div 4A insrt Act 174 of 2012 s 3 and Sch 1 item 18, opn 1 Jan 2014]

Subdivision A — 4 yearly reviews of default fund terms

[5-9580]

4 yearly reviews of default fund terms

156A Timing of 4 yearly reviews (1) The FWC must conduct a 4 yearly review of default fund terms of modern awards starting as soon as practicable after each 4th anniversary of the commencement of this Part. Note: The President may give directions about the conduct of those reviews (see section 582).

Two stages of the 4 yearly reviews (2) There are 2 stages of the 4 yearly review. First stage — the Default Superannuation List (3) In the first stage, the FWC must make the Default Superannuation List for the purposes of the review. Note: In the first stage, the FWC must be constituted by an Expert Panel for the purposes of making the list and determining applications to include standard MySuper products on the list (see paragraphs 617(4)(a) and (b)).

Second stage — reviewing and varying default fund terms (4) In the second stage, the FWC: (a) must review the default fund term of each modern award; and [page 254] (b) must make a determination varying the term in accordance with section 156H; and (c) if section 156J applies — must make a determination varying the term in accordance with that section. Note: For the second stage, the FWC must be constituted by a Full Bench (see subsections 616(2A) and (3A)).

The Schedule of Approved Employer MySuper Products (5) In the 4 yearly review, the FWC must also make the Schedule of Approved Employer MySuper Products. Note: The FWC must be constituted by an Expert Panel for the purposes of making the schedule and determining applications to include employer MySuper products on the schedule (see paragraphs 617(4)(c) and (d)).

Subdivision B — The first stage of the 4 yearly review

[5-9590]

Making the Default Superannuation List

156B (1) In the 4 yearly review, the FWC must make and publish the Default Superannuation List. (2) The Default Superannuation List must specify each standard MySuper product that the FWC has determined under section 156E is to be included on the list. (3) The Default Superannuation List must not specify any other product.

[5-9595] product

Applications to list a standard MySuper

156C (1) Before making the Default Superannuation List, the FWC must

publish a notice that invites superannuation funds that offer a standard MySuper product to apply to the FWC to have the product included on the list. (2) The notice must specify the period in which an application may be made. (3) After the notice is published, a superannuation fund that offers a standard MySuper product may make a written application to have the product included on the list. (4) The application must: (a) be made in the period specified in the notice; and (b) be accompanied by any fees that are prescribed by the regulations; and (c) provide information relating to the first stage criteria. (5) The FWC must publish any application made under subsection (3). (6) However, if an application includes information that is claimed by the superannuation fund to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive: (a) the FWC may decide not to publish the information; and (b) if it does so, it must instead publish a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive). (7) A reference in this Act (other than in this section) in relation to an application made under subsection (3) includes a reference to a summary referred to in paragraph (6)(b). [page 255]

[5-9600] Submissions on applications to list a standard MySuper product

156D (1) The FWC must ensure that all persons and bodies have a reasonable opportunity to make written submissions to the FWC in relation to an application made under subsection 156C(3). (2) If: (a) a person or body makes a written submission in relation to an application made under subsection 156C(3); and (b) the person or body has an interest in relation to: (i) the superannuation fund that made the application; or (ii) if the person or body refers to another superannuation fund in the submission — that superannuation fund; then the person or body must disclose that interest in the submission. (3) The FWC must publish any submission that is made.

[5-9605] Determining applications to list a standard MySuper product 156E (1) If an application is made under subsection 156C(3) to have a standard MySuper product included on the Default Superannuation List, the FWC must make a determination about whether to include the product on the list. (2) The FWC must not determine that the product is to be included on the list unless, taking into account: (a) the information provided in the application; and (b) the first stage criteria; and (c) any submissions that were made in relation to the application; the FWC is satisfied that including the product on the list would be in the best interests of default fund employees to whom modern awards apply or a particular class of those employees.

[5-9610]

First stage criteria

156F The first stage criteria are as follows: (a) the appropriateness of the MySuper product’s long term investment

(b)

(c)

(d) (e)

(f)

return target and risk profile; the superannuation fund’s expected ability to deliver on the MySuper product’s long term investment return target, given its risk profile; the appropriateness of the fees and costs associated with the MySuper product, given: (i) its stated long term investment return target and risk profile; and (ii) the quality and timeliness of services provided; the net returns on contributions invested in the MySuper product; whether the superannuation fund’s governance practices are consistent with meeting the best interests of members of the fund, including whether there are mechanisms in place to deal with conflict of interest; the appropriateness of any insurance offered in relation to the MySuper product; [page 256]

(g) the quality of advice given to a member of the superannuation fund relating to the member’s existing interest in the fund and products offered by the fund; (h) the administrative efficiency of the superannuation fund; (i) any other matters the FWC considers relevant.

Subdivision C — Second stage of the 4 yearly review

[5-9620] Review of the default fund term of modern awards 156G (1) As soon as practicable after the Default Superannuation List is made, the FWC must review the default fund term of each modern award. (2) The FWC must ensure that the following persons have a reasonable

opportunity to make written submissions (including submissions requesting that a particular superannuation fund be specified in the term in relation to a standard MySuper product) to the FWC in relation to the default fund term of the award: (a) an employee and employer that are covered by the modern award; (b) an organisation that is entitled to represent the industrial interests of one or more employees or employers that are covered by the award; (c) if the award includes an outworker term — an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker term relates. (3) If: (a) a person or body (whether or not a person referred to in subsection (2)) makes a written submission in relation to the default fund term of a modern award; and (b) the person or body refers to a particular superannuation fund in the submission; and (c) the person or body has an interest in relation to that superannuation fund; then the person or body must disclose that interest in the submission. (4) The FWC must publish any submission that is made.

[5-9625] Default fund term must specify certain superannuation funds 156H (1) After reviewing the default fund term of a modern award, the FWC must make a determination varying the term: (a) to remove every superannuation fund that is specified in the term; and (b) to specify at least 2, but no more than 15, superannuation funds in relation to standard MySuper products that satisfy the second stage test. Note: See subsection (3) for when the default fund term may specify more than 15 superannuation funds.

(2) A standard MySuper product satisfies the second stage test if:

(a) it is on the Default Superannuation List; and (b) the FWC is satisfied that specifying a superannuation fund in relation to the product in the default fund term of the modern award would be in the best interests of the default fund employees to whom the modern award applies, taking into account: (i) any submissions that were made in relation to the default fund term of the award; and [page 257] (ii) any other matter the FWC considers relevant. (3) The default fund term may specify more than 15 superannuation funds in relation to standard MySuper products that satisfy the second stage test if, taking into account the range of occupations of employees covered by the modern award, the FWC is satisfied it is warranted.

[5-9630]

Variation to comply with section 149D

156J If, at the time of the 4 yearly review, the default fund term of a modern award does not comply with section 149D, the FWC must make a determination varying the term so that it does.

[5-9635] Transitional authorisation for certain superannuation funds 156K (1) The FWC may make a transitional authorisation in relation to a superannuation fund (other than a superannuation fund referred to in subsection 149D(1), (1A), (2), (3) or (4)) if, at the time of the 4 yearly review, the FWC is satisfied that it is appropriate to make the authorisation. (2) The transitional authorisation comes into operation on the day it is made and ceases to be in operation on the day specified in the authorisation.

Subdivision D — The Schedule of Approved Employer MySuper Products

[5-9660] The Schedule of Approved Employer MySuper Products 156L (1) In the 4 yearly review, the FWC must: (a) make and publish the Schedule of Approved Employer MySuper Products; and (b) revoke any previous Schedule of Approved Employer MySuper Products. Note: If an employer MySuper product is on the schedule, an employer covered by a modern award can make contributions, for the benefit of a default fund employee, to a superannuation fund that offers the product (see subsection 149D(1A)).

(2) When the schedule is made, it must specify any employer MySuper product that the FWC has determined under section 156P is to be included on the schedule. (3) After the schedule is made, it must be amended to specify any employer MySuper product that the FWC has determined under section 156P

is to be included on the schedule. Note: The FWC must be constituted by an Expert Panel for the purposes of amending the schedule (see paragraph 617(5)(b)).

(4) If the schedule is amended as referred to in subsection (3), the FWC must publish the schedule as amended. (5) The schedule must not specify any other product.

[5-9665] FWC to invite applications to include employer MySuper products on schedule 156M (1) Before making the schedule, the FWC must publish a notice that invites: (a) superannuation funds that offer an employer MySuper product; and [page 258] (b) employers to which an employer MySuper product relates; to apply to the FWC to have the product included on the schedule. (2) The notice must specify the period in which an application may be made.

[5-9670] Making applications to include employer MySuper products on schedule 156N (1) The following may apply to the FWC to have an employer MySuper product included on the schedule: (a) a superannuation fund that offers the product; (b) an employer to which the product relates. (2) The application must be made: (a) in the period (the standard application period) specified in the notice under section 156M; or (b) in the period (the interim application period) that:

starts immediately after the schedule is made under paragraph (i) 156L(1)(a); and (ii) ends immediately before the next 4th anniversary of the commencement of this Part. Note: Paragraph (2)(a) deals with applications that are made in a 4 yearly review of default fund terms, and paragraph (2)(b) deals with applications that are made outside a 4 yearly review.

(3) The application must also: (a) be accompanied by any fees that are prescribed by the regulations; and (b) provide information relating to the first stage criteria. (4) The FWC must publish any application made under subsection (1). (5) However, if an application includes information that is claimed by the applicant to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive: (a) the FWC may decide not to publish the information; and (b) if it does so, it must instead publish a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive). (6) A reference in this Act (other than in this section) in relation to an application made under subsection (1) includes a reference to a summary referred to in paragraph (5)(b). (7) Only one application in relation to an employer MySuper product may be made under subsection (1) in the period that: (a) starts at the start of the standard application period; and (b) ends at the end of the interim application period.

[5-9675]

FWC to determine applications

156P (1) If an application is made under subsection 156N(1) to have an employer MySuper product included on the schedule, the FWC must make a determination about whether to include the product on the schedule. Note: The FWC must be constituted by an Expert Panel for the purposes of making this determination (see paragraphs 617(4)(d) and (5)(a)).

[page 259] (2) The FWC must not determine that the product is to be included on the schedule unless the product satisfies the first stage test and the second stage test.

[5-9680]

The first stage test

156Q An employer MySuper product satisfies the first stage test if the FWC is satisfied that including the product on the Schedule of Approved Employer MySuper Products would be in the best interests of default fund employees, or a particular class of those employees, taking into account: (a) the information provided in the application; and (b) the first stage criteria; and (c) any submissions that were made in relation to whether the product satisfies the first stage test.

[5-9685]

Submissions about the first stage test

156R (1) The FWC must ensure that all persons and bodies have a reasonable opportunity to make written submissions to the FWC about whether an employer MySuper product satisfies the first stage test. (2) If: (a) a person or body makes a written submission in relation to whether an employer MySuper product satisfies the first stage test; and (b) the person or body has an interest in relation to: (i) the superannuation fund that offers the product; or (ii) if the person or body refers to another superannuation fund in the submission — that superannuation fund; then the person or body must disclose that interest in the submission. (3) The FWC must publish any submission that is made.

[5-9690]

The second stage test

156S An employer MySuper product satisfies the second stage test if the FWC is satisfied that including the product on the Schedule of Approved Employer MySuper Products would be in the best interests of default fund employees of an employer to which the product relates, or a particular class of those employees, taking into account: (a) any submissions that were made in relation to whether the product satisfies the second stage test; and (b) any other matter the FWC considers relevant.

[5-9695]

Submissions about the second stage test

156T (1) The FWC must ensure that the following persons have a reasonable opportunity to make written submissions to the FWC about whether an employer MySuper product satisfies the second stage test: (a) an employee of an employer to which the product relates; (b) an employer to which the product relates; (c) an organisation that is entitled to represent the industrial interests of a person referred to in paragraph (a) or (b). [page 260] (2) If: (a) a person or body (whether or not a person referred to in subsection (1)) makes a written submission in relation to whether an employer MySuper product satisfies the second stage test; and (b) the person or body has an interest in relation to: (i) the superannuation fund that offers the product; or (ii) if the person or body refers to another superannuation fund in the submission — that superannuation fund; then the person or body must disclose that interest in the submission. (3) The FWC must publish any submission that is made.

Subdivision E — Publishing documents under this Division

[5-9710] Division

Publishing documents under this

156U If the FWC is required by this Division to publish a document, the FWC must publish the document on its website or by any other means that the FWC considers appropriate.

DIVISION 5 — EXERCISING MODERN AWARD POWERS OUTSIDE 4 YEARLY REVIEWS AND ANNUAL WAGE REVIEWS Subdivision A — Exercise of powers if necessary to achieve modern awards objective

[5-9730] FWC may vary etc modern awards if necessary to achieve modern awards objective 157 (1) The FWC may: (a) make a determination varying a modern award, otherwise than to vary modern award minimum wages or to vary a default fund term of the award; or (b) make a modern award; or (c) make a determination revoking a modern award; if the FWC is satisfied that making the determination or modern award outside the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective. Note 1: The FWC must be constituted by a Full Bench to make a modern award (see subsection 616(1)). Note 2: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164). Note 3: If the FWC is setting modern award minimum wages, the minimum wages objective also applies (see section 284). [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 58–61, opn 1 Jan 2013; s 3 and Sch 1 item 19, opn 1 Jan 2014]

(2) The FWC may make a determination varying modern award minimum wages if the FWC is satisfied that: (a) the variation of modern award minimum wages is justified by work value reasons; and [page 261] (b) making the determination outside the system of annual wage reviews and the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective. Note: As the FWC is varying modern award minimum wages, the minimum wages objective also applies (see section 284). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 62–64, opn 1 Jan 2013]

(3) The FWC may make a determination or modern award under this section: (a) on its own initiative; or (b) on application under section 158. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 65, opn 1 Jan 2013] [s 157 am Act 174 of 2012 s 3 and Sch 9 item 57, opn 1 Jan 2013] COMMENTARY TO SECTION 157*

Derivation …. Annual wage review — s 157(2)(b) …. Full Bench — s 157 Note 1 …. FWC — s 157(1),(c), Note 1, Note 3, (2), Note, (3) …. Modern award — s 157(1)(a), (b), (c), Note 1, Note 2, (2)(b), (3) …. Modern award minimum wages — s 157(1)(a), Note 3, (2), (a), Note …. Necessary — s 157(1), (2)(b) …. Modern awards objective — s 157(1), (2)(b) …. Outline of section ….

[5-9730.01] [5-9730.05] [5-9730.10] [5-9730.15] [5-9730.20] [5-9730.25] [5-9730.30] [5-9730.35] [5-9730.40]

[5-9730.01] Derivation The section is new. [5-9730.05] Annual wage review — s 157(2)(b) See s 12 definition of “annual wage review” and s

285(1). [5-9730.10] Full Bench — s 157 Note 1 See s 12 definition of “full bench” and s 618. [5-9730.15] FWC — s 157(1),(c), Note 1, Note 3, (2), Note, (3) See s 12 definition of “Fair Work Commission”. [5-9730.20] Modern award — s 157(1)(a), (b), (c), Note 1, Note 2, (2)(b), (3) See s 12 definition of “modern award”. [5-9730.25] Modern award minimum wages — s 157(1)(a), Note 3, (2), (a), Note See s 12 definition of “modern award minimum wages” and s 284(3). [5-9730.30] Necessary — s 157(1), (2)(b) Applicants need to establish much more than that the variation is desirable. Under the Act they need to establish that the variation is necessary to achieve the modern awards objective. In other words the applicants must establish that the modern awards objective would not be achieved unless the variation is made: National Retail Association Ltd; Master Grocers Australia Ltd; Australian Retailers Association; Jim Whittaker [2010] FWA 5068 at [34] (9 July 2010). [5-9730.35] Modern awards objective — s 157(1), (2)(b) See s 12 definition of “modern awards objective” and s 134. [page 262] [5-9730.40] Outline of section Section 157 provides for a limited ability to vary modern awards outside the four yearly reviews of all awards. In Simpson Personnel Pty Ltd [2010] FWA 2894; BC201070663 at [7] (16 April 2010), it was found that in order to make a variation, Fair Work Australia (now the Fair Work Commission) must be satisfied that the variation is necessary to achieve the modern awards objective. *Editor’s note Commentary to s 157 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[5-9750] Applications to vary, revoke or make modern award 158 (1) The following table sets out who may apply for the making of a determination varying or revoking a modern award, or for the making of a modern award, under section 157: Who may make an application? Item Column 1 This kind of application … 1 an application to vary, omit or include terms (other than

Column 2 may be made by … (a) an employer, employee or organisation that is covered

2

3

4

outworker terms or coverage by the modern award; or terms) in a modern award (b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award. an application to vary, omit (a) an employer, employee or or include outworker terms in outworker entity that is or a modern award would be covered by the outworker terms; or (b) an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate or would relate. an application to vary or (a) an employer, employee or include coverage terms in a organisation that would modern award to increase the become covered by the range of employers, modern award; or employees or organisations (b) an organisation that is that are covered by the award entitled to represent the industrial interests of one or more employers or employees that would become covered by the modern award. an application to vary or (a) an outworker entity that include coverage terms in a would become covered by modern award to increase the the outworker terms; or range of outworker entities (b) an organisation that is that are covered by outworker entitled to represent the terms industrial interests of one or more outworkers who would become outworkers to whom the outworker terms relate.

5

an application to vary or omit (a) an employer, employee or coverage terms in a modern organisation that would stop award to being [page 263]

Who may make an application? Item Column 1 This kind of application … reduce the range of employers, employees or organisations that are covered by the award

6

7

Column 2 may be made by … covered by the modern award; or (b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that would stop being covered by the modern award. an application to vary or omit (a) an outworker entity that coverage terms in a modern would stop being covered by award to reduce the range of the outworker terms; or outworker entities that are (b) an organisation that is covered by outworker terms entitled to represent the industrial interests of one or more outworkers who would stop being outworkers to whom the outworker terms relate. an application for the making (a) an employee or employer of a modern award that would be covered by the modern award; or (b) an organisation that is entitled to represent the industrial interests of one or more employers or

8

an application to revoke a modern award

employees that would be covered by the modern award. (a) an employer, employee or organisation that is covered by the modern award; or (b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award.

Note: The FWC may dismiss an application to vary, revoke or make a modern award in certain circumstances (see section 587). [subs (1) am Act 174 of 2012 s 3 and Sch 3 item 2, opn 1 Jan 2013]

(2) Subject to the requirements of the table about who can make what kind of application, an applicant may make applications for 2 or more related things at the same time. Note: For example, an applicant may apply for the making of a modern award and for the related revocation of an existing modern award.

Subdivision B — Other situations

[5-9870] Variation of modern award to update or omit name of employer, organisation or outworker entity 159 (1) The FWC may make a determination varying a modern award: (a) to reflect a change in the name of an employer, organisation or outworker entity; or [page 264] (b) to omit the name of an organisation, employer or outworker entity from the modern award, if:

(i)

the registration of the organisation has been cancelled under the Workplace Relations Act 1996; or (ii) the employer, organisation or outworker entity has ceased to exist; or (c) if the modern award is a named employer award and the named employer is the old employer in a transfer of business — to reflect the transfer of business to the new employer. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 65, opn 1 Jan 2013]

(2) The FWC may make a determination under this section: (a) in any case — on its own initiative; or (b) if paragraph (1)(a) or (b) applies — on application by the employer, organisation or outworker entity referred to in that paragraph; or (c) if paragraph (1)(c) applies — on application by: (i) the old employer or the new employer; or (ii) a transferring employee who was covered by the modern award as an employee of the old employer; or (iii) an organisation that is entitled to represent the industrial interests of the old employer, the new employer, or one or more employees referred to in subparagraph (ii). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 65, opn 1 Jan 2013] COMMENTARY TO SECTION 159*

Derivation …. Employee — s 159(2)(c)(ii), (iii) …. Employer — s 159(1)(a), (b), (ii), (c), 2(b) …. FWC — s 159(1), (2) …. Modern award — s 159(1), (b), (c) (ii) …. Named employer award — s 159(1)(c) …. New employer — s 159(1)(c), (2)(c)(i), (iii) …. Old employer — s 159(1)(c), (2)(c)(i), (ii), (iii) …. Organisation — s 159(1) (a), (b)(i), (c), (2)(b), (c)(iii) …. Outworker entity — s 159(1)(a), (b), 2(b) …. Transfer of business — s 159(1)(c) ….

[5-9870.1] [5-9870.5] [5-9870.10] [5-9870.15] [5-9870.20] [5-9870.30] [5-9870.35] [5-9870.40] [5-9870.45] [5-9870.50] [5-9870.55]

Transferring employee — s 159(2)(c)(ii) …. Outline of section ….

[5-9870.60] [5-9870.65]

[5-9870.1] Derivation The section is new. [5-9870.5] Employee — s 159(2)(c)(ii), (iii) See s 133. [5-9870.10] Employer — s 159(1)(a), (b), (ii), (c), 2(b) See s 133. [5-9870.15] FWC — s 159(1), (2) See s 12. [5-9870.20] Modern award — s 159(1), (b), (c) (ii) See s 12. [5-9870.30] Named employer award — s 159(1)(c) See s 12. [5-9870.35] New employer — s 159(1)(c), (2)(c)(i), (iii) See s 12. [page 265] [5-9870.40] Old employer — s 159(1)(c), (2)(c)(i), (ii), (iii) See s 12. [5-9870.45] Organisation — s 159(1) (a), (b)(i), (c), (2)(b), (c)(iii) See s 12. [5-9870.50] Outworker entity — s 159(1)(a), (b), 2(b) See s 12. [5-9870.55] Transfer of business — s 159(1)(c) See s 12. [5-9870.60] Transferring employee — s 159(2)(c)(ii) See s 12. [5-9870.65] Outline of section Clause 159 allows FWA to vary a modern award to update or remove the name of an employer, outworker entity or organisation: Explanatory Memorandum to the Fair Work Bill 2008 at para 617. The effect of the section may be limited. Modern Awards are not binding on organisations: Re Request from the Minister for Employment and Workplace Relations — 28 March 2008 Award Modernisation (AM 2008/1-12) [2008] AIRCFB 1000; (2008) 177 IR 364 at [20]–[22]. *Editor’s note: Commentary to s 159 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[5-9875] Variation of default fund term of modern award 159A (1) The FWC may make a determination varying the default fund term of a modern award in relation to a superannuation fund specified in the term in relation to a standard MySuper product (the specified product) in the following circumstances:

(a) to reflect a change in the name of the fund or the specified product; (b) if the fund has ceased to exist — to omit the name of the fund and the specified product; (c) if the specified product has ceased to exist and no other MySuper product is specified in relation to the fund — to omit the name of the fund and the specified product; (d) if the specified product has ceased to exist and another MySuper product is specified in relation to the fund — to omit the name of the specified product; (e) if the Australian Prudential Regulation Authority gives the FWC notice under subsection 29U(4) of the Superannuation Industry (Supervision) Act 1993 that the fund no longer offers the specified product and no other MySuper product is specified in relation to the fund — to omit the name of the fund and the specified product; (f) if the Australian Prudential Regulation Authority gives the FWC notice under subsection 29U(4) of the Superannuation Industry (Supervision) Act 1993 that the fund no longer offers the specified product and another MySuper product is specified in relation to the fund — to omit the name of the specified product. (2) The FWC may make a determination under this section: (a) in any case — on its own initiative; or (b) on application by an employee, employer, organisation or outworker entity covered by the modern award. [s 159A insrt Act 174 of 2012 s 3 and Sch 1 item 20, opn 1 Jan 2014]

[5-9890] Variation of modern award to remove ambiguity or uncertainty or correct error 160 (1) The FWC may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 65, opn 1 Jan 2013]

[page 266]

(2) The FWC may make the determination: (a) on its own initiative; or (b) on application by an employer, employee, organisation or outworker entity that is covered by the modern award; or (c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or (d) if the modern award includes outworker terms — on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate. [subs (2) am Act 174 of 2012 s 3 and Sch 3 item 1; s 3 and Sch 9 item 65, opn 1 Jan 2013]

[5-9910] Variation of modern award on referral by Australian Human Rights Commission 161 (1) The FWC must review a modern award if the award is referred to it under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments). [subs (1) am Act 70 of 2009 s 3 and Sch 3, opn 1 Jan 2010; Act 174 of 2012 s 3 and Sch 9 item 65, opn 1 Jan 2013]

(2) The following are entitled to make submissions to the FWC for consideration in the review: (a) if the referral relates to action that would be unlawful under Part 4 of the Age Discrimination Act 2004 — the Age Discrimination Commissioner; (b) if the referral relates to action that would be unlawful under Part 2 of the Disability Discrimination Act 1992 — the Disability Discrimination Commissioner; (c) if the referral relates to action that would be unlawful under Part II of the Sex Discrimination Act 1984 — the Sex Discrimination Commissioner. [subs (2) subst Act 54 of 2009 s 3 and Sch 5, opn 1 Jan 2010; am Act 40 of 2011 s 3 and Sch 2 item 12, opn 29 July 2011; Act 174 of 2012 s 3 and Sch 9 item 66, opn 1 Jan 2013] [Editor’s Note: For your reference, following the commencement of the later of: (a) 1 January 2010

the commencement of item 38 of Sch 3 to the Disability Discrimination and Other Human (b) Rights Legislation Amendment Act 2009 (5 August 2009) provided the event mentioned in para (b) above occurs, s 3 and Sch 5 of Act 54 of 2009 will amend para 161(2)(a) so it will read as follows. (a) if the referral relates to action that would be unlawful under Part 4 of the Age Discrimination Act 2004 — the Australian Human Rights Commission;]

(3) If the FWC considers that the modern award reviewed requires a person to do an act that would be unlawful under any of the Acts referred to in subsection (2) (but for the fact that the act would be done in direct compliance with the modern award), the FWC must make a determination varying the modern award so that it no longer requires the person to do an act that would be so unlawful. Note: Special criteria apply to changing coverage of modern awards (see section 163). [subs (3) am Act 54 of 2009 s 3 and Sch 5, opn 1 Jan 2010; Act 174 of 2012 s 3 and Sch 9 item 66, opn 1 Jan 2013] [heading am Act 70 of 2009 s 3 and Sch 3, opn 1 Jan 2010]

[page 267] COMMENTARY TO SECTION 161*

Derivation …. Disability Discrimination Commissioner — s 161(2)(b) …. FWC — s 161(1), (2), (3) …. Modern award — s 161(1), (3) …. Sex Discrimination Commissioner — s 161 (2)(c) …. Outline of section ….

[5-9910.1] [5-9910.5] [5-9910.10] [5-9910.15] [5-9910.20] [5-9910.25]

[5-9910.1] Derivation The section is new although there are some similarities with s 554(2)–(4) of the Workplace Relations Act 1996 (Cth). [5-9910.5] Disability Discrimination Commissioner — s 161(2)(b) See s 12. [5-9910.10] FWC — s 161(1), (2), (3) See s 12. [5-9910.15] Modern award — s 161(1), (3) See s 12. [5-9910.20] Sex Discrimination Commissioner — s 161 (2)(c) See s 12. [5-9910.25] Outline of section Section 161 requires FWA to review a modern award referred to it under s 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory

industrial instruments): Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [619]. *Editor’s note: Commentary to s 161 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

DIVISION 6 — GENERAL PROVISIONS RELATING TO MODERN AWARD POWERS

[6-100]

General

162 This Division contains some specific provisions relevant to the exercise of modern award powers. For other provisions relevant to the exercise of modern award powers, see the general provisions about the FWC’s processes in Part 5-1. Note: Relevant provisions of Part 5-1 include the following:

(a) section 582 (which deals with the President’s power to give directions); (b) section 590 (which deals with the FWC’s discretion to inform itself as it considers appropriate, including by commissioning research); (c) section 596 (which deals with being represented in a matter before the FWC); (d) section 601 (which deals with writing and publication requirements). [s 162 am Act 174 of 2012 s 3 and Sch 9 items 67–69, opn 1 Jan 2013]

[6-120] Special criteria relating to changing coverage of modern awards 163 Special rule about reducing coverage (1) The FWC must not make a determination varying a modern award so that certain employers or employees stop being covered by the award unless the FWC is satisfied that they will instead become covered by another modern award (other than the miscellaneous modern award) that is appropriate for them. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 70, 71, opn 1 Jan 2013]

[page 268]

Special rule about making a modern award (2) The FWC must not make a modern award covering certain employers or employees unless the FWC has considered whether it should, instead, make a determination varying an existing modern award to cover them. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 72, 73, opn 1 Jan 2013]

Special rule about covering organisations (3) The FWC must not make a modern award, or make a determination varying a modern award, so that an organisation becomes covered by the award, unless the organisation is entitled to represent the industrial interests of one or more employers or employees who are or will be covered by the award. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 74, opn 1 Jan 2013]

The miscellaneous modern award (4) The miscellaneous modern award is the modern award that is expressed to cover employees who are not covered by any other modern award. COMMENTARY TO SECTION 163*

Derivation …. Employees — s 163(1), (2), (3), (4) …. Employers s 163(1), (2), (3) …. FWC — s 161(1), (2), (3) …. Miscellaneous modern award — s 163(4) …. Modern award — s 161(1), (2), (3), (4) …. Organisations — s 163(3) …. Represent the industrial interests of the employee — s 163(3) …. Outline of section …. [6-120.1] Derivation The section is new. [6-120.5] Employees — s 163(1), (2), (3), (4) See s 133. [6-120.10] Employers s 163(1), (2), (3) See s 133. [6-120.15] FWC — s 161(1), (2), (3) See s 12.

[6-120.1] [6-120.5] [6-120.10] [6-120.15] [6-120.20] [6-120.25] [6-120.30] [6-120.35] [6-120.40]

[6-120.20] Miscellaneous modern award — s 163(4) See s 12. “The Commission is to create a modern award to cover employees who are not covered by another modern award and who perform work of a similar nature to that which has historically been regulated by awards (including State awards)”: Consolidated Award Modernisation Request para 4A. [6-120.25] Modern award — s 161(1), (2), (3), (4) See s 12. [6-120.30] Organisations — s 163(3) See s 12. [6-120.35] Represent the industrial interests of the employee — s 163(3) See [8-4980.75]. [6-120.40] Outline of section Paragraph 623 of the Explanatory Memorandum to the Fair Work Bill 2008 states as to subcl 163(1) that this requirement, “together with the modern awards [page 269] objective, is designed to ensure that when considering a change in award coverage, FWA considers whether the content of the new award is an appropriate safety net for the employers and employees that would become covered by it”. It goes on to state at para 624 that subcl 163(2) is designed to “limit the proliferation of new awards, by ensuring that making a new award occurs only where variation of coverage of an existing award is not appropriate”. At para 625 it is said that subcl 163(3) “prohibits FWA from making or varying a modern award to cover an organisation unless the organisation is entitled to represent the industrial interests of one or more employers or employees who are or will be covered by the modern award”. *Editor’s note: Commentary to s 163 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[6-140] awards

Special criteria for revoking modern

164 The FWC must not make a determination revoking a modern award unless the FWC is satisfied that: (a) the award is obsolete or no longer capable of operating; or (b) all the employees covered by the award are covered by a different modern award (other than the miscellaneous modern award) that is appropriate for them, or will be so covered when the revocation comes into operation. [s 164 am Act 174 of 2012 s 3 and Sch 9 items 75, 76, opn 1 Jan 2013]

[6-160] When variation determinations come into operation, other than determinations setting, varying or revoking modern award minimum wages 165 Determinations come into operation on specified day (1) A determination under this Part that varies a modern award (other than a determination that sets, varies or revokes modern award minimum wages) comes into operation on the day specified in the determination. Note 1: For when a modern award, or a revocation of a modern award, comes into operation, see section 49. Note: For when a determination under this Part setting, varying or revoking modern award minimum wages comes into operation, see section 166.

(2) The specified day must not be earlier than the day on which the determination is made, unless: (a) the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and (b) the FWC is satisfied that there are exceptional circumstances that justify specifying an earlier day. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 77, opn 1 Jan 2013]

Determinations take effect from first full pay period (3) The determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after the day the determination comes into operation. [page 270]

[6-180] When variation determinations setting, varying or revoking modern award minimum wages come into operation 166 Determinations generally come into operation on 1 July (1) A determination under this Part that sets, varies or revokes modern

award minimum wages comes into operation: (a) on 1 July in the next financial year after it is made; or (b) if it is made on 1 July in a financial year — on that day. Note: Modern award minimum wages can also be set, varied or revoked by determinations made in annual wage reviews. For when those determinations come into operation, see section 286.

FWC may specify another day of operation if appropriate (2) However, if the FWC specifies another day in the determination as the day on which it comes into operation, the determination comes into operation on that other day. The FWC must not specify another day unless it is satisfied that it is appropriate to do so. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 78–80, opn 1 Jan 2013]

(3) The specified day must not be earlier than the day on which the determination is made, unless: (a) the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and (b) the FWC is satisfied that there are exceptional circumstances that justify specifying an earlier day. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 81, opn 1 Jan 2013]

Determinations may take effect in stages (4) The FWC may specify in the determination that changes to modern award minimum wages made by the determination take effect in stages if the FWC is satisfied that it is appropriate to do so. [subs (4) am Act 174 of 2012 s 3 and Sch 9 items 82, 83, opn 1 Jan 2013]

Determinations take effect from first full pay period (5) A change to modern award minimum wages made by the determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after: (a) unless paragraph (b) applies — the day the determination comes into operation; or (b) if the determination takes effect in stages under subsection (4) — the day the change to modern award minimum wages is specified to take effect.

[6-200] Special rules relating to retrospective variations of awards 167 Application of this section (1) This section applies if a determination varying a modern award has a retrospective effect because it comes into operation under subsection 165(2) or 166(3) on a day before the day on which the determination is made. No effect on past approval of enterprise agreement or variation (2) If, before the determination was made, an enterprise agreement or a variation of an enterprise agreement was approved by the FWC, the validity of the approval is not affected by the retrospective effect of the determination. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 84, opn 1 Jan 2013]

[page 271] No creation of liability to pay pecuniary penalty for past conduct (3) If: (a) a person engaged in conduct before the determination was made; and (b) but for the retrospective effect of the determination, the conduct would not have contravened a term of the modern award or an enterprise agreement; a court must not order the person to pay a pecuniary penalty under Division 2 of Part 4-1 in relation to the conduct, on the grounds that the conduct contravened a term of the modern award or enterprise agreement. Note 1: This subsection does not affect the powers of a court to make other kinds of orders under Division 2 of Part 4-1. Note 2: A determination varying a modern award could result in a contravention of a term of an enterprise agreement because of the effect of subsection 206(2). COMMENTARY TO SECTION 167*

Derivation …. Enterprise agreement — s 167(2), (3)(b), Note 2 ….

[6-200.1] [6-200.5]

FWA — s 167(2) …. Modern award — s 167(1)(3)(b), Note 2 …. Pecuniary penalty — s 167(3) …. Outline of Section ….

[6-200.10] [6-200.15] [6-200.20] [6-200.25]

[6-200.1] Derivation The section is new. [6-200.5] Enterprise agreement — s 167(2), (3)(b), Note 2 See s 12. [6-200.10] FWA — s 167(2) See s 12. [6-200.15] Modern award — s 167(1)(3)(b), Note 2 See s 12. [6-200.20] Pecuniary penalty — s 167(3) See s 546. [6-200.25] Outline of Section The Explanatory Memorandum to the Fair Work Bill states at [637] that the section ensures that a person who has contravened a term of award or an enterprise agreement due to a retrospective amendment of the award under subcl 165(2) or 166(3) is not liable to pay a pecuniary penalty in respect of the contravention. *Editor’s note: Commentary to s 167 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[6-220]

Varied modern award must be published

168 (1) If the FWC makes a determination under this Part or Part 2-6 (which deals with minimum wages) varying a modern award, the FWC must publish the award as varied as soon as practicable. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 85, opn 1 Jan 2013]

(2) The publication may be on the FWC’s website or by any other means that the FWC considers appropriate. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 86, 87, opn 1 Jan 2013]

[page 272]

DIVISION 7 — ADDITIONAL PROVISIONS RELATING TO MODERN ENTERPRISE AWARDS [Div 7 insrt Act 55 of 2009 s 3 and Sch 6, opn 1 Jan 2010]

[6-410]

Modern enterprise awards

168A (1) This Division contains additional provisions that relate to modern enterprise awards. The provisions in this Division have effect despite anything else in this Part. (2) A modern enterprise award is a modern award that is expressed to relate to: (a) a single enterprise (or a part of a single enterprise) only; or (b) one or more enterprises, if the employers all carry on similar business activities under the same franchise and are: (i) franchisees of the same franchisor; or (ii) related bodies corporate of the same franchisor; or (iii) any combination of the above. (3) A single enterprise is: (a) a business, project or undertaking that is carried on by an employer; or (b) the activities carried on by: (i) the Commonwealth, a State or a Territory; or (ii) a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or (iii) any other body in which the Commonwealth, a State or a Territory has a controlling interest. (4) For the purposes of subsection (3), if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer. (5) For the purposes of subsection (3), if 2 or more related bodies corporate each carry on a single enterprise: (a) the bodies corporate are taken to be one employer; and (b) the single enterprises are taken to be one single enterprise. Note: However, a modern enterprise award could just relate to a part of that single enterprise.

(6) A part of a single enterprise includes, for example: (a) a geographically distinct part of the single enterprise; or

(b) a distinct operational or organisational unit within the single enterprise.

[6-430]

The modern enterprise awards objective

168B (1) What is the modern enterprise awards objective? The FWC must recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. This is the modern enterprise awards objective. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 88, opn 1 Jan 2013]

(2) When does the modern enterprise awards objective apply? The modern enterprise awards objective applies to the performance of the FWC’s functions or powers under this Act, so far as they relate to modern enterprise awards. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 89, opn 1 Jan 2013]

[page 273] (3) References to the modern awards objective A reference to the modern awards objective in this Act, other than section 134, is taken to include a reference to the modern enterprise awards objective.

[6-450] Rules about making and revoking modern enterprise awards 168C (1) Making modern enterprise awards The FWC must not, under this Part: (a) make a modern enterprise award; or (b) make a determination varying a modern award so that it becomes a modern enterprise award. Note: Modern enterprise awards can be made only in accordance with the enterprise instrument modernisation process provided for by Part 2 of Schedule 6 of the Transitional Act. [subs (1) am Act 175 of 2012 s 3 and Sch 1 item 52, opn 5 Dec 2012; Act 174 of 2012 s 3 and Sch 9 item 90, opn 1 Jan 2013]

(2) Revoking modern enterprise awards The FWC may make a determination revoking a modern enterprise award only on application under section 158. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 90, opn 1 Jan 2013]

(3) The FWC must not make a determination revoking a modern enterprise award unless the FWC is satisfied that: (a) the award is obsolete or no longer capable of operating; or (b) all the employees covered by the award will, when the revocation comes into operation, be covered by a different modern award (other than the miscellaneous modern award or a modern enterprise award) that is appropriate for them. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 91, 92, opn 1 Jan 2013]

(4) In deciding whether to make a determination revoking a modern enterprise award the FWC must take into account the following: (a) the circumstances that led to the making of the modern enterprise award; (b) the content of the modern award referred to in paragraph (3)(b); (c) the terms and conditions of employment applying in the industry in which the persons covered by the modern enterprise award operate, and the extent to which those terms and conditions are reflected in the modern enterprise award; (d) the extent to which the modern enterprise award provides enterprise-specific terms and conditions of employment; (e) the likely impact on the persons covered by the modern enterprise award, and the persons covered by the modern award referred to in paragraph (3)(b), of a decision to revoke, or not revoke, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons; (f) the views of the persons covered by the modern enterprise award; (g) any other matter prescribed by the regulations. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 93, opn 1 Jan 2013]

[6-470]

Rules about changing coverage of modern

enterprise awards 168D (1) The FWC must not make a determination varying a modern enterprise award so as to extend the coverage of the modern enterprise award so that it ceases to [page 274] be a modern enterprise award. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 94, opn 1 Jan 2013]

(2) In deciding whether to make a determination varying the coverage of a modern enterprise award in some other way, the FWC must take into account the following: (a) the circumstances that led to the making of the modern enterprise award; (b) whether there is a modern award (other than the miscellaneous modern award or a modern enterprise award) that would, but for the modern enterprise award, cover the persons covered, or proposed to be covered, by the modern enterprise award; (c) the content of the modern award referred to in paragraph (b); (d) the terms and conditions of employment applying in the industry in which the persons covered, or proposed to be covered, by the modern award operate, and the extent to which those terms and conditions are reflected in the modern enterprise award; (e) the extent to which the modern enterprise award provides enterprise-specific terms and conditions of employment; (f) the likely impact on the persons covered, or proposed to be covered, by the modern enterprise award, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the variation, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons; (g) the views of the persons covered, or proposed to be covered, by the modern enterprise award;

(h) any other matter prescribed by the regulations. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 95, opn 1 Jan 2013]

DIVISION 8 — ADDITIONAL PROVISIONS RELATING TO STATE REFERENCE PUBLIC SECTOR MODERN AWARDS [Div 8 insrt Act 54 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

[6-660] awards

State reference public sector modern

168E (1) This Division contains additional provisions that relate to State reference public sector modern awards. The provisions in this Division have effect despite anything else in this Part. (2) A State reference public sector modern award is a modern award in relation to which the following conditions are satisfied: (a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers; (b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers. (3) A State reference public sector employee is an employee: (a) who is a national system employee only because of section 30C or 30M; and (b) who is a State public sector employee as defined in section 30A or 30K. [subs (3) am Act 124 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

[page 275] (4) A State reference public sector employer is an employer: (a) that is a national system employer only because of section 30D or 30N; and

(b) that is a State public sector employer as defined in section 30A or 30K. [subs (4) am Act 124 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

[6-680] The State reference public sector modern awards objective 168F (1) The State reference public sector modern awards objective The FWC must recognise: (a) the need to facilitate arrangements for State reference public sector employers and State reference public sector employees that are appropriately adapted to the effective administration of a State; and (b) that State reference public sector modern awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to State reference public sector employers and State reference public sector employees. This is the State reference public sector modern awards objective. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 96, opn 1 Jan 2013]

(2) When does the State reference public sector modern awards objective apply? The State reference public sector modern awards objective applies to the performance of the FWC’s functions or powers under this Act, so far as they relate to State reference public sector modern awards. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 97, opn 1 Jan 2013]

(3) References to the modern awards objective A reference to the modern awards objective in this Act, other than section 134, is taken to include a reference to the State reference public sector modern awards objective.

[6-700] Making State reference public sector modern awards on application 168G (1) The FWC may make a State reference public sector modern award (the proposed award) only on application under section 158 by: (a) a State reference public sector employer; or (b) an organisation that is entitled to represent the industrial interests of

a State reference public sector employer or of a State reference public sector employee. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 98, opn 1 Jan 2013]

(2) The application must specify the employers, employees and organisations (the proposed parties) proposed to be covered by the proposed award. (3) The FWC must consider the application, and must make a State reference public sector modern award covering the proposed parties if the FWC is satisfied that: (a) the employers and organisations that are proposed parties have agreed to the making of the application; and (b) either: (i) none of the employers and employees that are proposed parties are already covered by a State reference public sector modern award; or (ii) if there are employers and employees that are proposed parties and that are already covered by a State reference public sector modern award (the current award) — it is appropriate (in accordance with section 168L) to [page 276] vary the coverage of the current award so that the employers or employees cease to be covered by the current award. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 99, 100, opn 1 Jan 2013]

(4) The FWC must not make a State reference public sector modern award otherwise than in accordance with this Division or in accordance with Part 2 of Schedule 6A to the Transitional Act. [subs (4) am Act 175 of 2012 s 3 and Sch 1 item 53, opn 5 Dec 2012; Act 174 of 2012 s 3 and Sch 9 item 101, opn 1 Jan 2013]

[6-720] State reference public sector modern awards may contain State-based differences

168H Section 154 (which deals with terms that contain State-based differences) does not apply in relation to State reference public sector modern awards.

[6-740] When State reference public sector modern awards come into operation 168J Section 49 does not apply for the purpose of determining when a State reference public sector modern award comes into operation. Instead, the modern award comes into operation on the day on which it is expressed to commence, being a day that is not earlier than the day on which the modern award is made.

[6-760] Rules about revoking State reference public sector modern awards 168K (1) The FWC may make a determination revoking a State reference public sector modern award only on application under section 158 by: (a) a State reference public sector employer; or (b) an organisation that is entitled to represent the industrial interests of a State reference public sector employer or of a State reference public sector employee. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 101, opn 1 Jan 2013]

(2) The FWC must not make a determination revoking a State reference public sector modern award unless the FWC is satisfied that: (a) the modern award is obsolete or no longer capable of operating; or (b) all the employees covered by the modern award will, when the revocation comes into operation, be covered by a different modern award (other than the miscellaneous modern award) that is appropriate for them. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 102, 103, opn 1 Jan 2013]

(3) In deciding whether to revoke a State reference public sector modern award, the FWC must take into account the following: (a) the circumstances that led to the making of the modern award;

the terms and conditions of employment applying in the industry or (b) occupation in which the persons covered by the modern award operate, and the extent to which those terms and conditions are reflected in the modern award; (c) the extent to which the modern award facilitates arrangements, and provides terms and conditions of employment, referred to in paragraphs 168F(1)(a) and (b); [page 277] (d) the likely impact on the persons covered by the modern award of a decision to revoke, or not to revoke, the modern award; (e) the views of the persons covered by the modern award; (f) any other matter prescribed by the regulations. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 104, opn 1 Jan 2013]

[6-780] Rules about varying coverage of State reference public sector modern awards 168L (1) The FWC may make a determination varying the coverage of a State reference public sector modern award only on application under section 158 by: (a) a State reference public sector employer; or (b) an organisation that is entitled to represent the industrial interests of a State reference public sector employer or of a State reference public sector employee. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 105, opn 1 Jan 2013]

(2) The FWC must not make a determination varying the coverage of a State reference public sector modern award so that it ceases to be a State reference public sector modern award. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 105, opn 1 Jan 2013]

(3) In deciding whether to make a determination varying the coverage of a State reference public sector modern award in some other way, the FWC

must take into account the following: (a) the circumstances that led to the making of the modern award; (b) the terms and conditions of employment applying in the industry or occupation in which the persons covered, or proposed to be covered, by the modern award operate, and the extent to which those terms and conditions are reflected in the modern award; (c) the likely impact on the persons covered, or proposed to be covered, by the modern award of a decision to make, or not make, the variation; (d) if the variation would result in the modern award covering one or more additional classes of employers or employees — whether it is appropriate for that modern award to cover those classes of employers or employees, as well as the classes of employers and employees that it already covers; (e) the views of the persons covered, or proposed to be covered, by the modern award; (f) any other matter prescribed by the regulations. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 106, opn 1 Jan 2013]

PART 2-4 — ENTERPRISE AGREEMENTS AGREEMENTS AND AGREEMENT MAKING

Commentary by Joe Catanzariti, Partner, Clayton Utz and Michael Byrnes, Special Counsel, Clayton Utz Joe and Michael would like to acknowledge the contributions of Rita Bhattacharya and Connie Hayllar to the preparation of this chapter. [page 278]

As of January 2014, this section is reviewed and updated by Oshie Fagir, Barrister, State Chambers. ____________________

DIVISION 1 — INTRODUCTION

[6-1020]

Guide to this Part

169 This Part 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. Division 2 deals with the making of enterprise agreements about permitted matters. An enterprise agreement (including a greenfields agreement) may be a single-enterprise agreement or a multienterprise agreement. Division 3 deals with the right of employees to be represented by a bargaining representative during bargaining for a proposed enterprise agreement. It also sets out the persons who are bargaining representatives for such agreements. Subdivision A of Division 4 deals with the approval of proposed enterprise agreements by employees and sets out when an enterprise agreement is made. Subdivision B of Division 4 deals with the approval of enterprise agreements by the FWC. The remaining Subdivisions of the Division deal with certain approval requirements, including in relation to genuine agreement by employees and the better off overall test. Division 5 deals with the mandatory terms of enterprise agreements relating to individual flexibility arrangements and consultation requirements. Division 6 deals with the base rate of pay under an enterprise agreement. Division 7 deals with the variation and termination of enterprise agreements. Division 8 provides for the FWC to facilitate bargaining by making bargaining orders, serious breach declarations, majority support determinations and scope orders. It also permits bargaining representatives to apply for the FWC to deal with bargaining disputes. Division 9 provides for the making of low-paid authorisations in relation to proposed multi-enterprise agreements. The effect of such an authorisation is that specified employers are subject to certain rules that would not otherwise apply (for example, bargaining orders that would not usually be available for multi-enterprise agreements will be available). It also permits the FWC to assist the bargaining representatives for such agreements. Division 10 deals with single interest employer authorisations. The effect of such an authorisation is that the employers specified in the authorisation are single interest employers in relation to a proposed enterprise agreement. Division 11 deals with other matters relating to enterprise agreements. [Editor’s note: Section 169 of this legislation is reproduced in this format in line with the official version.] [s 169 am Act 174 of 2012 s 3 and Sch 9 item 107, opn 1 Jan 2013]

[page 279]

[6-1040]

Meanings of employee and employer

170 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). [s 170 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY TO SECTION 170*

Derivation …. National system employee …. National system employer ….

[6-1040.1] [6-1040.5] [6-1040.10]

[6-1040.1] Derivation The section is new. [6-1040.5] National system employee See ss 12, 13, 30C. [6-1040.10] National system employer See ss 12, 14, 30D. *Editor’s note: Commentary to s 170 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[6-1060]

Objects of this Part

171 The objects of this Part are: (a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and (b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through: (i) making bargaining orders; and (ii) dealing with disputes where the bargaining representatives request assistance; and (iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.

[s 171 am Act 174 of 2012 s 3 and Sch 9 item 108, opn 1 Jan 2013]

DIVISION 2 — EMPLOYERS AND EMPLOYEES MAY MAKE ENTERPRISE AGREEMENTS

[6-1250]

Making an enterprise agreement

172 Enterprise agreements may be made about permitted matters (1) An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part: (a) matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement; (b) matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement; [page 280] (c) deductions from wages for any purpose authorised by an employee who will be covered by the agreement; (d) how the agreement will operate. Note 1: For when an enterprise agreement covers an employer, employee or employee organisation, see section 53. Note 2: An employee organisation that was a bargaining representative for a proposed enterprise agreement that is not a greenfields agreement will be covered by the agreement if the organisation notifies the FWC under section 183 that it wants to be covered. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 109, opn 1 Jan 2013; Act 156 of 2015 Sch 1 item 22, opn 27 Nov 2015]

Single-enterprise agreements (2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):

with the employees who are employed at the time the agreement is (a) made and who will be covered by the agreement; or (b) with one or more relevant employee organisations if: (i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and (ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement. Note: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

Multi-enterprise agreements (3) Two or more employers that are not all single interest employers may make an enterprise agreement (a multi-enterprise agreement): (a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or (b) with one or more relevant employee organisations if: (i) the agreement relates to a genuine new enterprise that the employers are establishing or propose to establish; and (ii) the employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement. Note: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

Greenfields agreements (4) A single-enterprise agreement made as referred to in paragraph (2)(b), or a multi-enterprise agreement made as referred to in paragraph (3)(b), is a greenfields agreement. Single interest employers (5) Two or more employers are single interest employers if: (a) the employers are engaged in a joint venture or common enterprise; or

(b) the employers are related bodies corporate; or (c) the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned. [page 281] Requirement that there be at least 2 employees (6) An enterprise agreement cannot be made with a single employee. [subs (6) insrt Act 174 of 2012 s 3 and Sch 4 item 1, opn 1 Jan 2013] COMMENTARY TO SECTION 172*

Scope or section …. Single and multi-enterprise agreements …. Single enterprise agreements: key features …. Multi-enterprise agreements: key features …. Greenfields Agreements …. Permitted matters …. Opt out clauses …. Derivation …. Bargaining representative — s 172 Note 2 …. Covers — s 172 Note 1 …. Deductions from wages s 172(1)(c) …. Employee organisation — s 172(1)(b), Note 1, Note 2, (2)(b), (3)(b) …. Employee — s 172(1)(a), (c), Note 1, (2)(a), (3)(a), (b) …. Employer — s 172(1)(a), (b), Note 1, (2)(b)(i), (ii), (3) (b)(i), (ii), (5)(a), (b), (c) …. Enterprise — s 172(2)(b)(i), (ii), (b), Note, 3(b)(i), (ii), Note, (5)(a) …. Enterprise Agreement — s 172(1), Note 1, Note 2, (2) (a), (3), (4), (5) …. FWA — s 172 Note 2 ….

[6-1250.1] [6-1250.1.5] [6-1250.2] [6-1250.2.5] [6-1250.3] [6-1250.3.5] [6-1250.4] [6-1250.5] [6-1250.10] [6-1250.15] [6-1250.20] [6-1250.25] [6-1250.30] [6-1250.35] [6-1250.40] [6-1250.45] [6-1250.50]

Genuine new enterprise — s 172(2)(b)(i), Note, 3(b)(i), Note …. Greenfields agreement — s 172(4) …. Multi-enterprise agreement — s 172(3), (4) …. Permitted matters — s 172(1) …. Related bodies corporate — s 172(5)(b) …. Single interest employer authorisation — s 172(5)(c) …. This Part — s 172(1) …. Outline of section ….

[6-1250.55] [6-1250.56] [6-1250.60] [6-1250.65] [6-1250.70] [6-1250.75] [6-1250.80] [6-1250.85]

[6-1250.1] Scope of section Pursuant to s 172 of the Fair Work Act 2009 three types of agreement may be made: Stuartholme School v Independent Education Union of Australia (2010) 192 IR 29; [2010] FWAFB 1714 at [7]. [6-1250.1.5] Single and multi-enterprise agreements An enterprise agreement made under the Fair Work Act 2009 (Cth) (FW Act) can either be a single or multi-enterprise agreement. As of 1 January 2013, the FW Act now explicitly forbids an enterprise agreement being made with only a single employee. As such, a minimum of two employees for an enterprise agreement applies (s 172(6)). [6-1250.2] Single enterprise agreements: key features A single enterprise agreement will generally be an agreement between one employer and its employees. However, there are some situations where despite the existence of two or more employer entities, because these are “single interest employers”, a single enterprise agreement will still be concluded between the employer entities and employees. The FW Act describes employers engaged in a joint venture or common [page 282] enterprise and related bodies corporate as single interest employers: s 172(5). However, the FWC also has the power to make a “single interest employer authorisation”. An example of where a number of employer entities may wish to conclude a single enterprise agreement is in franchise situations. For example, a number of employer entities may wish to conclude a single enterprise agreement in a franchise situation. [6-1250.2.5] Multi-enterprise agreements: key features A multi-enterprise agreement will be between two or more employers that are not all single interest employers and their employees: s 172(3). For example, two or more employers may wish to enter into a multi-enterprise agreement in the community services or charity sector. [6-1250.3] Greenfields Agreements The Act also provides for “Greenfields Agreements” to be concluded between employers (and any appointed representatives) and unions (s 172(2)(b) and (3)(b)). Greenfields Agreements may be either single enterprise or multi-enterprise agreements. Their defining feature is that they are created when a new enterprise is being created, and there are consequently no employees to negotiate with. It is for this reason that they are concluded with unions and they are the only type of enterprise agreement under the new laws where unions are actually a party to the

agreement. This is in contrast to Greenfields Agreements under the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), which did not require a union to be party. Unlike agreement making in the past, where an employer and its employees could elect to make either an employee collective agreement or a union collective agreement (where a union/s is/are a party to the agreement), enterprise agreements under the FW Act can only be made between the employer and its employees. Where a union is a bargaining representative in the negotiation of the enterprise agreement, the union can apply to the FWC after the agreement has been submitted to the FWC for approval, to be covered by the enterprise agreement. Written notice that the union wants to be covered by the enterprise agreement must be given to the FWC and a copy to each employer covered by the enterprise agreement, before the FWC approves the agreement: s 183. [6-1250.3.5] Permitted matters The content of an enterprise agreement has been the subject of vigorous debate in recent years. The Fair Work Act 2009 (Cth) (FW Act) has a very broad definition of the matters that an enterprise agreement is permitted to cover (s 172(1)): matters pertaining to the employment relationship between those who will be covered by the agreement as well as the relationship between the employer and unions; any deductions from wages authorised by an employee who will be covered by the agreement; and how the agreement will operate. The scope of “permitted matters” is of particular significance that extends beyond the agreement making process as industrial action is only “protected” if it is made in support of a “permitted matter”, or reasonably believed to be in support of a permitted matter: s 409. For more information about industrial action: see Ch 8. The explanatory memorandum to the FW Act indicates, that, in accordance with existing case-law, a term of an enterprise agreement will be valid if it is incidental to a permitted matter: see Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; 209 ALR 116; [2004] HCA 40; BC200405590 at [96]–[97] per McHugh J. A term that purported to require an employer to advertise all available positions internally to its employees before it could seek to engage an independent contractor to do such work did not pertain to the employment relationship: see Australian Postal Corp v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2009) 189 IR 262; [2009] FWAFB 599. [page 283] In National Union of Workers v Kagan Logistics Pty Ltd [2010] FWA 3907, Commissioner McKenna considered whether a draft agreement that included a clause about casual employees dealt only with matters “pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement”. It was submitted that aspects of the relevant clause were not “permitted matters” because they referred to employees of labour hire agencies rather than the employees of the relevant company itself. Having regard to the examples of permitted matters given in the Explanatory Memorandum of the Fair Work Bill 2008, the Commissioner determined that the relevant clause did concern the employment relationship since it could be characterised as having a nexus to the job security of the company’s own employees. Examples of job security-related provisions include: providing that agency casuals not be engaged on terms and conditions that would undercut the draft agreement and promoting permanent and direct

employment opportunities by constraining the casualisation of the workforce through the limitation on the percentage of different classes of casuals and in relation to offers of direct engagement to agency casuals who have been employed on a regular and systematic basis. [6-1250.4] Opt out clauses Following an amendment to s 194 of the FW Act effective from 1 January 2013, terms allowing an employee to opt out of an enterprise agreement, commonly referred to as “opt out clauses”, are now unlawful. The FWC is unable to approve an existing agreement which includes “a term that provides a method by which an employee or employer may elect (unilaterally or otherwise) not to be covered by the agreement” (s 194(ba)). Prior to the 1 January 2013 amendment a number of cases had considered the legality of such “opt out” clauses with varied outcomes. A Full Bench of Fair Work Australia, as it then was, in Newlands Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2011] FWAFB 7325; BC201171657 approved an enterprise agreement containing an “opt out” clause. A later five member Full Bench determined in Construction, Forestry, Mining and Energy Union v Queensland Bulk Handling Pty Ltd [2012] FWAFB 7551; (2012) 224 IR 133; BC201277078 that “opt out” clauses were not permitted. The effect of the decision in Construction, Forestry, Mining, and Energy Union v Queensland Bulk Handling Pty Ltd was vindicated by the subsequent legislative amendment. [6-1250.5] Derivation The section is loosely derived from s 356 of the Workplace Relations Act 1996 and reg 8.7 in Ch 2 of the Workplace Relations Regulations. The matters pertaining to the employment relationship formulation is of long standing. Under both the Industrial Relations Act 1988 and the Workplace Relations Act prior to 27 March 2006, collective agreements had to be about matters pertaining to the employment relationship. Since 27 March 2006, a term of a workplace agreement that was not about such matters was “prohibited content”. Between 1904 and 2006, the formula was also used in the definition of “industrial dispute” under successive Commonwealth industrial relations statutes: Explanatory Memorandum to the Fair Work Bill 2008 at [669]. [6-1250.10] Bargaining representative — s 172 Note 2 See s 12. [6-1250.15] Covers — s 172 Note 1 See s 12. [6-1250.20] Deductions from wages s 172(1)(c) Paragraph 172(1)(c) provides that agreements will be able to contain terms about deductions from wages provided that they are authorised by an employee. This would, for example, permit terms dealing with salary sacrifice, payments to superannuation or the deduction of union membership fees. This has been expressly included because courts have held that such terms may not be a permitted matter under para 172(1)(a) — see R v Portus, Ex parte Australia & New Zealand Banking Group Ltd (1972) 127 CLR 353; [1972-73] ALR 787; (1972) 46 ALJR 623; BC7200600 and Re Alcan Australia Ltd; [page 284] Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96; 123 ALR 193; 54 IR 475; BC9404638; and Explanatory Memorandum to the Fair Work Bill 2008 at [679]. [6-1250.25] Employee organisation — s 172(1)(b), Note 1, Note 2, (2)(b), (3)(b) See s 12. [6-1250.30] Employee — s 172(1)(a), (c), Note 1, (2)(a), (3)(a), (b) See s 170. [T]he employer may make the agreement with the individuals who are employed, or usually

employed, by the employer, but only to the extent that they are actually employed at the time the agreement is made. So to read s 172(2) does not have the effect of ignoring so much of the definition of “national system employee” as refers to an individual who is usually, but not immediately, employed by the employer. Rather, it recognises the legislative intention of confining, from within a broad class which include individuals who are usually, but not immediately, so employed, the relevant group to those who are employed at the time the agreement is made: National Tertiary Education Industry Union v Swinburne University of Technology (2015) 232 FCR 246; 251 IR 209; [2015] FCAFC 98; BC201506490 at [17], [38]. [6-1250.35] Employer — s 172(1)(a), (b), Note 1, (2)(b)(i), (ii), (3)(b)(i), (ii), (5)(a), (b), (c) See s 170. [6-1250.40] Enterprise — s 172(2)(b)(i), (ii), (b), Note, 3(b)(i), (ii), Note, (5)(a) See s 12. [6-1250.45] Enterprise Agreement — s 172(1), Note 1, Note 2, (2)(a), (3), (4), (5) See s 12. [6-1250.50] FWA — s 172 Note 2 See s 12. [6-1250.55] Genuine new enterprise — s 172(2)(b)(i), Note, 3(b)(i), Note The use of the word “genuine” in paras 172(2)(b) and 172(3)(b) is intended to make it clear that the enterprise must be a new enterprise rather than an existing enterprise that the employer or employers acquire, or propose to acquire, as a going concern (see the decision of the AIRC in Patrick Cargo Pty Ltd v Transport Workers’ Union of Australia (2002) 115 IR 443; Print PR920391. In other words, a genuine new enterprise is not an enterprise that has been previously carried out by another employer: Explanatory Memorandum to the Fair Work Bill 2008 at [692]. The Fair Work Commission must be satisfied that the enterprise is being established or that it is proposed to establish the enterprise: Excelior Pty Ltd [2011] FWA 2493; BC201170489. [6-1250.56] Greenfields agreement — s 172(4) A greenfields agreement is to be negotiated between an employer and relevant employee organizations there being, by definition, no employees with whom to negotiate: Australian Workers’ Union v Leighton Contractors Pty Ltd (2013) 209 FCR 191; 295 ALR 449; [2013] FCAFC 4; BC201300150 at [5]. [6-1250.60] Multi-enterprise agreement — s 172(3), (4) See s 12. [6-1250.65] Permitted matters — s 172(1) The authorities are discussed in Airport Fuel Services Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 4457; BC201070438 where the Full bench held at [22] that: In summary, from the legislation, the jurisprudence and the Explanatory Memorandum to the Fair Work Bill 2008 it can be concluded that: “Permitted matters” are “matters pertaining to the relationship between an employer that will be covered by the (enterprise) agreement and that employer’s employees who will be covered by the agreement”, “matters pertaining to the relationship between the employer … and the employee organisation … that will be covered by the agreement”, matters concerning employee authorised deductions from wages and matters concerning how the agreement will operate. [page 285] It is intended that terms relating to conditions or requirements about employing casual

employees or engaging labour hire or contractors, which sufficiently relate to employees’ job security such as a term which provided that contractors must not be engaged on terms and conditions that would undercut the enterprise agreement, would be within the scope of permitted matters which are matters pertaining to the employment relationship. It is not intended that “terms that would contain a general prohibition on the employer engaging labour hire employees or contactors” or … would be within the scope of permitted matters which are matters pertaining to the employment relationship. Terms restricting or qualifying the employer’s right to use independent contractors are not matters pertaining to the employment relationship. For a term to be about matters pertaining to the relationship between the employer and the employee organisation that will be covered by the agreement, the term needs to relate to the employee organisation’s legitimate role in representing the employees to be covered by the agreement… The distinction between terms “restricting or qualifying the right to use independent contractors” and terms relating to conditions or requirements about engaging labour hire or contractors, which “sufficiently relate to employees’ job security” may seem somewhat elusive. It is not easy to reconcile the authorities. For an agreement term to fall within paragraph 172(1)(b), the term needs to relate to the employee organisation’s legitimate role in representing the employees to be covered by the agreement: Explanatory Memorandum to the Fair Work Bill 2008 at [675]. [6-1250.70] Related bodies corporate — s 172(5)(b) See s 12. [6-1250.75] Single interest employer authorisation — s 172(5)(c) See ss 12 and 248. [6-1250.80] This Part — s 172(1) This part is 2–4. [6-1250.85] Outline of section The section defines permitted matters. That definition has a pervasive influence throughout the Act. It defines the matters the subject of protected action: s 409 and the subject of enterprise agreements: s 172. The definition is nevertheless difficult to articulate. *Editor’s note: Commentary on single, multi-enterprise and Greenfields agreement, permitted matters and Opt out clauses prepared by Joe Catanziriti, VP FWC and Michael Byrnes, Special Counsel, Clayton Utz. All other commentary to s 172 updated by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

DIVISION 3 — BARGAINING AND REPRESENTATION DURING BARGAINING

[6-1440] rights

Notice of employee representational

173 Employer to notify each employee of representational rights (1) An employer that will be covered by a proposed enterprise agreement

that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who: (a) will be covered by the agreement; and (b) is employed at the notification time for the agreement. Note: For the content of the notice, see section 174.

Notification time (2) The notification time for a proposed enterprise agreement is the time when: (a) the employer agrees to bargain, or initiates bargaining, for the agreement; or (b) a majority support determination in relation to the agreement comes into operation; or [page 286] (c) a scope order in relation to the agreement comes into operation; or (d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation. Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

When notice must be given (3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement. Notice need not be given in certain circumstances (4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement. How notices are given

(5) The regulations may prescribe how notices under subsection (1) may be given. COMMENTARY TO SECTION 173*

Derivation …. Bargaining representative — s 173(1) …. Employee — s 173(1), (2) Note, (4) …. Employer — s 173(1), (2)(a), (d), Note, (3), (4) …. Enterprise agreement — s 173(1), (2),(4) …. Greenfields agreement — s 173(1) …. Low paid authorization — s 173(2)(d) …. Majority support determination — s 173(2)(b) …. Not later than 14 days — s 173(3) …. Notice of the right to be represented — s 173(1) …. Notification time — s 173(1)(b), (2), (3), (4) …. Scope of section …. Impact of section ….

[6-1440.1] [6-1440.5] [6-1440.10] [6-1440.15] [6-1440.20] [6-1440.25] [6-1440.30] [6-1440.35] [6-1440.40] [6-1440.45] [6-1440.50] [6-1440.55] [6-1440.60]

[6-1440.1] Derivation The section is new. [6-1440.5] Bargaining representative — s 173(1) See ss 12 and 176. [6-1440.10] Employee — s 173(1), (2) Note, (4) See s 170. [6-1440.15] Employer — s 173(1), (2)(a), (d), Note, (3), (4) See s 170. [6-1440.20] Enterprise agreement — s 173(1), (2),(4) See s 12. [6-1440.25] Greenfields agreement — s 173(1) See 172(4). [6-1440.30] Low paid authorization — s 173(2)(d) See s 242. [6-1440.35] Majority support determination — s 173(2)(b) See s 236. [page 287] [6-1440.40] Not later than 14 days — s 173(3) In Transport Workers’ Union of Australia [2014] FWC 7469, VP Hatcher held at [76] that: Like s 1t74(1A), s 173(3) is expressed in mandatory language. Not only is the word “must” used to convey the requirement that the Notice must be given as soon as practicable after the notification time, but also the expression “no later than” is used to introduce the 14-day requirement. That expression, read in the context of the subsection as a whole, must be read as meaning something

equivalent to “in no circumstances after”. No other provision of the Act allows or accommodates any extension to the time allowed by s 173(3). It is not an irregularity capable of being waived under s 586(b). The language of s 173(3) therefore strongly points to invalidity being the consequence of a failure to comply. That conclusion was followed in Uniline Australia Ltd [2016] FWCFB 4969 by the majority at [103]. At [108], the Full Bench stated that: We consider that unless the Appellant took all reasonable steps to give such a Notice to each relevant employee in the form required and within the time required, it cannot be said to be a Notice as contemplated by the Act and in particular for the purposes of s 181(2) was given. It is not in contest that the Appellant took no step to give and did not give, a Notice to any employee until well after the notification time. It follows that the request by an Appellant that employees approve the Agreement was made prematurely, that is, the time for reckoning the 21 day period is yet to begin because a valid Notice had not been given. This would be the case if a Notice was not given at all. We see no reason why a Notice given some two years after the notification time should yield a different result. In a forthright dissent, VP Watson held at [46] that: The legislation encourages enterprise bargaining and agreement making. It is intended to provide a simple, flexible and fair framework for agreement making and the facilitation of enterprise agreements. The proposition that a notice issued more than 14 days after the commencement of bargaining advising employees of their representation rights renders an agreement, otherwise genuinely agreed, to be incapable of approval is demonstrably inconsistent with the statutory scheme. Indeed such a conclusion in my view is the very antithesis of a simple, flexible and fair framework. The employees may already know of their representation rights and may already have made decisions in accordance with their rights. They may have expended much time and resources to agreeing on the content of an agreement. A common sense interpretation gives weight to such considerations. A conclusion of automatic failure of a test based on a technicality fails the legal test and produces a nonsensical outcome. [6-1440.45] Notice of the right to be represented — s 173(1) The Full Bench in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (2014) 242 IR 210; [2014] FWCFB 2042 at [20] held that: As to the context, the Notice provides employees with important information about the nature of an enterprise agreement and the employees’ right to appoint a bargaining representative to assist them in bargaining for the agreement or in a matter before the Commission about bargaining for the agreement. The Notice sets out the default position for union members, that is, they will be represented by their union if they do not appoint a bargaining representative. [6-1440.50] Notification time — s 173(1)(b), (2), (3), (4) See s 173(2). [6-1440.55] Scope of section The Fair Work Act 2009 (Cth) affirms the right of employers and employees to be represented in the bargaining process. While the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) allowed employees to refuse to negotiate agreements [page 288] with unions if they preferred, the new legislation perceives a distinct role for unions in the collective bargaining process. Once it is accepted that the scope of a proposed agreement can itself be a matter for bargaining it

follows that the employer’s obligation under s 173(1) to issue a notice of representation rights in relation to a “proposed enterprise agreement” is to issue such a notice to all employees who would be covered by the broader scope of the agreement proposed by the union or the employer as the case may be: MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2010] FWAFB 6519 at [15]; (2010) 197 IR 294. Notice can be given in the manner prescribed by reg 2.04 of the Fair Work Regulations. [6-1440.60] Impact of section employers obligated to notify employees of right to be represented by a bargaining representative; and impact of this is that employers will have to negotiate with unions as to the terms and conditions of employments if employees are members of a union. If an employer agrees to or initiates bargaining for an agreement, there is an obligation to notify employees that will be covered by the agreement of their right to be represented by a bargaining representative: s 173(2)(a). An employer must also notify employees of their representation rights if the FWC has made a majority support determination, a scope order or a low-paid authorisation: s 173(2) (b), (c) and (d). In each case the notice must be given as soon as practicable and within 14 days of the employer’s decision or the FWC’s orders: s 173(3). The FWC has no discretion in relation to the obligation of employees to provide the notice of representational rights required in s 173(1); Falls Creek Resort Management [2010] FWA 2847; BC201070536. If the obligation is not complied with, an agreement cannot be approved. Case Commissioner Cambridge ruled that in order for an employer to satisfy requirements in s 173 relating to providing notice of representational rights, such notice must be given to each individual employee. With reference to the relevant provisions in both the Act and the regulations, Commissioner Cambridge emphasised the use of the words “each employee” to import a requirement of “some degree of personalisation”.This decision runs counter to a previous ruling by FWA where an employer satisfactorily satisfied the requirements in s 173 by posting the representational notice on six noticeboards throughout the workplace. Commissioner Cambridge declined to follow the previous ruling but noted that the circumstances of an employer may be relevant in determining whether it had adequately discharged itself from its obligations under s 173. See Rebel Tenpin Pty Ltd t/as Holiday Lanes & Storm Bowling Aust [2010] FWA 562; BC201070105. FW Australia (as it then was) had ruled that a failure to satisfy s 173 will necessarily lead to a conclusion that an agreement has not been genuinely agreed to by employees to be covered by it. Senior Deputy President Watson traced the connection through the fact that without notice of representational rights, employees cannot be requested to approve an agreement and thus, cannot be genuinely agreed to. Senior Deputy President Watson stated that the s 173 requirement is a “mandatory pre-requisite to the bargaining process … absent compliance with s 173, the application is incompetent”. See Dunbrae Pty Ltd t/as Global Food Equipment — Employee Collective Agreement [2009] FWA 73 at [5]. FW Australia (as it then was) has also ruled on of what the words “until at least 21 days after the day on which the last notice under s 173(1) in relation to the agreement is given” specifically mean. Having regard to the Acts Interpretation Act, Senior Deputy President Richards ruled that the first day of the 21 day period is the day after the notice is given. “That is, the first day can only be counted from the commencement of the first full day … the request

[page 289] to approve the agreement cannot take place until the commencement of the 22nd day, at the earliest”. It was also established that each day had to be a full day, including the final day … which means that the period could not conclude part of the way through the final day. See Lofa Pty Ltd ATF The Transpa Trust trading as Haycroft Workplace Solutions [2009] FWA 1348; BC200970499. *Editor’s note: Commentary to Scope of section and Impact of section prepared by Oshie Fagir, Barrister, State Chambers. All other commentary by Ian Latham, BA(Hons) LLB (ANU), Barrister.

____________________

[6-1460] Content and form of notice of employee representational rights 174 Application of this section (1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee. Notice requirements (1A) The notice must: (a) contain the content prescribed by the regulations; and (b) not contain any other content; and (c) be in the form prescribed by the regulations. [subs (1A) insrt Act 174 of 2012 s 3 and Sch 4 item 8, opn 1 Jan 2013]

(1B) When prescribing the content of the notice for the purposes of paragraph (1A)(a), the regulations must ensure that the notice complies with this section. [subs (1B) insrt Act 174 of 2012 s 3 and Sch 4 item 8, opn 1 Jan 2013]

Content of notice — employee may appoint a bargaining representative (2) The notice must specify that the employee may appoint a bargaining representative to represent the employee: (a) in bargaining for the agreement; and (b) in a matter before the FWC that relates to bargaining for the agreement.

[subs (2) am Act 174 of 2012 s 3 and Sch 9 item 110, opn 1 Jan 2013]

Content of notice — default bargaining representative (3) If subsection (4) does not apply, the notice must explain that: (a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and (b) the employee does not appoint another person as his or her bargaining representative for the agreement; the organisation will be the bargaining representative of the employee. Content of notice — bargaining representative if a low-paid authorisation is in operation (4) If a low-paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements). Content of notice — copy of instrument of appointment to be given (5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer). [page 290] Regulations may prescribe additional content and form requirements etc (6) [subs (6) rep Act 174 of 2012 s 3 and Sch 4 item 9, opn 1 Jan 2013] [s 174 am Act 174 of 2012 s 3 and Sch 4 item 7, opn 1 Jan 2013] COMMENTARY TO SECTION 174*

Notice of Representational Rights ….

[6-1460.1]

[6-1460.1] Notice of Representational Rights Following an amendment in 2012, a notice of representational rights must be in the form prescribed by the regulations and contain only the prescribed content: s 174(1A). Any modification in form or content of the notice will prevent approval of an agreement: Australian Maritime Officers’ Union, v Harbour City Ferries Pty Ltd and others [2015]

FWCFB 3337. It does not follow, however, that an employer is prevented from providing additional information together with the notice: see Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (2014) 242 IR 210; [2014] FWCFB 2042 overturning Shape Shopfitters Pty Ltd Re Shape Shopfitters Pty Ltd Enterprise Agreement 2013–2017 [2013] FWC 3161. The fact that the additional material is misleading or intimidatory will be relevant to the Commission’s assessment of whether the enterprise agreement had been “genuinely agreed” by employees, but is not a basis for finding that a Notice has not been given in accordance with the Act. *Editor’s note: Commentary to s 174 prepared by Oshie Fagir, Barrister, State Chambers.

____________________

[6-1480] Bargaining representatives for proposed enterprise agreements that are not greenfields agreements 176 Bargaining representatives (1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement: (a) an employer that will be covered by the agreement is a bargaining representative for the agreement; (b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if: (i) the employee is a member of the organisation; and (ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation — the organisation applied for the authorisation; unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or (c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement; (d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the

person as his or her bargaining representative for the agreement. [page 291] Bargaining representatives for a proposed multi-enterprise agreement if a low-paid authorisation is in operation (2) If: (a) the proposed enterprise agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation; and (b) an employee organisation applied for the authorisation; and (c) but for this subsection, the organisation would not be a bargaining representative of an employee who will be covered by the agreement; the organisation is taken to be a bargaining representative of such an employee unless: (d) the employee is a member of another employee organisation that also applied for the authorisation; or (e) the employee has appointed another person under paragraph (1)(c) as his or her bargaining representative for the agreement; or (f) the employee has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2). Requirement relating to employee organisations (3) Despite subsections (1) and (2): (a) an employee organisation; or (b) an official of an employee organisation (whether acting in that capacity or otherwise); cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement. [subs (3) subst Act 174 of 2012 s 3 and Sch 4 item 2, opn 1 Jan 2013]

Employee may appoint himself or herself (4) To avoid doubt and despite subsection (3), an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement. Note: Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229). [subs (4) am Act 174 of 2012 s 3 and Sch 4 item 3, opn 1 Jan 2013] COMMENTARY TO SECTION 176*

Appointment of a bargaining representative …. Prohibitions ….

[6-1480.1] [6-1480.5]

[6-1480.1] Appointment of a bargaining representative Importantly, unions are automatically bargaining representatives for a proposed enterprise agreement (when it is not a greenfields agreement) if an employee is to be covered by the proposed agreement, is a member of that union, and is entitled to represent the employee’s industrial interests in respect of the work to be covered by the agreement (ss 176(1)(b) and (3)). Such a union will remain a bargaining representative unless, the employee appoints another person (including himself or herself) in its place or revokes the union’s status as his or her bargaining representative (ss 176(1)(b), (4) and 178A(2)). It appears that a union’s entitlement to represent an employee will be derived from the eligibility rules that an organisation has, and any demarcation orders that have been made by the [page 292] FWC. Importantly, given the overlap that exists in coverage between various unions, it would seem that there is significant potential for demarcation disputes to arise in the process of negotiating enterprise agreements. The rights of employees to be represented by a bargaining representative, combined with the good faith bargaining requirements mean that employers will have to negotiate with unions as to the terms and conditions of employments if employees are members of a union. An employer is a bargaining representative for any proposed agreement that will cover it (s 176(1) (a)). An employer can, in writing, appoint another person to represent it (s 176(1)(d)). Pursuant to the Fair Work Amendment Act 2012, s 176(3) now provides that an employee organisation, or an official of an employee organisation (whether acting in that capacity or otherwise), for example a union or union employee, cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement. [6-1480.5] Prohibitions A 2012 amendment inserted this prohibition on a union official acting as bargaining representative for employees outside the union’s coverage, even in circumstances where the union official purported to act in a personal capacity. The amendment followed a series of cases dealing with the issue: see for example Technip Oceania Pty Ltd v Tracey [2011] FWAFB 6551.

*Editor’s note: Commentary to s 176 prepared by Oshie Fagir, Barrister, State Chambers.

____________________

[6-1490] Bargaining representatives for proposed enterprise agreements that are greenfields agreements 177 The following paragraphs set out the persons who are bargaining representatives for a proposed single-enterprise agreement that is a greenfields agreement: (a) an employer that will be covered by the agreement; (b) an employee organisation: (i) that is entitled to represent the industrial interests of one or more of the employees who will be covered by the agreement, in relation to work to be performed under the agreement; and (ii) with which the employer agrees to bargain for the agreement; (c) a person who is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement. [s 177 insrt Act 156 of 2015 Sch 1 item 23, opn 27 Nov 2015]

[6-1500] Appointment of bargaining representatives — other matters 178 When appointment of a bargaining representative comes into force (1) An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment. Copies of instruments of appointment must be given (2) A copy of an instrument of appointment of a bargaining representative for a proposed enterprise agreement must: (a) for an appointment made by an employee who will be covered by the agreement — be given to the employee’s employer; and

[page 293] (b) for an appointment made by an employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement — be given, on request, to a bargaining representative of an employee who will be covered by the agreement; and (c) for an appointment made by an employer that will be covered by a proposed single-enterprise agreement that is a greenfields agreement — be given, on request, to an employee organisation that is a bargaining representative for the agreement. [subs (2) am Act 156 of 2015 Sch 1 item 24, opn 27 Nov 2015]

Regulations may prescribe matters relating to qualifications and appointment (3) The regulations may prescribe matters relating to the qualifications or appointment of bargaining representatives.

[6-1520] Revocation of appointment of bargaining representatives etc 178A (1) The appointment of a bargaining representative for an enterprise agreement may be revoked by written instrument. (2) If a person would, apart from this subsection, be a bargaining representative of an employee for an enterprise agreement because of the operation of paragraph 176(1)(b) or subsection 176(2) (which deal with employee organisations), the employee may, by written instrument, revoke the person’s status as the employee’s bargaining representative for the agreement. (3) A copy of an instrument under subsection (1) or (2): (a) for an instrument made by an employee who will be covered by the agreement — must be given to the employee’s employer; and (b) for an instrument made by an employer that will be covered by a proposed enterprise agreement, other than a single-enterprise agreement that is a greenfields agreement — must be given to the bargaining representative and, on request, to a bargaining

representative of an employee who will be covered by the agreement. [subs (3) am Act 156 of 2015 Sch 1 item 25, opn 27 Nov 2015]

(3A) A copy of an instrument under subsection (1) made by an employer that will be covered by a proposed single-enterprise agreement that is a greenfields agreement must be given to the bargaining representative and, on request, to an employee organisation that is a bargaining representative for the agreement. [subs (3A) insrt Act 156 of 2015 Sch 1 item 26, opn 27 Nov 2015]

(4) The regulations may prescribe matters relating to the content or form of the instrument of revocation, or the manner in which the copy of the instrument may be given.

[6-1525] Notified negotiation period for a proposed single-enterprise agreement that is a greenfields agreement 178B (1) If a proposed single-enterprise agreement is a greenfields agreement, an employer that is a bargaining representative for the agreement may give written notice: (a) to each employee organisation that is a bargaining representative for the agreement; and [page 294] (b) stating that the period of 6 months beginning on a specified day is the notified negotiation period for the agreement. (2) The specified day must be later than: (a) if only one employee organisation is a bargaining representative for the agreement — the day on which the employer gave the notice to the organisation; or (b) if 2 or more employee organisations are bargaining representatives for the agreement — the last day on which the employer gave the

notice to any of those organisations. Multiple employers — agreement to giving of notice (3) If 2 or more employers are bargaining representatives for the agreement, the notice has no effect unless the other employer or employers agree to the giving of the notice. [s 178B insrt Act 156 of 2015 Sch 1 item 27, opn 27 Nov 2015]

DIVISION 4 — APPROVAL OF ENTERPRISE AGREEMENTS Subdivision A — Pre-approval steps and applications for the FWC’s approval [Subdiv A heading am Act 174 of 2012 s 3 and Sch 9 item 111, opn 1 Jan 2013]

[6-1710] Employees must be given a copy of a proposed enterprise agreement etc 180 Pre-approval requirements (1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section. Employees must be given copy of the agreement etc (2) The employer must take all reasonable steps to ensure that: (a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials: (i) the written text of the agreement; (ii) any other material incorporated by reference in the agreement; or (b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials. (3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the

agreement: (a) the time and place at which the vote will occur; (b) the voting method that will be used. (4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1). Terms of the agreement must be explained to employees etc (5) The employer must take all reasonable steps to ensure that: (a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and [page 295] (b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees. (6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph: (a) employees from culturally and linguistically diverse backgrounds; (b) young employees; (c) employees who did not have a bargaining representative for the agreement. COMMENTARY TO SECTION 180*

Access to proposed enterprise agrement — s 180(2) …. Explanation of terms of agreement to employees — s 180(5) ….

[6-1710.1] [6-1710.5]

[6-1710.1] Access to proposed enterprise agrement — s 180(2) Use of the term “throughout” in s 180(2)(b) means for the whole of the access period: Mss Security Pty Ltd [2010] FWA 3687; BC201070547. This requirement has been interpreted such that if a page is inadvertently left out, a vote would be invalid because employees would not have had the entire agreement for the whole of the access period: Mss Security Pty Ltd [2010] FWA 3687; BC201070547.

Further, “all reasonable steps” to ensure access requires more than simply providing a computer with internet access so that employees can access publicly available information; Falls Creek Resort Management [2010] FWA 2847; BC201070536. In this case, Commissioner Roe stated at [43]: … The legislation is clearly intended to require that employees be positively given the material or directed to where they can access the material without significant effort on the part of the employee being required… Lawyers and industrial relations practitioners should be aware that the use of the words “7-day period ending immediately before the start of the voting process” in s 180(4) essentially creates a requirement that employees be given access to the proposed agreement 8 days before any ballot; Mckechnie Iron Foundry Pty Ltd [2010] FWA 3171; BC201070633. This is because time must be reckoned exclusive of the date of the relevant event. [6-1710.5] Explanation of terms of agreement to employees — s 180(5) In McDonald’s Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association (2010) 196 IR 155; [2010] FWAFB 4602 at [29]–[31] a Full Bench of FWA held, in relation to s 180(5), that the test is not an absolute requirement to ensure that particular outcomes are achieved and that the section requires only that the employer take reasonable steps to ensure the terms and conditions are explained to employees. The Full Bench further noted that there is no requirement in s 180(5) for there to be a full explanation of the terms of an agreement prior to the employer requesting employees to vote on an agreement. The requirement is that the employer takes reasonable steps to ensure that explanations are provided. While the employer must comply with this requirement before requesting employees to approve the agreement, the section does not preclude employers from providing explanations during the access period and subsequent explanations can be provided. Further, the Full Bench held that there was no impediment to an employer collaborating with bargaining representatives to provide relevant information. In Glen Eden Thoroughbreds Pty Ltd t/as Ray White Shailer Park [2010] FWA 7217 at [45], Asbury C held that: … The reasonableness of the steps taken should, in my view, be considered in the context of the size of the enterprise, the demographics of the employees to whom the explanation is [page 296] provided, the type of work performed by employees and whether the proposed terms of the Agreement are new or unusual in the context of the enterprise concerned and the particular employment relationship. *Editor’s note: Commentary to s 180 prepared by Oshie Fagir, Barrister, State Chambers.

____________________

[6-1730] Employers may request employees to approve a proposed enterprise agreement 181 (1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be

covered by the agreement to approve the agreement by voting for it. (2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given. (3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method. COMMENTARY TO SECTION 181*

Derivation …. Approve the agreement — s 181(1) …. At the time — s 181(1) …. Covered — s 181(1) …. Employee — s 181(1), (3) …. Employer — s 181(1), (2), (3) …. Employed — s 181(1) …. In relation to — s 181(2) …. Notice of employee representational rights — s 181(2) …. Vote — s 181(1), (3) …. Outline of section ….

[6-1730.1] [6-1730.5] [6-1730.6] [6-1730.10] [6-1730.15] [6-1730.20] [6-1730.25] [6-1730.30] [6-1730.35] [6-1730.40] [6-1730.45]

[6-1730.1] Derivation The section is loosely derived from s 340 of Workplace Relations Act 1996 (Cth). [6-1730.5] Approve the agreement — s 181(1) The architecture of these provisions inescapably involves the perception that those who are provided with a copy of the agreement and are requested to vote, on the one hand, need not be the same as those who were, at some previous point, notified of their representational rights, on the other hand. Those to whom a request under s 181(1) should be addressed are confined, in my view, to those who are employed at that time. No other conclusion makes sense of the statutory scheme: National Tertiary Education Industry Union v Swinburne University of Technology (2015) 232 FCR 246; 251 IR 209; [2015] FCAFC 98; BC201506490 at [24]. [6-1730.6] At the time — s 181(1) The architecture of these provisions inescapably involves the perception that those who are provided with a copy of the agreement and are requested to vote, on the one hand, need not be the same as those who were, at some previous point, notified of their representational rights, on the other hand. [page 297]

Those to whom a request under s 181(1) should be addressed are confined, in my view, to those who are employed at that time. No other conclusion makes sense of the statutory scheme: National Tertiary Education Industry Union v Swinburne University of Technology (2015) 232 FCR 246; (2015) 251 IR 209; [2015] FCAFC 98; BC201506490 at [24], [38]. [6-1730.10] Covered — s 181(1) See ss 12 and 53. [6-1730.15] Employee — s 181(1), (3) See s 170. [6-1730.20] Employer — s 181(1), (2), (3) See s 170. [6-1730.25] Employed — s 181(1) Under s 14, a “national system employer” can be any one of a number of listed persons or entities (eg “a constitutional corporation”), “so far as it employs, or usually employs, an individual”. That is to say, an individual will be a national system employee as defined if he or she is usually employed by a national system employer, even if he or she is not in employment at the time to which the inquiry relates (eg he or she may be between jobs): National Tertiary Education Industry Union v Swinburne University of Technology (2015) 232 FCR 246; 251 IR 209; [2015] FCAFC 98; BC201506490 at [13]. [I]t would be inappropriate and counter intuitive to disenfranchise casual employees of a right to vote on an agreement that determines their wages and conditions on the basis that they were not rostered on to work on the day/s of the vote, or during the 7 day access period. There are obvious implications for voting manipulation adopting this approach. Swinburne is not authority for the proposition that a casual employee is only “employed at the time” they are rostered to work and are being paid. Swinburne eschewed the proposition that employed at the time included “usually employed”: McDermott Australia Pty Ltd v Australian Workers’ Union, [2016] FWCFB 2222 at [35]. [6-1730.30] In relation to — s 181(2) See [9-5050.10]. [6-1730.35] Notice of employee representational rights — s 181(2) See s 173. [6-1730.40] Vote — s 181(1), (3) The importance of the vote by employees arises as a result of s 182 of the Act which confirms that such makes the agreement for present purposes: Balfours Bakery Pty Ltd [2011] FWA 7397; BC201171218 at [16]. [T]he voting process starts when an employee is first able to cast a valid vote to approve the agreement and not at some earlier time when an employer may provide to employees the ballot paper: Australian Municipal, Administrative, Clerical and Services Union v TAB Agents Association (SA Branch) Inc (2015) 251 IR 366; [2015] FWCFB 3545 at [20]. [6-1730.45] Outline of section The Explanatory Memorandum to the Fair Work Bill 2009 makes clear at para 743 that: An employer may request employees to approve a proposed enterprise agreement by voting for it. An agreement cannot be approved by FWA unless employees have approved the agreement. *Editor’s note: Commentary to s 181 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[6-1750]

When an enterprise agreement is made

182 Single-enterprise agreement that is not a greenfields agreement (1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement. [page 298] Multi-enterprise agreement that is not a greenfields agreement (2) If: (a) a proposed enterprise agreement is a multi-enterprise agreement; and (b) the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and (c) those employees have voted on whether or not to approve the agreement; and (d) a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement; the agreement is made immediately after the end of the voting process referred to in subsection 181(1). Greenfields agreement (3) A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement). (4) If: (a) a proposed single-enterprise agreement is a greenfields agreement that has not been made under subsection (3); and (b) there has been a notified negotiation period for the agreement; and (c) the notified negotiation period has ended; and

(d) the employer or employers that were bargaining representatives for the agreement (the relevant employer or employers) gave each of the employee organisations that were bargaining representatives for the agreement a reasonable opportunity to sign the agreement; and (e) the relevant employer or employers apply to the FWC for approval of the agreement; the agreement is taken to have been made: (f) by the relevant employer or employers with each of the employee organisations that were bargaining representatives for the agreement; and (g) when the application is made to the FWC for approval of the agreement. Note: See also section 185A (material that must accompany an application). [subs (4) insrt Act 156 of 2015 Sch 1 item 28, opn 27 Nov 2015] COMMENTARY TO SECTION 182*

Derivation …. Approve — s 182(1), 2(b), (d), (g) …. Bargaining representative — s 182(4)(d), (f) …. Cover — s 182(1), 2(b), (3) …. Employee — s 182(1), (2)(b), (c), (d) …. Employee organisation — s 182(3), (4)(d), (f) …. Employer — s 182(1), (2)(b), (d), (3), (4)(d), (e), (f) …. Enterprise agreement — s 182(2)(a) …. FWC — s 182(4)(e), (g) …. Greenfields agreement — s 182(1), (3), (4)(a) …. Made — s 182(1), (2), (3), (4), (a) …. Multi-enterprise agreement — s 182(2)(a) …. Notified negotiation period — s 182(4)(b), (c) ….

[6-1750.1] [6-1750.5] [6-1750.10] [6-1750.15] [6-1750.20] [6-1750.25] [6-1750.30] [6-1750.35] [6-1750.40] [6-1750.45] [6-1750.50] [6-1750.55] [6-1750.60] [page 299]

Reasonable opportunity — s 182(4)(d) …. Single-enterprise agreement — s 182(1), (4)(a) …. Valid vote — s 182(1), (2)(d) ….

[6-1750.65] [6-1750.70] [6-1750.75]

Voting process — s 182(1), (2) …. Will be covered — s 182(1), (2)(b) …. Outline of section ….

[6-1750.80] [6-1750.85] [6-1750.90]

[6-1750.1] Derivation The section is very loosely derived from s 333 of the Workplace Relations Act 1996 (Cth). [6-1750.5] Approve — s 182(1), 2(b), (d), (g) See s 181. [6-1750.10] Bargaining representative — s 182(4)(d), (f) See ss 12, 176 and 177. [6-1750.15] Cover — s 182(1), 2(b), (3) See ss 12 and 53. [6-1750.20] Employee — s 182(1), (2)(b), (c), (d) See s 170. [6-1750.25] Employee organisation — s 182(3), (4)(d), (f) See s 12. [6-1750.30] Employer — s 182(1), (2)(b), (d), (3), (4)(d), (e), (f) See s 170. [6-1750.35] Enterprise agreement — s 182(2)(a) See s 12. [6-1750.40] FWC — s 182(4)(e), (g) See ss 12 and 575. [6-1750.45] Greenfields agreement — s 182(1), (3), (4)(a) See ss 12 and 172(4). [6-1750.50] Made — s 182(1), (2), (3), (4), (a) By s 182(1), the agreement is “made” when a majority of the employees who have been asked to approve the agreement under s 181(1), and who cast a “valid vote”, approve the agreement. This fixes the point in time at which the agreement is made for the purposes of s 172(2): National Tertiary Education Industry Union v Swinburne University of Technology (2015) 232 FCR 246; 251 IR 209; [2015] FCAFC 98; BC201506490 at [18]. The making of the agreement occurs in a technical sense at the conclusion of the vote even if the voting process has not been completed. Thus if the voting process contains a detailed procedure for the counting of votes and the formal declaration of the results of the vote the enterprise agreement is not made at the conclusion of the declaration of the vote, which may be sometime after the close of the vote but rather is made as at the date of the close of the ballot. This is so because while it may take some time to count and declare the vote, the enterprise agreement is made “when a majority of those employees who cast a valid vote approve the agreement”, and, all that the count and declaration have done is to confirm that as at the close of the ballot a majority of those employees who cast a valid vote approved the agreement: AFL Telecommunications Australia Pty Ltd [2014] FWC 7300 at [13]. [6-1750.55] Multi-enterprise agreement — s 182(2)(a) See ss 12 and 172(3). [6-1750.60] Notified negotiation period — s 182(4)(b), (c) See ss 12 and 178B. [6-1750.65] Reasonable opportunity — s 182(4)(d) The Explanatory Memorandum to the Fair Work Amendment Bill 2014 states at para 103 that: Under new paragraph 182(4)(d) an employer is required to give each employee organisation a reasonable opportunity to sign the agreement. This is intended to ensure that the agreement that an employer takes to the FWC for approval is the same (but not necessarily the last version) as was

provided during negotiations to the employee organisation. The opportunity to sign the [page 300] agreement may occur before or after the notified negotiation period ends. Whether the opportunity given to an employee organisation to sign an agreement is reasonable will depend on the facts and circumstances of bargaining. The intention is that the employee organisation would have sufficient time to consider the agreement before it is submitted to the FWC for approval. For example, a shorter consideration time could be applied where the employee organisation is already familiar with the content of the agreement. [6-1750.70] Single-enterprise agreement — s 182(1), (4)(a) See ss 12 and 172(2). [6-1750.75] Valid vote — s 182(1), (2)(d) In Teys Australia Southern Pty Ltd [2015] FWC 4865 at [9], [10], SDP Hamberger held that: The second issue that arises in the circumstances of this case is what constitutes a “valid” vote. This issue was considered by Cartwright SDP in Endeavour Petroleum. While that case was concerned with s 170LK of the Workplace Relations Act 1996 it is in my view relevant to the circumstances of this case. In Endeavour Petroleum, Cartwright SDP referred to the ordinary meaning of the words used in the expression “valid vote” and held (at paragraph [50]): Applying the ordinary meaning of the term “valid vote”, means, in my view, that a vote cast by a person ineligible to vote cannot be a valid vote, where “valid” is defined by the New Shorter Oxford Dictionary to mean “possessing legal authority; executed with the proper formalities; legally acceptable or binding” and the Macquarie Dictionary to mean “legally sound, effective or binding; having legal force; sustainable in law”. Complying with both the eligibility condition to vote and the appointed balloting procedure is implicit in the notion of casting a valid vote. [6-1750.80] Voting process — s 182(1), (2) In AFL Telecommunications Australia Pty Ltd [2014] FWC 7300 at [15], [18], Cmr Ryan held: As both sections 180(4) and 182(2) refer to “the voting process referred to in subsection 181(1)” that term must have the same meaning in both sections. Section 180(4) refers to the start of the voting process and s 182(2) refers to the end of the voting process. However the language of s 181 does not refer to a voting process but only to a request by the employer… The term “voting process” as used in s 180(4) and s 182(2) must include the systematic series of actions by which an employer initiates the request for employees to approve the agreement by voting on it, carries out the request for employees to approve the agreement by voting on it and determines the outcome of the request for employees to approve the agreement by voting on it. This must be so as the end of the process is to determine whether or not the employees approve the agreement. [6-1750.85] Will be covered — s 182(1), (2)(b) The expression “will be covered by the agreement” in s 182(1) does not indicate future likelihood but rather expresses a determinate or necessary consequence: Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union (2012) 219 IR 139; [2012] FWAFB 2206 at [51]. [6-1750.90] Outline of section An agreement is made when a valid majority of employees who are eligible to vote because they fall within the class of persons described in s 181, cast a valid vote to

approve the agreement: Swinburne University of Technology (2014) 246 IR 116; [2014] FWCFB 9023 at [37]. *Editor’s note: Commentary to s 182 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________ [page 301]

[6-1770] Entitlement of an employee organisation to have an enterprise agreement cover it 183 (1) After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give the FWC a written notice stating that the organisation wants the enterprise agreement to cover it. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 112, opn 1 Jan 2013]

(2) The notice must be given to the FWC, and a copy given to each employer covered by the enterprise agreement, before the FWC approves the agreement. Note: The FWC must note in its decision to approve the enterprise agreement that the agreement covers the employee organisation (see subsection 201(2)). [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 113, 114, opn 1 Jan 2013]

[6-1790] Multi-enterprise agreement to be varied if not all employees approve the agreement 184 Application of this section (1) This section applies if: (a) a multi-enterprise agreement is made; and (b) the agreement was not approved by the employees of all of the employers that made a request under subsection 181(1) in relation to the agreement. Variation of agreement (2) Before a bargaining representative applies under section 185 for

approval of the agreement, the bargaining representative must vary the agreement so that the agreement is expressed to cover only the following: (a) each employer whose employees approved the agreement; (b) the employees of each of those employers. (3) The bargaining representative who varies the agreement as referred to in subsection (2) must give written notice of the variation to all the other bargaining representatives for the agreement. (4) The notice must specify the employers and employees that the agreement as varied covers. (5) Subsection (3) does not require the bargaining representative to give a notice to a person if the bargaining representative does not know, or could not reasonably be expected to know, that the person is a bargaining representative for the agreement.

[6-1810] Bargaining representative must apply for the FWC’s approval of an enterprise agreement 185 Application for approval (1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 116, opn 1 Jan 2013]

[page 302] (1A) Despite subsection (1), if the agreement is a multi-enterprise agreement that is a greenfields agreement, the application must be made by: (a) an employer covered by the agreement; or (b) a relevant employee organisation that is covered by the agreement. [subs (1A) am Act 156 of 2015 Sch 1 item 29, opn 27 Nov 2015]

Material to accompany the application (2) The application must be accompanied by: (a) a signed copy of the agreement; and

(b) any declarations that are required by the procedural rules to accompany the application. When the application must be made (3) If the agreement is not a greenfields agreement, the application must be made: (a) within 14 days after the agreement is made; or (b) if in all the circumstances the FWC considers it fair to extend that period — within such further period as the FWC allows. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 117, opn 1 Jan 2013]

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made. Signature requirements (5) The regulations may prescribe requirements relating to the signing of enterprise agreements. Single-enterprise agreements that are greenfields agreements (6) This section does not apply to an agreement made under subsection 182(4). [subs (6) insrt Act 156 of 2015 Sch 1 item 30, opn 27 Nov 2015] [s 185 am Act 174 of 2012 s 3 and Sch 9 item 115, opn 1 Jan 2013] COMMENTARY TO SECTION 185*

Application for approval ….

[6-1810.1]

[6-1810.1] Application for approval The Act provides that if an application for the approval of an enterprise agreement is made under s 185, then Fair Work Australia must be satisfied of various matters before approving the agreement: Newlands Coal Pty Ltd v CFMEU [2010] FWAFB 7401 at [29]; (2010) 200 IR 5. Case The decision of the Full Court of the Federal Court in Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd [2015] FCAFC 23; BC201501118 is the most recent chapter in an unusual and long-running saga. The employer hospitals in that case engaged a Mr Subramanian as “corporate manager” responsible, among other things, for industrial relations matters. Mr Subramanian in turn, engaged a consultancy known as Service Industry Advisory Group Pty Ltd (“SIAG”) to assist in negotiating the agreements with the ANMF. Negotiations were concluded and employees voted in July 2012 to approve the agreements, which were subsequently signed by Mr Subramanian and lodged for approval. Deputy President Hamilton approved the agreements without

a hearing in August 2012. [page 303] The board of the hospitals apparently, first became aware of the agreements after they were approved. The employer hospitals then successfully challenged the approval of the agreements before a Full Bench, which found that SIAG had not been properly appointed as bargaining representative of the employers. The union then lodged the agreements, which were duly approved by Deputy President Hamilton on the basis that Subramanian had “apparent authority” within the meaning of s 793 of the Act to negotiate and sign the agreements. A Full Bench dismissed an appeal from the decision: Kaizen Hospitals (Malvern) Pty Ltd T/A Malvern Private Hospital and others [2013] FWCFB 1846 but Flick J later quashed the Full Bench and first instance decisions, finding that the agreements had not been properly approved: Kaizen Hospitals (Essendon) Pty Ltd v Australian Nursing and Midwifery Federation [2014] FCA 428; BC201403184. His Honour suggested that the approval process did not end at the point the agreement was “made” (that is, voted up by employees) but that “the power imposed by s 186(1) is not a mere power to ‘rubber stamp’ all that has gone before; the power has the hallmarks of a ‘final vetting process’ to ensure that the enterprise agreement is one which is to be ‘approved’”. On appeal the Full Court of the Federal Court reversed his Honour’s decision. The Full Court determined, first, that Subramanian did have apparent authority within the meaning of s 793 at the point of negotiating and signing the agreement; and second, that being the case, it was irrelevant that the Commission at the point of approval was aware that Subramanian did not have actual authority to sign the agreements. In Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd (2015) 228 FCR 225; [2015] FCAFC 23; BC201501118, Buchanan and Jagot JJ held that: [128] The specific requirements of s 186 must be assessed by reference to circumstances at the time the agreement is made. To conclude that the FWC is bound to exercise its approval functions under s 186(1) by reference to information as known at the date on which it is called upon to exercise the functions does not mean, in our view, that the discovery of a lack of actual authority to make an agreement after the agreement was made can affect the question whether the agreement was made with apparent authority. The validity of an application for approval must be assessed with an appreciation of the overall statutory context, and the importance in the first instance of the existence of an agreement which has been validly made. The agreement was either made with apparent authority or was not at the time it was made. If made with apparent authority at the time it was made the agreement is valid irrespective of any lack of actual authority. Subsequent discovery of the lack of actual authority cannot change that fact. [129] For this reason subsequent knowledge of the lack of actual authority, disclosed before the FWC is called upon to exercise its approval function, is irrelevant to the assessment of whether the agreement was validly made… *Editor’s note: Commentary to s 185 prepared by Oshie Fagir, Barrister, State Chambers.

____________________

[6-1815] Material that must accompany an application under subsection 182(4) for approval of a greenfields agreement 185A An application under subsection 182(4) for approval of an agreement must be accompanied by: (a) a copy of the agreement; and (b) any declarations that are required by the procedural rules to accompany the application. [s 185A insrt Act 156 of 2015 Sch 1 item 31, opn 27 Nov 2015]

[page 304]

Subdivision B — Approval of enterprise agreements by the FWC [Subdiv B Heading am Act 174 of 2012 s 3 and Sch 9 item 118, opn 1 Jan 2013]

[6-1950] When the FWC must approve an enterprise agreement — general requirements 186 Basic rule (1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met. Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190). [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 120, 121, opn 1 Jan 2013; Act 156 of 2015 Sch 1 item 32, opn 27 Nov 2015]

Requirements relating to the safety net etc (2) The FWC must be satisfied that: (a) if the agreement is not a greenfields agreement — the agreement has been genuinely agreed to by the employees covered by the

agreement; and (b) if the agreement is a multi-enterprise agreement: (i) the agreement has been genuinely agreed to by each employer covered by the agreement; and (ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and (c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and (d) the agreement passes the better off overall test. Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188. Note 2: The FWC may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189). Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 122, opn 1 Jan 2013]

Requirement that the group of employees covered by the agreement is fairly chosen (3) The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 122, opn 1 Jan 2013]

(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct. [subs (3A) am Act 174 of 2012 s 3 and Sch 9 item 123, opn 1 Jan 2013]

[page 305] Requirement that there be no unlawful terms (4) The FWC must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division). [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 124, opn 1 Jan 2013]

Requirement that there be no designated outworker terms (4A) The FWC must be satisfied that the agreement does not include any designated outworker terms. [subs (4A) am Act 174 of 2012 s 3 and Sch 9 item 124, opn 1 Jan 2013]

Requirement for a nominal expiry date etc (5) The FWC must be satisfied that: (a) the agreement specifies a date as its nominal expiry date; and (b) the date will not be more than 4 years after the day on which the FWC approves the agreement. [subs (5) am Act 174 of 2012 s 3 and Sch 9 items 125, 126, opn 1 Jan 2013]

Requirement for a term about settling disputes (6) The FWC must be satisfied that the agreement includes a term: (a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes: (i) about any matters arising under the agreement; and (ii) in relation to the National Employment Standards; and (b) that allows for the representation of employees covered by the agreement for the purposes of that procedure. Note 1: The FWC or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)). Note 2: However, this does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4). [subs (6) am Act 174 of 2012 s 3 and Sch 9 items 127–130, opn 1 Jan 2013] [s 186 am Act 174 of 2012 s 3 and Sch 9 item 119, opn 1 Jan 2013] COMMENTARY TO SECTION 186*

Derivation …. Approving enterprise agreements …. Better off overall test — s 186(2)(d), Note 2 …. Covered by the agreement — s 186(2)(a), (b)(i), (3), (3A), (6)(a), (b) …. Designated outworker terms — s 186(4A) ….

[6-1950.10] [6-1950.10.5] [6-1950.15] [6-1950.16] [6-1950.20]

Employees — s 186(2)(a), Note 1, (3), (3A), (6)(a), (b) …. Employer — s 186(b)(i), (ii), (3A), (6)(a), Note 1 …. Enterprise agreement — s 186(1) Note, (2)(b), (c), Note 1, Note 2, Note 3, (6) Note 2 …. Fairly chosen — s 186(2) Note 1, (3), (3A) …. FWC — s 186(1), Note, (2), Note 2, (3), (3A), (4), (4A), (5)(b), (6)(a), Note 1, Note 2 ….

[6-1950.25] [6-1950.30] [6-1950.35] [6-1950.40] [6-1950.45] [page 306]

Genuinely agreed — s 186(2)(a), (b)(i) Note 1 …. Geographically, operationally or organisationally distinct — s 186(3A) …. Greenfields agreement — s 186(2)(a) …. Group — s 186(3), (3A) …. Multi-enterprise agreement — s 186(2)(b) …. National Employment Standards — s 186(2)(c), Note 3, (6)(a)(ii) …. Nominal expiry date — s 186, 5(a) …. Onus of proof …. Public interest — s 186(2) Note 2 …. Reasonable business grounds — s 186(2) Note 1 …. Satisfied — s 186(2), (3), (4), (4A), (5), (6) …. Take into Account — s 186(3A) …. Was — s 186(3), (3A) …. Deemed mandatory terms …. Outline of section ….

[6-1950.50] [6-1950.55] [6-1950.60] [6-1950.65] [6-1950.70] [6-1950.75] [6-1950.80] [6-1950.85] [6-1950.90] [6-1950.91] [6-1950.95] [6-1950.100] [6-1950.105] [6-1950.105.1] [6-1950.110]

[6-1950.10] Derivation Section 186 is new. VP Lawler traced the parliamentary history of the phrase in Re ANZ Stadium Casual Employees Agreement 2009 [2010] FWAA 3758 (26 May 2010). In that case he concluded at [27] that: in particular circumstances it may not be fair to choose all of the employees of an employer as the group to be covered by an Agreement and that the relevant amendments to clauses 186, 237 and 238 reflect that recognition. [6-1950.10.5] Approving enterprise agreements Once an employer has followed the procedural steps

outlined in s 180 of the Fair Work Act 2009 (Cth) (FW Act) and made an agreement with employees, it must then be approved by the FWC: s 185(1). An application for the FWC’s approval will generally need to be made within 14 days after the agreement is made although this time-period can be extended for non-Greenfields agreements: s 185(3) and (4). If all of the requirements set out in ss 186 and 187 of the FW Act are met then the FWC must approve the enterprise agreement: s 186(1). These requirements include the FWC being satisfied that the: enterprise agreement has been genuinely agreed to by employees (and each employer if it is a multi-enterprise agreement); enterprise agreement does not exclude the National Employment Standards (NES) or parts of the NES; enterprise agreement passes the better off overall test; group of employees covered by the agreement was fairly chosen; agreement does not contain unlawful terms; agreement does not contain any designated outworker terms; agreement has a nominal expiry date of no more than 4 years after the date of FWC approval; agreement provides a dispute settling procedure; and approval is consistent with the principle of good faith bargaining (note that s 187(2) requires the FWC not to approve an enterprise agreement if doing so would be inconsistent or undermine good faith bargaining when a scope order is in operation in respect of the relevant proposed agreement). Practice Tip Practitioners must be mindful of the fact that these requirements exist in addition to the mandatory inclusion of an individual flexibility term and consultation term. [page 307] Further, there is a slight difference in the process of approval of Greenfields Agreements in that rather than considering whether employees genuinely agree to an agreement, the FWC must consider whether the employee organisations that have agreed to the agreement are entitled to represent the employees who will be covered by it (s 187(5)(a)), and whether approval is in the public interest (s 187(5)(b)). The FW Act provides for any concerns that may be raised by the FWC during the approval process to be met via the employer lodging written undertakings s 190. [6-1950.15] Better off overall test — s 186(2)(d), Note 2. See ss 12 and 193(1). A key feature of enterprise agreements under the Fair Work Act 2009 (FW Act) is the better off overall test (BOOT). This test is similar to the “no disadvantage” test that applied prior to the implementation of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). However, it appears that the current government intends for an even higher standard to be met by enterprise agreements as employers must be “better off” rather than “not disadvantaged”. An agreement must not be approved by the FWC unless, the FWC is satisfied that the employees covered by the enterprise agreement are better off overall when compared with the terms and conditions provided under the relevant modern award: s 193(1). As with the old no-disadvantage test, a public interest exception applies to agreements that do not

pass the BOOT. If approval would not be contrary to the public interest, this means that the FWC can approve an agreement that does not pass the BOOT: s 189(2). The Act notes that a “short-term business crisis” may be one circumstance where it is appropriate to approve an agreement that does not result in the employee being better off overall: s 189(3). In Re Baker Delight Certified Agreement (WA) 2003 Print PR930120; (2003) 142 IR 132, the Full Bench of the AIRC, stated (when considering s 170LT(3) of the then Workplace Relations Act 1996 (Cth) which contained the public interest exception to the no disadvantage test) at [9]: … In a curious piece of drafting, the section requires the Commission to be satisfied of a negative. Interestingly, the FW Act, like its predecessors, uses the words “not contrary to the public interest”, despite the awkward phraseology noted by the AIRC. The test should not be applied pedantically. In Rooty Hill RSL Club Ltd [2014] FWCA 2191, DP Sams summarised the authorities at [37]–[39]. He held that: [37] … It must be emphasised that an assessment of the BOOT is not a “line by line” analysis of one term or condition in the Agreement compared to its corresponding provision (or lack thereof) in the Award. As was said in Re Armacell Australia Pty Ltd (2010) 202 IR 38; [2010] FWAFB 9985 at [41]: [41] The BOOT, as the name implies, requires an overall assessment to be made. This requires the identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement. The approach adopted by the Commissioner includes an identification of terms which might, on his view of the term, be less beneficial for an employee. There is nothing on the face of the Commissioner’s decision to indicate what account if any he took of any terms which might be more beneficial for an employee. He obtained a large number of undertakings from all three employers in relation to terms which he considered undermined existing entitlements. It may be that if we applied the BOOT ourselves we might come to different conclusions to the Commissioner in relation to the number and nature of the undertakings required. To follow that course, however, would require each of the applications to be considered afresh with the necessary delay that would entail. [38] In National Tertiary Education Industry Union v University of New South Wales (2011) 210 IR 244; [2011] FWAFB 5163 (the “NTEU decision”), the Full Bench said at paras [46]–[47]: [page 308] [46] The test, as the name implies, requires an assessment of the overall benefit to an employee employed under an enterprise agreement as compared to the relevant award. This consideration does not require an assessment of the circumstances of each individual employee but, as s 193(7) allows, “… if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant award applied to that class, FWA is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee”. [47] As His Honour was well aware the Agreement contained some provisions which may be considered inferior to the counterparts provision in the Awards and provisions which were superior. There is nothing unusual about that. What he needed to satisfy himself of was whether, weighing the Agreement provisions as a whole with those in the Awards, an employee is better off overall. This, in our opinion, is clearly what His Honour did [footnotes omitted].

[39] In the NTEU decision, the Full Bench quoted from Lawler VP’s decision which was under appeal; See: University of New South Wales [2010] FWAA 9588. It is useful to highlight how His Honour described the task of assessing the BOOT. At para [96], His Honour said: [96] It is trite to observe that awards typically contain both monetary and non-monetary terms and conditions. Obviously enough, the BOOT calls for an overall assessment. Comparing monetary terms and conditions is, at the end of the day, a matter of arithmetic. There is an obvious problem of comparing apples with oranges when it comes to including changes to non-monetary terms and conditions into the “overall” assessment that is required by the BOOT. In such circumstances the Tribunal must simply do its best and make what amounts to an impressionistic assessment, albeit by taking into account any evidence about the significance to particular classes of employees covered by the Agreement of changes to particular non-monetary terms that render them less beneficial than the equivalent non-monetary term in an award. In my view, it may also be relevant to consider the terms of any existing agreement and whether there is a relevant change of position when compared to that existing agreement. Future potential minimum wage reviews are not to be taken into account. As Sams DP pointed out in Rooty Hill RSL Club Ltd [2014] FWCA 2191 at [34]: The assessment of the BOOT is at the “test time”, not at some speculative, indeterminate point in the future… [6-1950.16] Covered by the agreement — s 186(2)(a), (b)(i), (3), (3A), (6)(a), (b) See s 53. The expression “will be covered by the agreement” in s 182(1) does not indicate future likelihood but rather expresses a determinate or necessary consequence: Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) (2012) 219 IR 139; [2012] FWAFB 2206 at [51]. Objectively, the intention of the legislature in using the expression was to ensure that the employer could only make an agreement with those employees who were named or described in the agreement and whom the agreement purported to cover: Construction, Forestry, Mining and Energy Union (CFMEU) v Deputy President Hamberger (2011) 195 FCR 74; 210 IR 298; [2011] FCA 719; BC201104664 at [79]. In that case, Katzmann J, held that an agreement covered employees even though they had the ability to later opt out of the agreement. [6-1950.20] Designated outworker terms — s 186(4A) See s 12. [page 309] [6-1950.25] Employees — s 186(2)(a), Note 1, (3), (3A), (6)(a), (b) See s 170. [6-1950.30] Employer — s 186(b)(i), (ii), (3A), (6)(a), Note 1 See s 170. [6-1950.35] Enterprise agreement — s 186(1) Note, (2)(b), (c), Note 1, Note 2, Note 3, (6) Note 2 See s 12. [6-1950.40] Fairly chosen — s 186(2) Note 1, (3), (3A) The meaning of fairness is determined by its context. As the Court of Appeal quoted approvingly in Havyn Pty Ltd v Webster (2005) 12 BPR 22,837; ASAL 55-143; [2005] NSWCA 182; BC200503459 at [151]: Although fairness is a notion which can be applied to all kinds of activities, its content will depend upon the context in which it is being used. Conduct which is perfectly fair between competing businessmen may not be fair between members of a family. In some sports it may require, at best,

observance of the rules, in others (“it’s not cricket”) it may be unfair in some circumstances to take advantage of them. All is said to be fair in love and war. So the context and background are very important. In Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and others [2012] FWA 5334, the Full Bench stated at [11]–[13] that: At issue in these proceedings is the proper construction of the expression “fairly chosen” in s 186(3). The starting point is to construe the words according to their ordinary meaning having regard to their context and purpose. The words “fairly” and “chosen” have a variety of meanings, depending on the context. The Oxford Dictionary defines “chosen” to mean, among other things, “taken by preference, selected, picked out”. The word “chosen” in the context of s 186(3) simply means selected to be covered by the relevant agreement. The word “fairly” is derived from the adverb “fair” and is a word of wide import. What is fair in a particular context is largely a matter of impression and judgment. Of the various definitions of “fairly” in The Oxford Dictionary the most apt in this context are: by proper means, legitimately, impartially, justly”; and “with due regard to equity, candidly, impartially; without undue advantage on either side. In Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd [2016] FWCFB 1151, the Full Bench held at [29] that: If the group of employees to be covered by an agreement is selected on the basis that a majority section of the employees may vote to approve an agreement with terms advantageous to themselves but disadvantageous to a minority group, that may support a conclusion that the group was not fairly chosen. Justice Siopsis held in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCA 286; BC201402081 that: [34] … There is nothing in the language of s 186(3) and s 186(3A) of the Fair Work Act which conditions the exercise by Fair Work Australia of the power under s 186(3) to approve an agreement, upon Fair Work Australia being satisfied as to the number of employees who will, or may, during the term of the agreement, be covered by the agreement. [35] Accordingly, in my respectful view, in finding that it was unable to make the assessment of whether the group of employees was fairly chosen because it could not say with any certainty how many employees would, or may, be covered by the agreement throughout its term, the Full Bench misapprehended its statutory task and fell into jurisdictional error. [page 310] [36] It was common cause that there were no agreements of the kind referred to in cl 1.2 in existence at the time that the agreement was made. There was nothing unfair in including a clause which contemplated that circumstances may arise when employees who wouldotherwise have been covered by this agreement may be covered by a different agreement. However, in my view, the inclusion of a clause which contemplated a potential change in circumstances did not affect the fairness of the criteria chosen as identifying a group of employees who were, in the absence of such circumstances, to be covered by the agreement. In other words, the inclusion of cl 1.2 did not preclude Fair Work Australia from embarking upon an assessment of the fairness of the fundamental criteria specified by

the makers of the agreement. Dealing with the union’s contention that the agreement should not have been approved because it undermined collective bargaining, Siopsis J said: [37] Further, in my view, the words “was fairly chosen” in s 186(3) are not to be construed as “was chosen in a manner which would not undermine collective bargaining”. Notwithstanding the patient argument of Mr Reitano at the hearing, I am of the view that s 578(a) of the Fair Work Act does not support giving that construction to the words of s 186(3). [38] Section 578(a) relevantly provides that Fair Work Australia must, in exercising its powers, take into account any objects of the Fair Work Act and the objects of any part of the Act. However, I am of the view that the general words in s 578(a) do not permit Fair Work Australia to imbue the words of the statute with concepts which are not to be found in those words when properly construed. In my view, the proper construction of s 186(3) is informed by s 186(3A). That section prescribes the nature of the considerations to which Fair Work Australia is to have regard in exercising its power under s 186(3). Therefore, in my view, Fair Work Australia is not at liberty to exercise its s 186(3) powers on some other basis in reliance upon the general provisions in s 578(a) of the Fair Work Act. In other words, the general words in s 578(a) must yield to the specificity embodied in s 186(3A) in relation to the proper construction of the words “was fairly chosen” in s 186(3). [39] Further, there are specific provisions in Pt 2-4 of the Fair Work Act which give Fair Work Australia powers to withhold approval on grounds which reflect conduct inconsistent with the objects of Pt 2-4 identified in s 171. Thus, for example, s 187(2) permits Fair Work Australia to withhold approval for an agreement if approval would not be consistent with, or would undermine, good faith bargaining. It is significant, therefore, that there is no similar provision permitting Fair Work Australia to withhold approval on the grounds that it is of the view that the approval of the agreement would undermine collective bargaining. In the absence of that power having been conferred expressly on Fair Work Australia, it is, in my view, not open to Fair Work Australia to exercise such a power under the rubric of s 186(3) of the Fair Work Act. The decision of Siopsis J was confirmed by a Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2015] FCAFC 16; BC201500866. While acknowledging that “questions may arise about the extent to which it is “fair” for a very small group of employees to fix the terms and conditions of a larger group of employees who may be engaged during a period of years into the future”, Buchanan J (with whom Barker J agreed), nonetheless found that there was no basis to refuse approval of the agreement on the grounds that the group of employees to be covered were not fairly chosen. Besanko J, in a separate judgment, indicated broad agreement with Buchanan J subject to some caveats. In particular, he expressed a view that the effect of the agreement on collective bargaining will have a limited role in assessing whether a group of employees is fairly chosen at [3]. Three features of the factual background to the decision may be noted. Firstly, the employer operated in project-based construction environment in which the number of employees engaged would naturally ebb and flow. Secondly, there was no suggestion that there had been any [page 311] manipulation of the agreement-making procedures by the employer in this case. Thirdly, the Court did not accept as a matter of fact that the agreements did undermine collective bargaining. It is conceivable that a different result might obtain had it been demonstrated that there was some manipulation or that the agreement did undermine collective bargaining. The decision in Construction, Forestry, Mining and

Energy Union v Australian Industrial Relations Commission (1999) 93 FCR 317; 164 ALR 73; [1999] FCA 847; BC9903455 might supply an example of such a factual scenario. Finally, it might be noted that Buchanan J addressed the question of whether the group which is required to fairly chosen is the group which votes on the agreement or the group which will ultimately be covered by it. His Honour ultimately concluded at [72] (consistent with earlier authority) that, it is the latter group which is relevant. In reaching that conclusion, however, his Honour noted some practical difficulties which attended that result including that it will often be difficult or impossible to determine the composition of that group. Some of those complications were considered in Aldi Foods Pty Ltd as General Partner of Aldi Stores [2012] FWA 161; BC201271567, a decision in which Commissioner McKenna refused to approve a series of agreements on various bases including that the coverage of the agreements was apparently variable at the employer’s discretion. An appeal from the Commissioner’s decision was dismissed: ALDI Foods Pty Ltd v Transport Workers’ Union of Australia and another [2012] FWAFB 9398 with the Full Bench tentatively endorsing the Commissioner’s conclusions as to the questions of scope (at [57]–[58]). [6-1950.45] FWC — s 186(1), Note, (2), Note 2, (3), (3A), (4), (4A), (5)(b), (6)(a), Note 1, Note 2 See s 12. [6-1950.50] Genuinely agreed — s 186(2)(a), (b)(i) Note 1 See s 188. [6-1950.55] Geographically, operationally or organisationally distinct — s 186(3A) The use of the disjunctive “or” means that there is no requirement that in order to be fairly chosen the group needs to satisfy all three areas of specified potential distinction. Indeed, it is quite conceivable that a group could be fairly chosen if it was established to be only one of either geographically, operationally or organisationally distinct. Further, there is clear potential that a group could be held to have been fairly chosen even if it did not satisfy any one of the areas of specified distinction: Australian Rail, Tram and Bus Industry Union v Australian Rail Track Corporation (ARTC) [2012] FWA 6329 at [36]. The Full Bench held in Cimeco at [19]–[21] that: Given the context and the legislative history it can reasonably be assumed that if the group of employees covered by the agreement are geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen. Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen. It is important to appreciate that whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not decisive, rather it is a matter to be given due weight, having regard to all other relevant considerations. It is not appropriate to seek to exhaustively identify what might be the other relevant considerations. They will vary from case to case and will need to be demonstrated to the satisfaction of the tribunal. The word “fairly” suggests that the selection of the group was not arbitrary or discriminatory. For example, selection based upon employee characteristics such as date of employment, age or gender would be unlikely to be fair. Similarly, selection based on criteria which would have the effect of undermining collective bargaining or other legislative objectives would also be unlikely to be fair. It is also appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of employees in determining [page 312]

whether the group of employees was fairly chosen. In this regard, it is not only the interests of the employees covered by the agreement that are relevant; the interests of those employees who are excluded from the coverage of the agreement are also relevant. [6-1950.60] Greenfields agreement — s 186(2)(a) See s 12. [6-1950.65] Group — s 186(3), (3A) While the discretion is broad, the group must still be defined. Commissioner Mckenna has held in ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Ltd Partnership) [2012] FWA 161; BC201271567 at [46] (upheld on appeal in [2012] FWAFB 9398) that: the fairly chosen issue is clouded given the amorphousness of the group for each agreement. The composition of each group can be expanded or contracted at any time entirely at Aldi’s discretion, most relevantly in relation to stores employees. I have considered the TWU’s submission that as the Minchinbury Agreement group is variable at Aldi’s discretion that group is both unknown and unknowable, with the result Fair Work Australia could not be satisfied the group was fairly chosen. She ultimately preferred that submission. The commission’s view that a “group” denotes more than one employee (see Fourth Furlong Motel [2011] FWA 3256; BC201170621 at [35]) was confirmed by a legislative amendment inserting a new subs 172(6) to the effect that an enterprise agreement cannot be made with a single employee. [Refer to earlier commentary regarding opt-out clauses at 6-1250.1]. [6-1950.70] Multi-enterprise agreement — s 186(2)(b) See s 12. [6-1950.75] National Employment Standards — s 186(2)(c), Note 3, (6)(a)(ii) See s 12. [6-1950.80] Nominal expiry date — s 186, 5(a) See s 12. [6-1950.85] Onus of proof As the Full Bench stated in Royal District Nursing Service Ltd v Health Services Union; and Australian Nursing Federation [2012] FWAFB 1489; BC201271043 at [20] (1 March 2012): We note the observations of a Full Bench in Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia and Others, which said in relation to the onus of proof that: It is doubtful how far the notion of onus of proof is relevant at all to Commission proceedings. There is a respectable basis for the view that, where there is a statutory requirement for the Commission to be “satisfied” about exercising a discretion, the notion of onus of proof imports legal doctrines that should have no part in the Commission’s procedural or decisional process. This is especially so where a discretion, as in the case of section 127, is exercisable on the Commission’s own motion. In short, the Commission is either satisfied that it should exercise the discretion, or it is not. It matters little how the Commission arrives at that state of mind. Perhaps no party can be said to bear an onus in a quasi-judicial proceeding that is freed of legal technicality and is directed to the determination of a statutory discretion. Even if that view be accepted, there are ingredients of the principles associated with the notion of onus of proof that have a useful role in any adversarial proceeding. In that context, a notion of onus stems from the fact that an applicant is the party who usually has the carriage of the application and who bears the risk of failure. The applicant thus may be said to bear an onus of satisfying the Commission that an order should be made. Where a matter commences on the Commission’s own motion, no party bears any direct onus but the Commission must be satisfied that a proper basis for exercise of power in the matter is established.

[page 313] [6-1950.90] Public interest — s 186(2) Note 2 See [6-4120.40]. [6-1950.91] Reasonable business grounds — s 186(2) Note 1 See s 65(5A). [6-1950.95] Satisfied — s 186(2), (3), (4), (4A), (5), (6) The test of satisfaction was discussed in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] ALR 792; (1949) 9 ATD 5; BC4900120 at 360 (3 August 1949) where Dixon J held that: it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. [6-1950.100] Take into Account — s 186(3A) The Full Bench in Cimeco at [15]–[16] held that: To take a matter into account means that the matter is a “relevant consideration” in the PekoWallsend sense of matters which the decision maker is bound to take into account. As Wilcox J said in Re Nestle Australia Ltd v the Commissioner of Taxation of the Commonwealth [1987] FCA 157 (15 May 1987) at [13]: To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant. The term “relevant considerations” is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299; 60 ALJR 560; BC8601448 at 39 (Mason J) it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be “mandatory consideration”. Further, a matter traditionally described as an “irrelevant consideration” is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law: Lo v Chief Cmr of State Revenue [2013] NSWCA 180; BC201310211 at [9] (18 June 2013). Curiously the Act does not specify how the matters in s 186(3A) are to be taken into account. As the Full Bench stated, there seems no express test for the exercise of the discretion. In such cases, the discretion is largely unconfined except by the subject matter and scope of the legislation: Water Conservation Commission v Browning (1947) 74 CLR 492 at 504–505; [1948] 1 ALR 89; (1947) 21 ALJR 105. As SDP Richards has said: a group of employees may be fairly chosen for reason of coverage for any number of reasons, including whether they are “geographically, operationally or organisationally distinct”: The Australasian Meat Industry Employees Union v Woolworths Ltd [2009] FWA 849 at [178] (16 November 2009). It does not automatically follow that because a group of employees is geographically, operationally or organisationally distinct, that group will be fairly chosen or relatively more fairly chosen than another group: Transport Workers’ Union of Australia v Chubb Security Services Ltd [2012] FWA 2226; BC201271472 at [16] (16 March 2012). It may be that a number of groupings might be fair: United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2010) 193 IR 293; [2010] FWAFB 3009 at [55].

[page 314] The Full Bench in Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and others [2012] FWAFB 2206 at [10], described the task this way: The Tribunal’s first task under s 186(3) is to establish whether the agreement covers all of the employees of the employer(s) covered by the agreement. If all of the employees are covered then s 186(3A) is irrelevant but the Tribunal must still decide whether the group of employees covered by the agreement (ie. all of the employers’ employees) was “fairly chosen”. In some circumstances it may not be fair to choose all of the employees of an employer as the group to be covered by an agreement. If all of the employees are not covered then the Tribunal must make a finding as to whether the group of employees covered by the agreement is geographically, operationally or organisationally distinct. Absent such a finding the Tribunal cannot properly perform its statutory task. Section 186(3A) provides that the Tribunal must take that matter (ie whether the group is geographically, operationally or organisationally distinct) into account and give it due weight, having regard to all other relevant factors. Finally, the Tribunal must state its reasons for concluding that the group of employees either was or was not fairly chosen. [6-1950.105] Was — s 186(3), (3A) It is of significance that the past tense “was” is used. This directs Fair Work Australia to have regard to the conduct of those persons who made the agreement and the content of that agreement. In other words, the question is whether the parties that made the agreement acted fairly in choosing those employees to be covered by the agreement: John Holland v Construction, Forestry, Mining and Energy Union [2014] FCA 286; BC201402081 at [30]. [6-1950.105.1] Deemed mandatory terms The FWC will not approve an agreement unless it contains both a nominal expiry date of not more than 4 years after the FWC’s approval and contains a dispute settlement procedure: s 186(5) and (6). Curiously, these terms are not referred to anywhere in the FW Act as “mandatory terms”, despite the fact that an enterprise agreement cannot be approved without them. [6-1950.110] Outline of section As Cambridge C has held in Australian Rail, Tram and Bus Industry Union v Australian Rail Track Corporation (ARTC) [2012] FWA 6329 at [37]: In the context of enterprise bargaining, the issue of whether a group of employees has been fairly chosen can be a matter of great significance. The relative bargaining strengths of the parties can be significantly adjusted by any determination of the constituent group of participants. There are also practical issues often relating to business needs, costs and efficiency which may arise. The permutations that exist in respect of the dynamics, nature and extent of the bargaining arena are so varied and diverse that there is little, if any, capacity for the establishment of any general rules of engagement. The limitation upon that conduct is narrow. In the Australasian Meat Industry Employees Union v Woolworths Ltd (2010) 192 IR 23; [2010] FWAFB 1625 at [180], the AMIEU sought to carve out the group of non salaried meat unit employees across Australia. By contrast, Woolworths sought to bargain with the whole of its workforce and its other unions. SDP Richards held there that: If an employer seeks national coverage (that is of all the employees it engages) for harmonisation and efficiency reasons, that group of employees, ordinarily, would be no less fairly chosen than any other coverage proposition put by other bargaining representatives. *Editor’s note: Commentary to s 186 updated by Oshie Fagir, Barrister, State Chambers.

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[page 315]

[6-1970] When the FWC must approve an enterprise agreement — additional requirements 187 Additional requirements (1) This section sets out additional requirements that must be met before the FWC approves an enterprise agreement under section 186. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 132, opn 1 Jan 2013]

Requirement that approval not be inconsistent with good faith bargaining etc (2) The FWC must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 133, opn 1 Jan 2013]

Requirement relating to notice of variation of agreement (3) If a bargaining representative is required to vary the agreement as referred to in subsection 184(2), the FWC must be satisfied that the bargaining representative has complied with that subsection and subsection 184(3) (which deals with giving notice of the variation). [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 134, opn 1 Jan 2013]

Requirements relating to particular kinds of employees (4) The FWC must be satisfied as referred to in any provisions of Subdivision E of this Division that apply in relation to the agreement. Note: Subdivision E of this Division deals with approval requirements relating to particular kinds of employees. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 135, opn 1 Jan 2013]

Requirements relating to greenfields agreements (5) If the agreement is a greenfields agreement, the FWC must be satisfied

that: (a) the relevant employee organisations that will be covered by the agreement are (taken as a group) entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement, in relation to work to be performed under the agreement; and (b) it is in the public interest to approve the agreement. [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 136, opn 1 Jan 2013]

(6) If an agreement is made under subsection 182(4) (which deals with a single-enterprise agreement that is a greenfields agreement), the FWC must be satisfied that the agreement, considered on an overall basis, provides for pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work. Note: In considering the prevailing pay and conditions within the relevant industry for equivalent work, the FWC may have regard to the prevailing pay and conditions in the relevant geographical area. [subs (6) insrt Act 156 of 2015 Sch 1 item 33, opn 27 Nov 2015] [s 187 am Act 174 of 2012 s 3 and Sch 9 item 131, opn 1 Jan 2013]

[page 316] COMMENTARY TO SECTION 187*

Derivation …. Approve — s 187(1), (2), Note, (5)(b) …. Bargaining representatives — s 187(2), (3) …. Covered by the agreement — s 187(5)(a) …. Employee organisation — s 187(5)(a) …. Enterprise agreement — s 187(1), (2) …. Entitled to represent — s 187(5)(a) …. FWC — s 187(1), (2), (3), (4), (5) …. Good faith bargaining — s 187 (2) …. Greenfields agreement s 187(5) …. Relevant employee organisation — s 187(5)(a) …. Satisfied — s 187(2), (3), (4), (5) …. Scope order — s 187(2) ….

[6-1970.05] [6-1970.10] [6-1970.15] [6-1970.20] [6-1970.25] [6-1970.30] [6-1970.35] [6-1970.40] [6-1970.45] [6-1970.50] [6-1970.55] [6-1970.60] [6-1970.65]

Undermine good faith bargaining — s 187(2) …. Outline of section ….

[6-1970.70] [6-1970.75]

[6-1970.05] Derivation The section is new. The legislative history is set out in Killarnee Civil and Concrete Contractors Pty Ltd re Killarnee Civil & Concrete Contractors Pty Ltd — CFMEU — Gorgon Project — Barrow Island Greenfields Agreement [2011] FWAA 1147 at [29]–[32]. [6-1970.10] Approve — s 187(1), (2), Note, (5)(b) See s 112. [6-1970.15] Bargaining representatives — s 187(2), (3) See ss 12 and 176. [6-1970.20] Covered by the agreement — s 187(5)(a) See ss 12 and 53. [6-1970.25] Employee organisation — s 187(5)(a) See s 112. [6-1970.30] Enterprise agreement — s 187(1), (2) See s 112. [6-1970.35] Entitled to represent — s 187(5)(a) See [5-970.240.25]. Section 187(5)(a) requires a consideration of the industrial interests of the employees who will be covered by and perform work in relation to the Agreement and does not necessitate a broader consideration of the industrial interests of all employees to be engaged in a particular enterprise or in this case, on a particular construction contract: Australian Workers’ Union v Killarnee Civil & Concrete Contractors Pty Ltd, ITF The Thompson Family Trust and another [2011] FWAFB 4349; (2011) 212 IR 153 at [42]. [6-1970.40] FWC — s 187(1), (2), (3), (4), (5) See ss 12 and 575. [6-1970.45] Good faith bargaining — s 187 (2) See ss 12 and 228. [6-1970.50] Greenfields agreement s 187(5) See ss 12 and 172. Both FWC and the Federal Court have had to deal with objections to the approval of enterprise agreements for greenfields agreements. In John Holland Pty Ltd re John Holland Pty Ltd Wheatstone Project Agreement 2012 [2012] FWAA 7307 at [87]–[88]Williams C held at [87]–[88] that: The Objecting Unions also complains [sic] that, if the Agreement is approved: “… it will be approved without the employees that it purports to cover having any ability to influence its content.” [page 317] This of course is the effect of all greenfields agreements. They are made (and generally approved) before employees are engaged. Their terms are determined without input from employees because there are no employees. There is nothing sinister, or even surprising, about that. Indeed, the Scheme of the Act itself reflects the parliamentary intention that there be unique processes for making and approving greenfields agreements. In Killarnee Civil and Concrete Contractors Pty Ltd re Killarnee Civil & Concrete Contractors Pty Ltd — CFMEU — Gorgon Project — Barrow Island Greenfields Agreement [2011] FWAA 1147 at [33]–[34], Deputy President McCarthy held that:

It seems to me that the intention of the Parliament was to facilitate the making of greenfields agreements, whilst at the same time preventing the ability of an employer to choose to negotiate with one union rather than the other, or for a single union to frustrate the making of agreements. The provisions do not appear to me to have a purpose of a greenfields agreement being an instrument that determines coverage issues as between unions. [6-1970.55] Relevant employee organisation — s 187(5)(a) See s 112. [6-1970.60] Satisfied — s 187(2), (3), (4), (5) See [6-4120.45]. [6-1970.65] Scope order — s 187(2) See ss 12 and 238. Commissioner Cargill held in Class Electrical Services Pty Ltd and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia — re Class Electrical Services Pty Ltd Enterprise Agreement 2009 [2009] FWA 1541; BC200970737 at [128]: Section 187 sets out additional requirements which must be met before an agreement is approved. The CEPU has submitted that subsection (2) is relevant in this matter. That subsection requires FWA satisfaction that approving the agreement would not be inconsistent with or undermine good faith bargaining. However it only applies to an agreement, or proposed agreement, in relation to which there is a scope order in operation. There is no such order in relation to the Agreement so this subsection is not relevant to my determination. Likewise none of the remaining requirements of section 187 are relevant in this case. [6-1970.70] Undermine good faith bargaining — s 187(2) Neither “collective bargaining” nor “good faith” is defined by the FW Act. There are, however, a number of procedural directions and discretions in the FW Act which concern “good faith bargaining requirements” (see s 228 and following). They include facilities for bargaining representatives to seek bargaining orders, majority support determinations and scope orders: Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2015] FCAFC 16; BC201500866 at [1], [70], [87]. [6-1970.75] Outline of section The section sets out additional requirements that must be met before FWA approves an enterprise agreement. The Commission has a facilitiative role in this process. In Re McDonald’s Australia Enterprise Agreement 2009 (2010) 196 IR 155; [2010] FWAFB 4602 at [13], the Full Bench held: The appellants emphasised the facilitative aspects of these objectives. We agree that these objectives place the primary role for making enterprise agreements on the parties to those agreements and their representatives and that the role of Fair Work Australia (FWA) includes facilitating the making of enterprise agreements. In general we believe that the requirements for approval should be considered in a practical, non-technical manner and that reasonable efforts should be made to clarify matters with the parties and consider undertakings to clarify or remedy concerns to the extent that these may be available under s 190 of the Act. [page 318] The right of others to object is very limited. In Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd [2014] FWCFB 7940, the Full Bench of FWC dealt in detail with an argument that an employee organisation (the CFMEU) had a right to appear in order to oppose the making of an agreement. At [62], the Full Bench held while the organisaion had an interest in the agreement; that did not give it a right to be heard. The Full Bench concluded at [72] that:

Whether an employee organisation which is not a bargaining representative has a right to be heard in relation to an application for the approval of an agreement will depend on the circumstances in each case. In this case, when the rights, interests or expectations asserted by the CFMEU are understood in the legislative context, it is clear that the CFMEU has not established any right, interest or legitimate expectation that would be adversely affected by the decision to approve the Agreement which would give it a right to be heard. In Australian Workers’ Union v Leighton Contractors Pty Ltd (2013) 209 FCR 191; 295 ALR 449; [2013] FCAFC 4; BC201300150 at [13], Dowsett J questioned the basis for another organisation to be heard in holding: The only possible basis for allowing the applicant to be heard on these matters is that it may have now, or in the future, members who might be employed in construction work on one or other of the mine sites. That is a tenuous basis for being heard to submit that apparent contractual relationships amongst others do not constitute contracts. In similar vein, the Full Bench in Construction, Forestry, Mining and Energy Union v MGI Piling (NSW) Pty Ltd [2016] FWCFB 2654 at [31] held that the loss of the ability to be bound by an agreement (and then be able to sue for its breach) was not sufficient to give it a right to be heard. In that case, the Full Bench held that: Taking the CFMEU’s case at its highest, including the fact that the CFMEU will not have standing, in its own capacity, to sue for a breach of the new enterprise agreements (assuming they are approved), the most that could be fairly said is that the CFMEU may be affected, indirectly or consequentially, by a decision to approve the new enterprise agreements. Such an impact is not sufficient to give the CFMEU a right to be heard in the application for the new enterprise agreements. *Editor’s note: Commentary to s 187 by Oshie Fagir, Barrister, State Chambers.

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[6-1990] When employees have genuinely agreed to an enterprise agreement 188 An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that: (a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement: (i) subsections 180(2), (3) and (5) (which deal with pre-approval steps); (ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and (c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees. [s 188 am Act 174 of 2012 s 3 and Sch 9 item 137, opn 1 Jan 2013]

[page 319] COMMENTARY TO SECTION 188*

Derivation …. Covered by the agreement — s 188(a) …. Employee — s 188(a)(ii), (b), (c) …. Employer — s 188(a) …. Enterprise Agreement — s 188(a)(ii), (b) …. FWC — s 188 …. Notice of employee representational rights — s 188(a) (ii) …. Satisfied — s 188 …. Outline of section ….

[6-1990.05] [6-1990.10] [6-1990.15] [6-1990.20] [6-1990.25] [6-1990.30] [6-1990.35] [6-1990.40] [6-1990.45]

[6-1990.05] Derivation The section is new. There is some similarity with s 170LT(5) of the pre Workchoices Workplace Relations Act 1996. See at [81] and [82] of Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 9512. [6-1990.10] Covered by the agreement — s 188(a) See s 53. [6-1990.15] Employee — s 188(a)(ii), (b), (c) See s 170. [6-1990.20] Employer — s 188(a) See s 170. [6-1990.25] Enterprise Agreement — s 188(a)(ii), (b) See s 112. [6-1990.30] FWC — s 188 See ss 12 and 575. [6-1990.35] Notice of employee representational rights — s 188(a)(ii) Section 188(a) deals with whether a Notice was given in accordance with the Act (ie whether the timing, content and form requirements were met). Any concerns as to whether the employees may have misunderstood their right to be represented, despite being provided with a valid Notice, fall to be considered s 188(c): Peabody

Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (2014) 242 IR 210; [2014] FWCFB 2042 at [70]. [6-1990.40] Satisfied — s 188 See [8-1650.45]. [6-1990.45] Outline of section The Full Bench described the section in Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 9512 at [80]: Section 188 of the Act does not provide a wide general discretion for determining whether employees have genuinely agreed to an enterprise agreement focussed at the point of approval. Rather it requires specific actions to have been undertaken (in s 188(a) and (b) at specified times in advance of approval), with s 188(c) then requiring satisfaction that there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees. Section 188(c) of the Act, although itself a broad discretionary consideration, is an additional matter about which Fair Work Australia needs to be satisfied and relates to grounds other than those arising in relation to the s 188(a) and (b) matters. DP Bull held in Barrington Hospitality Pty Ltd [2016] FWCA 3825 at [12] that: Circumstances including the provision of material or information to employees which has the character of being misleading or intimidating, or where approval is affected by a material nondisclosure, or there is a scheme underpinning the agreement about which employees are not informed, will be relevant to the Commission’s assessment of whether the agreement has been genuinely agreed by the employees. [page 320] Nevertheless, as SDP Richards held in Queensland Pre-Stressing Pty Ltd v CFMEU (2012) 221 IR 390; [2012] FWA 5026; BC201274366 at [8]–[9]: It is tolerably clear that the statutory notion of genuine approval of the Agreement (as set out at s 188 of the Act) is not an analogue for good faith bargaining. This is not to say, however, that in particular circumstances or contexts, that conduct that is inconsistent with the good faith bargaining procedures set out at s 228 of the Act may cause there to be an absence of genuine approval of the proposed agreement. The Explanatory Memorandum sets out some examples of this. These examples exhibit the manner in which the procedural steps making for genuine approval … may have been disrupted in some important ways by a mischief (or even an inadvertent act) on the part of the employer in the bargaining process (to which the good faith bargaining provisions of the Act apply). Bar circumstances of this kind, and those cited in s 187(2) of the Act, deficiencies in good faith bargaining (which concern the bargaining process itself) are not applicable to findings required to be made by FWA under s 188 of the Act, which concern when employees have genuinely agreed to an enterprise agreement. Generally, the remedy for a deficiency in relation to the good faith bargaining requirements under the Act is dealt with under s 229 of the Act, which concerns applications for bargaining orders. The Commission has not settled on the level of compliance that is necessary to comply with the section. The Commission has particularly wrestled with the strictness of compliance with the provision of the notice referred to in s 173. As the Full Bench noted in National Tertiary Education Industry Union v University of New South Wales (2011) 210 IR 244; [2011] FWAFB 5163 at [17]: Nowhere in that section does FWA need to be satisfied the employer had taken all reasonable steps to give notice of representational rights under s 173 of the Act. The requirement arises in an indirect

way through the reference in s 188(a)(ii) to s 181(2) having been complied with. This provides that employees are not to be requested to approve an agreement until at least 21 days after the day on which the last notice under s 173(1) is given. As Lewin C, stated in Bland v CEVA Logistics (Aust) Pty Ltd (2011) 213 IR 418; [2011] FWAFB 7453 at [60]: This question might be described as consideration of whether s 173 is mandatory or directory in character. In Bland v CEVA Logistics (Aust) Pty Ltd [2011] FWAFB 7453, the Full Bench of the FWC considered whether the reference to s 181(2) only requires a consideration of whether a request to approve an agreement was made once 21 days were allowed to pass after the last notice of representational rights. The contrary submission was that FWA must be satisfied as to compliance with both the time-period requirement in s 181(2) and the requirement in s 173(1), ie, that the employer took “all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee” (emphasis added). SDP O’Callaghan and SDP Kaufman (Lewin C dissenting) at [42] doubted that compliance with the provisions of s 173(1) is mandatory, such that a breach of it necessarily renders an enterprise agreement void and incapable of approval. However, they suggested (at [43]) that where an employer gives inadequate notice to employees of their right to appoint a bargaining agent, and employees are thereby deprived of an opportunity to appoint a bargaining agent, this may result in there being reasonable grounds for believing that the agreement was not genuinely agreed to under s 188(c). In Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 9512 the majority stated that they believed this view to be wrong. VP Watson stated in minority at [132] by contrast that: The obligation to provide a Notice is not absolute — it is merely to take all reasonable steps. There is no ongoing obligation to provide the Notice to employees recruited after the Notice is given. The practical significance of the Notice will depend on the level of unionisation, the amount of turnover and the existing knowledge of employees about the right to representation in enterprise bargaining negotiations. [page 321] The five member Full Bench in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (2014) 242 IR 210; [2014] FWCFB 2042 seemed to resolve the matter at [45]. There, the Full Bench held that: The consequence of failing to give a Notice which complies with the content and form requirements of s 174(1A) is that the Commission cannot approve the enterprise agreement. On the other hand, a later Full Bench held in Australian Maritime Officers’ Union, The v Harbour City Ferries Pty Ltd [2015] FWCFB 3337 at [38] that: We accept that when a NERR contains, say, a minor typographical error, there may remain some room for judgment by a Commission Member as to whether it renders the notice invalid. *Editor’s note: Commentary to s 188 prepared by Oshie Fagir, Barrister, State Chambers.

____________________

[6-2010]

FWC may approve an enterprise

agreement that does not pass better off overall test — public interest test 189 Application of this section (1) This section applies if: (a) the FWC is not required to approve an enterprise agreement under section 186; and (b) the only reason for this is that the FWC is not satisfied that the agreement passes the better off overall test. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 139, opn 1 Jan 2013]

Approval of agreement if not contrary to the public interest (2) The FWC may approve the agreement under this section if the FWC is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary to the public interest. Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190). [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 140–142, opn 1 Jan 2013]

(3) An example of a case in which the FWC may be satisfied of the matter referred to in subsection (2) is where the agreement is part of a reasonable strategy to deal with a short-term crisis in, and to assist in the revival of, the enterprise of an employer covered by the agreement. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 143, opn 1 Jan 2013]

Nominal expiry date (4) The nominal expiry date of an enterprise agreement approved by the FWC under this section is the earlier of the following: (a) the date specified in the agreement as the nominal expiry date of the agreement; (b) 2 years after the day on which the FWC approved the agreement. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 143, opn 1 Jan 2013] [s 189 am Act 174 of 2012 s 3 and Sch 9 item 138, opn 1 Jan 2013] COMMENTARY TO SECTION 189*

Derivation …. Approve — s 189(1)(a), (2), Note, (4), (b) ….

[6-2010.05] [6-2010.10]

[page 322]

Better off overall test — s 189(1)(b) …. Enterprise agreement — s 189(1)(a), Note, (3), (4) …. Example — s 189(3) …. Exceptional Circumstances — s 189(2) …. FWC — s 189 — s 189(1)(a), (b), (2) Note, (3), (4), (b) …. Nominal expiry date — s 189(4), (a) …. Public Interest — s 189(2) …. Satisfied — s 189(1)(b), (2), (3) …. Outline of section ….

[6-2010.15] [6-2010.20] [6-2010.25] [6-2010.30] [6-2010.35] [6-2010.40] [6-2010.45] [6-2010.50] [6-2010.55]

[6-2010.05] Derivation The section is new. [6-2010.10] Approve — s 189(1)(a), (2), Note, (4), (b) See s 112. [6-2010.15] Better off overall test — s 189(1)(b) See [6-1950.20]. [6-2010.20] Enterprise agreement — s 189(1)(a), Note, (3), (4) See s 112. [6-2010.25] Example — s 189(3) The circumstances in which the discretion to approve an agreement on the grounds in s 189 are not limited to cases where the agreement is part of a reasonable strategy to deal with a short term crisis or to assist in the revival of an enterprise: Re Jellifish! Pty Ltd Re JelliFish! Enterprise Agreement 2012 [2012] FWA 9640 at [78]. [6-2010.30] Exceptional Circumstances — s 189(2) The power to approve an agreement under s 189(2) was considered in Top End Consulting Pty Ltd [2010] FWA 6442; BC201070239. DP Bartel’s judgement indicates that the approach to be taken under this provision is to first identify exceptional circumstances. In this regard, DP Bartel, cited the following passage from Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Servies Union of Australia v Australian Postal Corp (2007) 167 IR 4; [2007] AIRC 848 at [10]: In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. The facts in Top End Consulting Pty Ltd [2010] FWA 6442; BC201070239 involved an enterprise

agreement between a labour-hire company employer and employees in various seasonal industries. The agreement was inferior to the relevant modern award in that it provided for employees to work overtime at an inferior rate of pay to the modern award. However, this was justified on the basis that it enabled the employer to engage employees for longer hours, and from the employees’ perspective, this meant that they could maximise their hours of work. DP Bartel held (at [40]) that the fact that the employees were engaged for short periods of time as casual employees was unexceptional. However, he held at [43] that the circumstances were exceptional in that the employer operated predominantly in tropical areas and provided labour to seasonal industries, meaning that the demand for work was characterised by seasonal fluctuations. [page 323] Remoteness has been held to be an exceptional circumstances: Milingimbi & Outstations Progress Resource Association [2011] FWAA 1431 at [7]. See also [7-3120.10]. [6-2010.35] FWC — s 189 — s 189(1)(a), (b), (2) Note, (3), (4), (b) See ss 12 and 575. [6-2010.40] Nominal expiry date — s 189(4), (a) See s 112. [6-2010.45] Public Interest — s 189(2) See [6-4120.40]. In Top End Consulting Pty Ltd [2010] FWA 6442; BC201070239, Bartel DP, held at [44] that the requirement concerning the “public interest” is to be determined by making a discretionary value judgement on the relevant facts, constrained only by the subject matter and the scope and purpose of the legislation.” Moreover, the fact that s 189(2) is expressed so that the agreement must not be against the public interest was said to import a lower test than if it were necessary that the agreement be in the public interest: at [46]. So far as the agreement concerned the exceptional circumstance of employers in seasonal industries and business, it was held not to be against the public interest, thereby passing the test in s 189(2). The breadth of the discretion was explained in Agri Labour Australia Pty Ltd [2015] FWC 5332 at [24]: The requirement in s 189(2) that the Commission be satisfied that the approval of an agreement is not contrary to the public interest involves a determination of where the public interest lies. This can involve a balancing of interests including competing public interests and is a question of fact and degree. It is well settled that the public interest is broader than and separate from the interests of the parties, and although there may be overlap between the public interest and the interests of the parties, they remain distinct from each other. In Agnew Legal Pty Ltd re CLB No 1 Pty Ltd — Enterprise Agreement 2012 [2012] FWA 10861 at [12], Ashbury C held that: In my view, public interest considerations in the context of s 189 could involve deciding whether a term of an agreement sought to be approved under that provision, undermines or reduces entitlements in a modern award to the extent that members of the public whose employment is regulated by that award may have interests which are impacted by the approval of the agreement. It may also be the case that there is a public interest consideration in maintaining a level playing field among employees in a particular industry or sector. This is particularly so given that the Objects of the Act include at s 3(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.” [6-2010.50] Satisfied — s 189(1)(b), (2), (3) See [6-4120.45]. [6-2010.55] Outline of section The Explanatory Memorandum to The Fair Work Bill 2009 states at [798] that: This clause enables FWA to approve an enterprise agreement that does not pass the better off overall test if, because of exceptional circumstances, approval of the agreement would not be contrary to the public interest (subclause 189(2)). The authorities make clear that the section can only be exercised in narrow circumstances. *Editor’s note: Commentary to s 189 by Joe Catanzariti, Vice President Fair Work Commission and Michael Byrnes, Special Counsel, Clayton Utz updated by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ [page 324]

[6-2030] FWC may approve an enterprise agreement with undertakings 190 Application of this section (1) This section applies if: (a) an application for the approval of an enterprise agreement has been made under subsection 182(4) or section 185; and (b) the FWC has a concern that the agreement does not meet the requirements set out in sections 186 and 187. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 145, opn 1 Jan 2013; Act 156 of 2015 Sch 1 item 34, opn 27 Nov 2015]

Approval of agreement with undertakings (2) The FWC may approve the agreement under section 186 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 146, 147, opn 1 Jan 2013]

Undertakings (3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to: (a) cause financial detriment to any employee covered by the agreement; or (b) result in substantial changes to the agreement. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 148, 149, opn 1 Jan 2013]

FWC must seek views of bargaining representatives (4) The FWC must not accept an undertaking under subsection (3) unless the FWC has sought the views of each person who the FWC knows is a bargaining representative for the agreement. [subs (4) am Act 174 of 2012 s 3 and Sch 9 items 150–152, opn 1 Jan 2013]

Signature requirements (5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations. [s 190 am Act 174 of 2012 s 3 and Sch 9 item 144, opn 1 Jan 2013]

[6-2050]

Effect of undertakings

191 (1) If: (a) the FWC approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement; and (b) the agreement covers a single employer; the undertaking is taken to be a term of the agreement, as the agreement applies to the employer. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 153, opn 1 Jan 2013]

(2) If: (a) the FWC approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement; and (b) the agreement covers 2 or more employers;

[page 325] the undertaking is taken to be a term of the agreement, as the agreement applies to each employer that gave the undertaking. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 153, opn 1 Jan 2013]

[6-2070] When the FWC may refuse to approve an enterprise agreement 192 (1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC may refuse to approve the agreement if the FWC considers that compliance with the terms of the agreement may result in: (a) a person committing an offence against a law of the Commonwealth; or (b) a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 155, opn 1 Jan 2013; Act 156 of 2015 Sch 1 item 35, opn 27 Nov 2015]

(2) Subsection (1) has effect despite sections 186 and 189 (which deal with the approval of enterprise agreements). (3) If the FWC refuses to approve an enterprise agreement under this section, the FWC may refer the agreement to any person or body the FWC considers appropriate. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 155, opn 1 Jan 2013] [s 192 am Act 174 of 2012 s 3 and Sch 9 item 154, opn 1 Jan 2013]

Subdivision C — Better off overall test

[6-2210]

Passing the better off overall test

193 When a non-greenfields agreement passes the better off overall test (1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test

time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 155, opn 1 Jan 2013]

FWC must disregard individual flexibility arrangement (2) If, under the flexibility term in the relevant modern award, an individual flexibility arrangement has been agreed to by an award covered employee and his or her employer, the FWC must disregard the individual flexibility arrangement for the purposes of determining whether the agreement passes the better off overall test. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 156, 157, opn 1 Jan 2013]

When a greenfields agreement passes the better off overall test (3) A greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each prospective award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 157, opn 1 Jan 2013]

Award covered employee (4) An award covered employee for an enterprise agreement is an employee who: (a) is covered by the agreement; and [page 326] (b) at the test time, is covered by a modern award (the relevant modern award) that: (i) is in operation; and (ii) covers the employee in relation to the work that he or she is to perform under the agreement; and

(iii) covers his or her employer. Prospective award covered employee (5) A prospective award covered employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement: (a) would be covered by the agreement; and (b) would be covered by a modern award (the relevant modern award) that: (i) is in operation; and (ii) would cover the person in relation to the work that he or she would perform under the agreement; and (iii) covers the employer. Test time (6) The test time is the time the application for approval of the agreement by the FWC was made under subsection 182(4) or section 185. [subs (6) am Act 174 of 2012 s 3 and Sch 9 item 157, opn 1 Jan 2013; Act 156 of 2015 Sch 1 item 36, opn 27 Nov 2015]

FWC may assume employee better off overall in certain circumstances (7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee. [subs (7) am Act 174 of 2012 s 3 and Sch 9 items 158, 159, opn 1 Jan 2013] COMMENTARY TO SECTION 193*

Award covered employee — s 193(1), (2), (3), (4), (5) …. Better Off Overall Test — s 193(1), (2), (3), (7) …. Class of employees — s 193(7) …. Covers — s 193(4)(a), (b)(ii), (iii), 5(iii) …. Employee — s 193(1), (2), (3), (4), (b)(ii), (5), (7) ….

[6-2210.1] [6-2210.5] [6-2210.10] [6-2210.15] [6-2210.20]

Employer — s 193(2), (4)(b)(iii), (5), (b)(iii) …. Enterprise agreement — s 193(1), (4), (5), (7) …. Greenfields agreement — s 193(1), (3) …. FWC — s 193(1), (2), (3), (6), (7) …. If the relevant award applied — s 193(1), (3), (7) …. Individual flexibility arrangement — s 193(2) …. Modern award — s 193(1), (2), (3), 4(b), (5)(b), (7) …. Satisfied — s 193(1) …. Test time — s 193(3), (4)(b), (5), (6) …. Scope of section ….

[6-2210.25] [6-2210.30] [6-2210.35] [6-2210.40] [6-2210.45] [6-2210.50] [6-2210.55] [6-2210.60] [6-2210.65] [6-2210.70] [page 327]

[6-2210.1] Award covered employee — s 193(1), (2), (3), (4), (5) See ss 12 and 193(4). [6-2210.5] Better Off Overall Test — s 193(1), (2), (3), (7) The BOOT, as the name implies, requires an overall assessment to be made. This requires the identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement: Re Armacell Australia Pty Ltd (2010) 202 IR 38; [2010] FWAFB 9985 at [41]. It is trite to observe that awards typically contain both monetary and non-monetary terms and conditions. Obviously enough, the BOOT calls for an overall assessment. Comparing monetary terms and conditions is, at the end of the day, a matter of arithmetic. There is an obvious problem of comparing apples with oranges when it comes to including changes to non-monetary terms and conditions into the “overall” assessment that is required by the BOOT. In such circumstances the Tribunal must simply do its best and make what amounts to an impressionistic assessment, albeit by taking into account any evidence about the significance to particular classes of employees covered by the Agreement of changes to particular non-monetary terms that render them less beneficial than the equivalent non-monetary term in an award. In my view, it may also be relevant to consider the terms of any existing agreement and whether there is a relevant change of position when compared to that existing agreement: University of New South Wales re University of New South Wales (Professional Staff) Enterprise Agreement 2010 [2010] FWAA 9588 at [96]. In Top End Consulting Pty Ltd [2010] FWA 6442; BC201070239, Bartel DP noted at [26]–[28] that: The Better Off Overall Test is in slightly different terms to the no-disadvantage test in that the comparative assessment to be undertaken is not described by reference to the terms and conditions specified in an agreement and the reference instrument(s), but by reference to whether the employee would be better off overall under the agreement than the reference instrument(s). Notwithstanding this change in the wording, I am satisfied that the proper approach to the Better Off Overall Test also requires that reference be made to the terms and conditions of the relevant instruments, for the following reasons. Part 3 of the Form F17 Employer Declaration deals with comparison data and seeks information on the terms and conditions of the agreement and of the relevant reference instruments. The explanatory note at the commencement of Part 3 is as follows: [FWA must apply the better off overall test to the agreement by reference to relevant

instrument(s): see s 193 of the Fair Work Act 2009 and item 18 in Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009…] There is nothing in s 193 to suggest that the Better Off Overall Test is to be assessed by matters extraneous to the terms and conditions of the relevant instruments. The test still requires that the status of the employees as better off overall, or otherwise, is to be assessed on the basis of the application of each instrument to the employee and not the intentions of the parties as to working arrangements which may flow from those terms. In addition, the assessment of the Better Off Overall Test is to be undertaken at a particular point in time, being the “test time”. The test time is the time at which the application for approval of the agreement is made to Fair Work Australia. This reinforces that it is a comparison between the terms and conditions of employment that is to be assessed, rather than the practices and working arrangements that may flow from those terms, since the agreement cannot commence until after approval by FWA. There is a very serious potential issue that may arise when penalty rates are subsumed into a flat rate. It is not sufficient to simply compare the loaded rate to the award non penalty rate. It may be necessary to conduct an analysis of the work patterns to determine whether the BOOT test has been passed. As the Full Bench held in Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited [2016] FWCFB 2887 at [11]: [page 328] As one would expect as a matter of simple logic, the more hours that are worked during times when the Agreement rates are higher, the better off an employee will be. Conversely, the more hours worked when the Award rates are higher, the worse off the employee will be compared to the Award. In other words, if an employee works predominantly at nights or on weekends, the higher base rate under the Agreement will be counterbalanced by lower penalties payable under the Agreement at these times. [6-2210.10] Class of employees — s 193(7) The Explanatory Memorandum to the Fair Work Bill to the Fair Work Bill 2009 states at para 818 that: Although the better off overall test requires FWA to be satisfied that each award covered employee and each prospective award covered employee will be better off overall, it is intended that FWA will generally be able to apply the better off overall test to classes of employees. In the context of the approval of enterprise agreements, the better off overall test does not require FWA to enquire into each employee’s individual circumstances. [6-2210.15] Covers — s 193(4)(a), (b)(ii), (iii), 5(iii) See ss 12 and 53. [6-2210.20] Employee — s 193(1), (2), (3), (4), (b)(ii), (5), (7) See s 170. [6-2210.25] Employer — s 193(2), (4)(b)(iii), (5), (b)(iii) See s 170. [6-2210.30] Enterprise agreement — s 193(1), (4), (5), (7) See s 112. [6-2210.35] Greenfields agreement — s 193(1), (3) See ss 12 and s 172(4). [6-2210.40] FWC — s 193(1), (2), (3), (6), (7) See ss 12 and 575.

[6-2210.45] If the relevant award applied — s 193(1), (3), (7) It is not necessary for the term to be dealt within the modern award for the BOOT to apply. As the Full Bench held in Re Armacell Australia Pty Ltd (2010) 202 IR 38; [2010] FWAFB 9985 at [17]: Where an agreement contains a term in relation to a matter dealt with in the NES and which is more generous than the relevant standard, that term can be taken into account in applying the BOOT. [6-2210.50] Individual flexibility arrangement — s 193(2) See ss 12, 144, 202. [6-2210.55] Modern award — s 193(1), (2), (3), 4(b), (5)(b), (7) See s 112. [6-2210.60] Satisfied — s 193(1) See [6-1950.95]. [6-2210.65] Test time — s 193(3), (4)(b), (5), (6) Future potential minimum wage reviews are not to be taken into account. As Sams DP pointed out in Rooty Hill RSL Club Ltd [2014] FWCA 2191 at [34]: The assessment of the BOOT is at the “test time”, not at some speculative, indeterminate point in the future… [6-2210.70] Scope of section The purpose of the BOOT is to guarantee the benefit of its superior terms to employees who at that time are covered by the agreement and prospective employees who would be covered. A right to choose not to be covered is not a benefit or entitlement conferred by the agreement. It is a right to forfeit the benefits or entitlements which the agreement guarantees: Construction, Forestry, Mining and Energy Union v Deputy President Hamberger (2011) 195 FCR 74; 210 IR 298; [2011] FCA 719; BC201104664 at [91]. [page 329] A novel issue in relation to the BOOT test was considered in the decision of Glen Eden Thoroughbreds Pty Ltd t/as Ray White Shailer Park [2010] FWA 7217. The Agreement in question contained provisions dealing with post employment matters such as restraint of trade, confidential information and intellectual property. Asbury C noted that equivalent provisions were not contained in the relevant award, or in awards generally. Asbury C held at [56] that this was a relevant consideration under s 193 and that Fair Work Australia can give consideration to the question of whether, by including such terms in an enterprise agreement, employees are disadvantaged on the basis that the terms of the agreement impose an obligation or restriction on them which is not imposed under a relevant award and is not able to be imposed under any relevant common law principles which operate in conjunction with the award. Moreover, Asbury C agreed with the conclusion of Gooley C in Smith & Nephew Pty Ltd [2010] FWA 2465 at [40]–[43] that the exposure of employees to civil penalties for breach of the Agreement in respect of such provisions is a matter which is relevant to considering whether the Agreement passes the better off overall test. *Editor’s note: Commentary to s 193 updated by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

Subdivision D — Unlawful terms

[6-2350]

Meaning of unlawful term

194 A term of an enterprise agreement is an unlawful term if it is: (a) a discriminatory term; or (b) an objectionable term; or (baa) an objectionable emergency management term; or (ba) a term that provides a method by which an employee or employer may elect (unilaterally or otherwise) not to be covered by the agreement; or (c) if a particular employee would be protected from unfair dismissal under Part 3-2 after completing a period of employment of at least the minimum employment period — a term that confers an entitlement or remedy in relation to a termination of the employee’s employment that is unfair (however described) before the employee has completed that period; or (d) a term that excludes the application to, or in relation to, a person of a provision of Part 3-2 (which deals with unfair dismissal), or modifies the application of such a provision in a way that is detrimental to, or in relation to, a person; or (e) a term that is inconsistent with a provision of Part 3-3 (which deals with industrial action); or (f) a term that provides for an entitlement: (i) to enter premises for a purpose referred to in section 481 (which deals with investigation of suspected contraventions); or (ii) to enter premises to hold discussions of a kind referred to in section 484; other than in accordance with Part 3-4 (which deals with right of entry); or (g) a term that provides for the exercise of a State or Territory OHS right other than in accordance with Part 3-4 (which deals with right of entry); or (h) a term that has the effect of requiring or permitting contributions,

for the benefit of an employee (the relevant employee) covered by the agreement who is a default fund employee, to be made to a superannuation fund or scheme that is specified in the agreement but does not satisfy one of the following: (i) it is a fund that offers a MySuper product; (ii) it is a fund or scheme of which the relevant employee, and each other [page 330]

(iii)

default fund employee in relation to whom contributions are made to the fund or scheme by the same employer as the relevant employee, is a defined benefit member; it is an exempt public sector superannuation scheme.

[s 194 am Act 171 of 2012 s 3 and Sch 4 item 7, opn 1 Jan 2013; Act 174 of 2012 s 3 and Sch 4 item 4, opn 1 Jan 2013; Act 62 of 2016 s 3 and Sch 1 item 3, opn 13 Oct 2016] COMMENTARY TO SECTION 194 [6-2350.1] Scope of section An example of a case where Fair Work Australia has rejected an enterprise agreement on the basis that it contained an unlawful term is the Full Bench decision in Australian Industry Group [2010] FWAFB 4337; (2010) 196 IR 125. The case concerned s 194(f), which provides that a term is unlawful if it provides for an entitlement to enter premises for the investigation of suspected contraventions and to hold discussions with employees. These entitlements are dealt with separately in ss 481 and 484 and cannot be contained in an enterprise agreement. At first instance, Ryan C approved the Agreement, which included a clause that “entitled” authorised union representatives to “enter at all reasonable times upon the premises and to interview any employee”. Ryan C held that this term only dealt with a situation where an employer had invited a union representative to enter premises. On this basis the Commissioner differentiated the clause from the entitlements specified in ss 481 and 484, which dealt with circumstances where the permit holder enters premises without an invitation. The Australian Industry Group (AiGroup), as a “person aggrieved” by the decision under s 604(1)(a) of the Act, appealed to the Full Bench. The Full Bench held that in order for a term to be unlawful within s 194(f), the term must have three elements. It must provide an entitlement, the entitlement must be to enter premises for the purposes referred to in ss 481 or 484 and the term must purport to permit entry other than in accordance with Pt 3–4. The Full Bench had “no doubt” that the clause in the Agreement provided an entitlement, as it allowed an authorised union representative to enter premises “at any time”. As the entitlement in the clause was unrestricted by any reference to a particular purpose, the Full Bench held that it included entry for the purposes of ss 481 and 484. Finally, the provisions of Pt 3–4 established a scheme of regulation of entry to premises and these restrictions were subverted by the offending clause in the proposed agreement. Based on this reasoning, the Full Bench held that Ryan C’s decision that cl 44 was not an unlawful term was wrong and the decision approving the enterprise agreement was quashed.

[6-2350.5] Unlawful terms The unlawful terms prescribed by the FW Act are less restrictive than the “prohibited content” that existed under the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). An unlawful term is any term that (s 194): is discriminatory (unless the inherent requirements of the job mandate such discrimination (s 195)); is an “objectionable term”; provides a method by which an employee or employer may elect not to be covered by the agreement; attempts to shorten the qualifying or probationary period for entitlement to unfair dismissal remedies; excludes or modifies the application of the unfair dismissal laws to the detriment of the employee; is inconsistent with the industrial action provisions of the FW Act; or is inconsistent with right of entry rights. An “objectionable term” includes a term that requires or permits the payment of a bargaining services fee or a term that requires or permits contraventions of the general protections outlined in Pt 31 of the FW Act: s 12. [page 331] [6-2350.10] Opt out clauses Following an amendment to s 194 of the FW Act effective from 1 January 2013, terms allowing an employee to opt out of an enterprise agreements, commonly referred to as “opt out clauses”, are now unlawful and any agreement including such a term may not be approved. The amendment followed on a series of cases in which the FWC had expressed varying views in respect of the validity of such clauses. [6-2350.15] Right of entry clauses Section 194(f) has been examined in a number of cases. In Re Australian Industry Group (2010) 196 IR 125; [2010] FWAFB 4337, a full bench found that a term which permitted a union official “to enter at all reasonable times upon premises and to interview any employee, but not so as to interfere unreasonably with the Employer’s business” was unlawful. The entitlement, being unrestricted by reference to purpose, extended to entry for purposes dealt with in ss 481 and 484 of the Act. In the Australian Industry Group v ADJ Contracting Pty Ltd (2011) 213 IR 165; [2011] FWAFB 6684; BC201171098 at [68], a full bench upheld a clause which permitted a union organiser to enter the workplace “to assist with representing an employee(s) under the dispute resolution clause in [the] Agreement”. The full bench pointed out that, unlike the provision considered in the earlier decision, the clause permitted entry only for purposes related to the agreement’s dispute procedure and as such did not provide an entitlement to enter for reasons of a kind covered by ss 481 and 484. The decision of the full bench was upheld by a full court of the Federal Court: Australian Industry Group v Fair Work Australia (2012) 205 FCR 339; 228 IR 35; [2012] FCAFC 108; BC201205919.

____________________

[6-2370]

Meaning of discriminatory term

195 Discriminatory term

(1) A term of an enterprise agreement is a discriminatory term to the extent that it discriminates against an employee covered by the agreement because of, or for reasons including, the employee’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. [subs (1) am Act 98 of 2013 s 3 and Sch 1 item 63D, opn 1 Aug 2013]

Certain terms are not discriminatory terms (2) A term of an enterprise agreement does not discriminate against an employee: (a) if the reason for the discrimination is the inherent requirements of the particular position concerned; or (b) merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed: (i) in good faith; and (ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed. (3) A term of an enterprise agreement does not discriminate against an employee merely because it provides for wages for: (a) all junior employees, or a class of junior employees; or (b) all employees with a disability, or a class of employees with a disability; or (c) all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply. [page 332] COMMENTARY TO SECTION 195 [6-2370.05] Indirect discrimination In Qantas Airways Ltd [2011] FWA 3632; BC201170647 it was alleged that an agreement which gave preference to full-time employees over part-time employees discriminated against women. In obiter dicta, Commissioner Raffaelli indicated that s 195(1) may

cover both direct and indirect discrimination. The approach to be taken in considering an allegation of indirect discrimination was said to require satisfaction of the following elements (at [42]): the imposition of a condition, requirement or practice; the condition, requirement or practice has or is likely to have the effect of disadvantaging the group which is subject to alleged discrimination; the condition, requirement or practice is not reasonable in the circumstances. Commissioner Rafaelli held (at [44]) that the agreement did not discriminate against women despite the fact that the majority of part-time employees were women. This was because a majority of full-time employees were women and the number of female full-time employees exceeded the number of parttime female employees.

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[6-2375] Meaning of objectionable emergency management term 195A (1) Objectionable emergency management term term of an enterprise agreement is an objectionable emergency management term if an employer covered by the agreement is a designated emergency management body and the term has, or is likely to have, the effect of: (a) restricting or limiting the body’s ability to do any of the following: (i) engage or deploy its volunteers; (ii) provide support or equipment to those volunteers; (iii) manage its relationship with, or work with, any recognised emergency management body in relation to those volunteers; (iv) otherwise manage its operations in relation to those volunteers; or (b) requiring the body to consult, or reach agreement with, any other person or body before taking any action for the purposes of doing anything mentioned in subparagraph (a)(i), (ii), (iii) or (iv); or (c) restricting or limiting the body’s ability to recognise, value, respect or promote the contribution of its volunteers to the well-being and safety of the community; or (d) requiring or permitting the body to act other than in accordance with a law of a State or Territory, so far as the law confers or imposes on the body a power, function or duty that affects or could affect its volunteers.

(2) However, a term of an enterprise agreement is not an objectionable emergency management term if: (a) both of the following apply: (i) the term provides for the matters required by subsections 205(1) and (1A) (which deal with terms about consultation in enterprise agreements); (ii) the term does not provide for any other matter that has, or is likely to have, the effect referred to in paragraph (1)(a), (b), (c) or (d) of this section; or (b) the term is the model consultation term. (3) Paragraphs (1)(a), (b), (c) and (d) do not limit each other. [page 333] (4) Meaning of designated emergency management body A body is a designated emergency management body if: (a) either: (i) the body is, or is a part of, a fire-fighting body or a State Emergency Service of a State or Territory (however described); or (ii) the body is a recognised emergency management body that is prescribed by the regulations for the purposes of this subparagraph; and (b) the body is, or is a part of a body that is, established for a public purpose by or under a law of the Commonwealth, a State or a Territory. (5) However, a body is not a designated emergency management body if the body is, or is a part of a body that is, prescribed by the regulations for the purposes of this subsection. (6) Meaning of volunteer of a designated emergency management body A person is a volunteer of a designated emergency management body if: (a) the person engages in activities with the body on a voluntary basis

(whether or not the person directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity); and (b) the person is a member of, or has a member-like association with, the body. (7) Limited application of subsection (1) for certain terms If: (a) a term of an enterprise agreement deals to any extent with the following matters relating to provision of essential services or to situations of emergency: (i) directions to perform work (including to perform work at a particular time or place, or in a particular way); (ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way); and (b) the application of subsection (1) in relation to the term would (apart from this subsection) be beyond the Commonwealth’s legislative power to the extent that the term deals with those matters; then subsection (1) does not apply in relation to the term to that extent. Note: See paragraph (l) of the definition of excluded subject matter in subsections 30A(1) and 30K(1). [s 195A insrt Act 62 of 2016 s 3 and Sch 1 item 4, opn 13 Oct 2016]

Subdivision E — Approval requirements relating to particular kinds of employees

[6-2510]

Shiftworkers

196 Application of this section (1) This section applies if: (a) an employee is covered by an enterprise agreement; and (b) a modern award that is in operation and covers the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards. Shiftworkers and the National Employment Standards (2) The FWC must be satisfied that the agreement defines or describes the

employee as a shiftworker for the purposes of the National Employment Standards. [page 334] Note: Section 87 provides an employee with an entitlement to 5 weeks of paid annual leave if an enterprise agreement that applies to the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 160, opn 1 Jan 2013]

[6-2530] Pieceworkers — enterprise agreement includes pieceworker term 197 Application of this section (1) This section applies if: (a) an enterprise agreement that covers an employee includes a term that defines or describes the employee as a pieceworker; and (b) a modern award that is in operation and covers the employee does not include such a term. No detriment test (2) The FWC must be satisfied that the effect of including such a term in the agreement is not detrimental to the employee in relation to the entitlements of the employee under the National Employment Standards. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 160, opn 1 Jan 2013]

[6-2550] Pieceworkers — enterprise agreement does not include a pieceworker term 198 Application of this section (1) This section applies if: (a) an enterprise agreement that covers an employee does not include a term that defines or describes the employee as a pieceworker; and (b) a modern award that is in operation and covers the employee

includes such a term. No detriment test (2) The FWC must be satisfied that the effect of not including such a term in the agreement is not detrimental to the employee in relation to the entitlements of the employee under the National Employment Standards. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 160, opn 1 Jan 2013]

[6-2570] School-based apprentices and schoolbased trainees 199 Application of this section (1) This section applies if: (a) an employee who is a school-based apprentice or a school-based trainee is covered by an enterprise agreement; and (b) the agreement provides for the employee to be paid loadings (the agreement loadings) in lieu of any of the following: (i) paid annual leave; (ii) paid personal/carer’s leave; (iii) paid absence under Division 10 of Part 2-2 (which deals with public holidays); and [page 335] (c) a modern award that is in operation and covers the employee provides for the employee to be paid loadings (the award loadings) in lieu of leave or absence of that kind. (2) No detriment test The FWC must be satisfied that the amount or rate (as the case may be) of the agreement loadings is not detrimental to the employee when compared to the amount or rate of the award loadings. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 160, opn 1 Jan 2013]

[6-2590]

Outworkers

200 Application of this section (1) This section applies if: (a) an employee who is an outworker is covered by an enterprise agreement; and (b) a modern award that is in operation and covers the employee includes outworker terms. Agreement must include outworker terms etc (2) The FWC must be satisfied that: (a) the agreement includes terms of that kind; and (b) those terms of the agreement are not detrimental to the employee in any respect when compared to the outworker terms of the modern award. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 160, opn 1 Jan 2013]

Subdivision F — Other matters

[6-2730] matters

Approval decision to note certain

201 Approval decision to note model terms included in an enterprise agreement (1) If: (a) the FWC approves an enterprise agreement; and (b) either or both of the following apply: (i) the model flexibility term is taken, under subsection 202(4), to be a term of the agreement; (ii) the model consultation term is taken, under subsection 205(2), to be a term of the agreement; the FWC must note in its decision to approve the agreement that those terms are so included in the agreement. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 161, opn 1 Jan 2013]

Approval decision to note that an enterprise agreement covers an

employee organisation (2) If: (a) an employee organisation has given a notice under subsection 183(1) that the organisation wants the enterprise agreement to cover it; and (b) the FWC approves the agreement; the FWC must note in its decision to approve the agreement that the agreement covers the organisation. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 161, opn 1 Jan 2013]

[page 336] (2A) If: (a) an agreement is made under subsection 182(4) (which deals with a single-enterprise agreement that is a greenfields agreement); and (b) the FWC approves the agreement; the FWC must note in its decision to approve the agreement that the agreement covers each employee organisation that was a bargaining representative for the agreement. [subs (2A) insrt Act 156 of 2015 Sch 1 item 37, opn 27 Nov 2015]

Approval decision to note undertakings (3) If the FWC approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement, the FWC must note in its decision to approve the agreement that the undertaking is taken to be a term of the agreement. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 161, opn 1 Jan 2013]

DIVISION 5 — MANDATORY TERMS OF ENTERPRISE AGREEMENTS

[6-2920]

Enterprise agreements to include a

flexibility term etc 202 Flexibility term must be included in an enterprise agreement (1) An enterprise agreement must include a term (a flexibility term) that: (a) enables an employee and his or her employer to agree to an arrangement (an individual flexibility arrangement) varying the effect of the agreement in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer; and (b) complies with section 203. Effect of an individual flexibility arrangement (2) If an employee and employer agree to an individual flexibility arrangement under a flexibility term in an enterprise agreement: (a) the agreement has effect in relation to the employee and the employer as if it were varied by the arrangement; and (b) the arrangement is taken to be a term of the agreement. (3) To avoid doubt, the individual flexibility arrangement: (a) does not change the effect the agreement has in relation to the employer and any other employee; and (b) does not have any effect other than as a term of the agreement. Model flexibility term (4) If an enterprise agreement does not include a flexibility term, the model flexibility term is taken to be a term of the agreement. (5) The regulations must prescribe the model flexibility term for enterprise agreements. COMMENTARY TO SECTION 202*

Derivation …. Effect — s 202(1)(a), (2)(a), (3)(a),(b) ….

[6-2920.05] [6-2920.10] [page 337]

Employee — s 202(1)(a), (2)(a), (3)(a) ….

[6-2920.15]

Employer — s 202(1)(a), (2)(a), (3)(a) …. Enterprise agreement —s 202(1), (2), (4), (5) …. Must include — s 202(1) …. Mandatory terms under the FW Act …. Scope of section …. Varied — s 202(2)(a) …. Outline of section ….

[6-2920.20] [6-2920.25] [6-2920.35] [6-2920.35.1] [6-2920.40] [6-2920.45] [6-2920.50]

[6-2920.05] Derivation The section is new. [6-2920.10] Effect — s 202(1)(a), (2)(a), (3)(a),(b) That word is intended to convey the fact that while the operation of a term of the agreement can be varied by an individual flexibility arrangement so as to alter some of the legal rights of the parties to the arrangement, the terms of the agreement as such are not varied. No greater significance should be attached to the use of the word “effect” in s 202 or elsewhere: Minister for Employment and Workplace Relations [2010] FWAFB 3552 (19 May 2010); 195 IR 138 at [20]. [6-2920.15] Employee — s 202(1)(a), (2)(a), (3)(a) See s 170. [6-2920.20] Employer — s 202(1)(a), (2)(a), (3)(a) See s 170. [6-2920.25] Enterprise agreement —s 202(1), (2), (4), (5) See s 112. [6-2920.35] Must include — s 202(1) A flexibility term which was limited to one issue namely payment of wages for periods of annual leave meets the requirements of the Act: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) re Strategic Labour Labour Hire Agreement 2011–2013 [2012] FWAA 6134 (18 July 2012); BC201275155 at [11]. Conversely a term which does not provide for change in the effect of any of the terms of the agreement cannot be a flexibility term: Minister for Employment and Workplace Relations [2010] FWAFB 3552 (19 May 2010); 195 IR 138 at [23]. [6-2920.35.1] Mandatory terms under the FW Act The phrase “mandatory term” is only used in the FW Act to describe: an individual flexibility term (s 202); and a consultation term (s 205). If an enterprise agreement does not contain one or both mandatory terms, then, the model flexibility term and model consultation term in the Fair Work Regulations 2009 (Cth) are taken to be a term of the agreement: ss 202(4) and 205(2). The model flexibility term referred to in s 202(5) is found in Sch 2.2 of the Fair Work Regulations 2009 (Cth). An individual flexibility term is a term in the enterprise agreement which provides for employers and employees to make individual flexibility arrangements (IFAs) in order to meet “genuine needs”: s 202(1). IFAs vary the enterprise agreement as it applies between a particular employee and the employer. [6-2920.40] Scope of section The operation of s 202(1) was considered in Minister for Employment and Workplace Relations [2010] FWAFB 3552; (2010) 195 IR 138. In this case, FWA considered a term in an enterprise agreement which allowed the parties to vary particular clauses. At first instance, it

was held that this term was not a flexibility term under s 202(1) because it went beyond merely permitting a variation of the effect of particular clauses — the term purported to allow a variation to the clauses themselves. As a consequence, the model flexibility term in Sch 2.2 of the Fair Work Regulations 2009 (Cth) was held to form a part of the agreement. [page 338] On appeal, a Full Bench of FWA found that the relevant clause met the requirements of s 202(1) such that it was a flexibility term. In reaching this conclusion, FWA indicated (at [15]) that it is not necessary for flexibility terms in enterprise agreements to exactly match the language of s 202(1). Thus, a term can be considered a flexibility term even if it purports to allow a variation of other clauses, rather than a variation of the effect of other clauses. [6-2920.45] Varied — s 202(2)(a) An individual flexibility arrangement made pursuant to a flexibility term in an enterprise agreement does not vary the terms of the agreement — the terms of the agreement remain. But the individual flexibility arrangement alters the legal rights of the parties to it in the relevant respects. This alteration in legal rights is reflected in the language used in the statutory provisions. The provisions contain expressions such as “varying the effect of” (s 201(1)(a)), “as if it were varied” (s 202(2)(a)) and “the effect may be varied” (s 203(2)(a)). In the same way, cl 1 of the model flexibility term uses the expression “vary the effect of the terms of the agreement.”: Minister for Employment and Workplace Relations [2010] FWAFB 3552 (19 May 2010); 195 IR 138 at [14]. [6-2920.50] Outline of section A number of aspects of these provisions should be noted. Firstly, the flexibility term must enable the employer and the individual employee to agree to an individual flexibility arrangement “varying the effect of the agreement” (s 202(1)(a)). Second, the flexibility term must comply with the requirements in s 203(s 202(1)(b)). Third, if an individual flexibility arrangement is made pursuant to the flexibility term the enterprise agreement has effect in relation to the employer and the employee “as if it were varied by the arrangement” (s 202(2)(a)). If an enterprise agreement does not include a flexibility term, the model flexibility term in the Fair Work Regulations 2009 (the Regulations) is taken to be a term of the agreement (s 202(4) and (5)). The model flexibility term is in Sch 2.2 to the Regulations: Minister for Employment and Workplace Relations [2010] FWAFB 3552 (19 May 2010), 195 IR 138 at [5]. Concerns as to the flexibility term cannot be met by the giving of an undertaking: an undertaking can only be sought to deal with concerns that arise under ss 186 and 187 of the Act. The requirement for an enterprise agreement to include a flexibility term is not a matter that arises under either s 186 or s 187 of the Act: Bendigo PS Pty Ltd and Others re Barry Plant Enterprise Agreement 2012 [2012] FWAA 8976 (26 October 2012) at [13]. *Commentary to “Model Flexibility term” and “Scope of section” by Joe Catanzariti, Vice President FWC and Michael Byrnes, Special Counsel, Clayton Utz. All other commentary prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister.

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[6-2940] term

Requirements to be met by a flexibility

203 Flexibility term must meet requirements (1) A flexibility term in an enterprise agreement must meet the requirements set out in this section. Requirements relating to content (2) The flexibility term must: (a) set out the terms of the enterprise agreement the effect of which may be varied by an individual flexibility arrangement agreed to under the flexibility term; and (b) require the employer to ensure that any individual flexibility arrangement agreed to under the flexibility term: (i) must be about matters that would be permitted matters if the arrangement were an enterprise agreement; and (ii) must not include a term that would be an unlawful term if the arrangement were an enterprise agreement. [page 339] (2A) If, in accordance with this Part, the enterprise agreement includes terms that would be outworker terms if they were included in a modern award, the flexibility term must not allow the effect of those outworker terms to be varied. [subs (2A) insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

Requirement for genuine agreement (3) The flexibility term must require that any individual flexibility arrangement is genuinely agreed to by the employer and the employee. Requirement that the employee be better off overall (4) The flexibility term must require the employer to ensure that any individual flexibility arrangement agreed to under the term must result in the employee being better off overall than the employee would have been if no individual flexibility arrangement were agreed to.

Requirement relating to approval or consent of another person (5) Except as required by subparagraph (7)(a)(ii), the employer must ensure that the flexibility term does not require that any individual flexibility arrangement agreed to by an employer and employee under the term be approved, or consented to, by another person. Requirement relating to termination of individual flexibility arrangements (6) The flexibility term must require the employer to ensure that any individual flexibility arrangement agreed to under the term must be able to be terminated: (a) by either the employee, or the employer, giving written notice of not more than 28 days; or (b) by the employee and the employer at any time if they agree, in writing, to the termination. Other requirements (7) The flexibility term must require the employer to ensure that: (a) any individual flexibility arrangement agreed to under the term must be in writing and signed: (i) in all cases — by the employee and the employer; and (ii) if the employee is under 18 — by a parent or guardian of the employee; and (b) a copy of any individual flexibility arrangement agreed to under the term must be given to the employee within 14 days after it is agreed to. COMMENTARY TO SECTION 203

Preconditions for an IFA ….

[6-2940.1]

[6-2940.1] Preconditions for an IFA IFAs must be about permitted matters, may not include unlawful terms and are subject to the same “better off overall test” as enterprise agreements: s 203(2) and (4). IFAs were the subject of much scrutiny in the lead up to the implementation of the Act, on the basis that they provide for individualised agreements between employer and employees that are reminiscent of Australian Workplace Agreements (AWAs). However, while an IFA provides an employer and employee with an opportunity to vary the individual employee’s terms and conditions of employment under the enterprise agreement, an IFA cannot be entered into until the

[page 340] enterprise agreement is in place which covers the employee. Importantly, an IFA does not need tobe lodged with the FWC. All that is required is that a copy be given to the employee within 14 days after agreement as to the IFA has been reached: s 203(7)(b). In practice, this means employers and employees will need to apply the “better off overall test” themselves when creating an IFA. This suggests that, the legislature has assumed that employees will be sufficiently informed of their rights under industrial laws and that employers will not take advantage of the ability to create IFAs without needing approval from an independent body. Case A full bench of Fair Work Australia (as it then was) ruled that an individual flexibility term should be construed liberally, at least when considering the validity of the term. In this regard, the full bench at [15] said that “… [W]e do not think that this failure to use the precise language of ss 202 and 203 means cl 12 is not a flexibility term within the meaning of those sections. …” The full bench reasoned that a liberal approach to individual flexibility terms is preferred because enterprise agreements are “… [N]ot the product of careful drafting by experienced Parliamentary drafters. …” and it is inappropriate to hold them to those high standards. The full bench concluded that “… [A]n approach which takes the purpose of the provision into account is to be preferred. …” See Re Minister for Employment and Workplace Relations (2010) 195 IR 138; [2010] FWAFB 3552 at [16].

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[6-2960] Effect of arrangement that does not meet requirements of flexibility term 204 Application of this section (1) This section applies if: (a) an employee and employer agree to an arrangement that purports to be an individual flexibility arrangement under a flexibility term in an enterprise agreement; and (b) the arrangement does not meet a requirement set out in section 203. Note: A failure to meet such a requirement may be a contravention of a provision of Part 3-1 (which deals with general protections).

Arrangement has effect as if it were an individual flexibility arrangement (2) The arrangement has effect as if it were an individual flexibility arrangement. Employer contravenes flexibility term in specified circumstances (3) If section 203 requires the employer to ensure that the arrangement

meets the requirement, the employer contravenes the flexibility term of the agreement. Requirement relating to termination of arrangement (4) If the arrangement does not provide that the arrangement is able to be terminated: (a) by either the employee, or the employer, giving written notice of not more than 28 days; or (b) by the employee and the employer at any time if they agree, in writing, to the termination; the arrangement is taken to provide that the arrangement is able to be so terminated. [page 341] COMMENTARY TO SECTION 204

Breach of individual flexibility agreements ….

[6-2960.1]

[6-2960.1] Breach of individual flexibility agreements A breach of an IFA is a breach of the enterprise agreement (by virtue of s 202(2)(b)). Furthermore, the creation of an IFA that does not comply with the requirements described above is a breach of the individual flexibility term of the enterprise agreement: s 204(3).

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[6-2980] Enterprise agreements to include a consultation term etc 205 Consultation term must be included in an enterprise agreement (1) An enterprise agreement must include a term (a consultation term) that: (a) requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about: (i) a major workplace change that is likely to have a significant effect on the employees; or

(ii) a change to their regular roster or ordinary hours of work; and (b) allows for the representation of those employees for the purposes of that consultation. [subs (1) am Act 73 of 2013 s 3 and Sch 1 item 20, opn 1 Jan 2014]

(1A) For a change to the employees’ regular roster or ordinary hours of work, the term must require the employer: (a) to provide information to the employees about the change; and (b) to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and (c) to consider any views given by the employees about the impact of the change. [subs (1A) insrt Act 73 of 2013 s 3 and Sch 1 item 21, opn 1 Jan 2014]

Model consultation term (2) If an enterprise agreement does not include a consultation term, or if the consultation term is an objectionable emergency management term, the model consultation term is taken to be a term of the agreement. [subs (2) am Act 62 of 2016 s 3 and Sch 1 item 5, opn 13 Oct 2016]

(3) The regulations must prescribe the model consultation term for enterprise agreements. COMMENTARY TO SECTION 205 [6-2980.05] Scope of section In Hanson Construction Materials Pty Ltd [2012] FWA 3037 it was held that a consultation term giving employees the right to be represented by a union delegate did not satisfy s 205(2). SDP Richards said (at [23]) that the relevant term was defective because it did not accord employees a “non-prescribed form of representation”. The model consultation term in s 205(2) is set out in Sch 2.3 of the Fair Work Regulations 2009 (Cth).

____________________ [page 342]

DIVISION 6 — BASE RATE OF PAY UNDER ENTERPRISE AGREEMENTS

[6-3170] 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 206 If an employee is covered by a modern award that is in operation (1) If: (a) an enterprise agreement applies to an employee; and (b) a modern award that is in operation covers the employee; the base rate of pay payable to the employee under the agreement (the agreement rate) must not be less than the base rate of pay that would be payable to the employee under the modern award (the award rate) if the modern award applied to the employee. (2) If the agreement rate is less than the award rate, the agreement has effect in relation to the employee as if the agreement rate were equal to the award rate. If an employer is required to pay an employee the national minimum wage etc (3) If: (a) an enterprise agreement applies to an employee; and (b) the employee is not covered by a modern award that is in operation; and (c) a national minimum wage order would, but for the agreement applying to the employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order; the base rate of pay payable to the employee under the enterprise agreement (the agreement rate) must not be less than the employee’s order rate. (4) If the agreement rate is less than the employee’s order rate, the agreement has effect in relation to the employee as if the agreement rate were equal to the employee’s order rate. COMMENTARY TO SECTION 206

[6-3170.1] Other guarantees relating to base rates of pay It should also be noted that the base rate of pay under the enterprise agreement must be equal to, if not greater than the base rate of pay under an applicable modern award. If the enterprise agreement states a lesser rate, then, the employee will still be entitled to the award base rate of pay: s 206(1). Similarly, if no modern award applies to the employee, the base rate of pay under the enterprise agreement must be equal to or greater than the national minimum wage. That is the rate that the employee will be entitled to if a lesser rate is stated in the enterprise agreement: s 206(2). Base rate of pay requirements apply throughout the life of an agreement such that employers will need to continuously monitor modern award rates of pay and national minimum wages to ensure that employees are paid the minimum amount.

____________________ [page 343]

DIVISION 7 — VARIATION AND TERMINATION OF ENTERPRISE AGREEMENTS Subdivision A — Variation of enterprise agreements by employers and employees

[6-3360] Variation of an enterprise agreement may be made by employers and employees 207 Variation by employers and employees (1) The following may jointly make a variation of an enterprise agreement: (a) if the agreement covers a single employer — the employer and: (i) the employees employed at the time who are covered by the agreement; and (ii) the employees employed at the time who will be covered by the agreement if the variation is approved by the FWC; (b) if the agreement covers 2 or more employers — all of those employers and: (i) the employees employed at the time who are covered by the agreement; and (ii) the employees employed at the time who will be covered by

the agreement if the variation is approved by the FWC. Note: For when a variation of an enterprise agreement is made, see section 209. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 162, opn 1 Jan 2013]

(2) The employees referred to in paragraphs (1)(a) and (b) are the affected employees for the variation. Variation has no effect unless approved by the FWC (3) A variation of an enterprise agreement has no effect unless it is approved by the FWC under section 211. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 163, 164, opn 1 Jan 2013]

Limitation — greenfields agreement (4) Subsection (1) applies to a greenfields agreement only if one or more of the persons who will be necessary for the normal conduct of the enterprise concerned and are covered by the agreement have been employed.

[6-3380] Employers may request employees to approve a proposed variation of an enterprise agreement 208 (1) An employer covered by an enterprise agreement may request the affected employees for a proposed variation of the agreement to approve the proposed variation by voting for it. (2) Without limiting subsection (1), the employer may request that the affected employees vote by ballot or by an electronic method. COMMENTARY TO SECTIONS 207 AND 208 [6.3380.1] The operation of ss 207 and 209 of the Act were subject of consideration by the Federal Court and Full Federal Court in Marmara v Toyota Motor Corporation Australia Ltd [2013] FCA 1351; BC201315610 and Toyota Motor Corp Australia Ltd v Marmara (2014) 222 FCR 152; [2014] FCAFC 84; BC201405545. The proceedings arose from a proposal by Toyota to vary an enterprise agreement. The effect of the proposed variations were to reduce employee [page 344] entitlements and provide costs savings in circumstances where the company faced significant commercial pressures.

The applicants at first instance, being employees of Toyota who were covered by the agreement, sought an injunction preventing Toyota from putting the variation to a ballot of employees. The applicants contended that the proposed variations constituted a “claim” such that the proposal involved a breach of the no extra claims provision of the agreement. Justice Bromberg at first instance accepted the applicants’ contentions that the proposal was a “claim” and therefore, in breach of the no extra claims provision. He also rejected Toyota’s contention that the no extra claims provision was invalid by reason of its inconsistency with s 208 and related provisions of the Act. His Honour reasoned that the parties were able by agreement to vary the no extra claims provision itself, and the clause was not therefore valid for inconsistency with the statute. Effectively, his Honour held, Toyota was required to first put to a ballot a variation removing the no extra claims provision and then, as a second step (assuming the first variation was approved), pursue the substantive variations sought. On appeal the Full Court (Tracey, Buchanan and Perram JJ) agreed with Bromberg’s J finding that the variation was a “claim” prima facie prohibited by the no extra claims provision, but disagreed in relation to inconsistency. The Full Court held that the no extra claims provision conflicted with the provisions of Div 7 of Pt 2-4 and was, to the extent it purported to restrict the parties’ capacity to vary the agreement, invalid. It followed that the provision was inoperative in respect of proposed variations and did not therefore, restrict Toyota’s capacity to put the proposed variations to a ballot. It may be noted that the Full Court expressed an obiter view that the inconsistency of the no extra claims provision with Div 7 did not wholly invalidate the provision but rather rendered it inoperative only to the extent it affected the process of varying the agreement.

____________________

[6-3400] When a variation of an enterprise agreement is made 209 Single-enterprise agreement (1) If the affected employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed variation under subsection 208(1), the variation is made when a majority of the affected employees who cast a valid vote approve the variation. Multi-enterprise agreement (2) If the affected employees of each employer covered by a multienterprise agreement have been asked to approve a proposed variation under subsection 208(1), the variation is made when a majority of the affected employees of each individual employer who cast a valid vote have approved the variation. COMMENTARY TO SECTION 209

Varying an enterprise agreement ….

[6-3400.1]

[6-3400.1] Varying an enterprise agreement Once made, an enterprise agreement is not necessarily static. An employer is able to request its employees vote on a proposed variation. For a single enterprise agreement, a majority of employees that validly vote must approve the variation: Fair Work Act 2009 (Cth) s 209(1). For a multi-enterprise agreement, a majority of employees of each individual employer that validly vote must approve the variation: s 209(2). As with an agreement, the variation must be submitted to the FWC for approval and the FWC will apply the same considerations as they would to a new enterprise agreement. For example, the FWC will consider whether employee approval is genuine and ensure that the terms do not contravene the National Employment Standards. [page 345] Case In Marmara v Toyota Motor Corporation Australia Ltd [2013] FCA 1351; BC201315610; the Federal Court held that a “no further claims” provision in Toyota’s enterprise agreement effectively prevented it from putting a proposed variation of the agreement to a ballot of employees. In reaching its conclusion, the court determined that the variations sought were “further claims” within the meaning of the “no further claims” provision and that Toyota’s attempt to vary therefore, involved a breach of the agreement. The court concluded that the changes sought would require, first, the variation of the agreement to remove the “no further claims” provision, and then as a second step, the substantive variations. The decision has been appealed to a full court of the Federal Court. The FWC may vary an enterprise agreement if an employee, employer or employee organisation covered by the agreement applies for a variation because of the existence of ambiguity or uncertainty in the enterprise agreement: s 217. The FWC may also vary an enterprise agreement so as to remove certain unlawful discriminatory terms: s 218.

____________________

[6-3420] Application for the FWC’s approval of a variation of an enterprise agreement 210 Application for approval (1) If a variation of an enterprise agreement has been made, a person covered by the agreement must apply to the FWC for approval of the variation. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 166, opn 1 Jan 2013]

Material to accompany the application (2) The application must be accompanied by:

(a) a signed copy of the variation; and (b) a copy of the agreement as proposed to be varied; and (c) any declarations that are required by the procedural rules to accompany the application. When the application must be made (3) The application must be made: (a) within 14 days after the variation is made; or (b) if in all the circumstances the FWC considers it fair to extend that period — within such further period as the FWC allows. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 167, opn 1 Jan 2013]

Signature requirements (4) The regulations may prescribe requirements relating to the signing of variations of enterprise agreements. [s 210 am Act 174 of 2012 s 3 and Sch 9 item 165, opn 1 Jan 2013]

[6-3440] When the FWC must approve a variation of an enterprise agreement 211 Approval of variation by the FWC (1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if: [page 346] (a) the FWC is satisfied that had an application been made under subsection 182(4) or section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and (b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the

agreement; unless the FWC is satisfied that there are serious public interest grounds for not approving the variation. Note: The FWC may approve a variation under this section with undertakings (see section 212). [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 169–171, opn 1 Jan 2013; Act 156 of 2015 Sch 1 item 38, opn 27 Nov 2015]

Modification of approval requirements (2) For the purposes of the FWC deciding whether it is satisfied of the matter referred to in paragraph (1)(a), the FWC must: (a) take into account subsections (3) and (4) and any regulations made for the purposes of subsection (6); and (b) comply with subsection (5); and (c) disregard sections 190 and 191 (which deal with the approval of enterprise agreements with undertakings). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 172, opn 1 Jan 2013]

(3) The following provisions: (a) section 180 (which deals with pre-approval steps); (b) subsection 186(2) (which deals with the FWC’s approval of enterprise agreements); (c) section 188 (which deals with genuine agreement); have effect as if: (d) references in sections 180 and 188 to the proposed enterprise agreement, or the enterprise agreement, were references to the proposed variation, or the variation, of the enterprise agreement (as the case may be); and (e) references in those provisions to the employees employed at the time who will be covered by the proposed enterprise agreement, or the employees covered by the enterprise agreement, were references to the affected employees for the variation; and (f) references in section 180 to subsection 181(1) were references to subsection 208(1); and (g) the words “if the agreement is not a greenfields agreement—” in paragraph 186(2)(a) were omitted; and

(h) paragraph 186(2)(b) were omitted; and (ha) references in paragraphs 186(2)(c) and (d) to the agreement were references to the enterprise agreement as proposed to be varied; and (hb) subparagraph 188(a)(ii) were omitted; and (j) the words “182(1) or (2)” in paragraph 188(b) were omitted and the words “209(1) or (2)” were substituted. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 173, opn 1 Jan 2013]

(4) Section 193 (which deals with passing the better off overall test) has effect as if: (a) the words “that is not a greenfields agreement” in subsection (1) were omitted; and [page 347] (b) subsection (3) were omitted; and (c) the words “the agreement” in subsection (6) were omitted and the words “the variation of the enterprise agreement” were substituted; and (d) the reference in subsection (6) to subsection 182(4) or section 185 were a reference to section 210. [subs (4) am Act 156 of 2015 Sch 1 item 39, opn 27 Nov 2015]

(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement. [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 174, opn 1 Jan 2013]

Regulations may prescribe additional modifications (6) The regulations may provide that, for the purposes of the FWC deciding whether it is satisfied of the matter referred to in paragraph (1)(a), specified provisions of this Part have effect with such modifications as are prescribed by the regulations.

[subs (6) am Act 174 of 2012 s 3 and Sch 9 item 174, opn 1 Jan 2013] [s 211 am Act 174 of 2012 s 3 and Sch 9 item 168, opn 1 Jan 2013]

[6-3460] FWC may approve a variation of an enterprise agreement with undertakings 212 Application of this section (1) This section applies if: (a) an application for the approval of a variation of an enterprise agreement has been made under section 210; and (b) the FWC has a concern that the variation does not meet the requirements set out in section 211. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 176, opn 1 Jan 2013]

Approval of agreement with undertakings (2) The FWC may approve the variation under section 211 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 177, 178, opn 1 Jan 2013]

Undertakings (3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to: (a) cause financial detriment to any affected employee for the variation; or (b) result in substantial changes to the variation. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 179, 180, opn 1 Jan 2013]

Signature requirements (4) An undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations. [s 175 am Act 174 of 2012 s 3 and Sch 9 item 175, opn 1 Jan 2013]

[page 348]

[6-3480]

Effect of undertakings

213 (1) If: (a) the FWC approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation; and (b) the agreement covers a single employer; the undertaking is taken to be a term of the agreement, as the agreement applies to the employer. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 181, opn 1 Jan 2013]

(2) If: (a) the FWC approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation; and (b) the agreement covers 2 or more employers; the undertaking is taken to be a term of the agreement, as the agreement applies to each employer that gave the undertaking. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 181, opn 1 Jan 2013]

[6-3500] When the FWC may refuse to approve a variation of an enterprise agreement 214 (1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC may refuse to approve the variation if the FWC considers that compliance with the terms of the agreement as proposed to be varied may result in: (a) a person committing an offence against a law of the Commonwealth; or (b) a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 183, opn 1 Jan 2013]

(2) Subsection (1) has effect despite section 211 (which deals with the approval of variations of enterprise agreements). (3) If the FWC refuses to approve a variation of an enterprise agreement

under this section, the FWC may refer the agreement as proposed to be varied to any person or body the FWC considers appropriate. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 183, opn 1 Jan 2013] [s 214 am Act 174 of 2012 s 3 and Sch 9 item 182, opn 1 Jan 2013]

[6-3520]

Approval decision to note undertakings

215 If the FWC approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation, the FWC must note in its decision to approve the variation that the undertaking is taken to be a term of the agreement. [s 215 am Act 174 of 2012 s 3 and Sch 9 item 184, opn 1 Jan 2013]

[6-3540]

When variation comes into operation

216 If a variation of an enterprise agreement is approved under section 211, the variation operates from the day specified in the decision to approve the variation. [page 349]

Subdivision B — Variations of enterprise agreements where there is ambiguity, uncertainty or discrimination

[6-3680] Variation of an enterprise agreement to remove an ambiguity or uncertainty 217 (1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following: (a) one or more of the employers covered by the agreement; (b) an employee covered by the agreement; (c) an employee organisation covered by the agreement. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 185, opn 1 Jan 2013]

(2) If the FWC varies the enterprise agreement, the variation operates from

the day specified in the decision to vary the agreement. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 186, opn 1 Jan 2013] COMMENTARY TO SECTION 217*

Ambiguity or uncertainty — s 217(1), (2) …. Employee — s 217(1)(b) …. Employee organisation — s 217(1)(c) …. Employer — s 217(1)(a) …. Enterprise Agreement — s 217(1), (2) …. FWC — s 217(1), (2) …. May — s 217(1) …. Variation of an enterprise agreement to remove an ambiguity or uncertainty …. Outline of section ….

[6-3680.05] [6-3680.10] [6-3680.15] [6-3680.20] [6-3680.25] [6-3680.30] [6-3680.35] [6-3680.40] [6-3680.45]

[6-3680.05] Ambiguity or uncertainty — s 217(1), (2) The identification of an ambiguity or uncertainty requires the determination of a jurisdictional fact: Coinvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [44]. That task is not easy. As Gray J has held: there appears to be no clear test laid down for determining when an ambiguity exists: Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 449. The Full Bench in Re Victorian Public Transport Enterprise Agreement 1994 [1995] AIRC 192; Melbourne, VP Ross, SDP Polites, Cmr Grimshaw held: … the Commission would generally err on the side of finding an ambiguity or uncertainty in circumstances where there are rival contentions advanced before it and an arguable case ca be made out for more than one contention. By contrast, the Full Bench in Tenix Defence Systems Pty Ltd Certified Agreement 2001–2004 [2002] AIRC 531 VP Ross, SDP O’Callgahn, Cmr Foggo at [49]: [T]he commission must make an objective judgment about whether on a proper construction of the relevant provision … the wording of the provision is susceptible to more than one meaning. In SJ Higgins Pty Ltd and others v CFMEU, after referring to the Victorian Public Transport case, SDP Williams said: “It is not enough that there are or may be rival contentions as to the proper construction of the terms.” [page 350] Further, it was held in Beltana No 1 Salaried Staff Certified Agreement 2001 [2003] AIRC 608 at [23]: The Commission’s task is to make an objective judgment as to whether the wording of a provision is susceptible to more than one meaning. It must avoid contentions that are self serving. [6-3680.10] Employee — s 217(1)(b) See s 170.

[6-3680.15] Employee organisation — s 217(1)(c) See s 112. [6-3680.20] Employer — s 217(1)(a) See s 170. [6-3680.25] Enterprise Agreement — s 217(1), (2) See s 112. [6-3680.30] FWC — s 217(1), (2) See s 112. [6-3680.35] May — s 217(1) It was held in Re Australian and International Pilots Association (2007) 162 IR 121; [2007] AIRC 303 at [17]: The exercise of the discretion conferred on the Commission in relation to an ambiguity or uncertainty does not give rise to a general discretion to determine a matter based on industrial fairness. The task is to place the parties in the position they intended by their agreement — insofar as the wording of the agreement does not reflect that intention. Although a significant factor, the objectively ascertained mutual intention of the parties is not the only consideration. However it would be unusual for other considerations to weigh in favour of a variation that was inconsistent with the intention of the parties. [6-3680.40] Variation of an enterprise agreement to remove an ambiguity or uncertainty Section 217 is not for variation of the agreement at large rather permits only variations directed solely at remedying the ambiguity or uncertainty, as the case may be. It is not an opportunity to revisit the agreement generally or make amendments which either party might consider necessary on other grounds such as operational requirements or fairness of the terms and conditions of the agreement. In Re Tenix Defence Systems Pty Ltd [2002] AIRC 531 (9 May 2002); PR917548, the Full Bench held that before the discretion to vary the agreement is exercised, it must first be identified that there is ambiguity or uncertainty. It may then exercise the discretion to remove that ambiguity or uncertainty by varying the agreement. This approach was endorsed by Hamberger SDP in Pacific National Coal, NSW v Australian Rail, Tram and Bus Industry Union — NSW Branch [2011] FWA 5457 at [8] and [11], where the Senior Deputy President identified that the task under s 217 has two stages. First, the ambiguous clause must be identified and ascertained by having regard not only to the text, but also the surrounding context. Secondly, if the clause is determined to be ambiguous, then the commission must decide whether to exercise its discretion to vary the agreement and remove the ambiguity or uncertainty. [6-3680.45] Outline of section Watson VP described a predecessor provision in Re Australian and International Pilots Association (2007) 162 IR 121; [2007] AIRC 303 at [16]–[17]. That process requires the following steps to be taken: (i) The identification of an ambiguity or uncertainty; (ii) Exercise of a discretion as to whether a variation should be made; (iii) Exercise of a discretion as to the terms of a variation. [page 351] His Honour went on to hold at [17] that: The exercise of the discretion conferred on the Commission in relation to an ambiguity or uncertainty does not give rise to a general discretion to determine a matter based on industrial fairness. The task is to place the parties in the position they intended by their agreement — insofar as the wording of

the agreement does not reflect that intention. Although a significant factor, the objectively ascertained mutual intention of the parties is not the only consideration. However it would be unusual for other considerations to weigh in favour of a variation that was inconsistent with the intention of the parties. *Editor’s Note: Commentary to variation of an enterprise agreement to remove an ambiguity or uncertainty by Joe Catanzariti, Vice President FWC and Michael Byrnes, Special Counsel, Clayton Utz. All other commentary by Ian Latham BA(Hons)/LLB (ANU), Barrister.

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[6-3700] FWC may deal with certain disputes about variations 217A (1) This section applies if a variation of an enterprise agreement is proposed. (2) An employer or employee organisation covered by the enterprise agreement or an affected employee for the variation may apply to the FWC for the FWC to deal with a dispute about the proposed variation if the employer and the affected employees are unable to resolve the dispute. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 188, opn 1 Jan 2013]

(3) The FWC must not arbitrate (however described) the dispute. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 189, opn 1 Jan 2013] [s 217A am Act 174 of 2012 s 3 and Sch 9 item 187, opn 1 Jan 2013]

[6-3720] Variation of an enterprise agreement on referral by Australian Human Rights Commission 218 Review of an enterprise agreement (1) The FWC must review an enterprise agreement if the agreement is referred to it under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments). [subs (1) am Act 70 of 2009 s 3 and Sch 3, opn 1 Jan 2010; Act 174 of 2012 s 3 and Sch 9 item 190, opn 1 Jan 2013]

(2) The following are entitled to make submissions to the FWC for consideration in the review: (a) if the referral relates to action that would be unlawful under Part 4

of the Age Discrimination Act 2004 — the Age Discrimination Commissioner; (b) if the referral relates to action that would be unlawful under Part 2 of the Disability Discrimination Act 1992 — the Disability Discrimination Commissioner; (c) if the referral relates to action that would be unlawful under Part II of the Sex Discrimination Act 1984 — the Sex Discrimination Commissioner. [subs (2) subst Act 54 of 2009 s 3 and Sch 5, opn 1 July 2009; am Act 54 of 2009 s 3 and Sch 5, opn 5 Aug 2009; Act 40 of 2011 s 3 and Sch 2 item 13, opn 29 July 2011; Act 174 of 2012 s 3 and Sch 9 item 191, opn 1 Jan 2013]

Variation of an enterprise agreement (3) If the FWC considers that the agreement reviewed requires a person to do an act that would be unlawful under any of the Acts referred to in subsection (2) (but for the [page 352] fact that the act would be done in direct compliance with the agreement), the FWC must vary the agreement so that it no longer requires the person to do an act that would be so unlawful. [subs (3) subst Act 54 of 2009 s 3 and Sch 5, opn 1 July 2009; Act 174 of 2012 s 3 and Sch 9 item 191, opn 1 Jan 2013]

(4) If the agreement is varied under subsection (3), the variation operates from the day specified in the decision to vary the agreement. [heading am Act 70 of 2009 s 3 and Sch 3, opn 1 Jan 2010]

Subdivision C — Termination of enterprise agreements by employers and employees

[6-3860] Employers and employees may agree to terminate an enterprise agreement 219 Termination by employers and employees

(1) The following may jointly agree to terminate an enterprise agreement: (a) if the agreement covers a single employer — the employer and the employees covered by the agreement; or (b) if the agreement covers 2 or more employers — all of the employers and the employees covered by the agreement. Note: For when a termination of an enterprise agreement is agreed to, see section 221.

Termination has no effect unless approved by the FWC (2) A termination of an enterprise agreement has no effect unless it is approved by the FWC under section 223. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 192, 193, opn 1 Jan 2013]

Limitation — greenfields agreement (3) Subsection (1) applies to a greenfields agreement only if one or more of the persons who will be necessary for the normal conduct of the enterprise concerned and are covered by the agreement have been employed. COMMENTARY TO SECTION 219*

Derivation …. Terminating an enterprise agreement …. Agreed to — Note …. Employee — s 219(1)(a), (b) …. Employer — s 219(1)(a), (b) …. Enterprise agreement — s 219(1), Note, (2) …. FWC — s 219(2) …. Greenfields agreement – s 219(3) …. Outline of Section ….

[6-3860.05] [6-3860.06] [6-3860.10] [6-3860.15] [6-3860.20] [6-3860.25] [6-3860.30] [6-3860.35] [6-3860.40]

[6-3860.05] Derivation The section has some similarities to s 382 of the Workplace Relations Act 1996. [6-3860.06] Terminating an enterprise agreement An enterprise agreement can be terminated at any time during the life of the agreement if parties agree to do so: Fair Work Act [page 353] 2009 (Cth) s 219(1). However, in order to be effective the termination must be approved by the Fair Work Commission (the FWC): s 219(2). After the nominal expiry date of the agreement, the parties covered by the agreement do not need to

agree to terminate it. A party can simply apply to the FWC for termination. However, the FWC will consider the public interest, the likely effect the termination will have on other parties and the views of other parties before doing so: s 226. Case FW Australia (as it then was) established that in interpreting the termination provision of the FW Act, while full consideration is to be given to the position and wishes of the parties, generally “The longer the time after expiry of the nominal term the stronger the case for termination. …” In terminating the agreement, Vice President Watson was persuaded by the willingness of the employer to commit to undertakings to protect the workers still covered by the expiring agreement. See Energy Resources of Australia Ltd v Liquor, Hospitality and Miscellaneous Union [2010] FWA 2434; BC201070722. [6-3860.10] Agreed to — Note See s 221. [6-3860.15] Employee — s 219(1)(a), (b) See s 170. [6-3860.20] Employer — s 219(1)(a), (b) See s s 170. [6-3860.25] Enterprise agreement — s 219(1), Note, (2) See s 112. [6-3860.30] FWC — s 219(2) See s 112. [6-3860.35] Greenfields agreement – s 219(3) See ss 12 and 172. [6-3860.40] Outline of Section The Explanatory Memorandum to the Fair Work Bill 2008 states at [924] that this clause provides that employers and employees may agree to terminate an enterprise agreement at any time while the agreement is in operation. *Editor’s note: Commentary on Derivation prepared by Ian Latham BA (Hons) LLB (ANU), Barrister. Commentary on Terminating an enterprise agreement prepared by Joe Catanziriti, VP FWC and Michael Byrnes, Special Counsel, Clayton Utz.

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[6-3880] Employers may request employees to approve a proposed termination of an enterprise agreement 220 (1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it. (2) Before making the request, the employer must: (a) take all reasonable steps to notify the employees of the following: (i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and (b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination. (3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method. [page 354] COMMENTARY TO SECTION 220

Reasonable opportunity to decide — 220(2) ….

[6.3885]

[6.3885] Reasonable opportunity to decide — 220(2) There is limited authority in relation to the provisions allowing for termination by agreement generally or of s 220 in particular. The most fulsome analysis of s 220 is that of Commissioner Lee in Barminco Ltd [2015] FWCA 219; BC201501540. In respect of the s 223(d) requirement that employees have a reasonable opportunity to decide whether they wish to approve an agreement, the Commissioner pointed out: [20] There are no particular prescribed steps to be taken to give effect to the reasonable opportunity, including no prescribed minimum time period between the making of the request and the time of the vote. However, irrespective of the lack of prescription in the legislation as to what is required of employers in providing a reasonable opportunity within the meaning of s 220(2)(b) of the Act the Explanatory Memorandum example lends support for the proposition that employees would, among other things, need to consider the effect on their terms and conditions as part of their reasonable opportunity to decide whether to approve the termination. In that context, while there is no express requirement for the employer to explain the effect on the employees’ terms and conditions of the termination, the lack of any explanation or misleading or incorrect explanations may well be a factor in a consideration as to whether there has been a reasonable opportunity. The effect of the termination of the agreement on employees’ terms and conditions will also be relevant to the Commission consideration of the views of employee organisations as required by s 223(d), as to which see below at [6-3940.15].

____________________

[6-3900] When termination of an enterprise agreement is agreed to 221 Single-enterprise agreement (1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve

the termination. Multi-enterprise agreement (2) If the employees of each employer covered by a multi-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.

[6-3920] Application for the FWC’s approval of a termination of an enterprise agreement 222 Application for approval (1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 195, opn 1 Jan 2013]

Material to accompany the application (2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application. [page 355] When the application must be made (3) The application must be made: (a) within 14 days after the termination is agreed to; or (b) if in all the circumstances the FWC considers it fair to extend that period — within such further period as the FWC allows. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 195, opn 1 Jan 2013] [s 222 am Act 174 of 2012 s 3 and Sch 9 item 194, opn 1 Jan 2013]

[6-3940] When the FWC must approve a termination of an enterprise agreement 223 If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if: (a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and (c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and (d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement. (b)

[s 223 am Act 174 of 2012 s 3 and Sch 9 items 196, 197, opn 1 Jan 2013] COMMENTARY TO SECTION 223*

Derivation …. Appropriate — s 223(d) …. Employee — 223(a), (b), (c), (d) …. FWC considers it appropriate to approve the termination taking into account the views of the employee organisation — s 223(d) … FWC considers it appropriate to approve the termination taking into account the views of the employee organisation — 223(d) …. Employee organisation — 223(d) …. Employer — s 223(a) …. Enterprise agreement — s 223, (b) …. FWC — s 226, (a), (b), (c), (d) …. Outline of Section ….

[6-3940.01] [6-3940.05] [6-3940.10]

[6-3940.10.5]

[6-3940.13] [6-3940.15] [6-3940.20] [6-3940.25] [6-3940.30] [6-3940.35]

[6-3940.01] Derivation The section is new. [6-3940.05] Appropriate — s 223(d) See s 226. [6-3940.10] Employee — 223(a), (b), (c), (d) See s 170. [6-3940.10.5] FWC considers it appropriate to approve the termination taking into account the views of the employee organisation — s 223(d) The effect of the termination of the [page 356]

agreement on employees’ terms and conditions is relevant to the question of whether termination is appropriate, as well as the question of whether employees were given a reasonable opportunity to decide whether they approve the termination: Barminco Ltd [2015] FCA 219; BC201501540 at [19]. In considering whether or not it is appropriate to approve the termination, it is relevant to consider the effect in bargaining and on the objective of encouraging collective agreement making. The fact that termination makes bargaining more difficult and less likely, is a factor weighing against a finding that it is appropriate to terminate: Metro Media Services Pty Ltd [2014] FWCA 4860 at [10]. [6-3940.13] FWC considers it appropriate to approve the termination taking into account the views of the employee organisation — 223(d) The effect of the termination of the agreement on employees’ terms and conditions is relevant to the question of whether termination is appropriate, as well as the question of whether employees were given a reasonable oppor-tunity to decide whether they approve the termination: Barminco Ltd [2015] FWCA 219 at [19]. In considering whether or not it is appropriate to approve the termination it is relevant to consider the effect fn bargaining and on the objective of encouraging collective agreement making. The fact that termination makes bargaining more difficult and less likely is a factor weighing against a finding that it is appropriate to terminate: Metro Media Services Pty Ltd [2014] FWCA 4860 at [10]. [6-3940.15] Employee organisation — 223(d) See s 12. [6-3940.20] Employer — s 223(a) See s 170. [6-3940.25] Enterprise agreement — s 223, (b) See s 12. [6-3940.30] FWC — s 226, (a), (b), (c), (d) See s 12. [6-3940.35] Outline of Section The section sets out a process which, if followed, requires FWA to terminate the agreement. See by contrast s 226.

*Editor’s note: Commentary to s 223 prepared by Oshie Fagir, Barrister, State Chambers. ____________________

[6-3960]

When termination comes into operation

224 If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.

Subdivision D — Termination of enterprise agreements after nominal expiry date

[6-4100]

Application for termination of an

enterprise agreement after its nominal expiry date 225 If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement: (a) one or more of the employers covered by the agreement; (b) an employee covered by the agreement; (c) an employee organisation covered by the agreement. [s 225 am Act 174 of 2012 s 3 and Sch 9 item 197, opn 1 Jan 2013]

[page 357] COMMENTARY TO SECTION 225*

Derivation …. Covered by the agreement — s 225(a), (b), (c) …. Employee — s 225(b) …. Employer — s 225(a) …. Enterprise agreement — s 225 …. Employee organisation — s 225(c) …. Nominal expiry date ….

[6-4100.5] [6-4100.15] [6-4100.20] [6-4100.25] [6-4100.30] [6-4100.35] [6-4100.40]

[6-4100.5] Derivation The section is loosely derived from s 382 of the Workplace Relations Act 1996 (Cth). [6-4100.15] Covered by the agreement — s 225(a), (b), (c) See s 53. [6-4100.20] Employee — s 225(b) See s 170. [6-4100.25] Employer — s 225(a) See s 170. [6-4100.30] Enterprise agreement — s 225 See s 12. [6-4100.35] Employee organisation — s 225(c) See s 12. [6-4100.40] Nominal expiry date See s 12.

*Editor’s note: Commentary on s 225 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister. ____________________

[6-4120] When the FWC must terminate an enterprise agreement 226 If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if: (a) the FWC is satisfied that it is not contrary to the public interest to do so; and (b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including: (i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and (ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them. [s 226 am Act 174 of 2012 s 3 and Sch 9 items 198, 199, opn 1 Jan 2013] COMMENTARY TO SECTION 226*

Derivation …. Appropriate — s 226(b) …. Employee — s 226(b)(i), (ii) …. Employer — s 226(b)(i), (ii) …. Enterprise agreement — s 266 …. FWC — s 226(a), (b) …. Must — s 226 …. Public interest — s 226(a) …. Satisfied — s 226(a) …. Terminate — s 226(b) ….

[6-4120.05] [6-4120.10] [6-4120.15] [6-4120.20] [6-4120.25] [6-4120.30] [6-4120.35] [6-4120.40] [6-4120.45] [6-4120.46] [page 358]

The views of the employees — s 226(b)(i) …. Outline of section ….

[6-4120.47] [6-4120.50]

[6-4120.05] Derivation Section 397A of the Workplace Relations Act 1996 (Cth). [6-4120.10] Appropriate — s 226(b) “Appropriateness” is a broad discretionary standard. Reasonable

opinion on what is appropriate in any given set of circumstances may vary greatly. The power to terminate an agreement turns on what is effectively an exercise of a broad discretion: Re Tahmoor Coal Pty Ltd (2010) 204 IR 243; [2010] FWA 6468 at [32]. In the same case, VP Lawler also commented at [55] that: generally speaking, it will not be appropriate to terminate an agreement that has passed its nominal expiry date if bargaining for a replacement agreement is ongoing such that there remains a reasonable prospect that bargaining (in conjunction with protected industrial action and or employer response action) will result in a new agreement. By contrast, VP Watson held that agreement obligations may be ended at or after the nominal period of the agreement and that this is supported by the legislative scheme. Termination of the agreement does not preclude further enterprise bargaining. Regular revisions and renewal of enterprise arrangements is desirable: Energy Resources of Australia Ltd v Liquor, Hospitality and Miscellaneous Union [2010] FWA 2434; BC201070722 at [29]. In that case, the Vice President pointed out at [28] that: The agreement has long since passed its nominal period of operation. It has marginal relevance at the workplace level. It applies to less than 1% of employees. The benefits it provides to employees are primarily intended to be retained for those employees and are subject to an undertaking to that effect. The Full Bench in Aurizon Operations v Tristar Ltd; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd, [2015] FWCFB 540 strongly rejected the proposition that termination is inappropriate if bargaining is continuing. The Full Bench held at [151]: Section 226 of the Act is part of the simple, flexible and fair framework, established by Part 2-4 to which the objects in s 171 relate. There is nothing inherently inconsistent with the termination of an enterprise agreement that has passed its nominal expiry date and collective bargaining in good faith. There is nothing incompatible with the termination of such an agreement and the continuation of collective bargaining that has commenced in good faith at an enterprise level for an enterprise agreement that delivers productivity benefits. The framework that is established by Part 2–4 provides for applications and orders to be made for the termination of an enterprise agreement that has passed it nominal expiry date. It is not too difficult to suppose that such an agreement in particular circumstances might no longer deliver productivity benefits, or that such an agreement has never done so. It is not too difficult to suppose that the termination of such an agreement might better support good faith bargaining for an agreement that delivers productivity benefits at the enterprise level. In Tahmoor Coal, VP Lawler said at [43] that if the employees and employer are in agreement as to termination of an expired agreement then it would require “exceptional circumstances” for the tribunal to consider that it was other than appropriate to terminate the agreement. The Commission may take into account whether the termination is likely to lead to an appreciable and unmatched shift of the parties’ bargaining position: Metropolitan Fire & Emergency Services Board [2014] FWC 7776 at [283]. [6-4120.15] Employee — s 226(b)(i), (ii) See s 170. [6-4120.20] Employer — s 226(b)(i), (ii) See s 170. [page 359]

[6-4120.25] Enterprise agreement — s 266 See s 12. [6-4120.30] FWC — s 226(a), (b) See s 12. [6-4120.35] Must — s 226 In dealing with an earlier version of the section, the Full Bench of the AIRC stated in Australian Workers’ Union v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2007] AIRCFB 506; (2007) 164 IR 361 at [25], per Giudice J and Spencer C that: Although the determination of an application under that section involves a discretionary decision, the section does not confer a discretion to terminate or not to terminate the agreement. The Commission is directed to terminate the agreement subject to a condition precedent … If the Commission does not form the requisite opinion the application must be dismissed. No other course is available. The Commission may however order that the termination take effect from a later date. See Smart [2014] FWCA 4876 at [93] where Hampton C held that: There are however factors arising from the circumstances of the parties that impact upon the discretion as to when the termination will take effect. That is, whilst not leading to a view that the termination would be contrary to the public interest or inappropriate, the need for the parties to deal with the consequences of the termination is such that a reasonably lengthy lead time for the termination would be appropriate. These considerations include most importantly, the requirement to renegotiate and/or confirm written commission-only remuneration arrangements that would operate under the terms of the modern award. This is not necessarily a straight forward exercise given the strongly held and divergent views about the operation of commission arrangements beyond the minimum commission-only payments required by the modern award. Further, some delay would permit the opportunity to negotiate a new enterprise agreement should that course of action ultimately be supported by the majority of employees. [6-4120.40] Public interest — s 226(a) In The Australian Workers’ Union [2015] FWCA 3956 at [14], Commissioner Gregory summarised the authorities and held that: The decisions also make clear that all of the relevant circumstances should be taken into account in considering what is in the public interest, but for the most part the Commission should be guided by the likely foreseeable consequences for the public interest of termination of an Agreement, rather than being guided by speculation about possible consequences. In Re Tahmoor Coal Pty Ltd (2010) 204 IR 243; [2010] FWA 6468 VP Lawler considered s 226(a) and cited the full bench of the AIRC in Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) EOC 93-396; 139 IR 34 at [23], Print PR955357: The notion of public interest refers to matters that might affect the public as a whole such as the achievement or otherwise of the various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standards. An example of something in the last category may be a case in which there was no applicable award and the termination of the agreement would lead to an absence of award coverage for the employees. While the content of the notion of public interest cannot be precisely defined, it is distinct in nature from the interests of the parties. And although the public interest and the interests of the parties may be simultaneously affected, that fact does not lessen the distinction between them. [page 360]

That theme was continued in Aurizon Operations Ltd; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB 540 at [131] where the Full Bench held that: Section 226, unlike s 170MH(3) of the WR Act, clearly requires the interests of the persons or bodies covered by an agreement to be taken into account. Those interests are considered separately from the question of the public interest… There are two ways the effect of the termination of an agreement can be significant. The first is generally a reduction in costs to the employer: see Australian Workers’ Union v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2007) 164 IR 361; [2007] AIRCFB 506 at [32]. See by contrast Australian Exhibitions & Conferences Australasia Pty Ltd t/as Australian Exhibitions & Conferences [2012] FWAA 551; BC201270082 at [9]. The second effect can be to create a platform of wages and conditions for future bargaining. As Commissioner Roe has said: It has certainly been the case since the introduction of a legislative scheme for collective bargaining in Australia that the platform for bargaining replacement agreements has been with very few exceptions the old agreement. That is, the terms and conditions provided by the old agreement remain in place until a new agreement is negotiated by the parties. There has never been a drop dead date for agreements. The FW Act reinforces this by making the unilateral termination of agreements more difficult including by the introduction of s 226(b) and by the removal of any equivalent to Section 393 of the WR Act. The FW Act also reinforces this by removing the option of statutory individual contracts and by encouraging and facilitating bargaining in good faith: Royal Automotive Club of Victoria [2010] FWA 3483 (30 April 2010) at [23]. The Full Bench of the AIRC stated in Australian Workers’ Union v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Tristar (2007) 164 IR 361; [2007] AIRCFB 506 at [26] that: Reductions in conditions might not always attract the public interest, since reductions in conditions would usually follow an order … In this case, however, the public interest is attracted because of Tristar’s failure to observe various important, directly relevant, agreement obligations. That failure raises issues about fairness to Tristar’s employees and the unions. It also raises broader issues about fairness to employers who do observe their agreement and other workplace relations obligations and about the observance of agreements generally. These broader issues clearly attract the public interest: In Royal Automotive Club of Victoria [2010] FWA 3483; BC201070595 at [34]; Cmr Roe examined the authorities and held: The general principles set out in the Kellogg Brown and Root decision quoted above still apply. The previous cases together with the changed context created by the new legislation suggest that the following factors are now particularly relevant to a finding that it is not in the public interest to terminate an agreement: Whether the safety net will be significantly undermined? Whether vulnerable employees will be affected? Whether the objective of good faith bargaining and the making of agreements will be harmed? Whether the provisions of the Agreement itself in respect to renegotiation of the agreement would be compromised as this would undermine the integrity of bargaining and agreements? Whether the right of employees to be represented and or have access to effective dispute resolution procedures would be significantly affected?

[page 361] Whether there are any specific circumstances concerning the impact on the economy or the business, productive work, the maintenance of respect for observance of the terms of agreements, fair industrial relations, or work and family balance? In Aurizon Operations Ltd; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB 540, a Full Bench of the Commission — over vigorous opposition from affected employees and their unions — terminated 14 enterprise agreements negotiated in around 2010. The decision in Aurizon, on one view, involved a significant departure from the approach adopted in the earlier authorities. Unlike many of the agreements considered in other cases, which in many cases had expired years earlier and had limited continuing relevance, the Aurizon agreements had expired 18 months before the Full Bench decision and continued to govern the terms and conditions of the vast majority of the company’s employees. Although progress in bargaining was incremental, no stalemate had been reached. In those circumstances it might have been considered unlikely, on the Commission’s previous approach, that the agreements would be terminated. The Full Bench did however terminate the agreements, rejecting the unions’ contention that termination would undermine collective bargaining or was otherwise contrary to the public interest: [158] As we have earlier indicated, there is nothing inherently inconsistent with the termination of an enterprise agreement that has passed its nominal expiry date and the continuation of collective bargaining in good faith for an agreement. Neither the Unions nor Aurizon have suggested that bargaining will stop if the agreements are terminated. Neither have suggested that they will not pursue new agreements or that they will cease bargaining if the agreements are terminated. [159] While we accept that a termination of the agreements will disturb the current bargaining positions, we do not accept, as the Unions submit, that this is counter to the object of a fair framework for collective bargaining and facilitating good faith bargaining. Collective bargaining will remain available to the bargaining parties. The bargaining parties in their bargaining will continue to be required to meet the good faith bargaining requirements. The disturbance of the bargaining position does not result in the disappearance of collective bargaining or the rules by which the bargaining parties must abide. [160] Moreover the Unions and employees will have available to them the full arsenal of tools under the Act to exert legitimate industrial pressure on Aurizon to bargain and to reach agreement. It is therefore not correct that the termination of the agreements results in little or no incentive on Aurizon to bargain. Also notable was the Commission’s tacit disapproval of some of the content of the agreements. The perceived restrictiveness of some of the agreements’ provisions were clearly a factor weighing in favour of termination: [164] The circumstances in which the agreements were made is a significant factor. As part of the privatisation processes the Queensland government required Aurizon to provide a three year employment guarantee and formalise that in the enterprise agreements. The pressure exerted by the government led to other concessions to claims that Aurizon would not have otherwise agreed on. The three year period expired some 18 months ago, yet they continue to apply, and to restrain Aurizon’s capacity to conduct its business more effectively and productively. [165] Many of the provisions sought to be removed or varied are not common in most enterprise agreements. They restrict Aurizon in making business changes that it wishes to make in response to a competitive market situation. The restrictive provisions restrain Aurizon’s capacity to effectively

manage its labour resource needs. Aurizon has endeavoured to negotiate changes to those provisions but the lengthy and comprehensive negotiations have not led to an [page 362] agreement. Many of the changes sought by Aurizon in the negotiations seem to us to be rationally based. We readily understand its desire that its now private sector business no longer be restrained by provisions that were effectively imposed through the privatisation process. We do not think the changes proposed, objectively viewed, involve exploitation or unfairness in the terms and conditions of employment of Aurizon employees. It appears that the Full Bench in Aurizon regarded the employer’s productivity as the preeminent factor in assessing the public interest. Whether that approach gain general approval, it remains to be seen. Certainly, the decision signals a greater preparedness to terminate expired agreements relatively quickly and gives comfort to employers hoping to free themselves from enterprise agreements regarded as restrictive or unproductive. The unions then sought judicial review of the decision. The application was dismissed by the Full Federal Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Aurizon Operations Ltd [2015] FCAFC 126; BC201508481. The Full Court held at [24] that: … [T]he importance of enterprise agreements in the regulation of terms and conditions of employment under the FW Act cannot be gainsaid. Neither can the central role of collective bargaining in that arena. But we would agree with the Commission insofar as it observed that there is no indication in the FW Act that the existence of a previously-negotiated enterprise agreement should, a priori, be regarded as providing particular encouragement to collective bargaining … [6-4120.45] Satisfied — s 226(a) The implications of a requirement that an administrative decision maker (such as the commission) is “satisfied” of a certain state of affairs have been considered in a number of cases. In Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360; [1949] ALR 792; (1949) 23 ALJR 322; BC4900120 Dixon J said: But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law. See also Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231; 97 IR 392; [1999] FCA 1660; BC9908097 at [17] and following. [6-4120.46] Terminate — s 226(b) In Alice Springs Resort Enterprises Pty Ltd T/A Chifley Alice Springs Resort [2015] FWC 5863, Commissioner Wilson found at [38]:

… The context of the word “terminate” within Part 2-4 of the Act is to bring the agreement to an end. The use of the definite article in the phrase “terminate the agreement” would indicate that the noun is a specific reference. There appears to be no power under those sections for the variation of an agreement to remove a party covered by it, or to terminate the agreement in respect of only a particular party covered. [page 363] [6-4120.47] The views of the employees — s 226(b)(i) As Commissioner Lee pointed out in Victorian Canine Association T/A Dogs Victoria re Victorian Canine Association/ASU Inc Enterprise Agreement 2005-2010 [2013] FWC 4260 at [31]: While the Act is clear that I need to consider the effect on each of employees, employers and organisations, it is not clear that I need to consider the effect on each employee. A vote of the employees is not necessarily determinative. As the Full Bench held in AWX Pty Ltd [2013] FWCFB 8726 at [23]: We do not share the view of AWX that a simple examination of the response to a vote is indicative or conclusive of the exercise of jurisdiction or not. Whether or not the jurisdiction is exercised, will depend on the particular facts and the opportunities presented to employees (or those covered by the agreement for that matter) to express a genuine view, free from any form of coercion. [6-4120.50] Outline of section The Minister stated in the Second Reading Speech — Workplace Relations Amendment (Transition To Forward With Fairness) Bill 2008 that: The previous Government’s Work Choices laws included one-sided provisions that allowed employers to unilaterally terminate a collective workplace agreement which had passed its nominal expiry date and return their staff to only a limited number of minimum standards. These provisions will be repealed. To allow them to stand would enable an employer to manipulate the benchmark against which ITEAs must pass a “no disadvantage test”. Under the Bill, a collective agreement will only be able to be terminated where the parties agree, or by the Australian Industrial Relations Commission in circumstances where termination would not be contrary to the public interest. In making its decision under this provision, the Commission would be required to have regard to all the circumstances of the case, including: Under the Bill, a collective agreement will only be able to be terminated where the parties agree, or by the Australian Industrial Relations Commission in circumstances where termination would not be contrary to the public interest. In making its decision under this provision, the Commission would be required to have regard to all the circumstances of the case, including: the views of each party bound by the agreement (including the employees subject to it) about whether it should be terminated; and the circumstances of each party bound by the agreement, including the likely effect on each party of the termination of the agreement. When an agreement is terminated, employees will be entitled to whatever award or workplace agreement would have applied to them but for the terminated agreement. As DP Sams held in SDV (Australia) Pty Ltd re SDV Australia Pty Ltd — Warehouse Collective Agreement 2008 — NSW [2013] FWC 5385 at [39]–[40]:

It is pellucidly clear that the legislature has deliberately made it more difficult to terminate an expired agreement than has been the case in the past. This is so, because unlike its predecessor legislation, (Workplace Relations Act, 1996) there is no capacity for the unilateral termination of an expired agreement, simply upon the giving of written notice by an employer. It seems to me that the continued operation of an expired agreement is desirable for the following policy reasons: [page 364] it permits the parties to negotiate from the standpoint of the “status quo” and there is no significant shift in the balance of the forces of bargaining; and employees do not suffer an immediate reduction in the terms and conditions of their expired agreement. Obviously, the practical effect of terminating an agreement is to substantially alter the “status quo” in relation to the bargaining process. The pendulum may have swung back from that apogee. The Full Bench in Aurizon Operations Ltd and others [2015] FWCFB 540 described the regime as thus: [126] The legislative scheme therefore enables and facilitates good faith bargaining for an enterprise agreement. It also facilitates the making of enterprise agreements but does not mandate that result. Once an enterprise agreement is made and approved by the Commission, it seems clear that the legislative scheme does not intend that such agreements operate in perpetuity. Agreements have a finite nominal life. At the end of the nominal life of an agreement, bargaining parties may bargain for a new agreement utilising all of the tools available under the Act; or a person to whom an agreement applies may take steps to bring the agreement to an end in accordance with the provisions of the Act; or both may occur.

* Commentary on s 226 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister. ____________________

[6-4140]

When termination comes into operation

227 If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement. COMMENTARY TO SECTION 227*

Derivation …. Enterprise agreement — s 227 …. Outline of section …. [6-4140.01] Derivation The section is new.

[6-4140.01] [6-4140.05] [6-4140.10]

[6-4140.05] Enterprise agreement — s 227 s 227 See s 12. [6-4140.10] Outline of section “… In most circumstances orders, decisions and determinations of the Commission operate from the date of publication of the Commission’s decision … However, it is to be observed that there is no statutory prohibition on the retrospective application for an order to terminate an expired enterprise agreement. Moreover, the terms of s 227 of the Act would appear to contemplate such an outcome …”: Catalina Country Club Ltd re Catalina Country Club Enterprise Agreement 2009 [2013] FWCA 2005 at [124]. The principles applicable to retrospective operation of orders were collected in Federated Ship Painters and Dockers Union of Australia v Adelaide Steamship Co Ltd (1960) 94 CAR 579 at 619–620. They include whether it is necessary to do so in the interests of justice and fair play; where there has been delay by one party; where very special reason exists and where there is agreement. The Commission has also held that an agreement may be determined prospectively. In Russell and others re SOS Nursing and Home Care Services Pty Ltd Employee Collective Agreement 2007 [2013] FWCA 3596 at [16] (26 June 2013), Cmr McKenna ordered that the termination take place prospectively to allow: … the employer reasonable time to effect necessary administrative arrangements arising from the termination of the Agreement. Deferral also has the additional effect of allowing time to [page 365] pursue the enterprise negotiations described in the evidence and submissions from the basis of award-based minima in circumstances where there is sharply competing contention as to whether the employees’ terms and conditions of employment under the Agreement are superior to, or inferior to, the application of modern award minima.

* Commentary to 227 updated by Ian Latham BA (Hons) LLB (ANU), Barrister. ____________________

DIVISION 8 — FWC’S GENERAL ROLE IN FACILITATING BARGAINING [Div 8 heading am Act 174 of 2012 s 3 and Sch 9 item 200, opn 1 Jan 2013]

Subdivision A — Bargaining orders

[6-4330] Bargaining representatives must meet the good faith bargaining requirements 228 (1) The following are the good faith bargaining requirements that a

bargaining representative for a proposed enterprise agreement must meet: (a) attending, and participating in, meetings at reasonable times; (b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner; (c) responding to proposals made by other bargaining representatives for the agreement in a timely manner; (d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals; (e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining; (f) recognising and bargaining with the other bargaining representatives for the agreement. Note: See also section 255A (limitations relating to greenfields agreements). [subs (1) am Act 156 of 2015 Sch 1 item 40, opn 27 Nov 2015]

(2) The good faith bargaining requirements do not require: (a) a bargaining representative to make concessions during bargaining for the agreement; or (b) a bargaining representative to reach agreement on the terms that are to be included in the agreement. COMMENTARY TO SECTION 228*

Derivation …. The meaning and implications of good faith bargaining …. Attending meetings — s 228(1)(a) …. Bargaining — s 228(1), (2), (a), (b) …. Bargaining representative — s 228(1)(f), (2), (2)(a), (b) …. Concession — s 228(a) …. Responding to proposals — s 228(c) ….

[6-4330.1] [6-4330.1.5] [6-4330.5] [6-4330.10] [6-4330.15] [6-4330.20] [6-4330.20.1] [page 366]

Responding to proposals — s 228(c) …. Capricious or unfair conduct — s 228(1)(e) …. Disclosing relevant evidence — s 228(1)(b) …. The negotiation process …. Reach agreement — s 228(2)(b) …. Requirements — s 228(1), (2) …. Outline of section ….

[6-4330.22] [6-4330.25] [6-4330.30] [6-4330.35] [6-4330.40] [6-4330.45] [6-4330.50]

[6-4330.1] Derivation The section is new. [6-4330.1.5] The meaning and implications of good faith bargaining The cornerstone of the agreement-making provisions of the Fair Work Act 2009 (FW Act) is the requirement that bargaining for agreements be conducted in “good faith”. The seven good faith bargaining requirements listed in s 228 of the FW Act revolve around the parties approaching the process of agreement making in an inclusive and collaborative manner. Offers made must be promptly considered and responded to — along with reasons for any response. Nevertheless, the requirements do not compel parties to reach an agreement or make concessions if they do not want to do so: s 228(2); Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (2012) 128 ALD 571; 290 ALR 326; [2012] FCA 764; BC201205252. Good faith bargaining exists in a number of overseas jurisdictions including the United States and New Zealand as well as in some state employment legislation such as the Industrial Relations Act 1979 in Western Australia. Good faith bargaining obligations also existed in federal employment laws prior to the introduction of the Workplace Relations Act 1996 (Cth): under s 170QK of the Industrial Relations Act 1988 (Cth), the Australian Industrial Relations Commission (AIRC) was able to make orders so as to ensure that parties that were negotiating an agreement did so in good faith. Despite the existence of that term, the AIRC determined in Asahi Diamond Industrial Australia Pty Ltd v Automotive Food Metals and Engineering Union (Asahi Test Case, March 1995) (1995) AILR 1165; 59 IR 385 that the industrial relations system (as then existed) facilitated bargaining but did not provide for compulsory negotiation. The requirements of good faith bargaining have been further clarified in 2012 by the decision of the full bench of Fair Work Australia, as it then was, in Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (Collieries’ Staff Division) (2012) 217 IR 131; [2012] FWAFB 1891, along with the decision in appeal proceedings before the Federal Court in Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (2012) 128 ALD 571; 290 ALR 326; [2012] FCA 764; BC201205252. The full bench of Fair Work Australia and the Federal Court of Australia confirmed that, despite the FW Act not explicitly requiring an employer to take any positive steps to satisfy good faith bargaining requirements, an employer who simply rejects proposals put by an employee representative may be found to not be bargaining in good faith. The Endeavour Federal Court decision also provides practical insight into how the FWC and the courts will approach compliance with the good faith bargaining requirements of the FW Act. The Federal Court’s decision confirms that the absence of any positive obligation in the FW Act does not mean that an employer can necessarily do nothing in the negotiation process. While the parameters of good faith bargaining will vary from case to case, employers and employees must, at the very least, bargain in good faith with the aim of agreeing on an enterprise agreement. There is a significant incentive to comply with the new good faith bargaining requirements of the

FW Act, given that the FWC is able to fine individuals $10,200 and a body corporate $51,000 for breach of a bargaining order: s 233 and Pt 4-1 of the FW Act. [6-4330.5] Attending meetings — s 228(1)(a) A decision to decline an offer for further conciliation under s 240 does not constitute a failure to attend and participate in meetings at reasonable times as contemplated by: Queensland Nurses’ Union of Employees v TriCare Ltd [2010] FWA 7416 (23 September 2010) at [30]. [page 367] [6-4330.10] Bargaining — s 228(1), (2), (a), (b) The term “bargaining” is not defined in the Fair Work Act. In the absence of a statutory definition, Flick J in Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (2012) 290 ALR 326; [2012] FCA 764; BC201205252 (19 July 2012) at [38]–[39], [41] stated: … recourse may thus be made to the common understanding of the terms employed. The term “bargain” is defined in The New Shorter Oxford English Dictionary (1993) as follows: “Discussion between two parties over terms; haggling … Illustrative of the process of ‘bargaining’ or ‘haggling’ is the exchange between Brian and the street merchant in Monty Python’s Life of Brian…”. The term “bargaining” involves the parties to the “bargaining” process engaging in a process of “give and take”. Moreover, “bargaining” in the present legislative context does not stand alone. It is to be construed as part of the phrase “good faith bargaining requirements”. Even in the absence of the phrase “good faith”, it may still have been concluded that a legislatively imposed requirement to “bargain” would also incorporate a requirement to do so in “good faith”… Even so, the express inclusion of the phrase “good faith” serves to reinforce the need for those who approach the bargaining process to do so in a genuine or “good faith” manner… [6-4330.15] Bargaining representative — s 228(1)(f), (2), (2)(a), (b) See s 12. [6-4330.20] Concession — s 228(a) Construed as part of the composite phrase, “concessions during bargaining”, s 228(2)(a) is directed to ensuring that a party subject to the “good faith bargaining requirements” need not concede or yield something which is being asked of him during that bargaining process: Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (2012) 290 ALR 326; [2012] FCA 764; BC201205252 (19 July 2012) at [57]. [6-4330.20.1] Responding to proposals — s 228(c) The content of the requirement to respond to proposals will vary from case to case. In Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (2012) 206 FCR 576; 290 ALR 326; [2012] FCA 764; BC201205252, Flick J said at [43]. … That which will satisfy those “requirements” will vary from case to case. At the outset of bargaining, one party’s “bargaining representative” may consider it in that party’s best interests to merely solicit or determine that which is being sought by another party. It may be that what the other party seeks is less than or within the range and scope of what may be on offer. In such cases, bargaining may well be completed quickly — one party seeking less than the other is prepared to give with both parties presumably happy to reach agreement. In other circumstances, one party’s representative may again attempt at the outset to merely ascertain what the other party is seeking. The bargaining may proceed by one party’s “bargaining representative” repeatedly making requests which may be repeatedly rejected. But at some stage during the process there may come a time when the combined effect of the “good faith bargaining requirements” requires the proffering of a

counter-proposal. To progress “bargaining” in compliance with s 228, a participant may be required to disclose what they may be prepared to tentatively accept — or to put its own proposals — will vary from case to case … It is both impossible and imprudent to devise a set course which all bargaining must follow. The manner in which one party may approach bargaining may, in some situations, be such that a failure to put a counter-proposal may not be a failure to meet the requirements imposed by s 228(1). The option, however, of one party sitting mute throughout the entire bargaining process — and not “putting” its own proposals — may in some situations fall short of the requirements imposed by s 228(1). A failure to respond to a substantially revised proposal from another bargaining representative may constitute a failure to bargain in good faith, even if the revised proposals come at the heel of [page 368] the hunt following an extended period of largely unsuccessful bargaining: Association of Professional Engineers, Scientists and Managers, Australia, The v Peabody Energy Australia Coal Pty Ltd [2015] FWCFB 1451. [6-4330.22] Responding to proposals — s 228(c) The content of the requirement to respond to proposals will vary from case to case. In Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (2012) 206 FCR 576; 290 ALR 326; [2012] FCA 764; BC201205252 Flick J said at [43]. … That which will satisfy those “requirements” will vary from case to case. At the outset of bargaining, one party’s “bargaining representative” may consider it in that party’s best interests to merely solicit or determine that which is being sought by another party. It may be that what the other party seeks is less than or within the range and scope of what may be on offer. In such cases, bargaining may well be completed quickly — one party seeking less than the other is prepared to give with both parties presumably happy to reach agreement. In other circumstances, one party’s representative may again attempt at the outset to merely ascertain what the other party is seeking. The bargaining may proceed by one party’s “bargaining representative” repeatedly making requests which may be repeatedly rejected. But at some stage during the process there may come a time when the combined effect of the “good faith bargaining requirements” requires the proffering of a counter-proposal. To progress “bargaining” in compliance with s 228, a participant may be required to disclose what they may be prepared to tentatively accept — or to put its own proposals — will vary from case to case. It is both impossible and imprudent to devise a set course which all bargaining must follow. The manner in which one party may approach bargaining may, in some situations, be such that a failure to put a counter-proposal may not be a failure to meet the requirements imposed by s 228(1). The option, however, of one party sitting mute throughout the entire bargaining process — and not “putting” its own proposals — may in some situations fall short of the requirements imposed by s 228(1). A failure to respond to a substantially revised proposal from another bargaining representative may constitute a failure to bargain in good faith, even if the revised proposals come at the heel of the hunt following an extended period of largely unsuccessful bargaining: Association of Professional Engineers, Scientists and Managers, Australia, The v Peabody Energy Australia Coal Pty Ltd [2015] FWCFB 1451. [6-4330.25] Capricious or unfair conduct — s 228(1)(e) The employer may have been trying to influence employee views, but it does not necessarily follow that its conduct undermined freedom of association or collective bargaining or that it acted capriciously or unfairly: Construction, Forestry,

Mining and Energy Union (Mining and Energy Division) v Tahmoor Coal Pty Ltd (2010) 195 IR 58; [2010] FWAFB 3510 (5 May 2010) at [29]. It is not intended to address any “capricious” conduct but more specifically such conduct that undermines freedom of association or collective bargaining: Queensland Nurses’ Union of Employees v TriCare Ltd [2010] FWA 7416 (23 September 2010) at [51]. [6-4330.30] Disclosing relevant evidence — s 228(1)(b) Fair Work Australia ruled that if an employer puts an agreement to an employee ballot without notifying the bargaining representative, the employer has breached its requirement to disclose all relevant information: Alphington Aged Care [2009] FWA 301; BC200970236 at [57]. In Construction, Forestry, Mining and Energy Union (Mining and Energy Division) v Tahmoor Coal Pty Ltd (2010) 195 IR 58; [2010] FWAFB 3510 the full bench made clear at [30] that there is no absolute requirement for the agreement of the bargaining agents prior to the conduct of a ballot. [6-4330.35] The negotiation process In National Union of Workers v Defries Industries Pty Ltd (2009) 187 IR 131; [2009] FWA 88 the employer was found to have breached the good faith [page 369] bargaining requirement to refrain from unfair conduct that undermines freedom of association or collective bargaining in negotiations, by failing to provide relevant information, participate in meetings and give timely responses to proposals from a union bargaining representative. In National Union of Workers v Patties Foods Ltd (2011) 211 IR 377; [2011] FWA 4103 the employer issued the non-union employee — appointed bargaining representatives with a letter informing them that they were not obliged to respond to the union’s request for information (such as contact details and logs of claims lodged to the employer). This employer conduct was found not to be in breach of the good faith bargaining requirement to refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining. In Liquor, Hospitality and Miscellaneous Union v Foster’s Australia Ltd (2009) 185 IR 267; [2009] FWA 750; BC200970402 the employer was found not to have breached the good faith requirements by refusing to allow a union to continue to hold paid meetings during working hours to discuss negotiations. In refusing the application Senior Deputy President Kaufmann said: [20] In my view FWA should be slow to interfere in the legitimate tactics undertaken by parties during the bargaining process unless an applicant for a bargaining order has demonstrated that there are sound reasons for so doing. There needs to be satisfaction that the good faith bargaining requirements are not being met. An order under s 230 is discretionary and may only be made if FWA is satisfied that it is reasonable in all the circumstances to make the order. [21] In the circumstances of this case, Fosters did not breach the good faith bargaining requirements of s 228. More particularly, it refrained from capricious or unfair conduct that undermines freedom of association or collective bargaining. In refusing to allow meetings that had as one of their purposes consideration of authorizing the potential taking of industrial action against it, Fosters cannot be criticised. In Transport Workers’ Union of Australia v TNT Australia Pty Ltd [2011] FWA 1543; BC201170325 a different result obtained. There the employer, in response to protected industrial action, discontinued a number of practices previously observed at its various sites. The practices, which included the practice of not insisting on formal notice of entry by union officials and of allowing union

delegates to attend committee of management meetings on paid time, were discretionary in the sense they were not mandated by an enterprise agreement or any other law or instrument. Notwithstanding that the employer was not legally obliged to continue to observe those discretionary practices, Commissioner Cambridge accepted the union’s contention that the withdrawal of the discretionary benefits as a result of protected industrial action was capricious and unfair conduct which undermined freedom of association and collective bargaining. [6-4330.40] Reach agreement — s 228(2)(b) In general the legislative scheme might be described as one which seeks to promote agreement making but which does not compel parties to make concessions or to reach agreement. There is nothing inconsistent about encouraging parties to make agreements — and imposing an obligation upon them to try to do so — but at the same time not compelling parties to make concessions in bargaining. In Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (2012) 290 ALR 326; [2012] FCA 764; BC201205252 at [45] Flick J found that within the context of Div 8 the imposition of “good faith bargaining requirements” and the making of a “bargaining order” would have no force or be of little value if a party to such “bargaining” either: did not participate with the objective of ultimately reaching agreement, if possible; and did not participate in the bargaining process in “good faith” and in a genuine process of “give and take”, including (if appropriate) the putting forward of matters which it tentatively may indicate could possibly be included in an “enterprise agreement” if other requirements or conditions can be agreed upon. [page 370] Further, at [45] and [48]: This conclusion is supported by the remaining introductory words to s 228(1), namely “… for a proposed enterprise agreement…”. It is clear from that phrase that the legislative purpose is to impose upon a party, not merely a requirement to “bargain” in “good faith”, but a requirement to bargain to achieve an objective, if possible, namely an “enterprise agreement”… It may nevertheless be accepted that “good faith bargaining” may fail. As the Regulatory Analysis set forth in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) states: r 174. Where bargaining representatives cannot agree regarding agreement content, they will be able to jointly walk away (in which case the workplace arrangements already in place would remain in force), take protected industrial action or jointly seek FWA’s assistance in determining a settlement… The requirements set forth in s 228(1), accordingly, do not require “bargaining” to proceed until an “enterprise agreement” is ultimately reached. The fact that s 228(2) expressly recognises that agreement on terms is not required expressly contemplates the possibility that bargaining may cease without agreement being reached. But “good faith bargaining” does require all “bargaining representatives” to approach their task in “good faith” and with a view to achieving agreement — if possible. [6-4330.45] Requirements — s 228(1), (2) The good faith bargaining requirements which bargaining representatives are required to meet are set out in s 228 of the Act. Importantly, these requirements go beyond what might be considered procedural matters such as attending meetings, disclosing relevant information and responding to proposals: Endeavour Coal Pty Ltd v Association of Professional

Engineers, Scientists and Managers, Australia (Collieries’ Staff Division) [2012] FWAFB 1891 at [26]. Construed in its entirety, the “good faith bargaining requirements” impose conditions which are “called for or demanded…”. That which will satisfy those “requirements” will vary from case to case … It is both impossible and imprudent to devise a set course which all bargaining must follow. The manner in which one party may approach bargaining may, in some situations, be such that a failure to put a counter-proposal may not be a failure to meet the requirements imposed by s 228(1). The option, however, of one party sitting mute throughout the entire bargaining process — and not “putting” its own proposals — may in some situations fall short of the requirements imposed by s 228(1): Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (2012) 290 ALR 326; [2012] FCA 764; BC201205252 at [43]. While there is a relationship between the good faith bargaining requirements and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement: Esso Australia Pty Ltd v AMWU [2015] FWCFB 210 at [18]. [6-4330.50] Outline of section Whether a party observes or fails to observe the good faith bargaining requirements set out in s 288(1) is to be determined in light of all of the relevant circumstances. Construction, Forestry, Mining and Energy Union (Mining and Energy Division) v Tahmoor Coal Pty Ltd [2010] FWAFB 3510; (2010) 195 IR 58 at [24]. Good faith bargaining has a rich legal history in the North American and New Zealand jurisdictions: Alex Bukarica and Andrew Dallas, Promoting Good Faith Bargaining under Australia’s Fair Work Act 2009 p 21. As those writers make clear, the influence of that jurisprudence has been limited. As the full bench held in Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (Collieries’ Staff Division) [2012] [page 371] FWAFB 1891 at [21]: Whilst the various approaches taken in ensuring parties bargain in good faith are of interest, the jurisprudence developed in different industrial relations and legislative contexts must be viewed with caution in considering the good faith bargaining obligations under the Fair Work Act. See also Anthony Forsyth, The impact of “good faith” obligations on collective bargaining practices and outcomes in Australia, Canada and the USA, http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1645714. There is considerable debate amongst Canadian writers as to the value of such provisions. As Michael Bendel wrote in A rational process of persuasion: Good Faith bargaining in Ontario, Vol 30, no 1, The University of Toronto Law Journal, p 1 at p 2, there is a widespread feeling among labour relations practitioners that good faith cannot be generated by legislation. In Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (2012) 206 FCR 576; 290 ALR 326; [2012] FCA 764; BC201205252 Flick J stated at [31]: [I]t is neither possible nor prudent to attempt any exhaustive statement as to what will constitute compliance with the “good faith bargaining requirements” in the present statutory context. Clearly enough, whatever the reach of s 288(1), any “requirements” imposed by that provision are limited in scope by the matters contained in s 228(2). In that case, Flick J went on to describe at [34] how: … once a “majority support determination” has been made, Endeavour Coal must thereafter approach “bargaining” with the Association with a genuine (or “good faith”) objective or intention of concluding an “enterprise agreement” — if possible. What is required is that those participating in the “bargaining” must keep an “open mind” as to the prospect of ultimately reaching agreement

… It is further concluded that a “bargaining representative” may be held to have fallen short of the “requirements” set forth in s 228(1) if there is a failure to put forward for consideration a proposal or a counter-proposal or suggested terms which may be acceptable. The manner in which Endeavour Coal approaches “bargaining” is, subject to s 228(1), largely a matter for it to determine. Section 228(1) does not require a party to “bargain” in any particular manner … But, within the bounds of the “good faith bargaining requirements” set forth in s 228(1), Endeavour Coal is certainly not required to put self-interest to one side. Indeed, s 228(2) clearly contemplates that no party to the bargaining process is required to do so. Albeit in the context of construing a contractual obligation to act in “good faith”, it has been recognised that “good faith does not require a party to act in the interests of the other party or to subordinate its own legitimate interest to the interests of the other party”. In Of ‘Kamikazes’ and ‘Mad Men’: The Fallout from the Qantas Industrial Dispute MULE Vol 36: 785 2013 at 811, Forsyth and Stewart have pointed out the: … tension in the Act between the obligation to engage in good faith bargaining and the capacity to take protected industrial action in support of bargaining claims. The legislation effectively provides for two processes that are fundamentally at odds with each other: cooperative negotiation and industrial conflict. In particular, the capacity of parties to utilise protected industrial action under pt 3-3 of the Act is not limited by any requirement to engage (first) in good faith bargaining — or indeed for bargaining to have commenced at all. It is necessary … for anyone taking protected action to be genuinely trying to reach agreement… But it is also not hard to imagine circumstances in which a party may adopt unfair bargaining tactics that breach the good faith bargaining rules, yet still be able to establish that they are genuinely trying to reach agreement. *Editor’s note: Commentary on “Disclosing relevant evidence” and “The negotiation process” prepared by Joe Catanzariti, Partner, Clayton Utz and Michael Byrnes, Special Counsel, Clayton Utz. Commentary on “Responding to proposals” and “The negotiation process” prepared by Oshie Fagir, Barrister, State Chambers. All other commentary to s 228 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________ [page 372]

[6-4350]

Applications for bargaining orders

229 Persons who may apply for a bargaining order (1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement. Note: See also section 255A (limitations relating to greenfields agreements). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 201, opn 1 Jan 2013; Act 156 of 2015 Sch 1 item 41, opn 27 Nov 2015]

Multi-enterprise agreements (2) An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement. Timing of applications (3) The application may only be made at whichever of the following times applies: (a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement: (i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or (ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved; (b) otherwise — at any time. Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.

Prerequisites for making an application (4) The bargaining representative may only apply for the bargaining order if the bargaining representative: (a) has concerns that: (i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or (ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and (b) has given a written notice setting out those concerns to the relevant bargaining representatives; and (c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns. Non-compliance with notice requirements may be permitted (5) The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so. [subs (5) am Act 174 of 2012 s 3 and Sch 9 items 202, 203, opn 1 Jan 2013]

[page 373] COMMENTARY TO SECTION 229

Bargaining agents …. Timing requirements …. Reasonable time — s 229(4)(c) …. The bargaining representatives considers that the relevant bargaining representatives have not responded appropriately to concerns — s 229(4)(d) ….

[6-4350.1] [6-4350.1.5] [6-4350.05]

[6-4350.10]

[6-4350.1] Bargaining agents In Bowers v Victoria Police [2011] FWA 2862 at [29] Fair Work Australia rejected an application by a bargaining representative for paid leave to attend negotiations. Smith C was of the view that an employer’s good faith obligations do not extend as far as allowing paid leave for bargaining representatives. Smith C further noted that “for an employee to act as a bargaining representative it is essentially a voluntary act”. [6-4350.1.5] Timing requirements The timing requirements relate to employees that are already covered by an enterprise agreement and will be covered by a proposed enterprise agreement. In such a situation, an application for a bargaining order may only be made if the existing enterprise agreement is due to expire within 90 days, or if an employer has requested that employees approve a proposed agreement but approval has not yet been given: s 229(3). [6-4350.05] Reasonable time — s 229(4)(c) In Australian Manufacturing Workers’ Union (AMWU) v Galintel Rolling Mills Pty Ltd T/A The Graham Group [2011] FWA 6326; BC201171636 at [43], when considering whether the relevant bargaining agents were given “reasonable time” to respond to concerns under s 229(4)(c), FWA took into account the fact that the bargaining representatives are employees themselves and that they will have general obligations to attend work and perform their normal duties during work hours. Accordingly, where an employee with work commitments is a bargaining representative, the framework established for the bargaining process should take account of this in order to comply with s 229(4)(c). It is important to establish a balance between the employer’s usual desire to conclude an enterprise agreement within a relatively short time frame with the time constraints that might naturally apply to a

bargaining representative who is not professionally engaged in the negotiation of the agreement, but rather needs to fit in the performance of their usual employment duties. [6-4350.10] The bargaining representatives considers that the relevant bargaining representatives have not responded appropriately to concerns — s 229(4)(d) The procedural requirements (set out in s 229(4)) mandate that the party that believes that another party (or parties) is not acting in good faith — or even simply believes that the bargaining process is not operating efficiently due to the number of bargaining representatives involved — must communicate their concerns to the other party in writing, and afford them a reasonable opportunity to respond to this communication. The bargaining representative may only seek bargaining orders from the FWC if the response is unsatisfactory, or no response at all is received. The FWC also has discretion to consider applications where the appropriate written notice and opportunity to respond has not been provided by one party to the other. Case Section 229(4) of the Act establishes jurisdictional pre-requisites for the making of an application for a bargaining order. In Australian Nursing Federation v Victorian Hospitals’ Industrial Association [2012] FWA 285, the VHIA submitted that the ANF has not given written notice of its concerns as required by s 229(4)(b) to the extent that it sought orders in respect of alleged contraventions of good faith bargaining requirements which were not the subject of its correspondence, dated 25 November 2011. However, having regard to the contents of the ANF correspondence of 25 November 2011, Commissioner Jones felt that the ANF had fulfilled the requirement of written notice set out under s 229(4)(b). Further, the [page 374] Commissioner was satisfied that the ANF had given the VHIA a reasonable time within which to respond to those concerns and that the ANF considered the VHIA had not responded appropriately to those concerns. In Australian Manufacturing Workers’ Union (AMWU) v Galintel Rolling Mills Pty Ltd T/A The Graham Group [2011] FWA 6326; BC201171636 at [56] and [57], FWA considered that the “plain language of s 229(4)(d) makes clear that the test is a subjective one. If the applicant for a bargaining order does not consider that the other relevant bargaining representatives have responded appropriately to the concerns raised then that is all that is required to meet the test in s 229(4)(d). There is nothing in the language of s 229(4)(d) which would require or even permit the tribunal to have regard to the reasonableness of the position adopted by the applicant for a bargaining order.”

____________________

[6-4370] order

When the FWC may make a bargaining

230 Bargaining orders (1) The FWC may make a bargaining order under this section in relation to a proposed enterprise agreement if: (a) an application for the order has been made; and

(b) the requirements of this section are met in relation to the agreement; and (c) the FWC is satisfied that it is reasonable in all the circumstances to make the order. Note: See also section 255A (limitations relating to greenfields agreements). [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 205, 206, opn 1 Jan 2013; Act 156 of 2015 Sch 1 item 42, opn 27 Nov 2015]

Agreement to bargain or certain instruments in operation (2) The FWC must be satisfied in all cases that one of the following applies: (a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement; (b) a majority support determination in relation to the agreement is in operation; (c) a scope order in relation to the agreement is in operation; (d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 207, opn 1 Jan 2013]

Good faith bargaining requirements not met (3) The FWC must in all cases be satisfied: (a) that: (i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or (ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and (b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 207, opn 1 Jan 2013]

[page 375] Bargaining order must be in accordance with section 231 (4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify). [s 230 am Act 174 of 2012 s 3 and Sch 9 item 204, opn 1 Jan 2013] COMMENTARY TO SECTION 230

Bargaining orders …. When does bargaining commence ….

[6-4370.1] [6-4370.5]

[6-4370.1] Bargaining orders The FWC has the discretion to make a bargaining order when a bargaining representative has made an application for such an order (s 230(1)(a)). It has to be satisfied that the circumstances make it reasonable to make the order (s 230(1)(c)). Certain other requirements also need to be met (s 230(1)(b)). A bargaining order can only be made if one of the following applies (s 230(2)): — the employer(s) has (have) agreed to or initiated bargaining; — a majority support determination is in place in respect of the agreement; — a scope order about the agreement is in place; or — the relevant employers are all identified in a low-paid authorisation applying in respect of the agreement. Also, the FWC must be satisfied that either one or more bargaining representative has not or is not meeting the good faith bargaining requirements or that bargaining is not advancing fairly or efficiently due to the presence of multiple bargaining representatives (s 230(3)(a)). Case The good faith bargaining requirements in s 228(1), to meet with the other party, to give timely responses to proposals based on genuine consideration, and to provide reasons for those responses, are not always crystal clear. Consequently, there have been numerous cases so far in which FWA distinguishes between what does or does not constitute a breach of the good faith bargaining requirements. Construction, Forestry, Mining and Energy Union (CFMEU) (Mining and Energy Division) v Tahmoor Coal Pty Ltd (2010) 195 IR 58; [2010] FWAFB 3510 confirms a wide application by FWA in cases dealing with the good faith bargaining requirements outlined in s 288 of the FWA. The Full Bench stated at [24]: Whether a party observes or fails to observe the good faith bargaining requirements set out in s 228(1) is to be determined in light of all of the relevant circumstances. While at one level this is stating the obvious, it is appropriate in view of the submissions in the appeal to indicate that the question will rarely be decided by reference to one action or series of actions. Equally it would be undesirable to read into the legislation concepts which do not already appear in it for the purpose of explaining its operation. That approach is likely to lead to error in the construction and application of the provisions. In Endeavor Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers,

Australia (Collieries’ Staff Division) [2012] FWAFB 1891; (2012) 217 IR 131 (Endeavour), the tribunal looked to the bargaining process between the parties to determine whether a “genuine endeavour” was made to negotiate an agreement. At first instance, Commissioner Roberts held that the company was not bargaining with Collieries’ Staff Division in good faith, and made orders as to actions which the company should take in relation to the process. Upon appeal, a full bench granted the appeal and varied the bargaining order made by Commissioner Roberts accordingly. In its grounds of appeal, the company submitted that the Commissioner erred in taking the view that good faith bargaining means that parties must bargain in a manner intended to conclude an agreement. However, the full bench held that the good faith bargaining [page 376] requirements do not require parties to make concessions during bargaining or to reach agreement on terms to be included in an agreement (s 228(2)). Further, the full bench held it is an important element of the bargaining process that parties provide a formal indication of the issues and proposals sought by them in relation to a proposed agreement. The failure to do so might be held to be contrary to the good faith bargaining requirements established by s 228(1)(b) of the Act and in particular the requirement to “bargain” (s 228(1)(f)) and to refrain from unfair conduct that undermines collective bargaining (s 228(1)(e)). Endeavour Coal applied for judicial review of the full bench decision: Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (2012) 128 ALD 571; 290 ALR 326; [2012] FCA 764; BC201205252. In determining the application Flick J held that, once a majority support determination is made (or, presumably, once an employer has agreed to bargain) an employer must approach bargaining with a genuine objective or intention of concluding an enterprise agreement. While emphasising that the conduct which will require the good faith bargaining requirements will vary from case to case, his Honour indicated that the bargaining requirements may require the proffering of a counter offer or an indication of the proposals which it would be willing to accept. That is not to say however, that a party is required to make any concessions; it simply means that “sitting mute” and not offering any positive proposals may fall short of the s 228 requirements. The decision of Construction, Forestry, Mining and Energy Union v Baulderstone Pty Ltd [2012] FWA 1356; BC201270778 examines the good faith bargaining requirements addressing the issue of timing of ballots. In this case, an employer was entitled to put a proposed agreement to a ballot of employees, after five months of discussion and seven meetings with the union, despite the union wanting further negotiations. Senior Deputy President Richards observed that: [33] It does not appear to me that there is any legislative requirement that the bargaining representatives must reach a mutually agreed impasse or objectively discernable stalement in the conduct of their agreement negotiations before such time as a proposed agreement may be put to the workforce. In other decisions, the Australian Nursing Federation (ANF) and the Victorian Hospitals Industrial Association (VHIA) applied for bargaining orders. In Australian Nursing Federation v Victorian Hospitals’ Industrial Association [2012] FWA 285, Commissioner Jones rejected the union’s bargaining order application, which was based on allegations including that the VHIA was not sufficiently independent of the Victorian Government to be able to comply with the good faith bargaining requirements; and that the VHIA failed to provide information in breach of s 228(1)(b). Of importance was the union’s claim that the VHIA had sought to delay the negotiations with a view to engineering the circumstances for an arbitrated outcome to occur (in accordance with a

leaked Victorian Cabinet document). Commissioner Jones found that the strategy outlined in that document set out a number of options including arbitration, but also “an acceptable agreement” as the Government’s preferred outcome. Compliance with the strategy did not amount to breach of the good faith bargaining obligations. [6-4370.5] When does bargaining commence In Stuartholme School v Independent Education Union of Australia [2010] FWAFB 1714; (2010) 192 IR 29, an appeal was lodged against two decisions of SDP Richards granting protected action ballots. The employers argued that bargaining had not commenced because the appellants and the union were in dispute as to whether two enterprise agreements should be made or whether there should be 23 agreements. The Full Bench held at [24] that the terms of s 238 concerning scope orders unambiguously suggest that bargaining may have commenced under the Fair Work Act 2009 even though the parties to the bargaining process are in disagreement about the scope of the proposed agreement. [page 377] It should be noted however that agreement to bargain may be given subject to a condition as to scope. In MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2010] FWAFB 6519; (2010) 197 IR 294, the full bench said at [16]: An employer is not obliged to agree to bargain or to commence bargaining for an enterprise agreement in response to a union or other employee bargaining representative proposing an enterprise agreement. An employer can refuse to bargain for an enterprise agreement or can make its agreement to commence bargaining subject to a condition precedent as to the scope of any agreement. If the union or other employee bargaining representative does not accept that condition precedent as to scope, the employer is entitled to refrain from bargaining or agreeing to bargain and the employee bargaining representative’s remedy is to seek a majority support determination under s 236 of the FW Act.

____________________

[6-4390]

What a bargaining order must specify

231 (1) A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following: (a) the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements; (b) requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining; (c) the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct; (d) such matters, actions or requirements as the FWC considers

appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 208, opn 1 Jan 2013]

(2) The kinds of bargaining orders that the FWC may make in relation to a proposed enterprise agreement include the following: (a) an order excluding a bargaining representative for the agreement from bargaining; (b) an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining; (c) an order that an employer not terminate the employment of an employee, if the termination would constitute, or relate to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining); (d) an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 208, opn 1 Jan 2013]

[page 378] (3) The regulations may: (a) specify the factors the FWC may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and (b) provide for the FWC to take action and make orders in connection

with, and to deal with matters relating to, a bargaining order of that kind. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 208, opn 1 Jan 2013]

[6-4410]

Operation of a bargaining order

232 A bargaining order in relation to a proposed enterprise agreement: (a) comes into operation on the day on which it is made; and (b) ceases to be in operation at the earliest of the following: (i) if the order is revoked — the time specified in the instrument of revocation; (ii) when the agreement is approved by the FWC; (iii) when a workplace determination that covers the employees that would have been covered by the agreement comes into operation; (iv) when the bargaining representatives for the agreement agree that bargaining has ceased. Note: See also section 255A (limitations relating to greenfields agreements). [s 232 am Act 174 of 2012 s 3 and Sch 9 item 209, opn 1 Jan 2013; Act 156 of 2015 Sch 1 item 43, opn 27 Nov 2015]

[6-4430]

Contravening a bargaining order

233 A person to whom a bargaining order applies must not contravene a term of the order. Note: This section is a civil remedy provision (see Part 4-1).

Subdivision B — Serious breach declarations

[6-4570] Applications for serious breach declarations 234 A bargaining representative for a proposed enterprise agreement may apply to the FWC for a declaration (a serious breach declaration) under section 235 in relation to the agreement. Note 1: The consequence of a serious breach declaration being made in relation to the agreement is that

the FWC may, in certain circumstances, make a bargaining related workplace determination under section 269 in relation to the agreement. Note 2: See also section 255A (limitations relating to greenfields agreements). [s 234 am Act 174 of 2012 s 3 and Sch 9 item 210, opn 1 Jan 2013; Act 156 of 2015 Sch 1 item 44, 45, opn 27 Nov 2015]

[6-4590] When the FWC may make a serious breach declaration 235 Serious breach declaration (1) The FWC may make a serious breach declaration in relation to a proposed enterprise agreement if: (a) an application for the declaration has been made; and [page 379] (b) the FWC is satisfied of the matters set out in subsection (2). Note: See also section 255A (limitations relating to greenfields agreements). [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 212, 213, opn 1 Jan 2013; Act 156 of 2015 Sch 1 item 46, opn 27 Nov 2015]

Matters of which the FWC must be satisfied before making a serious breach declaration (2) The FWC must be satisfied that: (a) one or more bargaining representatives for the agreement has contravened one or more bargaining orders in relation to the agreement; and (b) the contravention or contraventions: (i) are serious and sustained; and (ii) have significantly undermined bargaining for the agreement; and (c) the other bargaining representatives for the agreement (the designated bargaining representatives) have exhausted all other reasonable alternatives to reach agreement on the terms that should be included in the agreement; and

agreement on the terms that should be included in the agreement will not be reached in the foreseeable future; and (e) it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement. (d)

[subs (2) am Act 174 of 2012 s 3 and Sch 9 items 214, 215, opn 1 Jan 2013]

Factors the FWC must take into account in deciding whether reasonable alternatives exhausted (3) In deciding whether or not the designated bargaining representatives have exhausted all other reasonable alternatives to reach agreement on the terms that should be included in the agreement, the FWC may take into account any matter the FWC considers relevant, including the following: (a) whether the FWC has provided assistance under section 240 in relation to the agreement; (b) whether a designated bargaining representative has applied to a court for an order under Part 4-1 in relation to the contravention or contraventions referred to in paragraph (2)(a) of this section; and (c) any findings or orders made by the court in relation to such an application. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 216, 217, opn 1 Jan 2013]

What declaration must specify (4) The declaration must specify: (a) the proposed enterprise agreement to which the declaration relates; and (b) any other matter prescribed by the procedural rules. Operation of declaration (5) The declaration: (a) comes into operation on the day on which it is made; and (b) ceases to be in operation when each employer specified in the declaration is covered by an enterprise agreement or a workplace determination. [s 235 am Act 174 of 2012 s 3 and Sch 9 item 211, opn 1 Jan 2013]

[page 380]

Subdivision C — Majority support determinations and scope orders

[6-4730]

Majority support determinations

236 (1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 217, opn 1 Jan 2013]

(2) The application must specify: (a) the employer, or employers, that will be covered by the agreement; and (b) the employees who will be covered by the agreement. COMMENTARY TO SECTION 236*

Derivation — s 236 …. Bargaining representative — s 236(1) …. Covered by the agreement — s 236(1), (2)(b) …. Employee — s 236(1), (2)(a), (b) …. Employer — s 236(1), (2)(a) …. Single-enterprise agreement — s 236(1) …. Majority of the employees — s 236(1) …. Outline of section …. [6-4730.1] Derivation — s 236 The section is new. [6-4730.5] Bargaining representative — s 236(1) See ss 12 and 176. [6-4730.10] Covered by the agreement — s 236(1), (2)(b) See ss 12 and 53. [6-4730.15] Employee — s 236(1), (2)(a), (b) See s 170. [6-4730.20] Employer — s 236(1), (2)(a) See s 170. [6-4730.25] Single-enterprise agreement — s 236(1) See ss 12 and 172(2).

[6-4730.1] [6-4730.5] [6-4730.10] [6-4730.15] [6-4730.20] [6-4730.25] [6-4730.30] [6-4730.35]

[6-4730.30] Majority of the employees — s 236(1) [T]he fact that only majority support, not unanimous support, is required, contemplates that even in respect of a successful majority support determination application there may be a minority (substantial or otherwise) which does not want bargaining to occur: ResMed Ltd v Australian Manufacturing Workers’ Union (2014) 243 IR 15; [2014] FWCFB 2418 at [20]. In that case at [16], the Full Bench rejected a proposition that the employee organisation acting as a bargaining representative was bargaining on behalf of all employees who would be covered by the proposed agreement. Proving the desire to bargain may be done by petition although in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Kinkaid Pty Ltd t/as Cadillac Printing — re Bargaining — majority support determination [2009] FWA 1123; BC200970858 at [13], O’Callaghan cautioned that: It is conceivable that there may be circumstances where a petition could not be relied upon as an appropriate device to determine majority support for bargaining. If, for instance, there was [page 381] some evidence that the petition had been falsely derived or that the signatures had been achieved by duress, an alternative means of establishing employee views would need to be considered. [6-4730.35] Outline of section The Full Bench held in ResMed Ltd v Australian Manufacturing Workers’ Union (2014) 243 IR 15; [2014] FWCFB 2418 at [18] that: The primary purpose of ss 236 and 237 is therefore to provide a bargaining representative with a means by which an employer which refuses to bargain may be required to bargain (by opening the door to the operation of the good faith bargaining requirements in s 228 or by enabling bargaining orders to be applied for and made under ss 229–232). It was succinctly described in the Federal Court Full Court decision in JJ Richards & Sons Pty Ltd v Fair Work Australia (2012) 201 FCR 297; 218 IR 454; [2012] FCAFC 53; BC201202488 as “a means by which a party seeking to bring an employer to the bargaining table may achieve that result without taking industrial action”. Section 236 proceeds on the premise that a union or other person can be “a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement” where the employer has “not yet agreed to bargain, or initiated bargaining, for the agreement” (s 237(2)), even though this is before a notice of representational rights has been issued by an employer of employees who would be covered by that proposed agreement. It follows that a union or other person can be a bargaining representative of an employee who will be covered by a “proposed single enterprise agreement” prior to the issue of a notice of representation rights to the employee pursuant to s 173 of the Fair Work Act 2009: MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2010) 197 IR 294; [2010] FWAFB 6519 at [12].

*Editor’s note: Commentary on s 236 by Joe Catanzariti, Vice President FWC and Michael Byrnes, Special Counsel, Clayton Utz, updated by Ian Latham BA(Hons) LLB (ANU), Barrister. ____________________

[6-4750] When the FWC must make a majority support determination 237 Majority support determination (1) The FWC must make a majority support determination in relation to a proposed single-enterprise agreement if: (a) an application for the determination has been made; and (b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 219, 220, opn 1 Jan 2013]

Matters of which the FWC must be satisfied before making a majority support determination (2) The FWC must be satisfied that: (a) a majority of the employees: (i) who are employed by the employer or employers at a time determined by the FWC; and (ii) who will be covered by the agreement; want to bargain; and (b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and (c) that the group of employees who will be covered by the agreement was fairly chosen; and [page 382] (d) it is reasonable in all the circumstances to make the determination. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 221–223, opn 1 Jan 2013]

(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 224, opn 1 Jan 2013]

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 224, opn 1 Jan 2013]

Operation of determination (4) The determination comes into operation on the day on which it is made. [s 237 am Act 174 of 2012 s 3 and Sch 9 item 218, opn 1 Jan 2013] COMMENTARY TO SECTION 237

Majority support determinations …. Majority of employees — 237(2) ….

[6-4755] [6-4760]

[6-4755] Majority support determinations The FW Act enables a bargaining representative of an employee, whom a proposed single-enterprise agreement will cover, to apply for a majority support determination that the majority of employees whom the agreement will cover wishes to bargain with the employer(s) which will be covered by the agreement (s 236(1)). Once a majority support determination is in place, it triggers bargaining and enables bargaining representatives to avail themselves of the FWC’s bargaining enforcement mechanisms, such as bargaining orders for breaches of good faith bargaining requirements (compare ss 230(2)(b) and (3)(a)(i)). The FWC must grant a majority support determination when an application has been made and if it is satisfied of a number of matters (s 237(1)).These are (s 237(2)): — a majority of employees who will be covered by the agreement and are employed by the relevant employer(s) at a certain time wish to bargain (s 237(2)(a)); — the employer(s) which the agreement will cover have not agreed to bargain or commenced bargaining (s 237(2)(b)); — the class of employees that the agreement will cover was fairly chosen ((s 237(2)(a)), taking into account whether this class is distinct based on geographical, operational or organisational reasons — s 237(3A)); and — making the determination is reasonable in the circumstances (s 237(2)(d)). Case A union sought a majority support determination, arguing that the employer, in proposing to negotiate for three separate agreements, had not agreed to bargain (for the purposes of s 237(2)(b)) with employees who wished to negotiate a single agreement. A Full Bench of FW Australia (as it then was) held that agreement to bargain, for the purposes of s 237(2)(b), occurs when an employer has agreed to bargain for a single-enterprise agreement(s), of the type described in the FW Act (at s 172), in relation to the employees that the application for a majority support determination has named. In this context, bargaining means bargaining in line with FW Act’s requirements (including good faith bargaining requirements) rather than merely bargaining in a general sense. The notion of agreeing to bargain includes that the employer acknowledges the relevant employees’ position (as part of the good faith bargaining requirements) and be open to bargaining about the agreement(s) that the majority of employees proposes, including its (their) scope. However, employers do not

have to bargain solely about [page 383] the majority of employees’ proposed agreement(s) (bargaining representatives for employees also must comply with good faith bargaining requirements including acknowledging the employer’s bargaining position). It should also be noted that the FW Act gives the FWC power to make scope orders if there are disputes about the scope and coverage of proposed agreement(s). In the end, there was no error in O’Callaghan SDP’s decision at first instance that the employer had agreed to bargain. (See Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd (2009) 191 IR 124; [2009] FWAFB 668.) [6-4760] Majority of employees — 237(2) The relevant majority for the purposes of s 237(2)(a) is a majority of employees employed at the time of the determination, not of the employees who will ultimately be covered by the agreement: Alcoa of Australia Ltd v Construction, Forestry, Mining and Energy Union [2015] FWCFB 1832. That group is not necessarily co-extensive with the group of employees who will be covered by the agreement and which s 237(2)(c) requires to have been fairly chosen. It is not necessary that a union applicant for a majority support determination be entitled to represent the industrial interest of every employee who would be covered by the proposed agreement: ResMed Ltd v Australian Manufacturing Workers’ Union [2015] FCA 360; BC201502855 (Perry J) dismissing an application for judicial review of the decision of a Full Bench of the Commission in ResMed Ltd v Australian Manufacturing Workers’ Union (2014) 243 IR 15; [2014] FWCFB 2418.

____________________

[6-4770]

Scope orders

238 Bargaining representatives may apply for scope orders (1) A bargaining representative for a proposed single-enterprise agreement (other than a greenfields agreement) may apply to the FWC for an order (a scope order) under this section if: (a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and (b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 225, opn 1 Jan 2013; Act 156 of 2015 Sch 1 item 47, opn 27 Nov 2015]

No scope order if a single interest employer authorisation is in operation (2) Despite subsection (1), the bargaining representative must not apply for

the scope order if a single interest employer authorisation is in operation in relation to the agreement. Bargaining representative to give notice of concerns (3) The bargaining representative may only apply for the scope order if the bargaining representative: (a) has taken all reasonable steps to give a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and (b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and (c) considers that the relevant bargaining representatives have not responded appropriately. [subs (3) am Act 174 of 2012 s 3 and Sch 4 items 5, 6, opn 1 Jan 2013]

[page 384] When the FWC may make scope order (4) The FWC may make the scope order if the FWC is satisfied: (a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and (b) that making the order will promote the fair and efficient conduct of bargaining; and (c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and (d) it is reasonable in all the circumstances to make the order. [subs (4) am Act 174 of 2012 s 3 and Sch 9 items 226–228, opn 1 Jan 2013]

Matters which the FWC must take into account (4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or

organisationally distinct. [subs (4A) am Act 174 of 2012 s 3 and Sch 9 items 229, 230, opn 1 Jan 2013]

Scope order must specify employer and employees to be covered (5) The scope order must specify, in relation to a proposed singleenterprise agreement: (a) the employer, or employers, that will be covered by the agreement; and (b) the employees who will be covered by the agreement. Scope order must be in accordance with this section etc (6) The scope order: (a) must be in accordance with this section; and (b) may relate to more than one proposed single-enterprise agreement. Orders etc that the FWC may make (7) If the FWC makes the scope order, the FWC may also: (a) amend any existing bargaining orders; and (b) make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by the FWC, or take such other actions, as the FWC considers appropriate. [subs (7) am Act 174 of 2012 s 3 and Sch 9 items 231, 232, opn 1 Jan 2013] COMMENTARY TO SECTION 238

Scope orders ….

[6-4770.1]

[6-4770.1] Scope orders The Full Bench decision of United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board [2010] FWAFB 3009; (2010) 193 IR 293 illustrates that employee opinion is not decisive in Fair Work Australia’s determination of scope matters under the new provisions. The Metropolitan Fire Board (MFB) and the United Firefighters’ Union of Australia (UFUA) both sought competing scope orders from Fair Work Australia. The MFB wanted scope orders dividing the workforce into three parts whereas the UFUA sought a single agreement for all firefighters. The UFUA submitted that the majority of employees supported a single agreement and this was a factor which should be given “great weight”. However, the Full Bench held that while weight should be given to the employees’ views, “it may be that a proper consideration of the matters specified in s 238(4) and (4A) in a particular [page 385] case may make it appropriate to make a scope order contrary to the views of the employees potentially

affected”: at [53]. The Full Bench further held that in this case, the key considerations were whether the proposed orders would promote fair and efficient bargaining and whether the employees proposed to be covered were fairly chosen. The Full Bench accepted the MFB’s argument that senior officers’ heavy managerial responsibilities had the effect that they were organisationally distinct from other firefighters. The Full Bench further held that this resulted in senior management having conflicting interests with operational employees generally and meant that the MFB’s scope order for three agreements was best suited to the circumstances of this case. The Full Bench also rejected the submission that scope orders should only be made where another bargaining representative is pursuing an unfair scope. The Full Bench held that where two parties make competing scope orders, neither of which could be characterised as unfair, if the tribunal is satisfied of the relevant matters and is disposed to make an order, it would be an error not to do so. Another important factor in making the scope order was the fact that there was a troubled history surrounding the negotiations and it was envisaged that the scope order would assist negotiations to proceed more fluently than before. The prospect that a minority group of employees proposed to be covered by an agreement are in danger of being “swamped” by the majority is a relevant but not a determinative factor in assessing the impact of the making of a scope on the fairness and efficiency of bargaining. Its significance may vary depending on the extent of the group’s special interests and potential disadvantage, the impact on the interests of the other bargaining parties, the history of conduct in bargaining, and the stage of the bargaining. It is also relevant that bargaining for two agreements may involve a degree of duplication of process and negotiation and thus, be less efficient than bargaining for a single agreement: see Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2015] FWC 1591 and the authorities cited at [145]–[148].

____________________

[6-4790]

Operation of a scope order

239 A scope order in relation to a proposed single-enterprise agreement: (a) comes into operation on the day on which it is made; and (b) ceases to be in operation at the earliest of the following: (i) if the order is revoked — the time specified in the instrument of revocation; (ii) when the agreement is approved by the FWC; (iii) when a workplace determination that covers the employees that would have been covered by the agreement comes into operation; (iv) when the bargaining representatives for the agreement agree that bargaining has ceased. [s 239 am Act 174 of 2012 s 3 and Sch 9 item 233, opn 1 Jan 2013]

Subdivision D — FWC may deal with a bargaining dispute on

request [Subdiv D heading am Act 174 of 2012 s 3 and Sch 9 item 234, opn 1 Jan 2013]

[6-4930] Application for the FWC to deal with a bargaining dispute 240 Bargaining representative may apply for the FWC to deal with a dispute (1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for the FWC to deal with a dispute about the agreement if the bargaining representatives for the agreement are unable to resolve the dispute. Note: See also section 255A (limitations relating to greenfields agreements). [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 236, 237, opn 1 Jan 2013; Act 156 of 2015 Sch 1 item 48, opn 27 Nov 2015]

[page 386] (2) If the proposed enterprise agreement is: (a) a single-enterprise agreement; or (b) a multi-enterprise agreement in relation to which a low-paid authorisation is in operation; the application may be made by one bargaining representative, whether or not the other bargaining representatives for the agreement have agreed to the making of the application. (3) If subsection (2) does not apply, a bargaining representative may only make the application if all of the bargaining representatives for the agreement have agreed to the making of the application. (4) If the bargaining representatives have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 237, opn 1 Jan 2013] [s 240 am Act 174 of 2012 s 3 and Sch 9 item 235, opn 1 Jan 2013]

DIVISION 9 — LOW-PAID BARGAINING

[6-5120]

Objects of this Division

241 The objects of this Division are: (a) to assist and encourage low-paid employees and their employers, who have not historically had the benefits of collective bargaining, to make an enterprise agreement that meets their needs; and (b) to assist low-paid employees and their employers to identify improvements to productivity and service delivery through bargaining for an enterprise agreement that covers 2 or more employers, while taking into account the specific needs of individual enterprises; and (c) to address constraints on the ability of low-paid employees and their employers to bargain at the enterprise level, including constraints relating to a lack of skills, resources, bargaining strength or previous bargaining experience; and (d) to enable the FWC to provide assistance to low-paid employees and their employers to facilitate bargaining for enterprise agreements. Note: A low-paid workplace determination may be made in specified circumstances under Division 2 of Part 2-5 if the bargaining representatives for a proposed enterprise agreement in relation to which a low-paid authorisation is in operation are unable to reach agreement. [s 241 am Act 174 of 2012 s 3 and Sch 9 item 238, opn 1 Jan 2013]

[6-5140]

Low-paid authorisations

242 (1) The following persons may apply to the FWC for an authorisation (a low-paid authorisation) under section 243 in relation to a proposed multienterprise agreement: (a) a bargaining representative for the agreement; (b) an employee organisation that is entitled to represent the industrial interests of an employee in relation to work to be performed under the agreement. Note: The effect of a low-paid authorisation is that the employers specified in it are subject to certain rules in relation to the agreement that would not otherwise apply (such as in relation to the availability of bargaining orders, see subsection 229(2)). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 239, opn 1 Jan 2013]

[page 387] (2) The application must specify: (a) the employers that will be covered by the agreement; and (b) the employees who will be covered by the agreement. (3) An application under this section must not be made in relation to a proposed greenfields agreement. COMMENTARY TO SECTION 242

Low paid authorisations ….

[6-5142]

[6-5142] Low paid authorisations The FWC has special powers with respect to bargaining that takes place in professions that have traditionally not had access to enterprise bargaining. A bargaining representative and/or employee organisation is able to apply to the FWC for what is known as a “low paid authorisation”: s 242. A low paid authorisation enables the FWC to facilitate bargaining, including being able to direct a person who is not specified as an employer in the authorisation to attend a conference simply because of the control they exercise over the low-paid employees: s 246.

____________________

[6-5160] When the FWC must make a low-paid authorisation 243 Low-paid authorisation (1) The FWC must make a low-paid authorisation in relation to a proposed multi-enterprise agreement if: (a) an application for the authorisation has been made; and (b) the FWC is satisfied that it is in the public interest to make the authorisation, taking into account the matters specified in subsections (2) and (3). [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 241, 242, opn 1 Jan 2013]

FWC must take into account historical and current matters relating to collective bargaining (2) In deciding whether or not to make the authorisation, the FWC must take into account the following: (a) whether granting the authorisation would assist low-paid employees who have not had access to collective bargaining or who

(b) (c) (d)

(e)

face substantial difficulty bargaining at the enterprise level; the history of bargaining in the industry in which the employees who will be covered by the agreement work; the relative bargaining strength of the employers and employees who will be covered by the agreement; the current terms and conditions of employment of the employees who will be covered by the agreement, as compared to relevant industry and community standards; the degree of commonality in the nature of the enterprises to which the agreement relates, and the terms and conditions of employment in those enterprises.

[subs (2) am Act 174 of 2012 s 3 and Sch 9 items 243, 244, opn 1 Jan 2013]

[page 388] FWC must take into account matters relating to the likely success of collective bargaining (3) In deciding whether or not to make the authorisation, the FWC must also take into account the following: (a) whether granting the authorisation would assist in identifying improvements to productivity and service delivery at the enterprises to which the agreement relates; (b) the extent to which the likely number of bargaining representatives for the agreement would be consistent with a manageable collective bargaining process; (c) the views of the employers and employees who will be covered by the agreement; (d) the extent to which the terms and conditions of employment of the employees who will be covered by the agreement is controlled, directed or influenced by a person other than the employer, or employers, that will be covered by the agreement; (e) the extent to which the applicant for the authorisation is prepared to consider and respond reasonably to claims, or responses to claims,

that may be made by a particular employer named in the application, if that employer later proposes to bargain for an agreement that: (i) would cover that employer; and (ii) would not cover the other employers specified in the application. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 245, 246, opn 1 Jan 2013]

What authorisation must specify etc (4) The authorisation must specify: (a) the employers that will be covered by the agreement (which may be some or all of the employers specified in the application); and (b) the employees who will be covered by the agreement (which may be some or all of the employees specified in the application); and (c) any other matter prescribed by the procedural rules. Operation of authorisation (5) The authorisation comes into operation on the day on which it is made. [s 243 am Act 174 of 2012 s 3 and Sch 9 item 240, opn 1 Jan 2013]

[6-5180] general

Variation of low-paid authorisations —

244 Variation to remove employer (1) An employer specified in a low-paid authorisation may apply to the FWC for a variation of the authorisation to remove the employer’s name from the authorisation. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 246, opn 1 Jan 2013]

(2) If an application is made under subsection (1), the FWC must vary the authorisation to remove the employer’s name if the FWC is satisfied that, because of a change in the employer’s circumstances, it is no longer appropriate for the employer to be specified in the authorisation. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 246, opn 1 Jan 2013]

[page 389]

Variation to add employer (3) The following may apply to the FWC for a variation of a low-paid authorisation to add the name of an employer that is not specified in the authorisation: (a) the employer; (b) a bargaining representative of an employee who will be covered by the proposed multi-enterprise agreement to which the authorisation relates; (c) an employee organisation that is entitled to represent the industrial interests of an employee in relation to work to be performed under that agreement. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 246, opn 1 Jan 2013]

(4) If an application is made under subsection (3), the FWC must vary the authorisation to add the employer’s name if the FWC is satisfied that it is in the public interest to do so, taking into account the matters specified in subsections 243(2) and (3). [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 246, opn 1 Jan 2013]

[6-5200] Variation of low-paid authorisations — enterprise agreement etc comes into operation 245 The FWC is taken to have varied a low-paid authorisation to remove an employer’s name when an enterprise agreement, or a workplace determination, that covers the employer comes into operation. [s 245 am Act 174 of 2012 s 3 and Sch 9 item 247, opn 1 Jan 2013]

[6-5220]

FWC’s assistance for the low-paid

246 Application of this section (1) This section applies if a low-paid authorisation is in operation in relation to a proposed multi-enterprise agreement. FWC’s assistance (2) The FWC may, on its own initiative, provide to the bargaining representatives for the agreement such assistance: (a) that the FWC considers appropriate to facilitate bargaining for the

agreement; and (b) that the FWC could provide if it were dealing with a dispute. Note: This section does not empower the FWC to arbitrate, because subsection 595(3) provides that the FWC may arbitrate only if expressly authorised to do so. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 249–252, opn 1 Jan 2013]

FWC may direct a person to attend a conference (3) Without limiting subsection (2), the FWC may provide assistance by directing a person who is not an employer specified in the authorisation to attend a conference at a specified time and place if the FWC is satisfied that the person exercises such a degree of control over the terms and conditions of the employees who will be covered by the agreement that the participation of the person in bargaining is necessary for the agreement to be made. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 253, 254, opn 1 Jan 2013]

[page 390] (4) Subsection (3) does not limit the FWC’s powers under Subdivision B of Division 3 of Part 5-1. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 255, opn 1 Jan 2013] [s 246 am Act 174 of 2012 s 3 and Sch 9 item 248, opn 1 Jan 2013]

DIVISION 10 — SINGLE INTEREST EMPLOYER AUTHORISATIONS Subdivision A — Declaration that employers may bargain together for a proposed enterprise agreement

[6-5410] Ministerial declaration that employers may bargain together for a proposed enterprise agreement 247 Application for declaration (1) Two or more employers that will be covered by a proposed enterprise agreement may apply to the Minister for a declaration under subsection (3).

Note: Employers named in a declaration may apply for a single interest employer authorisation (see Subdivision B of this Division).

(2) The application must specify the employers (the relevant employers) that will be covered by the agreement. Declaration by the Minister (3) If an application is made under subsection (1), the Minister may declare, in writing, that the relevant employers may bargain together for the agreement. (4) In deciding whether or not to make the declaration, the Minister must take into account the following matters: (a) the history of bargaining of each of the relevant employers, including whether they have previously bargained together; (b) the interests that the relevant employers have in common, and the extent to which those interests are relevant to whether they should be permitted to bargain together; (c) whether the relevant employers are governed by a common regulatory regime; (d) whether it would be more appropriate for each of the relevant employers to make a separate enterprise agreement with its employees; (e) the extent to which the relevant employers operate collaboratively rather than competitively; (f) whether the relevant employers are substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory; (g) any other matter the Minister considers relevant. (5) If the Minister decides to make the declaration, the relevant employers must be specified in the declaration. (6) A declaration under subsection (3) is not a legislative instrument. COMMENTARY TO SECTION 247 [6-5410.1] Scope of section The principal purpose of an authorisation under s 247 is to permit a group of employers to do what the Fair Work Act does not otherwise permit and that is to bargain together for one enterprise agreement to apply to all of them: Stuartholme School v Independent Education Union of Australia [2010] FWAFB 1714 at [16]; (2010) 192 IR 29.

[page 391] Moreover, s 247(3) indicates that the declaration is to the effect that employers specified in the declaration may bargain together and there is no basis for reading “may” as meaning “must” in this context: Stuartholme School v Independent Education Union of Australia [2010] FWAFB 1714 at [16]; (2010) 192 IR 29. A single interest bargaining authorisation permits a group of employers to bargain for one enterprise agreement, but it does not exclude the possibility that an agreement or agreements may be made with a scope which does not reflect that arising from the authorisation: Stuartholme School v Independent Education Union of Australia [2010] FWAFB 1714 at [17]; (2010) 192 IR 29.

____________________

Subdivision B — Single interest employer authorisations

[6-5550]

Single interest employer authorisations

248 (1) Two or more employers may apply to the FWC for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement. Note: The effect of a single interest employer authorisation is that the employers are single interest employers in relation to the agreement (see paragraph 172(5)(c)). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 256, opn 1 Jan 2013]

(2) The application must specify the following: (a) the employers that will be covered by the agreement; (b) the employees who will be covered by the agreement; (c) the person (if any) nominated by the employers to make applications under this Act if the authorisation is made.

[6-5570] When the FWC must make a single interest employer authorisation 249 Single interest employer authorisation (1) The FWC must make a single interest employer authorisation in relation to a proposed enterprise agreement if: (a) an application for the authorisation has been made; and (b) the FWC is satisfied that: (i) the employers that will be covered by the agreement have agreed to bargain together; and

(ii) no person coerced, or threatened to coerce, any of the employers to agree to bargain together; and (c) the requirements of either subsection (2) (which deals with franchisees) or (3) (which deals with employers that may bargain together for a proposed enterprise agreement) are met. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 258, 259, opn 1 Jan 2013]

Franchisees (2) The requirements of this subsection are met if the FWC is satisfied that the employers carry on similar business activities under the same franchise and are: (a) franchisees of the same franchisor; or (b) related bodies corporate of the same franchisor; or [page 392] (c) any combination of the above. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 260, opn 1 Jan 2013]

Employers that may bargain together for the agreement (3) The requirements of this subsection are met if the FWC is satisfied that all of the employers are specified in a declaration made under section 247 in relation to the agreement. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 260, opn 1 Jan 2013]

Operation of authorisation (4) The authorisation: (a) comes into operation on the day on which it is made; and (b) ceases to be in operation at the earlier of the following: (i) the day on which the enterprise agreement to which the authorisation relates is made; (ii) 12 months after the day on which the authorisation is made or, if the period is extended under section 252, at the end of that period. [s 249 am Act 174 of 2012 s 3 and Sch 9 item 257, opn 1 Jan 2013]

COMMENTARY TO SECTION 249 [6-5570.1] Requirements Section 249(1) makes it mandatory for Fair Work Australia to make an authorisation if it is satisfied that the requirements have been met. Section 249(3) makes it mandatory for Fair Work Australia to make an authorisation if it is satisfied that the employers are specified in a declaration made by the Minister under s 247: Stuartholme School v Independent Education Union of Australia [2010] FWAFB 1714 at [10]; (2010) 192 IR 29.

____________________

[6-5590] What a single interest employer authorisation must specify 250 What authorisation must specify (1) A single interest employer authorisation in relation to a proposed enterprise agreement must specify the following: (a) the employers that will be covered by the agreement; (b) the employees who will be covered by the agreement; (c) the person (if any) nominated by the employers to make applications under this Act if the authorisation is made; (d) any other matter prescribed by the procedural rules. Authorisation may relate to only some of employers or employees (2) If the FWC is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and employers that may bargain together for a proposed enterprise agreement) in relation to only some of the employers that will be covered by the agreement, the FWC may make a single interest employer authorisation specifying those employers and their employees only. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 260, opn 1 Jan 2013]

[page 393]

[6-5610] Variation of single interest employer authorisations 251 Variation to remove employer (1) An employer specified in a single interest employer authorisation in

relation to a proposed enterprise agreement may apply to the FWC for a variation of the authorisation to remove the employer’s name from the authorisation. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 260, opn 1 Jan 2013]

(2) If an application is made under subsection (1), the FWC must vary the authorisation to remove the employer’s name if the FWC is satisfied that, because of a change in the employer’s circumstances, it is no longer appropriate for the employer to be specified in the authorisation. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 260, opn 1 Jan 2013]

Variation to add employer (3) An employer that is not specified in a single interest employer authorisation may apply to the FWC for a variation of the authorisation to add the employer’s name to the authorisation. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 260, opn 1 Jan 2013]

(4) If an application is made under subsection (3), the FWC must vary the authorisation to add the employer’s name if the FWC is satisfied that: (a) each employer specified in the authorisation has agreed to the employer’s name being added; and (b) no person coerced, or threatened to coerce, the employer to make the application; and (c) the requirements of subsection 249(2) or (3) (which deal with franchisees and employers that may bargain together for a proposed enterprise agreement) are met. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 260, opn 1 Jan 2013]

[6-5630] Variation to extend period single interest employer authorisation is in operation 252 (1) A bargaining representative for a proposed enterprise agreement to which a single interest employer authorisation relates may apply to the FWC to vary the authorisation to extend the period for which the authorisation is in operation. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 260, opn 1 Jan 2013]

(2) The FWC may vary the authorisation to extend the period if the FWC is satisfied that:

(a) there are reasonable prospects that the agreement will be made if the authorisation is in operation for a longer period; and (b) it is appropriate in all the circumstances to extend the period. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 261, 262, opn 1 Jan 2013]

DIVISION 11 — OTHER MATTERS

[6-5820] Terms of an enterprise agreement that are of no effect 253 (1) A term of an enterprise agreement has no effect to the extent that: (a) it is not a term about a permitted matter; or (b) it is an unlawful term; or [page 394] (c) it is a designated outworker term. Note 1: A term of an enterprise agreement has no effect to the extent that it contravenes section 55 (see section 56). Note 2: A term of an enterprise agreement permitting or requiring deductions or payments to be made has no effect if it benefits the employer and is unreasonable in the circumstances (see section 326).

(2) However, if an enterprise agreement includes a term that has no effect because of subsection (1), or section 56 or 326, the inclusion of the term does not prevent the agreement from being an enterprise agreement. COMMENTARY TO SECTION 253 [6-5820.1] Scope of section In respect of matters pertaining to the relationship between the employer and the employee, s 253 of the Act provides that a term of an enterprise agreement has no effect to the extent that it is not about a permitted matter, but that the inclusion of such a term does not invalidate an enterprise agreement: Glen Eden Thoroughbreds Pty Ltd t/as Ray White Shailer Park [2010] FWA 7217 at [18].

____________________

[6-5840] Applications by bargaining representatives

254 Application of this section (1) This section applies if a provision of this Part permits an application to be made by a bargaining representative of an employer that will be covered by a proposed enterprise agreement. Persons who may make applications (2) If the agreement will cover more than one employer, the application may be made by: (a) in the case of a proposed enterprise agreement in relation to which a single interest employer authorisation is in operation — the person (if any) specified in the authorisation as the person who may make applications under this Act; or (b) in any case — a bargaining representative of an employer that will be covered by the agreement, on behalf of one or more other such bargaining representatives, if those other bargaining representatives have agreed to the application being made on their behalf.

[6-5845] Entitlement for volunteer bodies to make submissions 254A (1) A body covered by subsection (2) is entitled to make a submission for consideration in relation to a matter before the FWC if: (a) the matter arises under this Part; and (b) the matter affects, or could affect, the volunteers of a designated emergency management body. (2) The bodies are as follows: (a) a body corporate that: (i) has a history of representing the interests of the designated emergency management body’s volunteers; and (ii) is not prescribed by the regulations for the purposes of this subparagraph; [page 395]

(b) any other body that is prescribed by the regulations for the purposes of this paragraph. (3) Subsection (1) applies whether or not the FWC holds a hearing in relation to the matter. [s 254A insrt Act 62 of 2016 s 3 and Sch 1 item 6, opn 13 Oct 2016]

[6-5860] Part does not empower the FWC to make certain orders 255 (1) This Part does not empower the FWC to make an order that requires, or has the effect of requiring: (a) particular content to be included or not included in a proposed enterprise agreement; or (b) an employer to request under subsection 181(1) that employees approve a proposed enterprise agreement; or (c) an employee to approve, or not approve, a proposed enterprise agreement; or (d) an employer to give a notice under section 178B; or (e) an employer to specify a particular day in a notice under section 178B; or (f) an employer to agree to the giving of a notice under section 178B. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 264, opn 1 Jan 2013; Act 156 of 2015 Sch 1 item 49, opn 27 Nov 2015]

(2) Despite paragraph (1)(a), the FWC may make an order that particular content be included or not included in a proposed enterprise agreement if the order is made in the course of arbitration undertaken when dealing with a dispute under section 240. Note: The FWC may only arbitrate a dispute under section 240 if arbitration has been agreed to by the bargaining representatives for the agreement (see subsection 240(4)). [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 265, 266, opn 1 Jan 2013] [s 255 am Act 174 of 2012 s 3 and Sch 9 item 263, opn 1 Jan 2013]

[6-5865] Limitations relating to greenfields agreements 255A (1) If: (a) a proposed single-enterprise agreement is a greenfields agreement; and (b) there has been a notified negotiation period for the agreement; and (c) the notified negotiation period has ended;

then: (d) the following provisions do not apply in relation to the agreement at any time after the end of the notified negotiation period: (i) section 228 (which deals with good faith bargaining requirements); (ii) sections 229 and 230 (which deal with bargaining orders); (iii) sections 234 and 235 (which deal with serious breach declarations); (iv) section 240 (which deals with bargaining disputes); and (e) a bargaining order that relates to the agreement ceases to have effect at the end of the notified negotiation period. (2) Paragraph (1)(e) has effect despite anything in section 232 (which deals with the operation of bargaining orders). [s 255A insrt Act 156 of 2015 Sch 1 item 50, opn 27 Nov 2015]

[page 396]

[6-5880]

Prospective employers and employees

256 A reference to an employer, or an employee, in relation to a greenfields agreement, includes a reference to a person who may become an employer or employee.

[6-5900] How employees, employers and employee organisations are to be described 256A (1) This section applies if a provision of this Part requires or permits an instrument of any kind to specify the employers, employees or employee organisations covered, or who will be covered, by an enterprise agreement or other instrument. (2) The employees may be specified by class or by name. (3) The employers and employee organisations must be specified by name. (4) Without limiting the way in which a class may be described for the

purposes of subsection (2), the class may be described by reference to one or more of the following: (a) a particular industry or part of an industry; (b) a particular kind of work; (c) a particular type of employment; (d) a particular classification, job level or grade.

[6-5920] Enterprise agreements may incorporate material in force from time to time etc 257 Despite section 46AA of the Acts Interpretation Act 1901, an enterprise agreement may incorporate material contained in an instrument or other writing: (a) as in force at a particular time; or (b) as in force from time to time.

PART 2-5 — WORKPLACE DETERMINATIONS DIVISION 1 — INTRODUCTION

[6-6160]

Guide to this Part

258 This Part is about workplace determinations, which provide terms and conditions for those national system employees to whom they apply. Division 2 deals with low-paid workplace determinations. Bargaining representatives for a proposed multi-enterprise agreement may apply to the FWC for such a determination if they are unable to reach agreement on the terms that should be included in the agreement. Division 3 deals with industrial action related workplace determinations. The FWC must make such a determination if: (a) a termination of industrial action instrument is made in relation to a proposed enterprise agreement; and (b) after the end of the post-industrial action negotiating period, the bargaining representatives for the agreement have not settled the matters that were at issue during bargaining for the agreement. [page 397]

Division 4 deals with bargaining related workplace determinations. The FWC must make such a determination if: (a) a serious breach declaration is made in relation to a proposed enterprise agreement; and (b) after the end of the post-declaration negotiating period, the bargaining representatives for the agreement have not settled the matters that were at issue during bargaining for the agreement. Division 5 sets out the core terms, mandatory terms and agreed terms of workplace determinations. It also sets out the factors that the FWC must take into account in deciding the terms of a workplace determination. Division 6 deals with the operation, coverage and interaction etc. of workplace determinations. It also provides that, subject to certain exceptions, this Act applies to a workplace determination that is in operation as if it were an enterprise agreement that is in operation. Division 7 deals with other matters relating to workplace determinations. [Editor’s note: Section 258 of this legislation is reproduced in this format in line with the official version.] [s 258 am Act 174 of 2012 s 3 and Sch 9 items 267–269, opn 1 Jan 2013; Act 62 of 2016 s 3 and Sch 1 item 7, opn 13 Oct 2016]

[6-6180]

Meanings of employee and employer

259 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). [s 259 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY TO SECTION 259*

Derivation …. National system employee — s 259 …. National system employer — s 259 …. TCF contract outworkers — s 259 Note …. This Part — s 259 …. [6-6180.01] Derivation The section is new. [6-6180.05] National system employee — s 259 See ss 12, 13, 30C, 789BB(a). [6-6180.10] National system employer — s 259 See ss 12, 14, 30D, 789BB(b). [6-6180.15] TCF contract outworkers — s 259 Note See s 789BB(2). [6-6180.20] This Part — s 259 This Part is Pt 2-5.

[6-6180.01] [6-6180.05] [6-6180.10] [6-6180.15] [6-6180.20]

*Editors’ note: Commentary to s 259 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister. ____________________ [page 398]

DIVISION 2 — LOW-PAID WORKPLACE DETERMINATIONS

[6-6370] Applications for low-paid workplace determinations 260 Application of this section (1) This section applies if: (a) a low-paid authorisation is in operation in relation to a proposed multi-enterprise agreement; and (b) one or more of the bargaining representatives for the agreement are unable to reach agreement on the terms that should be included in the agreement. Consent low-paid workplace determination (2) The following bargaining representatives for the agreement may jointly apply to the FWC for a determination (a consent low-paid workplace determination) under section 261: (a) one or more bargaining representatives of one or more of the employers that would have been covered by the agreement; (b) the bargaining representative or representatives of the employees of those employers. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 270, opn 1 Jan 2013]

(3) An application for a consent low-paid workplace determination must specify the following: (a) the bargaining representatives making the application; (b) the terms that those bargaining representatives have, at the time of

the application, agreed should be included in the agreement; (c) the matters at issue at the time of the application; (d) the employers that have consented to being covered by the determination; (e) those employers’ employees who will be covered by the determination; (f) each employee organisation (if any) that is a bargaining representative of those employees. Special low-paid workplace determination (4) A bargaining representative for the agreement may apply to the FWC for a determination (a special low-paid workplace determination) under section 262. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 270, opn 1 Jan 2013]

(5) An application for a special low-paid workplace determination must specify the following: (a) the terms that the bargaining representatives concerned have, at the time of the application, agreed should be included in the agreement; (b) the matters at issue at the time of the application; (c) the employers that will be covered by the determination; (d) the employees who will be covered by the determination; (e) each employee organisation (if any) that is a bargaining representative of those employees.

[6-6390] When the FWC must make a consent low-paid workplace determination 261 The FWC must make a consent low-paid workplace determination if: (a) an application for the determination has been made; and [page 399] (b) the FWC is satisfied that the bargaining representatives who made

the application have made all reasonable efforts to agree on the terms that should be included in the agreement; and (c) there is no reasonable prospect of agreement being reached. Note: The FWC must be constituted by a Full Bench to make a consent low-paid workplace determination (see subsection 616(4)). [s 261 am Act 174 of 2012 s 3 and Sch 9 items 271–274, opn 1 Jan 2013]

[6-6410] When the FWC must make a special low-paid workplace determination — general requirements 262 Special low-paid workplace determination (1) The FWC must make a special low-paid workplace determination under this section if: (a) an application for the determination has been made; and (b) the requirements set out in this section and section 263 are met. Note: The FWC must be constituted by a Full Bench to make a special low-paid workplace determination (see subsection 616(4)). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 276, opn 1 Jan 2013]

Genuinely unable to reach agreement etc (2) The FWC must be satisfied that: (a) the bargaining representatives for the proposed multi-enterprise agreement concerned are genuinely unable to reach agreement on the terms that should be included in the agreement; and (b) there is no reasonable prospect of agreement being reached. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 276, opn 1 Jan 2013]

Minimum safety net (3) The FWC must be satisfied that, at the time of the application, the terms and conditions of the employees who will be covered by the determination were substantially equivalent to the minimum safety net of terms and conditions provided by modern awards together with the National Employment Standards. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 276, opn 1 Jan 2013]

Promotion of future bargaining for an enterprise agreement etc

(4) The FWC must be satisfied that the making of the determination will promote: (a) bargaining in the future for an enterprise agreement or agreements that will cover the employers and employees who will be covered by the workplace determination; and (b) productivity and efficiency in the enterprise or enterprises concerned. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 276, opn 1 Jan 2013]

Public interest (5) The FWC must be satisfied that it is in the public interest to make the determination. [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 276, opn 1 Jan 2013] [s 262 am Act 174 of 2012 s 3 and Sch 9 item 275, opn 1 Jan 2013]

[page 400]

[6-6430] When the FWC must make a special low-paid workplace determination — additional requirements 263 Additional requirements (1) This section sets out additional requirements that must be met before the FWC makes a special low-paid determination (the relevant determination) under section 262. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 278, opn 1 Jan 2013]

No employer is specified in an application for a consent low-paid workplace determination (2) The FWC must be satisfied that no employer that will be covered by the relevant determination is specified in an application for a consent lowpaid workplace determination that was made by bargaining representatives for the proposed multi-enterprise agreement concerned before or after the application for the relevant determination was made. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 279, opn 1 Jan 2013]

No employer is, or has previously been, covered by an enterprise agreement or workplace determination (3) The FWC must be satisfied that no employer that will be covered by the relevant determination is, or has previously been, covered by an enterprise agreement, or another workplace determination, in relation to the work to be performed by the employees who will be covered by the relevant determination. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 279, opn 1 Jan 2013] [s 263 am Act 174 of 2012 s 3 and Sch 9 item 277, opn 1 Jan 2013]

[6-6450] Terms etc of a low-paid workplace determination

264 Basic rule (1) A low-paid workplace determination must comply with subsection (4) and include: (a) the terms set out in subsections (2) and (3); and (b) the core terms set out in section 272; and (c) the mandatory terms set out in section 273. Note: For the factors that the FWC must take into account in deciding the terms of the determination, see section 275. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 280, opn 1 Jan 2013]

Agreed terms (2) The determination must include the agreed terms (see subsection 274(1)) for the determination. Terms dealing with the matters at issue (3) The determination must include the terms that the FWC considers deal with the matters at issue specified in the application for the determination. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 281, opn 1 Jan 2013]

Coverage (4) The determination must be expressed to cover the employers, employees and employee organisations (if any) that were specified in the application for the determination. [page 401]

[6-6470]

No other terms

265 A low-paid workplace determination must not include any terms other than those required by subsection 264(1).

DIVISION 3 — INDUSTRIAL ACTION RELATED WORKPLACE DETERMINATIONS

[6-6660]

When the FWC must make an industrial

action related workplace determination 266 Industrial action related workplace determination (1) If: (a) a termination of industrial action instrument has been made in relation to a proposed enterprise agreement; and (b) the post-industrial action negotiating period ends; and (c) the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement; the FWC must make a determination (an industrial action related workplace determination) as quickly as possible after the end of that period. Note: The FWC must be constituted by a Full Bench to make an industrial action related workplace determination (see subsection 616(4)). [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 283, 284, opn 1 Jan 2013]

Termination of industrial action instrument (2) A termination of industrial action instrument in relation to a proposed enterprise agreement is: (a) an order under section 423 or 424 terminating protected industrial action for the agreement; or (b) a declaration under section 431 terminating protected industrial action for the agreement. Post-industrial action negotiating period (3) The post-industrial action negotiating period is the period that: (a) starts on the day on which the termination of industrial action instrument is made; and (b) ends: (i) 21 days after that day; or (ii) if the FWC extends that period under subsection (4) — 42 days after that day. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 285, opn 1 Jan 2013]

(4) The FWC must extend the period referred to in subparagraph (3)(b)(i) if:

(a) all of the bargaining representatives for the agreement jointly apply to the FWC for the extension within 21 days after the termination of industrial action instrument was made; and (b) those bargaining representatives have not settled all of the matters that were at issue during bargaining for the agreement. [subs (4) am Act 174 of 2012 s 3 and Sch 9 items 286, 287, opn 1 Jan 2013] [s 266 am Act 174 of 2012 s 3 and Sch 9 item 282, opn 1 Jan 2013]

[page 402]

[6-6680] Terms etc of an industrial action related workplace determination 267 Basic rule (1) An industrial action related workplace determination must comply with subsection (4) and include: (a) the terms set out in subsections (2) and (3); and (b) the core terms set out in section 272; and (c) the mandatory terms set out in section 273. Note: For the factors that the FWC must take into account in deciding the terms of the determination, see section 275. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 288, opn 1 Jan 2013]

Agreed terms (2) The determination must include the agreed terms (see subsection 274(2)) for the determination. Terms dealing with the matters at issue (3) The determination must include the terms that the FWC considers deal with the matters that were still at issue at the end of the post-industrial action negotiating period. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 289, opn 1 Jan 2013]

Coverage (4) The determination must be expressed to cover: (a) each employer that would have been covered by the proposed

enterprise agreement concerned; and (b) the employees who would have been covered by that agreement; and (c) each employee organisation (if any) that was a bargaining representative of those employees.

[6-6700]

No other terms

268 An industrial action related workplace determination must not include any terms other than those required by subsection 267(1).

DIVISION 4 — BARGAINING RELATED WORKPLACE DETERMINATIONS

[6-6890] When the FWC must make a bargaining related workplace determination 269 Bargaining related workplace determination (1) If: (a) a serious breach declaration has been made in relation to a proposed enterprise agreement; and (b) the post-declaration negotiating period ends; and (c) the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement; [page 403] the FWC must make a determination (a bargaining related workplace determination) as quickly as possible after the end of that period. Note 1: A serious breach declaration may be made in relation to a proposed single-enterprise agreement or a proposed multi-enterprise agreement in relation to which a low-paid authorisation is in operation (see sections 229 and 235). Note 2: The FWC must be constituted by a Full Bench to make a bargaining related workplace determination (see subsection 616(4)).

Note 3: See also section 271A (limitations relating to greenfields agreements). [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 291, 292, opn 1 Jan 2013; Act 156 of 2015 Sch 1 item 51, opn 27 Nov 2015]

Post-declaration negotiating period (2) The post-declaration negotiating period is the period that: (a) starts on the day on which the serious breach declaration is made; and (b) ends: (i) 21 days after that day; or (ii) if the FWC extends that period under subsection (3) — 42 days after that day. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 293, opn 1 Jan 2013]

(3) The FWC must extend the period referred to in subparagraph (2)(b)(i) if: (a) all of the bargaining representatives for the agreement jointly apply to the FWC for the extension within 21 days after the serious breach declaration was made; and (b) those bargaining representatives have not settled all of the matters that were at issue during bargaining for the agreement. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 294, 295, opn 1 Jan 2013] [s 269 am Act 174 of 2012 s 3 and Sch 9 item 290, opn 1 Jan 2013]

[6-6910] Terms etc of a bargaining related workplace determination 270 Basic rule (1) A bargaining related workplace determination must comply with whichever of subsection (4), (5) or (6) applies and include: (a) the terms set out in this section; and (b) the core terms set out in section 272; and (c) the mandatory terms set out in section 273. Note: For the factors that the FWC must take into account in deciding the terms of the determination, see section 275. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 296, opn 1 Jan 2013]

Agreed terms (2) The determination must include the agreed terms (see subsection 274(3)) for the determination. Terms dealing with the matters at issue (3) The determination must include the terms that the FWC considers deal with the matters that were still at issue at the end of the post-declaration negotiating period. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 297, opn 1 Jan 2013]

[page 404] Coverage — single-enterprise agreement (4) If the serious breach declaration referred to in paragraph 269(1)(a) was made in relation to a proposed single-enterprise agreement, the determination must be expressed to cover: (a) each employer that would have been covered by the agreement; and (b) the employees who would have been covered by that agreement; and (c) each employee organisation (if any) that was a bargaining representative of those employees. Coverage — multi-enterprise agreement (5) If: (a) the serious breach declaration referred to in paragraph 269(1)(a) was made in relation to a proposed multi-enterprise agreement in relation to which a low-paid authorisation is in operation; and (b) the bargaining representatives for the agreement that contravened a bargaining order as referred to in subsection 235(2) were bargaining representatives of one or more employers that would have been covered by the agreement; the determination must be expressed to cover: (c) each of those employers; and (d) their employees who would have been covered by the agreement;

and (e) each employee organisation (if any) that was a bargaining representative of those employees. (6) If: (a) the serious breach declaration referred to in paragraph 269(1)(a) was made in relation to a proposed multi-enterprise agreement in relation to which a low-paid authorisation is in operation; and (b) the bargaining representatives for the agreement that contravened a bargaining order as referred to in subsection 235(2) were bargaining representatives of one or more employees who would have been covered by the agreement; the determination must be expressed to cover: (c) the employers of those employees if they are employers that would have been covered by the agreement; and (d) all of their employees who would have been covered by the agreement; and (e) each employee organisation (if any) that was a bargaining representative of those employees.

[6-6915] Limitations relating to greenfields agreements 271A If: (a) a proposed single-enterprise agreement is a greenfields agreement; and (b) there has been a notified negotiation period for the agreement; and (c) the notified negotiation period has ended; section 269 (which deals with bargaining related workplace determinations) does not apply in relation to the agreement at any time after the end of the notified negotiation period. [s 271A insrt Act 156 of 2015 Sch 1 item 52, opn 27 Nov 2015]

[page 405]

[6-6930]

No other terms

271 A bargaining related workplace determination must not include any terms other than those required by subsection 270(1).

DIVISION 5 — CORE TERMS, MANDATORY TERMS AND AGREED TERMS OF WORKPLACE DETERMINATIONS ETC

[6-7120]

Core terms of workplace determinations

272 Core terms (1) This section sets out the core terms that a workplace determination must include. Nominal expiry date (2) The determination must include a term specifying a date as the determination’s nominal expiry date, which must not be more than 4 years after the date on which the determination comes into operation. Permitted matters etc (3) The determination must not include: (a) any terms that would not be about permitted matters if the determination were an enterprise agreement; or (b) a term that would be an unlawful term if the determination were an enterprise agreement; or (c) any designated outworker terms. Better off overall test (4) The determination must include terms such that the determination would, if the determination were an enterprise agreement, pass the better off overall test under section 193. Safety net requirements (5) The determination must not include a term that would, if the determination were an enterprise agreement, mean that the FWC could not approve the agreement: (a) because the term would contravene section 55 (which deals with the interaction between the National Employment Standards and

enterprise agreements etc.); or (b) because of the operation of Subdivision E of Division 4 of Part 2-4 (which deals with approval requirements relating to particular kinds of employees). [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 298, opn 1 Jan 2013]

[6-7140] Mandatory terms of workplace determinations 273 Mandatory terms (1) This section sets out the mandatory terms that a workplace determination must include. Term about settling disputes (2) The determination must include a term that provides a procedure for settling disputes: (a) about any matters arising under the determination; and [page 406] (b) in relation to the National Employment Standards. (3) Subsection (2) does not apply to the determination if the FWC is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy paragraphs 186(6)(a) and (b) (which deal with terms in enterprise agreements about settling disputes). [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 299, opn 1 Jan 2013]

Flexibility term (4) The determination must include the model flexibility term unless the FWC is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy paragraph 202(1)(a) and section 203 (which deal with flexibility terms in enterprise agreements). [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 299, opn 1 Jan 2013]

Consultation term (5) The determination must include the model consultation term unless the

FWC is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy subsection 205(1) (which deals with terms about consultation in enterprise agreements). [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 299, opn 1 Jan 2013]

[6-7160] Agreed terms for workplace determinations 274 Agreed term for a low-paid workplace determination (1) An agreed term for a low-paid workplace determination is a term that the application for the determination specifies as a term that the bargaining representatives concerned had, at the time of the application, agreed should be included in the proposed multi-enterprise agreement concerned. Note: The determination must include an agreed term (see subsection 264(2)).

Agreed term for an industrial action related workplace determination (2) An agreed term for an industrial action related workplace determination is a term that the bargaining representatives for the proposed enterprise agreement concerned had, at the end of the post-industrial action negotiating period, agreed should be included in the agreement. Note: The determination must include an agreed term (see subsection 267(2)).

Agreed term for a bargaining related workplace determination (3) An agreed term for a bargaining related workplace determination is a term that the bargaining representatives for the proposed enterprise agreement concerned had, at the end of the post-declaration negotiating period, agreed should be included in the agreement. Note: The determination must include an agreed term (see subsection 270(2)).

[6-7180] Factors the FWC must take into account in deciding terms of a workplace determination 275 The factors that the FWC must take into account in deciding which terms to include in a workplace determination include the following: (a) the merits of the case;

[page 407] (b) for a low-paid workplace determination — the interests of the employers and employees who will be covered by the determination, including ensuring that the employers are able to remain competitive; (c) for a workplace determination other than a low-paid workplace determination — the interests of the employers and employees who will be covered by the determination; (d) the public interest; (e) how productivity might be improved in the enterprise or enterprises concerned; (f) the extent to which the conduct of the bargaining representatives for the proposed enterprise agreement concerned was reasonable during bargaining for the agreement; (g) the extent to which the bargaining representatives for the proposed enterprise agreement concerned have complied with the good faith bargaining requirements; (h) incentives to continue to bargain at a later time. [s 275 am Act 174 of 2012 s 3 and Sch 9 items 300, 301, opn 1 Jan 2013]

DIVISION 6 — OPERATION, COVERAGE AND INTERACTION ETC OF WORKPLACE DETERMINATIONS

[6-7370] When a workplace determination operates etc 276 (1) A workplace determination operates from the day on which it is made. (2) A workplace determination ceases to operate on the earlier of the following days: (a) the day on which a termination of the determination comes into operation under section 224 or 227 as applied to the determination by section 279 (which deals with the application of this Act to

workplace determinations); (b) the day on which section 278 first has the effect that there is no employee to whom the agreement applies. Note: Section 278 deals with when a workplace determination ceases to apply to an employee.

(3) A workplace determination that has ceased to operate can never operate again.

[6-7390] Employers, employees and employee organisations covered by a workplace determination 277 Employers, employees and employee organisations (1) A workplace determination covers an employer, employee or employee organisation if the determination is expressed to cover the employer, employee or organisation. Effect of provisions of this Act, FWC orders and court orders on coverage (2) A workplace determination also covers an employer, employee or employee organisation if any of the following provides, or has the effect, that the determination covers the employer, employee or organisation: (a) a provision of this Act; (b) an FWC order made under a provision of this Act; (c) an order of a court. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 302, 303, opn 1 Jan 2013]

[page 408] (3) Despite subsections (1) and (2), a workplace determination does not cover an employer, employee or employee organisation if any of the following provides, or has the effect, that the determination does not cover the employer, employee or organisation: (a) another provision of this Act;

(b) an FWC order made under another provision of this Act; (c) an order of a court. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 303, opn 1 Jan 2013]

Workplace determinations that have ceased to operate (4) Despite subsections (1) and (2), a workplace determination that has ceased to operate does not cover an employer, employee or employee organisation. Workplace determinations cover employees in relation to particular employment (5) A reference in this Act to a workplace determination covering an employee is a reference to the determination covering the employee in relation to particular employment.

[6-7410] Interaction of a workplace determination with enterprise agreements etc 278 Interaction with an enterprise agreement (1) If: (a) a workplace determination applies to an employee in relation to particular employment; and (b) an enterprise agreement that covers the employee in relation to the same employment comes into operation; the determination ceases to apply to the employee in relation to that employment, and can never so apply again. Interaction with another workplace determination (2) If: (a) a workplace determination (the earlier determination) applies to an employee in relation to particular employment; and (b) another workplace determination (the later determination) that covers the employee in relation to the same employment comes into operation; the earlier determination ceases to apply to the employee in relation to that employment when the later determination comes into operation, and can

never so apply again.

[6-7430] Act applies to a workplace determination as if it were an enterprise agreement 279 (1) This Act applies to a workplace determination that is in operation as if it were an enterprise agreement that is in operation. (2) However, the following provisions do not apply to the determination: (a) section 50 (which deals with contraventions of enterprise agreements); (b) section 53 (which deals with the coverage of enterprise agreements); (c) section 54 (which deals with the operation of enterprise agreements); (d) section 58 (which deals with the interaction between one or more enterprise agreements); [page 409] (e) section 183 (which deals with the entitlement of employee organisations to be covered by enterprise agreements); (f) the provisions of Subdivisions A and B of Division 7 of Part 2-4 (which deal with the variation of enterprise agreements) other than section 218 (which deals with variation of an enterprise agreement on referral by the Australian Human Rights Commission). [subs (2) am Act 54 of 2009 s 3 and Sch 5, opn 1 July 2009; Act 54 of 2009 s 3 and Sch 5, opn 5 Aug 2009]

(3) In addition, Subdivision C of Division 7 of Part 2-4 (which deals with the termination of enterprise agreements by employers and employees) only applies to a workplace determination after the determination has passed its nominal expiry date.

DIVISION 7 — OTHER MATTERS

[6-7620] Contravening a workplace determination 280 A person must not contravene a term of a workplace determination. Note 1: This section is a civil remedy provision (see Part 4-1). Note 2: A person does not contravene a term of a workplace determination unless the determination applies to the person: see subsections 51(1) and 279(1).

[6-7640] Applications by bargaining representatives 281 Application of this section (1) This section applies if a provision of this Part permits an application to be made by a bargaining representative of an employer that would have been covered by a proposed enterprise agreement. Persons who may make applications (2) If the agreement would have covered more than one employer, the application may be made by: (a) in the case of a proposed enterprise agreement in relation to which a single interest employer authorisation is in operation — the person (if any) specified in the authorisation as the person who may make applications under this Act; or (b) in any case — a bargaining representative of an employer that would have been covered by the agreement, on behalf of one or more other such bargaining representatives, if those other bargaining representatives have agreed to the application being made on their behalf.

[6-7645] Entitlement for volunteer bodies to make submissions 281AA (1) A body covered by subsection (2) is entitled to make a submission for consideration in relation to a matter before the FWC if: (a) the matter arises under this Part; and (b) the matter affects, or could affect, the volunteers of a designated

emergency management body. (2) The bodies are as follows: (a) a body corporate that: (i) has a history of representing the interests of the designated emergency management body’s volunteers; and (ii) is not prescribed by the regulations for the purposes of this subparagraph; [page 410] (b) any other body that is prescribed by the regulations for the purposes of this paragraph. (3) Subsection (1) applies whether or not the FWC holds a hearing in relation to the matter. [s 281AA insrt Act 62 of 2016 s 3 and Sch 1 item 8, opn 13 Oct 2016]

[6-7660] How employees, employers and employee organisations are to be described 281A (1) This section applies if a provision of this Part requires or permits an instrument of any kind to specify the employers, employees or employee organisations covered, or who will be covered, by a workplace determination or other instrument. (2) The employees may be specified by class or by name. (3) The employers and employee organisations must be specified by name. (4) Without limiting the way in which a class may be described for the purposes of subsection (2), the class may be described by reference to one or more of the following: (a) a particular industry or part of an industry; (b) a particular kind of work; (c) a particular type of employment; (d) a particular classification, job level or grade.

PART 2-6 — MINIMUM WAGES DIVISION 1 — INTRODUCTION

[6-7900]

Guide to this Part

282 This Part provides for the FWC (constituted by an Expert Panel) to set and vary minimum wages for national system employees. For employees covered by modern awards, minimum wages are specified in the modern award. For award/agreement free employees, minimum wages are specified in the national minimum wage order. Division 2 provides for the minimum wages objective. This requires the FWC to establish and maintain a safety net of fair minimum wages, taking into account certain social and economic factors. Division 3 provides for the FWC (constituted by an Expert Panel) to conduct annual wage reviews. In an annual wage review, the FWC may set or vary minimum wages in modern awards, and must make a national minimum wage order. Minimum wages in modern awards can also be set, or varied (in limited circumstances), under Part 2-3 (which deals with modern awards). Division 4 provides for national minimum wage orders and requires employers to comply with them. The orders set the national minimum wage, as well as special national minimum wages for junior employees, employees to whom training arrangements apply and employees with a disability. The orders also set the casual loading for award/agreement free employees. National minimum wages and special national minimum wages apply to award/agreement free employees. However, they are also relevant to other employees as follows: [page 411] (a) in setting or varying modern award minimum wages, the FWC must take the national minimum wage into account (see subsection 135(2) (in Part 2-3) and subsection 285(3) (in this Part)); (b) for an employee who is not covered by a modern award and to whom an enterprise agreement applies, the employee’s base rate of pay under the agreement must not be less than the relevant national minimum wage or special national minimum wage (see subsection 206(3) (in Part 2-4)). For an employee who is covered by a modern award and to whom an enterprise agreement applies, the employee’s base rate of pay under the agreement must not be less than the base rate of pay that would have been payable to the employee if the award applied (see subsection 206(1) (in Part 2-4)). [Editor’s note: Section 282 of this legislation is reproduced in this format in line with the official version.] [s 282 am Act 174 of 2012 s 3 and Sch 9 item 304, opn 1 Jan 2013; s 3 and Sch 2 item 6, opn 1 July 2013]

[6-7920]

Meanings of employee and employer

283 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). [s 283 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY TO SECTION 283*

Derivation …. National system employee …. National system employer ….

[6-7920.01] [6-7920.05] [6-7920.10]

[6-7920.01] Derivation The section is new. [6-7920.05] National system employee See ss 12, 13, 30C. [6-7920.10] National system employer See ss 12, 14, 30D. *Editors’ note: Commentary to s 283 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

DIVISION 2 — OVERARCHING PROVISIONS

[6-8110]

The minimum wages objective

284 What is the minimum wages objective? (1) The FWC must establish and maintain a safety net of fair minimum wages, taking into account: (a) the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth; and (b) promoting social inclusion through increased workforce participation; and (c) relative living standards and the needs of the low paid; and (d) the principle of equal remuneration for work of equal or comparable value; and [page 412]

(e) providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability. This is the minimum wages objective. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 305, opn 1 Jan 2013]

When does the minimum wages objective apply? (2) The minimum wages objective applies to the performance or exercise of: (a) the FWC’s functions or powers under this Part; and (b) the FWC’s functions or powers under Part 2-3, so far as they relate to setting, varying or revoking modern award minimum wages. Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the modern awards objective also applies (see section 134). [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 306–308, opn 1 Jan 2013]

Meaning of modern award minimum wages (3) Modern award minimum wages are the rates of minimum wages in modern awards, including: (a) wage rates for junior employees, employees to whom training arrangements apply and employees with a disability; and (b) casual loadings; and (c) piece rates. Meaning of setting and varying modern award minimum wages (4) Setting modern award minimum wages is the initial setting of one or more new modern award minimum wages in a modern award, either in the award as originally made or by a later variation of the award. Varying modern award minimum wages is varying the current rate of one or more modern award minimum wages. COMMENTARY TO SECTION 284*

Derivation …. FWC — s 284(1), (2)(a), (b), Note …. Modern awards — s 284(3), (4) …. Modern award minimum wages — s 284(2)(b), Note, (3), (4) ….

[6-8110.01] [6-8110.05] [6-8110.10] [6-8110.15]

Objects of this Act — s 284 Note …. Piece rates — s 284(3)(c) …. Training arrangements — s 284(1)(e), (3)(a) …. Outline of section ….

[6-8110.20] [6-8110.25] [6-8110.30] [6-8110.35]

[6-8110.01] Derivation The section is new. [6-8110.05] FWC — s 284(1), (2)(a), (b), Note See s 12 definition of “Fair Work Commission”. [6-8110.10] Modern awards — s 284(3), (4) See s 12 definition of “modern awards”. [6-8110.15] Modern award minimum wages — s 284(2)(b), Note, (3), (4) See ss 12 and 284(3). [page 413] [6-8110.20] Objects of this Act — s 284 Note See s 3 at [5-290]. There is a degree of overlap between the matters specified in the modern awards objective, the minimum wages objective and the objects of the Act: Annual Wage Review 2011–12 [2012] FWA 5166 at [41] (1 June 2012). [6-8110.25] Piece rates — s 284(3)(c) See ss 12 and 21 for the related definition of “pieceworker”. [6-8110.30] Training arrangements — s 284(1)(e), (3)(a) See s 12 definition of “training arrangement” and commentary at [5-970.300.01]–[5-970.300.05]. [6-8110.35] Outline of section Section 284 of the Fair Work Act requires the Fair Work Commission (the FWC) to establish and maintain a safety net of fair minimum wages taking into account a number of factors including providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with disability: Re Annual Wage Review 2010-11 (2011) 203 IR 119; [2011] FWAFB 3400 at [382] (3 June 2011). Section 284 sets out the minimum wages objective and provides for when the minimum wages objective applies. The minimum wages objective requires the FWC to establish and maintain a safety net of fair minimum wages, taking into account factors that are specified in s 284: Explanatory Memorandum to the Fair Work Bill 2009 at [42]–[43]. There are some important differences between the minimum wages objective and the parameters used by the Australian Fair Pay Commission (AFPC) under the former WorkChoices regime, in particular s 284(1) requires that a safety net be established and maintained. Therefore, as noted in the Re Annual Wage Review 2009–10 (2010) 193 IR 380; [2010] FWAFB 4000 at [14] (3 June 2010), the primary consideration of the minimum wages objective relates to the safety net rather than the “promotion of economic prosperity”. *Editor’s note Commentary to s 284 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

DIVISION 3 — ANNUAL WAGE REVIEWS

Subdivision A — Main provisions

[6-8300]

Annual wage reviews to be conducted

285 (1) The FWC must conduct and complete an annual wage review in each financial year. Note 1: The FWC must be constituted by an Expert Panel to conduct annual wage reviews, and to make determinations and orders in those reviews (see section 617). Note 2: The President may give directions about the conduct of annual wage reviews (see section 582). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 309, opn 1 Jan 2013; s 3 and Sch 2 item 7, opn 1 July 2013]

(2) In an annual wage review, the FWC: (a) must review: (i) modern award minimum wages; and (ii) the national minimum wage order; and (b) may make one or more determinations varying modern awards to set, vary or revoke modern award minimum wages; and (c) must make a national minimum wage order. Note: For provisions about national minimum wage orders, see Division 4. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 310, opn 1 Jan 2013]

[page 414] (3) In exercising its power in an annual wage review to make determinations referred to in paragraph (2)(b), the FWC must take into account the rate of the national minimum wage that it proposes to set in the review. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 310, opn 1 Jan 2013]

[6-8320] When annual wage review determinations varying modern awards come into operation 286 Determinations generally come into operation on 1 July

(1) A determination (a variation determination) varying one or more modern awards to set, vary or revoke modern award minimum wages that is made in an annual wage review comes into operation on 1 July in the next financial year. Later operation of determinations in exceptional circumstances (2) If the FWC is satisfied that there are exceptional circumstances justifying why a variation determination should not come into operation until a later day, the FWC may specify that later day as the day on which it comes into operation. However, the determination must be limited just to the particular situation to which the exceptional circumstances relate. Note: This may mean that the FWC needs to make more than one determination, if different circumstances apply to different employees. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 311, opn 1 Jan 2013]

(3) If a later day is so specified, the variation determination comes into operation on that later day. Effect of determinations cannot be deferred (4) The FWC cannot provide for the effect of a variation determination on modern award minimum wages to be deferred to a day that is later than the day on which the determination comes into operation. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 312, opn 1 Jan 2013]

Determinations take effect from first full pay period (5) A variation determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after the day the determination comes into operation.

[6-8340] When national minimum wage orders come into operation etc 287 Orders come into operation on 1 July (1) A national minimum wage order that is made in an annual wage review comes into operation on 1 July in the next financial year (the year of operation). Setting of different wages or loadings only permitted in exceptional circumstances (2) The national minimum wage or the casual loading for award/agreement

free employees set by the order must be the same for all employees, unless: (a) the FWC is satisfied that there are exceptional circumstances justifying setting different wages or loadings; and [page 415] (b) the setting of different wages or loadings is limited just to the extent necessary because of the particular situation to which the exceptional circumstances relate. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 313, opn 1 Jan 2013]

(3) A special national minimum wage set by the order for a specified class of employees must be the same for all employees in that class, unless: (a) the FWC is satisfied that there are exceptional circumstances justifying setting different wages; and (b) the setting of different wages is limited just to the extent necessary because of the particular situation to which the exceptional circumstances relate. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 313, opn 1 Jan 2013]

Adjustments taking effect during year of operation only permitted in exceptional circumstances (4) The order may provide that an adjustment of the national minimum wage, the casual loading for award/agreement free employees, or a special national minimum wage, set by the order takes effect (whether for some or all employees to whom that wage or loading applies) on a specified day in the year of operation that is later than 1 July, but only if: (a) the FWC is satisfied that there are exceptional circumstances justifying the adjustment taking effect on that day; and (b) the adjustment is limited just to the particular situation to which the exceptional circumstances relate. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 313, opn 1 Jan 2013]

When orders take effect (5) The order takes effect in relation to a particular employee from the start of the employee’s first full pay period that starts on or after 1 July in the year

of operation. However, an adjustment referred to in subsection (4) takes effect in relation to a particular employee from the start of the employee’s first full pay period that starts on or after the day specified as referred to in that subsection.

Subdivision B — Provisions about conduct of annual wage reviews

[6-8480]

General

288 This Subdivision contains some specific provisions relevant to the conduct of annual wage reviews. For other provisions relevant to the conduct of annual wage reviews, see the general provisions about the FWC’s processes in Part 5-1. Note: Relevant provisions of Part 5-1 include the following:

(a) section 582 (which deals with the President’s power to give directions); (b) section 590 (which deals with the FWC’s discretion to inform itself as it considers appropriate, including by commissioning research); (c) section 596 (which deals with being represented in a matter before the FWC); (d) section 601 (which deals with writing and publication requirements). [s 288 am Act 174 of 2012 s 3 and Sch 9 items 314, 315, opn 1 Jan 2013]

[page 416]

[6-8500] Everyone to have a reasonable opportunity to make and comment on submissions 289 (1) The FWC must, in relation to each annual wage review, ensure that all persons and bodies have a reasonable opportunity to make written submissions to the FWC for consideration in the review. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 316, 317, opn 1 Jan 2013]

(2) The FWC must publish all submissions made to the FWC for

consideration in the review. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 318, 319, opn 1 Jan 2013]

(3) However, if a submission made by a person or body includes information that is claimed by the person or body to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive, the FWC: (a) may decide not to publish the information; and (b) may instead publish: (i) a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive); or (ii) if the FWC considers that it is not practicable to prepare a summary that would comply with subparagraph (i) — a statement that confidential or commercially sensitive information in the submission has not been published. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 320, opn 1 Jan 2013]

(4) A reference in this Act (other than in this section) to a submission under this section includes a reference to a summary or statement referred to in paragraph (3)(b). (5) The FWC must ensure that all persons and bodies have a reasonable opportunity to make comments to the FWC, for consideration in the review, on the material published under subsections (2) and (3). [subs (5) am Act 174 of 2012 s 3 and Sch 9 items 321, 322, opn 1 Jan 2013]

(6) The publishing of material under subsections (2) and (3) may be on the FWC’s website or by any other means that the FWC considers appropriate. [subs (6) am Act 174 of 2012 s 3 and Sch 9 items 323, 324, opn 1 Jan 2013]

[6-8520] reports

President may direct investigations and

290 (1) The President may give a direction under section 582 requiring that a matter be investigated, and that a report about the matter be prepared, for consideration in an annual wage review.

(2) The direction: (a) may be given to: (i) an Expert Panel; or (ii) an Expert Panel Member; or (iii) a Full Bench that includes one or more Expert Panel Members; and (b) must require the report to be given to the Expert Panel that is constituted to conduct the annual wage review, unless the direction is given to that Expert Panel. [subs (2) am Act 174 of 2012 s 3 and Sch 2 items 8–11, opn 1 July 2013]

[page 417]

[6-8540]

Research must be published

291 (1) If the FWC undertakes or commissions research for the purposes of an annual wage review, the FWC must publish the research so that submissions can be made addressing issues covered by the research. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 325, opn 1 Jan 2013]

(2) The publication may be on the FWC’s website or by any other means that the FWC considers appropriate. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 326, 327, opn 1 Jan 2013]

[6-8560]

Varied wage rates must be published

292 (1) If the FWC makes one or more determinations varying modern award minimum wages in an annual wage review, the FWC must publish the rates of those wages as so varied: (a) for wages in a modern award (other than a modern enterprise award or a State reference public sector modern award) — before 1 July in the next financial year; and (b) for wages in a modern enterprise award or a State reference public sector modern award — as soon as practicable. Note: The FWC must also publish the modern award as varied (see section 168).

[subs (1) subst Act 55 of 2009 s 3 and Sch 6, opn 1 Jan 2010; am Act 54 of 2009 s 3 and Sch 2, opn 1 Jan 2010; Act 174 of 2012 s 3 and Sch 9 items 328, 329, opn 1 Jan 2013]

(2) The publication may be on the FWC’s website or by any other means that the FWC considers appropriate. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 330, 331, opn 1 Jan 2013] [s 292 am Act 55 of 2009 s 3 and Sch 6, opn 1 Jan 2010]

DIVISION 4 — NATIONAL MINIMUM WAGE ORDERS

[6-8750] order

Contravening a national minimum wage

293 An employer must not contravene a term of a national minimum wage order. Note: This section is a civil remedy provision (see Part 4-1).

[6-8770] Content of national minimum wage order — main provisions 294 Setting minimum wages and the casual loading (1) A national minimum wage order: (a) must set the national minimum wage; and (b) must set special national minimum wages for all award/agreement free employees in the following classes: (i) junior employees; (ii) employees to whom training arrangements apply; (iii) employees with a disability; and (c) must set the casual loading for award/agreement free employees. Note: A national minimum wage order must be made in each annual wage review (see section 285).

[page 418] Requiring employers to pay minimum wages and the casual loading

(2) The order: (a) must require employers to pay employees to whom the national minimum wage applies a base rate of pay that at least equals the national minimum wage; and (b) must require employers to pay to employees to whom a special national minimum wage applies a base rate of pay that at least equals that special national minimum wage; and (c) must require employers to pay, to award/agreement free employees who are casual employees, a casual loading that at least equals the casual loading for award/agreement free employees (as applied to the employees’ base rates of pay). What employees does the national minimum wage apply to? (3) The national minimum wage applies to all award/agreement free employees who are not: (a) junior employees; or (b) employees to whom training arrangements apply; or (c) employees with a disability. What employees does a special national minimum wage apply to? (4) A special national minimum wage applies to the employees to whom it is expressed in the order to apply. Those employees must be: (a) all junior employees who are award/agreement free employees, or a specified class of those employees; or (b) all employees to whom training arrangements apply and who are award/agreement free employees, or a specified class of those employees; or (c) all employees with a disability who are award/agreement free employees, or a specified class of those employees.

[6-8790] Content of national minimum wage order — other matters 295 Expressing minimum wages and the casual loading (1) In a national minimum wage order:

(a) the national minimum wage, and the special national minimum wages, set by the order must be expressed in a way that produces a monetary amount per hour; and (b) the casual loading for award/agreement free employees must be expressed as a percentage. Note: The means by which the national minimum wage or a special national minimum wage may be expressed include:

(a) a monetary amount per hour; or (b) a monetary amount for a specified number of hours; or (c) a method for calculating a monetary amount per hour. Terms about how the order applies (2) The order may also include terms about how the order, or any of the requirements in it, applies. [page 419]

[6-8810] Variation of national minimum wage order to remove ambiguity or uncertainty or correct error 296 Permitted variations (1) The FWC may make a determination varying a national minimum wage order to remove an ambiguity or uncertainty or to correct an error. Note: The FWC must be constituted by an Expert Panel to vary a national minimum wage order (see section 617). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 332, opn 1 Jan 2013; s 3 and Sch 2 item 12, opn 1 July 2013]

(2) If the FWC varies a national minimum wage order, the FWC must, as soon as practicable, publish the order as varied on its website or by any other means that the FWC considers appropriate. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 333, opn 1 Jan 2013]

No other variation or revocation permitted (3) A national minimum wage order:

(a) cannot be varied except as referred to in subsection (1); and (b) cannot be revoked.

[6-8830] When determinations varying national minimum wage orders come into operation 297 Determinations come into operation on specified day (1) A determination varying a national minimum wage order under section 296 comes into operation on the day specified in the determination. Note: For when a national minimum wage order comes into operation, see section 287.

(2) The specified day must not be earlier than the day on which the determination is made, unless the FWC is satisfied that there are exceptional circumstances that justify specifying an earlier day. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 334, opn 1 Jan 2013]

Determinations take effect from first full pay period (3) The determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after the day the determination comes into operation.

[6-8850] Special rule about retrospective variations of national minimum wage orders 298 Application of this section (1) This section applies if a determination varying a national minimum wage order has a retrospective effect because it comes into operation under subsection 297(2) on a day before the day on which the determination is made. No creation of liability to pay pecuniary penalty for past conduct (2) If: (a) a person engaged in conduct before the determination was made; and [page 420]

(b) but for the retrospective effect of the determination, the conduct would not have contravened a term of the national minimum wage order or an enterprise agreement; a court must not order the person to pay a pecuniary penalty under Division 2 of Part 4-1 in relation to the conduct, on the grounds that the conduct contravened a term of the national minimum wage order or enterprise agreement. Note 1: This subsection does not affect the powers of a court to make other kinds of orders under Division 2 of Part 4-1. Note 2: A determination varying a national minimum wage order could result in a contravention of a term of an enterprise agreement because of the effect of subsection 206(4).

[6-8870] When a national minimum wage order is in operation 299 A national minimum wage order continues in operation until the next national minimum wage order comes into operation. Note: For when a national minimum wage order comes into operation, see section 287.

PART 2-7 — EQUAL REMUNERATION DIVISION 1 — INTRODUCTION

[6-9110]

Guide to this Part

300 This Part allows the FWC to make orders to ensure that there will be equal remuneration for men and women workers for work of equal or comparable value. [Editor’s note: Section 300 of this legislation is reproduced in this format in line with the official version.] [s 300 am Act 174 of 2012 s 3 and Sch 9 item 335, opn 1 Jan 2013]

[6-9130]

Meanings of employee and employer

301 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). [s 301 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

DIVISION 2 — EQUAL REMUNERATION ORDERS

[6-9320] FWC may make an order requiring equal remuneration 302 Power to make an equal remuneration order (1) The FWC may make any order (an equal remuneration order) it considers appropriate to ensure that, for employees to whom the order will apply, there will be equal remuneration for work of equal or comparable value. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 337, opn 1 Jan 2013]

[page 421] Meaning of equal remuneration for work of equal or comparable value (2) Equal remuneration for work of equal or comparable value means equal remuneration for men and women workers for work of equal or comparable value. Who may apply for an equal remuneration order (3) The FWC may make the equal remuneration order only on application by any of the following: (a) an employee to whom the order will apply; (b) an employee organisation that is entitled to represent the industrial interests of an employee to whom the order will apply; (c) the Sex Discrimination Commissioner. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 337, opn 1 Jan 2013]

FWC must take into account orders and determinations made in annual wage reviews (4) In deciding whether to make an equal remuneration order, the FWC

must take into account: (a) orders and determinations made by the FWC in annual wage reviews; and (b) the reasons for those orders and determinations. Note: The FWC must be constituted by an Expert Panel in annual wage reviews (see section 617). [subs (4) am Act 174 of 2012 s 3 and Sch 9 items 338, 339, opn 1 Jan 2013; s 3 and Sch 2 items 13–15, opn 1 July 2013]

Restriction on power to make an equal remuneration order (5) However, the FWC may make the equal remuneration order only if it is satisfied that, for the employees to whom the order will apply, there is not equal remuneration for work of equal or comparable value. [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 339, opn 1 Jan 2013] [s 302 am Act 174 of 2012 s 3 and Sch 9 item 336, opn 1 Jan 2013]

[6-9340] Equal remuneration order may increase, but must not reduce, rates of remuneration 303 (1) Without limiting subsection 302(1), an equal remuneration order may provide for such increases in rates of remuneration as the FWC considers appropriate to ensure that, for employees to whom the order will apply, there will be equal remuneration for work of equal or comparable value. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 340, opn 1 Jan 2013]

(2) An equal remuneration order must not provide for a reduction in an employee’s rate of remuneration.

[6-9360] Equal remuneration order may implement equal remuneration in stages 304 An equal remuneration order may implement equal remuneration for work of equal or comparable value in stages (as provided in the order) if the FWC considers that it is not feasible to implement equal remuneration for work of equal or comparable value when the order comes into operation. [s 304 am Act 174 of 2012 s 3 and Sch 9 item 341, opn 1 Jan 2013]

[page 422]

[6-9380] order

Contravening an equal remuneration

305 An employer must not contravene a term of an equal remuneration order. Note: This section is a civil remedy provision (see Part 4-1).

[6-9400] Inconsistency with modern awards, enterprise agreements and orders of the FWC 306 A term of a modern award, an enterprise agreement or an FWC order has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that applies to the employee. [s 306 am Act 174 of 2012 s 3 and Sch 9 items 342, 343, opn 1 Jan 2013]

PART 2-8 — TRANSFER OF BUSINESS TRANSFER OF BUSINESS Commentary by Joe Catanzariti, Partner, Clayton Utz and Michael Byrnes, Special Counsel, Clayton Utz Joe and Michael would like to acknowledge the contributions of Rita Bhattacharya and Connie Hayllar to the preparation of this chapter. This commentary was last reviewed in May 2013. CONTENTS

Paragraph Transfer of Business Introduction …. What is a transfer of business? …. What happens when there has been a transfer of business? …. How long does the transferred instrument bind the new employer and transferring employee? …. The role of the Fair Work Commission …. Orders relating to instruments covering a new employer

[Com 40,010] [Com 40,020] [Com 40,030] [Com 40,040] [Com 40,050]

and transferring employees (s 318) …. Orders relating to instruments covering a new employer and non-transferring employees (s 319) …. Variation of transferable instruments …. Transfer of accrued entitlements …. Conclusion ….

[Com 40,060] [Com 40,070] [Com 40,080] [Com 40,090] [Com 40,100]

[Com 40,010] Introduction In an economic climate where businesses are frequently bought and sold, the question of what happens to the employees of a business and the industrial instruments that apply to those employees is one that the judiciary and legislature have consistently grappled with. Prior to the Fair Work Act 2009 (Cth) (FW Act), a body of law developed in order to regulate situations where there had been a “transmission of business”. The FW Act has both built upon and modified this body of law in Pt 2-8 which regulates “transfer of business”. [page 423] Transfer (and previously transmission) of business laws are concerned with business asset sales. If a business is sold by way of a share sale, the employment relationship does not change. This is because there is no change in the identity of the employer after a share sale and as a result existing employment arrangements remain in place. Asset sales are more complex because the purchaser of the business chooses which assets to acquire such as the company’s plant, good will and equipment. The purchaser in an asset sale will also choose whether to offer employment to the former employees of the acquired business. If the new owner does engage the employees of the old employer, it becomes necessary to identify the terms and conditions of the new employment relationship. In recent years the law regarding transmission of business became increasingly complex, with the High Court decisions in Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; 138 IR 252; [2005] HCA 9; BC200500900 and PP Consultants Pty Limited v Finance Sector Union of Australia (2000) 201 CLR 648; 101 IR 103; [2000] HCA 59; BC200006929 developing various criteria to assist in determining whether a new employer was a “successor, transmittee or assignee” and so captured by the earlier statutory provisions dealing with transmission of business. The transfer of business provisions of the FW Act came into force on 1 July 2009. These provisions attempted to replace the existing regime with more expansive, but clearer, legislative guidelines. Whether Pt 2-8 of the FW Act reduces litigation in this area of employment law, or simply leads to the development of new areas of litigation remains to be seen. [Com 40,020] What is a transfer of business? Under the Fair Work Act 2009 (FW Act), a business will be transferred when (s 311(1)): the employment of an employee of the old employer has terminated (for any reason, including a resignation by the employee); the employee becomes employed by the new employer within 3 months after the termination; the work (known as the “transferring work”) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer; and there is a “relevant connection” between the old and the new employer.

The FW Act defines a relevant connection as being a situation where (s 311(3)–(6)): there has been a transfer of assets (whether tangible or intangible) between the old employer and the new employer; the old employer outsources work to the new employer that is performed by transferring employees as employees of the new employer; the new employer ceases to outsource work to the old employer and decides instead to insource work; or the new employer is an associated entity of the old employer. The new laws focus on the work that the employee performs. It is essential that the employee performs the same, or substantially the same, work for the new employer as they did for the old. This is a shift from the laws that existed both prior to and under the WorkChoices regime which required a characterisation of the “business” of the new and old employer in order to determine that the business of the old employer had become the business of the new employer. Nevertheless, the requirement of a “relevant connection” mandates that there be a clear link between the old and new employer. In addition, the FW Act provides that if there is a transfer of assets, outsourcing or insourcing via “associated entities” there has still been a transfer of business: s 311(3)–(5). This means that the transfer of business provisions will not be easily avoided by complex group company structures will not result in avoidance or evasion of the provisions of the FW Act. [page 424] Outsourcing and insourcing The rules regarding outsourcing and insourcing capture the following situations: where an old employer outsources work to the new employer: for example, where the old employer decides that it no longer wishes to perform work of a particular type and decides to engage a third party to perform that work and that third party engages employees of the older employer to continue performing that work; and where a new employer decides to insource work: for example, where a transferring employee performs the work as an employee of the new employer because the new employer, or an associated entity of the new employer, has ceased to outsource the work to the old employer or an associated entity of the old employer. Example: Steve’s Day-care (SD) is a daycare facility in New South Wales. SD employs three gardeners to maintain its extensive lawns. SD decides that it would prefer to outsource gardening work and, as a result, enters into a contract with Maurice’s Mowers (MW) to do the gardening. MW immediately decides to offer the three gardeners employment and they accept. As the three gardeners perform the same work for MW as they performed for SD, there has been a transfer of business. [Com 40,030] What happens when there has been a transfer of business? If there has been a transfer of business then the industrial instrument (either an enterprise agreement, workplace determination or named employer award)10 that applied to the employee when the employee was employed by the old employer will be the industrial instrument that applies when the employee is transferred to the new employer: ss 312–313. If the old employer had entered into an individual flexibility arrangement with the employee that modified the terms of the relevant modern award or enterprise agreement in some way then that individual flexibility arrangement will also transfer such that it applies between the employee and the new employer: s 313(2).

The industrial instrument might also apply to employees that are hired by the new employer to perform work that has transferred from the old to new business but did not work for the old employer (these employees are known as “non-transferring employees”). This will only happen where the nontransferring employee that is hired by the new employer is not covered by any other enterprise agreement or modern award: s 314(1)(d). The transfer of business rules apply by default. However, the default rules can be displaced if an application is made to the Fair Work Commission (the FWC) in accordance with s 318 or s 319 seeking that the old industrial instrument cover or not cover the new employment relationship (see below). Importantly, the FW Act also preserves any coverage that employer and employee organisations may have had under the named employer award or enterprise agreement when the employee worked for the old employer: s 315. Section 316 also protects any guarantee of annual earnings for a guaranteed period that has been given to “high income employees” by the old employer where an enterprise agreement does not apply to that employee. A high income employee is an employee who earns more than the “high income threshold”: ss 329 and 333. This amount is prescribed by the regulations. The guarantee ensures that if some of the guaranteed period occurs after the transfer of business then the new employer will have to fulfil the guarantee of annual earnings (in relation to the portion of the guaranteed period that takes place after the transfer time). Further, if the transferring employee has an entitlement to non-monetary benefits under the guarantee of annual earnings, for example a company car, but it is not practicable for the new employer to provide such a benefit then the new employer may instead provide the transferring employee with an amount of money that is equivalent to the value of the non-monetary benefit. [page 425] This provision will be of particular importance to senior employees, to whom such guarantees will often be made. [Com 40,040] How long does the transferred instrument bind the new employer and transferring employee? A transferred instrument will apply indefinitely until terminated or replaced by another instrument. The FW Act effectively restores the position prior to the WorkChoices legislation. Workchoices had imposed a maximum time limit of 12 months for the operation of the transferred instrument (with the exception of redundancy provisions, which lasted 2 years). [Com 40,050] The role of the Fair Work Commission The role of the Fair Work Commission (the FWC) is outlined in ss 317–320 of the Fair Work Act 2009 (Cth). The FWC has a role in determining: whether the enterprise agreements and named employer awards of the new employer (rather than the agreements and named employer awards of the old employer) should apply to transferring employees; and the application of transferred instruments to non-transferring employees. The FWC may also make orders that an industrial instrument should or should not cover transferring employees, and may make orders to vary an industrial instrument. For further detailed analysis of the history, function, structure and procedures of the FWC see “The Fair Work Commission” commentary chapter at [Com 75,010]–[Com 75,340]. [Com 40,060] Orders relating to instruments covering a new employer and transferring employees (s 318) The Fair Work Commission (the FWC) may make an order that a transferable

instrument that would ordinarily transfer does not cover a new employer and transferring employees (Fair Work Act 2009 (Cth) s 318(1)(a)), and, as a result displace the general rule in s 313. The FWC may also make an order that an enterprise agreement or named employer award that covers the existing employees of the a new employer also cover transferring employees: s 318(1)(b). This provision is of particular importance as it may be impractical for the new employer to have a variety of different industrial instruments operating in the workplace. Who may seek an order? The FWC may only make an order under s 318 upon application. Such an application can be made by (s 318(2)): a new employer or a person who is likely to be the new employer; a transferring employee or a person likely to be a transferring employee; if the application relates to an enterprise agreement, an employee organisation that is or is likely to be covered by the agreement; or if the application relates to a named employer award, an employee organisation that is entitled to represent the industrial interests of an transferring employee or a likely transferring employee. The ability of prospective new employers to apply to the FWC orders of this nature is likely to be a tool employed by purchasers of a business in the due diligence process, for example, where the prospective new employer would only contemplate a deal if the old employer’s industrial instrument(s) would not apply to it. [Com 40,070] Orders relating to instruments covering a new employer and non-transferring employees (s 319) The Fair Work Commission (the FWC) may make certain orders that apply to a new employer and non-transferring employee(s) so as to depart from the default rules set out in the Fair Work Act 2009 (Cth) (FW Act) s 314: see s 319. These are: That a transferable instrument does not cover a new employer and a non-transferring employee (s 319(1)(a)); [page 426] That a transferable instrument covers or will cover a non-transferring employee who performs transferring work for a new employer (s 319(1)(b)). This would afford a potential purchaser of a business a measure of certainty and might also insure against having a variety of different agreements governing transferring and non-transferring employees; That an enterprise agreement or a modern award that covers a new employer does not or will not cover a non-transferring employee who performs transferring work for a new employer: s 319(1)(c). This section allows an existing enterprise agreement or modern award that covers a non-transferring employee to be “switched off” so that the non-transferring employee can instead by covered by a transferable instrument. The FWC may only make an order that a transferable instrument does not cover non-transferring employees who are employed by the new employer in the cases of new hires. On the other hand, an order that non-transferring employees performing the transferring work will be bound by the transferable industrial instruments can be made regardless of when the non-transferring employees were hired. This means that these orders could apply to existing employees of the new employer who begin performing the transferred work after the transfer of business takes place. The FWC does not have the power to attach a time limit or expiry date to an order under s 319: Zancott Recruitment Pty Ltd [2014] FWCFB 351.

Who may seek an order? The FWC may only make an orders under s 319 by application and such an application can be made by (s 319(2)): a new employer or a person who is likely to be the new employer; a non-transferring employee who performs, or who is likely to perform, the transferring work for the new employer; if the application relates to an enterprise agreement, an employee organisation who is covered by the agreement; or if the application relates to a named employer award, an employee organisation that entitled to represent the industrial interests of a non-transferring employee. Factors considered by the FWC when making an order When deciding whether to make an order under ss 318–319, there are certain matters that the FWC must take into account: ss 318(3) and 319(3). These are: the views of a new employer and the employees who would be affected by the order; whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment; the nominal expiry date of the enterprise agreement (if applicable); whether the transferable instrument would have a negative impact on the productivity of a new employer’s workplace; whether a new employer would incur significant economic disadvantage as a result of the transferable instrument covering it; the degree of “business synergy” between the transferable instrument and any workplace instrument that already covers a new employer; and the public interest. The term “business synergy” is neither defined in the FW Act nor discussed in the Explanatory Memorandum to the Fair Work Bill 2008, and, given its abstract and undefined nature, is likely to only be clarified through judicial interpretation. Presumably, in this context “business synergy” refers to how compatible the transferring industrial instrument and the instruments already in place at the new employer’s business are. When will the FWC make an order? An employer was successful in obtaining an order that a transferable instrument not apply to the employment of employees likely to be transferring employees. The FWC granted the employer’s desire to have its employees employed according to [page 427] a “one-staff policy”. In this case, employees would not be detrimentally affected by having an industrial instrument already in place at the workplace apply to them, a majority of balloted employees preferred to be covered by that agreement, the employer claimed there would be a negative effect on workplace productivity, as well as the employer’s business synergy, and the import of the business to the surrounding economy. The order was made in favour of the employer. Importantly, there was observation in the decision that the difference in the employer’s employment models, if the transferable instrument had applied, appeared to be captured by the legislative phrase “business synergy”. See Queensland Nickel Pty Ltd [2009] FWA 335. In another case concerning an application that transferring employees be bound by an agreement already binding the new employer (i.e. not a transferring instrument), relevant factors included that a future wage increase would occur under the agreement, that the agreement contained detailed

employment conditions, with the agreement thereby providing “security of beneficial terms … until at least the nominal expiry date” (occurring about two years after the FWC order took effect). See Application by AWH Pty Ltd [2009] FWA 62. An order made by the FWC may only come into operation at the later of the time when the transferring employee becomes employed by the new employer; or the day on which the order is made: s 318(4). If the order is made in relation to non-transferring employees then it may only come into operation at the later of the time at which the non-transferring employee starts performing the transferred work or the day on which the order is made: s 319(4). [Com 40,080] Variation of transferable instruments Parties may apply to the Fair Work Commission (FWC) to vary the transferable instrument that applies to the employer in three circumstances. These are (Fair Work Act 2009 (Cth) s 320(1)): (1) variation to remove a term or terms that are not capable of meaningful operation because the transfer of business has taken place; (2) variation to remove ambiguity or uncertainty that has arisen because of the transfer of business; or (3) variation to allow the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s business. As with orders made by the FWC pursuant to ss 318–319, orders made pursuant to s 320 can be made prospectively so that there is certainty before the transfer of business takes place. New employers are likely to make particular use of the third type of variation — “to allow the transferable instrument to operate in a way better aligned to the working arrangements of the new employer’s business” — as most businesses will have a range of terms and conditions, such as weekly working hours and core hours, that will need to apply to all employees. The FWC only may make a variation on application by a person who is covered by the transferable instrument, or if the application is to vary a named employer award — an employee organisation that is entitled to represent the industrial interests of an employee who is covered by the named employer award: s 320(3). When making an order pursuant to s 320, the FWC consider the same factors as it is required to consider for an order under ss 318–319. For example, the FWC must consider the degree of business synergy that exists (or would exist) between the transferring instrument and the other industrial instruments that apply to the new employer if the proposed variation were not made: s 320(4). Variations must not come into effect until the later of the variation order made by the FWC and the time when the transferable instrument begins to cover the new employer: s 320(5). [Com 40,090] Transfer of accrued entitlements A period of service with the old employer will generally be counted as service with the second employer: Fair Work Act 2009 (Cth) s 22(5). This will impact upon certain National Employment Standards entitlements such as the amount of personal/carer’s leave that an employee is entitled to as well as the time at which an employee is eligible for parental leave or has the right to request flexible work arrangements. [page 428] However, the new employer has a choice as to whether or not service will be recognised for the purpose of calculating entitlements to annual leave and redundancy pay purposes: ss 91 and 122. Parental leave An employee that is already on parental leave with the old employer when a transfer of

business takes place is entitled to continue his or her parental leave with the new employer after the transfer of business occurs: s 69(1). Further, any steps that an employee has taken in relation to taking parental leave with the old employer (such as providing notice) count as steps taken with the new employer if there is a transfer of employment: s 69(2). Redundancy pay If there is a transfer of business, employees that could be transferring employees are not entitled to redundancy pay where a new employer is willing to provide the employees with similar and overall no less favourable employment and to recognise their previous service for redundancy purposes: s 122(3). However, the Fair Work Commission (the FWC) may make an order that the old employer pay a specified amount of a redundancy pay, if the FWC is satisfied that it would be unfair to deny the employee a redundancy payment: s 122(4). Transfer to an associated entity If an employee is transferred to an employer that is an associated entity of the old employer, service with that employer will be deemed to be continuous for the purposes of all service-related NES entitlements including annual leave and redundancy pay. “Associated entities” is a term defined in s 50AAA of the Corporations Act 2001 (Cth) and includes parent and holding companies as well as companies where one entity has a significant influence over the other. Minimum employment period for unfair dismissal protection If a transfer of business occurs, a transferring employee’s previous service will count for the purpose of calculating whether the minimum employment period in order to be eligible for unfair dismissal remedies has been served. Such a minimum employment period is often termed a “probationary period” or “qualifying period”. However, the new employer is able to avoid this obligation if it informs transferring employees in writing that service with the old employer will not count as service with the new employer before the transferring employee commences: s 384(b). Associated entities may not opt out of the minimum employment period for unfair dismissal protection. As a result, if the old employer and new employer are associated entities and an employee begins performing transferred work with the new employer within a three-month period the employee’s service with the previous employer will be taken to be continuous service when determining whether the employee has reached the minimum employment period required in order to be able to make a claim for unfair dismissal. Transfer of business from a state public sector employer In late 2012, the Fair Work Amendment (Transfer of Business) Act 2012 was passed which amended the FW Act to protect state public sector employees’ entitlements where there is a transfer of business from a state employer to a national system employer (Pt 6-3A). These new protections apply to public sector employees in Queensland, NSW, South Australia, Western Australia and Tasmania, as public sector workers in other jurisdictions were already covered by the old transfer of business protections. The amendments reflect, as much as possible, the existing transfer of business provisions in Pt 2-8 of the FW Act. The amendments: Create a new federal instrument that “copies” the terms and conditions in the transferring employees’ state award/agreement; Enable the FWC to make orders that modify the general effect of the transfer of business rules in these circumstances — in particular on the coverage of certain instruments and their application to new employers (as is the case with the current rules in Pt 2-8); and Provide for the interaction between the transfer of employees’ terms and conditions of employment and the FW Act, including the NES, and other necessary transitional and technical provisions. [page 429]

[Com 40,100] Conclusion Whilst Pt 2-8 of the Fair Work Act 2009 (Cth) represents a comprehensive overhaul of the transfer/transmission employment laws, it continues to provide protection to employees who work for a business that is bought by a new entity. The rules governing transfer of business have been greatly simplified and expanded and now focus on the transfer of work rather than the business itself. Nevertheless, many aspects of the new laws suggest that transfer of business will continue to be an area of contention. For example, what is business synergy? Further, how does one determine whether the variation of a transferable instrument will make it “better aligned” to other industrial instruments of the new employer? This being said, the ability to apply to the FWC before any transfer takes place for orders or variations should provide employers and employees with some comfort and certainty. A “named employer award” is modern award that expressly states that it covers a certain employer: s 312(2). 10

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DIVISION 1 — INTRODUCTION

[6-9640]

Guide to this Part

307 This Part provides for the transfer of enterprise agreements, certain modern awards and certain other instruments if there is a transfer of business from one national system employer to another national system employer. (For a transfer of business from a nonnational system employer that is a State public sector employer to a national system employer, see Part 6-3A.) Division 2 describes when a transfer of business occurs and defines the following key concepts: old employer, new employer, transferring work, transferring employee and transferable instrument. Division 2 also sets out the circumstances in which enterprise agreements, certain modern awards and certain other instruments that covered the old employer and the transferring employees (including high income employees) cover the new employer, the transferring employees and certain nontransferring employees and organisations. Division 3 provides for the FWC to make orders in relation to a transfer of business. [Editor’s note: Section 307 of this legislation is reproduced in this format in line with the official version.] [s 307 am Act 175 of 2012 s 3 and Sch 1 item 54, opn 5 Dec 2012; Act 174 of 2012 s 3 and Sch 9 item 344, opn 1 Jan 2013]

[6-9660]

Meanings of employee and employer

308 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). [s 308 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY TO SECTION 308*

Derivation …. National system employee — s 308 …. National system employer — s 308 …. TCF contract outworkers — s 308 Note …. This Part — s 308 ….

[6-9660.05] [6-9660.10] [6-9660.15] [6-9660.20] [6-9660.25] [page 430]

[6-9660.05] Derivation The section is new. [6-9660.10] National system employee — s 308 See ss 12, 13, 30C, 789BB(a). [6-9660.15] National system employer — s 308 See ss 12, 13, 30C, 789BB(a). [6-9660.20] TCF contract outworkers — s 308 Note See s 789BB(2). [6-9660.25] This Part — s 308 This part is Pt 2-8. *Editors’ note: Commentary to s 308 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

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[6-9680]

Object of this Part

309 The object of this Part is to provide a balance between: (a) the protection of employees’ terms and conditions of employment under enterprise agreements, certain modern awards and certain other instruments; and (b) the interests of employers in running their enterprises efficiently; if there is a transfer of business from one employer to another employer. COMMENTARY TO SECTION 309 [6-9680.1] Discretion In Stratco (NSW) Pty Ltd [2010] FWA 7036, Commissioner Hampton held at [11] that the exercise of the discretion given to Fair Work Australia, as it then was, under s 318 is also undertaken within the objects of the Part as expressed in s 309. Commissioner Hampton had to determine whether the terms of s 318 were intended to only apply where the application is made prior to the transfer taking place. Commissioner Hampton held at [14] that given the objects of the Act, it

was not appropriate to construe the provision so narrowly as to prevent an application being made in a case such as the one before him, where the application had been made after the transfer had taken place.

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DIVISION 2 — TRANSFER OF INSTRUMENTS

[6-9870]

Application of this Division

310 This Division provides for the transfer of rights and obligations under enterprise agreements, certain modern awards and certain other instruments if there is a transfer of business from an old employer to a new employer.

[6-9890]

When does a transfer of business occur

311 Meanings of transfer of business, old employer, new employer and transferring work (1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied: (a) the employment of an employee of the old employer has terminated; (b) within 3 months after the termination, the employee becomes employed by the new employer; (c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer; [page 431] (d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6). Meaning of transferring employee (2) An employee in relation to whom the requirements in paragraphs (1) (a), (b) and (c) are satisfied is a transferring employee in relation to the

transfer of business. Transfer of assets from old employer to new employer (3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between: (a) the old employer or an associated entity of the old employer; and (b) the new employer or an associated entity of the new employer; the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible): (c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and (d) that relate to, or are used in connection with, the transferring work. Old employer outsources work to new employer (4) There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer. New employer ceases to outsource work to old employer (5) There is a connection between the old employer and the new employer if: (a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and (b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer. New employer is associated entity of old employer (6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the

transferring employee becomes employed by the new employer. COMMENTARY TO SECTION 311*

Derivation …. Arrangement — s 311(3) …. Associated entity — s 311(3)(a),(b),(c), (4), (5),(a),(b), (6) …. Beneficial use — s 311(3)(b), (c) …. Employee — s 311(1)(a), (b), (c), (d), (2),(4),(5)(a),(b), (6) …. Employer — s 311(1),(a), (b), (c),(3),(a),(b),(c), (4),(5) (a),(b), (6) ….

[6-9890.1] [6-9890.5] [6-9890.10] [6-9890.15] [6-9890.20] [6-9890.25] [page 432]

Three months — 311(1)(b) …. Transferring work — s 311(1)(c), 3(d), (4),(5)(a),(b), (6) …. Transferring employee — s 311(2), (4), (5)(a),(b), (6) …. Outline of section ….

[6-9890.30] [6-9890.35] [6-9890.40] [6-9890.45]

[6-9890.1] Derivation The section is very loosely derived from s 581 of the Workplace Relations Act 1996. [6-9890.5] Arrangement — s 311(3) It is not necessary that the arrangement actually effect the transfer of the assets or their beneficial use. Under s 311(3), it is sufficient that the new employer have the beneficial use of assets “in accordance with” the arrangement. The Explanatory Memorandum to the Fair Work Bill 2008 somewhat vaguely notes: “The word arrangement is intended to be interpreted broadly”. In Peter Zabrdac v Transclean Facilities Pty Ltd [2011] FWA 4492; BC201170778, Commissioner Bissett engaged in a lengthy analysis of judicial consideration of the term “arrangement” in other statutory contexts. The Commissioner held that an arrangement for the purposes of s 311(3) need not be contractual in nature but must satisfy the following three criteria, that: there be communication between the parties to the arrangement; the parties reach some understanding; and there is some expectation that each of the parties will behave in a particular way. [6-9890.10] Associated entity — s 311(3)(a),(b),(c), (4), (5),(a),(b),(6) See s 12. [6-9890.15] Beneficial use — s 311(3)(b), (c) The Explanatory Memorandum to the Fair Work Bill 2008 does not offer any guidance as to what the “beneficial use” of an asset is intended to mean in this

context. Various Fair Work Australia (FW Australia) decisions inferentially support the view that the exclusive enjoyment or use of the assets is sufficient, even where there is no legal or beneficial ownership, no lease and no license. In Farrugia v Building Technology Integrators Pty Ltd [2011] FWA 1285; BC201170308, the use of tangible assets such as vehicles, furniture, computers and stationery was considered “beneficial use” where the company did not take immediate ownership of the assets (cited without disapproval in Peter Zabrdac v Transclean Facilities Pty Ltd [2011] FWA 4492; BC201170778. See also Michael Osmond V Nbs Transport (Sa) Pty Ltd t/as Nbs Transport [2010] FWA 5076; BC201070914. On the other hand, it is possible that the term “beneficial use” could be construed more narrowly to refer only to some kind of equitable ownership of assets. If this were the case, the mere enjoyment of the property would be irrelevant. [6-9890.20] Employee — s 311(1)(a), (b), (c), (d), (2),(4),(5)(a),(b), (6) See s 308. [6-9890.25] Employer — s 311(1),(a), (b), (c),(3),(a),(b),(c), (4),(5)(a),(b), (6) See s 308. [6-9890.30] Three months — 311(1)(b) Paragraph 1216 of the Explanatory Memorandum to the Fair Work Bill 2008 states that: Under paragraph 311(1)(b), there can be a period of up to three months between the periods of employment with the old employer and new employer. This is intended to reflect that in some transactions, eg, where the old employer has become insolvent and the liquidator is trying to sell the business, there may be a period where the transferring employees are not employed by either the old or the new employer. The three month period is also intended to ensure that the operation of Part 2–8 cannot be avoided by the new employer delaying the employment of an employee. [6-9890.35] Transferring work — s 311(1)(c), 3(d), (4),(5)(a),(b), (6) See s 311(1)(c). [page 433] [6-9890.40] Transferring employee — s 311(2), (4), (5)(a),(b), (6) See s 311(2). In Optus Administration Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union [2010] FWA 3567, Sams DP held at [14] that he had “no doubt” that the requirements of s 311 were satisfied with a transfer of employees from Virgin Mobile to Optus Pty Ltd, noting in particular that: (a) the employment of employees with the old employer will be terminated and they will become employees of the new employer within three months (May 2010); (b) the transferring work is the same, or substantially the same, as the work performed by the old employer; and (c) there is an obvious connection between the old and new employers; in fact they operate in the same industry. In Agnew Gold Mining Company Pty Ltd [2010] FWA 7430, Commissioner Williams held at [7] that the employer’s decision to cease to outsource the underground mining function at Agnew Gold Mine, and the subsequent employment of the former outsourced employees amounted to a transfer of business in accordance with s 311 of the Fair Work Act 2009. In Bartlett v Remote Area Logistics Pty Ltd [2010] FWA 3333; BC201070599, Commissioner Williams had to determine whether a transfer of business had occurred for the purposes of determining whether the employee had satisfied the minimum employment period to bring an unfair dismissal claim. Commissioner Williams held at [32] that no information had been provided regarding the

possible beneficial use of assets, outsourcing or ceasing to outsource work or whether the two entities were associated. In these circumstances, Commissioner Williams held that there was no basis on which the Tribunal could find there was a connection between the two employers as defined in any of s 311(3)–(6). Accordingly, there had not been a transfer of business as s 311(1)(d) was not fulfilled. In Farrugia v Building Technology Integrators Pty Ltd [2011] FWA 1285,; BC201170308, Senior Deputy President Hamberger took the view that s 311(1)(c) relates to the similarity in the actual work performed by the transferring employee. In light of this consideration, Senior Deputy President Hamberger held that whilst the work of the companies, the applicant’s title and precise duties may have changed, the overall work the applicant performed for the old employer and the new employer was substantially the same and therefore a transfer of business had occurred. Similarly, in Szybkowski v Monjon Australia Pty Ltd [2010] FWA 7321; BC201070312, Roe C held at [14] that there will be a transfer of business for the purpose of s 384 only in the event that there is a connection between the old employer and the new employer as set out in any one of s 311(3)–(6). Commissioner Roe stated that the agreed facts made it clear that the conditions of s 311(4) and (5) were not met as it was not a case of contracting out or contracting in, and further, there was no evidence that the condition of s 311(6) was met. Hence, it was only if the condition at s 311(3) was met that the applicant’s unfair dismissal claim would be within jurisdiction. Commissioner Roe stated at [17] that the conditions of s 311(3) were not met as the employer had submitted that there was no transfer of or beneficial use of the tangible or intangible assets of the entity, and the applicant had accepted that he had no evidence to contradict this. As a consequence, there was no transfer of business in this case and the applicant was forced to accept that there was less than the six months period of continuous employment with the employer for the purposes of eligibility for protection from unfair dismissal. In Svitzer Australia Pty Ltd v Maritime Union of Australia, The-Northern New South Wales Branch [2011] FWAFB 7947; BC201171384, the Full Bench of FWA held that the transfer of business provisions under Pt 2–8 of the Act prevailed over the terms of an enterprise agreement. In this case, a business providing port mooring services was about to be sold to a new company, with the employer advising that 14 of the 28 employees would be offered continuing employment with the new owner under the relevant agreement. A Full Bench of FWA held that this represented a transfer of business for the purposes of s 311(1). In particular, the Full Bench ruled at [60] that cl 17.1 of the Agreement which referred to redundancy in the context of an employee being [page 434] “surplus to the requirements of the company due to changed Port conditions” cannot be read as fundamentally altering the ordinary industrial meaning of the term redundant so as to extend it to include a change in the identity of the employer in the transfer of business situation. Accordingly, the situation of those continuing employees could not be characterised as a redundancy under the terms of the agreement. [6-9890.45] Outline of section [S]ection 311 of the Act establishes the meaning of the terminology “transfer of business” and “transferring employee” as contained in subs 384(2)(b) of the Act: Hillie v World Square Pub (2012) 224 IR 250; [2012] FWA 6806; BC201275754 at [33]. In Peter Zabrdac v Transclean Facilities Pty Ltd [2011] FWA 449; BC201170778, Bissett C confirmed at [62] that there will be a transfer of business for the purpose of s 22(7)(b) only if a connection between the old and new employer, as described in any s 311(3)–(6) of the Act, is established. *Editor’s note: Commentary to s 311 by Joe Catanzariti VP FWC and Michael Byrnes, Special

Counsel, Clayton Utz updated by Ian Latham BA(Hons) LLB (ANU), Barrister.

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[6-9910]

Instruments that may transfer

312 Meaning of transferable instrument (1) Each of the following is a transferable instrument: (a) an enterprise agreement that has been approved by the FWC; (b) a workplace determination; (c) a named employer award. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 345, opn 1 Jan 2013]

Meaning of named employer award (2) Each of the following is a named employer award: (a) a modern award (including a modern enterprise award) that is expressed to cover one or more named employers; (b) a modern enterprise award that is expressed to cover one or more specified classes of employers (other than a modern enterprise award that is expressed to relate to one or more enterprises as described in paragraph 168A(2)(b)). Note: Paragraph 168A(2)(b) deals with employers that carry on similar business activities under the same franchise. [subs (2) subst Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009]

[6-9930] Transferring employees and new employer covered by transferable instrument 313 (1) If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then: (a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer; and (b) while the transferable instrument covers the new employer and the transferring employee in relation to the transferring work, no other

enterprise agreement or named employer award that covers the new employer at the transfer time covers the transferring employee in relation to that work. (2) To avoid doubt, a transferable instrument that covers the new employer and a transferring employee under paragraph (1)(a) includes any individual flexibility [page 435] arrangement that had effect as a term of the transferable instrument immediately before the termination of the transferring employee’s employment with the old employer. (3) This section has effect subject to any FWC order under subsection 318(1). [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 346, opn 1 Jan 2013] COMMENTARY TO SECTION 313 [6-9930.1] Transferable instrument In ordinary circumstances, and subject to any application under s 318, the transferable instrument should apply to the new employer and transferring employees for the purposes of s 313 of the Fair Work Act 2009: Crèche & Kindergarten Association [2010] FWA 6281 at [10].

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[6-9950] New non-transferring employees of new employer may be covered by transferable instrument 314 (1) If: (a) a transferable instrument covers the new employer because of paragraph 313(1)(a); and (b) after the transferable instrument starts to cover the new employer, the new employer employs a non-transferring employee; and (c) the non-transferring employee performs the transferring work; and (d) at the time the non-transferring employee is employed, no other enterprise agreement or modern award covers the new employer

and the non-transferring employee in relation to that work; then the transferable instrument covers the new employer and the nontransferring employee in relation to that work. (2) A non-transferring employee of a new employer, in relation to a transfer of business, is an employee of the new employer who is not a transferring employee. (3) This section has effect subject to any FWC order under subsection 319(1). [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 346, opn 1 Jan 2013]

[6-9970] Organisations covered by transferable instrument 315 Employer organisation covered by named employer award (1) If: (a) a named employer award covers the new employer because of paragraph 313(1)(a); and (b) the named employer award covered an employer organisation in relation to the old employer immediately before the termination of a transferring employee’s employment with the old employer; then the named employer award covers the employer organisation in relation to the new employer. (2) Employee organisation covered by named employer award If: (a) a named employer award covers the new employer and a transferring employee because of paragraph 313(1)(a); and (b) the named employer award covered an employee organisation in relation to the transferring employee immediately before the termination of the transferring employee’s employment with the old employer; [page 436] then the named employer award covers the employee organisation in relation

to: (c) the transferring employee; and (d) any non-transferring employee of the new employer who: (i) is covered by the named employer award because of a provision of this Part or an FWC order; and (ii) performs the same work as the transferring employee. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 347, opn 1 Jan 2013]

Employee organisation covered by enterprise agreement (3) To avoid doubt, if: (a) an enterprise agreement covers a transferring employee or a nontransferring employee because of a provision of this Part or an FWC order; and (b) the enterprise agreement covered an employee organisation immediately before the termination of the transferring employee’s employment with the old employer; then the enterprise agreement covers the employee organisation. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 347, opn 1 Jan 2013]

[6-9990] Transferring employees who are high income employees 316 (1) This section applies if: (a) the old employer had given a guarantee of annual earnings for a guaranteed period to a transferring employee; and (b) the transferring employee was a high income employee immediately before the termination of the transferring employee’s employment with the old employer; and (c) some of the guaranteed period occurs after the time (the transfer time) the transferring employee becomes employed by the new employer; and (d) an enterprise agreement does not apply to the transferring employee in relation to the transferring work at the transfer time. (2) The guarantee of annual earnings has effect after the transfer time

(except as provided in this section) as if it had been given to the transferring employee by the new employer. (3) The new employer is not required to comply with the guarantee of annual earnings in relation to any part of the guaranteed period before the transfer time. (4) The new employer is not required to comply with the guarantee of annual earnings to the extent that it requires the new employer to pay an amount of earnings to the transferring employee, in relation to the part of the guaranteed period after the transfer time, at a rate that is more than the annual rate of the guarantee of annual earnings. (5) If: (a) the transferring employee is entitled to non-monetary benefits under the guarantee of annual earnings after the transfer time; and (b) it is not practicable for the new employer to provide those benefits to the transferring employee; then the guarantee of annual earnings is taken to be varied so that, instead of the entitlement to those benefits, the transferring employee is entitled to an amount of money that is equivalent to the agreed money value of those benefits. [page 437] (6) This section does not affect the rights and obligations of the old employer that arose before the transfer time in relation to the guarantee of annual earnings.

DIVISION 3 — POWERS OF THE FWC [Div 3 heading am Act 174 of 2012 s 3 and Sch 9 item 348, opn 1 Jan 2013]

[7-100] FWC may make orders in relation to a transfer of business 317 This Division provides for the FWC to make certain orders if there is,

or is likely to be, a transfer of business from an old employer to a new employer. [s 317 am Act 174 of 2012 s 3 and Sch 9 items 349, 350, opn 1 Jan 2013]

[7-120] Orders relating to instruments covering new employer and transferring employees 318 Orders that the FWC may make (1) The FWC may make the following orders: (a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee; (b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 351, 352, opn 1 Jan 2013]

Who may apply for an order (2) The FWC may make the order only on application by any of the following: (a) the new employer or a person who is likely to be the new employer; (b) a transferring employee, or an employee who is likely to be a transferring employee; (c) if the application relates to an enterprise agreement — an employee organisation that is, or is likely to be, covered by the agreement; (d) if the application relates to a named employer award — an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 352, opn 1 Jan 2013]

Matters that the FWC must take into account (3) In deciding whether to make the order, the FWC must take into account the following: (a) the views of:

the new employer or a person who is likely to be the new (i) employer; and (ii) the employees who would be affected by the order; (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment; (c) if the order relates to an enterprise agreement — the nominal expiry date of the agreement; (d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace; [page 438] (e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer; (f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer; (g) the public interest. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 353, 354, opn 1 Jan 2013]

Restriction on when order may come into operation (4) The order must not come into operation in relation to a particular transferring employee before the later of the following: (a) the time when the transferring employee becomes employed by the new employer; (b) the day on which the order is made. COMMENTARY TO SECTION 318*

Derivation …. Employee — s 318(1)(a), (1)(b), (2)(b), (c), (d), (3)(a) (ii), (b), (4)(a) …. Employer — s 318(1)(a), (b), (2)(a), (d), (3)(a)(i), (d), (e), (f), (4)(a) ….

[7-120.1] [7-120.3] [7-120.4]

Employee organisation — s 318(2)(c), (d) …. Enterprise agreement — s 318(1)(b), (2)(c), (3)(c) …. FWC — s 318(1), (2), (3) …. Matters that FWA must take into account — s 318(3) …. Named employer award — s 318(1)(b), (2)(d) …. Public interest — s 318(3)(g) …. Restriction on order — s 318(4) …. Terms and conditions of employment — s 318(3)(b) …. Transferable instrument — ss 318(1)(a), 3(d), (e), (f) …. Views of the employees — s 318(3)(a) …. Views of the employer — s 318(3)(a)(i) …. Whether employees disadvantaged — s 318(3)(b) …. Scope of section ….

[7-120.5] [7-120.6] [7-120.7] [7-120.8] [7-120.9] [7-120.13] [7-120.15] [7-120.16] [7-120.17] [7-120.18] [7-120.19] [7-120.20] [7-120.21]

[7-120.1] Derivation The section is new. [7-120.3] Employee — s 318(1)(a), (1)(b), (2)(b), (c), (d), (3)(a)(ii), (b), (4)(a) See s 308. [7-120.4] Employer — s 318(1)(a), (b), (2)(a), (d), (3)(a)(i), (d), (e), (f), (4)(a) See s 308. [7-120.5] Employee organisation — s 318(2)(c), (d) See s 12. [7-120.6] Enterprise agreement — s 318(1)(b), (2)(c), (3)(c) See s 12. [7-120.7] FWC — s 318(1), (2), (3) See s 12. [7-120.8] Matters that FWA must take into account — s 318(3) In Australian Central Credit Union Ltd [2011] FWA 3451; BC201170632 at [11], Steel C stated that “it is persuasive that the criteria for consideration by FWA in determination of the orders in regard to transferable employees, nontransferable employees and variations to transferable instruments all have the identical criteria (see ss 318(3), 319(3) and 320(3) of the Act)”. [page 439] In Optus Administration Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union [2010] FWA 3567, Deputy President Sams suggested that the factors set out in s 318(3) demonstrate important public interest considerations in balancing the protection of the employees’ terms and conditions and ensuring that the applicant’s business operates effectively and efficiently. [7-120.9] Named employer award — s 318(1)(b), (2)(d) See ss 12 and 312. [7-120.13] Public interest — s 318(3)(g) See [8-6920.15]. The consideration of the public interest in this context is influenced by the objects of the Fair Work Act 2009 in s 309: Stratco (NSW) Pty Ltd [2010] FWA 7036; BC201070289 at [42]. Moreover, there is

public interest in ensuring that agreed statutorily approved arrangements are not put aside lightly and where they are no longer to apply, the interests of the employees concerned are safeguarded: at [43]. Further, there is also public interest in ensuring that an employer’s business is able to operate efficiently without the burden of unnecessary complications in their employment arrangements: at [44]. [7-120.15] Restriction on order — s 318(4) Any order made under s 318 is subject to the restriction contained in s 318(4): Crèche & Kindergarten Association [2010] FWA 6281; BC201070657 at [24]. [7-120.16] Terms and conditions of employment — s 318(3)(b) Section 318(3)(b) does not refer only to the provisions of the applicable enterprise agreement but to “terms and conditions of employment”. In my view this encompasses more than a direct comparison of the applicable agreement provisions. I have taken into account the CSIRO offers: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Commonwealth Scientific and Industrial Research Organisation [2010] FWA 1171; BC201070213 at [102] (15 February 2010). [7-120.17] Transferable instrument — ss 318(1)(a), 3(d), (e), (f) See s 312. [7-120.18] Views of the employees — s 318(3)(a) In Curwoods Legal Services Pty Ltd [2014] FWC 2165 at [4], DP Sams took into account the consultative process between the employer and employees, the lack of opposition by the relevant employees and correspondence from the Finance Sector Union of Australia, which indicated that the Union did not oppose the application. [7-120.19] Views of the employer — s 318(3)(a)(i) In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FWA 1171 at [97], Deegan C considered that the submission that efficiency and productivity of an organisation will be enhanced if an agreement is not transferred is a consideration under s 318(3)(a)(i). [7-120.20] Whether employees disadvantaged — s 318(3)(b) In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FWA 1171, Deegan C indicated that if no employee were to be disadvantaged as a result of a s 318 order, then more weight could be given to factors such as the views of the employer and matters of productivity, cost and business synergy. [7-120.21] Scope of section Section 318 of the Fair Work Act 2009 deals with Orders relating to instruments covering new employers and transferring employees and prescribes who may apply for an order and the considerations Fair Work Australia must take into account in issuing an order: Origin Energy Ltd [2010] FWA 5277; BC201070379. [page 440] In Whitehaven Coal Mining Ltd [2010] FWA 1142; BC201070178, Fair Work Australia briefly dealt with the transfer of employees that would otherwise attract the operation of s 311. In that case, Whitehaven Coal Mining Ltd (Whitehaven) was the manager of coal mines and hired labour from TESA Group Pty Ltd (TESA) for use in both the mines and the preparation plant. Due to expansion, Whitehaven wished to acquire 22 casual TESA employees for permanent employment. The TESA employees hired out to Whitehaven were subject to an enterprise agreement however, so that the enterprise agreement would also bind Whitehaven after there had been a “transfer of business” due to the operation of s 311(5) of the Fair Work Act 2009 (cessation of outsourcing). Whitehaven’s offer of employment to the 22 casual TESA employees was subject to the success of its application to FW Australia pursuant to s 318, seeking orders that Whitehaven would not be bound by the enterprise

agreement. Although Fair Work Australia was of the view that a “transfer of business” would occur pursuant to s 311(5), Sams DP had no hesitation in granting the orders sought in circumstances where Whitehaven, the employees and the union were all agreeable and where the employees stood to positively benefit by the advantage of permanent employment. In Re Application by Queensland Nickel Pty Ltd (2009) 190 IR 13; [2009] FWA 335, Fair Work Australia ordered that a transferable instrument not bind a new employer and the transferring employees in circumstances where the new employer, the employees and their union were all agreeable to the orders sought and where the employees stood to positively benefit by the advantage of permanent employment. In particular, the employees proposed to be transferred had all signed offers of employment contingent upon the orders sought from Fair Work Australia being granted. Fair Work Australia noted that no employees would be disadvantaged by the order in relation to the terms and conditions of their employment, and that the former instrument would have a negative effect on the productivity of the new employer’s workplace. Fair Work Australia also observed that there were significant public interest considerations which weighed heavily in favour of the application, and subsequently granted the orders sought. See Whitehaven Coal Mining Ltd [2010] FWA 1142; BC201070178. Similarly in Gladstone Ports Corporation [2009] FWA 904; BC200970373, Fair Work Australia made an order that a transferable instrument should not apply to the transferring employees. The principal reason the new employer sought this order was to standardise its employment conditions, reduce administration costs, promote the transfer of employees across the business and encourage a single workplace culture. When considering the views of the employees prospectively affected by the order in accordance with s 318(3)(a)(ii), FWA observed that 13 out of the 14 affected employees had voted in support of the of the transferable instrument not applying to their new employment. Taking into account the business synergy between the transferable instrument and the existing agreement pursuant to s 318(3)(f), Richards SDP found that there appeared to be little synergy between the employment modes in the applicant’s industrial instruments and the existing agreement. SDP Richards found that the classification systems and hours provisions in the two agreements were different and somewhat incompatible. It was observed that if the existing agreement was to apply it would have a negative impact on the employer’s workplace (s 318(3)(d)) as it would undermine sustained efforts by the new employer over time to standardise its operations, with resultant costs and inefficiencies. In another case where a new employer wished to disassociate itself from a transferable instrument, the new employer planned to relocate plant and equipment to new premises where it also wished to employ employees of the old employer that had operated the plant and equipment pursuant to an outsourcing agreement. The new employer adduced evidence to show that the employees would be paid between 4.63% and 22.22% higher under the new agreement in comparison to the existing agreement the employees were subject to. The new agreement was however deficient in other respects, in that it provided 1% lower superannuation contributions and [page 441] reduced redundancy payments for employees with three and four years of service. Upon intervention by the employees’ union however, the new employer undertook to pay the difference between the redundancy provisions in the new agreement and the existing agreement within twelve months of the transfer date for affected employees. FW Australia was satisfied that the requirements of s 318(3) had been met and was particularly persuaded by the support of the transferring employees, where 17 of 20 voted in favour of being bound by the new agreement. FW Australia also noted that conversion to the new agreement was in the public interest “in so far as it furthers workplace harmony and the long-term

interests of the transferring employees”. See Futuris Automotive Interiors (Australia) Pty Ltd [2010] FWA 1517. In a case where the employer argued that it should be bound by one agreement only for no real reason other than to “integrate” the workforce, FW Australia held that the continuance of the transferable instrument would not be so “deleterious to [the new employer’s] operations to such an extent that this factor should outweigh all other criteria which must be taken into account”. In particular, FW Australia observed that the transferring employees would constitute a discrete workplace with only a marginal relationship to the rest of the organisation. While FW Australia noted that it may be a different story where the transferring employees would not be disadvantaged by the new agreement, as the new agreement did in fact create disadvantages, FW Australia dismissed the application so that the transferable instrument would continue to dictate the terms and conditions of employment of the transferring employees. See Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FWA 1171; BC201070213. In Optus Administration Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Communications Division [2010] FWA 3567 at [18], Sams DP held that in deciding whether to make an order under s 318, there are “important public interest considerations in balancing the protection of the employees’ terms and conditions and ensuring that the applicant’s business operates effectively and efficiently”. In Agnew Gold Mining Company Pty Ltd [2010] FWA 7430; BC201070343, Commissioner Williams held at [27] that the fact that the maintenance of two separate and distinct employment systems would require the employer to incur the unnecessary cost of administering and maintaining two payroll systems, was a relevant economic disadvantage which had to be taken into consideration under s 318(3)(e). In Stratco (NSW) Pty Ltd [2010] FWA 7036; BC201070289, Commissioner Hampton held at [14] that where an application is made under s 318 after the transfer has taken place, the considerations cited in s 318(3) must be approached having regard to the fact that the transferable instrument is already applying to the parties concerned. In Telstra Corp Ltd [2012] FWA 541; BC201270014, Telstra sought an order that 31 employees moving from Sensis to Telstra Digital Media be covered under the Telstra Enterprise Agreement. In allowing the application, FW Australia had regard to the fact that administrative costs of managing two different enterprise agreements would be substantial and Telstra would be required to operate two contrasting sets of payroll or to reconfigure the current system. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FWA 1171; BC201070213 at [97], Deegan C considered that the submission that efficiency and productivity of an organisation will be enhanced if an agreement is not transferred is a consideration under s 318(3)(a)(i). It is generally desirable that, subject to considerations of overall fairness, common conditions of employment operate amongst like employees in the same workplace: Stratco (NSW) Pty Ltd [2010] FWA 7036; BC201070289 at [37]. *Editors’ note: Commentary on s 318 prepared by Joe Catanzariti, VP FWA and Michael Byrnes Special Counsel, Clayton Utz and updated by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[page 442]

[7-140] Orders relating to instruments covering new employer and non-transferring employees 319 Orders that the FWC may make (1) The FWC may make the following orders: (a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a non-transferring employee because of subsection 314(1) does not, or will not, cover the nontransferring employee; (b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer; (c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a nontransferring employee who performs, or is likely to perform, the transferring work for the new employer. Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non-transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 355, 356, opn 1 Jan 2013]

Who may apply for an order (2) The FWC may make the order only on application by any of the following: (a) the new employer or a person who is likely to be the new employer; (b) a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer; (c) if the application relates to an enterprise agreement — an employee organisation that is, or is likely to be, covered by the agreement; (d) if the application relates to a named employer award — an employee organisation that is entitled to represent the industrial

interests of an employee referred to in paragraph (b). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 356, opn 1 Jan 2013]

Matters that the FWC must take into account (3) In deciding whether to make the order, the FWC must take into account the following: (a) the views of: (i) the new employer or a person who is likely to be the new employer; and (ii) the employees who would be affected by the order; (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment; (c) if the order relates to an enterprise agreement — the nominal expiry date of the agreement; (d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace; (e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer; [page 443] (f)

the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer; (g) the public interest. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 357, 358, opn 1 Jan 2013]

Restriction on when order may come into operation (4) The order must not come into operation in relation to a particular nontransferring employee before the later of the following: (a) the time when the non-transferring employee starts to perform the transferring work for the new employer; (b) the day on which the order is made.

COMMENTARY TO SECTION 319

Section 319(3) ….

[7-140.1]

[7-140.1] Section 319(3) See [7-120.2]. An application for an order pursuant to s 319 seeks to enliven the powers provided by s 319(1)(b); see National Jet Express Pty Ltd [2012] FWA 2822.

____________________

[7-160]

Variation of transferable instruments

320 Application of this section (1) This section applies in relation to a transferable instrument that covers, or is likely to cover, the new employer because of a provision of this Part. Power to vary transferable instrument (2) The FWC may vary the transferable instrument: (a) to remove terms that the FWC is satisfied are not, or will not be, capable of meaningful operation because of the transfer of business to the new employer; or (b) to remove an ambiguity or uncertainty about how a term of the instrument operates if: (i) the ambiguity or uncertainty has arisen, or will arise, because of the transfer of business to the new employer; and (ii) the FWC is satisfied that the variation will remove the ambiguity or uncertainty; or (c) to enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 359, 360, opn 1 Jan 2013]

Who may apply for a variation (3) The FWC may make the variation only on application by: (a) a person who is, or is likely to be, covered by the transferable instrument; or (b) if the application is to vary a named employer award — an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the named employer award.

[subs (3) am Act 174 of 2012 s 3 and Sch 9 item 361, opn 1 Jan 2013]

[page 444] Matters that the FWC must take into account (4) In deciding whether to make the variation, the FWC must take into account the following: (a) the views of: (i) the new employer or a person who is likely to be the new employer; and (ii) the employees who would be affected by the transferable instrument as varied; (b) whether any employees would be disadvantaged by the transferable instrument as varied in relation to their terms and conditions of employment; (c) if the transferable instrument is an enterprise agreement — the nominal expiry date of the agreement; (d) whether the transferable instrument, without the variation, would have a negative impact on the productivity of the new employer’s workplace; (e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument, without the variation; (f) the degree of business synergy between the transferable instrument, without the variation, and any workplace instrument that already covers the new employer; (g) the public interest. [subs (4) am Act 174 of 2012 s 3 and Sch 9 items 362, 363, opn 1 Jan 2013]

Restriction on when variation may come into operation (5) A variation of a transferable instrument under subsection (2) must not come into operation before the later of the following: (a) the time when the transferable instrument starts to cover the new

employer; (b) the day on which the variation is made. COMMENTARY TO SECTION 320

Variation of transferable instruments …. Exercise of jurisdiction …. Application to vary — s 320(2) …. Application to vary — s 320(4) …. Section 320(3) ….

[7-160.01] [7-160.1] [7-160.5] [7-160.10] [7-160.15]

[7-160.01] Variation of transferable instruments In B C Meale’s Pty Ltd [2010] FWA 7964, Senior Deputy President Richards at [35] stated that the power to vary a transferable instrument is limited to the three purposes as set out in s 320(2)(a), s 320(2)(b)(i), s 320(2)(b)(ii), and s 320(2)(c) of the Act. [7-160.1] Exercise of jurisdiction In B C Meale’s Pty Ltd [2010] FWA 7964, an application was made pursuant to s 320 seeking to vary the transferable instrument that was to transfer along with the employees. The basis for the application was that the market conditions in Brisbane had not evolved as forecast and therefore the employer found itself party to an enterprise agreement that contained rates and allowances which were proving to be a commercial restraint upon its ability to be competitive in the market. Richards SDP held at [21] that s 320(1) implicitly requires various factual preconditions to be in existence in relation to a transferable instrument covering, or likely to be covering a new employer, before such time as the jurisdiction to vary a transferable instrument can be exercised. Jurisdiction under Pt 2–8 arises from the fact of a transfer of business. Subject to the tribunal’s finding that a transfer of business was occurring, it could then proceed to consider an application under s 320. [7-160.5] Application to vary — s 320(2) Any application to vary the transferable instrument must be for any one or more of the purposes set out in s 320(2): B C Meale’s Pty Ltd [2010] FWA 7964 at [36]. [page 445] In B C Meale’s Pty Ltd [2010] FWA 7964, Richards SDP held at [37] that Fair Work Australia is empowered to vary a transitional instrument for the reason that the variation would enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise. Richards SDP was concerned at [38] that the scope of the meaning of “working arrangements” may not extend to pay rates and allowances. Richards SDP held that as a matter of construction, “working arrangements” referred to in s 320(2)(c) should be given its ordinary meaning. Richards SDP further held at [42] that the notion of working arrangements ordinarily implies such matters as the hours or days of operation, the spread of ordinary hours, rosters and shift patterns, the hour at which work commences, crib break structures and so forth. However, it did not appear to Richards SDP that the notion of working arrangements extended to pay rates and allowances. To Richards SDP, the language of s 320(2) did not tend toward a broad construction of working arrangements so that pay rates and allowances may be varied under s 320. However, this was expressed to be only a provisional view and was not adopted by Richards SDP as a final position.

[7-160.10] Application to vary — s 320(4) The purpose of s 320(4)(e) of the Act is to ensure that Fair Work Australia takes into account, when varying a transferable instrument, the employer’s financial position: B C Meale’s Pty Ltd [2010] FWA 7964 at [54]. [7-160.15] Section 320(3) See [7-120.2].

____________________

PART 2-9 — OTHER TERMS AND CONDITIONS OF EMPLOYMENT [Pt 2-9 am Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009]

DIVISION 1 — INTRODUCTION

[7-400]

Guide to this Part

321 This Part deals with other terms and conditions of employment. Division 2 is about the frequency and methods of payment of amounts payable to national system employees in relation to the performance of work, and the circumstances in which a national system employer may make deductions from such amounts. Division 3 is about the guarantee of annual earnings that may be given to a national system employee whose earnings exceed the high income threshold. Modern awards do not apply to such an employee. [Editor’s note: Section 321 of this legislation is reproduced in this format in line with the official version.]

[7-420]

Meanings of employee and employer

322 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). [s 322 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

[page 446] COMMENTARY TO SECTION 322*

Derivation …. National system employee — s 308 …. National system employer — s 308 ….

[7-420.01] [7-420.05] [7-420.10]

[7-420.01] Derivation The section is new. [7-420.05] National system employee — s 308 See ss 12, 13, 30C, 789BB(a). [7-420.10] National system employer — s 308 See ss 12, 13, 30C, 789BB(a). *Editors’ note: Commentary to s 322 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

DIVISION 2 — PAYMENT OF WAGES

[7-610]

Method and frequency of payment

323 (1) An employer must pay an employee amounts payable to the employee in relation to the performance of work: (a) in full (except as provided by section 324); and (b) in money by one, or a combination, of the methods referred to in subsection (2); and (c) at least monthly. Note 1: This subsection is a civil remedy provision (see Part 4-1). Note 2: Amounts referred to in this subsection include the following if they become payable during a relevant period:

(a) incentive-based payments and bonuses; (b) loadings; (c) monetary allowances; (d) overtime or penalty rates; (e) leave payments. (2) The methods are as follows: (a) cash; (b) cheque, money order, postal order or similar order, payable to the employee; (c) the use of an electronic funds transfer system to credit an account

held by the employee; (d) a method authorised under a modern award or an enterprise agreement. (3) Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method. Note: This subsection is a civil remedy provision (see Part 4-1).

[7-630]

Permitted deductions

324 (1) An employer may deduct an amount from an amount payable to an employee in accordance with subsection 323(1) if: (a) the deduction is authorised in writing by the employee and is principally for the employee’s benefit; or [page 447] (b) the deduction is authorised by the employee in accordance with an enterprise agreement; or (c) the deduction is authorised by or under a modern award or an FWC order; or (d) the deduction is authorised by or under a law of the Commonwealth, a State or a Territory, or an order of a court. Note 1: A deduction in accordance with a salary sacrifice or other arrangement, under which an employee chooses to:

(a) forgo an amount payable to the employee in relation to the performance of work; but (b) receive some other form of benefit or remuneration; will be permitted if it is made in accordance with this section and the other provisions of this Division. Note 2: Certain terms of modern awards, enterprise agreements and contracts of employment relating to deductions have no effect (see section 326). A deduction made in accordance with such a term will not be authorised for the purposes of this section. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 364, opn 1 Jan 2013]

(2) An authorisation for the purposes of paragraph (1)(a): (a) must specify the amount of the deduction; and (b) may be withdrawn in writing by the employee at any time. (3) Any variation in the amount of the deduction must be authorised in writing by the employee.

[7-650] Unreasonable requirements to spend amount 325 (1) An employer must not directly or indirectly require an employee to spend any part of an amount payable to the employee in relation to the performance of work if the requirement is unreasonable in the circumstances. Note: This subsection is a civil remedy provision (see Part 4-1).

(2) The regulations may prescribe circumstances in which a requirement referred to in subsection (1) is or is not reasonable.

[7-670]

Certain terms have no effect

326 Unreasonable payments and deductions for benefit of employer (1) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term: (a) permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work; or (b) requires, or has the effect of requiring, an employee to make a payment to an employer or another person; if either of the following apply: (c) the deduction or payment is: (i) directly or indirectly for the benefit of the employer, or a party related to the employer; and (ii) unreasonable in the circumstances; (d) if the employee is under 18 — the deduction or payment is not agreed to in writing by a parent or guardian of the employee.

[page 448] (2) The regulations may prescribe circumstances in which a deduction or payment referred to in subsection (1) is or is not reasonable. Unreasonable requirements to spend an amount (3) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term: (a) permits, or has the effect of permitting, an employer to make a requirement that would contravene subsection 325(1); or (b) directly or indirectly requires an employee to spend an amount, if the requirement would contravene subsection 325(1) if it had been made by an employer.

[7-690] Things given or provided, and amounts required to be spent, in contravention of this Division 327 In proceedings for recovery of an amount payable to an employee in relation to the performance of work: (a) anything given or provided by the employer contrary to paragraph 323(1)(b) and subsection 323(3) is taken never to have been given or provided to the employee; and (b) any amount that the employee has been required to spend contrary to subsection 325(1), or in accordance with a term to which subsection 326(3) applies, is taken never to have been paid to the employee.

DIVISION 3 — GUARANTEE OF ANNUAL EARNINGS

[7-880] Employer obligations in relation to guarantee of annual earnings 328 Employer must comply with guarantee (1) An employer that has given a guarantee of annual earnings to an employee must (subject to any reductions arising from circumstances in which the employer is required or entitled to reduce the employee’s earnings) comply with the guarantee during any period during which the employee: (a) is a high income employee of the employer; and (b) is covered by a modern award that is in operation. Note 1: Examples of circumstances in which the employer is required or entitled to reduce the employee’s earnings are unpaid leave or absence, and periods of industrial action (see Division 9 of Part 3-3). Note 2: This subsection is a civil remedy provision (see Part 4-1).

Employer must comply with guarantee for period before termination (2) If: (a) the employment of a high income employee is terminated before the end of the guaranteed period; and

(b) either or both of the following apply: (i) the employer terminates the employment; (ii) the employee becomes a transferring employee in relation to a transfer of business from the employer to a new employer, and the guarantee of [page 449] annual earnings has effect under subsection 316(2) as if it had been given to the employee by the new employer; and (c) the employee is covered by a modern award that is in operation at the time of the termination; the employer must pay earnings to the employee in relation to the part of the guaranteed period before the termination at the annual rate of the guarantee of annual earnings. Note: This subsection is a civil remedy provision (see Part 4-1).

Employer must give notice of consequences (3) Before or at the time of giving a guarantee of annual earnings to an employee covered by a modern award that is in operation, an employer must notify the employee in writing that a modern award will not apply to the employee during any period during which the annual rate of the guarantee of annual earnings exceeds the high income threshold. Note: This subsection is a civil remedy provision (see Part 4-1).

[7-900]

High income employee

329 (1) A full-time employee is a high income employee of an employer at a time if: (a) the employee has a guarantee of annual earnings for the guaranteed period; and (b) the time occurs during the period; and (c) the annual rate of the guarantee of annual earnings exceeds the high income threshold at that time.

(2) An employee other than a full-time employee is a high-income employee of an employer at a time if: (a) the employee has a guarantee of annual earnings for the guaranteed period; and (b) the time occurs during the period; and (c) the annual rate of the guarantee of annual earnings would have exceeded the high income threshold at that time if the employee were employed on a full-time basis at the same rate of earnings. (3) To avoid doubt, the employee does not have a guarantee of annual earnings for the guaranteed period if the employer revokes the guarantee of annual earnings with the employee’s agreement.

[7-920] Guarantee of annual earnings and annual rate of guarantee 330 (1) An undertaking given by an employer to an employee is a guarantee of annual earnings if: (a) the employee is covered by a modern award that is in operation; and (b) the undertaking is an undertaking in writing to pay the employee an amount of earnings in relation to the performance of work during a period of 12 months or more; and (c) the employee agrees to accept the undertaking, and agrees with the amount of the earnings; and (d) the undertaking and the employee’s agreement are given before the start of the period, and within 14 days after: (i) the day the employee is employed; or (ii) a day on which the employer and employee agree to vary the terms and conditions of the employee’s employment; and [page 450] (e) an enterprise agreement does not apply to the employee’s

employment at the start of the period. (2) However, if: (a) an employee is employed for a period shorter than 12 months; or (b) an employee will perform duties of a particular kind for a period shorter than 12 months; the undertaking may be given for that shorter period. (3) The annual rate of the guarantee of annual earnings is the annual rate of the earnings covered by the undertaking.

[7-940]

Guaranteed period

331 The guaranteed period for a guarantee of annual earnings is the period that: (a) starts at the start of the period of the undertaking that is the guarantee of annual earnings; and (b) ends at the earliest of the following: (i) the end of that period; (ii) an enterprise agreement starting to apply to the employment of the employee; (iii) the employer revoking the guarantee of annual earnings with the employee’s agreement.

[7-960]

Earnings

332 (1) An employee’s earnings include: (a) the employee’s wages; and (b) amounts applied or dealt with in any way on the employee’s behalf or as the employee directs; and (c) the agreed money value of non-monetary benefits; and (d) amounts or benefits prescribed by the regulations. (2) However, an employee’s earnings do not include the following: (a) payments the amount of which cannot be determined in advance; (b) reimbursements;

(c) contributions to a superannuation fund to the extent that they are contributions to which subsection (4) applies; (d) amounts prescribed by the regulations. Note: Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed).

(3) Non-monetary benefits are benefits other than an entitlement to a payment of money: (a) to which the employee is entitled in return for the performance of work; and (b) for which a reasonable money value has been agreed by the employee and the employer; but does not include a benefit prescribed by the regulations. (4) This subsection applies to contributions that the employer makes to a superannuation fund to the extent that one or more of the following applies: (a) the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed; [page 451] (b) the employer is required to contribute to the fund for the employee’s benefit in relation to a defined benefit interest (within the meaning of section 291-175 of the Income Tax Assessment Act 1997) of the employee; (c) the employer is required to contribute to the fund for the employee’s benefit under a law of the Commonwealth, a State or a Territory. [subs (4) am Act 118 of 2013 s 3 and Sch 1 item 3, opn 29 June 2013] COMMENTARY TO SECTION 332*

Derivation …. Amounts which cannot be determined in advance — s 323(2)(a) ….

[7-960.01] [7-960.05]

Employee — s 332(1)(a), (b), (2), (3)(a), (b), (4)(b), (c) …. Employer — s 332(3)(b), (4)(a), (b), (c) …. Nonmonetary benefits — s 332(1)(c), (3) …. Other than an entitlement — s 332(3) …. Payments which can not be determined in advance — s 332(a) …. Prescribed by the regulations — s 332(1)(d), (2)(d), (3) (b) …. Reimbursement — s 332(2)(b) …. Wages — s 332(1)(a) …. Outline of section ….

[7-960.10] [7-960.15] [7-960.20] [7-960.25] [7-960.30] [7-960.35] [7-960.40] [7-960.45] [7-960.50]

[7-960.01] Derivation The section is new. [7-960.05] Amounts which cannot be determined in advance — s 323(2)(a) An employee’s earnings do not include payments for which a value is not ascertainable in advance (such as variable performance bonuses). This means that payments made, but which were not anticipated or agreed to in advance (either because the type of payment was not anticipated, or the value of the payment was not agreed), will not be included: Explanatory Memorandum to the Fair Work Bill 2009 at [1327]. It seems clear enough that the legislature intended to exclude bonus payments which are contingent, either because they depend on performance in some way or because management reserves the right to modify or discontinue them: Jenny Craig Weight Loss Centres Pty Ltd v Margolina [2011] FWAFB 9137; BC201170154 at [19] (23 December 2011). Performance bonuses and overtime are payments which cannot be “determined in advance” and are therefore not included in the calculation of an employee’s overall “earnings”: Lesley Mallows v Touchbase Asia Pacific Pty Ltd t/as Touchbase Asia Pacific [2011] FWA 1695; BC201170381 (18 March 2011). Guaranteed overtime, however, does not fall in this category and may be included in the calculation of overall “earnings”. [7-960.10] Employee — s 332(1)(a), (b), (2), (3)(a), (b), (4)(b), (c) See s 322. [7-960.15] Employer — s 332(3)(b), (4)(a), (b), (c) See s 322. [7-960.20] Nonmonetary benefits — s 332(1)(c), (3) See s 12. Subsection 332(1)(c) invites a consideration of whether there is an “agreed money value of non-monetary benefits”, with “nonmonetary benefits” further defined by s 332(3). Following from that subsection, the test for inclusion of a non-monetary benefit in “earnings” is threefold — the benefits must be other than an entitlement to a payment of money; the employee must be entitled to the benefits in return for the performance of work; and a reasonable money value for the benefits needs to have been agreed by the employee and the employer. Not to be included in this respect as a non-monetary benefit are benefits prescribed by the regulations (noting again there do not appear to be have been regulations made for this purpose): Robinson v Gandel [2013] FWC 4583 at [44] (10 July 2013). [page 452]

[7-960.25] Other than an entitlement — s 332(3) Firstly, the word “other” is indicative of an amount different to what has already been mentioned — that is, the employee’s salary or wages in s 332(1)(a). Secondly, the amount “applied or dealt with” has a context, and that context is that it must be “on the employee’s behalf”; in other words, the amount is not any other amount, but an amount which is expended on the employee’s behalf and part of their “cashable” salary or wages. By a process of elimination, an amount which is not applied or dealt with on behalf of the employee and within their “cashable” salaries or wages, must be excluded from the definition of earning: Batley v Cocos Islands Cooperative Society Ltd [2010] FWA 2289, Cloghan C, unreported, 29 March 2010 T [32]. [7-960.30] Payments which can not be determined in advance — s 332(a) It seems clear enough that the legislature intended to exclude bonus payments which are contingent, either because they depend on performance in some way or because management reserves the right to modify or discontinue them: Jenny Craig Weight Loss Centres Pty Ltd v I Margolina [2011] FWAFB 9137; BC201170154 at [19] (23 December 2011). [7-960.35] Prescribed by the regulations — s 332(1)(d), (2)(d), (3)(b) See reg 3.05(6). [7-960.40] Reimbursement — s 332(2)(b) Applying a purposive approach to the interpretation of the word “reimbursements” in s 332(2)(b) of the Act, the word does not contemplate reimbursements of outlays incurred for private, as approved by business, purposes. The payment by an employer for an employee’s private outgoings, whether directly or by way of reimbursement, clearly constitutes part of that employee’s remuneration. Wages deductions for work-related expenses claimed or claimable in the applicant’s income tax return do not appear relevantly to arise in ascertaining the applicant’s earnings for the purposes of the Act, even though they reduce his taxable income (relevantly as it concerns the income from his employment with the respondent less work-related deductions): Read v Universal Store Pty Ltd t/as Universal Store [2010] FWA 5772 at [27] (23 August 2010). [7-960.45] Wages — s 332(1)(a) That [the words wages and salary] have a well-accepted meeting in our community cannot be doubted. They refer to a sum of money which is agreed between an employer and employee to be the pay or remuneration for that employee’s services: Terry Shields Pty Ltd v Chief Cmr of Pay-roll Tax (NSW) (1989) 17 NSWLR 493; 98 ALR 559; 96 FLR 134; 89 ATC 4674. If a fee is really a reward for services rendered by a servant, then it falls within the category of wages or possibly salary. Where the engagement is for a period, is permanent or substantially permanent in character, and is for other than manual or relatively unskilled labour, the remuneration is generally called a salary. But no precise line can be drawn between wages and salary: Federal Commissioner of Taxation v J Walter Thompson (Aust) Pty Ltd (1944) 69 CLR 227 at 233–4; 18 ALJR 178; [1944] ALR 330; BC4400015 (5 September 1944). [7-960.50] Outline of section The section defines an employee’s earnings for the purposes of the guarantee of annual earnings under s 330 and for the determination of whether a person is protected from unfair dismissal under s 382. *Editor’s note: Commentary to “Amounts which cannot be determined in advance” by Joe Catanzariti, Partner, Clayton Utz and Michael Byrnes, Special Counsel, Clayton Utz. All other commentary prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________

[7-980]

High income threshold

333 (1) Subject to this section, the high income threshold is the amount prescribed by, or worked out in the manner prescribed by, the regulations. (2) A regulation made for the purposes of subsection (1) has no effect to the extent that it would have the effect of reducing the amount of the high income threshold. [page 453] (3) If: (a) in prescribing a manner in which the high income threshold is worked out, regulations made for the purposes of subsection (1) specify a particular matter or state of affairs; and (b) as a result of a change in the matter or state of affairs, the amount of the high income threshold worked out in that manner would, but for this subsection, be less than it was on the last occasion on which this subsection did not apply; the high income threshold is the amount that it would be if the change had not occurred. COMMENTARY TO SECTION 333 [7-980.01] High income threshold For the purpose of calculating the high threshold income, a period of unpaid parental leave does not affect the annual rate of earnings: Tamara Trezise v Universal Music Australia Pty Ltd T/A Universal Music Australia [2011] FWA 5960.

____________________

[7-1000]

Prospective employees

333A If: (a) an employer, or a person who may become an employer, gives to another person an undertaking that would have been a guarantee of annual earnings if the other person had been the employer’s or person’s employee; and (b) the other person subsequently becomes the employer’s or person’s

employee; and (c) the undertaking relates to the work that the other person performs for the employer or person; this Division applies in relation to the undertaking, after the other person becomes the employer’s or person’s employee, as if the other person had been the employer’s or person’s employee at the time the undertaking was given.

[page 454]

CHAPTER 3 — RIGHTS AND RESPONSIBILITIES OF EMPLOYEES, EMPLOYERS, ORGANISATIONS ETC FREEDOM OF ASSOCIATION Commentary by Erik Young, Barrister-at-Law This commentary was last reviewed in December 2014. CONTENTS

Paragraph Freedom of Association The meaning of “freedom of association” in the context of the Fair Work Act 2009 (Cth) …. Membership of, and representation by, an industrial association …. The way in which the concept of freedom of association is implemented …. Conduct that is prohibited to protect freedom of association Summary …. Scope of application of the freedom of association provisions …. “Adverse action” …. No requirement of actual “adverse action” for liability …. Factors affecting interpretation …. Exclusions to the provisions …. Coercion …. Intention …. Meaning of coercion …. Conduct constituting coercion …. Misrepresentation ….

[Com 50,010] [Com 50,020] [Com 50,030]

[Com 50,040] [Com 50,050] [Com 50,060] [Com 50,070] [Com 50,080] [Com 50,090] [Com 50,100] [Com 50,110] [Com 50,120] [Com 50,130] [Com 50,140]

Exceptions to the prohibition against misrepresentation …. Inducements …. Distinction between inducement and adverse action …. Freedom of association and enterprise bargaining Good faith bargaining requirement …. Enforcement of freedom of association provisions Civil remedies …. Court proceedings …. Liability for contravention of the civil remedy provisions protecting freedom of association ….

[Com 50,150] [Com 50,160] [Com 50,170] [Com 50,175] [Com 50,180] [Com 50,190] [Com 50,200] [page 455]

Paragraph Freedom of Association Penalties …. Procedural considerations: no need for a Fair Work Inspector under the Fair Work Act 2009 (Cth) to first obtain a certificate from the Fair Work Commission prior to commencing enforcement proceedings in a court …. Costs …. Time limit for bringing proceedings for breach of the freedom of association provisions ….

[Com 50,210]

[Com 50,215] [Com 50,220] [Com 50,230]

[Com 50,010] The meaning of “freedom of association” in the context of the Fair Work Act 2009 (Cth) The phrase “freedom of association” is used in a variety of contexts. However, its meaning within the Fair Work Act 2009 (Cth) (FW Act) is limited to the context of a person (or, indeed, a business) deciding whether or not to belong to an industrial association. The freedom of association provisions of the FW Act are not expressly identified under any heading within the Act, however the relevant provisions are contained in Chapter 3 “Rights and responsibilities of employees, employers, organisations etc”, and in Part 3-1 “General Protections”. Section 336 sets out the objects of Part 3-1, and makes specific reference to “freedom of association”. There is otherwise no express definition of “freedom of association” within the FW Act. Whilst “freedom of association” is capable of a range of meanings, its meaning in the context of the FW Act is informed by the description in s 336(b) of the objects of the legislation. Notably, those objects are phrased to emphasise the right of choice by the individual person or

business, and in particular the choice as to whether to: (1) be a member of an industrial association; (2) be represented by an industrial association; and (3) participate in industrial activities. Consequently, a consideration of what is meant by each of these three categories is required. [Com 50,020] Membership of, and representation by, an industrial association The Fair Work Act 2009 (Cth) (FW Act) defines “industrial association” in the Dictionary in s 12. The definition is cast in broad terms. It covers not only associations of employees, independent contractors and employers recognised under a “workplace law” (which is itself broadly defined in the s 12 Dictionary), but also associations of employees, independent contractors and employers who have simply banded together for purposes including “the protection and promotion of their particular interests in matters concerning employment and/or independent contractors” (as one of their main purposes). Participation in industrial activities The expression “industrial activities” is not defined in the FW Act, and is capable of very broad definition indeed. There is a definition of “engages in industrial activity” (s 347). However this provision is not expressly framed as an exhaustive definition, and must therefore be read in its context; namely, as a description of certain conduct against which adverse action is prohibited under threat of civil penalty. [page 456] Having regard to the lengthy history of case law relating to the meaning of expressions such as “industrial dispute”, and such expressions being given considerable width in terms of being all matters relating to the employment relationship, an equally broad interpretation could be given to the expression “industrial activities” in the context of the FW Act. However there may be practical difficulties in succeeding in a proceeding that alleges a breach of the sections of the FW Act that rely upon conduct constituting “industrial activity” where such alleged conduct falls outside the conduct that is squarely defined as being engaging in industrial activity in s 347 of the FW Act. [Com 50,030] The way in which the concept of freedom of association is implemented In broad terms, the freedom of a person (including a company) to associate, or not, in an industrial association, whether in a union or employer organisation, is protected by means of a series of blanket prohibitions against certain types of proscribed conduct, which are enforced by means of sanctions in the form of civil penalties contained in Pt 4-1 of the Fair Work Act 2009 (Cth). Enforcement is conducted by way of proceedings in either the Federal Court of Australia or the Federal Circuit Court of Australia. Additionally, there are provisions in the FW Act that ensure that employees are aware of their right to have a union represent them or not, including a requirement that employees must be provided with a notice of their representational rights at least 21 days prior to any vote being requested of employees to approve the proposed enterprise agreement (s 181 FW Act). This notice must include notice of the right to be represented by a union if the employee is a member and the union is entitled to represent that employee in relation to the work to be performed under the proposed enterprise agreement, and that the employee will be so represented by that union if no other bargaining agent is specifically appointed (s 174(3) FW Act, although there is a slightly different notification if a “low paid authorisation” is operative in relation to the relevant employer: s 174(4) FW Act). These pre-requisites are mandatory, and the FW Commission has no power to approve an enterprise agreement unless and until these

requirements are satisfied (see Dunbrae Pty Ltd t/as Global Food Equipment [2009] FWA 73; Pacific Coast Engineering Pty Ltd [2010] FWA 7835 and Jillcar Pty Ltd t/as Semaphore Hotel [2010] FWA 2715). The objects of the “General Protections” provisions of ch 3, pt 3-1 of the FW Act include an express statement that their object is, inter alia, “to protect freedom of association”: s 366(1)(b) of the FW Act. It is also noteworthy that s 365 of the FW Act expressly authorises unions to be the applicant party to any of the enforcement proceedings relating to the “General Protections” provisions of ch 3, pt 3-1 of the FW Act where it relates to the dismissal of an individual employee. This effectively enables unions to act in the capacity of a regulatory body and bring proceedings to enforce those provisions of the FW Act in that circumstance. On its face, the provision does not have any requirement that the dismissed employee consent to the application. As such, a union may commence such enforcement proceedings in which the dismissed employee plays no part other than that of a witness, or possibly no part at all if the allegations can be proved without the need for the dismissed employee to give evidence. Although having an unwilling former employee may pose considerable practical difficulties for a union applicant, it is not necessarily fatal. This may have particular relevance in circumstances of transient workers (such as casual employees, or foreign and non-resident employees, employees who might otherwise be reluctant or fearful to take proceedings against their former employer, or situations of multiple dismissals (such as where there are redundancies) where there is an allegation that the dismissals were in contravention of the “General Protections” provisions of ch 3, pt 3-1 of the FW Act. In circumstances of multiple dismissals with the common theme of alleged adverse action in contravention of pt 3-1 of the FW Act, the FW Commission has held that a single application can be made to it in relation to all of those dismissals (see Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2014] FWC 4708). [page 457] The protection of freedom of association is also found in the ability of the Fair Work Commission to issue bargaining orders pursuant to s 230 of the FW Act, having regard to the good faith bargaining requirements of s 228 of the FW Act which, among other things, provide as follows: (1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet: … (e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining; … These requirements are dealt with in more detail at [Com 35,020]. However, it is significant that the concept of freedom of association is specifically linked with the enterprise bargaining process, and in particular, that a bargaining representative will not have complied with the good faith bargaining requirements if he or she engages in any conduct that is capricious or unfair that undermines freedom of association as contemplated by the FW Act. Not meeting the good faith bargaining requirements may provide a basis for the FW Commission making a bargaining order. Hence the link between freedom of association and the process of enterprise bargaining demonstrates the close association in the scheme of the FW Act between the protection of the right to collective industrial negotiations contained in the freedom of association provisions, and the practical conduct of such negotiations in the enterprise bargaining process, such that the FW Commission may intervene in

that process if the freedom of association provisions are so undermined. CONDUCT THAT IS PROHIBITED TO PROTECT FREEDOM OF ASSOCIATION [Com 50,040] Summary Part 3-1 Div 4 of the Fair Work Act 2009 (Cth) contains the core freedom of association provisions, and contains broad prohibitions against certain types of conduct that adversely affect a person’s freedom of association. The broad prohibitions are as follows: (1) defined “adverse action”; (2) coercion; (3) misrepresentation; and (4) inducement in relation to membership of an industrial association and participation in industrial activity. [Com 50,050] Scope of application of the freedom of association provisions The scope of the application of the freedom of association provisions (as contained in Div 4 of Part 3-1 of the Fair Work Act 2009 (Cth)) is defined extremely broadly. The conduct covers not only any action taken or threatened by a corporation, a federally registered union, businesses who are an unincorporated “trade and commerce employer”, the commonwealth and its agencies, or an employee of any of the foregoing entities, but also actions capable of affecting or intended to affect the activities, functions, relationships or business of those entities, and even any such action taken in a Territory or commonwealth-owned place: ss 338 and 339 of the FW Act. [Com 50,060] “Adverse action” Importantly, “adverse action” is defined in the Dictionary as having the meaning contained in s 342 of the Fair Work Act 2009 (Cth). The various types of “adverse action” defined in s 342 falls into four broad categories of conduct: (1) An employer acting prejudicially to the interests of an employee (or prospective employee), or independent contractor (or prospective independent contractor). (2) An employee or independent contractor acting prejudicially to the employer. [page 458] (3) Threatening to take such prejudicial action. (4) Organising to take such prejudicial action. However, it is important to bear in mind that the categorisations summarised above are expressed in broad terms only, for descriptive purposes. In any proceedings alleging “adverse action” it will be necessary to look carefully at the actual terms of s 342 to ascertain whether the precise conduct complained of falls into any of the subparagraphs relevant to the person alleged to have suffered the “adverse action”. [Com 50,070] No requirement of actual “adverse action” for liability Where the allegation relates to a threat, or organisation, of “adverse action”, it is first necessary to identify the precise nature of the conduct complained of, before determining whether a threat or organisation of such conduct occurred. Even if no action was in fact ever carried out, or the actual conduct carried out fell outside the defined forms of “adverse action”, liability may still be found with respect to the threat or organisation of conduct constituting “adverse action”. In short, there can be liability if the threat or action organised

fell within a defined form of “adverse action”, even if the actual action following the threat did not. Whether or not a threat has been made for the purposes of s 342(2) of the FW Act will depend upon the relevant findings of fact, and the term “threat” is not a term of art, but will be given its usual meaning (for example, see Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221; [2010] FCA 770; BC201005117 at [53]). [Com 50,080] Factors affecting interpretation This is particularly important given the fact that pecuniary (and other) sanctions may follow a court finding of “adverse action”. If there is any uncertainty about whether any particular action or omission falls within any of the relevant categories of “adverse action”, it will be necessary for the court to strike a balance between giving full effect to the legislative provisions on the one hand, and on the other hand not improperly giving an unduly broad interpretation to those legislative provisions that are in the nature of sanctions and which have (or may have) a punitive effect (particularly where pecuniary penalties are imposed). This balance will form part of a court’s consideration in its fact finding as to whether or not the alleged “adverse action” has been established to the satisfaction of the court. This is reflected in the analysis of the present provisions in the FW Act by the High Court of Australia in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647; 86 ALJR 1044; [2012] HCA 32; BC201206652 (culminating in the conclusions contained in [60]–[61]). In that case, the High Court has described the function of a court seeking to determine whether or not any defined “adverse action” has taken place, particularly in light of the presumption contained in s 361 that adverse action will be presumed to have been taken for a prohibited reason unless the person alleged to have taken the adverse action proves otherwise. It was held by French CJ and Crennan J (with whom the other members of that court separately concurred) that: “The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason.” (at [5]). The submission that the legislation should be interpreted to require that such an adverse action proceeding should not be resolved in favour of a defendant employer unless the evidence in the proceeding objectively establishes that the employer’s reason for taking adverse action was dissociated from any reason prohibited by s 346 was expressly rejected (at [6]). The court found that The “imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains ‘why was the adverse action taken?’” (at [44]), and that this question was one of fact, to be answered in light of all of the facts established in the particular case (at [45]). [page 459] The statutorily defined scope of “adverse action” may also be contrasted with a conceptual disadvantage arising out of the absence of favorable action. In Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd (No 2) [2014] FCA 351; BC201402365, after a period of lawful protected industrial action (involving strike action), a company rewarded those employees who did not participate in the industrial action with gift vouchers worth $300 each. Although the CFMEU argued that doing so was an adverse action, the Federal Court rejected such argument and held that the vouchers were given to the non-striking employees for something that they had done and that the striking workers had not done (ie perform work, including doing extra duties and work extra hours). As such, not giving gift vouchers to striking employees was neither injurious to them for the purpose of s 342(1) Item 1(b) of the FW Act), nor was

it discriminatory for the purpose of s 342(1) Item 1(d) of the FW Act. [Com 50,090] Exclusions to the provisions However, even if a certain type of conduct constitutes what is, on its face, “adverse action”, such conduct is excluded from the definition of “adverse action” if: the conduct is authorised by any law; or the conduct involves an employer standing down an employee where the employee is engaging in protected action and the employment contract permits the employee to be stood down: s 342(3) and (4). Any “adverse action” is only actionable if it is not protected industrial action. [Com 50,100] Coercion Section 348 of the Fair Work Act 2009 (Cth) prohibits conduct intended to coerce a person to “engage in industrial activity”. This involves not only the implementation of steps that have coercive effect, but also includes organising, or threatening to organise, such steps. [Com 50,110] Intention Importantly, the legislative emphasis is on the intention of the person engaging in the conduct and the nature of the conduct itself, and not the ultimate effect of the conduct on the person to whom it is directed. As such, whether the person to whom the coercive conduct is directed is fact coerced is irrelevant. What is relevant is the intention of the person engaging in the conduct, and whether the conduct itself is capable of having coercive effect. Accordingly, the effect of s 348 of the Fair Work Act 2009 (Cth) (FW Act) is to prohibit any conduct, including making threats, that might bear on the decision of a person who is considering whether to engage in industrial activity — but only where the coercive effect of such conduct is intended. Coercion is conceptually much broader than the defined forms of “adverse action”, but can also include “adverse action”. Of course, as with the other provisions of Pt 3-1 Div 4 of the FW Act, it is important to bear in mind that the defined meaning of the expression “engage in industrial activity” includes not only the choice to do certain defined things, but also choosing to not do things (for example, not becoming a member of an industrial association, and not seeking to be represented by an industrial association). As such, the decision of a person to not take part in industrial activity is itself a form of “engaging in industrial activity” as defined in s 348 of the FW Act, and coercing a person to refrain from industrial activity is prohibited in the same way as coerced participation in such activity. [Com 50,120] Meaning of coercion There is no statutory definition of “coercion” in the Fair Work Act 2009 (Cth), and so the common law will apply to the determination of whether a person has in fact been coerced. The meaning of coerce has been applied in such terms, relying upon the ordinary meaning of the word, with respect to its use in s 343 of the FW Act and its application [page 460] in a common sense way when consideration is being given as to whether or not coercion has occurred: see Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221; [2010] FCA 770; BC201005117 at [61]–[66]. It can often be a fine line between what may constitute legitimate forms of persuasion and encouragement, and prohibited forms of coercion. In industrial contexts, there is frequently significant

persuasive force exerted on individuals (particularly where they are vulnerable in some way, such as where they are poorly educated or have limited English) and businesses (particularly small businesses). Determination of whether the forms of persuasion used in any individual set of circumstances are coercive is necessarily a matter of fact and degree and will depend upon the facts in each case. [Com 50,130] Conduct constituting coercion However, it is generally considered that coercive conduct necessarily involves the use of force or compulsion, or threat of such, which negates the ability of a person to freely make their own decision: see the discussion in National Workforce Pty Ltd v Australia Manufacturing Workers’ Union [1998] 3 VR 265 at 286, and cases there cited: Allen v Flood [1898] AC 1 at 98 and 128–9; Hodges v Webb [1920] 2 Ch 70 at 85–7 (which was approved in White v Riley [1921] 1 Ch 1); and Goddard v Osborne (1978) 18 SASR 481 at 492. In an industrial context, see Finance Sector Union v Commonwealth Bank of Australia (2000) 106 IR 16 at [19]–[25]; Schanka v Employment National (Administration) Pty Ltd (2000) 97 FCR 186; 170 ALR 42; [2000] FCA 202; BC200000696 (although this case deals with the term “duress”) and National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114; 114 IR 20; [2002] FCA 441; BC200201567 at [103]. The very purpose of taking industrial action is to coerce a party into accepting certain proposals and so it necessarily constitutes coercive conduct. However, engaging in such conduct, within certain explicitly specified parameters which constitute protected industrial action, is specifically contemplated within the context of the FW Act as a part of the process of vigorous industrial bargaining. Accordingly, any coercive conduct is only actionable if it is not protected industrial action. Also, the act of coercion must necessarily precede the industrial activity. It is notably that in Construction, Forestry, Mining and Energy Union (CFMEU) v Corinthian Industries (Australia) Pty Ltd (No 2) [2014] FCA 351; BC201402365, it was only after a period of lawful protected industrial action (involving strike action), that a company decided to reward those employees who did not participate in the industrial action with gift vouchers worth $300 each. The CFMEU did not attempt to argue that such action was coercive conduct, however nonetheless attempted to argue that doing so was an adverse action. The Federal Court rejected such argument and held that the vouchers were given to the non-striking employees for something that they had done and that the striking workers had not done (ie perform work, including doing extra duties and work extra hours). As such, not giving gift vouchers to striking employees was neither injurious to them for the purpose of s 342(1) Item 1(b) of the FW Act), nor was it discriminatory for the purpose of s 342(1) Item 1(d) of the FW Act. Whilst in that case there was no question of coercion, if the $300 gift vouchers had been offered to employees as an inducement to not take the lawful industrial action (ie strike action), then the outcome would no doubt have been markedly different. [Com 50,140] Misrepresentation Misrepresentations are prohibited with respect to (s 349): (1) another person’s obligation to “engage in industrial activity” (bearing in mind that this includes not taking part in industrial activity); or (2) the obligation to disclose whether someone is an officer or member of an industrial association or is engaging in industrial activity. Importantly, the misrepresentation must have been made either knowingly or recklessly. There is no prohibition against a misrepresentation carelessly made. This approach may be contrasted with various legislative provisions regarding consumer protection, which provide a more comprehensive protection against misrepresentations. [page 461]

[Com 50,150] Exceptions to the prohibition against misrepresentation Section 349(2) of the Fair Work Act 2009 (Cth) (FW Act) provides an exception to the prohibition against misrepresentations. The case law to date appears to indicate that whether or not a breach of s 349 of the FW Act is made out or not will principally be a matter of determination on the facts, however in order to establish a breach of s 349(1)(a) or s 349(1)(b)(ii) of the FW Act it will of course be necessary to first establish that the representation was about engaging in “industrial activity”, quite apart from also demonstrating the knowing or reckless making of the relevant representation (see for example Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Union of Australia v Australian Postal Corp [2010] FMCA 688; BC201006794). This provision absolves a person from any liability if the person or persons to whom the misrepresentation is made would not be expected to rely upon it. Unfortunately, there is no indication in the legislation as to whether it is the person making the misrepresentation, the person receiving the misrepresentation, or the court, who could have expected the misrepresentation to have been relied upon. It is apparent that regardless of whose expectation is relevant, significant evidence will be required in any proceedings enforcing s 349 of the FW Act regarding the subjective circumstances of: the person making the misrepresentation (such as their level of seniority or authority); the person receiving the misrepresentation (such as their available sources of information, or reliance upon such sources); the relationship between those persons (such as their degree of cordiality); and the other circumstances in which the misrepresentation was made that affect its believability (such as the formality of occasion, the manner in which the misrepresentation was delivered, or the history of interactions between the relevant persons). [Com 50,160] Inducements A business must not induce an employee or independent contractor to either become or not become, or remain or cease to be, a member or officer of an industrial association: s 350 of the Fair Work Act 2009 (Cth) (FW Act). No guidance is provided in the FW Act as to what is considered to be an inducement, however the provisions contained in s 350 of the FW Act must be considered in the context of ss 346 and 347(a), which already prohibits any “adverse action” being taken against a person for identical reasons. Practice Tip “Adverse action” is prohibited by ss 346 and 347(a). Conversely, inducement is prohibited by s 350. Consequently, while ss 346 and 347(a) prohibit a business taking the proverbial “stick” to a person for becoming or not becoming, or remaining or ceasing to be, a member or officer of an industrial association, s 350 prohibits the proverbial “carrot” from being dangled in front of employees and independent contractors with a view to influencing their decision on those matters. These provisions appear to be designed to ensure that being (or not being) a member or officer of an industrial association is not affected by bribery or inducement. [Com 50,170] Distinction between inducement and adverse action A simple example illustrates the difference between offering an inducement and the taking of adverse action: a business may offer promotion or allocate available overtime only to employees who are not union members or who cease their union membership, but not act to the detriment of employees who are union members. While this may not constitute any form of “adverse action”, it is likely to be found to be a prohibited inducement.

[page 462] FREEDOM OF ASSOCIATION AND ENTERPRISE BARGAINING [Com 50,175] Good faith bargaining requirement As referred to above, the FW Act specifically includes, as a good faith bargaining requirement for bargaining representatives engaging in enterprise bargaining, that they refrain “from capricious or unfair conduct that undermines freedom of association or collective bargaining”: (see s 228(1)(e) of the FW Act). Some examples illustrate how the freedom of association provisions contained in the FW Act are incorporated into the process of enterprise bargaining pursuant to the good faith bargaining requirements, and the conceptual limits which delineate conduct which is consistent with such provisions and conduct which is not. It does not undermine freedom of association for an employer to convey information to employees during the course of negotiations for an enterprise agreement with a union bargaining representative if the information presented to the employees comprises the same proposals as those provided to their bargaining representatives: see Construction, Forestry, Mining and Energy Union (Mining and Energy Division) v Tahmoor Coal Pty Ltd (2010) 195 IR 58; [2010] FWAFB 3510 at [29]. However, in Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (Collieries’ Staff Division) (2012) 217 IR 131; [2012] FWAFB 1891 the Full Bench upheld an order made against an employer, to not unilaterally determine the standard terms of new contracts for future employees which would be subject to the enterprise agreement being negotiated, and not to alter the standard terms of existing employees’ contracts, relying upon s 228(1) (e) of the FW Act (at [55]). In doing so, the Full Bench held that: If the conduct of an employer in engaging in the bargaining process is a mere sham or pretence, such as going through the motions of bargaining without any real intention to enter into an agreement, then this would be contrary to the good faith bargaining requirements. In particular, such conduct might involve a failure to give genuine consideration to the proposals of other parties (s 228(1)(d)) or it might constitute capricious or unfair conduct that undermines freedom of association or collective bargaining (s 228(1)(e)). (at [30]). An appeal to the Federal Court of Australia against that decision was only successful in part, and the order mentioned above was not set aside. ENFORCEMENT OF FREEDOM OF ASSOCIATION PROVISIONS [Com 50,180] Civil remedies The provisions for the enforcement of the provisions contained in Part 31 Div 4 of the Fair Work Act 2009 (Cth) which give effect to the legislative purpose of the freedom of association provisions are the civil remedies found in Part 4-1 Div 2. The prohibitions of conduct variously described as: “adverse action”; coercion; misrepresentation; and inducement that protect freedom of association are enforced by means of proceedings for orders, that may include penalties of a pecuniary nature. [Com 50,190] Court proceedings Proceedings for civil remedies with respect to the contravention of the freedom of association provisions may be taken in either the Federal Court of Australia, or the Federal Circuit Court of Australia, by:

a person affected by the contravention; or an industrial association; or a Fair Work Inspector, being an inspector of the Office of the Fair Work Ombudsman (and including the Ombudsman). (See s 539, item 11, of the Fair Work Act 2009 (Cth)). [page 463] However, an industrial association may only bring such proceedings if the industrial association, or a person who the industrial association is entitled to represent, is or will be affected by the alleged contravention: s 539(6) of the Fair Work Act 2009 (Cth). [Com 50,200] Liability for contravention of the civil remedy provisions protecting freedom of association A contravention of the civil remedy provisions protecting freedom of association person is not a criminal offence: s 549 of the Fair Work Act 2009 (Cth). However a person may be as liable to civil penalties for involvement in the conduct that gave rise to the contravention of the civil remedy provisions, as a person who actually contravened the provisions. The involvement must be of a relatively direct nature, and is limited to certain types of conduct that actively encourage or assist the contravention by various specified means: s 550(2). [Com 50,210] Penalties The maximum pecuniary penalty that can be imposed on a person for a breach of the civil remedy provisions in Div 4 of Part 3-1 of the Fair Work Act 2009 (Cth) is currently $6600 for individuals, being 60 penalty units, or $33,000 for corporations, being five times the amount applicable to individuals: see ss 539, 546. This pecuniary penalty can be ordered to be paid to the Commonwealth, a particular organisation or an individual, and is immediately recoverable as a debt due to that entity or individual. However, the court may also make any other orders it considers appropriate, including orders in the nature of injunctive relief, on both an interim and a final basis: s 545. Notably, the imposition of a pecuniary penalty is not mandatory, and the court has a discretion as to whether any pecuniary penalty is imposed: s 546. Together with its ability to make any other orders it considers appropriate, this gives the court substantial flexibility in tailoring the sanctions to be imposed for a contravention of the civil penalty provisions. However, it is the author’s view that it would be a rare and exceptional case in which the imposition of a pecuniary penalty would not be made for the contravention of legislative provisions designed to ensure the freedom of association of workers, which is one of the express objects of Pt 3-1 of the Fair Work Act 2009 (Cth): s 336. In determining the amount of the penalty to be imposed, a useful summary of the matters to be considered is contained in Fair Work Ombudsman v Wongtas Pty Ltd (No 2) [2012] FCA 30; BC201200212, in which Cowdroy J imposed penalties upon the two respondent directors of a company which had been voluntarily wound up in June 2010 after the proceedings against it by the applicant had commenced. Interestingly, the operations of Wongtas Pty Ltd had continued seamlessly because they were carried out by a company named “Wangtas Pty Ltd” which was incorporated on 8 July 2012 with both respondents being directors for several months, and operating out of the identical address of Wongtas Pty Ltd. Accordingly, the court inferred that the winding up of Wongtas Pty Ltd was for the purpose of avoiding any penalties that may be imposed upon it for the breaches of legislation alleged in the proceedings.

The court considered the following factors in assessing the penalty to be imposed: The court has a wide discretion, applying the factors set out by Graham J in John Holland Pty Ltd v Maritime Union of Australia (No 2) (2010) 192 IR 431; [2010] FCA 110; BC201000694. The nature and extent of the conduct constituting a gross violation of the respondents’ obligations under the FW Act. The circumstances in which the conduct took place. The nature and extent of the loss and damage sustained as a result of the breach, which was specifically held to be “an important consideration”. The prior history of conduct by the respondents. [page 464] The size of the business enterprise. Whether the contraventions were distinct or arose out of a single course of conduct. Whether the contraventions were deliberate. Whether senior management was involved in the contraventions. Whether there is contrition or remorse. Whether those involved in the contraventions co-operated with the enforcement authorities. Whether general or specific deterrence is required. The conduct of the respondents in the proceedings, including the taking of (failed) legal points, the late stage at which admissions were made and the attempt to avoid liability by winding up the corporate respondent. The principles of mitigation, including the admission of the contravention permitting a reduction of 10–25% of the penalty otherwise to be imposed, the rationale being that such admission and recognition of fault demonstrates some remorse or contrition. Proportionality of the penalty to the contraventions, taking into account all relevant factors as to the objective seriousness and gravity of the contraventions. The principle of totality, recognising that more than one contravention occurred as a result of the same or similar circumstances. Whether the respondents have agreed to pay compensation to the individual affected by the contraventions. [Com 50,215] Procedural considerations: no need for a Fair Work Inspector under the Fair Work Act 2009 (Cth) to first obtain a certificate from Fair Work Australia prior to commencing enforcement proceedings in a court If court proceedings are not brought pursuant to ss 365 or 372 of the Fair Work Act 2009 (Cth) (FW Act) by a Fair Work Inspector, there is no need for a certificate to be issued by Fair Work Commission. A Fair Work Inspector can bring proceedings for the imposition of pecuniary penalties for contravention of the above mentioned provisions enforcing freedom of association pursuant to s 539(2) of the FW Act, and such proceedings can be brought directly in either the Federal Court of Australia or the Federal Circuit Court of Australia. This was confirmed in the decision of Cowdroy J in Fair Work Ombudsman v Wongtas Pty Ltd (No 2) [2012] FCA 30; BC201200212 at [26] [30], which expressly rejected arguments that a Fair Work Inspector was required to first make an application to the FW Commission and engage in the dispute resolution procedures as a jurisdictional pre-requisite to commencing enforcement proceedings in the Federal Court of Australia. There is no reason why this reasoning would not also apply to proceedings in the Federal Circuit Court of Australia.

The conclusion reached in Wongtas follows from not only the clear wording of the legislative provisions, but is consistent with the scheme of the FW Act and the role of Fair Work Inspectors; as independent regulators whose purpose is to facilitate regulatory compliance in the broader public interest, rather than to pursue individual interests. [Com 50,220] Costs Costs are not ordinarily recoverable with respect to the substantive hearing of court proceedings relating to a contravention of civil remedy provisions protecting freedom of association, regardless of the outcome of those proceedings. It has been accepted that there is a clear legislative intent that the Fair Work jurisdiction of the courts be primarily a “no costs” jurisdiction unless a very high threshold of unsatisfactory litigious conduct (as contained in s 570(2) of the FW Act) is demonstrated — see Fair Work Ombudsman v GhorbaniPalangi [2014] FCCA 447; BC201401956 at [39]–[40]. A costs order may only be made against an applicant to such proceedings in the limited circumstance of either the proceedings being instituted vexatiously or without reasonable cause; or against any party where that party has acted, or omitted to act, unreasonably and consequently caused another party to incur costs: Fair Work Act 2009 (Cth) s 570. [page 465] As such, it is only the party commencing the proceedings who is ordinarily exposed to a liability for the costs of the proceedings as a whole. However, it is conceivable that a defending party might be found liable for the payment of significant costs if it unreasonably withheld critical information that could easily have been used to demonstrate a lack of liability until late in the proceedings. Of course, unreasonable conduct at various procedural and interlocutory stages of the proceedings may also give rise to costs orders. This emphasises the usual need to press for costs orders during directions hearings and interlocutory hearings where another party has unreasonably failed to comply with court directions and orders. [Com 50,230] Time limit for bringing proceedings for breach of the freedom of association provisions Proceedings seeking a civil remedy for a contravention of any of the provisions protecting freedom of association must be brought within 6 years of the contravention: Fair Work Act 2009 (Cth) s 544. However, despite, s 544, where the allegation involves a dismissal from employment in contravention of such a provision, an application must first be made to the FW Commission within 21 days of the dismissal taking effect (unless further time is granted, which will only occur in exceptional circumstances — see s 366(2) of the FW Act), and any court proceedings must be commenced within 14 days of a certificate being issued by the FW Commission of attempted mediation/conciliation (s 370 of the FW Act). As a matter of practice, the time limits prescribed in Pt 3-1, Div 8 of the FW Act will generally be adhered to, so strict attention must be paid to them, and any application for an extension of such time limits will need to be well supported by evidence.

PART 3-1 — GENERAL PROTECTIONS DIVISION 1 — INTRODUCTION

[7-1290]

Guide to this Part

334 This Part provides general workplace protections. Division 2 sets out the circumstances in which this Part applies. Division 3 protects workplace rights, and the exercise of those rights. Division 4 protects freedom of association and involvement in lawful industrial activities. Division 5 provides other protections, including protection from discrimination. Division 6 deals with sham arrangements. Division 7 sets out rules for the purposes of establishing contraventions of this Part. Division 8 deals with compliance. In most cases, a general protections dispute that involves dismissal will be dealt with by a court only if the dispute has not been resolved by the FWC. [s 334 am Act 174 of 2012 s 3 and Sch 9 item 365, opn 1 Jan 2013]

[7-1310]

Meanings of employee and employer

335 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). [s 335 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

[page 466] COMMENTARY TO SECTION 335

Derivation …. Employee — s 335 …. Employee — s 335 …. TCF contract outworkers — s 335 Note …. This Part — s 335 ….

[7-1310.05] [7-1310.10] [7-1310.15] [7-1310.20] [7-1310.25]

[7-1310.05] Derivation The section is new. [7-1310.10] Employee — s 335 See s 12. [7-1310.15] Employee — s 335 See s 12. Note that the definition is different to the definitions in other parts. The other parts use a statutory definition of National System Employer. The Explanatory Memorandum to the Fair Work Bill explains at [1344] that: In this Part, the terms employer and employee have their ordinary meaning because references to

these terms are not limited to national system employers and employees (see cl 13 and cl 14). Part 31 regulates the conduct of all employers and employees and a range of other persons but only where the conduct is connected to (principally) the constitutional powers that support the main provisions of this Bill (eg the corporations power). Note the extension to the definition in s 339. [7-1310.20] TCF contract outworkers — s 335 Note See s 789BB(2). [7-1310.25] This Part — s 335 This Part is Pt 3-1.

____________________

[7-1330]

Objects of this Part

336 (1) The objects of this Part are as follows: (a) to protect workplace rights; (b) to protect freedom of association by ensuring that persons are: (i) free to become, or not become, members of industrial associations; and (ii) free to be represented, or not represented, by industrial associations; and (iii) free to participate, or not participate, in lawful industrial activities; (c) to provide protection from workplace discrimination; (d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part. [subs (1) am Act 174 of 2012 s 3 and Sch 5 item 2, opn 1 Jan 2013]

(2) The protections referred to in subsection (1) are provided to a person (whether an employee, an employer or otherwise). [subs (2) insrt Act 174 of 2012 s 3 and Sch 5 item 3, opn 1 Jan 2013]

DIVISION 2 — APPLICATION OF THIS PART

[7-1520]

Application of this Part

337 This Part applies only to the extent provided by this Division. Note: Sections 30G and 30R extend the operation of this Part in a referring State.

[s 337 am Act 54 of 2009 s 3 and Sch 1, opn 25 June 2009; Act 124 of 2009 s 3 and Sch 1, opn 1 Jan 2010]

[page 467]

[7-1540]

Action to which this Part applies

338 (1) This Part applies to the following action: (a) action taken by a constitutionally-covered entity; (b) action that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business of a constitutionally-covered entity; (c) action that consists of advising, encouraging or inciting, or action taken with intent to coerce, a constitutionally-covered entity: (i) to take, or not take, particular action in relation to another person; or (ii) to threaten to take, or not take, particular action in relation to another person; (d) action taken in a Territory or a Commonwealth place; (e) action taken by: (i) a trade and commerce employer; or (ii) a Territory employer; that affects, is capable of affecting or is taken with intent to affect an employee of the employer; (f) action taken by an employee of: (i) a trade and commerce employer; or (ii) a Territory employer; that affects, is capable of affecting or is taken with intent to affect the employee’s employer. (2) Each of the following is a constitutionally-covered entity: (a) a constitutional corporation; (b) the Commonwealth; (c) a Commonwealth authority; (d) a body corporate incorporated in a Territory; (e) an organisation. (3) A trade and commerce employer is a national system employer within

the meaning of paragraph 14(d). (4) A Territory employer is a national system employer within the meaning of paragraph 14(f).

[7-1560]

Additional effect of this Part

339 In addition to the effect provided by section 338, this Part also has the effect it would have if any one or more of the following applied: (a) a reference to an employer in one or more provisions of this Part were a reference to a national system employer; (b) a reference to an employee in one or more provisions of this Part were a reference to a national system employee; (c) a reference to an industrial association in one or more provisions of this Part were a reference to an organisation, or another association of employees or employers, a purpose of which is the protection and promotion of the interests of national system employees or national system employers in matters concerning employment; [page 468] (d) a reference to an officer of an industrial association in one or more provisions of this Part were a reference to an officer of an organisation; (e) a reference to a person, another person or a third person in one or more provisions of this Part were a reference to a constitutionallycovered entity; (f) a reference to a workplace law in one or more provisions of this Part were a reference to a workplace law of the Commonwealth; (g) a reference to a workplace instrument in one or more provisions of this Part were a reference to a workplace instrument made under, or recognised by, a law of the Commonwealth; (h) a reference to an industrial body in one or more provisions of this Part were a reference to an industrial body performing functions or exercising powers under a law of the Commonwealth.

DIVISION 3 — WORKPLACE RIGHTS

[7-1750]

Protection

340 (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. Note: This subsection is a civil remedy provision (see Part 4-1).

(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs. Note: This subsection is a civil remedy provision (see Part 4-1). COMMENTARY TO SECTION 340*

Causal link …. Identifying the reasons for the adverse action …. Civil penalty provision …. Derivation …. Adverse action — s 340(1), (2) …. Because — s 340(1)(a),(2) …. Civil remedy provision — s 340 Note …. Exercised — s 340(1)(a), (ii), (iii), (b), (2) …. Person — s 340(1), (b), (2) …. Workplace right — s 340(1)(a), (ii), (iii), (b), (2) …. Outline of section ….

[7-1750.01] [7-1750.03] [7-1750.05] [7-1750.10] [7-1750.15] [7-1750.16] [7-1750.17] [7-1750.18] [7-1750.19] [7-1750.20] [7-1750.25]

[7-1750.01] Causal link A causal link must be established between the adverse action (s 342) complained of and the matters in s 340. There is a rebuttable presumption in s 361 that adverse action is taken for a prohibited reason if the prohibited reason is one of the reasons such action

[page 469] was taken (and is therefore causative). However, if that causal link is not established (or is rebutted) on the balance of probabilities, any proceedings brought pursuant to s 340 will fail. In the case of Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; 274 ALR 570; 203 IR 312; [2011] FCAFC 14; BC201100341 at [28], the majority of the Full Court of the Federal Court of Australia held that in determining the question of whether adverse action took place “because” of certain circumstances, it was necessary to determine the “real reason” and that the “search is for what actuated the conduct of the person”. As such, although the state of mind of the relevant person/s at the time of taking the adverse action is centrally relevant it is not decisive. This is exemplified in the case of Bayford v Maxxia Pty Ltd [2011] FMCA 202; BC201102324 where it was found that the applicant’s dismissal was not “by reason of the circumstance that” he had family responsibilities, instead, it was because he did not meet quality standards and was repeatedly late for work. Similarly, in Hodkinson v Commonwealth (2011) 248 FLR 409; [2011] FMCA 171; BC201101612 the applicant pleaded breaches of ss 340–342 and ss 351–352 of the Act on the basis that she was affected by a medical condition which made it more difficult to perform to the standard required. However, it was found that the respondent dismissed her on the basis of unsatisfactory performance during her probationary period and that its decision was unrelated to any workplace right or discriminatory ground. In Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd (2011) 193 FCR 526; [2011] FCA 333; BC201101868 at [368] it was held that once the objective facts have been established and the court is open to find that the action was taken because of a prohibited reason, the reverse onus at s 361 of the Act is enlivened. [7-1750.03] Identifying the reasons for the adverse action In establishing the causal link, the task of the court is to identify the actual reason or reasons for the adverse action, not attempt to ascertain any unconscious elements in the impugned adverse action: Board of Bendigo Regional Institute and Technology and Further Education v Barclay (2012) 248 CLR 500; 290 ALR 647; [2012] HCA 32; BC201206652 (Barclay). This approach was adopted in the case of Turnbull v Symantec (Australia) Pty Ltd (2013) 239 IR 28; 280 FLR 184; [2013] FCCA 1771; BC201314353; in which Manousaridis J held that he should first determine the actual reasons of the decision maker, then determine whether any of those reasons could be characterised as constituting the legislatively prohibited basis of adverse action alleged (which, in that case, was “family or carer’s responsibilities”), and that if that was so found, whether any of those reasons constituted a substantive and operative reason for the adverse action being taken. The applicant’s submission that it was sufficient to establish liability for any of the reasons for the adverse action to be prohibited reasons failed, an interpretation consistent with Barclay being preferred. Additionally, in Rowland v Alfred Health [2014] FCA 2; BC201400040, Marshall ACJ, dismissed an application in which adverse action was alleged to have resulted from complaints having been made by the applicant, finding that the complaints were “not a substantial and operative factor” in the respondent’s decision to terminate the applicant’s employment. Although the reference to “substantial and operative factor” is likely to be no more than obiter dicta in light of Marshall ACJ having earlier found that the complaints played no role whatsoever in the respondent’s decision to terminate the applicant’s employment, it re-inforces the authorities referred to above dealing with the application of the word “because” in s 340(1)(a) of the FW Act, and provides some guidance as to the likely determination of a case in which the matters in that sub-sub-section may be found to have been a factor

in the adverse action being taken, albeit not being a substantial and operative factor. [7-1750.05] Civil penalty provision Item 11 of s 539 provides that this section is a civil penalty provision. Broadly speaking, many of the same considerations which apply in criminal law with respect to the consequential effects of a punishment have been incorporated into the [page 470] relevant case law. However, as with other forms of legislation which are designed to achieve a regulatory framework, the emphasis is upon achieving broader governance and compliance outcomes. Consequently, even if parties agree upon an appropriate penalty, the court may not accept and implement an agreed penalty. The court is obliged to reach its own conclusion as to an appropriate civil penalty and will thoroughly and rigorously scrutinise the circumstances of each case. In determining the amount of the penalty to be imposed, a useful summary of the matters to be considered is contained in Fair Work Ombudsman v Wongtas Pty Ltd (No 2) [2012] FCA 30; BC201200212, in which Cowdroy J imposed penalties upon the two respondent directors of a company which had been voluntarily wound up in June 2010 after the proceedings against it by the applicant had commenced. Interestingly, the operations of Wongtas Pty Ltd had continued seamlessly because they were carried out by a company named “Wangtas Pty Ltd” which was incorporated on 8 July 2012 with both respondents being directors for several months, and operating out of the identical address of Wongtas Pty Ltd. Accordingly, the court inferred that the winding up of Wongtas Pty Ltd was for the purpose of avoiding any penalties that may be imposed upon it for the breaches of legislation alleged in the proceedings. The court considered the following factors in assessing the penalty to be imposed: The court has a wide discretion, applying the factors set out by Graham J in John Holland Pty Ltd v Maritime Union of Australia (No 2) (2010) 192 IR 431; [2010] FCA 110; BC201000694. The nature and extent of the conduct constituting a gross violation of the respondents’ obligations under the FW Act. The circumstances in which the conduct took place. The nature and extent of the loss and damage sustained as a result of the breach, which was specifically held to be “an important consideration”. The prior history of conduct by the respondents. The size of the business enterprise. Whether the contraventions were distinct or arose out of a single course of conduct. Whether the contraventions were deliberate. Whether senior management was involved in the contraventions. Whether there is contrition or remorse. Whether those involved in the contraventions co-operated with the enforcement authorities. Whether general or specific deterrence is required. The conduct of the respondents in the proceedings, including the taking of (failed) legal points, the late stage at which admissions were made and the attempt to avoid liability by winding up the corporate respondent. The principles of mitigation, including the admission of the contravention permitting a reduction of 10–25% of the penalty otherwise to be imposed, the rationale being that such admission and recognition of fault demonstrates some remorse or contrition. Proportionality of the penalty to the contraventions, taking into account all relevant factors as to the objective seriousness and gravity of the contraventions. The principle of totality, recognising that more than one contravention occurred as a result of

the same or similar circumstances. Whether the respondents have agreed to pay compensation to the individual affected by the contraventions. [7-1750.10] Derivation Section 340 is loosely derived from s 793 of the Workplace Relations Act 1996. FM Smith has said that “s 340 covers similar territory to that previously covered by civil remedy provisions of the Workplace Relations Act 1996, although it does involve a new approach to drafting such provisions. In particular, the section rolls up sanctions against both employers and workers for a wide field of prohibited conduct, which was addressed in separate [page 471] provisions of the previous legislation”: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) v Australian Postal Corp (2010) 197 IR 85; [2010] FMCA 461; BC201004846 at [4]. [7-1750.15] Adverse action — s 340(1), (2) See s 342. [7-1750.16] Because — s 340(1)(a),(2) See [7-2850.30]. [7-1750.17] Civil remedy provision — s 340 Note See s 12. [7-1750.18] Exercised — s 340(1)(a), (ii), (iii), (b), (2) To have exercised a workplace right is to have given practical effect to the right or to have put it into action, practice, or use. As a matter of ordinary language, if a right carries with it a potential practical effect or effects, the exercise of the right inheres putting into practice those effects: Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150; 250 IR 422; [2015] FCAFC 76; BC201504767 at [178] per Bromberg J. [7-1750.19] Person — s 340(1), (b), (2) See [7-1810.15]. [7-1750.20] Workplace right — s 340(1)(a), (ii), (iii), (b), (2) See s 341. [7-1750.25] Outline of section See generally E Goodman and B Friedman, “General Protections under Part 3-1 of the Fair Work Act: Key Features and Protection of Workplace Rights” (2011) 17 Employment Law Bulletin 48. Section 340 prohibits a person taking adverse action against another person in relation to that person’s workplace rights. The protection has two basic limbs: protection from adverse action because a person has a workplace right and protection from adverse action because a person exercises (or does not exercise) a workplace right: Explanatory Memorandum to the Fair Work Bill 2008 at [1379]. In Khiani v Australian Bureau of Statistics [2011] FCAFC 109; BC201106396 at [31], the Full Court provided some guidance as to the limits of the section stating that: A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.

*Editor’s note: Commentary to s 340 [7-1750.01]–[7-1750.05] prepared by Erik Young, Barrister. Commentary to s 340 [7-1750.10]–[7-1750.25] prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[7-1770]

Meaning of workplace right

341 Meaning of workplace right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee — in relation to his or her employment. [page 472] Meaning of process or proceedings under a workplace law or workplace instrument (2) Each of the following is a process or proceedings under a workplace law or workplace instrument: (a) a conference conducted or hearing held by the FWC; (b) court proceedings under a workplace law or workplace instrument; (c) protected industrial action; (d) a protected action ballot; (e) making, varying or terminating an enterprise agreement; (f) appointing, or terminating the appointment of, a bargaining

representative; (g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement; (h) agreeing to cash out paid annual leave or paid personal/carer’s leave; (i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements); (j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument; (k) any other process or proceedings under a workplace law or workplace instrument. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 366, opn 1 Jan 2013]

Prospective employees taken to have workplace rights (3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer. Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.

Exceptions relating to prospective employees (4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings. (5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2-8 or 6-3A (which deal with transfer of business). [subs (5) am Act 175 of 2012 s 3 and Sch 1 item 54A, opn 5 Dec 2012] COMMENTARY TO SECTION 341*

Derivation …. Bargaining representative — s 341(2)(f) …. Complaint or inquiry — s 341(1)(c) …. Conference — s 341(2)(a) ….

[7-1770.01] [7-1770.05] [7-1770.10] [7-1770.15]

Employee — s 341(1)(c)(ii), (3), (4), (5) …. Employer — s 341(3), Note, (4), (5) ….

[7-1770.20] [7-1770.25] [page 473]

Enterprise agreement — s 341(2)(e), (g) …. Entitled to the benefit — s 341(1)(a), (5) …. FWC — s 341(2)(a) …. Guarantee of annual earnings — s 341(4) …. In relation to — s 341(1)(c)(ii) …. Individual flexibility arrangement — s 341(2)(g), Note …. Industrial body — s 341(1)(a) …. Initiate, or participate in, a process — s 341(1)(b) …. Modern Award — s 341(2)(g) …. Paid annual leave — s 341(2)(h) …. Protected action ballot — s 341(2)(d) …. Protected industrial action — s 341(2)(c) …. Role or responsibility — s 341(1)(a) …. Transfer of business — s 341(5) …. Workplace instrument — s 341(1)(a), (b), (c)(i), (2)(b), (j), (k) …. Workplace law — s 341(1)(a), (b), (c)(i), (2)(b), (j), (k) …. Outline of section ….

[7-1770.30] [7-1770.35] [7-1770.40] [7-1770.45] [7-1770.50] [7-1770.55] [7-1770.60] [7-1770.61] [7-1770.65] [7-1770.75] [7-1770.80] [7-1770.85] [7-1770.90] [7-1770.95] [7-1770.100] [7-1770.105] [7-1770.110]

[7-1770.01] Derivation The section is new. [7-1770.05] Bargaining representative — s 341(2)(f) See s 12 definition of “bargaining representative” and s 176. [7-1770.10] Complaint or inquiry — s 341(1)(c) The scope of what gives rise to a defined “workplace right” because a person “is able to make a complaint or enquiry” pursuant to s 341(1)(c) of the FW Act is broad, but not at large. [T]he requisite relationship between the complaint or inquiry with the employee’s employment may be direct or indirect: Construction, Forestry, Mining and Energy Union (CFMEU) v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697; BC201204747 at [64]. The outer limits of the meaning of this phrase are not easy to define. In the case of Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; 242 IR 1; [2014] FCA 271; BC201402745, Streeton-Dodds J, closely examined not only the creation of that provision, and its apparent legislative

purpose, but also the case law relating to the extent of its operation. In summary, it was found that: (a) a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation; (b) the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant; (c) the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose; (d) the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii); (e) a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer; [page 474] (f)

a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and (g) a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend con-temporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation. On appeal, the Full Court cautioned in Shea v Energy Australia Services Pty Ltd [2014] FCAFC 167; BC201410382 at [12] that: Considerable care needs to be exercised before implying into s 341 any constraint that would inhibit an employee’s ability to freely exercise the important statutory right to make a “complaint”. To too readily imply into the language of ss 340 and 341 the necessity for a complaint to be a “genuine” complaint, necessarily would be productive of argument about whether a “complaint” is bona fide and may serve to discourage those who may well have mixed motives for making a complaint. The expression or drafting of a “complaint” should not require the sophistication or knowledge of an experienced industrial lawyer or legal advice regarding whether it should in fact be made. Care should also be taken before construing the term “right” in s 341 in a manner which may have more far-reaching implications for the meaning of that term when it is employed elsewhere in the Fair Work Act. When considering the construction of these provisions, there is an obvious need to balance the legitimate interests of both employees and employers in a manner consistent with the objects of the Act as a whole and the objects of Part 3-1. In Henry v Leighton Admin Services Pty Ltd (2015) 299 FLR 342; [2015] FCCA 1923; BC201506511 at [73], Manousaridis FCCJ comprehensively examined the authorities before holding that: [T]he construction favoured by Dodds-Streeton J in Shea [that the ability to make a complaint or an

inquiry “must be underpinned by an entitlement or right] does not reflect any settled construction in the Federal Court or elsewhere of the words “is able” in s 341(1)(c)(ii) of the Act. In Milardovic v Vemco Services Pty Ltd [2016] FCA 19; BC201600221 at [66], Mortimer J adopted the reasoning of Dodd-Streeton J. Her Honour did not refer to the decision of Manousaridis FCCJ. A complaint about the competence of a work colleague was held by Marshall ACJ not to be a complaint in relation to employment for the purposes of the Act. Justice Bromberg adopted a broader view in Walsh v Greater Metropolitan Cemeteries Trust (No 2) (2014) 243 IR 468; [2014] FCA 456; BC201403314 at [42]: Where the subject matter of the complaint raises an issue with potential implications for the complainant’s employment, it is likely that the requisite nexus will be satisfied. In Henry v Leighton Admin Services Pty Ltd (2015) 299 FLR 342; [2015] FCCA 1923; BC201506511, Manousaridis FCCJ concluded at [77] that: A person has a workplace right within the meaning of s 341(1)(c)(ii) if the person has the capacity or capability to make a complaint or inquiry about the person’s employee rights and obligations or about matters which may prejudice the person in his or her employment. A person will exercise such workplace right if the person makes a complaint or inquiry about his or her employment rights and obligations, or if the person makes a complaint or inquiry about a subject that may prejudice the person in his or her employment. [page 475] [7-1770.15] Conference — s 341(2)(a) See s 398. [7-1770.20] Employee — s 341(1)(c)(ii), (3), (4), (5) See s 335. [7-1770.25] Employer — s 341(3), Note, (4), (5) See s 335. [7-1770.30] Enterprise agreement — s 341(2)(e), (g) See s 12 definition of “enterprise agreement”. [7-1770.35] Entitled to the benefit — s 341(1)(a), (5) The use of the phrase “entitled to the benefit of” in para 341(1)(a) is intended to capture both the fact that a workplace law or instrument applies to a person, as well as the individual entitlements under the workplace law or instrument: Explanatory Memorandum to the Fair Work Bill 2009 at para 1362. [7-1770.40] FWC — s 341(2)(a) See s 12 definition of “Fair Work Commission”. [7-1770.45] Guarantee of annual earnings — s 341(4) See ss 12 and 330(1). [7-1770.50] In relation to — s 341(1)(c)(ii) That the expression “in relation to” gathers meaning from both the context in, and purpose for, which it appears, is a consistent theme in Federal Court judgments relating to that expression. The consideration of context in each case limits the precedential value of prior judgments in considering the proper interpretation and reach of “in relation to” in the specific circumstances presently before the court. Context is also important to a consideration of whether the relationship need be: a. direct or substantial; b. indirect or less than substantial;

c. affecting one term of the relationship; or d. affecting all of the terms of the relationship. The phrase “in relation to” does not extend to tenuous or remote relationships. Rather, a statutory test of relationship requires that the relationship “must lie within the bounds of relevance to the statutory purpose”: Evans v Trilab Pty Ltd [2014] FCCA 2464; BC201409076 at [34]–[35]. The requisite relationship between the complaint or inquiry with the employee’s employment may be direct or indirect. No contrary indication may be gleaned from the context of the words or the drafting history. Construction, Forestry, Mining & Energy Union v Pilbara Iron Co (Services) Pty Ltd (No 3) [2012] FCA 697; BC201204747 at [64] (29 June 2012). In Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [49], FWA examined, but did not finally decide, the issue as to whether the criterion in s 341(1)(c)(ii) is met whenever an employee makes a complaint to a responsible senior manager as a mere incident of the employment relationship. The Full Bench stated that: We are inclined to think that is it not and that s 341(1)(c)(ii) contemplates that the employee is “able” to make the complaint by virtue of some provision in a statute or in an instrument such as a enterprise agreement or contract of employment. By contrast, in Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; BC201312642 at [141], [143], Jesssup J held: Read literally, s 341(1)(c)(ii) would cover the making of a complaint or inquiry to the relevant employer. On one view, that would be a wide reading of the provision, but there seems to be little doubt but that the provision was intended to mean what it says… Against the wide terms of s 341(1)(c)(ii), I can think of no reason to assume that the legislature did not regard the protection of an unrepresented employee, who had rights under his or her contract of employment or other agreement with his or her employer, as within the range of protections provided by the provision. That such an employee should be able to have recourse to his or her solicitor, without the fear of repercussions in the nature of “adverse action” taken [page 476] by the employer, would be well within the purposes of the section as they may be perceived in the legislative context to which I have referred. After comprehensively reviewing the authorities, FCC Lucev J held in Evans v Trilab Pty Ltd [2014] FCCA 2464; BC201409076 that: [61] … it is arguable that a complaint or inquiry need: a) not arise from a statutory, regulatory or contractual provision before it can be a complaint or inquiry in relation to a person’s employment for the purposes of s 341(1)(c)(ii) of the FW Act; and b) only have an indirect nexus with a person’s terms or conditions of employment to come within the scope of s 341(1)(c)(ii), and may be a complaint about the conduct of another person in the workplace or about a workplace process which concerns or has implications for an employee’s employment. [7-1770.55] Individual flexibility arrangement — s 341(2)(g), Note See ss 12, 144, 202. [7-1770.60] Industrial body — s 341(1)(a) See s 12 definition of “industrial body”.

[7-1770.61] Initiate, or participate in, a process — s 341(1)(b) That paragraph is not dependent on the existence of an entitlement. It depends, rather, upon the person’s proposal to initiate a process or proceedings under a workplace law. The operation of s 341(1)(b) is not limited to proposals to initiate processes or proceedings which would lead to the upholding of the right or entitlement sought to be vindicated: Tattsbet Ltd v Morrow (2015) 321 ALR 305; [2015] FCAFC 62; BC201503629 at [107], [1], [140]. [7-1770.65] Modern Award — s 341(2)(g) See s 12 definition of “modern award”. [7-1770.75] Paid annual leave — s 341(2)(h) See s 12 definition of “paid annual leave” and s 87. [7-1770.80] Protected action ballot — s 341(2)(d) See s 12 definition of “protected action ballot”. [7-1770.85] Protected industrial action — s 341(2)(c) See s 12 definition of “protected industrial action” and s 408. [7-1770.90] Role or responsibility — s 341(1)(a) The inclusion of “role or responsibility” in para 341(1)(a) is intended to provide protection for persons who perform a representative function in the workplace that is recognised under a workplace law, workplace instrument or order of an industrial body: Explanatory Memorandum to the Fair Work Bill 2009 at para 1364. The definition of a role or responsibility under a workplace law or a workplace instrument or order made by an industrial body refers to a person who has a specific obligation imposed upon them either personally, or by reason of them occupying a particular position. One could easily see this with respect to a union delegate in a workplace position or other specified positions that have specific roles under the law: Phillips v Visser (2010) 205 IR 257; [2010] FMCA 684; BC201010612 at [8]. [7-1770.95] Transfer of business — s 341(5) See ss 12, 311, 768AD. [7-1770.100] Workplace instrument — s 341(1)(a), (b), (c)(i), (2)(b), (j), (k) See s 12 definition of “workplace instrument”. [page 477] [7-1770.105] Workplace law — s 341(1)(a), (b), (c)(i), (2)(b), (j), (k) See s 12 definition of “workplace law”. [7-1770.110] Outline of section Section 341 defines workplace right. There are three elements to the definition: entitlements, roles and responsibilities (para 341(1)(a)); processes and proceedings under workplace laws and instruments (para 341(1)(b)); and complaints or inquiries (para 341(1)(c)): Explanatory Memorandum to the Fair Work Bill 2009 at para 1359. See generally Michelle Dawson, “There’s a workplace right, right? The adverse action provisions in the Fair Work Act in relation to workplace right”, Employment Law Bulletin, LexisNexis, March 2013, 161. A workplace right can be conferred on an employer: see BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291; BC201315229 at [122]–[124] (BHP). In that case, Collier J held at [122] that “an entitlement of an employer to require work to be done is clearly a workplace right vesting in that employer”. A limitation upon that right was held to be adverse action for the

purposes of the Act: BHP at [125]. The assertion of a workplace right is a jurisdictional prerequisite for a finding that adverse action has taken place under the FW Act: Cavar v Nursing Australia [2012] FCA 338; BC201201832 at [15]. The onus is on the applicant to demonstrate that he or she either has, or has exercised, a workplace right as defined in s 341: Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341; BC201106518 at [44].

* Commentary to s 341 [7-1770.10] prepared by Erik Young, Barrister. The remainder of the commentary to s 341 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister. ____________________

[7-1790]

Meaning of adverse action

342 (1) The following table sets out circumstances in which a person takes adverse action against another person. Meaning of adverse action Item Item Column 1 Column 2 Adverse action is taken by if … … 1 an employer against an the employer: employee (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee’s prejudice; or (d) discriminates between the employee and other employees of the employer. 2 a prospective employer the prospective employer: against a prospective (a) refuses to employ the employee prospective employee; or (b) discriminates against the prospective employee in the terms or conditions on which the prospective employer

offers to employ the prospective employee. [page 478] Meaning of adverse action Item Column 1 Adverse action is taken by … 3 a person (the principal) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor

4

a person (the principal) proposing to enter into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor

Column 2 if … the principal: (a) terminates the contract; or (b) injures the independent contractor in relation to the terms and conditions of the contract; or (c) alters the position of the independent contractor to the independent contractor’s prejudice; or (d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or (e) refuses to supply, or agree to supply, goods or services to the independent contractor. the principal: (a) refuses to engage the independent contractor; or (b) discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor; or

5

6

7

(c) refuses to make use of, or agree to make use of, services offered by the independent contractor; or (d) refuses to supply, or agree to supply, goods or services to the independent contractor. an employee against his or the employee: her employer (a) ceases work in the service of the employer; or (b) takes industrial action against the employer. an independent contractor the independent contractor: against a person who has (a) ceases work under the entered into a contract for contract; or services with the independent (b) takes industrial action contractor against the person. an industrial association, or the industrial association, or an officer or member of an the officer or member of the industrial association, against industrial association: a person (a) organises or takes industrial action against the person; or (b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s [page 479]

Meaning of adverse action Item Column 1 Adverse action is taken by …

Column 2 if … employment or prospective

employment; or (c) if the person is an independent contractor — takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or (d) if the person is a member of the association — imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member). (2) Adverse action includes: (a) threatening to take action covered by the table in subsection (1); and (b) organising such action. (3) Adverse action does not include action that is authorised by or under: (a) this Act or any other law of the Commonwealth; or (b) a law of a State or Territory prescribed by the regulations. (4) Without limiting subsection (3), adverse action does not include an employer standing down an employee who is: (a) engaged in protected industrial action; and (b) employed under a contract of employment that provides for the employer to stand down the employee in the circumstances. COMMENTARY TO SECTION 342*

Derivation …. History …. Alters — s 342(1) …. Authorised — s 342(3) ….

[7-1790.1] [7-1790.5] [7-1790.10] [7-1790.11]

Discriminates — s 342(1) …. Dismisses — s 342(1) …. Employee — s 342(1), (4)(b) …. Employer — s 342(1), (4)(b) …. Independent Contractor — s 342(1) …. Industrial Association — s 342(1) …. Injures an employee in employment — s 342(1) …. Intention …. Position — s 342(1) …. Prejudice — s 342(1) …. Prospective employee — s 342(1) …. Protected industrial action — s 342(4)(a) …. Refuse to employ — s 342(1) ….

[7-1790.15] [7-1790.20] [7-1790.25] [7-1790.30] [7-1790.35] [7-1790.40] [7-1790.45] [7-1790.50] [7-1790.55] [7-1790.56] [7-1790.60] [7-1790.65] [7-1790.70] [page 480]

Services offered by the independent contractor — s 342(1) …. This Act — s 342(3)(a) …. Outline of section ….

[7-1790.75] [7-1790.80] [7-1790.85]

[7-1790.1] Derivation The section has some similarities to s 792 of the Workplace Relations Act 1996. [7-1790.5] History The relevant history is that since 1904 when the Act first came into operation, sanctions have been provided against an employer who dismissed an employee in certain proscribed circumstances. In 1909 the phrase “or injure him in his employment” was inserted whilst in 1914 the phrase “or alter his position to his prejudice” was added. It is clear that the words were added to the section to overcome a situation in which an employer did something short of dismissing an employee but which was something which could be said to be harmful to him in his employment. Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 290; 3 IR 176. [7-1790.10] Alters — s 342(1) In Construction, Forestry, Mining and Energy Union (CFMEU) v McConnell Dowell Constructors (Aust) Pty Ltd (2014) 285 FLR 389; [2014] FCCA 594; BC201402138 at [32]–[34] Burnett J held that: The applicants submitted that to “alter” the position of an employee to the employee’s prejudice has been determined to be a broader category than “injury” in employment. The authorities support that contention. As Evatt J noted in Blair v Australian Motor Industries Ltd (1982) 3 IR 176 at [180]; 61 FLR 283 at [290], the words “or alter his position to his prejudice” were added to the Conciliation and Arbitration Act 1904 (Cth). In that case his honour was considering the matter of injuring an employee in his

employment while he was engaged in duties associated with his industrial organisation. Addressing the issue of altering to prejudice, he observed: … the words were added to the section to overcome a situation in which an employer did something short of dismissing an employee but which was something which could be said to be harmful to him in his employment. He continued (at [181]): … It is possible to read the word “position” in a narrow way merely as referable to the immediate incidents of day-to-day employment. But I do not see any reason why it should be so circumscribed in meaning. It seems to me that the word “position” should be read rather to refer to a man’s employment position in all its attributes and that to find what those attributes are in any particular case, you look at the terms of employment, the terms of the agreement in relation to the particular employment … “[A]lters the position of the employee to the employee’s prejudice” is a “broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; 153 ALR 643; [1998] HCA 30; BC9801511 at [4]. Changing the status of a person’s employment from regular daily employment to casual employment is an alteration to the employee’s prejudice: Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49 at 61–2; 1 IR 125 at 131. [O]ne caveat upon the unlimited ambit of alteration to prejudice appears to be that the alteration must be “real and substantial, rather than merely possible or hypothetical”: Construction, Forestry, Mining and Energy Union (CFMEU) v McConnell Dowell Constructors (Aust) Pty Ltd (2014) 285 FLR 389; [2014] FCCA 594; BC201402138 at [41]. [page 481] Prejudicial alteration An alteration to an employee’s position to that person’s prejudice has been described as something done by the employer short of dismissing the employee which is harmful to that person in his or her employment: see the cases reviewed in Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34; 165 ALR 67; [1999] FCA 899; BC9903707 at [227]–[233]. In that case, the Authority decided to cease engaging in stevedoring operations. It removed certain employees from irregular shift work to day work with consequent diminished opportunity to earn overtime. The relevant award did not guarantee any particular level of overtime. RD Nicholson J held at [213]–[216], [260], [351] that the prospect of reduction in overtime earnings was a prejudicial alteration to the employees’ position and that the Authority had not discharged the statutory onus that the conduct was for a prohibited reason, namely that, the employees were members of the MUA and entitled to the benefit of an industrial instrument. See the later decision in the same litigation at (2000) 94 IR 404 at [13] where the court considered what relief was appropriate in the circumstances of the case. In Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440; BC201403217, Siopis J held that a poster naming a number of employees as scabs constituted prejudicial action under s 342. His Honour held at [252]–[253]: In my view, the scab poster action had the effect of prejudicing each of the named employees in their employment because on discovering that each had been named in the scab poster, each named

employee felt the emotional distress and anger of marginalisation in the workplace. They knew that their co-workers had been invited to regard each of them as being unworthy of being treated with the respect and dignity which would otherwise be accorded to co-workers, and indeed, fellow human beings. Mr Mawbey best described the feeling of marginalisation in the workplace, when he said that he felt that all the workers were being “pushed against” him and the other named employees. Further, after learning of the scab posters, the named employees developed a fear that a co-worker, influenced by the content of the scab poster, would visit violence upon him or upon a member of his family, or upon his property. Thus after, and because of the scab poster action, each named employee attended work with an underlying apprehension and fear that a co-worker, whom they may not even know, would visit violence upon him, whilst at work, or upon him and/or his family after work, or upon his property. That conclusion was taken further in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225; BC201501599 where Tracey J held at [276] and [279] that: In branding those workers as “dogs” and “rats” Mr Setka sought to belittle them as traitors to the Union and the interests of construction workers generally … His use of foul and abusive language towards the … employees, in my view, prejudiced them in their employment. Targeted redundancies Although an offer of redundancy, without more, may not cause injury to an employee’s position, an instruction to managers that persons employed under awards or certified agreements, rather than persons employed under AWAs, were to be made redundant constituted discrimination against those persons in the redundancy process: see Community and Public Sector Union v Telstra Corp Ltd (2001) 107 FCR 93; 104 IR 195; [2001] FCA 267; BC200101084 (“Telstra Corp”) which is discussed below. A decision to accept a tender by a third party to do work presently being done by a local council’s employees directly and immediately caused the employees’ position to be altered to their prejudice: see Greater Dandenong City Council v Australian Municipal, Clerical and Services Union (2001) 112 FCR 232; 184 ALR 641; [2001] FCA 349; BC200101465 at [89], [141] and [208]. See also Transport Workers’ Union of Australia v BP Australia Ltd (2001) 187 ALR 697; 109 IR 39; [2001] FCA 1174; BC200104949 at [26]–[28]. [page 482] Cases concerning contraventions of the predecessor provisions have involved issues about whether the employee’s conduct singled out an individual employee and whether indirect or consequential alternation of position can constitute prejudicial alteration in contravention of the provision. The second issue particularly often causes difficulty requiring careful analysis of the circumstances of the case. For a survey of the extent to which an employer’s conduct may alter the position of an employee to the employee’s prejudice, see D Quinn, “To be or not to be a member” (2004) 17 AJLL 1 at 13 and following. In Telstra Corp at [21] a full court of the Federal Court rejected a submission that Telstra’s actions were not intentionally directed at any individual employee where it had instructed its managers to select employees for redundancy who were employed under an award or certified agreement rather than employees who had made AWAs with the respondent. Notwithstanding that the employees were unidentified at the time of the instruction, it altered their position to their prejudice. The court remitted the case to the primary judge who determined that the respondent had not discharged the onus imposed

upon it that it had given the instruction for a prohibited reason: see Community and Public Sector Union (CPSU) v Telstra Corp Ltd (2001) 108 IR 207; [2001] FCA 813; BC200103468. On the issue of whether the relevant employees had to be individually targeted or merely be ascertainable, the full court stated at [21]: Telstra also relied on the observation by a Full Court of this Court in BHP Iron Ore … that the proscription “is essentially against an intentional act of the employer directed to an individual employee or prospective employee”. Telstra contended that the [instruction to its managers] was not an intentional act directed at any individual employee. However, the observation of the Full Court also holds true where the act is intentionally directed at a number of unidentified employees. The [instruction] discriminated against each employee of Telstra who was employed under an award or a certified agreement. Accordingly, liability arises where the conduct is directed at a number of ascertainable employees as well as against a particular employee. Predecessor provisions In Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 147 FCR 158; 223 ALR 695; [2005] FCA 796; BC200506658 at [27] (Finance Sector Union), Merkel J held that it follows that the predecessor provisions could apply to a case where the conduct is “directed at a number of ascertainable employees”. In the circumstances of the case (discussed below) the judge accepted that, although the relevant decision by the respondent was not directed to any particular employee, it nonetheless would contravene the section if it were established that the decision was directed at a number of ascertainable employees. The decision was upheld on appeal by a majority of the Full Court, Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329; 161 IR 262; [2007] FCAFC 18; BC200700968. In Telstra, the full court also considered the circumstances in which an indirect or consequential alteration of position can constitute prejudicial alteration. The full court stated: [17] The question is whether … Telstra had altered the position of any of its employees to the employee’s prejudice … In Patrick Stevedores [(1998) 195 CLR 1] at 18 the majority of the High Court held that the subsection covers “not only legal injury but any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. The majority also observed (at 20) that the reorganisation of companies within the Patrick Group resulted in the security of the employer companies’ businesses being “extremely tenuous” with the “security of the employees’ employment [being] consequentially altered to their prejudice”. The reorganisation did not directly affect or alter any legal rights or obligations of the employees but it left their future employment less secure. Although this issue was not in dispute, the majority appears to have had no difficulty in accepting reduced security of future employment as falling within [the predecessor section] because it brought about an adverse affection of, or a deterioration in, the advantages enjoyed by the employees before the reorganisation. [page 483] [18] Where the alteration of position is alleged to be indirect or consequential, as in Patrick Stevedores and in the present case, a difficult question may arise as to whether a prejudicial alteration of position has in fact occurred. Answering that question may involve questions of degree. It is sufficient for present purposes to say that if the prejudicial alteration is real and substantial, rather than merely possible or hypothetical, it will answer the description. The full court was satisfied that the prejudicial alteration was real and substantial. It said: [19] Before [giving the instruction to its managers] Telstra’s employees employed under awards and certified agreements enjoyed the benefit of being subject to redundancy only in accordance with a

process which rated their eligibility for redundancy on the basis of merit … There was an adverse affection of, or deterioration in, that benefit after the [instruction was given] as a result of the additional detrimental criterion applicable to employees employed under awards or certified agreements. The detrimental criterion was real and substantial for the employees whom it affected. [20] Thus, while the refined or amended criterion has not been acted upon, and therefore may not have caused any injury to an employee, the employment of employees on awards or certified agreements had become less secure, in a real and substantial manner, than it had been previously. In those circumstances the position of the relevant employees had been altered to their prejudice … It follows that while we consider that the primary judge was correct in concluding that, as the [instruction] had not been acted upon, it did not injure any employee, we do not agree with his Honour’s conclusion that the [instruction] had not altered the position of any of the employees to their prejudice. Community and Public Sector Union (CPSU) v Commonwealth (2007) 241 ALR 151; 165 IR 335; [2007] FCA 1397; BC200707616 was a difficult case. The respondent’s officers instructed departmental managers that applications by employees for a day’s leave were to be denied where an employee intended to use the leave to attend a demonstration organised by the applicant against amendments to the Workplace Relations Act. Justice Branson concluded at [90] that those instructions altered the position of the employees to their prejudice because of the risk that their applications for leave would not be considered according to the usual practice of their respective departments but by reference to a more restrictive criterion. The judge also held at [112]–[114] that although the instruction applied generally to all employees irrespective of whether they were members of the applicant union, the officers who issued the instruction knew that the overwhelming majority of employees who would wish to attend the demonstration were members of the union. The judge concluded that the instruction was issued for a prohibited reason contrary to s 298L(1)(a), namely “because of the CPSU membership of a significant number of Commonwealth employees”. Declarations giving effect to that conclusion were made: [2007] FCA 1634; BC200709249 at [24]. Compare CPSU, Community and Public Sector Union v Commonwealth [2007] FCA 1861; BC200710507, which concerned a subsequent demonstration against Commonwealth workplace legislation organised by the applicant. Justice Cowdroy held at [51]–[56] and [74]–[77] that, although the respondent’s conduct was an alteration of the position of an employee seeking leave to his prejudice, it had discharged the onus imposed upon it and satisfied the court that its conduct was not for a prohibited reason. Withholding a benefit because an employee will not sign an enterprise agreement may contravene the section: compare Associated Newspapers Ltd v Wilson [1995] 2 AC 454; [1995] 2 All ER 100; [1995] 2 WLR 354; [1995] ICR 406. However, in BHP Iron Ore, the full court determined that employees had not suffered a prejudicial alteration of their position as a result of the employer offering individual agreements to all employees employed under an award or a certified agreement. The full court said at [38]: In the present case, the only undisputed intentional act of BHPIO has been to offer to each employee improved remuneration and conditions to be embodied in an individual workplace agreement. That, of itself, did not change, in either absolute or relative terms, the remuneration [page 484] or any of the conditions of employment of the employee to whom the offer was made. A change in absolute terms occurred only upon acceptance of the offer and the consequent coming into existence of a new contract of employment. It is true that, after some offers have been accepted by individual

employees, a change can be discerned in the remuneration and conditions of employment of those employees, viewed in relation to the remuneration and conditions of employment of those employees who have not accepted the offer. However, the position of each of the latter employees has not been changed to his or her detriment by an intentional act of the employer. The relative change which we have just identified is brought about by the acceptance by some employees, and the rejection by others, of an offer made indiscriminately to all employees. Withholding benefit In Finance Sector Union certain of the respondent’s managerial staff in its Premier Financial Services business unit employed under awards and certified agreements had significant promotional advancement and transfer opportunities within the business unit until the respondent decided that it would not create any new positions in that business unit. The respondent also decided that thereafter one of its subsidiaries would employ persons working in the business unit when a vacancy became available. Merkel J held at [36] that it was clear that the operative reason for the decision was that the respondent and its subsidiary wanted to have employees providing the financial services in the business unit employed by the subsidiary under individual employment agreements and not under the respondent’s awards and certified agreements. He also held at [56] that it was common ground that after the respondent’s decision about future employment of the managerial staff, should such an employee wish to transfer to other positions within the business unit, that employee would be required to resign from the respondent and become an employee of the subsidiary under an individual employment agreement. Merkel J accepted at [57] that, although such a resignation was voluntary, the respondent’s decisions not to create any new vacancies in the business unit and to fill vacancies using the subsidiary’s employees, were intended to induce, and did induce, existing employees of the respondent in the business unit to take up employment with the subsidiary if they wished to advance their careers in the business unit. The judge inferred that generally minimum entitlements under the individual employment agreements were less than under the respondent’s awards and certified agreements. He held that the respondent’s conduct contravened the former s 298K(1) and said at [95]: [The respondent] argued that any prejudicial alteration came about as a result of [one of the respondents] employee’s decision to resign from [the respondent] and take up employment with [its subsidiary] under [an individual employment] agreement, rather than as a result of any conduct on the part of [the respondent]: see BHP Iron Ore at [38]. However, BHP Iron Ore is distinguishable from the present case. In BHP Iron Ore there was an offer to each employee of “improved remuneration and conditions to be embodied in an individual workplace agreement”. On the facts in that case, the prejudicial alteration to the position of the employees could only arise in respect of employees who failed to accept the offer. However, the Full Court found that any relative change to an employee’s detriment was brought about by the acceptance by some employees, and the rejection by others, of an offer made indiscriminately to all employees. If an indiscriminate offer to all the relevant employees was all that occurred in the present case, it may not be distinguishable from BHP Iron Ore. However, in the present case, the prejudicial alteration came about because it was integral to the making and implementation of the … decision [only to fill vacancies from the subsidiary’s employees] that employees remaining with CBA were to lose the promotional, advancement and transfer opportunities in [the respondent’s] business unit that, but for the … decision [referred to above], would have otherwise accrued to them in the normal course of their employment. [The respondent] altered the criteria for access to those opportunities by imposing a requirement that, for that access, the relevant employees had to resign from [the respondent]. No analogous circumstance existed in BHP Iron Ore for employees who rejected their employer’s offer. Thus, the making and implementation of the … decision [referred to above] by [the respondent] resulted in an adverse affectation of, or deterioration in, the [page 485]

opportunities available to the relevant employees. Of course, the relevant employees were able to access those opportunities, and indeed, were induced by [the respondent] to access those opportunities, as employees of [the subsidiary]. However, to do so they were required to resign as employees of [the respondent], take up employment with [the respondent] and then suffer the financial and legal detriments referred to above, which arise from employment under [individual employment] agreements. Thus, the present case is one that is properly to be characterised as a prejudicial alteration to the position of the relevant employees by reason of [the subsidiary’s] conduct, rather than by reason of the conduct of the employees in accepting or rejecting an offer of employment with [the subsidiary]. The judge imposed a large penalty for the contraventions: see Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 224 ALR 467; 147 IR 462; [2005] FCA 1847; BC200510901. The penalty was halved on appeal, Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329; 161 IR 262; [2007] FCAFC 18; BC200700968 at [5], [17]–[19], [193], [241] and [244]. Employer requesting information A letter from an employer requesting answers from an employee in a disciplinary investigation could constitute a prejudice if the employee was forced to answer it: Kimpton v Minister for Education of Victoria (1996) 65 IR 317. See also Health Services Union of Australia v Tasmania (1996) 73 IR 140. So might actions of a bank in counselling and formally warning an employee: see Finance Sector Union of Australia v Australia & New Zealand Banking Group (2002) 120 FCR 107; 114 IR 352; [2002] FCA 631; BC200202424 where Wilcox J said at [139] that taking a step that had the effect of “using up” the employee’s chance to be first warned about any future unsatisfactory conduct, rather than be immediately dismissed or demoted, was to alter her position to her prejudice. Compare Police Federation of Australia v Nixon (2008) 168 FCR 340; 173 IR 132; [2008] FCA 467; BC200802636 at [46]–[49]. Disciplinary action An investigation brought in good faith and carried out properly may nevertheless constitute adverse action: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70; [2013] FCA 525; BC201302742 at [103], although cf Police Federation of Australia v Nixon (2008) 168 FCR 340; 173 IR 132; [2008] FCA 467; BC200802636 at [48]. A suspension which results in a deterioration in the advantages otherwise enjoyed constitutes adverse action: Visy Packaging at [115]. A warning that might lead to termination may constitute adverse action: Visy Packaging at [119]. Excluding a union from negotiations An employer’s decision to exclude a union from negotiations with other unions for a certified agreement may be conduct prejudicially altering an employee’s position: see Professional Officers’ Association (Victoria) v CSL Ltd [2001] FCA 628; BC200102769 where an interlocutory injunction was granted restraining such conduct until the hearing of the proceedings. Distinction between “injury” and “prejudicial alteration” The lack of recent authority on the distinction between “injury” and “prejudicial alteration” is perhaps explained by the practice of pleading both categories of adverse action; for any action taken by an employer that constitutes an injury in employment will necessarily alter the position of the employee to his or her prejudice: Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd (2011) 201 IR 441; [2011] FMCA 58; BC201100433 at [29] (11 February 2011). On appeal, the Full Court reviewed the authorities and concluded that a prejudicial alteration to the position of an employee may occur even though the employee suffers no loss or infringement of a legal right. It will occur if the alteration in the employee’s position is real and substantial

[page 486] rather than merely possible or hypothetical. Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244; [2012] FCAFC 63; BC201202728 (4 May 2012), 216 IR 451 at [32]. [7-1790.11] Authorised — s 342(3) The variety of different contexts in which the term “authorise” has been employed elsewhere in the Fair Work Act necessarily means that it is a term which must be construed with some degree of flexibility … Notwithstanding whatever flexibility may be inherent in the term “authorise”, what is common to all contexts is the search for some “authority” to engage in particular conduct: Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd (2014) 232 FCR 560; 244 IR 62; [2014] FCA 462; BC201403326 at [53]–[53]. [7-1790.15] Discriminates — s 342(1) The terms of s 342(1) do not suggest that the term “discriminate” should be given anything other than its normal meaning. Other provisions within the Fair Work Act also support the conclusion that the term “discriminate” should be given its normal and ordinary meaning. And that meaning has a width of application. For the purposes of s 342(1), Item 1(d), the term “discriminate” simply means to treat employees differently: Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd (2014) 232 FCR 560; 244 IR 62; [2014] FCA 462; BC201403326 at [58]. The discrimination between employees referred to in item 1 of s 342(1) involves an employer deliberately treating an employee, or a group of employees, less favourably than others of its employees: Hodkinson v The Commonwealth (2011) 248 FLR 409; 207 IR 129; [2011] FMCA 171; BC201101612 at [178]. [7-1790.20] Dismisses — s 342(1) See s 386. [7-1790.25] Employee — s 342(1), (4)(b) See s 335. [7-1790.30] Employer — s 342(1), (4)(b) See s 335. [7-1790.35] Independent Contractor — s 342(1) See s 12. In Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172; 239 IR 441; [2013] FCAFC 160; BC201315966 at [120], the State of Victoria argued that: … the reference to independent contractors in s 342 should be taken to be a reference only to such contractors who might be seen as analogous to employees — ie individuals (perhaps partnerships also) who offered their labour directly, rather than “a large organisation with many employees” such as Lend Lease. The Court held at [120], [12] that: In our view, this argument has no substance. First, no such limitation is expressed in, or arises naturally from, the text. Secondly, in referring to independent contractors and their employees in items 3 and 4 of the table in s 342, the statutory text itself indicates that the organisational arrangements of “employees” may differ, significantly, from those of “independent contractors”; and that there is no limitation, express or implied, on the “size” of the independent contractor and/or the number of employees employed by that contractor. This is consistent with a reading of the expression “independent contractor” as applying to independent contractors such as Lend Lease. Thirdly, the protections given by s 340 are clearly intended to extend to the conduct of all parties to workplace agreements, including employers who are independent contractors. We see no reason why

the conduct of a person who offers a contract for the provision of services to a large corporate independent contractor, and then refuses to engage the independent contractor unless the employees of that contractor are adversely affected in some way, should be regarded as exempt from the operation of s 340. [page 487] [7-1790.40] Industrial Association — s 342(1) See s 12. [7-1790.45] Injures an employee in employment — s 342(1) This paragraph covers injury of any compensable kind: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; 153 ALR 643; 79 IR 339; [1998] HCA 30; BC9801511 at [4]. Injury in employment includes deprivation of one of the more immediate practical incidents of employment such as loss of pay or reduction in rank: see Childs v Metropolitan Transport Trust (1981) IAS Current Review 946. In Squires v Flight Stewards Association of Australia (1982) 2 IR 155 the words “injure in his employment” were found to be of wide import. They refer not only to financial injury or injury involving the deprivation of rights which the employee has under a contract of service, but are also applicable to any circumstances where an employee in the course of his or her employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be seen injurious or prejudicial: Squires v Flight Stewards Association of Australia (1982) 2 IR 155: at 164. See the cases referred to in Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34; 165 ALR 67; [1999] FCA 899; BC9903707 at [225]–[233]. Denying a pay increase to employees because they were members of a trade union was to injure them in their employment: see Health Services Union of Australia v Tasmania (1996) 73 IR 140. For an employer to offer promotion to a limited number of positions within a workforce upon condition that the employees promoted sign an individual employment agreement could be regarded as injuring each employee or altering each employee’s position to his or her prejudice: see BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97; 171 ALR 680; 97 IR 266; [2000] FCA 430; BC200001614 at [44] (BHP Iron Ore) distinguishing United Fire Fighters Union v Country Fire Authority (IRC of Aust, North J, 24 December 1996). On the other hand, merely offering individual contracts to a workforce with improved conditions could not result in a contravention. There was some suggestion in BHP Iron Ore (see at [52]) that the employer had discriminated against award employees in calling them out and requiring them to work overtime and the full court said that if that had been established sufficiently they would have granted a limited interlocutory injunction until the hearing in relation to that conduct. Discriminatory act There must be a discriminatory act of the employer in singling out the employee concerned for exposure to detrimental consequences or exclusion from benefits or advantages such as promotion or the availability of congenial shifts or attractive overtime: see BHP Iron Ore at [48]. In that case the appellant made a general offer of improved terms and conditions to its workforce subject to each entering into an individual employment agreement under Western Australian legislation. A full court of the Federal Court held that that did not involve the requisite discriminatory singling out by the employer of any of its existing workforce. The apprehension by the members of the workforce who did not sign an individual contract that they would be discriminated against in the future by being required to work more overtime or be excluded from consideration for promotion or changes of shift to which they were as well qualified by experience or training as the employees who had signed the agreements, had not happened and the court was not prepared to grant an injunction on that ground alone. The full court pointed out however at [49]–[52] that any such injunction necessarily would be limited to restrain

any such conduct alone. See also Finance Sector Union v Commonwealth Bank of Australia (2000) 106 IR 139; [2000] FCA 1372; BC200005731 at [29]–[34]. In Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34; 165 ALR 67; 94 IR 244; [1999] FCA 899; BC9903707 a redundancy package, which included certain payments in addition to award entitlements, was offered to all employees in the relevant category and was stated to remain open while the Authority was involved in a restructuring program it had announced. The applicants argued that, because of employment conditions in the locality, accepting redundancy would result in their being unemployed or, if they found other employment, [page 488] it would be on worse terms and conditions and the redundancy payments would not make up for losses incurred for the balance of the employee’s working life. RD Nicholson J held at [244]: … I consider [the predecessor section] has the following effect in respect of voluntary redundancies: (1) An offer of voluntary redundancy is not a threat to injure an employee in his or her employment. It is an offer the employee may accept or reject. (2) Acceptance by an employee of payment of redundancy, a fortiori payment at an enhanced rate, is evidence of absence of injury in the employment to which the redundancy relates. (3) Once accepted by the employee, the redundancy takes effect and the employment ceases. There is therefore no relevant employment against which to measure any alleged injury arising from the redundancy. (4) Consequently, allegations of worse terms and conditions being inevitable on engagement in new employment are not relevant to alleged injury in the former employment. [The] section, even given its wide connotation, does not address employment as a general condition but is referable to the particular employment in which the injury is said to have occurred or been threatened. Compare Australasian Meat Industry Employees’ Union v R J Gilbertson (Queensland) Pty Ltd (Gray J, Federal Court of Australia, 8 December 1988) unreported, 15– 17. In Blair v Australian Motor Industries Ltd (1982) 61 FLR 283; 3 IR 176 it was held that the giving of a warning to a union official did not constitute an injury or alteration because nothing followed from the warning. However, in Kimpton v Minister for Education of Victoria (1996) 65 IR 317 the former Industrial Relations Court declined to dismiss an application for an interlocutory injunction to restrain the respondent from requiring participation in a disciplinary investigation holding that it was not hopeless or untenable to contend that such a requirement may amount to a relevant injury or prejudicial alteration. In the light of the distinctions made in Patrick Stevedores referred to above, it may be more appropriate to treat the case just mentioned as a possible example of an alteration of an employee’s position to that person’s prejudice. Compare, however, Police Federation of Australia v Nixon (2008) 168 FCR 340; 173 IR 132; [2008] FCA 467; BC200802636 at [18], [41]–[45]. [7-1790.50] Intention The simple statutory question for the purpose of identifying an “adverse action” is whether, in a given case, there is an action taken by an employer against an employee that in fact “alters the position of the employee to the employee’s prejudice”. It does not appear in the FW Act in s 340 or s 342 or elsewhere that there is any requirement for that action to have been “intentional”, at least in the sense that there was a subjective intention or mental element in the employer’s action to cause the result of alteration in the employee’s position to the employee’s prejudice, before “adverse action” as defined can be found.

To the extent that intention or mental element may be relevant, it will be during the second stage of the contravention assessment determination. At that stage, a court must determine whether an identified adverse action was taken “because of” one or other of the circumstances mentioned in s 340(1) or for engaging in industrial activity as defined by ss 346 and 347. In determining whether an adverse action was taken “because” of one or other of these reasons or with such intent, the actual intent or mental element of a respondent employer may and usually will become relevant. Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd (2011) 193 FCR 526; 205 IR 392; [2011] FCA 333; BC201101868 at [303]–[304]. [7-1790.55] Position — s 342(1) It is possible to read the word “position” in a narrow way merely as referable to the immediate incidents of day-to-day employment, but it should not necessarily be so circumscribed in meaning. The word “position” should be read rather to refer to a person’s employment position in all its attributes and that to find what those attributes are in any [page 489] particular case, you look at the terms of employment, the terms of the agreement in relation to the particular employment: Re Desmond William Childs v Metropolitan Transport Trust [1981] FCA 200. The word “position” directs attention to the place occupied by an employee within the workplace and the organisational structure established by the employer, as well as to her or his employment generally. It includes a loss of security of employment, and deterioration in the “advantages enjoyed by an employee”: Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; BC201500376 at [133]. [7-1790.56] Prejudice — s 342(1) The term “employee’s prejudice” must be looked at holistically. It must cover not just the aspects of remuneration or position but must also include the well-being, both mentally and physically, of the employee and personal considerations of that employee, including the wishes of that employee. If it were otherwise, an employer who, at the request of the employee, moves that employee to a position that en-tailed less work and the less remuneration, so as to fit in with the lifestyle of that employee, would commit an adverse action and be liable to penalties under the FW Act: Barnes v Hatch Associates Pty Ltd [2015] FCCA 3375; BC201512695 at [140]–[141]. See [7-1790.10]. [7-1790.60] Prospective employee — s 342(1) The sense in which that expression is used in ss 341 and 342 suggests that it refers to a person whom a second person, the prospective employer, is considering for employment. In particular it appears to presuppose that some form of application for employment has been made such that it would be possible for the prospective employer to contravene the FW Act by refusing to employ the prospective employee or by discriminating against him or her in the terms on which employment was offered. Further, and more generally, the expression implies a substantial degree of proximity such as to exclude persons who might yet apply for employment or be invited to consider employment with a particular employer but at the relevant time were not yet negotiating in relation to such a possibility: Vij v Cordina Chicken Farms Pty Ltd (2012) 265 FLR 365; [2012] FMCA 483; BC201204580 at [66]–[67]. [7-1790.65] Protected industrial action — s 342(4)(a) See s 12. [7-1790.70] Refuse to employ — s 342(1) In Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446; BC201302483, Bromberg J adopted the

reasoning of Ryan J in MUA v Burnie Corporation holding that: The phrase “refuse to employ” as found in the former s 298K(1) of the WR Act, was the subject of judicial consideration by Ryan J in Maritime Union of Australia v Burnie Port Corporation Pty Ltd [2000] FCA 1189; (2000) 101 IR 435 at 445–446. In that case, Ryan J considered whether a prospective employer had refused to employ a prospective employee because the prospective employee was entitled to the benefit of an industrial agreement. Ryan J determined that a refusal to employ had occurred when the prospective employer decided to employ two other applicants in preference to the prospective employee on whose behalf the claim was brought. In the context of a selection process, Ryan J considered that when a person is passed over for selection there is a refusal to employ. In coming to that view, Ryan J relied upon the judgment of Moore J in Fletcher v Fraser Corporation Australia Limited (1996) 70 IR 117 who at 121, concluded that the expression “refuse to employ” (which appeared in s 334(2) of the IR Act 1988) relates to a refusal by an employer to employ a person for a proscribed reason when employment would or might otherwise occur. The judgment of Ryan J was the subject of an appeal determined in Burnie Port Corporation Pty Ltd v Maritime Union of Australia [2000] FCA 1768; (2000) 104 FCR [page 490] 440. The appeal succeeded but on a different issue. On the issue of the prospective employer’s refusal to employ, Wilcox, Kiefel and Merkel JJ were not persuaded that Ryan J had erred in any respect (at [14]). [7-1790.75] Services offered by the independent contractor — s 342(1) The words of para (d) must be taken to encompass a refusal to make use of services offered by an independent contractor in the form of services provided by that contractor through a particular employee of, or subcontractor to, that contractor: Louka v Centrelink (2010) 204 IR 382; [2010] FWA 6827 at [9]. That conclusion was accepted in Construction, Forestry, Mining and Energy Union (CFMEU) v Victoria (2013) 302 ALR 1; [2013] FCA 445; BC201302482 at [163]. That decision was overturned by the Full Court in Victoria v Construction, Forestry, Mining and Energy Union (CFMEU) (2013) 218 FCR 172; [2013] FCAFC 160; BC201315966 although that particular conclusion was upheld at [120]. [7-1790.80] This Act — s 342(3)(a) See s 12. [7-1790.85] Outline of section On its face, the workplace rights protections apply to a very broad range of persons. However, the definition of adverse action in subcl 342(1) limits the action that will give rise to liability in relation to workplace rights to specified action taken by specified persons against other specified persons. What is adverse action in any particular case depends on the nature of the relationship between the relevant persons. The scope of the conduct captured by the concept of adverse action is based on conduct that is prohibited by the freedom of association, unlawful termination and other provisions in the Workplace Relations Act that have been incorporated into the General Protections: Explanatory Memorandum to the Fair Work Bill at [1384]. In McGarva v Enghouse Aus Pty Ltd (2014) 286 FLR 434; [2014] FCCA 1522; BC201405573 at [16], Driver FCCJ held that: [T]he reference to action authorised by or under law in s 342(3) should be read in a cumulative fashion. That is, the mere fact that action — in this case, relevantly, a dismissal — may be authorised

under s 352 of the Fair Work Act and the Regulations does not carry an implication for any claim under s 351. A dismissal may be authorised due to the period of absence but it may still constitute an unlawful dismissal under Commonwealth or state antidiscrimination legislation. *Editor’s note: Commentary to Alters and Injures an employee in employment by J L Trew QC LLB (Syd), Barrister. All other commentary by Ian Latham BA (Hons) LLB (ANU), Barrister.

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[7-1810]

Coercion

343 (1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or (b) exercise, or propose to exercise, a workplace right in a particular way. Note: This subsection is a civil remedy provision (see Part 4-1).

(2) Subsection (1) does not apply to protected industrial action. COMMENTARY TO SECTION 343*

Derivation ….

[7-1810.01] [page 491]

Civil remedy provision — s 343 Note …. Intent to coerce — s 343(1) …. Person — s 343(1) …. Protected industrial action — s 343(2) …. Threaten — s 343(1) …. Workplace right — s 343(a), (b) …. Outline of section ….

[7-1810.05] [7-1810.10] [7-1810.15] [7-1810.20] [7-1810.25] [7-1810.30] [7-1810.35]

[7-1810.01] Derivation The section is loosely derived from s 400 of the Workplace Relations Act 1996. [7-1810.05] Civil remedy provision — s 343 Note See s 12.

[7-1810.10] Intent to coerce — s 343(1) While not expressly defined in the Act, the meaning of “intent to coerce” has been considered extensively in the case law. In relation to the “state of mind of a body corporate” see s 793. “Coercion” is more than simple persuasion (Laing v Construction, Forestry, Mining and Energy Union [2005] FCA 765; BC200503937 at [55]) or incentive (National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114; 114 IR 20; [2002] FCA 441; BC200201567 at [115]), it demands a high degree of compulsion negating choice (at [103]), generally embodied by the threat to take away something possessed or an advantage that would otherwise be obtained (at [104]). Much of the case law considers coercion akin to duress, (Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16; 106 IR 158; [2000] FCA 1468; BC200006200 at [21]), Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221; 198 IR 143; [2010] FCA 770; BC201005117 at [64]. Ryan, Moore and Goldberg JJ in the Full Court of the Federal Court in Hanley v AMWU (2000) 100 FCR 530; 182 ALR 563; [2000] FCA 1188; BC200004922 held that conduct, other than “protected action” which is intended to prevent “free bargaining” would amount to coercive conduct and further that a predecessor of the section would be contravened even where the coercive conduct had several other purposes or objectives, at [45], “(i)t is … sufficient that the proscribed reason is a substantial or operative reason”, (see generally, General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605; 51 ALJR 235; BC7600115). See also Dorber v CFMEU (2005) 147 IR 173; [2005] FCA 1565; BC200509318 at [24]. Seven Network (Operations) Ltd v CEPU (2001) 109 FCR 378; 184 ALR 65; [2001] FCA 456; BC200101831 provides a succinct and well supported consideration of the authorities in this area. Merkel J at [41] distills the authorities to provide a two stage test: First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Second, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable … [which] must be considered in the context of the scheme of the Act and of the fact that, subject to the immunity in respect of protected industrial action under [former] s 170MT of the Act, many forms of industrial action are unlawful: see Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637; (1989) 95 ALR 211. It should be noted here that Ryan J questions the relevance of the term “illegitimate” in the above mentioned test at [89] in Laing v CFMEU [2005] FCA 765; BC200503937. Further, Weinberg J in National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114; 114 IR 20; [2002] FCA 441; BC200201567 doubted the applicability of the concept of “unconscionability” under the same test, due mainly to consideration of its equitable context, at [121]. [page 492] In Seven Network (Operations) Ltd v CEPU (2001) 109 FCR 378; 184 ALR 65; [2001] FCA 456; BC200101831 at [37], Merkel J at imports the further requirement that subject to the qualification of willful blindness, intent requires actual knowledge of the circumstances that made the conduct in question “coercive conduct”. If such actual knowledge can be shown, that person will be liable even where they establish a belief in the conduct’s legitimacy and lawfulness, at [35]. As a question of fact, the entire circumstances of the case will be evaluated to find coercive intent, rather than simply the events immediately preceding the conduct in question: Auspine Ltd v Construction, Forestry, Mining & Energy Union (2000) 97 IR 444; [2000] FCA 501; BC200001861 at [43].

The nub of s 343 is that it is not necessary to wait until the action takes its toll and has overborne the will of the target. An intention to negate choice will suffice, if the conduct is unlawful, illegitimate or unconscionable: Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72; BC201603927 at [180]. [I]t should not be accepted that it is necessary to establish that a person intended to act unlawfully etc. Nor would it be a defence to show that a person believed their action would be, or was, lawful: Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72; BC201603927 at [176]. [7-1810.15] Person — s 343(1) See the definition in s 2C of the Acts Interpretation Act 1901. In National Workforce Pty Ltd v Australian Manufacturing Workers’ Union [1998] 3 VR 265; (1997) 141 FLR 95; 76 IR 200; BC9705179 there was an inconclusive discussion about whether a “person” in the provision included an organisation of employees registered under the Act. The Victorian Court of Appeal did not find it necessary to resolve the issue. It was conceded by the applicant, and accepted by the court in Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) (2007) 160 IR 263; [2007] FCA 87; BC200700436 at [292] that a partnership could not be a person. [7-1810.20] Protected industrial action — s 343(2) See s 12 and s 408. [7-1810.25] Threaten — s 343(1) Speaking of the former s 298K, Finkelstein J held that “One meaning of the word ‘threaten’ is to menace or warn beforehand of an intention to inflict harm”: Community and Public Sector Union (CPSU) v Telstra Corp Ltd (2000) 99 IR 238; [2000] FCA 844; BC200003458 at [19]. A similar conclusion was reached in LHMU v Arnotts Biscuits Ltd (2010) 188 FCR 221; 198 IR 143; [2010] FCA 770; BC201005117 at [53] where Logan J held that “A ‘threat’ is ‘a declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course; menace’”. In Laing v CFMEU [2005] FCA 765; BC200503937, Ryan J said at [55] that “advising”, “querying” and “enquiring” of various matters to or of the complainant did not constitute threats, but rather lay a foundation for imputing a certain state of mind. The threat must be communicated to the person threatened although this not need occur directly: Community and Public Sector Union (CPSU) v Telstra Corp Ltd (No 2) (2000) 101 FCR 45; [2000] FCA 872; BC200004445 at [15], Community and Public Sector Union (CPSU) v Telstra Corp Ltd (2000) 99 IR 238; [2000] FCA 844; BC200003458 at [19]. See also Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1; [2006] FCA 1441; BC200608906 at [20] for a summary of the authorities. A specific case example of where a threat may be found is Seven Network (Operations) Ltd v CEPU (2001) 109 FCR 378; 184 ALR 65; [2001] FCA 456 (26 April 2001); BC200101831 at [51] where Merkel J ruled that statements made in a radio interview that “industrial action hadn’t been ruled out” would in certain circumstances constitute a threat of industrial or other action, with the conditional nature of the statement bearing no relevance on the existence of the threat itself. [page 493] A third party may be threatened with industrial action (or other action) intended to coerce a target independent of the third party: Dorber v Construction, Forestry, Mining & Energy Union (2005) 147 IR 173; [2005] FCA 1565; BC200509318 at [23]. [7-1810.30] Workplace right — s 343(a), (b) See s 12 and s 341.

[7-1810.35] Outline of section The Explanatory Memorandum to the Fair Work Act states at [1391]– [1392] that s 343 is intended to prohibit any action (ie, not limited to adverse action) taken with intent to coerce another person, or a third person, in relation to the exercise (or not) of their workplace rights. The prohibition applies irrespective of whether the action taken to coerce the other person is effective or not. Subclause 343(1) is intended to cover s 400 of the WR Act which broadly dealt with coercion in agreement-making. However, the protection in subcl 343(1) is broader because it protects all workplace rights. * Commentary to intent to coercion by Jeff Shaw QC MLC BA LLB (Syd), Danielle King and J L Trew QC LLB (Syd), Barrister updated by Ian Latham BA (Hons) LLB (ANU), Barrister. All other commentary by Ian Latham BA (Hons) LLB (ANU), Barrister.

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[7-1830]

Undue influence or pressure

344 An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to: (a) make, or not make, an agreement or arrangement under the National Employment Standards; or (b) make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or (c) agree to, or terminate, an individual flexibility arrangement; or (d) accept a guarantee of annual earnings; or (e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work. Note 1: This section is a civil remedy provision (see Part 4-1). Note 2: This section can apply to decisions whether to consent to performing work on keeping in touch days (see subsection 79A(3)). [s 344 am Act 109 of 2012 s 3 and Sch 2, opn 23 July 2012]

[7-1850]

Misrepresentations

345 (1) A person must not knowingly or recklessly make a false or misleading representation about: (a) the workplace rights of another person; or (b) the exercise, or the effect of the exercise, of a workplace right by another person. Note: This subsection is a civil remedy provision (see Part 4-1).

(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it. COMMENTARY TO SECTION 345*

Derivation …. Civil remedy provision — s 345(1) Note …. False or misleading representation — s 345(1) …. Knowingly — s 345(1) ….

[7-1850.01] [7-1850.05] [7-1850.10] [7-1850.15]

[page 494]

Person — s 345(1), (a), (b), (2) …. Recklessly — s 345(1) …. Rely on it — s 345(2) …. Workplace right — s 345(a), (b) …. Outline of section ….

[7-1850.20] [7-1850.25] [7-1850.30] [7-1850.35] [7-1850.40]

[7-1850.01] Derivation Section 401 Workplace Relations Act. [7-1850.05] Civil remedy provision — s 345(1) Note See ss 12 and 539. [7-1850.10] False or misleading representation — s 345(1) See [20-3530.10]. [7-1850.15] Knowingly — s 345(1) See [8-5640.40]. [7-1850.20] Person — s 345(1), (a), (b), (2) See [7-1810.15]. [7-1850.25] Recklessly — s 345(1) See [20-3530.30]. [7-1850.30] Rely on it — s 345(2) The Explanatory Memorandum to the Fair Work Bill 2008 provides the following illustrative example at [1399]: Peter, Emma, Audrey and Annabelle attend a large end of year party hosted by their employer, Sunny Up Pty Ltd (Sunny Up). During the course of the festivities, the manager of Sunny Up is talking to a group of employees, including Peter, about the project the company is working on that has to be completed in a couple of weeks. Peter says that it’s a tight timeframe and it might not be achievable. The manager laughs and jokes that everyone’s sick leave entitlement will be suspended until the project is completed. The exception in subclause 345(2) applies in this case because the statement it was a joke delivered in a social context, meaning it would not be expected that Peter or the others would have relied on it as a true representation of what the employer intended to do. [7-1850.35] Workplace right — s 345(a), (b) See [7-1810.30]. [7-1850.40] Outline of section The Explanatory memorandum to the Fair Work Bill 2009 explains at [1398] that: Subclause 345(1) is intended to broadly cover existing section 401 of the WR Act which deals with false or misleading statements in relation to agreement-making. However, unlike section 401, the protection in subclause 345(1) does not have a causal element. It also extends to conduct beyond the making of an agreement to misrepresentations about all workplace rights. This means that liability does not depend on evidence that the statement ‘caused’ the person to whom the representation was made to act in a particular way. *Editor’s note: Commentary to s 345 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

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DIVISION 4 — INDUSTRIAL ACTIVITIES

[7-2040]

Protection

346 A person must not take adverse action against another person because the other person: (a) is or is not, or was or was not, an officer or member of an industrial association; or (b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or [page 495] (c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g). Note: This section is a civil remedy provision (see Part 4-1). COMMENTARY TO SECTION 346*

Causal link …. Derivation …. Adverse action — s 346 …. Because — s 346 …. Civil remedy provision — s 346 Note …. Industrial association — s 346(a) …. Industrial activity — s 346(b) and (c) …. Officer — s 346(a) …. Person — s 346 …. Outline of section ….

[7-2040.01] [7-2040.05] [7-2040.10] [7-2040.15] [7-2040.20] [7-2040.25] [7-2040.30] [7-2040.35] [7-2040.40] [7-2040.45]

[7-2040.01] Causal link A causal link must be established between the adverse action (s 342) complained of and the matters referred to in s 346. There is a rebuttable presumption in s 361 that adverse action is taken for a prohibited reason if the prohibited reason is one of the reasons such action was taken (and is therefore causative). However if that causal link is not established (or is rebutted) on the balance of probabilities, any proceedings brought pursuant to s 346 will fail. In the case of Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] 191 FCR 212; (2011) 274 ALR 570; 203 IR 312; [2011] FCAFC 14; BC201100341 at [28], the majority of the Full Court of the Federal Court of Australia held that in determining the question of whether adverse action took place “because” of certain circumstances, it was necessary to determine the

“real reason” and that the “search is for what actuated the conduct of the person”. As such, although the state of mind of the relevant person/s at the time of taking the adverse action is centrally relevant it is not decisive. [7-2040.05] Derivation The section is loosely derived from ss 792 and 793 of the Workplace Relations Act 2006. [P]rovisions analogous to s 346(a), prohibiting an employer from taking adverse action against an employee because he or she is an officer or member of an industrial association, have existed in federal industrial relations legislation in Australia since the enactment of the Conciliation and Arbitration Act 1904 (Cth): Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647; 86 ALJR 1044; [2012] HCA 32; BC201206652 at [46]. See generally Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647; 86 ALJR 1044; [2012] HCA 32; BC201206652 at [46]–[52], [73]–[92] (Barclay) for a history of the section and at [53]–[59] for a summary of the authorities. [7-2040.10] Adverse action — s 346 See s 342. [7-2040.15] Because — s 346 The application of s 346 turns on the term “because”. This term is not defined. The term is not unique to s 346. It appears in s 340 (regarding workplace rights), s 351 (regarding discrimination), s 352 (regarding temporary absence in relation to illness or injury) and s 354 (regarding coverage by particular instruments, including provisions of the National Employment Standards). The use in s 346(b) of the term “because” in the expression “because the other person engages … in industrial activity”, invites attention to the reasons why the decision-maker so acted. [page 496] Section 360 stipulates that, for the purposes of provisions including s 346, whilst there may be multiple reasons for a particular action “a person takes action for a particular reason if the reasons for the action include that reason”. These provisions presented an issue of fact for decision by the primary judge: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; 290 ALR 647; [2012] HCA 32; BC201206652 at [100]–[101] per Gummow and Hayne JJ. See also [7-2850.30]. [7-2040.20] Civil remedy provision — s 346 Note See ss 12 and 539(1) and (3). [7-2040.25] Industrial association — s 346(a) See s 12. [7-2040.30] Industrial activity — s 346(b) and (c) See s 347. [7-2040.35] Officer — s 346(a) See s 12. [7-2040.40] Person — s 346 See [7-1810.15]. [7-2040.45] Outline of section The section was discussed in some detail in Barclay. In that case, French and Crennan held at [60]–[63] that: … it is erroneous to treat the onus imposed on an employer by s 361 as being made heavier (or rendered impossible to discharge) because an employee affected by adverse action happens to be an officer of an industrial association. Further, the history of the relevant legislative provisions reveals

no reason why the onus must now be different if adverse action is taken while an employee engages in industrial activity — like a person who happens to be an officer of an industrial association, a person who happens to be engaged in industrial activity should not have an advantage not enjoyed by other workers… Secondly, it is a related error to treat an employee’s union position and activity as necessarily being a factor which must have something to do with adverse action, or which can never be dissociated from adverse action. It is a misunderstanding of, and contrary to, Bowling to require that the establishment of the reason for adverse action must be entirely dissociated from an employee’s union position or activities. Such reasoning effectively institutes an interpretation of the relevant provisions indistinguishable from that of Isaacs J in Pearce, which was rejected in Bowling. The onus of proving that an employee’s union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence. Thirdly, it is appropriate for a decision-maker to give positive evidence comparing the position of the employee affected by the adverse action with that of an employee who has no union involvement. That theme was developed further in BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132. In that case, Flick J held at [110], Dowsett J at [1] agreeing that: It has never been the case that an employer has been prevented, by federal industrial legislation, from taking prejudicial action against an employee who happened to be a union member or a union official: Cuevas v Freeman Motors Ltd (1975) 25 FLR 67 at 78 per Smithers and Evatt JJ. A union official, it has long been recognised, is “given no immunity from normal constraints of behaviour, nor any licence to act in a manner which would not be tolerated in another employee”: Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union v Australian Health and Nutrition Association Ltd [2003] FCA 590 at [3]; 147 IR 380 at 381 per Gyles J; Cicciarelli v Qantas Airways Ltd [2012] FCA 56 at [260] per Kenny J. The fact that an employee may be a union member or representative and “thus possibly having a greater potential to be troublemaker, does not confer on that employee an [page 497] immunity from dismissal by reason of the circumstance that he is a delegate of an organisation”: Hyde v Chrysler (Australia) Ltd [1977] FCA 20; (1977) 30 FLR 318 at 332 per Northrop J. Nor has it ever been the case that an employer has been prevented, by federal industrial legislation, from taking prejudicial against an employee because the conduct of the employee may objectively (and correctly) be characterised as conduct that falls within s 347. That which must always be established to attract the protection afforded by the Fair Work Act is the causal connection between such conduct and the taking of the “adverse action”. To fall within the protection afforded by s 346, it is necessary to establish — with the benefit of ss 360 and 361 — that “adverse action” has been taken “because” (for example) the employee engaged in “industrial activity”. *Editor’s note: Commentary to [7-2040.01] by Erik Young, Barrister. All other commentary by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[7-2060]

Meaning of engages in industrial activity

347 A person engages in industrial activity if the person: (a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or (b) does, or does not: (i) become involved in establishing an industrial association; or (ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or (iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or (iv) comply with a lawful request made by, or requirement of, an industrial association; or (v) represent or advance the views, claims or interests of an industrial association; or (vi) pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or (vii) seek to be represented by an industrial association; or (c) organises or promotes an unlawful activity for, or on behalf of, an industrial association; or (d) encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or (e) complies with an unlawful request made by, or requirement of, an industrial association; or (f) takes part in industrial action; or (g) makes a payment: (i) that, because of Division 9 of Part 3-3 (which deals with payments relating to periods of industrial action), an employer must not pay; or (ii) to which an employee is not entitled because of that Division.

[7-2080]

Coercion

348 A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity. Note: This section is a civil remedy provision (see Part 4-1).

[page 498] COMMENTARY TO SECTION 348*

Derivation …. Civil remedy provision — s 348 Note …. Industrial activity — s 348 …. Intent to coerce — s 348 …. Person — s 348 …. Threaten — s 348 …. Outline of section ….

[7-2080.01] [7-2080.05] [7-2080.10] [7-2080.15] [7-2080.20] [7-2080.25] [7-2080.30]

[7-2080.01] Derivation The section is loosely derived from s 789 of the Workplace Relations Act. [7-2080.05] Civil remedy provision — s 348 Note See ss 12 and 539(1) and (3). [7-2080.10] Industrial activity — s 348 See s 347. [7-2080.15] Intent to coerce — s 348 In Fair Work Ombudsman v Maritime Union of Australia (2014) 243 IR 312; [2014] FCA 440; BC201403217 at [300], Siopsis J gave the term the same meaning as in s 343. See [7-1810.10]. He held that: … the law in relation to the meaning of conduct which was undertaken with intent to coerce as used in s 343 of the Fair Work Act, was settled. The first element required that the impugned person have the intent to negate choice and the second element required that the conduct be illegitimate, unconscionable or unlawful. A respondent will only be found to have contravened ss 348 and 355 if he or she is shown to have intended to coerce another person. Section 361 raises a presumption that a person has acted with a particular alleged intention “unless the person proves otherwise.” That presumption is not easily displaced. Normally, it will require direct testimony from the actor which is accepted by the Court if the onus is to be discharged: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225; BC201501599 at [264]. [7-2080.20] Person — s 348 See [7-1810.15]. [7-2080.25] Threaten — s 348 See [7-1810.25]. [7-2080.30] Outline of section Paragraph 1409 of the Explanatory Memorandum to the Fair Work Bill

2009 states that: Clause 348 (read with paragraph 347(a)) prohibits a person from organising or taking, or threatening to organise or take, any action against another person with intent to coerce that person or a third person to become, or not become, or remain or cease to be, an officer or member of an industrial association. This would cover, for instance, an industrial association organising industrial action against an employer with intent to coerce the employer, or an employee of the employer, to become a member of the industrial association. *Editors’ note: Commentary to s 348 by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[7-2100]

Misrepresentations

349 (1) A person must not knowingly or recklessly make a false or misleading representation about either of the following: (a) another person’s obligation to engage in industrial activity; [page 499] (b) another person’s obligation to disclose whether he or she, or a third person: (i) is or is not, or was or was not, an officer or member of an industrial association; or (ii) is or is not engaging, or has or has not engaged, in industrial activity. Note: This subsection is a civil remedy provision (see Part 4-1).

(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it. COMMENTARY TO SECTION 349*

Derivation …. Civil remedy provision — s 349 …. Industrial activity — s 349(1)(a), (b)(ii) …. Industrial association — s 349(1)(a), (b)(i) …. Misleading — s 349(1) ….

[7-2100.01] [7-2100.05] [7-2100.10] [7-2100.15] [7-2100.20]

Person — s 349 …. Reckless — s 349 …. Outline of section ….

[7-2100.25] [7-2100.30] [7-2100.35]

[7-2100.01] Derivation The section is loosely derived from s 790 of the Workplace Relations Act 1995. [7-2100.05] Civil remedy provision — s 349 See ss 12 and 539(1) and (3). [7-2100.10] Industrial activity — s 349(1)(a), (b)(ii) See s 347. [7-2100.15] Industrial association — s 349(1)(a), (b)(i) See s 12. [7-2100.20] Misleading — s 349(1) A representation is misleading if it has a tendency to lead a person into error … Of course, it is possible that a half-truth or an ambiguous remark or even silence may have this tendency … But the words in the documents must be read in context … [i]t is obvious that where the conduct complained of consists of words it would not be right to select some words only and to ignore others which provided the context which gave meaning to the particular words: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; 147 ALD 528; [2015] FCAFC 25; BC201501196 at [159]. [7-2100.25] Person — s 349 See [7-1810.15]. [7-2100.30] Reckless — s 349 See [7-2600.35]. [7-2100.35] Outline of section The Explanatory Memorandum to the Fair Work Bill 2009 at para 1410 explains that: Subclause 349(1) (read with paragraph 347(a)) prohibits a person from knowingly or recklessly (ie, not caring whether it is true or false) making a false or misleading representation about another person’s obligation to: become, or not become, or remain or cease to be, an officer or member of an industrial association; disclose whether she or he, or a third person, is or is not, an officer or member of an industrial association; or disclose whether she or he, or a third person, is or is not, an officer or member of an industrial association, or is becoming, or not becoming, or remaining or ceasing to be, an officer or member of an industrial association. *Editor’s note: Commentary to s 349 by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________ [page 500]

[7-2120]

Inducements — membership action

350 (1) An employer must not induce an employee to take, or propose to take, membership action. Note: This subsection is a civil remedy provision (see Part 4-1).

(2) A person who has entered into a contract for services with an independent contractor must not induce the independent contractor to take, or propose to take, membership action. Note: This subsection is a civil remedy provision (see Part 4-1).

(3) A person takes membership action if the person becomes, does not become, remains or ceases to be, an officer or member of an industrial association.

DIVISION 5 — OTHER PROTECTIONS

[7-2310]

Discrimination

351 (1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Note: This subsection is a civil remedy provision (see Part 4-1). [subs (1) am Act 98 of 2013 s 3 and Sch 1 item 63E, opn 1 Aug 2013]

(2) However, subsection (1) does not apply to action that is: (a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or (b) taken because of the inherent requirements of the particular position concerned; or (c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed — taken: (i) in good faith; and (ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3) Each of the following is an anti-discrimination law: (aa) the Age Discrimination Act 2004; (ab) the Disability Discrimination Act 1992; (ac) the Racial Discrimination Act 1975; (ad) the Sex Discrimination Act 1984; (a) the Anti-Discrimination Act 1977 of New South Wales; (b) the Equal Opportunity Act 2010 of Victoria; (c) the Anti-Discrimination Act 1991 of Queensland; (d) the Equal Opportunity Act 1984 of Western Australia; (e) the Equal Opportunity Act 1984 of South Australia; (f) the Anti-Discrimination Act 1998 of Tasmania; (g) the Discrimination Act 1991 of the Australian Capital Territory; (h) the Anti-Discrimination Act of the Northern Territory. [subs (3) am Act 136 of 2012 s 3 and Sch 1 item 123, opn 1 Aug 2011]

[page 501] COMMENTARY TO SECTION 351*

Derivation …. Adverse action — s 351(1) …. Civil Remedy provision — s 351 Note …. Does not apply — s 351(2) …. Disability …. Inherent requirements — s 351(2)(b) …. In accordance with the doctrines — s 351(2)(c) …. Not unlawful — s 351(2)(a) …. Politicial opinion — s 351(1) …. Outline of section …. Causal link …. [7-2310.01] Derivation Section 659 of the Workplace Relations Act 1996. [7-2310.05] Adverse action — s 351(1) See s 342.

[7-2310.01] [7-2310.05] [7-2310.10] [7-2310.15] [7-2310.20] [7-2310.25] [7-2310.30] [7-2310.35] [7-2310.37] [7-2310.40] [7-2310.45]

[7-2310.10] Civil Remedy provision — s 351 Note See s 12. [7-2310.15] Does not apply — s 351(2) The exceptions in subparas 351(2)(b) and (c) broadly cover the existing exceptions in s 659 of the WR Act. See the Explanatory Memorandum to the Fair Work Act 2009 at [1428]. [7-2310.20] Disability The word “disability” should be understood to refer to particular physical or mental weakness or incapacity and to include a condition which limits a person’s movements, activities or senses. Importantly, however, while physical or mental limitations may be a disability or an aspect of a disability, their practical consequences, such as absence from work, are not. This distinction is significant when a party is required to identify the disability said to be the reason of adverse action alleged to have been taken against them. Allegations that adverse action has been taken because of a person’s disability should be made and particularised clearly: Hodkinson v Commonwealth (2011) 248 FLR 409; 207 IR 129; [2011] FMCA 171; BC201101612 at [146]–[147] (31 March 2011). The section does not prohibit “discrimination” as such but, rather, identifies conduct which is generally considered to be discriminatory. It is by demonstrating the occurrence of adverse action and the fact that it was motivated for a reason prohibited by s 351(1), such as a person’s disability, that a contravention is proved. The criteria found in s 351(1) rely in no way on the Disability Discrimination Act: Hodkinson v Commonwealth (2011) 248 FLR 409; 207 IR 129; [2011] FMCA 171; BC201101612 at [140] (31 March 2011). [7-2310.25] Inherent requirements — s 351(2)(b) The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer’s undertaking and, except where the employer’s undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation: Qantas Airways Ltd v Christie (1998) 193 CLR 280; 152 ALR 365; [1998] HCA 18; BC9800685 at [1] (19 March 1998). “A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with”: Christie at [36]. See also X v Commonwealth (1999) 200 CLR 177; 167 ALR 529; [1999] HCA 63; BC9907850 at [31] and [102] (2 December 1999). [page 502] [7-2310.30] In accordance with the doctrines — s 351(2)(c) Speaking of a predecessor section Madgwick J held that, “Those subsections deal with conflicting values: on the one hand, an individual’s right to employment secure from termination on grounds which offend notions of human rights; and on the other, effective freedom of religious belief and practice. The section … expressed Parliament’s intention that, in such a conflict, respect should be given to the interests of the adherents of a religion by permitting their religious institution to give effect (to the extent indicated by the section) to religious and some other reasons for terminating employment, although generally there was to be a blanket denial to other employers of such reasons”: Kerry Anne Hozack v Church of Jesus Christ of Latter-Day Saints [1997] FCA 1300 (27 November 1997). [7-2310.35] Not unlawful — s 351(2)(a) The exception in subpara 351(2)(a) ensures that action authorised by or under a state or territory anti-discrimination law (defined in s 351(3)) is not adverse action under s 351(1). This would occur, for example, where the action is exempt from being discrimination because it was taken to protect the health and safety of people at a workplace (see the relevant exemption in s 108 of the Anti-Discrimination Act 1991 (Qld)): Explanatory Memorandum to

the Fair Work Bill 2009 at [1429]. [7-2310.37] Politicial opinion — s 351(1) Recognising that it may be difficult to draw outer limits around the concept of “political opinion” (as many of the refugee cases dealing with opposition to corrupt government activities highlight…), there is no doubt at all that membership of a political party, and engaging in activities associated with a political party, is one of the clearest examples of the holding and manifestation of a political opinion, such membership and involvement being one of the quintessential ways in which people seek to bring about change to governments, and to government policies and priorities: … At its simplest that is because the nature and existence of political parties is closely connected to advocacy for changes in government, and the formulation of government policies: Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; BC201500376 at [172]. [7-2310.40] Outline of section Section 351 protects an employee or prospective employee from workplace discrimination. It is intended to broadly cover subpara 659(2)(f) of the WR Act, which makes it unlawful to dismiss an employee for discriminatory reasons. However, the protection in s 351 has been expanded to prohibit any adverse action (as defined in s 342(1)) on discriminatory grounds. See the Explanatory Memorandum to the Fair Work Bill 2009 at [1424]. The section is not limited to what is called direct discrimination. In Klein v Metropolitan Fire and Emergency Services Board [2012] 208 FCR 178; [2012] FCA 1402; BC201209949 at [102], Gordon J held that: There is nothing in the language of Pt 3-1 of the FW Act that would support limiting “discrimination” for the purposes of Item 1(d) of the definition of “adverse action” in s 342 so as to exclude “facially neutral” or indirect discrimination of that kind. [7-2310.45] Causal link A causal link must be established between the adverse action (s 342) complained of and the matters referred to in s 351. There is a rebuttable presumption in s 361 that adverse action is taken for a prohibited reason if the prohibited reason is one of the reasons such action was taken (and is therefore causative). However, if that causal link is not established (or is rebutted) on the balance of probabilities, any proceedings brought pursuant to s 351 will fail. In the case of Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] 191 FCR 212; (2011) 274 ALR 570; 203 IR 312; [2011] FCAFC 14; BC201100341 at [28], the majority of the Full Court of the Federal Court of Australia held that in determining the question of whether adverse action took place “because” of certain circumstances, it was necessary to determine the “real reason” and that the “search is for what actuated the [page 503] conduct of the person”. As such, although the state of mind of the relevant person/s at the time of taking the adverse action is centrally relevant it is not decisive. By contrast, Stephens v Australian Postal Corporation [2011] FMCA 448; BC201105075 the applicant established that he was dismissed in contravention of his rights afforded to him under workplace rehabilitation legislation. Significantly, Smith FM held that when considering whether or not any discrimination occurred under s 351 of the Act, there is not imported into that provision any test involving a comparison with other employees except where the discrimination is under s 342(1) Item 1(d) — discrimination between employees. *Editor’s note: Commentary to “Causal link” by Joe Catanzariti, Partner, Clayton Utz and Michael

Byrnes, Special Counsel, Clayton Utz. All other commentary prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________

[7-2330]

Temporary absence — illness or injury

352 An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. Note: This section is a civil remedy provision (see Part 4-1). COMMENTARY TO SECTION 352*

Derivation …. History …. Dismissed — s 352 …. Employee — s 352 …. Employer — s 352 …. Civil remedy provision — Note …. Prescribed by the regulations — s 352 …. Outline of section ….

[7-2330.1] [7-2330.5] [7-2330.10] [7-2330.15] [7-2330.20] [7-2330.25] [7-2330.30] [7-2330.35]

[7-2330.1] Derivation Section 659(2)(a) of the Workplace Relations Act 1996. [7-2330.5] History Section 659(2)(a) was derived from s 170CK(2)(a) of the Workplace Relations Act 1996. That amendment was made by No 60 of 1996. Section 170CK(2)(a) was in turn derived from s 170DF of the Industrial Relations Act 1988. That amendment was inserted by No 98 of 1993. The history of the section was examined in Lee v Hills Before & After School Care Pty Ltd (2007) 160 IR 440; [2007] FMCA 4; BC200700073 at [7] where Raphael FM held that: Section 659 of the Act is not the first iteration of this prohibition. It was found at s 170CK of the original 1996 Act in the same terms (s 170CK(2)(a)) and was first enacted in the same terms in s 170DF of the Industrial Relations Act 1988. Section 170DF was added by the Industrial Relations Reform Act 1993 which came into force upon assent on 22 December 1993. It would seem, however, that the real genesis of this subsection was the Termination of Employment Convention 1982 adopted at Geneva on 22 June 1982, and ratified by the Australian parliament on 26 February 1993, Article 6 of which states: 1. Temporary absence from work because of illness or injury shall not constitute a valid reason for termination. 2. The definition of what constitutes temporary absence from work, the extent to which medical certification shall be required and possible limitations to the application of paragraph 1 of this Article shall be determined in accordance with the methods of implementation referred to in Article 1 of this Convention.

See also Anna Chapman, “Protections in Relation to Dismissal: From the Workplace Relations Act to the Fair Work Act”(2009) 32(3) UNSW Law Journal 746. [page 504] [7-2330.10] Dismissed — s 352 See s 386 of the FW Act. [7-2330.15] Employee — s 352 See s 335 of the FW Act. [7-2330.20] Employer — s 352 See s 335 of the FW Act. [7-2330.25] Civil remedy provision — Note See s 539 of the FW Act. [7-2330.30] Prescribed by the regulations — s 352 See reg 3.01 of the Fair Work Regulations 2009. Regulation 3.01 is an exhaustive statement of the illnesses or injuries which will support a claim under s 352: Hodkinson v Commonwealth (2011) 248 FLR 409; [2011] FMCA 171; BC201101612 at [157]. Section 352 does not act as a fetter upon the powers set out in s 351. As Driver J held in McGarva v Enghouse Australia Pty Ltd [2014] FCCA 1522; BC201405573 at [16]: the mere fact that action — in this case, relevantly, a dismissal — may be authorised under s 352 of the Fiar Work Act and the Regulations does not carry an implication for any claim under s 351. A dismissal may be authorised due to the period of absence but it may still constitute an unlawful dismissal under Commonwealth or state anti-discrimination legislation. [7-2330.35] Outline of section The Explanatory Memorandum to the Fair Work Bill 2008 states at [1432] that the section prohibits an employer from dismissing an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. Section 361 applies in the same way to proceedings alleging contraventions of ss 351 or 352 as it does to those alleging contraventions of s 340: Hodkinson v Commonwealth (2011) 248 FLR 409; [2011] FMCA 171; BC201101612 at [127]. [T]he employee has the burden of proving: (a) that the employee was dismissed at the instance of the employer; (b) that at the time of dismissal the employee was temporarily absent from the workplace due to an illness or injury; and (c) the illness or injury is a prescribed kind of illness or injury of the kind detailed in relevant regulation: Sibert v Tiwi Islands Shire Council [2013] FCCA 745; BC201312682 at [27]. For an employer to act in breach of the provision, there must be an awareness that the absence was because of illness or injury, and the absence must be the reason for the termination. Or, to put it defensively, an employer will succeed in avoiding an adverse finding under the provision upon proving either that he or she did not know the reason for the absence or that he or she did not terminate the employment by reason of the absence: Sperandio v Lynch t/as Doctors of Northcote (2006) 160 IR 360; [2006] FCA 1648; BC200610055 at [91]. *Editor’s note: Commentary on s 352 by Ian Latham BA(Hons)/LLB (ANU).

____________________

[7-2350]

Bargaining services fees

353 (1) An industrial association, or an officer or member of an industrial association, must not: (a) demand; or (b) purport to demand; or (c) do anything that would: (i) have the effect of demanding; or (ii) purport to have the effect of demanding; [page 505] payment of a bargaining services fee. Note: This subsection is a civil remedy provision (see Part 4-1).

(2) A bargaining services fee is a fee (however described) payable: (a) to an industrial association; or (b) to someone in lieu of an industrial association; wholly or partly for the provision, or purported provision, of bargaining services, but does not include membership fees. (3) Bargaining services are services provided by, or on behalf of, an industrial association in relation to an enterprise agreement, or a proposed enterprise agreement (including in relation to bargaining for, or the making, approval, operation, variation or termination of, the enterprise agreement, or proposed enterprise agreement). Exception for fees payable under contract (4) Subsection (1) does not apply if the fee is payable to the industrial association under a contract for the provision of bargaining services.

[7-2370]

Coverage by particular instruments

354 (1) A person must not discriminate against an employer because: (a) employees of the employer are covered, or not covered, by:

(i) provisions of the National Employment Standards; or (ii) a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or (iii) an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation; or (b) it is proposed that employees of the employer be covered, or not be covered, by: (i) a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or (ii) an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation. Note: This subsection is a civil remedy provision (see Part 4-1).

(2) Subsection (1) does not apply to protected industrial action.

[7-2390] Coercion — allocation of duties etc to particular person 355 A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) employ, or not employ, a particular person; or (b) engage, or not engage, a particular independent contractor; or (c) allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or (d) designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities. Note: This section is a civil remedy provision (see Part 4-1).

[7-2410]

Objectionable terms

356 A term of a workplace instrument, or an agreement or arrangement

(whether written or unwritten), has no effect to the extent that it is an objectionable term. [page 506]

DIVISION 6 — SHAM ARRANGEMENTS

[7-2600] Misrepresenting employment as independent contracting arrangement 357 (1) A person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor. Note: This subsection is a civil remedy provision (see Part 4-1).

(2) Subsection (1) does not apply if the employer proves that, when the representation was made, the employer: (a) did not know; and (b) was not reckless as to whether; the contract was a contract of employment rather than a contract for services. COMMENTARY TO SECTION 357*

Derivation …. Civil Remedy provision — Note …. Did not know — s 357 …. Employer — s 357(1), (2) …. Contract of Employment — s 357(1), (2) …. Independent contractor — s 357(1)(b), (c) …. Proves …. Reckless …. Sham …. Outline of section ….

[7-2600.1] [7-2600.5] [7-2600.10] [7-2600.15] [7-2600.20] [7-2600.25] [7-2600.30] [7-2600.35] [7-2600.40] [7-2600.45]

[7-2600.1] Derivation Section 900 of the Workplace Relations Act 1996 (Cth). [7-2600.5] Civil Remedy provision — Note See s 12. [7-2600.10] Did not know — s 357 The relevant question for the court is whether the employer was aware at the time he engaged the persons as independent contractors, that they were employees? CFMEU v Nubrick Pty Ltd (2009) 190 IR 175 at 179; [2009] FMCA 981; BC200909137 (7 October 2009) at [20]. [7-2600.15] Employer — s 357(1), (2) See s 335. [7-2600.20] Contract of Employment — s 357(1), (2) The question of whether a worker is an employee or an independent contractor would continue to be determined by the common law: Explanatory Memorandum to the Independent Contractors Bill 2006, p 30, at [13]. [7-2600.25] Independent contractor — s 357(1)(b), (c) See s 12. [7-2600.30] Proves The onus to prove the defence in subs 900(2) would rest with the person who made the representation. This is a reversal of the burden of proof; the burden of proof normally rests with the person making the civil remedy application. The reason for this reversal is that the matter in subs 900(2) would be peculiarly within the knowledge of the defendant and would be significantly easier for the defendant to disprove than for the person making the application to prove. Because this is a civil penalty, the civil standard of proof applies; that is, [page 507] matters will need to be proved on the balance of probabilities: Explanatory Memorandum to the Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006 at [7]. [7-2600.35] Reckless “Recklessness” will take its common law meaning as the Commonwealth Criminal Code does not apply to the civil remedy provisions in the WR Act: Supplementary Explanatory Memorandum to the Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006 at [3]. A number of tests as to recklessness were described in CFMEU v Nubrick Pty Ltd (2009) 190 IR 175 at 178; [2009] FMCA 981; BC200909137 (7 October 2009) at [17]–[18] before his Honour settled on the test in R v Phillips [1971] ALR 740; (1971) 45 ALJR 467 that the person was “aware of the probability of the harmful consequences of his conduct but nevertheless pursued it”: at ALJR [20]. [7-2600.40] Sham In Sharrment Pty Ltd and Others v Official Trustee in Bankruptcy (1988) 18 FCR 449; 82 ALR 530 at 537, Lockhart J reviewed the authorities before describing a sham as follows: A “sham” is therefore, for the purposes of Australian law, something that is intended to be mistaken for something else or that is not really what it purports to be. It is a spurious imitation, a counterfeit, a disguise or a false front. It is not genuine or true, but something made in imitation of something else or made to appear to be something which it is not. It is something which is false or deceptive. [7-2600.45] Outline of section The then Minister stated that the government will not tolerate the use of sham arrangements and considers that people found to have knowingly disguised an employment relationship in this way should be subject to penalties: Commonwealth Parliamentary Debates, House of Representatives, 13 September 2006, p 9. The section has not been widely used. This may be

because it of the difficulties in imputing the requisite knowledge or recklessness to the employer. In a hearing on penalty, Gilmour J held that the establishment of unlawful sham contract arrangements is objectively serious. Sham contracting, by its nature, provides a company with an unfair advantage over its competitors in that the company’s operating expenses are unlawfully reduced, making it more competitive against its rivals and providing increased company revenue: Australian Building & Construction Commissioner v Inner Strength Steel Fixing Pty Ltd [2012] FCA 499; BC201203073 at [30]. *Editor’s note: Commentary to s 357 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[7-2620] Dismissing to engage as independent contractor 358 An employer must not dismiss, or threaten to dismiss, an individual who: (a) is an employee of the employer; and (b) performs particular work for the employer; in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services. Note: This section is a civil remedy provision (see Part 4-1).

[7-2640] Misrepresentation to engage as independent contractor 359 A person (the employer) that employs, or has at any time employed, an individual to perform particular work must not make a statement that the employer knows is false in order to persuade or influence the individual to enter into a contract for services under which the individual will perform, as an independent contractor, the same, or substantially the same, work for the employer. Note: This section is a civil remedy provision (see Part 4-1).

[page 508]

DIVISION 7 — ANCILLARY RULES

[7-2830]

Multiple reasons for action

360 For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

[7-2850] Reason for action to be presumed unless proved otherwise 361 (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. [subs (1) am Act 73 of 2013 s 3 and Sch 4A item 2, opn 1 Jan 2014]

(2) Subsection (1) does not apply in relation to orders for an interim injunction. COMMENTARY TO SECTION 361*

Derivation …. History …. Alleged — s 361(1)(a) …. Does not apply — s 361(2) …. Interim injunction — s 361(2) …. Person — s 361(1)(a) …. Practice and Procedure …. Proves otherwise — s 136(1) …. This Part — s 136(1)(a), (b) …. Outline of section ….

[7-2850.1] [7-2850.5] [7-2850.10] [7-2850.15] [7-2850.20] [7-2850.21] [7-2850.23] [7-2850.24] [7-2850.25] [7-2850.30]

[7-2850.1] Derivation Section 809 of the Workplace Relations Act. [7-2850.5] History See Barclay v Board of Bendigo Regional Institute of Technical and Further

Education (2010) 193 IR 251; [2010] FCA 284; BC201001699 at [18]–[31]. That decision reversed in Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 274 ALR 570; [2011] FCAFC 14; BC201100341 although not on this point. See also Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; BC201206652 at [73]–[92]. [7-2850.10] Alleged — s 361(1)(a) In circumstances where s 361 of the FWA imposes on the respondent a reverse onus of proof in relation to its motivation for taking adverse action, clarity in such allegations is essential: vide: Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 at 559-61, 566, 574–5; 113 ALD 1; [2010] HCA 1; BC201000230 at [31]–[37], [54], [74]–[75]. The motivation for adverse action said to be in contravention of the FWA must be clearly and specifically alleged and particularised: Fox v Stowe Australia Pty Ltd (2012) 271 FLR 372; [2012] FMCA 976; BC201208194 at [27]. [page 509] It is not, however, necessary to specifically plead the reverse onus. In Employment Advocate v National Union of Workers (2000) 173 ALR 479; 98 IR 302; [2000] FCA 710; BC200002796 at [84], Einfeld J held in relation to a predecessor section that: In my opinion there is no requirement to plead s 298v expressly in order to rely on its operation. The section is an evidential one, operational upon the sections in its Division once facts are alleged which bring an evidentiary provision such as this into operation: Australian Collieries’ Staff Association v BHP Coal Pty Ltd, citing North J in National Union of Workers v Davids Distribution Pty Ltd [1998] FCA 1530; BC9806398; Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd (2000) 100 IR 383; [2000] FCA 627; BC200002387 per Gray J at [27]. To my mind the relevant paragraphs of the amended statement of claim adequately allege that conduct was done for a particular reason, after which the Advocate is entitled to rely on the s 298v presumption. [7-2850.15] Does not apply — s 361(2) Until the introduction of the predecessor subsection, an applicant for interim orders could rely upon the reverse onus in arguing that there was a serious argument to be tried: National Union of Workers v Davids Distribution Pty Ltd [1998] FCA 1530; BC9806398. This subsection is apparently designed to prevent such course. The Explanatory Memorandum to Workplace Relations Amendment (Work Choices) Bill 2005 states the position somewhat differently stating that the amendment is intended to “address the problems that can arise from the interaction of the reverse onus with the “balance of convenience” test that applies to interim injunctions”: at [2616]. A similar limitation was examined in Police Federation of Australia v Nixon (2008) 168 FCR 340; 173 IR 32; [2008] FCA 467; BC200802636. In that case, His Honour Gray J held at [69] that: If the effect of s 809(23) [of the Workplace Relations Act] is to require an applicant to demonstrate, in the absence of any evidence at all from the respondent, a serious question to be tried as to each element of the cause of action, including the respondent’s reason or reasons for the impugned conduct, the applicant may suffer irreparable damage before he or she can be accorded a final trial at which, ex hypothesi, the presumption would enable the cause of action to be made out. I consider that such a restrictive and apparently unjust interpretation should only be given to a provision which occurs in what seems to be a beneficial or facultative legislative scheme if the language of the subsection intractably requires it. In my view, a construction more consonant with the statutory context and history and the preparatory material is that s 809(2) precludes the court from finding, on an application for an interim or interlocutory injunction, even provisionally, by recourse solely to the

presumption, that the respondent’s conduct was for a proscribed reason or for reasons that included a proscribed reason. However, I do not construe s 809(2) as preventing the court, in assessing whether there is a serious issue to be tried, from having regard to the availability of the presumption in the final determination of the application. Similarly, I consider that account can be taken of the ultimate availability of the presumption when assessing the respective strengths of the case for the applicant and that for the respondent as part of exercising the general discretion to grant or withhold interlocutory relief. This conclusion was agreed to by Greenwood J in Communications, Electrical, Electronic, Energy Information, Postal, Plumbing & Allied Services Union of Australia v Blue Star Pacific Pty Ltd 184 (2009) 184 IR 333; [2009] FCA 726; BC200905830 at [25] and by Logan J in Construction, Forestry, Mining and Energy Union v Downer EDI Engineering Power Pty Ltd [2012] FCA 661; BC201204491 at [12]. [7-2850.20] Interim injunction — s 361(2) See s 545. [7-2850.21] Person — s 361(1)(a) See s 2C Acts Interpretation Act 1901 (Cth). The section leads to some difficult distinctions where more than one person is involved in making the decision [page 510] to take adverse action. In those circumstances, whose decision is to be examined? Further, can the decision maker motivated by a prohibited reason insulate the decision making process by delegating the decision to another person? In National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139; [2013] FCA 451; BC201302485 at [26] and [28], Gray J stated: It is often the task of a court to make a finding as to the minds of which natural person or persons constitute the directing mind and will of a corporate body, for the purpose of determining the state of mind of that corporate body. Sometimes, the question is as to the knowledge of the corporate body … there is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advanced by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority. [7-2850.23] Practice and Procedure It might be seen as logical for the person who bears the onus to present its case first particularly if the evidence is to be given orally. That person might otherwise be unable to confront the evidence of the other party that was given in reply. An allegation as to unfairness to the applicant was dealt with by the Federal Court in Bahonko v Moorfields Community [2005] FCAFC 116; BC200504033. In that case at [18], the Full Federal Court held that: Miss Bahonko also submitted that she was disadvantaged in the conduct of the trial by having to give her evidence before the respondents gave their evidence. Under O 32 r 4(3), in a case of this kind, it is usual for the initiating party to present evidence before the evidence of the responding party or parties. There is no substance in this submission.

[7-2850.24] Proves otherwise — s 136(1) See [7-2850.30]. In Cai v Tiy Loy & Co Ltd [2015] FCCA 715; BC201501997 at [108]–[112], FCC Judge Manousaridis summarised the evidentiary burden upon the respondent in holding that: There are a number of aspects to an employer’s proving “otherwise”. First, the employer will ordinarily need to articulate the reason or reasons for which the employer claims he or she had taken the adverse action. It will not suffice, at least, not usually, for the employer simply to assert a negative, namely, that the employer did not take the adverse action because the employee had, or had exercised, an entitlement to a benefit under a workplace law… A second aspect of an employer’s proving “otherwise” is proving, on the balance of probabilities, that, when taking the adverse action against the employee, the employer had in mind the reasons the employer claims he or she had in mind. Where … the employer is a corporation, the employer must identify the person or persons whose knowledge constitutes the mind of the corporation for the purposes of the conduct that constitutes the adverse action, and the employer must prove, on the balance of probabilities, that person or those persons had in mind the reasons for which the employer claims it took the adverse action. How does an employer prove these matters? In most cases the employer, or, in the case of a corporation, the person or persons whose minds constitute the mind of the corporation for the purposes of the conduct that constitutes the adverse action, will give evidence of his or her recollection of the reason or reasons for which the employer claims the employer took the adverse action. That by itself, however, will rarely [page 511] be sufficient to prove the employer took the adverse action for the reason or reasons the employer recalls the employer took such action. Such evidence will need to be weighed according to a number of matters. These may include any one or more of the following: a) the inherent plausibility, coherence, and consistency of the employer’s evidence that the employer acted for the reason or reasons the employer says the employer acted; b) the completeness of the evidence that is adduced in support of the employer’s claim that the employer took the adverse action for the reason or reasons the employer claims the employer took the adverse action; c) where the reason the employer claims the employer took the adverse action included the employer’s believing a state of affairs existed or did not exist, whether there is evidence of the existence or non-existence of that state of affairs, or evidence of the reasonableness of the employer’s belief; d) whether there are contemporaneous documents that support the employer’s evidence that the employer took the adverse action for the reasons the employer claims the employer took that action; e) if there are no such documents, whether it is reasonable to expect that such documents would have been created if the employer took the adverse action for the reason the employer claims the employer took the adverse action; and f) whether there are other persons who were involved in the conduct that constituted the taking of adverse action, and, if so, whether they have given evidence which supports the evidence the employer gave of the reasons for which the employer took the adverse action.

A third aspect of an employer’s proving “otherwise” is that, because the employer bears the onus of proving the employer did not take the adverse action for a proscribed reason, the employer bears the evidentiary burden of proving so. That is, the employer must adduce evidence that is capable of grounding a reasonable inference that the employer took the adverse action for the reason or reasons the employer claims the employer took that action. If the employer does not adduce such evidence, the employer will not be able to prove “otherwise”. A fourth aspect of an employer’s proving “otherwise” is this. Where there is evidence that is capable of grounding a reasonable inference of a fact that is consistent with the employer’s having taken adverse action for the proscribed reason alleged by the employee, or that is inconsistent with the reason of reasons the employer claims the employer took the adverse action, the Court’s not being satisfied on the balance of probabilities that the inference should not be drawn is a matter that counts against the employer. That is, the Court’s not being satisfied on the balance of probabilities that the inference should not be drawn means that the possibility of that fact being true is a ground for not being satisfied that the employer has proved that the employer took the adverse action for the reason or reasons the employer claims. [7-2850.25] This Part — s 136(1)(a), (b) The Pt is 3-1 General Protections. [7-2850.30] Outline of section Section 361 reverses the onus of proof applicable to civil proceedings for a contravention of Pt 3-1. Generally a civil action places the onus on the complainant to establish on the balance of probabilities that the action complained of was carried out for a particular reason or with a particular intent. However, subs 361(1) provides that “once a complainant has alleged that a person’s actual or threatened action is motivated by a reason or intent that would contravene the relevant provision(s) of Pt 3-1, that person has to establish, on the balance of probabilities, that the conduct was not carried out unlawfully”: Explanatory Memorandum to the Fair Work Bill 2008 at paras 1459–1461. “The onus cast by s 361 on the person taking the adverse action means that, to succeed, that person has to establish that he or she was not actuated by the attributes or industrial activity which s 346 seeks to protect. As Mason J said in Bowling [General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605; 51 ALJR 235; BC7600115] at 617, that objective will not be achieved unless [page 512] the evidence establishes that the real reason for the adverse action lies outside the ambit of the provision — in this case s 346. The real reason or reasons for the taking of the adverse action must be shown to be “dissociated from the circumstances” that the aggrieved person has or had the s 346 attribute or has or had engaged in or proposes to engage in the s 346 industrial activity”: Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; 274 ALR 570; [2011] FCAFC 14; BC201100341 at [32]. The Full Court majority in Barclay held that the determination of those questions involves characterisation of the reason or reasons of the person who took the adverse action. The state of mind or subjective intention of that person will be centrally relevant, but it is not decisive. What is required is a determination of what Mason J in Bowling (at 617) called the “real reason” for the conduct. The real reason for a person’s conduct is not necessarily the reason that the person asserts, even where the person genuinely believes he or she was motivated by that reason. The search is for what actuated the conduct of the person, not for what the person thinks he or she was actuated by. In that regard, the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is

making and the attribute or activity in question. So much is evident from the use of the word “because”: at [28]–[29]. The High Court did not agree. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647; 86 ALJR 1044; [2012] HCA 32; BC201206652, the High Court overturned the Full Federal Court and sought further submissions on costs. In doing so, French CJ and Crennan J held at [44] that there “is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression ‘because’ in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains ‘why was the adverse action taken?’” See also [127] and [146]. A party seeking to rebut the presumption created by s 361(1) of the Fair Work Act that the action was taken for the reason, or with the intent, alleged by the opposite party, must grapple with the establishment of the negative proposition that the action was not taken for the alleged reason or with the alleged intent. Further, s 360 of the Fair Work Act recognises expressly that action may be taken for more than one reason. What the party seeking to rebut the presumption must do is to establish on the balance of probabilities that the alleged improper reason was not a reason for the taking of action. Generally (although as a matter of logic, not necessarily) the evidence as to the state of mind of the decision-maker or decision-makers will include evidence as to what are claimed to be the actual reasons for the decision. Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption: National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139; [2013] FCA 451; BC201302485 at [20]. The point was taken further in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 314 ALR 1; 88 ALJR 980; [2014] HCA 41; BC201408607. In that case, French CJ and Kieffel J held at [19] that: Section 346 does not direct a court to enquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act. It requires a determination of fact as to the reasons which motivated the person who took the adverse action. [page 513] That conclusion may require some difficult inquiries as to the categorisation of the reasons that motivated the decision maker. See generally Howell, The General Protections Provisions of the Fair Work Act 2009 — Some General Observations, Union Lawyers and Industrial Officers NSW Annual Labour Law Conference unpublished at [66]. Justice Jessup described the distinction in Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; BC201504767: [32] … As French CJ and Kiefel J made clear [in BHP Coal], if adverse action was taken because the conduct involved such a contravention, it did not become a breach of s 346 merely because the conduct was, at the same time, participation in industrial activity. The existence of such a “connection” was insufficient. What was necessary was that the actual reason of the decision-maker, in his or her own mind, be the employee’s participation in industrial activity…

There has been some doubt about whether such a provision means that the applicant does not have to provide any evidence beyond the assertions set out in the pleadings. Such process would be akin to the averment proceedings set out in Bridal Fashions Pty Ltd v Comptroller-General of Customs (1996) 17 WAR 499; 140 ALR 681; 135 FLR 100; BC9604856. See generally Jessup C, “The Onus of Proof in Proceedings under Part XA of the Workplace Relations Act 1996” (2002) 15 AJLL 198 and Latham I, “Enforcement of the Workplace Relations Act: The Use of Civil Penalties” (2004) 10(5) Employment Law Bulletin. Collier J rejected the averment process in favour of a shifting onus in Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22; 196 IR 241; [2010] FCA 399; BC201002546 at [9]–[10]; see also Hayward v Rohd Four Pty Ltd (2008) 221 FLR 91; 177 IR 212; [2008] FMCA 1490; BC200809957 at [34]; cf Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 274 ALR 570; 203 IR 312; [2011] FCAFC 14; BC201100341 per Lander J (in dissent) at [119]. The point was dealt with in Tattsbet Ltd v Morrow (2015) 321 ALR 305; [2015] FCAFC 62; BC201503629 at [119], [1], [140], at least in relation to the operation of s 340(1)(a). In that case, Jessup J held that: It has been treated as uncontroversial that the party making an allegation that adverse action was taken “because” of a particular circumstance needs to establish the existence of the circumstance as an objective fact… Section 361 of the Act provides that once an applicant alleges that a respondent took adverse action for a prohibited reason it is presumed, unless the respondent proves otherwise, that the alleged adverse action was taken for that prohibited reason. In such circumstances, it is imperative that an applicant clearly particularises the prohibited motivation for the adverse action in question: Beasley v Australian National University [2011] FMCA 792; BC201107993 at [10]. The party alleged to be in breach will “normally need to call evidence from the decision maker to explain what actuated him or her to act to the employee’s detriment”: Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251; [2010] FCA 284; BC201001699 at [35]. Normally “sworn evidence denying any such reason is necessary and, in most cases, an explanation of the real reason for dismissal … as a reason is, in a practical sense, also necessary”: Seymour v Saint-Gobain Abrasives Pty Ltd (2006) 161 IR 9; [2006] FCA 1452; BC200608972 at [29] per Buchanan J. In Moore v Slondia Nominees Pty Ltd [2012] FMCA 273; BC201201982, the FMC there considered the temporal proximity of the adverse action to the alleged reason at [78] along with whether the adverse action was an isolated event or part of a general strategy at [79]. The standard of proof is governed by s 140(2) of the Evidence Act which restates the judgment of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] ALR 334; (1938) 12 ALJR 100; BC3800027; Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 198 IR 143; 198 IR 143; [2010] FCA 770; BC201005117 at [13]. [page 514] “If the action that an employer took was not taken for one of the prohibited reasons, then the fact that the employer might have taken a different course of action which might have resulted in a more harmonious workplace is not to the point”: Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2011] FMCA 58; BC201100433 at [12]. Unlike the position of an employer who is alleged to have taken adverse action in contravention of s 346 of the Act, s 361 does not apply to claims against persons alleged to have been involved in such

contravention: Director, Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd [2014] FCCA 721; BC201402596 at [251]. *Editor’s note: Commentary to s 361 by Ian Latham BA(Hons) LLB (ANU), Barrister.

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[7-2870] Advising, encouraging, inciting or coercing action 362 (1) If: (a) for a particular reason (the first person’s reason), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and (b) the action, if taken by the second person for the first person’s reason, would contravene a provision of this Part; the first person is taken to have contravened the provision. (2) Subsection (1) does not limit section 550.

[7-2890]

Actions of industrial associations

363 (1) For the purposes of this Part, each of the following is taken to be action of an industrial association: (a) action taken by the committee of management of the industrial association; (b) action taken by an officer or agent of the industrial association acting in that capacity; (c) action taken by a member, or group of members, of the industrial association if the action is authorised by: (i) the rules of the industrial association; or (ii) the committee of management of the industrial association; or (iii) an officer or agent of the industrial association acting in that capacity; (d) action taken by a member of the industrial association who performs the function of dealing with an employer on behalf of the

member and other members of the industrial association, acting in that capacity; (e) if the industrial association is an unincorporated industrial association that does not have a committee of management — action taken by a member, or group of members, of the industrial association. (2) Paragraphs (1)(c) and (d) do not apply if: (a) the committee of management of the industrial association; or (b) a person authorised by the committee; or (c) an officer of the industrial association; has taken all reasonable steps to prevent the action. (3) If, for the purposes of this Part, it is necessary to establish the state of mind of an industrial association in relation to particular action, it is enough to show: (a) that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and (b) that the person, or a person in the group, had that state of mind. [page 515] (4) Subsections (1) to (3) have effect despite subsections 793(1) and (2) (which deal with liabilities of bodies corporate).

[7-2910]

Unincorporated industrial associations

364 Person includes unincorporated industrial association (1) For the purposes of this Part, a reference to a person includes a reference to an unincorporated industrial association. Liability for contraventions by unincorporated industrial associations (2) A contravention of this Part that would otherwise be committed by an unincorporated industrial association is taken to have been committed by each member, officer or agent of the industrial association who:

(a) took, or took part in, the relevant action; and (b) did so with the relevant state of mind.

DIVISION 8 — COMPLIANCE Subdivision A — Contraventions involving dismissal

[7-3100] Application for the FWC to deal with a dismissal dispute 365 If: (a) a person has been dismissed; and (b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute. [s 365 am Act 174 of 2012 s 3 and Sch 9 items 367, 368, opn 1 Jan 2013; Act 73 of 2013 s 3 and Sch 4A item 3, opn 1 Jan 2014] COMMENTARY TO SECTION 365*

Derivation …. Contravene – s 365(b) …. Dismissed – s 365(a), (b) …. Entitled to represent — s 365(a) …. FWC — s 365 …. Industrial Association — s 365(b) …. This Part — s 365 …. Outline of section ….

[7-3100.01] [7-3100.05] [7-3100.10] [7-3100.15] [7-3100.20] [7-3100.25] [7-3100.30] [7-3100.35]

[7-3100.01] Derivation The section is new. [7-3100.05] Contravene – s 365(b) See [5-3400.15]. [7-3100.10] Dismissed – s 365(a), (b) See s 386. There is some disagreement as to whether or not the FWC can conduct conciliation conferences with respect to general protections applications under s 365 without first determining that a dismissal had taken place: see s 587. This was explicitly recognised by Ryan C in Boyar v The

[page 516] House of Life [2011] FWA 7953; BC201171598 at [3], who determined that before a conciliation conference could properly be convened by the FWC it was first necessary to determine whether the jurisdictional fact of dismissal had in fact occurred (in that case, whether the applicant was an employee or not, and therefore was capable of being dismissed). This contrasted with the approach taken by Cribb C in Hansen v Apex Cleaning and Polishing Supplies Pty Ltd T/as Apex Cleaning Supplies [2011] FWA 1566; BC201170278, which found that a conciliation conference could be convened and issue a certificate if the dispute was not resolved. The issue was further discussed by Asbury C in Dean-Villalobos v QGC Ltd (2013) 229 IR 178; [2013] FWC 1537; BC201371374 at [53] who held that: Section 365, read as a whole, and in the context of the other provisions in Div 8 of Pt 3-1 simply requires that an applicant allege that he or she has been dismissed and that the dismissal contravenes Pt 3-1. The allegation is sufficient to establish a dispute in relation to a contravention involving dismissal. There is no requirement that the Commission is satisfied about either point before it conducts a conference. In my view the term “dispute” in s 365(1) of the Act is sufficiently wide to encompass a dispute about whether there has been a dismissal and whether the dismissal contravenes Pt 3-1. This is the case regardless of whether the term “dismissed” in s 365 of the Act has the meaning in s 386 or whether it carries its ordinary meaning, which in any event, requires some action on the part of the employer. [7-3100.15] Entitled to represent — s 365(a) See [5-970.240.25]. [7-3100.20] FWC — s 365 See s 12. [7-3100.25] Industrial Association — s 365(b) See s 12. [7-3100.30] This Part — s 365 This Part is Part 3.1. [7-3100.35] Outline of section In Mr Richard Darragh v Mr Seamus Nash; Mr Mark Dick [2015] FWC 436 at [32], Bull C held that: Persons alleging contraventions involving dismissal may make an application under s 365 of the Act for the Commission to deal with the dispute, and persons alleging disputes involving contraventions who are not entitled to make an application under s 365, may make an application under s 372 for the Commission to deal with such disputes. The distinction is whether the alleged contravention involves dismissal. While other adverse actions may be pleaded in a s 365 application, the alleged adverse action must include dismissal. *Editors’ note: Commentary to s 365 updated by Ian Latham BA (Hons)/LLB (ANU), Barrister.

____________________

[7-3120]

Time for application

366 (1) An application under section 365 must be made: (a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2). [subs (1) am Act 174 of 2012 s 3 and Sch 5 item 1, opn 1 Jan 2013; Act 174 of 2012 s 3 and Sch 9 item 369, opn 1 Jan 2013]

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) any action taken by the person to dispute the dismissal; and (c) prejudice to the employer (including prejudice caused by the delay); and (d) the merits of the application; and [page 517] (e) fairness as between the person and other persons in a like position. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 370, 371, opn 1 Jan 2013] COMMENTARY TO SECTION 366*

Derivation …. Days after — s 366(1)(a) …. Dismissal — s 366(1)(a), (2)(b) …. Exceptional circumstances — s 366 …. Fairness — s 366(2)(e) …. FWC — s 366(1)(b), (2) …. May allow — s 366(2) …. Merits of the application — s 366(d) …. Outline of section ….

[7-3120.01] [7-3120.02] [7-3120.05] [7-3120.10] [7-3120.15] [7-3120.20] [7-3120.25] [7-3120.30] [7-3120.35]

[7-3120.01] Derivation The section is new. [7-3120.02] Days after — s 366(1)(a) The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period: Shaw v Australia and New Zealand Banking Group Ltd T/A ANZ Bank [2015] FWCFB 287 at [12]. A termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated: Beverly Jean Burns v Aboriginal Legal Service of Western Australia (Inc) Dec 1413/00 M Print T3496 at [26]. Failure to provide proper notice does not act to extend the actual termination date: Kimpton v

Venarchie Asphalting Pty Ltd [2014] FWC 2175 at [43]. [7-3120.05] Dismissal — s 366(1)(a), (2)(b) See s 386. [7-3120.10] Exceptional circumstances — s 366 Lawler VP examined the phrase in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Servies Union of Australia v Australian Postal Corp (2007) 167 IR 4; [2007] AIRC 848, when dealing with s 463(5) of the Workplace Relations Act. In doing so, he quoted a decision of Rares J in Ho v Professional Services Review Committee No 295 [2007] FCA 388; BC200701900 with approval at [9]. That decision dealt with wording in the Health Insurance Act 1973 that the Vice President found was equally applicable to the use of that expression in s 463(5). In that case, Rares J held at [23]–[26] that: I am of opinion that the expression “exceptional circumstances” requires consideration of all the circumstances. In Griffiths v R (1989) 167 CLR 372 at 379; 87 ALR 392; 63 ALJR 585; 41 A Crim R 163 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances: Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the [page 518] power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397). And, in Baker v R (2004) 223 CLR 513 at 573; 210 ALR 1; [2004] HCA 45; BC200406383 at [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely: We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were

only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services. The Vice President went on to hold at [10] that: In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. That reasoning and conclusion was adopted by the Full Bench in relation to s 366 in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [13]. Acting on wrong information Generally speaking, acting on incorrect advice from a relevant government agency will constitute an exceptional circumstance: Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [26]. Ignorance “We can see no proper explanation for that period of delay of more than a month other than ignorance of the remedy and associated time limits. That is not an exceptional circumstance.”: Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [30]. [page 519] Lack of funds As was noted in Du v University of Ballarat (2011) 211 IR 382; [2011] FWAFB 5225; BC201170095 at [31], when considering a similar provision in the Act regarding the extension of time for unfair dismissal applications, it is not unusual for employees who had been dismissed to not be aware of the law and to be unable to pay for advice or afford legal costs: Raylene Reeve v Ramsay Health Care Ltd [2011] FWA 5349; BC201170908 at [18]. Representative error In Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347; [2011] FWA 2728; [2011] FWAFB 2728; BC201170122 at [25], the Full Bench held that: (i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged. (ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant. (iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it

would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged. (iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted. [7-3120.15] Fairness — s 366(2)(e) “It appears to be clear that s 366(2)(e) should be limited to a comparison of persons who have also had their employment terminated and are thus capable of lodging a s 365 application … if s 366(2)(e) allowed for a comparison to a person who had not been dismissed, then, as the Act imposes no time constraints on other applications under Part 3-1, that comparison would always produce comparative unfairness and it could hardly be seen to be indicative of whether there are exceptional circumstances for which a further period of time could be granted.”: Ballarat Truck Centre Pty Ltd v Kerr [2011] FWA 5645; [2011] FWAFB 5645 at [26]. That may not fully resolve the question. After a summary of the authorities, SDP Richards stated in Wilson v Woolworths [2010] FWA 2480 at [29] that It is not therefore entirely clear as to whether or not the so-called principle is operative in relation to the approach to matters of a similar kind that are currently before the court or the tribunal or whether the court or the tribunal is to consider how, in some general sense, similar matters have been approached historically. [7-3120.20] FWC — s 366(1)(b), (2) See the definition in s 12. [7-3120.25] May allow — s 366(2) “A finding that there are ‘exceptional circumstances’, taking into account the matters specified in s 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when ‘exceptional circumstances’ are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in s 366(2)(a)–(e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended” Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; [2011] FWA 975; [2011] FWAFB 975 at [15]. [7-3120.30] Merits of the application — s 366(d) “It would be sufficient for the applicant to establish that the substantive application was not without merit.” In circumstances where the allegations are contested and there is limited evidence as to the conduct, it is right not to undertake [page 520] a full hearing of evidence as to the merit of the application: Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347; [2011] FWA 2728; [2011] FWAFB 2728; BC201170122 at [27]. [7-3120.35] Outline of section The Explanatory Memorandum to the Fair Work Bill 2008 states at [1479]–[1480] that s 366(1) provides that an application must be made within 60 days of a dismissal taking effect. However, FWA has discretion to extend the timeframe for making an application if it is satisfied that there are exceptional circumstances. Subsection 366(2) provides an exhaustive list of the factors FWA must take into account when determining if there are exceptional circumstances. These factors are based on the principles set down by the Industrial Relations Court of Australia in BrodieHanns v MTV Publishing Ltd (1995) 67 IR 298 and are consistent with the approach taken to extension

of time applications in the WR Act. That description is difficult to reconcile with the statutory prescription in s 366. In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the statutory discretion was unconfined. At [299]–[230], Marshall J held that: 1. Special circumstances are not necessary but the court must be positively satisfied that the period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time. 3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time. 4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time. 5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time. 6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the court’s discretion. *Editors’ note: Commentary to s 366 prepared by Ian Latham BA (Hons)/LLB (ANU), Barrister.

____________________

[7-3140]

Application fees

367 (1) The application must be accompanied by any fee prescribed by the regulations. (2) The regulations may prescribe: (a) a fee for making an application to the FWC under section 365; and (b) a method for indexing the fee; and (c) the circumstances in which all or part of the fee may be waived or refunded. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 372, opn 1 Jan 2013]

[7-3160] Dealing with a dismissal dispute (other than by arbitration) 368 (1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).

Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.

(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3). Note: For conferences, see section 592.

[page 521] (3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then: (a) the FWC must issue a certificate to that effect; and (b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly. (4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part. [s 368 subst Act 73 of 2013 s 3 and Sch 4A item 4, opn 1 Jan 2014]

[7-3180] Dealing with a dismissal dispute by arbitration 369 (1) This section applies if: (a) the FWC issues a certificate under paragraph 368(3)(a) in relation to the dispute; and (b) the parties notify the FWC that they agree to the FWC arbitrating the dispute; and (c) the notification: (i) is given to the FWC within 14 days after the day the certificate

is issued, or within such period as the FWC allows on an application made during or after those 14 days; and (ii) complies with any requirements prescribed by the procedural rules; and (d) sections 726, 728, 729, 730, 731 and 732 do not apply. Note: Sections 726, 728, 729, 730, 731 and 732 prevent multiple applications or complaints of a kind referred to in those sections from being made in relation to the same dispute. A notification can only be made under this section where there is no such other application or complaint in relation to the dispute at the time the notification is made. Generally, once a notification is made no such application or complaint can be made in relation to the dispute (see section 727).

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders: (a) an order for reinstatement of the person; (b) an order for the payment of compensation to the person; (c) an order for payment of an amount to the person for remuneration lost; (d) an order to maintain the continuity of the person’s employment; (e) an order to maintain the period of the person’s continuous service with the employer. (3) A person to whom an order under subsection (2) applies must not contravene a term of the order. Note: This subsection is a civil remedy provision (see Part 4-1). [s 369 subst Act 73 of 2013 s 3 and Sch 4A item 4, opn 1 Jan 2014]

[7-3200]

Taking a dismissal dispute to court

370 A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless: (a) both of the following apply: [page 522] (i)

the FWC has issued a certificate under paragraph 368(3)(a) in

relation to the dispute; (ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or (b) the general protections court application includes an application for an interim injunction. Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728). Note 2: For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988. [s 370 subst Act 73 of 2013 s 3 and Sch 4A item 4, opn 1 Jan 2014] COMMENTARY TO SECTION 370*

Derivation …. Certificate — s 370(a)(i), (ii) …. Dispute — s 370, (a)(i), Note 1 …. FWC — s 370, (1), (a)(i), Note 1 …. General protections court application — s 370, (a)(ii), (b), Note 1 …. In relation to — s 370, (a)(i), Note 1 …. Interim Injunction — s 370(b) …. Must not make — s 370 …. Note — s 370 Note 2 …. Outline of section ….

[7-3200.05] [7-3200.10] [7-3200.15] [7-3200.20] [7-3200.25] [7-3200.27] [7-3200.30] [7-3200.35] [7-3200.37] [7-3200.40]

[7-3200.05] Derivation The section is derived from the now repealed s 371. That section was loosely derived from s 663(6) of the Workplace Relations Act 1996. [7-3200.10] Certificate — s 370(a)(i), (ii) See s 369. [7-3200.15] Dispute — s 370, (a)(i), Note 1 See s 365. The dispute referred to in s 365 is not defined elsewhere in the legislation. It is simply assumed to co-exist with a person’s dismissal allegedly in contravention of Pt 3-1. “The dispute” in s 365 may thus be characterised as a dispute concerning a person’s dismissal allegedly in contravention of Pt 3-1 … While in practice the dispute identified in s 365 may be elaborated by the applicant in the FWA application and by both parties in the context of the FWA process, including the FWA conference, the legislation does not, in terms, require such elaboration. Neither s 366 nor s 368 defines, identifies or describes “the dispute” differently from s 365, which does not expressly state or indicate that “the

dispute” is limited to the applicant’s substantive claims in the FWA application. If, however, “the dispute” … is limited to the applicant’s substantial claims in the FWA application, in my opinion, a general protections court application made “in relation to” that dispute could validly include new, additional or different claims from those in the FWA application, provided that the essential basis of the dispute in the FWA application remained: Shea v TruEnergy Services Pty Ltd (No 1) (2012) 204 FCR 456; 222 IR 156; [2012] FCA 628; BC201204201 at [55], [69], [70]. Compare Communications, Electricial, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services Pty Ltd (2011) 211 IR 250; [2011] FMCA 535; BC201105207 at [33]. [page 523] [7-3200.20] FWC — s 370, (1), (a)(i), Note 1 See s 12. [7-3200.25] General protections court application — s 370, (a)(ii), (b), Note 1 See ss 12 and 370(2). [7-3200.27] In relation to — s 370, (a)(i), Note 1 The broad terms “in relation to” … make clear that a technical or specific reading is not what was intended by the legislature, rather a purposive reading to ensure that proceedings are only commenced in the court if the employer and employee have been to conciliation at Fair Work Australia beforehand: Rutherford v Hausner (2011) 212 IR 343; [2011] FMCA 1033; BC201110277 at [20]. Moreover, the phrase “in relation to” indicates, in context, that there is no requirement for a strict nexus between the dispute as contained in the FWA application and the claims in the court application: Shea v TruEnergy Services Pty Ltd (No 1) (2012) 204 FCR 456; 222 IR 156; [2012] FCA 628; BC201204201 at [77] followed in Driesen v Edith Cowan University (2012) 269 FLR 422; 226 IR 452; [2012] FMCA 735; BC201207822. [7-3200.30] Interim Injunction — s 370(b) As to the principles for the granting of an interim injunction see Australian Municipal, Administrative, Clerical and Services Union v Shire of Mundaring (2011) 213 IR 293; [2011] FMCA 731; BC201107436 at [22]–[23] (23 September 2011). [7-3200.35] Must not make — s 370 See s 723. [7-3200.37] Note — s 370 Note 2 In Transport Workers Union v School Bus Contractors Pty Ltd (2011) 246 FLR 430; 201 IR 327; [2011] FMCA 28; BC201100321 at [35] Lucev FM set out the following reasons why the Note should not be considered part of the statute, or to bind a court to the application of the Brodie-Hanns principles: (a) the general discretion vested in a court by the language of s 371(2) of the FWAct, which is in very broad terms; (b) the s 371 Note itself merely points to the fact that in Brodie-Hanns, principles were set down with respect to legislation which was not identical, but merely “similarly worded”; and (c) that the intention of the Commonwealth Parliament was manifestly unlike that when it inserted the “Statutory Notes” in the Corporations Act referred to in Rich as part of the statute, where there was a clearly discernible intention to make the notes part of the statute. No such intention is discernible in this case, where Parliament expressed no view as to how the s 371 Note ought operate and where the s 371 Note itself offers no more than a comment or guide as to how a court might approach the exercise of the broad general discretion given by s 371(2) of the FW Act. The s 371 Note is not a “Statutory Note” of the “new breed” referred to in Rich. The s 371 Note is not only not a part of the FW Act, it also does not assist

in determining the meaning of s 371(2) of the FW Act, and nor could it because of the broad general discretion invested in a court by s 371(2) of the FW Act… However, while the Brodie-Hanns principles are not binding here and although the s 371 Note was found to not form part of the FW Act, the Brodie-Hanns principles have indeed been regularly applied by the Federal Magistrates Court of Australia, and do constitute a relevant guide to the criteria to be applied: Transport Workers Union v School Bus Contractors Pty Ltd (2011) 246 FLR 430; 201 IR 327; [2011] FMCA 28; BC201100321 at [37]. In Clarke v Service to Youth Council Inc [2013] FCA 1018; BC201313636 at [5], White J held that: This note appears to be in the nature of a useful reference by the Parliament, ie to assist readers in identifying matters which may bear on the exercise of a court’s discretion under the provision. Some authorities have addressed the question of whether the note forms part of the FWA at all (for example, Transport Workers Union v School Bus Contractors Pty Ltd (2011) [page 524] 246 FLR 430; 201 IR 327; [2011] FMCA 28; BC201100321). In my opinion, it is not necessary to consider that question for the purposes of the resolution of the present application. It is sufficient to treat the note as a reference to the kinds of considerations which may be relevant. His Honour went on to hold at [8]–[9] that: Generally, the longer the period from a termination, the more difficult reinstatement of employment will be. The relatively short limitation period of 14 days may be understood as a legislative recognition of that difficulty. The Parliament intends that applications under s 371 should be brought promptly so that the practical difficulties which an order for reinstatement can occasion may be minimised. In my opinion, this is an important consideration in relation to applications of the present kind. Accordingly, I proceed on the basis that it is for the applicant to satisfy the Court that an extension of time is appropriate. That onus is to be discharged in the context that the legislature has fixed a short limitation period. As to Brodie-Hanns see [7-3120.35]. [7-3200.40] Outline of section The Explanatory Memorandum to the Fair Work Amendment Bill 2013 at para 44 states that: New section 370 sets out the two circumstances in which a dismissed employee can make a general protections court application in relation to a dismissal. They are: if the FWC has issued a certificate under new paragraph 368(3)(a) in relation to the dispute and the court application is made within 14 days of the certificate being issued unless the court allows otherwise (paragraph 370(a)); or the court application includes an application for an interim injunction (paragraph 370(b)). This recognises that applicants may decide not to involve the FWC where urgent relief is sought and the allegations are particularly serious, the facts in dispute are particularly complex, or the employer is unlikely to agree to consent arbitration. *Editor’s note: Commentary to s 370 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[7-3220]

General protections court applications

371 [s 371 rep Act 73 of 2013 s 3 and Sch 4A item 4, opn 1 Jan 2014]

Subdivision B — Other contraventions

[7-3360] Application for the FWC to deal with a non-dismissal dispute 372 If: (a) a person alleges a contravention of this Part; and (b) the person is not entitled to apply to the FWC under section 365 for the FWC to deal with the dispute; the person may apply to the FWC under this section for the FWC to deal with the dispute. [s 372 am Act 174 of 2012 s 3 and Sch 9 items 381, 382, opn 1 Jan 2013; Act 73 of 2013 s 3 and Sch 4A item 5, opn 1 Jan 2014]

[7-3380]

Application fees

373 (1) The application must be accompanied by any fee prescribed by the regulations. [page 525] (2) The regulations may prescribe: (a) a fee for making an application to the FWC under section 372; and (b) a method for indexing the fee; and (c) the circumstances in which all or part of the fee may be waived or refunded. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 382, opn 1 Jan 2013]

[7-3400]

Conferences

374 (1) If: (a) an application is made under section 372; and (b) the parties to the dispute agree to participate; the FWC must conduct a conference to deal with the dispute. Note 1: For conferences, see section 592. Note 2: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 383, 384, opn 1 Jan 2013]

(2) Despite subsection 592(3), the FWC must conduct the conference in private. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 385, opn 1 Jan 2013]

[7-3420] Advice on general protections court application 375 If the FWC considers, taking into account all the materials before it, that a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly. [s 375 am Act 174 of 2012 s 3 and Sch 9 item 386, opn 1 Jan 2013]

Subdivision C — Appeals and costs orders [Subdiv C subst Act 73 of 2013 s 3 and Sch 4A item 6, opn 1 Jan 2014]

[7-3560]

Appeal rights

375A (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under subsection 369(2) (which is about arbitration of a dismissal dispute) unless the FWC considers that it is in the public interest to do so. (2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under subsection 369(2) can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[7-3580]

Costs orders against parties

375B (1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if: (a) an application for the FWC to deal with the dispute has been made under section 365; and (b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute. [page 526] (2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377. (3) This section does not limit the FWC’s power to order costs under section 611.

[7-3600] agents

Costs orders against lawyers and paid

376 (1) This section applies if: (a) an application for the FWC to deal with a dispute has been made under section 365 or 372; and (b) a person who is a party to the dispute has engaged a lawyer or paid agent (the representative) to represent the person in the dispute; and (c) under section 596, the person is required to seek the FWC’s permission to be represented by the representative. [subs (1) am Act 174 of 2013 Sch 9 Pt 1 Item 387, opn 1 Jan 2013]

(2) The FWC may make an order for costs against the representative for costs incurred by the other party to the dispute if the FWC is satisfied that the representative caused those costs to be incurred because: (a) the representative encouraged the person to start, continue or

respond to the dispute and it should have been reasonably apparent that the person had no reasonable prospect of success in the dispute; or (b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute. [subs (2) am Act 174 of 2012 Sch 9 Pt 1 Item 388, opn 1 Jan 2013]

(3) The FWC may make an order under this section only if the other party to the dispute has applied for it in accordance with section 377. [subs (3) am Act 174 of 2012 Sch 9 Pt 1 Item 389, opn 1 Jan 2013]

(4) This section does not limit the FWC’s power to order costs under section 611. [subs (4) am Act 174 of 2012 Sch 9 Pt 1 Item 390, opn 1 Jan 2013]

[7-3620]

Applications for costs orders

377 An application for an order for costs in relation to an application under section 365 or 372 must be made within 14 days after the FWC finishes dealing with the dispute. COMMENTARY TO SECTION 377*

History …. Dispute — s 377 …. Finishes dealing — s 377 …. FWA — s 377 …. Outline of section ….

[7-3580.01] [7-3580.05] [7-3580.10] [7-3580.15] [7-3580.20]

[7-3580.01] History The section is new. [7-3580.05] Dispute — s 377 The disputes referred to in s 365 and 372 are the allegation that the relevant person has been dismissed in contravention of the Part. [7-3580.10] Finishes dealing — s 377 The time limit would apply from the time that FWA finishes dealing with a dispute it is empowered to deal with under s 365 of the Act. See Randell v Ultimate Fire Protection Pty Ltd [2011] FWA 2124; BC201170466 at [13]. *Editors’ note: Commentary to s 377 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

[page 527]

[7-3580.15] FWA — s 377 See s 12. [7-3580.20] Outline of section The section sets a time limit on applications for costs, in relation to an application under Subdiv A or B, of 14 days after FWA has finished dealing with the dispute: Explanatory Memorandum to the Fair Work Bill at [1502]. Section 377 was not intended to provide, and does not provide, an additional power for FWA to award costs in relation to applications made under s 365 (Subdiv A) or s 372 (Subdiv B) in addition to those powers set out in ss 376 and 611: Khiani v Australian Bureau of Statistics [2010] FWA 375 at [14]. ____________________

[7-3640]

Schedule of costs

377A (1) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order under section 611, 375B or 376 in relation to an application under section 365, including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis. (2) If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611, 375B or 376 in relation to an application under section 365, the FWC: (a) is not limited to the items of expenditure appearing in the schedule; but (b) if an item does appear in the schedule — must not award costs in relation to that item at a rate or of an amount that exceeds the rate or amount appearing in the schedule.

[7-3660]

Contravening costs orders

378 A person to whom an order for costs made under section 375B or 376 applies must not contravene a term of the order. Note: This section is a civil remedy provision (see Part 4-1).

PART 3-2 — UNFAIR DISMISSAL

Commentary written by Joe Catanzariti, Vice President FWC and Michael Byrnes, Special Counsel, Clayton Utz. Updated by Michael Byrnes, Special Counsel, Clayton Utz. TERMINATION OF EMPLOYMENT UNDER THE FAIR WORK ACT 2009 (CTH) Commentary written by Joe Catanzariti, Vice President FWC and Michael Byrnes, Special Counsel, Clayton Utz. Updated by Michael Byrnes, Special Counsel, Clayton Utz. Joe and Michael would like to acknowledge the contribution of Jennifer Teh and David Collits to the preparation of this chapter. This commentary was updated in August 2015. [page 528]

CONTENTS Paragraph Termination of employment under the Fair Work Act 2009 (Cth) Introduction …. Unfair dismissal under the Fair Work Act Introduction …. Application …. Object …. When has a person been dismissed? …. Who can make an unfair dismissal application? …. Determining whether the high income threshold applies in respect of an employee’s dismissal …. What limitations apply to the bringing of an unfair dismissal claim? …. What is a “small business employer”? …. The Small Business Fair Dismissal Code …. What is a genuine redundancy? ….

[Com 55,010] [Com 55,020] [Com 55,030] [Com 55,040] [Com 55,050] [Com 55,060] [Com 55,070] [Com 55,080] [Com 55,090] [Com 55,100] [Com 55,110]

Procedure for bringing an unfair dismissal claim ….

[Com 55,120]

What constitutes an unfair dismissal? …. What criteria will the Fair Work Commission consider in determining whether a dismissal was unfair? …. What remedies are available for unfair dismissal? …. Unlawful termination under the Fair Work Act Definition …. What constitutes unlawful termination? …. What rights does an employee have if they have been unlawfully terminated? …. What is adverse action? …. Notification to Centrelink of proposed terminations …. Requirement to give notice …. Redundancy ….

[Com 55,130] [Com 55,140] [Com 55,150] [Com 55,160] [Com 55,170] [Com 55,180] [Com 55,190] [Com 55,200] [Com 55,210] [Com 55,220]

[Com 55,010] Introduction In April 2009, the Rudd Labor Government’s promised industrial relations legislation, the Fair Work Act 2009 (FW Act), received Royal Assent. The FW Act overhauls the industrial relations system that existed under WorkChoices and brings about a number of dramatic changes. Of those changes, the laws relating to termination of employment and unfair dismissal are some of the most extensive. The Act significantly broadens the scope for employees to bring unfair dismissal claims. The laws relating to unlawful termination have generally been preserved from WorkChoices. However, one very interesting change is the ability for employees to bring injunctions against their employers for threatened dismissal, where that dismissal would be based on discriminatory grounds, where it is as a result of the employee engaging in industrial activities, or in respect of a workplace right. [page 529] The FW Act’s unfair dismissal provisions, including the Small Business Fair Dismissal Code (Code) and unlawful termination provisions became effective on 1 July 2009. Unfair dismissal under the Fair Work Act [Com 55,020] Introduction Although what substantively constitutes an unfair dismissal remains the same as under WorkChoices, the FW Act has reversed WorkChoices’ narrowing of the scope for some employees to access the unfair dismissal regime. A greater number of employees now have access to unfair dismissal laws, with more employers thereby having responsibility to ensure that employees are not unfairly dismissed. [Com 55,030] Application The FW Act’s prohibition on dismissals that are harsh, unjust or unreasonable applies to all “national system employees”. These are employees engaged by

constitutional corporations. However, the prohibition also extends to (s 14): all employees in Victoria, the Northern Territory or the Australian Capital Territory; those employed by private enterprise in New South Wales, Queensland, South Australia or Tasmania; those employed by local government in Tasmania; those employed by a constitutional corporation in Western Australia (including Pty Ltd companies) — this may include some local governments; those employed by the Commonwealth or a Commonwealth authority; and a waterside employee, maritime employee or flight crew officer in interstate or overseas trade or commerce. The laws do not cover: those employed by state government in New South Wales, Queensland, Western Australia, South Australia and Tasmania; those employed by local government in New South Wales, Queensland and South Australia; those employed by a non-constitutional corporation in Western Australia (including a sole trader, partnership or trust); contractors; employees who resign and were not forced to do so by the conduct of their employer; those employed under a contract for a specified period of time, a specified task, or the duration of a specified season who are dismissed at the end of the period, task or season; trainees whose employment was for a specified period of time and who are dismissed at the end of the training arrangement; or employees who have been demoted but have had no significant reduction in their remuneration or duties and who remain employed by the employer who demoted them. The Fair Work (State Referral and Consequential and Other Amendments) Act 2009 (Cth) enabled states to refer their industrial relations powers to the Commonwealth, with the view of establishing a national workplace relations system, at least for the private sector. [Com 55,040] Object The unfair dismissal provisions, found in Pt 3-2 of the FW Act, are intended to ensure that a “fair go all round” is accorded to both the employer and employee (s 381(2); Hill v Adult Multicultural Education Services (2008) 171 IR 360; [2008] AIRC 237). This expression was used in Loty & Holloway v Australian Workers Union [1971] AR (NSW) 95 at 99 per Sheldon J: The objective in these cases is always industrial justice and to this end weight must be given in varying degrees according to the requirements of each case to the importance but not the inviolability of the right of the employer to manage his business, the nature and quality of the work in question, the circumstances surrounding the dismissal and the likely practical outcome if an order of reinstatement is made. There certainly may be cases where the dismissal had [page 530] many elements of unfairness but an industrial authority if it was convinced of the practical uselessness of trying to re-establish the employer-employee relationship, would not intervene at all. There may be other cases where there are reasonable prospects for the future of the relationship if clarifying conditions are imposed. [Com 55,050] When has a person been dismissed? An employee will only be entitled to relief under

the unfair dismissal provisions if he or she has been “dismissed” (s 385). A person has been dismissed if his or her employment has been terminated by their employer or the person was forced to resign as a result of conduct, or a course of conduct, engaged in by his or her employer (ie constructive dismissal) (s 386(1)). This definition has been retained from WorkChoices. An employee has been terminated on the employer’s initiative when “the action of the employer is the principal contributing factor which leads to the termination of the employment relationship … the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee” (Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 205; see also Pawel v AIRC (1999) 94 FCR 231; 97 IR 392; [1999] FCA 1660; BC9908097). There must be some action on the employer’s part which is either intended to end the employment relationship or which has the probable result of ending that relationship (Mosey v Australian Customs Services (2002) 116 IR 1; O’Meara v Stanley Works Pty Ltd (11 August 2006, AIRC, Giudice P, Watson SDP, Cribb C, Print PR973462)). An employee has not been dismissed where the employee resigns at his or her own initiative and cannot establish any conduct by the employer which would constitute a repudiation of the employment contract (Gunnedah Shire Council v Grout (1995) 89 LGERA 159; 134 ALR 156; 62 IR 150; Richardson v Inghams Enterprises Pty Ltd [2008] AIRC 1117). Further, employees have not been dismissed if (s 386(2)): (a) their contract of employment was terminated at the end of a specified period of time, the completion of a specified task or at the end of a specified season, for which they were employed; Practice Tip Specified period The contract of employment must be for a set period of time with no option to extend or shorten the contract’s length (Andersen v Umbakumba Community Council (1995) 30(1) AustLawyer 42h(note); (1994) 126 ALR 121; 56 IR 102; 1 IRCR 457). Whether employees have been engaged for a specified period is a question of fact, and regard must be had to the terms of the final contract (Marsh v Macquarie University (2005) 147 IR 401). In limited circumstances, a series of short fixed-term contracts (ie for a specified period) may constitute a single continuing contract (D’Lima v Board of Management Princess Margaret Hospital for Children (1995) 64 IR 19; Minister for Health v Ferry (1996) 65 IR 374; cf Fisher v Edith Cowan University (1996) 70 IR 206). Where parties have an unqualified right to terminate a contract prior to the end of the term or the expiry date of the contract, the contract is not for a specified period (Cooper v Darwin Rugby League Inc (1994) 57 IR 238; 1 IRCR 130; Andersen v Umbakumba Community Council (1995) 30(1) AustLawyer 42h(note); (1994) 126 ALR 121; 56 IR 102 at 106; 1 IRCR 457 at 462–3; Mitchell v Senia & Associates (8 August 2000, AIRC, Giudice J, Watson SDP and Foggo C, Print S8899)). [page 531] However, if the parties have a qualified right to terminate the contract prior to its expiry (eg a right to terminate for serious or wilful misconduct) then it may still be a contract for a specified period (Trigar v Latrobe University (1 November 2000, AIRC, Giudice P, Acton

SDP, Gay C, Print T2860)). The contract’s expiry date must be precisely specified and certain (Primus v State Rail (Passenger Fleet Maintenance) (21 June 1999, AIRC, Munro J, Macbean SDP, Redmond C, Print R6136); Andersen v Umbakumba Community Council (1995) 30(1) AustLawyer 42h(note); (1994) 126 ALR 121; 56 IR 102; 1 IRCR 457). Specified task Where parties have an unqualified right to terminate a contract prior to the end of the completion of the task, the contract is not for a specified task (SPC Ardmona Operations Ltd v Esam (2005) 141 IR 338). A contract for a specified task confers a specified task upon the employee. This is distinct from a situation where an employee carries out duties on a specified task which is being carried out by an employer (Drury v BHP Refractories Pty Ltd (1995) 62 IR 467; Hewitt v ACTek Custom Engineering Pty Ltd (25 May 2001, AIRC, Lacy SDP, Print PR904665)). The specified task must be identifiable or ascertainable from the terms of engagement of the employee (Drury v BHP Refractories Pty Ltd (1995) 62 IR 467). (b) their employment (which was for a specified period or limited to the duration of the training arrangement) was terminated at the end of an applicable training arrangement; or Practice Tip An employee must knowingly enter into the training arrangement, in advance of the employment (Matusiewicz v Expotech Pty Ltd (18 May 2001, AIRC, Acton SDP, Print PR904339). The arrangement must specify the length of the employment (ie a specified period), as opposed to the length of the training (Hankin v Indoor Cricket Arenas (Nottinghill) Pty Ltd (8 April 1998, AIRC, Whelan C, Print Q0044). (c) they were demoted with no significant reduction in remuneration or duties and remain in the employer’s employment (cf Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia (1999) 74 SASR 240; 90 IR 211; [1999] SASC 300; BC9904249). The FW Act does not define “significant” or “duties”. This raises questions about circumstances where, for example, employees have had their working hours cut with pro rata pay reductions, or have had their pay reduced. Case law however has touched upon the issues of reduction in remuneration, working hours or changes to duties performed by an employee. If a demotion involves a significant reduction in duties or remuneration, it may constitute a “dismissal”, even if the person demoted remains employed by the employer (A Gerrard v UPS Pty Ltd (AIRC, Eames C, 19 March 2004, unreported); Blair v Chubb Security Australia Pty Ltd (AIRC, Whelan C, 19 August 2003, unreported). In Taylor v Port of Bourke Hotel [1999] 004 IRCommA an employee whose hours had been reduced from 38 hours per week to only nine hours per week was found to have been constructively dismissed by her employer. Based on the evidence presented, the Commission found “… that when [the employee] gave her notice she in fact had no alternative because of the [page 532] dramatic reduction in her hours … the decision of [the employee] to resign was as a direct response to the employer’s actions and was at the initiative of the employer.”

In the case of Maria-Anna Owens v Allied Express Transport Pty Ltd [2011] FWA 1058; BC201170247 the FWC found that the unilateral variation to terms and conditions of employment which leads an employee to resign can be considered a termination at the employer’s initiative for the purposes of the unfair dismissal regime. In JD Lowe and Valcoll Pty Limited (December 11, 2002) Commissioner Redmond found that the unilateral reduction in his salary was equivalent to an unfair dismissal. Similarly, a failure by an employer to pay an employee can in certain circumstances constitute dismissal by an employer. In Hobbs v Achilleus Taxation Pty Ltd ATF the Achilleus Taxation Trust [2012] FWA 2907 constructive dismissal was found to have occurred where an employee was owed $11,647.75 over a period of four months and was only paid $3,570.00 for that period from his employer. [Com 55,060] Who can make an unfair dismissal application? The unfair dismissal laws under the FW Act apply much more broadly than they did under WorkChoices. More employees have the right to bring unfair dismissal claims. Many of the exclusions that applied under WorkChoices no longer apply under the FW Act. As a consequence, the FW Act has significantly broadened the scope of the unfair dismissal laws. All employees who (s 382): earn less than the high income threshold per year (currently $136,700); are covered by a modern award; or are covered by an enterprise agreement, and have worked for at least 6 months for an employer who employs 15 or more employees (s 383(a)); or have worked for at least 12 months for an employer who employs fewer than 15 employees (small business) (s 383(b)), are able to bring an unfair dismissal claim. High-income employees who are covered by an award are protected from unfair dismissal because even if the award ceases to apply to them because they become a “high income employee” (s 47(2)), they will still be covered by the award (s 48) and therefore be protected from unfair dismissal (s 382(b) (i)). [Com 55,070] Determining whether the high income threshold applies in respect of an employee’s dismissal The FW Act provides that a national system employee is protected from unfair dismissal if the sum of his or her annual rate of earnings, and any other amounts calculated according to the regulations, is less than the high income threshold (s 382(b)(iii)). Determining the size of the high income threshold is done in accordance with the regulations (see reg 2.13 of the Fair Work Regulations 2009 (Cth)). Calculating the high income threshold essentially involves dividing later average weekly ordinary time earnings by earlier average weekly ordinary time earnings and multiplying the amount by $100,000 (see the regulation for the precise method of calculation). Readers should not be overly concerned with the method of calculation as, no doubt, the Commonwealth Government will publish the high income threshold annually. Currently, the amount is $136,700. It should be noted that Fair Work Ombudsman literature states that the high income threshold for part-time employees will be pro-rated (see http://www.fairwork.gov.au/Fact-sheetstools/Documents/FWO-Fact-sheet-Termination-of-employment.pdf). As such, part-time employees whose sum of earnings and any other relevant amounts does not exceed the high income threshold will be excluded from bringing an unfair dismissal claim if that sum would exceed the high income

threshold had the employee worked full-time and was paid at the same rate for the relevant 12 months. For example, if an employee works three days a week and earns $100,000 per annum, he or she will not be able to bring an unfair dismissal claim. [page 533] Nevertheless, how to determine whether an employee’s earnings fall under the high income threshold needs elaboration. Section 332(1) of the FW Act defines earnings to include the employee’s wage, amounts dealt with on behalf of the employee, the agreed money value of non-monetary benefits and other amounts or benefits described in the regulations. Non-monetary benefits are defined as being the entitlement to a benefit that is not payment of money in exchange for the performance of work and whose monetaryvalue the employer and employee have agreed (s 332(3)). Further, those non-monetary amounts to which the employee is entitled but to which s 332(3) does not apply will be included, to the value given it by the FWC, in determining whether the high income threshold applies, when the FWC is satisfied (reg 3.05(6)): that it should take the amount into account; no reasonable money value has been agreed by the employer and employee; and that it can estimate a notional monetary amount of the benefit. Earnings do not include payments the amount of which cannot be determined in advance, reimbursements, superannuation payments required by law and any other amounts that the regulations prescribe (s 332(2)). Reg 3.05 prescribes what amounts will be taken into account to determine whether the high income threshold applies in respect of an employee’s dismissal. It provides that, if part or all of an employee’s income is paid by piece rates set according to a quantifiable output or task, and not according to time, the total amounts of piece rates paid or payable to the employee in the 12 months prior to his or her dismissal, so long as he or she was not absent on leave without full pay during those 12 months, is an amount that goes to whether the employee’s total earnings exceeded the high income threshold (reg 3.05(3)). If the employee was on leave without full pay for a period during those 12 months but continuously employed by the employer, the relevant amount includes the sum of (reg 3.05(4)): the piece rates (as defined in reg 3.05(2)) received by the employee when not on leave without full pay; and for the time when the employee is on leave without full pay, the amount calculated according to the formula: (piece rates (as defined in reg 3.05(2)) received multiplied by the number of days that the employee was on leave without full pay) divided by the days not on leave without full pay. If the employee was continuously employed for less than 12 months immediately prior to the dismissal, the relevant amount is determined by the formula: (piece rates (as defined in reg 3.05(2)) multiplied by 365) divided by the amount of days employed (i.e. the amount that the employee would have earned if he or she had worked the entire year and earned piece rates at the same rate for the entire year) (reg 3.05(5)). If the employee received a non-monetary benefit, the real or notional money value of the benefit can be estimated by the Fair Work Commission, for the purposes of determining whether the high income threshold applies to a person at the time of dismissal, if it is satisfied that: a reasonable money value has been agreed by the person and employer; and a real or notional money value of the benefit can be estimated (reg 3.05(6)).

In Lee C v CLS Pty Ltd [2009] FWA 779, an employee had emigrated from the United Kingdom to Australia in September 2007. The employer argued that the employee was barred from bringing an unfair dismissal claim because the employee’s annual rate of earnings, plus any amounts calculated according to the regulations, was $833 greater than the high income threshold. According to the employer, the employee was given a living away from home allowance (“LAFHA”) of $26,100. Fair Work Australia, as it then was, held that for the first 13.3 weeks of the 12 months preceding his termination, the employee incurred accommodation expenses, of an amount greater than $833, because he was living away from his usual United Kingdom residence. As such, more than $833 of the LAFHA that the employee received was compensation, which was not earnings or another benefit for the purposes of the FW Act. The employee could therefore [page 534] bring an unfair dismissal application. If the “high income threshold” for the financial year is exceeded, an application made by an employee for unfair dismissal will be struck out for want of jurisdiction (Barakis v Global Vision Media [2014] FCCA 833; BC201403045). In Maturu v Leica Geosystems Pty Ltd [2014] FWCFB 6735, the Full Bench of the Fair Work Commission provided guidance on the application of reg 3.05(6) and the assessment of non-monetary benefits to determine whether an employee is below the high income threshold and has access to unfair dismissal. The employer argued that the monetary value of a company laptop and company-sponsored broadband internet service should be included in the assessment of employee’s income, as the employee used both the laptop and the internet service for non-work purposes while on unpaid leave. At first instance, Commissioner Booth found in favour of the employer. The employee appealed to the Full Bench of the Fair Work Commission and was successful. The Full Bench held that there must be an agreement between an employer and employee in order for non-monetary benefits to be included in the assessment of the high income threshold under reg 3.05(6). On the basis of the evidence presented, it was concluded that there was no such agreement between the employer and employee as to the private usage of broadband internet service. As there was no identifiable agreement, the value of the laptop and broadband service was not included in the calculation of the employee’s annual earnings and the employee was subsequently found to be below the high income threshold and entitled to unfair dismissal access. [Com 55,080] What limitations apply to the bringing of an unfair dismissal claim? Although there are fewer exclusions than under WorkChoices, some limitations under the FW Act remain on the ability to bring an unfair dismissal claim. The categories of excluded employees under WorkChoices were much wider in scope than under the FW Act. Previously, an employee could not make an unfair dismissal claim if they were employed by a corporation that had 100 or fewer employees (although in appropriate circumstances remedies for unlawful termination and other alternative claims were still available). These employees could be dismissed for any reason without any right to challenge the dismissal as being unfair. This limitation no longer applies and employers, particularly smaller organisations, need to familiarise themselves with their obligations under the unfair dismissal provisions of the FW Act. Under WorkChoices, employers who employed more than 100 workers only had to show that a dismissal was for “operational reasons” to prevent an employee from bringing an unfair dismissal claim. This limitation has also been removed and replaced by the “genuine redundancy” exclusion, which is much narrower in scope. However, there will still be some limitations on the ability to claim unfair dismissal under the FW Act, including:

Where an employee is made redundant and the redundancy is genuine, a dismissal will not be unfair (s 396(d)); Employees of small businesses cannot bring unfair dismissal claims if their employer has complied with the Code (s 396(c)); Employees who are not covered by a modern award or are not employed under collective agreements, and who earn over a certain amount, are not able to bring an unfair dismissal claim (s 382); An employee who has been employed for less than 6 months by an employer who employs 15 or more employees (ie not a “small business employer”) cannot bring an unfair dismissal claim (s 383); An employee who has been employed for less than 12 months by an employer who employs fewer than 15 employees (ie a “small business employer”) cannot bring an unfair dismissal claim (s 383); [page 535] An unfair dismissal claim can only be brought by casual employees who, having served the minimum employment period, have been engaged on a regular and systematic basis and who had a reasonable expectation that their employment would continue (s 384); and Employees cannot bring unfair dismissal claims if they fall into one of the categories of employees referred to in [10080] (s 386(2)) because they have not been “dismissed” for the purposes of the unfair dismissal provisions in the FW Act. Casual employees and unfair dismissal Casual employees who are eligible can bring an unfair dismissal claim but they still have to meet the same qualifying periods as permanent employees. Therefore, “permanent casuals” (ie employees who are defined and paid as casuals for award purposes but are engaged on a continuing and regular basis) can bring an unfair dismissal claim if they have worked for an employer for at least 12 months who employs fewer than 15 employees or, they have worked for an employer for at least 6 months who employs 15 or more employees. These changes mean that casuals working for larger employers can now qualify for protection from unfair dismissal after just 6 months, rather than 12 months as under WorkChoices, provided their employment has been regular and systematic, and they had a reasonable expectation of continuing employment. The decision of Fair Work Australia, as it then was, in Ponce v DJT Staff Management Services Pty Ltd t/as Daly’s Traffic [2010] FWA 2078 confirms that the FW Act has broadened the circumstances in which a casual employee may have access to unfair dismissal claims. Fair Work Australia took the view that the “regular and systematic” requirement applies to the employment itself and not to the hours or days of work performed. The determining factor is whether an employee can establish that he has a continuing relationship with the employer. As such, employees may be regarded as “regular and systematic” casuals within the meaning of the FW Act, even if they do not have consistent hours or days of work, and even where their work is dependent upon circumstances such as client demand, external delays and environmental factors (Goold v Cal Dive International (Australia) Pty Ltd [2015] FWC 2302; MacDonald v Black Ivory Pty Ltd [2015] FWC 2098; Wang v Sex Worker Outreach Project [2015] FWC 1332; Masey-Ross v Richmond Fellowship Tasmania Inc [2014] FWC 5372 and Thomas v Goona Warra Vineyard [2014] FWC 513). The FW Act does not define the term “casual”. Whether a person is a casual employee is a question of fact, having regard to all the facts and circumstances of the employment (Robert James Power trading as Beta Frozen Products v Rupe (1 August 2001, AIRC, Boulton J, Duncan SDP, Gay C, Print

PR907244); see also Doyle v Sydney Steel Company Ltd (1936) 56 CLR 545; [1937] ALR 84; (1936) 10 ALJR 380; BC3700003 and Cetin v Ripon Pty Ltd t/as Parkview Hotel (25 September 2003, AIRC, Ross VP, Duncan SDP, Roberts C, Print PR938639)). The factors that have been considered in case law (see Ross v Court Recording Services (NSW) Pty Ltd (27 August 1999, AIRC, Ross VP, Duncan DP and Larkin C, Print R8524); Licensed Clubs Association of Victoria v Higgins (1988) AILR 497; Ryde-Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385; Serco (Aust) Pty Ltd v Moreno (1996) 65 IR 145; 76 WAIG 937) as relevant indicators of the casual nature of employment are as follows: whether the employee was recognised as a casual from the beginning of his or her employment; the way in which the wages are paid (eg payment only for hours worked; indicating that the hourly rate of pay is intended to cover leave entitlements); the period of time over which the employment extends; the number of hours worked per week; whether the employee had a consistent starting and set finishing time; whether there was a reasonable mutual expectation of continuity of employment; [page 536] whether the employee was generally contacted and asked to work, rather than just knowing when he or she would be required; whether the employee was free to refuse to work at any time due to other commitments; and award classification. Exclusions There is no longer a general exclusion for employees who are engaged under a contract of employment for a specified period, specified task or specified season. However, if they are not re-hired at the end of their engagement, they will not have been “dismissed” and are therefore not able to seek relief under the unfair dismissal provisions. This means that employees engaged under such contracts are effectively excluded unless a “substantial purpose” of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under the unfair dismissal provisions of the FW Act (s 386(3)). Employees who are not able to access the unfair dismissal laws who wish to challenge their termination will have to seek redress through other legal avenues, such as unlawful termination, antidiscrimination law, common law actions for breach of contract and claims under the Competition and Consumer Act 2010 (Cth). [Com 55,090] What is a “small business employer”? As of 1 January 2011, a “small business employer” is defined as an employer that employs fewer than 15 “head-count” employees. Special arrangements apply to these employers in relation to the unfair dismissal laws. Many small and medium sized businesses are no longer immune from unfair dismissal claims. While the FW Act goes some way towards assisting small businesses with this, medium sized businesses, which previously escaped exposure due to the 100 employee cap, do not receive any such assistance. Calculating an employer’s number of full-time equivalent employees Step 1 — calculate the total number of ordinary hours worked by all employees in the 4 weeks immediately before the notice of dismissal or dismissal (whichever occurs first). Note: An employee’s ordinary hours are generally specified in the employee’s relevant industrial

instrument (eg modern award, enterprise agreement or workplace determination, etc). If there is no such instrument, the person’s ordinary hours of work would be determined in accordance with s 20 of the FW Act. However, the ordinary hours of casual employees are the hours the person actually worked, to a maximum of 152 hours over a 4 week period. Step 2 — calculate the total number of hours of leave (whether paid or unpaid) taken by any employees where the entitlement to the leave is as a result of the birth or adoption of a child (subject to certain pre-requisites) and the duration of the leave was at least 4 weeks. Step 3 — Subtract the total number of hours calculated in Step 2 from Step 1. Step 4 — Divide the result from Step 3 by 152. The end result is the employer’s number of full-time equivalent employees at the notice or dismissal time. Note: The number 152 is based on the maximum number of hours that a full-time employee could work over 4 weeks (ie 38 hours per week), excluding reasonable additional hours. As of 1 January 2011, a “small business employer” is an employer that employs fewer than 15 employees at the relevant time (s 23(1)), calculated on a “headcount” basis. That is, the number of employees that a business employs includes all employees employed at that time (including full-time employees, part-time employees and casual employees employed on a regular and systematic basis) and employees of associated entities (s 23(2)). When ascertaining whether a business is a small business employer for the purposes of a dismissal or termination, any dismissed or terminated employees are to be included in the headcount (s 23(4)). [page 537] The new unfair dismissal laws assist small business in two ways: (a) A small business is immune from an unfair dismissal claim if the employee has been employed for less than 12 months (s 383). This is double the general qualifying period of 6 months; and (b) A small business that complies with the Code in relation to a dismissal will be immune from unfair dismissal claims (s 385(c) and s 388). [Com 55,100] The Small Business Fair Dismissal Code A dismissal will not be unfair if a small business complies with the Small Business Fair Dismissal Code (the Code). The Code, which came into effect on 24 June 2009 pursuant to s 388(1) of the FW Act, applies to small businesses that employ fewer than 15 employees and is intended to assist small businesses to prevent unfair dismissal claims being brought against them. As long as a small business complies with the Code, then the dismissal of an employee who has worked with the employer for at least 12 months will not be unfair (s 385). The Code provides small businesses with information about their rights and obligations in respect of termination and prescribes the manner in which employees should be dismissed. The Code prescribes that: A summary dismissal (ie without notice or warning) is warranted where an employee has engaged in serious misconduct eg theft, fraud, violence and serious breaches of occupational health and safety procedures. As long as an employer believes on reasonable grounds that the employee’s conduct is sufficiently serious, then the dismissal will be fair. When the employer has reported employee theft, violence or fraud to the police, the dismissal will be fair so long as there were reasonable grounds for reporting the matter; For other dismissals, an employer must give the employee a valid reason, based on the

employee’s conduct or capacity to perform the job, why his or her employment is at risk. The employee must be given the chance to respond and a reasonable opportunity to rectify the issue. Although it is preferable to give the warning in writing, it can be given orally; Limiting the number of warnings required to one explodes the myth that three warnings are generally required before an employer can dismiss an employee, in order to avoid an unfair dismissal claim. Furthermore, written warnings will be easier to prove in any subsequent proceedings and should thus be the preferred approach of employers; So long as the person is not a lawyer acting professionally, an employee is permitted to have a support person with him or her during discussions between an employer and an employee in a context where dismissal is possible; A small business employer may be required to provide evidence of compliance with the Code to the FWC if an employee makes a claim for unfair dismissal, including a completed checklist, copies of written warnings, a statement of termination or signed witness statements. The Department of Education, Employment and Workplace Relations’ Fact Sheet also includes the Small Business Fair Dismissal Code Checklist (Checklist) (available at www.fairwork.gov.au). Employers should complete the Checklist at the time of dismissal and retain it for the purposes of a future unfair dismissal claim. Although it is not mandatory to complete the Checklist, it is highly recommended as it will provide strong evidence that the employer complied with the Code. If the FWC is satisfied that a small business employer has complied with the Code in relation to a dismissal, then it will dismiss an unfair dismissal claim. Whilst the Code only technically applies to small businesses, it may provide all businesses/employers with a useful guide of what the FWC may consider to be a fair and just process in relation to dismissals and termination. [page 538] Putting the code into practice: procedural issues At this stage, it is not entirely clear exactly how the Code works in practice. There are a number of procedural issues with the Code. For example: (a) who bears the onus of proving that a dismissal was consistent with the Code? Does the onus rest entirely on the employer, or should employees be required to demonstrate a prima facie case that the dismissal was unfair? (b) is it be sufficient for employers to show objective compliance with the majority of the Code’s requirements, or do employers have to demonstrate strict compliance to the letter of the Code? (c) will decisions of the FWC about the Code be published so that employers can see how the Code operates in practice? It appears the FWC will publish decisions on the application of the Code. Burden of proof Given that the case to be heard will often be one person’s word against the other’s, it is likely that the burden of proof will be on the employer to show that the termination was conducted in compliance with the Code and is therefore fair. The Checklist is unlikely to be sufficient evidence on its own, and is more likely to be a guide of good practice than a guarantee of immunity for employers against unfair dismissal claims. The only decision published on the application of the Code at the end of October 2009 suggests that the FWC will hear submissions by both parties on whether a small business employer had complied with the Code when dismissing an employee. Ensuring compliance As the FWC is required to follow the principles of natural justice, they will need to follow processes to ensure genuine compliance with the Code. This may involve an inquiry by the

FWC to assess actual, rather than claimed, compliance. It appears that the question of whether an employer has complied with the Code will be dealt with at first instance by a very informal dispute resolution process. If the Code has been complied with, then the unfair dismissal proceedings will come to an end at that point because the dismissal was not unfair. If the issue cannot be resolved, it is likely that the dispute will then be resolved by a FWC decision maker. Cases on the Code and Checklist In French v Lufra Investments Pty Ltd t/a Best Western Lufra Hotel [2009] FWA 574, the employer (a small business employer) dismissed an employee for reasons including the failure to obey reasonable directions. In a formal hearing, the employer claimed that it had reasonable grounds to believe that the employee had engaged in conduct sufficiently serious to warrant summary dismissal. Summary dismissal in these circumstances is deemed to be fair under the Code. Fair Work Australia, as it then was, dealt with the threshold question of compliance with the Code, before addressing the question of whether the dismissal was harsh, unjust or unreasonable. The employer argued that it had reasonable grounds to believe the employee had engaged in serious misconduct, such that it was entitled to dismiss the employee summarily in accordance with the Code. The employer’s apparent argument was that, consistent with the definition of serious misconduct in reg 1.07 of the Fair Work Regulations 2009, the employee had engaged in “wilful and deliberate behaviour that [was] inconsistent with the [employment contract]”. However, Deegan C held that the failure to comply with two separate directions was not wilful or deliberate, or serious enough to warrant summary dismissal. It followed that the termination was not consistent with the Code. Importantly, Deegan C expanded on the reasons for this conclusion in her discussion of whether the dismissal was harsh, unjust or unreasonable. The termination arose in circumstances where an employee, at the direction of a Mr Holland, reorganised a shed. This concerned a Ms Holland, who [page 539] conceded that she yelled at the employee. It was in these circumstances that the employee refused to comply with directions respectively to restore the shed to its original state (which the employee subsequently did anyway), and to discuss the issue with her. Disobedience to these directions were held not to be valid reasons for termination. French demonstrates that the Code will be considered as a threshold issue in formal proceedings. It appears that although the questions of whether the dismissal will be harsh, unjust or unreasonable and that of whether there was compliance with the Code are distinct, there may be overlap in the considerations that the FWC will take into account when determining each issue. It is also clear that a finding that a dismissal was not consistent with the Code will not automatically lead to the conclusion that the dismissal was harsh, unjust or unfair. On other hand, if the dismissal was consistent with the Code, a finding of unfair dismissal cannot be made. French also makes clear that the FWC will examine for itself whether a dismissal was consistent with the Code, in this case, whether the employee’s conduct was serious enough to warrant summary dismissal. Mere assertion by the employer that it has complied with the Code is insufficient. Fair Work Australia, as it then was, recently delivered its first Full Bench decision on the provision in the Code which allows summary dismissal for serious misconduct including theft, fraud, violence and serious OHS breaches. In John Pinawin t/a RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359, the Full Bench accepted that the summary dismissal of a hairdresser whose work performance was adversely affected by his drug-use was fair, but warned the same conclusion would not necessarily be reached in all cases of out-of-hours misconduct, an issue on which the Full Bench made some interesting observations that pertain to all employers.

The Full Bench stated that there are two steps in the process of determining whether this section of the Code is satisfied. First, it is necessary to consider whether, at the time of the dismissal, the employer believed that the employee’s conduct was sufficiently serious to justify immediate dismissal. Second, it is necessary to consider whether that belief was based on reasonable grounds. The second element requires that the employer conduct reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that he/she held. The Bench emphasised that generally, employers do not have the right to control or regulate an employee’s out-of-hours conduct. However, where the employee’s conduct outside the workplace has a “significant and adverse effect” on the workplace, then the consequences become a legitimate concern of the employer. A range of out-of-hours conduct was held to constitute grounds for termination because its actual or potential consequences were contrary to the employee’s duty of fidelity and good faith. Whilst normally, in order to hold a belief on reasonable grounds, it would be necessary to have a discussion with the employee about the perceived misconduct and pay regard to his/her explanations, the Full Bench held that this was a “very unusual case” as the owners knew the employee well, they directly observed his behaviour, they believed that he had made lifestyle choices that involved drugtaking and this directly related to his capacity to perform his work which involved close contact with clients, and at the time they made their decision, the employee was hospitalised. In light of these unusual circumstances, the Full Bench took the view that the employers, when considering the employee’s erratic behaviour, formed the belief that he had engaged in conduct that justified immediate dismissal on reasonable grounds. In another case, the value of the Checklist was questioned. In Mr N v The Bakery [2010] FWA 3096; BC201070652 the applicant was dismissed with the employer citing the reason as serious misconduct (theft). The applicant brought unfair dismissal proceedings. The respondent maintained that they had completed the Checklist in good faith and formed the view that they were not required to the employee a right of reply allow employee to have a support person present based on the Checklist. In the decision O’Callaghan said that the employer had reasonable ground for summary dismissal and that the checklist did not alert the employer to the requirement for a support person. He concluded that “the checklist is of dubious value as a determinant of whether the Code has been complied with…” [page 540] O’Callaghan found that the Code had not been complied with and that subsequently s 387 must be applied. When applying s 387 of the FW Act the dismissal of the employee was found to be harsh as adequate notice of termination was not provided and the employer not offering for a support person to be present was a factor mitigating toward unfairness in the process. Importantly, O’Callaghan noted that the checklist is not a statutory instrument, and subsequently need not be used. [Com 55,110] What is a genuine redundancy? A dismissal will not be unfair in the case of a “genuine redundancy”. The FW Act has modified the unfair dismissal exclusion in relation to redundancy. Under WorkChoices, an employee could not make an unfair dismissal claim if his or her employment was terminated for “genuine operational reasons or for reasons that included genuine operational reasons”. The FW Act’s exemption provides that a dismissal will not be unfair in the case of a “genuine redundancy” (s 385(c)). A “genuine redundancy” occurs in circumstances where (s 389(1)): (a) the employee’s job no longer needs to be performed because of changes to the enterprise’s

operational requirements; and (b) the employer has complied with any applicable requirements in a modern award or enterprise agreement to consult about the redundancy. Operational requirements The FW Act does not define the term “operational requirements”. Under WorkChoices, “operational reasons” was defined as “reasons of an economic, technological, structural or similar nature relating to the employer’s undertaking, establishment, service or business”. An interpretation of the phrase “operational requirements” from provisions of the WR Act permitted a consideration of matters such as “past and present performance of the [enterprise], the state of the market in which it operates, steps that may be taken to improve the efficiency of the undertaking by installing new processes, equipment or skills, or by arranging for labour to be used more productively, and the application of good management to the [enterprise]” (Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 at 373). Previously, the onus was upon the employer to show not only that there was a valid reason for the redundancy related to the operational requirements of the business, but also that the selection of the relevant employee was for a valid reason (Kenefick v Australian Submarine Corp Pty Ltd (No 2) (1996) 65 IR 366 at 372; McCarthy v FJ Trousers Pty Ltd (12 October 2000), AIRC, Watson SDP, Print T1853). That is, the reason for both limbs had to be sound, defensible, well-founded and objectively justifiable (Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373). Under the FW Act the employer has the onus of proving that a dismissal of an employee was for genuine reasons. In Mr William Eames v Orrcon Operations Pty Ltd T/A Orrcon Steel (Unreported 2013/11032) Commissioner Booth found that the onus of proving on the balance of probabilities that the redundancy was due to changes in operational requirements rests with the employer. Presumably, a genuine redundancy under the FW Act includes dismissals due to the need to cut staff and costs as a result of a downturn in business, if part or all of the business is either outsourced or closed down, and also dismissals due to the introduction of new technologies, which can perform the work previously done by the employee. However, a dismissal is not a genuine redundancy if it would have been reasonable for the employee to have been redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer (s 389(2)). Under the FW Act, “enterprise” means a business activity, project or undertaking (s 12). The Full Bench of Fair Work Australia, as it then was, clarified the employer’s obligations in relation to redeployment in Ulan Coal Mines Ltd v Honeysett; Murray v Ulan Coal Mines Ltd [2010] FWAFB 7578; (2010) 199 IR 363. The Full Bench suggested that there is a substantial obligation on the employer to place an otherwise [page 541] redundant employee elsewhere in its organisation, including within associated entities, if it wishes to avoid an unfair dismissal claim. The “degree of managerial integration between the different entities” will be relevant. If the employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group, then subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may result in a finding that the employee was not genuinely redundant. Conversely, if the associated entity operates as a stand-alone operation and, for example, has its own enterprise agreement with its own redeployment processes, then lesser steps may be required in attempting to redeploy into that associated entity. The question whether redeployment is reasonable is to applied at the time of dismissal. Relevant

matters include: the nature of the available alternative position; the qualifications required to perform it; the employee’s skills experience and qualifications; the location of the position in relation to the employee’s residence; and the remuneration offered. Cases have addressed the approach that a court should take when determining whether a termination of an employee’s employment was a result of genuine redundancy. In Ulan Coal Mine v Howard [2010] FWAFB 3488; (2010) 196 IR 32 employees were dismissed on the basis of redundancy following restructure in which their duties were subsumed into other jobs. After proceedings were commenced the Tribunal at first instance focused on the ongoing need for the work performed by the dismissed workers and held that there was no genuine redundancy. Therefore, the employees’ UFD applications could be heard. However, on appeal, the Full Bench held that the test is not whether the employees duties were still needed, but whether the employer wanted the employee’s job to be done by anyone. As the employer had restructured and subsumed employees’ duties into other positions the Full Bench found that dismissing the workers constituted a genuine redundancy. A case has also examined genuine redundancy and the Small Business Fair Dismissal Code Checklist. In Kristina Iannello v Motor Solutions Australia Pty Ltd [2010] FWA 3125; BC201070647 an employee was terminated after the employer alleged that they could not employ the employee on a full-time basis after they returned from maternity leave due to financial concerns. The employer argued the Code applied to a redundancy situations and that if the Code had been complied with by the employer, the employee could not bring an unfair dismissal claim. However, VP Watson said he was “unable to conclude that the checklist applies to redundancy situations” and was obliged to consider whether there was a genuine redundancy under the FW Act. [Com 55,120] Procedure for bringing an unfair dismissal claim One of the most significant reforms to the unfair dismissal laws made by the FW Act is in relation to the process of bringing an unfair dismissal claim. The Act’s objective is to provide a simple and streamlined process for bringing such claims. Time limit The time limit for bringing an unfair dismissal claim is now 21 days (s 394(2)(a)). Although the FW Act initially reduced the time limit to 14 days, with a view to promoting efficiency and ensuring that reinstatement remains a feasible option, the time limit was reverted to 21 days by the Fair Work Amendment Act 2012. The time limit for lodging a general protections claim based on dismissal has also been changed to 21 days from the previous 60 days (s 366(1)(a)). This ensures that there is no discrepancy between the time limits for an unfair dismissal application and a general protection application involving a dismissal. [page 542] The new time limits introduced by the Fair Work Amendment Act are effective from 1 January 2013. As such: Employees dismissed prior to 1 January 2013 who wish to lodge an unfair dismissal or general protections (dismissal) application will still have 14 days and 60 days, respectively, from the date of dismissal to lodge an application; Employees dismissed on or after 1 January 2013 will have 21 days from the date of dismissal to

lodge either an unfair dismissal or a general protections (dismissal) application. Applications for unfair dismissal claims must generally be lodged with the FWC within the prescribed time limit. However, in exceptional circumstances, the FWC will extend the time limit, taking into account (s 394(3)): (a) reasons for the delay; (b) whether the employee first became aware of the dismissal after it had taken effect; (c) any action taken by the employee to dispute the challenge the dismissal; (d) any prejudice to the employer caused by the delay; (e) the merits of the application; and (f) fairness between the employee and other employees in a similar position. Early cases indicate that the FWC will apply this test more strictly than the Australian Industrial Relations Commission applied the corresponding test under the WR Act, especially in light of the FW Act’s use of the word “exceptional” in describing the circumstances in which an extension will be granted (see Lim v Downer EDI Mining [2009] FWA 457 and Shields v Warringarri Aboriginal Corp [2009] FWA 860). Although an applicant may feel traumatised when he or she feels that he or she has been forced to resign, it is not unusual for this to happen. When such an applicant also had been in communication with his or her lawyers and could have contacted them at the time of resignation, an applicant may be unlikely to obtain an extension (Shields v Warringarri Aboriginal Corp [2009] FWA 860). Initial assessment The FWC will initially seek to resolve the dispute between the parties on an informal basis. Before considering the merits of an unfair dismissal application, the FWC will first assess whether (s 396): (a) an application was brought in time; (b) the employee protected from unfair dismissal; (c) the dismissal was consistent with the Code (if relevant); and (d) the dismissal was a genuine redundancy. According to the Fact Sheet, the FWC will be flexible in its approach to investigating the matter. The FWC will seek to achieve a mediated resolution between the parties on an informal basis, by: making initial inquiries and discussing the issues with the parties, including telephone discussions or in informal conferences (either at the employer’s premises or at the FWC); and/or requesting written information from the parties. If the matter involves disputed facts, the FWC must conduct a conference or hold a formal hearing (s 397). Otherwise, the FWC has discretion as to whether to conduct a conference and/or hold a formal hearing. Conferences and hearings Generally, the FWC will make decisions in a private, informal conference, in which both parties will have an opportunity to make their case and respond to the allegations made by the other party (s 398). Formal written submissions or cross examination may not necessarily be required or appropriate. Parties will have to be as prepared for the conference as they would have been for a formal hearing in the past, as the FWC will be able to make a decision on the spot (ie “on the papers”) and the rights of appeal are limited. Further, the process will not usually involve lawyers.

[page 543] A hearing may also be held in respect of the unfair dismissal application. However, it can only do so if it considers it appropriate to do so, taking into account the views of the parties and whether a hearing would most effectively and efficiently resolve the claim (s 399). The FWC’s powers have been expanded pursuant to the amendments introduced under the Fair Work Amendment Act 2012, such that the FWC is now able to dismiss an application based on unreasonable behaviour by the applicant, eg where the applicant fails to attend a conference or hearing held by FWC, fails to comply with a direction or order, or fails to discontinue the claim once a settlement is reached (s 399A). The FWC also has the power to dismiss an application pursuant to s 587 of the FW Act where a party has not complied with the requirements of the FW Act, the application is frivolous or vexatious, or where there is no reasonable prospects of success. In circumstances where the respondent has failed to attend conferences, conciliation meetings or a hearing of the matter, the FWC has accepted and relied on the evidence on the applicant (Felicity Bargmann v Stilnovo Pty Ltd t/as Murano and Gullotti [2013] FWC 1080). It is likely that formal hearings in relation to unfair dismissal will only occur in very limited circumstances, ie when there are particular legal or factual issues in the case that need to be tested. Representation In any matter being considered by the FWC, parties will only be able to be represented by lawyers or paid agents where the FWC considers it appropriate and gives its permission. Such permission will only be granted in circumstances where it would enable the matter to be dealt with more efficiently, or refusal would be otherwise unfair: for example, where a person is from a nonEnglish speaking background, or the bargaining power between the parties is unequal because one party is represented by a union (s 596). Pursuant to the Fair Work Amendment Act 2012, s 400A gives the FWC powers to make an order for costs against a party in an unfair dismissal matter where that party has caused the other party to incur costs by acting unreasonably, eg by failing to agree to a settlement that could have resolved the claim. However, the FWC is only able to so “if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter”. Importantly, the FWC’s powers in relation to these costs orders do not limit the FWC’s power to order costs under s 611. The FWC may make costs orders against lawyers or paid agents in certain circumstances (s 401), including where they have encouraged the commencement or continuation of a matter where it should have been reasonably apparent that there were no reasonable prospects of success (Inder-Smith v Nationwide News Pty Ltd (3 May 2000, AIRC, Munro J, Duncan DP and Gay C, Print S5511); Polynol Plastics (Aust) Pty Ltd v Moss (20 October 2000, AIRC, Williams SDP, Acton SDP, Gay C, Print T2112); GH Deane v Paper Australia Pty Ltd (6 June 2003, AIRC, Giudice P, Williams SDP, Simmonds C, Print PR932454); Wright v Australian Customs Service (23 December 2002, Giudice P, Williams SDP, Foggo C, Print PR926115); Henderson v Mainpoint Enterprises Australia Pty Ltd (1998) 83 IR 182) or where an unreasonable act or omission caused additional costs to be incurred (Barbaro v Certegy Australia plc (2003) 126 IR 348). The Fair Work Amendment Act 2012 also introduced an increased deterrence framework relating to lawyers or paid agents and their role in speculative unfair dismissal claims. As such, this new costs liability discourages lawyers or paid agents from encouraging applicants to pursue speculative unfair dismissal claims — as lawyers and paid agents can become the subject of an adverse costs order, even if they have not formally been granted the right to represent a party under s 596 (s 401(1)–(1A)). In these circumstances, the FWC is able to make such an order if the FWC “is satisfied that the

representative caused those costs to be incurred because either the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.” (See s 401(1A)(a) and 401(1A)(b)). [page 544] Under the FW Act, the role of lawyers has been significantly reduced in relation to unfair dismissals. Parties will need to be prepared to present their case without a lawyer, even if it means seeking legal advice prior to the conference and/or hearing. That the role of lawyers has diminished has been confirmed in the only decision dealing with representation under the FW Act to have been handed down at the time of publication. In that decision, a lawyer from Freehills was refused permission to appear on behalf of the employer in an unfair dismissal arbitration. The Construction, Forestry, Mining and Energy Union had opposed the lawyer’s representation. In this case, the industrial advocate representing the employee was not legally qualified but was an experienced advocate. The representative for the employer, prior to Freehills’ involvement, had a “history of industrial advocacy”, but according to the evidence, had no experience in arbitration. Moreover, the case did not involve complex factual issues and there was no need for “forensic crossexamination” (Rodgers v Hunter Valley Earthmoving Co Pty Ltd [2009] FWA 572). Appeals The FWC will only grant permission to appeal its decision if it considers an appeal to be in the public interest (s 400(1)). Further, to the extent that the appeal is on a question of fact, the appeal can only be made on the ground that the decision involved a significant error of fact (s 400(2)). An appeal lies from a decision of the FWC made in an initial assessment and/or a conference or formal hearing. It is presently unclear what circumstances come within the scope of “public interest”. Certainly, s 400 of the FW Act places limits on the FWC’s discretion to allow an appeal. [Com 55,130] What constitutes an unfair dismissal? Substantively, an unfair dismissal is a dismissal that is harsh, unjust or unreasonable. The FW Act stipulates what substantively constitutes an unfair dismissal. As under WorkChoices, unfair dismissal refers to situations where the dismissal of an employee was harsh, unjust or unreasonable in the circumstances. Under the FW Act, a dismissal is unfair if the FWC is satisfied that the dismissal is (s 385): (a) harsh, unjust or unreasonable; (b) inconsistent with the Code; and (c) not a genuine redundancy. [Com 55,140] What criteria will the Fair Work Commission consider in determining whether a dismissal was unfair? The FWC must take into account the following factors in determining whether a dismissal was harsh, unjust or unreasonable (s 387): whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); whether the person was notified of that reason; whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; if the dismissal related to unsatisfactory performance by the person whether the person had been warned about that unsatisfactory performance before the dismissal; the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and any other matters that the FWC considers relevant. [page 545] This final catch all factor is wide in scope. Matters which were considered relevant by the former Australian Industrial Relations Commission included: the impact of the termination upon the employee, eg personally or economically (Container Terminals Australia Limited v Phillip Toby (24 July 2000, AIRC, Boulton J, Marsh SDP, Jones C, Print S8434); Ricegrowers Co-operative Ltd v Schliebs (31 August 2001, AIRC, Duncan and Cartwright SDPP, Larkin C, Print PR908351)). whether award obligations had been complied with (Tempo Services v Klooger (19 November 2004, AIRC, Williams and Cartwright SDPP and Larkin C, Print PR953337); whether an employer had provided an employee with appropriate instructions and/or support to assist the employee to meet certain goals and targets (Gambera v Allied Express Pty Ltd (22 October 1999, AIRC, Foggo C, Print S0335); Hurskin v Australian Jewish Press Pty Ltd (1996) AILR 3-333; 69 IR 123 at 141). the personal and economic circumstances of the employee (Kerry v Ansett Australia Ltd (21 September 1998, AIRC, Duncan DP, Print Q6686); whether employees who engaged in the same conduct at different times or conduct arising out of the same incident had been treated differentially (Mollinger v National Jet Systems Pty Ltd (18 March 1999, AIRC, Giudice J, Polites SDP, Gregor C, Print R3130). Recent case law in determining whether a dismissal was harsh, unjust or unreasonable In Filomena Ceccarelli v Red Carpet Creations Pty Ltd t/as Red Pearl Couture [2013] FWC 1869 an employee of a wedding gown shop was dismissed by her employer with the company citing excessive lateness and inappropriate behaviour as its reasoning. However, the Fair Work Commission found that despite the employee’s “continued failure to ensure that she attended work on time”, this wasn’t enough to “justify immediate dismissal”. To terminate on the basis of lateness, there needs to have been a pattern of behaviour, and the business needs to have clearly outlined warnings around these instances. In Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157; BC201315636 the Full Court of the Federal Court of Australia upheld the decision of the Full Bench of Fair Work Australia. This was a case where an employee was discovered to have made some disparaging comments against two managers on the social media website Facebook. The managers of Linfox claimed that the comments were sexist and contained racial vilification. The employee was subsequently dismissed and proceedings were brought against Linfox for unfair dismissal. Fair Work Australia (as it then was) upheld the unfair dismissal application after accepting arguments that the employee did not know how public the comments were.

Linfox sought to extend its employee conduct policy to social media platforms and one of the major criticisms made against Linfox was that the business did not have a social media policy. However, the Full Court of the Federal Court noted that employees claiming they are unfamiliar with the operations of social media will be harder to effectively argue in the court as technology advances. Similar to the need for businesses to have adequate social media policies, businesses should implement adequate email and use of technology protocols. The Full Court of the Federal Court of Australian Postal Corporation v D’Rozario (2014) 311 ALR 257; [2014] FCAFC 89; BC201405688 upheld a decision by the Full Bench of the Fair Work Commission to reinstate Australia Post employees who were found to have emailed pornography from their work email addresses. When examining whether the decision was harsh, unjust or unreasonable the FWC noted that the employer had acted inconsistently in the treatment of the employees, there was an absence of notification as to the new email filter which was installed to monitor emails, the employees had received no warning of the dismissals, and a “culture of tacit acceptance or condonation” existed (B, C and D v Australian Postal Corp t/as Australia Post [2013] FWCFB 6191 at [88]). Vice President Lawler and Commissioner Cribb in the FWC decision found that a “valid reason” when hearing an unfair dismissal application is only one of a number of factors the FWC [page 546] will consider in deciding whether the dismissal is “harsh, unjust or unreasonable”. A dismissal may be harsh notwithstanding the existence of a valid reason. Furthermore, the FWC found that even where an employee has engaged in serious misconduct in breach of company policy, a finding that a dismissal is “harsh” may arise when considering factors such as: an employer’s failure to actively enforce the policy; a workplace culture of non-compliance; disparate disciplinary treatment of employees who have engaged in similar breaches; and the age and circumstances of individual employees in all the circumstances. In Amiatu v Toll Ipec Pty Ltd [2015] FWC 3924, three employees were dismissed after allegedly stealing uniforms. In determining whether the dismissal was harsh, unjust or unreasonable, Commissioner Lewin took into account the facts and circumstances of the case, the seriousness of the alleged conduct and whether the severity of the misconduct warranted dismissal. Commissioner Lewin held that the employer had not satisfied the Fair Work Commission, on the balance of probabilities that the alleged conduct amounted to theft. Rather, it was held that there was an honest misunderstanding on the part of the employees in respect of the method of obtaining uniforms, and that dismissal was disproportionate to the employee’s conduct. Commissioner Lewin considered the personal circumstances of the employees, and also took into account the employee’s unblemished history with the employer: In my view, not only was the sanction of summary dismissal for alleged theft comprising gross misconduct out of proportion to the offence or wrongdoing of the Applicants, it was also catastrophic for the personal circumstances of Mr Mastroianni and Mr Ioane … I think it was also harsh to impose the sanction of termination of employment, having regard to the fact that this was the only issue of misconduct in the history of the Applicant’s employment during two or more years of satisfactory employment. at [123] Even if there is a valid reason for dismissal, a dismissal may still be considered harsh if the employer unduly delays in bringing disciplinary proceedings. In Mundy v MSS Security Pty Ltd T/A MSS Security [2015] FWC 3226, an employee, a security guard, was found asleep while on duty. Although this was

in breach of the company’s internal policies, and compromised the employee’s fundamental security guard function, the employee continued to work for a further period of six weeks without complaint before the employer terminated his employment. Senior Deputy President O’Callaghan held at [47]: I consider that [the employee’s] summary dismissal must be regarded as harsh in that it was a disproportionate response to his behavior given that he had worked for some six weeks after the incident without further complaint and had continued to work after [the employer] was, or should reasonably, have been aware of the matter. As a consequence, I consider that the termination of [the employee’s] employment was unfair for the purposes of s 395 of the FW Act. [Com 55,150] What remedies are available for unfair dismissal? Reinstatement is the primary remedy under the FW Act for unfair dismissal, unless it is inappropriate in the circumstances. However, this remedy has seldom been ordered in the past. In light of the rising level of unemployment, more employees are likely to want their jobs back. Given that the FW Act has sped up the process for dealing with an unfair dismissal claim, reinstatement will likely be a more feasible option now. This means that employers should be prepared to reinstate the employee if they lose the case. Reinstatement Reinstatement involves reappointing a dismissed person to the same position or to a position no less favourable. [page 547] If the FWC is satisfied that a person who was eligible to bring an unfair dismissal claim was unfairly dismissed, it may order that the person be reinstated or that an amount of compensation be paid to the person (s 390(1)). The FWC must not order the payment of compensation unless reinstatement is inappropriate (Ellawala v Australian Postal Corporation (17 April 2000, AIRC, Ross VP, Williams SDP, Gay C, Print S5109)and the payment of compensation is appropriate in all of the circumstances (s 390(3)). If the FWC orders that a person be reinstated, then that person must be (s 391(1)): (a) reappointed to the position in which they were employed immediately before the dismissal (Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539; 215 ALR 87; [2005] HCA 22; BC200502369); or (b) appointed to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal (see Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; Kennedy v Cumnock No 1 Colliery Pty Ltd (14 June 2001, AIRC, Giudice P, Harrison SDP, Jones C, Print PR905197); Smith v Moore Paragon Australia (21 March 2002, Ross VP, Lacy SDP, Simmonds C, Print P915674). The order for reinstatement may also be made against an associated entity of the employer if the position with the employer no longer exists and the position, or an equivalent position, is available with an associated entity (s 391(1A)). In the recent decision of Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; BC201402745 Dodds-Streeton J reviewed the authorities on reinstatement and said at [856] and following, under the heading “The applicable principles and authorities”: [859] In Quinn v Overland (2010) 199 IR 40; [2010] FCA 799; BC201005256 at [97]–[98] (“Quinn”), Bromberg J observed that the historical reluctance to order specific performance of employment contracts had been modified by recognition of the realities of modern employment relations. His Honour stated at [98] that under modern statutory unfair dismissal regimes:

Dismissed employees are regularly reinstated into their former employments without apparent consequent difficulties. The long-standing nature of this remedy, and its acceptance as part of the industrial furniture, is a testament to the fact that as a matter of practice, a breakdown in confidence is not necessarily irreconcilable. [857] It is well established that reinstatement requires an employee to be restored to his or her former position with the same terms, conditions, benefits and work as were previously enjoyed: (authorities admitted). [858] In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) IR 186 at 191 (“Perkins”), the Full Federal Court (Wilcox, Marshall and North JJ) observed that a loss of trust and confidence, if “soundly and rationally based”, is relevant to determining whether reinstatement is appropriate. [859] A breakdown in confidence between an employer and employee is not necessarily fatal to reinstatement if sufficient trust and confidence for the particular employment relationship can be restored: (authorities omitted). Reinstatement orders In the past, reinstatement orders were rarely made. This was either because the applicant was prepared to accept monetary compensation or because the trust and confidence in the employment relationship had broken down. The bases upon which the former Australian Industrial Relations Commission found reinstatement to be “appropriate” or otherwise were as follows: where mutual trust and confidence cannot be restored or a satisfactory employment relationship cannot be re-established, an order for reinstatement may not be appropriate. Each case must be decided on its own merits. What is important is that that there is sufficient trust to make the relationship viable and productive (see Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; Ellawala v Australian Postal Corporation [page 548] (17 April 2000, AIRC, Ross VP, Williams SDP, Gay C, Print S5109)). However, a breakdown in trust and confidence cannot be the sole criterion or even a necessary one. All circumstances must be taken into account (Tenix Defence Pty Ltd v Galea (11 March 2003, Giudice J, Lawler VP, Bacon C, Print PR928494); where reinstatement would be futile or liable to result in termination again, reinstatement may not be appropriate (Phillis v Australian Department of Defence (2003) 125 IR 338); the fact that no vacancy exists does not provide a basis for refusing to order reinstatement (Chelvarajah v Global Protection Pty Ltd (2004) 142 FCR 296; 137 IR 334; [2004] FCA 1661; BC200408927; Smith v Capral Aluminium (7 October 1999, Whelan C, Print R9808)); where a business is no longer conducted, it may be inappropriate to order reinstatement (Chelvarajah v Global Protection Pty Ltd (2004) 142 FCR 296; 137 IR 334; [2004] FCA 1661; BC200408927); where there is an effluxion of time, this is not enough to make reinstatement inappropriate on its own (Crawford v Coal and Allied Operations Pty Ltd (9 July 2001, AIRC, Leary DP, Print PR906250 at [296]). If the FWC makes an order for reinstatement, it may also make orders to: (a) maintain the person’s continuity of employment or continuous service (s 391(2)); (b) cause the employer to pay the person back pay (ie remuneration lost) (s 391(3)).

Defining remuneration The term “remuneration” has been interpreted as including additional employee benefits such as superannuation contributions, accommodation, meals, etc. so that all income (as long as it is not reimbursement for expenses) forms part of an employee’s remuneration (Bell v McArthur River Mining Pty Ltd (1998) 81 IR 436 and GH Deane v Paper Australia Pty Ltd (6 June 2003, AIRC, Giudice P, Williams SDP, Simmonds C, Print PR932454)). Compensation If the FWC considers that reinstatement is inappropriate, it may make an order for compensation requiring an employer to pay the person who has been unfairly dismissed an amount of compensation in lieu of reinstatement (s 392(1)). In determining an appropriate amount of compensation, the FWC will take into account all of the circumstances of the case, including (s 392(2)): (a) the order’s effect on the viability of the employer’s enterprise; (b) the length of the employee’s service (GH Operations Pty Ltd (t/as The Grand Hyatt Melbourne) v Smith (14 May 2001, AIRC, Giudice P, O’Callaghan SDP, Smith C, Print PR904136); (c) the remuneration that the employee would have received or would have been likely to receive had he or she had not been dismissed; (d) any effort made by the employee to mitigate their loss (Vdoukakis v DJ Cussen Pty Ltd (23 July 2004, AIRC, Duncan SDP, O’Callaghan SDP, Redmond C, Print PR949780); (e) the amount of any remuneration that the employee earned from other employment or work between the dismissal and the making of the order; (f) the amount of any income that the person is reasonably likely to earn between the making of the order and the actual compensation; and (g) any other matter which the FWC considers relevant. (See also Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 and Smith v Moore Paragon Australia Ltd (2004) 130 IR 446.) The FWC will reduce the amount of compensation if it is satisfied that the misconduct of the employee contributed to the employer’s decision to dismiss them (s 392(3)). The amount of compensation must not comprise any compensation for shock, distress or humiliation or other analogous hurt, caused to the employee by the manner of the dismissal (s 392(4)). [page 549] Further, a cap is set on the amount of compensation that can be ordered. The cap is the lesser of effectively 26 weeks’ pay and an amount taken to be received by the employee whilst on leave without pay or full pay as prescribed by the regulations, or half the high income threshold as it was immediately prior to the dismissal (s 392(5)–(6)). A failure to pay compensation can lead to the imposition of fines. In the case of Fair Work Ombudsman v World Gym Sunshine Pty Ltd [2014] FCCA 2201; BC201401459 the Federal Circuit Court imposed a $41,182.50 fine upon the respondent, while the former sole director and part owner was ordered to pay a further $6426 in penalties. Judge O’Sullivan finding that “there is no evidence that the failure to comply with the FWC orders is not deliberate. Everything points to the likelihood that the first respondent until the commencement of these proceedings has wilfully ignored them.” Similarly, in the case of Alogaidi v Agad Property Consulting Pty Ltd [2014] FCCA 1883; BC201406835 Judge Hartnett of the Federal Circuit Court ordered that the respondent pay the applicant a pecuniary penalty in the sum of $40,800 in accordance with s 546 of the FW Act.

Unlawful termination under the Fair Work Act [Com 55,160] Definition Unlawful termination covers claims that a termination of employment was based on one or more prohibited reasons. In general, the laws regarding unlawful termination under the FW Act have largely been retained from WorkChoices. However, there are some significant modifications under the FW Act, which extend employees’ rights. [Com 55,170] What constitutes unlawful termination? The unlawful termination provisions apply to all employers. However, to the extent that national system employees are entitled to pursue a remedy for what is effectively unlawful termination under the general protection provisions (see [10,360]), they are prevented from bringing an action under the unlawful termination provisions (s 723). Therefore, it will generally only be employees who are not national system employees who can pursue actions for breach of the unlawful termination provisions. It is unlawful for an employer to terminate an employee on any of the following prohibited grounds (s 772(1)): (a) temporary absence from work due to illness or injury (see also s 352); (b) union membership or participating in union activities outside working hours, or with the employer’s consent during working hours; (c) non-membership of a union; (d) acting or seeking to act as an employee representative; (e) filing a complaint or participating in proceedings against an employer; (f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin; (g) absence from work due to maternity leave or parental leave; (h) temporary absence due to involvement in a voluntary emergency management activity. Exceptions It is not unlawful to terminate someone on the grounds in (f) if the termination is based on (s 772(2)): — the inherent requirements of the job (see Qantas Airways Ltd v Christie (1998) 193 CLR 280; 152 ALR 365; [1998] HCA 18; BC9800685; Cucanic v IGA Distribution (Vic) Pty Ltd (2005) EOC 93-367; [2004] FCA 1226; BC200406152); — the termination is against a staff member of an institution run in accordance with religious principles and the termination is in good faith and to avoid injury to the religious susceptibilities of adherents to that religion or creed. It is now unlawful to terminate someone on the grounds of carer’s responsibilities, which was not a prohibited ground under WorkChoices. [page 550] [Com 55,180] What rights does an employee have if they have been unlawfully terminated? If an employee is terminated on any of the above grounds, the employee or the employee’s union may apply to apply to the FWC for resolution of the dispute (s 773). An application must be made within 60 days of the termination or such further period that the FWC allows, based on exceptional circumstances (s 774). Once an application is made, the FWC will hold a private conference to deal with the dispute. The

dispute will be resolved by mediation or conciliation, or by the FWC making a recommendation or expressing an opinion (s 776). If the dispute cannot be resolved, despite all reasonable attempts, the FWC will issue a certificate to that effect (s 777). The FWC must advise the parties if it considers that an application to court would not have reasonable prospects of success (s 778 of the Act). Any court action must be initiated within 14 days of the FWC issuing the relevant certificate (s 779). The employee or the employer, an industrial association representing the employee or employer or a Fair Work Inspector can then make an application for orders in relation to unlawful termination to the Federal Court or the Federal Circuit Court (s 539). Where an employee alleges that an employer dismissed him or her based on any of the prohibited reasons, then it will be presumed that the action was, or is being, taken for that prohibited reason unless the employer can prove otherwise (s 783). That is, the onus is on the employer to establish that the employment was not terminated for the particular reason (see Robertson v South (2000) 140 IR 169; [2000] FCA 1402; BC200008596 at [13]–[16]; Laz v Downer Group Ltd (2000) 108 IR 244 at [25]– [26]). The court may order that an employer pay a penalty of up to $10,200 for individuals and $51,000 for corporations for a breach of the unlawful termination provisions (s 539 and s 546). Penalties against corporations are more severe than under WorkChoices. Any prescribed court may order an employer to pay an amount owing to, or on behalf of an employee (s 545(3)). The Federal Court or Federal Circuit Court may make any order they consider to be appropriate, including injunctions and interim injunctions, compensation for loss or reinstatement (ss 545(1)–(2)). Under WorkChoices, the amount of compensation that a court could order for unlawful termination could generally not exceed 6 months’ pay. Under the FW Act, there is no longer any cap on the amount of compensation that a court may order. [Com 55,190] What is adverse action? Employees are now protected from dismissal or threatened dismissal based on discriminatory grounds or due to the employee engaging in industrial activity or exercising a workplace right. Under the general protection provisions of the FW Act, an employer must not take adverse action (including dismissal or threatened dismissal) against an employee based on: (a) a “workplace right” that the person has, or has or has not exercised, or proposes to exercise (s 340(1)(a)), or to prevent a person from exercising a workplace right (s 340(1)(b)); (b) the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (s 351(1)); Practice Tip It is not unlawful to dismiss a person based on the discriminatory grounds in (a) if the dismissal was (s 351(2)): not unlawful under any anti-discrimination law in the relevant place; taken because of the inherent requirements of the job; or taken against a staff member of an institution run in accordance with religious principles and the termination is in good faith and to avoid injury to the religious susceptibilities of adherents to that religion or creed.

[page 551] (c) whether or not the person is an officer or member of an industrial association (s 346(a)); or (d) whether or not the person engaged, has engaged or proposes to engage in industrial activity (ss 346(b) and (c)). An employer will be taken to have acted for one of the above reasons, if it is one of its reasons for acting, even if there are other reasons (s 360). There is also a reversal of the onus of proof so that in this context, an employer would be presumed to have taken the adverse action based on whatever reason is alleged, unless it can prove otherwise (s 361). As the prohibitions on taking adverse action are civil remedy provisions, they may be enforced under general compliance provisions. In addition, where a person has been dismissed on any of the above grounds, that person or his or her union may apply to the FWC within 21 days of the dismissal or such further period as the FWC allows (s 366), for the FWC to deal with the dispute (s 365). Although the initial time limit for filing a general protection application involving a dismissal was initially 60 days, the Fair Work Amendment Act 2012 lowered the prescribed time limit to 21 days, the same time limit that applies to an unfair dismissal application (s 366(1)(a)). Once an application is made, the FWC will hold a private conference to deal with the dispute. The dispute will be resolved by mediation or conciliation, or by the FWC making a recommendation or expressing an opinion (s 368). If the dispute cannot be resolved, despite all reasonable attempts, the FWC will issue a certificate to that effect (s 369). The FWC must advise the parties if it considers that an application to court would not have reasonable prospects of success (s 370). Any court action must be initiated within 14 days of issuing the relevant certificate (s 371). The employee or the employer, an industrial association representing the employee or employer or a Fair Work Inspector can then make an application for orders in relation to a contravention to the Federal Court or the Federal Circuit Court (s 539). The court may order that an employer pay a penalty of up to $10,200 for individuals and $51,000 for corporations for a breach of the unlawful termination provisions (ss 539 and 546). The Federal Court or Federal Circuit Court may make any order they consider appropriate if satisfied that a person has contravened, or proposes to contravene, a civil remedy provision of the FW Act, including injunctions and interim injunctions, compensation for loss or reinstatement (ss 545(1)–(2)). An employee is now able to seek an interim injunction from a Court to prevent his or her employer from taking action to terminate his or her employment for discriminatory reasons or for reasons based on the employee’s involvement in industrial activities or exercise of a workplace right. That is, the employment relationship no longer needs to be terminated before an employee can seek a remedy. [Com 55,200] Notification to Centrelink of proposed terminations If an employer decides to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons, the employer must give written notice to Centrelink as soon as practicable (but prior to the termination), setting out the reasons for the terminations, the number and categories of employees likely to be affected and the time when, or the period over which, the employer intends to carry out the termination (s 785). If the employer does not comply with this requirement, it may result in a penalty of $5,100 for individuals or $25,500 for a corporation (ss 539 and 546). The Federal Court or Federal Circuit Court

may make any order they consider to be appropriate, including an order requiring the employer not to terminate the employment of the employees except as permitted by the order. However, an injunction will not be granted (s 785). [page 552] [Com 55,210] Requirement to give notice If an employer does not provide a dismissed employee with the required minimum notice period, then the termination of employment will be a breach of the National Employment Standards (NES) and therefore unlawful (s 44(1)). The employer must provide an employee with written notice of the day of termination, and the notice period must be in accordance with the following table (s 117):

Employee’s period of continuous service with the employer Not more than 1 year More than 1 year but less than 3 years More than 3 years but not more than 5 years More than 5 years

Minimum period of notice 1 week 2 weeks 3 weeks 4 weeks

If an employee is over 45 years of age and has completed at least 2 years of continuous service, 1 week of notice should be added to the required minimum period of notice (s 117(3)(b)). Alternatively, the employer may make a payment in lieu of notice of at least the amount the employer would have had to pay if the employee had worked out their minimum period of notice (s 117(2)(b)). However, there is no requirement to provide notice to the following categories of employees (s 123): (a) employees employed for a specified period of time, for a specified task, or for the duration of a specified season; (b) employees who are terminated because of serious misconduct; (c) casual employees; (d) employees, who are not apprentices, to whom a training arrangement applies and whose employment is for a specified time period or is limited to the duration of the training arrangement; (e) daily hire employees working in the building and construction industry, or the meat industry in connection with the slaughter of livestock; (f) weekly hire employees working in connection with the meat industry whose termination of employment is determined solely by seasonal factors; and (g) any other employees prescribed by the regulations.

If an employee is dismissed without notice or without payment in lieu of notice in accordance with the Act, then an employer has breached a provision of the NES. In this situation an employee, an employee association or a Fair Work Inspector may apply to the Federal Court, the Federal Circuit Court or any eligible State or Territory court for a remedy (s 539). The application need only be made within 6 years of the day that the relevant contravention occurred (s 544). The court may order that an employer pay a penalty of up to $10,200 for individuals and $51,000 for corporations for a breach of the unlawful termination provisions (ss 539 and 546 of the Act). The Federal Court or Federal Circuit Court may make any order they consider to be appropriate, including injunctions and interim injunctions, compensation for loss, or reinstatement (ss 545(1) and (2)). Further, an eligible State or Territory court may order an employer to pay an amount owing to, or on behalf of, an employee (s 545(3)). [page 553] [Com 55,220] Redundancy One of the most significant changes under the FW Act is the statutory entitlement to redundancy pay. The National Employment Standards (NES) provide for a national statutory minimum provision for the payment of redundancy pay when an employee’s position becomes redundant. One of the NES requires employers to pay redundancy pay to employees if the employee is terminated (s 119): (a) at the employer’s initiative, because the employer no longer requires the employee’s job to be performed by anyone (except when due to the ordinary and customary turnover of labour); or (b) because of the employer’s insolvency or bankruptcy. The entitlement to redundancy pay is in accordance with the following table:

Employee’s period of continuous service with the employer

Redundancy pay based on the employee’s base rate of pay for his or her ordinary hours of work (see s 16 of the FW Act) At least 1 year but less than 2 years 4 weeks At least 2 years but less than 3 years 6 weeks At least 3 years but less than 4 years 7 weeks At least 4 years but less than 5 years 8 weeks At least 5 years but less than 6 years 10 weeks At least 6 years but less than 7 years 11 weeks At least 7 years but less than 8 years 13 weeks At least 8 years but less than 9 years 14 weeks At least 9 years but less than 10 years 16 weeks At least 10 years 12 weeks

* There is a reduction in redundancy pay from 16 weeks to 12 weeks for employees with at least 10 years continuous service. This is consistent with the 2004 Redundancy Case decision made by the Australian Industrial Relations Commission. An employer may apply to the FWC for the amount of redundancy pay owed to employees to be reduced or varied if the employer obtains other acceptable employment for the employee or cannot pay the amount (s 120). The obligation to pay redundancy pay does not apply to the following categories of employees: (a) employees whose period of continuous service is less than 12 months (s 121); (b) employees employed by a small business employer (s 121); (c) employees employed for a specified period of time, for a specified task, or for the duration of a specified season (s 123(1)(a)); [page 554] (d) employees who are terminated because of serious misconduct (s 123(1)(b)); (e) casual employees (s 123(1)(b)); (f) employees to whom a training arrangement applies and whose employment is for a specified period of time or limited to the duration of the training arrangement (s 123(1)(d)); (g) apprentices (s 123(4)(a)); (h) employees to whom an industry-specific redundancy scheme in a modern award or enterprise agreement applies (subject to certain requirements) (s 123(4)(c)); (i) any other employees prescribed by the regulations (ss 123(1)(e) and 123(4)(d)). Some modern awards may also contain industry-specific redundancy schemes (s 141). A modern award may also specify other situations in which there is no obligation to pay redundancy pay (s 121(2)). Such a term may be incorporated into an enterprise agreement (s 121(3)). See P Vitale, ‘How will the fair dismissal code work?’, Victorian Employers’ Chamber of Commerce and Industry, 27 November 2007 http://www.vecci.org.au 10

____________________

DIVISION 1 — INTRODUCTION

[7-3840]

Guide to this Part

379 This Part is about the unfair dismissal of national system employees, and the granting of remedies for unfair dismissal. Division 2 sets out when a person is protected from unfair dismissal.

Division 3 sets out the elements that make up an unfair dismissal. Division 4 sets out the remedies the FWC can grant for unfair dismissal. Division 5 is about the procedural aspects of getting remedies for unfair dismissal. [Editor’s note: Section 379 of this legislation is reproduced in this format in line with the official version.] [s 379 am Act 174 of 2012 s 3 and Sch 9 item 391, opn 1 Jan 2013]

[7-3860]

Meanings of employee and employer

380 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). [s 380 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY TO SECTION 380*

Employee …. Derivation …. National system employee …. National system employer ….

[6-3860.1] [6-3860.5] [6-3860.10] [6-3860.15]

[6-3860.1] Employee In Muir v Higgins Manufacturing Australia t/as Higgins Manufacturing Pty Ltd [2010] FWA 7398, McCarthy DP was satisfied from the evidence that the Applicant was not an employee of the Respondent. In McCarthy DP’s view, the Applicant had an arrangement with the Respondent to provide a service of delivering the Respondent’s product. The nature of [page 555] that arrangement was a price paid per product delivered. The Applicant produced regular invoicesfor his payment, organised his own tax, owned his own vehicle and had control of his own finish times. It was also important to McCarthy DP that the Applicant seemed to also have the view that he was not an employee, evidenced by his refusal, and the nature of that refusal, to change his remuneration from a per item basis to a wage. Moreover, the control over the Applicant was minimal and dictated solely by the demands of the Respondent’s customers. [6-3860.5] Derivation The section is new. [6-3860.10] National system employee See ss 12, 13, 30C. [6-3860.15] National system employer See ss 12, 14, 30D. *Editors’ note: Commentary to s 380 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[7-3880]

Object of this Part

381 (1) The object of this Part is: (a) to establish a framework for dealing with unfair dismissal that balances: (i) the needs of business (including small business); and (ii) the needs of employees; and (b) to establish procedures for dealing with unfair dismissal that: (i) are quick, flexible and informal; and (ii) address the needs of employers and employees; and (c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement. (2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned. Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

DIVISION 2 — PROTECTION FROM UNFAIR DISMISSAL

[7-4070] When a person is protected from unfair dismissal 382 A person is protected from unfair dismissal at a time if, at that time: (a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and (b) one or more of the following apply: (i) a modern award covers the person; (ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold. [page 556] COMMENTARY TO SECTION 382*

Derivation …. Annual rate of earnings — s 382(b)(iii) …. Bonus …. Company vehicle …. Living away from home allowance …. Overtime …. Tax Benefits …. Covers the person — s 382(b)(i) …. Employee — s 382(a) …. Employer — s 382(a) …. Enterprise agreement — s 382(b)(ii) …. Modern award — s 382(b)(ii) …. High income threshold — s 382(b)(iii) …. Minimum employment period — s 382(a) …. Protected from unfair dismissal — s 382 …. The regulations — s 382(b)(iii) …. Outline of section ….

[7-4070.5] [7-4070.10] [7-4070.15] [7-4070.20] [7-4070.25] [7-4070.30] [7-4070.35] [7-4070.40] [7-4070.45] [7-4070.50] [7-4070.55] [7-4070.60] [7-4070.65] [7-4070.70] [7-4070.75] [7-4070.80] [7-4070.85]

[7-4070.5] Derivation The section is new. [7-4070.10] Annual rate of earnings — s 382(b)(iii) See s 332. The definition of earnings in that section does not include, inter alia, payments the amount of which cannot be determined in advance and reimbursements. The authorities are not totally clear as to which payments fall within that section. In Mr Brian Tuohy v Polyfoam (Australia) Pty Ltd [2010] FWA 9112; BC201071178 (1 December 2010), the tribunal held that the amount is the amount paid over the year rather than the rate of pay at the date of dismissal. At [71], Cmr Cribb stated that the “annual rate of earnings” contained in s 382(b) (iii) of the Act does not … simply refer to the person’s annual rate of pay as at the date of dismissal. It would be unfair if this was the case in situations where a person was not paid the same rate of pay for all of the previous 12 months.

By contrast, SDP Hamberger held in Zappia v Universal Music Australia Pty Ltd t/as Universal Music Australia [2012] FWA 3208, Sydney, (18 April 2012) held that: If Parliament had wished to refer to the average amount earned over the previous 12 months it could easily have done so. I note, for example, that in setting the compensation cap in relation to unfair dismissal, s 392 specifically refers to the amount that the employee received (or was entitled to) during the 26 week period immediately before the dismissal. That decision was upheld on appeal with the Full Bench stating: It is clear that the time at which the annual rate of earnings must be ascertained is at the time of the termination of the person’s employment. What needs to be ascertained is the annual rate of earnings at that time, not the annual earnings to that time (the amount earned in the 12 months to that time). Zappia v Universal Music Australia Pty Limited T/A Universal Music Australia, (2012) 225 IR 122; [2012] FWAFB 6108 at [9]. [page 557] This position has since been affirmed in Darling v Bechtel Australia Pty Ltd [2015] FWC 1242 at [7]: The annual rate of earnings is to be assessed as at the time of dismissal. It is not an assessment of the actual earnings in the 12 months immediately prior to dismissal. [7-4070.15] Bonus A bonus given to an employee that is not guaranteed should not be included in the calculation of an employee’s earnings for the purposes of the high income threshold: Ablett v Gemco Rail Pty Ltd [2010] FWA 8124 (22 October 2010) at [26]. [7-4070.20] Company vehicle Where a motor vehicle is provided to an employee in lieu of salary that might otherwise have been paid, it is appropriate that the private benefit derived by the employee from the provision of the motor vehicle be counted as part of the employee’s remuneration. Where, however, the vehicle is provided for business purposes and the employee’s entitlement to private use is purely incidental, the provision of the motor vehicle should be treated no differently to the provision by the employer of any other tool or piece of equipment essential to the performance of the job: Rofin Australia Pty Ltd v Newton [1997] 78 IR 78 at 82–83. See also Batley v Cocos Islands Co-operative Society Ltd [2010] FWA 2289, Perth, (29 March 2010) at [37]–[38]. In HW Fewings v Kunbarllanjnja Community Government Council — 519/98 S Print Q0675 [1998] AIRC 268 (2 March 1998), the Full Bench held that the most appropriate method of calculating the value of the motor vehicle component of an applicant’s remuneration is as follows: 1. 2. 3. 4. 5.

Determine the annual distance travelled by the vehicle in question. Determine the percentage of the annual distance travelled which was for the applicant’s private purposes. Multiply the figures from 1. and 2. This provides the annual distance travelled for private purposes. Estimate the cost per kilometre for a vehicle of the type used. This information can be obtained from the RACV, NRMA or like motoring organisations. Multiply the annual distance travelled for private purposes by the estimated cost per kilometre. The result is the value of the motor vehicle component of the applicant’s

remuneration. In that case, the Full Bench stated that the ATO formula may be used in circumstances where the parties agree that it will provide a reliable estimate. The Bench rejected its use in that case. Travel from home to the normal place of work has long been held to be for a private purpose: see Karlovic v ASU Print 931531 [2003] AIRC 517 at [29] (16 May 2003). The point there seems to have been conceded. As to travel to work as a private expense, see Lunney v Federal Commissioner of Taxation (1958) 100 CLR 478; [1958] ALR 225; (1958) 32 ALJR 139; BC5800200. In Slain v Horizon Holdings Pty Ltd [2012] FWA 2424, Commissioner Bissett held that the private use of a company car was a non-monetary benefit for the purposes of the FW Act. However, the parties had not agreed on a monetary value for the use of the car. Commissioner Bissett concluded that the notional monetary value of the private use of a company car could be assessed by reference to kilometre usage, and that the notional value of the car should be included in the assessment of the employee’s annual salary. In Chang v Ntscorp Ltd [2010] FWA 1952; BC201070766 at [28] (9 March 2010), SDP Hamberger held that failure to include FBT in the value of a fringe benefit would be (significantly) to underestimate its value to the employee. This is contrasted with the decision of Commissioner Bissett in Dickerson v IT Now Group Pty Ltd t/as IT Now [2010] FWA 1712 (4 March 2010) who held that employers’ fringe benefits tax payments should not be counted in determining an employee’s earnings, for the purposes of determining whether the employee is excluded from an unfair dismissal claim. [page 558] [7-4070.25] Living away from home allowance Part of an employee’s living away from home allowance, which is in the nature of compensation to the employee for being required to live away from his usual place of residence, will not be considered “earnings” for the purposes of s 382(b) of the Fair Work Act 2009: Mr Lee C v CLS Pty Ltd [2009] FWA 779; BC200970404 at [16], [18] and [22] (23 October 2009). See also Priddis v Komatsu Australia Pty Ltd [2015] FWC 2406. [7-4070.30] Overtime Overtime Amounts for overtime have been excluded as they cannot be determined in advance: Mallows v Touchbase Asia Pacific Pty Ltd t/as Touchbase Asia Pacific [2011] FWA 1695; BC201170381 at [7] (18 March 2011). Superannuation Moreover, compulsory superannuation contributions made by an employer as required by the Superannuation Guarantee Charge Act 1992 are expressly excluded from the calculation of an employee’s earnings by virtue of s 332(2)(c): Ablett v Gemco Rail Pty Ltd [2010] FWA 81 24 at [31] (22 October 2010). Furthermore, an amount which the employer claimed was given to the employee for “educational expenses” was found to be a reimbursement for expenses he incurred and consequently was excluded from the calculation of the employee’s earnings by s 332(2)(b) of the Fair Work Act 2009: Ablett v Gemco Rail Pty Ltd at [33]. [7-4070.35] Tax Benefits The benefit of a tax reduction can be taken into account for the purpose of the threshold. As Cmr Williams held in Atkinson v Midway Community Care Inc [2010] FWA 2907; BC201070662 at [46] (13 April 2010): In this instance the applicant received a benefit agreed with the respondent that he would be able to salary sacrifice various amounts of his salary at will. He took advantage of that and did receive a benefit namely a reduction in the amount of income tax he paid. In the circumstances I find that this benefit should be considered when assessing whether the high income threshold applies.

The same principle applies to payments upon which tax was not paid: George v ParkTrent Properties Group Pty Ltd [2013] FWC 7447; BC201374956 at [102]. [7-4070.40] Covers the person — s 382(b)(i) The requirement that the modern award cover the employee “necessitates the application of s 48 of this Act, rather than the alterative narrower concept of the award applying as canvassed in s 47”: Taylor-Hunt v Downer EDI Works Pty Ltd [2010] FWA 4626 (5 July 2010) at [37]. See also Emery v Cape Australia Holdings Pty Ltd [2014] FWC 1659. [7-4070.45] Employee — s 382(a) See s 12 and s 380. [7-4070.50] Employer — s 382(a) See s 12 and s 380. [7-4070.55] Enterprise agreement — s 382(b)(ii) See s 12. [7-4070.60] Modern award — s 382(b)(ii) See s 12. In determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed: Carpenter v Corona Manufacturing Pty Ltd, (2002) 122 IR 387; PR925131 at [9] (17 December 2002). In Tucker v Digital Diagnostic Imaging Pty Ltd [2011] FWA 1767; BC201170338 at [22] (24 March 2011), Cambridge C held that: Some of the factors which appear to regularly contribute to the determination of the principal purpose for which an employee was engaged include: [page 559] the contents of any job description, person specification or job advertisement; the level of remuneration assessed against award levels of remuneration and also considered in the context of remuneration levels within the employing organisation; the actual time occupied in different duties (a substantive role/function analysis); the status and level of the position occupied within the organisational structure; possession or absence of particular qualifications and whether such qualifications are necessary to the exercise of the primary functions that are performed; the exercise of authority and direction over others including in particular, the extent of such authority; the level of importance and relevance of particular duties in the context of the employing organisation’s overall purpose; the level of decision-making capacity in the context of the employing organisation’s overall operation; the nature and extent of any role as representative of the employing organisation to third parties. [7-4070.65] High income threshold — s 382(b)(iii) See s 333 and reg 2.13 of the Fair Work Regulations 2009. [7-4070.70] Minimum employment period — s 382(a) See s 383. [7-4070.75] Protected from unfair dismissal — s 382 See s 12.

[7-4070.80] The regulations — s 382(b)(iii) See reg 3.05. [7-4070.85] Outline of section “A person is not protected from unfair dismissal unless the requirement in s 382 is met”: Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709 (16 September 2010) at [8]; (2010) 198 IR 237. If an employee is covered by a modern award they are protected from unfair dismissal and it is not necessary to determine their annual rate of earnings for the purpose of the high income threshold: Tauri v Flight Centre Ltd [2010] FWA 7718 (14 October 2010) at [30]. *Editor’s note: Commentary written by Joe Catanzariti, Vice President FWC and Michael Byrnes, Special Counsel, Clayton Utz. Updated by Michael Byrnes, Special Counsel, Clayton Utz. All other commentary by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[7-4090] period

Meaning of minimum employment

383 The minimum employment period is: (a) if the employer is not a small business employer — 6 months ending at the earlier of the following times: (i) the time when the person is given notice of the dismissal; (ii) immediately before the dismissal; or (b) if the employer is a small business employer — one year ending at that time. COMMENTARY TO SECTION 383* [7-4090.01] Derivation Section 643(7) of the Workplace Relations Act. [7-4090.05] Dismissal — s 383(a)(i), (ii) See s 386. [7-4090.10] Employer — s 383(a), (b) See s 380. [page 560] [7-4090.15] Month — s 383(a) Section 22(1)(b) and (g) of the Acts Interpretation Act 1901 applies to the calculation of the minimum period of employment as it applies to any other similar such statutory time period, where no contrary intention is evidence: Prigge v Manheim Fowles Pty Ltd [2010] FWA 28 at [11]. Those sections are set out at [10] being that: Section 22(1) of the Acts Interpretation Act includes: “In any Act, unless the contrary intention appears: … (b) ‘Month’ shall mean calendar month; … (g) ‘Calendar month’ means a period

commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month”. [7-4090.20] Notice of the dismissal — s 383(a)(i) In Sharkey v Serco Australia Pty Ltd [2010] FWA 7740 Commissioner Thatcher said at [45]: In my view, in circumstances where termination of employment does not occur in a face-to-face situation, for the purposes of para 383(a), the time when the person is given the notice occurs at a time when the communication could ordinarily be expected to be received, even though that may be earlier than when the dismissal becomes effective (which is the second of the alternatives). For example if the termination is given by email, a notice of termination is “given” at a point in time when, given the particular circumstances, that email could ordinarily be expected to be received. (emphasis added) On the facts at hand, it was held that the employee was notified of her dismissal at the time at which a termination letter was couriered to her home. In making this finding, Commissioner Thatcher, at [46], relied on the following factors (inter alia): the employee had earlier indicated that she wished for communications to occur via correspondence; in accordance with this direction the employer had on a past occasion couriered a letter to the employee which was received by the employee on the same day; and the employee had at no time informed the employer that she was unable to accept couriered letters. In relation to s 383(a)(ii) it was said in obiter dicta, at [47], that: “I would not have relied on common law case law which supports the proposition that the termination of a contract of employment cannot have effect without communication of the termination to the employee”. That theme was continued in obiter fashion in Wilson v Australian Taxation Office [2001] AIRC 163 at [11]; Print PR901127: … Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of the termination to the other party. We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received. There may be a qualification to that general position. It may be that, in some circumstances, a termination is effective when its communication could ordinarily be expected to have been received. If an employer has attempted in good faith to communicate the termination and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances termination occurred despite the fact that it has not physically been communicated to the employee. Those circumstances did not, however, exist in this matter and we therefore refrain from further discussion of the point. [7-4090.25] Small Business Employer — s 383(a), (b) See ss 12 and 23. [page 561] [7-4090.30] Outline of section “[A]n employee who has not completed the minimum period of employment … does not have ‘access to an unfair dismissal remedy’, as item 1512 of the Explanatory

Memorandum puts it”: Prigge v Manheim Fowles Pty Ltd [2010] FWA 28 at [16]. *Editor’s Note: Commentary to Notice of Dismissal written by Joe Catanzariti, VP FWC and Michael Byrnes, Special Counsel, Clayton Utz. Updated by Michael Byrnes, Special Counsel, Clayton Utz. All other commentary by Ian Latham BA (Hons) LLB (ANU), Barrister.

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[7-4110]

Period of employment

384 (1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee. (2) However: (a) a period of service as a casual employee does not count towards the employee’s period of employment unless: (i) the employment as a casual employee was on a regular and systematic basis; and (ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and (b) if: (i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and (ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and (iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer. COMMENTARY TO SECTION 384*

Casual employee ….

[7-4110.1]

“Regular and systematic requirement” ….

[7-4110.5]

[7-4110.1] Casual employee See [5-1490.15]. In Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709; (2010) 198 IR 237 the Full Bench held that s 384 must be considered against the background of the common law of employment with respect to casual employees. However, the Full Bench held at [11] that the criteria in s 384(2)(a) make it clear that s 384 does not proceed on the basis that a casual employee’s “period of employment” for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment. The Full Bench further held at [12] that s 384(2) draws a distinction between a “period of service” and a “period of employment” and also draws a distinction between “a period of continuous service” and “a period of service”. This meant that it was clear from the language of s 384(2) that an employee may have a series of contiguous periods of service with an employer that may count towards a [page 562] single “period of employment” with that employer. However, any given period of service in such a contiguous series of periods of service will count towards the employee’s “period of employment” only if the requirements in s 384(2)(a)(i) and (ii) are met. Moreover, s 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s 382(a). The Full Bench held at [13] that: Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make [sic] it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s 384. In particular, a period of continuous service within the meaning of s 384(1) is not to be seen as broken by a period of “leave” or an absence due to illness or injury. On the facts of the case before it, the Full Bench held that the employee’s employment was continuous as there were a total of four isolated weeks in the period of almost three years when the employee performed no work. Those breaks should not be treated as a discontinuity in the employment such that periods of service before them should be discounted. Accordingly, the Full Bench overturned Cloghan C’s decision at first instance that the employee had not completed the minimum employment period with the employer. [7-4110.5] “Regular and systematic requirement” In Ponce v DJT Staff Management Services Pty Ltd t/a Daly’s Traffic [2010] FWA 2078, Roe C cautioned against placing too much reliance on cases decided under WorkChoices “given the significant change in the nature of the jurisdictional hurdles”: at [60]. In relation to the requirement that the employee be engaged on a “regular and systematic” basis, Roe C said that the requirement applied to the employment itself and not to the hours or days of work performed by the employee. In his view, the outcome will depend on the facts of each case but that in general, a clear pattern or a roster for the hours and days worked provides strong evidence of regular and systematic employment. However, where the hours worked is small and the gaps between days and times worked is long and irregular, there needs to be other evidence that the employment is regular and

systematic. Where an employee does not work a pattern or roster of hours and days or have a clearly agreed arrangement, there are other indicia of both regular and systematic employment and a reasonable expectation of continuing employment, including where: The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular. The employee works full-time hours over an extensive period. Roe C also said that the wording of s 384(2)(a) suggested that the 6 month qualifying period could be made up by combining periods of casual, full-time or part-time employment and that the complying period need occur immediately before the dismissal: at [80]. In National Union of Workers v Coles Group Supply Chain Pty Ltd [2011] FWA 167, Commissioner Bissett, in finding that the employee had performed “regular and systematic” work, took into account the fact that there was no evidence to suggest that the employee rejected work when it was offered, that he was irregular in the work he accepted or even that the work offered was irregular. *Editor’s note: Commentary written by Joe Catanzariti, VP FWC and Michael Byrnes, Special Counsel, Clayton Utz. Commentary updated by Michael Byrnes, Special Counsel, Clayton Utz. Joe and Michael would like to acknowledge the contributions of Rita Bhattacharya and Connie Hayllar to the preparation of this chapter.

____________________ [page 563]

DIVISION 3 — WHAT IS AN UNFAIR DISMISSAL

[7-4300]

What is an unfair dismissal

385 A person has been unfairly dismissed if the FWC is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy. Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388. [s 385 am Act 174 of 2012 s 3 and Sch 9 item 391, opn 1 Jan 2013] COMMENTARY ON SECTION 385

Dismissed — s 385(a), (b), (c), (d) ….

[7-4300.01]

FWC — s 385 …. Genuine redundancy — s 385(d) …. Harsh, unjust or unreasonable — s 385(b) …. Satisfied — s 385 …. Small Business Fair Dismissal Code — s 385(c), Note …. Outline of section ….

[7-4300.02] [7-4300.05] [7-4300.10] [7-4300.11] [7-4300.15] [7-4300.20]

[7-4300.01] Dismissed — s 385(a), (b), (c), (d) See s 386. [7-4300.02] FWC — s 385 See s 12 definition of “FWC”. [7-4300.05] Genuine redundancy — s 385(d) See s 389. [7-4300.10] Harsh, unjust or unreasonable — s 385(b) In Toms v Harbour City Ferries Pty Ltd (2015) 321 ALR 224; [2015] FCAFC 35 at [10]–[18]; BC201501539, Buchanan J traced the history of the phrase, stating at [16] that: The term “harsh, unjust or unreasonable” had its general federal award origins in the decision by the Australian Conciliation and Arbitration Commission in the Termination, Change & Redundancy Case (1984) 26 AILR 256; 294 CAR 175; 8 IR 34 … which approved a standard clause to be inserted in federal awards. The standard provision was in the following terms: Termination of employment by an employer shall not be harsh, unjust or unreasonable. For the purposes of this clause, termination of employment shall include terminations with or without notice. Earlier at [11]; he stated that: Before it was used as a statutory test about unfair dismissal, the term “harsh, unjust or unreasonable” was already established as an award provision prohibiting termination of employment of that character. Before that, expressions very similar to it were frequently used by industrial tribunals in Australia as a test to examine claims for reinstatement after dismissal. “These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated … a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are [page 564] the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct”: Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20; 34 AILR 186; 41 IR 452; BC9203429 Sheppard and Heerey JJ at FCR 28. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust

because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted: Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422; 69 ALJR 797; BC9506439. As the Court of Appeal held in Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Secretary of The Treasury [2014] NSWCA 112; BC201402421 at [70], [75], [76] in relation to similar wording in the Industrial Relations Act 1996 (NSW): The length of prior employment, the employment record and favourable character considerations may all be relevant to determining whether relief should be granted. Further, in reaching a final determination, it was necessary to consider separately the possibility that dismissal might be “harsh”, although not unjust or unreasonable … Noting that in many cases the concepts will overlap, McHugh and Gummow JJ also pointed out that termination of employment “may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” The Commission is not required to deal with every possible consideration in determining that test. As the Full Federal Court held in Toms v Harbour City Ferries Pty Ltd (2015) 321 ALR 224; [2015] FCAFC 35; BC201501539 at [1], [2], [107]–[108]: The argument of the applicant sought to elevate from the broad evaluative sweep of the judgment of what is harsh, unjust and unreasonable in s 385(b), a statutory requirement to give weight to each and every factor that could be said to weigh in the balance in favour of an applicant as a consequence of termination. Section 385(b) fulfils no such function. The FWC is entitled to approach its task by focusing on considerations it considers to be relevant (while also complying with s 387). [7-4300.11] Satisfied — s 385 “[T]he applicant in an unfair dismissal case bears the risk of failure if the state of satisfaction required by s 385(d) cannot be reached. If the Deputy President considered the evidence insufficient to allow him to determine whether redeployment was reasonable under s 389(2), then … he could not be satisfied that the dismissals were not genuine redundancies, meaning that the applications before him had to be dismissed”: Teterin v Resource Pacific Pty Ltd (2014) 244 IR 252; [2014] FWCFB 4125 at [32]. See also [8-1650.45]. [7-4300.15] Small Business Fair Dismissal Code — s 385(c), Note See s 388. [7-4300.20] Outline of section Fair Work Australia, as it then was, must be satisfied in relation to each paragraph in s 385(a)–(d) for a person to have been unfairly dismissed: Explanatory Memorandum to the Fair Work Act [1527]. The section acts as a gateway to the exercise of jurisdiction under s 390. [page 565] There is often a question as to whether the Commission deals with the application as an appeal from the decision of the employer or anew. As Wilcox CJ held in Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at [205]–[206]:

The Court is not concerned with the question whether, upon the information available to the employer, the conclusion reached by the employer was, or was not, a reasonable one. I agree that the Court “does not sit as an appeal” from the employer’s decision; but only because the reference to an appeal implies that the Court is concerned to examine the employer’s decision-making process. It is not. It is concerned to ascertain whether there was a valid reason for the conclusion that the employee’s employment should be terminated. The Court does this for itself, and on the basis of the evidence of the primary facts placed before it. In similar vein, the Full Bench held in Australian Meat Holdings v McLauchlan (1998) 84 IR 1 at [14]: Findings made by an inquiry established by the employer will be relevant to the Commission’s determination of the issues before it provided it is established that: the employer conducted a full and extensive investigation into all of the relevant matters as was reasonable in the circumstances; the employer gave the employee every reasonable opportunity to respond to allegations; and the findings were based upon reasonable grounds. While such findings are relevant they do not conclusively determine whether the termination was harsh, unjust or unreasonable. That issue is to be decided by the Commission on the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient inquiry, that that employee was guilty of the conduct which resulted in termination. Editor’s note: Commentary to Harsh, unjust or unreasonable by Michael Byrnes, Special Counsel, Clayton Utz. All other commentary by Ian Latham BA(Hons)/LLB, ANU, Barrister, Sydney.

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[7-4320]

Meaning of dismissed

386 (1) A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. (2) However, a person has not been dismissed if: (a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or (b) the person was an employee: (i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or (c) the person was demoted in employment but: (i) the demotion does not involve a significant reduction in his or her remuneration or duties; and (ii) he or she remains employed with the employer that effected the demotion. [page 566] (3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part. COMMENTARY TO SECTION 386*

Derivation …. Avoid the employer’s obligations — s 386(3) …. Constructive Dismissal …. Course of conduct — s 386(2)(b) …. Demotion …. Employee — s 386(2)(b) …. Employer — s 386(1)(a), (b), (2)(c)(ii), (3) …. Forced — s 386(1)(b) …. Season — s 386(2)(a) …. Significant reduction — s 386(2)(c)(i) …. Specified period — s 386(2)(a) …. Terminated on the employer’s initiative — s 386(1)(a) …. Training Arrangement — s 386(2)(b)(i), (ii) ….

[7-4320.05] [7-4320.10] [7-4320.15] [7-4320.20] [7-4320.25] [7-4320.30] [7-4320.35] [7-4320.40] [7-4320.45] [7-4320.50] [7-4320.50.01] [7-4320.55] [7-4320.60]

Outline of Section ….

[7-4320.65]

[7-4320.05] Derivation Section 386(1) is loosely derived from s 642(4) of the Workplace Relations Act 1996. Section 386(2)(a) is loosely derived from s 638(1); s 386(2)(b) is derived from s 638(1)(e) and s 386(2)(c) is derived from s 642(3) of the Workplace Relations Act 1996. [7-4320.10] Avoid the employer’s obligations — s 386(3) The Explanatory Memorandum to the Fair Work Bill 2008 states at [1536] that s 386(3) is an anti-avoidance rule. It provides that where a substantial purpose of a person’s engagement on a contract for a specified period of time, task or season is to avoid the employer’s obligations under the unfair dismissal provisions, then s 386(2)(a) does not apply. [7-4320.15] Constructive Dismissal In Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, the Full Court noted that “a termination of employment at the initiative of the employer may be treated as termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.” See also Mihajlovic v Lifeline Macarthur (2014) 241 IR 142; [2014] FWCFB 1070. In Harley v Aristocrat Technologies Australia Pty Ltd (2010) 202 IR 369; [2010] FWA 62, a business development executive resigned after receiving a letter requiring him to show cause as to why he should not be dismissed. The executive claimed that he was being unfairly targeted by his supervisor but the HR manager did not investigate his allegations of bullying and harassment. Deegan C held that he had been constructively dismissed, stating that a “proper investigation” of the allegations should have been undertaken: at [47]. The employer was ordered to pay a maximum of 6 months’ compensation. Moreover, in Little v Petfood Processors (WA) Pty Ltd [2010] FWA 5753; BC201070135, a manager who was given an ultimatum to resign or alternatively face an unpleasant performance review was found to have been constructively dismissed. Cloghan C held that the manager had been given a chance to fall on his sword or “stay and enter the door of ‘formal warnings’ which would ultimately lead to his termination of employment”: at [68]. [page 567] This can be contrasted with the decision in Secker v Leighton Contractors Pty Ltd & MacMahon Contractors Pty Ltd [2010] FWA 5780 where a rigger was found to have resigned. The rigger had walked off the construction site complaining of a headache; however, he failed to notify his supervisor. The following day he had a meeting with the construction supervisor and superintendent. The employee claimed that during the meeting he was continually interrupted, leading to him stating words to the effect of “We all know why we are here, just … get on with it and get me the hell out of here”: at [25]. He then signed some documents and was informed his employment was being terminated. Despite the fact the employee claimed he had been forced out, Williams C held that he had resigned. The Full Bench of Fair Work Australia considered the issue of whether an employee has been dismissed in Dover-Ray v Real Insurance Pty Ltd [2010] FWAFB 2670; (2010) 194 IR 22. In this decision, the employee had made a complaint of sexual harassment against a manager. The employer conducted an investigation in relation to that complaint and concluded that it was not substantiated because the conduct as alleged had not occurred. It wrote to the employee, on 1 May 2009, informing her of this outcome. In a separate letter to the appellant’s solicitor on that day, the employer asked Ms Dover-Ray to “show cause” why her employment should not be terminated. The appellant had published information on a social networking site criticising the conduct of her employer and the

outcome of her complaint. In the employer’s view this damaged its reputation. The employee sent an email to the employer expressing her shock and disappointment at the employer’s approach. Her solicitor also wrote a letter to the employer providing a response to the “show cause letter”. The employer then sent a further letter to Ms Dover-Ray which questioned whether the employee wanted to tender her resignation in light of her opinion of her employer and stated that her conduct warranted summary dismissal. The employee’s solicitor sent three letters in response to this letter however no response was given by the employer. The employee then brought a claim for unfair dismissal claiming that she had been constructively dismissed by these letters. The employer contended that it had threatened summary dismissal; however it had not taken the final step of actually dismissing the employee. At first instance, Raffaelli C held that although it was clear the employer wanted the employee to resign, at no time did the employer tell her she was dismissed nor engage in other conduct such as failing to pay wages or repudiating the employment contract. The Full Bench first noted that the appellant did not resign her employment, rather at all times she objected to the prospect of her employment being terminated. The Full bench noted that “the test for intention is not a subjective one depending on the actual intention of the repudiating party. Intention is to be judged from what the other party reasonably infers from the actions or words of the party who is alleged to have repudiated the contract”: at [22]. Moreover, an employment contract would not come to an end unless the other party elected to accept the repudiation of the contract. The Full Bench held that when viewed in their totality, the actions of the respondent showed an unwillingness to continue the employment of the appellant amounting to a repudiation of her contract of employment, which was accepted by the appellant when she filed her unfair dismissal application. The Full Bench held that the employee had provided a response to the show cause letter and that the later letters from the employer showed that this response was not accepted. The respondent’s letter of 21 May 2009 offered a mutually agreed separation by way of resignation and specified a clear timeframe within which that offer was open for acceptance. The Full Bench held that a reasonable person in the position of the appellant would have concluded that the respondent had decided to terminate the appellant’s employment and the only issue was whether this would be by way of resignation or dismissal. In Owens v Allied Express Transport Pty Ltd [2011] FWA 1058; BC201170247, it was suggested that the test to determine whether a termination is at the initiative of the employer, involves an objective analysis of the employer’s [page 568] conduct to determine whether it was of such a nature that resignation was the probable result, or that the employee had no effective or real choice but to resign due to the employer’s actions. In this instance, Ms Owens gave news to her employer that she was pregnant, and it was agreed between the two parties that she would leave on unpaid maternity leave for six months and she would resume her role following the maternity leave. The parties discussed the option of varying her role to involve less travelling in the lead up to taking her maternity leave. Ms Owens acknowledged that this was likely to involve a reduction in salary and a potential change in her role, but nothing was agreed between the two parties. Not long after the discussion, the employer advised Ms Owens of her transfer to another role, with a reduction of remuneration by $10,000. Ms Owens declined to sign the letter, and left the meeting. A few days after, she received a further revised letter which recalculated her income, reducing it by a further $8,000. Ms Owens also refused to sign this letter. Fair Work Australia ultimately found that the employee had been dismissed because when the employer decided to implement these changes, despite the lack of agreement, it was probable that the

employment relationship would end. [7-4320.20] Course of conduct — s 386(2)(b) See [8-5780.10]. [7-4320.25] Demotion A demotion which at common law would amount to a termination of the employee’s contract may be a “termination of employment”: Hermann v Qantas Airways Limited [2001] AIRC 316 at [74]. [7-4320.30] Employee — s 386(2)(b) See s 380. [7-4320.35] Employer — s 386(1)(a), (b), (2)(c)(ii), (3) See s 380. [7-4320.40] Forced — s 386(1)(b) The critical verb in s 386(1)(b) of the Act is “forced”. That is, in order for a resignation to be “at the initiative of the employer” it must be forced upon the applicant by the course of conduct of the employer: Mendicino v Tour-Dex Pty Ltd [2010] FWA 9114; BC201071164 at [7]. See also Morley v Intelitec Pacific Pty Ltd [2015] FWC 3168. It requires there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” O’Meara v Stanley Works Pty Ltd PR973462 [2006] AIRC 496 at [23]. The principles enunciated by the Full Bench require the resolution of a number of underlying questions: (i) The first question requires a determination as to whether or not there is sufficient evidence that there was indeed or in fact a resignation and that such a resignation took place and occurred and so forth. (ii) The second question to be determined is to establish objectively the factual matrix that contextualised the resignation. That is, what were the surrounding circumstances as objectively evaluated and constructed, not as subjectively believed by the relevant parties. (iii) The third question concerns whether that factual context as found to exist can support an inference or a conclusion that the employee was forced to resign his or her employment and have no other reasonable choice other than to do so: Mendicino v Tour-Dex Pty Ltd [2010] FWA 9114 at [11]–[14]. The term “force” appears to encompass both the application of physical power to directly achieve a result and the actions of a person to persuade or otherwise convince another for the same purposes. In either case, there is an important element of compulsion present: Annette Megna v No 1 Riverside Quay (SEQ) Pty Ltd [2006] AIRC 519 at [16]. [page 569] There is a respectable line of English authority for the proposition that a resignation given in heat or in a state of emotional stress or as a result of being jostled into a decision by the employer, may be withdrawn: Achal v Electrolux Pty Ltd (1993) 50 IR 236; 143 QGIG 144 at 238 although compare Birrell v Australian National Airlines Commission (1984) 5 FCR 447; 9 IR 101 at 457–8 per Gray J. In that case, Gray J acknowledged the possibility of withdrawal where it occurred swiftly. See the discussion in Transport Workers’ Union of New South Wales and WSN Environmental Solutions [2010] NSWIRComm 27 at [78] as to circumstances where a retraction of a resignation, not given “swiftly”, might still amount to a constructive dismissal. In State of New South Wales v Paige (2002) 60 NSWLR 371; (2002) Aust Torts Reports 81-676;

[2002] NSWCA 235; BC200204074 at [286], Spigelman CJ, after referring to many of the authorities, held that by “reason of the significant purposes served by the common law principle, the qualification should be restricted to circumstances in which the act of the resignation was not, in truth, a manifestation of the personal autonomy of the individual”. [7-4320.45] Season — s 386(2)(a) Paragraph 1534 of the Explanatory Memorandum to the Fair Work Bill 2008 states that “season” has its ordinary meaning and covers a range of things, for example: the part of a year when a product is best or available; the part of a year characterised by particular conditions of weather or temperature; or the part of a year marked by certain conditions, festivities or other activities. [7-4320.50] Significant reduction — s 386(2)(c)(i) The authorities provide that the change in duties necessary to bring about a termination by the employer must be able to be described as “fundamental” or “significant”, go to the heart of the relationship, or involve circumstances where the new position has resulted in being a “job quite different” from that which the employee was originally engaged to do: Travis Manton v Belgian Beer Café Brussels Pty Ltd [2007] AIRC 933 at [37]. [7-4320.50.01] Specified period — s 386(2)(a) In the case of Andersen v Umbakumba Community Council (1994) 126 ALR 121; 56 IR 102; 1 IRCR 457; (1995) 30(1) AustLawyer 42h (note) his Honour von Doussa J traced the history of the provision (in relevantly similar terms) back to the Termination of Employment Convention. He further considered the meaning of the phrase “a specified period” at IR 106: The ordinary meaning in the English language of “to specify” is to mention, speak of, or name (something) definitely or explicitly; to set down or state categorically or particularly; to relate in detail: Shorter Oxford English Dictionary, 3rd Edition … A “specified period of time” is a period of time that has certainty about it. A contract of employment for a specified period of time would be one where the time of commencement and the time of completion are unambiguously identified by a term of the contract, either by the contract stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment. As the period of time is defined in this way, it is apt to refer to a contract of employment for a specified period of time as a contract of employment for a fixed term… A contract of employment to run throughout a nominated number of days, weeks, or years would be a contract of employment for a specified period of time. If the terms of the contract of employment, instead of identifying in this manner the period of time during which it is to run, provides that it is to run until some future event, the timing of the happening of which is uncertain when the contract is made, the contract will be for an indeterminate period of time. [page 570] In that case, the question his Honour dealt with was whether a contract expressed as a being for a specified period but which gave a right to the employer to terminate earlier upon the giving of notice in fact was in fact contract for a specified period. In that case, his Honour held at [106] that: in the light of the right on either party to the contract … to bring the contract to an end on two weeks notice … the cessation date merely records the outer limit of a period beyond which the contract will not run … within the period stated … the period of the contract of employment is indeterminate. The situation as to a contract of this sort that had reached its outer limit was discussed in Dept of

Justice v Lunn (2006) 158 IR 410; Print PR974185 at [9]–[10]: It has been held that a contract with a nominated end date does not meet that description if it provides for a broad or unconditional right of termination during its term. In such circumstances, the description of such a contract as an ‘outer limit to’ contract usefully distinguishes it from a contract for a ‘specified period of time’… When a contract for a specified period or an “outer limit” contract reaches the nominated end date, the contract terminates through the effluxion of time and there is no termination of employment at the initiative of the employer. Thus, the critical issue is whether what occurred on 24 March 2005 involved a termination at the initiative of the employer. That conclusion was doubted in Jin v Rail Corporation New South Wales [2015] FWC 4248 at [67]. The use of back to back fixed term contracts was described in Clarke v Mid North Coast Health Service Commissioner [1999] NSWIRComm 435 at [29] as: involving the misuse of fixed term contract employment so as to create a device which misrepresents the true nature of the employment relationship. That argument is probably more properly expressed as a sham; see [7-2600.40]. A similar conclusion was reached in SPC Ardmona Operations Ltd v Esam (2005) 141 IR 338 at [95] where the full Bench stated that: A series of fixed term contracts may give rise to an understanding that the employment is in fact ongoing and not genuinely fixed term in nature. [7-4320.55] Terminated on the employer’s initiative — s 386(1)(a) Despite some decades of analysis, the meaning of this phrase is not entirely clear. In Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 (Mohazab) at [205]–[206], the court held that: It is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer, but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. That formulation leaves some questions unanswered. As the Full Bench stated in Pawel v Advanced Precast Pty Ltd, AIRC (FB), Print S5904, 12 May 2000 at [13]: an important feature and the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequential in the termination of employment and the employment relationship is not voluntarily left by the employee. However, it is to be noted that the full Court described it as an important feature. It plainly cannot be the only picture. An example will serve to illustrate this point. Suppose an employee wants a pay rise and make such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can… [page 571]

In ABB v Doumit [1996] AIRC 2069, Print N6999, the Full Bench urged caution in undertaking the exercise stating: Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary. In P O’Meara v Stanley Works Pty Ltd PR973462; [2006] AIRC 496, the Full Bench of the Commission analysed Mohazab in the context of later authorities to find that there is a requirement for: there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign. A more visceral formulation was put forward by North J in Slifka v JW Sanders Pty Ltd (1995) 67 IR 316 at 317 being “Did he jump or was he pushed”. Termination by operation of law may not be considered a termination at the initiative of the employer. In Taylor v Metro Velda Pty Ltd Print PR909167; [2001] AIRC 966, (2 April 1997), SDP Williams, DP Leary and Cmr Eames held that frustration of a contract in the legal sense would more than likely mean that the termination of the employment was not at the initiative of the employer. Context and history may be of importance in reaching a contrary conclusion. In Fisher v Edith Cowan University [1997] IRCA 98, (1997) 72 IR 464 at 471, the Industrial Relations Court held that: There may also be termination of the employment at the initiative of the employer and not pursuant to the mutual will of the parties if the terms of a fixed period contract have been varied in the course of performance of the contract, or the contract has been abandoned and replaced by another agreement, or the employer has engaged in conduct or representations which estop the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated. In those circumstances an employee may show that reliance by the employer upon the purported effluxion of a period of time for employment is, in fact, termination of the employment at the employer’s initiative.

[page 572] These authorities were adopted in relation to s 386(1)(b) in Kylie Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279 at [27]. That conclusion was doubted but not decided in Victorian Association for the Teaching of English Inc (2014) 241 IR 1; [2014] FWCFB 613 at [35]. [7-4320.60] Training Arrangement — s 386(2)(b)(i), (ii) See s 12. [7-4320.65] Outline of Section The Explanatory Memorandum to the Fair Work Bill 2008 at [1528] states that s 386(1)(a) is intended to capture case law relating to the meaning of “termination at the initiative of the employer” (see, eg, Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 and that s 386(1)(b) is intended to reflect the common law concept of constructive dismissal. Section 386(2)(a) reflects the common law position that termination in these circumstances would not be a dismissal. *Editor’s note: Commentary on Constructive Dismissal written by Joe Catanzariti, VP FWC and Michael Byrnes, Special Counsel, Clayton Utz. Updated by Michael Byrnes, Special Counsel, Clayton Utz. All other commentary by Ian Latham BA(Hons)/LLB, ANU, Barrister, Sydney.

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[7-4340]

Criteria for considering harshness etc

387 In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account: (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person — whether the person had been warned about that unsatisfactory performance before the dismissal; and (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

the degree to which the absence of dedicated human resource (g) management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that the FWC considers relevant. [s 387 am Act 174 of 2012 s 3 and Sch 9 item 392, opn 1 Jan 2013] COMMENTARY TO SECTION 387*

Employee Misconduct …. Derivation …. History …. Any other matters — s 387(h) …. Capacity — s 387(a) …. Conduct — s 387(a) …. Examples of misconduct …. Dedicated human resource expertise — s 387(g) …. Opportunity to respond — s 387(c) ….

[7-4340.1] [7-4340.05] [7-4340.10] [7-4340.15] [7-4340.20] [7-4340.25] [7-4340.26] [7-4340.30] [7-4340.33] [page 573]

Size of undertaking — s 387(f) …. Support person — s 387(d) …. Take into account — s 387 …. Valid Reason — s 387(a) …. Valid reason and after-acquired knowledge …. Role of “valid reason” under the Act …. Whether the employee was notified — s 387(b) …. Procedural fairness generally …. Warned — s 387(e) …. Onus of proof in establishing misconduct ….

[7-4340.35] [7-4340.40] [7-4340.45] [7-4340.50] [7-4340.55] [7-4340.60] [7-4340.65] [7-4340.67] [7-4340.70] [7-4340.80]

[7-4340.1] Employee Misconduct In order to declare whether the termination of the applicant’s employment was harsh, unjust or unreasonable, the Fair Work Commission is required to take into account the factors set out in s 387 of the Fair Work Act 2009: Mr Philip Hillbrick v Marshall Lethlean Industries Pty Ltd [2010] FWA 7704; BC201070985 at [105] and Sayer v Melsteel Pty Ltd [2011] FWAFB 7498. An employee’s tendency to make mistakes which would detrimentally affect an employer’s interest

is a valid reason for termination: Quattrocchi v Monsanto Australia Ltd [2009] FWA 882; BC200970848. An employer may condone misconduct if it becomes aware of the misconduct and it does not quickly react and deal with the misconduct in accordance with the nature and severity of the particular misconduct: Somveer Narwal v Aldi Foods Pty Ltd [2012] FWA 2056; BC201271417 at [44]. See also Rankin v Marine Power International Pty Ltd (2001) 107 IR 117; [2001] VSC 150; BC200102544 at [352]–[357] for a summary of the authorities. In Magers v Dept of Health and Ageing [2010] FWA 831, Harrison C stated that a single act of misconduct over a long period can lead to a dismissal that is not unfair, despite otherwise “unblemished” service: at [77]. In this case, the employer had a valid reason to dismiss a manager because the manager’s actions of paying for taxi fares with her departmental credit card without authorisation up to 360 times over a 3 year period, amounted to misconduct. The employer “was reasonable [sic] entitled to expect an experienced Executive level officer to be fully familiar with her rights, duties and obligations”: at [78]. In Gary Bermingham v Kings Transport & Logistics (Aust) Pty Ltd [2010] FWA 1116; BC201070181, a manager had engaged in fraudulent conduct by overcharging customers and putting aside the difference to subsidise staff social events. SDP O’Callaghan held that the manager’s conduct constituted a valid reason for terminating his employment. However, SDP O’Callaghan ultimately found that the dismissal was unreasonable because the employer relied heavily on “limited information from other employees” who the employer knew were also involved in the conduct; proceeded to terminate the manager “without a comprehensive and equitable investigation of what actually occurred”; and relied partly on the manager’s admission that he had been given $100 by a colleague who was also involved in the fraud just as he was leaving his termination of employment interview: at [63]. SDP O’Callaghan said the investigation process was “seriously deficient in that it did not properly assess the conduct of other Kings employees and ultimately resulted in disparate and poorly informed actions being taken with respect to the employees involved in the misappropriations”: at [41]. In Davies v Hip Hop Pty Ltd t/as Hippity Hop Child Care [2011] FWA 776; BC201170205, a childcare worker was awarded almost $10,000 in damages after she was summarily dismissed for “back-biting” about her co-workers. FW Australia found that a blunt policy, which was not defined, and applied with no consideration of the facts or intentions, cannot constitute a valid reason for dismissal. Fighting in the workplace will often be sufficient to justify a termination of employment. This is highlighted by the decision in Raymond Gleeson v Aurora Energy Pty Ltd [2010] FWA 2956; BC201070522 where an employee with an unblemished record of 24 years’ service was dismissed [page 574] by his employer after punching a fellow employee. The employee brought an unfair dismissal claim, arguing that there was no valid reason for his dismissal. Blair C made findings that the appellant had made contact with the other employee’s eye deliberately and was the instigator of the fight. This had the effect that there was a valid reason for the dismissal. In Kolodjashnij v J Boag and Son Brewing Pty Ltd [2010] FWAFB 3258; (2010) 195 IR 279, the Full Bench considered the importance of “proportionality” in determining whether a dismissal which was based on a valid reason was nevertheless harsh, unjust or unreasonable. In this case, the employee was charged with drink driving. The employee advised his supervisor of the incident and following a meeting he was stood down with full pay. Two further meetings were held following which Mr Kolodjashnij’s employment was terminated as he had breached the employer’s strict responsible

drinking policy. Deegan C at first instance held that the dismissal was not harsh, unjust or unreasonable. This finding was based on the fact that the employer had a strict policy in relation to drinking and the employee was fully aware of it. The employee appealed to the Full Bench, arguing that Deegan C had erred in failing to find that the dismissal was a disproportionate response by the employer: at [9]. The Full Bench considered that it was apparent from the Commissioner’s decision that she had considered the issue of proportionality. Deegan C had referred to the fact that the employee had a specifically high blood alcohol level. The Full Bench considered that it was not necessary for a breach of the employer’s policy for the employee to have a specifically high blood alcohol level, therefore by making specific reference to it the Commissioner had considered proportionality. Accordingly, the employee’s appeal was dismissed. In Mr William Patrick Ward v Arcadian Nominees t/as Instant Waste Management [2009] FWA 609; BC200970413, Williams C, found that “it may not be reasonable to hold the respondent to a very high standard in terms of procedural fairness” because the company did not have a dedicated HR manager or expertise: at [44]. Whilst the Fair Work Commission will give consideration to the criteria in s 387, it may reject an unfair dismissal claim even if it finds that there was “something to be desired” in the employer’s termination procedure, as long as sufficient notice and an opportunity to respond is provided to the employee: Quattrocchi v Monsanto Australia Ltd [2009] FWA 882; BC200970848. However, it will of course, depend on the particular factual scenario. Any notification must be brought in such a way as to give the employee time to respond to the allegation and clearly set out the grounds upon which the employee may be terminated. This is highlighted by the decision in Mr Mohamed Ahmed v Webforge NSW Pty Ltd [2010] FWA 4053; BC201070487. In this case, the employer terminated an employee with 15 years service for unsafe work practices. The team leader of the employers cutting section was dismissed after he used a steel bar to realign panels produced by a welding machine in contravention of safety protocols. SDP Cartwright held that Mr Ahmed, as an experienced operator and supervisor responsible for the safety of others, could reasonably be expected to know that Webforge took safety seriously and that what he did was unsafe. Mr Ahmed’s conduct did constitute a valid reason for dismissal. However, there was an issue regarding whether Mr Ahmed had been given an opportunity to respond. At the meeting in which Mr Ahmed was dismissed, his boss adjourned the discussion for a short time and said that he needed to make a phone call. However in SDP Cartwright’s view, the employer was only going through the motions of taking a break as he had already made up his mind. This meant that Mr Ahmed’s opportunity to respond “was in form only”: at [17]. SDP Cartwright held that the employee’s 15 year record of service, “justified consideration of all the options following his unsafe conduct on 28 September 2009, especially in view of Mr Mendez’s assessment that Mr Ahmed was open and honest in the investigation”: at [19]. Alternatives to dismissing Mr Ahmed may have been few and unpalatable to the employer, however they simply were not considered. This meant that the dismissal of Mr Ahmed was “harsh, unjust or unreasonable”. SDP Cartwright held that reinstatement was an inappropriate remedy and instead ordered compensation in lieu of reinstatement equal to 9 weeks’ pay. [page 575] The importance of an employer maintaining an open mind throughout the decision making process is further highlighted by the decision in Rizwan Ahmad Khokhar v Bytecraft Systems [2010] FWA 3913; BC201070512. In this case, an employee was dismissed because his employer formed the view that he

had deliberately misled the company by providing a false excuse for his absence for work so that he could attend a work related Christmas party. The employee argued that his reason for missing his shift was to attend a religious ceremony to mourn the death of his uncle. The employee argued that he went to the party afterwards to pick up two friends who were attending, however once he arrived he realised they had bought him a ticket. Cloghlan C, held that the employer had failed to give proper consideration to the employee’s explanation. The Commissioner held “due process requires that rather than jump to a conclusion, the Employer could have and should have investigated further whether the Applicant had an explanation which brought their initial conclusion into question”: at [70]. Culpeper’s case (Culpeper v Intercontinental Ship Management (2004) 134 IR 243; [2004] AIRC 261; Print PR944547) elaborated on the concept of misconduct justifying dismissal in the following terms (at [19]): Misconduct justifying dismissal is conduct that is so serious that it goes to the heart of the contract. (North v Television Corporation, Smithers, Franki and Evatt JJ, 11 ALR 599) Serious misconduct will usually justify summary dismissal and will rarely support a finding that a dismissal was “harsh, unjust or unreasonable”. (R v Industrial Court; ex parte Mt Gunson Mines Pty Ltd, King CJ, 30 SAIR 504) Serious and wilful misconduct has been determined to be such that “it struck at the heart of the contract or evinced an intention by [the Applicant] that [he/she] no longer wished to be bound by the contract”: NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [45]. See also Flanagan v Thales Australia Ltd T/A Thales Australia [2012] FWA 6291; Serventi v John Holland Group Pty Ltd [2006] FCA 1049; BC200606237 and North v Television Corporation Ltd (1976) 11 ALR 599. [7-4340.05] Derivation Section 652(3) of the Workplace Relations Act 1996. [7-4340.10] History These criteria are the same as in s 652(3) of the Workplace Relations Act 1996, with the addition of s 387(d): Explanatory Memorandum to the Fair Work Bill 2008 at [1542]. Section 652(3) was derived from s 170CG(3) of the Workplace Relations Act 1996; inserted by the Workplace Relations and Other Legislation Amendment Act 1996 (No 60 of 1996). Section 170CG was inserted in the Act as part of the modification of the termination of employment division, which earlier had been inserted in the then Industrial Relations Act 1988 by the Industrial Relations Reform Act 1993 (No 98 of 1993). Section 170CG bore some similarity to ss 170DC and 170DE of the Industrial Relations Act 1988. The Workplace Relations Amendment (Termination of Employment) Act 2001 (No 100 of 2001) added new paragraphs (da) and (db) to s 170CG(3). In his second reading speech introducing the legislation, the Minister said that those paragraphs would require the Commission, when determining whether a termination was harsh, unjust or unreasonable, to have regard to the size of an employer’s operations and the degree to which that would be likely to affect the procedures followed by the employer: “This would enable the commission, for example where a respondent employer is a business which is too small to have a separate human resources function, to determine that different procedures may be reasonable for such a small business compared to larger businesses with greater resources, specialised personnel and greater capacity for more formal procedures. These provisions would not deny employees of smaller businesses a fair go, but would recognise that expectations as to administrative processes need not be the same in smaller businesses as they are in larger businesses.”: House of Representatives Hansard, 26 June 2000, p 18325.

[page 576] For a discussion of the circumstances in which those amendments were made see M Pittard “Unfair Dismissal Laws: The Problem of Application to Small Businesses” (2002) 15 AJLL 154. As the Full Bench held in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [13]: the basic structure for grounding the unfair dismissal remedy — a finding that the dismissal was “harsh, unjust or unreasonable”, with the existence of a “valid reason” being only one of a number of matters that the Commission was required to consider — has remained unchanged through successive amendments to the WR Act and in the current unfair dismissal regime in the FW Act. Section 387 of the FW Act contains the current incarnation of the list of considerations, first introduced in 1996 in s 170CG(3) of the IR Act 1988, for determining whether a dismissal is “harsh, unjust or unreasonable”. [7-4340.15] Any other matters — s 387(h) In Kehagias v Unilever Australia Limited (AIRC, Watson SDP, Williams SDP and Larkin C, 29 April 1998, Print Q0498) at p 5, matters arising under s 170CG(3)(e) were described as being “at large, subject to relevance in the context of the circumstances of a particular matter”; that approach was adopted in Richards v Regional Express Holdings Ltd t/as REX Airlines [2010] FWA 4230 at [155]. Differential treatment In Australian Postal Corp v Rushiti (2012) 224 IR 382; [2012] FWAFB 7423; BC201276965 at [42] the Full Bench adopted the reasoning of Lawler VP in Sexton v Pacific National (ACT) Pty Ltd [2003] AIRC 506; Print PR931440 where his Honour held that: [33] It is settled that the differential treatment of comparable cases can be a relevant matter … to consider in determining whether a termination has been harsh, unjust or unreasonable… [36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable … or in determining whether there has been a “fair go all round” … In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing “apples with apples”. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made. Decision can’t be delegated An employer is “obliged to conduct its own independent assessment of the evidence” and not to simply delegate that task to another person or agency: Colin Hill and Sydney West Area Health Service [2012] NSWIRComm 1009; Graham v South Eastern Sydney and Illawarra Area Health Service [2010] NSWIRComm 1023. Opportunity to address on penalty An employee should also be given procedural fairness in respect to the issue of penalty. This point was made in Barber v Commonwealth (2011) 212 IR 1; [2011] FWA 4092; BC201170721, where Thatcher C, at [190], described the predecessor to s 387(c) as serving two purposes: Firstly, it gives the employee the opportunity to demonstrate that the allegations had no foundation. Secondly, it gives the employee the opportunity to persuade the employer that, while the allegations are of substance, there are factors that should persuade the employer not to terminate the employment. Those factors may be extenuating personal circumstances or they may involve undertakings about future conduct”(references omitted).

Issues of past performance An employer is entitled to take into account an employee’s past performance in deciding to dismiss the employee: Dickinson v Calstores Pty Ltd (2011) 214 IR 40; [2011] FWA 6858; BC201171187 at [113]. In Dickinson’s case, Sams DP, in turn, makes reference [page 577] to Aperio Group (Australia) Pty Ltd t/as Aperio Finewrap v Sulemanovski [2011] FWAFB 1436; (2011) 203 IR 18 where it was clear that the applicant in that case had received “counselling and one written warning”. Remedy In Hammond v Australian Red Cross Blood Service — Sydney [2011] FWA 1346; BC201170438 (Hammond’s case), s 381(c) of the Fair Work Act “makes plan, where an applicant demonstrates that he/she was unfairly dismissed, that reinstatement is the primary remedy”. As further noted in Hammond’s case that some difficulty or embarrassment on the part of the employer may well be the case but this does not preclude the granting of reinstatement. It was noted that, in Perkins v Grave Worldwide (Aust) Pty Ltd [1997] IRCA 15 at 191–2, a Full Bench of the Federal Court of Australia referred to the practicality of reinstatement as follows: It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fairmindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable. In response to the assertion that an employer has lost “trust and confidence in the applicant” it was further noted in Hammond’s case at [89] that: If that was all that was required to deny an unfairly dismissed employee the primary remedy under the Act, then I doubt that any dismissed employee would ever be reinstated. It requires something more than bold assertions of Management to establish the inappropriateness of reinstatement. In that respect, again in Hammond’s case, Sams DP referred to Regional Express Holdings Ltd v Richards [2010] FWAFB 8753; (2010) 206 IR 17 where the Full Bench said at [26]: Whenever an employer dismisses an employee for misconduct, assuming the employer is acting honestly, there is an implied loss of trust and confidence in the employee. If it is subsequently found that the termination was harsh, unjust or unreasonable it is appropriate to consider whether the relationship can be restored if the employee is reinstated. That question cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account. Even if, contrary to the applicant’s submissions, it is determined by the Commission that it would be inappropriate to order that the applicant be reinstated to her former position at CTK, it is nonetheless submitted that, given the size of the employer and its available resources, the Commission should order that the applicant be reinstated to another position on terms and conditions no less favourable to her former position consistent with s 391(1) Fair Work Act. An option may be for the Commission to order that the applicant be reinstated to “a position agreed by the parties” as was the case in Hammond’s case

(at [90]). In that event it would be appropriate for the Commission to make consequential orders to maintain the applicant’s continuity of employment and, also, orders for loss of remuneration. Such an approach is consistent with that adopted by Commissioner Cargill in Tagamalitsky v Commonwealth Bank of Australia 118/99 N Print R 1709 [1999] AIRC 135 where the Commissioner noted: I appreciate that there might be some difficulty for the bank if I order that the applicant be reinstated to her former position so I propose, in line with the provisions of [the predecessor [page 578] to s 391(1)] to order her reinstatement to another like position on terms and conditions no less favourable than those on which she was previously employed. [7-4340.20] Capacity — s 387(a) There is a distinction between capacity and conduct: Annetta v Ansett Australia (2000) 98 IR 233 at [16]. Terminations of employment related to “capacity” mean the capacity of the employee to do the work: Crozier v Palazzo Corp Pty Ltd (2000) 98 IR 137. “Capacity” is not defined by the Act. In Crozier v Australian Industrial Relations Commission [2001] FCA 1031; BC200104334 Gray, Branson and Kenny JJ held at [14] that: The word ‘capacity’, as used in s 170CG(3)(a), means the employee’s ability to do the work he or she is employed to do. A reason will be ‘related to the capacity’ of the employee where the reason is associated or connected with the ability of the employee to do his or her job. The terms of s 170CG(3)(a) provide no support for Mr Crozier’s contention that there can be no ‘valid reason … related to the capacity … of the employee’ where an employee is working to his or her personal best, even though this personal best is less than what is required to do the job for which he or she is employed. Plainly, there can be a valid reason for the termination of an employee’s employment where he or she simply does not have the capacity (or ability) to do the job. A Full Bench of Fair Work Australia held in J Boag & Son Brewing Pty Ltd v Button [2010] FWAFB 4022 at [29] that: An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. For example, the dismissal may be prohibited by state workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event. Further, a dismissal based on an incapacity to perform the inherent requirements of a position may not be valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job. Plainly, there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job. But, again, there may be circumstances where such incapacity does not constitute a valid reason in the relevant sense. The question for the tribunal [is] “whether, on the medical evidence available, there was a valid reason for the termination of employment based on the respondent’s medical circumstances and her ability to undertake her work. This is an issue to be determined on the basis of the respondent’s current medical condition”: Ambulance Victoria v Ms V [2012] FWAFB 1616 at [33]. [7-4340.25] Conduct — s 387(a) In King v Freshmore (Vic) Pty Ltd (AIRC, Ross VP, Williams SDP and Hingley C, 17 March 2000, unreported, Print S4213), the Full Bench of the Commission held at

[23]: When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s 170CG(3)(a). The Commission must determine whether the alleged conduct took place, and what it involved. A belief, even a reasonably held belief, as to conduct by the employee does not amount to a valid reason: Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1. If the employer is unable to prove that the misconduct in fact occurred, then the termination is not for valid reason. This was discussed by Millane JR in Burke v Reander Pty Ltd (1996) 69 IR 346. The Judicial Registrar found that a wrong accusation of misconduct does not provide a sound, defensible or well-founded reason for termination. [page 579] The Commission’s task in those circumstances is to determine whether the misconduct occurred rather than whether it was reasonable or open for the employer to reach the conclusion that the misconduct occurred. See Vicki Ellington v Newlands Coal Pty Ltd [2011] FWA 2150; BC201170685 at [185]–[186], where Simpson C noted: Where an employee is dismissed for misconduct the Tribunal must determine for itself whether the conduct occurred (Edwards v Giudice (1999) 94 FCR 561; 169 ALR 89; [1999] FCA 1836; BC9908553; Hinchey v North Goonyella Coal Mines Pty Ltd [2009] AIRCFB 94; BC200970199). The Tribunal must determine the matter on the basis of the evidence before it. The test is not whether the employer believed, on reasonable grounds, that the employee engaged in the misconduct which resulted in the termination. Rather it is an objective test based on the evidence (King v Freshmore (Vic) Pty Ltd Quinlivan v Norske Skog Paper Mills (Aust) Ltd [2010] FWA 883; BC201070081). Hungerford J in Pastrycooks, Biscuit Makers & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 3) at [83]–[84] said: The right of an employer to summarily dismiss an employee without notice is qualified by an employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege is conduct but must also prove it. [7-4340.26] Examples of misconduct Breach of policy A breach of policy will be sufficient to justify a termination and amount to a valid reason unless the policy in question was illegal, does not relate to the matters subject to the employment relationship or is unreasonable: Selak v Woolworths [2008] AIRCFB 81; (2008) 171 IR 267 at [33]. Dishonesty The Full Bench in APS Group (Placements) Pty Ltd v O’Loughlin (2009) 209 IR 351; [2011] FWAFB 5230 held that a single foolish dishonest act may not be determinative of unfairness. The Full Bench held at [56]: It is trite that dishonesty on the part of an employee may constitute misconduct that provides a valid reasons for dismissal. We accept that the Commissioner arguably erred in failing to deal with that

argument. However, we note that such dishonesty will not automatically render a dismissal based upon it a dismissal that is not harsh, unjust or unreasonable. Safety breaches In Parmalat Food Products Pty Ltd v Tran (2016) 257 IR 21; [2016] FWCFB 1199, the Full Bench of the Fair Work Commission dealt with the dismissal of a person accused of breaching safety policies. The Full Bench held at [12] that: [In determining whether there was a valid reason for termination,] the Commission must give consideration to the need to enforce safety standards to ensure safe work practices are applied generally at the workplace. This is both for the protection of employees and others, and to comply with legal obligations imposed on employers, which require them to take various actions, including establishing and enforcing safety policies. [7-4340.30] Dedicated human resource expertise — s 387(g) In Gates v Jordan Transport Pty Ltd [2003] AIRC 1011, Richards C, at [92] found that the “very limited human resource management resources at the disposal of the respondent provides explanation, in part, for the perfunctory manner in which the respondent terminated the applicant’s employment”. The fact, [page 580] however, that an employer is a small business, lacking in dedicated human resource management specialists, is not sufficient to outweigh the lack of a valid reason for the dismissal and the failures to afford procedural fairness: Said v Jokar Holdings Pty Ltd [2011] FWA 977; BC201170231 at [61]. [7-4340.33] Opportunity to respond — s 387(c) The opportunity to respond refers to an opportunity that is provided before a decision is taken to terminate the employee’s employment. In cases where an employee’s conduct is involved, this opportunity serves two purposes. Firstly, it gives the employee the opportunity to demonstrate that the allegations have no foundation. Secondly, it gives the employee the opportunity to persuade the employer that, while the allegations are of substance, there are factors that should persuade the employer not to terminate the employment. Those factors may be extenuating personal circumstances or they may involve undertakings about future conduct: Dover-Ray v Real Insurance Pty Ltd (2010) 204 IR 399; [2010] FWA 8544 at [84]–[85]. An employee is entitled to defend themselves in respect of allegations made by the employer. In Wadey v YMCA Canberra [1996] IRCA 568, Moore J, commented as to the right of an employee to appropriately defend himself or herself in respect to allegations made by the employer. Moore J, stated: In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee’s conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend. However, there is no requirement that such notice should be in a particular form or of a particular level of formality or detail. What is essential is that the employee is aware of the allegations, with enough knowledge so that she can put on a response. “What is a fair procedure to be adopted at a

particular inquiry will depend upon the nature of the subject matter. To over-judicialise the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair: see Lord Diplock in Bushell v Environment Secretary (1980) 78 LGR 269; [1981] AC 75; [1980] 2 All ER 608; [1980] UKHL 1. The opportunity to respond can be in person, in discussion, or in writing: see such cases as Tango v The Southern Cross Times (2000) AIRC 50, Print S7983; Smith v Western HospitalSmith v Western Hospital (AIRC, Foggo C, 2 June 1998, unreported, Print Q1359); Slann v Western Power (2000) AIRC 412, Print T1965. An opportunity to respond includes time to respond: GH Operations Pty Ltd t/as The Grand Hyatt Melbourne v Smith (2000) AIRC 464, [PR904136]. Where a party is “notified” of the reason for termination, the question as to the content of that notification may emerge. In Pacey v Henry Walker Eltin Contracting (2000) 102 IR 108, the Commission found that the employer’s omission of key information from its notification of redundancies, which would have led the employees to know whether their positions were to be included in likely redundancies, meant that the subsection had not been complied with. A lack of opportunity to respond would give some support to a conclusion that a termination was harsh, unjust or unreasonable: Lockwood Security Products Pty Ltd v Sulocki [2001] AIRC 851 [PR908053]. This is particularly so where such an opportunity would have allowed an applicant to challenge some part of the warning process, or of the termination itself: Shorten v Australian Meat Holdings Pty Ltd (1996) 70 IR 360. [page 581] In Batterham v Dairy Farmers Ltd t/as Dairy Farmers [2011] FWA 1230; BC201170354, DP Sams quoted at [254] with approval the proposition that: In summary, it would appear that the criteria in establishing exceptional cases where an absence of procedural fairness might be excused includes circumstances where the application of appropriate procedures; would provide only a slim chance to an Employee of persuading an Employer not to dismiss; or where the dismissal was inevitable; or where the application of the procedures would be utterly useless; or where the application of the procedures would be futile and would not have altered the decision to dismiss; or where the conduct was so gross; or where the conduct was so obvious. [7-4340.35] Size of undertaking — s 387(f) Section 387(f) implicitly places a higher burden in respect to procedural fairness on larger employers with a more sophisticated human resources capability. Substantial employers could be expected to have comprehensive procedures dealing with employment issues of this character: Bormann v Visy Board Pty Ltd [2011] FWA 1569; BC201170279 at [67]. In Sawiris v BMS Entertainment Pty Ltd [2004] AIRC 852 the Commission noted that the question requires a finding which speculates upon the likely impact the size of the employer’s business would have. Lacy SDP at [63] found that in the respondent’s circumstances “it is likely or reasonable to expect that there would be a business plan incorporating established procedures for counselling and discipline, although none was evident in this case”. The size of the business will not necessarily provide any justification for a lack of procedural fairness: Garry French v Lufra Investments Pty Ltd t/as Best Western Lufra Hotel [2009] FWA 574; BC200970390 at [49]. [7-4340.40] Support person — s 387(d) This factor will only be a relevant consideration when an

employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them. It will be one factor the Fair Work Commission must consider when determining whether a dismissal was unfair, having regard to all of the circumstances, including the capacity of the employee to respond to the allegations put to him or her without such a support person being present: Explanatory Memorandum to the Fair Work Bill 2008 at [1542]. See to similar effect Dissanayake v Busways Blacktown Pty Ltd [2011] FWA 3549 at [133]. It is not the responsibility of an employer to provide a support person or ensure that one is present: Nishat v Degremont Pty Ltd [2010] FWA 1938; BC201070792 at [26]. [7-4340.45] Take into account — s 387 In Roads Corporation v Dacakis [1995] 2 VR 508; BC9503215 at 356, Batt J held that: [T]he expression “take into account” here means “pay attention to in the course of an intellectual process” or “take into consideration”: Metropolitan Water Board v St Marylebone Assessment Committee [1923] 1 KB 86 at 99 and at 103; Yuco Pty Ltd; Ex parte [1978] Qd R 235; and cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 10 ALN N109; 66 ALR 299; BC8601448 at 39 … A duty to have regard to or to take into account certain considerations does not require a specific finding to be made in respect of each of those considerations or require each of them to be given any particular weight; it is, rather, a duty to consider each of the considerations and whether any or any particular weight should be given to each … A failure to take into account a consideration that the tribunal or person concerned was bound to take into account constitutes a mis-exercise of discretion and an error of law. However, not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court in setting aside the impugned decision and ordering that the [page 582] discretion be re-exercised according to law, because a factor might be so insignificant that the failure to take it into account could not have materially affected the decision … The Full Bench in Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 held that: [14] The terms of s 387 are mandatory. Once the Commissioner embarked on a consideration of whether the dismissal was harsh, unjust or unreasonable he was obliged to “take into account” each of the criteria in s 387 to the extent they were relevant. Failure to do so was a significant error of law. But that is not the end of the matter. [15] It seems to us that the section is intended to apply when Fair Work Australia is considering matters in issue between the parties to an application. If the application is not contested, or only partly contested, the section may have no or limited application. To take an extreme example, if an applicant abandons their case — ignores notices of listings and directions — the application can be dismissed without the need to apply s 387. Equally, if a respondent were to concede that the termination was harsh, unjust or unreasonable, and put a case on remedy only, a member would be entitled to act on the concession without applying the criteria in s 387. It is however important to assess the criterion separately. In Parmalat Food Products Pty Ltd v Tran (2016) 257 IR 21; [2016] FWCFB 1199 at [11], the Full Bench held that:

The Commission conflated the requirement to make a finding as to whether or not there was a valid reason with the requirement under s 387 to make a finding as to whether or not the termination was harsh, unjust or unreasonable. The Commission made a finding that there was no valid reason for termination of employment for various extenuating reasons which were relevant to whether or not the dismissal was overall harsh, unjust or unreasonable, but which were not relevant to whether or not there was a valid reason for termination of employment. This is an error of law which raises issues of public interest. In a discussion as to the meaning of the phrase, Tracey J spoke approvingly of a Tribunal decision to “disabuse the notion that some ‘formulaic approach’ should be employed under which the number of matters pointing to a particular conclusion should be added up and then compared with the number of factors pointing to the opposite conclusion leading to a determination based on the higher of the two figures.”: Basile v Minister for Immigration and Citizenship (2011) 193 FCR 329; 120 ALD 281; [2011] FCA 237; BC201101380 at [33]. The wording of s 387 has changed slightly from that of s 652(3) of the Workplace Relations Act 1996 in that the test is now that FWA must take into account rather than have regard to the remunerated matters. While that change is not explained, it does not seem to be one of consequence. The High Court in R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; 25 ALR 497; BC7900072 at [554] and [556] saw them as interchangeable; see also Chubb Security Australia Pty Ltd and John Thomas (AIRC, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000, Print S2679) at [37]. [7-4340.50] Valid Reason — s 387(a) In Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at [373], the Court defined “valid reason” in an earlier version of the Act, in the following way: A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is ‘sound, just, or well founded; a valid reason’. In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. [page 583] In Heran Building Group Pty Ltd v Anneveldt (2013) 236 IR 123; [2013] FWCFB 4744, the Full Bench adopted the position in MM Cables at [15] that: the Commission is obliged to consider whether there was a valid reason for the termination — that inquiry is not limited to the reason given by the employer for the termination. The test has two elements. The first is that there is a “valid reason” or reasons for the termination of employment. Secondly, the reason or reasons must be related to the capacity or conduct of the employee: see McKenzie v Imperamada Pty Ltd (AIRC, Jones C, 3 November 1999, unreported, Print S0628). The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination: Parmalat Food Products Pty Ltd v Wililo (2011) 207 IR 243; [2011] FWAFB 1166 at [24].

The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour: Edwards v Guidice (1999) 94 FCR 561; 169 ALR 89; [1999] FCA 1836; BC9908553 at [7]. The assessment as to whether there was a valid reason for the dismissal entails a consideration of the nature of the conduct in the full context in which it occurred. Conduct relied upon to justify a dismissal cannot be considered in a vacuum and consideration must be given to matters which mitigate the seriousness of any conduct relied upon by the employer: Crowley v Qantas Airways Ltd [2014] FWC 5587 at [30]. [T]he section requires the employer’s reason to be valid, and thereby focuses upon the employer and the basis of his decision, rather than upon its consequences for the employee. What has to be examined is the validity of the reason, and its connection with the employee’s capacity or conduct or its basis in operational requirements of the employer. In a case, such as the present, where conduct is relied on, that will entail a consideration of the nature of the conduct in the full context in which it actually occurred. But it will not … entail reference to factors personal to the employee, bearing on the nature or extent of the hardship caused by the dismissal: Qantas Airways Limited v Cornwall (1998) 84 FCR 483; 83 IR 102; BC9803403 at 105. Evidence is not necessarily needed from the person who made the decision to dismiss for the FWC to find there was a valid reason for the dismissal, even in the absence of incontrovertible evidence about the reasons or where there is a considerable challenge made to the accuracy or actual existence of the reasons for the dismissal: The Heran Building Group Pty Ltd v Anneveldt (2013) 236 IR 123; [2013] FWCFB 4744 at [16]. Not every allegation of poor performance will give rise to a valid reason. As SDP Richards held in Davidson v Griffiths Muir’s Pty Ltd [2010] FWA 4342; BC201070399 at [117]: The Applicant’s departure from the expectations of the Respondent and his peers, whilst a source of frustration and annoyance, had not, at the point in time at which he was dismissed, contravened a fundamental contractual term, or been demonstrative of an inability to perform his central duties or otherwise evidenced conduct that jeopardised the employment relationship. Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [41]. It is well established that the approach to the existence of a valid reason is the same for summary dismissals and dismissals on notice: Crisp v Twynam Agricultural Group Pty Ltd [2011] FWA 8472; BC201171469 at [31]. See also Batterham v Dairy Farmers Ltd t/as Dairy Farmers [2011] FWA 1230; BC201170354 at [275]. [page 584] The task of the Tribunal is to determine the question afresh. As Wilcox CJ, held in Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at [205]–[206]. The Court is not concerned with the question whether, upon the information available to the employer, the conclusion reached by the employer was, or was not, a reasonable one. I agree that the Court “does not sit as an appeal” from the employer’s decision; but only because the reference to an

appeal implies that the Court is concerned to examine the employer’s decision-making process. It is not. It is concerned to ascertain whether there was a valid reason for the conclusion that the employee’s employment should be terminated. The Court does this for itself, and on the basis of the evidence of the primary facts placed before it. In Gregory v Qantas Airways Ltd [2015] FWC 1154, it was held that there will be a valid reason for dismissal in circumstances where an employee has committed an act of serious misconduct. In that case, the Fair Work Commission found that an employer, who had sexually assaulted a colleague while knowingly intoxicated, had engaged in serious misconduct which amounted to a valid reason for his dismissal under the FW Act. The Fair Work Commission subsequently dismissed the employee’s unfair dismissal application. [7-4340.55] Valid reason and after-acquired knowledge The High Court in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422; 69 ALJR 797; BC9506439 approved Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427; 99 ALR 45; (1991) 33 AILR 39; (1990) 43 IR 210 where an accountant whose employment had been terminated sought relief. The accountant’s systematic embezzlement of money from his employer was only discovered after his termination. Von Doussa J held 99 ALR 45 at 75: Whether the decision can be so justified will depend on all the circumstances. A circumstance likely to favour the decision to dismiss would be that fraud or dishonesty of the employee had caused or contributed to the employer’s state of ignorance. A circumstance likely to weigh against the decision would be that the employer had failed to make reasonable inquiries which would have brought existing facts to its knowledge before the dismissal occurred. This reasoning has subsequently been applied in Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 (McLauchlan) to the following effect: facts in existence at the time of the dismissal, but which only come to light later, may make a termination not “harsh unjust or unreasonable” in circumstances where it might otherwise be; this proposition is especially the case, if the misdeeds of the employee operated to hide the fact of the misconduct from the employer. A Full Bench has also held that the obverse proposition will sometimes apply; facts in existence at the time of the dismissal, but which only come to light later, may in some circumstances make a termination “harsh”: see McLauchlan. Note however that it is inappropriate to amek fresh allegations based on information that was in the possession of the employer at the time of termination: Barber v Commonwealth (2011) 212 IR 1; [2011] FWA 4092; BC201170721. [7-4340.60] Role of “valid reason” under the Act The consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable: Container Terminals Australia Ltd v Toby [2000] AIRC 97, Print S8434 at [15]. Contrast Department of Justice v Hepburn (1999) 93 FCR 508; 94 IR 361; [1999] FCA 114; BC9901764 at [20]. The question whether a valid reason exists is a step on the way in the process of determining the “harshness” or otherwise of a termination. [page 585] The entire relevant factual matrix must be considered when determining whether an employee’s termination is for a valid reason: Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5;

BC9803144: “it is for the party seeking to demonstrate a valid reason for a termination of employment to satisfy the Commission as to the existence of such a [valid] reason”: Erskine v Chalmers Industries Pty Ltd [2001] AIRC 305, [PR902746] at [17]. In Edwards v Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836; BC9908553 at [72], Finkelstein J held that “[c]ommonsense suggests that there will be occasions where it is possible to determine whether a dismissal has been harsh, unjust or unreasonable without a full investigation into the reasons for dismissal … if an application can properly be disposed of by assuming certain facts to be true there is no obligation to determine whether the assumed facts are true”. The search for valid reason is not a search for perfection. In Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, Moore J held at [685]: “that it is not the court’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct”. See to similar effect Wilcox CJ in Kenefick v Australian Submarine Corporation (1995) 131 ALR 197; (1995) 62 IR 107 at [208] that the subsection was designed to inhibit capricious terminations, not to put the court in the employer’s managerial chair. The “valid reason” is not the existence of a legal right to terminate a contract of employment: see Re He (2004) 137 FCR 266; 133 IR 217; [2004] FCAFC 161; BC200403699 at [15]. See also Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200; (2010) 194 IR 1 at [13]–[14]. [7-4340.65] Whether the employee was notified — s 387(b) Section 387(b) requires the Fair Work Commission to have regard to “whether the employee was notified of that reason”. The “reason” means the “valid reason” referred to in s 387(a): Crozier v Palazzo Corp Pty Ltd (2000) 98 IR 137 Print S5897 at [73]. Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made … in explicit terms … and in plain and clear terms: Peter Nicholas Charaneka V Australian Islamic College of Sydney [2016] FWC 3572 at [55]. The purpose of that opportunity is both to demonstrate that the allegations have no foundation and that there are factors that should persuade the employer not to terminate the employment: Dover-Ray v Real Insurance Pty Ltd (2010) 204 IR 399; [2010] FWA 8544 at [85]. A notification falls within the terms of the Act, when it is made prior to the time of the decision to terminate the employee’s employment. In Crozier the full bench held at [73]: As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. In Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233; 57 IR 50; 1 IRCR 199 at [243]– [244] Wilcox CJ held that the section: does not require any particular formality. But this does not mean that it is unimportant or capable of perfunctory satisfaction. [The section] carries into Australian labour law a fundamental component of the concept known to lawyers as ‘natural justice’ or, more recently, ‘procedural fairness’. The relevant principle is that a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case … The principle is, I believe, well understood in the community. It represents part of what Australians call ‘a fair go’. In the

[page 586] context of [the section], it is not to be treated lightly. The employee is to be given the opportunity to defend himself or herself ‘against the allegations made’; that is, the particular allegations of misconduct or poor performance that are putting the employee’s job at risk … For [the paragraph] to be satisfied, it would have been necessary for the respondent to determine what aspects of Mr Nicolson’s conduct or performance were such as to justify possible dismissal and put those matters squarely to him, under circumstances where he had a fair opportunity to defend himself. [7-4340.67] Procedural fairness generally Sections 387(b), (c), (d), (e) are matters relevantly dealing with whether a dismissed employee was afforded procedural fairness. The High Court in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 465; 131 ALR 422; 69 ALJR 797; BC9506439 described the distinction between procedure and substance in the following way: The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation (Maxwell v Murphy (1957) 96 CLR 261 at 285–7; [1957] ALR 231; (1957) 31 ALJR 143; BC5700130; McKain v RW Miller and Co (SA) Pty Ltd (1991) 174 CLR 1 at 19–20, 40, 48–50; 104 ALR 257; 66 ALJR 186; BC9102614). In our view, it is unhelpful and contrary to the tenor of the Award to introduce it into cl 11(a). See for example Williams v Canberra Urology Pty Ltd [2012] FMCA 945; BC201207930 and De Arman v Soldiers Point Bowling Club (2012) 225 IR 265; [2012] FWA 7148; BC201276043. See s 170DB Industrial Relations Act 1988; s 170CM Workplace Relations Act 1996; ss 117 and 123 Fair Work Act 2009. That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable. But the question under cl 11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking to the first issue before there is seen to be any need to enter upon the second. In Crozier v Australian Industrial Relations Commission [2001] FCA 1031; BC200104334, in the matter of an application for Writs of Certiorari and Mandamus against the AIRC, the Full Court of the Federal Court, in relation to the unfair dismissal provisions under s 170CG of the then statute, stated that a failure to provide procedural fairness did not attract conclusive weight that the dismissal was harsh, unjust or unreasonable. The Full Court stated at [15]: By virtue of para 170CG(3)(b), para 170CG(3)(c) and para 170CG(3)(d), the Full Bench was required to have regard to aspects of procedural fairness accompanying the termination. This it did, as its reasons for decision record. The Act does not, in subs 170CG(3) or elsewhere, require the Commission to give any want of procedural fairness conclusive weight. It is for the Commission to determine what weight it will give to such a matter, bearing in mind all the circumstances of the case. In this case, the Full Bench not only took into account the matters referred to in para 170CG(3)(b), para 170CG(3)(c) and para 170CG(3)(d), but also, under para 170CG(3)(e), the further fact that, notwithstanding the procedural deficiencies, “Mr Crozier would have been aware that his employer was unhappy with his performance” and that it might be assumed that he “knew that his employment

would not continue indefinitely without an improvement in his sales performance” (at 152). Not all procedural defects necessarily result in the Commission finding that a particular dismissal is procedurally “harsh, unreasonable or unjust”. Procedural defects are simply a factor in the Commission’s determination, and are not to be considered a significant or fatal [page 587] consideration to the Respondent’s defence. The fact of unfairness in the employer’s decision making process, even if it involves a breach of a term in a certified agreement, is but a factor to be taken into account in determining whether a termination of employment was harsh, unjust or unreasonable: Farquharson v Qantas Airways Ltd (2006) 155 IR 22; [2006] AIRC 488; Print PR971685 at [41]. Compliance with the principles of procedural fairness is a highly relevant factor for the Commission to consider in applying the principle of a “fair go all round” as that notion is embodied in s 381(2) Fair Work Act: Dickinson v Calstores Pty Ltd (2011) 214 IR 40; [2011] FWA 6858; BC201171187. [7-4340.70] Warned — s 387(e) [A] warning must: identify the relevant aspect of the employee’s performance which is of concern to the employer; and make it clear that the employee’s employment is at risk unless the performance issue identified is addressed. In relation to the latter requirement, a mere exhortation for the employee to improve his or her performance would not be sufficient. We also note that we accept that these criterion are to be applied in a practical and commonsense way taking into account the employment context: Fastidia Pty Ltd v Goodwin, AIRC, 21 August 2000, 102 IR 131 at [43]–[44]. [7-4340.80] Onus of proof in establishing misconduct Issues of onus of proof can be quite complicated. In this respect the task of the Commission was made clear in Michael Patrick Hinchey v North Goonyella Coal Mines Pty Ltd [2009] AIRCFB 94; BC200970199 (Hinchey’s case) where at [35] the Full Bench of the AIRC determined: There is some Full Bench authority that the principles relating to onus of proof applied in the courts do not apply fully in proceedings in the Commission. What is clear is that pursuant to the terms of the Act a remedy for unfair dismissal cannot be given unless the Commission is affirmatively satisfied that the termination was harsh, unjust or unreasonable and that a remedy provided for in the Act is appropriate. In this way, there is, for practical purposes, ultimately an onus on an applicant to satisfy the Commission that the termination was harsh, unjust or unreasonable and that it is appropriate that a remedy be ordered. In cases of alleged misconduct, the Commission is concerned with whether the alleged misconduct occurred rather than whether it was reasonable or open for the employer to reach the conclusion that the misconduct occurred. Thus, where a termination is based on misconduct and the misconduct is denied there is, for practical purposes, what may best be described as an evidentiary onus that shifts to the employer to call evidence to establish the misconduct. While the applicant bears the ultimate onus of establishing a case for relief, the onus of establishing misconduct, in circumstances where that misconduct is denied, falls upon the respondent: Budlong v NSW Australia Pty Ltd [2006] NSWIRComm 288; Batterham v Dairy Farmers Ltd t/as Dairy Farmers [2011] FWA 1230; BC201170354.

In Cannon v Poultry Harvesting Pty Ltd [2015] FWC 3126, the Fair Work Commission found that an employee, whose employment had been terminated for alleged intoxication at work, was unfairly dismissed on the basis that the employer had failed to provide sufficient evidence to support the allegation of misconduct (that the employee was intoxicated while at work), or that the employee was aware of the employer’s zero tolerance alcohol policy. *[Editor’s note: Commentary on Derivation, Support person and Take into account by Ian Latham BA(Hons)/LLB, ANU, Barrister, Sydney. All other commentary prepared by Tim Donaghey, Barrister, Victorian Bar updated by Ian Latham BA(Hons)/LLB, ANU, Barrister, Sydney.]

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[7-4360]

The Small Business Fair Dismissal Code

388 (1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code. [page 588] (2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if: (a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and (b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal. COMMENTARY TO SECTION 388*

Use of Code …. Derivation …. Dismissal — s 388(2), (a), (b) …. Employer — s 388(2), (a), (b) …. Small Business Fair Dismissal Code — s 388(1), (2), (b) …. Small Business Employer — s 388(2)(a), (b) …. Outline of section ….

[7-4360.1] [7-4360.5] [7-4360.10] [7-4360.15] [7-4360.20] [7-4360.21] [7-4360.25]

[7-4360.1] Use of Code The Code was utilised in Ms Tania Nielson v Cadle Park Pty Ltd [2009] FWA 1737; BC200970298 where a dental practice dismissed a nurse for misconduct. It was alleged that she had covered up the loss of expensive medical equipment and committed serious OH&S policy breaches. The employer lodged a completed Small Business Fair Dismissal Code checklist to FWA and this was sufficient to defeat the unfair dismissal claim, as the Commissioner was satisfied that the employer had reasonable grounds to believe the misconduct had occurred. If compliance with the Small Business Fair Dismissal Code can be demonstrated the application must, in accordance with the intent of the legislation, be dismissed: Rowley v Tom and Barry Pty Ltd t/as Hills in Hollywood [2010] FWA 2686; BC201070682 at [12]. However, in Josef Nalevansky v Thought Equity Motion Inc [2010] FWA 3707; BC201070546, Watson VP held at [13] that the Small Business Fair Dismissal Code does not apply to redundancy

dismissals. [7-4360.5] Derivation The section is new. [7-4360.10] Dismissal — s 388(2), (a), (b) See s 386. [7-4360.15] Employer — s 388(2), (a), (b) See s 380. [7-4360.20] Small Business Fair Dismissal Code — s 388(1), (2), (b) See http://www.fairwork.gov.au/Templatesformschecklists/Small-Business-Fair-Dismissal-Code-2011.pdf. The Code is reproduced at [330-100]. The Code was utilised in Ms Nielson v Cadle Park Pty Ltd [2009] FWA 1737; BC200970298 where a dental practice dismissed a nurse for misconduct. It was alleged that she had covered up the loss of expensive medical equipment and committed serious OH&S policy breaches. The employer lodged a completed Small Business Fair Dismissal Code checklist to Fair Work Australia and this was sufficient to defeat the unfair dismissal claim, as the Commissioner was satisfied that the employer had reasonable grounds to believe the misconduct had occurred. If compliance with the Small Business Fair Dismissal Code can be demonstrated the application must, in accordance with the intent of the legislation, be dismissed: Rowley v Tom and Barry Pty Ltd T/A Hills in Hollywood [2010] FWA 2686; BC201070682 at [12]. However, in Josef [page 589] Nalevansky v Thought Equity Motion Inc [2010] FWA 3707; BC201070546, Watson VP held at [13] that the Small Business Fair Dismissal Code does not apply to redundancy dismissals. [7-4360.21] Small Business Employer — s 388(2)(a), (b) See ss 12 and 23. [7-4360.25] Outline of section The provisions dealing with the Small Business Fair Dismissal Code must be viewed in the context of Pt 3-2 of the Act, in which they are found. That Part has as its object, ensuring that a “fair go all round” is accorded to both the employer and the employee concerned: s 381(2). The effect of s 385(c) is to deprive a dismissed employee of access to relief that is otherwise generally available to dismissed employees on the ground that their dismissal is harsh, unjust or unreasonable, in circumstances where the employer is a small business and has complied with the Code. The further effect of the Code is that where misconduct is serious so that the provisions of the Code dealing with summary dismissal apply, the employee is not entitled to the other provisions of the Code dealing with elements of procedural fairness: Mr Gregory Wayne Jarvis v Anderson Plumbing & Roofing Pty Ltd [2010] FWA 8896; BC201071125 at [9]. The following was held in Pinawin v Domingo (2012) 219 IR 128; [2012] FWAFB 1359; BC201271657 at [29] and [30]: There are two steps in the process of determining whether this aspect [serious misconduct] of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held. Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps

giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned. Section 396 of the Act provides that whether a dismissal is consistent with the Code is an initial matter that FWA must consider before considering the merits of the application. If the employer has not complied with the Code, the claim will be treated the same way as any other unfair dismissal claim: Explanatory Memorandum to the Fair Work Bill 2008 at [1545]. *Editor’s note: Commentary to Small Business Fair Dismissal Code written by Joe Catanzariti, VP FWC and Michael Byrnes, Special Counsel, Clayton Utz. Updated by Michael Byrnes, Special Counsel, Clayton Utz. All other commentary by Ian Latham BA(Hons)/LLB, ANU, Barrister, Sydney.

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[7-4380]

Meaning of genuine redundancy

389 (1) A person’s dismissal was a case of genuine redundancy if: (a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and (b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. (2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within: (a) the employer’s enterprise; or (b) the enterprise of an associated entity of the employer. [page 590] COMMENTARY TO SECTION 389*

Requirements of section …. Redeployment …. Derivation ….

[7-4380.1] [7-4380.5] [7-4380.10]

Associated entity — s 389(2)(b) …. Consult — s 389(1)(b) …. Employer — s 389(1)(a), (b), (2)(a), (b) …. Enterprise — s 389(1)(a) …. Genuine redundancy — s 389(1), (2) …. Operational requirements — s 389(1)(a) …. Redeployed — s 389(2) …. Would have been reasonable — s 389(2) …. Outline of the section ….

[7-4380.15] [7-4380.20] [7-4380.25] [7-4380.30] [7-4380.35] [7-4380.40] [7-4380.42] [7-4380.43] [7-4380.45]

[7-4380.1] Requirements of section Section 389 sets out the requirements for a genuine redundancy, which will mean that the employee is unable to bring an unfair dismissal claim. In Bice v Yarra Advantage Pty Ltd [2015] FWC 3326, the Fair Work Commission held that the initial requirement in s 389 is that “the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise”. In determining the meaning of ‘genuine redundancy’, the Fair Work Commission had regard to the Full Bench decision in Ulan Coal Mines Ltd v Howarth [2010] FWAFB 3488; (2010) 196 IR 32. In that case, it was held that when determining whether a dismissal was a genuine redundancy, it is necessary to draw a distinction between the employee’s “job” and their “duties”. The Full Bench noted that the words “the person’s employer no longer required the person’s job to be performed by anyone” in s 389(1)(a), had long been used and applied by industrial tribunals. The restructure at the mine did not mean that the duties previously performed by retrenched mineworkers no longer need to be performed, or that some of the positions did not now need to be filled by more senior workers transferred from other parts of the mine’s operations. However, the Full Bench held that “fewer non-trades mineworker jobs were required overall at the mine as a result of the operational changes introduced and, for this reason, the jobs of the 14 mineworkers selected for retrenchment could be said to no longer exist”: at [19]. In the Full Bench’s view, the circumstances of the current case readily fell within the definition provided in s 389(1)(a). It is not relevant to the consideration under s 389(1)(a) that aspects of the employee’s duties are still being performed by someone else: Johnston v Blue Circle Southern Cement Pty Ltd (2010) 202 IR 121; [2010] FWA 5149 at [44]. Moreover, where the business restructure was genuine and numerous redundancies were to occur as a consequence, then the selection process used, even if unsatisfactory, is not relevant to an application of s 389(1)(a) at [48]. [7-4380.5] Redeployment The Full Bench held in Technical and Further Education Commission t/as TAFE NSW v Pykett (2014) 240 IR 130; [2014] FWCFB 714 at [25] that: The word ‘redeployed’ should be given its ordinary and natural meaning. The ordinary meaning of the word ‘redeploy’ includes: “Move (troops, workers, material etc) from one area of activity to another, reorganise for greater effectiveness; transfer to another job, task or function.” Section 389(2) provides that a dismissal will not be a genuine redundancy where it would have been reasonable to redeploy the employee within the employer’s enterprise or the enterprise of an associated

entity of the employer. [page 591] The importance of this obligation was highlighted in Kristina Iannello v Motor Solutions Australia Pty Ltd [2010] FWA 3125; BC201070647. In this case Ms Iannello was employed by Motor Solutions, a HR services company, from 23 May 2001. On 7 December 2008 she went on maternity leave. Ms Iannello was scheduled to return to work on 1 April 2009; however, because of work shortages the company said there was insufficient work for her to return full time. After multiple meetings in which Ms Ianello made it clear that she wanted to return on a full-time basis, her employment was terminated. Ms Ianello lodged an application for unfair dismissal remedy and Motor Solutions sought to have it struck out on the basis that her dismissal was a genuine redundancy. Watson VP held that the general approach to s 389 of the Fair Work Act is that the section needs to be applied to the circumstances of the case. Watson VP held that s 389(1) was satisfied, as the economic reasons referred to by the employer were genuine and the employer had amalgamated the duties of two positions. However, Watson VP then considered whether it would have been reasonable for Motor Solutions to redeploy Ms Ianello. Watson VP held that the nature of the guarantee to return to work following maternity leave bears upon the reasonableness of redeployment and was an important factor in this case. The employer submitted that this was the first time they had ever had to make anyone redundant and as the economy stood they had no other option. Watson VP held that the employer did have another option, namely to consider Ms Ianello’s right to return to work in conjunction with the decision to make redundancies. Watson VP acknowledged that this may have meant that Mr Hennessy may have been made redundant instead. However, he held that, in light of the employer’s favourable comments about her performance, her greater experience and seniority, it was likely Ms Ianello would have been redeployed in the remaining role and that Mr Hennessy would have been made redundant. Watson VP further held that “Mr Henderson’s ignorance of his obligations led to an incomplete consideration of the options” and in these circumstances it would have been reasonable to redeploy Ms Ianello to the position remaining in the business: at [32]. In Ho v AP Eagers Ltd (2010) 203 IR 376; [2010] FWA 5897, a car dealership was ordered to pay $25,000 to an employee it made redundant, in circumstances where it would have been reasonable to redeploy him to a more junior position. The 62 year old employee argued that although his current role had been abolished in the restructure, he should have been redeployed to the new assistant accountant position which had been created. The new role involved substantially less responsibility and a $20,000 reduction in salary, along with the loss of other benefits such as a company car. The employer argued that they did not redeploy the employee because they feared the large reduction in salary would constitute a constructive dismissal. However, Simpson C rejected this argument and at [81] that: I do not agree that s 389(2) should be read as narrowly as suggested by the Respondent in their closing written submissions, where it is argued that the objective test is focussed upon whether it would have been reasonable for the employer, as a matter of discretion, to have redeployed the person. The Respondent argued further that redeployment, in the purposive context of s 389(2) must mean the employer unilaterally transferring the employee to a position which was the same as the one that the employee occupied at the date of redundancy. I do not believe that the words in s 389(2)

are intended to confine redeployment options only to roles that are the same as the position that the employee occupied at the date of redundancy. The termination letter provided to Mr Ho stated that “we have nothing to offer you which matches your skills, experience and your employment package”. However, Simpson C noted that the language in the Explanatory Memorandum at [1552] refers to “… positions available for which the employee has suitable qualifications and experience”: at [79]. The Explanatory Memorandum makes no reference to the “employment package” as the termination letter did. [page 592] Simpson C believed this was an important point, as in the circumstances of this case he did not accept that the lower employment package was a reasonable basis for the Respondent to exclude Mr Ho from consideration for redeployment into the newly created Assistant Accountant position. In regard to the employer’s claim that the employee was unsuitable for the new role because of deficiencies in his communication, interpersonal and computer skills, Simpson C held at [85] that “the Respondent should have been able to provide some evidence rather than just opinion to establish the basis for its decision that Mr Ho was unsuitable for the role”. See also to similar effect Jenny Craig Weight Loss Centres Pty Ltd v Margolina [2011] FWAFB 9137 at [28]. The Explanatory Memorandum to the Fair Work Bill 2008 gives instances where it would not be reasonable to redeploy: 1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment, or there may be no positions available for which the employee has suitable qualifications or experience. In Ulan Coal Mines Ltd v Honeysett (2010) 199 IR 363; 63 AILR 101-275; [2010] FWAFB 7578 a Full Bench of the tribunal discussed the notion of reasonableness in these terms at [28]: The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered. An employer must generally inquire into the availability of suitable roles at other interstate locations. In Aldred v Hutchinson Pty Ltd [2012] FWA 8289, it was held that the employer had an obligation to inquire into the availability of suitable roles at other interstate locations, regardless of whether the employee had expressly requested redeployment to a suitable position interstate. As stated by Commissioner Levin: [h]aving regard to the size of the employer, the nature of the work performed by its employees and the national character of its business, I judge that it was not unreasonable in the circumstances to make enquiries more broadly in the circumstances of Mr Aldred’s case. SDP Richards discussed the reasonableness of redeployment to an overseas entity in Brian Roy v SNC-Lavalin Australia Pty Ltd (2013) 236 IR 255; [2013] FWC 7309. In that case he held that redeployment would not have been reasonable. He held at [40]–[41] that:

Redeployments (proper) by employers also ordinarily incur significant relocation expenses on the part of the employer. An employer would be obliged to consider the financial burden of relocation arising from redeployment to an international position (or even one interstate) for the purposes of s 389(2) of the Act. Such circumstances would inform the reasonableness of redeployment. Other difficulties arise in respect of overseas entities within a company group where those entities operate their own distinct human resource functions, policies and procedures, and there is no overriding central managerial control. It is not necessary for the Commission to specify a particular position for the person to be employed in. As the Full Bench found in Technical and Further Education Commission t/as TAFE NSW v Pykett (2014) 240 IR 130; [2014] FWCFB 714 at [53], it is open to the Commissioner: [N]ot to specify a particular position and to leave it to the employer to choose the position and to comply with the order to provide terms and conditions that are no less favourable than those on which the applicant was employed immediately before her dismissal. [page 593] [7-4380.10] Derivation The section has some similarity with ss 649(1) and 649(2) of the Workplace Relations Act 1996. For a history of the provisions see Esther Stern, “From ‘Valid Reason’ to ‘Genuine Redundancy’ Redundancy Selection: A Question of (Im)Balance?” [2012] UNSWLawJl 3; (2012) 35(1) 70. Elizabeth Shi wrote in “A Tiger with No Teeth: Genuine Redundancy and Reasonable Redeployment under the Fair Work Act” [2012] UQLawJl 4; (2012) 31(1) University of Queensland Law Journal 101 at 110: While redeployment requirements have been commonplace in legislation in various European countries, this is the first time a provision along these lines has ever appeared in an Australian statute. [7-4380.15] Associated entity — s 389(2)(b) See s 12. [7-4380.20] Consult — s 389(1)(b) In Livingstones Australia v ICF (Australia) Pty Ltd T/A IC Frith & Associates [2014] FWCFB 1276 at [36], the Full Bench held that s 389(1)(b): … evinces a legislative intent to ensure that statutory consultation rights are upheld in cases where an employer decides that there are genuine operational reasons to make an employee or employees redundant. The existence of genuine operational reasons justifying the redundancy is not enough. The employer must also comply with consultation obligations imposed by an award of enterprise agreement before a termination based on those operational requirements can be “a case of genuine redundancy” for the purposes of the Act, and s 385(d) in particular. In order to be a genuine redundancy within the meaning of s 389 both of the mandatory elements of s 389 must be satisfied: Pitceathly v Diona Pty Limited [2011] FWA 478; BC201170179 at [66]. The requirement to discuss proposed changes and consult about these changes has been held to require meaningful consultation and not merely an afterthought. Consultation after an irrevocable decision has been made has been held to not amount to meaningful consultation: Maswan v Escada Textilvertrieb t/as Escada [2011] FWA 4239; BC201170726 at [19]. Consultation does not mean joint decision making, it does involve a genuine opportunity to persuade: Livingstones Australia v ICF (Australia) Pty

Ltd T/A IC Frith & Associates [2014] FWCFB 1276 at [35]. In Siriwardhana v FDGH Pty Ltd t/as Caltex Fitzroy North [2013] FWC 5609 at [18] Cmr Roe held that “[c]onsultation means a bona fide opportunity to influence the decision maker”. In Construction, Forestry, Mining and Energy Union and others v BHP Coal Pty Ltd (2012) 220 IR 287; [2012] FWA 3945; BC201273156 at [39], Cmr Roe quoted the earlier Full Bench decision in Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Pty (1998) 88 IR 202 with approval holding that: As the Privy Council said in Port Louis Corporation v Attorney General of Mauritius: The requirement of consultation is never to be treated perfunctorily or as a mere formality. In the context of a case concerning the statutory obligation to consult in relation to decisions regarding variations in public transport routes Sachs LJ observed: Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. I start accordingly from the viewpoint that any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at the formative stage of proposals — before the mind of the executive becomes unduly fixed. In speaking of the duty to consult under an industrial instrument in Alcwyn Roberts and Peter Collins v Coles Group Supply Chain Pty Ltd t/as Coles, [2016] FWC 4898 at [99]–[100], SDP Sams described the limitations upon the obligation in holding that: [page 594] … consultation does not mean agreement; nor does it mean an employee can hold out until they get what they want. It most certainly does not mean that the employee can have a veto power of the employer’s final decision or that the employer must create a shift for one person where one does not exist. On the other hand, consultation must mean the taking into account the concerns of the employees as to the effect of the change. In other words, genuine consultation. The employer cannot merely “pay lip service” to the employees’ concerns. Simply having meetings and receiving the employees’ concerns may, or may not be genuine consultation. However, where alternative options are put, discussed, considered and modified, the process will usually demonstrate that the employer is not just “paying lip service” to its consultation obligations, but is genuinely consulting. In Trembath v Kabi Organic Golf Course [2011] FWA 8346; BC201171449 at [48]–[49] Cmr Spencer held: The obligation to consult is not an absolute obligation to consult … The obligation to consult is to be discharged in accordance with the obligations in the provision of industrial instruments. In Ventyx Pty Ltd v Murray [2014] FWCFB 2143, the Full Bench of the Fair Work Commission held that the obligation to consult is triggered upon a “definite decision” being made by the employer. [7-4380.25] Employer — s 389(1)(a), (b), (2)(a), (b) See s 380. [7-4380.30] Enterprise — s 389(1)(a) See s 12.

[7-4380.35] Genuine redundancy — s 389(1), (2) For a history of the meaning of redundancy see Marshall v UBS [2012] FWA 1708 at [5]–[6]. The High Court has made clear that redundancy is often difficult to define: Amcor Ltd v Construction Forestry Mining and Energy Union (2005) 214 ALR 56; 79 ALJR 703; [2005] HCA 10; BC200500901 at [65]. In that case, the business was sold to a subsidiary. The workforce was terminated by the parent company and reemployed by the subsidiary. The business (and the work) continued throughout. The High Court was confronted with the question as to whether the workforce had been made redundant by the parent. The Court answered no. They did so because: The Commission did not intend redundancy provisions to be engaged by the transmission of a business. In its earlier decision, the Commission had emphasised that it did “not envisage severance payments being made in cases of succession, assignment or transmission of a business”. That is, the Commission regarded termination of employment by a particular employer as not sufficient to engage the redundancy obligations, even if that employer was ceasing any participation in the particular business. The focus of the provision was upon the work undertaken by the employee (the “job”), not upon the identity of either the employee or the employer. The relevant inquiry was whether employment in a particular kind of work then being undertaken was to come to an end. If that employment was to come to an end, it was necessary to consider why that was to happen. Was it because the employer no longer wanted the job, then being done by the employee, done by anyone? Or was it “due to the ordinary and customary turnover of labour”? And, as the Commission’s evident concerns about drafting show, these alternatives were not, and are not to be, understood as exhausting the cases that might have to be considered at [44]. The “positions” with which this case is concerned were positions in a business of making and selling paper. None of those positions became redundant. Neither the sale of assets by Amcor nor the later termination of employment by Amcor meant that the work then being undertaken by the employees was no longer required by the company which conducted the business in which the positions existed. The “job” of no employee was redundant: at [57]. [page 595] That ambiguity of meaning was illustrated by Jessup J in Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99 at [160]: In its strict connotation in an industrial context, “redundancy” is a situation in which the employer no longer wants the work hitherto performed by a particular employee to be done by anyone … In that sense, it may be said that the job or position, rather than its incumbent, is “redundant”. It may be accepted, however, that a looser, and quite commonplace, connotation would have it that the employee whose work is no longer required is to be regarded as “redundant”. If a dismissal is a case of genuine redundancy the employer has a complete defence to the application: Ulan Coal Mines Ltd v Honeysett [2010] FWAFB 7578; (2010) 199 IR 363 at [26]; Riazati v Interactive Media Solutions Pty Ltd [2014] FWC 8995; Lazenby v United Voice [2015] FWC 191; Pettet v Mt Arthur Coal Pty Ltd [2015] FWC 2851. It is not necessary to show that the duties of the applicant are no longer required to be performed by anyone. The question is whether the job is still required: Margolina v Jenny Craig Weight Loss Centres Pty Ltd [2011] FWA 5215 at [5]. In Ulan Coal Mines Ltd v Howarth [2010] FWAFB 3488; (2010) 196 IR 32, the Full Bench held that when determining whether a dismissal was a genuine redundancy, it is necessary to draw a distinction between the employee’s “job” and their “duties”. The Full Bench noted that the words, “the person’s employer no longer required the person’s job to be performed by anyone” in s 389(1)(a), had long been

used and applied by industrial tribunals. However, the Full Bench held that “fewer non-trades mineworker jobs were required overall at the mine as a result of the operational changes introduced, and for this reason, the jobs of the 14 mineworkers selected for retrenchment could be said to no longer exist:” at [19]. In the Full Bench’s view, the circumstances of the current case readily fell within the definition provided in s 389(1)(a). Paragraph 1548 of the Explanatory Memorandum to the Fair Work Bill 2008 provides the following examples: The following are possible examples of a change in the operational requirements of an enterprise: a machine is now available to do the job performed by the employee; the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists. Jobs which were required by the employer may no longer be required because the employer through such a structural or organisational change has either eliminated the need for specific duties to be undertaken, or has found a better way to have these required duties performed: Margolina v Jenny Craig Weight Loss Centres Pty Ltd [2011] FWA 5215 at [6]. It is not relevant to the consideration under s 389(1)(a) that aspects of the employee’s duties are still being performed by someone else: Johnston v Blue Circle Southern Cement Pty Ltd (2010) 202 IR 121; [2010] FWA 5149 at [44]. Moreover, where the business restructure was genuine, and numerous redundancies were to occur as a consequence, then the selection process used, even if unsatisfactory, is not relevant to an application of s 389(1)(a) at [48]. The test was put in more colloquial terms by VP Watson when he held that: “When a job disappears, work disappears or the workplace disappears and this leads to a termination of employment, the circumstances are commonly described as a redundancy”: Purdon v The Ascent Group Australia Ltd T/A The Ascent Group [2012] FWA 2495 at [14]. To similar effect, Ryan J held in Jones v Dept of Energy and Minerals (1995) 60 IR 304 at [308] that: [page 596] What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant… Whatever be the exact reach of the term “redundancy”, it does not extend to the dismissal of an employee for cause: Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472; BC201210254 at [27]. In Monks v John Holland Group Pty Ltd (2012) 224 IR 6; [2012] FWA 6453; BC201275526 at [47], Cmr Gooley accepted the applicants’ submissions as follows: [T]he mere addition of new tasks to a particular job would not entitle an employer or an employee to claim a position was redundant. However a significant change in the skills required, the accountabilities and autonomy of a position would.

See generally Steve Godding, Redundancy — update on the common law meaning: Part 1, Recent cases on the meaning of redundancy: Part 2, Redundancy, redeployment and the Fair Work Act: Part 3, (2012)18(7) ELB at 101, 104, 109; Victoria Comino, Hilary Harrison-Smith, Sam Eichenbaum and Veronica Belot, The changing face of “genuine redundancy” (2014) 20(5) ELB 69. [7-4380.40] Operational requirements — s 389(1)(a) Where an employer terminates the employment of an employee with particular qualifications and experience, because no suitable assignment can be found for an employee with those qualifications and that experience, the termination is for an operational reason. The reason is structural in nature. Such a decision is akin to a decision to terminate employment for redundancy arising from technological change, for example: Acworth v Boeing Australia Ltd [2007] AIRCFB 730; (2007) 166 IR 371 at [23]. [7-4380.42] Redeployed — s 389(2) The Full Bench in Technical and Further Education Commission t/as TAFE NSW v Pykett (2014) 240 IR 130; [2014] FWCFB 714 at [25] held that: The word “redeployed” should be given its ordinary and natural meaning. The ordinary meaning of the word “redeploy” includes: Move (troops, workers, material etc) from one area of activity to another, reorganise for greater effectiveness; “transfer to another job, task or function” [emphasis added] In Ulan Coal Mines Ltd v Honeysett; Murray v Ulan Coal Mines Ltd [2010] FWAFB 7578; (2010) 199 IR 363, the Full Bench held at [34]: It is an essential part of the concept of redeployment under s 389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. The Full Bench went on to hold in Technical and Further Education Commission t/as TAFE NSW v Pykett (2014) 240 IR 130; [2014] FWCFB 714 that: [34] Honeysett is authority for the proposition that for the purpose of s 389(2)(b) it is sufficient if the Commission identifies a suitable job or position to which the dismissed employee could be redeployed. The Commission must then determine whether such a redeployment was reasonable in all the circumstances. We note that given the factual context the Full Bench in Honeysett did not need to consider whether s 389(2) may be satisfied if the dismissed employee could be redeployed to perform other work within the employer’s enterprise (or that of an associated entity.) Given its particular factual circumstances Honeysett is not authority for the proposition that it is always necessary to identify a particular job or position to which the dismissed employee could have been redeployed. [page 597] The obligation to redeploy is a broad one. As the Full Bench held in Ulan Coal Mines Ltd v Honeysett; Murray v Ulan Coal Mines Ltd [2010] FWAFB 7578; (2010) 199 IR 363 at [27]: It follows that an employer cannot succeed in a submission that redeployment would not have been

reasonable merely because it would have involved redeployment to an associated entity. Similarly, the Full Bench held in MacLeod [2014] FWCFB 1542 at [32]: To avoid doubt, we note as a matter of principle that the availability of a more junior role into which the employee could have been redeployed could provide a basis for finding that a redundancy was not genuine, or that a dismissal was harsh, unjust or unreasonable. Each case will turn on its own facts… See Emma Goodwin, “Genuine” redundancy and redeployment under Pt 3-2 of the Fair Work Act 2009 (Cth): the Kestrel Coal Decisions” (2015) 21(9) ELB, 110. [7-4380.43] Would have been reasonable — s 389(2) The use of the past tense in this expression directs attention to the circumstances which pertained at the time the person was dismissed: Technical and Further Education Commission (2014) 240 IR 130; [2014] FWCFB 714 at [24]. [7-4380.45] Outline of the section Section 389 sets out the requirements for a genuine redundancy, which will mean that the employee is unable to bring an unfair dismissal claim. The test is twofold; first, whether the job is no longer required and secondly, whether that was due to changes in operational requirements. The employer has the onus to demonstrate that the dismissal was a genuine redundancy within the meaning of the Act: TG v SF Pty Ltd [2010] FWA 2650 at [28]. The employer has an onus to establish that there have been changes in the operational requirements of the employer’s enterprise which caused the job to become redundant: Pitceathly v Diona Pty Limited [2011] FWA 478 at [42]; Rabel v Selmar Holdings Pty Ltd/Career Training Group Pty Ltd (CTG) [2014] FWC 5073. See generally Kristy Peacock-Smith, “Employers’ obligations in retrenchment and redeployment of employees: recent decisions in Barker v Commonwealth Bank of Australian and Alfred v Hutchinson Pty Ltd”, Employment Law Bulletin, LexisNexis, March 2013, 157. * Commentary to Requirements of section, redeployment written by Joe Catanzariti, VP FWC and Michael Byrnes, Special Counsel, Clayton Utz. Updated by Michael Byrnes, Special Counsel, Clayton Utz. All other commentary by Ian Latham BA(hons)/LLB, ANU Barrister, Sydney.

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DIVISION 4 — REMEDIES FOR UNFAIR DISMISSAL

[7-4570] When the FWC may order remedy for unfair dismissal 390 (1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if: (a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and (b) the person has been unfairly dismissed (see Division 3). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 394, opn 1 Jan 2013]

(2) The FWC may make the order only if the person has made an application under section 394. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 395, opn 1 Jan 2013]

(3) The FWC must not order the payment of compensation to the person unless: (a) the FWC is satisfied that reinstatement of the person is inappropriate; and (b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case. Note: Division 5 deals with procedural matters such as applications for remedies. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 396, 397, opn 1 Jan 2013] [s 390 am Act 174 of 2012 s 3 and Sch 9 item 393, opn 1 Jan 2013]

[page 598] COMMENTARY TO SECTION 390*

Derivation …. FWC — s 390(1)(a), (2), (3)(a), (b) …. Inappropriate — s 390(a) …. Payment of compensation …. Protected from unfair dismissal — s 390(1)(a) …. Reinstatement — s 390(1), (3)(a) …. Unfairly dismissed — s 390(1)(b) …. Outline of section ….

[7-4570.1] [7-4570.5] [7-4570.10] [7-4570.15] [7-4570.20] [7-4570.25] [7-4570.30] [7-4570.35]

[7-4570.1] Derivation The section has some similarities with s 654(7) of the Workplace Relations Act 1996 (Cth). [7-4570.5] FWC — s 390(1)(a), (2), (3)(a), (b) See the definition in s 12. [7-4570.10] Inappropriate — s 390(a) The terms of s 390(3)(a) dictate that, in circumstances where a remedy is appropriate, compensation must not be ordered unless the tribunal is satisfied that reinstatement is inappropriate: Regional Express Holdings Ltd v Richards [2010] FWAFB 8753 at [21]; Baker v KVD Resort Management Group P/L ATF Connolly Family Trust T/A Great Eastern Motor Inn [2014] FWC 6374; Fitzpatrick v MI Arthur Coal Pty Ltd [2015] FWC 2343. The relevant principles governing the appropriateness of reinstatement are well established. The word “impracticality” found in earlier statutes may be interchangeable with “inappropriateness” under the Flambley v DP World Sydney Ltd t/as DP World Sydney [2012] FWA 1250 at [162] (21 March 2012). As to the meaning of

impracticability see Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at pp 191–192: Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fairmindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable. Financial position of the employer The financial situation of the employer may be relevant to the appropriateness of reinstatement: Worth v Sunshine Sydney Pty Ltd Trading as The Big Pineapple [2010] FWA 9332; BC201070999 at [31] (15 December 2010). In Josh Greaves [page 599] v South Burnett Beef Trading Pty Ltd (in receivership) [2007] AIRC 688; BC200770104(14 August 2007), reinstatement to a company that was no longer trading was seen as appropriate in circumstances where reinstatement would provide access to GEERS. At [36], Cmr Spencer stated: Whilst it is recognised that it is an unusual step to reinstate an employee to a company that is not operational, this action has been taken on prior occasions in this Commission to allow for employees to be recipients of entitlements that they were excluded from on the basis of an unfair termination. For the above reasons, and in accordance with the decision of Senior Deputy President Williams in —John Shadfar v Domino River Pty Ltd (which involved similar facts), I consider that reinstatement is an appropriate remedy in the circumstances and consequently order reinstatement for the purpose of enabling the Applicant to access any entitlements for which he may be eligible pursuant to GEERS. Impact on other employees Reinstatement is not made inappropriate by the mere possibility of an adverse impact flowing from the reinstatement: Sulemanovski v Aperio Group (Australia) Pty Ltd t/as Aperio Finewrap [2010] FWA 9958 at [65] (30 December 2010). Incapacity How much weight to give an employee’s ongoing incapacity when considering whether reinstatement is appropriate will depend upon all the circumstances of the case. However, when considering whether reinstatement is appropriate for an employee who has an ongoing incapacity arising from illness or injury, guiding principles were set out in Arthur Smith and Brett Kimball v Moore Paragon Australia Ltd — PR942856 [2004] AIRC 57 at [51] (20 January 2004): generally

reinstatement of a materially incapacitated employee will not be appropriate where: further performance of the employee’s contractual obligations in the future would either be impossible or would be a thing radically different from that undertaken by him or her and accepted by the employer under the agreed terms of his or her contract of employment; reinstatement would involve imposing a material future productivity burden or some other unreasonable burden on the employer; or reinstatement would impose an unreasonable burden on other employees. Exceptional circumstances would be necessary before reinstatement could properly be regarded as appropriate in such situations. Misconduct When employment is terminated, particularly for serious misconduct, it is inevitable that some damage to the relationship of employment will occur: Mr Norman Govett v Gomed Pty Ltd t/as Paramedic Services Victoria [2010] FWA 9100; BC201071165 at [95] (30 November 2010). That damage is not necessarily determinative. In Hammond v Australian Red Cross Blood Service — Sydney [2011] FWA 1346; BC201170438 (4 April 2011), the employer’s witnesses had said that the respondent had lost trust and confidence in the applicant and reinstatement would therefore be inappropriate. At [89], DP Sams held that: If that was all that was required to deny an unfairly dismissed employee the primary remedy under the Act, then I doubt that any dismissed employee would ever be reinstated. To similar effect see Regional Express Holdings Ltd v Richards (2010) 206 IR 17; [2010] FWAFB 8753, in which the Full Bench considered the factors to be taken into account in determining whether reinstatement is inappropriate under s 390(3)(a). It was held at [26]: Whenever an employer dismisses an employee for misconduct, assuming the employer is acting honestly, there is an implied loss of trust and confidence in the employee. If it is subsequently found that the termination was harsh, unjust or unreasonable it is appropriate to consider whether the relationship can be restored if the employee is reinstated. That question cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account. [page 600] [7-4570.15] Payment of compensation For a history of s 390(3)(b) see James Stewart v Axcess Demolition & Excavations Pty Ltd [2011] FWA 5286; BC201170902 at [13]–[18] (10 August 2011). For the criteria to be used see s 392. [7-4570.20] Protected from unfair dismissal — s 390(1)(a) See s 382. [7-4570.25] Reinstatement — s 390(1), (3)(a) Section 381(c) of the Act makes plain, where an applicant demonstrates that he/she was unfairly dismissed, that reinstatement is the primary remedy: Hammond v Australian Red Cross Blood Service — Sydney [2011] FWA 1346; BC201170438 at [87] (4 April 2011). [7-4570.30] Unfairly dismissed — s 390(1)(b) See s 386. [7-4570.35] Outline of section The Explanatory Memorandum to the Fair Work Bill at paras 1555– 1556 states that this clause sets out when FWA may order a remedy for unfair dismissal, namely when

a person has been unfairly dismissed and they were protected from unfair dismissal. Consistent with reinstatement being the primary remedy, FWA may order compensation only if it is satisfied that reinstatement is inappropriate and that compensation is appropriate. The Fair Work Commission has provided detailed statistics for unfair dismissal proceedings. The 2014-5 Annual Report of Fair Work Australia show 14,624 claims in that year.1 8788 cases were settled at conciliation.2 Successful jurisdictional objections were made in 890 cases.3 Of the 349 matters that went to arbitration, the dismissal was found to be unfair in 188 cases. Of those cases, reinstatement was granted in 27 cases.4 No remedy was determined in 10 cases.5 Of the cases in which compensation was granted; compensation of less than $15000 was ordered in 101 cases.6 Those statistics make for sobering reading. They show that the unfair dismissal regime provides a long and winding road for applicants seeking an arbitrated remedy with the remedy often meagre. They also show the apparent success of the alternatives to arbitration. In Stan v Frontline Australasia [2014] FWC 5457, DP Gostencnik doubted, although did not ultimately decide, whether an application survived the death of the applicant. He did opine at [7] that: The right under the Act to make an unfair dismissal remedy application is personal to the dismissed employee. The Act does not confer a right to a remedy, but only a right to make an application and having it heard according to law. It is a right that is a bare and nonassignable right and generally is not one that is to be regarded as a proprietary right. Fair Work Commission Annual Report 2014–15 p 71. 2 Fair Work Commission Annual Report 2014–15 p 72. 3 Fair Work Commission Annual Report 2014–15 p 74. 4 Fair Work Commission Annual Report 2014–15 p 75. 5 Fair Work Commission Annual Report 2014–15 p 75. 6 Fair Work Commission Annual Report 2014–15 p 77. *Editors’ note: Commentary to s 390 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister. 1

____________________

[7-4590]

Remedy — reinstatement etc

391 Reinstatement (1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by: (a) reappointing the person to the position in which the person was employed immediately before the dismissal; or [page 601] (b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed

immediately before the dismissal. (1A) If: (a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and (b) that position, or an equivalent position, is a position with an associated entity of the employer; the order under subsection (1) may be an order to the associated entity to: (c) appoint the person to the position in which the person was employed immediately before the dismissal; or (d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal. Order to maintain continuity (2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following: (a) the continuity of the person’s employment; (b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 398, opn 1 Jan 2013]

Order to restore lost pay (3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 398, opn 1 Jan 2013]

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account: (a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal

and the making of the order for reinstatement; and (b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 398, opn 1 Jan 2013] COMMENTARY TO SECTION 391

Exception to reinstatement ….

[7-4590.1]

[7-4590.1] Exception to reinstatement In Bermingham v Kings Transport & Logistics (Aust) Pty Ltd [2010] FWA 1116, SDP O’Callaghan considered reinstatement to be “entirely inappropriate” because the manager had “clearly destroyed the necessary trust which is a prerequisite for any employment relationship” and his relationships with his colleagues would be “severely strained so as to be unworkable”: at [69]. In the end, he decided against awarding [page 602] compensation (with the maximum he was prepared to order being 1 week) pursuant to his mandate under s 392(3) to reduce compensation where there has been misconduct by a dismissed employee. In Richards v Regional Express Holdings Ltd t/as REX Airlines [2010] FWA 4230, the employer argued that even if the employee was found not to have committed the acts of misconduct as alleged, he did not believe that trust and confidence in the employee would return. Bissett C found this position to be “inexplicable” holding that the stresses and strain of an investigation into alleged misconduct should not be confused with trust and confidence. The question was whether the loss of trust and confidence claimed by the employer was rationally based. Bissett C ultimately held at [190] that she was not convinced that the trust and confidence necessary for an ongoing employment relationship had been irrevocably destroyed and considered reinstatement a viable remedy. Moreover, Bissett C held at [194] that the determination of an order for lost pay is a discretionary consideration; however, in determining any amount there are some mandatory considerations set out in s 391(4). FW Australia, in making an order for lost pay, may reduce any such amount to take into account the misconduct of the employee. In Nguyen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354, an employee who recklessly and carelessly caused a collision between his forklift and that of another employee was penalised 6 weeks’ pay for the conduct. FW Australia, in considering the appropriate penalty, took into account the employee’s lengthy service of over 20 years with the employer and the fact that he has not been subject to any disciplinary action in the past. The Commissioner also noted the utmost importance of health and safety in the workplace and that the actions that places any worker’s health and safety at risk are never condoned. In Andrew Tung v Mos Burger Australia Pty Ltd T/A Mos Burger [2015] FWC 2678, an employee was dismissed on the basis of poor performance after it was determined that he was “ill-suited to a managerial role in the business”. Senior Deputy President Richards held that reinstatement was not an appropriate remedy in the circumstances given that the employee “had been the subject of findings of poor attendance whilst performing a managerial role, which he did not in substance challenge”. Senior Deputy President Richards took into account evidence which suggested the employee’s “reinstatement would not result in a productive workplace” and the employer’s “reasonable concerns about his confidence in [the employee] to perform his duties as a manager” at [44].

____________________

[7-4610]

Remedy — compensation

392 Compensation (1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement. Criteria for deciding amounts (2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including: (a) the effect of the order on the viability of the employer’s enterprise; and (b) the length of the person’s service with the employer; and (c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and (d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and [page 603] (e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and (f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and (g) any other matter that the FWC considers relevant. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 398, opn 1 Jan 2013]

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 398, opn 1 Jan 2013]

Shock, distress etc disregarded (4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 398, opn 1 Jan 2013]

Compensation cap (5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of: (a) the amount worked out under subsection (6); and (b) half the amount of the high income threshold immediately before the dismissal. [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 398, opn 1 Jan 2013]

(6) The amount is the total of the following amounts: (a) the total amount of remuneration: (i) received by the person; or (ii) to which the person was entitled; (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and (b) if the employee was on leave without pay or without full pay while so employed during any part of that period — the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations. COMMENTARY TO SECTION 392*

Derivation …. Contributed to the employer’s decision — s 392(3) ….

[7-4610.1] [7-4610.2]

Determining an amount — s 392(2) …. FWC — s 392(2), (g), (3), (4), (5) …. High income threshold — s 392(5)(b) …. Misconduct – s 392(3) ….

[7-4610.5] [7-4610.10] [7-4610.15] [7-4610.20] [page 604]

Mitigate the loss — s 392(2)(d) …. Remuneration — 392(2)(c), (e), (6)(a), (b) …. Shock, distress — s 392(4) …. Take into account — s 392(2) …. Would have received — s 393(c) …. Scope of section ….

[7-4610.21] [7-4610.22] [7-4610.23] [7-4610.25] [7-4610.26] [7-4610.30]

[7-4610.1] Derivation The section is derived from s 654 of the Workplace Relations Act 1996. [7-4610.2] Contributed to the employer’s decision — s 392(3) For examples see Gary Bermingham v Kings Transport & Logistics (Aust) Pty Ltd [2010] FWA 1116; BC201070181 at [75]; Ms Jennifer Delaney v Parramatta Leagues Club Ltd [2010] FWA 1164; BC201070187 at [131]. [7-4610.5] Determining an amount — s 392(2) The Full Bench in Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21; Print R0235; at [29]; the Full Bench adopted the formula of VP Ross in Shorten v Australian Meat Holdings as follows: STEP 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment. STEP 2: Deduct moneys earned since termination. Workers compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation awarded. STEP 3: The remaining amount of compensation is discounted for contingencies. STEP 4: The impact of taxation is calculated to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment. STEP 5: The legislative cap on compensation is applied. The section … limits the Court and the Commission to an amount not exceeding the amount of remuneration that the employee would have earned in the six months immediately following the termination, if the termination had not occurred. This is simply an arbitrary cap on the amount that may be awarded. It does not operate as a maxi-mum amount to be awarded only in the most grievous or serious cases: … That decision is a guide to the exercise of discretion in awarding compensation. A member is not obliged to slavishly follow its outline in all circumstances: Kane v South Eastern Group of Melbourne Legacy Inc [2011] FWAFB 4651 at [6]. That may misinterpret Sprigg. As SDP Richards held in Bryson v Dy-Mark (Aust) Pty Ltd (2007) 163 IR 357; [2007] AIRC 339 at [75]–[76]: The purpose of the application of the Re Sprigg guidelines is not to ascertain the level of “compensation” a member might think is appropriate. Rather, the guidelines are applied in order to

ascertain the “amount” the employee may have earned prospectively but for the decision by the employer to terminate his employment… This amount, once ascertained by way of the application of the Re Sprigg guidelines, is but one matter … amongst all the matters in … [the section] of the Act, including “all the circumstances of the case” as well as the statutory direction … to provide a “fair go all round”, to which a member has regard for pur-poses of determining the amount to be ordered in lieu of reinstatement. That sentiment was echoed in McCulloch v Calvary Health Care Adelaide [2015] FWCFB 873 at [29]: if the application of the Sprigg formula “yields an amount which appears either clearly excessive or clearly inadequate” then the Commission should reassess the assumptions made in reaching that amount. The order for the payment of compensation must be appropriate having regard to all the circumstances of the case (see s 390(3)(b) and s 392(2)). [page 605] Further difficulties arise. The question of contingencies caused difficulties. As the Full Bench held in Lockwood Security Products Pty Ltd v Sulocki [2001] AIRC 851 at [50]; Print PR908053: We point out in passing that it may be inappropriate to treat the amount the employee would have earned between the date of dismissal and the date of the trial as not being subject to any deduction for contingencies. The assessment should take account of the earnings the employee might have received had the employment not in fact been terminated. Even though it is informed to some extent by actual events, that assessment remains hypothetical. The position can be contrasted with the nature of the assessment required in a common law action for damages for personal injuries. In such cases the extent of the injury is known at the date of trial and no estimation of loss is required up to that point in time. In making the assessment … however, an estimate is required because the amount should be calculated on the basis that the employment was never terminated. Cases such as this one demonstrate that where there is a likelihood that the employment would have been terminated within a short time in any event, some allowance should be made for that likelihood in assessing the amount to be deducted for contingencies unless that likelihood has been taken into account elsewhere in the assessment process. See by contrast Bowden v Ottrey Homes — Cobram and District Retirement Villages Inc (t/as Ottrey Lodge) (2013) 229 IR 6; [2013] FWCFB 431; BC201370369 at [53]. [7-4610.10] FWC — s 392(2), (g), (3), (4), (5) See s 12. [7-4610.15] High income threshold — s 392(5)(b) See s 329. [7-4610.20] Misconduct – s 392(3) See [7-4340.1]. [7-4610.21] Mitigate the loss — s 392(2)(d) In a scholarly summary of the authorities, the Full Bench in Biviano v LA Biviano, AIRC, 28 March 2002, PR915963 concluded at [52] that: The following general observations may be made on the basis of the decided cases: The principle of mitigation operates as a conditional bar to the recovery of damages. To avoid a reduction in damages a plaintiff must take reasonable steps to minimise the effect of a termination of contract.

The issue of what steps are reasonable in the mitigation of loss is a question of facts to be determined having regard to the particular circumstances. A party is not required to take unreasonable steps to mitigate their loss. For example, they are not required to expend money; or destroy or sacrifice their property rights. In employment cases the question of whether a dismissed employee acted unreasonably in refusing an offer of re-employment depends on the circumstances. Courts have determined that it is not unreasonable to refuse such an offer in circumstances where the level of remuneration or status of the position offered is less than that previously enjoyed by the dismissed employee. But with the passage of time it may be reasonable for the dismissed employee to lower their sights. Even where re-employment is offered on substantially the same terms and status it will not be unreasonable to refuse in circumstances where the employee no longer trusts his or her former employer or where there is friction between the two parties. [7-4610.22] Remuneration — 392(2)(c), (e), (6)(a), (b) Remuneration has a wider meaning than wages: Condon v G James Extrusion Company (1997) 74 IR 283 at 286. It is broader than cash payments: see May v Lilyvale Hotel Pty Ltd (1995) 68 IR 112 at [116]. It may include tips where they are customary and capable of being estimated: Skailes v Blue Anchor Line Ltd [1911] [page 606] 1 KB 360 at 369; (1910) 4 BWCC 16. In Davis v Portseal Pty Ltd (1997) 72 IR 414 at 417; the Full Court held that: It is inappropriate to assess compensation by reference to the “salary” that an employee would have received but for the termination. The relevant word … is “remuneration”. The remuneration of an employee may exceed the employee’s salary, for example … where he was entitled to commissions in addition to his retainer… [7-4610.23] Shock, distress — s 392(4) The provision reflects the traditional view of compensation in unfair dismissal cases as being for non economic loss: As the Full Bench held in Leemon v Treasure Books Aust Pty Ltd (1997) 75 IR 138 at 149; [1997] AIRC 90; 454/97 Print P0715 (25 February 1997): Compensation in respect of lost remuneration is intended to compensate an applicant for the financial consequences of an unlawful termination. To provide for an additional amount of compensation referable to the stress relating to those financial consequences would, in our view, amount to double counting. [7-4610.25] Take into account — s 392(2) See [7-4340.45]. [7-4610.26] Would have received — s 393(c) The Full Bench in Haigh v Bradken Resources Pty Ltd (2014) 240 IR 366; [2014] FWCFB 236 held at [12] that: The assessment of the amount the employee would have received if the employment had not been terminated is referable to the entire circumstances including the basis on which the termination was found to be unfair. Where a procedural defect is the main reason for the termination being held to be unfair, this is a factor to be taken into account in determining the estimate of loss arising from the unfair dismissal.

Chief Justice Wilcox in Mullany v Active Concrete [1995] IRCA 262; (1995) 62 IR 237 at 239 described a predecessor section in these terms: I think that the subsection directs attention to remuneration received in respect of work done, not money received from other sources and unrelated to work done; for example, social security receipts or gifts received from organisations or persons who take a charitable interest in the employee’s plight. That proposition was questioned by Moore J in Brown v Power t/as Royal Hotel Tumut (1996) 66 IR 1 at 6: I would not accept uncritically that the remuneration referred to … is only a reference to remuneration for work done. An employee who is temporarily absent because of ill health may well be entitled to be paid sick pay by the employer, under an award or at common law, for the period they are absent. If, … the employee is dismissed while on sick leave, then I would not assume that sick pay forgone should not be treated as lost remuneration even if it was not for work done: see Graham v Baker (1961) 106 CLR 340 at 346; [1962] ALR 331; (1961) 35 ALJR 174; BC6100230. That is, I would not assume that the employee was not entitled to be compensated for payments that otherwise would have been made by way of sick pay as well as for remuneration for work that might have actually been done. His Honour went on to hold that: In my opinion, it is appropriate to take into account payments made to an employee under the [Workers] Compensation Act. The payments are paid notionally by the employer though it may be accepted, and is the fact in this case, that they are almost always paid by an insurance company acting on behalf of the employer. [page 607] The Full Bench agreed in Read v Gordon Square Child Care Centre Inc T/A Gordon Square Child Care Centre [2013] FWCFB 762 at [75]. They held that: We appreciate that workers’ compensation payments may not be “remuneration earned … from employment or other work” or “income reasonably likely to be so earned” within the meaning of s 392(2)(e) and (f) of the FW Act. If not, we nonetheless think the workers’ compensation payments are a circumstance to be taken into account as another relevant matter in the determination of an amount for the purposes of a compensation order. [7-4610.30] Scope of section In determining an amount for the purpose of making an order for compensation, the Fair Work Commission must take into account the criteria set out in s 392(2) of the Act: Jarvis v Crystal Pictures Pty Ltd [2010] FWA 3674; BC201070569 at [68]. *Editor’s note: Commentary on s 392 except for Scope of section by Ian Latham BA(Hons)/LLB, ANU, Barrister, Sydney. Commentary to Scope of section written by Joe Catanzariti, VP FWC and Michael Byrnes, Special Counsel, Clayton Utz. Updated by Michael Byrnes, Special Counsel, Clayton Utz.

____________________

[7-4630]

Monetary orders may be in instalments

393 To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order. [s 393 am Act 174 of 2012 s 3 and Sch 9 item 399, opn 1 Jan 2013]

DIVISION 5 — PROCEDURAL MATTERS

[7-4820]

Application for unfair dismissal remedy

394 (1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy. Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal. Note 2: For application fees, see section 395. Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 400, opn 1 Jan 2013]

(2) The application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (3). [subs (2) am Act 174 of 2012 s 3 and Sch 6 item 1, opn 1 Jan 2013; Act 174 of 2012 s 3 and Sch 9 item 401, opn 1 Jan 2013]

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether the person first became aware of the dismissal after it had taken effect; and (c) any action taken by the person to dispute the dismissal; and (d) prejudice to the employer (including prejudice caused by the delay); and (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 402, 403, opn 1 Jan 2013]

[page 608] COMMENTARY TO SECTION 394*

Derivation …. Dismissal — s 394(1), Note 1, Note 3, (2)(a), (3)(b), (c) …. Employer — s 394(3)(d) …. Exceptional circumstances — s 394(3) …. Fairness — s 394(3)(f) …. First became aware — s 394(3)(b) …. FWC s 394(1), Note 1, 2(b), (3) …. May allow — s 394(3) …. Merits of the application — s 394(3)(f) …. Has been dismissed — s 394(1) …. Taking into account — s 394(3) …. Outline of section ….

[7-4820.05] [7-4820.10] [7-4820.15] [7-4820.20] [7-4820.25] [7-4820.30] [7-4820.35] [7-4820.40] [7-4820.45] [7-4820.47] [7-4820.48] [7-4820.50]

[7-4820.05] Derivation The section has some similarity with s 643(15) of the Workplace Relations Act 1996. [7-4820.10] Dismissal — s 394(1), Note 1, Note 3, (2)(a), (3)(b), (c) See s 386. [7-4820.15] Employer — s 394(3)(d) See s 380. [7-4820.20] Exceptional circumstances — s 394(3) See [7-3120.10]. In Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403; [2010] FWAFB 7251, the Full Bench of Fair Work Australia considered the meaning of the expression “exceptional circumstances” in s 394(3) and held at [5]: The word ‘exceptional’ is relevantly defined in The Macquarie Dictionary as ‘forming an exception or unusual instance; unusual; extraordinary’. We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s 394(3) of the FW Act. It has been held that the use of the word “exceptional” demonstrates an “intention that the hurdle for extensions of time is higher under the Act” than under WorkChoices: Shields v Warringarri Aboriginal Corp [2009] FWA 860 at [4]. The Fair Work Commission, formally known as Fair Work Australia, has held that employees who are unaware of their rights in relation to unfair dismissal (ie the 14 day limit) should be given additional latitude in seeking to extend the time limit to bring a claim. In Wemyss v Mission Australia Employment Services [2010] FWA 1798, Cambridge C said that “[i]gnorance of the time limit or for that matter ignorance of the Act more generally, is a matter which can be given due consideration in the exercise of the discretion to extend any prescribed time”: at [23].

He stated, “the length of any delay might operate to amplify the onus on an application in exponential terms, such that the longer the delay is the greater the difficulty is in establishing proper basis for the exercise of the discretion”: at [16]. In this case, the employee contacted her lawyers 36 days after the time limit had expired and she had general awareness of the unfair dismissal laws. Accordingly, Cambridge C held that she had not met the onus and her application to extend time to make an unfair dismissal application was dismissed. In relation to the requirement that Fair Work Australia considers the “fairness as between the person and other persons in a similar position” (s 394(3)(f)), Cambridge C confined the consideration to “other persons in a similar position as employees of the employer who may have been treated differently by the employer in respect to circumstances relating to the alleged unfair dismissal”: at [32]. [page 609] In Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394, VP Lawler stated that the requirement that Fair Work Australia be satisfied that “exceptional” circumstances existed “represents a significant departure” from the equivalent provisions under the Workplace Relations Act, and that the “legislature must be taken to have intended a significant narrowing of the discretion to extend time”: at [24]. VP Lawler agreed with SDP Kaufman’s comments in Shields v Warringarri Aboriginal Corp [2009] FWA 860 (see above), but preferred Commissioner Whelan’s approach in Parker v Dept of Human Services, Southern Metropolitan Region [2009] FWA 1638. He stated at [28]: The articulation of the meaning of the word “exceptional” relied upon by the Full Court in the judgment cited by Whelan C was directed at the ordinary English meaning of the word and, in the absence of any indication to the contrary in the FW Act, that is the meaning to be given to the word “exceptional” in s 394(3). VP Lawler concluded that there were exceptional circumstances because the employee had made bona fide attempts to file within time, notwithstanding that they were not successful. A number of cases have also discussed instances where the former employee was acting on incorrect advice supplied by legal representatives or government agencies. In the Full Bench decision of Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, it was noted that a circumstance would be exceptional if it was “out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare” and that “generally speaking, acting on incorrect advice from a relevant government agency will constitute an exceptional circumstance”. This position was affirmed in Stencel v MSS Security an SIS Group Enterprise [2015] FWC 3712 at [13], in which it was held that: circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. [7-4820.25] Fairness — s 394(3)(f) See [7-3120.15]. [7-4820.30] First became aware — s 394(3)(b) The Explanatory Memorandum to the Fair Work Bill 2009 states at para 1574 that s 394(3)(b) provides an additional factor which is not one of the BrodieHanns factors. This factor is whether the person first became aware of the dismissal after it had taken effect. It is intended to address situations where the person fails to lodge an application within the seven day time limit because they were unaware they had been dismissed until some time after the dismissal

occurred. [7-4820.35] FWC s 394(1), Note 1, 2(b), (3) See the definition in s 12. [7-4820.40] May allow — s 394(3) See [7-3120.25]. [7-4820.45] Merits of the application — s 394(3)(f) See [7-3120.30]. [7-4820.47] Has been dismissed — s 394(1) A person’s “employment with his or her employer has been terminated on the employer’s initiative” when the person’s employment relationship with the employer has ended, and that where the employee has been terminated on notice, the employment relationship ends when the notice period expires: Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070 at [17]. [7-4820.48] Taking into account — s 394(3) See [7-4340.45]. [page 610] [7-4820.50] Outline of section The Explanatory Memorandum to the Fair Work Act states at [1573] and [1574] that the Tribunal has discretion to extend the timeframe for making an unfair dismissal application if it is satisfied that there are exceptional circumstances. This discretion must be exercised in accordance with subcl 394(3), which provides an exhaustive list of the factors FWA must take into account when determining if there are exceptional circumstances. These factors are based on the principles set down by the Industrial Relations Court of Australia in Brodie-Hanns v MTV Publishing Ltd (1996) 67 IR 298. *Editor’s note: Commentary to Exceptional circumstances written by Joe Catanzariti, VP FWC and Michael Byrnes, Special Counsel, Clayton Utz. Updated by Michael Byrnes, Special Counsel, Clayton Utz. All other commentary by updated by Ian Latham BA (Hons)/LLB (ANU), Barrister.

____________________

[7-4840]

Application fees

395 (1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 404, opn 1 Jan 2013]

(2) The regulations may prescribe: (a) a fee for making an application to the FWC under this Division; and (b) a method for indexing the fee; and (c) the circumstances in which all or part of the fee may be waived or refunded. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 404, opn 1 Jan 2013]

[7-4860] merits

Initial matters to be considered before

396 The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application: (a) whether the application was made within the period required in subsection 394(2); (b) whether the person was protected from unfair dismissal; (c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; (d) whether the dismissal was a case of genuine redundancy. [s 396 am Act 174 of 2012 s 3 and Sch 9 item 405, opn 1 Jan 2013] COMMENTARY TO SECTION 396*

Derivation …. Genuine redundancy — s 396(d) …. Protected from unfair dismissal — s 396(b) …. Small Business Fair Dismissal Code — s 396(c) …. Within the period — s 396(a) …. Outline of Section ….

[7-4860.05] [7-4860.10] [7-4860.15] [7-4860.20] [7-4860.25] [7-4860.30]

[7-4860.05] Derivation The section is new. [7-4860.10] Genuine redundancy — s 396(d) See s 389. [7-4860.15] Protected from unfair dismissal — s 396(b) See s 382. [7-4860.20] Small Business Fair Dismissal Code — s 396(c) See s 388. [page 611] [7-4860.25] Within the period — s 396(a) See s 394. [7-4860.30] Outline of Section Section 396 requires that, before the Fair Work Commission (FWA) considers the merits of an application for unfair dismissal, four initial matters must be considered: Meffert v Paperlinx Australia Pty Ltd t/as Spicers Paper [2010] FWA 8144 at [35]. The initial matters set out in s 396 are that the application was made within the prescribed time, the employee was a person protected, under the Act, from unfair dismissal, the Small Business Fair Dismissal Code is not relevant and the termination of employment was not a case of redundancy. The requirement to consider jurisdictional issues before merit issues in relation to an unfair dismissal

matter is merely a procedural matter. If s 396 was removed from the Act the only impact would be that FWA could consider jurisdictional matters at the same hearing in which it dealt with the merits of the application. If s 396 was removed from the Act it would not mean that FWA could ignore jurisdictional challenges to applications and simply consider the merits of an application. FWA would still have to decide on each of the jurisdictional matters identified in s 396 for the very reason that each identifies a jurisdictional fact the existence or absence of which has to be ascertained by FWA: Boyar v The House of Life [2011] FWA 7953 at [13]. *Editor’s note: Commentary to Outline of section written by Joe Catanzariti, VP FWC and Michael Byrnes, Special Counsel, Clayton Utz. Updated by Michael Byrnes, Special Counsel, Clayton Utz. All other commentary by Ian Latham BA(Hons)/LLB, ANU, Barrister, Sydney.

____________________

[7-4880]

Matters involving contested facts

397 The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute. [s 397 am Act 174 of 2012 s 3 and Sch 9 item 405, opn 1 Jan 2013] COMMENTARY TO SECTION 397*

Derivation …. Conference — s 397 …. FWC — s 397 …. Hearing — s 397 …. This Part — s 397 …. Outline of section ….

[7-4880.1] [7-4880.5] [7-4880.10] [7-4880.15] [7-4880.20] [7-4880.25]

[7-4880.1] Derivation The section is new. [7-4880.5] Conference — s 397 See s 398. [7-4880.10] FWC — s 397 See s 12. [7-4880.15] Hearing — s 397 See s 399. [7-4880.20] This Part — s 397 This Part is Part 3-2. [7-4880.25] Outline of section The section requires FWC to conduct a conference or hearing for matters involving contested facts. The Commission would seem entitled to conduct the determination on the papers on a matter involving only legal issues. For an example see Leane v Federal Hotel [2011] FWA 5959; BC201170979 at [3]. Note also s 589. *Editor’s note: Commentary to s 397 by Ian Latham BA(Hons)/LLB, ANU, Barrister, Sydney.

____________________ [page 612]

[7-4900]

Conferences

398 (1) This section applies in relation to a matter arising under this Part if the FWC conducts a conference in relation to the matter. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 406, opn 1 Jan 2013]

(2) Despite subsection 592(3), the FWC must conduct the conference in private. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 406, opn 1 Jan 2013]

(3) The FWC must take into account any difference in the circumstances of the parties to the matter in: (a) considering the application; and (b) informing itself in relation to the application. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 407, opn 1 Jan 2013]

(4) The FWC must take into account the wishes of the parties to the matter as to the way in which the FWC: (a) considers the application; and (b) informs itself in relation to the application. [subs (4) am Act 174 of 2012 s 3 and Sch 9 items 408, 409, opn 1 Jan 2013]

[7-4920]

Hearings

399 (1) The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account: (a) the views of the parties to the matter; and (b) whether a hearing would be the most effective and efficient way to resolve the matter. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 410, 411, opn 1 Jan 2013]

(2) If the FWC holds a hearing in relation to a matter arising under this

Part, it may decide not to hold the hearing in relation to parts of the matter. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 412, opn 1 Jan 2013]

(3) The FWC may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 413, opn 1 Jan 2013]

[7-4930]

Dismissing applications

399A (1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably: (a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or (b) failed to comply with a direction or order of the FWC relating to the application; or (c) failed to discontinue the application after a settlement agreement has been concluded. Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587. Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer. [page 613] (3) This section does not limit when the FWC may dismiss an application. [s 399A insrt Act 174 of 2012 s 3 and Sch 6 item 2, opn 1 Jan 2013] COMMENTARY TO SECTION 399A*

Concluded — s 399A(1)(c) …. Conference — s 399A(1)(a) …. Employer — s 399A(2) …. Failed to comply — s 399A(1)(b) ….

[7-4930.05] [7-4930.10] [7-4930.15] [7-4930.20]

FWC — s 399A(1), (a), (b), Note 1, Note 2(2), (3) …. Hearing s 399A(1)(a) …. Unreasonably — s 399A …. Outline of section ….

[7-4930.25] [7-4930.30] [7-4930.35] [7-4930.40]

[7-4930.05] Concluded — s 399A(1)(c) In Curtis v Darwin City Council (2012) 224 IR 174; [2012] FWAFB 8021; BC201276887 at [61]–[63], a Full Bench discussed the requirements for a binding agreement set out in Masters v Cameron (1954) 91 CLR 353; 28 ALJR 438; BC5400580 holding that: In that case the High Court held that where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. The three classes are: 1. The parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. 2. It may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. 3. The case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract. In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution. Cases of the third class are fundamentally different. They are cases in which the terms of agreement are not intended to have, and therefore do not have any, any binding effect of their own. The expressions “subject to contract”, “subject to the preparation of a formal contract” and others of similar import prima facie create an overriding condition so that what has been agreed upon must be regarded as the intended basis for a future contract and not as constituting a contract of itself. [7-4930.10] Conference — s 399A(1)(a) See s 398. [7-4930.15] Employer — s 399A(2) See s 380. [page 614] [7-4930.20] Failed to comply — s 399A(1)(b) It was held in Mr Mario Lopez Aragon v Aegis Safety Pty Ltd t/as Techinspect [2013] FWC 5993 at [76] that: … the Act clearly contemplates, and the balance of authority prior to the inclusion of s 399A of the Act has been, that all parties before the Commission are to comply with Directions unless there is some reasonable explanation for a failure to do so. Further, in Lunt v Qube Ports Pty Ltd t/as Qube Ports, [2013] FWC 9315 at [33] it was held that:

A finding pursuant to s 399A(1)(b) is not just that the Applicant failed to abide by an order of the Commission but that he unreasonably failed to abide by that order. [7-4930.25] FWC — s 399A(1), (a), (b), Note 1, Note 2(2), (3) See s 12. [7-4930.30] Hearing s 399A(1)(a) See s 399. [7-4930.35] Unreasonably — s 399A In Lunt v Qube Ports Pty Ltd t/as Qube Ports [2013] FWC 9315 at [36] it was held that: If the failure of the Applicant to abide by an order was unreasonable for the purposes of s 399A it is not necessarily the case that it will also be unreasonable for the purposes of the costs application pursuant to s 400A. [7-4930.40] Outline of section The Explanatory Memorandum to the Fair Work Amendment Bill 2012 stated that: Section 587 of the FW Act currently enables the FWC to dismiss applications under the FW Act (including unfair dismissal applications) in circumstances where the application is not made in accordance with the Act, is frivolous or vexatious or has no reasonable prospects of success. Part 2 of Schedule 6 additionally enables the FWC to dismiss an unfair dismissal application in circumstances where the applicant has unreasonably failed to attend an FWC conference or hearing, to comply with an FWC order, or to discontinue an application after a settlement agreement has been concluded. This power is only intended to be exercised in very limited circumstances where there is clear evidence for the FWC to be satisfied of the unreasonable conduct of the applicant. *Editor’s note: Commentary by Ian Latham BA(Hons)/LLB, ANU, Barrister, Sydney.

____________________

[7-4940]

Appeal rights

400 (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so. [subs (1) am Act 73 of 2013 s 3 and Sch 6 item 3, opn 28 June 2013]

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 414, opn 1 Jan 2013]

[page 615]

COMMENTARY TO SECTION 400*

Derivation …. Error of fact — s 400(2) …. FWC — s 400(1), (2) …. Permission to appeal — s 400(1) …. Public interest — s 400(1) …. Question of fact — s 400(2) …. Significant — s 400(2) …. This part …. Outline of section ….

[7-4940.1] [7-4940.5] [7-4940.10] [7-4940.12] [7-4940.15] [7-4940.17] [7-4940.20] [7-4940.25] [7-4940.30]

[7-4940.1] Derivation The section is new. [7-4940.5] Error of fact — s 400(2) The meaning this phrase can be elusive. For a summary of the authorities see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287–8; 115 ALR 1; [1993] FCA 456; BC9304888. The Full Court of the Federal Court held in Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation (2010) 184 FCR 448; 268 ALR 232; [2010] FCAFC 52; BC201003449 at [34] that where different conclusions were reasonably open to the tribunal, and the determination of which of them is correct is a question of fact. A conclusion as to whether conduct is “misconduct” is ordinarily a question of fact: Warrell v Walton [2013] FCA 291; BC201301563 at [31]. See generally Latham, “Employment: A question of fact?” Employment Law Bulletin, November/December 2010, p 99. In Curtis v Darwin City Council [2012] FWAFB 8021 at [83]–[84], the Full Bench held that: The role of an Appeal Bench in relation to findings of fact made by a member at first instance is necessarily limited. On appeal, the Tribunal would be very reluctant to reverse a finding of fact made by a member at first instance and would only do so if satisfied that any advantage enjoyed by the member below as a result of hearing the relevant evidence was not sufficient to justify the findings made. Appellate bodies are prepared to overturn findings of fact in certain circumstances, including where the tribunal at first instance acted on evidence which was inconsistent with facts incontrovertibly established by the evidence. But if a finding made by a member at first instance depends to any substantial degree on the credibility of a witness, that finding will usually stand, unless it can be shown that the member at first instance: acted on evidence inconsistent with facts incontrovertibly established by the evidence; acted on “glaringly improbable” evidence; or failed to use or palpably misused the advantage the member at first instance enjoyed in hearing the witnesses give evidence. [7-4940.10] FWC — s 400(1), (2) See s 12 definition of “FWC”. [7-4940.12] Permission to appeal — s 400(1) Permission to appeal is not a mere formality nor is it the function of the appeal process to provide an avenue for unsuccessful parties to seek to redress deficiencies in the manner in which their case was run in the proceedings at first instance. The tribunal and its predecessors have refused leave to appeal in circumstances where an appellant failed to lead

evidence or to evidentially challenge the case put by the respondent in the proceedings at first instance: Curtis v Darwin City Council [2012] FWAFB 8021; (2012) 224 IR 174; BC201276887 at [80]. [page 616] [7-4940.15] Public interest — s 400(1) The phrase “the public interest” has no fixed and precise content: Gregory v Qantas Airways Ltd [2016] FCAFC 7; BC201600282 at [53]. In GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266; [2010] FWAFB 5343 at [1], the Full Bench outlined that the Fair Work Act 2009 specifies that an appeal against an unfair dismissal decision may not be granted unless FWA considers that it is in the public interest to do so. The Full Bench noted that the Explanatory Memorandum states that the effect of s 400 is to make the process for appeals against unfair dismissal decisions different from the general grounds in s 604. An appeal against an unfair dismissal decision can only be made if it is in the public interest to do so, and if the appeal is based on an error of fact, it can only be made on the ground that the decision involved a significant error of fact. The Full Bench stated at [4] that this was a significant change to the scheme which had applied under the Workplace Relations Act. The Bench went on to hold at [26] that: It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. The Bench gave the following examples at [27] where the public interest may be attracted: where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters. To similar effect, in Dafallah v Fair Work Commission (2014) 225 FCR 559; 242 IR 273; [2014] FCA 328; BC201402395 at [40], Mortimer J held that: … The identification of an error of law in the first-instance decision, without more, will not necessarily compel a conclusion by the Full Bench that it is in the public interest to grant permission to appeal, nor will a conclusion by the Full Bench that it would have reached a different conclusion… In a different context, a Full Bench of the AIRC held in Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) EOC 93-396; 139 IR 34; PR 955357 at [23]–[26] that: The notion of public interest refers to matters that might affect the public as a whole such as the achievement or otherwise of the various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standards. An example of something in the last category may be a case in which there was no applicable award and the termination of the agreement would lead to an absence of award coverage for the employees. While the content of the notion of public interest cannot be precisely defined, it is distinct in nature from the interests of the parties. And although the

public interest and the interests of the parties may be simultaneously affected, that fact does not lessen the distinction between them … It is clear from this passage that the ascertainment of the public interest may involve balancing countervailing public interests. The determination of the question is not always easy. As Mason CJ, Wilson and Dawson JJ held in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 13 ALD 389; 72 ALR 1; 61 ALJR 393; BC8701787 at [5]: Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree. [page 617] The Federal Court has afforded the Commission a great deal of latitude in answering this question. In Gregory v Qantas Airways Ltd [2016] FCAFC 7; BC201600282 at [55], the Full Court held that: …assessment of what is in the public interest, so far as it concerns matters coming before the FWC, and the assessment of when the public interest requires a grant of permission to appeal in an unfair dismissal case, is primarily a matter for the Full Bench, unless it pays regard to some matter extraneous to its task or to that evaluation, or fails to pay attention to relevant matters or misunderstands the nature of the examination required. The existence of the public interest in granting permission to appeal is not a jurisdictional fact to be determined to the satisfaction of this Court: Baker v Patrick Projects (2014) 226 FCR 302; [2014] FCAFC 165; BC201410284 at [1], [2], [34]. [7-4940.17] Question of fact — s 400(2) The phrase question of fact seems to have a broader meaning than the phrase error of fact: see by analogy Attorney-General (NSW) v X (2000) 49 NSWLR 653; [2000] NSWCA 199; BC200004289 at [124]. An interesting argument arises as to whether the appellant must prove the significant error of fact rather than allege the error. Arguably, it is only necessary to identify such error on a non-colourable basis: see by analogy B & L Linings Pty Ltd v Chief Cmr of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187; BC200807313 at [126]. [7-4940.20] Significant — s 400(2) “Section 400(2) modifies the House v R principles by limiting any review based on a mistake of fact to a significant error of fact”: Parmalat Food Products Pty Ltd v Wililo: (2011) 207 IR 243; [2011] FWAFB 1166 at [6]. Although all words may be “chameleons, which reflect the colour of their environment … ‘significant’ has that quality more than most. It covers a spectrum ranging from ‘not trivial’ through ‘appreciable’ to ‘important’ and even ‘momentous’”: Qantas Airways Ltd v Q-Comp and Michelle Blanch [2009] QIC 20; 191 QGIG 115 (11 June 2009). Cmr Cloghan has held in United Voice v MSS Security Pty Ltd [2011] FWA 8467; BC201171468 at [82]–[83] that: The word “significant” means “of considerable amount or effect or importance, not insignificant or negligible” according to the Australian Concise Oxford Dictionary. The sense of importance of the word “significant” can be gauged by the fact that it was first recorded in the English language in Daniel Defoe’s A New Voyage Around the World (1725) (Chambers Dictionary of Etymology). In his book, Defoe uses the word “significant” to describe the newly found straights of Magellan

providing a natural passage between the Atlantic and Pacific oceans. While many words have acquired a meaning well beyond what they originally possessed, the word “significant” has generally retained its understood definition of exceptional, momentous or telling. [7-4940.25] This part The Part is Pt 3-2. In Holland v Nude Pty Ltd t/as Nude Delicafe (2012) 224 IR 16; [2012] FWAFB 6508; BC201275588 at [26] it was held: A s 611 costs order may well be … an order in respect of an application under Pt 3-2 but that does not make it a “decision made by FWA” under Pt 3-2. [7-4940.30] Outline of section The Full Federal Court said of the former legislative test that: It will rarely, if ever, be appropriate to grant leave unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error: Wan v Australian Industrial Relations Commission (2001) 116 FCR 481; [2001] FCA 1803; BC200108538 at [30]. [page 618] That test has been tightened where at least where there is an appeal on a question of fact. See Latham, Permission to appeal unfair dismissal decisions under s 400 of the Fair Work Act (2011) 17 (3) ELB. “The effect of cl 400 is to make the process for permitting appeals for unfair dismissal decisions different from the general grounds in cl 604 in two respects. Firstly, the general provisions do not require public interest as a prerequisite for permitting appeals, whereas cl 400 provides that only appeals in the public interest can be permitted for unfair dismissal matters. Secondly, subcl 400(2) limits appeals based on an error of fact to only allow an appeal where that error is a significant error of fact. This subclause is intended to limit FWA’s discretion to permit an appeal under s 604(1)”: Explanatory Memorandum to the Fair Work Bill at paras 1604–5. “Section 400 clearly evinces an intention of the legislature that appeals in unfair dismissal matters are more limited than in other matters under the Act”: Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 (2 March 2011) at [6]. A decision as to dismissal involves the exercise of a discretion. In Shortland v The Smiths Snackfood Co [2011] FWAFB 2303 (29 April 2011), the Full Bench held that: [15] In a recent decision of a Full Court of the Federal Court the requirements of s 400 were described as importing a more stringent test than the previous legislation [Coal and Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 per Buchanan J at [34]]. Buchanan J described the public interest test as a discretionary task involving a broad value judgment [Coal and Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 per Buchanan J at [44] … [16] The decision subject to appeal in this matter is also properly viewed as a discretionary decision [Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194]. The appeal is therefore to be considered in accordance with the principles of House v R [(1936) 55 CLR 499]. The principles in House v R (1936) 55 CLR 499; 10 ALJR 202; BC3690121 are summarised at [504]–[505]:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. In an appeal such as this, it is not enough that the members of the Full Bench would have reached a different conclusion than the Commissioner. Nor would it be sufficient if the Full Bench were to disagree with the weight to be given to the factors the Commissioner took into account. Thus, the mere fact that the Full Bench might consider that the Commissioner gave insufficient weight to something would not justify setting aside the decision: BlueScope Steel (AIS) Pty Ltd v Nejat (Paul) Agas [2014] FWCFB 5993 at [11]. To similar effect see City Motor Transport Pty Ltd v Zlatko Devcic [2014] FWCFB 6074 at [40]: In general, we consider that most of the matters relied upon in support of the appeal amount to little more than an attempt to have the appeal bench reconsider the evidence before the Commissioner and draw different inferences and conclusions from that evidence. This is not the function of an appeal bench unless there is shown to be some demonstrable error in the decision-making. [page 619] A new case on appeal. In Australian Municipal, Administrative, Clerical and Services Union v Yarra Valley Water Corporation (2013) 232 IR 440; [2013] FWCFB 7453, the Full Bench held at [24]–[25] that: The usual principle is that a party should not be permitted to argue a case on appeal which it did not raise at first instance. This principle, and the policy rationale which supports it, was explained in Coulton v Holcombe the following way: To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. A case involving credit. An appellant challenging a finding as to credit faces the well established principle set out by the Full Bench in Van Den Enden v Bechtel Construction (Australia) Pty Ltd [2013] FWCFB 8053 at [16] that: If a finding made by a member at first instance depends to any substantial degree on the credibility of a witness, that finding must stand, unless it can be shown that the member at first instance: — — —

acted on evidence inconsistent with facts incontrovertibly established by the evidence; acted on “glaringly improbable” evidence; or failed to use or palpably misused the advantage the member at first instance enjoyed in

hearing the witnesses give evidence. However the position is different if the new issue being raised is jurisdictional in nature. The Commission has an overriding duty to ensure that it acts within the scope of the powers conferred upon it by its governing statute. A failure to apply the requirements in subss 400(1) and (2) of the Act will involve jurisdictional error. Both of those requirements are jurisdictional because both delineate the powers and functions of the Full Bench on hearing an application for permission to appeal and an appeal: Australian Postal Corporation v Gorman (2011) 196 FCR 126; 123 ALD 270; [2011] FCA 975; BC201106414 at [44]. *Editor’s note: Commentary written by Joe Catanzariti, VP FWC and Michael Byrnes, Special Counsel, Clayton Utz. Updated by Ian Latham BA(Hons) LLB (ANU), Barrister.

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[7-4950]

Costs orders against parties

400A (1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter. (2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402. (3) This section does not limit the FWC’s power to order costs under section 611. [s 400A insrt Act 174 of 2012 s 3 and Sch 6 item 4, opn 1 Jan 2013]

[page 620] COMMENTARY TO SECTION 400A*

Derivation …. Arising under this Part — s 400A(1) …. FWC — s 400A(1), (2), (3) …. Matter — s 400A(1), (2) …. Party — s 400A(1), (2) …. Unreasonable act or omission — s 400A(1) …. Outline of Section ….

[7-4950.05] [7-4950.10] [7-4950.15] [7-4950.20] [7-4950.25] [7-4950.30] [7-4950.35]

[7-4950.05] Derivation The section is loosely derived from s 658(4) of the Workplace Relations Act 1996. [7-4950.10] Arising under this Part — s 400A(1) See generally [270-180.25]. [7-4950.15] FWC — s 400A(1), (2), (3) See s 12. [7-4950.20] Matter — s 400A(1), (2) See [270-180.25]. [7-4950.25] Party — s 400A(1), (2) See [8-6940.25]. [7-4950.30] Unreasonable act or omission — s 400A(1) See [8-6940.45]. [7-4950.35] Outline of Section The section partially reverts to the position on costs prior to the

introduction of the Workplace Relations Act. The amendment was broadly recommended by the Fair Work Act Review at Recommendation 45: see http://deewr.gov.au/fair-work-act-review. The Explanatory Memorandum to the Fair Work Bill 2012 states at [160] and [170] that: As with the new power to dismiss applications under section 399A, the power to award costs under section 400A is not intended to prevent a party from robustly pursuing or defending an unfair dismissal claim. Rather, the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party. The FWC’s power to award costs under this provision is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued. See generally Latham, Rejecting a settlement offer in an unfair dismissal case: the risk of costs, employment law bulletin, May 2015, 35. The question as to whether s 400A permits a costs application to include costs associated with that costs application itself was left unanswered in Jain v Infosys Ltd (t/as Infosys Technologies Ltd) [2015] FWCFB 1134 at [14]. *Editor’s note: Commentary to s 400A prepared by Ian Latham BA (Hons)/LLB (ANU), Barrister.

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[7-4960] agents

Costs orders against lawyers and paid

401 (1) This section applies if: (a) an application for an unfair dismissal remedy has been made under section 394; and [page 621] (b) a person who is a party to the matter has engaged a lawyer or paid agent (the representative) to represent the person in the matter; and (c) under section 596, the person is required to seek the FWC’s permission to be represented by the representative. [subs (1) subst Act 174 of 2012 s 3 and Sch 6 item 9, opn 1 Jan 2013]

(1A) The FWC may make an order for costs against the representative for

costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because: (a) the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or (b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter. [subs (1A) insrt Act 174 of 2012 s 3 and Sch 6 item 9, opn 1 Jan 2013]

(2) The FWC may make an order under this section only if the other party to the matter has applied for it in accordance with section 402. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 415, opn 1 Jan 2013]

(3) This section does not limit the FWC’s power to order costs under section 611. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 416, opn 1 Jan 2013]

[7-4980]

Applications for costs orders

402 An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after: (a) the FWC determines the matter; or (b) the matter is discontinued. [s 402 am Act 174 of 2012 s 3 and Sch 6 item 5; s 3 and Sch 9 item 417, opn 1 Jan 2013]

[7-5000]

Schedule of costs

403 (1) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order: (a) under section 611 in relation to a matter arising under this Part; or (b) under section 400A or 401; including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis. [subs (1) am Act 174 of 2012 s 3 and Sch 6 item 6, opn 1 Jan 2013]

(2) If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611 in relation to a matter arising under this Part, or awarding costs under section 400A or 401, the FWC: (a) is not limited to the items of expenditure appearing in the schedule; but (b) if an item does appear in the schedule — must not award costs in relation to that item at a rate or of an amount that exceeds the rate or amount appearing in the schedule. [subs (2) am Act 174 of 2012 s 3 and Sch 6 item 7; s 3 and Sch 9 item 418, opn 1 Jan 2013]

[7-5020]

Security for costs

404 The procedural rules may provide for the furnishing of security for the payment of costs in relation to matters arising under this Part. [page 622] COMMENTARY TO SECTION 404*

Derivation …. Procedural rules …. Security for the payment of costs ….

[7-5020.1] [7-5020.5] [7-5020.10]

[7-5020.1] Derivation See Australian Industrial Relations Commission Rules 1998, r 47A. [7-5020.5] Procedural rules See the definition in s 12 and Fair Work Commission Rules 2013, r 8, 13, 14, 15, 16, 17, 18, 41, 42, 43, 44, 55. [7-5020.10] Security for the payment of costs The Commission has no inherent jurisdiction to make an order for costs and the circumstances in which such an order can be made are limited: Polaris Sales Australia v Pettigrew — PR946259 [2004] AIRC 427 (3 May 2004) at [28]. In a comprehensive analysis of the authorities, French J concluded that a similar provision contained a discretion to be exercised according to the merits of each case without any particular predisposition: Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497; [1987] FCA 102 (31 March 1987) at [109]. The only relevant limitation is that the discretion must be exercised judicially: Energy Drilling Inc v Petroz NL (1989) ATPR 40-954 at 50, 419; [1989] FCA 146 (3 May 1989). Relevant to that determination may be matters such as: (i) the solvency of the party; (ii) whether the party is ordinarily resident outside of the jurisdiction: PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321 at 323; 5 ACSR 633; [1991] HCA 36;

BC9102621. (iii) whether the case is arguable: Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497; [1987] FCA 102 (31 March 1987) at [131]. The claim should be approached on the basis that it is bona fide with a reasonable prospect of success: Kealy v SHD Services Pty Ltd [2011] NSWSC 709 (7 July 2011); BC201105039 at [50]. Note the difficulties in going further to assess the prospects of success in Equity Access Ltd v Westpac Banking Corporation [1989] FCA 361 (8 September 1989); (iv) whether any offers of security have been made: Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] QB 609 at 627 B; [1973] 2 All ER 273; [1973] 2 WLR 632; (v) whether the position of the plaintiff is to be attributed to the defendant’s conduct: Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] QB 609 at 626 H; [1973] 2 All ER 273; [1973] 2 WLR 632; (vi) delay in bringing the application: Equity Access Ltd v Westpac Banking Corporation [1989] FCA 361 (8 September 1989) at [36]; (vii) whether an order for security would shut the applicant out from pursuing his claim: Pearson v Naydler [1977] 3 All ER 531; [1977] 1 WLR 899 at 902. In Harris v Home Theatre Group Pty Ltd t/as Home Theatre Group [2011] FWA 2910 (12 May 2011) at [32], Asbury C held that the restrictions upon the payment of costs in the Fair Work Act 2009 were relevant considerations in determining whether to exercise the discretion. In Swan v Innovative Hair Loss Solutions [2010] FWA 6505 (23 August 2010), the employer applied for security for costs for the amount of $5000 pursuant to s 404. However, Lewin C brought to the parties’ attention that the hearing could be conducted by video link between [page 623] Melbourne and Perth and if this were done, the grounds for the security for costs order would no longer be relevant. Both parties consented to the hearing being conducted by video link and the application for security for costs was withdrawn. *Commentary to Procedural rules and Security for costs written by Joe Catanzariti, VP FWC and Michael Byrnes, Special Counsel, Clayton Utz. Updated by Michael Byrnes, Special Counsel, Clayton Utz. All other commentary by Ian Latham BA(Hons) LLB (ANU), Barrister.

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[7-5040]

Contravening orders under this Part

405 A person to whom an order under this Part applies must not contravene a term of the order. Note: This section is a civil remedy provision (see Part 4-1). COMMENTARY TO SECTION 405*

Derivation …. Civil Remedy — s 405 ….

[7-5040.1] [7-5040.5]

This Part — s 405 …. Outline of Section …. Party — s 400A(1), (2) …. Unreasonable act or omission — s 400A(1) …. Outline of Section ….

[7-5040.10] [7-5040.15] [7-5040.25] [7-5040.30] [7-5040.35]

[7-5040.1] Derivation The section is new. [7-5040.5] Civil Remedy — s 405 See ss 12 and 539. [7-5040.10] This Part — s 405 This Part is Pt 3-2. [7-5040.15] Outline of Section Section 405 of the FW Act, falling within Pt 3-2 of the FW Act provides that a person to whom an order under that part applies must not contravene a term of that order. Section 539 of the FW Act provides that a contravention (amongst other things) of s 405 is a civil remedy provision. The Court has the power to make any order it considers appropriate if it is satisfied that the first respondent has contravened a civil remedy provision (see s 545(1) FW Act). By s 545(2)(h) of the FW Act the Court has the power to order a payment of compensation for loss that a person has suffered “because of” a contravention: SZSRV v Minister for Immigration and Border Protection (2014) 142 ALD 219; [2014] FCA 220; BC201401459 at [18]–[19]. [7-5040.25] Party — s 400A(1), (2) See [8-6940.25]. [7-5040.30] Unreasonable act or omission — s 400A(1) See [8-6940.45]. [7-5040.35] Outline of Section The section partially reverts to the position on costs prior to the introduction of the Workplace Relations Act. The amendment was broadly recommended by the Fair Work Act Review at Recommendation 45: see http://deewr.gov.au/fair-work-act-review. The Explanatory Memorandum to the Fair Work Bill 2012 states at [160] and [170] that: As with the new power to dismiss applications under section 399A, the power to award costs under section 400A is not intended to prevent a party from robustly pursuing or defending an unfair dismissal claim. Rather, the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party. The FWC’s power to award costs under this provision is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs [page 624] because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued. See generally Latham, Rejecting a settlement offer in an unfair dismissal case: the risk of costs, employment law bulletin, May 2015, 35.

*Editor’s note: Commentary to s 405 by Ian Latham BA(Hons) LLB (ANU), Barrister.

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PART 3-3 — INDUSTRIAL ACTION INDUSTRIAL DISPUTES Commentary by Erik Young, Barrister at Law This commentary was last reviewed in December 2014. CONTENTS

Paragraph The regulation of industrial disputes under the Fair Work Act 2009 (Cth) Types of industrial disputes regulated by the Fair Work Act 2009 (Cth) …. Disputes arising in relation to the interpretation and/or operation of industrial instruments, including modern awards or enterprise agreements under the FW Act …. The effect of the Fair Work Act 2009 (Cth) in regulating industrial disputation …. The meaning of “industrial action” in the Fair Work Act 2009 (Cth) …. Consequences to employers of taking unprotected industrial action …. Consequences to unions and employees of taking unprotected industrial action …. Orders against the taking of industrial action …. Prohibition against payment to employees where unlawful industrial action is taken by employees …. Enforcement provisions for prohibited payments Court proceedings …. Liability for contravention of civil remedy provisions prohibiting payments to employees taking unprotected industrial action …. Penalties …. Costs …. Time limit for bringing proceedings for breach of

[Com 60,010]

[Com 60,015] [Com 60,020] [Com 60,030] [Com 60,040] [Com 60,050] [Com 60,055] [Com 60,060] [Com 60,070]

[Com 60,080] [Com 60,090] [Com 60,100]

industrial action provisions ….

[Com 60,110] [page 625]

Paragraph The regulation of industrial disputes under the Fair Work Act 2009 (Cth) Procedure for taking protected industrial action Contextual prerequisites …. Protected action ballots …. Conduct of the protected action ballot …. Opportunity of an employer to take defensive action if protected action is authorised by employees at a ballot …. Steps to take to ensure that industrial action is protected …. Prohibition on paying employees who have taken protected industrial action …. Consequences of industrial action being protected …. Suspension or termination of protected industrial action The Fair Work Commission must suspend or terminate protected industrial action in certain circumstances …. The Fair Work Commission may also make bargaining orders during industrial bargaining …. Minister may issue declaration terminating protected industrial action …. Disputes arising under industrial instruments ….

[Com 60,120] [Com 60,130] [Com 60,134]

[Com 60,136] [Com 60,140] [Com 60,150] [Com 60,160]

[Com 60,170] [Com 60,175] [Com 60,180] [Com 60,185]

THE REGULATION OF INDUSTRIAL DISPUTES UNDER THE FAIR WORK ACT 2009 (Cth) [Com 60,010] Types of industrial disputes regulated by the Fair Work Act 2009 (Cth) It is well

established that the meaning of “industrial dispute” is neither legal nor technical: see R v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297; 47 ALR 225; [1983] HCA 19; BC8300080. The modern understanding of the concept of an industrial dispute is that it involves a dispute about matters pertaining to the employment relationship in a wide range of contexts. Separate and distinct from, but related to, industrial disputes is the concept of industrial action. As referred to further below at [Com 60,615] s 19 of the FW Act provides a specific definition of what constitutes “industrial action”, as well as what types of actions do not constitute industrial action. Relevantly, as contained in a note to s 19 of the FW Act, in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Co Ltd, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining. For this reason, making employees redundant is prima facie not industrial action: Age Co Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2004) 133 IR 197, although it may be if it occurs during the course of an industrial dispute with a view to coercing employees into accepting terms of a proposed [page 626] agreement at [41]–[46]. Indeed, neither dismissal nor termination of employment generally would ordinarily fall within the meaning of industrial action: Busicom Solutions Pty Ltd v Automative, Foods, Metals, Engineering, Printing and Kindred Industries Union [2007] AIRC 287. There also is in the FW Act a category of disputes referred to as a “bargaining dispute”: s 240. These types of disputes relate to the bargaining associated with the making of proposed enterprise agreements. Bargaining disputes are separately discussed in the chapter of commentary entitled “Agreements and Agreement Making” in this service. Such disputes may be referred to the Fair Work Commission (the FW Commission) for resolution by way of mediation, conciliation, expressing a recommendation or opinion, or (by consent) arbitration: see ss 240 and 595. There is also provision for the resolution of disputes arising under various industrial instruments, including under modern awards, enterprise agreements, employment contracts, or determinations under the Public Service Act 1999 (Cth). These instruments give statutory force to dispute settling procedures for matters arising under those various instruments, and in relation to the National Employment Standards: s 738. Demarcation disputes between unions are another type of industrial dispute. Demarcation disputes must not give rise to any form of industrial action by employees against an employer that is organised by a bargaining representative, and must be resolved between the relevant unions by the FW Commission. If any industrial action by employees in such circumstances relates to a significant extent to a demarcation dispute, the action will not have protection from a range of civil remedies available to the employer: s 409(5). Finally, there is the more traditional form of industrial dispute which involves action taken by employees or employers to advance competing positions with respect to claims being made for an enterprise agreement. It is with this form of industrial dispute that this chapter is primarily concerned. [Com 60,015] Disputes arising in relation to the interpretation and/or operation of industrial instruments, including modern awards or enterprise agreements under the FW Act The determination of the outcome of disputes which arise in relation to the interpretation and/or operation of industrial instruments, including modern awards or enterprise agreements under the FW Act, inevitably turn on their own facts and circumstances, including the factual and sometimes historical circumstances

and operation of the relevant provision in question. The FW Act provides a mechanism pursuant to which the FW Commission is empowered to deal with disputes arising under: 1. 2. 3. 4.

modern awards; enterprise agreements; written contracts of employment and the dispute relates to National Employment Standards or safety net contractual entitlements; or determinations under the Public Service Act 1999 (Cth) which include a term which deals with disputes in relation to National Employment Standards.

(see Div 2 of Pt 6-2 of the FW Act). As such, little need here is said as to the process or procedure of such disputes being resolved, as they will depend upon the terms of the particular dispute resolution procedure and be only between the parties to the dispute. However where such disputes cannot be resolved by agreement, they can easily come before a court for determination. In such circumstances, there may be broader industry implications for the resolution of such disputes which excite the interest of industrial associations. While the FW Act provides relatively broad representational rights to industrial associations, there are limits to the extent to which industrial associations can intervene in contested proceedings in which they are not a party, even if the outcome in that proceeding may have wider consequences for their members. [page 627] This issue was squarely raised and dealt with in the case of Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FCA 59; BC201500422, in which Buchanan J re-affirmed the limited basis upon which a party can intervene as described by the High Court of Australia in Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37; 284 ALR 222; [2011] HCA 54; BC201165590. In that case, the Australian Chamber of Commerce and Industry applied for leave to intervene in a case concerning the proper construction of s 90 of the FW Act (regarding the payment of annual leave, and the calculation of the rate at which it must be paid. Justice Buchanan noted at [3] that an application for intervention arises in one of three categories: The first is where a non-party has interests which might be directly affected by a decision in the proceeding and would be bound by the decision. The second is where a non-party whose legal interest in other pending litigation is likely to be affected substantially by the outcome. The third is the indirect or contingent affection of legal interests following from the extra-curial operation of the principles enunciated in a decision of the Court or their effect upon future litigation. In that case, Buchanan J considered that the application he was dealing with fell into the third of those categories and did not warrant a grant of leave to intervene and dismissed the application, and made a costs order against the Australian Chamber of Commerce and Industry. [Com 60,020] The effect of the Fair Work Act 2009 (Cth) in regulating industrial disputation The concept of an industrial dispute encompasses a wide variety of matters. Understood in broad terms, it

can involve any issue pertaining to or touching on the employment relationship between an employer and its employees, including demarcation disputes between unions representing employees. As such, taken broadly, the FW Act provides a variety of mechanisms to regulate such disputes, including provisions for the making and determination of general protections applications (see FW Act, ch 3, pt 3-1), unfair dismissal applications (see FW Act, ch 3, pt 3-2), demarcation disputes (see Fair Work (Registered Organisations) Act 2009, ch 4, pt 2 and 3), disputes under existing industrial instruments (see FW Act, ch 6, pt 6-2), as well as the statutory regime pursuant to which protected industrial action may occur in relation to the negotiation of the terms of new industrial instruments. Each of these categories of dispute has its own regulatory regime in the FW Act, and this commentary deals primarily with the latter of these (ie the taking of protected industrial action). The FW Act guarantees a minimum safety net of employment conditions through the making of National Employment Standards, modern awards, and national minimum wage orders. However, inherent in the legislative scheme of the FW Act is the provision of legal means by which organised industrial action can be taken by employees, as part of the process of bargaining, to improve their employment conditions above the minimum standards. These means are expressed by way of a scheme by which employers and employees can, without incurring any legal liability, cause damage (particularly financial damage) to each other in time honoured fashion in an effort to force the other party to accede to legal demands which differ from the statutory minimum employment conditions. This effect of the FW Act was articulated by Jessup J in JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53; BC201202488 in which he observed (at [29]): “… the ability to take protected industrial action is to be seen as part and parcel of the statutory regime for bargaining in pursuit of, or in resistance to, the making of such agreements. This way of looking at the legislation is amply justified by the parliament’s own words in identifying the object of the Act: see s 3(f).” [page 628] In effect, the FW Act sets out the rules by which industrial disputes may be fought. If a party to a dispute strays outside of the rules, they are exposed to the full range of legal sanctions that would apply if the FW Act did not exist, and various statutory civil remedies under the FW Act. This aspect of the FW Act was emphasised in the Full Court of the Federal Court of Australia in Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200; 127 ALD 453; [2012] FCAFC 65; BC201202894 at [38], where Lander J observed that s 418 of the FW Act did not authorise the FW Commission to order that protected industrial action stop or not be organised, but that it mandated that the FW Commission do so for all other types of industrial action, and that: The importance of s 418 should not be overlooked. Section 418 requires FWA to make an order stopping any industrial action engaged in by an employee or an employer that is not protected. Thus the scheme of the Act is only to permit an employee or an employer to engage in protected industrial action as defined in ss 408, 409, 410 and 411. All other industrial action will be stopped by order of FWA pursuant to s 418. The process of workplace participants engaging in protected industrial action, and the rules of doing so, are explained below.

PROTECTED AND UNPROTECTED INDUSTRIAL

ACTION [Com 60,030] The meaning of “industrial action” in the Fair Work Act 2009 (Cth) The various types of industrial action defined in s 19 of the FW Act essentially fall into one of the following three categories: (1) employees not performing work; (2) employees varying from their usual performance of work; (3) an employer preventing employees from performing work (but not dismissing the employees). This definition encompasses the various forms of conduct that comprise the means by which either the employees or employer makes protest to the other in a form which disrupts the performance of work. This has been repeatedly emphasised in the case law, but has been confirmed as being directly applicable under the FW Act in National Tertiary Education Union v University of South Australia (2010) 194 IR 30; [2010] FWAFB 1014, in which it was found that the exercise of the FWA’s discretion to suspend or terminate protected industrial action under s 424 of the FWA was not intended to “be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining” (at [8]). It has also been found that this principle also applies to an application for the suspension of protected industrial action for a cooling off period under s 425 of the FW Act (see CEPU v Carter Holt Harvey Wood Products Australia Pty Ltd [2011] FWA 101. In this case, somewhat unusually, it was the union that argued (unsuccessfully) for the suspension of protected industrial action). Whilst employees stopping or varying their work practices is often easily identified as industrial action falling within the definition of s 19 of the FW Act when it arises in the context of industrial bargaining, it is important to bear in mind that such conduct also comes within the ambit of constituting industrial action even if it is engaged in for other reasons. In Port Kembla Port Corporation v Rowe [2011] FWA 55 certain employees insisted on a work practice of using 4 tug boats for guiding vessles of a certain size in and out of the harbour, in circumstances where the employer only required 3 tug boats in compliance with port parameters, and the work practice since 2006 had been to use only 3 tug boats in such circumstances. The employer was successful in bringing an application in FWA pursuant to s 418 of the FW Act for an order stopping and preventing industrial action, as Vice President Watson was satisfied that the employees insisting on using 4 tug boats constituted industrial action, notwithstanding that they did so on the basis of believing that doing so constituted a safer operational practice, particularly having regard to the ability of the employees to seek that the port parameters be modified under the relevant legislative instruments. [page 629] Other forms of conduct, whilst potentially quite disruptive, do not comprise industrial action. In Boral Resources (NSW) Pty Ltd v The Australian Workers’ Union [2009] FWA 1412 Senior Deputy President Harrison rejected an application under s 418 of the FW Act which had been made on the basis that the union had issued notices under s 414 of the FW Act for the taking of industrial action but then not taken the foreshadowed industrial action, which cost the company money due to customers making alternative arrangements, including obtaining supplies from competitor companies. The employees had less work to do than usual. The company argued that this was a form of industrial action. This argument

failed, it being held that there was nothing in the FW Act obliging a union to carry into effect the foreshadowed industrial action. In doing so, FWA approved and applied the reasoning of Anglo Coal (Capcoal Management) Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2003] FCA 1073; BC200305851. A note to s 19 of the FW Act makes reference made to Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Age Co Ltd, PR946290, in which the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining. As such, making employees redundant is prima facie not industrial action: Age Co Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2004) 133 IR 197, although it may be if it occurs during the course of an industrial dispute with a view to coercing employees into accepting terms of a proposed agreement at [41]–[46]. Neither dismissal nor termination of employment generally would ordinarily fall within the meaning of industrial action: Busicom Solutions Pty Ltd v Automative, Foods, Metals, Engineering, Printing and Kindred Industries Union [2007] AIRC 287. For more detailed commentary on the scope and operation of s 19 of the FW Act, see [5-1410.1]–[51410.85]. [Com 60,040]* Consequences to employers of taking unprotected industrial action Part 3-3 of Ch 3 of the Fair Work Act 2009 (Cth) (FW Act) provides a scheme by which industrial action is protected against any form of legal remedy that would ordinarily arise if that action was taken without statutory protection. A useful summary of the matters necessary to be satisfied for industrial action to receive the statutory protection provided in the FW Act is contained in JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53; BC201202488, in which Jessop J held (at [19]) “What is “protected industrial action” is the subject of s 408 of the Act. Industrial action which is for a “proposed enterprise agreement” and is either “employee claim action for the agreement”, “employee response action for the agreement”, or “employer response action for the agreement”, is protected industrial action. Sections 409, 410 and 411 give content to the terms I have enclosed in inverted commas in the previous sentence. Again, there is no need to refer to the detail of these provisions: it is sufficient for present purposes to note that industrial action will never be “protected industrial action” if it does not relate, in the statutory sense, to a proposed enterprise agreement.” Jessup J then refers to the “common requirements” in s 413 of the FW Act, and where the industrial action is to be taken by employees, the need, under s 409, for its authorisation by the employees pursuant to a protected action ballot conducted in accordance with the requirements contained in div 8 of Pt 3-3 of the FW Act. Tracey and Flick JJ, although writing separate short judgments, concurred with Jessop J as to the conclusion reached. Significantly, Jessop J, also expressly rejected the conclusion of the Full Bench of FWA that there was nothing in the legislative provisions to suggest that a bargaining representative should not be permitted to organise protected industrial action to persuade an employer to agree to bargain. To the contrary, Jessop J held that: [page 630] With respect, I would depart from the Full Bench at this point. On my reading of the Act, there is a means by which a party seeking to bring an employer to the bargaining table may achieve that result without taking industrial action. That means is provided in Subdiv A of Div 8. As I have indicated, the legislation eschews any definition of “bargaining”, leaving it to FWA itself to specify what might

be required in a particular situation. It is true that, under s 230(2), where the employer has not agreed to bargain or initiated bargaining, there must be a majority support determination or a scope order in operation. These requirements, however, may be seen as a conscious choice by the legislature to introduce a degree of organisation into the representation of employees’ interests, before an unwilling employer might be made the subject of a bargaining order. The important point is that, although limited to an extent, the legislature has, both specifically and in some detail, turned its mind to the means by which an unwilling employer might, to use the Full Bench’s metaphor, be persuaded to come to the bargaining table. Although not so stated in terms, it would be at least consistent with these provisions of Subdiv A of Div 8 to perceive a legislative assumption that recourse to industrial action would not be an available means to oblige an employer, or any other party, to commence bargaining. Additionally to the matters to which I have just referred, I consider there is much to be said for the applicants’ case, as a matter of broad statutory purpose. The Act provides a detailed, carefullystructured, regulatory environment for the making of enterprise agreements, and for the maintenance of the integrity of the system of collective bargaining which conventionally leads to such agreements. In the sense that protected industrial action must, necessarily, relate to a proposed enterprise agreement (see s 408), it is legitimate to point out, as the applicants did in their submissions, that the ability to take protected industrial action is to be seen as part and parcel of the statutory regime for bargaining in pursuit of, or in resistance to, the making of such agreements. This way of looking at the legislation is amply justified by the parliament’s own words in identifying the object of the Act: see s 3(f). (at [28]–[29]). Tracey J expressly agreed at [34], and in a separate case Flick J also approved and applied the finding of Jessop J (see Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (2012) 206 FCR 576; 290 ALR 326; [2012] FCA 764; BC201205252, at [50]). It should be noted, however, that the Full Court in the JJ Richards & Sons case agreed with the applicant’s submission on that point, the applicant was ultimately unsuccessful in that case. The procedural requirements for taking protected industrial action are set out in more detail below. If the provisions giving rise to the statutory protection are not followed by the employer taking the industrial action (such as a lockout), then the employer will be liable for all moneys ordinarily payable to the employees, as if the employees had continued to work for the employer. The employer will not receive the benefit of s 416 of the FW Act under which the employer does not have to pay employees if it takes industrial action against its employees. It is trite law that an employer has a prima facie common law right to direct its employees to do nothing. This prima facie common law right may, in limited circumstances, give way to an equitable right of an employee to obtain a mandatory injunction if the employee can show damage arising directly from the mere non-performance of work (such as where damage to reputation or career arises to a professional actor or sportsperson). However, where an employer does direct an employee to do nothing, the employee is ordinarily entitled to receive payment for the time that he or she would have been required for work (subject to some exceptions, such as where an employment contract provides for employees to be stood down in certain circumstances). As such, this tactic would rarely be used by employers as a form of industrial action, as it simply provides the affected employees with a paid holiday, as the employees could recover any unpaid wages or salary as a simple debt in a common law action. [page 631] This legal context is reflected in the stand down provisions contained in Div 2 of Pt 3-5 of the FW

Act. These provisions, inter alia, allow an employer to stand down employees in circumstances where the employee cannot be usefully employed due to industrial action, but not where the industrial action is organised or engaged in by the employer. [Com 60,050] Consequences to unions and employees of taking unprotected industrial action Unions and employees are exposed to the full range of legal remedies if they take industrial action without having first followed the steps necessary to obtain the immunity protection of s 415 of the Fair Work Act 2009 (Cth) (FW Act). That section, with certain specified exceptions set out at [8300], provides protection from any actions or claims for taking industrial action. In addition, it is unlawful under the FW Act for either: (1) the employer to make any payment to employees engaging in unprotected industrial action for the duration of the industrial action, or at least 4 hours (s 474); or (2) the employee to accept or ask for such payments, or for a union to ask for such payments, from an employer (s 475). There is a slightly different scheme with respect to whether payment for unprotected industrial action comprising overtime bans is unlawful. For industrial action to comprise an overtime ban, it must be obligatory for the employee to perform the overtime, and the employee must refuse to do so. This occurs where the employer can, and does, direct an employee to work rostered “reasonable overtime” under a modern award, enterprise agreement, or employment contract: s 474(1). If this legal obligation does not exist, then the industrial action is not unlawful under the FW Act. As the minimum period of time for which pay must be deducted is 4 hours, then if an overtime ban is for a period of overtime which is usually worked but is less than 4 hours, then the employer must deduct pay for not only the overtime not worked, but also for the time worked up to when the overtime commenced until 4 hours pay has been deducted. This applies to each and every day of the overtime ban. The scheme of Subdiv B of Div 9 of Pt 3-3 makes clear that unprotected industrial action is not in any way to be financially rewarded. Indeed, even if the employer acts unlawfully and pays the employee for the time taken in industrial action, then there is nonetheless a positive obligation on the employee to not accept such payment. This, in turn, gives rise to an obligation to pay the money back, at the risk of pecuniary penalties and/or other orders being imposed by way of civil remedies against the employee. In light of the usual practice of employees’ pay being transferred electronically into the accounts of financial institutions, this obligation could theoretically give rise to some interesting legal conundrums about whether or not the employee held the money on trust and what may be the obligations arising from that, and the extent to which an employee is obliged to try to return the money paid. However, in practical terms, these matters are likely to arise only rarely, as it would be few employers who would not gladly comply with their legal obligation to not pay employees who are taking industrial action against them. A further consequence of unprotected industrial action is that the Fair Work Commission (the FW Commission) is mandatorily required to order an immediate cease to unlawful industrial action that is happening, threatened, impending, probable, or being organised. The FW Commission may make the order either on its own initiative, or on the application of a person likely to be affected, whether directly or indirectly, by the unprotected industrial action (see s 418 of the FW Act). Any application to the FW Commission for such an order must be determined by the FW Commission within two days after it is made, if this is able to be done, but if the FW Commission cannot determine the issue on its merits within that timeframe, it must make an interim order that the industrial action stop, not occur, or not be organised before then determining the application in finality, unless it was positively satisfied that it would not be in the public interest to

make the order (see s 420 of the FW Act). [page 632] A party may apply to the FW Commission for orders prohibiting the taking of unprotected industrial action, including where it is about to occur but has not yet occurred. However such orders will not be made without sufficient evidence of the probability of such action occurring. In AGC Industries Pty Ltd v CFMEU [2009] FWA 1631 Deputy President McCarthy rejected an application by a group of employers for orders pursuant to s 418 of the Act due to a lack of evidence as to the probability of such action. A theoretical probability was insufficient; rather, the employers had to demonstrate the real probability of such industrial action occurring. If the FW Commission makes an order stopping industrial action from happening, occurring or being organised, then civil penalties apply if such an order is contravened. The civil penalties include a maximum penalty of: $6,600 for individuals, being 60 penalty units, or $33,000 for corporations, being five times the amount applicable to individuals. These civil penalties are imposed by either the Federal Court of Australia or the Federal Circuit Court of Australia. In addition, a person affected by the contravention, or an inspector of the Office of the Fair Work Ombudsman may apply to the Federal Court of Australia or the Federal Circuit Court of Australia for an injunction against any such contravention: s 421. Such injunctions can be made against not only the union, but against various individuals. This was done in Baulderstone Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FMCA 972; BC201208169, where Jarrett FM granted an interim injunction a matter of hours after the industrial action in issue commenced. In that case, it was found that such industrial action was likely to be in breach of s 417 of the FW Act (industrial action must not be organised or engaged in before nominal expiry of enterprise agreement etc), and also that such action demonstrated a likely breach of ss 343 and 348 of the FW Act (prohibiting coercion). Employees who undertake unlawful industrial action may swiftly be joined to proceedings, as occurred in Director Fair Work Building Industry Inspectorate v CFMEU [2014] FCCA 1424; BC201405277. In that case, the Court was moved on an urgent interlocutory basis, and so ordered, that 31 employees be joined as respondents to proceedings because of prima facie evidence that they had engaged in unlawful industrial action by refusing to work contrary to an order of the Fair Work Commission. This demonstrates the way in which parties may take prompt action to quickly stamp out such unlawful industrial action, and the jeopardy to which individuals expose themselves if they choose to act in breach of orders made to prevent or stop industrial action. [Com 60,055] Orders against the taking of industrial action The FW Commission can make orders against the taking of unprotected industrial action pursuant to s 418 of the FW Act. However the FW Commission cannot simply make a blanket ban against industrial action generally; rather, it is necessary for the FW Commission to identify the industrial action to which prohibition orders are directed. In Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72; BC201603927, Buchanan J (which whom Siopsis J agreed) held that: [27] Section 418 calls for an assessment by the FWC about whether industrial action (ie as defined in s 19) that is happening, threatened etc or being organised is, or would be, protected industrial action. That assessment by the FWC could not be legally conclusive, but it is an important preliminary step nevertheless (see Re Cram; Ex parte The Newcastle Wallsend Coal Company Proprietary Ltd (1987)

163 CLR 140 at 149; 72 ALR 173; 61 ALJR 407; BC8701789). The assessment to be made by the FWC requires identification of the existing or potential industrial action as a matter of fact, or probable fact. [28] The requirement on which s 418 operates is that the FWC may conclude that the industrial action is not protected or would not be protected if it took place although it may not be possible, in some cases of industrial action which is being organised or threatened, to say with any certainty what action is proposed because it cannot be assumed that notice of the kind [page 633] referred to in s 414(6) has been provided. In fact, no steps at all may have been taken to attempt to meet the “common requirements” for protected industrial action. [29] Nevertheless, the power of the FWC under s 418(1) is to order that the industrial action stop or not occur or not be organised, even though the FWC does not need to specify the particular industrial action (s 418(3)). [30] Is it open to the FWC under s 418 simply to order that no industrial action (ie as defined by s 19), which is not protected industrial action, occur for a specified period (the stop period)? In my view, it is not. [31] First of all, I see no reason to doubt that the FWC must, for the purpose of its own assessment, make some attempt to identify the existing or potential industrial action. Then it must form a view whether that existing or potential industrial action is or would be protected industrial action. [32] Perhaps in a case where the industrial action was occurring, threatened or being organised during the term of an enterprise agreement or workplace determination, little would turn on the precise character of the industrial action but, on the other hand, s 417 needs nothing by way of assistance from s 418. [33] The more critical case (perhaps the only practical case) for the invocation of s 418 will arise from concern about industrial action (actual or potential) outside the nominal term of an enterprise agreement or workplace determination. In such a case, as I have said, some effort must be made by the FWC, before issuing an order, to establish that the statutory foundation for the order is present. Similarly, the scope of the order cannot simply be at large because it must be directed at the industrial action (existing or potential) which has been identified. [34] In my view, it is an abdication of the responsibilities of the FWC to make an order which simply states that industrial action must not occur which is not protected industrial action. If industrial action is not protected industrial action then the immunity from suit given by s 415 will not apply. An order under s 418 does not adjust the operation of s 415. An order under s 418 need not be complied with if industrial action is, or would be, protected industrial action (s 421(2)). However, otherwise, breach of an order under s 418 is an offence (see s 675) whether or not supported by an injunction under s 421. [35] My view is reinforced by consideration of the operation of s 419, which forms part of the scheme of the same Division of Part 3-3 of Chapter 3 of the FW Act. [Com 60,060] Prohibition against payment to employees where unlawful industrial action is taken by employees If an employee takes unprotected industrial action, there are sanctions against both the

employer and the employee where payment is made to employees who take industrial action: see the discussion at [8080]. These sanctions are in the form of civil remedies under the Fair Work Act 2009 (Cth), enforced under Pt 4-1. The prohibition on making any payments to employees who take unprotected industrial action differs from the prohibitions affecting employees who take protected industrial action. The primary difference is that while there is an absolute prohibition against the making of any payments whatsoever to employees engaging in unprotected industrial action, regardless of the form of the industrial action, there is a different scheme in place where employees take protected industrial action in a form less than full strike action. In short, if employees who take protected industrial action do so in the form of partial work bans they are entitled to full payment unless their employer takes certain steps to allow the employer to reduce their payments by a proportion specified by the employer (or otherwise ordered by Fair Work Australia). This is explained further at [8280] under the heading “Prohibition on paying employees who have taken protected industrial action”. [page 634]

ENFORCEMENT PROVISIONS FOR PROHIBITED PAYMENTS [Com 60,070]* Court proceedings Proceedings for civil remedies with respect to prohibited payments made to employees who take unprotected industrial action may be taken in either the Federal Court of Australia, or the Federal Circuit Court of Australia, by either: an inspector of the Office of the Fair Work Ombudsman; or the employer (with respect to an employee asking for or accepting payments, or a union asking for such payments). [Com 60,080] Liability for contravention of civil remedy provisions prohibiting payments to employees taking unprotected industrial action A contravention of the provisions prohibiting payments to employees taking unprotected industrial action is not a criminal offence: s 549. However, a person may be liable to civil penalties for involvement in the conduct giving rise to the contravention of the civil remedy provisions, as much as a person who actually contravened the provisions. The involvement must be of a relatively direct nature, and is limited to certain types of conduct that actively encourages or assists the contravention by various defined means: see s 550(2). [Com 60,090] Penalties The maximum pecuniary penalty that can be imposed on a person for a breach of the civil remedy provisions prohibiting payments to employees taking unprotected industrial action is currently $6,600 for individuals, being 60 penalty units, or $33,000 for corporations, being five times the amount applicable to individuals: see ss 539, 546. Payment of a pecuniary penalty can be ordered to either the Commonwealth or a particular organisation or individual, and is immediately recoverable as a debt due to that entity or individual. However, the court may also make any other orders that it considers appropriate, including orders in

the nature of injunctive relief, on both an interim and a final basis: s 545. Notably, the imposition of a pecuniary penalty is not mandatory, and the court has a discretion as to whether or not any pecuniary penalty is imposed: s 546. As such, the court can make orders injuncting an individual employer, employee or union from again making a prohibited payment where industrial action has been taken. [Com 60,100] Costs Costs are not ordinarily recoverable with respect to the substantive hearing of court proceedings relating to a contravention of civil remedy provisions prohibiting payments to employees taking unprotected industrial action, regardless of the outcome of those proceedings. A costs order may only be made against an applicant to such proceedings in the limited circumstance of either the proceedings being instituted vexatiously or without reasonable cause; or against any party where that party has acted unreasonably or unreasonably omitted to act and such unreasonable act or omission has caused another party to incur costs: s 570. As such, it is only the party commencing the proceedings who is ordinarily exposed to a liability for the costs of the proceedings as a whole. However, it is conceivable that a defending party might be found liable for the payment of significant costs if it unreasonably withheld critical information that could easily have been used to demonstrate a lack of liability, until late in the proceedings. Of course, unreasonable conduct at various procedural and interlocutory stages of the proceedings may also give rise to costs orders. This gives emphasis to the need to press for costs [page 635] orders during directions hearings and interlocutory hearings where another party has unreasonably failed to comply with court directions and orders. [Com 60,110] Time limit for bringing proceedings for breach of industrial action provisions Proceedings seeking a civil remedy for a contravention of any of the industrial action provisions must be brought within 6 years of the contravention: s 544.

PROCEDURE FOR TAKING PROTECTED INDUSTRIAL ACTION [Com 60,120] Contextual prerequisites There are a series of matters about the factual context of any impending industrial action that govern whether or not the industrial action is capable of being protected industrial action under the Fair Work Act 2009 (Cth). In short, there are a number of factual matters that must exist, and others that must not, for those involved in industrial action to be entitled to legislative protection from legal remedies. The factual matters that must exist for industrial action to be protected are as follows: any industrial action being initiated by employees must have been authorised pursuant to a properly conducted ballot under Div 8 of Pt 3-3 (as compared to industrial action which is responsive to industrial action taken by the employer, in which case such a ballot is not necessary); the industrial action must be only in relation to “permitted matters” (defined under s 172); the industrial action must be against or by an employer who is a party to the enterprise

agreement in relation to which the industrial action is being taken; the bargaining representative must be genuinely trying to reach an agreement; and adequate written notice has been given that specifies the nature of the industrial action and the day on which it will commence (if the industrial action is being initiated by employees, at least 3 days written notice is required). In addition, the factual matters that must not exist for industrial action to be protected are as follows: the industrial action must not relate to a proposed greenfields or multi-enterprise agreement; the industrial action must not be in support of unlawful terms (defined in s 194); the industrial action must not be part of pattern bargaining; the industrial action must not relate to a demarcation dispute; there must be no contravention of any orders applying to the bargaining representatives and/or employees to whom the enterprise agreement will apply, regarding the industrial action, the enterprise agreement, or any issue that has arisen during the bargaining for the enterprise agreement; the existing enterprise agreement must not still be operative; and there must not be an order suspending or terminating industrial action in relation to the enterprise agreement by the Fair Work Commission (the FW Commission) or the Minister for Workplace Relations, or be any serious breach declaration by the FW Commission in relation to the bargaining with respect to the enterprise agreement. [Com 60,130] Protected action ballots Where employees proposed to initiate industrial action that is to be protected industrial action, prior to such industrial action being taken or organised by a bargaining representative or employees, a “protected action ballot” must have successfully passed a resolution to take the industrial action. Before conducting the ballot, the bargaining representative must make an application to the Fair Work Commission (the FW Commission) for an order permitting the ballot to take place. The application to the FW Commission must specify the following matters: (1) the group of employees who will take part in the ballot (and will be covered by the enterprise agreement); [page 636] (2) the questions to be put to the employees, including the nature of the industrial action to take place; (3) if someone other than the Australian Electoral Commission is to conduct the ballot, the name of that person; and (4) any other documents prescribed by the regulations (none prescribed as at June 2009). These requirements must be strictly complied with. The Full Bench of FWA in the case of Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368 has held that the questions put to employees do not have to precisely specify the dates and times of the proposed industrial action. In that case, the appellant challenged the use of the word “unlimited” in the question on the proposed ballot seeking authorisation to conduct certain types of industrial action, however the Full Bench rejected such challenge, finding (at [39]) that: The precise length of any action will be determined subsequently by the bargaining agent who

organises the action and the members of the union who choose to participate. It is inevitable that the precise timing and length of the action is not determined at the stage of authorisation. But in voting to authorise the action the employees would have no doubt of the outer limits of the action involved. The application may not be made before 30 days prior to the expiry of the existing enterprise agreement, and when it has been made a copy must be given to the employer who will be affected by the proposed industrial action within 24 hours. There is an emphasis on the swift determination of such applications to the FW Commission, which must determine the application within 2 working days of lodgment of the application. Similarly, there is an express legislative requirement that the date contained in the protected ballot order as to the date by which the ballot closes must be a date by which the protected action ballot can be conducted as expeditiously as possible (see s 433(3A) of the FW Act. There is only a single criterion to determine whether or not such an application succeeds: the FW Commission must grant the application and make an order for a ballot to be conducted if it is satisfied that the bargaining representative has been and continues to be genuinely trying to reach an agreement with the affected employer, but not otherwise: s 443 of the Fair Work Act 2009 (Cth) (FW Act). This test focuses upon the applicant party, and so an employer refuses to engage in bargaining will not prevent a bargaining order from being made: JJ Richards & Sons Pty Ltd v Fair Work Australia (2012) 201 FCR 297; 218 IR 454; [2012] FCAFC 53; BC201202488. It is arguable that this is a lower threshold than the “good faith bargaining requirements” contained in s 228 of the FW Act, however it is equally arguable that failing to meet the “good faith bargaining requirements” will be evidence demonstrating a lack of genuineness in trying to reach an agreement. Merely making demands is not likely to be sufficient. For the FW Commission to be satisfied that the applicant bargaining representative has met the legal requirement of genuinely trying to reach an agreement with an employer, an examination and assessment of the interactions between the bargaining representative and the employer will be required. This requirement was emphasised by the Full Bench of FWA in the case of Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368, which held (at [31]–[32]) that: In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied. We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. [page 637] At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted. In that case, the Full Bench of FWA found on the facts that the requirements of s 443(1)(b) had not

been satisfied, due to matters such as the negotiations involving limited face to face meetings, the limited articulation of many of the claims, certain matters the subject of the claims were being dealt with in concurrent industry negotiations, many of the claims were only set out in a list of headings and were not explained or discussed, and the wage claim had not been specified. Hence, claims that do not have a reasonable degree of specificity, and limited discussions or discussions of a nature that is not practically conducive of resolving the matters of dispute, will not be sufficient to demonstrate that an applicant for a ballot has been genuinely trying to reach an agreement. Importantly, the Full Bench of FWA has held that bargaining under the FW Act, being a prerequisite for a protected action ballot order, does not commence until, at the earliest, the time that the employer is required to give notice to its employees of their representational rights (which is within 14 days of it being given notice of a proposed agreement): Ford Motor Company of Australia Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2009] FWAFB 1240 (at [22]). Additionally, it is of fundamental importance that the employees who are to be the subject of an order for a protected action ballot to take place can be identified and specified in the order. In Inghams Enterprises Pty Ltd [2011] FWAFB 33 the Full Bench of FWA quashed an order for a protected action ballot in circumstances where the order sought by the AMWU did not specify the persons to be covered in the order because it was unknown who those persons would be. The persons who might be covered were unknown because a factory had been destroyed by fire and neither the company nor the union could know who might be covered in any future enterprise agreement. At the time of the making of the application, the hearing and the making of the order at first instance, there was in fact no operations at the site at which the factory had previously stood, and the persons the subject of the order simply could not be ascertained. The AMWU admitted that it had intentionally made the application for a protected action ballot order for tactical reasons, in an attempt to extract concessions from the company whilst machinery was still being salvaged by the company from the destroyed factory. The Full Bench of FWA pointed out that the practical effect would be that the Australian Electoral Commission would find it impossible to prepare a roll of voters, as no relevant persons were working at the destroyed factory at any relevant time. [Com 60,134] Conduct of the protected action ballot Numerous provisions contained within Div 8 of Pt 3-3 of the FW Act support the view that there is a presumption that the Australian Electoral Commission is to conduct ballots for protected industrial action. However, the FW Commission has a discretion to allow another person to conduct a ballot, but only if that other person wants to conduct the ballot and the FW Commission is satisfied that the person is fit and proper (and anything else specified in the regulations, of which there are currently none): s 444. However, even if the FW Commission is so satisfied, it need not appoint the other person. This might happen for any number of reasons including, for example, if the FW Commission did not consider the person to be impartial or to have sufficient expertise in conducting ballots. If someone other than the Australian Electoral Commission conducts a ballot, then the FW Commission must give that person specific directions in relation to various procedural matters with respect to the time and method of conducting the ballot, and must include directions in relation to the following matters (see s 450(2)): (a) the development of a timetable; [page 638] (b) the voting method, or methods, to be used (which cannot be a method involving a show of hands);

(c) the compilation of the roll of voters; (d) the addition of names to, or removal of names from, the roll of voters; and (e) any other matter in relation to the conduct of the ballot that the FWC considers appropriate. It will be noted that a show of hands does not constitute a valid form of voting for the purpose of conducting a ballot for the commencement of what is to be protected industrial action. Valid forms of conducting such a ballot include personal attendance at a ballot box, electronic voting and postal voting. Interference with the conduct of a protected action ballot in contravention of s 462 of the FW Act (which deals with the various forms of paper based and electronic voting) will give rise to liability under the civil penalty provisions. The industrial action specified in the ballot and voted upon by the employees is authorised to be taken if: (1) at least 50% of the employees voted; and (2) at least 50% of the valid votes cast approved the taking of the industrial action specified in the ballot; and (3) the industrial action specified in the ballot commences within 30 days of the declaration of the result of the ballot (or any further period allowed by the FW Commission). [Com 60,136] Opportunity of an employer to take defensive action if protected action is authorised by employees at a ballot Due notice (at least three days) is then required to be given to the employer who will be affected by the proposed industrial action: s 414 of the FW Act. However, a longer period can be required by the FW Commission pursuant to s 443(5), which provides as follows: If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days. To establish that “exceptional circumstances” exist, a relatively high threshold of satisfaction must be met. What constitutes “exceptional circumstances” in the context of extending the period of time required of notice prior to protected industrial action being commenced was authoritatively determined in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corp (2007) 167 IR 4; [2007] AIRC 848, in which Lawler VP held (at [10]–[11]) in relation to the equivalent provision under the Workplace Relations Act 1996: In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circum-stances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[page 639] However, it is important to note that when considering whether to make an order pursuant to s 463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances “justifying” the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s 441. In that same case, Lawler VP also relied upon the rationale behind the giving of notice as set out by the majority of the Full Court of the Federal Court of Australia in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463; 165 ALR 550; [1999] FCA 1108; BC9904631 at [87] that it: … was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. Such reasoning has been applied in allowing a seven day extension of time for the giving of notice prior to the taking of approved protected industrial action, because a period of seven days is required to safely shut down the equipment of a company that generated electricity, but not because it would enable further time for the employer to seek orders in the FW Commission to challenge such action: Construction, Forestry, Mining and Energy Union v Loy Yang Power Management Pty Ltd [2012] FWA 3042. [Com 60,140] Steps to take to ensure that industrial action is protected By way of summary, the primary steps to be taken to ensure that industrial action taken is protected industrial action under the Fair Work Act 2009 (Cth) (FW Act) are as follows (assuming that the necessary contextual prerequisites exist, as referred to above): (1) Wait until the expiry of the existing enterprise agreement. (2) (For employees) If the industrial action is being initiated by the employees, rather than being responsive to industrial action taken by the employer, make application to the Fair Work Commission (the FW Commission) for the conduct of a “protected action ballot” under Div 8 of Pt 3-3 of the FW Act. (3) (For employees) If the FW Commission approves such a ballot, conduct the ballot with the relevant employees, to obtain approval from them for taking certain specified industrial action. (4) Provide adequate notice of the proposed industrial action (at least 3 days if the industrial action is being initiated by the employees). (5) Take the industrial action. In addition, as referred to above, it is critical that the proposed industrial action satisfy the necessary pre-requisites for it to fall within the FW Act and be capable of being protected. For example, in Bosch Chassis Systems Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FWA 1173 Senior Deputy President Watson made orders under s 418 of the FW Act prohibiting the proposed industrial action on the basis finding that it was not employee claim action and was not protected action, because it was proposed to be taken in support of claims that were non-permitted matters, and that the pursuit of such matters demonstrated that the union was not genuinely trying to reach an agreement. [Com 60,150] Prohibition on paying employees who have taken protected industrial action An

employer is prohibited from making payments to employees who engage in industrial action for the duration of the industrial action, but only where the form of the industrial action is a refusal to do any work at all. Employees taking protected industrial action in the form of a partial work ban (where the employee only refuses to perform some aspects of the employees’ role) are entitled to full payment unless the employer takes legislatively specified steps which then entitle the employer to reduce the employees’ payments during the period of the protected industrial action: ss 470 and 471 of the Fair Work Act 2009 (Cth) (FW Act). [page 640] Where the protected industrial action is a partial work ban, Div 9 of Pt 3-3 of the FW Act implements a system whereby the payment that the employee receives for the duration of the industrial action is proportionally reduced. However, this only applies if the employer gives to each employee a written notice specifying that because of the partial work ban, the employee’s payments will be reduced, and specifies the amount of the reduction. The form of the notice must be in a legible form and in English: Fair Work Regulation 3.22. It must also specify various details including: 1. The date it is issued. 2. The industrial action being engaged in that constitutes the partial work ban. 3. A statement that it takes effect from the later of the start of the first day of the partial work ban, or the start of the first day after the date of the notice if the employee performs work on that day. 4. A statement that the notice ceases to have effect at the end of the day on which the partial work ban ceases. 5. A clear statement that the employee’s payments will be reduced and a specification of the amount of the reduction in payments for each day that the employee engages in the partial work ban together with an estimate of the time usually taken to perform the work that is the subject of the work ban (if the notice is issued pursuant to s 471(1)(c) of the FW Act), or a statement that the employee will not be entitled to any payment for a day in which the employee engages in the partial work ban (if the notice is issued pursuant to s 471(4) of the FW Act). (See Fair Work Regulation 3.23) The Fair Work Regulations also facilitate the issuing of such notices. In particular, Fair Work Regulation 3.24 sets out the manner by which notices may be issued regarding the reduction of employee’s payments for engaging in a partial work ban. Such notices may be issued as follows: 1. Personally to the employee. 2. By pre-paid post to the employee’s residential address or postal address nominated by the employee. 3. By email to the employee’s email address at work or another email address nominated by the employee. 4. By fax to the employee’s fax address at work or home, or another fax address nominated by the employee. The proportion by which an employee’s payments are reduced for engaging in the partial work ban is, at first instance, a matter for the employer, however it must be done according to the Fair Work Regulations specified above. Further, there is express legislative provision that enables the employer to reduce to zero the amount of payment to be made to an employee who engages in protected industrial action that is a partial work ban if the employer gives written notice that such partial work is not

accepted by the employer as the due performance of the employee’s duties: s 471(4). However, this limited degree of discretion by the employer as to the amount of the reduction in the employee’s pay is tempered by the employee or bargaining representative having the right to apply to the Fair Work Commission (the FW Commission) for an order varying the amount of the reduction. In such a case, the FW Commission will consider the reasonableness of the reduction in pay, having regard to the nature and extent of the partial work ban, and “fairness” in the overall circumstances. Pursuant to s 471(3) of the FW Act, there is guidance in the Fair Work Regulations as to the manner of an employer calculating the proportion of reducing an employee’s payments where they take part in a partial work ban (namely, Fair Work Regulation 3.21). There are 3 steps to be taken, as follows: Step 1 — Identify the work that the employee/s are failing or refusing to perform. [page 641] Step 2 — Estimate the usual time that the employee would spend performing the work during a day. Step 3 — Work out the time estimated in Step 2 as a percentage of the employee’s usual hours of work for a day. The appropriate proportionate reduction in payments to an employee engaging in a partial work ban is equivalent to the proportion of time that the work not being performed would otherwise be performed. As a simple matter of prudence, employers will need to bear in mind the supervisory jurisdiction of the FW Commission to vary the amount of the reduction in payments made to employees for engaging in protected partial work bans when considering the amount of the reductions to be imposed and making the estimates required by the Fair Work Regulations. It is also important to bear in mind that the guidance in the Fair Work Regulations does not restrict the discretion granted to FWA in s 472 of the FW Act. In TWU v Department of Territory and Municipal Services (ACTION) [2010] FWA 4558 the union argued that a partial work ban of refusing to collect cash fares would only comprise 5 or 6 minutes of the entire work day of bus drivers, being the time it was said it actually took drivers to physically collect the cash fares. This was rejected by the FWA in favour of an approach of the “extent” of the work bans, and the percentage of reduction of payments to employees was instead calculated as a percentage that fare collection contributes to the overall cost of the bus service. The breadth and general nature of the matters which the FW Commission must consider in this regard make clear that the process of determining the reasonableness of the reduction in pay is neither formulaic nor mathematical. In its terms, s 472(3)(b) makes it mandatory for the FW Commission to consider every possible circumstance, although it may be assumed that this direction was intended to exclude irrelevant considerations. In the process of exercising judgment as to the weight to be placed on various considerations relevant to the exercise of the discretion it is inevitable that reasonable minds may differ. In practice, the determination of the reasonableness of the reduction in pay for protected partial work bans is a matter for the broad discretion of the FW Commission member determining each individual case (see TWU v Department of Territory and Municipal Services (ACTION) [2010] FWA 4558 at [48]). However, this discretion must, of course, be exercised properly. Significantly, once an application has been made to the FW Commission by an employee or bargaining representative for a variation of the reduction in pay for a protected partial work ban, the FW Commission’s discretion to vary the proportion of the reduction is not confined to reducing the reduction in pay. In the overall circumstances of the case, the FW Commission may consider that the reduction by the employer was too small, and order that there be an increased reduction of the employees’ pay. While the employer’s original assessment of the size of the reduction to be made is a

matter which will obviously be given significant weight, the FW Commission is obliged to reach its own independent assessment of the fairness and reasonableness of the size of the reduction. The discretionary nature of the power given to the FW Commission to vary the proportion by which an employee’s payments are reduced means that the FW Commission is not obliged to make any order at all, even if it concludes that the reduction already made by the employer is too large or small. This discretion must be properly exercised. For example, even though the FW Commission may take the view that the reduction in pay implemented by the employer was excessive, it may exercise its discretion to make no order to vary the proportion of the reduction in circumstances where the protected work ban was for only a short duration, the amount of money involved was relatively small, and an enterprise agreement was subsequently made that provided for an increase in the employees’ pay. [Com 60,160] Consequences of industrial action being protected The primary benefit of protected industrial action is that it immunises the party taking the industrial action from almost all legal actions that the party would otherwise be exposed to, whether contractual, equitable, or statutory. [page 642] However, wide as this immunity is, it has some limits. Accordingly, there are some limited exceptions to the statutory immunity afforded to protected industrial action: s 415. The immunity from legal actions does not extend to the following four categories of conduct: (1) conduct which involves, or is likely to involve, personal injury; (2) conduct which involves, or is likely to involve, wilful or reckless destruction or damage to property; (3) conduct which involves, or is likely to involve the unlawful taking, keeping or use of property; and (4) defamatory conduct. In addition, employers have the benefit of s 416, which allows them to not pay employees against whom they are taking industrial action in the form of employer response action to employee claim action. This complements the other provisions prohibiting payments from being made to employees taking industrial action (whether protected or unprotected).

SUSPENSION OR TERMINATION OF PROTECTED INDUSTRIAL ACTION [Com 60,170] The Fair Work Commission must suspend or terminate protected industrial action in certain circumstances The scheme of Pt 3-3 of the Fair Work Act 2009 (Cth) (FW Act) dealing with protected industrial action provides a means by which both employees and employers may cause pecuniary damage to each other without fear of claims for damages, and recognises this as a legitimate tool when parties engage in bargaining for an enterprise agreement. However, this scheme must be seen within the overall context of the object of the FW Act set out in s 3, which includes, inter alia, to “… provide a balanced framework for cooperative and productive workplace relations that promotes economic prosperity …” by workplace laws that “… promote productivity and economic growth for Australia’s future economic prosperity …”.

The object is not achieved if legislatively authorised and protected industrial action is permitted to destroy employers’ businesses or employees’ ability to financially survive, risks people’s health or safety, or adversely affects the wider economy. These matters may be contrasted with the difficulty and inconvenience that inevitably flows from industrial action. In circumstances where protected industrial action causes or would cause a high degree of detriment, there is a broader public interest at stake, for which a means of protection is provided through the Fair Work Commission (the FW Commission). Division 6 of Pt 3-3 of the FW Act provides certain bases upon which the FW Commission is mandatorily required to suspend or terminate protected industrial action. These bases may be summarised as follows: (1) where the protected industrial action has been protracted and is causing or imminently about to cause “significant economic harm” to either the employer or the employees who will be covered by the enterprise agreement, and there is little likelihood of an agreement being quickly reached; (2) where the protected industrial action threatens to endanger people; (3) where the protected industrial action threatens to cause significant damage to the Australian economy, or an important part of it; (4) where the FW Commission is otherwise satisfied that a suspension is otherwise appropriate in all of the relevant circumstances (mandatorily taking into account the benefit of doing so in resolving issues in dispute, the duration of the protected industrial action, the public interest, the objects of the FW Act, and any other relevant matter); (5) where the protected industrial action is “adversely affecting” either the employer or the employees who will be covered by the enterprise agreement, and is causing threatening to cause “significant harm” to a third party, and the FW Commission is generally satisfied that it is appropriate to suspend the protected industrial action. The various considerations for each of the bases for the termination or suspension of protected industrial action all have a strong public interest theme underpinning them. [page 643] National Tertiary Education Industry Union v University of South Australia (2010) 194 IR 30; [2010] FWAFB 1014, in which the Full Bench of FWA found that the exercise of the FWA’s discretion to suspend or terminate protected industrial action under s 424 of the FWA was not intended to “be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining” (at [8]). It has also been found that this principle also applies to an application for the suspension of protected industrial action for a cooling off period under s 425 of the FW Act (see CEPU v Carter Holt Harvey Wood Products Australia Pty Ltd [2011] FWA 101). In considering what the relevant “welfare” is, the FW Commission has followed the previous reasoning of the Australian Industrial Relations Decision in State of Victoria v HSUA Print L9810, and will consider that expression in general terms and how it applies on a case by case basis (see, Ambulance Victoria v LHMU (2009) 187 IR 119; [2009] FWA 44, approved and applied in University of South Australia v National Tertiary Education Industry Union [2009] FWA 1535 and upheld on appeal in National Tertiary Education Industry Union v University of South Australia (2010) 194 IR 30; [2010] FWAFB 1014). When considering the public interest, it must at all times be borne in mind that the FW Act authorises the taking of industrial action, and largely immunises the parties who do so from the legal

consequences that would otherwise flow from such industrial action. Thus the FW Act recognises a public interest in allowing parties to bargain, even if it means doing so in a way that is likely to cause some degree of harm to employers, employees, third parties, and the broader economy. The underlying principle appears to be a balancing of this public interest against other public interests. Where the harm caused, or threatened to be caused, by the protected industrial action is, or is going to, have particularly acute consequences to individual persons or businesses, or be of a particularly widespread nature, then this weighs heavily in the balancing process, and raises the need for the harmful effects of such industrial action to be ameliorated by way of suspending or ending such action. The “threat” is not a term of art, and will be considered according to its common meaning as constituting the likelihood of injury or a source of harm or danger (see Ambulance Victoria v LHMU (2009) 187 IR 119; [2009] FWA 44, approved and applied in University of South Australia v National Tertiary Education Industry Union [2009] FWA 1535 and upheld on appeal in National Tertiary Education Industry Union v University of South Australia (2010) 194 IR 30; [2010] FWAFB 1014). In short, the higher the degree of harmful effects of the protected industrial action, the more the balance of the overall public interest weighs in favour of terminating or suspending the protection legislatively afforded to such industrial action. This was demonstrated in University of South Australia v National Tertiary Education Industry Union [2009] FWA 1535 in which Senior Deputy President O’Callaghan upheld an application by the employer pursuant to s 424 of the FW Act and terminated protected industrial action by the NTEU on the basis that bans on the recording and transmission of assessment and examination results would jeopardise a certain section of students with respect to matters such as further study, obtaining employment, and obtaining student visas. By contract the employer’s attempted reliance upon an argument that students not knowing the outcome of their examinations, and resultant alleged “stress”, was a sufficient ground to make the orders sought was rejected. This decision was upheld on appeal in National Tertiary Education Industry Union v University of South Australia (2010) 194 IR 30; [2010] FWAFB 1014 and approved in Tyco Australia Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Qld Branch) (2011) 208 IR 243; [2011] FWAFB 1598; BC201170128. The legislation contemplates, and permits, “harm” to be caused by protected industrial action. What may constitute “significant economic harm” sufficient to obtain an order for the suspension or termination of protected industrial action will of vary from case to case. However, in Construction, Forestry, Mining and Energy Union v Woodside Burrup Pty Ltd (2010) 198 IR 360; [page 644] [2010] FWAFB 6021 the Full Bench undertook a detailed analysis of the historical and legislative roots of the relevant provisions now found in the FW Act, and aptly encapsulated the conceptual basis upon which such determinations will be based in stating that (at [44]): When regard is had to context of the FW Act as a whole and to the explanatory memorandum, the expression “significant harm” in s 426(3) should be construed as having a meaning that refers to harm that has an importance or is of such consequence that it is harm above and beyond the sort of loss, inconvenience or delay that is commonly a consequence of industrial action. In this context, the word “significant” indicates harm that is exceptional in its character or magnitude when viewed against the sort of harm that might ordinarily be expected to flow from industrial action in a similar context. In this way, an order will only be available under s 426 in very rare cases, as contemplated by the Explanatory Memorandum. It follows that it will not, of itself, be sufficient that the harm, viewed in isolation, can be characterised as “substantial”. Substantial harm to third parties is a

common consequence of effective industrial action. Unless the harm is out of the ordinary then suspension would contrary to the legislative intention that suspension should not be able to used generally to prevent legitimate protected industrial action in the course of bargaining. In assessing whether there is “significant harm” context is also important. A particular quantum of financial loss may constitute “significant harm” in one context but not in another. Significantly, although the FW Act no longer recognised the concept of bargaining periods, an order under s 424 of the FW Act terminated or suspended the effect of orders granting protected industrial action generally, and not merely the particular industrial action the subject of the application (see Ambulance Victoria v LHMU (2009) 187 IR 119; [2009] FWA 44, approved and applied in University of South Australia v National Tertiary Education Industry Union [2009] FWA 1535 and upheld on appeal in National Tertiary Education Industry Union v University of South Australia (2010) 194 IR 30; [2010] FWAFB 1014). In Ambulance Victoria v LHMU (2009) 187 IR 119; [2009] FWA 44 Kaufman SDP considered the common meanings to be attached to “threaten”. I adopt this position such that a threat constitutes the likelihood of injury or a source of harm or danger. [Com 60,175] The Fair Work Commission may also make bargaining orders during industrial bargaining As discussed [6-4330]–[6-4370], the FW Commission may also make bargaining orders to ensure that the good faith bargaining requirements are met, including “requirements imposed upon those not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;” pursuant to s 231(1)(d) of the FW Act. [Com 60,180] Minister may issue declaration terminating protected industrial action In addition to the duties imposed on the FW Commission either to terminate or suspend protected industrial action in certain circumstances, the Minister for Workplace Relations may issue a written declaration that certain protected industrial action is terminated if the Minister is satisfied that actual or threatened, impending or probable industrial action is threatening to endanger people, or cause significant damage to the Australian economy, or an important part of it. The Minister for Workplace Relations may also issue directions with respect to the taking or refraining from taking of certain actions in order to remove the relevant threat. If such directions are not complied with, civil remedies can be sought in the Federal Court of Australia by an inspector of the Office of the Fair Work Ombudsman, and a civil penalty imposed of up to $6,600, as well as any further orders considered appropriate by the court to secure compliance with the directions. [page 645] [Com 60,185] Disputes arising under industrial instruments Significantly, Div 2 of Pt 6-2 of the FW Act provides that various industrial instruments can authorise a third party to adjudicate disputes. This is typically the FW Commission, however other third parties may be authorised (see s 740 of the FW Act). The industrial instruments are: modern awards; enterprise agreements; employment contracts or other written instruments, where the terms relate to “… matters in relation to the National Employment Standards or a safety net contractual entitlement”; and A determination under the Public Services Act 1999 (Cth). The range of disputes that can be determined by the FW Commission (or other adjudicating party) is

as wide as the parties to the industrial instrument under which the dispute falls wish it to be, however the dispute must fall within the realm of the matters of employment which are regulated by that industrial instrument, which in turn must be permitted to be contained within that industrial instrument under the FW Act. The FW Commission cannot deal with an industrial dispute, whether by arbitration or any other means, merely because the parties wish it to do so: it must have an express authorisation conferred upon it pursuant to the FW Act (see s 595 of the FW Act). It follows that the FW Commission can act only within the limits of, and pursuant to the procedure contained in, the empowering instrument — both in terms of subject matter and authorising process. This was encapsulated by Deputy President Booth in Grabovsky v United Protestant Association of NSW Ltd [2014] FWC 5634, who, after reviewing the key authorities, held that “in exercising the power of arbitration s 739 of the Act empowers the Commission to act only in accordance with the terms of the procedure” granting that authorisation. An appeal of that decision was dismissed: see Grabovsky v United Protestant Association of NSW Ltd [2014] FWCFB 7533. Usefully, a model term for dealing with disputes in enterprise agreements is mandated by s 737 of the FW Act, and is contained in Sch 6.1 of the FW Regulations. Relevantly, the model dispute resolution term has a staged system of dispute resolution which requires, in the first instance, that there must first be discussions at a workplace level to try and resolve the dispute (cl 3). It is only if such discussions have first taken place, and not resolved the dispute, that a party may then refer the matter to the FW Commission (cl 4): see Grabovsky, and the emphasis given to the public interest in holding parties to the terms of their agreements and the dispute resolution processes by agreed by them referred to in the earlier case of Boral Cement Ltd v Australian Workers’ Union [2012] FWAFB 350. Clause 5 then requires the FW Commission to engage in a further staged process of initially applying a facilitative dispute resolution process or processes such as mediation/conciliation/expressing an opinion/making a recommendation (cl 5(a)), before it is empowered to arbitrate the dispute for a determinative resolution (cl 5(b)): see Grabovsky and Boral Cement Ltd v AWU. However parties can fashion their own dispute resolution clauses, and although it is usual to do so it is not mandatory to nominate the FW Commission as the body by which disputes about the enterprise agreement may ultimately be determined. Section 186(6) of the FW Act has a single criterion of such other person as being someone “who is independent of the employers, employees or employee organisations covered by the agreement”, As such, the parties may be creative and specify a dispute resolution process which suits their needs without recourse to any formal legal proceedings at all, so long as it is ultimately binding and therefore determinative of the dispute. This is commonly seen in non-industrial contexts, such as dispute resolution clauses in commercial contracts, and there is no reason why such alternative processes could not be utilised by parties to enterprise agreements in suitable circumstances (for example, a process leading to a binding expert determination). [page 646] Nonetheless, determination of disputes about the terms of enterprise agreements is predominantly performed by the FW Commission, as it (and its predecessors) comprise a longstanding and highly regarded independent arbiter with specialist expertise in the resolution of industrial disputes. As such, the issue of dispute resolution by the FW Commission is further dealt with further in [Com 20,090], [Com 75,040] and [Com 75,050]. *Editor’s Note: Commentary to [60,040] prepared by Erik Young, Barrister. The remainder of the

commentary to [60,040] prepared by Ian lathem BA (Hons) LLB (ANU), Barrister. *Editor’s Note: Commentary to [60,070] prepared by Erik Young, Barrister. The remainder of the commentary to [60,070] prepared by Ian lathem BA (Hons) LLB (ANU), Barrister.

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DIVISION 1 — INTRODUCTION

[7-5280]

Guide to this Part

406 This Part deals mainly with industrial action by national system employees and national system employers. Division 2 sets out when industrial action for a proposed enterprise agreement 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. Division 3 provides that industrial action must not be organised or engaged in by certain persons before the nominal expiry date of an enterprise agreement or workplace determination has passed. Division 4 provides for the FWC to make orders, in certain circumstances, that industrial action stop, not occur or not be organised for a specified period. Division 5 deals with injunctions against industrial action if a bargaining representative of an employee who will be covered by a proposed enterprise agreement is engaging in pattern bargaining. Division 6 provides for the FWC to make orders suspending or terminating protected industrial action for a proposed enterprise agreement in certain circumstances. If the FWC makes such an order, the action will no longer be protected industrial action. Division 7 provides for the Minister to make a declaration terminating protected industrial action for a proposed enterprise agreement in certain circumstances. If the Minister makes such an order, the action will no longer be protected industrial action. Division 8 establishes the process that will allow employees to choose, by means of a fair and democratic secret ballot, whether to authorise protected industrial action for a proposed enterprise agreement. Division 9 sets out restrictions about payments to employees relating to periods of industrial action. Division 10 deals with the making of applications under this Part. [Editor’s note: Section 406 of this legislation is reproduced in this format in line with the official version.] [s 406 am Act 174 of 2012 s 3 and Sch 9 item 419, opn 1 Jan 2013]

[7-5300]

Meanings of employee and employer

407 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). [s 407 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

[page 647] COMMENTARY TO SECTION 407*

Derivation …. National system employee — s 407 …. National system employer — s 407 …. TCF contract outworkers — s 407 Note ….

[7-5300.5] [7-5300.10] [7-5300.15] [7-5300.20]

[7-5300.5] Derivation The section is new. [7-5300.10] National system employee — s 407 See ss 12, 13, 30C, 789BB(a). [7-5300.15] National system employer — s 407 See ss 12, 14, 30D, 789BB(b). [7-5300.20] TCF contract outworkers — s 407 Note See s 789BB(2). *Editor’s note: Commentary to s 407 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

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DIVISION 2 — PROTECTED INDUSTRIAL ACTION Subdivision A — What is protected industrial action

[7-5490]

Protected industrial action

408 Industrial action is protected industrial action for a proposed enterprise agreement if it is one of the following: (a) employee claim action for the agreement (see section 409); (b) employee response action for the agreement (see section 410); (c) employer response action for the agreement (see section 411). COMMENTARY TO SECTION 408*

Derivation …. Employee claim action — s 408(a) ….

[7-5490.01] [7-5490.05]

Employee response action — s 408(b) …. Employer response action — s 408(c) …. Enterprise agreement — s 408 …. Industrial action — s 408 …. Outline of section ….

[7-5490.10] [7-5490.15] [7-5490.20] [7-5490.25] [7-5490.30]

[7-5490.01] Derivation The section is new. [7-5490.05] Employee claim action — s 408(a) See s 409. [7-5490.10] Employee response action — s 408(b) See s 410. [7-5490.15] Employer response action — s 408(c) See s 411. [7-5490.20] Enterprise agreement — s 408 See s 12. [7-5490.25] Industrial action — s 408 See s 19. [page 648] [7-5490.30] Outline of section The Explanatory Memorandum to the Fair Work Bill 2009 at paragraph 1639 states that: Clauses 408 to 410 set out the circumstances in which industrial action is protected. Clause 408 defines protected industrial action. *Editor’s note: Commentary to s 408 prepared by Ian Latham BA (Hons)/LLB (ANU), Barrister.

____________________

[7-5510]

Employee claim action

409 Employee claim action (1) Employee claim action for a proposed enterprise agreement is industrial action that: (a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and (b) is organised or engaged in, against an employer that will be covered by the agreement, by: (i) a bargaining representative of an employee who will be

covered by the agreement; or (ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and (c) meets the common requirements set out in Subdivision B; and (d) meets the additional requirements set out in this section. Protected action ballot is necessary (2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part). Unlawful terms (3) The industrial action must not be in support of, or to advance, claims to include unlawful terms in the agreement. Industrial action must not be part of pattern bargaining (4) A bargaining representative of an employee who will be covered by the agreement must not be engaging in pattern bargaining in relation to the agreement. Industrial action must not relate to a demarcation dispute etc (5) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWC order that relates to a significant extent to a demarcation dispute. [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 420, opn 1 Jan 2013]

Notice requirements after suspension order must be met (6) If section 429 (which deals with employee claim action without a further protected action ballot after a period of suspension) applies in relation to the industrial action, the notice requirements of section 430 must be met. Officer of an employee organisation (7) If an employee organisation is a bargaining representative of an employee who will be covered by the agreement, the reference to a bargaining representative of the employee in subparagraph (1)(b)(i) of this

section includes a reference to an officer of the organisation. [page 649]

[7-5530]

Employee response action

410 Employee response action (1) Employee response action for a proposed enterprise agreement means industrial action that: (a) is organised or engaged in as a response to industrial action by an employer; and (b) is organised or engaged in, against an employer that will be covered by the agreement, by: (i) a bargaining representative of an employee who will be covered by the agreement; or (ii) an employee who will be covered by the agreement; and (c) meets the common requirements set out in Subdivision B; and (d) meets the additional requirements set out in this section. Industrial action must not relate to a demarcation dispute etc (2) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWC order that relates to a significant extent to a demarcation dispute. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 420, opn 1 Jan 2013]

Officer of an employee organisation (3) If an employee organisation is a bargaining representative of an employee who will be covered by the agreement, the reference to a bargaining representative of the employee in subparagraph (1)(b)(i) includes a reference to an officer of the organisation.

[7-5550]

Employer response action

411 Employer response action for a proposed enterprise agreement means industrial action that: (a) is organised or engaged in as a response to industrial action by: (i) a bargaining representative of an employee who will be covered by the agreement; or (ii) an employee who will be covered by the agreement; and (b) is organised or engaged in by an employer that will be covered by the agreement against one or more employees that will be covered by the agreement; and (c) meets the common requirements set out in Subdivision B. (d) [repealed] [s 411 am Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009]

[7-5570]

Pattern bargaining

412 Pattern bargaining (1) A course of conduct by a person is pattern bargaining if: (a) the person is a bargaining representative for 2 or more proposed enterprise agreements; and (b) the course of conduct involves seeking common terms to be included in 2 or more of the agreements; and (c) the course of conduct relates to 2 or more employers. [page 650] Exception — genuinely trying to reach an agreement (2) The course of conduct, to the extent that it relates to a particular employer, is not pattern bargaining if the bargaining representative is genuinely trying to reach an agreement with that employer. (3) For the purposes of subsection (2), the factors relevant to working out whether a bargaining representative is genuinely trying to reach an agreement with a particular employer, include the following:

whether the bargaining representative is demonstrating a (a) preparedness to bargain for the agreement taking into account the individual circumstances of that employer, including in relation to the nominal expiry date of the agreement; (b) whether the bargaining representative is bargaining in a manner consistent with the terms of the agreement being determined as far as possible by agreement between that employer and its employees; (c) whether the bargaining representative is meeting the good faith bargaining requirements. (4) If a person seeks to rely on subsection (2), the person has the burden of proving that the subsection applies. Genuinely trying to reach an agreement (5) This section does not affect, and is not affected by, the meaning of the expression “genuinely trying to reach an agreement”, or any variant of the expression, as used elsewhere in this Act. COMMENTARY TO SECTION 412*

Derivation …. History …. Bargaining representative — s 412(1)(a), (2), (3)(a), (b), (c) …. Common terms — s 412(1)(b) …. Course of conduct — s 412(1), (b), (c), (2) …. Employee — s 412(3)(b) …. Employer — s 412(1)(c), (2), (3)(a), (b) …. Enterprise Agreement — s 412(1)(a) …. Genuinely trying to reach an agreement — s 412(2), (3), (5) …. Good faith bargaining requirements — s 412(3)(c) …. Nominal expiry date — s 412(3)(a) …. This Act — s 412(5) …. Outline of section ….

[7-5570.01] [7-5570.05] [7-5570.10] [7-5570.15] [7-5570.20] [7-5570.25] [7-5570.30] [7-5570.35] [7-5570.40] [7-5570.45] [7-5570.50] [7-5570.55] [7-5570.60]

[7-5570.01] Derivation Section 412 of the Workplace Relations Act 1996. [7-5570.05] History Pattern bargaining was previously dealt with under the provisions of s 170MW of

the pre reform Act: see earlier commentary at [s 170MW.90]. Those provisions provided that bargaining periods could be suspended or terminated if a negotiating party was not genuinely trying to reach an agreement. A definition did not exist under those provisions and the phrase was described as lacking precision and having a partisan pejorative context: Australian Industry Group; Amcor Closure Systems and Others v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union — T1982 [2000] AIRC 421; Print T1982 at [46].

[page 651] [7-5570.10] Bargaining representative — s 412(1)(a), (2), (3)(a), (b), (c) See ss 12 and 176. [7-5570.15] Common terms — s 412(1)(b) “Common” means same or identical: Trinity Garden Aged Care v Australian Nursing Federation and Another, AIRC, Watson SDP, Acton SDP, Smith C, (2006) 155 IR 124; Print PR973718 at [21]–[22]. A claim for maintenance of award conditions cannot be construed to be a claim for common conditions: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Visy Industrial Plastics P/L, AIRC, Marsh SDP, 8 August 2006 [PR973594] at [60]. [7-5570.20] Course of conduct — s 412(1), (b), (c), (2) See [8-5780.10]. [7-5570.25] Employee — s 412(3)(b) See s 407. [7-5570.30] Employer — s 412(1)(c), (2), (3)(a), (b) See s 407. [7-5570.35] Enterprise Agreement — s 412(1)(a) See s 12. [7-5570.40] Genuinely trying to reach an agreement — s 412(2), (3), (5) The term “genuinely trying to reach an agreement” is given a particular or specialised meaning for the purpose of the definition of pattern bargaining: John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2010) 194 IR 239; [2010] FWAFB 526 at [38]. “Genuinely try” has an ordinary meaning of making a real, true and authentic attempt or effort to achieve or accomplish something. The effort or attempt must be an attempt or effort that is authentic or true: Liquor, Hospitality and Miscellaneous Union-Western Australian Branch v CSBP; CSBP Ltd v Liquor, Hospitality and Miscellaneous Union — [2007] AIRC 469; Print PR977308 at [64]. The test should be an objective one, inevitably with some elements of subjectivity at [77]. It is relevant to examine the following: The claims themselves in the context of industry practice and fancifulness; and The entire context of the negotiating history including: [59] evidence of an intention to conclude an agreement; whether every reasonable effort has been made to reach an agreement (including whether offers or claims have received serious consideration, and whether there has been any evidence of an all or none approach); whether any conduct has unreasonably inhibited the process of achieving agreement; and whether a party has conducted itself in a manner that has the predictable effect of destroying the decision making framework of bargaining. See Application by the Minister for Health and others for suspension or termination of a bargaining period, AIRC 1234, McCarthy DP, 8 December 2004, Print 954110 at [57].

The more the negotiation conduct can be categorised as evidence of a refusal to allow agreement other than on an all or none basis, the greater the likelihood that it should be found to fail the genuinely trying to reach an agreement test: Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] AIRC 421 at [45]. Where a negotiating party does not seriously consider a claim (and by implication an offer) that party may be at risk of being found to have not been genuinely trying to reach an agreement: Application by the Minister for Health and others for suspension or termination of a bargaining period, AIRC 1234, McCarthy DP, 8 December 2004, Print 954110 at [40]. Conduct during conciliation may be relevant despite the general policy that what occurs in conciliation should be without prejudice and confidential: Appeal by Australian Nursing Federation; Western Australian Branch against a decision of Deputy President McCarthy, AIRC 180, Giudice P, Kaufmann SDP, Blair C, 2 March 2005, Print 956130 at [6]. [page 652] Deferment of decision-making by an officer of an organisation on the basis that they need to seek the views of the membership is suggestive that the organisation is not genuinely trying to reach an agreement: Application by the Minister for Health and others for suspension or termination of a bargaining period, AIRC, McCarthy DP, 8 December 2004, Print 954110 at [113]. [7-5570.45] Good faith bargaining requirements — s 412(3)(c) See ss 12 and 228. [7-5570.50] Nominal expiry date — s 412(3)(a) See s 12. [7-5570.55] This Act — s 412(5) See s 12. [7-5570.60] Outline of section This section sets out a definition of pattern bargaining. That definition is important for the purposes of ss 419 and 422. * Editors’ note: Commentary to s 412 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

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Subdivision B — Common requirements for industrial action to be protected industrial action

[7-5710] Common requirements that apply for industrial action to be protected industrial action 413 Common requirements (1) This section sets out the common requirements for industrial action to be protected industrial action for a proposed enterprise agreement. Type of proposed enterprise agreement

(2) The industrial action must not relate to a proposed enterprise agreement that is a greenfields agreement or multi-enterprise agreement. Genuinely trying to reach an agreement (3) The following persons must be genuinely trying to reach an agreement: (a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement — the bargaining representative; (b) if the person organising or engaging in the industrial action is an employee who will be covered by the agreement — the bargaining representative of the employee. Notice requirements (4) The notice requirements set out in section 414 must have been met in relation to the industrial action. Compliance with orders (5) The following persons must not have contravened any orders that apply to them and that relate to, or relate to industrial action relating to, the agreement or a matter that arose during bargaining for the agreement: (a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement — the bargaining representative; (b) if the person organising or engaging in the industrial action is an employee who will be covered by the agreement — the employee and the bargaining representative of the employee. [page 653] No industrial action before an enterprise agreement etc passes its nominal expiry date (6) The person organising or engaging in the industrial action must not contravene section 417 (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.) by organising or engaging in the

industrial action. No suspension or termination order is in operation etc (7) None of the following must be in operation: (a) an order under Division 6 of this Part suspending or terminating industrial action in relation to the agreement; (b) a Ministerial declaration under subsection 431(1) terminating industrial action in relation to the agreement; (c) a serious breach declaration in relation to the agreement.

[7-5730]

Notice requirements for industrial action

414 Notice requirements — employee claim action (1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee. (2) The period of notice must be at least: (a) 3 working days; or (b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph — that period of notice. Notice of employee claim action not to be given until ballot results declared (3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared. Notice requirements — employee response action (4) Before a person engages in employee response action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

Notice requirements — employer response action (5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must: (a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and (b) take all reasonable steps to notify the employees who will be covered by the agreement of the action. Notice requirements — content (6) A notice given under this section must specify the nature of the action and the day on which it will start. [page 654]

Subdivision C — Significance of industrial action being protected industrial action

[7-5870]

Immunity provision

415 (1) No action lies under any law (whether written or unwritten) in force in a State or Territory in relation to any industrial action that is protected industrial action unless the industrial action has involved or is likely to involve: (a) personal injury; or (b) wilful or reckless destruction of, or damage to, property; or (c) the unlawful taking, keeping or use of property. (2) However, subsection (1) does not prevent an action for defamation being brought in relation to anything that occurred in the course of industrial action.

[7-5890] Employer response action — employer may refuse to make payments to employees

416 If an employer engages in employer response action against employees, the employer may refuse to make payments to the employees in relation to the period of the action. Note: If an employee engages in protected industrial action against his or her employer, the employer must not make a payment to an employee in relation to certain periods of action (see Subdivision A of Division 9 of this Part).

[7-5910] Employer response action does not affect continuity of employment 416A Employer response action for a proposed enterprise agreement does not affect the continuity of employment of the employees who will be covered by the agreement, for such purposes as are prescribed by the regulations. [s 416A insrt Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009]

DIVISION 3 — NO INDUSTRIAL ACTION BEFORE NOMINAL EXPIRY DATE OF ENTERPRISE AGREEMENT ETC

[7-6100] Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc 417 No industrial action (1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on which: (a) an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or (b) a workplace determination comes into operation until its nominal expiry date has passed; whether or not the industrial action relates to a matter dealt with in the agreement or determination. Note: This subsection is a civil remedy provision (see Part 4-1). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 421, opn 1 Jan 2013]

[page 655] (2) The persons are: (a) an employer, employee, or employee organisation, who is covered by the agreement or determination; or (b) an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity. Injunctions and other orders (3) If a person contravenes subsection (1), the Federal Court or Federal Circuit Court may do either or both of the following: (a) grant an injunction under this subsection; (b) make any other order under subsection 545(1); that the court considers necessary to stop, or remedy the effects of, the contravention. [subs (3) am Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013]

(4) The court may grant an injunction under subsection (3) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2). (5) Despite subsection 545(4), the court may make any other order under subsection 545(1) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2). Note: Section 539 deals with applications for orders in relation to contraventions of civil remedy provisions. COMMENTARY TO SECTION 417*

Derivation …. Acting in that capacity — s 417(2)(b) …. Contravention — s 417(3), (5) Note …. Employee — s 417(2)(a) …. Employer — s 417(2)(a) …. Employee organisation — s 417(2)(a) …. Engage in industrial action ….

[7-6100.01] [7-6100.05] [7-6100.10] [7-6100.15] [7-6100.20] [7-6100.25] [7-6100.30]

[7-6100.01] Derivation The section is derived from s 494 of the Workplace Relations Act 1996.

[7-6100.05] Acting in that capacity — s 417(2)(b) See [20-1870.10]. [7-6100.10] Contravention — s 417(3), (5) Note See [5-3420.10]. [7-6100.15] Employee — s 417(2)(a) See ss 12, 13 and 407. [7-6100.20] Employer — s 417(2)(a) See ss 12, 14 and 407. [7-6100.25] Employee organisation — s 417(2)(a) See s 12. [7-6100.30] Engage in industrial action [I]ndustrial action which may be the subject of a “stop, not occur or not be organised” order is necessarily industrial action engaged in by employees or employers, as the case may be. Thus, while a union can plainly be ordered not to organise industrial action, it is difficult to see how under s 418(1) it can itself be ordered to stop and not engage in industrial action which is engaged in by employees: Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd (2013) 237 IR 1; [2013] FWCFB 7736 at [44]. * Editors’ note: Commentary to s 417 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ [page 656]

DIVISION 4 — FWC ORDERS STOPPING ETC INDUSTRIAL ACTION [Div 4 heading am Act 174 of 2012 s 3 and Sch 9 item 422, opn 1 Jan 2013]

[7-6290] FWC must order that industrial action by employees or employers stop etc 418 (1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action: (a) is happening; or (b) is threatened, impending or probable; or (c) is being organised; the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

Note: For interim orders, see section 420. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 424, opn 1 Jan 2013]

(2) The FWC may make the order: (a) on its own initiative; or (b) on application by either of the following: (i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action; (ii) an organisation of which a person referred to in subparagraph (i) is a member. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 425, opn 1 Jan 2013]

(3) In making the order, the FWC does not have to specify the particular industrial action. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 426, opn 1 Jan 2013]

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action: (a) some or all of which has not been taken before the beginning of the stop period specified in the order; or (b) which has not ended before the beginning of that stop period; or (c) beyond that stop period; the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 427, opn 1 Jan 2013] [s 418 am Act 174 of 2012 s 3 and Sch 9 item 423, opn 1 Jan 2013] COMMENTARY TO SECTION 418*

Description of the industrial action in a notice is critical to whether the industrial action is protected industrial action ….

[7-6290.01]

[7-6290.01] Description of the industrial action in a notice is critical to whether the industrial action is protected industrial action In ASC Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) [2012] FWA 418, the employer sought orders prohibiting certain industrial action. The employee claim action notified of “An indefinite ban on the use of the

[page 657] bar-coding system for any other purpose than employee time collection”. However, the employer had arranged for other employees (not in the dispute) to perform certain functions to overcome the ban, and sought that the employees taking part in the ban provide certain information (ie input details for the bar coding system) to enable those other employees to do so. The union argued that the refusal to provide the bar coding system information was protected industrial action, and that the effect of the notice of intended protected industrial action was to enable the employer to understand and respond to the intended industrial action, and that a pedantic approach to the words used ought not to be taken. Commissioner Steel, applying the decision of the Full Bench of FWA in John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2010] FWAFB 526; (2010) 194 IR 239 at [19] held that the industrial action being taken by the employees did not match the description contained in the notice, and that therefore the industrial action being taken was unprotected industrial action. He specifically noted the comments of the Full Bench that ambiguous or unclear descriptions in such notices are undesirable, and that there may be consequences for any party relying upon a notice where it is ultimately found that the industrial action was not protected industrial action. * Editor’s note: Commentary to s 418 by Erik Young, Barrister at Law.

____________________

[7-6310] FWC must order that industrial action by non-national system employees or non-national system employers stop etc 419 Stop orders etc (1) If it appears to the FWC that industrial action by one or more nonnational system employees or non-national system employers: (a) is: (i) happening; or (ii) threatened, impending or probable; or (iii) being organised; and (b) will, or would, be likely to have the effect of causing substantial loss or damage to the business of a constitutional corporation; the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period specified in the order. Note: For interim orders, see section 420. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 429, opn 1 Jan 2013]

(2) The FWC may make the order: (a) on its own initiative; or (b) on application by either of the following: (i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action; (ii) an organisation of which a person referred to in subparagraph (i) is a member. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 430, opn 1 Jan 2013]

(3) In making the order, the FWC does not have to specify the particular industrial action. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 431, opn 1 Jan 2013] [s 419 am Act 174 of 2012 s 3 and Sch 9 item 428, opn 1 Jan 2013]

[page 658]

[7-6330]

Interim orders etc

420 Application must be determined within 2 days (1) As far as practicable, the FWC must determine an application for an order under section 418 or 419 within 2 days after the application is made. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 431, opn 1 Jan 2013]

Interim orders (2) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 431, opn 1 Jan 2013]

(3) However, the FWC must not make the interim order if the FWC is satisfied that it would be contrary to the public interest to do so. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 431, opn 1 Jan 2013]

(4) In making the interim order, the FWC does not have to specify the particular industrial action.

[subs (4) am Act 174 of 2012 s 3 and Sch 9 item 431, opn 1 Jan 2013]

(5) An interim order continues in operation until the application is determined.

[7-6350]

Contravening an order etc

421 Contravening orders (1) A person to whom an order under section 418, 419 or 420 applies must not contravene a term of the order. Note: This subsection is a civil remedy provision (see Part 4-1).

(2) However, a person is not required to comply with an order if: (a) the order is an order under section 418, or an order under section 420 that relates to an application for an order under section 418; and (b) the industrial action to which the order relates is, or would be, protected industrial action. Injunctions (3) The Federal Court or Federal Circuit Court may grant an injunction, under this subsection, on such terms as the court considers appropriate if: (a) a person referred to in column 2 of item 15 of the table in subsection 539(2) has applied for the injunction; and (b) the court is satisfied that another person to whom the order applies has contravened, or proposes to contravene, a term of the order. Note: Section 539 deals with applications for orders in relation to contraventions of civil remedy provisions. [subs (3) am Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013]

No other orders (4) Section 545 (which deals with orders that a court can make if a person has contravened etc. a civil remedy provision) does not apply to a contravention of a term of the order. [page 659]

DIVISION 5 — INJUNCTION AGAINST INDUSTRIAL ACTION IF PATTERN BARGAINING IS BEING ENGAGED IN

[7-6540] Injunction against industrial action if a bargaining representative is engaging in pattern bargaining 422 (1) The Federal Court or Federal Circuit Court may grant an injunction on such terms as the court considers appropriate if: (a) a person has applied for the injunction; and (b) the requirement set out in subsection (2) is met. [subs (1) am Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013]

(2) The court is satisfied that: (a) employee claim action for a proposed enterprise agreement is being engaged in, or is threatened, impending or probable; and (b) a bargaining representative of an employee who will be covered by the agreement is engaging in pattern bargaining in relation to the agreement.

DIVISION 6 — SUSPENSION OR TERMINATION OF PROTECTED INDUSTRIAL ACTION BY THE FWC [Div 6 heading am Act 174 of 2012 s 3 and Sch 9 item 432, opn 1 Jan 2013]

[7-6730] FWC may suspend or terminate protected industrial action — significant economic harm etc 423 Suspension or termination of protected industrial action (1) The FWC may make an order suspending or terminating protected industrial action for a proposed enterprise agreement that is being engaged in if the requirements set out in this section are met. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 434, opn 1 Jan 2013]

Requirement — significant economic harm (2) If the protected industrial action is employee claim action, the FWC must be satisfied that the action is causing, or is threatening to cause, significant economic harm to: (a) the employer, or any of the employers, that will be covered by the agreement; and (b) any of the employees who will be covered by the agreement. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 435, opn 1 Jan 2013]

(3) If the protected industrial action is: (a) employee response action; or (b) employer response action; the FWC must be satisfied that the action is causing, or is threatening to cause, significant economic harm to any of the employees who will be covered by the agreement. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 435, opn 1 Jan 2013]

[page 660] (4) For the purposes of subsections (2) and (3), the factors relevant to working out whether protected industrial action is causing, or is threatening to cause, significant economic harm to a person referred to in those subsections, include the following:

(a) the source, nature and degree of harm suffered or likely to be suffered; (b) the likelihood that the harm will continue to be caused or will be caused; (c) the capacity of the person to bear the harm; (d) the views of the person and the bargaining representatives for the agreement; (e) whether the bargaining representatives for the agreement have met the good faith bargaining requirements and have not contravened any bargaining orders in relation to the agreement; (f) if the FWC is considering terminating the protected industrial action: (i) whether the bargaining representatives for the agreement are genuinely unable to reach agreement on the terms that should be included in the agreement; and (ii) whether there is no reasonable prospect of agreement being reached; (g) the objective of promoting and facilitating bargaining for the agreement. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 435, opn 1 Jan 2013]

Requirement — harm is imminent (5) If the protected industrial action is threatening to cause significant economic harm as referred to in subsection (2) or (3), the FWC must be satisfied that the harm is imminent. [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 435, opn 1 Jan 2013]

Requirement — protracted action etc (6) The FWC must be satisfied that: (a) the protected industrial action has been engaged in for a protracted period of time; and (b) the dispute will not be resolved in the reasonably foreseeable future. [subs (6) am Act 174 of 2012 s 3 and Sch 9 item 436, opn 1 Jan 2013]

Order may be made on own initiative or on application (7) The FWC may make the order: (a) on its own initiative; or (b) on application by any of the following: (i) a bargaining representative for the agreement; (ii) the Minister; (iia) if the industrial action is being engaged in in a State that is a referring State as defined in section 30B or 30L — the Minister of the State who has responsibility for workplace relations matters in the State; (iib) if the industrial action is being engaged in in a Territory — the Minister of the Territory who has responsibility for workplace relations matters in the Territory; (iii) a person prescribed by the regulations. [subs (7) am Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010; Act 174 of 2012 s 3 and Sch 9 item 436, opn 1 Jan 2013] [s 423 am Act 174 of 2012 s 3 and Sch 9 item 433, opn 1 Jan 2013]

[page 661]

[7-6750] FWC must suspend or terminate protected industrial action — endangering life etc 424 Suspension or termination of protected industrial action (1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that: (a) is being engaged in; or (b) is threatened, impending or probable; if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten: (c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

(d) to cause significant damage to the Australian economy or an important part of it. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 438, 439, opn 1 Jan 2013]

(2) The FWC may make the order: (a) on its own initiative; or (b) on application by any of the following: (i) a bargaining representative for the agreement; (ii) the Minister; (iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L — the Minister of the State who has responsibility for workplace relations matters in the State; (iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory — the Minister of the Territory who has responsibility for workplace relations matters in the Territory; (iii) a person prescribed by the regulations. [subs (2) am Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010; Act 174 of 2012 s 3 and Sch 9 item 440, opn 1 Jan 2013]

Application must be determined within 5 days (3) If an application for an order under this section is made, the FWC must, as far as practicable, determine the application within 5 days after it is made. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 441, opn 1 Jan 2013]

Interim orders (4) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 442, opn 1 Jan 2013]

(5) An interim order continues in operation until the application is determined. [s 424 am Act 174 of 2012 s 3 and Sch 9 item 437, opn 1 Jan 2013]

[7-6770] FWC must suspend protected industrial action — cooling off 425 (1) The FWC must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the FWC is satisfied that the [page 662] suspension is appropriate taking into account the following matters: (a) whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue; (b) the duration of the protected industrial action; (c) whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act; (d) any other matters that the FWC considers relevant. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 444, 445, opn 1 Jan 2013]

(2) The FWC may make the order only on application by: (a) a bargaining representative for the agreement; or (b) a person prescribed by the regulations. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 446, opn 1 Jan 2013] [s 425 am Act 174 of 2012 s 3 and Sch 9 item 443, opn 1 Jan 2013]

[7-6790] FWC must suspend protected industrial action — significant harm to a third party 426 Suspension of protected industrial action (1) The FWC must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the requirements set out in this section are met. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 448, opn 1 Jan 2013]

Requirement — adverse effect on employers or employees (2) The FWC must be satisfied that the protected industrial action is adversely affecting: (a) the employer, or any of the employers, that will be covered by the agreement; or (b) any of the employees who will be covered by the agreement. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 448, opn 1 Jan 2013]

Requirement — significant harm to a third party (3) The FWC must be satisfied that the protected industrial action is threatening to cause significant harm to any person other than: (a) a bargaining representative for the agreement; or (b) an employee who will be covered by the agreement. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 448, opn 1 Jan 2013]

(4) For the purposes of subsection (3), the FWC may take into account any matters it considers relevant including the extent to which the protected industrial action threatens to: (a) damage the ongoing viability of an enterprise carried on by the person; or (b) disrupt the supply of goods or services to an enterprise carried on by the person; or (c) reduce the person’s capacity to fulfil a contractual obligation; or (d) cause other economic loss to the person. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 449, opn 1 Jan 2013]

[page 663] Requirement — suspension is appropriate (5) The FWC must be satisfied that the suspension is appropriate taking into account the following: (a) whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act;

(b) any other matters that the FWC considers relevant. [subs (5) am Act 174 of 2012 s 3 and Sch 9 items 450, 451, opn 1 Jan 2013]

Order may only be made on application by certain persons (6) The FWC may make the order only on application by: (a) an organisation, person or body directly affected by the protected industrial action other than: (i) a bargaining representative for the agreement; or (ii) an employee who will be covered by the agreement; or (b) the Minister; or (ba) if the industrial action is being engaged in in a State that is a referring State as defined in section 30B or 30L — the Minister of the State who has responsibility for workplace relations matters in the State; or (bb) if the industrial action is being engaged in in a Territory — the Minister of the Territory who has responsibility for workplace relations matters in the Territory; or (c) a person prescribed by the regulations. [subs (6) am Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010; Act 174 of 2012 s 3 and Sch 9 item 452, opn 1 Jan 2013] [s 426 am Act 174 of 2012 s 3 and Sch 9 item 447, opn 1 Jan 2013]

[7-6810] FWC must specify the period of suspension 427 Application of this section (1) This section applies if the FWC is required or permitted by this Division to make an order suspending protected industrial action. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 454, opn 1 Jan 2013]

Suspension period (2) The FWC must specify, in the order, the period for which the protected industrial action is suspended. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 455, opn 1 Jan 2013]

Notice period (3) The FWC may specify, in the order, a longer period of notice of up to 7 working days for the purposes of paragraph 430(2)(b) if the FWC is satisfied that there are exceptional circumstances justifying that longer period of notice. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 456, 457, opn 1 Jan 2013] [s 427 am Act 174 of 2012 s 3 and Sch 9 item 453, opn 1 Jan 2013]

[7-6830]

Extension of a period of suspension

428 (1) The FWC may make an order extending the period of suspension specified in an order (the suspension order) suspending protected industrial action for a proposed enterprise agreement if: [page 664] (a) the person who applied, or a person who could have applied, for the suspension order, applies for the extension; and (b) the FWC has not previously made an order under this section in relation to the suspension order; and (c) the FWC is satisfied that the extension is appropriate taking into account any matters the FWC considers relevant including the matters specified in the provision under which the suspension order was made. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 458, 459, opn 1 Jan 2013]

(2) If the FWC is permitted to make an order under this section: (a) the FWC must specify, in the order, the period of extension; and (b) the FWC may specify, in the order, a longer period of notice of up to 7 working days for the purposes of paragraph 430(2)(b) if the FWC is satisfied that there are exceptional circumstances justifying that longer period of notice. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 460, opn 1 Jan 2013]

[7-6850]

Employee claim action without a further

protected action ballot after a period of suspension etc 429 Application of this section (1) This section applies in relation to employee claim action for a proposed enterprise agreement if: (a) an order suspending the employee claim action has been made; and (b) a protected action ballot authorised the employee claim action: (i) some or all of which had not been taken before the beginning of the period (the suspension period) of suspension specified in the order; or (ii) which had not ended before the beginning of the suspension period; or (iii) beyond the suspension period; and (c) the suspension period (including any extension under section 428) ends, or the order is revoked before the end of that period. Further protected action ballot not required to engage in employee claim action (2) A person may engage in the employee claim action without another protected action ballot. (3) For the purposes of working out when the employee claim action may be engaged in, the suspension period (including any dates authorised by the protected action ballot as dates on which employee claim action is to be engaged in) must be disregarded. (4) Nothing in this section authorises employee claim action that is different in type or duration from the employee claim action that was authorised by the protected action ballot.

[7-6870] Notice of employee claim action engaged in after a period of suspension etc 430 (1) Before a person engages in employee claim action for a proposed enterprise agreement as permitted by subsection 429(2), a bargaining

representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee. (2) The period of notice must be at least: [page 665] (a) 3 working days; or (b) if, under subsection 427(3) or paragraph 428(2)(b), the FWC specified, for the purposes of this paragraph, a longer period of notice in an order relating to the employee claim action — that period of notice. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 461, opn 1 Jan 2013]

(3) The notice must state the nature of the employee claim action and the day on which it will start.

DIVISION 7 — MINISTERIAL DECLARATIONS

[7-7060] Ministerial declaration terminating industrial action 431 (1) The Minister may make a declaration, in writing, terminating protected industrial action for a proposed enterprise agreement if the Minister is satisfied that: (a) the industrial action is being engaged in, or is threatened, impending or probable; and (b) the industrial action is threatening, or would threaten: (i) to endanger the life, the personal safety or health, or the welfare, of the population or a part of it; or (ii) to cause significant damage to the Australian economy or an important part of it. (2) The declaration comes into operation on the day that it is made. (3) A declaration under subsection (1) is not a legislative instrument.

[7-7080]

Informing people of declaration

432 (1) This section applies if the Minister makes a declaration under subsection 431(1). (2) The declaration must be published in the Gazette. (3) The Minister must inform the FWC of the making of the declaration. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 462, opn 1 Jan 2013]

(4) The Minister must, as soon as practicable, take all reasonable steps to ensure that the bargaining representatives for the proposed enterprise agreement concerned are made aware: (a) of the making of the declaration; and (b) of the effect of Part 2-5 (which deals with workplace determinations).

[7-7100] Ministerial directions to remove or reduce threat 433 (1) If a declaration under subsection 431(1) is in operation in relation to a proposed enterprise agreement, the Minister may give directions, in writing, requiring the following persons to take, or refrain from taking, specified actions: (a) specified bargaining representatives for the agreement; (b) specified employees who will be covered by the agreement. (2) The Minister may only give directions that the Minister is satisfied are reasonably directed to removing or reducing the threat referred to in paragraph 431(1)(b). (3) A direction under subsection (1) is not a legislative instrument. [page 666]

[7-7120]

Contravening a Ministerial direction

434 A person to whom a direction under subsection 433(1) applies must

not contravene the direction. Note: This section is a civil remedy provision (see Part 4-1).

DIVISION 8 — PROTECTED ACTION BALLOTS Subdivision A — Introduction

[7-7310]

Guide to this Division

435 This Division establishes the process that will allow employees to choose, by means of a fair and democratic secret ballot, whether to authorise protected industrial action for a proposed enterprise agreement. Subdivision B provides for the FWC to make a protected action ballot order, on application by a bargaining representative of an employee who will be covered by a proposed enterprise agreement, requiring a protected action ballot to be conducted. Subdivision C deals with the conduct of a protected action ballot. Subdivision D deals with the effect of a protected action ballot. Subdivision E deals with compliance matters in relation to a protected action ballot. Subdivision F deals with the liability for the costs of a protected action ballot. Subdivision G deals with records and other miscellaneous matters. [Editor’s note: Section 435 of this legislation is reproduced in this format in line with the official version.] [s 435 am Act 174 of 2012 s 3 and Sch 9 item 463, opn 1 Jan 2013]

[7-7330]

Object of this Division

436 The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement. Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

Subdivision B — Protected action ballot orders

[7-7470]

Application for a protected action ballot

order 437 Who may apply for a protected action ballot order (1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 464, opn 1 Jan 2013]

[page 667] (2) Subsection (1) does not apply if the proposed enterprise agreement is: (a) a greenfields agreement; or (b) a multi-enterprise agreement. (2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement. Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute). [subs (2A) insrt Act 156 of 2015 Sch 1 item 56, opn 27 Nov 2015]

Matters to be specified in application (3) The application must specify: (a) the group or groups of employees who are to be balloted; and (b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action. (4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person. Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)). [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 465, opn 1 Jan 2013]

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who: (a) will be covered by the proposed enterprise agreement; and (b) either: (i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or (ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order. [subs (5) am Act 174 of 2012 s 3 and Sch 7 item 13, opn 1 Jan 2013]

Documents to accompany application (6) The application must be accompanied by any documents and other information prescribed by the regulations.

[7-7490] made

Restriction on when application may be

438 (1) If one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be). (2) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action. [page 668]

[7-7510]

Joint applications

439 Without limiting section 609, the procedural rules may provide for the following: (a) how a provision of this Act that applies in relation to an applicant for a protected action ballot order is to apply in relation to joint

applicants for such an order; (b) the joinder, with the consent of each existing applicant, of one or more bargaining representatives to an application for a protected action ballot order; (c) the withdrawal of one or more applicants from a joint application for a protected action ballot order.

[7-7530]

Notice of application

440 Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and: (a) if the application specifies a person that the applicant wishes to be the protected action ballot agent — that person; or (b) otherwise — the Australian Electoral Commission.

[7-7550] Application to be determined within 2 days after it is made 441 (1) The FWC must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 466, opn 1 Jan 2013]

(2) However, the FWC must not determine the application unless it is satisfied that each applicant has complied with section 440. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 467, opn 1 Jan 2013]

[7-7570] together

Dealing with multiple applications

442 The FWC may deal with 2 or more applications for a protected action ballot order at the same time if: (a) the applications relate to industrial action by: (i) employees of the same employer; or (ii) employees at the same workplace; and

(b) the FWC is satisfied that dealing with the applications at the same time will not unreasonably delay the determination of any of the applications. [s 442 am Act 174 of 2012 s 3 and Sch 9 items 468, 469, opn 1 Jan 2013]

[7-7590] When the FWC must make a protected action ballot order 443 (1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if: (a) an application has been made under section 437; and (b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 471, 472, opn 1 Jan 2013]

[page 669] (2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 473, opn 1 Jan 2013]

(3) A protected action ballot order must specify the following: (a) the name of each applicant for the order; (b) the group or groups of employees who are to be balloted; (c) the date by which voting in the protected action ballot closes; (d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action. (3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable. [subs (3A) insrt Act 174 of 2012 s 3 and Sch 7 item 15, opn 1 Jan 2013]

(4) If the FWC decides that a person other than the Australian Electoral

Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify: (a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and (b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 474, opn 1 Jan 2013]

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days. Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee. [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 475, opn 1 Jan 2013] [s 443 am Act 174 of 2012 s 3 and Sch 9 item 470, opn 1 Jan 2013]

[7-7610] FWC may decide on ballot agent other than the Australian Electoral Commission and independent advisor 444 Alternative ballot agent (1) The FWC may decide that a person other than the Australian Electoral Commission is to be the protected action ballot agent for a protected action ballot only if: (a) the person is specified in the application for the protected action ballot order as the person the applicant wishes to be the protected action ballot agent; and (b) the FWC is satisfied that: (i) the person is a fit and proper person to conduct the ballot; and (ii) any other requirements prescribed by the regulations are met. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 477, 478, opn 1 Jan 2013]

(2) The regulations may prescribe:

conditions that a person must meet in order to satisfy the FWC that (a) the person is a fit and proper person to conduct a protected action ballot; and [page 670] (b) factors that the FWC must take into account in determining whether a person is a fit and proper person to conduct a protected action ballot. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 478, opn 1 Jan 2013]

Independent advisor (3) The FWC may decide that a person (the other person) is to be the independent advisor for a protected action ballot if: (a) the FWC has decided that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the ballot; and (b) the FWC considers it appropriate that there be an independent advisor for the ballot; and (c) the FWC is satisfied that: (i) the other person is sufficiently independent of each applicant for the protected action ballot order; and (ii) any other requirements prescribed by the regulations are met. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 479, 480, opn 1 Jan 2013] [s 444 am Act 174 of 2012 s 3 and Sch 9 item 476, opn 1 Jan 2013]

[7-7630]

Notice of protected action ballot order

445 As soon as practicable after making a protected action ballot order, the FWC must give a copy of the order to: (a) each applicant for the order; and (b) the employer of the employees who are to be balloted; and (c) the protected action ballot agent for the protected action ballot. [s 445 am Act 174 of 2012 s 3 and Sch 9 item 481, opn 1 Jan 2013]

[7-7650] Protected action ballot order may require 2 or more protected action ballots to be held at the same time 446 (1) This section applies if: (a) the FWC has made a protected action ballot order; and (b) the FWC proposes to make another protected action ballot order or orders; and (c) the orders would require a protected action ballot to be held in relation to industrial action by employees of the same employer or employees at the same workplace. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 482, opn 1 Jan 2013]

(2) The FWC may make, or vary, the protected action ballot orders so as to require the protected action ballots to be held at the same time if the FWC is satisfied: (a) that the level of disruption of the employer’s enterprise, or at the workplace, could be reduced if the ballots were held at the same time; and (b) that requiring the ballots to be held at the same time will not unreasonably delay either ballot. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 483, 484, opn 1 Jan 2013]

[7-7670] order

Variation of protected action ballot

447 (1) An applicant for a protected action ballot order may apply to the FWC to vary the order. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 485, opn 1 Jan 2013]

[page 671] (2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date

by which voting in the ballot closes. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 485, opn 1 Jan 2013]

(3) An application may be made under subsection (1) or (2): (a) at any time before the date by which voting in the protected action ballot closes; or (b) if the ballot has not been held before that date and the FWC consents — after that time. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 486, opn 1 Jan 2013]

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 487, opn 1 Jan 2013]

[7-7690] order

Revocation of protected action ballot

448 (1) An applicant for a protected action ballot order may apply to the FWC, at any time before voting in the protected action ballot closes, to revoke the order. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 488, opn 1 Jan 2013]

(2) If an application to revoke a protected action ballot order is made, the FWC must revoke the order. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 488, opn 1 Jan 2013]

Subdivision C — Conduct of protected action ballot

[7-7830] Protected action ballot to be conducted by Australian Electoral Commission or other specified ballot agent 449 (1) A protected action ballot must be conducted by: (a) if a person is specified in the protected action ballot order as the protected action ballot agent for the ballot — that person; or (b) otherwise — the Australian Electoral Commission. (2) The protected action ballot agent must conduct the protected action

ballot expeditiously and in accordance with the following: (a) the protected action ballot order; (b) the timetable for the ballot; (c) this Subdivision; (d) any directions given by the FWC; (e) any procedures prescribed by the regulations. [subs (2) am Act 174 of 2012 s 3 and Sch 7 item 16, opn 1 Jan 2013; Act 174 of 2012 s 3 and Sch 9 item 489, opn 1 Jan 2013]

[7-7850] Directions for conduct of protected action ballot 450 (1) This section applies if the protected action ballot agent is not the Australian Electoral Commission. (2) The FWC must give the protected action ballot agent written directions in relation to the following matters relating to the protected action ballot: (a) the development of a timetable; [page 672] (b) the voting method, or methods, to be used (which cannot be a method involving a show of hands); (c) the compilation of the roll of voters; (d) the addition of names to, or removal of names from, the roll of voters; (e) any other matter in relation to the conduct of the ballot that the FWC considers appropriate. Note 1: For the purposes of paragraph (2)(b), examples of voting methods are attendance voting, electronic voting and postal voting. Note 2: A protected action ballot agent must not contravene a term of a direction given by the FWC in relation to a protected action ballot (see subsection 463(2)). [subs (2) am Act 174 of 2012 s 3 and Sch 7 items 2, 3, 4, opn 1 Jan 2013; Act 174 of 2012 s 3 and Sch 9 items 490, 491 and 492, opn 1 Jan 2013]

(3) A direction given under subsection (2) may require the protected action

ballot agent to comply with a provision of this Subdivision (other than subsection 454(5)) in relation to a particular matter. Note: Subsection 454(5) provides for the Australian Electoral Commission to vary the roll of voters on its own initiative.

(4) To enable the roll of voters to be compiled, the FWC may direct, in writing, either or both of the following: (a) the employer of the employees who are to be balloted; (b) the applicant for the protected action ballot order; to give to the FWC or the protected action ballot agent: (c) the names of the employees included in the group or groups of employees specified in the protected action ballot order; and (d) any other information that it is reasonable for the FWC or the protected action ballot agent to require to assist in compiling the roll of voters. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 493, opn 1 Jan 2013]

[7-7870]

Timetable for protected action ballot

451 (1) This section applies if: (a) the protected action ballot agent is the Australian Electoral Commission; or (b) the FWC has directed the protected action ballot agent to comply with this section. Note: If this section does not apply, the protected action ballot agent must comply with directions given by the FWC in relation to the matters dealt with by this section (see section 450). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 494, opn 1 Jan 2013]

(2) As soon as practicable after receiving a copy of the protected action ballot order, the protected action ballot agent must, in consultation with each applicant for the order and the employer of the employees who are to be balloted: (a) develop a timetable for the conduct of the protected action ballot; and (b) determine the voting method, or methods, to be used for the ballot (which cannot be a method involving a show of hands). Note: For the purposes of paragraph (2)(b), examples of voting methods are attendance voting,

electronic voting and postal voting. [subs (2) am Act 174 of 2012 s 3 and Sch 7 items 5, 6, opn 1 Jan 2013]

[page 673]

[7-7890]

Compilation of roll of voters

452 (1) This section applies if: (a) the protected action ballot agent is the Australian Electoral Commission; or (b) the FWC has directed the protected action ballot agent to comply with this section. Note: If this section does not apply, the protected action ballot agent must comply with directions given by the FWC in relation to the matters dealt with by this section (see section 450). [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 495, 496, opn 1 Jan 2013]

(2) As soon as practicable after receiving a copy of the protected action ballot order, the protected action ballot agent must compile the roll of voters for the protected action ballot. (3) For the purpose of compiling the roll of voters, the protected action ballot agent may direct, in writing, the employer of the employees who are to be balloted, or the applicant for the order (or both), to give to the ballot agent: (a) the names of the employees included in the group or groups of employees specified in the protected action ballot order; and (b) any other information that it is reasonable for the protected action ballot agent to require to assist in compiling the roll of voters.

[7-7910] of voters

Who is eligible to be included on the roll

453 An employee is eligible to be included on the roll of voters for the protected action ballot only if: (a) the employee will be covered by the proposed enterprise agreement to which the ballot relates; and (b) the employee is included in a group of employees specified in the

order and either: (i) is represented by a bargaining representative who was an applicant for the order; or (ii) is the bargaining representative for himself or herself but is a member of an employee organisation that was an applicant for the order. [s 453 am Act 174 of 2012 s 3 and Sch 7 item 14, opn 1 Jan 2013]

[7-7930]

Variation of roll of voters

454 Variation by protected action ballot agent on request (1) Subsections (2) to (4) apply if: (a) the protected action ballot agent is the Australian Electoral Commission; or (b) the FWC has directed the protected action ballot agent to comply with those subsections. Note: If subsections (2) to (4) do not apply, the protected action ballot agent must comply with directions given by the FWC in relation to the matters dealt with by those subsections (see section 450). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 497, opn 1 Jan 2013]

[page 674] Adding names to the roll of voters (2) The protected action ballot agent must include an employee’s name on the roll of voters for the protected action ballot if: (a) the protected action ballot agent is requested to do so by: (i) an applicant for the protected action ballot order; or (ii) the employee; or (iii) the employee’s employer; and (b) the protected action ballot agent is satisfied that the employee is eligible to be included on the roll of voters; and (c) the request is made before the end of the working day before the

day on which voting in the ballot starts. Removing names from the roll of voters (3) The protected action ballot agent must remove an employee’s name from the roll of voters for the protected action ballot if: (a) the protected action ballot agent is requested to do so by: (i) an applicant for the protected action ballot order; or (ii) the employee; or (iii) the employee’s employer; and (b) the protected action ballot agent is satisfied that the employee is not eligible to be included on the roll of voters; and (c) the request is made before the end of the working day before the day on which voting in the ballot starts. (4) The protected action ballot agent must remove a person’s name from the roll of voters for the protected action ballot if: (a) the person (the former employee) is no longer employed by the employer (the former employer) of the employees who are to be balloted; and (b) the protected action ballot agent is requested to do so by: (i) an applicant for the protected action ballot order; or (ii) the former employee; or (iii) the former employer; and (c) the request is made before the end of the working day before the day on which voting in the ballot starts. Variation by Australian Electoral Commission on its own initiative (5) If the protected action ballot agent is the Australian Electoral Commission, the Commission may, on its own initiative and before the end of the working day before the day on which voting in the ballot starts: (a) include an employee’s name on the roll of voters for the protected action ballot if the Commission is satisfied that the employee is eligible to be included on the roll of voters; or (b) remove an employee’s name from the roll of voters for the

protected action ballot if the Commission is satisfied that the employee is not eligible to be included on the roll of voters; or (c) remove a person’s name from the roll of voters for the protected action ballot if the person is no longer employed by the employer of the employees who are to be balloted. [page 675]

[7-7950]

Protected action ballot papers

455 (1) The ballot paper for the protected action ballot must: (a) if a form is prescribed by the regulations — be in that form; and (b) include any information prescribed by the regulations. [subs (1) insrt Act 174 of 2012 s 3 and Sch 7 item 7, opn 1 Jan 2013]

(2) Ballot paper means: (a) for a voting method that is not an electronic voting method — a paper ballot paper; and (b) for an electronic voting method — an electronic ballot paper. [subs (2) am Act 174 of 2012 s 3 and Sch 7 item 8, opn 1 Jan 2013]

[7-7970]

Who may vote in protected action ballot

456 An employee may vote in the protected action ballot only if the employee’s name is on the roll of voters for the ballot.

[7-7990]

Results of protected action ballot

457 (1) As soon as practicable after voting in the protected action ballot closes, the protected action ballot agent must, in writing: (a) make a declaration of the results of the ballot; and (b) inform the following persons of the results: (i) each applicant for the protected action ballot order; (ii) the employer of the employees who were balloted;

(iii) the FWC. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 498, opn 1 Jan 2013]

(2) The FWC must publish the results of the protected action ballot, on its website or by any other means that the FWC considers appropriate, as soon as practicable after it is informed of them. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 499, 500, opn 1 Jan 2013]

[7-8010] Report about conduct of protected action ballot 458 Protected action ballot conducted by the Australian Electoral Commission (1) If: (a) the protected action ballot agent is the Australian Electoral Commission; and (b) the Commission: (i) receives any complaints about the conduct of the protected action ballot; or (ii) becomes aware of any irregularities in relation to the conduct of the ballot; the Commission must prepare a written report about the conduct of the ballot and give it to the FWC. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 501, opn 1 Jan 2013]

[page 676] Protected action ballot conducted by person other than the Australian Electoral Commission (2) If: (a) the protected action ballot agent is not the Australian Electoral Commission; and (b) the protected action ballot agent or the independent advisor (if any) for the protected action ballot:

(i) receives any complaints about the conduct of the ballot; or (ii) becomes aware of any irregularities in relation to the conduct of the ballot; the protected action ballot agent or the independent advisor (as the case may be) must prepare a report about the conduct of the ballot and give it to the FWC. Note: This subsection is a civil remedy provision (see Part 4-1). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 501, opn 1 Jan 2013]

(3) If: (a) the protected action ballot agent is not the Australian Electoral Commission; and (b) the FWC: (i) receives any complaints about the conduct of the protected action ballot; or (ii) becomes aware of any irregularities in relation to the conduct of the ballot; the FWC must, in writing, direct the protected action ballot agent or the independent advisor (if any) for the ballot (or both) to prepare a report about the conduct of the ballot and give it to the FWC. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 502, opn 1 Jan 2013]

(4) A report under subsection (2) or (3) must be prepared in accordance with the regulations. Meaning of conduct of a protected action ballot (5) Conduct of a protected action ballot includes, but is not limited to, the compilation of the roll of voters for the ballot. Meaning of irregularity in relation to the conduct of a protected action ballot (6) An irregularity, in relation to the conduct of a protected action ballot, includes, but is not limited to, an act or omission by means of which the full and free recording of votes by all employees entitled to vote in the ballot, and by no other persons is, or is attempted to be, prevented or hindered.

Subdivision D — Effect of protected action ballot

[7-8150] Circumstances in which industrial action is authorised by protected action ballot 459 (1) Industrial action by employees is authorised by a protected action ballot if: (a) the action was the subject of the ballot; and (b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and [page 677] (c) more than 50% of the valid votes were votes approving the action; and (d) the action commences: (i) during the 30-day period starting on the date of the declaration of the results of the ballot; or (ii) if the FWC has extended that period under subsection (3) — during the extended period. Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 503, opn 1 Jan 2013]

(2) If: (a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and (b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in; then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a). (3) The FWC may extend the 30-day period referred to in subparagraph (1)

(d)(i) by up to 30 days if: (a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and (b) the period has not previously been extended. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 504, 505, opn 1 Jan 2013]

[7-8170] Immunity for persons who act in good faith on protected action ballot results 460 (1) This section applies if: (a) the results of a protected action ballot, as declared by the protected action ballot agent for the ballot, purported to authorise particular industrial action; and (b) an organisation or a person, acting in good faith on the declared ballot results, organised or engaged in that industrial action; and (c) either: (i) it later becomes clear that that industrial action was not authorised by the ballot; or (ii) the decision to make the protected action ballot order is quashed or varied on appeal, or on review by the FWC, after the industrial action is organised or engaged in. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 506, opn 1 Jan 2013]

(2) No action lies against the organisation or person under any law (whether written or unwritten) in force in a State or a Territory in relation to the industrial action unless the action involved: (a) personal injury; or (b) intentional or reckless destruction of, or damage to, property; or (c) the unlawful taking, keeping or use of property. (3) This section does not prevent an action for defamation being brought in relation to anything that occurred in the course of the industrial action. [page 678]

[7-8190] Validity of protected action ballot etc not affected by technical breaches 461 A technical breach of a provision of this Division does not affect the validity of any of the following: (a) a protected action ballot order; (b) an order, direction or decision of the FWC in relation to a protected action ballot order or a protected action ballot; (c) a direction or decision of the protected action ballot agent in relation to a protected action ballot order or a protected action ballot; (d) a protected action ballot; (e) the conduct of a protected action ballot; (f) the declaration of the results of a protected action ballot. [s 461 am Act 174 of 2012 s 3 and Sch 9 item 507, opn 1 Jan 2013]

Subdivision E — Compliance

[7-8330] ballot

Interferences etc with protected action

462 General (1) A person (the first person) must not do any of the following in relation to a protected action ballot: (a) hinder or obstruct the holding of the ballot; (b) use any form of intimidation to prevent a person entitled to vote in the ballot from voting, or to influence the vote of such a person; (c) threaten, offer or suggest, or use, cause or inflict, any violence, injury, punishment, damage, loss or disadvantage because of, or to induce: (i) any vote or omission to vote; or (ii) any support of, or opposition to, voting in a particular manner; (d) offer an advantage (whether financial or otherwise) to a person

(e) (f)

(g) (h)

(ha)

(i) (j) (k) (l)

entitled to vote in the ballot because of or to induce: (i) any vote or omission to vote; or (ii) any support of, or opposition to, voting in a particular manner; counsel or advise a person entitled to vote to refrain from voting; impersonate another person to obtain a ballot paper to which the first person is not entitled, or impersonate another person for the purpose of voting; do an act that results in a ballot paper or envelope being destroyed, defaced, altered, taken or otherwise interfered with; fraudulently put a paper ballot paper or other paper: (i) into a repository that serves to receive or hold paper ballot papers; or (ii) into the post; fraudulently deliver or send an electronic ballot paper or other document to a repository that serves to receive or hold electronic ballot papers; fraudulently deliver or send a ballot paper or other paper to a person receiving ballot papers for the purposes of the ballot; record a vote that the first person is not entitled to record; record more than one vote; forge a ballot paper or envelope, or utter a ballot paper or envelope that the first person knows to be forged; [page 679]

(m) provide a ballot paper without authority; (n) obtain or have possession of a ballot paper to which the first person is not entitled; (o) request, require or induce another person: (i) to show a ballot paper to the first person; or (ii) to permit the first person to see a ballot paper in such a manner

that the first person can see the vote; while the vote is being made, or after the vote has been made, on the ballot paper; (p) do an act that results in a repository that serves to receive or hold ballot papers being destroyed, taken, opened or otherwise interfered with. Note: This subsection is a civil remedy provision (see Part 4-1). [subs (1) am Act 174 of 2012 s 3 and Sch 7 items 9–12, opn 1 Jan 2013]

Meaning of utter (2) A person is taken to utter a forged document if the person: (a) uses or deals with it; or (b) attempts to use or deal with it; or (c) attempts to induce another person to use, deal with, act upon, or accept it. Obligations of person performing functions or exercising powers for the purposes of a protected action ballot (3) A person (the first person) who is performing functions or exercising powers for the purposes of a protected action ballot must not show to another person, or permit another person to have access to, a ballot paper used in the ballot, except in the course of performing those functions or exercising those powers. Note: This subsection is a civil remedy provision (see Part 4-1).

[7-8350] Contravening a protected action ballot order etc 463 (1) A person must not contravene: (a) a term of a protected action ballot order; or (b) a term of an order made by the FWC in relation to a protected action ballot order or a protected action ballot. Note: This subsection is a civil remedy provision (see Part 4-1). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 508, opn 1 Jan 2013]

(2) A person must not contravene a direction given by the FWC, or a

protected action ballot agent, in relation to a protected action ballot order or a protected action ballot. Note: This subsection is a civil remedy provision (see Part 4-1). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 509, opn 1 Jan 2013]

(3) However, an order cannot be made under Division 2 of Part 4-1 in relation to a contravention (or alleged contravention) of subsection (1) or (2) by the Australian Electoral Commission.

Subdivision F — Liability for costs of protected action ballot

[7-8490] Costs of protected action ballot conducted by the Australian Electoral Commission 464 (1) This section applies if the protected action ballot agent for a protected action ballot is the Australian Electoral Commission. [page 680] (2) The Commonwealth is liable for the costs incurred by the Australian Electoral Commission in relation to the protected action ballot, whether or not the ballot is completed. (3) However, except as provided by regulations made for the purposes of subsection 466(1), the Commonwealth is not liable for any costs incurred by the Australian Electoral Commission in relation to legal challenges to matters connected with the protected action ballot.

[7-8510] Costs of protected action ballot conducted by protected action ballot agent other than the Australian Electoral Commission 465 (1) This section applies if the protected action ballot agent for a protected action ballot is not the Australian Electoral Commission. (2) The applicant for the protected action ballot order is liable for the costs of conducting the protected action ballot, whether or not the ballot is

completed. (3) If the application for the protected action ballot order was made by joint applicants, each applicant is jointly and severally liable for the costs of conducting the protected action ballot, whether or not the ballot is completed. (4) The costs of conducting a protected action ballot are: (a) if the protected action ballot agent is an applicant for the protected action ballot order — the costs incurred by the applicant in relation to the ballot; or (b) otherwise — the amount the protected action ballot agent charges to the applicant or applicants in relation to the ballot. (5) However, the costs of conducting a protected action ballot do not include any costs incurred by the protected action ballot agent in relation to legal challenges to matters connected with the ballot.

[7-8530]

Costs of legal challenges

466 (1) The regulations may provide for who is liable for costs incurred in relation to legal challenges to matters connected with a protected action ballot. (2) Regulations made for the purposes of subsection (1) may also provide for a person who is liable for costs referred to in that subsection to be indemnified by another person for some or all of those costs.

Subdivision G — Miscellaneous

[7-8670] Information about employees on roll of voters not to be disclosed 467 (1) A person who: (a) is the protected action ballot agent for a protected action ballot (other than the Australian Electoral Commission); or (b) is the independent advisor for a protected action ballot; or (c) acquires information from, or on behalf of, a person referred to in paragraph (a) or (b) in the course of performing functions or

exercising powers for the purposes of the ballot; [page 681] must not disclose to any other person information about an employee who is on the roll of voters for the ballot if the information will identify whether or not the employee is a member of an employee organisation. Note: This subsection is a civil remedy provision (see Part 4-1).

(2) Subsection (1) does not apply if: (a) the disclosure is made in the course of performing functions or exercising powers for the purposes of the protected action ballot; or (b) the disclosure is required or authorised by or under a law; or (c) the employee has consented, in writing, to the disclosure. Note 1: Personal information given to the FWC, the Australian Electoral Commission or another protected action ballot agent under this Division may be regulated under the Privacy Act 1988. Note 2: The President of the FWC may, in certain circumstances, disclose, or authorise the disclosure of, information acquired by the FWC or a member of the staff of the FWC, in the course of performing functions or exercising powers as the FWC (see section 655). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 510, opn 1 Jan 2013]

[7-8690]

Records

468 (1) The protected action ballot agent for a protected action ballot must keep the following ballot material: (a) the roll of voters for the ballot; (b) the ballot papers, envelopes and other documents and records relating to the ballot; (c) any other material prescribed by the regulations. (2) The ballot material must be kept for one year after the day on which the protected action ballot closed. (3) The protected action ballot agent must comply with any requirements prescribed by the regulations relating to how the ballot material is to be kept.

[7-8710]

Regulations

469 The regulations may provide for the following matters: (a) the requirements that must be satisfied for a person (other than the Australian Electoral Commission) to be: (i) the protected action ballot agent for a protected action ballot; or (ii) the independent advisor for a protected action ballot; (b) the procedures to be followed in relation to the conduct of a protected action ballot; (c) the form and content of the ballot paper for a protected action ballot; (d) the qualifications, appointment, powers and duties of scrutineers for a protected action ballot; (e) the preparation of reports under subsection 458(2) or (3); (f) the records that the protected action ballot agent must keep in relation to a protected action ballot and how those records are to be kept. [page 682]

DIVISION 9 — PAYMENTS RELATING TO PERIODS OF INDUSTRIAL ACTION Subdivision A — Protected industrial action

[7-8900] Payments not to be made relating to certain periods of industrial action 470 (1) If an employee engaged, or engages, in protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day. Note: This subsection is a civil remedy provision (see Part 4-1).

(2) However, this section does not apply to a partial work ban.

Note: For payments relating to periods of partial work bans, see section 471.

(3) A partial work ban is industrial action that is not: (a) a failure or refusal by an employee to attend for work; or (b) a failure or refusal by an employee who attends for work to perform any work at all; or (c) an overtime ban. (4) If the industrial action is, or includes, an overtime ban, this section does not apply, in relation to a period of overtime to which the ban applies, unless: (a) the employer requested or required the employee to work the period of overtime; and (b) the employee refused to work the period of overtime; and (c) the refusal was a contravention of the employee’s obligations under a modern award, enterprise agreement or contract of employment. (5) If: (a) the industrial action is, or includes, an overtime ban; and (b) this section applies in relation to a period of overtime to which the ban applies; then for the purposes of this section, the total duration of the industrial action is, or includes, the period of overtime to which the ban applies. COMMENTARY TO SECTION 470*

Derivation …. Civil remedy provision — s 470 Note …. Employee — s 470(1), (3)(a), (b), (4)(a), (b), (c) …. Employer — s 470(1), (4)(a) …. Enterprise agreement — s 470(4) …. In relation to — s 470(1), (4), (5)(b) …. Industrial action — s 470(1), (3), (4), (5), (a) …. Modern award s 470(4)(c) …. Partial work ban — s 470(2), Note, (3) …. Payment — s 470(1), Note …. Protected industrial action — s 470(1) …. Outline of section ….

[7-8900.05] [78900.10] [78900.15] [78900.20] [78900.25] [78900.30] [78900.35] [78900.40] [78900.45] [78900.50] [78900.55] [78900.60]

[7-8900.05] Derivation Section 507 of the Workplace Relations Act 1996. See Construction Forestry Mining and Energy Union (CFMEU) v Mammoet Australia Pty Ltd (2013) 300 ALR 460; [page 683] 87 ALJR 1009; [2013] HCA 36; BC201311815 at [53]–[58] (Mammoet) for a summary of the legislative history. [78900.10] Civil remedy provision — s 470 Note See s 539. [78900.15] Employee — s 470(1), (3)(a), (b), (4)(a), (b), (c) See s 407. [78900.20] Employer — s 470(1), (4)(a) See s 407. [78900.25] Enterprise agreement — s 470(4) See s 407. [78900.30] In relation to — s 470(1), (4), (5)(b) To speak of “a payment to an employee in relation to the total duration of the industrial action” is to speak of a period of employment in respect of which no remuneration is earned by the employee: Mammoet at [51]. [78900.35] Industrial action — s 470(1), (3), (4), (5), (a) See s 19. [78900.40] Modern award s 470(4)(c) See s 12. [78900.45] Partial work ban — s 470(2), Note, (3) See ss 12, 470(3). [78900.50] Payment — s 470(1), Note The meaning of payment is defined in Mammoet at [47]–[49] as follows: … when the Act speaks of payment it is speaking of a payment in money. The true construction of “payment” within the meaning of s 470(1) as a payment of money is also suggested by the character of s 470(1) as a civil remedy provision. It is only a transaction which answers the description of “a payment to an employee” which attracts the penalty imposed. Like the imposition of criminal liability, the imposition of a civil penalty should be “certain and its reach ascertainable by those who are subject to it.” That general principle of statutory construction is reinforced in this case by the expressly articulated object of the Act to provide “clear rules governing industrial action”. These considerations lead us to conclude that liability to the penalty imposed upon a contravention of s 470(1) is not attracted by the transfer of just any economic benefit by an employer to an employee during a period of protected industrial action. Not only would such an imposition be insufficiently clear and of insufficiently ascertainable reach, it would also have the consequence that employers and employees could become liable to a penalty, not only by taking some positive action, but also by doing no more than maintaining the status quo. It is not to be supposed that the legislature intended such a result: Mammoet at [47]–[49]. [78900.55] Protected industrial action — s 470(1) See s 12. [78900.60] Outline of section At common law payment is not due unless work is performed, subject to contractual provisions to the contrary; Automatic Fire Sprinklers Pty Ltd v Watson Share (1946) 72 CLR 435; [1946] ALR 390; (1946) 20 ALJR 189; BC4600020. The situation may also be altered by statue or by industrial instrument. As the majority held in Robert Leslie Gapes v the Commercial Bank

of Australia Ltd (1980) 27 ALR 20 at 21; 41 FLR 27: The obligation under the award to pay a salary depends upon its terms express or implied. If the terms of the award provide unconditionally for the payment of a yearly salary in stated proportions at stated times during the continuance of the relevant relationship of employer and employee, it is not to the point that at common law, obligations to pay salary under a similar class of contract to which no award was relevant, might have been regarded by the law as conditional on a particular degree of work performance. [page 684] See also Clark v Chief of Defence Force (1999) 59 ALD 506; [1999] FCA 1252; BC9906303 at [37]–[41]. In writing of an earlier version of the legislation, Lander J held in Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; 162 IR 444; [2007] FCAFC 65; BC200703532 at [83]– [84] that: The policy of the Act is to discourage industrial action as it is defined in s 4 of the Act. The purpose of Part VIIIA of the Act, in which these provisions are contained, is to prevent an employer making a payment to the employer’s employee in relation to any period during which the employee engages in industrial action. It is the intention of the Act to discourage employers and employees agreeing to the employer paying employees for that period of industrial action engaged in by the employee. To that end, s 187AA makes it a contravention for an employer to make a payment to an employee who has in relation to a period during which the employee engaged or engages in industrial action and at the same time makes it a contravention for the employee to accept a payment from an employer if by doing so the employer will contravene subsection (1) by making that payment. The policy of the Act is that if an employee engages in industrial action then it must be at the employee’s own expense. The purpose of s 187AB is to discourage unions and their officers from making claims for a payment or engaging in or threatening to engage in or organising industrial action for the purpose of coercing the employer to make a payment to an employee during a period of industrial action. That section has as its added purpose a protection to the employer in the event that a union or its members engage in that further industrial action. Industrial action is discouraged by putting the cost of that industrial action upon the employee rather than the employer. No doubt it is thought that an employee will be less likely to take industrial action if the employee knows that it is a contravention for both the employer and the employee if the employer makes a payment for the period of industrial action. Commissioner Lewin held in The Australian Workers’ Union and others v Alcoa Australia Rolled Products Pty Ltd [2010] FWA 5674 at [48] (8 October 2010) that: Section 470 is a statutory prohibition on making payments to an employee and is directed solely at the legal obligations of an employer in particular factual circumstances. Those provisions do not apply to protected industrial action which is a partial work ban. In Mammoet at [59] it was held that: [T]he mischief at which s 470(1) is directed is the payment of strike pay, that is, the making of payments whose relationship to industrial action is to be found in the recoupment of wages lost

during the period of the action. There is no suggestion that the purpose of s 470(1) is to suspend the entirety of the employer’s obligations under the relationship of employment. Indeed, the Act contemplates the continued subsistence of the employment relationship during and after the industrial action.

* Editor’s note Commentary to s 470 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister. ____________________

[7-8920]

Payments relating to partial work bans

471 Employer gives notice of reduction in payments (1) If: (a) an employee engaged, or engages, in protected industrial action against an employer on a day; and (b) the industrial action is a partial work ban; and [page 685] (c) the employer gives to the employee a written notice stating that, because of the ban, the employee’s payments will be reduced by a proportion specified in the notice; then the employee’s payments are reduced in accordance with subsection (2) in relation to the period (the industrial action period) referred to in subsection (5). (2) The employee’s payments in relation to the industrial action period are reduced: (a) by the proportion specified in the notice; or (b) if the FWC has ordered a different proportion under section 472 — by the proportion specified in the order; and the modern award, enterprise agreement or contract of employment that applies to the employee’s employment has effect accordingly. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 511, opn 1 Jan 2013]

(3) The regulations may prescribe how the proportion referred to in

paragraph (2)(a) is to be worked out. Employer gives notice of non-payment (4) If: (a) an employee engaged, or engages, in protected industrial action against an employer on a day; and (b) the industrial action is a partial work ban; and (c) the employer gives to the employee a written notice stating that, because of the ban: (i) the employee will not be entitled to any payments; and (ii) the employer refuses to accept the performance of any work by the employee until the employee is prepared to perform all of his or her normal duties; then the employee is not entitled to any payments in relation to the period (the industrial action period) referred to in subsection (5). (4A) If: (a) an employer has given an employee a notice under paragraph (4) (c); and (b) the employee fails or refuses to attend for work, or fails or refuses to perform any work at all if he or she attends for work, during the industrial action period; then: (c) the failure or refusal is employee claim action, even if it does not satisfy subsections 409(2) and 413(4), if the related industrial action referred to in paragraph (4)(a) is employee claim action; or (d) the failure or refusal is employee response action, even if it does not satisfy subsection 413(4), if the related industrial action referred to in paragraph (4)(a) is employee response action. The industrial action period (5) The industrial action period is the period: (a) starting at the later of: (i) the start of the first day on which the employee implemented

the partial work ban; or [page 686] (ii) the start of the next day, after the day on which the notice was given, on which the employee performs work; and (b) ending at the end of the day on which the ban ceases. Form and content of notice (6) The regulations may prescribe requirements relating to one or both of the following: (a) the form of a notice given under paragraph (1)(c) or (4)(c); (b) the content of such a notice. Manner of giving notice (7) Without limiting paragraph (1)(c) or (4)(c), the employer is taken to have given a notice in accordance with that paragraph to the employee if the employer: (a) has taken all reasonable steps to ensure that the employee, and the employee’s bargaining representative (if any), receives the notice; and (b) has complied with any requirements, relating to the giving of the notice, prescribed by the regulations. Employer does not give notice (8) If: (a) an employee engaged, or engages, in protected industrial action against an employer on a day; and (b) the industrial action is a partial work ban; and (c) the employer does not give the employee a notice in accordance with paragraph (1)(c) or (4)(c); then the employee’s payments for the day are not to be reduced because of the ban.

[7-8940] Orders by the FWC relating to certain partial work bans 472 (1) The FWC may make an order varying the proportion by which an employee’s payments are reduced. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 513, opn 1 Jan 2013]

(2) The FWC may make the order only if a person has applied for it under subsection (4). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 513, opn 1 Jan 2013]

(3) In considering making such an order, the FWC must take into account: (a) whether the proportion specified in the notice given under paragraph 471(1)(c) was reasonable having regard to the nature and extent of the partial work ban to which the notice relates; and (b) fairness between the parties taking into consideration all the circumstances of the case. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 514, opn 1 Jan 2013]

(4) An employee, or the employee’s bargaining representative, may apply to the FWC for an order under subsection (2) if a notice has been given under paragraph 471(1)(c) stating that the employee’s payments will be reduced. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 514, opn 1 Jan 2013] [s 472 am Act 174 of 2012 s 3 and Sch 9 item 512, opn 1 Jan 2013]

[page 687]

[7-8960] Accepting or seeking payments relating to periods of industrial action 473 (1) An employee must not: (a) accept a payment from an employer if the employer would contravene section 470 by making the payment; or (b) ask the employer to make such a payment. Note 1: This subsection is a civil remedy provision (see Part 4-1). Note 2: Acts of coercion, or misrepresentations, relating to such payments may also contravene section 348 or 349.

(2) An employee organisation, or an officer or member of an employee organisation, must not ask an employer to make a payment to an employee if the employer would contravene section 470 by making the payment. Note 1: This subsection is a civil remedy provision (see Part 4-1). Note 2: Acts of coercion, or misrepresentations, relating to such payments may also contravene section 348 or 349.

Subdivision B — Industrial action that is not protected industrial action

[7-9100] Payments not to be made relating to certain periods of industrial action 474 (1) If an employee engaged, or engages, in industrial action that is not protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to: (a) if the total duration of the industrial action on that day is at least 4 hours — the total duration of the industrial action on that day; or (b) otherwise — 4 hours of that day. Note: This subsection is a civil remedy provision (see Part 4-1).

(2) However, if the industrial action is, or includes, an overtime ban, this section does not apply, in relation to a period of overtime to which the ban applies, unless: (a) the employer requested or required the employee to work the period of overtime; and (b) the employee refused to work the period of overtime; and (c) the refusal was a contravention of the employee’s obligations under a modern award, enterprise agreement or contract of employment. Note: An employee is able to refuse to work additional hours if they are unreasonable (see subsection 62(2)). There may be other circumstances in which an employee can lawfully refuse to work additional hours.

(2A) If: (a) the industrial action is, or includes, an overtime ban; and (b) this section applies in relation to a period of overtime to which the ban applies;

then, for the purposes of this section: (c) the total duration of the industrial action is, or includes, the period of overtime to which the ban applies; and (d) if paragraph (1)(b) applies — the period of 4 hours mentioned in that paragraph includes the period of overtime to which the ban applies. [page 688] (3) If: (a) the industrial action is during a shift (or other period of work); and (b) the shift (or other period of work) occurs partly on one day and partly on the next day; then, for the purposes of this section, the shift is taken to be a day and the remaining parts of the days are taken not to be part of that day. Example: An employee, who is working a shift from 10 pm on Tuesday until 7 am on Wednesday, engages in industrial action that is not protected industrial action from 11 pm on Tuesday until 1 am on Wednesday. That industrial action would prevent the employer making a payment to the employee in relation to 4 hours of the shift, but would not prevent the employer from making a payment in relation to the remaining 5 hours of the shift.

(4) For the purposes of subsection (3), overtime is taken not to be a separate shift. COMMENTARY TO SECTION 474*

Derivation …. Civil remedy provision — 474 Note …. Employee — 474(1), (2)(a),(b),(c), Note, Example …. Employer — 474(1), (2)(a), Example …. Enterprise agreement — 474(2)(c) …. Industrial action — 474(1), (a), (2), (2A)(a),(c), (3)(a), Example …. Modern award — 474(2)(c) …. Must not — 474(1) …. Payment — 474(1), Example ….

[7-9100.05] [7-9100.10] [7-9100.15] [7-9100.20] [7-9100.25] [7-9100.30] [7-9100.35] [7-9100.40] [7-9100.45]

Outline of section ….

[7-9100.50]

[7-9100.05] Derivation The section is derived from s 507 of the Workplace Relations Act 1996. [7-9100.10] Civil remedy provision — 474 Note See ss 12 and 539. [7-9100.15] Employee — 474(1), (2)(a),(b),(c), Note, Example See s 407. [7-9100.20] Employer — 474(1), (2)(a), Example See s 407. [7-9100.25] Enterprise agreement — 474(2)(c) See s 12. [7-9100.30] Industrial action — 474(1), (a), (2), (2A)(a),(c), (3)(a), Example See ss 12 and 19. [7-9100.35] Modern award — 474(2)(c) See s 12. [7-9100.40] Must not — 474(1) An employer does not have an “option” or discretion as to whether to make a payment prohibited by s 474: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Postal Corp (2010) 201 IR 363; [2010] FMCA 688; BC201006794 at [80] (10 September 2010). [page 689] [7-9100.45] Payment — 474(1), Example The Explanatory Memorandum to the Fair Work Bil 2009 at para 1894 explains that: Payments must be withheld in relation to the actual period when industrial action was taken (eg, if taken on a public holiday, payment at the applicable penalty rate (if any) must be withheld). [7-9100.50] Outline of section Section 474 is clearly expressed to prohibit an employer making a payment to an employee who has engaged in unprotected industrial action: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Union of Australia v Australian Postal Corp (2010) 201 IR 363; [2010] FMCA 688; BC201006794 at [76] (10 September 2010). In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Union of Australia v Australian Postal Corp (2010) 201 IR 363; [2010] FMCA 688; BC201006794 at [78] (10 September 2010), FMC Barnes summarised the authorities as to the purpose of the section and its predecessors: While the following remarks of Lander J in Ponzio (at [83]–[84]) were made in relation to s 187AA of the pre-reform Workplace Relations Act, they are in point in relation to the comparable provisions in the FWA, including s 474: The policy of the Act is to discourage industrial action as it is defined in s 4 of the Act. The purpose of Part VIIIA of the Act, in which these provisions are contained, is to prevent an employer making a payment to the employer’s employee in relation to any period during which the employee engages in industrial action. It is the intention of the Act to discourage employers and employees agreeing to the employer paying employees for that period of industrial action engaged in by the employee. To that end, s 187AA makes it a contravention for an employer to make a payment to an employee who has in relation to a period during which the employee

engaged or engages in industrial action and at the same time makes it a contravention for the employee to accept a payment from an employer if by doing so the employer will contravene subs (1) by making that payment. The policy of the Act is that if an employee engages in industrial action then it must be at the employee’s own expense. The purpose of s 187AB is to discourage unions and their officers from making claims for a payment or engaging in or threatening to engage in or organising industrial action for the purpose of coercing the employer to make a payment to an employee during a period of industrial action. That section has as its added purpose a protection to the employer in the event that a union or its members engage in that further industrial action. Industrial action is discouraged by putting the cost of that industrial action upon the employee rather than the employer. No doubt it is thought that an employee will be less likely to take industrial action if the employee knows that it is a contravention for both the employer and the employee if the employer makes a payment for the period of industrial action. Moreover, in O’Shea v Heinemann Electric Pty Ltd (2008) 172 FCR 475; 178 IR 394; [2008] FCA 1799; BC200810496 Middleton J suggested that while s 507 of the Workplace Relations Act (the predecessor to s 474 of the FWA insofar as it relates to unprotected industrial action) was in different terms to s 187AA, basically the same purpose was behind both provisions. As Middleton J stated at [28]–[29]: It seems one purpose of the operation of s 507 is to deter industrial action for minor grievances. An employee will seriously consider stopping work for just 5 minutes if the consequence is losing a half day’s pay. On the other hand, I do not consider the provision to be punitive. If it [page 690] were, the provision would operate to deduct a full day’s pay from an employee who engages in 4 hours or more industrial action on a day. Rather the intention seems to be to ensure that industrial action is not taken lightly and that the employee who engages in industrial action bears the economic consequences of that industrial action. The Court must construe the words of s 507 in context. Part of the context of s 507 is that there is a right to take protected action. Another part of the context is that, because of other provisions of the Act, there is a right ordinarily to be paid for the work undertaken. Another part of the context is that the Act is trying to ensure that either employer or employee bears the financial consequence of loss of production; in the case of a lock-out, the employer, in the case of a strike, the employee.

* Editors’ note: Commentary to s 474 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister. ____________________

[7-9120] Accepting or seeking payments relating to periods of industrial action

475 (1) An employee must not: (a) accept a payment from an employer if the employer would contravene section 474 by making the payment; or (b) ask the employer to make such a payment. Note 1: This subsection is a civil remedy provision (see Part 4-1). Note 2: Acts of coercion, or misrepresentations, relating to such payments may also contravene section 348 or 349.

(2) An employee organisation, or an officer or member of an employee organisation, must not ask an employer to make a payment to an employee if the employer would contravene section 474 by making the payment. Note 1: This subsection is a civil remedy provision (see Part 4-1). Note 2: Acts of coercion, or misrepresentations, relating to such payments may also contravene section 348 or 349.

Subdivision C — Miscellaneous

[7-9260] Other responses to industrial action unaffected 476 If an employee engaged, or engages, in industrial action against an employer, this Division does not affect any right of the employer, under this Act or otherwise, to do anything in response to the industrial action that does not involve payments to the employee.

DIVISION 10 — OTHER MATTERS

[7-9450] Applications by bargaining representatives 477 Application of this section (1) This section applies if a provision of this Part permits an application to be made by a bargaining representative of an employer that will be covered by a proposed single-enterprise agreement. [page 691]

Persons who may make applications (2) If the agreement will cover more than one employer, the application may be made by: (a) in the case of a proposed single-enterprise agreement in relation to which a single interest employer authorisation is in operation — the person (if any) specified in the authorisation as the person who may make applications under this Act; or (b) in any case — a bargaining representative of an employer that will be covered by the agreement, on behalf of one or more other such bargaining representatives, if those other bargaining representatives have agreed to the application being made on their behalf.

PART 3–4 — RIGHT OF ENTRY RIGHT OF ENTRY UNDER THE FAIR WORK ACT 2009 Commentary by Joe Catanzariti, Partner, Clayton Utz and Michael Byrnes, Special Counsel, Clayton Utz This commentary was last updated in October 2016 by Michael Byrnes, Special Counsel, Clayton Utz. The authors acknowledge and thank Andrew McNair for his assistance in updating their commentary.

CONTENTS Paragraph Right of entry under the Fair Work Act 2009 Introduction …. Changes from the Workplace Relations Act 1996 (Cth) …. Overview …. Permits …. Entry notices …. Entry to investigate suspected contraventions of law or industrial instruments …. Entry to hold discussions …. State or Territory occupational health and safety rights …. Rights of entry: textile, clothing and footwear

[Com 65,010] [Com 65,020] [Com 65,030] [Com 65,040] [Com 65,050] [Com 65,060] [Com 65,070] [Com 65,080] [Com 65,090]

outworkers …. Accommodation and Transport Arrangements in Remote Areas …. Acts of permit holders prohibited by the Fair Work Act 2009 (Cth) …. Acts of occupiers and affected employers prohibited by the Fair Work Act 2009 (Cth) …. Disputes ….

[Com 65,095] [Com 65,100] [Com 65,110] [Com 65,120] [page 692]

Paragraph Right of entry under the Fair Work Act 2009 Revocation, suspension or imposition of conditions on permits …. Action against organisations exercising rights of entry ….

[Com 65,130] [Com 65,140]

[Com 65,010] Introduction Right of entry provisions confer powers on officials of organisations to enter premises and exercise certain powers while on those premises.10 Right of entry has long been a feature of the industrial landscape in Australia, its importance emphasised by the Australian Industrial Relations Commission (AIRC) in Australian Federation of Air Pilots v Ansett Transport Industries (No 2) (1991) 36 IR 219 at 220, where the AIRC stated that rights of entry: … are a vital part of the process of enforcement of awards, which in turn are at the very heart of the system of conciliation and arbitration. Further, the International Labour Organisation Convention No 87, ratified by Australia, protects two basic rights: the right of workers and employers to form organisations, and the organisational autonomy of trade union and employer associations.20 Right of entry provisions facilitate access by organisational representatives to their members in protection of these rights.30 However, with decreasing unionisation, and the development of strong, independent government investigatory bodies monitoring compliance with industrial laws (ie Fair Work Ombudsman), some have argued that less reliance should be placed on unions in this regard.40 Ultimately, as recognised by Professor W J Ford, regulation must:50 … strik[e] an appropriate balance between the interests unions have in, at the very least, monitoring compliance with the terms of industrial instruments and the interest employers have in carrying on business without unreasonable interference or interruption. Echoing Professor Ford’s comments, in its Forward with Fairness: Policy Implementation Plan, August 2007, the now Federal Government stated that right of entry laws would: balance the right of employees to be represented by their union with the right of employers to get on

with running their business. Whether or not the Fair Work Bill 2009 (Cth) (FW Bill) gave effect to that balance, the right of entry provisions as initially proposed were subject to a series of amendments in the Senate prior to enactment, specifically relating to: access to non-member records (see [9100]); protections surrounding the use or disclosure of information obtained by officials exercising rights of entry (see [9100]); and providing specific provisions for the protection of textile, clothing and footwear outworkers (see [9160] below). [page 693] [Com 65,020] Changes from the Workplace Relations Act 1996 (Cth) In its Forward with Fairness: Policy Implementation Plan, August 2007, the former Federal Government stated that “existing right of entry laws will be retained”. Despite this statement, there have been some changes between the right of entry provisions in the Workplace Relations Act 1996 (Cth) (WR Act) and the Fair Work Act 2009 (Cth) (FW Act), often as a result of changes throughout the rest of the FW Act, particularly award modernisation.60 Aside from other relatively minor changes, the most significant change from the WR Act to the FW Act is the fact that an organisation’s ability to enter premises is now based on the eligibility rules of the organisation, and not whether that organisation is bound by an award or collective agreement applying to the workplace. Under the FW Act, the trigger for an organisation’s right to enter a workplace is if the organisation is “entitled to represent the industrial interests” of an employee at the workplace. This expansion of union rights of entry has led to significant public debate. Some commentators have suggested that the FW Act’s approach is more logical because under the WR Act, it was possible for an organisation to have rights of entry to workplaces where none of the employees, or previous employees, were members of the organisation yet the same union may be excluded from entry at another workplace, where it has many members, simply because a non-union agreement (or an agreement with another union) has been voted up by other workers.70 Business groups have suggested that defining organisations’ right of entry around the eligibility rules of organisations themselves leads to provisions that are “amorphous, uncertain and open-ended”.80 Further, it has been argued that the new provisions will mean that several unions may have the right to enter the same premises, leading to disputes and undue disruption to the employer’s business.90 These issues give rise to continued debate. The new Liberal government has presented the Fair Work Amendment Bill 2014 which curtails right of entry. Under the bill, unions must be covered by an enterprise agreement or be invited by a member or an employee it is entitled to represent. It will not be sufficient that the union’s coverage rules permit entry. The bill is currently before the lower house of parliament. [Com 65,030] Overview An official of an organisation holding a permit and upon giving notice to an occupier of premises, is entitled to enter the premises to: investigate suspected contraventions of the Fair Work Act 2009 (Cth) (FW Act) or industrial instruments (ie modern awards and enterprise agreements); hold discussions with workers; or exercise rights of entry under state or territory occupational health and safety legislation. Premises include any land, building, structure, mine, mine working, vessel, aircraft or place.

Organisations are defined as organisations registered under Sch 1 of the Workplace Relations Act 1996 (Cth). The Fair Work Amendment Act 2013 (Cth) commenced 1 January 2014 and amongst other things, introduced amendments to the place where discussions and interviews can occur. If the permit holder and occupier fail to agree on a room or area for discussions and interviews, the discussions and interviews can be conducted in a place where meals or breaks are ordinarily taken by the relevant employees or a place that is provided by the occupier for the purpose of the relevant employees taking meals or breaks. [page 694] It should also be noted at the outset that there is nothing in the FW Act preventing entry on terms as mutually agreed between the parties — for example, an employer could agree to dispense with the entry notice requirement in a particular case or might invite the union on site for a meeting (Explanatory Memorandum to the Fair Work Bill 2008 (Cth) at [1919]). [Com 65,040] Permits An official must have a permit from the Fair Work Commission (FWC), previously Fair Work Australia, in order to enter premises. The FWC may suspend, cancel, impose conditions on permits. In order to exercise a right of entry under the Fair Work Act 2009 (Cth) (FW Act), an official of an organisation must apply for a permit from the FWC: Form 42. An “official” is defined as a person who holds an office in, or is an employee of, an organisation. FWC may issue, on application by an organisation, a permit to an official who is a fit and proper person: s 512. Various factors are relevant to whether the person is fit and proper, including whether the person has had relevant training, the person’s criminal history (spent convictions will be ignored), and history of previous compliance (or non-compliance) with industrial laws and entry permits: s 513. These factors are called the “permit qualification matters”. A permit may be issued subject to conditions imposed by the FWC listed on the permit: s 515. Whether FWC will impose conditions will depend on the “permit qualification matters”. The FWC must not issue a permit where the applicant is disqualified from obtaining a permit under the FW Act or from obtaining a permit under a State or Territory occupational health and safety or industrial law: s 510(5)–(6) and 514. Unless extended by the FWC, a permit will expire 3 years after issue, or the official that applied for the permit has left the organisation: s 516. Expired permits are to be returned to the FWC: s 517(1)(c). Permits obtained under the Workplace Relations Act 1996 (Cth) (WR Act) and valid at 1 July 2009 remain valid under the FW Act, and are subject to the terms and conditions (including expiry date) as set out by the WR Act: Sch 14 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). [Com 65,050] Entry notices To enter premises, permit holders must provide notice to the occupier of the premises, unless an exemption certificate can be obtained. A permit holder must provide an entry notice to the occupier or an affected employer, at least 24 hours, but not more than 14 days, before the proposed entry: Fair Work Act 2009 (Cth) (FW Act) s 487. “Affected employer” is defined at s 12, and has slightly different meanings depending upon the right of entry being exercised: see ss 482(2), 483B(3)(a), 483B(3)(b), 495(2)(a), and 495(2)(b). The notice must specify various matters depending on what the permit holder seeks to do on entry, ie either to investigate suspected breaches of law or hold discussions with employees: s 518. The permit holder

must then show his or her permit and entry notice where he or she is seeking access to records or documents under s 482, or at any time if requested by the employer or occupier: s 489. However an organisation may apply to the FWC for an exemption certificate where the organisation believes that the issue of advance notice of entry to the employer might result in evidence being destroyed: s 519; Form 44. If an exemption certificate applies, the above notice need not be given but a copy of the certificate must be given to the occupier or affected employer upon entry: s 487. All entry notices must specify the premises to be entered, the day of entry, the name of the permit holder’s organisation, and the section of the FW Act which authorises the entry. In The Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2012] FWA 3939, Senior Deputy President Kaufman emphasised the importance of specifying the premises to be entered. The Deputy President suggested that the description “Qantas Airways premises in Mascot Sydney” was not sufficiently specific so as to enable Qantas to know what part or parts of [page 695] its vast array of facilities the union sought to enter. Further, from the description given by the union, Qantas could not know whether entry was sought to areas within the facility where no members of the union performed work. As such, the Deputy President decided that the union had failed to specify the premises to be entered as required by s 518 of the Act. Further: notices to investigate suspected breaches of law must contain a declaration that the permit holder’s organisation is entitled to represent the industrial interests of a relevant member of the organisation, specify the provision of the organisation’s rules that entitles the organisation to represent the member, and include particulars of the suspected contravention; and notices to hold discussions must contain a declaration that the permit holder’s organisation is entitled to represent the industrial interests of a relevant person, and specify the provision of the organisation’s rules that entitles the organisation to represent the member. The requirement for the above declarations arise out of the difficulty for an employer to determine whether or not an organisation is entitled to represent their employees, and thus exercise rights of entry (EM at [2063]). If an organisation intentionally or recklessly makes a false representation that a worker at premises is a member or the organisation is entitled to represent a person then it is exposed to a penalty under s 503 of the FW Act. Presumably to enable an organisation to guard against this risk an organisation may apply to the FWC for an affected member certificate: s 520; Form 45, which is in the nature of a declaration that the relevant criteria for the exercise of the entry are satisfied, including that the organisation is entitled to represent a worker on the premises. [Com 65,060] Entry to investigate suspected contraventions of law or industrial instruments A permit holder may enter premises to investigate suspected breaches of law, on certain conditions. The permit holder may conduct inspections and interviews, and examine records and documents directly relevant to the breaches. A permit holder may enter premises to investigate a reasonably suspected contravention of the Fair Work Act 2009 (Cth) (FW Act) or of a term of an industrial instrument (which applies, or did apply) that relates to a member of the permit holder’s organisation who: the organisation is entitled to represent; and works at the relevant premises: s 481.

In Shaaban Bin Hussien v Chong Fook Kam [1970] AC 942; [1969] 3 All ER 1626 at 1630; [1970] 2 WLR 441 the Privy Council held that “suspicion” has the following meanings: Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking … Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. Under the FW Act, the permit holder must be able to prove that their suspicion was reasonable: s 481(3). In Manley v Tucs (1984) 40 SASR 1 at 6, it was stated: The question of what constitutes a “reasonable” suspicion must clearly be gauged by an objective standard upon the basis of the type of reasoning adverted to in Lampard v West ([1926] SASR 293, at p 310) and McLean v Dawkins ([1930] SASR 94, at p 97). The suspicion must be based on facts which would create “a reasonable suspicion in the mind of a reasonable man”. An example of a reasonable suspicion provided by the Explanatory Memorandum is a suspicion based on complaints from members of the organisation of breaches of law. Officials may not use this right in order to engage in a “fishing expedition” where there is nothing to suggest that a contravention has occurred or is occurring (EM at [1923]). [page 696] Powers on entry While a exercising a right of entry to enter premises to investigate suspected breaches of law, a permit holder may: Inspect any work, process or object relevant to the suspected contravention: s 482(1)(a); Interview a person who agrees to be interviewed and who the permit holder’s organisation is entitled to represent: s 482(1)(b); Require the occupier to allow the permit holder to inspect, and make copies of, documents or records (other than non-member records or documents) that are directly relevant to the suspected contravention and that are kept on premises or are accessible from a computer on the premises: s 482(1)(c). It is clear from decisions of the AIRC that there is some positive obligation on the employer to assist permit holders in inspecting documents: Curran v Thomas Borthwick & Sons (Pacific) Ltd (No 1) (1990) 26 FCR 241; 94 ALR 575; 33 IR 6. The Australian Industrial Relations Commission (AIRC) has held that the predecessor provision (on similar terms) in the Workplace Relations Act 1996 included the implied right of the permit holder to use the employer’s photocopying facilities (Application/Notification by Transport Workers’ Union of Australia [2007] AIRC 813 PR978538); In National Tertiary Education Industry Union v Central Queensland University [2009] FWA 780, Senior Deputy President Richards held that the provisions of the Fair Work Act 2009 (FW Act) concerning the production of documents are different than those that existed under the Workplace Relations Act 1996 (WR Act). Section 482 of the FW Act refers to a record or document that is “directly relevant”, whereas the previous provision of the WR Act simply referred to records which were “relevant”. Senior Deputy President Richards held at [14] that the effect of this change in terminology is that “it appears the scope of documents that may be accessed by a permit holder under the FW Act has been constrained to those that are ‘directly relevant’ to the suspected breach. This qualifying requirement (that the documents sought be ‘directly’ relevant) may have the effect of narrowing the scope of documents that may be accessed compared with the provisions under the former Act”. Issue a notice to the employer requiring production of, or access to be provided to, a relevant

record or document on a day not earlier than 14 days from the date of entry. The notice may be given at any time during the entry or within 5 days after it. The permit holder may then inspect and copy records or documents at the premises or another agreed location: s 483. The EM makes it clear that all rights exercised under s 482 must be relevant to the investigation of the suspected contravention: EM at [1926]. Non-member records Initially, the Fair Work Bill 2008 (Cth) expanded the powers of permit holders to examine non-member records, provided they were relevant to the suspected breach of law. However, as a result of amendments in the Senate, “non-member records” may not be examined by the permit holder except with the written consent of the non-member (s 482(2A)) or by order of the FWC (s 483AA). Permit holders seeking to obtain such orders from the FWC must prove that obtaining nonmember records are necessary to investigate the suspected contravention: s 483AA; Form 43. Privacy and unauthorised disclosure of information obtained by permit holders The use or disclosure of information by permit holders exercising a right to inspect or request documents under the FW Act is regulated by both the Privacy Act 1988 (Cth) (Privacy Act) and s 504 of the FW Act. The use or disclosure by permit holders of “personal information” (within the meaning of the Privacy Act) is governed by the Privacy Act. However, s 504 of the FW Act, based on the exceptions set out at “Australian Privacy Principle 6” in Sch 1 of the Privacy Act, protects other [page 697] employee information obtained by permit holders. This section was included because “employee records” are exempted from the coverage of the Privacy Act. Employee records were exempted from the Privacy Act because workplace relations law was seen to be the appropriate sphere of regulation for such information.100 Section 504 of the FW Act prohibits the use or disclosure of information (including employee records, business plans, or other sensitive information relating to employers) obtained by permit holders that is not related to the investigation or rectification of a breach of law unless: the person reasonably believes that the use or disclosure is necessary to lessen or prevent a serious and imminent threat to an individual’s health or safety, or serious threat to public health or safety; the person has reason to suspect that unlawful activity has been, or may be, engaged in and the disclosure is a necessary part of an investigation of the matter or reporting of the matter to relevant authorities; the use or disclosure is required by law, or in the context of the exercise of investigative powers of enforcement bodies as defined in the Privacy Act (eg Australian Federal Police, ASIC etc); if the information contains personal information (as defined in the Privacy Act, see s 6 of that Act), the use or disclosure is made with the consent of the person. Further, the FW Act permits an occupier or affected employer to refrain from making records available where to do so would contravene a relevant law. The Supplementary Explanatory Memorandum to the Fair Work Bill 2008 (Cth) provides an example of such a law, being s 58 of the Child Support (Registration and Collection) Act 1988 (Cth) which prohibits an employer from divulging information about the deduction of child support from an employee’s wages (at [206]). [Com 65,070] Entry to hold discussions A permit holder may enter premises to hold discussions with persons:

who perform work on the premises; whose interests the permit holder’s organisation is entitled to represent; and who wish to participate in the discussions (Fair Work Act 2009 (FW Act) s 484). It is important to note that in the case of entering premises for the purposes of holding discussions, the FW Act limits such discussions to workers whose industrial interests the permit holder’s organisation is entitled to represent and who wish to participate in those discussions: Construction, Forestry, Mining and Energy Union v Foster Wheeler Worley Parsons (Pluto) Joint Venture [2010] FWA 2341 at [72]. The discussions may only occur during mealtimes or other breaks, and not during working hours (s 490(2)), and a permit holder must not enter any part of premises used mainly for residential purposes (s 493). The permit holder must comply with any reasonable request by the occupier of the premises to conduct interviews or hold discussions in a particular room, or take a particular route: s 492(1). Unlike the Workplace Relations Act 1996 (Cth), s 492(2) of the FW Act provides a non-exhaustive list of when a request under the provision will be unreasonable: when the room or area is not fit for the purpose of conducting the interview or holding the discussions; or when the request is made with the intention of: intimidating persons who may participate in the interviews or discussions; discouraging persons from participation in the interviews or discussions; or making it difficult for persons to participate in the interviews of discussions. In considering the test for determining whether an employer’s request is reasonable, Roe Cmr held in The Australasian Meat Industry Employees Union v Somerville Retail Services [2010] [page 698] FWA 6737 that there is sufficient similarity between the provisions of the Workplace Relations Act 1996 and the FW Act such that the Full Bench authority of Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office (2007) 158 IR 148; [2007] AIRCFB 36 is still relevant. In that decision, the Full Bench stated at [29]: We accept that in considering whether an employer’s request is reasonable for the purposes of s 751(3) the Commission is required to take all of the circumstances into account and to consider the legitimate interests of the employer or the occupier of the premises as well as the interests of the employees and the permit holder. The public interest in the observance of industrial laws is also a relevant consideration. In Somerville Retail Services Pty Ltd v Australian Meat Industry Employees’ Union (2011) 203 IR 258; [2011] FWAFB 120, the AMIEU sought orders that when the permit holders entered the premises for the purpose of holding discussions, they be permitted to hold those discussions in the lunch room, rather than the training room as directed by the employer. On appeal, the majority of the Full Bench overturned Roe Cmr’s decision at first instance and found that Somerville’s request that AMIEU utilise the training room for the purposes of holding discussions was not unreasonable. The majority noted that it is necessary to balance the interests of all affected persons, including employees who may not wish to participate in discussions. The majority said that if discussions were held in the training room, only those who wished to participate would attend. The majority found that there was “no other practical venue” for employees to have their lunch, and therefore it was likely that

the employees who did not wish to participate would be inconvenienced. The majority also found that the training room was “fit for purpose” and the size and location of the room did not make Somerville’s request unreasonable. The AMIEU filed a judicial review application in the Federal Court, and the Full Court of the Federal Court dismissed that application in Australasian Meat Industry Employees’ Union v Fair Work Australia (2012) 203 FCR 389; [2012] FCAFC 85. With the commencement of the Fair Work Amendment Act 2013 (Cth) on 1 January 2014, if the permit holder and occupier fail to agree on a room or area for discussions and interviews, the discussions and interviews can be conducted in a place where meals or breaks are ordinarily taken by the relevant employees or a place that is provided by the occupier for the purpose of the relevant employees taking meals or breaks (see s 492). This provision was considered in National Union of Workers v Coles Group Supply Chain Pty Ltd [2014] FWC 1674. Although permitted to hold interviews and discussions at a table in the lunch room, Coles would not allow NUW’s permit holders to approach workers to initiate decisions or roam around the lunchroom. NUW argued that Coles had no right to impose these conditions under s 492 of the FW Act. On the other hand, Coles argued that NUW should not be permitted to approach workers because s 484 limits discussions and interviews with workers “who wish to participate in those discussions”. Commissioner Roe ruled at [33] that there may be circumstances where employers can reasonably restrict the manner in which the meal or break room is accessed by permit holders. For instance, an employer could restrict access to one of two available meal rooms where employees could choose which room to access. However, Cmr Roe found that employers do not have a general right to prevent permit holders from approaching employees to identify if they wish to participate in discussions. Accordingly, the conditions set by Coles were contrary to the Act. In Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147, a union official entered an employer’s premises to “have a chat” with some of the employees. When questioned as to his reason for being on the site, the union official declared that he was not [page 699] exercising his right of entry. The union official had not provided notice of entry. In these circumstances, among other factors, the Court found that the union official’s entry into the premises of the employer was in contravention of s 500 of the FW Act. On 1 January 2014, the Fair Work Amendment Act 2013 (Cth) took effect, brining into operation changes to the right of entry provisions, including an amendment to s 492 to provide that, in relation to a permit holder’s right of entry for purposes of holding discussions with employees, the discussions must be held in a room or area on the premises agreed with the occupier. However, if no such agreement can be reached, the default location will be the room or area in which employees ordinarily take their meal breaks, and which is provided by the occupier for that purpose. This operates alongside the existing provision (s 492(1)(b)), requiring a permit holder to comply with a reasonable request to take a particular route to reach a room or area on the premises in which a meeting with employees is to be held. [Com 65,080] State or Territory occupational health and safety rights The Fair Work Act 2009 (FW Act) sets out additional requirements for permit holders seeking to exercise a right conferred by a State or Territory occupational or work health and safety (OHS/WHS) law to enter premises owned by national system employers. Rights of entry onto premises not owned by employers governed by the FW

Act will be governed by the relevant state legislation. State or Territory OHS laws are defined in the Fair Work Regulations 2009 (Cth) as: Work Health and Safety Act 2011 (NSW) Occupational Health and Safety Act 2004 (Vic) Work Health and Safety Act 2011 (Qld) Sections 49G and 49I–49O of the Industrial Relations Act 1979 (WA), but only to the extent to which those provisions provide for, or relate to, a right of entry to investigate a suspected contravention of: — the Occupational Safety and Health Act 1984 (WA); or — the Mines Safety and Inspection Act 1994 (WA). Work Health and Safety Act 2011 (ACT) Work Health and Safety Act 2012 (Tas) Work Health and Safety (National Uniform Legislation) Act 2011 (NT) Where the premises to be entered are occupied by national system employers, the permit holder must have both a federal entry permit and a State or Territory OHS entry permit. On entering the premises, the FW Act states that the permit holder must not: exercise a State or Territory OHS right to inspect or otherwise access an employee record, unless the permit holder has given written notice setting out his or her intention to exercise the right and reasons for doing so. This notice must be given at least 24 hours before exercising the right (with the exception of entry in the case of OHS emergencies); contravene any condition imposed on his or her entry permit; exercise a State or Territory OHS right unless the permit holder produces his or her entry permit for inspection when requested; and exercise a State or Territory OHS right unless the permit holder complies with any reasonable request to comply with an occupational health and safety requirement. The EM to the Fair Work Bill 2008 (Cth) states that a request for the permit holder to wear a safety vest would constitute a reasonable request where many heavy vehicles operate on the site. Further a permit holder may only exercise a State or Territory OHS right during working hours: s 498. [Com 65,090] Rights of entry: textile, clothing and footwear outworkers As stated above, the Fair Work Bill 2008 (Cth) was subject to various changes prior to enactment. The most significant of those changes was the insertion of detailed provisions relating to entry onto premises by permit holders who are entitled to represent workers in the textile, clothing and footwear (TCF) [page 700] industry. These special provisions are required, according to the Supplementary Explanatory Memorandum (Supplementary EM) (at [173]), because permit holders may not be able to show that a breach of law relates to or affects a member on the premises because of low rates of union membership in the industry, and because the permit holder may not know whether a TCF outworker performs work on the premises.110 Further, the nature of the outworker industry means that investigation of a breach of law may require entry to premises other than the place of work.120 Importantly, permit holders are not required to hold a reasonable suspicion that a breach has occurred or is occurring when investigating a breach of a “designated outworker term”: s 483A(4). A designated outworker term, defined at s 12 of the Fair Work Act 2009 (Cth), is a term of a modern award relating

to various matters in regarding outworkers in the TCF industry. Further, on entry to investigate breaches of designated outworker terms, a permit holder would not be required to identify a particular outworker which the permit holder’s organisation is entitled to represent.130 [Com 65,095] Accommodation and Transport Arrangements in Remote Areas The Fair Work Amendment Act 2013 (Cth) commenced on 1 January 2014 and introduced a new Div 7 (accommodation and transport arrangements in remote areas). This creates an obligation upon occupiers in remote areas to enter into accommodation and transport arrangements with permit holders where transport or accommodation are otherwise unavailable and it is reasonable for the occupier to provide those facilities. The explanatory memorandum to the Fair Work Amendment Bill 2013 (Cth) states: What is a remote area will depend on the particular circumstances but is limited to circumstances where the only realistic means for the permit holder to access the premises is by transport provided by the occupier or where the only accommodation at the location, if it is required, is that provided by the occupier An occupier must enter into an accommodation and/or transport arrangement if a permit holder and the relevant representative organisation have been unable to enter into an accommodation and/or transport arrangement by consent with the occupier and the following are satisfied: to provide the accommodation and/or transport would not cause the occupier “undue inconvenience”; the permit holder or organisation request accommodation or transport to be provided to enable them to exercise their entry rights under the Act; and the request is made within a reasonable time before the accommodation or transport is required: s 521C(2). An occupier may charge an organisation or permit holder a fee to cover the occupier’s necessary costs: s 521D(3). [Com 65,100] Acts of permit holders prohibited by the Fair Work Act 2009 (Cth) Upon obtaining a permit, the Fair Work Act 2009 (Cth) (FW Act) prohibits permit holders from doing any of the following while exercising rights of entry: seeking to enter at a time other than during working hours on the day specified in the entry notice or exemption certificate (s 490(1) and (3)); contravening any condition in an entry permit (s 488); breaching any reasonable occupational health and safety request made by the occupier (s 491); refusing an occupier’s reasonable request for interviews to be held in particular rooms or for a particular route to be taken to get to a room or area of the premises (s 492); [page 701] enter any part of premises that is used mainly for residential purposes (s 493); intentionally hindering or obstructing any person (which may include not providing assistance to permit holders in relation to inspecting records or documents: Curran v Thomas Borthwick & Sons (Pacific) Ltd (No 1) (1990) 26 FCR 241; 94 ALR 575; 33 IR 6) (s 500); acting in an improper manner (s 500);

misrepresenting what he or she is authorised to do under the right of entry provisions of the FW Act to do (s 503); and breaching the Privacy Act 1988 (Cth) by improperly using or disclosing information obtained as a result of entry to premises (s 504). [Com 65,110] Acts of occupiers and affected employers prohibited by the Fair Work Act 2009 (Cth) Under the Fair Work Act 2009 (Cth) (FW Act), a person (including an employer) must not: refuse or delay entry if a permit holder is permitted under the FW Act to enter the premises (s 501); intentionally hinder or obstruct a permit holder at any time after notice of entry is given or while a permit holder is on premises (s 502); and misrepresent what he or she is authorised to do under the FW Act (s 503). In Construction, Forestry, Mining and Energy Union v Hume Highway Constructions Pty Ltd (2013) 274 FLR 470; [2013] FMCA 154; BC201309319; CFMEU argued that Hume Highway Constructions’s refusal to allow entry to its premises amounted to a breach of ss 501 and 502. On the facts, the permit holders had gone off-site to examine a nearby car park. When they tried to re-enter the premises, they were refused. Federal Magistrate Cameron ruled at [113] that for the purposes of “refuse” in s 501, there needs to be an unconditional refusal. “Delay entry” was construed in accordance with Clare & Gilbert Valleys Council v Crawford (2005) 242 LSJS 257; [2005] SADC 135 at [73]: As a matter of ordinary language unduly means “Without due cause or justification; unrightfully, undeservedly; To excess; beyond the due degree”: Shorter Oxford Dictionary. It was found that s 501 was not breached because the refusal to allow entry was not unconditional and, in the circumstances, was reasonable in light of a risk to public order and safety. The permit holders had become involved in an altercation with workers in the car park and police were on their way to assist. There was also no breach of s 502, which ceased to apply upon the permit holders leaving the premises. [Com 65,120] Disputes A dispute regarding the exercise by a permit holder of right of entry, where meetings with employees should be held on an occupier’s premises or about an occupier’s provision of accommodation or transport to facilitate right of entry in remote areas may be dealt with by the FWC by arbitration on its own initiative or on application by a permit holder, the permit holder’s organisation, an employer or an occupier of premises (Fair Work Act 2009 (Cth) (FW Act) s 505). The FWC may: impose conditions on a permit; suspend or revoke a permit; make an order about the future issue of entry permits to one or more persons; or make any other order it thinks appropriate: s 505(2). In The Australian Workers’ Union v Rio Tinto Aluminium (Bell Bay) Limited [2011] FWA 3878, Fair Work Australia (as it then was) noted that when the orders sought are not provided for in s 505(2) (a)–(d), the powers of the FWC in the relevant circumstances of the application are [page 702]

provided for by s 505(2)(e) which effectively leaves the extent of the power of the FWC unrestrained should it find that the request is not reasonable in some relevant way, other than by ss 505(4)–(5). FWC must be fair to all parties (s 505(6)) and cannot confer rights on a permit holder that are additional to those under the FW Act (s 505(5)). Failure to comply with a FWC order attracts a civil remedy: s 506. With the commencement of the Fair Work Amendment Act 2013 (Cth) on 1 January 2014, newlyenacted s 505A enables the FWC to deal with disputes about the frequency with which permit holders from the same union exercise entry rights for the purpose of holding discussions with employees under s 484. No orders can be issued unless the frequency of entry complained of “would require an unreasonable diversion of the occupier’s critical resources” (s 505A(4)). [Com 65,130] Revocation, suspension or imposition of conditions on permits An inspector or other person to be prescribed by the regulations may apply to the FWC to impose conditions on a permit, or revoke or suspend a permit: Fair Work Act 2009 (Cth) (FW Act) s 507. The regulations have not, at the time of writing, prescribed any such other persons. Under s 510, the FWC must revoke or suspend a permit where this would not be harsh or unreasonable in the circumstances and: the permit holder has misrepresented his or her authority in breach of s 503; the permit holder has breached s 504 regarding use and disclosure of employee records and/or the Privacy Commissioner has upheld a complaint in this regard; the permit holder, or another person, was ordered to pay a penalty under the FW Act in relation to a contravention by the permit holder; the permit holder has, when entering under a State or Territory occupational health and safety (OHS) law, taken action not authorised under that State or Territory OHS law (see Martino v McLoughlin [2007] AIRC 717); or a court or other body has cancelled or suspended an individual’s permit under a State or Territory industrial law or has disqualified the permit holder from exercising or applying for a right of entry under that law. A suspension period may be between a minimum of 3 months and 5 years (longer periods may be imposed at the FWC’s discretion), depending on the number of times FWC has previously taken action against the permit holder: s 510(4). A permit may be revoked, or conditions imposed upon it, during a suspension period, and its expiry date will not change despite the suspension period: s 511. A permit holder who has had his or her permit revoked or suspended under s 510(1) must not be issued with future permits until the expiry of the suspension or revocation period. Revoked or suspended permits must be returned to the FWC: s 517. [Com 65,140] Action against organisations exercising rights of entry If an organisation or official has misused rights conferred by the right of entry provisions in the Fair Work Act 2009 (Cth) (FW Act), Fair Work Commission (the FWC) may, on its own initiative or application of an inspector: revoke or suspend permits, make a permit conditional; require that some or all future permits issued to officials of that organisation be subject to set conditions, for a set period; ban issue of permits to an organisation generally (or to specified persons); or make any other order it deems appropriate: s 508. An official misuses rights if, while exercising rights under the FW Act, the official encourages a person to become a member of an organisation and does so in an unduly disruptive manner (eg because the exercise of the right is excessive in the circumstances): s 508(4). This is not exhaustive, and FWC may consider other action to be the misuse of rights under the right of entry provisions of the FW Act.

Failure to comply with an FWC order attracts a civil remedy: s 509. Explanatory Memorandum to the Fair Work Bill 2008 (Cth) at [1907]. See “Bills Digest: Fair Work Bill 2008” (30 January 2009, no 81). 30 See Australian Council of Trade Unions submission to the Senate Education, Employment and Workplace Relations Committee Inquiry into the Fair Work Bill 2008 January 2008. 40 See Australian Industry Group submission to the Senate Education, Employment and Workplace Relations Committee Inquiry into the Fair Work Bill 2008 January 2008. 50 Ford, W J “Being There: Changing Union Rights of Entry Under Federal Industrial Law” (2000) 13 Australian Journal of Labour Law 1. 60 Proof Committee Hansard — Senate Standing Committee on Education, Employment and Workplace Relations, Fair Work Bill 2008, Wednesday, 28 January 2009 p 8. 70 Stewart, A “A Question of Balance: Labor’s New Vision for Workplace Regulation” (2009) 22 AJLL 3. 80 Australian Chamber of Commerce and Industry submission to the Senate Education, Employment and Workplace Relations Committee Inquiry into the Fair Work Bill 2008 January 2008. 90 Australian Business Industrial submission to the Senate Education, Employment and Workplace Relations Committee Inquiry into the Fair Work Bill 2008 January 2008, p 4. 100 See Office of the Privacy Commissioner submission to the Senate Education, Employment and Workplace Relations Committee Inquiry into the Fair Work Bill 2008 January 2008. 110 Supplementary EM, paragraph [173]. 120 Supplementary EM, paragraph [173]. Access to such other premises is facilitated by section 483D. 130 Supplementary EM, paragraph [181]. 10 20

____________________ [page 703]

DIVISION 1 — INTRODUCTION

[7-9690]

Guide to this Part

478 This Part 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. Division 2 allows permit holders to enter premises to investigate suspected contraventions of this Act and fair work instruments. The Division makes special provision in relation to TCF award workers. Division 2 also allows permit holders to enter premises to hold discussions with certain employees and TCF award workers. In exercising rights under Division 2, permit holders must comply with the requirements set out in the Division.

Division 3 sets out requirements for exercising rights under State or Territory OHS laws. Division 4 prohibits certain action in relation to the operation of this Part. Division 5 sets out powers of the FWC in relation to the operation of this Part. Division 6 deals with entry permits, entry notices and certificates. Division 7 deals with accommodation and transport arrangements in remote areas. [Editor’s note: Section 478 of this legislation is reproduced in this format in line with the official version.] [s 478 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012; Act 174 of 2012 s 3 and Sch 9 item 515, opn 1 Jan 2013; Act 73 of 2013 s 3 and Sch 4 item 2, opn 1 Jan 2014]

[7-9710]

Meanings of employee and employer

479 In this Part, employee and employer have their ordinary meanings. COMMENTARY TO SECTION 479*

Derivation …. Employee — s 479 …. Employer — s 479 …. Outline of Section ….

[7-9710.5] [7-9710.10] [7-9710.15] [7-9710.20]

[7-9710.5] Derivation The section is new. [7-9710.10] Employee — s 479 See ss 12, 15(1), 30E(1) and 30P(1). [7-9710.15] Employer — s 479 See ss 12, 15(2), 30E(2) and 30P(2). [7-9710.20] Outline of Section Paragraph 1913 of the Explanatory Memorandum to the Fair Work Bill states unhelpfully that Subdiv A of Div 2 is incidental to other parts of the Bill and could relate to national system employers and their employees, or to other employers and their employees, depending on the part of the Bill that creates the substantive right or obligation. Note also the use of the term “affected employer” in s 482(2).

*Editor’s note: Commentary on s 479 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister. ____________________

[7-9730]

Object of this Part

480 The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

[page 704] (a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of: (i) this Act and fair work instruments; and (ii) State or Territory OHS laws; and (b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and (c) the right of occupiers of premises and employers to go about their business without undue inconvenience. [s 480 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY TO SECTION 480*

Derivation …. Employer — s 480(c) …. Fair work instrument — s 480(a)(i) …. Occupier — s 480(c) …. Official — s 480(b) …. Organisation — s 480, (a), (b) …. Premises — s 480(c) …. State or Territory OHS law — s 480(a)(ii) …. TCF outworker — s 480(b) …. This Act — s 480(a)(i) …. Outline of Section …. [7-9730.05] Derivation Section 736(a) Workplace Relations Act 1996. [7-9730.10] Employer — s 480(c) See s 479. [7-9730.15] Fair work instrument — s 480(a)(i) See s 12. [7-9730.20] Occupier — s 480(c) See s 12. [7-9730.25] Official — s 480(b) See s 12. [7-9730.30] Organisation — s 480, (a), (b) See s 12. [7-9730.35] Premises — s 480(c) See s 12.

[7-9730.05] [7-9730.10] [7-9730.15] [7-9730.20] [7-9730.25] [7-9730.30] [7-9730.35] [7-9730.40] [7-9730.45] [7-9730.50] [7-9730.55]

[7-9730.40] State or Territory OHS law — s 480(a)(ii) See s 12. [7-9730.45] TCF outworker — s 480(b) See s 12. [7-9730.50] This Act — s 480(a)(i) See s 12. [7-9730.55] Outline of Section There exists no right to enter without permission at common law. As Temby AJ held in Warner v Elder [1997] NSWSC 154; BC9703044 at 6: The common law attaches much significance to the privacy of premises and papers. Neither the Crown nor another can force entry upon the premises of a citizen, or seize their papers, without statutory warrant for doing so. The terms of legislation which seek to disturb the common law position are scrutinised carefully and the Courts have shown a propensity to read them down where it is practicable and proper so to do. Indeed protection from arbitrary search and seizure [page 705] by State functionaries has long been seen as characteristic of a free society. The elder Pitt, Earl of Chatham, said this in a speech in about March 1763: The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter — all his forces dare not cross the threshold of the ruined tenement. Similar principles apply to right of entry provisions: “It must be constantly recalled that any conferral of a statutory right to enter premises, be they private premises or business premises, is a serious encroachment upon liberty and all such statutory provisions must be construed so that ‘the encroachment is no greater than the statute allows, expressly or by necessary implication’”: Darlaston v Parker (2010) 189 FCR 1; 196 IR 307; [2010] FCA 771; BC201005179 at [44]. The objects reflect the balancing of these rights with the need to enforce rights under the Act and under State and Territory OHS Law. “The schema of the right of entry provisions in the Act is intended to ensure that a balance between the rights of the occupier of building sites and union officials is achieved”: Construction, Forestry, Mining and Energy Union — Construction and General Division, Queensland Northern Territory Divisional Branch [2015] FWC 6708 at [214]. The Explanatory Memorandum to the Fair Work Act 2009 does add at para 1919 that: This Division gives officials of organisations a statutory right to enter premises and exercise powers provided they satisfy various conditions. It is not intended to codify all of the ways in which entry can occur or provide an exhaustive list of the powers exercisable on the premises. The Division does not affect the ability of an occupier of premises to invite any person onto that premises, e.g., to meet with the employer about a particular matter. In Darlaston v Parker (2010) 189 FCR 1; 196 IR 307; [2010] FCA 771; BC201005179, the Proudman v Dayman defence of honest and reasonable belief was raised. Justice Flick did not reject the raising of that defence but found it unproven on the facts at [86].

*Editor’s Note: Commentary prepared by Ian Latham BA (Hons) LLB (ANU), Barrister. ____________________

DIVISION 2 — ENTRY RIGHTS UNDER THIS ACT Subdivision A — Entry to investigate suspected contravention

[7-9920] Entry to investigate suspected contravention 481 (1) A permit holder may enter premises and exercise a right under section 482 or 483 for the purpose of investigating a suspected contravention of this Act, or a term of a fair work instrument, that relates to, or affects, a member of the permit holder’s organisation: (a) whose industrial interests the organisation is entitled to represent; and (b) who performs work on the premises. Note 1: Particulars of the suspected contravention must be specified in an entry notice or exemption certificate (see subsections 518(2) and 519(2)). Note 2: The FWC may issue an affected member certificate if it is satisfied that a member referred to in this subsection is on the premises (see subsection 520(1)). Note 3: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.

[page 706] Note 4: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 516, opn 1 Jan 2013; Act 73 of 2013 s 3 and Sch 4 item 3, opn 1 Jan 2014]

(2) The fair work instrument must apply or have applied to the member. (3) The permit holder must reasonably suspect that the contravention has occurred, or is occurring. The burden of proving that the suspicion is reasonable lies on the person asserting that fact.

Note: A permit holder who seeks to exercise rights under this Part without reasonably suspecting that a contravention has occurred, or is occurring, is liable to be penalised under subsection 503(1) (which deals with misrepresentations about things authorised by this Part). COMMENTARY TO SECTION 481*

Derivation …. Affected member certificate — s 481(1) …. Contravention — s 481(1), Note 1, (3) Note …. Entry Notice — s 481 Note 1 …. Fair work instrument — s 481 Note 4(2) …. FWC — s 481(1) Note 2, Note 3 …. Hinder or obstruct — s 481 Note 4 …. Industrial interests the organisation is entitled to represent — s 481(1)(a) …. Intentionally — s 481 Note 4 …. Organisation — s 481(1)(a), Note 3 …. Particulars of the suspected contravention — s 481 Note 1 …. Permit holder — s 481, Note 3, Note 4(3) …. Person — s 481 Note 4, Note 4 (3) …. Premises — 481(1), 481(1)(b), Note 2 …. Reasonably suspect — s 481 Note 4(3) …. This Part — s 481(3) Note …. Unduly delay — Note 4 …. Outline of section ….

[7-9920.1] [7-9920.5] [7-9920.10] [7-9920.15] [7-9920.20] [7-9920.25] [7-9920.30] [7-9920.35] [7-9920.40] [7-9920.45] [7-9920.50] [7-9920.55] [7-9920.60] [7-9920.65] [7-9920.70] [7-9920.75] [7-9920.80] [7-9920.85]

[7-9920.1] Derivation The section is loosely derived from s 747 of the Workplace Relations Act 1996. [7-9920.5] Affected member certificate — s 481(1) See ss 12 and 520. [7-9920.10] Contravention — s 481(1), Note 1, (3) Note See [5-3420.10]. [7-9920.15] Entry Notice — s 481 Note 1 See [8-1120.15]. [7-9920.20] Fair work instrument — s 481 Note 4(2) See s 12. [7-9920.25] FWC — s 481(1) Note 2, Note 3 See s 12. [7-9920.30] Hinder or obstruct — s 481 Note 4 See [8-1120.25]. [page 707]

[7-9920.35] Industrial interests the organisation is entitled to represent — s 481(1)(a) See [84980.75]. [7-9920.40] Intentionally — s 481 Note 4 See [8-1080.25]. [7-9920.45] Organisation — s 481(1)(a), Note 3 See s 12. [7-9920.50] Particulars of the suspected contravention — s 481 Note 1 The High Court held in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; 262 ALR 569; [2010] HCA 1; BC201000230. The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW), it was explained that the older cases established that information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that information, or an application containing a statement of offences, “must at the least condescend to identifying the essential factual ingredients of the actual offence”. [7-9920.55] Permit holder — s 481, Note 3, Note 4(3) Note See s 12. [7-9920.60] Person — s 481 Note 4, Note 4 (3) See [8-1080.30]. [7-9920.65] Premises — 481(1), 481(1)(b), Note 2 See s 12. [7-9920.70] Reasonably suspect — s 481 Note 4(3) Reasonably suspect is a phrase with a lower threshold than reasonably believe. It is a state of conjecture or surmise where proof is lacking. Further, a person may reasonably suspect something even though the facts relied upon may later turn out not to be true: see Ruddock v Taylor (2005) 222 CLR 612; 221 ALR 32; [2005] HCA 48; BC200506594 at [70]–[75]. The AIRC said in Re Appeal by Australian Municipal, Administrative, Clerical and Services Union [2008] AIRCFB 96; (2008) 172 IR 1 at [14], in relation to the former s 757 that: The right is conditional on the permit holder having reasonable grounds for suspicion that a breach has occurred or is occurring. There is no requirement or pre-condition in s 747 for the permit holder to satisfy anyone of her/his suspicion or that it is reasonably held. The Full Bench went on to hold that the decision in George v Rockett (1990) 170 CLR 104; 64 ALJR 384; 93 ALR 483; BC9002921 was relevant. That case held that: When a statute prescribes that there must be “reasonable grounds” for a state of mind — including suspicion and belief — it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. [7-9920.75] This Part — s 481(3) Note The part is Pt 3-4 — Right of Entry. [7-9920.80] Unduly delay — Note 4 See [8-1100.20]. [7-9920.85] Outline of section Section 481(1) provides that a permit holder may enter premises for the

purpose of investigating suspected contraventions of workplace laws, subject to some conditions: Re Australian Industry Group [2010] FWAFB 4337; (2010) 196 IR 125 at [5] [page 708]

http://www.lexisnexis.com/au/legal/search/enhRunRemoteLink.do? ersKey=23_T21907038074&backKey=20_T21907038075&homeCsi=344552&A=0.046595151621807385&urlEnc=IS 8859-1&&dpsi=0018&remotekey1=REFPTID&refpt=509466&service=DOC-ID&origdpsi=0HJ5.

*Editor’s note: Commentary to s 481 Outline of Section by Commentary by Joe Catanzariti, Vice President FWC and Michael Byrnes, Special Counsel, Clayton Utz. All other commentary prepared by Ian Latham BA(Hons) LLB (ANU), Barrister. ____________________

[7-9940] Rights that may be exercised while on premises 482 Rights that may be exercised while on premises (1) While on the premises, the permit holder may do the following: (a) inspect any work, process or object relevant to the suspected contravention; (b) interview any person about the suspected contravention: (i) who agrees to be interviewed; and (ii) whose industrial interests the permit holder’s organisation is entitled to represent; (c) require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document (other than a non-member record or document) that is directly relevant to the suspected contravention and that: (i) is kept on the premises; or (ii) is accessible from a computer that is kept on the premises. Note 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504). Note 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

(1A) However, an occupier or affected employer is not required under paragraph (1)(c) to allow the permit holder to inspect, or make copies of, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory. Meaning of affected employer (2) A person is an affected employer, in relation to an entry onto premises under this Subdivision, if: (a) the person employs a member of the permit holder’s organisation whose industrial interests the organisation is entitled to represent; and (b) the member performs work on the premises; and

(c) the suspected contravention relates to, or affects, the member. Meaning of non-member record or document (2A) A non-member record or document is a record or document that: (a) relates to the employment of a person who is not a member of the permit holder’s organisation; and (b) does not also substantially relate to the employment of a person who is a member of the permit holder’s organisation; but does not include a record or document that relates only to a person or persons who are not members of the permit holder’s organisation if the person or persons have consented in writing to the record or document being inspected or copied by the permit holder. [page 709] Occupier and affected employer must not contravene requirement (3) An occupier or affected employer must not contravene a requirement under paragraph (1)(c). Note: This subsection is a civil remedy provision (see Part 4-1). COMMENTARY TO SECTION 482

Scope of section …

[7-9940.1]

[7-9940.1] Scope of section In National Tertiary Education Industry Union v Central Queensland University [2009] FWA 780, Richards SDP held that the provisions of the Fair Work Act concerning the production of documents are different than those that existed under the Workplace Relations Act. Section 482 refers to a record or document that is “directly relevant”, whereas the previous provision simply referred to records which were “relevant”. Richards SDP held at [14] that the effect of this change in terminology is that “it appears the scope of documents that may be accessed by a permit holder under the Fair Work Act 2009 has been constrained to those that are ‘directly relevant’ to the suspected breach. This qualifying requirement (that the documents sought be ‘directly’ relevant) may have the effect of narrowing the scope of documents that may be accessed compared with the provisions under the former Act”. In Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd [2014] FWC 358, Watson VP held that an application to access relevant documents must satisfy two elements. First, it must be shown that a right of entry arose in the circumstances and, secondly, that the classes of documents sought are able to be produced pursuant to s 482. This section does not entitle access to “non-member records or documents as defined in s 482(2A)”.

____________________

[7-9960]

Later access to record or document

483 Later access to record or document (1) The permit holder may, by written notice, require an affected employer to produce, or provide access to, a record or document (other than a nonmember record or document) that is directly relevant to the suspected contravention on a later day or days specified in the notice. (1A) However, an affected employer is not required under subsection (1) to produce, or provide access to, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory. Other rules relating to notices (2) The day or days specified in the notice must not be earlier than 14 days after the notice is given. (3) The notice may be given: (a) while the permit holder is on the premises; or (b) within 5 days after the entry. Affected employer must not contravene requirement (4) An affected employer must not contravene a requirement under subsection (1). Note: This subsection is a civil remedy provision (see Part 4-1).

Where record or document may be inspected or copied (5) The permit holder may inspect, and make copies of, the record or document at: (a) the premises; or [page 710] (b) if another place is agreed upon by the permit holder and the affected employer — that other place. Note 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).

Note 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

[7-9980] Application to the FWC for access to non-member records 483AA (1) The permit holder may apply to the FWC for an order allowing the permit holder to do either or both of the following: (a) require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, specified non-member records or documents (or parts of such records or documents) under paragraph 482(1)(c); (b) require an affected employer to produce, or provide access to, specified non-member records or documents (or parts of such records or documents) under subsection 483(1). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 518, opn 1 Jan 2013]

(2) The FWC may make the order if it is satisfied that the order is necessary to investigate the suspected contravention. Before doing so, the FWC must have regard to any conditions imposed on the permit holder’s entry permit. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 519, 520, opn 1 Jan 2013]

(3) If the FWC makes the order, this Subdivision has effect accordingly. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 521, opn 1 Jan 2013]

(4) An application for an order under this section: (a) must be in accordance with the regulations; and (b) must set out the reason for the application. [s 483AA am Act 174 of 2012 s 3 and Sch 9 item 517, opn 1 Jan 2013]

Subdivision AA — Entry to investigate suspected contravention relating to TCF award workers [Subdiv AA heading subst Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

[8-100] Entry to investigate suspected contravention relating to TCF award workers

483A (1) Subject to subsection (6), a permit holder may enter premises and exercise a right under section 483B or 483C for the purpose of investigating a suspected contravention of: (a) this Act, or a term of a fair work instrument, that relates to, or affects, a TCF award worker: (i) whose industrial interests the permit holder’s organisation is entitled to represent; and (ii) who performs work on the premises; or [page 711] (b) a designated outworker term that is in an instrument that relates to TCF award workers whose industrial interests the permit holder’s organisation is entitled to represent. Note 1: Particulars of the suspected contravention must be specified in an entry notice, unless the entry is a designated outworker terms entry (see subsection 518(2)). Note 2: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused. Note 3: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and s502). [subs (1) am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012; Act 73 of 2013 s 3 and Sch 4 items 4, 5, opn 1 Jan 2014]

(1A) A TCF award worker is: (a) an employee whose work is covered by a TCF award; or (b) an individual who, for the purpose of a contract for the provision of services, performs work that is covered by a TCF award. [subs (1A) insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

(2) The permit holder must reasonably suspect that the contravention has occurred, or is occurring. (3) The burden of proving that the suspicion is reasonable lies on the person asserting that fact. (4) Subsections (2) and (3) do not apply in relation to a designated outworker terms entry. (5) A designated outworker terms entry is an entry under paragraph (1)(b)

for the purpose of investigating a suspected contravention of a designated outworker term. (6) Particular premises of a person cannot be entered under paragraph (1) (a) if: (a) the person is accredited (however described) by a person or body specified by name in the regulations; and (b) the accreditation is in writing and is in force; and (c) the premises are identified in the accreditation as being the principal place of business of the accredited person. Note: The fact that this subsection may result in certain premises not being able to be entered under paragraph (1)(a) for the purpose of investigating a particular suspected contravention does not: (a) prevent the premises being entered for that purpose under Subdivision A; or (b) prevent the premises being entered under paragraph (1)(b) of this section. [subs (6) insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

(7) Before the Governor-General makes a regulation specifying a particular person or body for the purposes of paragraph (6)(a), the Minister must be satisfied that the person or body: (a) has aims that are consistent with the objects of Part 6-4A; and (b) has the endorsement of: (i) at least one employee organisation that is entitled to represent the industrial interests of TCF award workers; and (ii) at least one employer organisation that is entitled to represent the industrial interests of persons who employ or engage TCF award workers. [subs (7) insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] [s 483A am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

[page 712]

[8-120] Rights that may be exercised while on premises 483B Rights that may be exercised while on premises

(1) While on the premises, the permit holder may do the following: (a) inspect any work, process or object relevant to the suspected contravention; (b) interview any person about the suspected contravention: (i) who agrees to be interviewed; and (ii) whose industrial interests the permit holder’s organisation is entitled to represent; (c) require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document that is directly relevant to the suspected contravention and that: (i) is kept on the premises; or (ii) is accessible from a computer that is kept on the premises. Note 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504). Note 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

(2) However, an occupier or affected employer is not required under paragraph (1)(c) to allow the permit holder to inspect, or make copies of, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory. Meaning of affected employer (3) A person is an affected employer: (a) in relation to an entry onto premises under section 483A other than a designated outworker terms entry, if: (i) the person employs or engages a TCF award worker whose industrial interests the permit holder’s organisation is entitled to represent; and (ii) the TCF award worker performs work on the premises; and (iii) the suspected contravention relates to, or affects, the TCF award worker; or (b) in relation to a designated outworker terms entry under section 483A, if the person is covered by a TCF award. [subs (3) am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

Occupier and affected employer must not contravene requirement (4) An occupier or affected employer must not contravene a requirement under paragraph (1)(c). Note: This subsection is a civil remedy provision (see Part 4-1).

[8-140]

Later access to record or document

483C Later access to record or document (1) The permit holder may, by written notice, require the occupier or an affected employer to produce, or provide access to, a record or document that is directly relevant to the suspected contravention on a later day or days specified in the notice. (2) However, an occupier or affected employer is not required under subsection (1) to produce, or provide access to, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory. [page 713] Other rules relating to notices (3) The day or days specified in the notice must not be earlier than 14 days after the notice is given. (4) The notice may be given: (a) while the permit holder is on the premises; or (b) within 5 days after the entry. Occupier and affected employer must not contravene requirement (5) An occupier or affected employer must not contravene a requirement under subsection (1). Note: This subsection is a civil remedy provision (see Part 4-1).

Where record or document may be inspected or copied (6) The permit holder may inspect, and make copies of, the record or document at:

(a) the premises; or (b) if another place is agreed upon by the permit holder and the occupier or affected employer — that other place. Note 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504). Note 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

[8-160] Entry onto other premises to access records and documents 483D (1) A permit holder who may enter premises under paragraph 483A(1)(a) for the purpose of investigating a suspected contravention may enter other premises and exercise a right under subsection (2) or section 483E if the permit holder reasonably suspects that records or documents that are directly relevant to the suspected contravention: (a) are kept on the other premises; or (b) are accessible from a computer that is kept on the other premises. Note: Particulars of the suspected contravention must be specified in an entry notice (see subsection 518(2)).

Rights that may be exercised while on premises (2) While on the other premises, the permit holder may require the occupier to allow the permit holder to inspect, and make copies of, any such record or document. Note 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504). Note 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

(3) However, an occupier is not required under subsection (2) to allow the permit holder to inspect, or make copies of, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory. Occupier must not contravene requirement (4) An occupier must not contravene a requirement under subsection (2). Note: This subsection is a civil remedy provision (see Part 4-1).

[page 714]

[8-180] Later access to record or document — other premises 483E Later access to record or document (1) The permit holder may, by written notice, require the occupier of the other premises to produce, or provide access to, a record or document that is directly relevant to the suspected contravention on a later day or days specified in the notice. (2) However, an occupier is not required under subsection (1) to produce, or provide access to, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory. Other rules relating to notices (3) The day or days specified in the notice must not be earlier than 14 days after the notice is given. (4) The notice may be given: (a) while the permit holder is on the other premises; or (b) within 5 days after the entry. Occupier must not contravene requirement (5) An occupier must not contravene a requirement under subsection (1). Note: This subsection is a civil remedy provision (see Part 4-1).

Where record or document may be inspected or copied (6) The permit holder may inspect, and make copies of, the record or document at: (a) the other premises; or (b) if another place is agreed upon by the permit holder and the occupier — that other place. Note 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504). Note 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

Subdivision B — Entry to hold discussions

[8-320]

Entry to hold discussions

484 A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers: (a) who perform work on the premises; and (b) whose industrial interests the permit holder’s organisation is entitled to represent; and (c) who wish to participate in those discussions. Note 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused. Note 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502). Note 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section. [s 484 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012; Act 73 of 2013 s 3 and Sch 4 item 6, opn 1 Jan 2014]

[page 715] COMMENTARY TO SECTION 484*

Derivation …. Discussions — s 484, (c) …. Entitled to represent …. For the purpose — s 484 …. Organisation — s 484(b) …. Permit holder — s 484 …. Premises — s 484 …. TCF outworkers — s 484 …. Outline of section …. Entry ….

[8-320.1] [8-320.2] [8-320.3] [8-320.4] [8-320.5] [8-320.10] [8-320.15] [8-320.20] [8-320.25] [8-320.30]

[8-320.1] Derivation Before the enactment of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), there was no statutory right for a union representative to enter premises for the purposes of having discussions with employees. Such a right was first introduced by the

amending act of 1996, but neither the Explanatory Memorandum for, nor the parliamentary record in respect of, the relevant Bill throws any light on the subject: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85; BC201204003 at [20] (8 June 2012) per Jessup J. [8-320.2] Discussions — s 484, (c) In Australasian Meat Industry Employees Union, The [2015] FWCFB 5228, the Full Bench of the FWC found that: It seems plain that the ordinary meaning of discussion includes one that is conducted in writing or that includes writing. We do not consider that there is anything in the text of s 484 or in Pt 3–4 of the Act, which suggests the word “discussions” should carry a more narrow meaning confined wholly to oral communications. There is also nothing in the contextual consideration earlier discussed, which would suggest a more narrow meaning. The application of the ordinary meaning, which would permit “discussions” to include or be facilitated by the provision of written material, is consistent with the object of Pt 3–4 in s 480 set out earlier — in particular that part of the object in s 480(b) which refers to the right of employees to receive at work “information” from officials of organisations. In our view, had the Parliament intended to limit the right to hold discussions with relevant employees to oral communications, it could have easily done so by drafting s 484 of the Act so as to provide the permit holder with a right to enter “for the purposes of speaking with” relevant employees. [8-320.3] Entitled to represent See [5-970.240.25]. In Construction, Forestry, Mining and Energy Union v Austral Bricks (Vic) Pty Ltd [2014] FWC 5407 at [50], Gostencnik DP held that: [I]n many workplaces it will not be uncommon that during a meal break a lunch room will have present employees who fall within and those who fall outside of the prescribed class of employees with whom a permit holder is permitted to hold discussions. The permit holder should take some steps to ascertain whether those in the room are willing to participate in discussions particularly if the permit holder intends to conduct those discussions by way of a meeting addressing all in attendance. If there are persons who do not wish to participate in discussions, it seems to me that it is incumbent on the permit holder to moderate his or her discussions in a way that will not interfere with the right of an employee to remain in the lunchroom and not to participate in those discussions. That may involve utilising only a portion of the lunchroom and moderating the volume at which the discussion occurs. If that is not possible then it may be appropriate for the permit holder to seek an agreement with the occupier for a more suitable venue. The level of moderation necessary will depend on the [page 716] circumstances and I am not suggesting that the permit holder must resort to whispering or that those not wishing to participate must not hear any discussion. Meal rooms will, during breaks, doubtless be places of discussion amongst employees. A permit holder should therefore adjust the manner of address to willing participants so as not to unduly interfere with the capacity to those not willing to go about their usual activity in the meal room. [8-320.4] For the purpose — s 484 In Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88; 204 IR 309; [2010] FCAFC 90; BC201004937 at [39] it was held that: The permit holder must rather satisfy the requirement that he or she have the required purpose. Establishment of, or challenge to the existence of such purpose may involve examination of whether there was an adequate factual basis for having the prescribed purpose. If, for example, the permit

holder did not have some basis for a belief that there were eligible employees on the premises, then it may be difficult to conclude that he or she had the purpose of entering into discussions with people fitting that description. His or her purpose may rather have been to discover whether there were such people on the premises. Of course, a person may have more than one purpose. Authorization … is not dependent upon the permit holder having reasonable grounds for a particular belief. In National Union of Workers v Coles Group Supply Chain Pty Ltd [2014] FWC 1674 it was held that s 484 does not preclude permit holders from approaching employees at the relevant premises. In that case, Coles had unsuccessfully argued that the permit holders could engage in discussions and interview employees who approached them, but they could not approach employees or otherwise roam the premises. Cmr Roe said at [28]: An organiser approaching an employee who wishes to participate in discussions is not contrary to Section 484 or to the legislative scheme. Read in context the expression “who wish to participate in those discussions” does not exclude a permit holder from approaching employees to identify if they wish to participate in discussions. A discussion can occur in two ways — the permit holder can approach the employee or the employee can approach the permit holder. The Act does not suggest one or the other. In BPL Adelaide Pty Ltd [2015] FWC 3905, it was confirmed that permit holders exercising a right of entry pursuant to s 484 could hold discussions and interview employees, but that such a right would be subject to compliance with company policies regarding the use of imaging capable devices such as mobile phone and ipads when attending the premises. [8-320.5] Organisation — s 484(b) See s 12. [8-320.10] Permit holder — s 484 See s 12. [8-320.15] Premises — s 484 See s 12. [8-320.20] TCF outworkers — s 484 See s 12. [8-320.25] Outline of section The right of entry conferred by s 484 is not an untrammelled right. It is a right subject to both express and implied constraints. One express constraint is that the right of a permit holder is one that must be exercised for one or other of the “purposes” set forth in s 484. Another express constraint is that the right of entry is subject to any “reasonable request” that may be made by the occupier of the premises that the permit holder seeks to enter. A further express constraint is that contained within s 490(2) limiting discussion to meal and lunch breaks. An implied constraint is that the right must be exercised so as to promote the object of Pt 3-4 as set forth in s 480. Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85; BC201204003 at [56]. Note, refer also s 490(2). [page 717] [8-320.30] Entry It is important to note that in the case of entering for the purposes of holding discussions, the Fair Work Act 2009 limits such discussions to workers whose industrial interests the permit holder’s organisation is entitled to represent and who wish to participate in those discussions: Construction, Forestry, Mining and Energy Union v Foster Wheeler Worley Parsons (Pluto) Joint Venture [2010] FWA 2341 at [72].

In Australasian Meat Industry Employees’ Union v Somerville Retail Services [2010] FWA 6737, the AMIEU sought orders that when the permit holders entered the premises for the purpose of holding discussions they be permitted to hold those discussions in the lunch room. In regard to the requirement of s 484(c), Roe C held at [39] that the section makes it clear that “rights under s 484 can only be exercised for the purposes of holding discussions with those who wish to participate in those discussions”. The employer had argued that this meant the meal room was unsuitable because it was possible that employees who did not wish to participate in discussions would not be able to enjoy their meal undisturbed. Roe C held at [40] that “An apprehension by the Employer that some employees may be inconvenienced if the discussions take place in a particular location is unlikely to be a relevant consideration unless it caused undue inconvenience to the capacity of the employer to go about its business”. Moreover, the presence of employees who did not wish to participate in the discussions would not of itself make the location inappropriate “unless it could be shown that the objective of the permit holder was not to hold discussions with those who wish to participate in those discussions”. Roe C further held that the right of entry is a right of the permit holder. Therefore, a permit holder approaching an employee to participate in discussions is not contrary to the legislative scheme unless they unreasonably persist after it is apparent the employee does not want to participate: at [41]. Roe C held at [42] that an arrangement for right of entry for discussion purposes which requires the employee to advise the employer that they wish or do not wish to participate in discussions with the permit holder is contrary to the Objects of the Act and of Pt 3–4 in particular. *Editor’s note: Commentary to “Entry” by Joe Catanzariti, VP FWC and Michael Byrnes, Special Counsel, Clayton Utz. All other commentary prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________

Subdivision C — Requirements for permit holders

[8-460] Permit holder must not contravene this Subdivision 486 Subdivisions A, AA and B do not authorise a permit holder to enter or remain on premises, or exercise any other right, if he or she contravenes this Subdivision, or regulations prescribed under section 521, in exercising that right.

[8-480] Giving entry notice or exemption certificate 487 Entry under Subdivision A or B (1) Unless the FWC has issued an exemption certificate for the entry, the permit holder must:

(a) before entering premises under Subdivision A — give the occupier of the premises and any affected employer an entry notice for the entry; and (b) before entering premises under Subdivision B — give the occupier of the premises an entry notice for the entry. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 522, opn 1 Jan 2013]

(2) An entry notice for an entry is a notice that complies with section 518. (3) An entry notice for an entry under Subdivision A or B must be given during working hours at least 24 hours, but not more than 14 days, before the entry. [page 718] (4) If the FWC has issued an exemption certificate for the entry, the permit holder must, either before or as soon as practicable after entering the premises, give a copy of the certificate to: (a) the occupier of the premises or another person who apparently represents the occupier; and (b) any affected employer or another person who apparently represents the employer; if the occupier, employer or other person is present at the premises. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 522, opn 1 Jan 2013]

Entry under Subdivision AA (5) If the permit holder enters premises under Subdivision AA, the permit holder must, either before or as soon as practicable after entering the premises, give an entry notice for the entry to the occupier of the premises or another person who apparently represents the occupier if the occupier or other person is present at the premises. COMMENTARY TO SECTION 487*

Derivation …. Affected employer — s 487(1)(a), (4)(b) …. Employer — s 487(1)(a), 4(b) ….

[8-480.05] [8-480.10] [8-480.15]

Entry notice — s 487(1)(a), (b), (2), (3), (5) …. Exemption certificate — s 487(1), (4) …. FWC — s 487(1), (4) …. Occupier — s 487(1)(a), (b), (4)(a), (5) …. Permit holder — s 487(1), (4), (5) …. Premises — s 487(1)(a), (b), (4)(a), (5) …. Outline of section ….

[8-480.20] [8-480.25] [8-480.30] [8-480.35] [8-480.40] [8-480.45] [8-480.50]

[8-480.05] Derivation The section has some similarities to s 749 of the Workplace Relations Act 1996. [8-480.10] Affected employer — s 487(1)(a), (4)(b) The Explanatory Memorandum to the Fair Work Bill 2009 states at [1949] that this clause requires a permit holder to give either an entry notice or an exemption certificate to the occupier of the premises before entry to investigate a suspected contravention or to hold discussions with people under this Division. Where the permit holder is entering to investigate a suspected contravention, the entry notice or exemption certificate must also be given to any affected employer (this term is defined in cl 482(2)). This is to address situations where the affected employer is not the occupier of the premises to ensure the affected employer is given advance notice that the permit holder will be entering and may be seeking to interview employees, inspect records or exercise other powers conferred by the Bill. [8-480.15] Employer — s 487(1)(a), 4(b) See s 479. [8-480.20] Entry notice — s 487(1)(a), (b), (2), (3), (5) See s 12. As to the validity of notices see The Australian Workers’ Union [2014] FWC 6916 at [22]–[27]. [8-480.25] Exemption certificate — s 487(1), (4) See ss 12 and 519. [8-480.30] FWC — s 487(1), (4) See s 12. [page 719] [8-480.35] Occupier — s 487(1)(a), (b), (4)(a), (5) See s 12. [8-480.40] Permit holder — s 487(1), (4), (5) See s 12. [8-480.45] Premises — s 487(1)(a), (b), (4)(a), (5) See s 12. [8-480.50] Outline of section In Construction, Forestry, Mining and Energy Union v Safety Glass Pty Ltd t/as Melbourne Safety Glass [2010] FCA 989; BC201006620 (9 September 2010); it was held that: A union official who holds a permit and who wishes to enter premises must give the employer an entry notice at least 24 hours before exercising a right of entry. To similar effect the Explanatory Memorandum to the Fair Work Bill states at [1953] that a permit holder who does not comply with the notice requirements in this clause is not authorised to enter or remain on the premises as a result of the operation of clause 486.

*Editor’s note: Commentary to s 487 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[8-500]

Contravening entry permit conditions

488 The permit holder must not contravene a condition imposed on the entry permit. COMMENTARY TO SECTION 488*

Derivation …. Entry permit — s 488 …. Imposed on the entry permit — s 488 …. Permit holder — s 488 …. Outline of section ….

[8-500.05] [8-500.10] [8-500.15] [8-500.20] [8-500.25]

[8-500.05] Derivation Section 766 of the Workplace Relations Act 1996. [8-500.10] Entry permit — s 488 See s 12. [8-500.15] Imposed on the entry permit — s 488 See s 515. For an example see Construction, Forestry, Mining and Energy Union [2013] FWCD 4666 (14 August 2013). [8-500.20] Permit holder — s 488 See s 12. [8-500.25] Outline of section The Explanatory Memorandum to the Fair Work Act 1996 states at para 1955 that: This clause requires a permit holder to comply with any such condition that has been imposed on his or her entry permit whilst exercising or seeking to exercise rights under this Division. If a permit holder fails to do so then she or he is not authorised to enter or remain on the premises because of the operation of clause 486. *Editor’s note: Commentary to s 488 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[8-520]

Producing authority documents

489 (1) If the permit holder has entered premises under Subdivision A or AA, the permit holder must produce his or her authority documents for inspection by the occupier of the premises, or an affected employer:

[page 720] (a) on request; and (b) before making a requirement under: (i) paragraph 482(1)(c) or 483B(1)(c), or subsection 483D(2); or (ii) subsection 483(1), 483C(1) or 483E(1). Note: Paragraphs 482(1)(c) and 483B(1)(c) and subsection 483D(2) deal with access to records and documents while the permit holder is on the premises. Subsections 483(1), 483C(1) and 483E(1) deal with access to records and documents at later times.

(2) If the permit holder has entered premises under Subdivision B, the permit holder must produce his or her authority documents for inspection by the occupier of the premises on request. (3) Authority documents, for an entry under Subdivision A, AA or B, means: (a) the permit holder’s entry permit; and (b) either: (i) a copy of the entry notice for the entry; or (ii) if the FWC has issued an exemption certificate for the entry — the certificate. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 523, opn 1 Jan 2013]

[8-540]

When right may be exercised

490 (1) The permit holder may exercise a right under Subdivision A, AA or B only during working hours. (2) The permit holder may hold discussions under section 484 only during mealtimes or other breaks. (3) The permit holder may only enter premises under Subdivision A, AA or B on a day specified in the entry notice or exemption certificate for the entry. COMMENTARY TO SECTION 490*

Derivation …. Entry notice — s 490(3) ….

[8-540.01] [8-540.05]

Exemption certificate — s 490(3) …. Other breaks — s 490(2) …. Permit holder — s 490(1), (2), (3) …. Premises — s 490(3) …. Working hours — s 490(1) …. Outline of section ….

[8-540.10] [8-540.15] [8-540.20] [8-540.25] [8-540.30] [8-540.35]

[8-540.01] Derivation Section 766 of the Workplace Relations Act 1996. [8-540.05] Entry notice — s 490(3) See ss 12 and 487(2). [8-540.10] Exemption certificate — s 490(3) See ss 12 and 519. [8-540.15] Other breaks — s 490(2) The ordinary meaning of the term, read in context, should therefore be construed as a brief or temporary interval in the relevant employee’s work (that is within their working hours or their shift or any other period they are required to work), where the employee is not required by the employer to perform any work-related tasks. Breaks may be permitted or required by the employer. This would include, for example, a tea or coffee break, a “smoko” break, or other times during a shift when work is not being performed and is not [page 721] required by the employer to be performed … The period outside of the employee’s working hours or shift times (including the time before an employee commences work, the time after which an employee finishes their shift, and the remaining period between shifts) should properly be considered as ‘nonworking hours’, or the employee’s own free time. This period is not an ‘other break’ for the purposes of section 490(2) of the Act. An ‘other break’ should, when construed in context and having regard to the Purpose and Scheme of the legislation, be properly regarded as a break only during a period of the relevant employee’s work time (their shift), when the employee is not required to perform work-related functions: Construction, Forestry, Mining and Energy Union [2016] FWC 3829 at [143], [147] and [148]. [8-540.20] Permit holder — s 490(1), (2), (3) See s 12. [8-540.25] Premises — s 490(3) See s 12. [8-540.30] Working hours — s 490(1) Paragraph 1961 of the Explanatory Memorandum to the Fair Work Bill 2009 states that “[w]orking hours refers to the actual operating hours of the premises that the permit holder wishes to enter”. [8-540.35] Outline of section The time at which permit holders may enter premises and at which they may hold discussions with employees are regulated (ss 490, 492), as are the places at which they may meet the employees (s 492): Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413; BC201602890 at [44]. * Editor’s note: Commentary on 490 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[8-560] Occupational health and safety requirements 491 The permit holder must comply with any reasonable request by the occupier of the premises for the permit holder to comply with an occupational health and safety requirement that applies to the premises. Note: The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)). [s 491 am Act 174 of 2012 s 3 and Sch 9 item 524, opn 1 Jan 2013] COMMENTARY TO SECTION 491*

Derivation …. FWC — s 491, Note …. Occupational health and safety requirement — s 491 …. Occupier — s 491 …. Premises — s 491 …. Reasonable request — s 491 …. Outline of section ….

[8-560.05] [8-560.10] [8-560.15] [8-560.20] [8-560.25] [8-560.30] [8-560.35]

[8-560.05] Derivation The section is loosely derived from s 758(3) Workplace Relations Act 1996. [8-560.10] FWC — s 491, Note See s 12. [8-560.15] Occupational health and safety requirement — s 491 [A]n occupational health and safety requirement that applies to the premises is a statutory phrase not elsewhere defined: [page 722] Darlaston v Parker (2010) 189 FCR 1; 196 IR 307; [2010] FCA 771; BC201005179 at [46] (Darlaston). [8-560.20] Occupier — s 491 See s 12. [8-560.25] Premises — s 491 See s 12. [8-560.30] Reasonable request — s 491 As Flick J has said in Australasian Meat Industry Employees’ Union v Fair Work Australia (2012) 203 FCR 389; 221 IR 318; [2012] FCAFC 85; BC201204003 at [60]: The interests which must be taken into account when forming a view as to whether a “request” made by an “occupier” is “reasonable”, however, are not self-evident. Questions arise as to whether the

reasonableness of a “request” of an occupier: can be dictated exclusively by the proprietary self-interests of the occupier; or whether an occupier must only make a “request” which: attempts to “balance” the matters set forth… These requests may for example require induction of the permit holder: Darlaston at [123]–[125] the prevention of permit holders from walking on unfinished building work at [144]; having the permit holders move their cars away from construction work Darlaston at [180] and limiting the number who can be spoken to at any moment: Construction, Forestry, Mining and Energy Union v Foster Wheeler Worley Parsons (Pluto) Joint Venture [2010] FWA 2341; BC201070737 at [56]–[57]. [8-560.35] Outline of section The Explanatory Memorandum to the Fair Work Act 1996 at para 1964 sets out the following explanation of the section: For example, if a permit holder seeks to enter a construction site where there is a legislative requirement to wear a hard hat, it would be reasonable for the occupier to require the permit holder to wear a hard hat. If the permit holder does not comply with this request, then she or he would not be authorised to enter or remain on the premises because of the operation of clause 486. *[Editor’s note: Commentary on s 491 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.]

____________________

[8-580]

Location of interviews and discussions

492 (1) The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises. (2) Subsection (3) applies if the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions. (3) The permit holder may conduct the interview or hold the discussions in any room or area: (a) in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and (b) that is provided by the occupier for the purpose of taking meal or other breaks. Note 1: The permit holder may be subject to an order by the FWC under section 508 if rights under this section are misused. Note 2: A person must not intentionally hinder or obstruct a permit holder exercising rights under this section (see section 502). [s 492 subst Act 73 of 2013 s 3 and Sch 4 item 7, opn 1 Jan 2014]

[page 723] COMMENTARY TO SECTION 492

Scope of section …. Fit for purpose — s 492(2)(a) …. Request made with intention of intimidating, discouraging, or making participation difficult — s 492(2)(b) ….

[8-580.1] [8-580.5]

[8-580.7]

[8-580.1] Scope of section Many of the provisions concerning right of entry under the Fair Work Act 2009 are similar in their effect to those which were found in the Workplace Relations Act 1996; however, it should be noted that there was no equivalent to the provisions of s 492(2) of the Fair Work Act 2009: Australasian Meat Industry Employees’ Union v Somerville Retail Services [2010] FWA 6737 at [12]. In Australasian Meat Industry Employees’ Union v Somerville Retail Services [2010] FWA 6737, Commissioner Roe noted that s 492(3) provides a request is not unreasonable simply because the permit holder would have taken a different room. However, Commissioner Roe held that the union had established that the request was unreasonable because of the effect the requested arrangement had on the ability of the union to exercise its rights and its capacity to achieve the objects of Pt 3–4 and the ability of employees who wished to have discussions to effectively do so. Roe C noted that the list of factors in s 492(2) is not exhaustive: at [47]. In considering the test for determining whether an employer’s request is reasonable, Commissioner Roe held that there is sufficient similarity between the provisions of the Workplace Relations Act 1996 and the Fair Work Act 2009 such that the Full Bench authority of Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office [2007] AIRCFB 36 is still relevant. In that decision, the Full Bench stated at [29]: We accept that in considering whether an employer’s request is reasonable for the purposes of s 751(3) the Commission is required to take all of the circumstances into account and to consider the legitimate interests of the employer or the occupier of the premises as well as the interests of the employees and the permit holder. The public interest in the observance of industrial laws is also a relevant consideration. Commissioner Roe further held that the general objects of the Fair Work Act 2009 set out in s 3 were another legitimate consideration when dealing with whether the requirements were reasonable or unreasonable. Commissioner Roe held that there was no evidence of inconvenience to the employer in this case and therefore the reasonableness should be judged against the extent to which it enables the first two objectives in s 480 of the Act concerning the rights of the AMIEU and the rights of employees to have representation. After considering these factors, Commissioner Roe held at [38] that the AMIEU had established the request to use the training room was unreasonable because it: Has the effect of discouraging eligible employees and making it unnecessarily difficult for eligible employees who wish to participate in those discussions and that in the circumstances of this case that is contrary to the objectives of Part 3–4 of the Act as set out in section 480. In Somerville Retail Services Pty Ltd v Australasian Meat Industry Employees’ Union [2011] FWAFB 120, the Full Bench upheld Cmr Roe’s decision.

In determining whether a request was reasonable, Fair Work Australia in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2011] FWA 297 at [21] concluded that it would not be appropriate to consider whether an alternative location would have been more reasonable as this would clash with the intent of s 492(3). When considering the application of s 492(2), Commissioner Lewin, in Australian Workers’ Union v Rio Tinto Aluminium (Bell Bay) Ltd [2011] FWA 3878, noted that s 492(2) has two [page 724] distinct dimensions: one is a purely objective question of whether a particular room is fit for the purpose of the discussions the Act provides for, and the other concerns the intentions of an occupier of premises or an employer. Section 492(3) was considered in National Union of Workers v Coles Group Supply Chain Pty Ltd [2014] FWC 1674. Although permitted to hold interviews and discussions at a table in the lunch room, Coles would not allow NUW’s permit holders to approach workers to initiate decisions or roam around the lunchroom. NUW argued that Coles had no right to impose these conditions under s 492 of the FW Act. On the other hand, Coles argued that NUW should not be permitted to approach workers because s 484 limits discussions and interviews with workers “who wish to participate in those discussions”. Commissioner Roe ruled at [33] that there may be circumstances where employers can reasonably restrict the manner in which the meal or break room is accessed by permit holders. For instance, an employer could restrict access to one of two available meal rooms where employees could choose which room to access. However, Cmr Roe found that employers do not have a general right to prevent permit holders from approaching employees to identify if they wish to participate in discussions. Accordingly, the conditions set by Coles were contrary to the Act. [8-580.5] Fit for purpose — s 492(2)(a) In Construction, Forestry, Mining and Energy Union v Foster Wheeler Worley Parsons (Pluto) Joint Venture [2010] FWA 2341, Commissioner Williams held at [142] that: I accept the view that in considering whether the designated meeting areas are fit for the purpose of holding discussions the tribunal does not need to consider whether the crib rooms proposed by the applicant would be a preferable location. This is not relevant to whether or not the designated areas are fit for the purpose of holding discussions. This point may have to be considered under s 492(2)(b) but not under s 492(2)(a). Commissioner Roe in Australasian Meat Industry Employees’ Union, The v Somerville Retail Services [2010] FWA 6737 cited the above statement of Williams C with approval. The FWC may impose monetary penalties for contraventions arising under s 492(2)(a) in circumstances where the conduct is “deliberate” and “repeated”: Director of Fair Work Building Industry Inspectorate v Upton [2015] FCA 672; BC201506041. [8-580.7] Request made with intention of intimidating, discouraging, or making participation difficult — s 492(2)(b) In Australian Workers’ Union; Australian Workers’ Union of Employees, Queensland v Ardent Leisure Ltd t/as Dreamworld [2009] FWA 926, Richards SDP had to determine whether or not the occupier of the premises, Dreamworld, made an unreasonable request for the permit

holder to meet in a particular building and did so with the intention of doing the kind of matters proscribed in s 492(2)(b)(i), (ii) and (iii) of the Act. As his Honour saw it, the Act required that he “investigate [the decision maker’s] motivation [to determine if] it demonstrates an intention to do the things that are proscribed” (at [16]). Richards SDP stressed that if he was not able to establish that the employer had acted with the intention to do any of the things proscribed, the employer could not be found to have breached the Act. In holding that an employer’s decision to change the customary location of meetings was not unreasonable, Richards SDP held at [25] that “Absent the intention, there can be no act of unreasonableness on the part of the occupier such that it intended the consequences of the location that was nominated for the meetings as alleged by the AWU”. However, in Australian Workers’ Union v Amcor Packaging (Australia) Pty Ltd v ISS Integrated Services Pty Ltd [2009] FWA 1236, despite finding that the employer had not intended to [page 725] discourage potential union members from discussing matters with the permit holders, given that the designated room was some distance from the administration building, and more importantly, the canteen, the grassed area and the smoking hut, the room provided by the employer to the permit holder to interview potential union members was found to be an unreasonable request on the part of the employer. In determining whether the employer acted with the intention to do the matters proscribed in s 492(2), it has been held that inferences can be drawn from the actions of the employer: Australasian Meat Industry Employees’ Union v Somerville Retail Services [2010] FWA 6737 at [54]. An arrangement which required employees to advise their supervisor and which required them to go through a door which was not usually accessible to them into the administration area, was found to be unreasonable as it had the effect of deterring employees from participating in discussions: Australasian Meat Industry Employees’ Union v Somerville Retail Services [2010] FWA 6737 at [55]. In the case of Construction, Forestry, Mining and Energy Union v Foster Wheeler Worley Parsons (Pluto) Joint Venture [2010] FWA 2341, Williams C held at [65] that the escorting of permit holders did not have an intimidating effect on employees as it was a requirement for all visitors on the site for the legitimate purpose of ensuring site and personnel safety. Moreover, in the decision of Australian Workers’ Union; Australian Workers’ Union of Employees, Queensland v Ardent Leisure Ltd t/as Dreamworld [2009] FWA 926, Richards SDP found that a security guard carrying out instructions to escort union officials was not a disincentive for employees to attend the union meetings: at [39]. Deputy President McCarthy, in Australasian Meat Industry Employees’ Union v Dardanup Butchering Unit Trust t/as Dardanup Butchery Company [2010] FWA 9197, found that no inferences can be drawn from the evidence presented that the employer had chosen a training room, located next to the Human Resources office, for the purpose of intimidating or discouraging employees from attending. Deputy President McCarthy noted at [18] and [19] that there might be number of reasons why there was a low turn-out of employees, and without any evidence to show that employees were intimidated or discouraged, it would be inappropriate to make any inferences about the motivations of the employer, particularly given the fact that valid reasons were provided for the choice of the room. While there might be a possibility that some employees felt intimidated, McCarthy DP, at [31] concluded that this is a long way short of the standard which is required to establish that the employer intended to intimidate the employees. An appeal by the AMIEU was dismissed by the Full Bench in Australasian Meat Industry Employees’ Union v Dardanup Butchering Company Pty Ltd [2011] FWAFB 3847.

____________________

[8-585] Route to location of interview and discussions 492A (1) The permit holder must comply with any reasonable request by the occupier of the premises to take a particular route to reach a room or area of the premises determined under section 492. Note: The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).

(2) A request under subsection (1) is not unreasonable only because the route is not that which the permit holder would have chosen. (3) The regulations may prescribe circumstances in which a request under subsection (1) is or is not reasonable. [s 492A insrt Act 73 of 2013 s 3 and Sch 4 item 7, opn 1 Jan 2014]

[page 726]

[8-600]

Residential premises

493 The permit holder must not enter any part of premises that is used mainly for residential purposes.

DIVISION 3 — STATE OR TERRITORY OHS RIGHTS

[8-790] Official must be permit holder to exercise State or Territory OHS right 494 Official must be permit holder (1) An official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder. Note: This subsection is a civil remedy provision (see Part 4-1).

Meaning of State or Territory OHS right (2) A right to enter premises, or to inspect or otherwise access an employee record of an employee that is on premises, is a State or Territory OHS right

if the right is conferred by a State or Territory OHS law, and: (a) the premises are occupied or otherwise controlled by any of the following: (i) a constitutional corporation; (ii) a body corporate incorporated in a Territory; (iii) the Commonwealth; (iv) a Commonwealth authority; or (b) the premises are located in a Territory; or (c) the premises are, or are located in, a Commonwealth place; or (d) the right relates to requirements to be met, action taken, or activity undertaken or controlled, by any of the following in its capacity as an employer: (i) a constitutional corporation; (ii) a body corporate incorporated in a Territory; (iii) the Commonwealth; (iv) a Commonwealth authority; or (e) the right relates to requirements to be met, action taken, or activity undertaken or controlled, by an employee of, or an independent contractor providing services for, any of the following: (i) a constitutional corporation; (ii) a body corporate incorporated in a Territory; (iii) the Commonwealth; (iv) a Commonwealth authority; or (f) the exercise of the right will have a direct effect on any of the following in its capacity as an employer: (i) a constitutional corporation; (ii) a body corporate incorporated in a Territory; (iii) the Commonwealth; (iv) a Commonwealth authority; or (g) the exercise of the right will have a direct effect on a person who is employed by, or who is an independent contractor providing

services for, any of the following: [page 727] (i) (ii) (iii) (iv)

a constitutional corporation; a body corporate incorporated in a Territory; the Commonwealth; a Commonwealth authority.

Meaning of State or Territory OHS law (3) A State or Territory OHS law is a law of a State or a Territory prescribed by the regulations.

[8-810]

Giving notice of entry

495 (1) A permit holder must not exercise a State or Territory OHS right to inspect or otherwise access an employee record of an employee, unless: (a) he or she has given the occupier of the premises, and any affected employer, a written notice setting out his or her intention to exercise the right, and reasons for doing so; and (b) the notice is given at least 24 hours before exercising the right. Note: This subsection is a civil remedy provision (see Part 4-1).

Meaning of affected employer (2) A person is an affected employer: (a) in relation to an entry onto premises in accordance with this Division — if one or more of the person’s employees perform work on the premises; and (b) in relation to a right to inspect or otherwise access an employee record in accordance with this Division — if the person employs the employee to whom the record relates. COMMENTARY TO SECTION 495*

Derivation ….

[8-810.05]

Civil remedy provision — s 495 Note …. Affected employer — s 495(1)(a), (2) …. Employee — s 495(1), (2)(a), (b) …. Employee record — s 495(1), 2(b) …. Occupier — s 495(1)(a) …. Permit holder — s 495(1) …. Premises — s 495(1)(a), (2)(a) …. State or Territory OHS Right — s 495(1) …. Outline of section ….

[8-810.10] [8-810.15] [8-810.20] [8-810.25] [8-810.30] [8-810.35] [8-810.40] [8-810.45] [8-810.50]

[8-810.05] Derivation The section is loosely derived from s 757 of the Workplace Relations Acts. [8-810.10] Civil remedy provision — s 495 Note See the definition in s 12. [8-810.15] Affected employer — s 495(1)(a), (2) See s 495(2). [8-810.20] Employee — s 495(1), (2)(a), (b) See s 479. [8-810.25] Employee record — s 495(1), 2(b) See s 12. [page 728] [8-810.30] Occupier — s 495(1)(a) See the definition in s 12. [8-810.35] Permit holder — s 495(1) See the definition in s 12 and [Com 65,040]. [8-810.40] Premises — s 495(1)(a), (2)(a) See the definition in s 12. [8-810.45] State or Territory OHS Right — s 495(1) See s 494(2) and reg 3.25. See commentary at [Com 65,080]. [8-810.50] Outline of section The Explanatory Memorandum to the Fair Work Act states at para 1981 that: The requirement to give written notice only applies when the permit holder is exercising a State or Territory OHS right in relation to employee records, and not when attending to OHS emergencies. * Editor’s note: Commentary to s 495 by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[8-830]

Contravening entry permit conditions

496 In exercising a State or Territory OHS right, a permit holder must not

contravene a condition imposed on his or her entry permit. Note: This section is a civil remedy provision (see Part 4-1). COMMENTARY TO SECTION 496*

Derivation …. Civil remedy provision — s 496 …. Entry permit — s 496 …. Permit holder — s 496 …. State or Territory OHS right — s 496 …. Outline of Section ….

[8-830.05] [8-830.10] [8-830.15] [8-830.20] [8-830.25] [8-830.30]

[8-830.05] Derivation The section is similar to ss 753(1), 759 and 766 of the Workplace Relations Act. [8-830.10] Civil remedy provision — s 496 See s 12 [8-830.15] Entry permit — s 496 See s 12. [8-830.20] Permit holder — s 496 See s 12. [8-830.25] State or Territory OHS right — s 496 See s 12. [8-830.30] Outline of Section Note that s 515 of this Act allows Fair Work Australia to impose conditions on an entry permit when it is issued. Flick J has said of the predecessor provisions that: where a request is made, a reasonable opportunity must be allowed to read any conditions that may be imposed. Unless such an opportunity is extended, the occupier is stripped of any opportunity to form a view as to whether he should accede to the right of entry sought to be exercised or whether he may resist an exercise of power on the basis that it is in excess of [page 729] conditions imposed. The permit may even have expired: Darlaston v Parker (2010) 189 FCR 1; (2010) 196 IR 307; [2010] FCA 771; BC201005179 at [41]. * Editor’s note: Commentary to s 496 prepared by Ian Latham BA (Hons)/LLB (ANU), Barrister.

____________________

[8-850]

Producing entry permit

497 A permit holder must not exercise a State or Territory OHS right unless the permit holder produces his or her entry permit for inspection when requested to do so by the occupier of the premises or an affected employer.

Note: This section is a civil remedy provision (see Part 4-1). COMMENTARY TO SECTION 497*

Civil remedy provision …. Affected employer …. Entry permit …. Exercise a State or Territory OHS right — s 497 …. Occupier …. Permit holder …. Premises …. State or Territory OHS Right …. Outline of section ….

[8-850.1] [8-850.5] [8-850.10] [8-850.11] [8-850.15] [8-850.20] [8-850.25] [8-850.30] [8-850.35]

[8-850.1] Civil remedy provision See the definition in s 12. [8-850.5] Affected employer See s 495(2). [8-850.10] Entry permit See the definition in s 12 and [Com 65,040]. Note that State or Territory OHS laws may impose further requirements. [8-850.11] Exercise a State or Territory OHS right — s 497 In Director of Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668; BC201505987 at [64]–[65] Flick J opined that s 497 of the Fair Work Act is a provision of deceptive simplicity. There is, with respect, considerable uncertainty surrounding the introductory phrase: “A permit holder must not exercise a State or Territory OHS right…”. His Honour went on to deal with the meaning of that phrase holding at [78] that: [S]ection 497 is to be construed such that the section imposes a constraint upon a “permit holder”, namely a person who has been issued with a permit pursuant to s 512 of the Fair Work Act. … The constraint is that such persons cannot exercise a State OHS right unless they produce that entry permit “when requested to do so…”. There is, upon such a construction of s 497, no further constraint that the “permit holder” be a person actually entitled or authorised to exercise that State right. Section 497, upon such a construction, fastens upon persons who have a particular identity — namely persons who have an “entry permit” — and requires such persons to produce their entry permit when they seek to exercise a “State … OHS right …”. On this construction of s 497, it is the fact of the purported exercise of the right by a “permit holder” that matters rather than the lawful authority to exercise that State right. [8-850.15] Occupier See the definition in s 12. [8-850.20] Permit holder See the definition in s 12 and [Com 65,040]. [page 730] [8-850.25] Premises See the definition in s 12.

[8-850.30] State or Territory OHS Right See s 494(2) and reg 3.25. See commentary at [Com 65,080]. [8-850.35] Outline of section The section requires a permit holder exercising a State or Territory OHS right to produce an entry permit when requested. The Explanatory Memorandum to the Fair Work Bill 2008 at [1975] and [1976] makes clear that these sections do not confer additional rights of entry on permit holders but impose additional requirements on permit holders exercising a right of entry under State or Territory OHS legislation. Further they do not override entry rights under these laws. These rights are expressly saved by cl 27 of the Fair Work Bill 2008. State and Territory OHS laws contain their own conditions which can be imposed on permit holders exercising OHS rights of entry. These conditions continue to apply. * Editor’s note: Commentary to s 497 by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[8-870]

When right may be exercised

498 A permit holder may exercise a State or Territory OHS right only during working hours. Note: This section is a civil remedy provision (see Part 4-1). COMMENTARY TO SECTION 498*

Derivation …. Civil remedy provision Note …. Permit holder …. State or Territory OHS right …. Working hours …. Outline of section ….

[8-870.1] [8-870.5] [8-870.10] [8-870.15] [8-870.20] [8-870.25]

[8-870.1] Derivation The section has some similarities with s 756 of the Workplace Relations Act 1996. [8-870.5] Civil remedy provision Note See ss 12 and 539. [8-870.10] Permit holder See s 12. [8-870.15] State or Territory OHS right See s 12, subs 494(2) and reg 3.25. [8-870.20] Working hours Working hours are not limited to the hours during which the employees are actually working. It refers to the period of time during which the premises are open for work and ordinarily occupied for that purpose. It does not include a time when employees are merely on the premises to work overtime. See Australasian Meat Industry Employees’ Union v Australian Food Corp Pty Ltd (2001) 116 FCR 19; 111 IR 425; [2001] FCA 1709; BC200107640 at [69], [76]–[80] and [95]– [100].

[8-870.25] Outline of section “[I]n specifying that entry be “during working hours” Parliament had the occupier’s interests in mind. Parliament might have expected that, while premises are being used for work, responsible officers of the occupier will ordinarily be available to supervise access and provide the information to which the permit holder is entitled … On the [page 731] other hand, Parliament might have thought it unreasonable to force officers to come to the premises specially for this purpose”: Australasian Meat Industry Employees’ Union v Australian Food Corp Pty Ltd (2001) 116 FCR 19; 111 IR 425; [2001] FCA 1709; BC200107640 at [68]. * Editor’s note: Commentary to “Working hours” and “Outline of section” prepared by John Trew QC LLB (Syd), Barrister. All other commentary by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[8-890] Occupational health and safety requirements 499 A permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises. Note 1: This section is a civil remedy provision (see Part 4-1). Note 2: The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)). [s 499 am Act 174 of 2012 s 3 and Sch 9 item 526, opn 1 Jan 2013] COMMENTARY TO SECTION 499*

Derivation …. Civil remedy provision — Note 1 …. FWC — Note 2 …. Occupational Health and Safety Requirement …. Occupier …. Permit holder …. Premises …. Reasonable request …. State or Territory OHS right …. Outline of section ….

[8-890.1] [8-890.5] [8-890.10] [8-890.15] [8-890.20] [8-890.25] [8-890.30] [8-890.35] [8-890.40] [8-890.45]

[8-890.1] Derivation The section has some similarities with s 765(2) of the Workplace Relations Act. [8-890.5] Civil remedy provision — Note 1 See the definition in s 12. [8-890.10] FWC — Note 2 See the definition in s 12. [8-890.15] Occupational Health and Safety Requirement “The form and content of any particular “occupational health and safety requirement” must, however, be necessarily dictated by the conditions on site on any particular day and by reference to conduct as and when it occurs. An “occupational health and safety requirement”, it is concluded, need not be reduced to writing”: Darlaston v Parker (2010) 196 IR 307; [2010] FCA 771; BC201005179 at [101]. [8-890.20] Occupier See the definition in s 12. [8-890.25] Permit holder See the definition in s 12 and [Com 65,040]. [8-890.30] Premises See the definition in s 12. [8-890.35] Reasonable request The same phrase employed in s 492, namely “any reasonable request by the occupier”, it should be noted, appears elsewhere in Pt 3–4 (ss 491 and 499). Subject to the specific statutory requirements applicable to each of these provisions, that phrase should be [page 732] construed in the same manner in each of these sections: Australasian Meat Industry Employees’ Union v Fair Work Australia (2012) 203 FCR 389; 221 IR 318; [2012] FCAFC 85; BC201204003 at [65]. The Explanatory Memorandum to the Fair Work Bill 2008 states at [1988] that while reasonableness must be determined in the circumstances of the particular case, “an example of a reasonable request includes a request that a permit holder wear a safety vest where the wearing of such a vest is mandatory company policy because there are many heavy vehicles operating on the site”. Note the objects of the Act at s 480. FWA has said of the similarly worded s 491 that: … in considering the question of reasonableness the tribunal is required to consider all relevant circumstances including the legitimate interests of the employer and occupier as well as the interests of the employees and the permit holder. In this case relevant circumstances to be taken into account include the nature of the industry and the size and location of the site, the site policies and practices of the occupier and employers concerning safety and security, and all of the areas and facilities that might possibly be used for discussions between permit holders and employees. The legitimate interests of the employers and occupier include ensuring a permit holder is complying with the FW Act, that work disruption is not undue and that site safety and security policies are adhered to: Construction, Forestry, Mining and Energy Union v Foster Wheeler Worley Parsons (Pluto) Joint Venture [2010] FWA 2341 (29 March 2010) at [135]–[137]. “[A] request, even if made ‘aggressively’, may well remain a ‘request [which] is a reasonable request’”: Darlaston v Parker (2010) 196 IR 307; [2010] FCA 771; BC201005179 at [143]. [8-890.40] State or Territory OHS right See s 494(2).

[8-890.45] Outline of section The section sets out the requirement to comply with reasonable occupational health and safety requirements. * Editor’s note: Commentary to by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

DIVISION 4 — PROHIBITIONS

[8-1080] obstruct

Permit holder must not hinder or

500 A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner. Note 1: This section is a civil remedy provision (see Part 4-1). Note 2: A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused. Note 3: A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502). [s 500 am Act 73 of 2013 s 3 and Sch 4 items 8, 9, opn 1 Jan 2014] COMMENTARY TO SECTION 500*

Derivation …. Act in an improper manner ….

[8-1080.1] [8-1080.5] [page 733]

Exercising rights …. Hinder or obstruct …. Improper manner …. Intentionally …. Person …. Permit holder …. This Part …. Outline of section …. [8-1080.1] Derivation Section 767(1) of the Workplace Relations Act 1996.

[8-1080.10] [8-1080.15] [8-1080.20] [8-1080.25] [8-1080.30] [8-1080.35] [8-1080.40] [8-1080.45]

[8-1080.5] Act in an improper manner In dealing with the predecessor s 767, Flick J held at [54]– [55]: Presumably the Parliamentary draftsman saw no need to confine an act which amounts to “act[ing] in an improper manner” to an intentional act. But conduct which falls outside of an intentional hindrance or an intentional obstruction of a person, and yet falls within an “act in an improper manner” is not further defined by either s 767 or the Act as a whole. A contravention of s 767 on the basis of acting in an “improper manner”, however, is not made out merely by reason of a refusal on the part of those seeking access to premises to identify the particulars of any occupational health or safety concern that they may have in mind: Darlaston v Parker (2010) 189 FCR 1 at [55]–[56]; 96 IR 307; [2010] FCA 771 (23 July 2010); BC201005179. The Explanatory Memorandum to the Fair Work Bill 2008 states at [1994] that “[A]cting in an improper manner is intended to cover a wider range of conduct. It includes actions that are inconsistent with the requirements of the right of entry provisions, such as deliberately engaging in conduct that the permit holder knows is not permitted”. [8-1080.10] Exercising rights Debate has continued as to whether the section and its predecessors requires the lawful exercise of rights under an OHS law before jurisdiction is attracted. In dealing with the predecessor s 767, the Federal Magistrates Court has held that: It is clear that s 767 is designed to control the way in which persons who have a right of entry arising under an OHS law exercise that right. Once it is established, as it clearly is here, that Mr Setka had that right and was exercising it, it is not necessary to specify in greater detail exactly what aspects of that right he was seeking to engage. In my view, it is sufficient for these purposes to note that Mr Setka was a permit holder and that he entered upon the premises with a view to investigating safety concerns in respect of the members of his union. In my view, such conduct constitutes “exercising, or seeking to exercise, rights under an OHS law”: Gregor v Setka (2010) 199 IR 267; [2010] FMCA 690 (21 September 2010) at [64]–[65]. See also Pine v Doyle (2005)143 IR 98; [2005] FCA 977; BC200505047 at [15]. It is appropriate to keep in mind that the second element of a s 500 contravention requires proof that the permit holder was exercising, or seeking to exercise, rights in accordance with Pt 34 of the FW Act. This means that the second element will be established if the permit holder was, as a matter of fact, exercising (relevantly) the s 484 right or seeking to exercise that right. Permit holders may seek to exercise the s 484 right even though they are mistaken in their belief that there are employees on the site at the time of the entry, or that there are on the site employees whose industrial interests the permit holder’s organisation is entitled to represent, or that persons answering that description do wish to participate in discussions with them. Proof that each of the elements listed in s 484 pertained at the time of the official’s entry is not required, at least in respect of an allegation that the permit holder was seeking to exercise rights under Pt 34: Director [page 734] of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293; BC201511390 at [76]. [8-1080.15] Hinder or obstruct The Explanatory Memorandum to the Fair Work Bill 2008 states at [1993] that conduct by a permit holder “that would hinder or obstruct a person includes action that

intentionally prevents or significantly disrupts an employer or employee from carrying on their normal work duties. An example of this would be where a permit holder deliberately parks his or her car in the entrance of a building site with the intention of preventing access to the site by trucks scheduled to deliver concrete”. See also commentary to s 502. [8-1080.20] Improper manner In the case of Gregor v Setka (2010) 242 FLR 430; 199 IR 267; [2010] FMCA 690; BC201007127 at [70]–[89], the court summarised the law as to the meaning of improper manner in finding that: (i) “Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged defendant by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case”: R v Byrnes & Hopwood (1995) 183 CLR 501; 130 ALR 529; BC9506451 at [514]–[515]; (ii) Yelling abuse and threats is plainly improper on any view of the meaning of those words; (iii) The words “or otherwise act in an improper manner” are not limited by any conjunction with the phrases “obstruct or hindering”; (iv) It is not necessary to prove intent in relation to a person who acts in an improper manner; (v) While there is controversy as to whether the words “otherwise acting in an improper manner” were ejusdem generis, “it cannot be the case that’otherwise act in an inappropriate manner’ adds nothing to the section, or those words would not be there”. To similar effect, Raphael FM held in Australian Building and Construction Commissioner (ABCC) v Mitchell [2011] FMCA 622; BC201106245 at [9] that whilst the legislation gives a permit holder important rights for the purposes of ensuring that workplace safety is protected those rights come with responsibilities. The ability to enter without notice upon another’s premises is a privilege denied to most. It is one which should be exercised with due acknowledgment of the rights of the occupier. This requires restraint, but not lack of diligence, and good manners. There is nothing to be gained by aggression or intemperance, no worker’s safety is enhanced in this manner. [8-1080.25] Intentionally In Pine v Doyle (2005) 143 IR 98; [2005] FCA 977; BC200505047 at [22] Merkel J held as follows: In the usual course, that mental element would require that the respondent advert to the likely consequences of his conduct. Thus, it has been suggested that to “intentionally hinder” the perpetrator must either intend to substantially impede another individual in performing the individual’s duties or must, being aware that what he or she is doing or about to do is likely to so impede that individual, decide nevertheless to do it or go on doing it. The wording in s 500 is very similar to its predecessor, s 767(1) of the Workplace Relations Act 1996. In the case of Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88; [2010] FCAFC 90; BC201004937, Spender J held at [46] that the “requirement that any hindrance or obstruction be intentional prima facie requires that there be a subjective intention to hinder or obstruct”. See also Logan J at [109]. “The requirement that conduct be ‘intentional’ may serve to exclude any accidental obstruction”: Darlaston v Parker (2010) 189 FCR 1; 196 IR 307; [2010] FCA 771; BC201005179 (23 July 2010) at [48]. It is possible to it is possible to infer “subjective intent from objective facts”: Gregor v Setka (2010) 199 IR 267; [2010] FMCA 690; BC201007127 (21 September 2010) at [90]. [page 735]

Where intention is an element of an offence, it must be proved. It is not sufficient to rely on “foreseeability, likelihood and probability”. It must be affirmatively established that the offender “meant to produce the particular result”: Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64 at [68]. [8-1080.30] Person See s 2C of the Acts Interpretation Act 1901. As to whether a partnership may be such a person see Hadgkiss v CFMEU (2008) 166 FCR 376; [2008] FCAFC 22; BC200801382 at [82]. [8-1080.35] Permit holder See the definition in s 12. [8-1080.40] This Part The Part is Pt 3–4. [8-1080.45] Outline of section In dealing with the predecessor provision Flick J has held that: “The ‘right of entry’ referred to in such provisions may be accepted as a ‘vital part’ of ensuring compliance with occupational health and safety requirements .. Any present right of entry must necessarily be exercised by reference to the ‘objects’ . including ‘the right of occupiers of premises and employers to conduct their businesses without undue interference or harassment’ … [The Part] should be construed in a manner which both protects the private interests of employers to carry out their functions ‘free from harassment’ and the interests of ensuring compliance (in this case) with applicable occupational health and safety requirements”: Darlaston v Parker (2010) 189 FCR 1 at [55] [56]; 96 IR 307; [2010] FCA 771; BC201005179 (23 July 2010) at [35]–[38]. * Editor’s note: Commentary to [8-1080.25] by Joe Catanzariti, Partner, Clayton Utz and Michael Byrnes, Special Counsel, Clayton Utz updated by Ian Latham BA(Hons) LLB(ANU), Barrister. All other commentary by Ian Latham BA(Hons) LLB(ANU), Barrister.

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[8-1100]

Person must not refuse or delay entry

501 A person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in accordance with this Part. Note: This section is a civil remedy provision (see Part 4-1). COMMENTARY TO SECTION 501*

Derivation …. Civil remedy provision — s 501 Note …. In accordance with — s 501 …. Permit holder — s 501 …. Person — s 501 …. Premises — s 501 …. Unduly — s 501 …. Outline of Section ….

[8-1100.01] [8-1100.05] [8-1100.07] [8-1100.10] [8-1100.11] [8-1100.15] [8-1100.20] [8-1100.25]

[8-1100.01] Derivation The section is derived from subs 767(3) and (4) of the Workplace Relations Act 1996. For an outline of the law as to s 767 see Darlaston v Parker (2010) 189 FCR 1; 196 IR 307; [2010] FCA 771; BC201005179 at [31]–[55]. [8-1100.05] Civil remedy provision — s 501 Note See the definition in s 12. For an example of the awarding of a civil penalty see: Construction, Forestry, Mining and Energy Union (CFMEU) v Woden Contractors Pty Ltd [2011] FMCA 473; BC201104634. [8-1100.07] In accordance with — s 501 In various, albeit context-specific situations, that expression has been held to mean: “in conformity with”, or “consistently with” … This is to be contrasted with an expression such as “under this Part”, which has been held to mean (in the [page 736] context of administrative law): “in pursuance of”, or “under the authority of” … Applying the former meaning, it follows that the words “in accordance with” in ss 501 and 502(1) do not refer to a permit holder’s entitlement to enter premises or exercise rights under Pt 3-4 of the FWA, but rather to his or her having acted in conformity with the provisions of that Part and gained the status of a permit holder under it: Ramsay v Sunbuild Pty Ltd (2014) 221 FCR 315; [2014] FCA 54; BC201400373 at [95]–[96]. [8-1100.10] Permit holder — s 501 See s 12. [8-1100.11] Person — s 501 See [8-1080.30]. [8-1100.15] Premises — s 501 See s 12. [8-1100.20] Unduly — s 501 What sort of delay might be considered to be to “unduly delay” entry onto a premises by a permit holder is a matter of fact to be determined in each individual case. In Construction, Forestry, Mining and Energy Union (CFMEU) v Gittany [2014] FCA 164; BC201401062, on appeal from the Federal Circuit Court of Australia, Cowdroy J rejected the CFMEU’s argument that the primary judge erred in finding that a conditional denial of entry does not amount to a refusal of entry in the circumstances of that case. In that case, the respondent conceded that he had refused entry to the CFMEU permit holder until police had arrived. This was after a concrete pouring pump and a proposed concrete pour was interrupted shortly after a CFMEU official spoke to the operator of the pump, which resulted in heated discussions and some violence in consequence of which the police were notified and arrived 15–30 minutes later, and order was restored. Although the primary judge found there were discrepancies in the evidence of the CFMEU officials and the respondent, and rejected the evidence of the CFMEU official, it was agreed that the CFMEU officials were refused re-entry to the relevant premises while they awaited the arrival of the police. As such, the primary judge found that entry was not refused to the CFMEU officials, but rather it was made conditional upon the arrival of the police, and that it was prudent and appropriate in light of the risk to public order that re-admitting the CFMEU representatives onto the premises would likely present. Judge Cowdroy found that at [44]: “The CFMEU’s submission that conditional entry is not permitted under the FW Act must also be rejected. Although the CFMEU has highlighted the significant powers afforded to permit holders under the FW Act, the primary judge’s construction of s 501 was sound. The phrase in such section that ‘[a] person must not refuse or unduly delay entry onto premises’ inescapably leads one to consider and juxtapose ‘refuse’ against ‘unduly delay’. The Court agrees with his Honour’s

findings. that for the purposes of s 501, a refusal is an unconditional denial of entry whereas a conditional denial of entry may be permitted where it does not amount to an undue delay. To suggest otherwise fails to give the existence of the word ‘unduly’ its full effect. ‘Undue’ has been defined, albeit in different circumstances, as simply meaning ‘excessive’: Liberian Shipping Corporation v A King & Sons Ltd [1967] 2 QB 86; 1 All ER 934; 2 WLR 856; 1 Lloyd’s Rep 302 at [938].” As to the circumstances arising in that case, Cowdroy J further found that at [45] “No excessive delay was demonstrated in the present case. On the contrary, the delay was short and the reasons advanced were wholly justifiable.” [8-1100.25] Outline of Section The Explanatory Memorandum to the Fair Work Bill states at paragraph 1996 that this would cover action by employers, occupiers and any other person with the effect of inhibiting the ability of a permit holder to gain access to premises that the permit holder would otherwise, be entitled to enter. [page 737] Reeves J held in Ramsay v Sunbuild Pty Ltd (2014) 221 FCR 315; [2014] FCA 54; BC201400373 at [84] that the applicant was able to rely upon ss 501–502 of the Act notwithstanding the fact that the rights of entry for OHS purposes are conferred solely by State or Territory OHS legislation and Div 3 of Pt 3-4 of the Fair Work Act merely regulates those rights. * Editor’s note: Commentary to s 501 [8-1100.20] prepared by Erik Young, barrister. The remainder of the commentary to s 501 prepared by Ian Latham BA (Hons), LLB (ANU), Barrister.

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[8-1120] Person must not hinder or obstruct permit holder 502 (1) A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part. Note: This subsection is a civil remedy provision (see Part 4-1).

(2) To avoid doubt, a failure to agree on a place as referred to in paragraph 483(5)(b), 483C(6)(b) or 483E(6)(b) does not constitute hindering or obstructing a permit holder. (3) Without limiting subsection (1), that subsection extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises. COMMENTARY TO SECTION 5021

Derivation …. Before a permit holder enters — s 502(3) ….

[8-1120.1] [8-1120.5]

Civil remedy provision — Note …. Entry notice — s 502(3) …. Failure to agree on a place — s 502(2) …. Hindering or obstructing — s 502(1), (2) …. Intentionally — s 502(1) …. Permit holder — s 502(1), (2), (3) …. Premises — s 502(3) …. This Part — s 502(1) …. Outline of section ….

[8-1120.10] [8-1120.15] [8-1120.20] [8-1120.25] [8-1120.30] [8-1120.35] [8-1120.40] [8-1120.45] [8-1120.50]

[8-1120.1] Derivation The section is broadly derived from s 767(7) of the Workplace Relations Act. See W J Ford, Being There: Changing Union Rights of Entry Under Federal Industrial Law (2000) 13 AJLL 1 and Construction, Forestry, Mining and Energy Union v Merhis Constructions Pty Ltd (2010) 199 IR 308; [2010] FMCA 751; BC201008019 at [16] for a discussion of the history of such provisions. This section only operates while the permit holder is in fact exercising his or her powers of entry, and ceases to operate when the statutory right of entry ceases. In Construction, Forestry, Mining and Energy Union (CFMEU) v Gittany [2014] FCA 164; BC201401062, on appeal from the Federal Circuit Court of Australia, the CFMEU argued that the primary judge erred in finding that the statutory right of entry ceased when the permit holder of the CFMEU departed from the premises which was the subject of the right of entry. Judge Cowdroy found that “The primary judge was correct in his findings. As a matter of law, once the CFMEU representatives departed the premises, the statutory right of entry ceased.” [8-1120.5] Before a permit holder enters — s 502(3) This provision would ensure that any action taken before the permit holder enters the premises but which would hinder or obstruct that permit holder while on the premises is caught by this clause. “An example of this type of conduct [page 738] would include situations such as destroying, concealing or manufacturing evidence that relates to a suspected contravention which the permit holder is intending to investigate”: Explanatory Memorandum to the Fair Work Bill 2008 at [1999]. [8-1120.10] Civil remedy provision — Note See the definition in s 12. [8-1120.15] Entry notice — s 502(3) See the definition in s 12 and [Com 65,050]. [8-1120.20] Failure to agree on a place — s 502(2) It provides that a failure to agree on an alternative place where a permit holder may inspect and copy records or documents after entry onto premises as provided for under para 483(5)(b) would not amount to the hindering or obstructing of a permit holder. A dispute about where records or documents are to be produced could be dealt with by FWA under cl 505. [8-1120.25] Hindering or obstructing — s 502(1), (2) The words “hinder” and “obstruct” have often

been used in the creation of offences. Well-known examples involve such things as obstructing the highway, and hindering a police officer in the execution of his or her duty. The authorities dealing with those offences recognise the necessary connection between the concept of obstruction or hindering and the nature of the activity obstructed or hindered. For instance, it is plain that every person using a highway is, in a sense, obstructing it; the space occupied from time to time by one single user cannot be occupied simultaneously by any other user. The purpose of the highway, however, is passage and repassage, so that it is recognised that the user of the highway for this purpose will not amount to being an obstruction: Curran v Thomas Borthwick & Sons (Pacific) Ltd (No 1) (1990) 26 FCR 241; 94 ALR 575; 33 IR 6 at 20; BC9003322. See Dalzell v Ferguson (2009) 185 IR 392; [2009] NSWIRComm 81 at [53]–[55] for examples. In the Explanatory Memorandum at [1997], examples are given of making repeated and excessive requests that a permit holder show his or her entry permit, refusing entry despite the permit holder having: an entry right under this Part or failing to provide access to records that the permit holder is entitled to inspect. It would also include, for example, deliberately altering rosters so that employees with whom the permit holder wished to meet were not present on the premises at the time of the permit holder’s intended entry. In Darlaston v Parker (2010) 189 FCR 1; 196 IR 307; [2010] FCA 771; BC201005179 at [52], Flick J held that the reference to “intentionally hinder or obstruct” is a reference to any act or conduct that actually makes it more difficult for the person who is “hindered or obstructed” to discharge his functions, other than an act or conduct which is accidental. The act must be of such a nature that it is an “appreciable” obstruction or interference. A trivial act, or even an act which could not reasonably be regarded as an obstruction or interference, would not fall within the section. Conduct which is essentially negative in character may in some circumstances constitute such obstruction or hindrance: O’Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1 at 49– 50; 44 ALR 27; 14 ATR 64. The level of satisfaction is the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–62; [1938] ALR 334; (1938) 12 ALJR 100; BC3800027): Standen v Feehan (2008) 175 IR 297; [2008] FCA 1009; BC200805213 at [20]. Whether the particular conduct amounts to hindering and obstructing is a question of fact: O’Reilly at 49. [8-1120.30] Intentionally — s 502(1) See [8-1080.25]. [8-1120.35] Permit holder — s 502(1), (2), (3) See the definition in s 12 and at [Com 65,040]. [8-1120.40] Premises — s 502(3) See the definition in s 12. [page 739] [8-1120.45] This Part — s 502(1) The part is Pt 3–4 — Right of Entry. [8-1120.50] Outline of section In Construction, Forestry, Mining and Energy Union v Safety Glass Pty Ltd [2010] FCA 989; BC201006620, two organisers of the CFMEU sought to exercise rights of entry to the Notting Hill premises of Safety Glass Pty Ltd after complying with the notice requirements. They were denied entry by a senior manager. The CFMEU applied to the court for penalties to be imposed upon Safety Glass Pty Ltd for contraventions of ss 501 and 502 of the Fair Work Act 2009. Following discussions with the union, Safety Glass acknowledged its liability for these contraventions, leaving Tracey J to consider the quantum of the penalty to impose. Tracey J held at [17] that “the two union

officials were attempting to exercise their undoubted right of entry to Safety Glass’s premises with a view to interviewing workers”. Tracey J further held at [18] that: Provided, however, that the right of entry is exercised in accordance with the provisions of the Act, union officials are entitled to unimpeded access to business premises for prescribed purposes. This is an important right which enables unions to recruit members and protect the industrial interests of their members. Given the circumstances of the case, in particular the fact that Safety Glass had subsequently allowed unimpeded access to union officials, Tracey J held that the appropriate penalty was a fine of $9000. Editor’s note: Commentary to [8-1120.50] by Joe Catanzariti, Partner, Clayton Utz and Michael Byrnes, Special Counsel, Clayton Utz. All other commentary by Ian Latham BA(Hons) LLB(ANU), Barrister. Commentary to [8-1120.1] updated by Erik Young, Barrister. 1

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[8-1140] Misrepresentations about things authorised by this Part 503 (1) A person must not take action: (a) with the intention of giving the impression; or (b) reckless as to whether the impression is given; that the doing of a thing is authorised by this Part if it is not so authorised. Note: This subsection is a civil remedy provision (see Part 4-1).

(2) Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.

[8-1160] Unauthorised use or disclosure of information or documents 504 A person must not use or disclose information or a document obtained under section 482, 483, 483B, 483C, 483D or 483E in the investigation of a suspected contravention for a purpose that is not related to the investigation or rectifying the suspected contravention, unless: (a) the person reasonably believes that the use or disclosure is necessary to lessen or prevent: (i) a serious and imminent threat to an individual’s life, health or safety; or

(ii) a serious threat to public health or public safety; or (b) the person has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the information or document as a necessary part of an investigation of the matter or in reporting concerns to relevant persons or authorities; or (c) the use or disclosure is required or authorised by or under law; or [page 740] (d) the person reasonably believes that the use or disclosure is reasonably necessary for one or more of the following by, or on behalf of, an enforcement body (within the meaning of the Privacy Act 1988): (i) the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law; (ii) the enforcement of laws relating to the confiscation of the proceeds of crime; (iii) the protection of the public revenue; (iv) the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct; (v) the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal; or (e) if the information is, or the document contains, personal information (within the meaning of the Privacy Act 1988) — the use or disclosure is made with the consent of the individual to whom the information relates. Note: This section is a civil remedy provision (see Part 4-1).

DIVISION 5 — POWERS OF THE FWC [Div 5 heading am Act 174 of 2012 s 3 and Sch 9 item 527, opn 1 Jan 2013]

Subdivision A — Dealing with disputes

[8-1350] FWC may deal with a dispute about the operation of this Part 505 (1) The FWC may deal with a dispute about the operation of this Part, including a dispute about: (a) whether a request under section 491, 492A or 499 is reasonable; or (b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or (c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in 521D(1); or (d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or (e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c). Note 1: Sections 491 and 499 deal with requests for permit holders to comply with occupational health and safety requirements. Note 2: Section 492A deals with requests for a permit holder to take a particular route to a room or area in which an interview is to be conducted or discussions held. Note 3: Section 490 deals with when rights under Subdivision A, AA or B of Division 2 of this Part may be exercised. Note 4: Sections 521C and 521D deal with accommodation in and transport to remote areas for the purpose of exercising rights under this Part. [subs (1) subst Act 73 of 2013 s 3 and Sch 4 item 10, opn 1 Jan 2014]

[page 741] (2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

(a) (b) (c) (d)

an order imposing conditions on an entry permit; an order suspending an entry permit; an order revoking an entry permit; an order about the future issue of entry permits to one or more persons; (e) any other order it considers appropriate. Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 529, opn 1 Jan 2013]

(3) The FWC may deal with the dispute: (a) on its own initiative; or (b) on application by any of the following to whom the dispute relates: (i) a permit holder; (ii) a permit holder’s organisation; (iii) an employer; (iv) an occupier of premises. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 529, opn 1 Jan 2013]

(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 530, opn 1 Jan 2013]

(5) In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7 of this Part, unless the dispute is about: (a) whether a request under section 491, 492A or 499 is reasonable; or (b) when a right of the kind referred to in section 490 may be exercised by the permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or (c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or (d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in

paragraph 521C(2)(a) or 521D(2)(a); or (e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c). [subs (5) subst Act 73 of 2013 s 3 and Sch 4 item 11, opn 1 Jan 2014] [s 505 am Act 174 of 2012 s 3 and Sch 9 item 528, opn 1 Jan 2013] COMMENTARY TO SECTION 505

Outline of section ….

[8-1350.1]

[8-1350.1] Outline of section Section 505 authorises Fair Work Australia to deal with a dispute about the operation of Pt 3–4 of Ch 3 of the Fair Work Act 2009 but specifically provides that FWA must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Div 2 or 3 of this Part, unless the dispute is about whether a request under s 491, 492 or 499 is reasonable. The scope of the power is therefore confined: Construction, Forestry, Mining and Energy Union v Foster Wheeler Worley Parsons (Pluto) Joint Venture [2010] FWA 2341 at [67]. [page 742] In relation to the types of orders that may be sought, it has been held that any orders that require parties to comply with obligations already arising under the Fair Work Act 2009, do not involve the exercise of arbitral powers provided for and are beyond jurisdiction: Construction, Forestry, Mining and Energy Union v Foster Wheeler Worley Parsons (Pluto) Joint Venture [2010] FWA 2341 at [68]. In Australian Workers’ Union v Rio Tinto Aluminium (Bell Bay) Ltd [2011] FWA 3878, FW Australia noted that when the orders sought are not any of those provided for in s 505(2)(a)–(d), the powers of the Tribunal in the relevant circumstances of the application are provided for by subpara (e) which “effectively leaves the extent of the power of the Tribunal unrestrained should it find that the request is not reasonable in some relevant way, other than by ss 505(4)–(5)”.

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[8-1355] FWC may deal with a dispute about frequency of entry to hold discussions 505A (1) This section applies if: (a) a permit holder or permit holders of an organisation enter premises under section 484 for the purposes of holding discussions with one or more employees or TCF award workers; and (b) an employer of the employees or the TCF award workers, or occupier of the premises, disputes the frequency with which the permit holder or permit holders of the organisation enter the

premises. (2) The FWC may deal with a dispute about the frequency with which a permit holder or permit holders of an organisation enter premises under section 484. (3) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders: (a) an order imposing conditions on an entry permit; (b) an order suspending an entry permit; (c) an order revoking an entry permit; (d) an order about the future issue of entry permits to one or more persons; (e) any other order it considers appropriate. Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(4) However, the FWC may only make an order under subsection (3) if the FWC is satisfied that the frequency of entry by the permit holder or permit holders of the organisation would require an unreasonable diversion of the occupier’s critical resources. (5) The FWC may deal with the dispute: (a) on its own initiative; or (b) on application by any of the following to whom the dispute relates: (i) a permit holder; (ii) a permit holder’s organisation; (iii) an employer; (iv) an occupier of premises. (6) In dealing with the dispute, the FWC must take into account fairness between the parties concerned. [s 505A insrt Act 73 of 2013 s 3 and Sch 4 item 12, opn 1 Jan 2014]

[page 743]

[8-1370] dispute

Contravening order made to deal with

506 A person must not contravene a term of an order under subsection 505(2) or subsection 505A(3). Note: This section is a civil remedy provision (see Part 4-1). [s 506 am Act 73 of 2013 s 3 and Sch 4 item 13, opn 1 Jan 2014]

Subdivision B — Taking action against permit holder

[8-1510] holder

FWC may take action against permit

507 (1) The FWC may, on application by an inspector or a person prescribed by the regulations, take the following action against a permit holder: (a) impose conditions on any entry permit issued to the permit holder; (b) suspend any entry permit issued to the permit holder; (c) revoke any entry permit issued to the permit holder. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 532, opn 1 Jan 2013]

(2) In deciding whether to take action under subsection (1), the FWC must take into account the permit qualification matters. Note: For permit qualification matters, see subsection 513(1). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 533, opn 1 Jan 2013] [s 507 am Act 174 of 2012 s 3 and Sch 9 item 531, opn 1 Jan 2013] COMMENTARY TO SECTION 507*

Derivation …. Entry permit — s 507(1)(a), (b), (c) …. FWC — s 507(1), (2) …. Inspector — s 507(1) …. Permit holder — s 507(1), (a), (b), (c) …. Permit qualification matters — s 507(2), Note …. Scope of section ….

[8-1510.01] [8-1510.05] [8-1510.10] [8-1510.15] [8-1510.20] [8-1510.25] [8-1510.30]

[8-1510.01] Derivation The section is loosely derived from s 744 of the Workplace Relations Act

1996. [8-1510.05] Entry permit — s 507(1)(a), (b), (c) See ss 12 and 512. [8-1510.10] FWC — s 507(1), (2) See s 12. [8-1510.15] Inspector — s 507(1) See s 12. [8-1510.20] Permit holder — s 507(1), (a), (b), (c) See s 12. [8-1510.25] Permit qualification matters — s 507(2), Note See s 513. [8-1510.30] Scope of section Section 507 provides that, on application by an inspector or prescribed person, Fair Work Australia may take action against a permit holder. That action may involve the imposition of conditions on the permit or the suspension or revocation of the permit. In Office of the Australian Building and Construction Commissioner v Harrison [2010] FWA [page 744] 1528, Commissioner Cargill rejected an application to cancel the entry permit of a union organiser who had been convicted of fraud. Commissioner Cargill held at [58] that there was no evidence that Mr Harrison had engaged in any conduct which had adversely affected the rights of occupiers and employers to go about their business without undue inconvenience. Commissioner Cargill found Mr Harrison to be a fit and proper person to hold a right of entry permit and declined to use the discretion afforded under s 507: [61]. In that case, both parties assumed that the test was one of fit and proper person. That test is not explicit. The commissioner also took into account subjective factors such as genuine remorse at [59] and the like-lihood of dismissal should a permit not be granted: at [60]. * Editor’s Note: Commentary to Scope of section by Commentary by Joe Catanzariti, Vice President FWC and Michael Byrnes, Special Counsel, Clayton Utz. All other commentary prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

Subdivision C — Restricting rights of organisations and officials where misuse of rights

[8-1650] FWC may restrict rights if organisation or official has misused rights 508 (1) The FWC may restrict the rights that are exercisable under this Part by an organisation, or officials of an organisation, if the FWC is satisfied that the organisation, or an official of the organisation, has misused those rights.

Note: Only a Vice President, Deputy President or Full Bench may take action under this subsection (see subsections 612(2) and 615(1)). [subs (1) am Act 174 of 2012 s 3 and Sch 8 item 18, opn 1 Jan 2013; Act 174 of 2012 s 3 and Sch 9 items 535, 536, opn 1 Jan 2013]

(2) The action that the FWC may take under subsection (1) includes the following: (a) imposing conditions on entry permits; (b) suspending entry permits; (c) revoking entry permits; (d) requiring some or all of the entry permits that might in future be issued in relation to the organisation to be issued subject to specified conditions; (e) banning, for a specified period, the issue of entry permits in relation to the organisation, either generally or to specified persons; (f) making any order it considers appropriate. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 537, opn 1 Jan 2013]

(3) The FWC may take action under subsection (1): (a) on its own initiative; or (b) on application by an inspector. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 538, opn 1 Jan 2013]

(4) Without limiting subsection (1), an official misuses rights exercisable under this Part if: (a) the official exercises those rights repeatedly with the intention or with the effect of hindering, obstructing or otherwise harassing an occupier or employer; or (b) in exercising a right under Subdivision B of Division 2 of this Part, the official encourages a person to become a member of an organisation and does so in a way that is unduly disruptive: (i) because the exercise of the right is excessive in the circumstances; or (ii) for some other reason. [s 508 am Act 174 of 2012 s 3 and Sch 9 item 534, opn 1 Jan 2013]

[page 745] COMMENTARY TO SECTION 508*

Derivation …. Deputy President — Note …. Entry permit — s 508(2), (a), (b), (c), (d), (e) …. Full Bench — Note …. FWC — s 508(1), (2), (3) …. Has misused — s 508(1) …. Hindering, obstructing — s 508(4)(a) …. On its own initiative — s 508(3)(a) …. Organisation — s 508(1), (2)(d), (e), (4)(b) …. Satisfied — s 508(1) …. Outline of section ….

[8-1650.05] [8-1650.10] [8-1650.15] [8-1650.20] [8-1650.25] [8-1650.28] [8-1650.30] [8-1650.35] [8-1650.40] [8-1650.45] [8-1650.50]

[8-1650.05] Derivation The section is loosely derived from s 770 of the Workplace Relations Act 1996. [8-1650.10] Deputy President — Note See s 12. [8-1650.15] Entry permit — s 508(2), (a), (b), (c), (d), (e) See ss 12 and 512. [8-1650.20] Full Bench — Note See s 12. [8-1650.25] FWC — s 508(1), (2), (3) See s 12. [8-1650.28] Has misused — s 508(1) The underlined words are significant, for they concern the administration and regulation of permits for past misuse: Bechtel Construction [2014] FWC 5900 at [24]. [8-1650.30] Hindering, obstructing — s 508(4)(a) See [8-1120.25]. [8-1650.35] On its own initiative — s 508(3)(a) In s 508 — Application to restrict rights if organisation or official has misused permit rights [2013] FWC 9860 at [12] SDP O’Callhan held as follows: Section 508 and, indeed, other sections of the FW Act which empower the FWC to act on its own initiative may be applied so that they have about them, an element of inquiry. It is only if this inquiry, on the evidence put to the FWC, establishes misuse of the nature addressed in this section, that the Commission is then empowered to take action. To deprive the FWC of that capacity, or the capacity to embark on such an inquiry, or to require it to articulate specific assertions would be to render this section effectively inoperative. It is simply the case that the evidence which may, or may not be put to me, will establish whether the jurisdiction to act under s.508 exists.

In an earlier decision of s 508 — Application to restrict rights if organisation or official has misused permit rights [2013] FWC 9343 SDP O’Callahan held at [47] that: In initiating a s.508 motion I consider that the Commission should, in all fairness, articulate concerns which give rise to that action. Those concerns may, or may not be confirmed through further inquiry and may or may not represent circumstances that require action pursuant to that section. If I concluded that action under that section was necessary, I would also have regard to advice which may be provided by the CFMEU as a guide to future behaviour. [8-1650.40] Organisation — s 508(1), (2)(d), (e), (4)(b) See s 12. [page 746] [8-1650.45] Satisfied — s 508(1) SDP O’Callaha held in s 508 — Application to restrict rights if organisation or official has misused permit rights [2013] FWC 10168 at [62] (23 December 2013) that: Satisfaction about misuse of the rights that are exercisable under this part … is a prerequisite for any action that may be taken pursuant to this section. The question of satisfaction was discussed in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] ALR 792; (1949) 23 ALJR 322; BC4900120. In that case, the court was asked to review a decision that relied upon the satisfaction of the Federal Commissioner of Taxation. Judge Dixon held at 360 that: But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law. [8-1650.50] Outline of section In s 508 — Application to restrict rights if organisation or official has misused permit rights [2013] FWC 9860 at [7] SDP O’Callahan held: Section 508(1) establishes the jurisdictional facts necessary for the FWC to have the discretion to restrict the rights able to be exercised under Part 3-4 of the FW Act by an organisation, or by officials of that organisation. Section 50(2) simply exemplifies and details the actions which the FWC may take if such a jurisdictional fact or facts are made out. Section 508(3) provides that this section may be activated or commenced through either an application by an inspector or on the Commission’s own initiative. Section 508(4) simply provides examples of misuse in a non-definitive sense.

In s 508 — Application to restrict rights if organisation or official has misused permit rights [2013] FWC 9343 at [36] SDP O’Callahan held that: The Fair Work Commission very rarely invokes the capacity to act of its own motion under s.508. I have adopted the position that an action of this nature should only be taken in circumstances where the material before a particular member is such that it gives rise to a substantial concern about the possible misuse of entry rights. The enquiry that must then ensue must go to establishing whether, on the evidence then presented to the Commission, that substantial concern is made out such that a misuse of entry rights is established. Hence, I consider that it is incumbent on the Commission to articulate the concerns that gave rise to that action so that the parties are aware of the issues to be addressed in that matter. * Editor’s note: Commentary prepared by Ian Latham BA (Hons)/LLB (ANU), Barrister.

____________________ [page 747]

[8-1670] rights

Contravening order made for misuse of

509 A person must not contravene a term of an order under subsection 508(1). Note: This section is a civil remedy provision (see Part 4-1).

Subdivision D — When the FWC must revoke or suspend entry permits [Subdiv D heading am Act 174 of 2012 s 3 and Sch 9 item 539, opn 1 Jan 2013]

[8-1810] When the FWC must revoke or suspend entry permits 510 When the FWC must revoke or suspend entry permits (1) The FWC must, under this subsection, revoke or suspend each entry permit held by a permit holder if it is satisfied that any of the following has happened since the first of those permits was issued: (a) the permit holder was found, in proceedings under this Act, to have

(b) (c)

(d)

(e)

(f)

contravened subsection 503(1) (which deals with misrepresentations about things authorised by this Part); the permit holder has contravened section 504 (which deals with unauthorised use or disclosure of information or documents); the Information Commissioner has, under paragraph 52(1)(b) of the Privacy Act 1988, found substantiated a complaint relating to action taken by the permit holder in relation to information or documents obtained under section 482, 483, 483B, 483C, 483D or 483E; the permit holder, or another person, was ordered to pay a pecuniary penalty under this Act in relation to a contravention of this Part by the permit holder; a court, or other person or body, under a State or Territory industrial law: (i) cancelled or suspended a right of entry for industrial purposes that the permit holder had under that law; or (ii) disqualified the permit holder from exercising, or applying for, a right of entry for industrial purposes under that law; the permit holder has, in exercising a right of entry under a State or Territory OHS law, taken action that was not authorised by that law.

[subs (1) am Act 51 of 2010 s 2 and Sch 5[34], opn 1 Nov 2010; Act 174 of 2012 s 3 and Sch 9 items 541, 542, opn 1 Jan 2013]

(2) Despite subsection (1), the FWC is not required to suspend or revoke an entry permit under paragraph (1)(d) or (f) if the FWC is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 543, opn 1 Jan 2013]

(3) Subsection (1) does not apply in relation to a circumstance referred to in a paragraph of that subsection if the FWC took the circumstance into account when taking action under that subsection on a previous occasion. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 544, opn 1 Jan 2013]

Minimum suspension period (4) A suspension under subsection (1) must be for a period that is at least

as long as the period (the minimum suspension period) specified in whichever of the following paragraphs applies: (a) if the FWC has not previously taken action under subsection (1) against the permit holder — 3 months; [page 748] (b) if the FWC has taken action under subsection (1) against the permit holder on only one occasion — 12 months; (c) if the FWC has taken action under subsection (1) against the permit holder on more than one occasion — 5 years. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 545, opn 1 Jan 2013]

Banning issue of future entry permits (5) If the FWC takes action under subsection (1), it must also ban the issue of any further entry permit to the permit holder for a specified period (the ban period). [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 546, opn 1 Jan 2013]

(6) The ban period must: (a) begin when the action is taken under subsection (1); and (b) be no shorter than the minimum suspension period. [s 510 am Act 174 of 2012 s 3 and Sch 9 item 540, opn 1 Jan 2013]

Subdivision E — General rules for suspending entry permits

[8-1950] permits

General rules for suspending entry

511 If the FWC suspends an entry permit, the suspension: (a) must be for a specified period; and (b) does not prevent the revocation of, or the imposition of conditions on, the entry permit during the suspension period; and (c) does not alter the time at which the entry permit would otherwise expire. [s 511 am Act 174 of 2012 s 3 and Sch 9 item 547, opn 1 Jan 2013]

DIVISION 6 — ENTRY PERMITS, ENTRY NOTICES AND CERTIFICATES Subdivision A — Entry permits

[8-2140]

FWC may issue entry permits

512 The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit. [s 512 am Act 174 of 2012 s 3 and Sch 9 items 548–550, opn 1 Jan 2013] COMMENTARY TO SECTION 512*

Derivation …. Entry Permit — s 512 …. Fit and proper person — s 512 …. May — s 512 …. Official — s 512 …. Organisation — s 512 …. Outline of Section ….

[8-2140.05] [8-2140.10] [8-2140.15] [8-2140.20] [8-2140.25] [8-2140.30] [8-2140.35]

[8-2140.05] Derivation The section has some similarities with s 742(1) of the Workplace Relations Act

1996. [page 749] [8-2140.10] Entry Permit — s 512 See s 12. [8-2140.15] Fit and proper person — s 512 The “fit and proper person” test is necessarily concerned with the personal characteristics of the person for whom the issue of an entry permit is sought…That position is in no way altered by the fact that, under the Act, it is the organisation which may apply for a particular official to be issued with an entry permit rather than the official personally: Director of the Far Work Building Inspectorate v CFMEU [2014] FWCFB 5947 at [22], [23]. “The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides an indication of likely future conduct) or reputation (because it provides an indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2008] AIR 814; PR984189 at [7] adopted in The Office of the Australian Building and Construction Commissioner v Harrison [2010] FWA 1528 at [55]. See also s 513. In adopting that formulation; Mr Enright stated in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2013] FWCD 6478 at [26] that: I accept that the expression “fit and proper person” is coloured somewhat by the context in which it appears and that it should be construed by having regard to the rights and responsibilities associated with the grant of an entry permit. Parliament has expressed an intention that the Commission “must” take into account the permit qualification matters set out in s 513(1) of the Act to “ensure that only appropriate persons are conferred with the significant rights to access premises”. Although previous judicial authorities regarding the meaning of particular terms applied in legislation, such as the exposition of the term “fit and proper person” in Tribunal v Bond are binding in similar factual circumstances, care must be exercised lest such judicial expositions replace the actual statutory text. Put simply, the determination of whether an official is a fit and proper person to hold an entry permit involves an assessment of the effect that the existence of any of the matters in s 513, described as the “permit qualification matters”, has on the suitability of the official to hold an entry permit, with all of its attendant rights, conditions, limitations, and responsibilities: The Maritime Union of Australia [2014] FWCFB 1973 at [27]. This has since been confirmed in The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland [2015] FWC 2526 at [6]. It is clear that that a person’s character may change for the better. In Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch [2016] FWC 1984 at [43], SDP Richards dealt with the point in some detail holding that such a finding would need to: … be demonstrated at a higher level than by reference to the completion of the a right of permit

training course, or the passage of time since the contravention. That is, it is necessary in the particular context of prior contraventions that I have before me evidence of sufficient scale and quality of … changed attitudes and conduct. [page 750] [8-2140.20] May — s 512 There remains a discretion to determine, in the light of all the facts and having regard to the objects, whether or not a prospective permit holder is a fit and proper person to hold a permit: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2008] AIR 814; PR984189 at [10]. In Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch [2016] FWC 3952 at [24]–[25], SDP Richards was asked to take into account the fact that the Regulator, the FWBC, had not sought to oppose the application. The Senior Deputy President held that: … I have not taken this into account. This is because the reasons for the FWBC’s actions in not opposing the application are unknown to me. It would be speculation to assert that the FWBC approves of the application or believes that the application cannot be opposed on a reasonable basis. There may be many reasons why the FWBC has not opposed the application, including resource issues. Ultimately, whether the FWBC opposes or does not oppose an application under s 512 of the Act has no bearing upon the Commission’s discretionary decision making (though reasonably some matters are best determined through dialectical processes in respect of which the Commission is removed). [8-2140.25] Official — s 512 See s 12. [8-2140.30] Organisation — s 512 See s 12. [8-2140.35] Outline of Section The section sets out the basis for the issue of an entry permit under the Act. Without an entry permit there is no power to enter under the statute. A refusal to grant a permit is not a punishment. It is a recognition that certain individuals are not suitable to be given the rights and responsibilities that go with being granted a ROE permit: Re AMWU [2015] FWC 1843 at [26]. * Editor’s Note: Commentary prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[8-2160]

Considering application

513 (1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters: (a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an industrial law; (c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving: (i) entry onto premises; or (ii) fraud or dishonesty; or (iii) intentional use of violence against another person or intentional damage or destruction of property; (d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official; (e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions; [page 751] (f)

whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has: (i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or (ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law; (g) any other matters that the FWC considers relevant. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 551, opn 1 Jan 2013]

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part. Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain

circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 551, opn 1 Jan 2013] COMMENTARY ON SECTION 513*

Appropriate — s 513(1)(a) …. Disclosure of information — s 513(2) …. FWC — s 513(1), (g), (2) …. Industrial law — s 513(b), (d), (f) …. Official — s 513(1), (a), (b), (c), (d), (e), (f)(i), (ii) …. Relevant matters — s 513(1)(g) …. State or Territory industrial law — s 513(f) …. State or Territory OHS law — s 513(f) …. Take into account — s 513(1) …. This Act — s 513(d) …. This Part — s 513(e) …. Outline of section ….

[8-2160.01] [8-2160.02] [8-2160.05] [8-2160.10] [8-2160.15] [8-2160.20] [8-2160-25] [8-2160-30] [8-2160-35] [8-2160-40] [8-2160-45] [8-2160-50]

[8-2160.01] Appropriate — s 513(1)(a) The Macquarie Dictionary defines appropriate as: adj. 1. suitable or fitting for a particular purpose, person, occasion, etc.: an appropriate example. 2. belonging or peculiar to one: each played their appropriate part. The definition fits with the discretion conferred by s 512 of the Act. The Australasian Meat Industry Employees’ Union [2013] FWCD 3707 at [49]–[50]. In determining whether a proposed permit holder has received appropriate training about the rights and responsibilities of a permit holder, such as to warrant the granting of a right of entry permit pursuant to s 512, the FWC will take into account the recency of the permit holder’s training: CFMEU — Construction and General Division, Victoria-Tasmania Divisional Branch [2015] FWC 4237 at [4]. [8-2160.02] Disclosure of information — s 513(2) The meaning of subs (2) is described in para 2044 of the Explanatory Memorandum to the Fair Work Bill 2009 as follows: Subclause 513(2) and the note underneath it make it clear that the spent convictions scheme in Division 3 of Part VIIC of the Crimes Act 1914 applies to these provisions. This means that a person applying for a permit under this Part would not be required to disclose a spent conviction. [page 752] [8-2160.05] FWC — s 513(1), (g), (2) See s 12. [8-2160.10] Industrial law — s 513(b), (d), (f) See s 12 [8-2160.15] Official — s 513(1), (a), (b), (c), (d), (e), (f)(i), (ii) See s 12

[8-2160.20] Relevant matters — s 513(1)(g) Section 513(1)(g) provides the Commission with a broad discretion to take into account any other matters it considers relevant. Such discretion should not be taken to mean any matter, but only those that are relevant to determining if the proposed permit holder is a “fit and proper person”. The proper construction should be determined by examining the provision in the context of the Act as a whole. Relevant considerations in this regard include the context, scope and purposes of the Act: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2013] FWCD 6478 at [46]. In our view there is no basis for reading down s 513. In a given application for an entry permit, if a matter that is a permit qualification matter, then that matter must be taken into account in determining whether the official of the applicant organisation is a fit and proper person to hold an entry permit. Parliament has determined that such matters are relevant to that question and it would be wrong to only have regard to those matters if they are relevant to the exercise of entry permit rights. Such words of limitation appear nowhere in s 513: The The Maritime Union of Australia [2014] FWCFB 1973 at [26]. See also CFMEU — Construction and General Division, Victoria-Tasmania Divisional Branch [2015] FWC 4237 at [7]. Thoroughness by an applicant in disclosing adverse issues is paramount in assisting a Delegate to make an informed judgment as to whether an applicant for an entry permit is a fit and proper person. Thoroughness however can only be gauged in relation to each individual applicant’s circumstances: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Victorian Branch [2010] FWAD 10039 at [14]. An unresolved question is whether subs (g) is subject to the ejusdem generis rule. The rule has been described this way: The ejusdem generis rule is one of a number of guides which may be used in the process of interpreting a statutory provision. That process directs attention to the provisions being construed and its context as well as the scope and purpose of the statute…. The rule provides a grammatical justification for reading general words down so as to limit their operation. For its application it requires that there be an enumeration of things of a particular kind or class so that the general words might then be read as applying only to things of the same kind or class as those enumerated: Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd (2012) 87 ATR 880; [2012] NSWCA 181 at [54] (21 June 2012). That question was partially answered in CFMEU [2014] FWC 7209 where Watson VP held at [4] that: In my view, the factors and not an exhaustive list and any other matters that the Commission considers relevant can and should be taken into account. In my view, the proper way to construe these provisions is that there is a broad discretion, confined of course by the objects and the provisions of the Act and the objects and provisions of the relevant Division and Part of the Act. In CFMEU — Construction and General Division, Queensland Northern Territory Divisional Branch [2015] FWC 4544, Watson VP at [8] sought to clarify the scope of s 513(1)(g) and the application of the ejusdem generis rule: [page 753] In this matter the Director contends that circumstances relating to s 513(1)(a) and (g) arise for consideration. The scope of para (g) has been described by a Full Bench as follows: [24] … Paragraph (g) requires the Commission to take into account any other matters which it considers to be relevant. It is not necessary to apply the eiusdem generis presumption to conclude that the relevance referred to in paragraph (g) is relevance to the question of whether the particular

official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit. In Maritime Union of Australia v Fair Work Commission (2015) 321 ALR 248; [2015] FCAFC 56; BC201503183, the Full Federal Court held at [21] that: … [I]n the absence of a clearly-expressed legislative intention to the contrary, there is no self-evident reason why the general integrity of an applicant seeking an entry permit should not be taken into account. Separate from the manner in which an applicant may have exceeded the authority conferred by an entry permit or flouted conditions previously imposed upon an entry permit, the general integrity of an applicant may be exposed by his or her general willingness to comply with other common law or statutory requirements. In Construction, Forestry, Mining and Energy Union-Construction and General Division, VictoriaTasmania Divisional Branch [2016] FWC 3322 at [45], [46], Watson VP took into account proceedings involving the applicant for a permit even though findings had not been made in those proceedings. In Construction, Forestry, Mining and Energy Union [2013] FWCD 1242, Delegate Furlong held at [58]–[61] that: The obligation to disclose facts relevant to the permit qualification matters has been defined as a “duty of full and frank disclosure”. Entry permits are issued to officials of organisations on the basis of the contents of the declarations made by proposed permit holders and members of the Committee of Management of the relevant registered organisation… In my opinion, a “fit and proper person” would not deliberately fail to disclose matters relevant to the “permit qualification matters” when making the declaration in Form F42. Where a failure to make full and frank disclosure in a declaration of the proposed permit holder was not deliberate, reasons may be advanced by the applicant and/or proposed permit holder that the failure to disclose is not representative of the character of the proposed permit holder. Further, where a failure to make full and frank disclosure in a declaration of the relevant Committee of Management member was not deliberate, then reasons may be advanced by the application and/or relevant Committee of Management member that the failure to disclose should not affect the weight to be given to their declaration that the proposed permit holder is a “fit and proper person”. Given this, I regard Mr Olsen’s failure to disclose … to be a relevant matter for the purposes of s 513(1)(g) of the Act. There are limits to such an obligation. In a situation where the findings of the Court in imposing a penalty are available to the Delegate, thoroughness does not require an applicant to provide what in effect would be a précis of the Court’s judgment outlining the allegations, findings and penalties. Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU)-Victorian Branch [2010] FWAD 10039 at [16]. [page 754] The recency of these matters may be relevant. As the Full Bench noted in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2014] FWCFB 4397 at [28]: If an official has for a significant period of time not engaged in any conduct required to be taken into

account under s 513(1)(b)–(f), that will usually be an important if not critical consideration in an assessment of the official’s fitness to hold an entry permit, since it provides a sound basis upon which to have confidence that the official understands the need to comply with industrial and other relevant laws and will therefore diminish the weight to be given to any earlier permit qualification matters. See also Health Services Union-Queensland Branch [2015] FWC 18 at [21]–[25]. [8-2160-25] State or Territory industrial law — s 513(f) See ss 12 and 26. [8-2160-30] State or Territory OHS law — s 513(f) See ss 12 and 494. [8-2160-35] Take into account — s 513(1) See [7-4340.45]. [8-2160-40] This Act — s 513(d) See s 12 [8-2160-45] This Part — s 513(e) This Part is Pt 3-4 [8-2160-50] Outline of section The Full Bench in The Maritime Union of Australia [2014] FWCFB 1973 at [24]–[27] that: The permit qualification matters in s 513, which must be taken into account in deciding whether an official is a fit and proper person, must therefore be considered and applied in a way that assists in answering the question posed by s 512, namely whether the official “is a fit and proper person to hold the entry permit”. The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s 512. They are not matters to be considered to determine whether a person is a “fit and proper person” per se. Rather the permit qualification matters must be taken into account to decide whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation. A holder of an entry permit is empowered to exercise entry rights and rights associated with entry, such as inspections and employee interviews. Those rights are exercisable subject to conditions, such as notice and purpose. They are also subject to limitations, such as on times for entry and places for interview, and responsibilities such as complying with site occupational health and safety requirements and not hindering or obstructing a person. The question of whether an officer is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights. These are all to be found in pt 3-4 of the Act. We reject so much of the Appellant’s submission as suggested that s 513 must be read down in the sense that the various permit qualification matters must be taken into account only to the extent that they are relevant to the exercise of entry permit rights. In our view there is no basis for reading down s 513. In a given application for an entry permit, if a matter that is a permit qualification matter, then that matter must be taken into account in determining whether the official of the applicant organisation is a fit and proper person to hold an entry permit. Parliament has determined that such matters are relevant to that question and it would be wrong to only have regard to those matters if they are relevant to the exercise of entry permit rights… [page 755]

Put simply, the determination of whether an official is a fit and proper person to hold an entry permit involves an assessment of the effect that the existence of any of the matters in s 513, described as the “permit qualification matters”, has on the suitability of the official to hold an entry permit, with all of its attendant rights, conditions, limitations, and responsibilities. The focus must be upon the purpose of the legislation. As the Full Bench noted in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FWCFB 5947 at [31]: While it is clear that the Director has a legitimate interest in achieving greater compliance with industrial laws generally within the building and construction industry, we do not consider that the process established for the issue of entry permits under ss 512–515 of the Act is properly to be used as a blunt instrument to that end. The focus must always be upon endeavouring to ensure that the entry rights conferred by Part 3-4 are exercised lawfully. In Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] FWCFB 6058, the Commission held at [86] that consideration should be given to the “applicant’s attitude and track record relating to compliance”. Past contraventions by the applicant’s organisation, however, should not operate to establish a “higher bar” for the applicant. *Editor’s note: Commentary on s 513 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[8-2180]

When the FWC must not issue permit

514 The FWC must not issue an entry permit to an official at a time when a suspension or disqualification, imposed by a court or other person or body: (a) applies to the official’s exercise of; or (b) prevents the official from exercising or applying for; a right of entry for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory OHS law. [s 514 am Act 174 of 2012 s 3 and Sch 9 items 552, 553, opn 1 Jan 2013] COMMENTARY TO SECTION 514*

Derivation …. Entry Permit — s 514 …. Official — s 514(a), (b) …. State or Territory industrial law — s 514 …. State or Territory OHS law — s 514 …. Outline of Section ….

[8-2180.1] [8-2180.5] [8-2180.10] [8-2180.15] [8-2180.20] [8-2180.25]

[8-2180.1] Derivation The section is loosely derived from s 742(f) and (g) of the Workplace Relations Act 1996.

[8-2180.5] Entry Permit — s 514 See s 12. [8-2180.10] Official — s 514(a), (b) See s 12. [8-2180.15] State or Territory industrial law — s 514 See ss 12 and 26(2). [8-2180.20] State or Territory OHS law — s 514 See ss 12 and 494(3). [page 756] [8-2180.25] Outline of Section The Explanatory Memorandum to the Fair Work Bill 2009 states that this provision recognises that an official of an organisation who is prevented from exercising entry rights under State or Territory laws is not a fit and proper person to hold similar rights under this Part. *Editor’s note: Commentary to s 514 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[8-2200]

Conditions on entry permit

515 (1) The FWC may impose conditions on an entry permit when it is issued. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 554, opn 1 Jan 2013]

(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 555, opn 1 Jan 2013]

(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part). [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 556, opn 1 Jan 2013]

(4) If the FWC imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until the FWC records the condition on the permit. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 557, opn 1 Jan 2013]

(5) To avoid doubt, a permit holder does not contravene an FWC order merely because the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time). [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 557, opn 1 Jan 2013; Act 73 of 2013 s 3 and Sch 6

item 4, opn 28 June 2013] COMMENTARY TO SECTION 515*

Derivation …. Entry Permit — s 515(1), (3), (4), (5) …. FWC — s 515(1), (2), (3), (4), (5) …. May — s 515(1) …. Permit holder — s 515(5) …. Permit qualification matters — 515(2) …. Take into account — s 515(2) …. Outline of section ….

[8-2200.1] [8-2200.5] [8-2200.10] [8-2200.15] [8-2200.20] [8-2200.25] [8-2200.30] [8-2200.35]

[8-2200.1] Derivation Section 741 Workplace Relations Act 1996. [8-2200.5] Entry Permit — s 515(1), (3), (4), (5) See ss 12 and 512. [8-2200.10] FWC — s 515(1), (2), (3), (4), (5) See ss 12 and 575. [8-2200.15] May — s 515(1) See [8-2140.20]. [8-2200.20] Permit holder — s 515(5) See s 12. [8-2200.25] Permit qualification matters — 515(2) See ss 12 and 513. The exercise of discretion under s 515 is governed by the same permit qualification matters as control the decision under s 512, albeit against a background in which there exists a prior determination that the [page 757] relevant official is a fit and proper person to hold a permit: Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2014] FWCFB 7194 at [29]. [8-2200.30] Take into account — s 515(2) See [7-4340.45] [8-2200.35] Outline of section In Re Maritime Union of Australia, (2014) 241 IR 216; [2014] FWCFB 1973 at [43] and [44], the Full Bench dealt with the question as to whether the lack of fitness to hold a permit could be ameliorated by conditions. The Full Bench found that it could not: It is firstly to be observed that the exercise of the power to impose a condition on an entry permit when it is issued is discretionary. Secondly, an entry permit will only be issued if the Commission is satisfied that the officer of the applicant for a permit is a fit and proper person to hold an entry permit. If the Commission is not satisfied that the officer is a fit and proper person to hold an entry permit, there is no power in s 512 to issue the permit. It must follow that the question of whether the Commission will impose a condition on an entry permit when it is issued will only arise after the Commission is first satisfied that the officer of the applicant for a permit is a fit and proper person to hold the permit. As s 512 makes clear, entry permits may only be issued to a person whom the Commission is

satisfied is a fit and proper person to hold an entry permit. It would undermine the legislative intent that underpins s 512 if a person who is assessed as not being a fit and proper person to hold an entry permit could nevertheless be issued with such a permit merely by the imposition of conditions. The power to impose a condition under s 512 seems to us to be exercisable usually after the Commission is satisfied that a relevant official is a fit and proper person to hold an entry permit but there is some concern, for example about the past conduct of the official having regard to the permit qualification requirements in s 513(1), which falls short of rendering that official unsuitable to hold an entry permit. It may also be the case that in an appropriate application the question whether a person is a fit and proper person to hold an entry permit is very finely balanced and the imposition of a condition might tip the balance in favour of the level of satisfaction required. The FWC explored the point further in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2014] FWCFB 4397 at [33]: We have considered an alternate construction whereby the consideration under s 512 of whether a person is fit and proper to hold an entry permit might include an assessment of fitness to hold an entry permit with conditions as well as fitness to hold an unconditional entry permit. Such an approach would assist in resolving the apparent conundrum as to why the Act would, under s 515, allow the imposition of conditions on an entry permit in relation to a person who has already, under s 512, been determined to be a fit and proper person to hold an entry permit. However the text of s 515 militates against the adoption of this alternative construction. Section 515(1) authorises the imposition of conditions on an entry permit only “when it is issued”. The prerequisite for the issue of a permit under s 512 is satisfaction that the official is a fit and proper person. Therefore the question of conditions being imposed on the entry permit cannot arise until a “fit and proper person” finding has been made. Further, s 515(2) requires the Commission, in deciding whether to impose conditions, to take into account the “permit qualification matters” — that is, the matters specified in s 513(1). This confirms that the process of considering whether conditions should be imposed on an entry permit is separate from the consideration of whether an official is a fit and proper person. If the imposition of conditions was required to be considered as part of or conjointly with the consideration of whether the official was a fit and proper person, s 515(2) would be unnecessary since the requirement to take into account the permit qualification matters in relation to the latter consideration is already established by s 513(1). [page 758] In Maritime Union of Australia v Fair Work Commission (2015) 321 ALR 248; [2015] FCAFC 56; BC201503183 at [32], the Full Federal Court disagreed, explaining that: The text of s 515(1) (“when [an entry permit] is issued”) stands in contradistinction to that of s 515(4) (“after it has been issued”), suggesting that s 515(1) contemplates consideration of whether conditions should be imposed conjointly with consideration of whether the official for whom the permit is sought is a “fit and proper person to hold the entry permit”. *Editor’s note: Commentary prepared by Ian Latham BA(Hons)/LLB (ANU).

____________________

[8-2220]

Expiry of entry permit

516 (1) Unless it is revoked, an entry permit expires at the earlier of the following times: (a) at the end of the period of 3 years beginning on the day it is issued, or that period as extended under subsection (2); (b) when the permit holder ceases to be an official of the organisation that applied for the permit. (2) The FWC may extend the period of 3 years referred to in paragraph (1) (a) by a specified period if: (a) the organisation that applied for the permit (the old permit) has applied for another entry permit for the permit holder; and (b) the application was made at least 1 month before the old permit would otherwise have expired under that paragraph; and (c) the FWC is satisfied that the old permit is likely to expire before the FWC determines the application. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 558, 559, opn 1 Jan 2013]

(3) The period specified must not be longer than the period that the FWC considers necessary for it to determine the application. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 560, opn 1 Jan 2013]

(4) The FWC must not extend the period under subsection (2) if: (a) the FWC has requested or required the organisation or permit holder to provide copies of records or documents, or to provide any other information, in relation to the application; and (b) the organisation or permit holder has not complied with the request or requirement; and (c) the FWC is satisfied that the organisation or permit holder does not have a reasonable excuse. [subs (4) am Act 174 of 2012 s 3 and Sch 9 items 561, 562, opn 1 Jan 2013]

[8-2240]

Return of entry permits to the FWC

517 When permit holder must return entry permit to the FWC (1) A permit holder must return an entry permit to the FWC within 7 days of any of the following things happening: (a) the permit is revoked or suspended;

(b) conditions are imposed on the permit after it is issued; (c) the permit expires. Note: This subsection is a civil remedy provision (see Part 4-1). [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 564, 565, opn 1 Jan 2013]

[page 759] FWC to return entry permit to permit holder after suspension (2) After the end of a suspension period, the FWC must return the entry permit to the permit holder if: (a) the permit holder, or the permit holder’s organisation, applies to the FWC for the return of the entry permit; and (b) the entry permit has not expired. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 566, 567, opn 1 Jan 2013] [s 517 am Act 174 of 2012 s 3 and Sch 9 item 563, opn 1 Jan 2013]

Subdivision B — Entry notices

[8-2380]

Entry notice requirements

518 Requirements for all entry notices (1) An entry notice must specify the following: (a) the premises that are proposed to be entered; (b) the day of the entry; (c) the organisation of which the permit holder for the entry is an official. Requirements for entry notice for entry to investigate suspected contravention (2) An entry notice given for an entry under section 481, 483A or 483D must: (a) specify that section as the provision that authorises the entry; and (b) unless the entry is a designated outworker terms entry under section

(c)

(ca)

(cb)

(cc)

(d)

483A — specify the particulars of the suspected contravention, or contraventions; and for an entry under section 481 — contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of a member, who performs work on the premises, and: (i) to whom the suspected contravention or contraventions relate; or (ii) who is affected by the suspected contravention or contraventions; and for an entry under section 483A other than a designated outworker terms entry — contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of a TCF award worker, who performs work on the premises, and: (i) to whom the suspected contravention or contraventions relate; or (ii) who is affected by the suspected contravention or contraventions; and for a designated outworker terms entry under section 483A — contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of TCF award workers; and for an entry under section 483D — contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of a TCF award worker: (i) to whom the suspected contravention or contraventions relate; or (ii) who is affected by the suspected contravention or contraventions; and specify the provision of the organisation’s rules that entitles the organisation to represent the member or TCF award worker.

[subs (2) am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

[page 760] Requirements for entry notice for entry to hold discussions (3) An entry notice given for an entry under section 484 (which deals with entry to hold discussions) must: (a) specify that section as the provision that authorises the entry; and (b) contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of an employee or TCF award worker who performs work on the premises; and (c) specify the provision of the organisation’s rules that entitles the organisation to represent the employee or TCF award worker. Note: See section 503 (which deals with misrepresentations about things authorised by this Part). [subs (3) am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY TO SECTION 518

Drafting of section ….

[8-2380.1]

[8-2380.1] Drafting of section The requirements of notification in s 518 do not define what additional information might be requested by an occupier in establishing the extent of the right conferred by s 484: Construction, Forestry, Mining and Energy Union v Foster Wheeler Worley Parsons (Pluto) Joint Venture [2010] FWA 2341 at [53].

____________________

Subdivision C — Exemption certificates

[8-2520]

Exemption certificates

519 (1) The FWC must issue a certificate (an exemption certificate) to an organisation for an entry under section 481 (which deals with entry to investigate suspected contraventions) if: (a) the organisation has applied for the certificate; and (b) the FWC reasonably believes that advance notice of the entry given by an entry notice might result in the destruction, concealment or alteration of relevant evidence. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 568, 569, opn 1 Jan 2013]

(2) An exemption certificate must specify the following: (a) the premises to which it relates; (b) the organisation to which it relates; (c) the day or days on which the entry may occur; (d) particulars of the suspected contravention, or contraventions, to which the entry relates; (e) section 481 as the provision that authorises the entry.

Subdivision D — Affected member certificates

[8-2660]

Affected member certificates

520 (1) The FWC must, on application by an organisation, issue a certificate (an affected member certificate) to the organisation if the FWC is satisfied that: (a) a member of the organisation performs work on particular premises; and [page 761] (b) the organisation is entitled to represent the industrial interests of the member; and (c) a suspected contravention of a kind referred to in subsection 481(1) relates to, or affects, the member. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 570, 571, opn 1 Jan 2013]

(2) An affected member certificate must state the following: (a) the premises to which it relates; (b) the organisation to which it relates; (c) particulars of the suspected contravention, or contraventions, to which it relates; (d) that the FWC is satisfied of the matters referred to in paragraphs (1) (a), (b) and (c).

[subs (2) am Act 174 of 2012 s 3 and Sch 9 item 572, opn 1 Jan 2013]

(3) An affected member certificate must not reveal the identity of the member or members to whom it relates.

Subdivision E — Miscellaneous

[8-2800] Regulations dealing with instruments under this Part 521 The regulations may provide for, and in relation to, the following: (a) the form of entry permits, entry notices, exemption certificates and affected member certificates; (b) additional information to be included on, or given with, entry permits, entry notices, exemption certificates and affected member certificates; (c) the manner in which entry permits, entry notices, exemption certificates and affected member certificates are to be given; (d) any other matter in relation to entry permits, entry notices, exemption certificates and affected member certificates.

DIVISION 7 — ACCOMMODATION AND TRANSPORT ARRANGEMENTS IN REMOTE AREAS [Div 7 insrt Act 73 of 2013 s 3 and Sch 4 item 14, opn 1 Jan 2014]

[8-2801]

Meaning of accommodation arrangement

521A (1) If: (a) an occupier of premises enters into an arrangement with an organisation; and (b) under the terms of the arrangement, a permit holder is provided with accommodation for the purpose of assisting him or her to exercise rights under this Part; the arrangement is an accommodation arrangement. (2) If:

(a) an occupier of premises enters into an arrangement with a permit holder; and (b) under the terms of the arrangement, the permit holder is provided with accommodation for the purpose of assisting him or her to exercise rights under this Part; the arrangement is an accommodation arrangement. [page 762]

[8-2802]

Meaning of transport arrangement

521B (1) If: (a) an occupier of premises enters into an arrangement with an organisation; and (b) under the terms of the arrangement, a permit holder is provided with transport for the purpose of assisting him or her to exercise rights under this Part; the arrangement is a transport arrangement. (2) If: (a) an occupier of premises enters into an arrangement with a permit holder; and (b) under the terms of the arrangement, the permit holder is provided with transport for the purpose of assisting him or her to exercise rights under this Part; the arrangement is a transport arrangement.

[8-2803] Accommodation arrangements for remote areas 521C (1) This section applies only in remote areas This section applies if rights under this Part are to be exercised by a permit holder on premises that are located in a place where accommodation is not reasonably available to the permit holder unless the occupier of the premises on which the rights

are to be exercised provides the accommodation, or causes it to be provided. (2) Where parties cannot agree on an accommodation arrangement If all of the following are satisfied: (a) to provide accommodation, or cause accommodation to be provided, to the permit holder would not cause the occupier undue inconvenience; (b) the permit holder, or the organisation of which the permit holder is an official, requests the occupier to provide, or cause to be provided, accommodation for the purpose of assisting the permit holder to exercise rights under this Part on the premises; (c) the request is made within a reasonable period before accommodation is required; (d) the permit holder, and the organisation of which the permit holder is an official, have been unable to enter into an accommodation arrangement with the occupier by consent; the occupier must enter into an accommodation arrangement for the purpose of assisting the permit holder to exercise rights under this Part. Note: The FWC may deal with disputes about whether accommodation is reasonably available, whether providing accommodation or causing it to be provided would cause the occupier undue inconvenience and whether a request to provide accommodation is made within a reasonable period (see subsection 505(1)).

(3) Costs If an accommodation arrangement is entered into under subsection (2), the occupier must not charge an organisation or a permit holder a fee for accommodation under the arrangement that is more than is necessary to cover the cost to the occupier of providing the accommodation, or causing it to be provided. Note: This subsection is a civil remedy provision (see Part 4-1).

(4) FWC’s powers if rights misused whilst in accommodation For the purposes of this Part, the FWC may treat the conduct of the permit holder whilst in accommodation under an accommodation arrangement to which the occupier is a party, whether entered into under subsection (2) or by consent, as conduct engaged in as part of the exercise of rights by the permit holder under this Part. [page 763]

[8-2804] areas

Transport arrangements for remote

521D (1) This section applies only in remote areas This section applies if rights under this Part are to be exercised by a permit holder on premises that are located in a place that is not reasonably accessible to the permit holder unless the occupier of the premises on which the rights are to be exercised provides transport, or causes it to be provided. (2) Where parties cannot agree on transport arrangement If all of the following are satisfied: (a) to provide transport to the premises for the permit holder, or cause that transport to be provided, would not cause the occupier undue inconvenience; (b) the permit holder, or the organisation of which the permit holder is an official, requests the occupier to provide, or cause to be provided, transport to the premises for the purpose of assisting the permit holder to exercise rights under this Part; (c) the request is made within a reasonable period before transport is required; (d) the permit holder, and the organisation of which the permit holder is an official, have been unable to enter into a transport arrangement with the occupier by consent; the occupier must enter into a transport arrangement for the purpose of assisting the permit holder to exercise rights under this Part. Note: The FWC may deal with disputes about whether premises are reasonably accessible, whether providing transport or causing it to be provided would cause the occupier undue inconvenience and whether a request to provide transport is made within a reasonable period (see subsection 505(1)).

(3) Costs If a transport arrangement is entered into under subsection (2), the occupier must not charge an organisation or a permit holder a fee for transport under the arrangement that is more than is necessary to cover the cost to the occupier of providing the transport, or causing it to be provided. Note: This subsection is a civil remedy provision (see Part 4-1).

(4) FWC’s powers if rights misused whilst in transport For the purposes of this Part, the FWC may treat the conduct of the permit holder whilst in transport under a transport arrangement to which the occupier is a party,

whether entered into under subsection (2) or by consent, as conduct engaged in as part of the exercise of rights by the permit holder under this Part.

PART 3-5 — STAND DOWN DIVISION 1 — INTRODUCTION

[8-3040]

Guide to this Part

522 This Part provides for a national system employer to stand down a national system employee without pay in certain circumstances. Division 2 sets out the circumstances in which an employer may stand down an employee without pay. Division 3 provides for the FWC to deal with disputes about the operation of this Part.

[page 764] [Editor’s note: Section 522 of this legislation is reproduced in this format in line with the official version.] [s 522 am Act 174 of 2012 s 3 and Sch 9 item 573, opn 1 Jan 2013]

[8-3060]

Meanings of employee and employer

523 In this Part, employee means a national system employee, and employer means a national system employer. COMMENTARY TO SECTION 523*

Derivation …. National system employee …. National system employer …. [83060-05] Derivation The section is new. [83060-10] National system employee See ss 12, 13, 30C. [83060-15] National system employer See ss 12, 14, 30D.

[83060-05] [83060-10] [83060-15]

*Editor’s note: Commentary to s 523 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

DIVISION 2 — CIRCUMSTANCES ALLOWING STAND DOWN

[8-3250] Employer may stand down employees in certain circumstances 524 (1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances: (a) industrial action (other than industrial action organised or engaged in by the employer); (b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown; (c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible. (2) However, an employer may not stand down an employee under subsection (1) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if: (a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and (b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance. Note 1: If an employer may not stand down an employee under subsection (1), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment. Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).

[page 765]

(3) If an employer stands down an employee during a period under subsection (1), the employer is not required to make payments to the employee for that period. COMMENTARY TO SECTION 524*

Derivation …. History …. Because — s 524(1), (2), (b) …. Breakdown of machinery — s 524(b) …. Employee — s 524(1), (2), (a), (b), Note 1, Note 2, (3) …. Employer — s 524(1), (a), (b), (c), (2), (a), (b), Note1, Note 2, (3) …. Enterprise agreement — s 524(2)(a), Note 1, Note 2 …. For any cause — s 524(c) …. Industrial action — s 524(a) …. Stoppage of work — s 524(c) …. Usefully employed — s 524(1), (2), (b) …. Scope of section ….

[8-3250.05] [8-3250.10] [8-3250.15] [8-3250.20] [8-3250.25] [8-3250.30] [8-3250.35] [8-3250.40] [8-3250.45] [8-3250.50] [8-3250.55] [8-3250.60]

[8-3250.05] Derivation The section is new. [8-3250.10] History Stand down provisions were a feature of many awards for many years. Now the right to stand down employees is contained in the Act … Australian Manufacturing Workers’ Union v McCain Foods (Aust) Pty Ltd (2011) 214 IR 1; [2011] FWA 6810; BC201171117 at [11]. [8-3250.15] Because — s 524(1), (2), (b) It is necessary, in my view, that one be persuaded, to a level of confident satisfaction (but always within the civil test), that the cause of an employee being unable to be usefully employed is, in truth, “because of” the industrial action in question. Where, as in this case, there is a passage of time, from industrial action to stand down, one will naturally be on guard to ensure that no other reason, no other influence or purpose is permitted to intrude by adding weight to the s 524 considerations or which reflects some other motive as the real or contributory reason: “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” Known as The Australian Manufacturing Workers’ Union (AMWU) v Toyota Boshoku Australia Pty Ltd [2012] FWA 1135; BC201270594 at [124]. [8-3250.20] Breakdown of machinery — s 524(b) Of course a breakdown of machinery is properly regarded in itself as a valid cause, for primarily it denotes that the working apparatus itself is incapable, by reason of its own inherent inefficiency, of enabling operations to be carried on: Pickard v John Heine & Son Ltd (1924) 35 CLR 1 at 8; BC2490104. [8-3250.25] Employee — s 524(1), (2), (a), (b), Note 1, Note 2, (3) See s 523.

[8-3250.30] Employer — s 524(1), (a), (b), (c), (2), (a), (b), Note1, Note 2, (3) See s 523. [8-3250.35] Enterprise agreement — s 524(2)(a), Note 1, Note 2 See s 12. [8-3250.40] For any cause — s 524(c) The phrase must be read ejusdem generis. As DP Gooley held in The Australian Workers’ Union v Brockman Engineering Pty Ltd [2015] FWC 2077 at [57]: I do not accept the respondents’ submission that the words “for any cause” should be read literally. If that were the case, then there would be no need for either (a) or (b). If the interpretation advanced by the respondents was accepted, only (c) would be necessary. [page 766] [8-3250.45] Industrial action — s 524(a) See ss 12 and 19. While the employer must show pursuant to s 524 that the employees in question cannot be usefully employed and that this is because of the identified industrial action, there is no warrant to require the industrial action to be occurring at the same time as its affect is felt. The words of the provision do not support such a constricted application. And without a strong indication of parliamentary intention to this effect a stricture of the sort contended for cannot be warranted: “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” Known as The Australian Manufacturing Workers’ Union (AMWU) v Toyota Boshoku Australia Pty Ltd [2012] FWA 1135; BC201270594 at [119]. [8-3250.50] Stoppage of work — s 524(c) The Macquarie Dictionary Online 2008 relevantly defines “stoppage” as: 1. the act of stopping; cessation of activity, etc… 4. a cessation of work as a protest; strike: a twenty-four hour stoppage. Accordingly, by definition, work cannot stop or cease unless it is being carried on in the first place: City of Wanneroo v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2008] AIRC 135; Print PR980656 at [30]–[31]. [8-3250.55] Usefully employed — s 524(1), (2), (b) In my opinion the question whether an employee cannot be usefully employed because of a strike is largely a question of fact. No doubt, as a matter of law, some considerations will be irrelevant in determining the question of fact. But I reject the argument that the economic consequences to the employer are to be ignored in deciding whether employees can be usefully employed. I accept that it is a material matter that work has been scheduled to be done by an employee on a day when, in fact, he is stood-down. In many cases that will be a powerful indication that the work which was scheduled to be done was work which would have been useful to the employer. If the employee is stood-down in those circumstances the employer will necessarily have to establish that because of circumstances that arose after the work was first scheduled to be done, the employee could not be usefully employed: Townsend v GMH [1983] 4 IR 358 at 370; BC8300317. [8-3250.60] Scope of section Paragraph 2077 of the Explanatory Memorandum to the Fair Work Bill 2009 provides: An employer can only stand down an employee if they cannot be usefully employed. If the employer is able to obtain some benefit or value for the work that could be performed by an employee then the employer would not be able to stand down the employee. As the concepts involved in s 524 and the approach contained in the explanatory memorandum reflect previous case law dealing with stand down provisions in awards it is also appropriate to obtain

some guidance from that case law on the proper interpretation of relevant concepts: Australian Manufacturing Workers’ Union v McCain Foods (Aust) Pty Ltd (2011) 214 IR 1; [2011] FWA 6810; BC201171117 at [15]. The power to stand down is limited. As Sharpe J held in Re Distilleries Award 1976 (1976) 180 CAR 786 at 787: I do not accept the contention … that standing down employees without pay should be an employer’s right if that is the most convenient way of avoiding economic loss. The concept that it is management’s prerogative to use labour at will has had no place in Western society for many decades. *Editor’s note: Commentary to s 524 updated by Ian Latham BA(Hons) LLB(ANU), Barrister.

____________________ [page 767]

[8-3270] Employee not stood down during a period of authorised leave or absence 525 An employee is not taken to be stood down under subsection 524(1) during a period when the employee: (a) is taking paid or unpaid leave that is authorised by the employer; or (b) is otherwise authorised to be absent from his or her employment. Note: An employee may take paid or unpaid leave (for example, annual leave) during all or part of a period during which the employee would otherwise be stood down under subsection 524(1).

DIVISION 3 — DEALING WITH DISPUTES

[8-3460] FWC may deal with a dispute about the operation of this Part 526 (1) The FWC may deal with a dispute about the operation of this Part. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 575, opn 1 Jan 2013]

(2) The FWC may deal with the dispute by arbitration. Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 575, opn 1 Jan 2013]

(3) The FWC may deal with the dispute only on application by any of the following: (a) an employee who has been, or is going to be, stood down under subsection 524(1) (or purportedly under subsection 524(1)); (b) an employee in relation to whom the following requirements are satisfied: (i) the employee has made a request to take leave to avoid being stood down under subsection 524(1) (or purportedly under subsection 524(1)); (ii) the employee’s employer has authorised the leave; (c) an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (a) or (b); (d) an inspector. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 575, opn 1 Jan 2013]

(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 576, opn 1 Jan 2013] [s 526 am Act 174 of 2012 s 3 and Sch 9 item 574, opn 1 Jan 2013] COMMENTARY TO SECTION 526*

Arbitration — s 526(2) …. Conciliation — s 526(2) Note …. Deal with a dispute — s 526(1), (2), Note, (3), (4) …. Employee — s 526(3)(a), (b), (i), (ii), (c) …. Employee organisation — s 526(3)(c) …. Entitled to represent — s 526(3)(c) …. Fairness — s 526(4) …. FWC — s 526(1), (2), Note, (3), (4) ….

[8-3460.01] [8-3460.05] [8-3460.10] [8-3460.15] [8-3460.20] [8-3460.25] [8-3460.30] [8-3460.35] [page 768]

Has been — s 526(3)(a) …. May — s 526(3) …. Mediation — s 526(2) Note ….

[8-3460.40] [8-3460.45] [8-3460.50]

Stood down — s 526(3)(a)(b)(i) …. This Part — s 526(1) …. Outline of section ….

[8-3460.55] [8-3460.60] [8-3460.65]

[8-3460.01] Arbitration — s 526(2) See [9-5960.05]. [8-3460.05] Conciliation — s 526(2) Note See [9-5960.10]. [8-3460.10] Deal with a dispute — s 526(1), (2), Note, (3), (4) See [8-8310.25]. [8-3460.15] Employee — s 526(3)(a), (b), (i), (ii), (c) See s 523. [8-3460.20] Employee organisation — s 526(3)(c) See s 12. [8-3460.25] Entitled to represent — s 526(3)(c) See [8-4980.75]. [8-3460.30] Fairness — s 526(4) The meaning of fairness is determined by its context. As the Court of Appeal quoted approvingly in Havyn Pty Ltd v Webster (2005) 12 BPR 22,837; (2005) ASAL 55-143; [2005] NSWCA 182; BC200503459 at [151]: Although fairness is a notion which can be applied to all kinds of activities, its content will depend upon the context in which it is being used. Conduct which is perfectly fair between competing businessmen may not be fair between members of a family. In some sports it may require, at best, observance of the rules, in others (“it’s not cricket”) it may be unfair in some circumstances to take advantage of them. All is said to be fair in love and war. So the context and background are very important. As the Full Bench stated in Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) (2012) 219 IR 139; [2012] FWAFB 2206 at [13]: The word “fairly” is derived from the adverb “fair” and is a word of wide import. What is fair in a particular context is largely a matter of impression and judgment. Of the various definitions of “fairly” in The Oxford Dictionary the most apt in this context are: “by proper means, legitimately, impartially, justly”; and “with due regard to equity, candidly, impartially; without undue advantage on either side.” [8-3460.35] FWC — s 526(1), (2), Note, (3), (4) See ss 12 and 575. [8-3460.40] Has been — s 526(3)(a) That is to say, at the time the application is made to the Commission, the employee must be experiencing the consequences of the stand down or be about to experience the consequences of the stand down. They must be employed by the respondent employer when the application to the Commission is made. The whole purpose of the legislative scheme is to provide affected employees with a remedy that can be promptly actioned by them: Schell v Ensign Australia Pty Ltd [2015] FWC 8825 at [23] although compare Australasian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165; [2003] FCA 910; BC200304866 at [30]. [8-3460.45] May — s 526(3) See [20-3010.20]. [8-3460.50] Mediation — s 526(2) Note See [9-5960.35]. [page 769]

[8-3460.55] Stood down — s 526(3)(a)(b)(i) In the present context the power to stand down is a creature of statute. It relieves the employer of the obligation to pay an employee who is otherwise ready, willing and able to work for the employer. At common law the employee would be entitled to be paid, however s 524(3) of the FW Act relieves the employer of that common law obligation: Schell v Ensign Australia Pty Ltd [2015] FWC 8825 at [22]. Nevertheless, as DP Kovacic held in Isturiz-Moron v Northside Community Service Ltd [2016] FWC 4649 at [25] (13 July 2016), “[t]here is nothing in the language of s 526 which connotes an intention to limit the Commission’s powers under Part 3-5 to circumstances where an employee continues to be employed by the respondent employer”. [8-3460.60] This Part — s 526(1) This Part is Pt 3-5. [8-3460.65] Outline of section Withholding of pay is the traditional purpose of stand down provisions: Desmond Manthos v Dental Health Services Victoria [2013] FWC 6218 at [15]. The consequences for an employee, deprived of his or her wage by operation of the statute, are potentially significant. It is for this reason that the Parliament provided for a mechanism through which an employee adversely affected by a stand down could make application to address those adverse consequences: Schell v Ensign Australia Pty Ltd [2015] FWC 8825 at [22]. [T]he Commission is empowered by s 526 to deal with that dispute by arbitration. The Commission is required to take into account fairness between the parties concerned and thereby incorporate an overall discretionary factor into the task of determining a dispute over whether the right to stand down is correctly invoked in the circumstances: SSX Services Pty Ltd v The Australian Workers’ Union (2015) 250 IR 377; [2015] FWCFB 3964 at [17]. *Editor’s Note: Commentary to s 526 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[8-3480] Contravening an FWC order dealing with a dispute about the operation of this Part 527 A person must not contravene a term of an FWC order dealing with a dispute about the operation of this Part. Note: This section is a civil remedy provision (see Part 4-1). [s 527 am Act 174 of 2012 s 3 and Sch 9 items 577, 578, opn 1 Jan 2013]

PART 3-6 — OTHER RIGHTS AND RESPONSIBILITIES DIVISION 1 — INTRODUCTION

[8-3720]

Guide to this Part

528 This Part deals with other rights and responsibilities. Division 2 is about the obligations of a national system employer if a decision is made to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature. Subdivision A of Division 2 deals with notifying the Chief Executive Officer of the Commonwealth Services Delivery Agency (Centrelink) about the proposed dismissals. Subdivision B of Division 2 provides for the FWC to make orders if the employer fails to notify and consult relevant industrial associations. Subdivision C of Division 2 provides that that Division does not apply in relation to certain employees. [page 770] Division 3 is about the obligations of national system employers to make and keep employee records in relation to each of their employees and to give pay slips to each of their employees. [Editor’s note: Section 528 of this legislation is reproduced in this format in line with the official version.] [s 528 am Act 174 of 2012 s 3 and Sch 9 item 579, opn 1 Jan 2013]

[8-3740]

Meanings of employee and employer

529 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). [s 529 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY TO SECTION 529*

Derivation …. National system employee …. National system employer …. TCF contract outworkers — s 529 Note …. This Part — s 529 …. [8-3740.01] Derivation The section is new. [8-3740.05] National system employee See ss 12, 13, 30C.

[8-3740.01] [8-3740.05] [8-3740.10] [8-3740.15] [8-3740.20]

[8-3740.10] National system employer See ss 12, 14, 30D. [8-3740.15] TCF contract outworkers — s 529 Note See ss 12 and 789BB(2). [8-3740.20] This Part — s 529 This Part is 3–6. *Editor’s Note: Commentary to s 529 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

DIVISION 2 — NOTIFICATION AND CONSULTATION RELATING TO CERTAIN DISMISSALS Subdivision A — Requirement to notify Centrelink

[8-3930] Employer to notify Centrelink of certain proposed dismissals 530 (1) If an employer decides to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons, the employer must give a written notice about the proposed dismissals to the Chief Executive Officer of the Commonwealth Services Delivery Agency (Centrelink). (2) The notice must be in the form (if any) prescribed by the regulations and set out: (a) the reasons for the dismissals; and (b) the number and categories of employees likely to be affected; and (c) the time when, or the period over which, the employer intends to carry out the dismissals. [page 771] (3) The notice must be given: (a) as soon as practicable after making the decision; and (b) before dismissing an employee in accordance with the decision.

(4) The employer must not dismiss an employee in accordance with the decision unless the employer has complied with this section. Note: This subsection is a civil remedy provision (see Part 4-1).

(5) The orders that may be made under subsection 545(1) in relation to a contravention of subsection (4) of this section: (a) include an order requiring the employer not to dismiss the employees in accordance with the decision, except as permitted by the order; but (b) do not include an order granting an injunction.

Subdivision B — Failure to notify or consult registered employee associations

[8-4070] FWC may make orders where failure to notify or consult registered employee associations about dismissals 531 (1) The FWC may make an order under subsection 532(1) if it is satisfied that: (a) an employer has decided to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons; and (b) the employer has not complied with subsection (2) (which deals with notifying relevant registered employee associations) or subsection (3) (which deals with consulting relevant registered employee associations); and (c) the employer could reasonably be expected to have known, when he or she made the decision, that one or more of the employees were members of a registered employee association. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 581, opn 1 Jan 2013]

Notifying relevant registered employee associations (2) An employer complies with this subsection if: (a) the employer notifies each registered employee association of

which any of the employees was a member, and that was entitled to represent the industrial interests of that member, of the following: (i) the proposed dismissals and the reasons for them; (ii) the number and categories of employees likely to be affected; (iii) the time when, or the period over which, the employer intends to carry out the dismissals; and (b) the notice is given: (i) as soon as practicable after making the decision; and (ii) before dismissing an employee in accordance with the decision. Consulting relevant registered employee associations (3) An employer complies with this subsection if: (a) the employer gives each registered employee association of which any of the employees was a member, and that was entitled to represent the industrial interests of that member, an opportunity to consult the employer on: (i) measures to avert or minimise the proposed dismissals; and [page 772] (ii) measures (such as finding alternative employment) to mitigate the adverse effects of the proposed dismissals; and (b) the opportunity is given: (i) as soon as practicable after making the decision; and (ii) before dismissing an employee in accordance with the decision. [s 531 am Act 174 of 2012 s 3 and Sch 9 item 580, opn 1 Jan 2013]

[8-4090]

Orders that the FWC may make

532 (1) The FWC may make whatever orders it considers appropriate, in the public interest, to put:

(a) the employees; and (b) each registered employee association referred to in paragraph 531(2)(a) or (3)(a); in the same position (as nearly as can be done) as if the employer had complied with subsections 531(2) and (3). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 583, opn 1 Jan 2013]

(2) The FWC must not, under subsection (1), make orders for any of the following: (a) reinstatement of an employee; (b) withdrawal of a notice of dismissal if the notice period has not expired; (c) payment of an amount in lieu of reinstatement; (d) payment of severance pay; (e) disclosure of confidential information or commercially sensitive information relating to the employer, unless the recipient of such information gives an enforceable undertaking not to disclose the information to any other person; (f) disclosure of personal information relating to a particular employee, unless the employee has given written consent to the disclosure of the information and the disclosure is in accordance with that consent. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 583, opn 1 Jan 2013] [s 582 am Act 174 of 2012 s 3 and Sch 9 item 365, opn 1 Jan 2013]

[8-4110]

Application for an FWC order

533 The FWC may make the order only on application by: (a) one of the employees; or (b) a registered employee association referred to in paragraph 531(2) (a) or (3)(a); or (c) any other registered employee association that is entitled to represent the industrial interests of one of the employees. [s 533 am Act 174 of 2012 s 3 and Sch 9 items 584, 585, opn 1 Jan 2013]

Subdivision C — Limits on scope of this Division

[8-4250]

Limits on scope of this Division

534 (1) This Division does not apply in relation to any of the following employees: (a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season; [page 773] (b) an employee who is dismissed because of serious misconduct; (c) a casual employee; (d) an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement; (e) a daily hire employee working in the building and construction industry (including working in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures); (f) a daily hire employee working in the meat industry in connection with the slaughter of livestock; (g) a weekly hire employee working in connection with the meat industry and whose dismissal is determined solely by seasonal factors; (h) an employee prescribed by the regulations as an employee in relation to whom this Division does not apply. (2) Paragraph (1)(a) does not prevent this Division from applying in relation to an employee if a substantial reason for employing the employee as described in that paragraph was to avoid the application of this Division.

DIVISION 3 — EMPLOYER OBLIGATIONS IN RELATION

TO EMPLOYEE RECORDS AND PAY SLIPS

[8-4440] Employer obligations in relation to employee records 535 (1) An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees. Note: This subsection is a civil remedy provision (see Part 4-1).

(2) The records must: (a) if a form is prescribed by the regulations — be in that form; and (b) include any information prescribed by the regulations. Note: This subsection is a civil remedy provision (see Part 4-1).

(3) The regulations may provide for the inspection of those records.

[8-4460] slips

Employer obligations in relation to pay

536 (1) An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work. Note 1: This subsection is a civil remedy provision (see Part 4-1). Note 2: Section 80 of the Paid Parental Leave Act 2010 requires an employer to give information to an employee to whom the employer pays an instalment under that Act. [subs (1) am Act 109 of 2012 s 3 and Sch 2, opn 23 July 2012]

(2) The pay slip must: (a) if a form is prescribed by the regulations — be in that form; and (b) include any information prescribed by the regulations. Note: This subsection is a civil remedy provision (see Part 4-1).

[page 774] COMMENTARY TO SECTION 536*

Derivation ….

[8-4460.05]

Civil remedy provision — s 536 Note 1 …. Employee — s 536(1), Note 2 …. Employer — s 536(1), Note 2 …. Give — s 536(1), Note 2 …. Regulations …. Outline of Section ….

[8-4460.10] [8-4460.15] [8-4460.20] [8-4460.25] [8-4460.30] [8-4460.35]

[8-4460.05] Derivation The section is very loosely derived from s 836 of the Workplace Relations Act 1996. [8-4460.10] Civil remedy provision — s 536 Note 1 See ss 12 and 539. [8-4460.15] Employee — s 536(1), Note 2 See s 529. [8-4460.20] Employer — s 536(1), Note 2 See s 529. [8-4460.25] Give — s 536(1), Note 2 In Fair Work Ombudsman v Ballina Island Resort Pty Ltd (2011) 207 IR 312; [2011] FMCA 500; BC201104977 (1 July 2011), Lloyd-Jones FM found (at [119]): [T]here is no submission supported by relevant authorities that indicate that payslips must be given to an employee in any particular way. Section 536 of the Fair Work Act states that “an employer must give” the relevant payslips to employees, but the method is not defined. Common experiences demonstrate that there may be different methods of distribution adopted by different work environments. In some cases this may involve a department supervisor handing the payslips to each individual employee while others may involve payslips being left in pigeon holes through to postal delivery, particularly when the employee seldom visits the employer’s place of business. The distribution of payslips has changed significantly with the introduction of electronic transfer of wages and salary. [8-4460.30] Regulations See Fair Work Regulations 2009 regs 3.45 and 3.46. [8-4460.35] Outline of Section The section sets out the obligations in relation to payslips: Explanatory Memorandum to the Fair Work Bill 2009 at para 2111. The failure to issue payslips is serious in that payslips are an important tool for ensuring compliance with legislative requirements in that they are at once evidence and an explanation of payment and of assistance to both the employee and a workplace inspector: Workplace Ombudsman v NMD Investments Pty Ltd & Placanica [2009] SAIRC 71 at [63] (6 November 2009). In Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258; BC201201816 at [67] Riethmuller FM held: Whilst the record keeping obligation with respect to pay slips only appears in the Regulations, its central importance in industrial matters cannot be underestimated. Proper pay slips allow employees to understand how their pay is calculated and therefore easily obtain advice. Pay slips provide the most practical check on false record keeping and underpayments, and allow for genuine mistakes or misunderstandings to quickly be identified. Without proper pay slips employees are significantly disempowered, creating a structure within which breaches of the industrial laws can easily be perpetrated. *Editor’s Note: Commentary to s 536 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[page 775]

CHAPTER 4 — COMPLIANCE AND ENFORCEMENT Commentary by Ian Latham, Barrister This commentary was last updated in June 2013. PART 4-1 — CIVIL REMEDIES DIVISION 1 — INTRODUCTION

[8-4750]

Guide to this Part

537 This Part is about civil remedies. Certain provisions in this Act impose obligations on certain persons. Civil remedies may be sought in relation to contraventions of these civil remedy provisions. Subdivision A of Division 2 deals with applications for orders in relation to contraventions of civil remedy provisions and safety net contractual entitlements, and applications for orders to enforce entitlements arising under subsection 542(1). Subdivision B of Division 2 sets out the orders that can be made by the Federal Court, the Federal Circuit Court or an eligible State or Territory Court in relation to a contravention of a civil remedy provision. Division 3 sets out when proceedings relating to a contravention of a civil remedy provision may be dealt with as small claims proceedings. Division 4 deals with general provisions relating to civil remedies, including rules about evidence and procedure. Division 5 deals with unclaimed money. [Editor’s note: Section 537 of this legislation is reproduced in this format in line with the official version.] [s 537 am Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013]

[8-4770]

Meanings of employee and employer

538 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). [s 538 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY TO SECTION 538*

Derivation …. Employee — s 538 …. Employer — s 538 …. TCF contract outworkers — s 538 Note …. This Part — s 538 …. Outline of Section ….

[8-4770.1] [8-4770.5] [8-4770.10] [8-4770.12] [8-4770.14] [8-4770.15]

[8-4770.1] Derivation The section is new. [page 776] [8-4770.5] Employee — s 538 See ss 12, 15(1), 30E(1) and 30P(1). [8-4770.10] Employer — s 538 See ss 12, 15(2), 30E(2) and 30P(2). [8-4770.12] TCF contract outworkers — s 538 Note See s 789BB(2). [8-4770.14] This Part — s 538 This Part is Pt 4-1. [8-4770.15] Outline of Section Paragraph 2124 of the Explanatory Memorandum to the Fair Work Bill states somewhat obscurely that in this Part, the terms employer and employee have their ordinary meanings. This is because this Part is incidental to other parts of the Bill. A provision in this Part could relate to national system employers and their employees, or to other employers and their employees, depending on the part of the Bill that creates the substantive right or obligation. *Editor’s note: Commentary on s 538 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

DIVISION 2 — ORDERS Subdivision A — Applications for orders

[8-4960] Applications for orders in relation to contraventions of civil remedy provisions

539 (1) A provision referred to in column 1 of an item in the table in subsection (2) is a civil remedy provision. (2) For each civil remedy provision, the persons referred to in column 2 of the item may, subject to sections 540 and 544 and Subdivision B, apply to the courts referred to in column 3 of the item for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in column 4 of the item. Note 1: Civil remedy provisions within a single Part may be grouped together in a single item of the table. Note 2: Applications cannot be made by an inspector in relation to a contravention of a civil remedy provision by a person in certain cases where an undertaking or compliance notice has been given (see subsections 715(4) and 716(4A)). Note 3: The regulations may also prescribe persons for the purposes of an item in column 2 of the table (see subsection 540(8)).

Standing, jurisdiction and maximum penalties Item

Column 1 Column 2 Civil remedy Persons provision

Column 3 Courts

Column 4 Maximum penalty

Part 2-1 — Core provisions 1

44(1)

(a) an employee; (b) an employee organisation; (c) an inspector

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court; (c) an eligible State or Territory court [page 777]

Standing, jurisdiction and maximum penalties

Item

Column 1 Column 2 Civil remedy Persons provision

2

45 (other than in relation to a contravention or proposed contravention of an outworker term)

3

45 (in relation to a contravention or proposed contravention of an outworker term)

4

50 (other than in relation to a contravention or proposed contravention

(a) an employee; (b) an employer; (c) an employee organisation; (d) an employer organisation; (e) an inspector (a) an outworker; (b) an employer; (c) an outworker entity; (d) an employee organisation; (e) an employer organisation; (f) an inspector (a) an employee; (b) an employer; (c) an employee

Column 3 Courts

Column 4 Maximum penalty

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court; (c) an eligible State or Territory court

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court; (c) an eligible State or Territory court

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court;

5

of a term that would be an outworker term if it were included in a modern award)

organisation to which the enterprise agreement concerned applies; (d) an inspector

(c) an eligible State or Territory court

50 (in relation to a contravention or proposed contravention of a term that would be an outworker term if it were included in a modern award)

(a) an employee; (b) an employer; (c) an employee organisation; (d) an inspector

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court; (c) an eligible State or Territory court

Part 2-4 — Enterprise agreements 6

233

(a) an employee who the proposed enterprise agreement will cover; (b) a bargaining representative for the proposed

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court; (c) an eligible State or Territory court

[page 778]

Standing, jurisdiction and maximum penalties Item

Column 1 Column 2 Civil remedy Persons provision

Column 3 Courts

Column 4 Maximum penalty

enterprise agreement; (c) an inspector Part 2-5 — Workplace determinations 7

280

(a) an employee; (b) an employer; (c) an employee organisation to which the workplace determination concerned applies; (d) an inspector

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court; (c) an eligible State or Territory court

(a) an employee; (b) an employee organisation; (c) an inspector

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court; (c) an eligible State or Territory court

Part 2-6 — Minimum wages 8

293

Part 2-7 — Equal remuneration 9

305

(a) an employee; (b) an employee organisation; (c) an inspector

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court; (c) an eligible State or Territory court

Part 2-9 — Other terms and conditions of employment 10

323(1) 323(3) 325(1) 328(1) 328(2) 328(3)

(a) an employee; (b) an employee organisation; (c) an inspector

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court; (c) an eligible State or Territory court

Part 3-1 — General protections 11

340(1) 340(2) 343(1)

(a) a person affected by the contravention;

(a) the Federal Court; (b) the Federal

60 penalty units

[page 779]

Standing, jurisdiction and maximum penalties

Item

12

Column 1 Column 2 Civil remedy Persons provision

Column 3 Courts

Column 4 Maximum penalty

344 345(1) 346 348 349(1) 350(1) 350(2) 351(1) 352 353(1) 354(1) 355 357(1) 358 359 369(3)

(b) an industrial association; (c) an inspector

Circuit Court

378

(a) a person to whom the costs are payable; (b) an industrial association; (c) an inspector

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court

(a) a person affected by the contravention; (b) an employee

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court;

Part 3-2 — Unfair dismissal 13

405

organisation; (c) an employer organisation; (d) an inspector

(c) an eligible State or Territory court

(a) an employee; (b) an employer; (c) an employee organisation covered by the enterprise agreement or workplace determination concerned; (d) a person affected by the industrial action; (e) an inspector

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court

Part 3-3 — Industrial action 14

417(1)

[page 780]

Standing, jurisdiction and maximum penalties Item

Column 1 Column 2 Civil remedy Persons provision

Column 3 Courts

Column 4 Maximum penalty

15

421(1)

(a) a person affected by the contravention; (b) an inspector

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court

16

434

an inspector

the Federal Court

17

458(2)

18

19

(a) an employee; (b) an employer; (c) an applicant for the protected action ballot order; (d) an inspector 462(1) 462(3) (a) an employee; (b) an employer; (c) an applicant for the protected action ballot order; (d) the protected action ballot agent; (e) an inspector (a) an 463(1) employee; 463(2)

60 penalty units

(a) the 30 penalty Federal units Court; (b) the Federal Circuit Court

(a) the 30 penalty Federal units Court; (b) the Federal Circuit Court

(a) the Federal

60 penalty units

20

467(1)

(b) an employer; (c) an applicant for the protected action ballot order; (d) the protected action ballot agent; (e) an inspector (a) an employee; (b) an employer; (c) an applicant for the protected action ballot order; (d) the protected action ballot agent; (e) an inspector

Court; (b) the Federal Circuit Court

(a) the 30 penalty Federal units Court; (b) the Federal Circuit Court

[page 781]

Standing, jurisdiction and maximum penalties Item

Column 1 Column 2 Civil remedy Persons

Column 3 Courts

Column 4 Maximum

provision

penalty

21

470(1)

an inspector

22

473(1) 473(2)

(a) an employer; (b) an inspector

23

474(1)

an inspector

24

475(1) 475(2)

(a) an employer; (b) an inspector

(a) the Federal Court; (b) the Federal Circuit Court (a) the Federal Court; (b) the Federal Circuit Court (a) the Federal Court; (b) the Federal Circuit Court (a) the Federal Court; (b) the Federal Circuit Court

60 penalty units

60 penalty units

60 penalty units

60 penalty units

Part 3-4 — Right of entry 25

482(3) 483(4) 483B(4) 483C(5) 483D(4) 483E(5) 494(1) 495(1) 496

(a) a person affected by the contravention; (b) an inspector

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court

497 498 499 500 501 502(1) 503(1) 504 506 509 521C(3) 521D(3) 26

517(1)

an inspector

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court [page 782]

Standing, jurisdiction and maximum penalties Item

Column 1 Column 2 Civil remedy Persons provision

Column 3 Courts

Column 4 Maximum penalty

Part 3-5 — Stand down 27

527

(a) an employee; (b) an employee organisation; (c) an inspector

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court; (c) an eligible

State or Territory court Part 3-6 — Other rights and responsibilities 28

530(4)

29

535(1) 535(2) 536(1) 536(2)

(a) an employee; (b) a registered employee association; (c) an inspector (a) an employee; (b) an inspector

(a) the 30 penalty Federal units Court; (b) the Federal Circuit Court

(a) the 30 penalty Federal units Court; (b) the Federal Circuit Court; (c) an eligible State or Territory court

Part 5-1 — The Fair Work Commission 30

611(3)

(a) a person to whom the costs are payable; (b) an employee organisation; (c) an employer organisation; (d) an inspector

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court; (c) an eligible State or Territory court

Part 5-2 — Office of the Fair Work Ombudsman 31

711(3)

an inspector

32

712(3)

an inspector

(a) the Federal Court; (b) the Federal Circuit Court; (c) an eligible State or Territory court (a) the Federal Court; (b) the Federal Circuit Court;

30 penalty units

60 penalty units

[page 783]

Standing, jurisdiction and maximum penalties Item

33

Column 1 Column 2 Civil remedy Persons provision

716(5)

an inspector

Column 3 Courts

Column 4 Maximum penalty

(c) an eligible State or Territory court (a) the 30 penalty Federal units Court; (b) the Federal

Circuit Court; (c) an eligible State or Territory court Part 6-3 — Extension of National Employment Standards entitlements 34

745(1) 760

(a) an employee; (b) a registered employee association; (c) an inspector

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court; (c) an eligible State or Territory court

Part 6-3A — Transfer of business from a State public sector employer 34A

768AG

34B

768BT

(a) the transferring employee; (b) an employer; (c) an employee organisation; (d) an employer organisation; (e) an inspector (a) the transferring employee; (b) an employer;

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court; (c) an eligible State or Territory court

(a) the Federal Court; (b) the Federal

60 penalty units

(c) an employee organisation; (d) an inspector

Circuit Court; (c) an eligible State or Territory court

Part 6-4 — Additional provisions relating to termination of employment 35

772(1) 777(3)

(a) a person affected by the contravention; (b) an industrial association; (c) an inspector

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court

[page 784]

Standing, jurisdiction and maximum penalties Item

Column 1 Column 2 Civil remedy Persons provision

36

782

37

785(4)

(a) a person to whom the costs are payable; (b) an industrial association; (c) an inspector (a) an

Column 3 Courts

Column 4 Maximum penalty

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court

(a) the

30 penalty

employee; (b) a registered employee association; (c) an inspector

Federal units Court; (b) the Federal Circuit Court

Part 6-4B — Workers bullied at work 38

789FG

(a) a person affected by the contravention; (b) an industrial association; (c) an inspector

(a) the 60 penalty Federal units Court; (b) the Federal Circuit Court; (c) an eligible State or Territory court

[subs (2) am Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009; Act 175 of 2012 s 3 and Sch 1 item 55, opn 5 Dec 2012; Act 174 of 2012 s 3 and Sch 9 item 586, opn 1 Jan 2013; Act 13 of 2013 s 3 and Sch 2 item 1, Sch 3 item 96, opn 12 Apr 2013; Act 73 of 2013 s 3 and Sch 3 item 3, Sch 4 item 15, Sch 4A items 7, 14, opn 1 Jan 2014; Act 67 of 2016 s 3 and Sch 1 item 27, opn 17 Nov 2016]

(3) The regulations may provide that a provision set out in the regulations is a civil remedy provision. [subs (3) insrt Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009]

(4) If the regulations make provision as mentioned in subsection (3): (a) the regulations must set out: (i) the persons who would be referred to in column 2; and (ii) the courts that would be referred to in column 3; and (iii) the maximum penalty that would be referred to in column 4; of the table in subsection (2) if there were an item for the civil remedy provision in the table; and (b) this Part has effect as if the matters referred to subparagraphs (a)(i) to (iii) were set out in such an item in the table.

Note: See section 798 for limits on the penalties that may be set out in the regulations. [subs (4) insrt Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009] COMMENTARY TO SECTION 539*

Derivation …. Civil remedy provision — s 539(1), (2), Note 1, 2, (3), (4)(a) …. Compliance notice — Note 2 ….

[8-4960.1] [8-4960.5] [8-4960.10] [page 785]

Contravention — s 539(2), Note 2 …. Inspector — Note 2 …. Regulations — s 539(3), 539(4), (a) …. Outline of Section ….

[8-4960.11] [8-4960.15] [8-4960.20] [8-4960.25]

[8-4960.1] Derivation Section 718 of the Workplace Relations Act. [8-4960.5] Civil remedy provision — s 539(1), (2), Note 1, 2, (3), (4)(a) See ss 12, 539(1) and 798. [8-4960.10] Compliance notice — Note 2 See s 716. [8-4960.11] Contravention — s 539(2), Note 2 In BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291; BC201315229, Collier J noted at [97] that: the meaning of “contravention” in any particular case will depend on the context used; extrinsic evidence may be relevant in interpreting the word in any particular case; and contravention is capable of a wide meaning. [8-4960.15] Inspector — Note 2 See s 12. [8-4960.20] Regulations — s 539(3), 539(4), (a) See Regulation 4.01A. [8-4960.25] Outline of Section The section sets out a table of civil remedy provisions. In relation to each civil remedy provision, the table identifies who has standing to apply for an order; the courts to which an application for an order may be made; and the maximum penalty that may be imposed by a court; Explanatory Memorandum, Fair Work Bill 2009 (Cth) paragraph 2127. *Editor’s note: Commentary to Section 539 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[8-4980]

Limitations on who may apply for

orders etc 540 Employees, employers, outworkers and outworker entities (1) The following persons may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if the person is affected by the contravention, or will be affected by the proposed contravention: (a) an employee; (b) an employer; (c) an outworker; (d) an outworker entity. Employee organisations and registered employee associations (2) An employee organisation or a registered employee association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision in relation to an employee, only if: (a) the employee is affected by the contravention, or will be affected by the proposed contravention; and (b) the organisation or association is entitled to represent the industrial interests of the employee. [subs (2) am Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009]

(3) However, subsection (2) does not apply in relation to: (a) items 4, 7 and 14 in the table in subsection 539(2); or (b) a contravention or proposed contravention of: (i) an outworker term in a modern award; or [page 786] (ii) a term in an enterprise agreement that would be an outworker term if it were included in a modern award. [subs (3) am Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009]

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

in relation to a contravention or proposed contravention of: (a) an outworker term in a modern award; or (b) a term in an enterprise agreement that would be an outworker term if it were included in a modern award; only if the employee organisation is entitled to represent the industrial interests of an outworker to whom the term relates. [subs (4) am Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009]

Employer organisations (5) An employer organisation may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if the organisation has a member who is affected by the contravention, or who will be affected by the proposed contravention. Industrial associations (6) An industrial association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if: (a) the industrial association is affected by the contravention, or will be affected by the proposed contravention; or (b) if the contravention is in relation to a person: (i) the person is affected by the contravention, or will be affected by the proposed contravention; and (ii) the industrial association is entitled to represent the industrial interests of the person. (7) If an item in column 2 of the table in subsection 539(2) refers to an industrial association then, to avoid doubt, an employee organisation, a registered employee association or an employer organisation may apply for an order, in relation to a contravention or proposed contravention of a civil remedy provision, only if the organisation or association is entitled to apply for the order under subsection (6). Regulations (8) The regulations may prescribe a person for the purposes of an item in column 2 of the table in subsection 539(2). The regulations may provide that

the person is prescribed only in relation to circumstances specified in the regulations. COMMENTARY ON SECTION 540*

Derivation …. Affected by the contravention — s 540(1), 2(a), (5), 6(a), (b)(i) …. Civil remedy provision — s 540(1), (2), (5), (6), (7) …. Employee — s 540(1)(a), (2), (a), (b) …. Employee organisations — s 540(2), (4), (7) ….

[8-4980.1] [8-4980.5] [8-4980.10] [8-4980.15] [8-4980.20] [page 787]

Employer organisation — s 540 (5), (7) …. Enterprise agreement — s 540(3)(b)(ii), (4)(b) …. Employer — s 540(1)(b) …. Industrial association — s 540(6) …. Modern award — s 540(3)(b)(i), (ii), (4)(a), (b) …. Outworker — s 540(1)(c), (4) …. Outworker entity — s 540(1)(d) …. Outworker term — s 540(3)(b)(i), (ii), (4)(a), (b) …. Registered employee associations — s 540(2), (7) …. Regulations may prescribe — s 540(8) …. Represent the industrial interests of the employee — s 540(2)(b), (4) …. Outline of Section ….

[8-4980.25] [8-4980.30] [8-4980.35] [8-4980.40] [8-4980.45] [8-4980.50] [8-4980.55] [8-4980.60] [8-4980.65] [8-4980.70] [8-4980.75] [8-4980.80]

[8-4980.1] Derivation The section is new. There are some similarities with ss 718 and 807(4) of the Workplace Relations Act. [8-4980.5] Affected by the contravention — s 540(1), 2(a), (5), 6(a), (b)(i) The expression ‘a person affected by the contravention’ .. is similar to, but arguably broader than, the expression ‘any person … whose interests are affected by the decision’ in s 27(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). In Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 272; 32 ALD 71; 121 ALR 373; BC9405660 Gummow J observed when considering s 27 of the AAT Act: ‘Like the expression “a person aggrieved”, the phrase “a person whose interests are affected by the decision” and cognate terms, appear in a variety of statutes as the identification of the persons who are given standing to seek administrative or judicial review. The day is long gone when there was any general presumption that in such statutes the “interests” concerned

must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law … In each case, the content of the terms “affect” and “interest” are to be seen in the light of the scope and purpose of the particular statute in issue.’: CPSU, The Community and Public Sector Union (CPSU) v Commonwealth of Australia (2006) 157 IR 470; [2006] FCAFC 176; BC200609902 (1 December 2006) at [24]. See also Transport Workers Union of Australia (TWU) v DHL Exel Supply Chain (Australia) Pty (2008) 174 IR 44; [2008] FMCA 604; BC200803695 (19 May 2008) at [117]. [8-4980.10] Civil remedy provision — s 540(1), (2), (5), (6), (7) See s 539. [8-4980.15] Employee — s 540(1)(a), (2), (a), (b) See s 538. [8-4980.20] Employee organisations — s 540(2), (4), (7) See s 12. [8-4980.25] Employer organisation — s 540 (5), (7) See s 12. [8-4980.30] Enterprise agreement — s 540(3)(b)(ii), (4)(b) See s 12. [8-4980.35] Employer — s 540(1)(b) See s 538. [8-4980.40] Industrial association — s 540(6) See s 12. [8-4980.45] Modern award — s 540(3)(b)(i), (ii), (4)(a), (b) See s 12. [8-4980.50] Outworker — s 540(1)(c), (4) See s 12. [page 788] [8-4980.55] Outworker entity — s 540(1)(d) See s 12. [8-4980.60] Outworker term — s 540(3)(b)(i), (ii), (4)(a), (b) See s 12 and s 140(3). [8-4980.65] Registered employee associations — s 540(2), (7) See s 12. [8-4980.70] Regulations may prescribe — s 540(8) See Fair Work Regulations 2009 reg 4.01A. [8-4980.75] Represent the industrial interests of the employee — s 540(2)(b), (4) This phrase is repeatedly used in the Act: see for example s 176(3). It seems to mean the legal right to represent employees either through the rules of the organisation or by the making of representation orders: see FWRO ss 158(7) and 133. [8-4980.80] Outline of Section This section dilutes the restrictions as to standing under the Workplace Relations Act. As the Explanatory Memorandum states at paragraph 2132: Generally, an employee organisation or a registered employee association can only apply for an order in relation to a contravention of a civil remedy provision (or proposed contravention), concerning an employee, if the employee is affected by the contravention and the organisation or association is entitled to represent the industrial interests of the employee. However, this limitation does not apply where a workplace agreement or workplace determination applies to an employee organisation. In such circumstances, the employee organisation can make an application either in its own right or concerning an employee or both.

The section also allows employee organisations to seek injunctions and other orders under s 417 against the taking of industrial action. This change is not explained in the Explanatory Memorandum. *Editor’s note Commentary on section 540 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[8-5000] Applications for orders in relation to safety net contractual entitlements 541 (1) This section applies if an inspector applies to a court for an order under this Division, in relation to an employer’s contravention or proposed contravention of a provision or term referred to in subsection (3) in relation to an employee. (2) The inspector may also apply to the court, on behalf of the employee, for an order in relation to the employer’s contravention, or proposed contravention, of a safety net contractual entitlement of the employee. (3) The provisions and terms are the following: (a) a provision of the National Employment Standards; (b) a term of a modern award; (c) a term of an enterprise agreement; (d) a term of a workplace determination; (e) a term of a national minimum wage order; (f) a term of an equal remuneration order.

[8-5020]

Entitlements under contracts

542 (1) For the purposes of this Part, a safety net contractual entitlement of a national system employer or a national system employee, as in force from time to time, also has effect as an entitlement of the employer or employee under this Act. [page 789]

(2) The entitlement has effect under this Act subject to any modifications, by a law of the Commonwealth (including this Act or a fair work instrument), a State or a Territory, of the safety net contractual entitlement. COMMENTARY TO SECTION 542*

Employee — s 542(1) …. Employer — s 542(1) …. Fair Work Instrument — s 542(2) …. Modifications — s 542(2) …. National system employee — s 542(1) …. National system employer — s 542(1) …. Safety net contractual entitlement — s 542(1), (2) …. This Act — s 542(2) …. Outline of section ….

[8-5020.1] [8-5020.5] [8-5020.10] [8-5020.15] [8-5020.20] [8-5020.25] [8-5020.30] [8-5020.35] [8-5020.40]

[8-5020.1] Employee — s 542(1) See s 538. [8-5020.5] Employer — s 542(1) See s 538. [8-5020.10] Fair Work Instrument — s 542(2) See s 12. [8-5020.15] Modifications — s 542(2) See s 12. [8-5020.20] National system employee — s 542(1) See ss 12, 13, 30C, 30M. [8-5020.25] National system employer — s 542(1) See ss 12, 14, 30D, 30N. [8-5020.30] Safety net contractual entitlement — s 542(1), (2) See s 12. [8-5020.35] This Act — s 542(2) See s 12. [8-5020.40] Outline of section The Explanatory Memorandum to the Fair Work Bill explained that ss 542 and 543 are designed to improve access to enforcement mechanisms in a federal court by removing technicalities associated with establishing that an employment entitlement that arises under a contract of employment is within the original or accrued jurisdiction of the court: EM para 2142. The effect of the new section is significant. It allows for the enforcement of a broad range of contractual terms without the need to separately invest the court with federal jurisdiction. For a discussion of the test for the exercise of associated jurisdiction see Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445 at 450–1; 68 IR 120 at 124. *Editor’s note: Commentary to s 542 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[8-5040] Applications for orders in relation to statutory entitlements derived from contracts 543 A national system employer or a national system employee may apply to the Federal Court or the Federal Circuit Court to enforce an entitlement of the employer or employee arising under subsection 542(1). [s 543 am Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013]

[page 790] COMMENTARY TO SECTION 543*

Derivation …. National system employee — s 543 …. National system employer — s 543 …. Outline of Section ….

[8-5040.1] [8-5040.5] [8-5040.10] [8-5040.15]

[8-5040.1] Derivation The section is new. [8-5040.5] National system employee — s 543 See ss 12, 13, 30C, 30M. [8-5040.10] National system employer — s 543 See ss 12, 14, 30D, 30N. [8-5040.15] Outline of Section The Explanatory Memorandum to the Fair Work Bill states that the purpose of ss 542 and 543 is to provide a simple mechanism for national system employees and employers to enforce safety net contractual entitlements in a federal court. It does note that s 543 is not a civil remedy provision: EM paras 2145–6. *Editor’s note: Commentary on s 543 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[8-5060]

Time limit on applications

544 A person may apply for an order under this Division in relation to a contravention of one of the following only if the application is made within 6 years after the day on which the contravention occurred: (a) a civil remedy provision; (b) a safety net contractual entitlement;

(c) an entitlement arising under subsection 542(1). Note 1: This section does not apply in relation to general protections court applications or unlawful termination court applications (see subparagraphs 370(a)(ii) and 778(a)(ii)). Note 2: For time limits on orders relating to underpayments, see subsection 545(5). [s 544 am Act 73 of 2013 s 3 and Sch 4A items 8, 15, opn 1 Jan 2014] COMMENTARY TO SECTION 544*

Derivation …. Civil remedy provision — s 544(a) …. Safety net contractual entitlement — s 544(b) …. Within 6 years — s 544 …. Outline of section ….

[8-5060.1] [8-5060.5] [8-5060.10] [8-5060.15] [8-5060.20]

[8-5060.1] Derivation The section is new. There are some similarities with s 719(9) of the Workplace Relations Act. See also s 1325(4) of the Corporations Act 2001. [8-5060.5] Civil remedy provision — s 544(a) See s 539. [8-5060.10] Safety net contractual entitlement — s 544(b) See s 12. [8-5060.15] Within 6 years — s 544 The effect of the limitation provisions of the Fair Work Act was summarised by Cameron J in Scotto v Scala Bros Pty Ltd [2014] FCCA 2374; BC201408814 at [300]: [page 791] Section 544 of the FW Act provides that proceedings for contraventions of civil remedy provisions and safety net contractual entitlements cannot be commenced more than six years after the contraventions in question occurred. Section 545(5) relevantly provides that a court must not make a compensation order for an underpayment which relates to a period that is more than six years before the commencement of the proceeding. Sections … ss 719(10) and (9) and 720 the WR Act made similar provision in respect of their periods of operation… It is settled law that a limitation period does not apply to a continuing breach of an award. The test under the NSW legislation was described in Bridge v Lindrum [1957] AR (NSW) 356 at 360 as follows: The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon a consideration of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences. The test… is one which was prescribed in Ellis v Ellis, (1986) P251, at 254 by Sir Francis Jeune, who said: ‘the test whether an offence is to be treated in law as continuous is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue. The NSW authorities were accepted in Brammer v Deery Hotels (1974) 3 ALR 621 at 624; 22 FLR 276 at 279 and extended to civil proceedings to recover a penalty.

It is important to prove a statutory contravention to fall within this exception. As stated in Scotto at [309]: … Proceedings for contravention of a statute, even proceedings seeking a civil penalty, are different from proceedings for damages, proceedings for payment of a debt or proceedings for monetary compensation based on statute. The latter class of matters requires the existence of a cause of action in the form of a set of facts whose existence, if proved, entitles the employee to obtain from the Court a remedy against his or her employer. In the case of wages said to be owed, the necessary facts giving rise to a cause of action in relation to each non-payment or underpayment are in place each time wages are not paid or are underpaid. The determination of those matters does not depend on and is not determined by the existence of a continuing statutory breach. [8-5060.20] Outline of section The section is worded differently to s 719(9) of the Workplace Relations Act. While the new section is arguably narrower, there is no indication in the Explanatory Memorandum that the effect of the section is to change the effect of the former limitation provisions. *Editor’s note: Commentary on s 544 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

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Subdivision B — Orders

[8-5200] courts

Orders that can be made by particular

545 (1) Federal Court and Federal Circuit Court The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. Note 1: For the court’s power to make pecuniary penalty orders, see section 546. Note 2: For limitations on orders in relation to costs, see section 570.

[page 792] Note 3: The Federal Court and the Federal Circuit Court may grant injunctions in relation to industrial action under subsections 417(3) and 421(3). Note 4: There are limitations on orders that can be made in relation to contraventions of subsection 65(5), 76(4), 463(1) or 463(2) (which deal with reasonable business grounds and protected action ballot orders) (see subsections 44(2), 463(3) and 745(2)). [subs (1) am Act 13 of 2013 s 3 and Sch 1 item 235, Sch 2 item 1, opn 12 Apr 2013]

(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following: (a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention; (b) an order awarding compensation for loss that a person has suffered because of the contravention; (c) an order for reinstatement of a person. [subs (2) am Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013]

Eligible State or Territory courts (3) An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that: (a) the employer was required to pay the amount under this Act or a

fair work instrument; and (b) the employer has contravened a civil remedy provision by failing to pay the amount. Note 1: For the court’s power to make pecuniary penalty orders, see section 546. Note 2: For limitations on orders in relation to costs, see section 570.

(3A) An eligible State or Territory court may order an outworker entity to pay an amount to, or on behalf of, an outworker if the court is satisfied that: (a) the outworker entity was required to pay the amount under a modern award; and (b) the outworker entity has contravened a civil remedy provision by failing to pay the amount. Note 1: For the court’s power to make pecuniary penalty orders, see section 546. Note 2: For limitations on orders in relation to costs, see section 570.

When orders may be made (4) A court may make an order under this section: (a) on its own initiative, during proceedings before the court; or (b) on application. Time limit for orders in relation to underpayments (5) A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced. COMMENTARY TO SECTION 545*

Interlocutory relief …. Derivation …. Civil remedy provision — s 545(1), (3)(b), (3A)(b) ….

[8-5200.01] [8-5200.05] [8-5200.10] [page 793]

Compensate — s 545(2)(b) …. Considers appropriate — s 545(1) …. Eligible state or territory court — s 545(3), (3A) …. Employee — s 545(3) ….

[8-5200.11] [8-5200.15] [8-5200.20] [8-5200.25]

Employer — s 545(3)(a), (b) …. Fair Work Instrument — s 545(3)(a) …. Industrial action — s 545(1) Note 3 …. Injunction — s 545(1) Note, (2)(a) …. Interim injunction — s 545(2)(a) …. Modern award — s 545(3A)(a) …. Orders in the accrued or associated jurisdiction …. Outworker entity — s 545(3A), (a), (b) …. Pecuniary penalty orders — s 545(1) Note 1, (3) Note 1, (3A) Note 1 …. Protected action ballot orders — s 545(1) Note 4 …. Reinstatement — s 545(2)(c) …. This Act — s 545(3)(a) …. Within 6 years — s 545(5) …. Outline of s 545 — Orders that can be made by particular courts ….

[8-5200.30] [8-5200.35] [8-5200.40] [8-5200.42] [8-5200.45] [8-5200.50] [8-5200.51] [8-5200.55] [8-5200.60] [8-5200.65] [8-5200.66] [8-5200.70] [8-5200.75] [8-5200.80]

[8-5200.01] Interlocutory relief In Jones v Queensland Tertiary Admissions Centre Ltd (2009) 190 IR 218; [2009] FCA 1382; BC200910653, the CEO of Queensland Tertiary Admissions Centre Ltd (QTAC) participated in enterprise bargaining negotiations on behalf of QTAC with the Australian Services Union (ASU). The CEO claimed that she was being subjected to an “improper investigation” by QTAC and that a number of complaints were being made about her. As a result, the CEO sought permanent and interlocutory relief to prevent adverse action being taken or proposed to be taken against her, due to her role in the negotiations. After considering the relevant principles, Collier J granted an injunction to prevent QTAC from terminating the CEO’s employment, despite the existence of serious allegations against her, essentially because of their contemporaneity and relation with her involvement as a bargaining representative. [8-5200.05] Derivation The section is new. [8-5200.10] Civil remedy provision — s 545(1), (3)(b), (3A)(b) See s 539. [8-5200.11] Compensate — s 545(2)(b) The amount that may be awarded may be greater than available at common law: Latham, Taylor, “Assessing compensation in adverse action cases”, Workplace Review, vol 3 No 2, Winter 2012, p 61. As Mortimer J held in Dafallah v Fair Work Commission (2014) 225 FCR 559; 242 IR 273; [2014] FCA 328; BC201402395 at [149]: Fixing compensation under s 545 is a statutory task, and the court must not substitute that task with approaches derived from the general law: Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388; 204 ALR 26; [2004] HCA 3; BC200400148 at [44]; Qantas Airways Ltd v Gama (2008) 167 FCR 537; 101 ALD 459; [2008] FCAFC 69; BC200803114 at [94] per French and Jacobson JJ. Compensation for loss of employment can be difficult to assess. As the Full Federal Court held in Re Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20 at 32; 34 AILR 186; 41 IR 452; BC9203429: Where an employee is wrongfully dismissed, he is entitled, subject to mitigation, to damages

equivalent to the wages he would have earned under the contract from the date of the dismissal to the end of the contract. The date when the contract would have come to an end, however, must be ascertained on the assumption that the employer would have exercised any power he [page 794] may have had to bring the contract to an end in the way most beneficial to himself; that is to say, that he would have determined the contract at the earliest date at which he could properly do so… In Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526; 205 IR 392; [2011] FCA 333; BC201101868 at [423], Barker J of the Federal Court used the following formula to determine compensation: In accordance with usual principle, an order awarding compensation must be assessed on the basis that an applicant establishes loss that a person has suffered because of the contravention and that this requires an appropriate causal connection between the contravention and the loss claimed. [8-5200.15] Considers appropriate — s 545(1) Section 545(1) affords the broadest possible discretion to the Court to grant an appropriate remedy in respect of any contravention of a civil remedy provision under the FW Act: Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014; BC201503346 at [53]. This wording has some similarities with s 23 of the Federal Court of Australia Act 1976. The High Court has said of that section in Jackson v Sterling Industries Ltd (1987) 162 CLR 612; 71 ALR 457; 61 ALJR 332; BC8701781 at [622], [462]–[463] that: Wide though that power is, it is subject to both jurisdictional and other limits. It exists only ‘in relation to matters’ in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the ‘kinds’ of order, whether final or interlocutory, which are capable of properly being seen as ‘appropriate’ to be made by the Federal Court in the exercise of its jurisdiction. To similar effect; Mortimer J held in Dafallah v Fair Work Commission (2014) 225 FCR 559; 242 IR 273; [2014] FCA 328; BC201402395 at [157]: … In s 545(1), the governing consideration is what the Court considers “appropriate”, and this in my opinion leaves room for a Court to find in a given case that less than full compensation might be appropriate. The issue of assessing damages after the date of hearing is more complex. In Walker v Citigroup Global Markets Australia Pty Ltd (formerly known as Salomon Smith Barney Australia Securities Pty Ltd) (2006) 233 ALR 687; [2006] FCAFC 101; BC200604603 at [79], the Full Federal Court dealt with a claim under s 87 of the Trade Practices Act 1974. That section uses similar wording to the Fair Work Act. The court found that the determination of compensation for ongoing loss needs an assessment as to the chances of termination by either party. The court accepted that compensation for loss of a chance was available. Damages for non economic loss for distress, hurt or humiliation were awarded in the adverse action claim of Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd (2011) 193 FCR 526; 205 IR 392; [2011] FCA 333; BC201101868 at [447]. Flick J later adopted that proposition stating that “An order pursuant to that power may include an amount representing ‘hurt and humiliation’ suffered by reason of a contravention”: Transport Workers’ Union of Australia, NSW Branch v No Fuss Liquid Waste Pty Ltd [2011] FCA 982; BC201106693 at [23]. The reach of the Act extends beyond constraints upon the conduct of individuals; it thus expressly confers power to impose a penalty upon a corporation as well as an individual. But the generality of language employed in s 545, it is concluded, does not confer power upon the court to disqualify a

person from being a director of a company where both the individual and the corporation have committed a contravention. Nor is it considered that the object and purpose of the Act would be promoted by such a conclusion. A power to order the disqualification of an [page 795] individual from being a director by reason of his abuse of the corporate structure is not a power which falls comfortably within the general object of the Act in s 3. [8-5200.20] Eligible state or territory court — s 545(3), (3A) See s 12. [8-5200.25] Employee — s 545(3) See s 538. [8-5200.30] Employer — s 545(3)(a), (b) See s 538. [8-5200.35] Fair Work Instrument — s 545(3)(a) See s 12. [8-5200.40] Industrial action — s 545(1) Note 3 See s 19. [8-5200.42] Injunction — s 545(1) Note, (2)(a) In recent times, the word “injunction” has come to be used to mean any order by which a court commands a person to do or refrain from doing some particular act: Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1; [2001] HCA 63; BC200107043 at [60] per Gaudron J. Statutory injunctions are of a different species to equitable injunctions. As the High Court held in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; 162 ALR 294; [1999] HCA 18; BC9902073 at [28]–[29]: The term “injunction” is used in numerous statutes to identify a particular species of order, the making of which the law in question provides as part of a new regulatory or other regime, which may be supported by penal provisions. Notable examples in statutes presently in force nationally are found in s 80 of the Trade Practices Act 1974 (Cth) (“the Trade Practices Act”), s 114 of the Family Law Act 1975 (Cth), s 1324 of the Corporations Law (Cth) and s 170NG of the Workplace Relations Act 1996 (Cth). These provisions empower courts to give a remedy in many cases where none would have been available in a court of equity in the exercise of its jurisdiction, whether to protect the legal (including statutory) or equitable rights of the plaintiff, the administration of a trust for charitable purposes, or the observance of public law at the suit of the Attorney-General, with or without a relator, or at the suit of a person with a sufficient interest. In these situations, the term “injunction” takes its content from the provisions of the particular statute in question (51). In other laws, for example Div 2 (s 43–s 65) of Pt III of the Proceeds of Crime Act 1987 (Cth), where the term “restraining order” is used, remedies having some characteristics of injunctions as understood in courts of equity are given their own particular statutory designation. [8-5200.45] Interim injunction — s 545(2)(a) To win an interlocutory injunction under the general law, it is well understood that the applicant needs to establish a serious case to go to trial and address the question of where the balance of convenience or justice lies in the circumstances of the case … these factors are also relevant to the grant of a statutory interim injunction: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2009) 189 IR 37; [2009] FCA 997; BC200908059 at [17].

[8-5200.50] Modern award — s 545(3A)(a) See s 12. [8-5200.51] Orders in the accrued or associated jurisdiction It now seems clear that the Court has very broad powers to make orders in the accrued and/or associated jurisdiction. The Federal Circuit has found that it had powers to make declarations and orders for penalty under the Long Service Leave Act 1955 (NSW) in Larne-Jones v Human Synergistics Australia Ltd [2016] FCCA 368; BC201600985 at [57]. The power to do so did not seem to be challenged in that case or in the cases relied upon. [page 796] For an analysis of the accrued jurisdiction, see Keldote Pty Ltd v Riteway Transport Pty Ltd (2010) 239 FLR 432; 195 IR 423; [2010] FMCA 394; BC201004066 at [96]–[105]. For an analysis of the associated jurisdiction, see Keldote Pty Ltd v Riteway Transport Pty Ltd (2010) 239 FLR 432; 195 IR 423; [2010] FMCA 394; BC201004066 at [106]–[125]. [8-5200.55] Outworker entity — s 545(3A), (a), (b) See s 12. [8-5200.60] Pecuniary penalty orders — s 545(1) Note 1, (3) Note 1, (3A) Note 1 See s 12. [8-5200.65] Protected action ballot orders — s 545(1) Note 4 See s 12. [8-5200.66] Reinstatement — s 545(2)(c) Justice Jessup recounted the history of this subsection at [279] of Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99. He concluded at [281], [282] that: … that provision is the last in a long line of provisions which have, until 1996 expressly, contemplated that reinstatement may be to a position other than that from which the employee in question was dismissed. The more general language observed in recent legislation, including the FW Act, is unlikely, in my view, to have been intended to narrow the range of reinstatement remedies that was traditionally available. It remains only to acknowledge the reality that s 545(2)(c) now applies in contexts which are not limited to contraventions of the victimisation/freedom of association provisions of the legislation. [8-5200.70] This Act — s 545(3)(a) See s 12. [8-5200.75] Within 6 years — s 545(5) See s 544. The limitation set out is arguably broader than the limitation in s 544 given the width of the words “in relation to”. The issue arose in an argument under the Workplace Relations Act 1996 that the course of conduct provisions allowed liability to be fixed to action more than six years old when that action was part of a course of conduct that was partially within time. Perram J held that the section continues to render unrecoverable those payments which are due from a time more than six years before the commencement of the proceedings: Lang v ACN 078 899 591 Pty Ltd t/as Kohinoor Indian Centre [2009] FCA 987; BC200908142 at [30]. [8-5200.80] Outline of s 545 — Orders that can be made by particular courts Subsection 545(1) provides that the Fair Work Divisions of the Federal Court and the Federal Circuit Court can make any orders they consider appropriate to remedy a contravention of a civil remedy provision. Without limiting the orders that the Federal Court and Federal Circuit Court may make, s 545(2) sets out a range of orders that they may make in relation to a contravention of a civil remedy provision, including injunctions, compensation and reinstatement orders: Explanatory Memorandum to the Fair Work Bill 2008 at [2150]–[2151].

The transfer of proceedings from the Federal Court to the Federal Circuit Court is governed by s 32AB of the Federal Court Act and r 27.11 of the Federal Court Rules 2011. The transfer from the Federal Circuit Court to the Federal Court is deal with in s 39 of the Federal Circuit Court Act and r 8.02 As McKerracher J summarised in Garage Wholesalers Pty Ltd v Engineering Software Solutions Pty Ltd [2009] FCA 361; BC200902735 at [8]; In summary, the Court may take into account the following factors: (a) whether the proceeding or appeal is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue; [page 797] (b) whether, if the proceeding or appeal is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding or appeal is not transferred; (c) whether the proceeding or appeal is likely to be heard and determined earlier in the FMC; (d) the wishes of the parties. Relevant criteria may include particular legal complexity; the amount in question and the likely of expedition in either court: Garage Wholesalers at [9]; existing familiarity with the claims: Denison v Boart Longyear Pty Ltd [2011] FCA 881; BC201105827 at [11]; whether delay will be occasioned by the transfer; Uen v Honeywell Ltd [2010] FCA 634; BC201004145 at [19]. Relevant too may be evidence that the proceeding is likely to be heard and determined earlier in the Federal Magistrates Court: Koutouvas v Coca-Cola Amatil (Aust) Pty Ltd [2009] FCA 1125; BC200909080 at [4]. Where the parties consent to the making of such an order, such consent seems decisive: Rixon v Business Parcel Express Pty Ltd [2006] FCA 969; BC200608781 at [4]. The power may be exercised even though an applicant may oppose such an order being made: Sagacious Legal Pty Ltd v Lumley General Insurance Ltd t/as Lumley Special Vehicles [2009] FCA 763; BC200906334 at [4]. The power to transfer a proceeding exists even where a question arises as to jurisdiction Sagacious at [11]. The section is considerably broader than its predecessor section in the Workplace Relations Act 1996. See Torpia v Empire Printing (Australia) Pty Ltd (2009) 234 FLR 103; 188 IR 306; [2009] FMCA 853; BC200908380 at [69]; for a discussion as to the limitations to that section. *Editor’s note: Commentary to Section 545 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

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[8-5220]

Pecuniary penalty orders

546 (1) The Federal Court, the Federal Circuit Court or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision. Note: Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of a

modern award, a national minimum wage order or an enterprise agreement only because of the retrospective effect of a determination (see subsections 167(3) and 298(2)). [subs (1) am Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013]

Determining amount of pecuniary penalty (2) The pecuniary penalty must not be more than: (a) if the person is an individual — the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or (b) if the person is a body corporate — 5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2). Payment of penalty (3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to: (a) the Commonwealth; or (b) a particular organisation; or (c) a particular person. [page 798] Recovery of penalty (4) The pecuniary penalty may be recovered as a debt due to the person to whom the penalty is payable. No limitation on orders (5) To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545. COMMENTARY TO SECTION 546*

Derivation …. Civil remedy provision — s 546(1) …. Eligible State or Territory court ….

[8-5220.01] [8-5220.05] [8-5220.10]

Modern award …. National minimum wage order …. Organisation …. Pecuniary penalty orders …. Penalty units …. Penalty: Discretionary matters relevant to imposition of penalty …. Penalty: deterrence …. Penalty: discretion to impose no penalty …. Penalty — common elements in more than one contravention …. Penalty: Acceptance of breach …. Penalty: Officers and employees …. Penalty: Adverse publicity …. Penalty: Financial circumstances of corporation …. Penalty: Relevance of costs …. Penalty: Agreed Penalty …. Penalty Payment to the applicant ….

[8-5220.15] [8-5220.20] [8-5220.25] [8-5220.30] [8-5220.35] [8-5220.40] [8-5220.45] [8-5220.50] [8-5220.55] [8-5220.60] [8-5220.65] [8-5220.66] [8-5220.67] [8-5220.70] [8-5220.75] [8-5220.80]

[8-5220.01] Derivation The section is new. [8-5220.05] Civil remedy provision — s 546(1) See [8-5680.25]. [8-5220.10] Eligible State or Territory court See 12. [8-5220.15] Modern award See s 12. [8-5220.20] National minimum wage order See s 12. [8-5220.25] Organisation See s 12. [8-5220.30] Pecuniary penalty orders See s 12. [8-5220.35] Penalty units See s 12. [8-5220.40] Penalty: Discretionary matters relevant to imposition of penalty See generally Gilmour, Justice John, “Civil Penalty Contraventions” (FCA) [2011] FedJSchol 21. The Act gives no explicit guidance about the circumstances in which a penalty under a civil remedy provision will be appropriate nor does it suggest any criteria which might guide the court as between imposing the maximum or near maximum penalty, or a “lower-end” amount: see [page 799]

Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231; [1999] FCA 1714; BC9908046 (Coal and Allied Operations (No 2)) and also Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276; [2002] FCA 349; BC200201159 at [88] (Canturi). The court has a broad discretion not fettered by a checklist of mandatory criteria: Australian Ophthalmic Supplies v McAlary Smith (2008) 165 FCR 560; 246 ALR 35; BC200800758 at [12] [86] [87] and [91]. Penalties are not a matter of precedent. The choice of penalty “must be dictated by the individual circumstances of a case, not by a line-by-line comparison with another case”: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; 246 ALR 35; BC200800758 at [12]. See also Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550; BC200708651 at [11]. Courts should also be wary of attempting to clothe what is often an intuitive process with the trappings of science: Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; 247 ALR 714; [2008] FCAFC 70; BC200803166 at [60]–[63]. In Coal and Allied Operations (No 2), Branson J in proceedings in respect of a contravention of the freedom of association provisions (then in Pt XA) at [8] suggested a number of guideline principles, not intended to comprise an exhaustive list: (a) The circumstances in which the relevant conduct took place (including whether the conduct was undertaken in deliberate defiance or disregard of the Act); (b) Whether the respondent has previously been found to have engaged in conduct in contravention of Pt XA of the Act; (c) Where more than one contravention of Pt XA is involved, whether the various contraventions are properly seen as distinct or whether they arise out of the one course of conduct; (d) The consequences of the conduct found to be in contravention of Pt XA of the Act; (e) The need, in the circumstances, for the protection of industrial freedom of association; and (f) The need, in the circumstances, for deterrence. In an analysis of the principles as to penalty, his Honour Finkelstein J, has observed that the object of imposing pecuniary penalties may be either to punish, to deter, to rehabilitate or some combination of the three: Community and Public Sector Union (CPSU) v Telstra Corp (2001) 108 IR 228; [2001] FCA 1364; BC200105783 at [8]; see also Ponzio v B & P Caelli Construction Pty Ltd (2007) 158 FCR 543; 162 IR 444; [2007] FCAFC 65; BC200703532 at [93]–[94]. In Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525; BC201603627 at [64]–[65], Charlesworth J found, however, that civil penalties under the Fair Work Act are not retributive. Merkel J has pointed to a number of criteria including the cost of the contravention, deterrence, the flagrancy and deliberateness of the breach, the offender’s past record of behaviour and any contrition displayed by the offender: Seven Network (Operations) Pty Ltd v Communications, Electrical, Electronic, Energy Information, Postal Plumbing and Allied Services Union of Australia (CEPU) (2001) 110 IR 372 at 374; [2001] FCA 672. See also Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; 162 IR 444; [2007] FCAFC 65; BC200703532 at [93]–[94], Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 224 ALR 467; 147 IR 462; [2005] FCA 1847; BC200510901 at [23] (Finance Sector Union) and on appeal Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329; 161 IR 262; [2007] FCAFC 18; BC200700968 at [181] and [230]. See also, the slightly different formulation of matters to be taken into account in fixing a penalty in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080; BC200705853 at [14]. Compare Australian Securities and Investments Commission v Petsas (2005) 23 ACLC 269; [2005] FCA 88; BC200500282 and Australian Ophthalmic Supplies Pty Ltd at [88]. The “co-operation” of a contravener is relevant to the assessment of the penalty to be imposed … DP World Sydney Ltd v Maritime Union of Australia (No 2) (2014) 318 ALR 22; [2014] FCA 596; BC201419230 at [30].

[page 800] [8-5220.45] Penalty: deterrence It has been repeatedly said that an important — probably the main — function of a regime of civil penalties is to secure observance of the law by placing a price upon conduct which contravenes the law. That is to say, the objective is deterrence, both specific and general: Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462; BC201512754 at [4]. It is clear that both specific and general deterrence are important criteria to be taken into account in setting pecuniary penalties: CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228; [2001] FCA 1364 at [9], Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467; 147 IR 462; [2005] FCA 1847 at [60]. A clear message needs to be sent that such conduct will not be tolerated: Flattery v Italian Eatery t/as Zeffirelli’s Pizza Restaurant (2007) 163 IR 14; [2007] FMCA 9; BC200700356 at [66]. In Finance Sector Union the court (at [31] and following), had regard to the circumstances that the contravening conduct was “engaged in by one of Australia’s largest corporations solely in pursuit of its self-interest and profit and, so it would appear, without a proper regard for the legality of its conduct”. The court held at [34] that the respondent’s case on penalty was not assisted by the “lack of any expression of regret, contrition or remorse concerning its contraventions”. Further, at the date of the hearing it had not made a decision to bring to an end its discriminatory conduct. The court further held at [41], that to have its desired effect, the penalty “must be imposed at a meaningful level and therefore must be such that a potentially offending corporation will see the penalty as not worth the prospect of gain”. Not only must the penalty deter the particular respondent but it must also deter others from committing similar contraventions: see McIlwain v Ramsey Food Packaging Pty Ltd (No 4) (2006) 158 IR 181; [2006] FCA 1302; BC200607861 at [94] and Ponzio v B&P Caelli Construction Pty Ltd [2007] 158 FCR 543; (2007) 162 IR 444; FCAFC 65; BC200703532 at [93]–[94]. In Director of Fair Work Building Industry Inspectorate v Bragdon (No 2) [2015] FCA 998; BC201508818, Flick J dealt with the interesting point as to whether the Court could prohibit the payment of the penalty by a person other than the person the subject of the penalty. He held that it could, concluding at [25], that: … “individual” includes a power to ensure that the penalty is in fact paid personally by the “individual” and that he is not reimbursed — either directly or indirectly — by any union of which he is a member or by any associated entity. That conclusion is founded upon the natural and ordinary meaning of the relevant statutory provisions, the object and purpose sought to be achieved by the Legislature in providing for the imposition of penalties on “individuals” and by reference to prior judicial considerations of the principles to be applied. Justice Jessup refused to make similar orders in the Director of Fair Work Building Industry Inspectorate v Con-struction, Forestry, Mining and Energy Union [2015] FCA 1173; BC201510641. In that case at [36], he held that “… it would be wrong … sitting as a single Judge, to depart from the view taken in Bragdon as to the availability of an order of the kind made by Flick J in an appropriate case.” He did however go on to hold that the exercise of such a power would be problematic in the absence of some greater legislative definition of the procedures and protocols that would provide the necessary support for the effectiveness of such an order. In the Red and Blue Case (No 2) [2015] FCA 1462, Jessup J reiterated his earlier views at [21]. The Full Court in Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64 at [88] saw considerable force in the reservations also expressed by Jessup J about the practical exercise of such a power, assuming it to exist. The Full Court did not ultimately have to decide the point. Justice Mortimer in Director of the Fair Work Building Industry Inspectorate v Construction,

Forestry, Mining and Energy Union (No 2) [2016] FCA 436; BC201605072 at [186] (13 May 2016) found that: [page 801] Identifying the source used by an individual to pay a penalty is fraught with difficulty. No such difficulty attends an order against another party prohibiting indemnification, especially where that party is a registered organisation, the financial accounts and transactions of which are open to scrutiny. Justice Jessup questioned that approach in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 772; BC201605393 at [56]–[57] holding that: Where … penalty payments are not disclosed, as such, in the accounts — and seemingly are not required to be — one could have no confidence that the absence of any identifiable reference to reimbursements, indemnifications or like payments demonstrated compliance with an order of the kind made in Regional Rail. I would readily associate myself with the broad policy considerations which informed the judgment of Mortimer J in Regional Rail. I remain of the view, however, that it is for the legislature to provide the framework necessary to achieve the ends to which her Honour so persuasively referred. [8-5220.50] Penalty: discretion to impose no penalty In circumstances in which legislation gives the court a discretion to impose, or alternatively not to impose, a penalty, the court must be satisfied that it is appropriate in all of the circumstances to impose a penalty before it makes such an order: Alfred v Walter Construction Group Ltd [2005] FCA 497; BC200502625 at [7]. Conduct that is innocent or inadvertent may lead to the court not imposing a penalty: Rojas v Esselte Australia Pty Ltd (No 2) (2008) 177 IR 306; [2008] FCA 1585; BC200809516 at [64], Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corp Ltd [2007] FCA 1607; BC200709085 at [13], [18]–[19]. A penalty of $100 (nominal penalty) was imposed by Madgwick J in Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong City Council (2000) 101 IR 143; [2000] FCA 1231; BC200005237 at [126]. See on appeal per Wilcox J, Greater Dandenong City Council v Australian Municipal, Clerical and Services Union (2001) 112 FCR 232; 184 ALR 641; 111 IR 121; [2001] FCA 349; BC200101465 at [39]. [8-5220.55] Penalty — common elements in more than one contravention In Pearce v R (1998) 194 CLR 610; 156 ALR 684; 72 ALJR 1416; [1998] HCA 57; BC9804554, McHugh, Hayne and Callinan JJ said at [40]: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. Such conduct is dealt with by the use of “course of conduct” and totality principles. See s [557.10]– [557.15] for a discussion of course of conduct. The totality principle, is applied to several separate contraventions which were substantially contemporaneous and connected: L Vogel & Son Pty Ltd v

Anderson (1968) 120 CLR 157 at 168; 42 ALJR 19; BC6800680; Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; 247 ALR 714; 171 IR 455; [2008] FCAFC 70; BC200803166 at [5]–[6], per Gyles J and [44]–[46] per Stone and Buchanan JJ. [page 802] In Finance Sector Union of Australia v Australia & New Zealand Banking Corporation Group [2002] FCA 1035 at [2]; BC200204926 the parties accepted that it was appropriate to have regard to the totality principle applied by the Courts when sentencing a person convicted of more than one offence. In Mill v R (1988) 166 CLR 59 at 63; 83 ALR 1; 63 ALJR 117; [1988] HCA 70; BC8802639, the High Court approved the following statement in D A Thomas, Principles of Sentencing: the sentencing policy of the Court of Appeal Criminal Division, 2nd ed, London, 1979, pp 56–57: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong’; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’. The High Court continued, “Where the principle fails to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect that a number of sentences are being imposed. Where practicable, the former is to be preferred.” In Community and Public Sector Union (CPSU) v Telstra Corporation Ltd (2001) 108 IR 228; [2001] FCA 1364; BC200105783 at [7], Finkelstein J referred to that principle and added: … when the penalty is only pecuniary, the ability to manipulate individual sentences is not available. Thus it will be necessary to resolve upon the appropriate total penalty, dividing that penalty by the number of individual contraventions and record that amount as the penalty for each contravention, whether or not the sum produced might be regarded as an inappropriate individual penalty. The totality principle has been applied to the imposition of civil penalties in very many cases: Mornington Inn Pty Ltd (ACN 116 830 703) v Jordan (2008) 247 ALR 714; 2008 FCAFC 70; BC200803166 at [7]. See also Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) (2005) 215 ALR 281; [2005] FCA 254; BC200501242 at [14]; Finance Sector Union of Australia v Commercial Bank of Australia (2005) 224 ALR 467; 147 IR 462; [2005] FCA 1847; BC200510901 at [25]; Carr v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2005] FCA 1802; BC200510722 at [11] and Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; 162 IR 444; [2007] FCAFC 65; BC200703532 at [145]. In Gibbs v City of Altona (1992) 37 FCR 216 at 223; 42 IR 255, the court took into account the circumstance that the several offences established were closely connected when determining the amount of the penalty. For a detailed consideration of the way in which the totality principle should be applied, see Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; 246 ALR 35; [2008]

FCAFC 8; BC200800758 at [47] – [52], Graham J analysed how that principle was applied in relation to breaches of an industrial award. See also at [93] per Buchannan J. See furthermore National Tertiary Education Industry Union v Central Queensland University [2008] FCA 481; BC200802429 at [48]. Compare R v Adler (2004) 48 ACSR 693; 22 ACLC 784; [2004] NSWSC 108; BC200400719 at [98]. [page 803] In Alfred v Walter Construction Group Ltd [2005] FCA 497; BC200502625, a case concerning a contravention of the repealed s 170NC involving a claim that persons were being coerced to make a certified agreement, it was held at [12] that the penalty should reflect that the contravening conduct was calculated to interfere with an important freedom to negotiate a certified agreement. The totality principle has been described as designed to ensure that the aggregate of the penalties imposed is not such as to be oppressive or crushing: Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080; BC200705853 at [30]. However, it is not confined to those cases: Australian Ophthalmic Supplies at [67]–[71]. There is disagreement among members of the Federal Court about whether the application of the totality principle is discretionary. In Mornington Inn Pty Ltd at [9] Gyles J, dissenting, held that it was not discretionary and that failure to apply it was appealable error (Johnson v R (2004) 205 ALR 346; 78 ALJR 616; [2004] HCA 15; BC200401366 per Gummow, Callinan and Heydon JJ at [35] with whom Gleeson CJ at [1] and Kirby J at [38] agreed). However, Stone and Buchanan JJ at [58]–[59] held that the sentencing judge had a discretion about how the conduct was to be treated. FM Driver described the process of fixing penalty in such circumstances in Fair Work Ombudsman v Roselands Fruit Market Pty Ltd (2010) 200 IR 199; [2010] FMCA 599; BC201007871 at [22]–[26] [the legislative references have been updated]: The first step for the Court is to identify the separate contraventions involved. Each breach of each separate obligation … is a separate contravention of a term of an applicable provision… However, s 557 provides for treating multiple breaches, involved in a course of conduct, as a single breach. Secondly, to the extent that two or more contraventions have common elements, this should be taken into account in considering what is an appropriate penalty in all the circumstances for each contravention. The respondents should not be penalised more than once for the same conduct. The penalties imposed by the Court should be an appropriate response to what the respondent did. This task is distinct from and in addition to the final application of the “totality principle”. Thirdly, the Court will then consider an appropriate penalty to impose in respect of each course of conduct, having regard to all of the circumstances of the case. Fourthly and finally, having fixed an appropriate penalty for each group of contraventions or course of conduct, the Court should take a final look at the aggregate penalty, to determine whether it is an appropriate response to the conduct which led to the breaches. The Court should apply an “instinctive synthesis” in making this assessment. This is what is known as an application of the “totality principle”. [8-5220.60] Penalty: Acceptance of breach The “co-operation” of a contravener is relevant to the assessment of the penalty to be imposed: DP World Sydney Ltd v Maritime Union of Australia (No 2) (2014) 318 ALR 22; [2014] FCA 596; BC201419230 at [30].

A conventional consideration in assessing a discount in a criminal case for a plea of guilty is the stage of the proceedings at which the plea is entered and it is not uncommon for a discount of up to 25% to be allowed for a plea made at the first reasonable opportunity: see R v Thomson; R v Houlton (2000) 49 NSWLR 383; 115 A Crim R 104; [2000] NSWCCA 309; BC200004800 at [160]. However, in the case of a civil penalty a discount should not be allowed simply because a respondent has spared the community the cost of a contested trial. Rather, the benefit of such a discount should be reserved for cases where it can fairly be said that an admission of liability (a) has indicated an acceptance of wrongdoing and a suitable and credible expression of regret; and/or (b) has indicated a willingness to facilitate the course of justice: Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; BC200803166 at [72]–[85]. Acknowledgment of breach may be grounds for [page 804] mitigation of penalty as may be an apology to the persons concerned: Jordan v Mornington Inn Pty Ltd (2007) 166 IR 33 at [114]. In such cases, the timing of the acknowledgment will be important: Alfred v Walter Construction Group Limited [2005] FCA 497; BC200502625 at [15]. [8-5220.65] Penalty: Officers and employees In Employment Advocate v National Union of Workers (2000) 99 IR 376; [2000] FCA 965; BC200004000 at [20] – [21], a penalty was imposed upon an officer of the union, but the court declined to impose a penalty upon the union responsible. In Construction, Forestry, Mining and Energy Union v Hamberger (2003) 127 FCR 309; 125 IR 183; [2003] FCAFC 38; BC200300769 the primary judge rejected at [20] a submission that a penalty should not be imposed upon the union because its responsibility was as a consequence of the conduct of its officers being imputed to it. The judge said that the legislation intended to encourage a union to take active steps to control the conduct of its officers, employees and agents to ensure as far as possible that by taking all reasonable steps the conduct was not a contravention of the then equivalent Pt 16. The Full Court at [61] held that there was no onus on a respondent to an application for a penalty to lead evidence of ignorance of conduct by its officers in order that the penalty imposed should be ameliorated. On the other hand, the court in Employment Advcocate v Barclay Mowlam Construction Ltd (2005) 139 IR 237; [2005] FCA 431; BC200502195 at [9], adverse inferences were drawn for the failure to call the evidence from the officer involved. In Draffin v Construction, Forestry, Mining & Energy Union [2009] FCAFC 120; BC200908544, the Full Court held that the assessment of penalty must take into account any history of previous contraventions by the union of similar legislative provisions, whether they disclosed “a propensity, on the part of the Union, to engage in proscribed conduct”: at [58] and [92]. Jessup J in Williams v Construction, Forestry, Mining & Energy Union (No 2) (2009) 182 IR 327; [2009] FCA 548; BC200904602 held similarly at [16] that: “[W]hat is important, in my view, is the quality of the conduct in each case, and the relevance of the conduct to the norms of industrial behaviour which the instant legislation seeks to establish or support”; see also Cahill v Construction, Forestry, Mining & Energy Union (No 4) (2009) 189 IR 304; [2009] FCA 1040; BC200908666 at [39]; Stuart v Construction, Forestry, Mining & Energy Union (2009) 190 IR 82; [2009] FCA 1119; BC200909057 at [23]. Implementation by the organisation of training or sanctions for contravention were relevant to these questions: Alfred v Construction, Forestry, Mining & Energy Union (No.2) [2009] FMCA 1003; BC200909649 at [36]–[37]. [8-5220.66] Penalty: Adverse publicity The courts have held that the conduct of the applicant may be relevant to the amount of penalty ordered. In Fair Work Ombudsman v Revolution Martial Arts Pty Ltd [2013] FMCA 125; BC201301346 at

[49], FM Turner found relevant that: … the FWO issued a media release … and should have shown greater restraint in the wording of the media release which was calculated to allow identification of the respondents and for them to be subject to public derision and contempt… He went on to hold at [51] that: … embarrassment from publicity is a penalty in itself. The Court has regard to this in assessing the aggregate penalties to be imposed. A different conclusion was reached in Fair Work Ombudsman v Amritsaria Four Pty Ltd [2016] FCCA 968; BC201603055 at [89]. In that case, the Court rejected analogies with criminal notions of extra curial punishment on the basis that: The difficulty with applying the principles discussed in those cases is that they all concerned sentencing for crime. As the High Court recently made plain in CFMEU, the imposition of civil penalties does not raise the same considerations. Thus, the extra-curial punishment said to have been suffered, for example, by Mr Einfeld (formerly a judge of the Federal Court and one of [page 805] Her Majesty’s Counsel in the State of New South Wales) might have been relevant to the punitive purpose of sentencing for the crime of perjury but, as I have noted above, the principal if not only purpose of a civil penalty is deterrence. For that reason, while I do take into account the effect of the media coverage as relevant to general deterrence, I do not think that it is otherwise relevant to the determination of penalty. It seems difficult to reconcile those authorities. In New Image Photographics Pty Ltd v Fair Work Ombudsman [2013] FCA 1385; BC201315849 at [65], Collier J accepted that: … it is within the scope of its duties to publicise its activities, including action taken to promote compliance with the law. The mere publication of a media release informing the public of such activities, notwithstanding that the publicity may be unfavourable to the recipient of the regulator’s attentions, is not reason to mitigate any penalty the Court proposes in respect of contravening conduct. Her Honour went on to hold at [67] that: It is where publicity is “adverse” in the sense of inaccurate or unfair that the mitigation of penalty may be appropriate… In that case at [43], the Court found that a press release by the Fair Work Ombudsman was misleading in that it: … incorrectly asserted that the applicant was “prosecuting” the respondents. The proceedings commenced by the applicant are for the imposition of a civil penalty. The word “prosecuting” can have different meanings, but in the context in which it was used in the release, the implication arising from it is of some criminality on the part of the respondents. Given the context, that is an inference that is fairly open. In Fair Work Ombudsman v Mildura Battery Company Pty Ltd [2014] FCCA 192; BC201400556 at [62], Turner FM adopted the reasoning of Hansen J in Cousins v Merringtons Pty Ltd (No 2) [2008] VSC 340; BC200807777 at [59]–[65] that: The above cases indicated that “adverse” means unfair or incorrect reporting. They recognise that a prosecutor may issue a media release concerning a case but where that occurs before the trial

“appropriate restraint in tone and content is required” to avoid the defendants suffering damage that would not have occurred had the media release been fair and accurate. Subject to that a reasonably worded, accurate news release serves a useful purpose; without it the media is left to make their own inquiries and compile their own summaries, which carries a risk of inaccuracy. Subject to that qualification, the Courts have repeatedly made clear that: … the publication of information about compliance activities is an important part of the applicant’s role as a regulator of workplace laws. A statutory function of the applicant is to promote compliance with the Act. Publicity of penalty proceedings is intended to deter others from contravening workplace laws: Fair Work Ombudsman v AJR Nominees Pty Ltd (No 2) [2014] FCA 128; BC201400767 at [47]. See also: Fair Work Ombudsman v Cleaners New South Wales Pty Ltd (2009) 186 IR 467; [2009] FMCA 683; BC200906853. In that case FM Driver held at [25] that: Actions taken by the Fair Work Ombudsman to enforce compliance with the Workplace Relations Act are taken in part to create publicity in order to achieve a normative effect upon the behaviour of employers. That is appropriate. [page 806] Indeed it seems that publicity is deliberately used by the Fair Work Ombudsman as a compliance tool. Tess Hardy, John Howe and Sean Cooney wrote in Less Energetic but More Enlightened? Exploring the Fair Work Ombudsman’s Use of Litigation in Regulatory Enforcement in Sydney Law Review Vol 35: 565 at 580 that: The OWS [Office of Workplace Services] and later the WO [Workplace Ombudsman Ombudsman] both used the media to great effect to publicise the successful litigations they had brought and firmly ensconce the place of the regulator on the workplace relations stage. This not only amplified the deterrence effects of these activities, but was a common source of pride for employees within the federal labour inspectorate. [8-5220.67] Penalty: Financial circumstances of corporation In Milardovic v Vemco Services Pty Ltd (Admn Apptd) (No 2) [2016] FCA 244; BC201601644, Mortimer J noted that there are conflicting authorities as to whether the financial circumstances of a corporation (including the prospect of it going into liquidation) is a matter the Court can take into account in deciding whether to impose a penalty. Her Honour went on to hold at [19] that: Reconciling these authorities, it is a matter for the court’s discretion how to take into account the fact (if it be proven) that a corporation is, or may be placed, in liquidation in determining whether to impose a penalty for contraventions that the court has found proven. There is no authority to the effect that a penalty cannot be imposed. The critical issue is whether in a given case the court is satisfied the imposition of a penalty is still capable of having deterrent effect, whether specific or general. [8-5220.70] Penalty: Relevance of costs The purpose of a penalty is not to reimburse the applicant organisation for the costs of the application Victoria University of Technology v Australian Education Union (1999) 91 IR 96; [1999] FCA 1065; BC9904468 at [34]. It has been said that such an order should not be made if that results in a windfall to an organisation Community and Public Sector Union v Telstra Corporation (2001) 108 IR 228; [2001] FCA 1364; BC200105783 at [27]. That proposition seems to be based on the traditional judicial distrust of common informer provisions whereby individuals were able to profit from private actions for penalty. As Branson and Lander JJ, held in

Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357; 177 IR 243; [2008] FCAFC 170; BC200808798 at [68]–[69]; that view has been both doubted by Wilcox J, and endorsed by Greenwood J. The majority did not go on to determine the issue. The Court should not however have regard to whether the penalty might be used to defray legal costs in whole or in part Rojas v Esselte Australia Pty Ltd (No 2) (2008) 177 IR 306; [2008] FCA 1585; BC200809516 at [68]. The position may be more nuanced. As Jessup J noted in Murrihy v Betezy.com.au Pty Ltd (No 2) (2013) 221 FCR 118; [2013] FCA 1146; BC201314455 at [116]: … where there have clearly been such costs and expenses, it may serve to counter any suggestion that the applicant would walk away from the case with a “windfall” or “profit”. The Full Court agreed generally with the observations made by Jessup J in Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; BC201600159 at [115]. In a similar vein, in Sagona v R & C Piccoli Investments Pty Ltd (No 2) [2014] FCCA 2925; BC201410790, Whelan J rejected the making of a costs order holding that: [88] … where the Applicant had the benefit of an order for the payment of a penalty imposed by the court to her, where the costs to her of enforcing her statutory rights have been taken into account in the making of that order, the Applicant ought not to be seen to be walking away with a “windfall” or “profit” because she also receives an order for costs under s 570 of the Act. [page 807] [8-5220.75] Penalty: Agreed Penalty In some cases parties have agreed upon the penalties to be imposed. However, the court must be satisfied that the penalties proposed are, having regard to the facts as established or agreed, within the range of penalties that arise for consideration in the exercise of the court’s discretion. It is not necessary or useful for the courts to be diverted by the question whether precisely the same penalty would have been applied in the absence of agreement. The question is whether that figure is, in the court’s view, appropriate in the circumstances of the case. In answering that question, the court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range. The phrase “permissible range” refers to a range which would be permitted by the court, that is, a range within which the penalty is neither manifestly inadequate nor manifestly excessive: Ponzio v B&P Caelli Constructions Pty Ltd (2007) 158 FCR 543; 162 IR 444; [2007] FCAFC 65; BC200703532 at [129] per Jessup J; Alfred v Lanscar (2007) 167 IR 320; [2007] FCA 1001; BC200705164 at [2], Hills v Sutton (2007) 169 IR 327; [2007] FCA 2033; BC200711744 at [7], Inspector Carpenter (Workplace Ombudsman) v Delaware North Services Pty Ltd (2009) 178 IR 79; [2009] FMCA 36; BC200900226 at [54] although cf Construction, Forestry, Mining and Energy Union v Austral Bricks (Qld) Pty Ltd (2009) 178 IR 470; 224 LR 178; [2009] FMCA 143; BC200901173 at [35]. Where agreement has been reached as to the payment of the penalty to the applicant, the agreement is not one with which the court should concern itself: Construction, Forestry, Mining and Energy Union v Quality 1 Security Services Pty Ltd [2009] FMCA 1076; BC200909834 at [2]. Those propositions were substantially rejected in the case of Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 105 ACSR 403; [2015] FCAFC 59; BC201503362 at [164]: The courts and the legal profession have long experience in the conduct of cases and their resolution by agreement. Many factors contribute to a decision by one party that its interests will be best served by settlement. Settlement results when both parties perceive that it is in their interests that they settle. In criminal cases, pleas are generally entered without any real certainty as to the likely sentence. Neither the process of sentencing, nor that of imposing a pecuniary penalty is capable of precise

prediction. In each case, it will depend upon the Court’s view of the circumstances put before it. The regulators seek (and suggest that offenders want) a system in which they can both agree the penalty and regulate the information put before the Court in order to obtain its approval of the agreement. This seems to be a long way from a process in which the penalty is fixed by the Court, after the parties have put before it the information which each considers relevant, and made appropriate submissions. The Full Court went on to hold at [240]–[242] that: Insofar as concerns submissions as to the range within which the penalty should fall, it is equally as inappropriate in pecuniary penalty cases as in criminal sentencing… As to an agreed penalty, we have previously indicated that any admission of liability may be a relevant consideration in sentencing or imposing a pecuniary penalty. Willingness to submit to the imposition of a substantial penalty may also be relevant in that way. However, even if the offender nominates a substantial figure as the penalty to which it will submit, the Court must still fix the appropriate penalty, taking into account such contrition as well as all other relevant considerations. As we have said, any such agreement is no more than an expression of a shared opinion, and therefore inadmissible. As we have also said, the amount of the agreed penalty may simply reflect the point at which each party considers that it is in its interest to agree. In either case, the agreed amount offers no assistance in fixing the amount of the appropriate penalty. Finally, we do not dismiss the concerns of the regulators as to the importance of negotiations and agreements in the enforcement of the various statutes pursuant to which pecuniary penalties may be imposed. However we do not accept that the problem is as great as the [page 808] regulators suggest … In Barbaro, the High Court held that statements as to ultimate outcome or range were merely expressions of opinion and therefore could not properly be advanced in submissions. There can be no justification for taking a different view in pecuniary penalty proceedings. [8-5220.80] Penalty Payment to the applicant The usual order should be made for payment to the person applying for the penalty: Schanka v Employment National (Administration) Pty Ltd (2001) 114 FCR 379; 110 IR 97; [2001] FCA 1623; BC200107075 at [78]. Where the conduct in question targets a particular organisation or person and that person is authorised to commence and commences a proceeding for the imposition of a penalty, in the usual course it is appropriate to order that the penalty be paid to the organisation or person: Seven Network (Operations) Ltd v CEPU (2001) 110 IR 372; [2001] FCA 672; BC200102905. Gray J in Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union (2008) 171 FCR 357; 177 IR 243; [2008] FCAFC 170; BC200808798 at [44] provided a further exception that the penalty may be ordered to be paid to the organisation on whose behalf the initiating party has acted. The point was referred to but not decided by Branson and Lander J at [65]–[69]. In Plancor at [70], Branson and Lander JJ went on to endorse the remarks of Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd (No 4) (2006) 158 IR 181; [2006] FCA 1302; BC200607861 at [108] that: … the imposition of a penalty under the Act is designed fundamentally to serve the public interest in acting as a deterrent to the particular Respondents and others generally from engaging in conduct of the kind the subject of the findings. In circumstances where an order has been made for compensation for both economic loss and a non-economic component concerning the disturbance,

dislocation and loss of secure employment suffered by the individuals, there seems to be no good policy reason why the individuals should additionally have the benefit of an order for the payment to them of the penalty … To strikingly contrary effect, Vasta FCCJ ordered that a penalty for breach of the right of entry provisions be paid to the Commonwealth. In AMIEU v Greenmountain Food Processing [2015] FCCA 2655; BC201510386, his Honour held that: [23] … ordering that pecuniary penalties imposed for breaches of the law of the Commonwealth, be paid to entities other than the Commonwealth, has the potential to upset the balance achieved by the FW Act. It may be thought that applicants have motivations other than maintenance of the Rule of Law in pursuing civil remedies, if pecuniary penalties are routinely paid to them rather than the Commonwealth. [24] Of course, it may be different if an applicant has suffered financially because of the breach of the FW Act or suffered financially in bringing the action before the Court. In a case such as that, there has been a loss sustained by a party seeking justice. Therefore, in that case, justice would demand that such payment be made to an applicant. But this is not the case here. That judgment does seem to involve a significant reworking of longstanding principle. If followed, it would impose significant practical restrictions on the enforcement of the Act. *Editor’s note: Commentary at [s 546.01]–[546.35] prepared by Ian Latham BA(Hons) LLB (ANU), Barrister. Commentary at [s 546.40]–[s 546.80] prepared by John Trew QC and updated by Ian Latham BA(Hons) LLB (ANU), Barrister.

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[8-5240]

Interest up to judgment

547 (1) This section applies to an order (other than a pecuniary penalty order) under this Division in relation to an amount that a person was required to pay to, or on behalf of, another person under this Act or a fair work instrument. (2) In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary. [page 809] (3) Without limiting subsection (2), in determining the amount of interest, the court must take into account the period between the day the relevant cause of action arose and the day the order is made. COMMENTARY TO SECTION 547*

Derivation …. Amount of interest — s 547(2) …. Fair work instrument — s 547(1) …. Good cause — s 547(2) …. On application of — s 547(2) …. The day the relevant cause of action arose — s 547(1) …. On behalf of — s 547(1) …. Outline of section ….

[8-5240.1] [8-5240.5] [8-5240.10] [8-5240.15] [8-5240.20] [8-5240.25] [8-5240.30] [8-5240.35]

[8-5240.1] Derivation The section is new. There are some similarities with the Workplace Relations Act s 722 and the Federal Court of Australia Act 1976 s 51A(1). [8-5240.5] Amount of interest — s 547(2) In Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250; [2002] FCA 1406; BC200206801 at [90], Goldberg J equated the power to grant interest in the Workplace Relations Act with Federal Court of Australia Act 1976 (Cth) s 51A(1). In doing so he followed a number of Federal Court authorities in which the relevant State penalty interest rate has been applied. [8-5240.10] Fair work instrument — s 547(1) See s 12. [8-5240.15] Good cause — s 547(2) The authorities on the meaning of good cause in the Federal Court Act were collected and discussed by Finn J in HK Frost Holdings Pty Ltd (in liq) v Darvall McCutcheon (a firm) [1999] FCA 795; BC9903352 at [7]–[10]. In that case, his Honour held that ordinarily it will be for the respondent to establish such “good cause”; this does not necessarily require that evidence be adduced for the purpose. Furthermore, it is open to the Court, for example, to take into account such considerations of public policy as may be relevant in the circumstances. It is neither possible nor desirable to define what will constitute “good cause” disentitling a party to interest; each case must be considered by reference to its own circumstances. In Spangaro v Corporate Investment Australia Funds Management Ltd (No 2) [2003] FCA 1363; BC200307322 at [2] Finkelstein J said that it is generally agreed that interest will not be charged if it would work an injustice to the defendant. [8-5240.20] On application of — s 547(2) The words “on application” are intended to make it clear that the court is not required to order interest if a party does not apply for interest. Similarly, where the parties file consent orders in court and the orders do not provide for the imposition of interest, it is intended that a court would not award interest on the amount of its own motion: Explanatory Memorandum to the Fair Work Bill para 2163. There is authority that the power to grant interest can only be exercised upon the making of an application at the hearing. A claim for interest in the originating process does not constitute such an application: Whitlock v Brew (1968) 118 CLR 445 at 463–4; [1969] ALR 243; [1968] HCA 71; BC6800460. [8-5240.25] The day the relevant cause of action arose — s 547(1) It allows the court to award interest on an amount prior to the filing of proceedings in a court: Explanatory Memorandum to the Fair Work Bill para 2164. [page 810]

[8-5240.30] On behalf of — s 547(1) The words “on behalf of” an employee are intended to capture payment such as superannuation payments which are paid to a third party on behalf of an employee: Explanatory Memorandum to the Fair Work Bill para 2162. [8-5240.35] Outline of section The objective of provisions of this type is to compensate an applicant for the loss it suffers in being kept out of its money or damages: HK Frost Holdings Pty Ltd (in liq) v Darvall McCutcheon (a firm) [1999] FCA 795; BC9903352 at [6]. Although the court may have a discretion to award interest, this discretion is not wholly at large: Spangaro v Corporate Investment Australia Funds Management Ltd (No 2) [2003] FCA 1363; BC200307322 at [2]. *Editor’s note: Commentary on s 547 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

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DIVISION 3 — SMALL CLAIMS PROCEDURE

[8-5430] Plaintiffs may choose small claims procedure 548 (1) Proceedings are to be dealt with as small claims proceedings under this section if: (a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit Court; and (b) the order relates to an amount referred to in subsection (1A); and (c) the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings. [subs (1) am Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013]

(1A) The amounts are as follows: (a) an amount that an employer was required to pay to, or on behalf of, an employee: (i) under this Act or a fair work instrument; or (ii) because of a safety net contractual entitlement; or (iii) because of an entitlement of the employee arising under subsection 542(1); (b) an amount that an outworker entity was required to pay to, or on

behalf of, an outworker under a modern award. Limits on award (2) In small claims proceedings, the court may not award more than: (a) $20,000; or (b) if a higher amount is prescribed by the regulations — that higher amount. Procedure (3) In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act: (a) in an informal manner; and (b) without regard to legal forms and technicalities. (4) At any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment. [page 811] Legal representation (5) A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court. (6) If the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged. (7) For the purposes of this section, a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person. Representation by an industrial association (8) The regulations may provide for a party to small claims proceedings to be represented in the proceedings, in specified circumstances, by an official of an industrial association. (9) However, if small claims proceedings are heard in a court of a State,

the regulations may so provide only if the law of the State allows a party to be represented in that court in those circumstances by officials of bodies representing interests related to the matters in dispute. COMMENTARY TO SECTION 548*

Derivation …. Employer — s 548(1A)(a) …. Employee — s 548(1A)(a), (iii), (7) …. Fair work instrument — s 548(1A)(i) …. Industrial association — s 548(8) …. Lawyer — s 548(5), (6), (7) …. Magistrates court — s 548(1)(a) …. Modern award — s 548(1A)(b) …. Officer — s 548(7) …. Official — s 548(8), (9) …. Outworker — s 548(1A)(b) …. Outworker entity — s 548(1A)(b) …. Pecuniary penalty order — s 545(1)(a) …. Prescribed by the regulations — s 548(1)(c) …. Safety net contractual entitlement — s 548(1A)(a)(ii) …. Unfairly disadvantaged — s 548(6) …. Outline of the section ….

[8-5430.1] [8-5430.5] [8-5430.10] [8-5430.15] [8-5430.20] [8-5430.25] [8-5430.30] [8-5430.35] [8-5430.40] [8-5430.45] [8-5430.50] [8-5430.55] [8-5430.60] [8-5430.65] [8-5430.70] [8-5430.75] [8-5430.80]

[8-5430.1] Derivation The section is new. [8-5430.5] Employer — s 548(1A)(a) See s 538. [8-5430.10] Employee — s 548(1A)(a), (iii), (7) See s 538. [8-5430.15] Fair work instrument — s 548(1A)(i) See s 12. [8-5430.20] Industrial association — s 548(8) See s 12. [8-5430.25] Lawyer — s 548(5), (6), (7) See s 12. [page 812] [8-5430.30] Magistrates court — s 548(1)(a) See s 12. [8-5430.35] Modern award — s 548(1A)(b) See s 12.

[8-5430.40] Officer — s 548(7) See s 12. [8-5430.45] Official — s 548(8), (9) See s 12. [8-5430.50] Outworker — s 548(1A)(b) See s 12. [8-5430.55] Outworker entity — s 548(1A)(b) See s 12. [8-5430.60] Pecuniary penalty order — s 545(1)(a) See s 12. [8-5430.65] Prescribed by the regulations — s 548(1)(c) See reg 4.01. [8-5430.70] Safety net contractual entitlement — s 548(1A)(a)(ii) See s 12. [8-5430.75] Unfairly disadvantaged — s 548(6) The Explanatory Memorandum gives the following example at para 2170: if one party is a company and represented by an employee who is legally qualified as permitted, the court may consider it appropriate for the other party to be represented by a person who is a lawyer. [8-5430.80] Outline of the section The Explanatory Memorandum explains at para 2165 that: under the WR Act, the small claims procedure only applied to proceedings in a State magistrates court. This clause extends the small claims procedure to the Fair Work Division of the Federal Magistrates Court. Paragraph 2167 further states that when dealing with a matter under the small claims procedure, the Fair Work Division of the Federal Magistrates Court (or a State or Territory magistrates court) may act in an informal manner. It will not be bound by formal rules of evidence and it may act without regard to legal forms and technicalities. This is intended to ensure that claims for a relatively small amount of money are dealt with efficiently and expeditiously by the courts. In Mitchell v G & M Childcare Centres Pty Ltd [2015] FCCA 718; BC201502304 at [103], FCC Judge Cameron held that: A party may not utilise the small claim procedure, which is not governed by the rules of evidence and is required to proceed in an informal manner without regard to “legal forms and technicalities”, and seek the imposition of penalties, which is a most serious matter. If a party is to be exposed to the imposition of penalties, that party is entitled to have its liability for such penalties determined following a hearing which has observed the rules of evidence and which has not proceeded in an informal manner. *Editor’s note: Commentary on s 548 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

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DIVISION 4 — GENERAL PROVISIONS RELATING TO CIVIL REMEDIES

[8-5620] Contravening a civil remedy provision is not an offence

549 A contravention of a civil remedy provision is not an offence. COMMENTARY TO SECTION 549*

Derivation …. Civil remedy provision — s 549 ….

[8-5620.01] [8-5620.05] [page 813]

Offence …. Outline of Section ….

[8-5620.10] [8-5620.15]

[8-5620.01] Derivation Section 549 is similar to s 170NF of the pre-reform Workplace Relations Act 1996. [8-5620.05] Civil remedy provision — s 549 See ss 12 and 539. [8-5620.10] Offence See s 16 of the Crimes Act 1914. [8-5620.15] Outline of Section Section 549 makes it clear that a contravention of a civil remedy provision is not a criminal offence and therefore cannot result in a criminal conviction: Explanatory Memorandum to the Fair Work Act 2009 at [2174]. Such is clear from the decision of Gapes v Commercial Bank of Australia Ltd (No 2) (1979) 27 ALR 87; 38 FLR 431. In that case, Smithers ACJ noted at ALR 90 that: It is not difficult to understand that there might have been reluctance to characterize a mere breach of an award as a criminal offence. Awards are detailed documents frequently containing complicated provisions. They often raise most difficult questions of construction, not only for parties but for courts. That a party honestly misconstruing a provision should be at risk of a criminal conviction might well have been regarded unfavourably by legislators … It is quite significant that in various parts of the Act the distinction between between a breach of a term of an order or award and an offence against the Act is expressly made. (See also Sweeney and Evatt JJ at ALR 111 Deane J at ALR 112 and Fisher J at ALR 113. Note the offences set out at Pt 5-1, div 9 of the FW Act. See [8-5660.30] –[8-5660.35] for commentary as to the effect upon procedure. *Editor’s note: Commentary to Section 549 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

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[8-5640] Involvement in contravention treated in same way as actual contravention

550 (1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. (2) A person is involved in a contravention of a civil remedy provision if, and only if, the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced the contravention, whether by threats or promises or otherwise; or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or (d) has conspired with others to effect the contravention. COMMENTARY TO SECTION 550*

Derivation …. History …. Constitutional support ….

[8-5640.1] [8-5640.5] [8-5640.10] [page 814]

Person …. Civil remedy provision …. Aided, abetted, counselled or procured — s 550(2)(a) …. Induced by threats promises or otherwise — s 550(2)(b) …. Involved in — s 550(1), (2) …. Knowingly concerned — s 550(2)(c) …. Outline of section ….

[8-5640.15] [8-5640.20] [8-5640.25] [8-5640.30] [8-5640.35] [8-5640.40] [8-5640.45]

[8-5640.1] Derivation Section 728 of the Workplace Relations Act. Accessorial liability provisions such as those in workplace relations legislation are commonplace in Commonwealth legislation: see, eg Competition and Consumer Act 2010 (Cth), s 151BW (person involved in a contravention of the competition rule, etc); Paid Parental Leave Act 2010 (Cth), s 145 (involvement in contravention treated in same way as actual contravention); Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), s 694.55 (involvement in contraventions); Corporations Act 2001 (Cth), s 79 (involvement in contraventions), to name but a few that are in identical, or practically identical, terms to s 550 of the FW Act: Devonshire v Magellan Powertronics Pty Ltd (2013) 275 FLR 273; 231 IR 198; [2013] FMCA 207; BC201309377 at [83].

[8-5640.5] History Section 728 of the Workplace Relations Act was derived from s 75B of the Trade Practices Act 1974. [8-5640.10] Constitutional support The Commonwealth has no specific power to legislate for the creation of federal offences and the treatment of federal offenders. The power which it has is to be found in its power to legislate with respect to matters incidental to its enumerated powers: Leeth v Commonwealth (1992) 174 CLR 455 at 469; 107 ALR 672; 66 ALJR 529; 61 A Crim R 85; BC9202676. See also R v Kidman (1915) 20 CLR 425 at 433; 21 ALR 405; [1915] HCA 58; BC1500019 where Griffiths CJ said: The imposition of … sanctions, which are generally in the form of penalties, is in the strictest sense of the term incidental to the execution of the power to make the law itself. The Commonwealth parliament, when legislating with respect to a subject within the ambit of its powers, may validly enact laws prescribing the rules of evidence and procedure to be observed in any legal proceedings, whether criminal or civil, arising in relation to that subject matter and may in particular cast the onus of proof upon either party to the proceedings: see R v Associated Northern Collieries (1911) 14 CLR 387 at 404; [1911] HCA 73; Commonwealth v Melbourne Harbour Trust Cmrs (1922) 31 CLR 1 at 12; 28 ALR 325; BC2200021 the cases referred to in Milicevic v Campbell & Commonwealth (1975) 132 CLR 307 at 316–17, 319; 6 ALR 1; 49 ALJR 195; BC7500021; Nicholas v R (1998) 193 CLR 173; 151 ALR 312; 72 ALJR 456; [1998] HCA 9; BC9800075 at [23]–[26] and [153]; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; 242 ALR 191; 82 ALJR 454; 180 A Crim R 455; [2008] HCA 4; BC200800373 at [39]. [8-5640.15] Person See s 2C of the Acts Interpretation Act 1901. [8-5640.20] Civil remedy provision See the definition in s 539(1). [8-5640.25] Aided, abetted, counselled or procured — s 550(2)(a) In Dowling v Kirk [2007] FMCA 2106; BC200711640 at [25], the following definition used in a criminal context was applied in the context of the Workplace Relations Act. The provisions of para (a) are used to designate participation in a crime either as a principal in the second degree or as an accessory before the fact. Such conduct requires intent in order that the contravention can be proved. A [page 815] person will contravene by aiding and abetting or counselling and procuring a contravention only if the person intentionally participates in it, in the sense that he or she has knowledge of the essential matters going to make up the offence, whether or not he or she knows they amount to a contravention: see also Buckingham v KSN Engineering (2008) 177 IR 427; [2008] FMCA 546 at [40]–[44]. In Temple v Powell (2008) 173 IR 189; 169 FCR 169; [2008] FCA 714; BC200803784, the appropriateness of applying criminal principles to the penalty provisions in the Building and Construction Industry Improvement Act 2005 was questioned but not finally decided at [44]. [8-5640.30] Induced by threats promises or otherwise — s 550(2)(b) See Ryan J’s examination of the meaning of the word “threaten” in Laing v CFMEU [2005] FCA 765; BC200503937 at [14], where he said at [55] that “advising”, “querying” and “enquiring” of various matters to or of the complainant did not constitute threats, but rather lay a foundation for imputing a certain state of mind. Likewise in Community and Public Sector Union (CPSU) v Telstra Corp Ltd (2000) 99 IR 238; [2000] FCA 844; BC200003458 at [19], Weinberg J held in relation to the former s 298K that there will not be a threat of proscribed conduct unless the person making the threat communicates to the recipient of the threat that

proscribed action will be taken. His Honour preferred the meaning of the word “threaten” as to menace or warn beforehand of an intention to inflict harm. The threat must be communicated to the person threatened although this not need occur directly: Community and Public Sector Union (CPSU) v Telstra Corp Ltd (No 2) (2000) 101 FCR 45; [2000] FCA 872; BC200004445 at [15]. See also Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1; [2006] FCA 1441; BC200608906 at [20] for a summary of the authorities. A specific case example of where a threat will be found is illustrated in Seven Network (Operations) Ltd v CEPU (2001) 109 FCR 378; 184 ALR 65; 106 IR 404; [2001] FCA 456; BC200101831 where Merkel J ruled at [51] that statements made in a radio interview that “industrial action hadn’t been ruled out” would in certain circumstances constitute a threat of industrial or other action, with the conditional nature of the statement bearing no relevance on the existence of the threat itself. A third party may be threatened with industrial action (or other action) intended to coerce a target independent of the third party: see further Dorber v CFMEU (2005) 147 IR 173; [2005] FCA 1565; BC200509318 at [23] referred to at [s 400.35] below. [8-5640.35] Involved in — s 550(1), (2) In order that a person may be “involved in” a contravention of a civil remedy provision it is necessary to demonstrate that the person in question was a knowing participant in the contravention: Dowling v Kirk [2007] FMCA 2106; BC200711640. Mere involvement is not sufficient. Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct — the accessory should be linked in purpose with the perpetrators: Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299; [2007] FCAFC 87; BC200704421 at [26]. [8-5640.40] Knowingly concerned — s 550(2)(c) The proper construction of para (c) requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention: Dowling v Kirk [2007] FMCA 2106; BC200711640 at [28]. In a Trade Practices context it has been said that the requirement of knowledge “is actual and not constructive knowledge”. Actual knowledge can be inferred: Australian Competition and Consumer Commission (ACCC) v IPM Operation & Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162; [2006] FCA 1777; BC200610688. [page 816] Judge Cowdroy drew a difficult distinction in Potter v Fair Work Ombudsman [2014] FCA 187; BC201401233 at [82]: For a person to be liable as an accessory to a contravention on the basis that they are wilfully blind to a certain fact, it still must be shown, albeit by inference, that the person had actual knowledge of such fact. As was stated extra-curially by Dawson J in “Recent Common Law Developments in Criminal Law”, in (1991) 15 Crim LJ 5 at 15, and cited with approval by Burchett J in Richardson & Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd [1994] FCA 1222; (1994) 123 ALR 681 at 694: … whilst knowledge as an ingredient of an offence may be established by inference, it must be established as a fact. If the term “wilful blindness” is used merely as a shorthand expression to indicate circumstances which warrant the drawing of the necessary inference, then it is acceptable. But it is unacceptable if it is used as a basis for imputing knowledge where actual knowledge is not proved. At Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456; BC201512721 at [232]–[233],

White J developed the theme further: In several cases . this Court has referred with approval to a passage from the advice of Lord Sumner in Zamora (No 2) [1921] 1 AC 891 at 8123 in which his Lordship noted two senses in which a person may be said not to know something because they do not wish to know it: A thing may be troublesome to learn, and knowledge of it, when acquired, may be uninteresting or distasteful. To refuse to know any more about the subject or anything at all is then a wilful but a real ignorance. On the other hand, a person is said not to know because he does not want to know, where the substance of a thing is borne in upon his mind with a conviction the full details or precise proofs may be dangerous, because they may embarrass his denials or compromise his protests. In such a case he flatters himself that whereas ignorance is safe, ‘tiz folly to be wise, but there he is wrong, for he has been put upon notice and his further ignorance, even though actual and complete, is a mere affectation and disguise. In the former circumstance described by Lord Sumner, the person will not have actual knowledge of the matter. In the latter circumstance, the person does have that knowledge but deliberately refrains from asking questions or seeking further information in order to maintain a state of apparent ignorance. That is not a circumstance of constructive or imputed knowledge, but of actual knowledge reduced to minimum by the person’s wilful conduct… [8-5640.45] Outline of section The section provides for accessorial liability for breach of civil remedy provisions. The section seems to be based upon s 75B of the Trade Practices Act which in turn applies a number of concepts of criminal law. There is authority in relation to s 75B of the Trades Practices Act, that action may be taken against accessories without taking action against the principal: Australian Competition & Consumer Commission v Black on White Pty Ltd (2001) 110 FCR 1; ATPR 41-820; [2001] FCA 187; BC200100893 at [51]. For an example of action taken against an accessory when the action was discontinued against the principal; see Torpia v Empire Printing (Australia) Pty Ltd [2009] FMCA 853; BC200908380 at [65]. The Federal Court has held that Accessorial liability requires a pleading of actual knowledge on the part of the accessory of each and every element of the offence or contravening conduct and an election to engage in the relevant conduct: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v John Holland Pty Limited (2008) 180 IR 350; [2009] FCA 274; BC200901915 at [44]. Provisions in relation to accessorial liability are designed to ensure that persons involved in contravening conduct, often directors or very senior employees of corporations, are held liable for [page 817] their conduct insofar as it resulted in a contravention of the relevant legislation. Further, they also ensure that liability is able to be imposed on persons involved in the contravening conduct in circumstances where a company has, for example, become insolvent or been deregistered, and no penalty would otherwise be recoverable: Devonshire v Magellan Powertronics Pty Ltd (2013) 275 FLR 273; 231 IR 198; [2013] FMCA 207; BC201309377 at [84]. It seems well accepted that penalties can be ordered against accessories to a contravention: see for example, Roberts v A1 Scaffold Group Pty Ltd (No 2) [2015] FCCA 2249; BC201507914 (however, note that the application was essentially unconstested). An interesting question arises as to whether orders for compensation for employment underpayments can be made against accessories. There seems no obvious legislative fetter upon the making of such orders. There is some obiter authority to the effect that such orders can be made: see Workplace Ombudsman v Dracook International Pty Ltd [2009] FMCA 1318 at [22] although the point was not contested;

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Beynon [2013] FCA 390; BC201302029 at [21]; although no orders were made. The issue was also dealt with in an application for default judgment in Roberts v A1 Scaffold Group Pty Ltd [2015] FCCA 422; BC201500981 at [66]. In Scotto v Scala Bros Pty Ltd [2014] FCCA 2374; BC201408814 FCCA Judge Cameron made both compensation orders and penalty orders against accessories. In that case; neither party challenged the jurisidiction of the Court to make such orders. See also Anderson, Helen; Howe, John, “Making Sense of the Compensation Remedy in Cases of Accessorial Liability under the Fair Work Act” [2012] MelbULawRw 9; (2012) 36(2) Melbourne University Law Review 355. *Editor’s note: Commentary to s 550 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister. Commentary in [8-5640.10] prepared by J L Trew QC LLB (Syd). Commentary in [8-5640.30] prepared by Jeff Shaw QC MLC BA LLB (Syd) and Danielle King and updated by J L Trew QC LLB (Syd), Barrister and Ian Latham BA (Hons) LLB (ANU), Barrister.

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[8-5660] Civil evidence and procedure rules for proceedings relating to civil remedy provisions 551 A court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention, or proposed contravention, of a civil remedy provision. COMMENTARY TO SECTION 551*

Derivation …. History …. Constitutional support …. Civil matters — s 551 …. Civil remedy provision — s 551 …. Contravention — s 551 …. Proceeding — s 551 …. Role of Applicant …. Rules of evidence and procedure for civil matters …. Standard of proof …. Privilege against self-exposure to penalty …. Disclosure of defences …. Waiver of the privilege ….

[8-5660.1] [8-5660.5] [8-5660.10] [8-5660.15] [8-5660.20] [8-5660.21] [8-5660.25] [8-5660.30] [8-5660.35] [8-5660.35.1] [8-5660.35.5] [8-5660.35.10] [8-5660.35.15]

[8-5660.1] Derivation Section 729 of the Workplace Relations Act 1996. [8-5660.5] History Before the Workplace Relations and Other Legislation Amendment Act 1995 (No

60 of 1995) there had been uncertainty about the nature of contraventions against the [page 818] legislation. That was resolved by Gapes v Commercial Bank of Australia Ltd (No 2) (1979) 27 ALR 87; 38 FLR 431 in favour of the civil nature of such proceedings. [8-5660.10] Constitutional support See [8-5640.10]. [8-5660.15] Civil matters — s 551 The term is not defined. The term civil proceeding is defined somewhat circuitously in the Dictionary to the Evidence Act as being a proceeding other than a criminal proceeding. Section 140 of that Act sets out the standard of proof for civil proceedings. [8-5660.20] Civil remedy provision — s 551 See ss 12 and 539. [8-5660.21] Contravention — s 551 See [8-4960.11]. [8-5660.25] Proceeding — s 551 It is a term capable of having a wide meaning. It may include an application for relief before a court or tribunal and, depending upon the context in which it is used, or any express meaning it is given by definition, it may include a step taken after the initial application is made. Sometimes a proceeding and an action are treated as equivalent. An action has been described as a general term that includes every sort of legal proceeding by which the jurisdiction of a court is invoked: Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; 184 ALR 616; 76 ALJR 114; [2001] HCA 66; BC200107042 at [22] and [86]. In Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446 at 448; 131 ALR 268 at 270; 14 ACLC 554; BC9506502, Finn J pointed out that the word “proceeding” can, as a matter of express definition or of proper construction in the given setting, both include or exclude the initiation in a court of a step in an application or action. The definition in s 3 of the Federal Court of Australia Act 1976 (which is the same as the definition in s 3 of the Federal Magistrates Act 1999) states that the expression means: A proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal. As a consequence of s 59(4) of the Federal Court Act (s 81(3)) of the Federal Magistrates Act) and s 13 of the Legislative Instruments Act 2003 (compare s 9 and the parliamentary drafters note to that section), the definition applies to the rules of court: Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd (2005) 142 FCR 428; [2005] FCAFC 115; BC200503951 at [16]. That is a very wide definition and was held by Finn J, in that case, to include a motion for security for costs. Subsequently, in Fiorentino v Irons (1997) 79 FCR 327 at 330–1; 16 ACLC 177; BC9707044, Foster J agreed and held that a motion for leave to serve a summons outside Australia was a proceeding. An application for pre-action discovery against a prospective respondent is also a proceeding: Tyco Australia. See the discussion generally in Andrews v Uniting Church in Australia Frontier Services (1995) 60 IR 437. On the other hand, Flick J opined without deciding in Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472; BC201210254 at [36] that: The term “proceeding” is not defined in the Dictionary to the Act found in s 12. It may well be the case, however, that an application filed in a court which is an abuse of process does not constitute a “proceeding”. Cases in which an applicant claims, for example, damages for a contravention of the Act which cannot be substantiated in any meaningful way may constitute an abuse of process.

[8-5660.30] Role of Applicant The applicant does not owe a prosecutorial duty: Adler v ASIC (2003) 46 ACSR 504; 21 ACLC 1810; 179 FLR 1; [2003] NSWCA 131; BC200303670 at [678] and Standen v Feehan [2007] FCA 1761; BC200709825 at [5], the Commonwealth’s special [page 819] position as a model litigant imposes duties upon it beyond those on an ordinary litigant: Australian Competition & Consumer Commission v Warner Music Australia Pty Ltd [2000] FCA 647; BC200002570 at [4]. The theme was taken up in Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503; 211 IR 1; [2011] FCA 470; BC201102981 at [192] where Moore J described the submissions of the Fair Work Ombudsman as “a little too partisan at times for a statutory officeholder. By partisan I mean infused by a measure of zeal rather than detachment. I would have thought that the Ombudsman should aspire to be a model litigant rather than a partisan one”. Such status requires it to act fairly: Australian Securities and Investments Commission (ASIC) v Hellicar (2012) 247 CLR 345; 286 ALR 501; [2012] HCA 17; BC201202609 at [240]. See Spender J, Acting for Government in Criminal and Civil Jurisdictions, Expectations and Ethical Obligations, Paper delivered to the Bar Assoc Conference of Queensland February 2008, http://portal.barweb.com.au/Upload/FCK/Paper by Spender J to the Bar Assoc Conf February 2008.pdf. See also I Latham, Enforcement of the Workplace Relations Act: The use of civil penalties, Butterworths, Sydney, July 2004, Employment Law Bulletin Newsletter. The duty to act fairly was described in Scott v Handley (1999) 58 ALD 373; [1999] FCA 404; BC9901689 at [45] in this way: As with most broad generalisations, the burden of this fair dealing standard is best appreciated in its particular exemplifications in individual cases. The courts have, for example, spoken positively of a public body’s obligation of “conscientious compliance with the procedures designed to minimise cost and delay” … and of assisting “the court to arrive at the proper and just result” … And they have spoken negatively, of not taking purely technical points of practice and procedure … of not unfairly impairing the other party’s capacity to defend itself … and of not taking advantage of its own default… That does not mean however that it is required to call all relevant witnesses: Australian Securities and Investments Commission (ASIC) v Hellicar (2012) 247 CLR 345; 286 ALR 501; [2012] HCA 17; BC201202609 at [163], [241]. Likewise, it is not required to ensure that a Court is in full possession of all relevant information known by the model litigant concerning proceedings: Director of the Fair Work Building Inspectorate v McDermott [2016] FCA 1147 at [96]. [8-5660.35] Rules of evidence and procedure for civil matters [8-5660.35.1] Standard of proof As the proceedings are civil in nature, the civil standard of proof — the balance of probabilities — applies, but the strength of the evidence may vary depending upon what has to be proved and the gravity of the consequences flowing from the finding: see Harris v Ansett Transport Industries (Operations) Pty Ltd (1978) 45 FLR 469 at 475–6, where the court applied Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] ALR 334; (1938) 12 ALJR 100; BC3800027. The same standard has been applied also to proceedings for the imposition of a civil penalty under the Trade Practices Act 1974 (see Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153 at 154–60; 65 ALR 429; (1986) ATPR 40-674). Although s 140(2) of the Evidence Act 1995 (Cth) authorises the court to consider the nature of both the cause of action and the subject matter of the proceedings, as well as the gravity of the matters alleged, the amount of caution that is required by the court will vary according to the particular circumstances of the case: Briginshaw, above; Cassell v R (2000) 201 CLR 189; 169 ALR 439; 74

ALJR 535; [2000] HCA 8; BC200000173 at [18]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449–50; 67 ALJR 170; BC9202685; and G v H (1994) 181 CLR 387 at 399– 401; 124 ALR 353; 68 ALJR 860; [1994] HCA 48; BC9404649. Most of those cases are referred to in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (ACCC) (2007) 162 FCR 466; 242 ALR 643; [2007] FCAFC 132; BC200706673 at [29]–[38]. Section 140(2) reflects the common law position concerning the strength of the [page 820] evidence necessary to establish satisfaction on the balance of probabilities. In applying that test (s 140(1)) the court takes into account the matters specifically mentioned in s 140(2). In addition it may take into account other matters, including the inherent unlikelihood, or otherwise, of the occurrence of the matters of fact alleged (see Briginshaw at 361–2) and the long standing common law rule that evidence is to be weighed according to the proof with which it was in the power of one party to produce and the power of the other party to contradict (Medtel Pty Ltd v Courtney (2003) 130 FCR 182; 198 ALR 630; [2003] FCAFC 151; BC200303598 at [76]): Qantas Airways Ltd v Gama (2008) 167 FCR 537; 247 ALR 273; [2008] FCAFC 69; BC200803114 at [123]–[139], per Branson J with whom French and Jacobson JJ generally agreed at [110]. The analysis of Branson J, in that case, emphasizes that when a court considers whether a contravention has occurred (for example duress in connection with an AWA prohibited by s 400(5)), it does not say: contravention of that provision is a serious matter, therefore the Briginshaw standard applies. Rather, the fact-finder must look at the particular factual allegations. They can vary infinitely. Before making a finding which accepts those allegations as true (the onus of course being on the applicant), the fact-finder must, amongst other things, take into account the gravity of the particular allegations as required by s 140(2)(c): Granada Tavern v Smith (2008) 173 IR 328; [2008] FCA 646; BC200803467 at [95]. Gleeson CJ described the Briginshaw requirement as introducing an element of flexibility into the standard of proof, reflecting a commonsense notion that, even in civil proceedings, the seriousness of an allegation may affect the level of proof required to engender a comfortable satisfaction in tribunal of fact: “Civil or Criminal — What is the difference?” (2006) 8 TRJ 1 at 6–7. In Watson v Foxman (1995) 49 NSWLR 315 at 319; BC9505112, McLelland J in Eq said: Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court ‘must feel an actual persuasion of its occurrence or existence’. Such satisfaction is ‘not … attained or established independently of the nature and consequence of the fact or facts to be proved’ including the ‘seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’: Helton v Allen (1940) 63 CLR 691 at 712; [1940] ALJR 298; 14 ALJR 196. In Australian Competition and Consumer Commission (ACCC) v Australian Safeway Stores Pty Ltd (No 2) (2001) 119 FCR 1; (2002) ATPR (Digest) 46-215; [2001] FCA 1861; BC200108230 at [69]– [70], Goldberg J held that Briginshaw should be applied both to the conclusion to be reached as well as the determination of disputed factual matters. [8-5660.35.5] Privilege against self-exposure to penalty In the absence of statutory provision to the contrary, a person in any legal proceedings may refuse to answer any question or to produce any document or thing on the ground that the answer or the production might tend to establish conduct on the part of that person which, even though not necessarily criminal, might result in that person incurring a penalty of some kind: see Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; 45 ALR 609; 57 ALJR 236; (1983) ATPR 40-341; BC8300061; Daniels Corporation International Pty

Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; 192 ALR 561; 77 ALJR 40; [2002] HCA 49; BC200206568 at [12]–[18], [65]; Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (1999) 163 ALR 465 at 469–70; (1999) ATPR 41692; [1999] FCA 672; BC9902692. The principle developed by analogy from the privilege against self-incrimination which permits a person to refuse to answer any question, whether in the witness box or otherwise, or to produce any document or other thing, if the answer or the production would tend to show that that person had committed a criminal offence: see Sorby v Commonwealth (1983) 152 CLR 281 at 288; 46 ALR 237; 57 ALJR 248; BC8300067. See also, ss 128 and 132 of the Evidence Act 1995 (Cth). The privilege against self-incrimination is one of the fundamental protections of the civil liberties of Australians: see Reid v Howard (1995) 184 CLR 1 at 5, 14, 17; 131 ALR 609; 69 ALJR 863; [page 821] [1995] HCA 40; BC9506438. For a discussion of the history of penalty provisions see Community and Public Sector Union (CPSU) v Telstra Corp Ltd (2001) 108 IR 228 at 233; [2001] FCA 1364; BC200105783. It was long assumed that the privilege against self incrimination and the privilege against selfexposure to a penalty were available at common law to corporations in Australia. They are still available in England, Canada and New Zealand. However, the combined effect of s 187 of the Evidence Act 1995 (Cth), Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; 82 LGERA 51; 118 ALR 392; 68 ALJR 127; [1993] HCA 74; BC9303552; Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96; 123 ALR 503; (1994) ATPR 41-342; BC9400002 and Calderwood v SCI Operations Pty Ltd (1995) 130 ALR 456; 63 IR 49, is that a corporation may not now claim a privilege against self-incrimination nor may it claim a privilege against self-exposure to a penalty. There is thus now no rule preventing the production of a respondent corporation’s documents in criminal proceedings or in proceedings for the recovery of a penalty. However, both privileges remain where the respondent is an individual. An individual cannot claim privilege against the production of documents by a corporation even in circumstances where those documents may be used against the individual: See Joshua Puls Corporate Privilege — Do Directors Really Have a Right to Silence since Caltex and Abbco Iceworks? (1996) 13(5) Environmental and Planning Law Journal for a discussion of this issue in the context of directors of companies. This seeing incongruity has been described by the ALC as problematic: Australian Law Reform Commission Securing Compliance: Civil and Administrative Penalties in Australian Federal Regulation DP 65 April 2002 [9.13]. A gloss was placed upon these position in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] FCA 1032; BC201407844 at [51]–[52]. That case involved an allegation by a corporate body [the CFMEU] that it could not plead a defence without questioning individual respondents and thus requiring them to breach their own privilege. Barker J held that: The CFMEU is not able to plead a positive case (if it ever will be) and thus provide the sort of information that John Holland wants disclosed. This is because, on the face of the information before the Court, the only way in which the CFMEU could obtain relevant information to make a more positive pleading, would be by quizzing individual respondents. I do not accept a suggestion made on behalf of John Holland that any information that were to be provided by individual respondents could be used to develop the pleaded defence of the CFMEU without prejudice to the continuing entitlement of the individual respondents to the penalty privilege they claim. I accept the submission made on behalf of the CFMEU that in such circumstances, once

the information had been provided, the individual’s penalty privilege would be of no practical utility. Thus, any order requiring, in effect, the union to obtain instructions about factual matters from individual respondents would have the effect of undermining the penalty privilege of the individual respondents and achieve indirectly what cannot be achieved directly. In Australian Securities and Investments Commission v Rich (No 3) (2003) 45 ACSR 305; 21 ACLC 920; [2003] NSWSC 328; BC200301832 at [20] Austin J said: The privilege against exposure to a penalty applies not only to the defendant’s evidence, but also to the evidence of other witnesses whom the defendant may call, including expert witnesses: ASIC v Plymin (2002) 4 VR 168. It applies to non-pecuniary as well as pecuniary penalties: Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 518–19; 118 ALR 392 at 420; 12 ACSR 452 at 480. It applies to anything in the nature of the penalty: Police Service Board v Morris & Martin (1985) 156 CLR 397; 58 ALR 1; 59 ALJR 259; [1985] HCA 9; BC8501120. The decision in that case, requiring the defendant to give discovery, was reversed by the High Court (see Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; 50 [page 822] ACSR 242; 209 ALR 271; 78 ALJR 1354; 22 ACLC 1198; [2004] HCA 42; BC200405817) but that decision did not affect the correctness of the statement just extracted from the primary judge’s decision. The majority of the High Court referred at [26]–[28] to different kinds of proceedings in which the privilege was allowed. In Hadgkiss v Blevin [2003] FCA 1083; BC200305895, Bennett J refused to grant access to documents produced to the court by respondents who were natural persons notwithstanding that the applicant offered undertakings to tender that evidence only against a respondent to the proceedings that was an organisation registered under the Act and not to tender the evidence against the respondents who were natural persons. In a civil action for a penalty, in the absence of a statutory provision to the contrary, an applicant is not entitled to an order for discovery of documents against a respondent who is a natural person: see R v Associated Northern Collieries (1910) 11 CLR 738; 17 ALR 359; [1910] HCA 61 (compare Packington, Re; Ex parte Executive Director Building Management Authority (1996) 64 IR 270); Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; 50 ACSR 242; 209 ALR 271; 78 ALJR 1354; 22 ACLC 1198; [2004] HCA 42; BC200405817 at [39] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Birrell v Australian National Airlines Commission (1984) 1 FCR 526; 55 ALR 211; 7 IR 423; and see also, B Marshall, “The penalty privilege: assessing its relevance in trade practices cases” (1996) 14 Aust Bar Rev 214; T Middleton, “The privileges under the Evidence Act 1995” (1995) 25(4) QLSJ 349; R Yorke, “Do you want to know a secret: documentary evidence and the privilege against self-incrimination” (1998) 26 ABLR 44; M Gillooly and N L Wallace-Bruce, “Civil Penalties in Australian Legislation” (1994) 13 U Tas LR 269; E Stone, “Calling a spade a spade: the embarrassing truth about the right to silence” (1998) 22 Crim LJ 17. Equally, in a civil action for a penalty, in the absence of a statutory provision to the contrary, an applicant is not entitled to request the issue of a subpoena to a respondent who is a natural person: Trade Practices Commission v TNT Management Pty Ltd (1984) 53 ALR 214; 15 A Crim R 172. Finally, in a civil action for a penalty, in the absence of a statutory provision to the contrary, an applicant is not entitled to an order that a respondent who is a natural person file and serve a statement of evidence prior to the close of the other party’s case, although the person relying upon the privilege may be required to elect after the other party to the proceedings closes its case and may be required to deliver a statement of evidence within a short time: see Australian Competition and Consumer

Commission v FFE Building Services Ltd (2003) 130 FCR 37; (2003) ATPR 41-938; [2003] FCAFC 132; BC200303043. Compare Forge v Australian Securities and Investments Commission (2004) 52 ACSR 1; 213 ALR 574; [2004] NSWCA 448; BC200408634 at [310]–[317]. Even though a respondent is immune from an order to give discovery, the prosecutor may be required to do so: see Naismith v McGovern (Federal Cmr of Taxation) (1953) 90 CLR 336; [1953] ALR 846; (1953) 27 ALJR 414; BC5300910. See also N Williams, Civil Procedure Victoria, Butterworths, Sydney, 1991, looseleaf at [I 30.02.260]. [8-5660.35.10] Disclosure of defences Subject to the pleading rules applicable in the particular court, a respondent to proceedings is required in a defence to admit or deny the allegations in the statement of claim, put the applicant to proof of the allegations (without admitting or denying them) or plead a confession or avoidance. In the case of a respondent who is an individual, an admission will very likely constitute a waiver of the privilege against self-exposure to a penalty. However, a plea denying the allegation will not waive the privilege: see Bridal Fashions Pty Ltd v Comptroller-General of Customs (1996) 17 WAR 499; 140 ALR 681; 135 FLR 100; BC9604856; but compare Employment Advocate v NUW (Fed C of A, Einfeld J, 18 July 1998, unreported). In Hadgkiss v Construction, Forestry, Mining and Energy Union (2005) 146 IR 106; [2005] FCA 1453; BC200507776, individual respondents were required to file defences. Graham J said at [34] that a specific non-admission or a statement declining to plead to [page 823] the facts and matters alleged in a particular paragraph of the statement of claim on the ground that to do so may expose the person to liability for a penalty would comply with the relevant rules of court without risking deemed admissions in accordance with the rules. In Alfred v Walter Construction Group [2003] FCA 993; BC200305472 (affirmed on appeal in Construction, Forestry, Mining and Energy Union of Australia v Alfred (2004) 135 FCR 459; 130 IR 343; [2004] FCAFC 36; BC200400598) the Federal Court dismissed an application by individual respondents that they be excused from filing a defence in proceedings in which no penalty was sought against them but in respect of which declarations were sought that they had applied pressure to persons to make a certified agreement. Injunctions were also sought. Gyles J pointed out at [7] that there was no possibility that the proceedings would be amended to permit a claim to be made for a penalty against the individuals concerned because of a conscious and deliberate decision by the applicant not to make any such claims. There was no reasonable ground to apprehend danger of proceedings for a penalty. He added at [18] that if any respondent wished at a subsequent stage to put forward a particular and discernable basis for the existence of a real and appreciable risk of incrimination by any actual proposed defence, application could be made at that stage. In A & L Silvestri Pty Ltd (ACN 052 514 799) v Construction, Forestry, Mining and Energy Union (2005) 226 ALR 247; [2005] FCA 1658; BC200509897 at [17], Gyles J held that: A personal respondent to a penalty proceeding is entitled to put the applicant to proof of its case. Such a respondent cannot be forced to make an admission and no solicitor acting for that person can be held responsible for not ensuring that a party plead in a way which goes further than this. In other words, such a respondent can decline to admit matters alleged against it. To the extent that the rules of pleading require to be modified to enable this to take place, that will be done. There is no occasion, however, for relieving respondents of a duty to plead. Even in a criminal trial, a defendant pleads guilty or not guilty. The issue would arise in a case where a personal respondent proposes to rely upon a positive defence. Penalty proceeding or not, means must be found to advise the applicant and the Court of any positive defence so that the trial can be properly prepared and conducted.

The case left unanswered the question of when such a defence would need to be filed. Justice Finkelstein dealt with this point in Australian Securities and Investments Commission (ASIC) v Mining Projects Group Ltd (2007) 164 FCR 32; 65 ACSR 264; [2007] FCA 1620; BC200709199 at [13]: There is a potential problem if, as in this case, a defendant wishes to run a positive case. Ordinarily a positive case must be raised in the defence. Whether it must be raised in a defence in a civil action to recover a penalty is by no means clear. The view I favour is that there can be no such requirement as it would be inconsistent with the privilege. On the other hand, if a defendant who wishes to run a positive case is required to plead his case that can be accommodated while maintaining the privilege. What should occur is that the defendant should be entitled to rely on the privilege until the plaintiff’s case is concluded. If at that point the defendant decides to run a positive case he can deliver an amended defence that will outline his case. In an exceptional case the judge may grant a short adjournment to allow the plaintiff time to prepare, if he is otherwise taken by surprise. In most cases that will not be necessary. By the time the plaintiff has closed his case the nature of the defence will usually be apparent. That is the experience of those who prosecute criminal cases. The advocate who runs a civil penalty proceeding should be equally adept at dealing with the defendant and his witnesses without knowing in advance every word they are about to say. A different conclusion was reached by the NSW Court of Appeal in MacDonald v Australian Securities and Investments Commission (ASIC) (2007) 73 NSWLR 612; 65 ACSR 299; [2007] NSWCA 304; BC200709160. In that case, Mason P at [74], with Giles JA agreeing at [77], held [page 824] that a respondent to a claim for penalty was required to invoke from the outset any relevant defence or statutory ground of dispensation. It does not seem that the Court was referred to the decision in Mining Projects Group. To the extent that they conflict; the decision of Finklestein J is preferable. As his Honour stated at [16]: … Disclosing a positive case at the pleadings stage will often provide the plaintiff with an opportunity to follow leads and open up fresh fields of inquiry. A defendant cannot be required to provide information that may be the basis of an investigation that may lead to the discovery of real evidence… If a defendant is required to plead a positive case there is a risk of that happening … The decision in MacDonald elevates case management to a position where it prevails over the privilege. That is contrary to some centuries of jurisprudence. In John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2011] FCA 368; BC201102010, Barker J followed Finkelstein J in ASIC v Mining Projects Group (although it does not seem that MacDonald was raised by either party). His Honour did however find that pleading a positive did not carry with it the consequence that the penalty privilege was waived such that it was then obliged to file witness statements prior to trial or to give discovery. There is some question as to whether the recipient of a notice to admit facts can claim the privilege against penalty. In Fair Work Ombudsman v Centennial Financial Services Pty Ltd (2010) 245 FLR 242; [2010] FMCA 863; BC201008512 at [98], the Federal Magistrates Court said that it could not. This was said to be because the danger of an adverse costs order does not constitute a penalty. The Federal Court reached a different conclusion in Director of Fair Work Building Industry Inspectorate v Adams [2015] FCA 420; BC201503447. In that case, Gilmour J held at [25] that: If any respondent failed to serve a notice of dispute, the respondent will be taken to have admitted the truth of each fact or the authenticity of each document. In order to avoid this, the respondent would require to convert, in effect, non-admissions pleaded in its defence to denials … To put the respondent to a penalty proceeding in that position is inimical to the penalty privilege which each

relies upon. The potential consequences were said at [24] to include the consequence that: … it might well be relevant to their credit as witnesses should they in due course elect to give evidence, or potentially detract from a plea in mitigation should the case against them be made out. While Centenniel Finance was not referred to by the Court; the judgment in Adams should be preferred. The privilege of refusing to answer questions or provide information on the ground that the answers or the information might tend to expose the party to the imposition of a civil penalty is not confined in its application to discovery and interrogatories: Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; 45 ALR 609; [1983] HCA 9; BC8300061 at 337. It should not be easily circumvented. See also Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; 50 ACSR 242; 209 ALR 271; 78 ALJR 1354; 22 ACLC 1198; [2004] HCA 42; BC200405817 at [24]. [8-5660.35.15] Waiver of the privilege In Birrell v Australian National Airlines Commission (1984) 1 FCR 526 at 531–2; 55 ALR 211; 7 IR 423, Gray J held that: It can hardly be doubted that, if a respondent to a claim … chooses to enter the witness box in the course of the trial of the matter, that person could be cross-examined and required to answer questions the answers to which may tend to subject him or her to the penalty claimed; the privilege would be taken to have been waived. Similarly, if such a respondent were to bind himself or herself before such a claim is brought or during the interlocutory stages of a proceeding upon it, to supply information without claiming the privilege, the privilege would be lost: see East India Co v Atkyns (1720) 1 Com 346 at 352; (1720) 1 Stra 168. [page 825] His Honour went on to discuss the binding nature of agreeing to orders being: That the consent of each party to these orders and directions constituted a contract cannot be doubted. There was involved the agreement that each party would submit to the orders and directions proposed and would consent to them being made and given by the Court. Consideration lay in the promise of each party to be bound. The Respondent did not place before me any evidence which suggested mistake or inadvertence on its part or the part of its legal advisers, or any other element which might lead to the conclusion that no contract existed. It is my view that the Respondent must be bound by the contract which it has made. In Smith v Granada Tavern; Dennington v Prescott; sub nom Smith v ACN 090444518 Pty Ltd (FLR) (2007) 208 FLR 455 at [96]–[118]; [2007] FMCA 263; BC200701804 (9 March 2007)], Burchardt FM spent some time discussing the concept of waiver. He noted that: Waiver is an imprecise term capable of describing different legal concepts, notably election and estoppel: at [96]; what is required for waiver in circumstances such as these is an intentional act on the part of a Respondent inconsistent with the privilege that is now claimed: at [107]; It is not necessary for a party to understand the effects of waiver for waiver to be held to have occurred. Indeed a number of cases show that the party found to have waived privilege … bitterly regretted their error: at [113]; *Editor’s note: Commentary on s 551 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister and J L Trew QC LLB (Syd) Barrister.

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[8-5680] Civil proceedings after criminal proceedings 552 A court must not make a pecuniary penalty order against a person for a contravention of a civil remedy provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention. COMMENTARY TO SECTION 552*

Derivation …. History …. Constitutional support …. Contravention — s 552 …. Multiple proceedings and prohibition of multiple penalties …. Court …. Civil remedy provision …. Pecuniary penalty order …. Person …. Convicted of an offence …. Substantially the same conduct ….

[8-5680.1] [8-5680.5] [8-5680.10] [8-5680.11] [8-5680.15] [8-5680.20] [8-5680.25] [8-5680.30] [8-5680.35] [8-5680.40] [8-5680.45]

[8-5680.1] Derivation Section 731 of the Workplace Relations Act 1996. [8-5680.5] History Section 552 is substantially the same as s 1317M of the Corporations Act 2001 (Cth). See Australian Securities and Investments Commission (ASIC) v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487; 245 ALR 29; [2007] FCA 1868; BC200710389 at [40] and following, where there is a summary of the legislative history of the Corporations Act provisions. That legislative history broadly distinguishes criminal penalties from civil penalties under the Corporations legislation. Criminal penalties were said to be a necessary means of [page 826] enforcing that legislation for conduct that involves fraud and dishonesty and is “genuinely criminal in nature”. On the other hand, civil penalties were to be available for breaches by directors where no criminality was involved. In R v Adler (2004) 48 ACSR 693; 22 ACLC 784; [2004] NSWSC 108; BC200400719 at [113], it was accepted that the civil causes of action and the criminal causes of action under the Corporations Act provisions referred to above have different purposes. The purpose of the

civil proceedings was to enforce the obligations of a director or officer of a corporation and to provide remedies for wrongs done against the corporation or its shareholders. The purpose of criminal proceedings was to protect the integrity of the sharemarket and to punish wrongs to potential purchasers of shares. Compare on appeal, Adler v DPP (Cth) (2004) 51 ACSR 1; 185 FLR 443; 22 ACLC 1460; [2004] NSWCCA 352; BC200406850 at [21], [44]–[46]. The Australian Law Reform Commission Report No 95, Principled Regulation: Federal Civil and Administrative Penalties in Australia 2002 made recommendations for the regulation of multiple proceedings and the imposition of multiple penalties for contraventions of civil remedy provisions and for criminal offences under Commonwealth legislation generally. Particular attention was given to simultaneous or sequential proceedings under the Corporations Act 2001 and the Trade Practices Act 1974 under provisions that allowed civil and criminal proceedings in relation to substantially the same conduct. The ALRC recommended that enforcement bodies be able to choose between civil and criminal penalties, but that the provisions that allow that be made explicit and clear, that there be certain bars to double punishment, and that there be restrictions on the use of evidence. Sections 731–5 of the Workplace Relations Act were included in the legislation by the Workplace Relations Amendment (WorkChoices) Act 2005 (No 153 of 2005). Sections 731–5 seem to have been included in the legislation to conform to Commonwealth statutory drafting policies. [8-5680.10] Constitutional support See [8–564.10]. [8-5680.11] Contravention — s 552 See [8-4960.11]. [8-5680.15] Multiple proceedings and prohibition of multiple penalties Sections 553–6 regulate multiple proceedings and the imposition of multiple penalties. The sections do not prohibit criminal proceedings in respect of the same conduct following the imposition of a pecuniary penalty order. Section 552 merely prohibits the imposition of another pecuniary penalty order in respect of the same conduct under a Commonwealth law. Proceedings for a pecuniary penalty order must be stayed if criminal proceedings commence or have already been commenced; no civil penalty proceedings may be taken against the person if convicted of an offence on the basis of the same conduct, although if not convicted, the proceedings for a civil penalty order may be resumed: ss 553–4. Section 554 permits proceedings for a criminal offence on the basis of the same conduct for which a penalty has been imposed in civil remedy proceedings. Further, the restrictions on evidence given in criminal proceedings are guarded against to some extent by s 555 in civil proceedings in respect of the same conduct. Section 554 does not preclude private civil claims being commenced. However, that does not prevent a court from staying common law or statutory civil claims either outright or beyond a certain pre-trial stage until related outstanding criminal proceedings are completed. Compare Guglielmin v Trescowthick (No 3) (2005) 220 ALR 535; [2005] FCA 139; BC200500558. In cases where a pecuniary penalty order has been obtained, the court in a subsequent prosecution may take into account the civil penalty in sentencing an offender: see s 16A Crimes Act 1914 (Cth). [8-5680.20] Court See s 546. [8-5680.25] Civil remedy provision See the definitions in ss 12 and s 539. [page 827] [8-5680.30] Pecuniary penalty order See s 546.

[8-5680.35] Person See s 2C of the Acts Interpretation Act 1901. [8-5680.40] Convicted of an offence Such an offence is criminal in nature. See also the ALRC Report referred to above at para 11.33. Offences imposed under the Fair Work Act are mainly in Ch 5 Div 9. The reference to offences probably includes offences under both Commonwealth and State laws. Compare s 556. [8-5680.45] Substantially the same conduct There is also a definition of “conduct” in the Criminal Code (s 4.1(2)). Section 552 extends the rule against double jeopardy in the criminal justice process to proceedings for pecuniary penalty order under a civil remedy provision where there has been an earlier conviction for an offence constituted by substantially the same conduct. The section does not bar a pecuniary penalty under a civil remedy provision where the person has been acquitted of a criminal offence: compare Rogers v R (1994) 181 CLR 251 at 273; 123 ALR 417; [1994] HCA 42; BC9404645; A v NSW (2007) 230 CLR 500; 233 ALR 584; [2007] HCA 10; BC200701675 at [57]. According to the ALRC Report referred to above (see paras 11.18–11.21), the requirement that there be “substantially the same conduct” is the same as the requirement for a successful plea in bar in criminal proceedings where a defendant has been convicted of an offence and then prosecuted for another. The Report referred to ss 3.1 and 4.1 of the Criminal Code which defined “conduct” as primarily relating to the physical elements of an offence (see [s 814.20] below). In Pearce v R (1998) 194 CLR 610; 156 ALR 684; 72 ALJR 1416; [1998] HCA 57; BC9804554 at [20]–[21], the majority of the High Court held that it was necessary to analyse and compare the elements of the two offences under consideration where a plea in bar was raised in criminal proceedings. The Report argued that “conduct” relates to the physical elements of the offence and the civil remedy provision with which it is compared. Whether s 552 confers protection against multiple penalties for “substantially the same conduct” will require analysis of, and comparison between, the physical elements of the offence or contravention. In Pearce v R, it was held at [24], [63] that the availability of a plea in bar is confined to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other. See also Island Maritime Ltd v Filipowski (2006) 226 CLR 328; 228 ALR 1; 80 ALJR 1168; [2006] HCA 30; BC200604253 at [26], [40]. In Pearce v R at [42] the majority of the High Court observed that the identification of a single act (element) as common to two offences may not always be straightforward. “It should, however, be emphasised that the enquiry is not to be attended by ‘excessive subtleties and refinements’. It should be approached as a matter of common sense not as a matter of semantics”. Compare ACI Operations Pty Ltd v Berri Ltd (2005) 15 VR 312; [2005] VSC 201; BC200503994 at [131]. *Editor’s note: Commentary to s 552 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

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[8-5700] Criminal proceedings during civil proceedings 553 (1) Proceedings for a pecuniary penalty order against a person for a contravention of a civil remedy provision are stayed if: (a) criminal proceedings are commenced or have already commenced

against the person for an offence; and (b) the offence is constituted by conduct that is substantially the same as the conduct in relation to which the order would be made. (2) The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed. [page 828] COMMENTARY TO SECTION 553*

Derivation …. History …. Constitutional support …. Contravention — s 553(1) …. Civil remedy provisions …. Criminal proceedings — s 553(1)(a) …. Multiple proceedings and prohibition of multiple penalties …. Proceedings …. Pecuniary penalty order …. Person …. Stay of proceedings …. Outline of section …. Substantially the same conduct ….

[8-5700.1] [8-5700.5] [8-5700.10] [8-5700.11] [8-5700.15] [8-5700.15.1] [8-5700.20] [8-5700.25] [8-5700.30] [8-5700.35] [8-5700.40] [8-5700.40.1] [8-5700.45]

[8-5700.1] Derivation Section 732 of the Workplace Relations Act 1996. [8-5700.5] History Section 553 is substantially the same as s 1317N of the Corporations Act 2001 (Cth). [8-5700.10] Constitutional support See [8-5640.10] above. [8-5700.11] Contravention — s 553(1) See [8-4960.11]. [8-5700.15] Civil remedy provisions See the definitions in ss 12 and 539. As to whether a court should make a declaration or injunction where criminal proceedings are contemplated see Australian Securities and Investments Commission (ASIC) v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487; 245 ALR 29; [2007] FCA 1868; BC200710389 where Finkelstein J held at [58] that the court

should be wary of granting relief, including the grant of a declaration or an injunction, if the case is likely to end up before a criminal court. Ordinarily, a civil court should not intervene in those circumstances unless its failure to do so will result in irreparable injury. [8-5700.15.1] Criminal proceedings — s 553(1)(a) In Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate (2014) 225 FCR 210; [2014] FCAFC 101; BC201406561, the Full Court held at [31] that: The phrase “criminal proceedings … for an offence” in s 553(1) is not defined. That is not surprising. The range of crimes and punishments for crime has expanded so that a single series of events can give rise to several different offences to which different penalties can attach … Moreover, the FWA is a Commonwealth act. Potential criminal proceedings would include offences in contravention of one or more of numerous State and Commonwealth laws and further or alternatively, the common law. The manner in which those proceedings are filed, prosecuted and disposed of varies between the Commonwealth and the States and between the States. In understanding what is meant by “criminal proceedings … for an offence” in s 553, it cannot and does not matter what process starts the proceedings … Those matters are not exhaustive but are indications of the wider proposition made by the High Court that there is no bright line between civil and criminal… When read together subs (1) and (2) contemplate a first instance proceeding (that is, a trial) the outcome of which will either be a conviction or an acquittal. Once such proceedings are commenced by the filing of charges the proceedings under the FW Act for a pecuniary penalty are stayed and remain stayed until the criminal proceedings are concluded. The section does not [page 829] attempt to deal with the impact of any appeal from a conviction on the entitlement of the applicant to pursue a claim for a pecuniary penalty for contravention of the FW Act: Fair Work Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 770; BC201405711 at [26]. [Section] 553 was not intended to operate in cases where contempt of court is alleged. It must be able to be determined with certainty that the respondent who claims the benefit of s 553 in proceedings for a pecuniary penalty under the FW Act is, contemporaneously, subject to criminal charges in a criminal proceeding. As the authorities make clear, whilst proceedings for civil and criminal contempts share many common features with “ordinary” criminal proceedings, they maintain differences which set them apart from the mainstream. Given the ambiguity which is inherent in the characterisation of proceedings for contempt “criminal proceeding” should not be construed as applying to a proceeding for such a sui generis “offence”: Fair Work Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 770; BC201405711 at [38]. [8-5700.20] Multiple proceedings and prohibition of multiple penalties See [8-5680.15] above. [8-5700.25] Proceedings See [8-5660.25]. There is some ambiguity as to the meaning of proceedings in this content. Justice Tracey interpreted the statutory provision in Fair Work Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 770; BC201405711 at [20]–[22]: It is first necessary to determine what is comprehended by the phrase the “[p]roceedings for pecuniary penalty order.” It is such proceedings which are stayed if the criteria prescribed by s 553(1) are satisfied. One possibility is that the proceedings being referred to are any proceedings in

which pecuniary penalty orders are sought as one form of relief. This would mean that s 553(1) operated to stay the whole of any proceeding in which a pecuniary penalty is sought. Were such a construction to be adopted it would inevitably lead to multiple proceedings in many cases. There would be one proceeding in which the only relief claimed was the imposition of a pecuniary penalty and a second proceeding, based on the same factual foundation, claiming the other forms of relief sought by the moving party. Such duplicity would not be conducive to the cost effective and efficient conduct of litigation. The alternative construction would stay the proceeding to the extent that a pecuniary penalty is being sought if the requirements of paragraphs (a) and (b) are satisfied. I regard this as the preferable construction. It is the construction which the respondents implicitly adopt in their written submissions and it accords with the approach taken by Jessup J to the construction of s 312 of the Fair Work (Registered Organisations) Act 2009 (Cth), a provision in substantially the same terms as s 553, in General Manager of the Fair Work Commission v Thomson [2013] FCA 380; BC201301983 at [7]–[11]. It avoids the undesirable consequences of a broader reading and is supported by the statutory context and the purpose served by the section. Paragraph (a) refers to “an offence” and paragraph (b) to “the offence”. In doing so they direct attention to a particular offence or offences in respect of which the criminal proceedings are brought. Section 553(2) fastens on the same offence or offences. If, following trial, the accused respondent is not convicted of the offence the proceedings under the FW Act may be resumed. If the accused respondent is convicted of the particular offence or offences the proceedings for a pecuniary penalty order stand dismissed. The structure of the section thus suggests the need for each alleged offence to be aligned with an identifiable contravention so that a determination of substantial correspondence of conduct can be made. In this way the necessary protection can be accorded to the accused respondent whilst preserving the right of the moving party in the FW Act proceeding to pursue pecuniary penalties and other remedies to which he or she asserts an entitlement under that Act. [page 830] The construction which I prefer gives rise to a further question. It accepts that, if an applicant seeks to rely on substantially the same conduct which has given rise to criminal proceedings for the purpose of obtaining a pecuniary penalty, the proceeding is, to that extent, stayed. The secondary question is whether that conduct may be relied on in the same proceeding, brought under the FW Act, to the extent that it is relied on for the purpose of obtaining another remedy or remedies. This question should be answered in the negative. In Thomson the General Manager sought compensation orders as well as pecuniary penalty orders in respect of the respondent’s impugned conduct. Jessup J, nonetheless, found that the proceeding was stayed to the extent that any relief was sought for contraventions constituted by the conduct which was common to the criminal and civil proceedings. It was able to continue in order to deal with alleged contraventions which were constituted by conduct which was not being relied on in the associated criminal proceeding. Note that coercive investigations by an investigative statutory body may constitute proceedings: see generally Dalton v NSW Crime Commission (2006) 227 CLR 490; 226 ALR 570; 80 ALJR 860; [2006] HCA 17; BC200603094. [8-5700.30] Pecuniary penalty order See [8-5680.30] above. [8-5700.35] Person See s 2C of the Acts Interpretation Act 1901. [8-5700.40] Stay of proceedings The section reverses an applicant’s right to have proceedings progress

in the normal way. The stay operates until criminal proceedings concerning the same conduct are finalised. Compare Guglielmin v Trescowthick (No 3) (2005) 220 ALR 535; [2005] FCA 139; BC200500558. If a respondent is not convicted the civil remedy proceedings may be resumed. The stay operates irrespective of the kind of order sought under a civil remedy provision: compare Australian Securities and Investments Commission (ASIC) v Warrenmang Ltd (2007) 63 ACSR 623; 25 ACLC 1589; [2007] FCA 973; BC200705499 at [35]. See also [20-5980.40]. [8-5700.40.1] Outline of section Section 553 does not sit alone. It forms part of Div 4 of the FWA which includes sections that appear in numerous Commonwealth Acts directed at a particular objective — ensuring that the rule or principle against double jeopardy is not infringed: for example ss 552–555 of the FWA. Those provisions were first inserted into the predecessor to the FWA by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), and became effective in March 2006. The provisions were considered necessary because of a debate about whether a civil penalty could be regarded as “punishment” for the purposes of double jeopardy. At that time, absent statutory provisions of this kind, Australian Courts had not extended common law double jeopardy protection to civil penalties: Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate (2014) 225 FCR 210; [2014] FCAFC 101; BC201406561 at [32]. If the accused respondent is convicted of the particular offence or offences the proceedings for a pecuniary penalty order stand dismissed. The structure of the section thus suggests the need for each alleged offence to be aligned with an identifiable contravention so that a determination of substantial correspondence of conduct can be made. In this way the necessary protection can be accorded to the accused respondent whilst preserving the right of the moving party in the FW Act proceeding to pursue pecuniary penalties and other remedies to which he or she asserts an entitlement under that Act: Fair Work Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 770; BC201405711 at [21]. [8-5700.45] Substantially the same conduct See [8-5680.45] above. *Editor’s note: Commentary on s 553 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ [page 831]

[8-5720] Criminal proceedings after civil proceedings 554 Criminal proceedings may be commenced against a person for conduct that is substantially the same as conduct constituting a contravention of a civil remedy provision regardless of whether an order has been made against the person under Division 2. COMMENTARY TO SECTION 554*

Derivation …. History …. Constitutional support …. Civil remedy provisions — s 554 …. Commence — s 554 …. Contravention — s 554 …. Multiple proceedings and prohibition of multiple penalties …. Person — s 554 …. Pecuniary penalty order — s 554 …. Proceedings — s 554 …. Substantially the same conduct — s 554 ….

[8-5720.1] [8-5720.5] [8-5720.10] [8-5720.15] [8-5720.20] [8-5720.21] [8-5720.25] [8-5720.30] [8-5720.35] [8-5720.40] [8-5720.45]

[8-5720.1] Derivation Section 733 of the Workplace Relations Act 1996. [8-5720.5] History Section 554 is substantially the same as section 1317P of the Corporations Act 2001 (Cth). [8-5720.10] Constitutional support In Adler v DPP (2004) 51 ACSR 1; 185 FLR 443; 149 A Crim R 378; 22 ACLC 1460; [2004] NSWCCA 352; BC200406850 at [24] and [54]–[56] it was argued, but not decided, that s 1317P of the Corporations Act 2001 (from which s 733 is derived) was unconstitutional if it prevented a stay of proceedings in a case where criminal proceedings commenced after civil penalty proceedings were an abuse of process. [8-5720.15] Civil remedy provisions — s 554 See [8-5700.15]. [8-5720.20] Commence — s 554 The use of the word commence is a curious and unexplained alteration to s 733. That section used the arguably wider word start which is still used elsewhere in the Act. In Usage and Abusage, Third Edition, Partridge described commence as a wholly unnecessary word whose use is to be discouraged. [8-5720.21] Contravention — s 554 See [8-4960.11]. [8-5720.25] Multiple proceedings and prohibition of multiple penalties See [8-5680.15] above. [8-5720.30] Person — s 554 See [8-5700.35]. [8-5720.35] Pecuniary penalty order — s 554 See [8-5680.30] above. [8-5720.40] Proceedings — s 554 See [8-5660.25]. Note that coercive investigations by an investigative statutory body may constitute proceedings: see generally Dalton v NSW Crime Commission (2006) 227 CLR 490; 226 ALR 570; 80 ALJR 860; [2006] HCA 17; BC200603094. [8-5720.45] Substantially the same conduct — s 554 See [8-5680.45] above.

*Editor’s note: Commentary on s 554 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

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[page 832]

[8-5740] Evidence given in proceedings for pecuniary penalty not admissible in criminal proceedings 555 (1) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if: (a) the individual previously gave the information or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of a civil remedy provision (whether or not the order was made); and (b) the conduct alleged to constitute the offence is substantially the same as the conduct in relation to which the order was sought. (2) However, this does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order. COMMENTARY TO SECTION 555*

Derivation …. History …. Civil remedy provision — s 555(1)(a) …. Contravention — s 554 …. Criminal proceedings — s 555(1), (2) …. Individual — s 555(1), (a), (2) …. Multiple proceedings and prohibition of multiple penalties …. Pecuniary penalty order — s 555(2) …. Prohibition on use of evidence in criminal proceedings …. Substantially the same conduct — s 555(1)(b) ….

[8-5740.1] [8-5740.5] [8-5740.10] [8-5740.11] [8-5740.15] [8-5740.20] [8-5740.25] [8-5740.30] [8-5740.35] [8-5740.40]

[8-5740.1] Derivation Section 732 of the Workplace Relations Act 1996. [8-5740.5] History Section 732 was in substantially the same as s 1317Q of the Corporations Act 2001 (Cth). [8-5740.10] Civil remedy provision — s 555(1)(a) See [8-5700.15]. [8-5740.11] Contravention — s 554 See [8-4960.11]. [8-5740.15] Criminal proceedings — s 555(1), (2) The dichotomy between civil and criminal proceedings is, at best, unstable. It seeks to divide the litigious world into only two parts when, in truth, that world is more complex and varied than such a classification acknowledges. Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; 201 ALR 1; 77 ALJR 1629; [2003] HCA 49; BC200304983. See also Rich v ASIC (2004) 220 CLR 129; 209 ALR 271; 78 ALJR 1354; 22 ACLC 1198; [2004] HCA 42 at [32]–[33], [95]. [8-5740.20] Individual — s 555(1), (a), (2) See the definition in s 22(1)(aa) of the Acts Interpretation Act 2001. Only a natural person can take advantage of a protection given by the section. In Australian Securities and Investments Commission (ASIC) v Warrenmang Ltd (2007) 63 ACSR 623; 25 ACLC 1589; [2007] FCA 973; BC200705499 at [38] it was recognised that s 1317Q of the Corporations Act 2001 (from which s 555 is derived) provides a limited self-incrimination protection. [page 833] [8-5740.25] Multiple proceedings and prohibition of multiple penalties See [8-5680.15] above. [8-5740.30] Pecuniary penalty order — s 555(2) See [8-5680.30] above. [8-5740.35] Prohibition on use of evidence in criminal proceedings The ALRC Report No 95, Principled Regulation Federal Civil and Administrative Penalties in Australia 2002, recognised that allowing evidence given in one proceeding to be used in subsequent proceedings in relation to the same conduct raises substantive issues of fairness, including the potential increase in the likelihood of double punishment and vexation caused by multiple prosecutions. Section 555 is intended to prevent evidence, documents and information obtained by discovery in civil proceedings for a pecuniary penalty against an individual by being used in subsequent criminal proceedings. R v Adler (2004) 48 ACSR 693; 22 ACLC 784; [2004] NSWSC 108; BC200400719 at [123] recognised that the Corporations Act provision, from which s 555 is derived, addressed that issue. [8-5740.40] Substantially the same conduct — s 555(1)(b) See [8-5860.45] above. *Editor’s note: Commentary on s 555 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[8-5760]

Civil double jeopardy

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

provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct. Note: A court may make other orders, such as an order for compensation, in relation to particular conduct even if the court has made a pecuniary penalty order in relation to that conduct (see subsection 546(5)). COMMENTARY TO SECTION 556*

Derivation — s 556 …. Civil remedy provision — s 556 …. Pecuniary penalty order — s 556, Note …. Person …. Outline of section ….

[8-5760.1] [8-5760.5] [8-5760.10] [8-5760.15] [8-5760.20]

[8-5760.1] Derivation — s 556 Section 735 Workplace Relations Act. [8-5760.5] Civil remedy provision — s 556 See ss 12 and 539. [8-5760.10] Pecuniary penalty order — s 556, Note See s 546. [8-5760.15] Person See s 2C of the Acts Interpretation Act 1901. [8-5760.20] Outline of section The Explanatory Memorandum to the Workplace Relations Act states that the predecessor to this proposed section would apply the double jeopardy principle to civil remedy provisions under the WR Act. Under this proposed section, a person would not be liable to pay a pecuniary penalty under another law of the Commonwealth relating to conduct that was substantially the same as that for which they have already been ordered to pay a pecuniary penalty under a civil remedy provision: EM para 2415. [page 834] In Cozadinos v CFMEU (2009) 183 IR 406; [2009] FMCA 272; BC200904961 at [4], FM Burchardt accepted a proposition that the section meant that the court had no power to impose penalties for the same conduct under both the Workplace Relations Act and the Building and Construction Industry Improvement Act 2005. He went on to reject a proposition that Workplace Relations Act s 735 meant that in any circumstance where there is a contravention of the WR Act giving rise to a civil penalty, then all other legislation is necessarily excluded: at [12]–[16]. *Editor’s note: Commentary on s 556 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[8-5780]

Course of conduct

557 (1) For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if: (a) the contraventions are committed by the same person; and (b) the contraventions arose out of a course of conduct by the person. (2) The civil remedy provisions are the following: (a) subsection 44(1) (which deals with contraventions of the National Employment Standards); (b) section 45 (which deals with contraventions of modern awards); (c) section 50 (which deals with contraventions of enterprise agreements); (d) section 280 (which deals with contraventions of workplace determinations); (e) section 293 (which deals with contraventions of national minimum wage orders); (f) section 305 (which deals with contraventions of equal remuneration orders); (g) subsection 323(1) (which deals with methods and frequency of payment); (h) subsection 323(3) (which deals with methods of payment specified in modern awards or enterprise agreements); (i) subsection 325(1) (which deals with unreasonable requirements to spend amounts); (j) subsection 417(1) (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.); (k) subsection 421(1) (which deals with contraventions of orders in relation to industrial action); (l) section 434 (which deals with contraventions of Ministerial directions in relation to industrial action); (m) subsection 530(4) (which deals with notifying Centrelink of certain proposed dismissals); (n) subsections 535(1) and (2) (which deal with employer obligations in relation to employee records);

(o) subsections 536(1) and (2) (which deal with employer obligations in relation to pay slips); (p) subsection 745(1) (which deals with contraventions of the extended parental leave provisions); (q) section 760 (which deals with contraventions of the extended notice of termination provisions); (r) subsection 785(4) (which deals with notifying Centrelink of certain proposed terminations); (s) any other civil remedy provisions prescribed by the regulations. [page 835] (3) Subsection (1) does not apply to a contravention of a civil remedy provision that is committed by a person after a court has imposed a pecuniary penalty on the person for an earlier contravention of the provision. COMMENTARY TO SECTION 557*

Derivation …. Civil remedy provision — s 557(1), (2), (s), (3) …. Contravention — s 557(1), (a), (b), (2)(a),(b), (c), (d), (e), (f), (k), (l), (p), (q), (3) …. Course of conduct …. Outline of Section ….

[8-5780.1] [8-5780.5] [8-5780.6] [8-5780.10] [8-5780.15]

[8-5780.1] Derivation Section 557(2) is loosely derived from s 719(1) and (2) of the Workplace Relations Act 1996. Section 557(3) is derived from s 719(3) of the Workplace Relations Act 1996. [8-5780.5] Civil remedy provision — s 557(1), (2), (s), (3) See [8-5680.25]. [8-5780.6] Contravention — s 557(1), (a), (b), (2)(a),(b), (c), (d), (e), (f), (k), (l), (p), (q), (3) See [84960.11]. [8-5780.10] Course of conduct To constitute a course of conduct, the conduct must be protracted or engaged in on more than one occasion and committed with a continuity of purpose: Thomas v Campbell (2003) 9 VR 136; [2003] VSC 460; BC200307103 at [42]. [8-5780.15] Outline of Section The Full Federal Court have said that the intention of legislature in inserting the predecessor provisions was to ensure that only one penalty could be imposed in respect of any number of breaches by the one respondent where those breaches arose out of a course of conduct

by that respondent: Quinn v Martin (1977) 16 ALR 141 at 145; 31 FLR 25 at [31]. In Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; BC201003161 a majority of the Full Federal Court held at [39] and [41] that the principle recognises that where there is a relationship between the legal and factual elements of two or more offences for which an offender has been charged, the Court must ensure that the offender is not punished twice for the same conduct. The concept of a course of conduct is subject to some ambiguity. As Mills & Sorrell have stated, separate breaches may arise from the same course of conduct in a number of quite different situations: Mills & Sorrell Federal Industrial Law Fifth Edition at [559]. In General Manager of the Fair Work Commission v Thomson (No 4) [2015] FCA 1433; BC201512310 at [9]–[11], Jessup J outlined the possible approaches: One approach, it seems, has been to impose a penalty in respect of what may appear to be the most serious contravention, and to impose no penalty, or a much reduced penalty, in respect of other contraventions. There is a view, which attracted itself to the Full Court in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331, 350-351 at [42] by analogy with the sentencing principles laid out in Pearce v R (1998) 194 CLR 610, 623-624; 156 ALR 684; [1998] HCA 57; BC9804554 at [45] that this approach would involve the court turning its back on its statutory obligation to follow a finding of contravention with the determination of what was an appropriate penalty for that contravention, considered as an entity in its own right (save in a situation where the contravenor would thereby be “doubly punished … for a single act”: Pearce at 624 [49])… [page 836] Another approach which is occasionally seen has been to impose a single penalty in respect of a duality, or multiplicity, of contraventions. That appears to have been the approach taken by the magistrate in the proceeding from which the appeal which led to the judgment of the Full Court in Australian Opthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; 246 ALR 35; [2008] FCAFC 8; BC200800758 was brought. Although their Honours held that proper effect had not been given to the totality principle in that case, they did not, it seems, interfere with the omnibus approach to the determination of penalties which had been taken by the magistrate. In my respectful view, the difficulty with such an approach is that, by taking it, the court would be failing to engage directly and specifically with the consequences of the contravention of each statutory norm. A third approach, which I do not believe has hitherto been taken but which would avoid the conceptual issues to which I have referred, is suggested by the analogy of concurrent sentences. Under this approach, a penalty would be imposed in respect of each contravention considered as an entity in its own right, then a further order would be made that, upon payment of one of the penalties in each group within a time limited by the court, the operation of the order imposing penalties in respect of the other contraventions in the same group be permanently stayed. That is the approach which I propose to take in the present case. His Honour dealt separately with the question of totality. His Honour held at [38] that: The question now arises whether imposition of the penalties at which I have arrived would offend the totality principle in the sense that they would be disproportionately punitive having regard to the relationships between the various instances of contravening conduct for which those penalties are to be imposed. As I see it, there are two matters which need to be considered in this compartment of the case. The first is whether the total of the penalties imposed in respect of separate contraventions, as between which there is some relation in the way of context, purpose or the like, is disproportionate to the seriousness of the conduct involved in those contraventions, considered as a whole. The second is

whether the penalties imposed on the respondent in this proceeding would involve the imposition of a crushing burden on the respondent out of all proportion to his overall culpability. Some of the more specific difficulties were illustrated earlier in Gibbs v City of Altona (1992) 37 FCR 216 at 223; 42 IR 255 at 261; BC9203638 where Gray J held that breaches of separate terms of an industrial instrument were not subject to course of conduct principles. He stated that “if such a party has pursued a course of conduct which gives rise to breaches of several different obligations, there is no reason why it should be treated as immune in respect of its breach of one obligation, merely because it has acted in breach of another”. The meaning of “term” should be given a meaning of substance rather than of form: Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216 at 223; 42 IR 255 at 261; BC9203638 http://www.lexisnexis.com/au/legal/search/enhRunRemoteLink.do? ersKey=23_T21998976078&backKey=20_T21998976095&homeCsi=344552&A=0.43298794734057 39&urlEnc=ISO-8859-1&&dpsi=0018&remotekey1=REFPTID&refpt=36730&service=DOCID&origdpsi=0HJ5: adopted in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080; BC200705853 at [11]; http://www.lexisnexis.com/au/legal/search/enhRunRemoteLink.do? ersKey=23_T21998976078&backKey=20_T21998976095&homeCsi=344552&A=0.4329879473405739&urlEnc=ISO8859-1&&dpsi=0018&remoteKey=REFPTID&refpt=440459&service=DOC-ID&origdpsi=0HJ5. The applicability of this proposition has been challenged given the reformulation of the section. The section no long-er refers to “breaches of a term of an award” but to “contraventions of a civil remedy provision”: see [2189] and [2190] of the Explanatory Memorandum to the Fair Work Bill. [page 837] The point was however raised and rejected in Fair Work Ombudsman v Rocky Holdings Pty Ltd (2013) 279 FLR 412; [2013] FCCA 1549; BC201313547 at [19]–[22]. Her Honour Emmett J did accept at [23] that common elements should be taken into account to ensure that the respondents are not punished more for the same or substantially similar conduct. Her Honour’s decision was up-held in Rocky Holdings Pty Ltd v Fair Work Ombudsman, (2014) 221 FCR 153; [2014] FCAFC 62; BC201403870. On the other hand, Cameron J in Scotto v Scala Bros Pty Ltd & Anor (No 2) [2015] FCCA 2167; BC201507802 held that a course of conduct could transcend legislative regimes. He held at [113] that: Although some of the contraventions which have been found to have occurred persisted from one legislative regime to another and thus could attract penalties under more than one statute, it would not be appropriate to impose penalties other than on the basis that many were continuing courses of conduct… It is a tool of analysis which the Court is not compelled to utilise: Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; BC201003161 (18 May 2010) at [41]. A party seeking to rely upon the section must lead clear and unequivocal evidence: Australasian Meat Industry Employees’ Union v Meneling Station Pty Ltd (1987) 18 FCR 51; 77 ALR 57; 16 IR 245 at 257; [1987] FCA 2. An intriguing question remains as to whether only the civil penalties enumerated in this section are subject to course of conduct principles. *Editors’ note: Commentary on s 557 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

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[8-5800] notices

Regulations dealing with infringement

558 (1) The regulations may provide for a person who is alleged to have contravened a civil remedy provision to pay a penalty to the Commonwealth as an alternative to civil proceedings. (2) The penalty must not exceed one-tenth of the maximum penalty that a court could have ordered the person to pay under section 546 if the court was satisfied that the person had contravened that provision. [subs (2) am Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009] COMMENTARY TO SECTION 558

Derivation …. Civil remedy provision — s 558(1) …. Contravened — s 558(1), (2) …. Maximum penalty — s 558(2) …. Regulations — s 558(1) …. Outline of section ….

[8-5800.1] [8-5800.5] [8-5800.6] [8-5800.10] [8-5800.15] [8-5800.20]

[8-5800.1] Derivation The section is new. [8-5800.5] Civil remedy provision — s 558(1) See [8-5680.25]. [8-5800.6] Contravened — s 558(1), (2) See [8-4960.11]. [8-5800.10] Maximum penalty — s 558(2) See s 539(2) and s 546. [8-5800.15] Regulations — s 558(1) See Ch 4 Pt 4.1 Div 4. [8-5800.20] Outline of section An infringement notice scheme provides another option for inspectors to deal with non-compliance rather than court proceedings to enforce a contravention: “[T]he use of an infringement notice scheme is appropriate where the fault element does not have [page 838] to be proven — ie, where it is only necessary to show that an act or omission occurred but where a mental element of, for example, intent or recklessness does not need to be established”: Explanatory Memorandum to the Fair Work Bill at 2194.

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DIVISION 5 — UNCLAIMED MONEY

[8-5990]

Unclaimed money

559 Payment to the Commonwealth (1) An employer may pay an amount to the Commonwealth if: (a) the employer was required to pay the amount to an employee under this Act or a fair work instrument; and (b) the employee has left the employment of the employer without having been paid the amount; and (c) the employer is unable to pay the amount to the employee because the employer does not know the employee’s whereabouts. Discharge of employer (2) Payment of the amount to the Commonwealth is a sufficient discharge to the employer, as against the employee, for the amount paid. Payment where money later claimed (3) The Fair Work Ombudsman, on behalf of the Commonwealth, must pay an amount to a person if: (a) the amount has been paid to the Commonwealth under this section; and (b) the person has made a claim for the amount in accordance with the form prescribed by the regulations; and (c) the Fair Work Ombudsman is satisfied that the person is entitled to the amount. (3A) Interest If: (a) an amount is paid to a person under subsection (3) at a particular time; and (b) the amount is at least $100; and (c) the amount is attributable to an amount that was paid to the Commonwealth under subsection (1) more than 6 months before that time; the Fair Work Ombudsman, on behalf of the Commonwealth, must also pay to the person the amount of interest (if any) worked out in accordance with an instrument under subsection (3B).

[subs (3A) insrt Act 156 of 2015 s 3 and Sch 1 item 79, opn 1 Jan 2016]

(3B) The Minister may make an instrument for the purposes of subsection (3A). [subs (3B) insrt Act 156 of 2015 s 3 and Sch 1 item 79, opn 1 Jan 2016]

(3C) An instrument under subsection (3B) may involve different rates of interest for different periods over which the interest accrues. For this purpose, rate includes a nil rate. [subs (3C) insrt Act 156 of 2015 s 3 and Sch 1 item 79, opn 1 Jan 2016]

(3D) An instrument made under subsection (3B) is a legislative instrument. [subs (3D) insrt Act 156 of 2015 s 3 and Sch 1 item 79, opn 1 Jan 2016]

Appropriation of Consolidated Revenue Fund (4) The Consolidated Revenue Fund is appropriated for the purposes of subsection (3). [subs (4) am Act 156 of 2015 s 3 and Sch 1 item 80, opn 1 Jan 2016]

[page 839] COMMENTARY TO SECTION 559*

Derivation …. Employee — s 559(1)(a), (b), (c), (2) …. Employer — s 559(1), (a), (b), (c), (2) …. Fair work instrument — s 12(1)(a) …. Outline of section ….

[8-5990.1] [8-5990.5] [8-5990.10] [8-5990.15] [8-5990.20]

[8-5990.1] Derivation The section is new but is loosely derived from s 726 of the Workplace Relations Act. [8-5990.5] Employee — s 559(1)(a), (b), (c), (2) See s 538. [8-5990.10] Employer — s 559(1), (a), (b), (c), (2) See s 538. [8-5990.15] Fair work instrument — s 12(1)(a) See s 12. [8-5990.20] Outline of section The Explanatory Memorandum to the Fair Work Bill explains that the predecessor provision in the Workplace Relations Act required the Commonwealth to perpetually hold such money in trust and to perform all reporting obligations on these amounts indefinitely: at para 2197. The section now makes such unclaimed monies the property of the Commonwealth: at para 2198.

*Editor’s note: Commentary on s 559 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

PART 4-2 — JURISDICTION AND POWERS OF COURTS DIVISION 1 — INTRODUCTION

[8-6230]

Guide to this Part

560 This Part is about the jurisdiction and powers of the courts in relation to matters arising under this Act. Divisions 2 and 3 confer jurisdiction on the Federal Court and the Federal Circuit Court. That jurisdiction is generally required to be exercised in the Fair Work Divisions of those courts. Division 4 deals with intervention, costs, limitation on imprisonment, and regulations, in relation to proceedings in the Federal Court, the Federal Circuit Court and, in some cases, a court of a State or Territory. [Editor’s note: Section 560 of this legislation is reproduced in this format in line with the official version.] [s 560 am Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013]

[8-6250]

Meanings of employee and employer

561 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). [s 561 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

[page 840] COMMENTARY TO SECTION 561*

Derivation …. Employee — s 561 …. Employer — s 561 …. Outline of Section ….

[8-6250.1] [8-6250.5] [8-6250.10] [8-6250.15]

[8-6250.1] Derivation The section is new. [8-6250.5] Employee — s 561 See ss 12, 15(1), 30E(1) and 30P(1). [8-6250.10] Employer — s 561 See ss 12, 15(2), 30E(2) and 30P(2). [8-6250.15] Outline of Section This section is in the same terms as s 538. See the commentary for the outline of that section. *Editor’s note: Commentary on Section 561 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

DIVISION 2 — JURISDICTION AND POWERS OF THE FEDERAL COURT

[8-6440] Court

Conferring jurisdiction on the Federal

562 Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act. COMMENTARY TO SECTION 562*

Derivation …. Arising under this Act — s 562 …. Federal Court — s 562 …. This Act — s 562 …. Outline of section ….

[8-6440.01] [8-6440.05] [8-6440.10] [8-6440.15] [8-6440.20]

[8-6440.01] Derivation The section is new. [8-6440.05] Arising under this Act — s 562 See commentary to Independent Contractors Act at [8130.25]. [8-6440.10] Federal Court — s 562 See s 12. [8-6440.15] This Act — s 562 See s 12. [8-6440.20] Outline of section As the Australian Law Reform Commission has outlined, the Federal Court of Australia Act 1976 (Cth) (FCAA) does not completely define the jurisdiction of the Federal Court. Section 19(1) FCAA provides that “[t]he Court has such original jurisdiction as is vested in it by laws made by the Parliament, being jurisdiction in respect of matters arising under laws made by the Parliament.” Accordingly, it is necessary to look to other provisions in

[page 841] federal legislation to find the ambit of the Federal Court’s original jurisdiction: para 2.123 of ALRC, Discussion Paper 64: Review of the Judiciary Act 1903. As many as 149 Acts confer such jurisdiction: ibid at 2.21. The Explanatory Memorandum to the Fair Work Bill states that the jurisdiction conferred on the Federal Court by the Bill is in addition to (and not intended to derogate from) the jurisdiction conferred on the Federal Court of Australia by s 39B of the Judiciary Act 1903. This includes jurisdiction in any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth (subs 39B(1)). The Bill is also not intended to limit the Federal Court’s jurisdiction to hear a case stated or question of law reserved to it by a single judge under subs 25(6) of the FCAA: at paras 2208–2210. *Editor’s note Commentary to s 562 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[8-6460] Exercising jurisdiction in the Fair Work Division of the Federal Court 563 The jurisdiction conferred on the Federal Court under section 562 is to be exercised in the Fair Work Division of the Federal Court if: (a) an application is made to the Federal Court under this Act; or (b) a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act; or (c) a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or (d) an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or (e) a prosecution is instituted in the Federal Court under this Act; or (f) an appeal is instituted in the Federal Court from a judgment of the Federal Circuit Court or a court of a State or Territory in a matter arising under this Act; or (g) proceedings in relation to a matter arising under this Act are transferred to the Federal Court from the Federal Circuit Court; or (h) the Federal Circuit Court or a court of a State or Territory states a case or reserves a question for the consideration of the Federal Court in a matter arising under this Act; or

(i) (j)

the President refers, under section 608 of this Act, a question of law to the Federal Court; or the High Court remits a matter arising under this Act to the Federal Court.

[s 563 am Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013] COMMENTARY TO SECTION 563*

Derivation …. History …. An application made under this Act — s 563(a) …. Appeals from State and Territory courts — s 563(1)(f) …. Declaration — s 563(c) …. Entirely hypothetical declarations …. Recording the result …. Bad precedent ….

[8-6460.01] [8-6460.05] [8-6460.10] [8-6460.15] [8-6460.20] [8-6460.25] [8-6460.30] [8-6460.35] [page 842]

Questions of law referred to the court — s 563(i) …. Remittal — s 563(j) …. Remittal — procedure …. Court’s power to review exercise of power …. Transfer to the Federal Court — s 653(g) …. Outline of Section ….

[8-6460.40] [8-6460.45] [8-6460.50] [8-6460.55] [8-6460.60] [8-6460.65]

[8-6460.01] Derivation The section is new. It has some similarities with s 847 of the Workplace Relations Act 1996. [8-6460.05] History From the enactment of the Commonwealth Conciliation and Arbitration Act 1904, the Commonwealth Court of Conciliation and Arbitration exercised both arbitral power and judicial power, but that was held to be impermissible by R v Kirby; Ex parte Boilermakers’ Society of Aust (Boilermakers’ case) (1956) 94 CLR 254; 29 ALJR 658; (1956) ALR 163; BC5600120. As a consequence of that decision, two bodies were then established. The first was the Commonwealth Conciliation and Arbitration Commission, whose jurisdiction was confined to the settlement of industrial disputes by conciliation or arbitration. The other body established in 1956 was the Commonwealth Industrial Court, whose function was to exercise the judicial power of the Commonwealth conferred by Ch III of the Constitution. That court’s name was changed in 1973 and it became known as the Australian Industrial Court. Its jurisdiction was conferred by s 104 of the Conciliation and Arbitration Act 1904. When the Federal Court was established in 1977, the

jurisdiction of the Australian Industrial Court was transferred to the new court and in 1993 the Federal Court’s jurisdiction under the Industrial Relations Act 1988 was transferred to the Industrial Relations Court of Australia. The Workplace Relations and Other Legislation Amendment Act 1996 (No 60 of 1996) transferred the jurisdiction formerly exercised by the Industrial Relations Court of Australia to the Federal Court. The Industrial Relations Court had been constituted by the Industrial Relations Reform Act 1993. The Fair Work Act provided a further change being the creation of a Fair Work Division within the Federal Court and Federal Magistrate’s Court. [8-6460.10] An application made under this Act — s 563(a) An example is an action for an order in relation to contraventions of civil penalties under s 539. [8-6460.15] Appeals from State and Territory courts — s 563(1)(f) An example is an appeal against a magistrate exercising jurisdiction under s 539. [8-6460.20] Declaration — s 563(c) “The remedy of a declaration has its origins in the Court of Chancery … It may now be considered to have become a statutory, rather than an equitable, remedy, because it is statutory provisions, such as s 21 of the Federal Court Act, that confer on superior Courts the power to grant the remedy”: Australian Competition and Consumer Commission (ACCC) v Francis, (2004) 142 FCR 1; (2004) ATPR (Digest) 46-250; [2004] FCA 487; BC200402108 at [92]. The court’s power to make declarations is found in ss 21 and 23 of the Federal Court of Australia Act 1976 (Cth). See generally Justice RS French, Declarations — Homer Simpson’s remedy — is there anything they cannot do? (FCA) [2007] FedJSchol 27. As to the dichotomy between the broad powers set out in the Federal Court Act as compared to more limited powers set out in the Workplace Relations Act see Construction, Forestry, Mining and Energy Union v Pilbara Iron Co (Services) Pty Ltd [2010] FCA 822; BC201005463 (5 August 2010) at [38]. In McLeish v Faure (1979) 25 ALR 403; 40 FLR 462, a full court of the Federal Court held that it had discretionary power to grant declarations, for example, as to the effect of s 104 of the Conciliation and Arbitration Act 1904 (see now s 142 of the Fair Work (Registered Organisations) Act) upon the rules of an organisation even in proceedings not brought under the section itself. [page 843] A majority of the Full Court of the Federal Court outlined the situations in which declarations might not be made as a matter of discretion: Cruse v Multiplex Ltd (2008) 172 FCR 279; 177 IR 189; [2008] FCAFC 179; BC200809744 (5 November 2008) at [50]: … there are at least five different situations in which the court might, for various reasons, express a reluctance to make orders of a particular kind — specifically, in the present context, declarations. They are: 1. Where the dispute said to underlie the proceeding as a whole is entirely hypothetical, thereby not properly attracting the exercise of the judicial power of the Commonwealth. 2. Where, in a proceeding conventionally commenced and properly attracting the judicial power of the Commonwealth, the underlying dispute has been settled, and it is part of the settlement that the court should be asked to make particular orders by consent. 3. As in situation 2, but where the parties are not agreed on the remedial orders which should be made (albeit that the facts and law are agreed or not controversial). 4. Where the terms of the declaration sought record the result of the case, but do not establish

5.

the content of the parties’ ongoing rights or obligations. Where the declarations sought are in the form of what Gummow, Hayne and Heydon JJ described as “a bad precedent” in Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 91 [90].

[8-6460.25] Entirely hypothetical declarations Although the court’s power to grant declaratory relief is very wide it is confined by the considerations which mark out the boundaries of judicial power. Where a declaration requires qualifications to take account of events that have not yet occurred is redolent of an advisory opinion and the court will decline to grant it: see Communications, Electrical, Electronic, Energy, Information &c Union v Telstra Corp Ltd (1998) 85 IR 318; BC9804557. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 106 ALR 11; 59 A Crim R 255; [1992] HCA 10, at CLR 582, when considering the limits of the inherent power of superior courts to grant declaratory relief, Mason CJ, Dawson, Toohey and Gaudron JJ held that it must be directed to the determination of legal controversies and not to answering abstract and hypothetical questions. The plaintiff must have a real interest and relief should not be granted if the question is purely hypothetical or if the declaration will produce no foreseeable consequences for the parties. A declaration will not be made if the question is purely hypothetical, or relief is claimed in relation to circumstances that have not accrued and might never happen: see University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10; 6 ALR 193; 49 ALJR 267; BC7500033. Relief will not be granted if the court’s declaration will produce no foreseeable consequence for the parties: see Gardner v Dairy Industry Authority of NSW (1977) 18 ALR 55 at 69, 71; 52 ALJR 180 at 188, 189; BC7700102. Mt Thorley Operations Pty Ltd v Burgess (2001) 103 IR 184; [2001] FCA 117; BC200100394 was such a case. Moore J declined to make a declaration of inconsistency of federal and state laws because orders sought by the respondent in other proceedings in the NSW Industrial Relations Commission had not been made at the time of the proceedings in the Federal Court. See also Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9; BC9901019; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591; 169 ALR 616; [2000] HCA 11; BC200000766 at [52], [193] and ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248; 110 ALR 47; (1992) ATPR 41-185; BC9203729 at FCR 265. Hely J declined to make a declaration that an applicant was entitled to damages for breach of an employment contract in Reynolds v Southcorp Wines Pty Ltd (2002) 122 FCR 301; 115 IR 152; [2002] FCA 712; BC200203008 at [30] because it lacked utility and would produce no foreseeable consequences for the parties. On the other hand, a full court of the Federal Court held by majority that a controversy remained alive even though no party to the decision sought to appeal the order made by the judge: see Australian Industry Group v AFMEU (2002) 125 FCR 529 at 558; [2002] FCAFC 386; BC200208152 at [87] where Goldberg and Finkelstein JJ held that it was sufficient that an [page 844] organisation of employers to which the applicant in the proceedings below sought leave to appeal. See also Australian Industry Group v AFMEU (2003) 130 FCR 524 at 544; (2003) 125 IR 449 at 468; [2003] FCAFC 183; BC200304549 at [89] per Marshall J. In some cases a declaration may be of importance for the information of third parties: compare A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253 at 265; 204 ALR 8; [2004] HCA 1; BC200400129 at [15]. Proceedings are not open to an objection on the ground that a declaratory order only is sought. There need not be a cause of action before the power may be exercised, provided the subject matter in respect of which the declaration is sought is within the jurisdiction of the court and there is a real controversy

to be determined: see Direct Factory Outlets Pty Ltd v Westfield Management Ltd (2003) 132 FCR 428 at 433; [2003] FCA 1095 at [14]; BC200305909. In Minister of State for Employment, Workplace Relations and Small Business v CPSU (2001) 109 FCR 303; 108 IR 148; [2001] FCA 316; BC2000103088 a majority of a full court of the Federal Court were prepared to grant a declaration that provisions of an award were binding “so far as applicable”. Beaumont ACJ dissented at [134] saying it would not be a useful exercise of the discretion to grant declaratory relief in circumstances where the parties were not agreed on the consequences that should flow from a declaration. He referred to Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 at 307; 3 ALR 151; 48 ALJR 204; BC7400026. The full court’s decision is to be contrasted with the decision of another full court in Warramunda Village Inc v Pryde (2001) 105 FCR 437; [2001] FCA 61; BC200100179 where it was held that declarations in general terms by the primary judge that an award applied to employment were not declarations of right within the meaning of s 21 of the Federal Court of Australia Act. The court held at [12]: In no sense, therefore, did the declarations made by the trial judge declare the rights of the parties. They did not attempt to declare the proper construction of any term of an award. They did not declare that, on any specified day, any breach of any term of an award had occurred. Rather, the first two declarations reflect the view that his Honour had expressed in his reasons for judgment that, in general terms, each award was applicable to a sleepover shift. In Commonwealth Bank of Australia v FSU (2002) 125 FCR 9; 190 ALR 497; [2002] FCAFC 193 at [6]; BC200203242 a full court of the Federal Court accepted that a declaration of right was one that, in that case, would: (a) identify the obligation of which the appellant was found to be in breach (in that case, a specified provision of an award); (b) the persons in respect of whom the breach occurred (the members of the group in respect of whom the proceedings were brought); (c) the nature of the breach (failing to terminate employment and failure to pay severance pay); and (d) the date of the breach. In such a case ascertainable rights flowed from the matters so declared. See also Australian Securities & Investments Commission (ASIC) v Adler (2002) 189 ALR 365; 20 ACLC 723; [2002] NSWSC 268; BC200201400; and Phong v A-G (Cth) (2001) 114 FCR 75; 185 ALR 753; [2001] FCA 1241; BC200105288at [2], [21][22] and [59]. In Electrolux Home Products Pty Ltd v AWU [2001] FCA 1840; BC200108166 at [5] Merkel J declined to make a declaration concerning each of the steps taken in reaching a conclusion. However, he held that it was appropriate to make a declaration concerning the ultimate conclusion that disposed of the legal controversy between the parties. In Australian Workers’ Union v Yallourn Energy Pty Ltd (2000) 95 IR 207; [2000] FCA 65; BC200000137at [48] and [56] the same judge held that where there is a genuine issue about whether industrial action is protected, then a legal proceeding can properly be brought for a declaration determining that issue and for an anti-suit injunction restraining the commencement of proceedings in respect of protective action. [page 845] In Hamzy v Tricon International Restaurants t/as KFC (2001) 115 FCR 78; 111 IR 198; [2001] FCA 1589; BC200107104, although a full court of the Federal Court declined to answer questions of law inadequately referred to it by the commission concerning the validity of regulations under the

Workplace Relations Act, it made declarations that the regulations were invalid. See also Spastic Society of Victoria Ltd v Andelle [2001] FCA 70; BC200100207; Australian Rail Tram & Bus Industry Union v Torrens Transit Services Pty Ltd [2001] FCA 975; BC200104369; Schanka v Employment National (Administration) Pty Ltd (2001) 114 FCR 379; 110 IR 97; [2001] FCA 1623; BC200107075. In Gregory v Philip Morris Ltd (1988) 80 ALR 455; 24 IR 397 at ALR 482 a full court of the Federal Court declined to make an order requiring an employer to specifically perform a contract of employment after having dismissed an employee in circumstances that it held were harsh, unjust or unreasonable. Wilcox and Ryan JJ declined to make a declaration that the employment was not lawfully terminated because it would serve no useful purpose in the circumstances of the case. See also Health Services Union of Australia v North Eastern Health Care Network (1997) 79 FCR 43 at 62; 42 AILR 3-629; [1997] FCA 1084; BC9705324 where Marshall J declined initially to make a declaration that there had been a contravention of an award. However, it appears that subsequent declarations were made: see North Western Health Care Network v HSUA (1999) 92 FCR 477; 164 ALR 147; [1999] FCA 897; BC9903644 at [9]–[10]. Even where parties consent to a declaration the court will determine whether it is appropriate to do so: see Alfred v Walter Construction Group Ltd [2005] FCA 497; BC200502625 at [7] per Branson J. See also Meagher, Gummow and Lehane’s Equity Doctrines and Remedies, 4th ed, 2002 at [19–160]. In obiter comments, Perram J has suggested that the authorities might need to be revisited saying that: … a perception amongst the profession that settlements might not be given effect to is a state of affairs which may retard settlement rates. Viewed through that prism, some of the traditional anxieties about the making of such declarations may need to be revisited in light of modern conditions … This is particularly so in small industrial matters such as the present where the resources of the parties do not, in practical terms, permit the kind of litigation that often accompanies hearings on agreed penalties in large civil penalty proceedings. Unlike such cases, proceedings of the present kind are frequently settled on the steps of the court: Inspector Darren Lang v ACN 078 899 591 Pty Ltd t/as Kohinoor Indian Centre [2009] FCA 987; BC200908142 (4 September 2009) at [11]. [8-6460.30] Recording the result In Australian Competition and Consumer Commission (ACCC) v Francis (2004) 142 FCR 1; (2004) ATPR (Digest) 46-250; [2004] FCA 487 at [92]–[113]; BC200402108 Gray J criticised the practice of making declarations in trade practices cases where a breach of the legislation had occurred which merely expressed a conclusion about the facts. However, the judge also recognised that the High Court in Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53; (2003) 203 ALR 217; [2003] HCA 75; BC200307578 seems to have given its tacit approval for declarations that merely state the conclusion reached in a case albeit in more precise terms than the declaration made in Francis. See also ACCC v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2004) ATPR 42-002; [2004] FCA 517; BC200402192 at [7]. Cases decided before the above cases concerning the making of declarations need to be considered in the light of the High Court’s later decision. The conclusion of Gray J was repeated in Cruse v Multiplex Ltd (2008) 172 FCR 279; 177 IR 189; [2008] FCAFC 179 at [19]; BC200809744. The majority of Goldberg and Jessup JJ rejected that view given the tacit approval of such an approach in Rural Press. The majority held that “there can, therefore, be no objection in principle to the making of a declaration where the purpose and utility thereof is formally to record the basis upon which the proceeding in question has been resolved (whether by adjudication or otherwise)”: at [53].

[page 846] [8-6460.35] Bad precedent In Rural Press Ltd v ACCC (2003) 216 CLR 53; 203 ALR 217; [2003] HCA 75; BC200307578 at [89]–[90] Gummow, Hayne and Heydon JJ (with whom Gleeson and Callinan JJ agreed) criticised the form of a declaration concerning breaches of the Trade Practices Act 1974: The trial judge made declarations that Rural Press and Bridge had contravened s 46; that Rural Press, Bridge and Waikerie Printing had contravened s 45; that McAuliffe and Law were directly or indirectly knowingly concerned in the contraventions by Rural Press and Bridge of ss 45 and 46; and that Paul Taylor was directly or indirectly knowingly concerned in the contraventions by Waikerie Printing of s 45 … The declarations spoke merely of ‘an arrangement’ having a purpose and effect, without giving any content to that expression and without indicating the gist of the findings of the primary judge identifying the arrangement. These declarations provide a bad precedent and were of a kind which the trial judge should not have agreed to make even if urged to do so by the parties. Close attention to the form of proposed declarations, particularly those “by consent”, should be paid by primary judges. In Laing v Carroll (2005) 146 FCR 511; 154 IR 8; [2005] FCAFC 202; BC200506862 Lander J (Kenny J agreeing generally) overturned a decision of Marshall J declining to make a declaration that a respondent was required to produce documents. Marshal J had said at [55], [65] that to grant a declaration would deny the respondent the opportunity to rely upon the defence of reasonable excuse. By contrast Lander J at [198]–[202] held that: Where no criminal sanction was available and no other civil remedy also available, it seems to me entirely appropriate that the appellant issued these proceedings seeking a declaration of the kind sought. The primary judge reasoned that he should not exercise his discretion to grant the declaration because the respondent was not liable to prosecution and therefore the respondent had lost the chance to claim that he had a reasonable excuse not to produce the documents. In my opinion, that reasoning is fallacious. This was not a prosecution under s 305A. Indeed, the respondent was not liable to be prosecuted under that section. Indeed, if the respondent had been liable to prosecution that might have been a reason not to make a declaration that the respondent had failed to comply with the Act. The very fact that the respondent was not liable to prosecution was a reason to make a declaration. Whether if he could have been prosecuted he might have had a statutory defence to the prosecution was not relevant, in my opinion, in considering whether a declaration should be made that he is required to produce documents in compliance with the Act. [8-6460.40] Questions of law referred to the court — s 563(i) See s 608. The power relates only to a referral authorised by the Act: see Hamzy v Tricon International Restaurants t/as KFC (2001) 115 FCR 78; 111 IR 198; [2001] FCA 1589 at [20]; BC200107104. The meaning of question of law is elusive. No satisfactory test of universal application has yet been formulated: see generally Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287–8; (1993) 115 ALR 1; [1993] FCA 456; BC9304888. Aronson has written that judges have long denied the existence of a fixed distinction between errors of law and errors of fact, and legal literature abounds with derision and scorn for those who attempt it: Mark Aronson, Unreasonableness and Error of Law, [2001] UNSWLawJ 26; (2001) 24(2) University of New South Wales Law Journal 315 at [1].

[8-6460.45] Remittal — s 563(j) Where a matter is commenced in the High Court in its exclusive jurisdiction conferred by s 38(a) to (d) of the Judiciary Act the court is empowered to remit the matter or a part of it to the Federal Court or any court of a State or Territory: Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [page 847] (2007) 157 FCR 260; 162 IR 36; [2007] FCAFC 32; BC200701705 at [63]. Section 44 of the Judiciary Act 1903 (Cth) allows the High Court to remit a matter to any court of competent jurisdiction. The original jurisdiction of the High Court arises from s 75(v) of the Constitution with respect to all matters in which a writ of mandamus or prohibition or an injunction is sought against a member of the commission. Subsections (2) and (3) make it clear that the court is one to which a matter may be remitted by the High Court. Prior to 30 March 1994, the High Court was unable to remit to the Federal Court matters in respect of which prerogative writs were sought against a member of the commission. In the first contested matter involving the question of remittal, Gaudron J held that a matter should be remitted to the court even though a constitutional issue was raised by the application. Her Honour said that it was an issue which arose only in the context of a question of construction. See Re Polites; Ex parte Queensland (HC of A, Gaudron J, No 89 of 1994, 11 April 1994, unreported) at p 14. If a remitted matter, commenced in the High Court under s 75(v) of the Constitution, also happens to be a matter arising under a law of the Commonwealth Parliament then, subject to any constraint imposed by the terms of the remitter or directions accompanying it, the receiving court may exercise that additional jurisdiction: Construction, Forestry, Mining and Energy Union v AIRC (2007) 157 FCR 260; 162 IR 36; 239 ALR 466; [2007] FCAFC 32; BC200701705 at [66]. For a form of remittal to the Federal Court in circumstances where the High Court has retained a constitutional question: see Newcrest Mining (WA) Ltd v Commonwealth (No 2) (1993) 46 FCR 342 at 387; 119 ALR 423; 68 LIJ 66d; BC9305072; Re Australian Education Union; Ex parte Victoria (1994) 68 ALJR 617; 55 IR 303. However, the existence of a constitutional question will not necessarily prevent a remittal of it: see Community & Public Sector Union v Victoria (1995) 69 ALJR 666; 60 IR 341 per Dawson J. In Re Australian Education Union; Ex parte Victoria (1995) 70 ALJR 173; 63 IR 447 Dawson J remitted a case involving the application of the High Court’s decision in Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188; 128 ALR 609; 58 IR 431; [1995] HCA 71 because it was an appropriate court for the purpose and because it would be quicker in that forum. The use of these provisions means that the High Court will deal only with exceptional, highly significant cases that are brought before it by way of prerogative writ. See, for example, Re Australasian Meat Industry Employees’ Union; Ex parte AFC Abattoirs Pty Ltd [1997] 15 Leg Rep 4; (1997) 73 IR 58 at 59 where Kirby J said: Although the [High] Court has jurisdiction to deal with all such matters pursuant to the Constitution, s 75(v), its invariable practice is to remit such matters to the appropriate Federal court. In Re Keely; Ex parte Kingham (1995) 129 ALR 255; 59 IR 176; 1 IRCR 311 it was pointed out that one of the peculiarities of the procedure is that the court can subject one of the members of the court to review. In Re Jarman; Ex parte Cook (No 1) (1997) 188 CLR 595; 143 ALR 129; 71 ALJR 557; 72 IR 63; [1997] HCA 13; BC9700986 the High Court decided that it will decide such matters instead of remitting them. It will not remit an application for prerogative relief in respect of a decision of a judge of the Federal Court to a full court of that court, because the nature of prerogative writs as a supervisory remedy requires that the court administering the remedy be superior to that against which the remedy is sought. [8-6460.50] Remittal — procedure When the legislature, without more, confers jurisdiction on a court

to hear and determine a matter it imports the ordinary incidents and procedures of the court including its relevant rules: see Patterson v PSB (1984) 1 NSWLR 237 at 239; 6 IR 468. [8-6460.55] Court’s power to review exercise of power Generally speaking the court’s jurisdiction to review the exercise of power by FWA under the Act arises only upon remittal to it by the High Court, pursuant to s 44 of the Judiciary Act 1903, of a matter in which review is sought by prerogative writ. However, the court is not necessarily precluded from determining a [page 848] challenge to the exercise of power by the commission by way of defence to proceedings brought under s 563: see O’Toole v Charles David Pty Ltd (No 2) (1991) 171 CLR 232; 99 ALR 415; 65 ALJR 358; BC9102638. The nature of the court’s power of review is discussed in Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194; 174 ALR 585; 99 IR 309; [2000] HCA 47; BC200005034; Miller v AIRC (2001) 108 FCR 192; 183 ALR 419; [2001] FCA 486; BC200102065 and Re Polites; Ex parte CFMEU (2002) 117 FCR 212; 113 IR 241; [2002] FCAFC 70; BC200200994; Re Australian Workers’ Union; Ex parte CFMEU (2002) 120 FCR 527; 114 IR 185; [2002] FCAFC 150; BC200202642. [8-6460.60] Transfer to the Federal Court — s 653(g) See s 39 of the Federal Magistrates Act 1999. Section 39 was enacted when the Federal Magistrates Court was established. It is an important provision. Among other things, it was designed to ensure that in its early stages the Federal Magistrates Court would not be inundated with more work than it could handle. At the time the court had few magistrates and it was expected that it would receive a good deal of work, especially in the area of family law. Another purpose was to ensure that the Federal Magistrates Court did not deal with important or difficult cases that were best determined by a superior court of record: Y v Australian Postal Corp [2005] FCA 1396; BC200507315 (29 September 2005) at [23]. For an example see Dowling v John Fairfax Publications Pty Ltd (No 4) [2008] FMCA 1084; BC200805653; Dowling v John Fairfax Publications Pty Ltd [2008] FMCA 1505; BC200810057 (31 October 2008) at [13] and [14]. [8-6460.65] Outline of Section The Explanatory Memorandum makes clear that the jurisdiction conferred on the Federal Court by the Bill is to be exercised by the Fair Work Division of the Federal Court in certain circumstances. Section 13 of the Federal Court of Australia Act 1976 divides the court into a General Division and a Fair Work Division. Subsection (4) provides that if the court’s jurisdiction is required to be exercised in both Divisions in relation to particular proceedings or proceedings of a particular kind, the Chief Justice may, at any time (whether before or after the proceedings are instituted), give a direction about the allocation to one or other Division of those proceedings or proceedings of that kind. Note also Federal Court Practice Note 15. All of the Judges of the Federal Court are members of the Fair Work Division. *Editor’s note Commentary on section 563 with the exception of Transfer to the Federal Court and Outline of Section by J L Trew QC LLB (Syd), Barrister updated by Ian Latham BA(Hons)/LLB (ANU), Barrister. Transfer to the Federal Court and Outline of Section by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________

[8-6480]

No limitation on Federal Court’s powers

564 To avoid doubt, nothing in this Act limits the Federal Court’s powers under section 21, 22 or 23 of the Federal Court of Australia Act 1976. COMMENTARY TO SECTION 564*

Derivation …. Federal Court — s 564 …. This Act — s 564 …. Outline of section ….

[8-6480.01] [8-6480.05] [8-6480.10] [8-6480.15]

[8-6480.01] Derivation The section is new. [8-6480.05] Federal Court — s 564 See s 12. [8-6480.10] This Act — s 564 See s 12. [8-6480.15] Outline of section The Explanatory Memorandum to the Fair Work Bill states at para 2213 that the clause is intended to address authorities which have held that federal industrial [page 849] laws exhaustively contain the remedies available to enforce those laws. The Federal Court will, for example, be able to make declarations relating to the meaning of industrial instruments made under the Bill. It will also be able to grant injunctions (including interim or interlocutory injunctions) in matters arising under the Bill, even where not granted under Pt 4-1 (Civil remedies). *Editor’s note Commentary on s 564 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

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[8-6500] courts

Appeals from eligible State or Territory

565 Appeals from original decisions of eligible State or Territory courts (1) An appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Act. [subs (1) am Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010]

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

exercising jurisdiction under this Act, except: (a) if the court was exercising summary jurisdiction — an appeal, to that court or another eligible State or Territory court of the same State or Territory, as provided for by a law of that State or Territory; or (b) in any case — an appeal as provided for by subsection (1). [subs (1A) insrt Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010]

Appeals from appellate decisions of eligible State or Territory courts (1B) An appeal lies to the Federal Court from a decision of an eligible State or Territory court made on appeal from a decision that: (a) was a decision of that court or another eligible State or Territory court of the same State or Territory; and (b) was made in the exercise of jurisdiction under this Act. [subs (1B) insrt Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010]

(1C) No appeal lies from a decision to which subsection (1B) applies, except an appeal as provided for by that subsection. [subs (1C) insrt Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010]

Leave to appeal not required (2) It is not necessary to obtain the leave of the Federal Court, or the court appealed from, in relation to an appeal under subsection (1) or (1B). [subs (2) am Åct 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010]

(3) [subs (3) rep Åct 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010] COMMENTARY TO SECTION 565*

Derivation …. No appeal lies — s 565(1A) …. Eligible State or Territory court — s 565, (1), (1A), (a), (1B), (a) …. Exercising jurisdiction under this Act …. Federal Court — s 565(1), (1B), (2) …. Not necessary to obtain the leave — s 565(2) ….

[8-6500.01] [8-6500.05] [8-6500.10] [8-6500.15] [8-6500.20] [8-6500.25] [page 850]

This Act — s 565 (1A), (1B)(b) …. Outline of section ….

[8-6500.30] [8-6500.35]

[8-6500.01] Derivation The section is new. [8-6500.05] No appeal lies — s 565(1A) The section represents a partial retreat from the exclusivity of the appellate jurisdiction of the Federal Court set out in the former s 565. For a discussion of the concept of exclusive jurisdiction see Michael Black CJ, The Federal Court of Australia: The First 30 Years — a Survey on the Occasion of Two Anniversaries, [2007] MULR 38. Note that an appeal lies to the Federal Court from such a decision under s 565(1B). [8-6500.10] Eligible State or Territory court — s 565, (1), (1A), (a), (1B), (a) See s 12. [8-6500.15] Exercising jurisdiction under this Act See s 570. [8-6500.20] Federal Court — s 565(1), (1B), (2) See s 12. [8-6500.25] Not necessary to obtain the leave — s 565(2) It is not necessary to obtain leave to appeal from an interlocutory judgment of a court of a State or Territory in a matter arising under the WR Act — notwithstanding that it is necessary to obtain leave to appeal from an interlocutory judgment of the court in a comparable matter. Citigroup Pty Ltd v Mason (2008) 167 FCR 217 at 223; 175 IR 261 at 267; [2008] FCA 389; BC200801863 (26 March 2008) at [33]. [8-6500.30] This Act — s 565 (1A), (1B)(b) See s 12. [8-6500.35] Outline of section This section sets out the appeal process from decisions of an eligible state or territory court. *Editor’s note Commentary on s 565 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

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DIVISION 3 — JURISDICTION AND POWERS OF THE FEDERAL CIRCUIT COURT [Div 3 heading subst Act 13 of 2013 s 3 and Sch 1 item 236, opn 12 Apr 2013]

[8-6690] Conferring jurisdiction on the Federal Circuit Court 566 Jurisdiction is conferred on the Federal Circuit Court in relation to any civil matter arising under this Act. [s 566 am Act 13 of 2013 s 3 and Sch 1 item 237, Sch 2 item 1, opn 12 Apr 2013] COMMENTARY TO SECTION 566*

Derivation …. Arising under this Act — s 566 …. This Act — s 566 …. Outline of section ….

[8-6690.1] [8-6690.5] [8-6690.10] [8-6690.15]

[8-6690.1] Derivation The section is new. [8-6690.5] Arising under this Act — s 566 See Commentary to Independent Contractors Act at [8130.25]. [8-6690.10] This Act — s 566 See s 12. *Editor’s note: Commentary to s 566 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

[page 851] [8-6690.15] Outline of section The section confers jurisdiction on the Federal Circuit Court in relation to all civil matters arising under the Bill. The Federal Circuit Court will not have jurisdiction in criminal matters arising under the Bill, appeals from decisions of State or Territory courts under clause 565 or references from FWA on questions of law. These will be dealt with exclusively by the Federal Court; Explanatory Memorandum, Fair Work Bill 2009 (Cth) at paragraphs 2218–9.

____________________

[8-6710] Exercising jurisdiction in the Fair Work Division of the Federal Circuit Court 567 Jurisdiction conferred on the Federal Circuit Court under section 566 is to be exercised in the Fair Work Division of the Federal Circuit Court if: (a) an application is made to the Federal Circuit Court under this Act; or (b) an injunction is sought under section 15 of the Federal Circuit Court of Australia Act 1999 in relation to a matter arising under this Act; or (c) a declaration is sought under section 16 of the Federal Circuit Court of Australia Act 1999 in relation to a matter arising under this Act; or (d) proceedings in relation to a matter arising under this Act are

transferred to the Federal Circuit Court from the Federal Court; or (e) the High Court remits a matter arising under this Act to the Federal Circuit Court. [s 567 am Act 13 of 2013 s 3 and Sch 1 items 238, 239, Sch 2 item 1, opn 12 Apr 2013] COMMENTARY TO SECTION 567*

Derivation …. Fair Work Division — s 567 …. Outline of Section ….

[8-6710.1] [8-6710.5] [8-6710.10]

[8-6710.1] Derivation The section is new. [8-6710.5] Fair Work Division — s 567 Section 10A of Schedule 17 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 created a General Division and a Fair Work Division of the Federal Circuit Court. Section 10A(5) provides that the Chief Federal Magistrate may allocate proceedings to a particular division if the Court’s jurisdiction is to be exercised in both divisions. For a history of the industrial divisions within the Federal Courts, see Welsh v Allblend Holdings Pty Ltd (No 2) [2010] FMCA 377; BC201003875 (4 June 2010) at [11]–[18]. [8-6710.10] Outline of Section This clause requires the jurisdiction conferred on the Federal Circuit Court by the Bill to be exercised by the Fair Work Division of the Federal Circuit Court in certain circumstances; Explanatory Memorandum, Fair Work Bill paragraph 2220. In dealing with matters in the Fair Work Division, the Court also has the power to deal with associated matters; Welsh v Allblend Holdings Pty Ltd (No 2) [2010] FMCA 377; BC201003875 (4 June 2010) at [45]. *Editor’s note: Commentary to s 567 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

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[8-6730] powers

No limitation on Federal Circuit Court’s

568 To avoid doubt, nothing in this Act limits the Federal Circuit Court’s powers under section 14, 15 or 16 of the Federal Circuit Court of Australia Act 1999. [s 568 am Act 13 of 2013 s 3 and Sch 1 items 240–242, opn 12 Apr 2013]

[page 852] COMMENTARY TO SECTION 568*

Derivation …. Federal Court — s 568 …. This Act — s 568 …. Outline of section ….

[8-6730.01] [8-6730.05] [8-6730.10] [8-6730.15]

[8-6730.01] Derivation The section is new. [8-6730.05] Federal Court — s 568 See s 12. [8-6730.10] This Act — s 568 See s 12. [8-6730.15] Outline of section The Explanatory Memorandum to the Fair Work Bill states that as with cl 564 above, this clause is intended to address authorities which have held that federal industrial laws exhaustively contain the remedies available to enforce those laws: at para 2222. See generally s 564. *Editor’s note Commentary on s 568 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

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DIVISION 4 — MISCELLANEOUS

[8-6920]

Minister’s entitlement to intervene

569 (1) The Minister may intervene on behalf of the Commonwealth in proceedings before a court (including a court of a State or Territory) in relation to a matter arising under this Act if the Minister believes it is in the public interest to do so. (2) If the Minister intervenes, the Minister is taken to be a party to the proceedings for the purposes of instituting an appeal from a judgment given in the proceedings. (3) Despite section 570, a court may make an order as to costs against the Commonwealth if: (a) the Minister intervenes under subsection (1); or (b) the Minister institutes an appeal from a judgment as referred to in subsection (2). COMMENTARY TO SECTION 569*

Derivation …. Matter arising — s 569(1) …. Order as to costs — s 569(3) ….

[8-6920.01] [8-6920.05] [8-6920.10]

Proceedings — s 569(1), (2) …. Public interest — s 569(1) …. This Act — s 569(1) …. Outline of Section ….

[8-6920.11] [8-6920.15] [8-6920.20] [8-6920.25] [page 853]

[8-6920.01] Derivation The section is new. [8-6920.05] Matter arising — s 569(1) See Independent Contractors Act Commentary at [8130.25]. [8-6920.10] Order as to costs — s 569(3) The wording of this subsection is somewhat obscure. The Explanatory Memorandum states that the general rule that parties carry their own costs in proceedings arising under the Bill will not apply where the Minister has intervened in a proceeding or instituted an appeal under this clause: Explanatory Memorandum to the Fair Work Bill at para 2225. This presumably means that the normal rules as to costs apply. [8-6920.11] Proceedings — s 569(1), (2) See [8-6940.35]. [8-6920.15] Public interest — s 569(1) The public interest is, or should be treated as a term of art. The public interest may be different to that of the parties. The concept of public interest is often difficult to apply. That is because it depends upon an assessment of considerations and values often of an abstract character, that are taken to constitute it. The concept of public interest does not in my view embrace considerations which are essentially derivative from the individual interest of the employer, or employees. That is not to deny an individual interest may have an overlapping public interest dimension. The individual interest in freedom of association, or in freedom from certain kinds of discrimination, is an instance. However, in my view, it is necessary to examine whether a consideration does go in any material or substantive way to the public interest as distinct from the interests of the protagonists before the Commission: Joy Manufacturing Co Pty Ltd — re Joy Mining Machinery (Moss Vale Site) Certified Agreement 1998 — T1133 [2000] AIRC 335 (22 September 2000) at [34]. [8-6920.20] This Act — s 569(1) See s 12. [8-6920.25] Outline of Section Neither the common law nor equity allowed a third party to intervene in a proceeding between a plaintiff and defendant. Accordingly, intervention must be authorised by statute: Yirra Pty Ltd (t/as Richmond Demolition and Salvage) v Summerton (2009) 176 FCR 219 at 248–249; 181 IR 327 at 356; [2009] FCAFC 50; BC200903489 at [154]. This section allows the Attorney-General to intervene. See also s 78A of the Judiciary Act which allows the Attorneys-General to intervene in proceedings that relate to a matter arising under the Constitution. *Editor’s note Commentary to s 569 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

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[8-6930] State or Territory Minister’s entitlement to intervene

569A (1) The Minister of a State or Territory who has responsibility for workplace relations matters may intervene on behalf of the State or Territory in proceedings before a court (including a court of a State or Territory) in relation to a matter arising under this Act if he or she believes it is in the public interest of the State or Territory to do so. (2) If the Minister of a State or Territory who has responsibility for workplace relations matters intervenes, he or she is taken to be a party to the proceedings for the purposes of instituting an appeal from a judgment given in the proceedings. (3) Despite section 570, a court may make an order as to costs against a State or Territory if: (a) the Minister of a State or Territory who has responsibility for workplace relations matters intervenes under subsection (1); or (b) he or she institutes an appeal from a judgment as referred to in subsection (2). [s 569A insrt Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010]

[page 854] COMMENTARY TO SECTION 569A*

Derivation …. Appeal — s 569A(2), (3)(b) …. Intervene — s 569A(1), (2), (3)(b) …. Matter arising — s 569A(1) …. Order for costs — s 569A(3) …. Party to the proceedings — s 569A(2) …. Public interest — s 569A(1) …. This Act — s 569A(1) …. Outline of section …. [8-6930.01] Derivation The section is almost identical to s 569. [8-6930.05] Appeal — s 569A(2), (3)(b) See s 565. [8-6930.10] Intervene — s 569A(1), (2), (3)(b) See [8-6920.25].

[8-6930.01] [8-6930.05] [8-6930.10] [8-6930.15] [8-6930.20] [8-6930.25] [8-6930.30] [8-6930.35] [8-6930.40]

[8-6930.15] Matter arising — s 569A(1) See [8130.25]. [8-6930.20] Order for costs — s 569A(3) The general rule that parties carry their own costs in proceedings arising under the FW Act (see section 570) will not apply where a State or Territory Minister has intervened in a proceeding or instituted an appeal under this section: Explanatory Memorandum to the Fair Work Amendment (State Referrals and Other Measures) Bill 2009 Schedule 3 Item 10. [8-6930.25] Party to the proceedings — s 569A(2) See [8-6940.25]. [8-6930.30] Public interest — s 569A(1) See [8-6920.15]. [8-6930.35] This Act — s 569A(1) See s 12. [8-6930.40] Outline of section The section sets out a regime for intervention by Ministers of the State or Territory. It seems to change the rules as to costs in such a situation. *Editor’s note Commentary to s 569A prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________

[8-6940] Costs only if proceedings instituted vexatiously etc 570 (1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A. Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A. [subs (1) am Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010; Act 174 of 2012 s 3 and Sch 10 item 1, opn 1 Jan 2013]

(2) The party may be ordered to pay the costs only if: (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or (c) the court is satisfied of both of the following: [page 855]

the party unreasonably refused to participate in a matter before the FWC; (ii) the matter arose from the same facts as the proceedings. (i)

[subs (2) am Act 174 of 2012 s 3 and Sch 9 item 587, opn 1 Jan 2013] COMMENTARY ON SECTION 570*

Derivation …. History …. Costs incurred — s 570(1) …. In relation to — s 570(1) …. Matter arising under this Act — s 570(1) …. May — s 570(1), (2) …. Indemnity costs …. Onus of proof …. Party to proceedings — s 570(1) …. Pay the costs only if — s 570(2) …. Proceedings s 570(1), (2)(a), c(ii) …. This Act — s 570(1) …. Unreasonable act or omission — s 570(2)(b) …. Unreasonably refused to participate — s 570(2)(c)(i) …. Vexatious — s 570(2)(a) …. Without reasonable cause — s 570(2)(b) …. Outline of section ….

[8-6940.01] [8-6940.05] [8-6940.07] [8-6940.08] [8-6940.10] [8-6940.10.5] [8-6940.15] [8-6940.20] [8-6940.25] [8-6940.30] [8-6940.35] [8-6940.40] [8-6940.45] [8-6940.50] [8-6940.55] [8-6940.60] [8-6940.65]

[8-6940.01] Derivation The section is loosely derived from s 824 of the Workplace Relations Act 1996. [8-6940.05] History Section 824 of the Workplace Relations Act was derived from s 197A of the Conciliation and Arbitration Act 1904 which was inserted in that legislation by the Conciliation and Arbitration Act 1973 (No 138 of 1973). [8-6940.07] Costs incurred — s 570(1) The statutory test is costs incurred by another party. It is much broader than the test in s 401 of the Fair Work Act which refers to the costs of lawyers and paid agents. Section 570 of the Fair Work Act does not draw a distinction between persons who are represented by a legal practitioner and those who are not. The union is a party to the proceedings. It has incurred costs. Those costs are quantifiable in the same way that the costs of an independent legal practitioner are quantifiable: CFMEU v CSR [2012] FMCA 983. [8-6940.08] In relation to — s 570(1) Section 570(1), in its present form, commenced operation on 1 January 2013. The words “in relation to a matter arising under this Act” replaced the words “exercising jurisdiction under this Act”. The explanatory memorandum for the amending bill said that the

“amendment confirms that the FW Act is generally a ‘no costs’ jurisdiction (including in appeal proceedings).” This change broadened the limitation on the Court’s power to award costs in proceedings under the FW Act … Even if an applicant makes claims in a proceeding which are founded on common law or other statutory causes of action, the proceeding remains one in relation to a matter arising under the FW Act provided that at least one of its claims arises under that Act: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (No 2) [2015] FCAFC 166; BC201511318 at [12], [16]. [page 856] [8-6940.10] Matter arising under this Act — s 570(1) In the context of s 570(1) of the FW Act it has been held that the word “matter” refers to claims or causes of action or the underlying controversies which are raised in a proceeding … The word is used, in our view, in a similar sense in s 562 of the FW Act: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (No 2) [2015] FCAFC 166; BC201511318 at [10]. See [270-180.25]. [8-6940.10.5] May — s 570(1), (2) The satisfaction of the statutory conditions does not lead automatically to an order for costs: see Qantas Airways Ltd v Transport Workers’ Union of Australia (No 2) (2011) 211 IR 119; [2011] FCA 816 at [208]. See also s 33(2A) of the Acts Interpretation Act 1991. [8-6940.15] Indemnity costs If the criterion in s 570(2)(a) were satisfied in a matter, it may well be that the court could make an order for costs to be paid on an indemnity basis, as it could, and often would, in litigation where the general law of principles as to the award of such costs applied. However, the power to order costs, once a criterion in s 570(2) has been satisfied, is discretionary and should be exercised, not so as to impose a penalty or punishment on the losing party but to provide an appropriate means of compensating the successful party having regard to all of the circumstances: Shea v Energy Australia Services Pty Ltd (No 2) [2015] FCAFC 14; BC201500603 at [10]–[11]. The test as to whether indemnity costs should be awarded is whether the justice of the case might so require or whether there exists some special or unusual feature of the case to justify the court in departing from the ordinary practice: Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392; 165 IR 464; [2007] FCA 879; BC200706337 at [39]. For an example where indemnity costs have been ordered in the case of a failure to accept a reasonable offer of settlement: McDonald v Parnell Laboratories (Aust) (No 2) (2007) 164 FCR 591; 175 IR 251; [2007] FCA 2086; BC200711318 at [23]. [8-6940.20] Onus of proof In order to recover costs on the basis that the proceedings were instituted without reasonable cause, the defendant bears the civil onus although the court may infer lack of reasonable cause from the failure of the prosecutor to call evidence and to explain that failure: Howard v Cummins (1988) 27 IR 109 at [11]–[12]. [8-6940.25] Party to proceedings — s 570(1) The section only limits orders between primary parties. It has no application in relation to third parties against whom or in whose favour a costs order may be made: see Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 at 235–6; 57 IR 50 at [52]. In that case the third party was an unqualified person who sought to represent a party to the proceedings. Such an order should only be made in clear or exceptional cases: Compare De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544; 114 ALR 708;

BC9304772. In Yirra Pty Ltd (t/as Richmond Demolition and Salvage) v Summerton (2009) 176 FCR 219; 181 IR 327; [2009] FCAFC 50; BC200903489, the Full Federal Court dealt with a costs application against an intervener. The majority held at [155] that “Although having regard to the objects served by s 824, the word “party” ought not be narrowly construed, we consider that it is inapt to describe an applicant for leave under s 855 as a party to the proceeding in which the application is made. The applicant is seeking the status of intervener. It is not a party when the application is made and will not become one unless the application is successful”. [page 857] Justice Flick in Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472; BC201210254 at [37] that there is no express limitation upon the power of the court to order — in an appropriate case — costs against a non-party. Similarly in Robinson v Blackheart Industries Pty Ltd [2014] FCCA 1353; BC201405115 Manousaridis J found that the Federal Circuit Court Rules provided an implied incidental power to make an order for costs against a lawyer. That power was not limited by s 570. In speaking of the Federal Court Act, Mortimer J came to a similar conclusion in Ryan v Primesafe [2015] FCA 8; BC201500100 at [66]–[67]: Section 570 and the conditions it imposes on the Court’s general costs discretion under s 43 of the Federal Court Act, is not a licence to parties to ignore the requirements of s 37M of the Federal Court Act, nor the Court’s power to order costs against parties who fail to comply with their obligations under s 37N. The content of ss 37M and 37N, and parties’ obligations to assist the Court in achieving the objectives set out in s 37M, must be reconciled with access to justice provisions such as s 570(1). That reconciliation occurs through a focus on the reasonableness of parties’ conduct, the appropriateness of the Court processes undertaken by them, the timeliness of their compliance with Court orders or steps in the proceeding, and the existence of a substantive legal and factual basis for the claims made and arguments put. In express terms s 570(1) constrains this Court’s power to order costs against a party, and s 570(2) directs attention to the conduct of a party. Neither provision purports to affect the Court’s power under s 43(3)(f) of the Federal Court Act, whether exercised as a general discretion or by reason of the application of ss 37N(2) and (5) and a failure by a lawyer to comply with her or his duties to the Court. The power in s 43(3)(f) depends, in my opinion, on the Court having formed the view that there should be an order that one party (or parties) pay the costs of another (or others). The power in s 43(3)(f) then enables the Court in an appropriate case to order that the party’s lawyer bear those costs personally, rather than the order being directed at the party. The liability for compliance with the costs order thus falls on the lawyer. It is, however, predicated on the formation of a view by the Court that a party (or parties) should compensate another party (or parties) by way of a costs order. [8-6940.30] Pay the costs only if — s 570(2) The predecessor provisions were held to impose a limit on a power to award costs found elsewhere: see Canceri v Taylor (1994) 123 ALR 667 at 670; 55 IR 316; 1 IRCR 120; BC9405762 where it was held that the creation of the Industrial Relations Court as a superior court of record and a court of law and equity and other provisions of the legislation assumed the existence of a power to award costs. There is specific provision in the Federal Court of Australia Act 1976, namely, s 43, conferring power upon the Federal Court to award costs. The court’s discretion under that section is unfettered although it must be exercised judicially: Hannpost Pty Ltd t/as

Copyworld v Mita Copiers Aust Pty Ltd (1996) 67 FCR 416 at 431; 137 ALR 701 at 716; BC9602806. The object of the predecessor sections originally was to give effect to a policy choice about the controversial issue as to whether costs should ordinarily follow the event in circumstances of an industrial dispute or whether they should ordinarily be borne by the party incurring them. That requires the court not to read the section narrowly: see Commonwealth of Australia v Construction, Forestry, Mining and Energy Union (2003) 129 FCR 271; [2003] FCAFC 115; BC200302786 at [11] and [12] where a Full Court of the Federal Court also approved a decision of Northrop J in Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 272; 13 ALR 365 in which that judge described the order for costs being available against a party who, in substance, instituted proceedings which in other jurisdictions may constitute an abuse of a court’s process. Despite the constitutional basis for the Act being no longer reliant upon the existence of an industrial dispute, similar policy objectives apply to this section. Paragraph 2228 of the Explanatory Memorandum to the Fair Work Act states that the ability of the courts to award costs [page 858] in workplace relations matters has been limited since 1904 and is part of the policy of discouraging legalism in proceedings before industrial courts. Flick J questioned the compatibility of the section with the obligation of the court to facilitate the resolution of proceedings as quickly, inexpensively and efficiently as possible in Darlaston v Parker (2010) 189 FCR 1; 196 IR 307; [2010] FCA 771; BC201005179 at [261]. He went to make the following obiter comments at [262]: The absence of a more traditional power to award costs nevertheless has the potential to place an impediment in the commencement of applications of the present kind and an impediment in the ability of the court to resolve the real factual and legal matters in dispute in an inexpensive and efficient manner. [8-6940.35] Proceedings s 570(1), (2)(a), c(ii) The word “proceedings is one of great generality and takes its precise meaning from the context in which it appears” Clarence v Electricity Commission of New South Wales (1990) 20 NSWLR 1; 33 IR 94 (at [4]) per Kirby P. The word used broadly is merely some method permitted by law for moving a court or judicial officer to some authorized act, or some act of the court or judicial officer: Cheney v Spooner (1929) 41 CLR 532; [1929] ALR 173; (1929) 3 ALJR 30; BC2900032 at [536]–[537]. The carrying out of a purely administrative function (being the act of the registrar in registering a rule) is not a proceeding: Re Feehan and ARU (1953) 77 CAR 276 at [277]. In Thompson v Hodder (1989) 21 FCR 467; 29 IR 339 a full court of the Federal Court held an application for leave to appeal, even from an interlocutory judgment, was a proceeding in its own right. The court confirmed that each of the steps — an application for a rule to show cause, a consequent application for interim orders, an appeal against orders, a motion for stay of judgment pending an appeal and an application for leave to appeal from judgment — are a separate proceeding as defined in s 4 of the Federal Court Act. See also Wilcox CJ in Foxcroft v Ink Group Pty Ltd (1994) 125 ALR 677; 57 IR 65 at 68; 1 IRCR 215 cf Gray J in Andrews v Uniting Church (1995) 60 IR 437 at [438]–[443]. The question as to proceedings that involve separate claims seems to have been resolved in Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (as successor to the Australian Building and Construction Commissioner) (No 2) [2013] FCAFC 25; BC201300992. In that case, the Full Court comprehensively reviewed the authorities to

conclude that common law claims in the associated or accrued jurisdiction were covered by the limitation on costs but that where the matter arises under two Acts of Parliament, the limitation as to costs does not apply to the entirety of the proceeding: at [64]. The changes to the legislation may have thrown doubt upon that conclusion. As White J held in Stanley v Service to Youth Council Inc (No 3) [2014] FCA 716; BC201405248 at [15]: s 570 is the counterpart in the FW Act of s 824 of the WR Act, it is not identical with s 824. Regard must be had to its different terminology and to its legislative history. He went on to find at [25] and [28] that claims under a different Act were also covered by the limitation on the basis that: In my opinion, the inclusion of the prepositional phrase “in relation to” in s 570, the explanation given for the amendment, and the circumstance that the legislature did not revert to the terminology of s 824, together support an inference that the legislative intention is that the costs limitation effected by s 570 should be greater than that afforded by s 824 of the WR Act and its predecessors. Courts’ powers with respect to costs are limited not just in proceedings “in a matter” arising under the FW Act, but in proceedings “in relation to a matter” arising under that Act… [page 859] The limitation on courts’ powers with respect to costs operates in respect of any “party to proceedings”, provided that those proceedings relate to a “matter” arising under the FW Act. On its face, the limitation operates whenever those considerations are satisfied, whether or not the proceedings also include claims under other federal legislation or in the accrued jurisdiction. That conclusion was doubted on an obiter basis in Ryan v Primesafe [2015] FCA 8; BC201500100 at [62]. It was accepted by a five member Full Federal Court in Melbourne Stadiums Ltd v Sautner (2015) 317 ALR 665; [2015] FCAFC 20; BC201500930 at [158]. See also [8-5660.25]. [8-6940.40] This Act — s 570(1) See s 12. [8-6940.45] Unreasonable act or omission — s 570(2)(b) The subsection erodes the immunity given by subs (1) and carves out another exception to the usual rule in s 842(1): Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574; 176 IR 245; [2008] FCAFC 143; BC200807286 at [28]. The predecessor section was examined in Paras v Public Service Body Head of the Dept of Infrastructure (No 3) (2006) 152 FCR 534; (2006) 153 IR 200; [2006] FCA 745; BC200604303 where it was held at [16] that: The proviso to s 824(1) applies if the entire proceeding, or a step in the proceeding, has been instituted vexatiously or without reasonable cause. Section 824(2) is not confined to costs associated with the institution of the proceedings or a step in the proceedings; it extends more broadly to costs incurred as a result of any unreasonable act or omission. On a plain and natural meaning of s 824(2), there is no reason why the reference to an unreasonable act or omission that has caused another party to incur costs in connection with the proceeding should not extend to unreasonable acts or omissions in connection with an interlocutory application. Whether a party has engaged in “an unreasonable act or omission” will depend upon the particular

circumstances of the case. In Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392; 165 IR 464; [2007] FCA 879; BC200706337 where it was held at [36] that: “prosecution of any incompetent or hopeless case can be regarded as ‘an unreasonable act’ … Conversely … the pursuit of a contentious, and ultimately unsuccessful, argument is not an unreasonable act.” See also McAleer v University of Western Australia (No 2) (2007) 161 IR 151; [2007] FCA 247; BC200701147 and see Zhang v Royal Australian Chemical Institute Inc (2005) 144 FCR 347; [2005] FCAFC 99; BC200503679 at [55] in relation to similar wording in the former s 170CS. After making the distinctions referred to in the preceding paragraph a Full Court of the Federal Court, in Clarke, said at [29]: In our view, the respondent has not engaged in ‘an unreasonable act or omission’. As the authorities indicate, there is a distinction between a party who pursues arguments which are ultimately abandoned or rejected by the Court and a party who commences a proceeding which is misconceived in the sense of being incompetent or unsupportable: Australian and International Pilots Assn 162 FCR at 402; Standish v University of Tasmania (1989) 28 IR 129 at 138–139. Simply because a party does not conduct its litigation in the most efficient way does not mean that the Court should exercise its discretion in s 824(2) of the WR Act to make a costs order. In our view, neither the late abandonment of some of its defence, nor the use of a notice of contention to advance a previously minor and ultimately unsuccessful argument, crosses the threshold of being “an unreasonable act or omission” for the purposes of s 824(2). True it is that the concession ultimately given by the respondent that it regarded the decision of the primary judge as erroneous could have been given earlier. However, it was a concession which was, in light of the decision of this Court on the substantive appeal, properly made and beneficial to the appellants. Although it is arguable that the lateness of the concession may have put the appellants to some extra costs, we are of the view that it cannot be characterised as [page 860] ‘unreasonable’ in the circumstances of this case. Indeed, while courts should use the discretion in s 824(2) to ensure that parties to litigation arising from the WR Act do not engage in unreasonable acts and omissions which put the other party to undue expense, they should also be careful not to exercise the discretion with too much haste, given that such haste may discourage parties, for fear of an adverse costs order, from pursuing litigation under the WR Act in the manner which they deem best. The failure to comply with court directions can constitute an unreasonable act or omission: Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392; (2007) 165 IR 464; [2007] FCA 879; BC200706337 at [37]; Torpia v Zarfati (2009) 178 IR 325; [2009] FMCA 166; BC200901208 at [6]. So too can it be a failure to accept a reasonable offer to settle the case: McDonald v Parnell Laboratories (Aust) (No 2) (2007) 164 FCR 591; 175 IR 251; [2007] FCA 2086; BC200711318 at [30]. The reasonableness of the refusal or non-acceptance must be determined in the light of the circumstances that existed at the time that the rejection or failure to accept occurred: Health Services Union v Jackson (No 5) [2015] FCA 1467; BC201512778 at [46]. As to indemnity costs, see [8-9110.15]. In United Voice v Secom Australia Pty Ltd [2015] FCCA 2358 at [169]; BC201508433, Neville J found that the level of preparation (or lack thereof) might lead to a costs order. He held that a costs order was appropriate: … because of (a) the extremely shoddy manner in which the Union has conducted its case, (b) the

obvious weaknesses on almost every front of it, (c) very significantly, the Union has had many opportunities to explain and or to provide relevant particulars and material to support the claims it alleges against Secom but has not done so, … [8-6940.50] Unreasonably refused to participate — s 570(2)(c)(i) The Explanatory Memorandum to the Fair Work Bill explains that the third ground for awarding costs has been added to enable a court to award costs against a party if the party unreasonably refused to participate in a related matter before FWA — ie, a matter arising from the same facts. This new ground is intended to encourage genuine participation in matters before FWA and quicker and more efficient resolution of disputes: [2230]. [8-6940.55] Vexatious — s 570(2)(a) See [8-9110.30]. [8-6940.60] Without reasonable cause — s 570(2)(b) See [8-9110.35]. [8-6940.65] Outline of section The purpose of this section has been held to be to: [F]ree parties from the risk of having to pay the costs of an opposing party in proceedings under the Act while at the same time protecting parties who are forced to defend proceedings that have been instituted vexatiously, or without reasonable cause: Nimmo, Re Application for an Inquiry relating to an Election for an Office in the Australian Education Union (NT Branch) (No 2) [2011] FCA 728; BC201104777. That decision was in relation to s 329 of the Fair Work (Registered Organisations) Act 2009. However, the wording of s 329 is nevertheless similar to the present section, and includes the phrase “without reasonable cause”. The above reasoning was adopted in relation to an adverse action by the Full Federal Court in Khiani v Australian Bureau of Statistics [2011] FCAFC 109; BC201106396. In Australian Workers Union v Leighton Contractors Pty Ltd (No 2) (2013) 232 FCR 428; [2013] FCAFC 23; BC201300916 at [13], the Full Federal Court refused to order costs in circumstances where the Court found that the proceedings did not enjoy reasonable prospects of success. In that case, the Full Court stated that: [page 861] We have come to this conclusion because of the parties’ joint submission that, save in one respect, the case raised important questions about the making of enterprise agreements under the Act and the Court would be interpreting some provisions of the Act for the first time. A case that is bound to fail is hardly of sufficient importance to justify the giving of a direction that it be referred to a Full Court. That the respondents joined with the AWU to submit that a Full Court should hear the case does indicate, as the AWU argues, that they were not of the opinion that the case was hopeless. While that makes no difference to whether the Court has the power to make a costs order, we think it is relevant to whether the power should be exercised. In these circumstances we are not disposed to do so. *Editor’s note: Commentary on section 570 by John Trew QC, LLB (Syd), Barrister and updated by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[8-6960]

No imprisonment for failure to pay

pecuniary penalty 571 (1) A court (including a court of a State or Territory) may not order a person to serve a sentence of imprisonment if the person fails to pay a pecuniary penalty imposed under this Act. (2) This section applies despite any other law of the Commonwealth, a State or a Territory. COMMENTARY ON SECTION 571*

Derivation …. Pecuniary penalty — s 571(1) …. This Act — s 571(1) …. Outline of section ….

[8-6960.01] [8-6960.05] [8-6960.10] [8-6960.15]

[8-6960.01] Derivation The section is new. [8-6960.05] Pecuniary penalty — s 571(1) See s 546. [8-6960.10] This Act — s 571(1) See s 12. [8-6960.15] Outline of section The section prevents the imprisonment of a person who fails to pay a pecuniary penalty under the Act. As the Australian Law Reform Commission (ALRC) has noted, some state legislation provide for non-payment of a penalty. The ALRC recommended that, in the interests of fairness, any legislation permitting proceedings in state or territory courts for federal non-criminal regulatory contraventions be amended to indicate that, where civil proceedings have been used, imprisonment not be permitted if there is a default in the payment of any penalty imposed. This would also provide consistency of approach across all States and Territories in relation to federal laws: Australian Law Reform Commission Discussion Paper 65: Securing Compliance: Civil and Administrative Penalties in Australian Federal Regulation at [17]–[43]. *Editor’s note: Commentary to s 571 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[8-6980] Regulations dealing with matters relating to court proceedings 572 The regulations may provide for the fees to be charged in relation to proceedings in a court (including a court of a State or Territory) under this Act. [page 862]

COMMENTARY TO SECTION 572*

Derivation …. Regulations — s 572 …. This Act — s 572 …. Outline of Section ….

[8-6980.1] [8-6980.5] [8-6980.10] [8-6980.15]

[8-6980.1] Derivation The section is new. [8-6980.5] Regulations — s 572 The regulations to the Fair Work Act do not provide for fees to be charged in relation to proceedings in a court. They do set out fees for applications to FWA. The fees to be charged in relation to proceedings in a court are set out in Sch 1 to the Federal Court of Australia Regulations 2004 and Sch 1 to the Federal Magistrates Court Regulations 2000. [8-6980.10] This Act — s 572 See s 12. [8-6980.15] Outline of Section The section allows fees for court proceedings to be set by regulation. *Editor’s note: Commentary to s 572 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

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[page 863]

CHAPTER 5 — ADMINISTRATION THE FAIR WORK COMMISSION Original commentary by Peta Tumpey, Partner, TressCox Lawyers and Amanda Jarquin, Solicitor, TressCox Lawyers This commentary was last reviewed in July 2013 by Erik Young, Barrister, Fifteenth Floor, Wardell Chambers. CONTENTS

Paragraph The Fair Work Commission The Fair Work Commission: key points …. Brief history …. The legal and administrative functions of the Fair Work Commission Unique structure of the Fair Work Commission …. Legal function — what legal disputes will the Fair Work Commission deal with? …. Subject matter of legal disputes …. Administrative functions of the Fair Work Commission …. Administrative support to federal courts …. Administrative support: state industrial authorities …. Administrative offices …. The Fair Work Commission dispute resolution methods Introduction …. Types of dispute resolution methods …. The role of the Fair Work Commission members Introduction …. Outline of the Fair Work Commission members ….

[Com 75,010] [Com 75,020]

[Com 75,030] [Com 75,040] [Com 75,050] [Com 75,060] [Com 75,070] [Com 75,080] [Com 75,090]

[Com 75,100] [Com 75,110] [Com 75,120] [Com 75,130]

The role of the Fair Work Commission’s administrative staff Oversight of staff …. Outline of administrative staff …. Delegated powers of the Fair Work Commission administrators …. The legal complaint handling processes and procedure of the Fair Work Commission Introduction …. Applications to the Fair Work Commission ….

[Com 75,140] [Com 75,150] [Com 75,160]

[Com 75,170] [Com 75,180] [page 864]

Paragraph Documents and lodgement procedure for legal complaints …. Powers to dismiss applications …. Discontinuance of applications …. Rules of evidence …. Legal representation …. Costs …. Decisions of the Fair Work Commission …. Structure of powers for the Fair Work Commission members …. Reconstitution if single member of the Fair Work Commission becomes unavailable …. Minister’s submissions …. The Fair Work Commission — appeals process Introduction …. Applications to appeal a decision of the Fair Work Commission …. Who hears the appeal …. Process of appealing decisions …. Referral to the Federal Court of Australia ….

[Com 75,190] [Com 75,200] [Com 75,210] [Com 75,220] [Com 75,230] [Com 75,240] [Com 75,250] [Com 75,260] [Com 75,270] [Com 75,280] [Com 75,290] [Com 75,300] [Com 75,310] [Com 75,320] [Com 75,330]

Review of decisions …. Requirements for lodging applications to the FW Commission ….

[Com 75,340] [Com 75,350]

[Com 75,010] The Fair Work Commission: key points The Fair Work Act 2009 (Cth) established a federal body called Fair Work Australia which replaced the Australian Industrial Relations Commission, Australian Industrial Registry, Australian Fair Pay Commission, Australian Fair Pay Commission Secretariat, Workplace Authority, and the Workplace Ombudsman. It became fully operational on 1 January 2010. On 1 January 2013, the name of the tribunal was changed to Fair Work Commission. The Fair Work Commission (the FW Commission) oversees a range of administrative functions, undertakes an education and compliance role, conciliates and arbitrates industrial disputes and monitors and ensures that modern awards, enterprise bargaining, minimum wages and the national employment standards are upheld and, when necessary, varied to reflect the intent of the legislation. A general manager oversees the administrative functions of the FW Commission. A president governs the dispute resolution functions of the body, and has the same status of a judge of the Federal Court of Australia. Compliance, education and advisory functions are undertaken by the Office of the Fair Work Ombudsman. The Fair Work Ombudsman commenced operation on 1 July 2009. Judicial functions under the FW Act are undertaken by the specialist Fair Work Divisions of the Federal Court of Australia and the Federal Circuit Court of Australia. [page 865] [Com 75,020] Brief history The introduction of the Fair Work Act 2009 (Cth) (FW Act) and the body now known as the Fair Work Commission (FW Commission) marked a significant shift in the regulation of industrial relations in Australia at a national level. The dual administrative and industrial dispute resolution functions of the FW Commission differ to the previous role of the Australian Industrial Relations Commission (AIRC) which acted as a conciliator and arbitrator of complaints, with associated entities undertaking administrative-based tasks. The role of AIRC prior to WorkChoices The primary role and function of the AIRC in the period prior to the introduction of WorkChoices on 22 March 2006, was to prevent and resolve interstate industrial disputes between parties through the process of conciliation and, if necessary, through arbitration. The AIRC undertook the role of reviewing and either approving or refusing to approve certified bargaining agreements, being an active part of bargaining between employers, employees and unions, creating and overseeing a system of industrial awards including powers to make and vary awards and a role in deciding unfair dismissal claims in the federal jurisdiction: Workplace Relations Australia, LexisNexis (2006), looseleaf, vol 1, at [s 62.15]. The AIRC during the WorkChoices era The powers and functions of the AIRC were diluted following the amendment of the Workplace Relations Act 1996 (Cth) by the Workplace Relations Amendment (WorkChoices) Act 2005 (Cth), which introduced WorkChoices. The then government removed from the AIRC its wage-setting responsibilities, the responsibility for certifying collective bargaining agreements and its power as a compulsory dispute resolution body to determine interstate

industrial disputes and conditions of employment. Its function to create new industrial awards became limited. The practical effect of amendments to unfair dismissal laws under WorkChoices was that fewer unfair dismissal claims were filed, resulting in fewer opportunities for the AIRC to be involved in resolving such disputes. Overall, the number of disputes handled by the AIRC decreased following the introduction of WorkChoices legislation, from 25,355 in 2005–06 to 10,273 in 2006–07: Australian Industrial Relations Commission, Annual Report, 2006–2007, pp 41–2. The introduction of Fair Work Australia (now the Fair Work Commission) Following the election of a new federal government in 2007 and a consultation process with a broad range of stakeholders in relation to amending the legislation relating to labour relations, the Fair Work Bill 2008 (Cth) (FW Bill) was introduced into parliament on 25 November 2008. The FW Bill was described in its Explanatory memorandum as legislation which “creates a national workplace relations system that is fair to working people, flexible for business and promotes productivity and economic growth”: House of Representatives, Explanatory Memorandum, Fair Work Bill 2008 p i. The centralised tribunal now known as the FW Commission was a central point of the industrial relations policy of the new Federal government. In the second reading speech to the introduction of the FW Bill the intention behind the creation of FW Australia (now the FW Commission) was described as follows: Fair Work Australia is to act as a one-stop shop for information, advice and assistance on workplace issues, by merging the functions currently performed across seven government agencies. Fair Work Australia will be independent and will be focused on providing fast and effective assistance for employers and employees. The Explanatory Memorandum for the FW Bill noted that the proposed “one stop shop” element of the FW Commission would benefit employers and employees by giving them a “central point of contact for workplace relations issues” rather than having to spend time working out the mechanics and processes of a number of related agencies: House of Representatives, Explanatory Memorandum, Fair Work Bill 2009 p vi. [page 866] The report of the Senate Standing Committee of Education, Employment and Workplace Relations described FW Commission as “an independent umpire” that was to exist within a “reaffirmation of the principle of collective bargaining at an enterprise level” and the “restoration of unfair dismissal appeal rights”: Senate Standing Committee on Education, Employment and Workplace Relations, Fair Work Bill 2008, February 2009, at [1.10]. These underlying policy considerations are apparent throughout the FW Act.

THE LEGAL AND ADMINISTRATIVE FUNCTIONS OF THE FAIR WORK COMMISSION [Com 75,030] Unique structure of the Fair Work Commission The Fair Work Commission (FW Commission) is established by s 575 of the Fair Work Act 2009 (Cth) (FW Act) and replaces: the Australian Industrial Relations Commission,

Australian Industrial Registry, Australian Fair Pay Commission, Australian Fair Pay Commission Secretariat, Workplace Authority, and Workplace Ombudsman. The FW Commission is unique in that it has been established as an overarching national labour relations body which has both administrative and dispute resolution functions. To undertake the range of functions outlined in the FW Act, which include dispute resolution, education, reviewing minimum wages, maintaining employment conditions for national system employees and undertaking administrative functions, the FW Commission is separated into a number of divisions, each with a specific responsibility. [Com 75,040] Legal function — what legal disputes will the Fair Work Commission deal with? The Fair Work Act 2009 (Cth) (FW Act) empowers the Fair Work Commission (FW Commission) to undertake the dispute resolution functions previously performed by the Australian Industrial Relations Commission. The FW Act sets out a range of subject matters that the dispute resolution arm of the FW Commission has power to deal with (see [3,100] below) and provides a number of functions that the FW Commission must undertake in order to ensure ongoing compliance with the intentions of the FW Act: see s 576 of the FW Act. The FW Commission is directed by the FW Act to perform its functions in a manner which is “fair and just”, “quick, informal and avoids unnecessary technicalities”, is “open and transparent” and “promotes harmonious and cooperative workplace relations”: s 577 of the FW Act. [Com 75,050] Subject matter of legal disputes The dispute resolution arm of the Fair Work Commission (FW Commission) is legislatively empowered to determine issues arising in the following subject matters as specified in s 576 of the Fair Work Act 2009 (Cth) (FW Act): The National Employment Standards The FW Commission may determine disputes between employers and national system employees with respect to the National Employment Standards (NES) as set out in Pt 2-2 of the FW Act. The FW Commission may also determine whether there is scope for a valid extension of certain NES to non-national system employees under Pt 5-1 of the FW Act. Modern awards The FW Commission is tasked to monitor and if necessary vary modern awards to ensure that all modern awards satisfy the objectives set out in s 134 of the FW Act and provide a “fair and relevant minimum safety net of terms and conditions”. [page 867] In carrying out its functions in relation to modern awards, the FW Commission is required to ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account: relative living standards and the needs of the low paid; the need to encourage collective bargaining; the need to promote social inclusion through increased workforce participation; the need to promote flexible modern work practices and the efficient and productive

performance of work; the principle of equal remuneration for work of equal or comparable value; the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and the likely impact of any exercise of modern award powers on employment growth, inflation and the sustain-ability, performance and competitiveness of the national economy. This requirement is referred to as the “modern awards objective”: s 134 of the FW Act. A full bench of the FW Commission must conduct a review of all modern awards every four years: s 156 of the FW Act. In carrying out its reviews, the FW Commission is empowered to make variations to modern awards, create new modern awards and revoke modern awards, by following specified criteria: s 156(1) and (2) of the FW Act. Enterprise agreements The FW Commission has a specified role to facilitate good faith bargaining and to oversee the establishment of enterprise agreements: s 171 of the FW Act. The FW Commission has power to review and approve enterprise agreements upon application by the relevant bargaining representative (s 185 of the FW Act), and must approve the enterprise agreement if it complies with specified criteria set out in ss 186 and 187 of the FW Act. When an enterprise agreement is made, a bargaining representative must apply to the FW Commission for approval of the agreement. The FW Commission has the power to approve variations to an enterprise agreement. Applications for a variation to an enterprise agreement can only be brought to the FW Commission’s attention by a person covered by the enterprise agreement: s 210 of the FW Act. Importantly, the FW Commission must approve the variation of the enterprise agreement if it is satisfied that the variation request meets certain criteria outlined in s 186 of the FW Act, unless there are serious public interest grounds for non-approval: s 211 of the FW Act. The FW Commission is also empowered to resolve disputes between parties concerning the proposed variation: s 217A of the FW Act. Terminations of enterprise agreements cannot take effect until approved by the FW Commission (s 219(2) of the FW Act) and the FW Commission will determine the termination of an enterprise agreement upon application by a party to the agreement (s 222(1) of the FW Act) by taking into account the factors set out in s 223 of the FW Act. Once an enterprise agreement has met its nominal expiry date, a party to the agreement may apply to the FW Commission to terminate the agreement: s 225 of the FW Act. Workplace determinations The FW Commission has power to make binding workplace determinations, which are best described as decisions regarding terms and conditions that apply to particular national system employees in a specified class of employees or in a certain industry. Determinations can be made for employees in low paid industries, with respect to industrial action and in relation to bargaining situations in accordance with Pt 2-5 of the FW Act. [page 868] Minimum wages Since the abolition of the Australian Fair Pay Commission, the determination of minimum wages has been referred to the Minimum Wage Panel (MWP) of the FW Commission. The MWP must conduct and complete an annual wage review in each financial year in accordance with Pt

2-6 of the FW Act: s 617. The MWP must create and maintain a safety net of fair minimum wages by considering the factors outlined in s 284(1) of the FW Act. The section refers to this as the “minimum wages objective”. Equal remuneration Upon application by an employee, an employee organisation or the Sex Discrimination Commissioner, the FW Commission may make an equal remuneration order to ensure that all Australian employees performing similar roles of comparable value will be remunerated on an equal basis: s 302 of the FW Act. Transfer of business The FW Commission has power to make orders with respect to the conditions of employment outlined in an industrial instrument for an employee affected by a proposed transfer of business arrangement (s 317 of the FW Act), including employees who are not transferring: s 319 of the FW Act. The FW Commission also has authority to vary a proposed transferable instrument and in doing so must consider certain factors which are set out in s 320(3) of the FW Act. These are very significant powers that employers ought to keep sharply in mind when considering the merger or take over of another business. General protections An important function of the FW Commission is the protection of workplace rights relating to the right to freedom of association, the ability to engage in lawful industrial activities, the entitlement to protection from discrimination and victimisation and protection from sham arrangements with respect to independent contractor engagements as outlined in Pt 3-1 of the FW Act. If there has been a contravention of a general protection, a person affected by the contravention (including a business) or an industrial association may apply to the FW Commission to have the dispute dealt with by the FW Commission (s 365 of the FW Act) if the contravention is a dismissal or otherwise by s 372 of the FW Act. If the dispute involves a dismissal, the application must be made within 21 days of the dismissal taking affect, or such other time allowed by the FW Commission: s 366 of the FW Act. If the dispute is not resolved by the FW Commission via conciliation, a general protections court application may be made: Division 2 of Part 4-1 of the FW Act. Unfair dismissal The FW Commission is entrusted with the function of reviewing, determining and where applicable granting remedies for unfair dismissal: Pt 3-2 of the FW Act. The FW Act provides the FW Commission with a framework for dealing with unfair dismissal disputes as it directs the FW Commission to establish procedures which are less complex, are informal, balance the needs of employers and employees and are geared toward providing a “fair go all round”: s 381 of the FW Act. Prior to considering the substantive merits of any unfair dismissal claim, the FW Commission is obliged to consider initial threshold factors such as whether the application was made within the required time, whether the dismissal was consistent with the Small Business Fair Dismissal Code and in some circumstances whether the dismissal result from a genuine redundancy: s 396 of the FW Act. Only then can the FW Commission determine whether the dismissal was harsh, unjust or unreasonable and whether the dismissal offended the Small Business Fair Dismissal Code. Although the time limit for bringing an unfair dismissal claim is 21 days from dismissal, the FW Commission may extend the time for lodgement beyond under s 394 of the FW Act if it is satisfied that there are exceptional circumstances, taking into account: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect;

[page 869] any action taken by the person to dispute the dismissal; prejudice to the employer (including prejudice caused by the delay; the merits of the application; and fairness as between the person and other persons in a similar position. The remedies available to the FW Commission are to order compensation, to order restoration of lost pay and orders to maintain continuity of employment. Emphasis has been placed on the FW Commission’s onus to consider reinstatement as a first instance remedy: Pt 3-2 Div 4 of the FW Act. These remedies maintain in the FW Commission the powers previously held by the former AIRC. Industrial action The FW Commission can make orders with respect to industrial action and can, by application, or on its own initiative, order that industrial action, which is not in its opinion protected industrial action, either stop, not occur or not be organised: s 418 of the FW Act. The FW Commission can order that threatened industrial action stop if it is initiated by a nonnational system employee or employer and would likely cause damage to the business of a constitutional corporation (which is defined in s 12 of the FW Act): s 419 of the FW Act. If an application is made to the FW Commission for a protected action ballot order, the FW Commission must determine whether each of the applicants has been genuinely trying to reach an agreement before making an order: s 443 of the FW Act. Right of entry The issue of entry permits, entry notices and certificates are also considered by the FW Commission under the provisions of Pt 3-4 Div 6 of the FW Act. If disputes arise with respect to access to employee records, the FW Commission is empowered to deal with these: s 505 of the FW Act. Stand down The FW Commission is the venue for dealing with disputes about national system employee stand downs and in doing so “must take into account fairness between the parties concerned”: s 526 of the FW Act. In deciding whether or not an employer’s decision to stand down employees is fair, the FW Commission may take into account a wide range of factors such as the notice given to the employee, the employees’ parental obligations, the reasons provided for the stand down and an assessment of whether or not the reason given by the employer is a disguised attempt to limit an employee’s ability to earn during that period. Other rights and responsibilities The FW Commission has the ability to make limited orders in certain circumstances if an employer fails to notify Centrelink of a decision to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature: Pt 3-6 Div 2 Subdiv B of the FW Act. Unlawful termination A national system employee may apply to the FW Commission to determine a complaint of unlawful termination: s 773 of the FW Act. Grounds for unlawful termination can include complaints made for dismissal for reasons such as temporary absence from work for a prescribed illness or injury; trade union membership or non-membership including issues surrounding seeking or acting as an employee representative; filing a complaint against an employer for an alleged violation of laws; any ground of discrimination; absence from work as a result of parental or maternity leave; a reasonable temporary absence from work to engage in a voluntary emergency management activity s 772(1) of the FW Act. There are certain exemptions available to employers which may justify the otherwise unlawful reason for the termination, including if the decision was based upon the inherent requirements of the position concerned s 772(2) of the FW Act.

The FW Commission must conduct a conference between the parties at first instance to deal with the dispute, either through conciliation or mediation (s 776 of the FW Act), and has the obligation to inform the parties if it thinks, on the material presented, that the application has no reasonable prospects of success: s 778(1) of the FW Act. [page 870] The FW Commission then must determine whether all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful before deciding whether to issue a certificate to this effect: s 777 of the FW Act. [Com 75,060] Administrative functions of the Fair Work Commission The Fair Work Commission (FW Commission) contains an administrative division that provides support, education and assistance to the public with respect to national workplace relations matters. The General Manager and the staff of the FW Commission constitute a statutory agency and the General Manager is considered the head of the statutory agency: s 670 of the Fair Work Act 2009 (Cth) (FW Act). The Office of the Fair Work Ombudsman (FW Ombudsman) undertakes investigative and compliance functions, overseen by a FW Ombudsman established under s 681 of the FW Act. [Com 75,070] Administrative support to Federal Courts The General Manager of the Fair Work Commission is empowered to enter into a written arrangement with the Fair Work Division of the Federal Court of Australia and the Federal Circuit Court of Australia to provide administrative support to aid the efficiency of the judicial determination of industrial disputes under the Fair Work Act 2009 (Cth): ss 576(2)(c) and 653A of the FW Act. [Com 75,080] Administrative support: state industrial authorities The President of the Fair Work Commission (FW Commission) can enter into an arrangement with a prescribed state industrial authority in relation to the provision of administrative support: s 650 of the FW Act. The rationale for such an arrangement is to enable the FW Commission to have a greater presence in regional areas, and the arrangement can allow the FW Commission to provide administrative support to the state industrial authority, or authorise the state industrial authority to provide administrative support to the FW Commission. [Com 75,090] Administrative offices The FW Commission has established an office to deal with administrative matters, inquiries and education issues, while Fair Work Registries provide support to assist the FW Commission carry out its arbitral functions. The Office of the Fair Work Ombudsman The Office of the FW Ombudsman is created under s 696 of the FW Act and is constituted by the FW Ombudsman, staff members appointed to the office and Fair Work Inspectors. The general role of the Office of the FW Ombudsman is to promote harmonious, productive and cooperative workplace relations and compliance with the FW Act and fair work instruments by providing education, advice and assistance to employees, employers and organisations: see House of Representatives, Explanatory Memorandum, Fair Work Bill 2008 p 385. One of the initial functions of the Office of the FW Ombudsman is to prepare and publish a Fair Work Information Statement which contains prescribed statements regarding employee entitlements under the FW Act and is to be distributed by employers to all new employees: s 124 of the FW Act. The FW Ombudsman is able to institute proceedings against those who have allegedly failed to

provide the entitlements prescribed by the FW Act, a fair work instrument or a term of a contract which is considered a safety net entitlement: s 682(d) of the FW Act. Additionally, the FW Ombudsman can advise and represent employees or outworkers in court proceedings to facilitate compliance with the FW Act (s 682(f) of the FW Act) or an industrial instrument in circumstances where an employee may not have the ability to commence proceedings on his or her own. The education and advisory functions of the Office of the FW Ombudsman include the provision of general information in the form of fact sheets, guides and other explanatory statements, conducting targeted education campaigns for an industry or class of employees, [page 871] assisting parties to access self help remedies and responding to requests for advice or information including entitlements prescribed under the National Employment Standards or a modern award. The investigation, monitoring, enquiry and compliance functions of the FW Act are undertaken by Fair Work Inspectors.

THE FAIR WORK COMMISSION DISPUTE RESOLUTION METHODS [Com 75,100] Introduction The Fair Work Commission (FW Commission) has the general discretion to deal with an industrial dispute under the Fair Work Act 2009 (Cth) (FW Act) through the process of conciliation, mediation, by making a recommendation or expressing an opinion at first instance: s 595(2) of the FW Act. If the decision to be made is procedural or interim, the FW Commission has broader powers to determine the method, the time and the place that the matter is to be dealt with: s 589 of the FW Act. The emphasis upon the conciliation and mediation functions of the FW Commission are consistent with the scheme of the FW Act to facilitate disputes to be resolved in an expedient, cost effective and non-legalistic manner. [Com 75,110] Types of dispute resolution methods Conferences The Fair Work Commission (FW Commission) has the power to direct a person who is a party to an application before it to attend a conference at a specified time and place, which is to be conducted in private unless the dispute resolution member orders otherwise: s 592 of the FW Act. The discretion to not hold the conference in private is not available to the FW Commission if the matter relates to minimum wages under Pt 2-6 of the FW Act or to conferences conducted in relation to unfair dismissal or general protection matters: s 592 of the FW Act. For disputes concerning general protection provisions, alleged unfair dismissals and alleged unlawful terminations, the conferences must be held in private: ss 368(2), 374(2), 398(2) and 776(2) of the FW Act. Arbitration The scheme of the FW Act is for the FW Commission to deal initially with disputes by way of a conciliation conference. The procedure of arbitration is available to the FW Commission in certain circumstances only. For instance if the parties to a bargaining dispute consent, the FW Commission can deal with the dispute at first instance by arbitration: s 240(4) of the FW Act. The FW

Commission also has discretion in prescribed situations, such as unfair dismissal applications or in relation to a dispute about employee stand downs, to arbitrate some or all of the issues in contention: s 399 and s 526(2) of the FW Act. In instances in which the FW Commission is empowered to hold a hearing, unless the dispute involves information of a confidential or sensitive nature, all hearings must be held in public. The FW Act confers further discretion upon the FW Commission to make orders for the protection of confidential information even if it does not hold a hearing, with the exception of matters dealing with the annual wage review: s 594 of the FW Act. Arbitrations that are conducted by the FW Commission are not subject to the rules of evidence and members are entitled to inform themselves as to the information and evidence as he or she sees fit including, but not limited to, requiring a person to attend to give evidence, requiring that certain documents be produced, inviting parties to give submissions, undertaking research, making enquiries or requiring another member to prepare a report: ss 590 and 591 of the FW Act. Mediation referrals The FW Commission has the function of mediating matters referred by the Fair Work Division of the Federal Court of Australia or Federal Circuit Court of Australia: s 576(2)(ca) of the FW Act. [page 872] Judicial functions The FW Act establishes a specialist Fair Work Division of the Federal Court of Australia and Federal Circuit Court of Australia which is empowered to make judicial determinations under the provisions of the FW Act: s 562 of the FW Act.

THE ROLE OF THE FAIR WORK COMMISSION MEMBERS [Com 75,120] Introduction The dispute resolution arm of the Fair Work Commission (FW Commission) consists of a number of dispute resolution officers, referred to as members, who are appointed by the Governor-General by written instrument under s 626(1) of the Fair Work Act 2009 (Cth) (FW Act). To safeguard the independence of the Fair Work Commission, such members have the same protection and immunity as justices of the High Court of Australia in performing their functions and exercising powers: s 580 of the FW Act. Dispute resolution members of the Fair Work Commission are directed by the FW Act to consider the objects of the legislation as a whole, the “equity, good conscience and the merits of the matter” and the need to protect the “diversity of the workforce” through the elimination of discrimination when making decisions under the FW Act: s 578 of the FW Act. [Com 75,130] Outline of the Fair Work Commission members The dispute resolution members of the Fair Work Commission (FW Commission) are arranged in the following hierarchy: The President It is the Governor-General’s responsibility to appoint a president of the FW Commission. The president is responsible for ensuring that the FW Commission, the general manager and its members perform the functions, exercise its powers and deal with matters efficiently to serve the needs of employers and employees in Australia.

The president may delegate (in writing) to a deputy president, all of the president’s powers except the power of delegation itself; the power to personally determine which of the FW Commission’s members form part of the Minimum Wages Panel (MWP); and the power to personally manage the MWP. The president must complete a report to the minister on an annual basis which is then presented to Parliament: s 652 of the FW Act. The Fair Work Regulations 2009 (Cth) outline the information that the president will be obliged to include in the annual report and disclose to the minister and includes such information as the number of determinations varying modern awards, the number of applications for the approval of enterprise agreements, bargaining orders, workplace determinations, equal remuneration orders, business transfers, unfair dismissals, industrial actions and right of entry disputes: cl 5.04 and Sch 5.2 of the FW Regulations. The office of president is a full-time position and is held until the president reaches the age of 65, resigns or is terminated under the provisions of the Fair Work Act 2009 (Cth) (FW Act): ss 628(1) and 629(1) of the FW Act. Vice Presidents The FW Act does not prescribe the number of vice presidents that can be appointed by the Governor-General to the FW Commission. The FW Act does, however, state that each appointee must have qualifications that are considered acceptable by either his or her former role as a judge of a court created by the Federal Parliament or is qualified for appointment by his or her relevant knowledge or experience: s 627(1) of the FW Act. The role of vice president is a full-time position, and he or she cannot engage in paid employment outside the role of vice president without gaining the president’s approval, unless the outside role is with the Department of Defence: s 633 of the FW Act. A vice president holds office until he or she reaches 65 years, resigns or is terminated under the provisions of the FW Act: ss 628(1) and 629(1) of the FW Act. [page 873] Deputy Presidents The FW Act does not prescribe the number of deputy presidents that can be appointed by the Governor-General to the FW Commission. The FW Act does, however, state that each appointee must have qualifications that are considered acceptable by either their former role as a judge of either a federal or state court, or qualified by his or her relevant knowledge or experience: s 627(2) of the FW Act. A deputy president is able to hold his or her position on a full-time or part-time basis but cannot engage in paid employment outside the role of deputy president without gaining the president’s approval, unless the outside role is with the Department of Defence: s 633 of the FW Act. A deputy president holds office until he or she reaches 65 years, resigns or is terminated under the provisions of the FW Act: ss 628(1) and 629(1) of the FW Act. Commissioners The FW Act does not prescribe the number of commissioners that can be appointed to the FW Commission (s 575(2)(c) of the FW Act) but does require such appointed commissioners to be suitably qualified through previous knowledge and experience: s 627(4) of the FW Act. A commissioner is able to hold their position on a full-time or part-time basis but cannot engage in paid employment outside the role of commissioner without gaining the President’s approval, unless the outside role is with the Department of Defence: s 633 of the FW Act. A commissioner holds office until he or she reaches 65 years, resigns or is terminated under the provisions of the FW Act: ss 628(1) and 629(1) of the FW Act. Minimum Wage Panel members There are to be between four and six members appointed to the

MWP (s 575(2)(d) of the FW Act) which are to be determined by the President: s 620(2) of the FW Act. The role of the members of the MWP is to conduct an annual review of wages and make a national minimum wage order or determination: s 617 of the FW Act. The members that are appointed must have relevant knowledge and experience as outlined in s 627(4) of the FW Act. MWP members hold their positions on a part-time basis (s 628(3) of the FW Act) and cannot retain their position for a term longer than five years, unless reappointed: s 629(4) of the FW Act. A MWP member is not entitled to engage in outside paid employment during the term of his or her engagement if in the opinion of the president, the outside position conflicts with the performance of his or her duties as a FW Commission member: s 633(3).

THE ROLE OF THE FAIR WORK COMMISSION’S ADMINISTRATIVE STAFF [Com 75,140] Oversight of staff The administrative functions of the Fair Work Commission are overseen by a general manager with staff that are employed under the Public Service Act 1999 (Cth): s 670 of the Fair Work Act 2009 (Cth) (FW Act). The general manager is responsible for his or her staff and must ensure that the functions outlined in the FW Act are achieved. In a similar way, the Fair Work Ombudsman (FW Ombudsman) is responsible for the staff engaged in the Office of the FW Ombudsman and has the role of ensuring that the functions and powers prescribed by the FW Act are adhered to. [Com 75,150] Outline of administrative staff General Manager The position of the general manager is established under s 656 of the Fair Work Act 2009 (Cth) (FW Act) and oversees the administrative functions of the Fair Work Commission (FW Commission). The general manager is to be appointed by the Governor-General by written instrument and is to hold office on a full-time basis: s 660 of the FW Act. The president must approve any paid employment undertaken by the general manager during the term of the position (s 663 of the FW Act) and the general manager is bound to disclose any potential conflicts: s 664 of the FW Act. [page 874] The actions of the general manager are ultimately subject to the scrutiny and direction of the president of the FW Commission and the minister: s 582(2) of the FW Act. The general manager of FW Commission assists the president to ensure the FW Commission performs all of its functions and exercises its powers in an efficient manner. The general manager must undertake research and produce a report which relates to the creation of enterprise agreements, the extent that flexibility clauses in modern awards and enterprise agreements are being adhered to, the operation of the National Employment Standards (NES) with respect to requests for flexible working arrangements and extensions of unpaid paternity leave and its effect upon groups traditionally marginalised in the employment sphere including women, part-time employees, persons from non-English speaking backgrounds, mature aged persons and young persons: s 653 of the FW Act. The general manager is appointed for a period of no longer than five years, unless he or she is reappointed, resigns or is terminated under the provisions of the FW Act: ss 660, 665 and 666 of the FW Act.

Fair Work Ombudsman The Fair Work Ombudsman (FW Ombudsman) has been established by s 681 of the FW Act to replace the Workplace Ombudsman, and will oversee the Office of the FW Ombudsman. The FW Ombudsman is appointed by the Governor-General through written instrument with the approval of the minister as to his or her suitable qualifications, experience and good character: s 687 of the FW Act. A report must be prepared by the FW Ombudsman at the conclusion of each financial year with respect to the operations of the Office of the FW Ombudsman which must be provided to the minister to be tabled in Parliament: s 686 of the FW Act. The minister’s approval must be obtained by the FW Ombudsman before he or she engages in a paid position outside the FW Commission (s 690 of the FW Act) and must give written notice to the minister of any interest that may conflict with the proper performance of the position: s 691 of the FW Act. The FW Ombudsman is engaged on a full-time basis for a period of not more than five years, unless he or she is reappointed, resigns or is terminated under the provisions of the FW Act: ss 690, 692 and 693 of the FW Act. Fair Work inspectors Fair Work inspectors are appointed by the FW Ombudsman by written instrument after the FW Ombudsman is satisfied that the inspector is of sound character: s 700 of the FW Act. Once appointed, Fair Work inspectors are issued with an identity card and are responsible for investigating relevant matters and exercising compliance powers granted under the FW Act: s 706 of the FW Act. The FW Ombudsman has the authority to give general directions, by legislative instrument, in writing and particular directions related to the performance of Fair Work inspectors’ functions, which must be complied with by the inspectors: ss 704 and 705 of the FW Act. In exercising compliance functions Fair Work inspectors and their assistants have the authority, with a reasonable belief, to enter applicable premises and inspect and make copies of documents, conduct interviews, inspect work processes or take samples of any goods or substances in a procedure prescribed by reg 5.06 of the Fair Work Regulations 2009 (Cth): ss 708, 709 and 710 of the FW Act. A Fair Work inspector has scope to exercise compliance powers if he or she has a reasonable belief that a person has disregarded a provision of the NES, a term of a modern award, a term of an enterprise agreement, a term of a workplace determination, a term of a national minimum wage order or a term of an equal remuneration order: s 706(2) of the FW Act. A Fair Work inspector also has the authority to issue compliance notices if he or she reasonably believes that a contravention has occurred: s 716 of the FW Act. [page 875] [Com 75,160] Delegated powers of the Fair Work Commission administrators The president may, in writing, delegate a range of prescribed powers of the Fair Work Commission (FW Commission) to the general manager or an administrative member of staff of the FW Commission: s 625(1) of the FW Act. Such powers are procedural and non-determinative, and are exercised by the FW Commission’s staff under the supervision of the FW Commission’s members. The tasks able to be delegated by the president include the ability to correct or amend applications and documents, or waive irregularities (s 586 of the FW Act), the ability for the FW Commission to inform itself as it considers appropriate (other than under the FW Commission’s power to hold a hearing) (s 590 of the FW Act), to conduct a conference (s 592 of the FW Act), and to correct or amend obvious errors, defects or irregularities: s 602 of the FW Act. The president may also, in writing, delegate certain substantive functions and powers to the general manager, a member of staff of the FW Commission who is an SES employee or acting SES employee

or a member of staff of the FW Commission as prescribed in the Fair Work Regulations 2009 (FW Regs): s 625(2) of the FW Act. Substantive tasks that can be delegated include publishing: varied modern awards (s 168 of the FW Act), submissions (s 289 of the FW Act), research (s 291 of the FW Act), varied wage rate (s 292 of the FW Act), and the results of a protected action ballot under (s 457 of the FW Act). Delegations are also allowed in relation to: imposing conditions on entry permits, revoking or suspending entry permits, and banning the issue of any further entry permits (s 507 or 510 of the FW Act). The functions and powers of the FW Commission under Div 6 of Pt 3-4 of the FW Act which deal with entry permits, entry notices and certificates, publishing enterprise agreements (s 601(4)(b) of the FW Act) are also able to be delegated. Any function or power prescribed by the FW Regs 2009 can be delegated by the president. The general manager can also, in writing, delegate certain substantive functions and powers outlined in the FW Act to a member of staff who is a member of the FW Commission and is an SES employee (or acting SES employee) or are a class of employee of the FW Commission as prescribed by the FW Regs 2009.

THE LEGAL COMPLAINT HANDLING PROCESSES AND PROCEDURE OF THE FAIR WORK COMMISSION [Com 75,170] Introduction The president can, by legislative instrument, make procedural rules following consultation with other Fair Work Commission (FW Commission) members as to the practice and procedure to be followed by the FW Commission and participants in the dispute resolution process of the FW Commission: s 609(1) of the FW Act. Such rules have been introduced and are known as the Fair Work Australia Rules 2010. The Fair Work Regulations 2009 (Cth) (FW Regs) have the ability to outline procedural matters to be followed and will prevail over any inconsistent procedural rules made by the president: s 610 of the FW Act. [Com 75,180] Applications to the Fair Work Commission Applications to the Fair Work Commission (FW Commission) must be made in accordance with applicable procedural rules. If this is not done, the FW Commission has the power to dismiss the application: s 585 of the FW Act. Such procedural rules are contained in the Fair Work Australia Rules 2010. [Com 75,190] Documents and lodgement procedure for legal complaints to the Fair Work Commission Applications for relief are to be lodged by relevant employees, employee organisations, bargaining agents and employers with the registry of the Fair Work Commission (FW Commission). These documents are set out in the FW Rules (see Sch 1 of the FW Rules 2010 and the forms at [60235]–[60-585]). [page 876] See also the table appended to this commentary at [Com 75,350] that highlights the requirements prescribed by the Fair Work Act 2009 (Cth) (FW Act), the Fair Work Australia Rules 2010 and the Fair Work Regulations 2009 for lodging applications to the FW Commission.

[Com 75,200] Powers to dismiss applications The Fair Work Commission (FW Commission) has the broad power to dismiss an application if it determines it to be frivolous or vexatious, have no reasonable prospects of success or if the application is in the opinion of the dispute resolution member, not made in accordance with the Fair Work Act 2009 (Cth) (FW Act): s 587 of the FW Act. The FW Commission does not have the ability to dismiss applications that it otherwise finds to be frivolous or vexatious or without reasonable prospects of success, if the application is made by a person, or on behalf of a person, under the general protection provisions outlined in Pt 3-1 of the FW Act, or if there has been an alleged unlawful termination under s 773 of the FW Act. [Com 75,210] Discontinuance of applications A party to an application is entitled to discontinue an action in accordance with relevant procedural rules (s 588 of the FW Act) which can be developed by the President of the Fair Work Commission, following consultation with members or through the Fair Work Regulations 2009 (Cth). [Com 75,220] Rules of evidence The Fair Work Commission (FW Commission) has the ability to inform itself in relation to any matter that is before it in whichever manner it considers appropriate (s 590(1) of the FW Act) including, but not limited to, requiring a person to attend to give evidence, compelling certain documents be produced, inviting parties to give submissions, undertaking research, making inquiries or directing another member to prepare a report: s 590(2) of the FW Act. In the exercise of this broad discretion, the FW Commission is not bound by the rules of evidence and procedure with respect to the matter being dealt with, even if the FW Commission is conducting a hearing: s 591 of the FW Act. [Com 75,230] Legal representation Legal representatives and paid agents must seek and be granted permission from the Fair Work Commission (FW Commission) before being able to represent a party to a dispute, unless the issue concerns modern awards or minimum wages: s 596 of the FW Act. The intent of the legislature in requiring legal representatives to receive permission before acting is in line with its idea to create processes that are non-legalistic, less complex and more efficient: The Senate, Standing Committee on Education, Employment and Workplace Relations Fair Work Bill 2008, February 2009, [8.19]. Legal representatives are compelled to demonstrate that their input will enable the matter to be dealt with by the FW Commission in a more efficient, less complex manner and that it would be unfair in the circumstances to not allow the person to be legally represented: s 596(2) of the FW Act. Certain people are excluded from the definition of a lawyer or paid agents prescribed in s 596(4) of the FW Act. It is now well established that the FW Commission is invested with a conditioned discretion to grant permission for a person to be represented by a lawyer or a paid agent (as set out at s 596(2)(a), (b) and (c) of the FW Act) and that such permission will ordinarily be granted if such conditions are objectively found to exist: see decision of Richards SDP in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited (Project Aurora) [2012] FWA 2966; BC201272309 at [8]–[9], which followed Rodgers v Hunter Valley Earthmoving Equipment Company Pty Ltd in which Harrison C held (at [12]) that “In practice the Tribunal would usually grant permission in formal proceedings, however, where a party raises an objection, the discretion afforded to the Tribunal will be exercised on the facts and circumstances of the particular case.” Both of these decisions were approved and applied by O’Callaghan SDP in Hoklas v Richmond Grove Wines T/A Orlando [2012] FWA 4011. [page 877]

[Com 75,240] Costs As a general premise, parties appearing before the Fair Work Commission (FW Commission) will ordinarily bear their own costs in relation to a matter that is heard before the dispute resolution arm: s 611(1) of the FW Act. This reflects the intent that FW Commission ought to hear and determine disputes under the FW Act with as little formality and legal technicality as possible. However, the FW Commission may order a party to bear some or all of the costs of the other party if it is satisfied that the party made the application or responded to an application vexatiously or without reasonable cause or it should have been reasonably ascertainable by a party that their application or response had no reasonable prospects of success: s 611(2) of the FW Act. There are also a range of circumstances in which, the FW Commission can also make cost orders against solicitors or paid agents who have been granted permission by the FW Commission to represent a party. The FW Commission has the discretion to grant a costs order against a lawyer or paid agent upon application by the other party in circumstances where the lawyer or paid agent encouraged the person to make the application and it should have been reasonably noticeable that the application had no reasonable prospects of success, or if the lawyer or paid agent unreasonably caused costs to be incurred due to an unreasonable act or omission in connection with the conduct or continuation of the proceeding: ss 376, 402 and 780 of the FW Act. The Fair Work Regulations 2009 (Cth) contain a schedule of costs (see Sch 3.1 of the FW Regs) that guide the quantification of costs orders made by the FW Commission. [Com 75,250] Decisions of the Fair Work Commission The decision making power of the Fair Work Commission (FW Commission) is restricted to the matters that it is entitled to determine in accordance with the Fair Work Act 2009 (Cth) (FW Act). However, except as may be specifically provided in the FW Act, the FW Commission is entitled to make a decision, in the form of orders or otherwise, that is different from the terms of the application before it: s 599 of the FW Act. The FW Commission also has the discretion to determine a matter in the absence of a person who is otherwise required to appear before it: s 600 of the FW Act. Decisions of the FW Commission, which are those determinations made following the arbitration of a dispute, are required to be in writing, as are decisions which are interim decisions and appeals: s 601 of the FW Act. The FW Commission may give written reasons for decisions, and if it does such reasons must be written in plain English and with a structure that is easy to understand: s 601(3) and (4) of the FW Act. Written reasons must be published by the FW Commission as soon as practicable after the decision has been made, unless the decision falls within any of the exemptions outlined in s 601(5) of the FW Act. The FW Commission has the additional discretion to put all decisions made by it, including those which were not the result of an arbitrated process, in writing and publish such nonarbitrated decisions: s 601(6) of the FW Act. By its own initiative or on application, the FW Commission is empowered to correct any obvious “error, defect or irregularity” in relation to a decision made: s 602 of the FW Act. The FW Commission is also empowered to vary a modern award or national minimum wage order to “remove an ambiguity or uncertainty or correct an error”: ss 160 and 296 of the FW Act. The FW Commission has the power to vary or revoke a decision made under the FW Act unless the decision falls within one or more of the categories highlighted in s 603(3) of the FW Act. [Com 75,260] Structure of powers for Fair Work Commission members A function or power of the Fair Work Commission (FW Commission) may be exercised or performed by a single FW Commission member, other than a Minimum Wage Panel (MWP) member, as directed by the president (s 612 of the FW Act), except if the action is in relation to the misuse of an organisation or official’s rights (s 508 of the FW Act) or an appeal, which must be heard by the Full Bench of the FW Commission (unless the appeal relates to an issue of delegated authority): s 613 of the FW Act.

[page 878] A full bench of the FW Commission consists of at least three members (including a MWP member), one of which must be either the president, a vice president or a deputy president: s 618(1) of the FW Act. It is the role of the president to determine the composition of members to the Full Bench of the FW Commission: s 618(2) of the FW Act. A decision of a majority of the FW Commission members on the Full Bench is the decision that is to prevail, but if there is no majority then the decision of the FW Commission member who has seniority takes precedence: s 618(3) and (4) of the FW Act. In terms of seniority, the president is has the highest precedence, followed by vice presidents (in order of their precedence of appointment), and then deputy presidents (in order of their precedence of appointment): s 619 of the FW Act. [Com 75,270] Reconstitution if single member of the Fair Work Commission becomes unavailable The president has the discretion to direct a member of the Fair Work Commission to stand in where another member who is dealing with a matter becomes unavailable. The replacement member must consider everything that took place before the previous member in the matter: ss 621, 622 and 623 of the FW Act. [Com 75,280] Minister’s submissions The minister is entitled to make submissions to the Full Bench of the FW Commission if he or she considers that such submissions are in the public interest or if the matter concerns a public sector employee: s 597 of the FW Act.

THE FAIR WORK COMMISSION — APPEALS PROCESS [Com 75,290] Introduction The appeals process contained in the Fair Work Act 2009 (Cth) (FW Act) reflects the structure of the appeals process in the former Workplace Relations Act 1996 (Cth) in relation to the Australian Industrial Relations Commission in that the Full Bench of the Fair Work Commission is the last internal avenue of appeal before the matter must be referred to the Federal Court of Australia. [Com 75,300] Applications to appeal a decision of the Fair Work Commission With the exception of a decision of the Full Bench of the Fair Work Commission (FW Commission) or the Minimum Wage Panel, a person aggrieved by a decision may apply to the Full Bench of FW Commission to seek permission to appeal: s 604 of the FW Act. In determining whether to grant permission to appeal, the Full Bench of the FW Commission must consider whether it is satisfied that it is in the public interest to grant permission and if so, must grant permission: s 604(2) of the FW Act. It should be noted that the Full Bench will only exercise its power to grant an appeal if it identifies some error, whether it be of fact or law, on the part of the primary decision-maker. The appeal rights applicable to unfair dismissal claims prescribe that the FW Commission is not entitled to allow an appeal unless it can be demonstrated both that it is in the public interest to do so, and to the extent that the appeal is on a question of fact, that the error of fact was significant: s 400 of the FW Act. The discretion of the Full Bench of FW Commission to grant permission to appeal is constrained in circumstances where the former decision-maker exercised a significant degree of discretion, as outlined in the decision of House v R (1936) 55 CLR 499; 10 ALJR 202: see House of Representatives

Explanatory Memorandum, Fair Work Bill 2008 (Cth), p 354. [Com 75,310] Who hears the appeal The Full Bench of the Fair Work Commission (FW Commission) is ordinarily required to determine the issue of permission to appeal and, if granted, hear the appeal: s 613(1) of the FW Act. Limited exceptions exist with respect to appeals concerning delegated powers which can be considered by the president, vice president or deputy president of the FW Commission: s 613(2) of the FW Act. [page 879] [Com 75,320] Process of appealing decisions Once permission is granted to hear an appeal, the Full Bench of the Fair Work Commission (FW Commission) can conduct the appeal with or without a hearing, subject to prescribed requirements: s 607(1) of the FW Act. The appeal may only be heard without a hearing if both, in the opinion of the FW Commission, the appeal can be “adequately determined without persons making oral submissions for consideration”, and the persons who would otherwise make submissions in the appeal give their consent: s 607 of the FW Act. The Full Bench or the president, a vice president or a deputy president can order that the decision, or part of it, that is the subject to the appeal be stayed, except where the decision is in relation to a protected action ballot order: s 606 of the FW Act. During the appeal process the FW Commission can consider the original evidence presented and can also admit further evidence and take into account any other information that it considers relevant and appropriate (s 607(2) of the FW Act). In terms of relief, the FW Commission has the discretion to “confirm, quash or vary” the decision under appeal, or to make a further decision which relates to the subject matter of the appeal or to refer the matter to another FW Commission member (other than a Minimum Wage Panel Member) to deal with the subject matter or to act in accordance with the directions of the FW Commission: s 607(3) of the FW Act. [Com 75,330] Referral to the Federal Court of Australia The president of the Fair Work Commission (FW Commission) may independently decide to refer a question of law arising in a matter before the FW Commission for the opinion of the Full Court of the Federal Court of Australia: s 608(1) and (2) of the FW Act. FW Commission may make a decision in relation to the referred matter, except where the question is specifically whether the FW Commission may exercise powers in relation to the matter: s 608(3) of the FW Act. Once the Full Court of the Federal Court of Australia has determined the question of law, the FW Commission can only make a decision that is not inconsistent with the opinion contained in that determination and, if it has previously made an inconsistent decision, must vary the decision to make it consistent with the Full Court of the Federal Court of Australia: s 608(3) and (4) of the FW Act. [Com 75,340] Review of decisions The minister can apply to the Fair Work Commission (FW Commission) for a review to be conducted of a decision (other than one made by the Full Bench or the Minimum Wage Panel (MWP)) if the minister believes the decision is “contrary to the public interest”: s 605 of the FW Act. This review must be done by the Full Bench. A separate mechanism has been provided in the Fair Work Act 2009 (Cth) (FW Act) for the minister because the minister is not an “aggrieved person” and therefore could not ordinarily institute an appeal. The FW Commission is obliged to conduct a review if it agrees with the minister that it is in the public interest to do so: s

605(2) of the FW Act. When undertaking a review, the FW Commission is to take such steps as it considers appropriate to ensure each person with an interest in the review is made aware of the review and that the minister is entitled to make submissions for consideration in the review: s 605(3) of the FW Act. The Full Bench or the President or the Deputy President can order that the decision, or part of it, that is subject to the review is stayed, except where the decision is in relation to a protected action ballot order: s 606 of the FW Act. During the review process the FW Commission can admit further evidence and take into account any other information or evidence that it considers relevant and appropriate (s 607(2) of the FW Act). [page 880] In terms of relief, the FW Commission has the discretion to “confirm, quash or vary” the decision under review, or to make a further decision which relates to the subject matter of the review or to refer the matter to another FW Commission member (other than a MWP Member) to deal with the subject matter or to act in accordance with the directions of the FW Commission: s 607(3) of the FW Act. [Com 75,350] Requirements for lodging applications to the FW Commission

Application

Documents

Time for lodgment

Fees

Form F46

Who can lodge documents Persons prescribed in the table at s 158

Application to vary a modern award: ss 157–160 Application for approval of enterprise agreements under Pt 2-4 Div 4

Not prescribed

Not prescribed

Form F16 — Enterprise Agreement Form F19 — Greenfields Agreement Must attach a copy of the signed enterprise agreement and a prescribed

Bargaining agent to the enterprise agreement: s 185(1). If greenfields agreement by an employer or a relevant employee organisation covered by the

If not Not greenfields prescribed agreement, within 14 days after the enterprise agreement is made unless leave is granted: s 185(3). If a greenfields agreement,

declaration: s agreement: s 185(2) 185(1A)

Variation of enterprise agreements under Pt 2-4 Div 7

Termination of enterprise agreements under Pt 2-4 Div 7

within 14 days after the agreement is made: s 185(4) Form F23 — Person Within 14 Not Must attach a covered by days after the prescribed signed copy the enterprise variation to of the agreement: s the enterprise proposed 210(1) agreement is variation, a made unless signed copy leave is of the granted: s enterprise 210(3) agreement to be varied and a prescribed declaration: s 210(2) Form F24 — Person Within 14 Not Must attach a covered by days after the prescribed prescribed the enterprise variation to declaration: s agreement: s the enterprise 222(2). 222(1) agreement is made unless leave is granted: s 222(3) [page 881]

Application

Documents

Applications Form F32 — for bargaining Provide

Who can lodge documents Bargaining representative

Time for lodgment

Fees

Either not Not more than 90 prescribed

orders under Pt 2-4 Div 8; s 229

Application for serious breach declaration: ss 234–235

evidence of compliance with s 229(4) or otherwise seek permission from FW Australia to proceed anyway: s 229(4) and (5). Form F33

Application Form F11 for FW Australia to deal with bargaining dispute: s 240 Application Form F40 for orders regarding transfer of business arrangements under Pt 2-8

for a proposed enterprise agreement: s 229 (1).

days before the nominal expiry date or after a request by an employer under s 181(1) or otherwise at any time: s 229(3)

Bargaining representative for a proposed enterprise agreement: s 234 A bargaining representative of a proposed enterprise agreement: s 240(1) A person who is or is likely to be a new employer; transferring employee or nontransferring employee; an applicable employee organisation

Not prescribed

Not prescribed

Not prescribed

Not prescribed

Not prescribed

Not prescribed

if in relation to an award or enterprise agreement: ss 318(2) and 319(2) Application to Form F41 vary transitional instrument: s 320

Person who is Not likely to be prescribed covered by the transferable instrument or an employee organisation who is entitled to represent

Not prescribed

[page 882]

Application

Documents

Application Form F8 for alleged contravention of general protections under Pt 3-1 Applications for unfair

Form F2

Who can lodge documents such an employee: s 320(3) Person who has been dismissed or applicable industrial association: s 365 Person who has been

Time for lodgment

Fees

Within 21 days of the dismissal unless leave is granted: s 366

$210 or at discretion of FW Commission

Within 21 days of the

$210 or at discretion of

dismissal under Pt 3-2

Application for orders regarding unprotected industrial action under Pt 3-3

Application for Orders regarding suspensions or termination of protected industrial actions: ss 423–426 and s 428 Application for protected

dismissed: s 394(1)

Form F14

A person or organisation directly affected or likely to be directly affected by the industrial action or on the initiative of FW Australia: ss 418(2) and 419(2)

dismissal FW under s Commission 394(2) or within such further period as allowed by FW Commission under s 394(3) Not Interim Orders are to prescribed be determined within 2 days of the application being made: s 420(1) No prescribed time frame for applications to be made

Form F37 Form F38 — extension of suspension period

Bargaining representative for the agreement, the minister or a state minister: s 424(2)

FW Not Commission prescribed must decide the application within 5 days of it being made: s 424(3)

Form F34 — Ballot Order

Bargaining If no existing Not representative agreement, prescribed

action ballot orders including: Ballot order: s 437; Variations: s 447; Revocation: s 448

Form F35 — Variation Form F36 — Revocation

for a proposed enterprise agreement ss 437(1), 447(1), 448(1)

not prescribed, if an existing agreement no earlier than 30 days before the nominal expiry period: s 438(1) [page 883]

Application

Right of entry applications to access nonmember records under Pt 3-4

Documents

Who can lodge documents Permit holder: s 483AA(1)

Form F43 — Must be in accordance with the Fair Work Regulations 2009 and set out reasons for the application: s 483AA(4) Disputes Form F12 Permit holder; about right of permit entry powers holder’s under Pt 3-4 organisation; Div 5 employer or occupier of the premises: s 505(3) Application Form F42 An official of

Time for lodgment

Fees

Not prescribed

Not prescribed

Not prescribed

Not prescribed

Not

Not

for an entry permit under Pt 3-4

Application Form F44 for an exemption from the requirement to provide an entry permit: s 519 Disputes Form F13 concerning employee stand downs under Pt 3-5

Application for unlawful termination under s 772

Form F9

Application for FW Commission to deal with a dispute in accordance with a dispute settlement

Form F10 — Enclosing copies of the relevant document containing the dispute settlement

an organisation seeking to enter premises: s 512 An organisation seeking to enter premises: s 519

prescribed

prescribed

Not prescribed

Not prescribed

A relevant employee, industrial organisation, or an inspector: s 526(3) Employee or industrial association: s 773

Not prescribed

Not prescribed

Within 60 days of termination under s 774(1) unless leave is granted under s 774(2) Not prescribed

$210 or at discretion of FW Commission

A relevant party to the enterprise agreement, contract of employment, modern award: s 738

Not prescribed

procedure: s 738

clause

[page 884]

Application Documents

Application for Costs

Form F6

Notice of Appeal

Form F7 — Three copies of the notice of appeal together with: paginated appeal book including any order made by FW Act; the statement of the reasons for the

Who can lodge documents A party to the proceedings: ss 376–378; ss 400A–404; s 611; ss 780–782

Time for lodgment

Fees

A person aggrieved by a decision made by FW Act: s 604(1)

Within 21 Not days after the prescribed date of the award, order or decision appealed against: r 12.3 of the Fair Work Australia Rules 2010

Within 14 Not days after prescribed FW Australia finishes dealing with the dispute or matter discontinued: s 377; s 402; s 779(2)

decision; the transcript of evidence and argument from the proceedings to which the appeal is brought; and each document which was an exhibit or written submission in the proceedings or relates to a ground of appeal as set out in the notice of appeal: r 12.2 [page 885]

Application

Documents

Fair Work Commission Rules 2009

Who can lodge documents

Time for lodgment

Fees

____________________

PART 5-1 — THE FAIR WORK COMMISSION [Pt 5-1 heading subst Act 174 of 2012 s 3 and Sch 9 item 588, opn 1 Jan 2013]

DIVISION 1 — INTRODUCTION

[8-7270]

Guide to this Part

573 This Part is about the Fair Work Commission. Division 2 establishes and confers functions on the FWC. The FWC consists of the President, Vice Presidents, Deputy Presidents, Commissioners and Expert Panel Members. Division 2 also confers functions on the President. Division 3 deals with the conduct of matters before the FWC (such as applications, representation by lawyers, the FWC’s decisions and appeals). Division 4 deals with the organisation of the FWC, who may perform functions of the FWC and delegation of the FWC’s functions and powers. Certain functions must be performed by a Full Bench or an Expert Panel. Division 5 deals with the appointment, terms and conditions of FWC Members. Division 6 deals with cooperation with the States. Division 7 deals with the FWC’s seal. It also deals with other powers and functions of the President and the General Manager (including in relation to annual reports, reports on making enterprise agreements, arrangements with certain courts, and disclosing information obtained by the FWC). Division 8 is about the General Manager of the FWC (whose function is to assist the President), staff of the FWC and others assisting the FWC. Division 9 contains offences in relation to the FWC. [Editor’s note: Section 573 of this legislation is reproduced in this format in line with the official version.] [s 573 am Act 174 of 2012 s 3 and Sch 8 item 19; s 3 and Sch 9 items 589–598, opn 1 Jan 2013; s 3 and Sch 2 items 16–17, opn 1 July 2013]

[8-7290]

Meanings of employee and employer

574 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). [s 574 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

[page 886] COMMENTARY TO SECTION 574 [8-7290.05] Derivation The section is new. [8-7290.10] Employee — s 574 See s 12. [8-7290.15] Employer — s 574 See s 12.

____________________

[8-7310]

Schedule 1

574A [s 574A rep Act 55 of 2009 s 3 and Sch 18, opn 1 July 2009]

DIVISION 2 — ESTABLISHMENT AND FUNCTIONS OF THE FAIR WORK COMMISSION [Div 2 heading am Act 174 of 2012 s 3 and Sch 9 item 599, opn 1 Jan 2013]

Subdivision A — Establishment and functions of the Fair Work Commission [Subdiv A heading am Act 174 of 2012 s 3 and Sch 9 item 600, opn 1 Jan 2013]

[8-7500] Establishment of the Fair Work Commission 575 (1) The body known immediately before the commencement of this subsection as Fair Work Australia is continued in existence as the Fair Work Commission. Note: See also subsection 25B(1) of the Acts Interpretation Act 1901. [subs (1) subst Act 174 of 2012 s 3 and Sch 9 item 602, opn 1 Jan 2013]

(2) The Fair Work Commission consists of: (a) the President; and (aa) 2 Vice Presidents; and (b) such number of Deputy Presidents as, from time to time, hold office under this Act; and

(c) such number of Commissioners as, from time to time, hold office under this Act; and (d) 6 Expert Panel Members. Note: The Fair Work Commission also has a General Manager and staff (see Division 8). [subs (2) am Act 55 of 2009 s 3 and Sch 18, opn 1 July 2009; Act 174 of 2012 s 3 and Sch 8 item 20; s 3 and Sch 9 item 603, opn 1 Jan 2013; s 3 and Sch 2 item 18, opn 1 July 2013] [s 575 am Act 174 of 2012 s 3 and Sch 9 item 601, opn 1 Jan 2013] COMMENTARY TO SECTION 575*

Derivation …. Commissioner — s 575(2)(c) …. Deputy President — s 575(2)(b) …. Expert Panel Members — s 575(2)(d) …. Fair Work Commission — s 575(1), (2), Note …. General manager — s 575 Note …. President — s 575(2)(a) ….

[8-7500.05] [8-7500.10] [8-7500.15] [8-7500.20] [8-7500.25] [8-7500.30] [8-7500.35] [page 887]

Vice President — s 575(2)(aa) …. Outline of section ….

[8-7500.40] [8-7500.45]

[8-7500.05] Derivation Section 61 of the Workplace Relations Act 1996. [8-7500.10] Commissioner — s 575(2)(c) See s 12. [8-7500.15] Deputy President — s 575(2)(b) See s 12. [8-7500.20] Expert Panel Members — s 575(2)(d) See s 12. See s 617 as to the duties of an expert panel. [8-7500.25] Fair Work Commission — s 575(1), (2), Note See s 12. [8-7500.30] General manager — s 575 Note See s 12. [8-7500.35] President — s 575(2)(a) See s 581 as to the duties of the President. See s 629A as to status. [8-7500.40] Vice President — s 575(2)(aa) See s 12. [8-7500.45] Outline of section Fair Work Australia (“FWA”) [now FWC] is established under the Fair Work Act 2009 (Cth) (“the Act”) (s 575(1)). FWA [now FWC] consists of a President, an unspecified number of Deputy Presidents, an unspecified number of Commissioners and between three and six

Minimum Wage Panel Members (s 575(2)). FWA [now FWC] is given statutory functions by the Act in relation to subject matters set out in s 576. Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; 207 IR 177; [2011] FCAFC 54; BC201102269 at [21]. The definition is important in terms of determining appeal rights under s 604. As the full bench have held in Cosgrove v National Union of Workers (2009) 288 IR 129; [2009] FWAFB 235; BC200970301 at [12]: It is clear that the General Manager and the staff of Fair Work Australia are not part of what constitutes the entity, Fair Work Australia. See ss 626–629 as to appointment of the members of the Commission. *[Editor’s note: Commentary on 575 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.]

____________________

[8-7520]

Functions of the FWC

576 (1) The FWC has the functions conferred by this Act in relation to the following subject matters: (a) the National Employment Standards (Part 2-2); (b) modern awards (Part 2-3); (c) enterprise agreements (Part 2-4); (d) workplace determinations (Part 2-5); (e) minimum wages (Part 2-6); (f) equal remuneration (Part 2-7); (g) transfer of business (Part 2-8); (h) general protections (Part 3-1); (i) unfair dismissal (Part 3-2); (j) industrial action (Part 3-3); (k) right of entry (Part 3-4); (l) stand down (Part 3-5); (m) other rights and responsibilities (Part 3-6); [page 888]

the extension of the National Employment Standards entitlements (n) (Part 6-3); (na) transfer of business from a State public sector employer (Part 63A); (o) unlawful termination protections (Part 6-4); (p) special provisions about TCF outworkers (Part 6-4A); (q) workers bullied at work (Part 6-4B). [subs (1) am Act 73 of 2013 s 3 and Sch 5 item 1, opn 5 Dec 2012; s 3 and Sch 5 item 2, opn 1 July 2012; Act 174 of 2012 s 3 and Sch 9 item 605, opn 1 Jan 2013; Act 73 of 2013 s 3 and Sch 3 item 4, opn 1 Jan 2014]

(2) The FWC also has the following functions: (aa) promoting cooperative and productive workplace relations and preventing disputes; (a) dealing with disputes as referred to in section 595; (b) providing assistance and advice about its functions and activities; (c) providing administrative support in accordance with an arrangement under section 650 or 653A; (ca) mediating any proceedings, part of proceedings or matter arising out of any proceedings that, under section 53A of the Federal Court of Australia Act 1976 or section 34 of the Federal Circuit Court of Australia Act 1999, have been referred by the Fair Work Division of the Federal Court or Federal Circuit Court to the FWC for mediation; (d) any other function conferred on the FWC by a law of the Commonwealth. [subs (2) am Act 73 of 2013 s 3 and Sch 5 item 3, opn 1 July 2012; Act 174 of 2012 s 3 and Sch 9 items 606–608, opn 1 Jan 2013; Act 13 of 2013 s 3 and Sch 1 item 243, Sch 2 item 1, opn 12 Apr 2013] Note: Section 13 of the Registered Organisations Act confers additional functions on the FWC. [s 576 am Act 55 of 2009 s 3 and Sch 22, opn 1 July 2009; Act 175 of 2012 s 3 and Sch 1 item 56, opn 5 Dec 2012; Act 174 of 2012 s 3 and Sch 9 item 604, opn 1 Jan 2013]

[8-7540] FWC

Performance of functions etc by the

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

manner that: (a) is fair and just; and (b) is quick, informal and avoids unnecessary technicalities; and (c) is open and transparent; and (d) promotes harmonious and cooperative workplace relations. Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581). [s 577 am Act 174 of 2012 s 3 and Sch 9 items 609–611, opn 1 Jan 2013] COMMENTARY TO SECTION 577*

Derivation …. Fair and just — s 577(a) …. FWC — s 577 Note …. President — s 577 Note …. Quick, informal and avoids unnecessary technicalities — s 577(b) ….

[8-7540.1] [8-7540.5] [8-7540.10] [8-7540.15] [8-7540.20]

[8-7540.1] Derivation The section is new although it bears some similarity with s 420 of the Migration Act 1958. [page 889] [8-7540.5] Fair and just — s 577(a) As Gummow J noted approvingly in Minister for Immigration v Eshetu (1999) 197 CLR 611; 162 ALR 577; [1999] HCA 21; BC9902257 at [109] in relation to a similar section being s 420 of the Migration Act 1958: First, the objectives referred to in s 420(1) will often be inconsistent as between themselves. In particular, a mechanism of review that is ‘economical, informal and quick’ may well not be ‘fair’ or ‘just’. [8-7540.10] FWC — s 577 Note See s 12. [8-7540.15] President — s 577 Note See s 12. [8-7540.20] Quick, informal and avoids unnecessary technicalities — s 577(b) As the Full Federal Court held in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; 207 IR 177; [2011] FCAFC 54; BC201102269 at [25], [1], [2]: There is no doubt that members of FWA are (as were members of its statutory predecessors, the Commonwealth Conciliation and Arbitration Commission and the Australian Industrial Relations Commission (“the AIRC”)) bound to act “judicially” in the sense that they are obliged to respect and apply traditional notions of procedural fairness and impartiality … However, it is an important aspect of the work of FWA, at all levels including on appeal (as it was of its statutory predecessors), that it

is to proceed without unnecessary technicality and as informally as the circumstances of the case permit. FWA is not a court and its members are not judicial officers as such (although the President has the same status as a judge of this Court and some senior members of FWA retain an equivalent status from earlier statutory arrangements). It is not inappropriate to say that the members of FWA have a statutory mandate to get to the heart of matters as directly and effectively as possible. There are limits to this requirement. As the Full Bench of FWC held in Construction, Forestry, Mining and Energy Union [2014] FWCFB 174 at [22]: Absent any express provision to the contrary, Members of the Commission are bound to act in a judicial manner and to observe procedural fairness in carrying out functions and exercising powers under the Act. The requirements of procedural fairness are not prescribed in a fixed body of rules. What is required is judicial fairness and that which is fair in one case may be quite different to that which will be required in another. The obligation extends to the exercise of powers under s 418. *Editor’s note: Commentary to s 577 by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[8-7560] Matters the FWC must take into account in performing functions etc 578 In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account: (a) the objects of this Act, and any objects of the part of this Act; and (b) equity, good conscience and the merits of the matter; and (c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. [s 578 am Act 174 of 2012 s 3 and Sch 9 items 612–613, opn 1 Jan 2013; Act 98 of 2013 s 3 and Sch 1 item 63F, opn 1 Aug 2013]

[page 890]

[8-7580] FWC has privileges and immunities of the Crown

579 The FWC has the privileges and immunities of the Crown in right of the Commonwealth. [s 579 am Act 174 of 2012 s 3 and Sch 9 items 614, 615, opn 1 Jan 2013]

[8-7600]

Protection of FWC Members

580 An FWC Member has, in performing his or her functions or exercising his or her powers as an FWC Member, the same protection and immunity as a Justice of the High Court. Note: See also section 584B (which deals with protection of persons involved in handling etc complaints about FWC Members). [s 580 am Act 174 of 2012 s 3 and Sch 8 item 61; s 3 and Sch 9 items 616, 617, opn 1 Jan 2013]

Subdivision B — Functions and powers of the President

[8-7740]

Functions of the President

581 The President is responsible for ensuring that the FWC performs its functions and exercises its powers in a manner that: (a) is efficient; and (b) adequately serves the needs of employers and employees throughout Australia. Note: The President must perform his or her own functions and exercise his or her own powers in a manner that facilitates cooperation with prescribed State industrial authorities (see section 649). [s 581 am Act 174 of 2012 s 3 and Sch 9 item 618, opn 1 Jan 2013] COMMENTARY TO SECTION 581 [8-7740.05] Derivation The section is new. [8-7740.10] Employees — s 581(b) See s 574. [8-7740.15] Employers — s 581(b) See s 574. [8-7740.20] FWC — s 581 See s 12. [8-7740.25] President — s 581, Note See s 12. [8-7740.30] State industrial authorities — s 581 Note See regulation 1.06. [8-7740.35] Outline of Section The President is the head of FWA and is responsible for the overall performance of FWA’s functions. Clause 581 provides that the President is responsible for ensuring that FWA exercises its functions and powers efficiently, and adequately serves the needs of employers

and employees: Explanatory Memorandum to the Fair Work Bill 2009 at [2255]. Examples provided in the Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [256] are where the President may temporarily restrict the duties of an FWC Member or determine a Code of Conduct for FWC Members. 1[Editor’s

note: Commentary on 581 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.]

____________________ [page 891]

[8-7745] Member

Dealing with a complaint about an FWC

581A (1) Dealing with a complaint about an FWC Member Without limiting section 581 (which deals with the functions of the President), the President may: (a) deal, in accordance with subsection (2) of this section, with a complaint about the performance by another FWC Member of his or her duties; and (b) take any measures that the President believes are reasonably necessary to maintain public confidence in the FWC, including (but not limited to) temporarily restricting the duties of the FWC Member. Note 1: The complaint is a complaint about an FWC Member (see section 12). Note 2: The Minister may also handle complaints about FWC Members (see section 641A).

(2) The President may deal with a complaint about an FWC Member referred to in paragraph (1)(a) by doing either or both of the following: (a) deciding whether or not to handle the complaint and then doing one of the following: (i) dismissing the complaint; (ii) handling the complaint if the President has a relevant belief in relation to the complaint; (iii) arranging for any other person to assist the President to handle the complaint if the President has a relevant belief in relation to the complaint;

(b) arranging for any other complaint handlers to decide whether or not to handle the complaint and then to do one of the following: (i) dismiss the complaint; (ii) handle the complaint if each of the complaint handlers has a relevant belief in relation to the complaint. Note 1: A complaint handler (other than the President) may handle a complaint by referring it to the President. The President may then do either or both of the things referred to in paragraph (2)(a) or (b) in respect of the complaint. Note 2: For protections for persons involved in relation to handling a complaint about an FWC Member, see section 584B.

(3) Authorisation of persons or bodies The President may authorise, in writing, a person or a body to do one or more of the following in relation to a complaint about an FWC Member referred to in paragraph (1)(a) (whether in relation to a specific complaint or generally): (a) assist the President to handle the complaint or complaints; (b) decide whether or not to handle the complaint or complaints; (c) dismiss the complaint or complaints; (d) handle the complaint or complaints. (4) Referral to Minister The President must refer a complaint about an FWC Member referred to in paragraph (1)(a) to the Minister if, after the complaint has been handled in accordance with subsection (2), the President is satisfied that: (a) one or more of the circumstances that gave rise to the complaint have been substantiated; and (b) each House of the Parliament should consider whether to present to the Governor-General an address praying for the termination of the appointment of the FWC Member. [page 892] Note: The appointment of an FWC Member may be terminated under section 641 if each House of the Parliament presents such an address to the Governor-General.

(5) The Minister must consider whether each House of the Parliament should consider the matter referred to in paragraph (4)(b).

[s 581A insrt Act 174 of 2012 s 3 and Sch 8 item 62, opn 1 Jan 2013]

[8-7750]

Code of Conduct

581B (1) After consulting the other FWC Members, the President may determine a Code of Conduct for FWC Members. (2) Subsection (1) does not limit section 582 (which deals with directions by the President). (3) The Code of Conduct must be published on the FWC’s website or by any other means that the President considers appropriate. (4) A determination under subsection (1) is not a legislative instrument. [s 581B insrt Act 174 of 2012 s 3 and Sch 8 item 62, opn 1 Jan 2013]

[8-7760]

Directions by the President

582 The President may give directions (1) The President may give directions under subsection (2) as to the manner in which the FWC is to perform its functions, exercise its powers or deal with matters. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 619, opn 1 Jan 2013]

(2) The President may give a direction that is of a general nature, or that relates to a particular matter, to one or more of the following persons: (a) an FWC Member; (b) a Full Bench; (c) an Expert Panel; (d) the General Manager. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 620, opn 1 Jan 2013; s 3 and Sch 2 item 19, opn 1 July 2013]

(3) The direction must not relate to a decision by the FWC. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 621, opn 1 Jan 2013]

(4) Without limiting subsection (2), the direction may be a direction of the following kind: (a) a direction about the conduct of 4 yearly reviews of modern awards under Division 4 of Part 2-3; (aa) a direction about the conduct of 4 yearly reviews of default fund

terms of modern awards under Division 4A of Part 2-3; (b) a direction about the conduct of annual wage reviews; (c) a direction that 2 or more matters be dealt with jointly by one or more single FWC Members or one or more Full Benches; (d) a direction about the transfer between FWC Members (including a transfer between Full Benches) of one or more matters being dealt with by the FWC. [subs (4) am Act 174 of 2012 s 3 and Sch 9 items 622–624, opn 1 Jan 2013; s 3 and Sch 2 items 20–21, opn 1 July 2013]

[page 893] Persons must comply with the President’s directions (5) A person to whom a direction is given must comply with the direction. Note: For directions to the General Manager, see section 658.

Direction is not a legislative instrument (6) If a direction is in writing, the direction is not a legislative instrument.

[8-7780]

President not subject to direction

583 The President is not subject to direction by or on behalf of the Commonwealth.

[8-7800] Delegation of functions and powers of the President 584 (1) The President may, in writing, delegate to a Vice President or a Deputy President all or any of the President’s functions or powers, other than under: (aa) paragraph 581A(1)(b) (which deals with taking measures to maintain public confidence in the FWC); or (a) section 620 (which deals with the constitution and decision-making of an Expert Panel); or

(b) section 625 (which deals with the delegation of functions and powers of the FWC). [subs (1) am Act 174 of 2012 s 3 and Sch 8 items 21, 63; s 3 and Sch 9 item 625, opn 1 Jan 2013; Act 73 of 2013 s 3 and Sch 6 item 5, opn 1 July 2013]

(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the President. Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

Subdivision C — Protection of persons involved in handling etc complaints about FWC Members

[8-7820] Protection of persons involved in handling etc. complaints about FWC Members 584B (1) A person who is exercising powers or performing functions under or for the purposes of paragraph 581A(1)(a), subsections 581A(2) to (5), or section 641A, in relation to a complaint about an FWC Member, or assisting in exercising those powers or performing those functions, has the same protection and immunity as a Justice of the High Court. (2) A witness requested to attend, or appearing, before a complaint handler or any other person, in relation to a complaint about an FWC Member, has the same protection, and is subject to the same liabilities in proceedings, as a witness in a case tried by the High Court. (3) A lawyer assisting, or appearing on behalf of a person before, a complaint handler or any other person, in relation to a complaint about an FWC Member, has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court. [s 584B insrt Act 174 of 2012 s 3 and Sch 8 item 64, opn 1 Jan 2013]

[page 894]

DIVISION 3 — CONDUCT OF MATTERS BEFORE THE FWC [Div 3 heading am Act 174 of 2012 s 3 and Sch 9 item 626, opn 1 Jan 2013]

Subdivision A — Applications to the FWC [Subdiv A heading am Act 174 of 2012 s 3 and Sch 9 item 627, opn 1 Jan 2013]

[8-7990] Applications in accordance with procedural rules 585 An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind. Note 1: Certain provisions might impose additional requirements in relation to particular kinds of applications (see for example subsection 185(2)). Note 2: The FWC may, under section 587, dismiss an application that is not made in accordance with the procedural rules. [s 585 am Act 174 of 2012 s 3 and Sch 9 items 628, 629, opn 1 Jan 2013]

[8-8010] Correcting and amending applications and documents etc 586 The FWC may: (a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or (b) waive an irregularity in the form or manner in which an application is made to the FWC. [s 586 am Act 174 of 2012 s 3 and Sch 9 items 630, 631, opn 1 Jan 2013] COMMENTARY ON SECTION 586**

Derivation …. Allow — s 586(a) …. Amend — s 586(a) …. Waive an irregularity — s 586(2) …. FWC — s 586, (a), (b) …. Outline of section ….

[8-8010.05] [8-8010.07] [8-8010.10] [8-8010.15] [8-8010.20] [8-8010.25]

[8-8010.05] Derivation The section is derived from s 111(1)(l) and (m) of the Workplace Relations Act 1996. [8-8010.07] Allow — s 586(a) In Achilleus Taxation Pty Ltd ATF The Achilleus Taxation Trust v Hobbs [2012] FWAFB 5679; it was submitted that the use of the word “allow” in s 586(a) infers a

requirement that there be an application by a party. The Full Bench disagreed at [7] instead holding that: The Commissioner perused the documents and, on her own initiative, amended the application to properly identify the employer, the correct name of the appellant being identified on the employment contract. In doing so, the Commissioner was within power and acted appropriately on the material that was available to her. [8-8010.10] Amend — s 586(a) In Jamie Winters, Justin Winters and Peter Jeffrey Winters v Aussie Junk Pty Ltd [2008] AIRC 863; BC200870270 at [11] Cmr Grainger held that: The power … is to amend, meaning “to alter, to change for the better, to remove or correct faults”: Macquarie Dictionary Revised Edition. [page 895] The bringing of “fundamentally new applications” does not involve amendment. In Etemi v Canterbury City Child Care Centre [2011] FWA 5936; BC201170977 the commission has held that there is power to amend a claim as to general protections to make it a claim as to unlawful termination. In Densley v Maru Koala and Fauna Park Pty Ltd t/as Maru Koala and Animal Park [2013] FWC 1201, a general protections claim was amended to an unfair dismissal case. In that case, the commissioner said that if he did not have power to do so and that he would have extended time in any event. The Full Bench in Peter Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660 at [22] questioned the power to do so, holding that: We have serious reservations whether the power in s 586 of the Act can be relied upon to convert an unfair dismissal application into a general protections application. Section 586 does not provide a source of power to revoke or set aside an application. Neither does it, in our view, enable the commission to “correct” or “amend” an application made under one type of statutory provision so that it becomes an application under a fundamentally different provision. The Full Bench went on to find at [24] that: We consider that the use of any power under s 586(a) of the Act to allow an unfair dismissal application to be converted into a general protections application is not permissible having regard to the multiple actions provisions of the Act. The exercise of the power under s 586 for the benefit of the applicant would achieve for the applicant indirectly that which is directly prohibited by the multiple actions provisions. It was held in Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530 at [6] that: … s 586 provides a power to correct or amend an application, or to waive an irregularity in the form or manner in which an application is made. It is not a power to revoke or set aside an application. Once filed a notice of discontinuance is self executing and it brings the application to an end. [8-8010.15] Waive an irregularity — s 586(2) In John Holland Pty Ltd (NSW/ACT) — Re John Holland Rail Pty Ltd, The Australian Rail, Tram and Bus Industry Union and the Australian Workers’ Union, Hunter 8 Alliance, New South Wales Agreement 2009 [2009] FWA 1774; BC200970308 at [71]

Commission Cargill held that: Section 586 allows FWA to waive an irregularity in the form or manner in which an application is made. It also provides that FWA may allow a correction or amendment of any application or other document. However, it doesn’t permit FWA to waive compliance with what is, in effect, a mandatory service requirement of the Act itself. [8-8010.20] FWC — s 586, (a), (b) See s 12. [8-8010.25] Outline of section In Talbot v Connor Haulage (ACT) Pty Ltd T/A Connor Haulage [2012] FWA 3969 at [35] Commissioner Gooley held that: Section 586 provides Fair Work Australia with a wide discretion to permit a party to amend an application.. In Achilleus Taxation Pty Ltd ATF The Achilleus Taxation Trust and another v Hobbs [2012] FWAFB 5679; BC201275122 at [6] it was held that: Fair Work Australia (FWA) is empowered to allow an amendment and may make a decision about that matter, or any other matter properly before it, on its own initiative. [page 896] The test for amendment of appeal grounds is stricter. As the Full Bench held in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FWCFB 5947 at [20]: The usual principle is that a party will not be permitted to raise merit arguments on appeal which were not advanced at first instance. However, as the Full Bench held in Goumas v Wattyl Australia Pty Ltd, AIRC, Ross VP, Acton SDP and Smith C, 20 July, 1 August 2005, PR960866, 145 IR 256 at [44]–[45]: different considerations apply where the matters raised are jurisdictional … The rationale for leave generally being granted in cases raising questions of jurisdiction was set out in Anti-Cancer Council (Vic) v State Public Services Federation, in the following terms: Not to grant leave in such circumstances would mean that there could be an application for a prerogative writ to the High Court in a situation where an Appeal Bench of this Commission has not had the opportunity to consider a jurisdictional question on its merits. Such a position is undesirable. That rule is stricter still where there is a possibility that the point could have been met by evidence below. In Water Board v Moustakas (1988) 180 CLR 491; 77 ALR 193; 62 ALJR 209; BC8802592 the High Court observed at [497]: More than once it has been held by this court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the

rule is strictly applied… **Editor’s note: Commentary to section 586 prepared by Ian Latham BA(Hons) LLB (ANU).

____________________

[8-8030]

Dismissing applications

587 (1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if: (a) the application is not made in accordance with this Act; or (b) the application is frivolous or vexatious; or (c) the application has no reasonable prospects of success. Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3–2, see section 399A. [subs (1) am Act 174 of 2012 s 3 and Sch 6 item 3; s 3 and Sch 9 item 632, opn 1 Jan 2013]

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application: (a) is frivolous or vexatious; or (b) has no reasonable prospects of success. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 632, opn 1 Jan 2013]

(3) The FWC may dismiss an application: (a) on its own initiative; or (b) on application. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 633, opn 1 Jan 2013]

[page 897] COMMENTARY ON SECTION 587*

Derivation …. Frivolous s 587(1)(b), (2)(a) …. FWC s 587(1), Note, (2), (3) …. Not made in accordance with the Act — s 587(1)(c) …. Reasonable prospects of success s 587(1)(c), (2)(b) …. Vexatious s 587(1)(b), (2)(a) ….

[8-8030.05] [8-8030.10] [8-8030.15] [8-8030.16] [8-8030.20] [8-8030.25]

Outline of Section ….

[8-8030.30]

[8-8030.05] Derivation The section has some similarity to s 111(1)(e) of the Workplace Relations Act 1996. [8-8030.10] Frivolous s 587(1)(b), (2)(a) A claim that is frivolous and vexatious is so obviously untenable that it cannot possibly succeed: Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92; 14 ALR 529; BC0800033. See also NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 434; [2005] FCAFC 119; BC200506033 at [16]–[23] where Gray J summarised the authorities and concluded that: [A] case cannot be dismissed as “frivolous” if, on its face, there may be a cause of action disclosed (as his Honour suggested in the present case). There is no suggestion in any of the authorities that a proceeding can be termed “frivolous” on a consideration of its “background”, whatever that may mean. [8-8030.15] FWC s 587(1), Note, (2), (3) See s 12. [8-8030.16] Not made in accordance with the Act — s 587(1)(c) In Munjoma v Salvation Army (NSW) Property Trust as Trustee for the Social Work [2013] FWC 3337 at [32]–[33]. VP Hatcher reiterated that: Regardless of whether, as the respondent submits, s 587(1)(a) is the precise source of power to dismiss a matter for want of jurisdiction or not (and there are some indications that it is not), it is undoubtedly the case that the power exists. As was said by Smithers J in Deputy Commissioner of Patents v Board of Control of Michigan Technological University: It is a generally accepted principle of statutory interpretation that courts, tribunals and the like possess, subject to correction, the necessary power to rule on the initial question whether they have power to entertain a particular application. If they decline jurisdiction by reason of some statutory provision that is a decision “under” that provision. However at [33]; VP Hatcher went on to hold on a contextual basis that: I do not accept therefore that the Commission needs to be satisfied that, in respect of an application under s 365(1) of the Act, the Commission needs to be satisfied that Part 3-1 applied geographically to the applicant’s former employment prior to holding a s 368 conference. It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1. In my view, a general protections application is analogous to an application for the Commission to deal with a dispute and not to an application for an unfair dismissal remedy. There is no reason why a single application cannot encompass multiple disputes, particularly when there is a common denominator — as there is in the present case — whereby each of the persons in dispute was [page 898] employed by the same employer: Construction, Forestry, Mining and Energy Union-Mining and

Energy Division Queensland District Branch v Anglo Coal (Dawson Services) Pty Ltd [2014] FWC 4708 at [29]. [8-8030.20] Reasonable prospects of success s 587(1)(c), (2)(b) See [8-9110.10]. [8-8030.25] Vexatious s 587(1)(b), (2)(a) See [8-9110.15]. [8-8030.30] Outline of Section The section outlines the grounds for summary dismissal of a claim. Procedural failings are not comprehended in the stipulated grounds and therefore it is not possible to dismiss the application on that basis alone: Rachaele Przybyszewski v Diabetes Australia Victoria [2011] FWA 4213; BC201170733 at [4]. The Explanatory Memorandum to the Fair Work Act states at [2273] that this provision is not intended to limit FWA’s power to dismiss applications for other reasons, such as failure to meet jurisdictional requirements. The discretion is a broad one. As Commissioner Gooley (as she then was) held in Rebecca Tomas v Symbion Health [2011] FWA 5458; BC201170929 at [57], [59]: Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a)(b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons … s 587 empowers Fair Work Australia to dismiss an application for relief in circumstances where the parties have reached a binding agreement settling a claim and one party reneges on that agreement and seeks to have their claim determined. It is not necessary to make a finding that the application is frivolous or vexatious or that the application has no reasonable prospects of success as s 587 provides Fair Work Australia with a broad discretion to dismiss an application. See also s 399A. *Editors’ note: Commentary on s 587 by Ian Latham BA (Hons) LLB (ANU), Barrister.

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[8-8050]

Discontinuing applications

588 A person who has applied to the FWC may discontinue the application: (a) in accordance with the procedural rules (if any); and (b) whether or not the matter has been settled. [s 588 am Act 174 of 2012 s 3 and Sch 9 item 634, opn 1 Jan 2013]

Subdivision B — Conduct of matters before the FWC [Subdiv B heading am Act 174 of 2012 s 3 and Sch 9 item 635, opn 1 Jan 2013]

[8-8190]

Procedural and interim decisions

589 (1) The FWC may make decisions as to how, when and where a matter is to be dealt with. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 636, opn 1 Jan 2013]

(2) The FWC may make an interim decision in relation to a matter before it. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 636, opn 1 Jan 2013]

(3) The FWC may make a decision under this section: (a) on its own initiative; or (b) on application. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 636, opn 1 Jan 2013]

(4) This section does not limit the FWC’s power to make decisions. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 637, opn 1 Jan 2013]

[page 899] COMMENTARY ON SECTION 589*

Derivation …. FWC — s 589(1), (2), (3), (4) …. Application of section …. Interim decision — s 589(2) …. May — s 589(1), (2), (3) …. Outline of section ….

[8-8190.05] [8-8190.10] [8-8190.15] [8-8190.15.5] [8-8190.20] [8-8190.25]

[8-8190.05] Derivation The section is new. [8-8190.10] FWC — s 589(1), (2), (3), (4) See s 12. [8-8190.15] Application of section The power to intervene It was held in Yirra Pty Ltd (t/as Richmond Demolition and Salvage) v Summerton (2009) 176 FCR 219; 181 IR 327; [2009] FCAFC 50; BC200903489 at [154] that: Neither the common law nor equity allowed a third party to intervene in a proceeding between a plaintiff and defendant. Accordingly, intervention must be authorised by statute. Section 855 of the Workplace Relations Act specifically allowed for intervention. A full bench of FWA, in CFMEU v Woodside Burrup Pty [2010] FWAFB 6021; (2010) 198 IR 360 determined that s 589(1) and 590(1) contained a conferral of power sufficient to grant leave to an interested party to intervene in an appropriate case. In this case, such leave to intervene was granted to

the ACTU on an appeal whereby the ACTU sought to make submissions in respect to the interpretation of s 426. The Full Bench held at [5] that: If a person could … be a “person aggrieved” by a decision in a particular proceeding then it will be open, but not obligatory, for FWA to grant that person leave to intervene in the proceeding. A slightly different test has been used elsewhere. In Construction, Forestry, Mining and Energy Union v Moyle Bendale Timber Pty Ltd, the Full Bench held that it was necessary to establish a relevant interest in the matters raised by the appeal grounds: Construction, Forestry, Mining and Energy Union v Moyle Bendale Timber Pty Ltd (2013) 213 IR 157; [2011] FWAFB 6761; BC201170018 at [2], also The Australian Industry Group v ADJ Contracting Pty Ltd (2013) 213 IR 165; [2011] FWAFB 6684; BC201171098 at [4]. A further alternative test of legitimate interest was used in Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618 at [7]. To the extent that those tests are inconsistent, and assuming that a right to intervene exists at all, the test used in Woodside Burrup seems narrower. As the Full Bench held in Rangi v Advance Exchange Pty Ltd [2014] FWCFB 7938 at [13]–[15]: The meaning of a “person aggrieved” was considered by a Full Court of the Industrial Relations Court of Australia in Tweed Valley Fruit Processors Pty Ltd v Ross and Others in the context of s 45 of the Industrial Relations Act 1988. In Tweed Valley, the Full Court found that: in determining whether a person is a “person aggrieved” for the purposes of exercising a statutory right of appeal, it is necessary to consider the relevant statutory context; a person is “aggrieved” by an act which operates in restraint of what would otherwise have been an employee’s legal rights; the words “person aggrieved” should not be subjected to a restricted interpretation; “they … include a person who has a genuine grievance because an order has been made which prejudicially affects his interest”; and [page 900] a person who is “aggrieved” extends to “a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public”. The Full Court also found that: “There is room for the view that a wider category of people has a legitimate interest in ensuring that the commission acts within its jurisdiction than those who are directly affected by a particular decision, and so allowed to agitate its merits.” The power to stay In Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Ltd T/A DP World; Maritime Union of Australia, The-Victorian Branch [2014] FWC 7326 at [4]; DP Gostencnik held that the power in s 589 to make a decision as to how, when and where a matter is to be dealt with is sufficiently broad to encompass a decision that an application be stayed until associated proceedings were determined in the Federal Court.

The power to vary Commissioner Cambridge in Australian Municipal, Administrative, Clerical [2013] FWC 1056 at [34] held the following: It would seem that s. 589 is confined to decisions of a procedural nature and would not provide a power to vary a Decision in the terms sought by the proposed Order contained in the ASU application which deals with a substantive issue not a procedural question. [8-8190.15.5] Interim decision — s 589(2) In John Holland Queensland Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWC 3583, SDP Richards held at [24] that: An interim decision under s 589 of the Act, in my view, is not limited in its application or effects, other than by its interim and interlocutory nature. Section 589 of the Act is a general source of power, therefore, providing to the Commission power to make an interim decision, subject to the usual common law principles involving the balance of convenience and other discretionary considerations derived from the circumstances. I would add to this that the consideration of the public interest may also be invoked. To similar effect, the Full Bench in DP World Sydney Ltd [2013] FWCFB 9230 held at [77] that: Section 589 confers a very broad power on the Commission to make procedural and interim decisions. It is not unusual in this Tribunal or its predecessor tribunals for interim orders to be granted in circumstances where the Tribunal is not in a position to make its final decision even in circumstances where final submissions have been made. In Liquor, Hospitality and Miscellaneous Union v Crown Melbourne Ltd [2010] FWA 7379 at [20], Cmr Gooley held that the finalisation of a hearing did not prevent the making of interim orders. The Commissioner held that: It is not unusual in this Tribunal or its predecessor tribunals for interim orders to be granted in circumstances where the Tribunal is not in a position to make its final decision even in circumstances where final submissions have been made. See James Macken, Interim Reinstatement in unfair dismissal cases, 2016 7 WR 5. See also [8125.25]. [8-8190.20] May — s 589(1), (2), (3) See [20-3010.20]. [page 901] [8-8190.25] Outline of section The Explanatory Memorandum to the Fair Work Act 2009 states at [2275] that: Without limiting FWA’s power to make decisions, clause 589 enables FWA to make, on its own initiative or on application, procedural decisions as to how, when and where a matter is to be dealt with, and interim decisions in relation to a matter before it. Commissioner Roe held the following in Hammond v Australia and New Zealand Banking Group Ltd [2011] FWA 1650; BC201170373 at [13]:

The provisions of the Fair Work Act 2009 continue the tradition that the Tribunal has wide discretion in respect to procedure. The section does not relieve FWA of the requirement to afford natural justice or procedural fairness: see Australian Postal Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia which is an appeal against the decision about protected action ballot orders: see (2009) 189 IR 262; [2009] FWAFB 599 at [28]. *[Editor’s note: Commentary updated by Ian Latham BA (Hons) LLB (ANU), Barrister.]

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[8-8210]

Powers of the FWC to inform itself

590 (1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 639, opn 1 Jan 2013]

(2) Without limiting subsection (1), the FWC may inform itself in the following ways: (a) by requiring a person to attend before the FWC; (b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions; (c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC; (d) by taking evidence under oath or affirmation in accordance with the regulations (if any); (e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report; (f) by conducting inquiries; (g) by undertaking or commissioning research; (h) by conducting a conference (see section 592); (i) by holding a hearing (see section 593). [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 640, 641, opn 1 Jan 2013; s 3 and Sch 2 item 22, opn 1 July 2013] [s 590 am Act 174 of 2012 s 3 and Sch 9 item 638, opn 1 Jan 2013] COMMENTARY TO SECTION 590*

Derivation …. Conference — s 590(2)(h) ….

[8-8210.05] [8-8210.10]

Expert Panel — s 590(2)(e) …. Full Bench — s 590(2)(e) …. FWC — s 590(1), (2), (a), (b), (c), (e) ….

[8-8210.15] [8-8210.20] [8-8210.25] [page 902]

FWC Member — s 590(2)(e) …. Hearing — s 590(2)(i) …. May inform itself — s 590(1), (2) …. Person — s 590(2)(a), (c) …. Provide copies — s 590(2)(c) …. Outline of section ….

[8-8210.30] [8-8210.35] [8-8210.40] [8-8210.45] [8-8210.50] [8-8210.55]

[8-8210.05] Derivation Section 111 of the Workplace Relations Act 1996. [8-8210.10] Conference — s 590(2)(h) See s 592. [8-8210.15] Expert Panel — s 590(2)(e) See ss 12 and 620. [8-8210.20] Full Bench — s 590(2)(e) See ss 12 and 618. [8-8210.25] FWC — s 590(1), (2), (a), (b), (c), (e) See ss 12 and 575. [8-8210.30] FWC Member — s 590(2)(e) See s 12. [8-8210.35] Hearing — s 590(2)(i) See s 593. [8-8210.40] May inform itself — s 590(1), (2) See [8-8230.15]. This phrase has a long history in industrial legislation and is widely used in legislation creating administrative tribunals. The power for a tribunal to gather its own evidence indicates an inquisitorial process: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; 79 ALJR 1009; [2005] HCA 24; BC200503147 at [112]. [8-8210.45] Person — s 590(2)(a), (c) See [8-1080.30]. [8-8210.50] Provide copies — s 590(2)(c) In Australian Nursing Federation v Victorian Hospitals’ Industrial Association [2011] FWA 8756; BC201171579, Commissioner Jones reviewed the authorities as to the issue of summons for production and held at [9] and [10] that: … the jurisprudence in relation to the power of predecessors of Fair Work Australia to issue summons is applicable to the power under s 590(2)(c) of the Act. The power to require the provision of documents, records or other things is a broad discretionary power to be exercised in accordance with the principles applied by the Courts. [8-8210.55] Outline of section The powers available to the Commission are very broad. As Lander J,

held in Australian and International Pilots Association v Fair Work Australia (2012) 127 ALD 453; 222 IR 316; [2012] FCAFC 65; BC201202894 at [7]; see also [121]: FWA may inform itself in relation to any matter before it in such manner as it considers appropriate: s 590(1). It may inform itself in any of the ways mentioned in s 590(2). FWA is not bound by the rules of evidence and procedure: s 591. *Editors’ note: Commentary to s 590 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[8-8230] FWC not bound by rules of evidence and procedure 591 The FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter). [s 591 am Act 174 of 2012 s 3 and Sch 9 items 642–644, opn 1 Jan 2013]

[page 903] COMMENTARY ON SECTION 591*

Derivation …. FWC — s 591 …. Rules of Evidence — s 591 …. Procedure …. Hearsay …. Evidence from the bar table …. Duty of Frankness …. Bias …. Disqualification for bias test …. Outline of section ….

[8-8230.01] [8-8230.05] [8-8230.10] [8-8230.15] [8-8230.20] [8-8230.25] [8-8230.30] [8-8230.35] [8-8230.36] [8-8230.40]

[8-8230.01] Derivation Section 110(1)(b) Workplace Relations Act. [8-8230.05] FWC — s 591 See s 12. [8-8230.10] Rules of Evidence — s 591 Because the FWC is not bound by the rules of evidence it has a discretion to admit evidence material that would otherwise be inadmissible under the rules of

evidence. However, should there be an objection to the admission of certain evidence, the FWC may use the rules of evidence as guidelines. This was discussed in Australasian Meat Industry Employees’ Union v Dardanup Butchering Company Pty Ltd (2011) 209 IR 1; [2011] FWA 3847; [2011] FWAFB 3847 at [28]: The rules of evidence are not arbitrary and were developed by reference to notions of what is fair and appropriate and, as such, they often provide a good starting point for a consideration of whether an objection to the reception of particular evidence by the tribunal should be upheld or rejected. In R v Deputy Industrial Injuries Cmr; Ex parte Moore [1965] 1 QB 456 at 488; [1965] 1 All ER 81; [1965] 2 WLR 89, Diplock LJ pointed to the distinction between the application of the rules of evidence and the principles of procedural fairness: These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than that it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom parliament has entrusted the responsibility of deciding the issue. As the Full Bench of the AIRC held in Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union PR948938, 12 July 2004, Ross VP, Duncan SDP, Bacon C, 143 IR 354 at [48]: [w]hile the Commission is not bound by the rules of evidence that does not mean that those rules are irrelevant. As the then President of the Industrial Relations Commission of Western Australia said in respect of a similar provisions in the then Industrial Relations Act 1979 (WA): However, this is not a licence to ignore the rules. The rules of evidence provide a method of enquiry formulated to elicit truth and to prevent error. They cannot be set aside in favour [page 904] of a course of inquiry which necessarily advantages one party and necessarily disadvantages the opposing party … The common law requirement that the Commission must not in its reception of evidence deny natural justice to any of the parties acts as a powerful control over a tribunal which is not bound by the rules of evidence. Similar provisions apply to other statutory tribunals such as the Federal Administrative Appeals Tribunal: see Administrative Appeals Tribunal Act 1975 s 33(1)(c). While president of the Administrative Appeals Tribunal, Brennan J discussed the effect of this section in Re Pochi & Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 256–7; 36 FLR 482 at [492]: The tribunal and the minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that “this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force”, as Hughes CJ said in Consolidated Edison Co v National Labour Relations Board (1938) 305 US 197 at 229. To depart from the rules of evidence is to put aside a system which is

calculated to produce a body of proof which has rational probative force, as Evatt J pointed out, though in a dissenting judgment, in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256; [1933] ALR 533: “Some stress has been laid by the present respondents upon the provision that the tribunal is not, in the hearing of appeals, ‘bound by any rules of evidence’. Neither is it. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer ‘substantial justice’.” That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence. In a similar vein, in Re Tramway Employees (Melbourne) Award (1951) 72 CAR 26, the Commonwealth Court of Conciliation and Arbitration stated: Although the court is not bound by the rules of evidence, this has never been held to mean that the court would act without evidence. If a tribunal were to so act, obvious injustices and insecurities could result … The industrial system has been functioning for so long that even an inexperienced advocate should know that an industrial claim is not to be had for the asking, but is necessarily dependent upon the quality of the relevant evidence produced… In a different context French CJ warned in Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; 270 ALR 228; [2010] HCA 32; BC201007173 at [17], that: The exercise of the Tribunal’s freedom from the rules of evidence should be subject to the cautionary observation of Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott that those rules “represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth”. It is a method not to be set aside in favour of methods of inquiry which necessarily advantage one party and disadvantage another. On the other hand, that caution is not a mandate for allowing the rules of evidence, excluded by statute, to “creep back through a domestic procedural rule”. See also Australian Broadcasting Tribunal v Bond (1990) 21 ALD 1; 170 CLR 321; 94 ALR 11; BC9002933; Re Communication Workers’ Union of Australia, (Postal and Telecommunications [page 905] Branch, NSW) (1996) 67 IR 246 at 275; PDS Rural Products Ltd v Corthorn (1987) 19 IR 153; Barbaro v Minister for Immigration and Ethnic Affairs (1982) 4 ALN No 125; 44 ALR 690; 65 FLR 127. [8-8230.15] Procedure While the commission may inform its mind as it sees fit, it: must do so in such manner as it thinks just …, the information upon which it acts should have been acquired in a fashion which takes account of the requirements of what is termed natural justice. The parties concerned should know what [it] is proposing to use for the informing of its mind. They should be given the opportunity to protest against or to criticise the recourse thereto which is being proposed”: Basic Wage and Standard Hours Inquiry 1952–53 (1953) 77 CAR 477 at 506–7. See also

Gordon M Jenkins & Associates Pty Ltd v Coleman (1989) 87 ALR 477. The Full Bench in McCulloch v Calvary Health Care Adelaide [2015] FWCFB 873 held to similar effect: [26] We accept that a Commission Member may use evidence in proceedings for a purpose other than the purpose for which it was adduced. But the parties must be put on notice as to the prospect of any adverse findings based on that evidence in circumstances where no party seeks to rely on the evidence for such a purpose. As Gleeson CJ and Heydon J observed in Suvaal v Cessnock City Council [2003] HCA 41 at [36]: A trier of fact, confronted with divergent cases being advanced by the parties, may decline to accept either case and may proceed to make findings not exactly representing what either party said. But that does not justify the creation of an entirely new case with which the losing party had no testimonial or other evidentiary opportunity to deal. The reason for the existence of such a right was eloquently explained by Megarry J in John v Rees [1970] Ch 345 at 402; [1969] 2 All ER 274; [1969] 2 WLR 1294 when he stated that: It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. “When something is obvious,” they may say, “why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start,” Those who take this view do not, I think, do themselves justice, As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find a decision against them has been made without their being afforded any opportunity to influence the course of events. [8-8230.20] Hearsay The rule against hearsay applicable in courts of law has been described in Subramanian v DPP [1956] 1 WLR 965 as follows: Evidence of a statement made to a witness by a person who is himself not called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. It should be noted that there are a number of exceptions to the hearsay rule, both at common law and under statute. [page 906] In Re Pochi & Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; 26 ALR 247 at 257; 36 FLR 482, Brennan J discussed the application of the hearsay rule to administrative tribunals: As the New South Wales Law Reform Commission has pointed out in its report on the rule against hearsay, hearsay “has a wide scale of reliability”, and there is no reason why logically probative hearsay should not be given credence. However, the logical weaknesses of hearsay evidence may

make it too insubstantial, in some cases, to persuade the tribunal to the truth of serious allegations. The FWC should take particular care in exercising its discretion to receive hearsay evidence: hearsay cannot be properly texted through cross-examination (as per Australasian Meat Industry Employees’ Union v Dardanup Butchering Company Pty Ltd [2011] FWA 3847; [2011] FWAFB 3847; (2011) 209 IR 1 (17 June 2011) at [29]). If hearsay evidence from one party is admitted, the opposing party may, in certain circumstances, be denied natural justice by being denied the opportunity to properly test the evidence — for example, by cross-examining the person who was directly involved. See R v Board of Visitors of Hull Prison; Ex parte St Germain (No 2) [1979] 3 All ER 545; [1979] 1 WLR 1401; [1979] Crim LR 726. [8-8230.25] Evidence from the bar table It is common practice for the commission to accept evidence from the bar table. In R v Commonwealth Conciliation & Arbitration Commission; Ex parte Melbourne Tramways Board (1965) 113 CLR 228 at 243; 39 ALJR 216; BC6500340, Barwick CJ stated: The commissioner was not disentitled to act upon the assertions of the union advocate, merely because they were not made on oath, or because he might not have been competent as a witness according to the ordinary rules of evidence to make them. No doubt, if the correctness of his assertions were challenged, it would at the least be imprudent on the part of the commissioner not to have further examined the matter, so as to satisfy himself of the actual facts, if need be, by evidence formally given. But there was nothing in the instant case which, it seems to me, the commissioner might not properly regard in the circumstances as sufficiently “evidenced” by the statements of the union advocate. See also Re Clerks (Building and Housing Societies) Award (1985) 10 IR 154; Grain Elevators Board v AWU [1978] IAS Current Review 132. [8-8230.30] Duty of Frankness Parties in the FWC should act with “the highest standards of probity, candour and honesty”: Sandra Oram and Derby Gem Pty Ltd — Reasons for Decision — PR946375 [2004] AIRC 723, (2004) 134 IR 379 at [61]. Further: It is essential to the proper administration of justice generally, and the interests of justice in particular matters, and clearly in the public interest, that representatives who appear for parties in the Commission act with, and observe, the highest standards of probity, candour and honesty. The capacity for members to rely upon the honesty and integrity of representatives and place faith in what they say and do before the Commission is essential to the proper dispatch of the Commission’s business. The duties … cannot be adequately discharged if the Commission is either misinformed or deliberately left uninformed on any relevant matters. It follows therefore, that there is a duty on persons appearing before the Commission to ensure that there is frank and full disclosure of all matters which are relevant to the proper settlement of the dispute before the Commission: Re Rubber, Plastic and Cable Making Industry Award (1975) 167 CAR 929 at 930. See also MOA v City of Greater Brisbane (1927) 25 CAR 932; Re AWU-FIME Amalgamated Unions (AIRC, Polites SDP, Watson DP and Peterson C, print L9381, 10 February 1995, unreported); [page 907] AWU v Energy Developments Ltd (AIRC, full bench, print M9753, 1 March 1996, unreported);

AFAP v TWU (AIRC, Palmer C, print P9060, 25 February 1998, unreported); ALHMWU v CSBP and Farmers Ltd (AIRC, Drake DP, print N5681, 16 October 1996, unreported). Contrast AWU v Clean Event Pty Ltd (AIRC, full bench, print N0297, 22 March 1996, unreported). [8-8230.35] Bias Part of procedural fairness is the right to have an unbiased decision maker: [A]llowing for considerable scope for the formation and expression of opinion upon such matters of public interest and concern, it should not be forgotten that the confidence with which the Commission and its decisions ought to be regarded and received may be undermined, as much as may confidence in the courts of law, by a suspicion of bias reasonably — and not fancifully — entertained by responsible minds: R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; [1969] ALR 504; BC6900660 (27 March 1969) at p 553. [8-8230.36] Disqualification for bias test Appearance of bias will cause a judicial officer to be disqualified and the test applied in Australia to determine this is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Sandra Oram and Derby Gem Pty Ltd — PR946375 [2004] AIRC 723, (2004) 134 IR 379 at [107]. As that case made clear at [110], “[f]ar from being inappropriate, the expression of a provisional view on a particular issue or warning parties of the consequences of a provisional view will typically be entirely consistent with the requirements of procedural fairness.” That theme was further explored by the Full Federal Court in ResMed Ltd v Australian Manufacturing Workers’ Union (2015) 232 FCR 152; [2015] FCAFC 106; BC201507562 at [29], [31]: As part of their duties when discharging their statutory responsibilities, members of the FWC are often required to form an opinion about legal issues. They are entitled to act on that opinion where it is relevant to the matters they are considering or deciding, although any findings made or opinion expressed about such matters will not be legally binding on the parties to proceedings in which they are made or expressed. The fact that a conclusion about a legal issue is not legally binding does not mean that the finding is a mere incident, or is unimportant, or is without any precedential value, or may legitimately be treated as irrelevant or non-existent. Nor does the fact that a member of the FWC considers and decides a legal question such as the proper meaning or construction of a rule of a union (whether sitting alone or on a Full Bench) signify that it might be reasonably anticipated that the member might not act impartially or properly if the same question arises again before him or her in a future proceeding between the same parties — eg an application to amend the same rule. In a tribunal such as the FWC, bias may be more difficult to define than in a court. It is not always easy to determine what is meant by bias given that appointees to the Commission will often have had a close association with parties before, or with issues to be determined by, the Commission: Re Polites; Ex Parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; 100 ALR 634; 65 ALJR 445; BC9102629 at [18]. In that case, the Tribunal member had given legal advice to one of the parties against the interest of the other. The High Court found at [17] that he was not biased on the basis that the advice was of no more than historical relevance. [8-8230.40] Outline of section This section is derived from long standing legislative provisions. While the FWC is not required to follow the rules of evidence and procedure, the discretion to decide matters is not at large. The Federal Court alluded to this tension in Coal &

[page 908] Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; 207 IR 177; [2011] FCAFC 54; BC201102269 at [25], [1], [2]: There is no doubt that members of FWA are (as were members of its statutory predecessors, the Commonwealth Conciliation and Arbitration Commission and the Australian Industrial Relations Commission (“the AIRC”)) bound to act “judicially” in the sense that they are obliged to respect and apply traditional notions of procedural fairness and impartiality … However, it is an important aspect of the work of FWA, at all levels including on appeal (as it was of its statutory predecessors), that it is to proceed without unnecessary technicality and as informally as the circumstances of the case permit. FWA is not a court and its members are not judicial officers as such (although the President has the same status as a judge of this Court and some senior members of FWA retain an equivalent status from earlier statutory arrangements). It is not inappropriate to say that the members of FWA have a statutory mandate to get to the heart of matters as directly and effectively as possible. See generally Jim Pearce, The approach of Fair Work Australia to evidence, (2011) 2 WR 142. *[Editor’s note: Commentary prepared by Gareth Jolly BA LLB (HONS) (MELB), Solicitor and updated by Ian Latham BA(Hons) LLB (ANU), Barrister.]

____________________

[8-8250]

Conferences

592 (1) For the purpose of performing a function or exercising a power of the FWC (other than a function or power under Part 2-6), the FWC may direct a person to attend a conference at a specified time and place. Note: Part 2-6 deals with minimum wages. For the conduct of annual wage reviews, see Subdivision B of Division 3 of Part 2-6. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 645, opn 1 Jan 2013]

(2) An FWC Member (other than an Expert Panel Member), or a delegate of the FWC, is responsible for conducting the conference. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 646, 647, opn 1 Jan 2013; s 3 and Sch 2 item 23, opn 1 July 2013]

(3) The conference must be conducted in private, unless the person responsible for conducting the conference directs that it be conducted in public. Note: This subsection does not apply in relation to conferences conducted in relation to unfair dismissal or general protection matters (see sections 368, 374, 398 and 776).

(4) At a conference, the FWC may: (a) mediate or conciliate; or

(b) make a recommendation or express an opinion. [subs (4) insrt Act 73 of 2013 s 3 and Sch 3A item 1, opn 1 July 2013]

(5) Subsection (4) does not limit what the FWC may do at a conference. [subs (5) insrt Act 73 of 2013 s 3 and Sch 1 item 1, opn 1 July 2013]

[8-8270]

Hearings

593 (1) The FWC is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 648, opn 1 Jan 2013]

(2) If the FWC holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 649, opn 1 Jan 2013]

[page 909] Confidential evidence in hearings (3) The FWC may make the following orders in relation to a hearing that the FWC holds if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason: (a) orders that all or part of the hearing is to be held in private; (b) orders about who may be present at the hearing; (c) orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing; (d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following: (i) evidence given in the hearing; (ii) matters contained in documents before the FWC in relation to the hearing. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 650, 651, opn 1 Jan 2013]

(4) Subsection (3) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection

289(2)). [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 652, opn 1 Jan 2013]

[8-8290]

Confidential evidence

594 (1) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason: (a) evidence given to the FWC in relation to the matter; (b) the names and addresses of persons making submissions to the FWC in relation to the matter; (c) matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter; (d) the whole or any part of its decisions or reasons in relation to the matter. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 653–655, opn 1 Jan 2013]

(2) Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 656, opn 1 Jan 2013]

[8-8310]

FWC’s power to deal with disputes

595 (1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 658, 659, opn 1 Jan 2013]

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways: (a) by mediation or conciliation; (b) by making a recommendation or expressing an opinion. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 660, opn 1 Jan 2013]

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised

to do so under or in accordance with another provision of this Act. [page 910] Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)). [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 661, 662, opn 1 Jan 2013]

(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision. Example: The FWC could direct a person to attend a conference under section 592. [subs (4) am Act 174 of 2012 s 3 and Sch 9 items 663, 664, opn 1 Jan 2013]

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section. [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 665, opn 1 Jan 2013; Act 73 of 2013 s 3 and Sch 1 item 2, opn 1 July 2013] [s 595 am Act 174 of 2012 s 3 and Sch 9 item 657, opn 1 Jan 2013] COMMENTARY ON SECTION 595*

Derivation …. Arbitration — s 595(2), (3) …. Bargaining dispute — s 595(3) Example …. Conciliation — s 595(2)(a) …. Considers appropriate — s 595(2), (3), Example …. Dispute — s 595(1), (2), (3), Example, (4) …. Expressly authorised — s 595(1), (3) …. FWC — s 595(1), (2), (3), Example, (4), Example, (5) …. May — s 595(1), (2), (3), Example, (4) …. Mediation — s 595(2)(a) …. This Act — s 595(1), (3) ….

[8-8310.01] [8-8310.05] [8-8310.10] [8-8310.15] [8-8310.20] [8-8310.25] [8-8310.30] [8-8310.35] [8-8310.40] [8-8310.45] [8-8310.50]

This subdivision — s 595(4) …. Outline of section ….

[8-8310.55] [8-8310.60]

[8-8310.01] Derivation The section is new. [8-8310.05] Arbitration — s 595(2), (3) See [9-5960.05]. [8-8310.10] Bargaining dispute — s 595(3) Example See s 240. [8-8310.15] Conciliation — s 595(2)(a) See [9-5960.10]. [8-8310.20] Considers appropriate — s 595(2), (3), Example See [8-5200.15]. [8-8310.25] Dispute — s 595(1), (2), (3), Example, (4) FWA may only deal with a dispute if FWA is expressly authorised to do so under or in accordance with the Act: s 591(1). A dispute is not defined in the Act: Australian and International Pilots Association v Fair Work Australia and others (2012) 127 ALD 453; 222 IR 316; [2012] FCAFC 65; BC201202894 at [8]. [8-8310.30] Expressly authorised — s 595(1), (3) One express source of such an arbitration power is contained in Div 2 of Pt 6-2 of the FW Act: Lend Lease Project Management and Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FWCFB 1889 at [20]. [page 911] [8-8310.35] FWC — s 595(1), (2), (3), Example, (4), Example, (5) See ss 12 and 575. [8-8310.40] May — s 595(1), (2), (3), Example, (4) See [20-3010.20]. [8-8310.45] Mediation — s 595(2)(a) See [9-5960.35]. [8-8310.50] This Act — s 595(1), (3) See s 12. [8-8310.55] This subdivision — s 595(4) This Subdivision is Subdiv B. [8-8310.60] Outline of section The section provides an exception to the generally not interventionist regime of the Act. The Explanatory Memorandum to the Fair Work Bill 2008 explains at [2287] that: The Bill expressly authorises FWA to deal with the following disputes (by authorising FWA to “deal with a dispute”): bargaining disputes under Part 2-4; general protections disputes under Part 3-1; right of entry disputes under Part 3-4; stand down disputes under Part 3-5; and disputes arising under a procedure for dealing with disputes in a modern award, enterprise agreement, workplace determination or contract of employment under Part 6-2, including procedures required by clause 146 (modern awards), subclause 186(6) (enterprise agreements) and subclause 273(2) as applied by subclause 297(1)(workplace determinations). As the Full Bench held in Re Woolworths Ltd (t/as Produce and Recycling Distribution Centre) (2010) 192 IR 124; [2010] FWAFB 1464 at [19]:

The section is concerned with the powers the tribunal may exercise in dealing with disputes. Section 595(1) provides that Fair Work Australia may only deal with a dispute if it is expressly authorised to do so. Section 595(2) provides that the tribunal may deal with a dispute by mediation, conciliation, making a recommendation or expressing an opinion subject to the qualification that it may not deal with the dispute by arbitration. Section 595(3) permits the tribunal to arbitrate if it is expressly authorised to do so. Section 595(4) operates to confer procedural powers. It seems to us clear enough from the text of these provisions that the legislature intended that Fair Work Australia can deploy voluntary methods of dispute resolution without the consent of the parties to the dispute, provided the dispute is one with which it is authorised to deal, but can only arbitrate if it has been specifically empowered to do so. *Editors’ note: Commentary on s 595 by Ian Latham BA(Hons)/LLB (ANU).

____________________

Subdivision C — Representation by lawyers and paid agents and Minister’s entitlement to make submissions

[8-8450] agents

Representation by lawyers and paid

596 (1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 666, opn 1 Jan 2013]

[page 912] (2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if: (a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or (b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or (c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the

same matter. Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non-English speaking background or has difficulty reading or writing; (b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 667, 668, opn 1 Jan 2013]

(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages). [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 669, opn 1 Jan 2013]

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent: (a) is an employee or officer of the person; or (b) is an employee or officer of: (i) an organisation; or (ii) an association of employers that is not registered under the Registered Organisations Act; or (iii) a peak council; or (iv) a bargaining representative; that is representing the person; or (c) is a bargaining representative. [subs (4) insrt Act 175 of 2012 s 3 and Sch 1 item 57, opn 5 Dec 2012] COMMENTARY ON SECTION 596*

Derivation …. Association of employers — s 596(4)(b)(ii) …. Bargaining representative — s 596(4)(b)(iv), (c) …. Complexity — s 596(2)(a) …. Employee — s 596 Note, 4(a), 4(b) …. Fairness — s 596(2)(c) ….

[8-8450.1] [8-8450.2] [8-8450.5] [8-8450.6] [8-8450.10] [8-8450.11]

FWC — s 596 (1), (2), Note, (3) …. Grounds for granting of permission …. Lawyer — s 596 (1), (2), Note, (3), (4) …. More efficiently — s 596(2)(a) …. Officer — s 596 Note, (4)(a), (b) ….

[8-8450.15] [8-8450.20] [8-8450.25] [8-8450.30] [8-8450.35] [page 913]

Organisation — s 596(4)(b)(i) …. Paid agent — s 596(1), (2), Note, (3), (4) …. Peak Council — s 596(4)(b)(iii) …. Represented — s 596(4)(b)(i), (2), (b), (c). Note, (3), (4) …. Represent effectively — s 596(2)(b) …. Unfair — s 596(2)(b), (c) …. Outline of section ….

[8-8450.37] [8-8450.40] [8-8450.45] [8-8450.46] [8-8450.50] [8-8450.55] [8-8450.60]

[8-8450.1] Derivation The section is very loosely derived from s 100 of the Workplace Relations Act 1996. For a discussion as to the similarities and differences see Lekos v Zoological Parks and Gardens Board t/as Zoos Victoria [2011] FWA 1520; BC201170359. [8-8450.2] Association of employers — s 596(4)(b)(ii) [A]n employer will be able to avail themselves of the benefit of s 596(4) and be represented by an association of employers that is not registered under the Registered Organisations Act in circumstances where the association of employers has as one of its purposes the protection and promotion of the interests of employers in matters concerning employment, and, where the employer is a member of that association of employers: Marrs v Subsea 7 i-Tech Australia Pty Ltd [2016] FWC 2650 at [30]. [8-8450.5] Bargaining representative — s 596(4)(b)(iv), (c) See s 12. [8-8450.6] Complexity — s 596(2)(a) Bulk should not be confused with complexity. As the Full Bench held in King v Patrick Projects Pty Ltd [2015] FWCFB 2679 at [17]: The Members of the Commission routinely deal with applications which are voluminous in size and riddled with materials extraneous to the application. This commonplace occurrence does not constitute legal or factual complexity. Sheer volume of documents or the existence of extraneous issues to the application will not in and of itself equate to complexity for the purposes of s 596(2)(a) of the Act. [8-8450.10] Employee — s 596 Note, 4(a), 4(b) See s 574. [8-8450.11] Fairness — s 596(2)(c) With respect to fairness pursuant to s 596(2)(b) of the Act, the relevant test is not an assessment of the skills and education of the individual employer representative (Mr Burton), but rather it involves an examination of the resources available to the respondent as a

whole: King v Patrick Projects Pty Ltd [2015] FWCFB 2679 at [18]. [8-8450.15] FWC — s 596 (1), (2), Note, (3) See s 12. [8-8450.20] Grounds for granting of permission In O’Grady v Royal Flying Doctor Service of Australia (South Eastern Section) (2010) 62 AILR 101-111; [2010] FWA 1143, DP Leary granted permission to an employer to have a lawyer in an unfair dismissal case on the basis that Fair Work Australia had to determine whether jurisdiction existed for it to hear and determine the substantive application. She said at [27]: Legal representation will allow the matter to be dealt with more efficiently. There are complex issues to be considered and the respondent is a Not For Profit organisation without a person experienced in workplace relations advocacy. The onus of proof in respect to the issue of jurisdiction rests with the party challenging the jurisdiction. Legal representation should allow the respondent to provide appropriate argument and assistance to FWA in the hearing and determination of the jurisdiction issue. [page 914] In Warrell v Walton [2013] FCA 291; BC201301563 Flick J overturned the decision by the Full Bench of Fair Work Australia to uphold the dismissal of an extension of time application at which the respondent was permitted to be represented by a lawyer (who cross examined the applicant) in circumstances where the applicant was unrepresented, functionally illiterate and brain damaged. Judge Flick held that (at [24]–[25]): A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596 is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): ie, “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”. The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. Previous authority is that, in the absence of objection, the Fair Work Commission “would usually grant permission [for a party to be legally represented] in formal proceedings before the Commission”: Rodney James Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572; BC200970435 at [12]. That previous authority should now be modified by adding the requirement that “provided formal application is made and the Commission finds that one or the other of the

requirements imposed by s 596(2) is satisfied”. The Full Bench of the Fair Work Commission has affirmed that a party cannot presume that it will be granted permission to be represented by a lawyer, even if the matter is an appeal: see G & S Fortunato Group Pty Ltd v Stranieri [2013] FWCFB 4098 at [10], relying on Warrell v Walton [2013] FCA 291; BC201301563. Notably, there is no need to obtain the permission of the FWC to have representation by a lawyer who is an employee or officer of a party or representative organisation (whether or not it is a registered organisation), or is a bargaining agent, as set out in s 596(4) of the FW Act. This permits “in-house” lawyers to represent parties in the FWC as of right. In such circumstances, s 596(2)(c) of the FW Act will ordinarily come into play. Regard should also be had to the definition of “lawyer” in s 12 of the FW Act, by which only those admitted to the legal profession by a Supreme Court of a State or Territory are considered to be lawyers. Although possible, it would be a rare set of circumstances in which it would be fair or appropriate for one party to be legally represented (whether by a person defined to be a lawyer under s 12 of the FW Act or otherwise) but another party is refused permission to be represented by a lawyer. In this regard, it is relevant that in the “Note” to s 596(2)(c) of the FW Act it is specifically envisaged that the FWC may grant a party permission to be represented by a lawyer in circumstances where the other party is represented by someone falling within the scope of s 596(4) of the FW Act or otherwise has experience in workplace relations advocacy (notwith-standing that they are not a “lawyer” as defined in s 12 of the FW Act). [page 915] It may also be noted that the Commission must decide to either grant permission for a legal representative to appear or not, according to the criteria in s 596 of the FW Act, and cannot select which legal representatives a party may have and which it may not. In New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office (2014) 241 IR 177; [2014] FWCFB 1663 the Full Bench of the Commission refused permission for the NSW Bar Association to appeal in circumstances where it was not a party to the proceeding at first instance, and doubted that it even had standing to seek to do so, stating at [29]: That conclusion makes it unnecessary for us to consider the question of whether the Association has standing to bring its appeal. We would simply observe that although the “person aggrieved” test for standing has been interpreted to have a wide field of operation, the case for standing here is a borderline one. However in the course of its decision the Full Bench observed that the Commissioner at first instance had erred in refusing leave for the respondent’s barrister to appear but then granting leave for a solicitor to represent it instead, as distinguishing between a barrister and a solicitor did not fall within the criteria for consideration at s 96(2) of the FW Act (see at [24]–[25]). [8-8450.25] Lawyer — s 596 (1), (2), Note, (3), (4) See s 12. The power conferred by s 596(2) is simply to “grant permission for a person to be represented by a lawyer or paid agent in a matter”. Nothing in that language suggests that the power extends to the selection of which particular lawyer or paid agent will represent a party applying for permission. In the proceedings below, the duty of the Commissioner was either to grant or refuse permission for the ATO to be represented by a lawyer. It was not within the power conferred on the Commission to choose who

that lawyer would be either by reference to the individual identity of the lawyer or by reference to whether the lawyer was a barrister or a solicitor. We do not consider that the power in s 596 was intended to interfere with a party’s right to choose who its legal representative (or paid agent) would be if permission was to be granted: New South Wales Bar Association (2014) 241 IR 177; [2014] FWCFB 1663 at [24]. [8-8450.30] More efficiently — s 596(2)(a) Lewin C held in Lekos v Zoological Parks and Gardens Board t/as Zoos Victoria [2011] FWA 1520; BC201170359 at [40]–[41] that both limbs of the composite phrase need to be taken into account: I see no reason in all of the circumstances to conclude that the permission sought would create “more” efficiency in dealing with the matter than if the permission is not granted, taking into account that no demonstrable complexity in the matter arises or has been made out. … To grant permission on the basis of a consideration of convenience would cut against the grain on the statutory provisions and not be in accord with the legislative intention clearly evident in the new statutory provisions and the extrinsic materials. In Applicant v Respondent [2014] FWC 2860, DP Sams examined the benefit of legal representation both to the Commission and to an unrepresented party. He held at [18] and [27] that: Invariably, I have found the skills and expertise of an experienced industrial legal practitioner will be more of a help than a hindrance, particularly bearing in mind a legal practitioner’s professional obligations to the Commission and the Courts … I am well satisfied that this matter is of sufficient complexity that it will be dealt with more efficiently if the respondent is permitted to be legally represented. I note that the respondent’s Counsel is an experienced industrial practitioner, who will be of undoubted assistance to the Commission. I believe the applicant will also be assisted by having an experienced person on the other side who can focus on the relevant issues which she needs to bring to the Commission’s attention. [page 916] [8-8450.35] Officer — s 596 Note, (4)(a), (b) See s 12. [8-8450.37] Organisation — s 596(4)(b)(i) See s 12. [T]he phrase “an organisation … that is representing the person” in s 596(4)(b)(i) of the FW Act does not include any registered organisation a person has simply chosen to represent them and/or which simply agrees to represent them … Such an interpretation of the phrase would undermine the scheme of the FWRO Act. The FWRO Act’s criteria for registration of associations, its rule requirements and its representation order provisions are concerned with the specification of the persons an organisation is entitled to industrially represent: CDJV Construction Pty Ltd [2014] FWCFB 5726 at [47]–[48]. [8-8450.40] Paid agent — s 596(1), (2), Note, (3), (4) See s 12. [8-8450.45] Peak Council — s 596(4)(b)(iii) See s 12. [8-8450.46] Represented — s 596(4)(b)(i), (2), (b), (c). Note, (3), (4) The effect of r 12(1) of the Fair Work Commission Rules 2013 when read with s 596(1) is that the Decision does not affect the capacity of the Appellant to have its out-of-court preparation work performed by lawyers: Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618 at [19].

[8-8450.50] Represent effectively — s 596(2)(b) In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited (Project Aurora) [2012] FWA 2966, SDP Richards held at [14]–[16] that: In the context used in the s 659(2)(b) of the Act, the adverb “effectively” is used to condition the verb “to represent”. Thus, a person must be unable to represent himself, herself or itself effectively in order for the requisite permission to be granted. It seems sufficiently clear that Parliament did not intend that permission to be represented be granted when a person is unable to be represented “satisfactorily”, “sufficiently” or “adequately” etc. These are not the adverbs that Parliament has put to work in s 596(2)(b) of the Act. Rather, the adverb performing the conditioning work upon the verb “to represent” in s 596(2)(b) of the Act is “effectively”. It appears, then, that before permission to be represented can be granted, a person must be unable to represent himself, herself or itself effectively, and following the plain language definitions of the Macquarie Dictionary (Revised Third Edition) and the Australian Concise Oxford Dictionary (Third Edition), this means the person must be unable to represent himself, herself or itself in a manner that creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect”. [8-8450.55] Unfair — s 596(2)(b), (c) The question of fairness may require an assessment of the resources of the parties. In Lekos v Zoological Parks and Gardens Board t/as Zoos Victoria [2011] FWA 1520; BC201170359 at [34], Lewin C held that: At this point it is convenient to note that the applicant is self represented. It seems logical in this matter, having regard to the relative capacity of the applicant, who was employed as a zookeeper, and Zoos Victoria, which is more significantly resourced (which will be dealt with further below), to conclude that no unfairness as between the applicant and the respondent would accrue if Zoos Victoria was not granted permission to be represented by a lawyer. [8-8450.60] Outline of section Fair Work Australia has implemented “a more stringent requirement for the granting of permission for legal representation than existed under the predecessor provisions of the Workplace Relations Act 1996”: Mr Moshiur Rahman v Storm International Pty Ltd t/as Storm International Property Maintenance [2011] FWA 7583; [page 917] BC201171257 at [6]. The Explanatory Memorandum to the Fair Work Bill states at [2291]–[2292] that: FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee of an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, cl 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.

In Karmakar v Australian Campus Network Pty Ltd (2013) 233 IR 247; [2013] FWC 2340 at [11], Cambridge C held that: Upon examination of subs 596(2) there appears to be three, and only three, criteria which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a party in proceedings such as the hearing of a claim for unfair dismissal. The three criteria which can be identified in paras (a), (b) and (c) of subs 596(2), can be paraphrased as: (a) complexity/efficiency; (b) inability; and (c) fairness. The nature of the proceedings may be important. As Commissioner held in Banerji v Commonwealth of Australia (Department of Immigration and Citizenship) [2013] FWC 8817 at [6]–[7]: Section 596 of the Act applies equally to unfair dismissal applications and applications made under the general protections provisions of the Act. The principles set out in the decision are as applicable to a general protections application where the Commission’s primary role is the conduct of a conference as to an unfair dismissal hearing. It can be argued that there should be less need for a party to be represented by a lawyer at a proceeding in the nature of a conference. It is also clear, however, that applications made under s 365 of the Act are more likely to raise complex legal issues than those alleging unfair dismissal. Despite having no determinative role in a conference held pursuant to s 368 of the Act, other than the limited advisory role set out in s 370 of the Act, it is nevertheless necessary that the Commission properly appreciate the legal issues which may arise should the matter not be settled and the applicant decide to proceed to court. If the Commission is to properly facilitate a settlement of the matter at the conference stage then it should have as comprehensive as possible an understanding of such issues. See generally I Latham, “Legal representation in unfair dismissal cases”, (2013) 19 (6) ELB 86 and R McClelland, “Responsible advocacy crucial to legal practice in the Fair Work Commission”, (2013) 4 (2) Workplace Review, 71. For a criticism of the section and call for reform, see Adam Salter and Dr Kai Luck, “The restriction on legal representation before the Fair Work Commission: an end without means”, (2016) 22(6) ELB 214. In Allen v Fluor Construction Services Pty Ltd [2014] FWCFB 174 at [48], the Full Bench held that the grant of permission brings with it certain responsibilities: A grant of permission to appear pursuant to s 596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission. As a Full Bench noted in AFMEPKIU v Energy Developments Ltd [AIRC Print M9753, 1 March 1996 per Ross VP, Maher DP and McDonald C]: It is a long standing principle of this Commission and its predecessors that there is a duty on persons appearing before the Commission to ensure that there is full and frank disclosure [page 918] of all matters which are relevant to the proper determination of the matter before the Commission (see Municipal Officers Association of Australia v City of Greater Brisbane (1927) 25 CAR 932 at 935 per Lukis J.)

*Editors’ note: Commentary to s 596 prepared by Ian Latham, Barrister, Erik Young, Barrister and Robert McClelland, Partner with Carroll and O’Dea Lawyers.

____________________

[8-8470] Minister’s entitlement to make submissions 597 (1) The Minister is entitled to make a submission for consideration in relation to a matter before the FWC if: (a) the matter is before a Full Bench and it is in the public interest for the Minister to make a submission; or (b) the matter involves public sector employment. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 670, opn 1 Jan 2013]

(2) Subsection (1) applies whether or not the FWC holds a hearing in relation to the matter. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 670, opn 1 Jan 2013] COMMENTARY ON SECTION 597*

Derivation …. Full Bench — s 597(1)(a) …. FWC — s 597(1), (2) …. Public interest — s 597(a) …. Public sector employer — s 597(1)(a) …. Outline of section ….

[8-8470.1] [8-8470.5] [8-8470.10] [8-8470.15] [8-8470.20] [8-8470.25]

[8-8470.1] Derivation The section is loosely derived from s 856 of the Workplace Relations Act 1996. That section required the Minister to intervene in the proceedings. [8-8470.5] Full Bench — s 597(1)(a) See s 12. [8-8470.10] FWC — s 597(1), (2) See s 12. [8-8470.15] Public interest — s 597(a) See [7-4940.15]. [8-8470.20] Public sector employer — s 597(1)(a) See s 795(4). [8-8470.25] Outline of section The section sets out a right of the Minister to make submissions in addition to the right to intervene under s 569. *Editors’ note: Commentary to s 597 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[8-8480] State or Territory Minister’s entitlement to make submissions 597A (1) The Minister of a State or Territory who has responsibility for workplace relations matters is entitled to make a submission for consideration in relation to a matter before the FWC if: (a) the matter is before a Full Bench; and [page 919] (b) it is in the public interest of the State or Territory for the Minister of the State or Territory to make a submission. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 671, opn 1 Jan 2013]

(2) Subsection (1) applies whether or not the FWC holds a hearing in relation to the matter. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 671, opn 1 Jan 2013] [s 597A insrt Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010]

Subdivision D — Decisions of the FWC [Subdiv D heading am Act 174 of 2012 s 3 and Sch 9 item 672, opn 1 Jan 2013]

[8-8610]

Decisions of the FWC

598 (1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC’s power to deal with disputes). Note: Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 674–676, opn 1 Jan 2013]

(2) If the FWC makes a decision that makes or varies an instrument, a

reference in this Part to a decision of the FWC includes the FWC’s decision to make or vary the instrument in the particular terms decided. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 677, 678, opn 1 Jan 2013]

(3) A decision of the FWC that is described as an order must be made by order. Note: An example of a decision that is described as an order is a bargaining order. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 679, opn 1 Jan 2013]

(4) A decision of the FWC that is not described as an order may be made by order. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 679, opn 1 Jan 2013] [s 598 am Act 174 of 2012 s 3 and Sch 9 item 673, opn 1 Jan 2013]

[8-8630] FWC not required to decide an application in terms applied for 599 Except as provided by this Act, the FWC is not required to make a decision in relation to an application in the terms applied for. [s 599 am Act 174 of 2012 s 3 and Sch 9 items 680, 681, opn 1 Jan 2013]

[8-8650] person

Determining matters in the absence of a

600 The FWC may determine a matter before it in the absence of a person who has been required to attend before it. [s 600 am Act 174 of 2012 s 3 and Sch 9 item 682, opn 1 Jan 2013]

[page 920]

[8-8670] Writing and publication requirements for the FWC’s decisions 601 (1) The following decisions of the FWC must be in writing: (a) a decision of the FWC made under a Part of this Act other than this Part;

(b) an interim decision that relates to a decision to be made under a Part of this Act other than this Part; (c) a decision in relation to an appeal or review. Note: For appeals and reviews, see sections 604 and 605. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 684, opn 1 Jan 2013]

(2) The FWC may give written reasons for any decision that it makes. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 685, opn 1 Jan 2013]

(3) A decision, and reasons, that are in writing must be expressed in plain English and be easy to understand in structure and content. (4) The FWC must publish the following, on its website or by any other means that the FWC considers appropriate: (a) a decision that is required to be in writing and any written reasons that the FWC gives in relation to such a decision; (b) an enterprise agreement that has been approved by the FWC under Part 2-4. The FWC must do so as soon as practicable after making the decision or approving the agreement. [subs (4) am Act 174 of 2012 s 3 and Sch 9 items 686–688, opn 1 Jan 2013]

(5) Subsection (4) does not apply to any of the following decisions or reasons in relation to such decisions: (a) a decision to issue, or refuse to issue, a certificate under paragraph 368(3)(a); (c) a decision to issue an entry permit under section 512; (d) a decision to impose conditions on an entry permit under section 515; (e) a decision to issue, or refuse to issue, an exemption certificate under section 519; (f) a decision to issue, or refuse to issue, an affected member certificate under section 520; (g) a decision or reasons in relation to which an order is in operation under paragraph 594(1)(d). [subs (5) am Act 73 of 2013 s 3 and Sch 4A item 9, opn 1 Jan 2014]

(6) Subsections (1) and (4) do not limit the FWC’s power to put decisions

in writing or publish decisions. [subs (6) am Act 174 of 2012 s 3 and Sch 9 item 689, opn 1 Jan 2013] [s 601 am Act 174 of 2012 s 3 and Sch 9 item 683, opn 1 Jan 2013]

[8-8690] Correcting obvious errors etc in relation to the FWC’s decisions 602 (1) The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award or national minimum wage order). Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument under this section (see subsection 598(2)).

[page 921] Note 2: The FWC corrects modern awards and national minimum wage orders under sections 160 and 296. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 691–693, opn 1 Jan 2013]

(2) The FWC may correct or amend the error, defect or irregularity: (a) on its own initiative; or (b) on application. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 694, opn 1 Jan 2013] [s 602 am Act 174 of 2012 s 3 and Sch 9 item 690, opn 1 Jan 2013] COMMENTARY TO SECTION 602*

Derivation …. FWC — s 602(1), Note 1, Note 2, (2) …. Modern award — s 602(1), Note 2 …. National minimum wage order — s 602(1), Note 2 …. Outline of section ….

[8-8690.1] [8-8690.5] [8-8690.10] [8-8690.15] [8-8690.20]

[8-8690.1] Derivation The section is loosely derived from s 111(1)(d) of the Workplace Relations Act (1996). [8-8690.5] FWC — s 602(1), Note 1, Note 2, (2) See s 12. [8-8690.10] Modern award — s 602(1), Note 2 See s 12.

[8-8690.15] National minimum wage order — s 602(1), Note 2 See s 12. [8-8690.20] Outline of section Section 602 is directed at slip rule problems: Grabovsky [2015] FWC 5161 at [37]. The “slip and error rule” enables a court to make amendments where unintentional errors have occurred. A perusal of the authorities in this area indicates that the “slip and error rule” has been employed in a number of contexts and has wide application. Such applications include but are by no means limited to: the addition of words in an order enabling interest to be added to a judgement sum; an adjustment of a monetary amount in an order where the incorrect amount was calculated due to a clerical error; and an amendment to an order prescribing the incorrect amount of interest payable on a judgment debt: Munro J in Re Timber and Allied Industries Award 1999 [2003] AIRC 1137, Sydney, 11 September 2003, PR937647 at [29] and [31]. *Editors’ note: Commentary to s 602 prepared by Ian Latham BA (Hons)/LLB (ANU), Barrister.

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[8-8710] Varying and revoking the FWC’s decisions 603 (1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)). Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)). [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 696, 697, opn 1 Jan 2013; Act 73 of 2013 s 3 and Sch 6 items 6, 7, opn 28 June 2013]

(2) The FWC may vary or revoke a decision under this section: (a) on its own initiative; or (b) on application by: (i) a person who is affected by the decision; or [page 922] (ii) if the kind of decision is prescribed by the regulations — a person prescribed by the regulations in relation to that kind of decision. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 698, opn 1 Jan 2013]

(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:

(a) a decision under Part 2-3 (which deals with modern awards); (b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements); (c) a decision under Part 2-5 (which deals with workplace determinations); (d) a decision under Part 2-6 (which deals with minimum wages); (e) a decision under Division 3 of Part 2-8 (which deals with transfer of business); (f) a decision under Division 8 of Part 3-3 (which deals with protected action ballots); (g) a decision under section 472 (which deals with partial work bans); (h) a decision that is prescribed by the regulations. Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448). [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 699–701, opn 1 Jan 2013] [s 603 am Act 174 of 2012 s 3 and Sch 9 item 695, opn 1 Jan 2013]

Subdivision E — Appeals, reviews and referring questions of law

[8-8850]

Appeal of decisions

604 (1) A person who is aggrieved by a decision: (a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or (b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act; may appeal the decision, with the permission of the FWC. [subs (1) subst Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010; am Act 175 of 2012 s 3 and Sch 1 item 58, opn 5 Dec 2012; Act 174 of 2012 s 3 and Sch 9 item 702, opn 1 Jan 2013; s 3 and Sch 2 item 24, opn 1 July 2013]

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so. Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

[subs (2) am Act 174 of 2012 s 3 and Sch 9 item 702, opn 1 Jan 2013]

(3) A person may appeal the decision by applying to the FWC. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 702, opn 1 Jan 2013] COMMENTARY ON SECTION 604*

Derivation …. Aggrieved by a decision — s 604(1) …. FWC — s 604(1)(a), (2), (3) …. General Manager — s 604(1)(b) ….

[8-8850.1] [8-8850.5] [8-8850.10] [8-8850.15] [page 923]

Minimum Wage Panel — s 604(1)(a) …. Procedure …. Public interest — s 604(2) …. The nature of appeal …. The test for leave …. Outline of section ….

[8-8850.20] [8-8850.22] [8-8850.25] [8-8850.30] [8-8850.35] [8-8850.40]

[8-8850.1] Derivation The section is new. [8-8850.5] Aggrieved by a decision — s 604(1) The phrase party aggrieved has been broadly defined to extend to people beyond those who have a legal interest at stake: Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 4 ALD 277; 36 ALR 64; 54 FLR 421 at 79. It was held in Re Australian Industry Group (2010) 196 IR 125; [2010] FWAFB 4337 at [11] that: the term “person aggrieved” is capable of extending beyond persons whose legal interests are affected by the decision in question and extends to persons with an interest in the decision beyond that of an ordinary member of the public. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia — Electrical, Energy and Services Division — Queensland Divisional Branch; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)-Queensland Branch v Main People Pty Ltd [2014] FWCFB 8429 at [7], the Full Bench held that a union that was not a bargaining representative and who had no members in the workplace was a person aggrieved because: The appellants have the right to represent employees under the terms of the Agreement. Moreover, given the nature of the respondent’s business, and the industry within which it operates, we are satisfied that it is likely that some members of the appellants will be employed by the respondent in the future, in classifications covered by the Agreement. In the circumstances of this case we consider that this gives the appellants an interest in the decision to approve the Agreement beyond that of an ordinary member of the public. Accordingly, we are satisfied that the appellants have standing to

appeal the decision to approve the Agreement. The Commission has made it clear that it may necessary to adduce evidence as to the position of the party who submits that it is aggrieved. In Manpower Services (Australia) Pty Ltd re the Australian Workers’ Union v Adecco Projects Pty Ltd re Adecco Projects/Australian Workers Union Cirque [2002] AIRC 281; PR914477 at [20], the Full Bench of the AIRC held that: We are left with a situation in which one company submits that it is aggrieved by a decision which has the effect of applying a different wage structure to another company in the same industry. We think that is an insufficient basis to found a conclusion that the first company is aggrieved … [8-8850.10] FWC — s 604(1)(a), (2), (3) See s 12 and s 575. [8-8850.15] General Manager — s 604(1)(b) See s 12. [8-8850.20] Minimum Wage Panel — s 604(1)(a) See s 12 and s 620. [8-8850.22] Procedure See Rule 12 at [60-155] and Practice Note 1/2013 at [89-000]. [8-8850.25] Public interest — s 604(2) See, [7-4940.15]. [page 924] [8-8850.30] The nature of appeal A power to receive further evidence on the appeal indicates that the appeal is by of rehearing: Allesch v Maunz (2000) 203 CLR 172; 173 ALR 648; [2000] HCA 40; BC200004312 at [22], Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 174 ALR 585; [2000] HCA 47; BC200005034 at [13]. This meaning is bolstered by the reference to a review in s 605. This proposition is supported by the Full Bench in Newlands Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2010) 200 IR 5; [2010] FWAFB 7401 at [38] that an appeal under s 604 is an appeal by way of rehearing (although this does not seem to have been contested). If so, in the absence of a statutory power to do so, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error: Allesch at [23], Coal & Allied at [14]. This position was supported in Telstra Corp Ltd v Minister for Broadband, Communications and Digital Economy (2008) 166 FCR 64; 246 ALR 15; [2008] FCAFC 7; BC200800551 (dealing specifically with consent orders made upon appeal) although doubted in Citigroup Pty Ltd v Mason (2008) 171 FCR 96; 250 ALR 7; [2008] FCAFC 151; BC200807479 at [8], [12]–[16]. Note the potential alternate head of power under s 603. The Full Bench in Spillard v Patrick Stevedores Holdings Pty Ltd (2010) 193 IR 184; [2010] FWAFB 2597 held at [7]–[8] that: The approach to be taken by an appellate court dealing with an appeal by way of rehearing is well established and was recently summarised by the High Court in Fox v Percy: The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits.

… Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect. The difference between a rehearing and an appeal in the strict sense was succinctly put by Finkelstein J in Warramunda Village Inc v Pryde (2002) 116 FCR 58; (2002) 113 IR 265; [2002] FCAFC 58; BC200201040 at [33]: … When the appeal is a rehearing there is a trial over again on the evidence used in the court below (usually with special power to receive further evidence) and the appeal court must decide the appeal on the law as it then exists. On an appeal strictly so called the only judgment that can be given is that which ought to have been given at the original hearing. In Stevenson v Guardian Hall Pty Ltd (2006) 149 IR 93; Print PR969025 at [98] (24 February 2006), the Australian Industrial Relations Commission held that the tribunal is not limited by the submissions put before the member at first instance. [8-8850.35] The test for leave In Ferrymen Pty Ltd v Maritime Union of Australia (2013) 238 IR 258; [2013] FWCFB 8025 at [11] and [12] a Full Bench of the FWC held that: In Wan v Australian Industrial Relations Commission (2001) 116 FCR 481; [2001] FCA 1803; BC200108538 the Full Federal Court made the following observation regarding the operation of s 45 of the then Workplace Relations Act 1996 (Cth) (the WR Act), a statutory predecessor to s 604: [page 925] 30. Section 45 does not specify grounds for granting leave to appeal other than in the special case referred to in s 45(2). As we have previously observed, grounds traditionally adopted in granting leave have included considerations such as whether the decision is attended with sufficient doubt to warrant its reconsideration and whether substantial injustice may result if leave is refused. These “grounds” should not be seen as fetters upon the broad discretion conferred by s 45(1), but as examples of circumstances which will usually be treated as justifying the grant of leave. It will rarely, if ever, be appropriate to grant leave unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error. Given the similarities between s 45 of the WR Act and s 604 of the Act the observations in Wan are still apposite. Lack of utility is a well-established basis for the refusal of permission to appeal: Ferrymen Pty Ltd v Maritime Union of Australia (2013) 238 IR 258 [2013] FWCFB 8025, at [48]. As to other grounds for the granting of permission, see also [7-4940.30]. [8-8850.40] Outline of section An appeal in its ordinary context is “the right of entering a superior court and invoking its aid and interposition to redress the error of the court below”: Eastman v R (2000)

203 CLR 1; 172 ALR 39; [2000] HCA 29; BC200002716 at [104]. *Editors’ note: Commentary on s 604 by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________

[8-8870] Minister’s entitlement to apply for review of a decision 605 (1) The Minister may apply to the FWC for a review to be conducted by the FWC of a decision made by the FWC (other than a decision of a Full Bench or an Expert Panel) if the Minister believes that the decision is contrary to the public interest. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 703, opn 1 Jan 2013; s 3 and Sch 2 item 25, opn 1 July 2013]

(2) Without limiting when the FWC may conduct a review, the FWC must conduct a review of the decision if the FWC is satisfied that it is in the public interest to conduct the review. Note: The FWC must be constituted by a Full Bench to decide whether to conduct a review, and to conduct the review (see section 614). [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 704, 705, opn 1 Jan 2013]

(3) In conducting a review: (a) the FWC must take such steps as it considers appropriate to ensure that each person with an interest in the review is made aware of the review; and (b) the Minister is entitled to make submissions for consideration in the review. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 706, opn 1 Jan 2013]

(4) Nothing in this section affects any right of appeal or any power of the FWC under section 604 or 607. A review of a decision and an appeal of the decision may be dealt with together if the FWC considers it appropriate. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 706, opn 1 Jan 2013] COMMENTARY ON SECTION 605*

Derivation …. Appeal — s 605(4) …. Expert Panel — s 605(1) ….

[8-8870.05] [8-8870.10] [8-8870.15]

[page 926]

Full Bench — s 605(1) …. FWC — s 605(1), (2), Note, (3)(a), (4) …. Public interest — s 605(1), (2) …. Review — s 605(1), (2), Note, (3),(a),(b), (4) …. Outline of section ….

[8-8870.20] [8-8870.25] [8-8870.30] [8-8870.35] [8-8870.40]

[8-8870.05] Derivation The section is loosely derived from s 114 [8-8870.10] Appeal — s 605(4) See [8-8850.30]. [8-8870.15] Expert Panel — s 605(1) See ss 12 and 620. [8-8870.20] Full Bench — s 605(1) See ss 12 and 618. [8-8870.25] FWC — s 605(1), (2), Note, (3)(a), (4) See s 12 and s 575. [8-8870.30] Public interest — s 605(1), (2) See [7-4940.15]. [8-8870.35] Review — s 605(1), (2), Note, (3),(a),(b), (4) An “appeal” from an administrative decision to a court is the creature of statute and it confers original, not appellate, jurisdiction. Further, where a jurisdiction called an “appeal” is enlivened, it is essential to identify its nature and the duties and power of the court in the exercise of that jurisdiction. The term “review” presents similar considerations. It takes its meaning from the context in which it appears. It may be used by the statute in question to empower decision-making by an administrative body, or to confer a species of original jurisdiction on a court. If the latter, again it will be necessary to identify the nature of the “review” and the duties and powers of the court in the exercise of that jurisdiction: Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (2011) 125 ALD 1; 281 ALR 687; [2011] HCA 41; BC201107574 at [6]. [8-8870.40] Outline of section The Explanatory Memorandum to the Fair Work Bill 2009 states rather perplexingly at [1607] that: Clause 605 has the effect of empowering the Minister to apply to FWA for a review of unfair dismissal decisions (other than those made by a Full Bench) if, in the Minister’s opinion, the decisions are contrary to the public interest. The section seems considerably broader than there described. As the Full Bench has held at [2]: Under that section the Minister may apply for a review of a decision of a member of Fair Work Australia if the Minister believes that the decision is contrary to the public interest. It is in the discretion of a Full Bench whether to conduct a review, subject to the proviso that if the Full Bench is satisfied that a review would be in the public interest it must conduct one. Minister for Employment and Workplace Relations [2010] FWAFB 3552 (19 May 2010) at [2]; (2010) 195 IR 138. *Editors’ note: Commentary on s 605 by Ian Latham BA(Hons)/LLB (ANU), Barrister.

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[8-8890] Staying decisions that are appealed or reviewed 606 (1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 707, opn 1 Jan 2013]

[page 927] (2) If a Full Bench is hearing the appeal or conducting the review, an order under subsection (1) in relation to the appeal or review may be made by: (a) the Full Bench; or (b) the President; or (c) a Vice President; or (d) a Deputy President. [subs (2) am Act 174 of 2012 s 3 and Sch 8 item 1, opn 1 Jan 2013]

(3) This section does not apply in relation to a decision to make a protected action ballot order. COMMENTARY ON SETION 606*

Derivation …. Appeal — s 606(1), (2), (b) …. Full Bench — s 606(2), (a) …. FWC — s 606(1) …. Protected action ballot order — s 606(3) …. Review — s 606(1), (2), (b) …. Outline of section ….

[8-8890.01] [8-8890.05] [8-8890.10] [8-8890.15] [8-8890.20] [8-8890.25] [8-8890.30]

[8-8890.01] Derivation The section is loosely derived from s 121(4) of the Workplace Relations Act 1996. [8-8890.05] Appeal — s 606(1), (2), (b) See s 604. [8-8890.10] Full Bench — s 606(2), (a) See s 12 definition of “full bench” and s 618. [8-8890.15] FWC — s 606(1) See s 12 definition of “FWC” and s 575. [8-8890.20] Protected action ballot order — s 606(3) See s 12 definition of “protected action ballot order”. [8-8890.25] Review — s 606(1), (2), (b) See s 605. [8-8890.30] Outline of section Ross J held in Grabovsky [2015] FWC 5161 at [18]–[19] that: It is apparent from the terms of s 606(1) that the power to stay a decision is not at large. It is not a power that applies generally to all decisions. A stay order may only be made in relation to a decision subject to appeal (under s 604) or a review (under s 605). Further, the making of a stay order is an interlocutory step, pending the determination of the appeal or review. So much is clear from the words at the end of s 606(1), that is: “… [U]ntil a decision in relation to the appeal or review is made or the FWC makes a further order.” In determining whether to grant a stay application, the FWC must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of permission to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted. The tribunal approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made: Freo Group Ltd t/as Freo Machinery v The Construction, [page 928] Forestry, Mining and Energy Union [2010] FWA3489; BC201070594 (30 April 2010) at [2]. That test is an orthodox reworking of Kellow-Falkiner Motors v Edghill (AIRC, S4216, 17 March 2000, Giudice J, Acton SDP and Simmonds C) at [4]. *Editors’ note: Commentary on s 606 prepared by Ian Latham BA(Hons) LLB(ANU), Barrister.

____________________

[8-8910] Process for appealing or reviewing decisions 607 (1) An appeal from, or a review of, a decision of the FWC or the

General Manager may be heard or conducted without holding a hearing only if: (a) it appears to the FWC that the appeal or review can be adequately determined without persons making oral submissions for consideration in the appeal or review; and (b) the persons who would otherwise, or who will, make submissions (whether oral or written) for consideration in the appeal or review consent to the appeal or review being heard or conducted without a hearing. [subs (1) am Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010; Act 174 of 2012 s 3 and Sch 9 item 708, opn 1 Jan 2013]

(2) The FWC may: (a) admit further evidence; and (b) take into account any other information or evidence. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 709, opn 1 Jan 2013]

(3) The FWC may do any of the following in relation to the appeal or review: (a) confirm, quash or vary the decision; (b) make a further decision in relation to the matter that is the subject of the appeal or review; (c) refer the matter that is the subject of the appeal or review to an FWC Member (other than an Expert Panel Member) and: (i) require the FWC Member to deal with the subject matter of the decision; or (ii) require the FWC Member to act in accordance with the directions of the FWC. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 710–712, opn 1 Jan 2013; s 3 and Sch 2 item 26, opn 1 July 2013] COMMENTARY TO SECTION 607*

Derivation …. Admit further evidence — s 607(2)(a) …. Appeal — s 607(1), (a), (b), (3), (b), (c) …. Expert Panel Member — s 607(c) …. FWC — s 607(1), (a), (2), (3)(c)(ii) ….

[8-8910.1] [8-8910.5] [8-8910.10] [8-8910.15] [8-8910.20]

FWC member — s 607(3)(c), (i), (ii) …. General Manager — s 607(1) …. Quash — s 607(3)(a) …. Review — s 607(1), (a), (b), (3), (b), (c) …. Take into account — s 607(2)(b) …. Outline of section ….

[8-8910.25] [8-8910.30] [8-8910.35] [8-8910.40] [8-8910.45] [8-8910.50]

[8-8910.1] Derivation The catalogue of specific powers stated in s 607(3)(a) repeats a formulation which appeared in relation to appeals before the statutory predecessors of the FWC: [page 929] the Australian Industrial Relations Commission (Workplace Relations Act 1996 (Cth), s 120(7)(a), before that the Industrial Relations Act 1988 (Cth), s 45(7)(a)) and the Conciliation and Arbitration Commission (Conciliation and Arbitration Act 1904 (Cth), s 35(9)(c)): Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (2015) 230 FCR 565; 317 ALR 636; [2015] FCAFC 11; BC201500514 at [47]. [8-8910.5] Admit further evidence — s 607(2)(a) In Reihana v Mastercare Highrise Cleaning Services Pty Ltd [2013] FWCFB 4960, the Full Bench held at [12] that: … s 607(2) confers a discretion on a Full Bench hearing on appeal to “admit further evidence” and “take into account any other information or evidence” and that the principles governing the admission of fresh evidence on appeal in the courts provide a useful guide to the exercise of the discretion. In that regard, in Akins v National Australia Bank, Clarke JA said: “The Court is empowered to receive further evidence upon the hearing of an appeal (s 75A(7) of the Supreme Court Act 1970) but pursuant to subs (8) of that section may not receive further evidence after a trial on the merits ‘except on special grounds’. Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained without reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.” [8-8910.10] Appeal — s 607(1), (a), (b), (3), (b), (c) See s 604. [8-8910.15] Expert Panel Member — s 607(c) See s 12. [8-8910.20] FWC — s 607(1), (a), (2), (3)(c)(ii) See s 12 and s 575. [8-8910.25] FWC member — s 607(3)(c), (i), (ii) See s 12. [8-8910.30] General Manager — s 607(1) See s 12. [8-8910.35] Quash — s 607(3)(a) One remedy which may be granted in such a proceeding is the

quashing of the decision under appeal. The alternatives to quashing, also specified in s 607, are to confirm or vary the decision or to make a further decision in relation to the matter that is the subject of the appeal. Ancillary remitter orders may also be made: s 607(3)(c) of the Fair Work Act. None of these suggest that the remedy of quashing under s 607 is to have any effect other than to set at nought, on and from the date it was made, the decision under appeal: Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (2015) 230 FCR 565; 317 ALR 636; [2015] FCAFC 11; BC201500514 at [142]. [8-8910.40] Review — s 607(1), (a), (b), (3), (b), (c) See s 605. [8-8910.45] Take into account — s 607(2)(b) See [7-4340.45]. [8-8910.50] Outline of section Section 607 deals with the conduct of an appeal. Subsection (1) provides for circumstances in which an appeal may be heard without a hearing. Subsection (2) gives the FWC the power to admit further evidence and take into account any other information or evidence. Subsection (3) gives the FWC a range of powers in connection with the disposition of an appeal, including the power to confirm, quash, or vary the decision: Australian Postal [page 930] Corporation v D’Rozario (2014) 222 FCR 303; 311 ALR 257; [2014] FCAFC 89; BC201405688 at [6]. The Explanatory Memorandum to the Fair Work Bill 2009 states at paragraph 2342 that FWA would have the discretion to deal with matters as it considers appropriate, including deciding whether to hold a hearing or decide a matter on the papers. Clause 607 establishes a presumption that appeals will be determined by a hearing. *Editor’s note: Commentary on 607 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

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[8-8930] Court

Referring questions of law to the Federal

608 (1) The President may refer a question of law arising in a matter before the FWC for the opinion of the Federal Court. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 713, opn 1 Jan 2013]

(2) A question of law referred under subsection (1) must be determined by the Full Court of the Federal Court. (3) The FWC may make a decision in relation to the matter even if the Federal Court is determining the question of law, except if the question is whether the FWC may exercise powers in relation to the matter. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 714, 715, opn 1 Jan 2013]

(4) Once the Federal Court has determined the question, the FWC may

only make a decision in relation to the matter that is not inconsistent with the opinion of the Federal Court (if the FWC has not already done so). [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 716, opn 1 Jan 2013]

(5) However, if the FWC has made a decision in relation to the matter that is inconsistent with the opinion of the Federal Court, the FWC must vary the decision in such a way as to make it consistent with the opinion of the Federal Court. [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 716, opn 1 Jan 2013] COMMENTARY TO SECTION 608*

Derivation …. Arising — s 608(1) …. FWC — s 608(1), (2), (3), (4) …. Federal Court — s 608(1), (2), (3), (4) …. Question of law — s 608(1), (2), (3) …. Outline of section ….

[8-8930.1] [8-8930.5] [8-8930.10] [8-8930.15] [8-8930.20] [8-8930.25]

[8-8930.1] Derivation Section 122 Workplace Relations Act 1996 (Cth). [8-8930.5] Arising — s 608(1) In Grabovsky [2015] FWC 5161 at [53], Ross P approved the proposition that a question does not ‘arise’, within the meaning of what is now s 608(1), ‘unless it pertains to an issue that actually exists’. [8-8930.10] FWC — s 608(1), (2), (3), (4) See s 12 and s 575. [8-8930.15] Federal Court — s 608(1), (2), (3), (4) See s 12. [8-8930.20] Question of law — s 608(1), (2), (3) If there is a question of law; there must be a controversy; that is to say a dispute or contention that there is an error of law. That error must not be one of fact or one of mixed fact and law: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187; BC200807313 at [140]–[141]. As to [page 931] meaning of question as opposed to error, see Attorney-General v X (2000) 49 NSWLR 653; [2000] NSWCA 199; BC200004289 at [124] although cf Seltsam Pty Ltd v Ghaleb (2005) 3 DDCR 1; [2005] NSWCA 208; BC200506381 at [150]. As to meaning of error of law see Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126; 57 WN (NSW) 53; 14 LGR (NSW) 149 at 137–8, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; 115 ALR 1; [1993] FCA 456; BC9304888 at 287–8. See Latham, A question of fact? Employment Law Bulletin, November/December 2010. [8-8930.25] Outline of section In Grabovsky [2015] FWC 5161 at [52] and [55], Ross P held that:

Section 608 confers discretion on the President as to whether a question of law arising in a matter before the Commission should be referred for the opinion of the Federal Court. The discretion conferred by s 608(1) is to be exercised having regard to the purpose and objects of the Act. In this context I note that s 577 of the Act provides that the Commission must perform its functions and exercise its powers in a manner that: (a) is fair and just; and (b) is quick, informal and avoids unnecessary technicalities; and (c) is open and transparent; and (d) promotes harmonious and cooperative workplace relations. Delay arising from the referral may be a ground to refuse a referral: Health Services Union Tasmania No 1 Branch v Liviende Inc [2013] FWC 4435 at [13]. So too may be the hypothetical nature of the question being referred: Application by the Restaurant and Catering Association (Vic), Re (2013) 232 IR 433; [2013] FWC 6705. *Editor’s note: Commentary on 608 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

Subdivision F — Miscellaneous

[8-9070]

Procedural rules

609 (1) After consulting the other FWC Members, the President may, by legislative instrument, make procedural rules in relation to: (a) the practice and procedure to be followed by the FWC; or (b) the conduct of business in relation to matters allowed or required to be dealt with by the FWC. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 717, 718, opn 1 Jan 2013]

(2) Without limiting subsection (1), the procedural rules may provide for the following: (a) the requirements for making an application to the FWC; (b) the circumstances in which a lawyer or paid agent may make an application or submission to the FWC on behalf of a person who is entitled to make the application or submission; (c) the form and manner in which, and the time within which, submissions may or must be made to the FWC; (d) the procedural requirements for making decisions of the FWC; (e) the form and manner in which the FWC gives directions and

notifies persons of things; (ea) the requirements for making a notification to the FWC; (f) who is notified by the FWC of things; (g) the manner in which conferences are to be conducted in relation to applications [page 932] made under Part 3-1, 3-2 or Part 6-4 (which deal with general protections, unfair dismissal and unlawful termination). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 719, opn 1 Jan 2013; Act 73 of 2013 s 3 and Sch 4A item 10, opn 1 Jan 2014]

(3) To avoid doubt, subsection (1) includes the power to make procedural rules in relation to any functions conferred on the FWC by any other law of the Commonwealth. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 719, opn 1 Jan 2013]

[8-9090] matters

Regulations dealing with any FWC

610 The regulations may provide for any matter that the procedural rules may provide for. Note: Regulations made under this section prevail over procedural rules (see subsection 796(2)). [s 610 am Act 174 of 2012 s 3 and Sch 9 item 720, opn 1 Jan 2013]

[8-9110]

Costs

611 (1) A person must bear the person’s own costs in relation to a matter before the FWC. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 721, opn 1 Jan 2013]

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if: (a) the FWC is satisfied that the first person made the application, or

the first person responded to the application, vexatiously or without reasonable cause; or (b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success. Note: The FWC can also order costs under sections 376, 400A, 401 and 780. [subs (2) am Act 174 of 2012 s 3 and Sch 6 item 8; s 3 and Sch 9 items 722, 723, opn 1 Jan 2013]

(3) A person to whom an order for costs applies must not contravene a term of the order. Note: This subsection is a civil remedy provision (see Part 4-1). COMMENTARY ON SECTION 611

Derivation …. Civil remedy provision — s 611(3) Note …. Indemnity costs …. No reasonable prospects of success — s 611(2)(b) …. Satisfied — s 611(1), (2) …. Should have been reasonably apparent — 611(2)(b) …. Reasonably apparent — s 611(2)(b) …. Vexatiously — s 611(2)(a) …. Without reasonable cause — s 611(2)(a) …. Outline of section ….

[8-9110.05] [8-9110.10] [8-9110.15] [8-9110.20] [8-9110.21] [8-9110.22] [8-9110.25] [8-9110.30] [8-9110.35] [8-9110.40]

[Editor’s note: Commentary on “Vexatiously — s 611(2)(a)”, “Without reasonable cause — s 611(2) (a)” prepared by John Trew QC LLB (Syd), Barrister and updated by Ian Latham BA (Hons) LLB (ANU), Barrister. All other commentary prepared by Ian Latham BA(Hons) LLB (ANU), Barrister]. [page 933] [8-9110.05] Derivation The section is new. [8-9110.10] Civil remedy provision — s 611(3) Note See s 539. FWC — s 611(1), (2)(a), (b), Note See s 12. [8-9110.15] Indemnity costs … [I]ndemnity costs orders are rare and unusual and would only be available where exceptional circumstances are disclosed: ParkTrent Properties Group Pty Ltd t/as Parktrent Properties v Marylou George [2014] FWC 935 at [30]. In Anita Goffett v Recruitment National Pty Ltd — Full Bench — (2009) 187 IR 262; [2009]

AIRCFB 626; BC200970260, the full bench found a discretion to award costs in the case of relevant delinquency. At [52], the bench found that: [there was] no reason to limit the discretion to an award of indemnity costs in favour of a successful party only. Moreover, where there is a statutory power to award costs to an unsuccessful party … there is no limit on the discretion in that way. It seems almost axiomatic that an unreasonable act or omission that causes a party to incur costs in a proceeding should be regarded as “some relevant delinquency. [8-9110.20] No reasonable prospects of success — s 611(2)(b) This phrase was described in the context of the former s 170CF(4) as meaning manifestly untenable or groundless: Thomas Wright v Australian Custom Service — PR926115 [2002] AIRC 1595, (2002) 120 IR 346 at [23]. The AIRC held in Ashley Smith v Barwon Region Water Authority — Full Bench — [2009] AIRC 769; [2009] AIRCFB 769 at [23]–[24] the phrase “reasonable prospects of success” conveys something less than likelihood of success. Sheppard J in Ahern v Deputy Commissioner of Taxation, in the observation “… will be likely to succeed or at least have reasonable prospects of success” indicates a less stringent test for determining whether a matter has prospects of success. This formulation would suggest there is a question of probability on the one hand and possibility on the other. In Westend Pallets Pty Ltd v Lally a Full Bench of the Commission equated “reasonable prospects of success” with “arguable case” observing that: “The requirement for an arguable case of either legal error or that the discretion has been miscarried will mean that applicants must demonstrate that their case has a reasonable prospect of success.” It has since been held that legislative change has changed the meaning of this phrase: The FW Act sees a distinction between a frivolous and vexatious application and an application that has no reasonable prospect of success. Otherwise there would be no purpose in providing the separate and distinct grounds for dismissing an application in s 587(1) of the FW Act: Applicant v Respondent [2010] FWA 1765; BC201070819 at [9]. At [15], DP McCarthy applied the principles as to s 31A(1) of the Federal Court Act 1976 that: (a) The moving party does not have to demonstrate that the defence is hopeless or unarguable; (b) The court must consider the pleadings and the evidence with a “critical eye” in order to see whether the Respondent party has evidence of sufficient quality and weight to be able to succeed at trial; (c) The Respondent party is not obliged to present its whole case in order to defeat the summary judgment but must at least present a sufficient outline of the evidence in order to enable the court to come to a preliminary view about the merits for the purpose of considering the statutory test in s 31A(1)(b); and (d) The test may require greater scrutiny of the pleadings and evidence in some cases than in others … the words of s 31A(1) compel a flexible approach. The real question in every case is not so much whether there is any issue that could arguably go to trial but rather whether there is any issue that should be permitted to go to trial. [page 934] A more amorphous test was used in Kennedy v Australian Taxation Office [2011] FWA 7469; BC201171253 at [27] where DP Sams held that:

The principles to be applied by the Tribunal when determining whether a particular application has no reasonable prospects of success were recently considered by the High Court in Spencer v The Commonwealth of Australia [2010] HCA 28. The expression “no reasonable prospects of success” was discussed in the context of s 31A of the Federal Court of Australia Act 1976 and I think the principles are apposite to considerations of FWA under s 587(1)(c) of the Act. At paras 58–60, the plurality of the High Court, namely, Hayne, Crennan, Keifel and Bell JJ said: 58 How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt. 59 In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim. 60 Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes. Such a conclusion should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance to be not reasonably arguable: Qantas Airways Limited v Carter [2013] FWCFB 1811 (27 March 2013) at [19]. In Baker v Salva Resources Pty Ltd (2011) 211 IR 374; [2011] FWAFB 4014, the Full Bench cautioned that: a conclusion that an application “had no reasonable prospect of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable. [page 935]

Should have been reasonably apparent — 611(2)(b) In Baker v Salva Resources Pty Ltd (2011) 211 IR 374; [2011] FWAFB 4014 at [10], the Full Bench held that: the term “should have been reasonably apparent” must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test. [8-9110.21] Satisfied — s 611(1), (2) See [8-1650.45] [8-9110.22] Should have been reasonably apparent — 611(2)(b) In Baker v Salva Resources Pty Ltd (2011) 211 IR 374; [2011] FWAFB 4014 at [10], the Full Bench held that: the term “should have been reasonably apparent” must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test. [8-9110.25] Reasonably apparent — s 611(2)(b) In Qantas Airways Limited v Carter [2013] FWCFB 1811 at [19] the full bench held that: “Should have been reasonably apparent” must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis rather than a subjective test. [8-9110.30] Vexatiously — s 611(2)(a) In Geneff v Peterson (1986) 19 IR 40 at 89, Gray J held that the use of a word such as vexatious must have been with the intention that the court should take a view similar to that taken by courts considering whether to strike out proceedings on the ground that they are frivolous, vexatious, or an abuse of process of the court concerned. For this reason, it must be doubted whether the phrase “without reasonable cause” has a meaning significantly different from the word “vexatiously”, although cf Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 at 264 per Wilcox J. In Imogen Pty Ltd v Sangwin (1996) 70 IR 254 at 257, the court held that if there was a difference in meaning between the terms “vexatious” and “without reasonable cause”, “without reasonable cause” was the lower standard. A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage”: Nilsen v Loyal Orange Trust (IRC of A, North J, 11 September 1997, unreported). That proposition was endorsed by the Full Bench in Holland v Nude Pty Ltd t/as Nude Delicafe (2012) 224 IR 16; [2012] FWAFB 6508; BC201275588 at [7]. The Full Bench also rejected a submission that the term involved an element of malice at [10]. In E. Church v Eastern Health t/as Eastern Health Great Health and Wellbeing [2014] FWCFB 810 at [41]: … [T]he question of whether an application was made vexatiously turns on the motive of the applicant in making the application. Motive can be inferred from, among other things, the surrounding circumstances, the applicants conduct and the merits of the application itself. [8-9110.35] Without reasonable cause — s 611(2)(a) The court must consider whether at the time the proceeding was commenced, the applicant had reasonable cause to commence it: see Imogen Pty Ltd v Sangwin (1996) 70 IR 254 at 261. The fact that an application fails does not mean that it was commenced without reasonable cause: see R v Moore; Ex parte Federated Miscellaneous Workers Union of Aust (1978) 140 CLR 470 at 473; 53 ALJR 116; BC7800084. Even if an application for an order nisi for constitutional writs is so weak that it should not be remitted to the Federal Court, an order for costs was refused in circumstances where the applicant had sworn that he obtained legal advice that he had an arguable case and that evidence was not challenged by the Commonwealth: Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at 499; 75 ALJR 470; [2000] HCA 67;

BC200008397 at [27]. [page 936] Although it is often said that orders for costs are only made in exceptional cases, that test is not applicable where the question is whether a proceeding has been commenced without reasonable cause. That is a question which is relevantly established as a matter of objective fact: see Spotless Services Australia Ltd v Marsh [2004] FCAFC 155; BC200403407 at [13]. In that case a Full Court of the Federal Court held that an application for an order nisi was devoid of merit. On its face it was clear that it would have to be refused for reasons referred to in an earlier part of the proceeding: see Spotless Services Australia Ltd v Marsh [2004] FCAFC 136; BC200402854. Its success did not depend upon the determination of disputed facts or the resolution in favour of the applicant of any arguable point of law: In those circumstances an order for costs was made against the applicants. One way of testing whether a proceeding is instituted “without reasonable cause” is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being “without reasonable cause”. But where it appears that, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause: see Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264–5. The phrase “substantial prospects of success” may be subject to some ambiguity. The word “substantial” accommodates a wide range of meanings. At one extreme, there is “not trifling”. At the other, it can mean “nearly complete,” as where someone says that he is in substantial agreement with what has just been said: R v Monopolies & Mergers Commission [1993] 1 All ER 289; [1993] 1 WLR 23 at 29A. In Nimmo, Re Application for an Inquiry relating to an Election for an Office in the Australian Education Union (NT Branch) (No 2) [2011] FCA 728; BC201104777 at [30], the Court adopted a test similar to that used for a strike out application: Finally, the test to be applied in relation to the expression “without reasonable cause” is similar to that adopted in an application for summary judgment, viz “so obviously untenable that it cannot possibly succeed”, “manifestly groundless” or “discloses a case which the Court is satisfied cannot succeed”: see Heidt at 272–273; Geneff v Peterson (1986) 19 IR 40 at 87–88; Hatchett at 327 and Crozier at [12]. I might add that these statements express the test for a summary judgment before the introduction of s 31A of the Federal Court of Australia Act 1976 (Cth). However, I consider they are apt under s 329 of the Act because s 31A of the Federal Court of Australia Act 1976 (Cth) uses the expression “no reasonable prospects of success”, rather than “no reasonable cause” and, more importantly, s 31A also contains an express statutory exclusion (not present in s 329) of the need to show the proceedings are hopeless or bound to fail: see s 31A(3). In Imogen Pty Ltd v Sangwin (1996) 70 IR 254 a Full Court of the Industrial Relations Court of Australia ordered costs against an appellant which discontinued the proceeding on the day before the hearing of the appeal in circumstances where the chances of success were slight and the respondent had incurred costs in preparing to resist the appeal. Compare Federated Liquor and Allied Industry Employees’ Union of Australia v Elton (1985) 9 FCR 512; 13 IR 268 where it was held that withdrawing an application will not necessarily result in a finding that the proceeding was commenced vexatiously or without reasonable cause. However, that conclusion will be reached more readily if no explanation is given for the discontinuance: see Howard v Cummins (1988) 27 IR 109.

Costs were ordered in a proceeding commenced outside the limitation period prescribed by statute: Naqvi v MBP (SA) Pty Ltd (1981) 36 ALR 379 at 382–4. Costs were ordered in a proceeding for penalty whether there was no statutory basis for the claim: Lang v ACN 078 899 591 Pty Ltd t/as Kohinoor Indian Centre [2009] FCA 987; BC200908142 at [23]–[25]. [page 937] Should the court find that the proceedings were implemented without reasonable cause, there is still discretion to withhold an order for costs: Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 265 although compare Lang v ACN 078 899 591 Pty Ltd t/as Kohinoor Indian Centre [2009] FCA 987; BC200908142 at [25]. The fact that aspects of a case are decisively rejected at first instance, perhaps having regard to findings of credit in clear terms, does not mean that it was unreasonable to pursue a challenge about those matters on appeal. The conduct of the appeal must be assessed in its own right: Construction, Forestry, Mining And Energy Union (CFMEU) v Gittany [2014] FCA 405; BC201403023 at [26]. [8-9110.40] Outline of section The section reflects a return to the general rule that costs are not payable in relation to industrial proceedings. The provisions of the former s 658 allowing for costs orders to be made where one party had acted unreasonably have been deleted.

____________________

DIVISION 4 — ORGANISATION OF THE FWC [Div 4 heading am Act 174 of 2012 s 3 and Sch 9 item 724, opn 1 Jan 2013]

Subdivision A — Functions etc to be performed by a single FWC member, a Full Bench or an Expert Panel [Subdiv A heading am Act 174 of 2012 s 3 and Sch 9 item 725, opn 1 Jan 2013; s 3 and Sch 2 item 27, opn 1 July 2013]

[8-9300] FWC’s functions etc may generally be performed by single FWC Member 612 (1) A function or power of the FWC may be performed or exercised by a single FWC Member (other than an Expert Panel Member), as directed by the President, except as provided by this Subdivision. Note: The President gives directions under section 582. [subs (1) subst Act 174 of 2012 s 3 and Sch 9 items 727, 728, opn 1 Jan 2013; am Act 174 of 2012 s 3 and Sch 2 item 28, opn 1 July 2013]

(2) Action taken under subsection 508(1) (which deals with misuse of rights under Part 3-4) must be taken by a Vice President or a Deputy

President, except as provided by section 615. [subs (2) am Act 174 of 2012 s 3 and Sch 8 item 22, opn 1 Jan 2013]

(3) This section does not limit the power of the President to delegate a function or power of the FWC under section 625. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 729, opn 1 Jan 2013] [s 612 am Act 174 of 2012 s 3 and Sch 9 item 726, opn 1 Jan 2013]

[8-9320]

Appeal of decisions

613 (1) A Full Bench must (except as provided by subsection (2)): (a) decide under section 604 whether to grant permission to appeal a decision; and (b) if the Full Bench decides to grant the permission — hear the appeal in accordance with section 607. Note: For the constitution of a Full Bench, see section 618.

[page 938] (2) The President, a Vice President or a Deputy President directed by the President, may: (a) decide under section 604 whether to grant permission to appeal: (i) a decision of a delegate under subsection 625(2); or (ii) a decision of the General Manager (including a delegate of the General Manager) under the Registered Organisations Act; and (b) if the President, the Vice President or the Deputy President (as the case may be) grants the permission — hear the appeal in accordance with section 607. Note: The President gives directions under section 582. [subs (2) am Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010; Act 175 of 2012 s 3 and Sch 1 item 59, opn 5 Dec 2012; Act 174 of 2012 s 3 and Sch 8 items 24, 25, opn 1 Jan 2013] [s 613 am Act 174 of 2012 s 3 and Sch 8 item 23, opn 1 Jan 2013]

[8-9340]

Review of decisions by a Full Bench

614 A Full Bench must: (a) decide under section 605 whether to conduct a review of a decision; and (b) if the Full Bench decides to conduct the review — conduct the review in accordance with section 607. Note: For the constitution of a Full Bench, see section 618.

[8-9360] The President may direct a Full Bench to perform function etc 615 (1) A function or power of the FWC may be performed or exercised by a Full Bench if the President so directs. Note: The President gives directions under section 582. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 730, opn 1 Jan 2013]

(2) The President may direct that the function or power be exercised by a Full Bench generally, or in relation to a particular matter or class of matters. (3) To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench. Note: For the constitution of a Full Bench, see section 618. [s 615 am Act 174 of 2012 s 3 and Sch 8 item 6, opn 1 Jan 2013]

[8-9365] When the President must direct a Full Bench to perform function etc 615A (1) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if: (a) an application is made under subsection (2); and (b) the President is satisfied that it is in the public interest to do so. Note: The President gives directions under section 582.

(2) The following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter: (a) a person who has made, or will make, submissions for consideration in the matter;

[page 939] (b) the Minister. [s 615A insrt Act 174 of 2012 s 3 and Sch 8 item 7, opn 1 Jan 2013] COMMENTARY TO SECTION 615A*

Derivation …. Full Bench — s 615A(1), (2) …. FWC — s 615(2) …. President — s 615A(1), (b), Note …. Public interest — s 615A(1)(b) …. Outline of section ….

[8-9365.01] [8-9365.05] [8-9365.10] [8-9365.15] [8-9365.20] [8-9365.25]

[8-9365.01] Derivation The section is loosely derived from s 112 of the Workplace Relations Act. [8-9365.05] Full Bench — s 615A(1), (2) See s 12. [8-9365.10] FWC — s 615(2) See s 12. [8-9365.15] President — s 615A(1), (b), Note See s 12. [8-9365.20] Public interest — s 615A(1)(b) See [7-4940.15]. [8-9365.25] Outline of section The Explanatory Memorandum to the Fair Work Amendment Bill 2012 states at paragraph that Item 7 inserts new ss 615A, 615B and 615C into the FW Act to clarify the mechanisms available for referring matters to a Full Bench or the President by including provisions similar to those included in ss 112 and 113 of the Workplace Relations Act 1996 (WR Act) prior to the commencement of the FW Act. Sections 577 and 578 of the FW Act are relevant to the exercise of the President’s powers under s 615A. The efficient allocation of the Commission’s resources is also a relevant consideration: Application for approval of the Collinsville Coal Operations Enterprise Agreement 2014 [2014] FWC 3129 at [6] and [11]. *Editor’s note: Commentary to s 615A by by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[8-9370] Member

Transfer to a Full Bench from an FWC

615B (1) This section applies if: (a) the President gives a direction referred to in section 615 or 615A

that a function be performed or a power be exercised by a Full Bench; and (b) before the President gave the direction, the President had given a direction (the earlier direction) to an FWC Member to perform the function or exercise the power. [subs (1) am Act 31 of 2014 s 3 and Sch 1 item 29, opn 24 June 2014]

(2) The President is taken to have revoked the earlier direction. (3) The Full Bench must, when performing the function or exercising the power, take into account: (a) everything that occurred before the FWC; and (b) everything that the FWC did; in relation to the matter before the Full Bench began to perform the function or exercise the power. [s 615B insrt Act 174 of 2012 s 3 and Sch 8 item 7, opn 1 Jan 2013; am Act 31 of 2014 s 3 and Sch 1 item 28, opn 24 June 2014]

[page 940]

[8-9375] Transfer to the President from an FWC Member or a Full Bench 615C (1) This section applies if: (a) the President decides to perform a function or exercise a power; and (b) before the President made that decision, the President had given a direction (the earlier direction) that the function be performed or the power be exercised by a Full Bench or an FWC Member. [subs (1) am Act 31 of 2014 s 3 and Sch 1 item 31, opn 24 June 2014]

(2) The President is taken to have revoked the earlier direction. (3) The President must, when performing the function or exercising the power, take into account: (a) everything that occurred before the FWC; and

(b) everything that the FWC did; in relation to the matter before the President began to perform the function or exercise the power. [s 615C insrt Act 174 of 2012 s 3 and Sch 8 item 7, opn 1 Jan 2013; am Act 31 of 2014 s 3 and Sch 1 item 30, opn 24 June 2014]

[8-9380] FWC’s functions etc that must be performed by a Full Bench 616 Modern awards (1) A modern award must be made under Part 2-3 by a Full Bench. (2) A 4 yearly review of modern awards must be conducted under Division 4 of Part 2-3 by a Full Bench. [subs (2) am Act 174 of 2012 s 3 and Sch 2 item 29, opn 1 July 2013]

(2A) A 4 yearly review of default fund terms of modern awards must be conducted under Division 4A of Part 2-3 by a Full Bench. [subs (2A) insrt Act 174 of 2012 s 3 and Sch 2 item 30, opn 1 July 2013]

(3) A determination that varies or revokes a modern award made in a 4 yearly review of modern awards conducted under Division 4 of Part 2-3 must be made by a Full Bench. Note: A determination that varies or revokes a modern award may be made by a single FWC Member under Division 5 of Part 2-3. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 732, opn 1 Jan 2013; s 3 and Sch 2 items 31–32, opn 1 July 2013]

(3A) A determination that varies a default fund term of a modern award made in a 4 yearly review conducted under Division 4A of Part 2-3 must be made by a Full Bench. Note: A determination that varies a default fund term of a modern award may be made by a single FWC Member under Division 5 of Part 2-3. [subs (3A) insrt Act 174 of 2012 s 3 and Sch 2 item 33, opn 1 July 2013]

Workplace determinations (4) A workplace determination must be made under Part 2-5 by a Full Bench. [page 941]

Full Benches (5) To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench. Note: For the constitution of a Full Bench, see section 618. [s 616 am Act 174 of 2012 s 3 and Sch 9 item 731, opn 1 Jan 2013]

[8-9400] FWC’s functions etc that must be performed by an Expert Panel 617 (1) Expert Panel for annual wage reviews An annual wage review must be conducted under Part 2-6 by an Expert Panel constituted for the purposes of the review. Note: For the constitution of an Expert Panel for the purposes of an annual wage review, see section 620. [subs (1) am Act 174 of 2012 s 3 and Sch 2 items 35–37, opn 1 July 2013]

(2) A national minimum wage order, or a determination, made in an annual wage review must be made by an Expert Panel constituted for the purposes of the review. [subs (2) am Act 174 of 2012 s 3 and Sch 2 item 38, opn 1 July 2013]

(3) A determination that varies a national minimum wage order must be made under Part 2-6 by an Expert Panel constituted for the purposes of the review. [subs (3) am Act 174 of 2012 s 3 and Sch 2 item 38, opn 1 July 2013]

(4) Expert Panel for 4 yearly review of default fund terms In a 4 yearly review of default fund terms of modern awards, the following must be made by an Expert Panel constituted for the purposes of the review: (a) the Default Superannuation List; (b) a determination under section 156E on an application to have a standard MySuper product included on the Default Superannuation List; (c) the Schedule of Approved Employer MySuper Products; (d) a determination under section 156P on an application made in the standard application period to have an employer MySuper product included on the Schedule of Approved Employer MySuper Products.

Note: For the constitution of an Expert Panel for those purposes, see section 620(1A). [subs (4) insrt Act 174 of 2012 s 3 and Sch 2 item 39, opn 1 July 2013]

(5) Expert Panel for amending the Schedule of Approved Employer MySuper Products If an application is made in the interim application period to have an employer MySuper product included on the Schedule of Approved Employer MySuper Products, the following must be made by an Expert Panel constituted for the purposes of determining the application: (a) a determination under section 156P on the application; (b) if the determination is to include the product on the schedule — an amendment of the schedule to specify the product. Note: For the constitution of an Expert Panel for those purposes, see subsection 620(1A). [subs (5) insrt Act 174 of 2012 s 3 and Sch 2 item 39, opn 1 July 2013] [s 617 am Act 174 of 2012 s 3 and Sch 9 item 733, opn 1 Jan 2013; s 3 and Sch 2 item 34, opn 1 July 2013]

[page 942]

Subdivision B — Constitution of the FWC by a single FWC Member, a Full Bench or an Expert Panel [Subdiv B heading subst Act 174 of 2012 s 3 and Sch 9 item 734, opn 1 Jan 2013; am Act 174 of 2012 s 3 and Sch 2 item 40, opn 1 July 2013]

[8-9540] Constitution and decision-making of a Full Bench 618 Constitution of a Full Bench (1) A Full Bench constituted under this section consists of at least 3 FWC Members, including at least one FWC Member who is the President, a Vice President or a Deputy President. Note: An Expert Panel Member might form part of a Full Bench. [subs (1) am Act 174 of 2012 s 3 and Sch 8 item 26; s 3 and Sch 9 item 735, opn 1 Jan 2013; s 3 and Sch 2 item 41, opn 1 July 2013]

(2) The President may determine which FWC Members form part of a Full Bench. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 735, opn 1 Jan 2013]

Making decisions (3) A decision of a majority of the FWC Members on the Full Bench prevails. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 735, opn 1 Jan 2013]

(4) However, if there is no majority, the decision of the FWC Member who has seniority under section 619 prevails. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 735, opn 1 Jan 2013]

[8-9560]

Seniority of FWC Members

619 (1) While the FWC is constituted by a Full Bench, the FWC Members on the Full Bench have seniority according to the following order: (a) the President; (aa) the Vice Presidents, according to the days on which their appointments as Vice Presidents took effect; (ab) if 2 appointments as Vice Presidents took effect on the same day — the Vice Presidents, according to the precedence assigned to them in their instruments of appointment; (b) the Deputy Presidents, according to the days on which their appointments as Deputy Presidents took effect; (c) if 2 or more appointments as Deputy Presidents took effect on the same day — the Deputy Presidents, according to the precedence assigned to them in their instruments of appointment. [subs (1) am Act 174 of 2012 s 3 and Sch 8 item 27; s 3 and Sch 9 items 737, 738, opn 1 Jan 2013]

(2) The FWC Member on a Full Bench who has seniority under this section is responsible for managing the Full Bench in performing functions and exercising powers of the FWC. Note: The FWC Member who has seniority also has a deciding vote if there is no majority (see subsection 618(4)). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 739–741, opn 1 Jan 2013] [s 619 am Act 174 of 2012 s 3 and Sch 9 item 736, opn 1 Jan 2013]

[page 943]

[8-9580] Constitution and decision-making of an Expert Panel 620 (1) Constitution of an Expert Panel for annual wage reviews An Expert Panel constituted under this section for the purpose of an annual wage review conducted under Part 2-6 consists of 7 FWC Members (except as provided by section 622), and must include: (a) the President; and (b) 3 Expert Panel Members who have knowledge of, or experience in, one or more of the following fields: (i) workplace relations; (ii) economics; (iii) social policy; (iv) business, industry or commerce. [subs (1) subst Act 174 of 2012 s 3 and Sch 2 item 43, opn 1 July 2013]

(1A) Constitution of an Expert Panel for 4 yearly reviews of default fund terms etc An Expert Panel constituted under this section for a purpose referred to in subsection 617(4) or (5) consists of 7 FWC Members (except as provided by section 622), and must include: (a) the President, or a Vice President or Deputy President appointed by the President to be the Chair of the Panel; and (b) 3 Expert Panel Members who have knowledge of, or experience in, one or more of the following fields: (i) finance; (ii) investment management; (iii) superannuation. [subs (1A) insrt Act 174 of 2012 s 3 and Sch 2 item 43, opn 1 July 2013]

(2) The President may determine which FWC Members form part of an Expert Panel. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 742, opn 1 Jan 2013; s 3 and Sch 2 item 44, opn 1 July 2013]

(3) The following person is responsible for managing an Expert Panel in performing the functions and exercising the powers referred to in section 617:

(a) if paragraph (b) does not apply — the President; (b) if the President has appointed a person to be the Chair of the Expert Panel under paragraph 620(1A)(a) — the Chair. [subs (3) subst Act 174 of 2012 s 3 and Sch 2 item 45, opn 1 July 2013]

Making decisions (4) A decision of the majority of the FWC Members of an Expert Panel prevails. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 742, opn 1 Jan 2013; s 3 and Sch 2 item 46, opn 1 July 2013]

(5) However, if there is no majority, the decision of: (a) if paragraph (b) does not apply — the President; or (b) if the President has appointed a person to be the Chair of the Expert Panel under paragraph 620(1A)(a) — the Chair; prevails. [subs (5) subst Act 174 of 2012 s 3 and Sch 2 item 47, opn 1 July 2013] [s 620 am Act 174 of 2012 s 3 and Sch 2 item 42, opn 1 July 2013]

[page 944]

[8-9600] Reconstitution of the FWC when single FWC Member becomes unavailable 621 (1) This section applies if: (a) an FWC Member is dealing with a matter (other than by forming part of a Full Bench or an Expert Panel in relation to a matter); and (b) the FWC Member becomes unavailable to continue dealing with the matter before the matter is completely dealt with. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 744, opn 1 Jan 2013; s 3 and Sch 2 item 48, opn 1 July 2013]

(2) The President must direct another FWC Member to constitute the FWC for the purposes of dealing with the matter. Note: The new FWC Member must take into account everything that happened before the FWC Member began to deal with the matter (see section 623).

[subs (2) am Act 174 of 2012 s 3 and Sch 9 item 745–747, opn 1 Jan 2013] [s 621 am Act 174 of 2012 s 3 and Sch 9 item 743, opn 1 Jan 2013]

[8-9620] Reconstitution of the FWC when FWC Member of a Full Bench or an Expert Panel becomes unavailable 622 (1) This section applies if: (a) an FWC Member (the unavailable member) forms part of a Full Bench or an Expert Panel in relation to a matter; and (b) the FWC Member becomes unavailable to continue dealing with the matter before the matter is completely dealt with. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 749, opn 1 Jan 2013; s 3 and Sch 2 item 50, opn 1 July 2013]

(2) The Full Bench or the Expert Panel may continue to deal with the matter without the unavailable member if the Full Bench or the Expert Panel consists of the following: (a) for the Expert Panel — the President and at least 2 Expert Panel Members; (b) for a Full Bench — at least 3 FWC Members, including at least one FWC Member who is the President, a Vice President or a Deputy President. [subs (2) am Act 55 of 2009 s 3 and Sch 18, opn 1 July 2009; Act 174 of 2012 s 3 and Sch 8 item 28; s 3 and Sch 9 item 749, opn 1 Jan 2013; s 3 and Sch 2 items 51–52, opn 1 July 2013]

(3) Otherwise, the President must direct another FWC Member to form part of the Full Bench or the Expert Panel. After the President does so, the Full Bench or the Expert Panel may continue to deal with the matter without the unavailable member. Note: The new FWC Member must take into account everything that happened before the FWC Member began to deal with the matter (see section 623). [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 749, opn 1 Jan 2013; s 3 and Sch 2 item 53, opn 1 July 2013; Act 31 of 2014 s 3 and Sch 1 item 32, opn 24 June 2014] [s 622 am Act 174 of 2012 s 3 and Sch 9 item 748, opn 1 Jan 2013; s 3 and Sch 2 item 49, opn 1 July 2013]

[8-9640]

When new FWC Members begin to deal

with matters 623 If an FWC Member begins to deal with a matter under section 621 or 622, the FWC Member must take into account everything that occurred before the FWC, and everything that the FWC did, in relation to the matter before the FWC Member began to deal with the matter. [s 623 am Act 174 of 2012 s 3 and Sch 9 items 750–753, opn 1 Jan 2013]

[page 945]

[8-9660] FWC’s decisions not invalid when improperly constituted 624 A decision of the FWC is not invalid merely because it was made by a Full Bench, or the Expert Panel, constituted otherwise than as provided by this Division. Note: If the FWC makes a decision to make an instrument while constituted otherwise than as provided by this Division, the instrument is not invalid (see subsection 598(2)). [s 624 am Act 174 of 2012 s 3 and Sch 9 items 754, 755, opn 1 Jan 2013; s 3 and Sch 2 item 54, opn 1 July 2013]

Subdivision C — Delegation of the FWC’s functions and powers [Subdiv C heading am Act 174 of 2012 s 3 and Sch 9 item 756, opn 1 Jan 2013]

[8-9800] Delegation by the President of functions and powers of the FWC 625 (1) The President may, in writing, delegate all or any of the following powers of the FWC to the General Manager or a member of the staff of the FWC: (a) correcting or amending applications and documents, or waiving irregularities, under section 586; (b) informing itself as it considers appropriate under section 590 (other than the FWC’s power to hold a hearing); (c) conducting a conference in accordance with section 592;

(d) correcting or amending obvious errors, defects or irregularities under section 602. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 758, 759, opn 1 Jan 2013]

(2) The President may, in writing, delegate all or any of the following functions or powers of the FWC to a person referred to in subsection (3): (a) publishing varied modern awards under section 168; (b) publishing submissions under section 289; (c) publishing research under section 291; (d) publishing varied wage rates under section 292; (da) publishing the results of a protected action ballot under section 457; (f) imposing conditions on entry permits, revoking or suspending entry permits, or banning the issue of any further entry permits, under section 507 or 510; (g) the functions and powers of the FWC under Division 6 of Part 3-4 (which deals with entry permits, entry notices and certificates); (h) publishing enterprise agreements under paragraph 601(4)(b); (i) any function or power prescribed by the regulations. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 760, opn 1 Jan 2013]

(3) The people to whom a delegation may be given under subsection (2) are any of the following: (a) the General Manager; (b) a member of the staff of the FWC who is an SES employee or acting SES employee; (c) a member of the staff of the FWC who is in a class of employees prescribed by the regulations. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 760, opn 1 Jan 2013]

[page 946] (4) In performing functions or exercising powers under a delegation under subsection (1) or (2), the delegate must comply with any directions of the President.

Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901. [s 625 am Act 174 of 2012 s 3 and Sch 9 item 757, opn 1 Jan 2013]

DIVISION 5 — FWC MEMBERS [Div 5 heading am Act 174 of 2012 s 3 and Sch 9 item 761, opn 1 Jan 2013]

Subdivision A — Appointment of FWC members [Subdiv A heading am Act 174 of 2012 s 3 and Sch 9 item 762, opn 1 Jan 2013]

[8-9990]

Appointment of FWC Members

626 (1) An FWC Member is to be appointed by the Governor-General by written instrument. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 764, opn 1 Jan 2013]

(2) The instrument of appointment must specify whether the FWC Member is the President, a Vice President, a Deputy President, a Commissioner or an Expert Panel Member. [subs (2) am Act 174 of 2012 s 3 and Sch 8 item 29; s 3 and Sch 9 item 764, opn 1 Jan 2013; s 3 and Sch 2 item 55, opn 1 July 2013]

(3) The instrument of appointment must assign a precedence to the FWC Member if: (a) the FWC Member and one other FWC Member are appointed as Vice Presidents on the same day; or (b) the FWC Member and one or more other FWC Members are appointed as Deputy Presidents on the same day. Note: Precedence is relevant to the seniority of Vice Presidents and Deputy Presidents (see paragraphs 619(1)(ab) and (c)). [subs (3) am Act 174 of 2012 s 3 and Sch 8 item 30, opn 1 Jan 2013]

(4) The same person must not hold, at the same time, an appointment as both: (a) an Expert Panel Member; and (b) the President, a Vice President, a Deputy President or a Commissioner. [subs (4) am Act 174 of 2012 s 3 and Sch 8 item 31, opn 1 Jan 2013; s 3 and Sch 2 item 56, opn 1 July 2013] [s 626 am Act 174 of 2012 s 3 and Sch 9 item 763, opn 1 Jan 2013]

[9-100] Qualifications for appointment of FWC Members 627 President and Vice Presidents (1) Before the Governor-General appoints a person as the President, or a Vice President, the Minister must be satisfied that the person: (a) is or has been a Judge of a court created by the Parliament; or (b) is qualified for appointment because the person has knowledge of, or experience in, one or more of the following fields: (i) workplace relations; (ii) law; (iii) business, industry or commerce. [subs (1) am Act 174 of 2012 s 3 and Sch 8 item 32, 33, opn 1 Jan 2013]

[page 947] (1A) Paragraph (1)(a) does not apply to a person who is a Judge of the Federal Circuit Court. [subs (1A) insrt Act 13 of 2013 s 3 and Sch 1 item 244, opn 12 Apr 2013]

Deputy Presidents (2) Before the Governor-General appoints a person as a Deputy President, the Minister must be satisfied that the person: (a) either: (i) is or has been a Judge of a court created by the Parliament; or (ii) has been a Judge of a court of a State or Territory; or (b) has a high level of experience in the field of workplace relations, including a high level of experience that has been acquired: (i) through legal practice; or (ii) in the service of a peak council or another association representing the interests of employers or employees; or (iii) in the service of government or an authority of government; or

(iv) in academia. (2A) Subparagraph (2)(a)(i) does not apply to a person who is a Judge of the Federal Circuit Court. [subs (2A) insrt Act 13 of 2013 s 3 and Sch 1 item 245, opn 12 Apr 2013]

(3) Commissioners Before the Governor-General appoints a person as a Commissioner, the Minister must be satisfied that the person is qualified for appointment because the person has knowledge of, or experience in, one or more of the following fields: (a) workplace relations; (b) law; (c) business, industry or commerce. (4) Expert Panel Members Before the Governor-General appoints a person as an Expert Panel Member, the Minister must be satisfied that the person is qualified for appointment because the person has knowledge of, or experience in, one or more of the following fields: (a) workplace relations; (b) economics; (c) social policy; (d) business, industry or commerce; (e) finance; (f) investment management; (g) superannuation. [subs (4) subst Act 174 of 2012 s 3 and Sch 2 item 57, opn 1 July 2013] [s 627 am Act 174 of 2012 s 3 and Sch 9 item 765, opn 1 Jan 2013]

[9-120]

Basis of appointment of FWC Members

628 President, Vice Presidents, Deputy Presidents and Commissioners (1) The President, a Vice President, a Deputy President or a Commissioner holds office on a full-time basis. [subs (1) am Act 174 of 2012 s 3 and Sch 8 items 34, 35, opn 1 Jan 2013]

[page 948]

(2) A Deputy President or a Commissioner may perform his or her duties on a part-time basis, with the President’s approval. (3) Expert Panel Members An Expert Panel Member holds office on a part-time basis. [subs (3) subst Act 174 of 2012 s 3 and Sch 2 item 58, opn 1 July 2013] [s 628 am Act 174 of 2012 s 3 and Sch 9 item 766, opn 1 Jan 2013]

[9-140]

Period of appointment of FWC Members

629 President, Vice Presidents, Deputy Presidents and Commissioners (1) The President, a Vice President, a Deputy President or a Commissioner holds office until the earliest of the following: (a) he or she attains the age of 65 years; (b) he or she resigns or the appointment is terminated under this Part. [subs (1) am Act 174 of 2012 s 3 and Sch 8 items 36, 37, opn 1 Jan 2013]

Members of a prescribed State industrial authority (2) Despite subsection (1), a person who is a member of a prescribed State industrial authority may be appointed as a Deputy President or Commissioner for a period specified in the instrument of appointment. Note: A member of a prescribed State industrial authority may hold office as a Deputy President or Commissioner (see section 631).

(3) If a person is so appointed, the person holds office as Deputy President or Commissioner until the earliest of the following: (a) the specified period ends; (b) the person ceases to be a member of the prescribed State industrial authority; (c) the person resigns or the appointment is terminated under this Part. (4) Expert Panel Members An Expert Panel Member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years. Note: An Expert Panel Member is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901). [subs (4) subst Act 174 of 2012 s 3 and Sch 2 item 59, opn 1 July 2013] [s 629 am Act 174 of 2012 s 3 and Sch 9 item 767, opn 1 Jan 2013]

Subdivision B — Terms and conditions of FWC members [Subdiv B heading am Act 174 of 2012 s 3 and Sch 9 item 768, opn 1 Jan 2013]

[9-280]

Status of the President

629A The President has the same status as a Judge of the Federal Court. [s 629A insrt Act 55 of 2009 s 3 and Sch 18, opn 1 July 2009]

[9-300] Appointment of a Judge not to affect tenure etc 630 (1) The appointment of a Judge of a court created by the Parliament as an FWC Member, or service by such a Judge as an FWC Member, does not affect: (a) the Judge’s tenure of office as a Judge; or [page 949] (b) the Judge’s rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a Judge. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 769, opn 1 Jan 2013]

(2) For all purposes, the Judge’s service as the FWC Member is taken to be service as a Judge. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 769, opn 1 Jan 2013]

[9-320] Dual federal and State appointments of Deputy Presidents or Commissioners 631 (1) Nothing in this Act prevents a Deputy President or Commissioner from being appointed to, and holding at the same time, an office as a member of a prescribed State industrial authority, with the President’s approval. (2) Nothing in this Act prevents a member of a prescribed State industrial authority from being appointed to, and holding at the same time, an office as

a Deputy President or Commissioner. Note 1: A member of a prescribed State industrial authority may hold office as a Deputy President or Commissioner only if he or she is qualified for appointment (see section 627). Note 2: For the period of appointment, and remuneration and allowances, of a Deputy President or Commissioner who is a member of a prescribed State industrial authority, see sections 629 and 637.

(3) Subsections (1) and (2) have effect subject to any law of the relevant State.

[9-340] Dual federal and Territory appointments of Deputy Presidents or Commissioners 632 Nothing in this Act prevents a Deputy President or Commissioner from being appointed to, and holding at the same time, one of the following offices, with the President’s approval: (a) an office as a member of a Commonwealth or Territory tribunal prescribed by the regulations (other than a court); (b) an office under a Commonwealth or Territory law. [s 632 am Act 73 of 2013 s 3 and Sch 5 item 4, opn 1 July 2012; Act 174 of 2012 s 3 and Sch 9 item 770, opn 1 Jan 2013]

[9-360]

Outside work of FWC Members

633 Vice Presidents, Deputy Presidents and Commissioners (1) A Vice President, Deputy President or Commissioner (whether performing duties on a full-time or part-time basis) must not engage in paid work outside the duties of his or her office without the President’s approval. [subs (1) am Act 174 of 2012 s 3 and Sch 8 items 38, 39 and 68, opn 1 Jan 2013]

(2) However, the President’s approval is not required if the paid work is an office or appointment in the Defence Force. [subs (2) am Act 174 of 2012 s 3 and Sch 8 item 68, opn 1 Jan 2013]

[page 950] (3) Expert Panel Members An Expert Panel Member must not engage in any paid work that, in the President’s opinion, conflicts or may conflict with

the proper performance of his or her duties. [subs (3) subst Act 174 of 2012 s 3 and Sch 2 item 60, opn 1 July 2013] [s 633 am Act 174 of 2012 s 3 and Sch 8 item 67; s 3 and Sch 9 item 771, opn 1 Jan 2013]

[9-380]

Oath or affirmation of office

634 Before beginning to discharge the duties of his or her office, an FWC Member must take an oath or affirmation in accordance with the regulations. [s 634 am Act 174 of 2012 s 3 and Sch 9 item 772, opn 1 Jan 2013]

[9-400]

Remuneration of the President

635 Remuneration if the President is not a Judge (1) The President (other than a President who is a Judge of a court created by the Parliament) is to be paid: (a) salary at an annual rate equal to the annual rate of salary payable to the Chief Justice of the Federal Court; and (b) such travelling allowances as are determined from time to time by the Remuneration Tribunal; and (c) such other allowances as are prescribed by the regulations. Remuneration if the President is a Judge (2) A President who is a Judge of a court created by the Parliament must be paid an additional allowance, in accordance with subsection (3), if the salary payable to the person as a Judge is less than the salary that would be payable to the person as President under subsection (1). (3) The amount of the allowance is the difference between the Judge’s salary and the salary that is payable to the President under subsection (1). Additional amount (4) The President or a former President must be paid an amount in accordance with subsection 7(5E) of the Remuneration Tribunal Act 1973 if the President, or former President, would be entitled to that amount had the President or former President held the office of Chief Justice of the Federal Court instead of the office of President.

[9-420] Application of Judges’ Pensions Act to the President 636 (1) The Judges’ Pensions Act 1968 does not apply to the President if: (a) immediately before being appointed as the President, he or she was one of the following (a public sector superannuation scheme member): (i) an eligible employee for the purposes of the Superannuation Act 1976; (ii) a member of the superannuation scheme established by deed under the Superannuation Act 1990; (iii) an ordinary employer-sponsored member of PSSAP (within the meaning of the Superannuation Act 2005); and (b) he or she does not make an election under subsection (2). (2) The President may elect to cease to be a public sector superannuation scheme member. [page 951] (3) The election must be made: (a) within 3 months of the President’s appointment; and (b) by written notice to the Minister. (4) If the President makes the election: (a) he or she is taken to have ceased to be a public sector superannuation scheme member immediately before being appointed as the President; and (b) the Judges’ Pensions Act 1968 applies to him or her, and is taken to have so applied, immediately after he or she was appointed as the President.

[9-440] Remuneration of FWC Members other than the President

637 Remuneration if an FWC Member is not a Judge (1) An FWC Member (other than an FWC Member who is a Judge of a court created by the Parliament) is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the FWC Member is to be paid the remuneration that is prescribed by the regulations. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 774, 775, opn 1 Jan 2013]

(2) An FWC Member is to be paid the allowances that are prescribed by the regulations. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 775, opn 1 Jan 2013]

(3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973 and to section 638 (which deals with remuneration of parttime Deputy Presidents and Commissioners). (4) Despite subsections (1) to (3), if a person who is a member of a prescribed State industrial authority is appointed as a Deputy President or Commissioner, the person is not to be paid any remuneration or allowances in relation to the office of Deputy President or Commissioner other than any travel allowance prescribed under subsection (2). Remuneration if an FWC Member is a Judge (5) An FWC Member who is a Judge (other than the Chief Justice of the Federal Court) of a court created by the Parliament is to be paid an additional allowance, in accordance with subsection (6), if the salary payable to the person as a Judge is less than the salary that would be payable to the person as an FWC Member under subsection (1). [subs (5) am Act 174 of 2012 s 3 and Sch 9 items 776, 777, opn 1 Jan 2013]

(6) The amount of the allowance is the difference between the Judge’s salary and the salary that is payable to the FWC Member under subsection (1). [subs (6) am Act 174 of 2012 s 3 and Sch 9 item 777, opn 1 Jan 2013]

Section does not apply to the President (7) This section does not apply to the President. [s 637 am Act 174 of 2012 s 3 and Sch 9 item 773, opn 1 Jan 2013]

[9-460] Remuneration of Deputy Presidents or Commissioners performing duties on a part-time basis 638 (1) If the President approves a Deputy President or Commissioner (the part-time member) performing his or her duties on a part-time basis, the President and [page 952] the part-time member are to enter into a written agreement specifying the proportion (the agreed proportion) of full-time duties to be worked by the part-time member. (2) The agreed proportion may be varied by a written agreement between the President and the part-time member. (3) The part-time member’s annual rate of salary at a particular time is equal to the agreed proportion at that time of the annual rate of salary that would be payable to the part-time member if he or she were performing his or her duties on a full-time basis. (4) The allowances that are to be paid to the part-time member under section 637 are not affected by this section.

[9-480] Leave of absence of FWC Members other than the President 639 (1) An FWC Member has the recreation leave entitlements that are determined by the Remuneration Tribunal. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 779, opn 1 Jan 2013]

(2) The President may grant an FWC Member leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise as the President determines. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 779, opn 1 Jan 2013]

(3) In making a determination in accordance with this section, the

Remuneration Tribunal and the President must take into account: (a) any past employment of the FWC Member in the service of a State or an authority of a State; or (b) any past service of the FWC Member as a member of an authority of a State. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 779, opn 1 Jan 2013]

(4) This section does not apply to the President. [s 639 am Act 174 of 2012 s 3 and Sch 9 item 778, opn 1 Jan 2013]

[9-500] Disclosure of interests by FWC Members other than the President 640 (1) This section applies if: (a) an FWC Member (other than the President) is dealing, or will deal, with a matter; and (b) the FWC Member has or acquires any interest (the potential conflict), pecuniary or otherwise, that conflicts or could conflict with the proper performance of the FWC Member’s functions in relation to the matter. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 781, opn 1 Jan 2013]

(2) The FWC Member must disclose the potential conflict to: (a) a person who has made, or will make, a submission for consideration in the matter; and (b) a person who the FWC Member considers is likely to make a submission for consideration in the matter; and (c) the President. [subs (2) subst Act 174 of 2012 s 3 and Sch 8 item 2, opn 1 Jan 2013; am Act 31 of 2014 s 3 and Sch 1 item 33, opn 24 June 2014]

(3) [subs (3) rep Act 174 of 2012 s 3 and Sch 8 item 2, opn 1 Jan 2013] [page 953] (4) The President must give a direction to the FWC Member not to deal, or

to no longer deal, with the matter if: (a) the President becomes aware that an FWC Member has a potential conflict in relation to a matter (whether or not because of a disclosure under subsection (2)); and (b) the President considers that the FWC Member should not deal, or should no longer deal, with the matter. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 781, opn 1 Jan 2013]

(5) [subs (5) rep Act 174 of 2012 s 3 and Sch 8 item 3, opn 1 Jan 2013] [s 640 am Act 174 of 2012 s 3 and Sch 9 item 780, opn 1 Jan 2013]

[9-520] Termination of appointment on grounds of misbehaviour or incapacity 641 The Governor-General may terminate the appointment of an FWC Member if an address praying for the termination, on one of the following grounds, is presented to the Governor-General by each House of the Parliament in the same session: (a) proved misbehaviour; (b) the FWC Member is unable to perform the duties of his or her office because of physical or mental incapacity. [s 641 am Act 174 of 2012 s 3 and Sch 9 item 782, opn 1 Jan 2013]

[9-530] Minister may handle complaints about FWC Members 641A The Minister may handle a complaint about the performance by an FWC Member of his or her duties: (a) for the purpose of considering whether each House of the Parliament should consider whether to present to the GovernorGeneral an address praying for the termination of the appointment of the FWC Member; and (b) for the purpose of considering whether to advise the GovernorGeneral to suspend the FWC Member. Note 1: The appointment of an FWC Member may be terminated under section 641 if each House of the Parliament presents such an address to the Governor-General.

Note 2: The FWC Member may be suspended under section 642. Note 3: The complaint is a complaint about an FWC Member (see section 12). Note 4: For protections for persons involved in relation to handling a complaint about an FWC Member, see section 584B. [s 641A insrt Act 174 of 2012 s 3 and Sch 8 item 65, opn 1 Jan 2013]

[9-540] Suspension on grounds of misbehaviour or incapacity 642 Governor-General may suspend an FWC Member (1) The Governor-General may suspend an FWC Member (other than the President) from office: (a) for misbehaviour; or (b) if the FWC Member is unable to perform the duties of his or her office because of physical or mental incapacity. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 783, 784, opn 1 Jan 2013]

[page 954] Statement of grounds (2) The Minister must cause to be tabled in each House of Parliament, within 7 sitting days of that House after the suspension, a statement identifying the FWC Member and setting out the ground of the suspension. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 784, opn 1 Jan 2013]

Resolution by a House of Parliament (3) A House of the Parliament may, within 15 sitting days of that House after the day on which the statement has been tabled in it, declare by resolution that the appointment of the FWC Member should be terminated. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 784, opn 1 Jan 2013]

Suspension terminates (4) If a House does not pass a resolution in that way, the suspension terminates.

Appointment to be terminated (5) If each House of the Parliament passes a resolution in that way, the Governor-General must terminate the appointment of the FWC Member. [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 784, opn 1 Jan 2013]

Suspension not to affect entitlements (6) The suspension of an FWC Member under this section does not affect any entitlement of the FWC Member to be paid remuneration, and allowances, in accordance with this Act. [subs (6) am Act 174 of 2012 s 3 and Sch 9 item 784, opn 1 Jan 2013]

[9-560] Termination of appointment for bankruptcy, etc 643 The Governor-General must terminate the appointment of an FWC Member (other than the President) if: (a) the FWC Member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors, or makes an assignment of his or her remuneration for the benefit of his or her creditors; or (b) the FWC Member is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months. (c) [Repealed] [s 643 am Act 174 of 2012 s 3 and Sch 8 items 4, 5; s 3 and Sch 9 item 785, opn 1 Jan 2013]

[9-580] work

Termination of appointment for outside

644 Vice Presidents, Deputy Presidents and Commissioners (1) The Governor-General must terminate the appointment of a Vice President, Deputy President or Commissioner if the Vice President, Deputy President or Commissioner engages, except with the President’s approval, in paid work outside the duties of his or her office (see subsection 633(1)). [subs (1) am Act 174 of 2012 s 3 and Sch 8 items 40, 41 and 70, opn 1 Jan 2013]

[page 955] (2) Expert Panel Members The Governor-General must terminate the appointment of an Expert Panel Member if the Expert Panel Member engages in paid work that, in the President’s opinion, conflicts or may conflict with the proper performance of his or her duties (see subsection 633(3)). [subs (2) subst Act 174 of 2012 s 3 and Sch 2 item 61, opn 1 July 2013] [s 644 am Act 174 of 2012 s 3 and Sch 8 item 69, opn 1 Jan 2013]

[9-600]

Resignation of FWC Members

645 (1) An FWC Member may resign his or her appointment by giving the Governor-General a written resignation. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 787, opn 1 Jan 2013]

(2) The resignation takes effect on the day it is received by the GovernorGeneral or, if a later day is specified in the resignation, on that later day. [s 645 am Act 174 of 2012 s 3 and Sch 9 item 786, opn 1 Jan 2013]

[9-620] Other terms and conditions of FWC Members 646 An FWC Member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor-General. [s 646 am Act 174 of 2012 s 3 and Sch 9 items 788, 789, opn 1 Jan 2013]

[9-640] Appointment of acting President and Vice President 647 Appointment by Governor-General (1) The Governor-General may, by written instrument, appoint a Vice President to act as the President: (a) during a vacancy in the office of the President (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the President is

absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office. Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments. [subs (1) am Act 174 of 2012 s 3 and Sch 8 item 43, opn 1 Jan 2013]

(1A) The Governor-General may, by written instrument, appoint a Deputy President to act as a Vice President: (a) during a vacancy in the office of a Vice President (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when a Vice President is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office. Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments. [subs (1A) insrt Act 174 of 2012 s 3 and Sch 8 item 44, opn 1 Jan 2013]

[page 956] No invalidity (2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because: (a) the occasion for the appointment had not arisen; or (b) there was a defect or irregularity in connection with the appointment; or (c) the appointment had ceased to have effect; or (d) the occasion for the person to act had not arisen or had ceased. Not disqualified (3) A person is not disqualified from being appointed under subsection (1) or (1A) merely because the person is over 65. [subs (3) am Act 174 of 2012 s 3 and Sch 8 item 45, opn 1 Jan 2013] [s 647 am Act 174 of 2012 s 3 and Sch 8 item 42, opn 1 Jan 2013]

[9-660]

Appointment of acting Deputy Presidents

and Commissioners 648 Appointment by Governor-General (1) The Governor-General may, by written instrument, appoint a person who is qualified for appointment as a Deputy President to act as a Deputy President for a specified period (including a period that exceeds 12 months). Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.

(1A) The Governor-General may, by written instrument, appoint a person who is qualified for appointment as a Commissioner to act as a Commissioner for a specified period (including a period that exceeds 12 months). Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments. [subs (1A) insrt Act 174 of 2012 s 3 and Sch 8 item 9, opn 1 Jan 2013]

(2) Before the Governor-General appoints a person under subsection (1) or (1A), the Minister must be satisfied that the appointment is necessary to enable the FWC to perform its functions effectively. [subs (2) am Act 174 of 2012 s 3 and Sch 8 item 10; s 3 and Sch 9 item 790, opn 1 Jan 2013]

No invalidity (3) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because: (a) the occasion for the appointment had not arisen; or (b) there was a defect or irregularity in connection with the appointment; or (c) the appointment had ceased to have effect; or (d) the occasion for the person to act had not arisen or had ceased. Not disqualified (4) A person is not disqualified from being appointed under subsection (1) or (1A) merely because the person is over 65. [subs (4) am Act 174 of 2012 s 3 and Sch 8 item 11, opn 1 Jan 2013] [s 648 am Act 174 of 2012 s 3 and Sch 8 item 8, opn 1 Jan 2013]

[page 957]

DIVISION 6 — COOPERATION WITH THE STATES

[9-850] President to cooperate with prescribed State industrial authorities 649 (1) The President must perform his or her functions, and exercise his or her powers, in a manner that facilitates and encourages cooperation between the FWC and prescribed State industrial authorities. [subs (1) am Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010; Act 174 of 2012 s 3 and Sch 9 item 790, opn 1 Jan 2013]

(2) Without limiting subsection (1), the President may invite the heads of prescribed State industrial authorities, or the principal registrars of prescribed State industrial authorities, to meet with the President to exchange information and discuss matters of mutual interest in relation to workplace relations.

[9-870]

Provision of administrative support

650 The President may make a written arrangement with a prescribed State industrial authority for: (a) the FWC to provide administrative support to the authority; or (b) the authority to provide administrative support to the FWC. [s 650 am Act 174 of 2012 s 3 and Sch 9 item 791, opn 1 Jan 2013]

DIVISION 7 — SEALS AND ADDITIONAL POWERS AND FUNCTIONS OF THE PRESIDENT AND THE GENERAL MANAGER

[9-1060]

Seals

651 (1) Seal of the FWC The FWC must have a seal on which are inscribed the words “The Seal of the Fair Work Commission”. [subs (1) subst Act 174 of 2012 s 3 and Sch 9 item 792, opn 1 Jan 2013]

Duplicate seals (2) There are to be such duplicates of the seal of the FWC as the President directs. Note: The President gives directions under section 582. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 793, opn 1 Jan 2013]

(3) A document to which a duplicate seal of the FWC is affixed is taken to have the seal of the FWC affixed to it. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 793, opn 1 Jan 2013]

Custody and use of the seal of the FWC and duplicate seals (4) The seal of the FWC, and the duplicates of that seal, are to be kept in such custody as the President directs and must not be used except as authorised by the President. Note: The President gives directions under section 582. [subs (4) am Act 174 of 2012 s 3 and Sch 9 items 794, 795, opn 1 Jan 2013]

[page 958] Judicial notice of the seal of the FWC (5) All courts, judges and persons acting judicially must: (a) take judicial notice of the imprint of the seal of the FWC appearing on a document; and (b) presume that the document was duly sealed. [subs (5) am Act 174 of 2012 s 3 and Sch 9 items 796, 797, opn 1 Jan 2013]

[9-1080]

Annual report

652 (1) The President must, as soon as practicable after the end of each financial year, prepare a report on the operations of the FWC during that year. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 798, opn 1 Jan 2013; Act 62 of 2014 s 3 and Sch 9 items 3, 5, 6, opn 1 July 2014]

(1A) A report prepared after the end of a financial year must be given to the Minister by 15 October in the next financial year for presentation to the

Parliament. Note 1: See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports. Note 2: The report prepared by the General Manager and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 may be included in the report prepared under this section. [subs (1A) insrt Act 62 of 2014 s 3 and Sch 9 item 4, opn 1 July 2014]

(2) To avoid doubt, subsection (1) does not require or authorise the disclosure of information for the purposes of the Privacy Act 1988.

[9-1100] Reports about making enterprise agreements, individual flexibility arrangements etc 653 Review and research (1) The General Manager must: (a) review the developments, in Australia, in making enterprise agreements; and (b) conduct research into the extent to which individual flexibility arrangements under modern awards and enterprise agreements are being agreed to, and the content of those arrangements; and (c) conduct research into the operation of the provisions of the National Employment Standards relating to: (i) requests for flexible working arrangements under subsection 65(1); and (ii) requests for extensions of unpaid parental leave under subsection 76(1); and (d) conduct research into: (i) the circumstances in which employees make such requests; and (ii) the outcome of such requests; and (iii) the circumstances in which such requests are refused. (1A) The review and research must be conducted in relation to each of the following periods: (a) the 3 year period that starts when this section commences;

(b) each later 3 year period. (2) Without limiting subsection (1), the General Manager must, in conducting the [page 959] review and research, consider the effect that the matters referred to in paragraphs (1)(a) to (d) have had, during the period, on the employment (including wages and conditions of employment) of the following persons: (a) women; (b) part-time employees; (c) persons from a non-English speaking background; (d) mature age persons; (e) young persons; (f) any other persons prescribed by the regulations. Report (3) The General Manager must give the Minister a written report of the review and research as soon as practicable, and in any event within 6 months, after the end of the period to which it relates. (4) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report. (5) Subsections 34C(4) to (7) of the Acts Interpretation Act 1901 apply to the report as if it were a periodic report as defined in subsection 34C(1) of that Act.

[9-1120] Arrangements with the Federal Court and the Federal Circuit Court 653A The General Manager may make a written arrangement with the Federal Court or the Federal Circuit Court for the FWC to provide administrative support to the Fair Work Division of the Court.

[s 653A am Act 174 of 2012 s 3 and Sch 9 item 799, opn 1 Jan 2013; Act 13 of 2013 s 3 and Sch 1 item 246, Sch 2 item 1, opn 12 Apr 2013]

[9-1140] President must provide certain information etc to the Minister and Fair Work Ombudsman 654 (1) The President must provide to the Minister and the Fair Work Ombudsman information and copies of documents prescribed by the regulations by the time, and in the form, prescribed. (2) The regulations may prescribe: (a) information that is publicly available, or derived from information that is publicly available, relating to: (i) a decision of the FWC; or (ii) a notice, notification or application given or made to the FWC; and (b) a decision of the FWC that is publicly available. [subs (2) am Act 55 of 2009 s 3 and Sch 18, opn 1 July 2009; Act 174 of 2012 s 3 and Sch 9 item 800, opn 1 Jan 2013]

[9-1160]

Disclosure of information by the FWC

655 Information to which this section applies (1) This section applies to the following information: (a) information acquired by the FWC, or a member of the staff of the FWC, in the course of performing functions or exercising powers as the FWC; [page 960] (b) information acquired by a person in the course of assisting the FWC under section 672, or in the course of performing functions, or exercising powers, as a consultant under section 673. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 802, opn 1 Jan 2013]

Disclosure that is necessary or appropriate, or likely to assist administration or enforcement (2) The President may disclose, or authorise the disclosure of, the information if the President reasonably believes: (a) that it is necessary or appropriate to do so in the course of performing functions, or exercising powers, of the FWC; or (b) that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth, a State or a Territory. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 802, opn 1 Jan 2013] [s 655 am Act 174 of 2012 s 3 and Sch 9 item 801, opn 1 Jan 2013]

DIVISION 8 — GENERAL MANAGER, STAFF AND CONSULTANTS Subdivision A — Functions of the General Manager

[9-1350]

Establishment

656 There is to be a General Manager of the Fair Work Commission. [s 656 am Act 174 of 2012 s 3 and Sch 9 item 803, opn 1 Jan 2013]

[9-1370] Functions and powers of the General Manager 657 (1) The General Manager is to assist the President in ensuring that the FWC performs its functions and exercises its powers. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 801, opn 1 Jan 2013]

(1A) The General Manager also has the following functions: (a) any function conferred on him or her by a fair work instrument; (b) any function conferred on him or her by a law of the Commonwealth. Note: Sections 653 and 653A confer additional functions and powers on the General Manager.

(2) The General Manager has power to do all things necessary or convenient to be done for the purpose of performing his or her functions.

[9-1390]

Directions from the President

658 Despite the President’s power of direction under section 582, the General Manager is not required to comply with a direction by the President to the extent that: (a) compliance with the direction would be inconsistent with the General Manager’s performance of functions or exercise of powers under the Public Governance, Performance and Accountability Act 2013 in relation to the FWC; or (b) the direction relates to the General Manager’s performance of functions or exercise of powers under the Public Service Act 1999 in relation to the FWC; or [page 961] (c) the direction relates to the conduct by the General Manager of the review and research, and the preparation of the report, under section 653. [s 658 am Act 174 of 2012 s 3 and Sch 9 item 805, opn 1 Jan 2013; Act 62 of 2014 s 3 and Sch 9 item 7, opn 1 July 2014]

[9-1410] General Manager not otherwise subject to direction 659 Except as provided by this or any other Act, the General Manager is not subject to direction by or on behalf of the Commonwealth.

Subdivision B — Appointment and terms and conditions of the General Manager

[9-1550]

Appointment of the General Manager

660 (1) The General Manager is to be appointed by the Governor-General by written instrument on the nomination of the President. [subs (1) am Act 174 of 2012 s 3 and Sch 8 item 12, opn 1 Jan 2013]

(2) The General Manager holds office on a full-time basis. (3) The General Manager holds office for the period specified in the instrument of appointment. The period must not exceed 5 years. Note: The General Manager is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).

[9-1570]

Remuneration of the General Manager

661 (1) The General Manager is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the General Manager is to be paid the remuneration that is prescribed by the regulations. (2) The General Manager is to be paid the allowances that are prescribed by the regulations. (3) This section has effect subject to the Remuneration Tribunal Act 1973.

[9-1590] Leave of absence of the General Manager 662 (1) The General Manager has the recreation leave entitlements that are determined by the Remuneration Tribunal. (2) The Minister may grant the General Manager leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

[9-1610]

Outside work of the General Manager

663 The General Manager must not engage in paid work outside the duties of his or her office without the President’s approval. [s 663 am Act 174 of 2012 s 3 and Sch 8 items 71, 72, opn 1 Jan 2013]

[page 962]

[9-1630]

Disclosure of interests to the President

664 (1) The General Manager must give written notice to the President of all material personal interests that the General Manager has or acquires that relate to the affairs of the FWC. (2) Section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) does not apply to the General Manager. [s 664 subst Act 62 of 2014 s 3 and Sch 9 item 8, opn 1 July 2014]

[9-1650]

Resignation of the General Manager

665 (1) The General Manager may resign his or her appointment by giving the Governor-General a written resignation. (2) The resignation takes effect on the day it is received by the GovernorGeneral or, if a later day is specified in the resignation, on that later day.

[9-1670] Termination of appointment of the General Manager 666 (1) The Governor-General may terminate the appointment of the General Manager: (a) for misbehaviour; or (b) if the General Manager is unable to perform the duties of his or her office because of physical or mental incapacity. (2) The Governor-General must terminate the appointment of the General Manager if: (a) the General Manager becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors, or makes an assignment of his or her remuneration for the benefit of his or her creditors; or (b) the General Manager is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or (c) the General Manager engages, except with the President’s approval, in paid work outside the duties of his or her office (see section 663); or (d) the General Manager fails, without reasonable excuse, to comply

with section 664 (which deals with disclosure of interests to the President). [subs (2) am Act 174 of 2012 s 3 and Sch 8 item 73, opn 1 Jan 2013]

[9-1690] Other terms and conditions of the General Manager 667 The General Manager holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor-General.

[9-1710]

Appointment of acting General Manager

668 (1) The Minister may, by written instrument, appoint a person who is nominated by the President to act as the General Manager: (a) during a vacancy in the office of the General Manager (whether or not an appointment has previously been made to the office); or [page 963] (b) during any period, or during all periods, when the General Manager is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office. Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments. [subs (1) am Act 174 of 2012 s 3 and Sch 8 item 13, opn 1 Jan 2013]

(2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because: (a) the occasion for the appointment had not arisen; or (b) there was a defect or irregularity in connection with the appointment; or (c) the appointment had ceased to have effect; or (d) the occasion to act had not arisen or had ceased.

[9-1730]

Minister to consult the President

669 The Minister must consult the President before terms and conditions are determined under section 667. [s 669 am Act 174 of 2012 s 3 and Sch 8 item 14, opn 1 Jan 2013]

Subdivision C — Staff and consultants

[9-1870]

Staff

670 (1) The staff of the FWC must be persons engaged under the Public Service Act 1999. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 806, opn 1 Jan 2013]

(2) For the purposes of the Public Service Act 1999: (a) the General Manager and the staff of the FWC together constitute a Statutory Agency; and (b) the General Manager is the Head of that Statutory Agency. [subs (2) am Act 73 of 2013 s 3 and Sch 6 item 8, opn 28 June 2013]

[9-1890]

Delegation by General Manager to staff

671 (1) The General Manager may, in writing, delegate all or any of his or her functions or powers to: (a) a member of the staff of the FWC who is an SES employee or acting SES employee; or (b) a member of the staff of the FWC who is in a class of employees prescribed by the regulations. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 807, opn 1 Jan 2013]

(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the General Manager. Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

[9-1910]

Persons assisting the FWC

672 The FWC may also be assisted: (a) by employees of Agencies (within the meaning of the Public

Service Act 1999); or [page 964] (b) by officers and employees of a State or Territory; or (c) by officers and employees of authorities of the Commonwealth, a State or a Territory; whose services are made available to the FWC in connection with the performance of any of its functions. [s 672 am Act 174 of 2012 s 3 and Sch 9 items 808–810, opn 1 Jan 2013]

[9-1930]

Consultants

673 The General Manager may engage persons having suitable qualifications and experience as consultants to the FWC. [s 673 am Act 174 of 2012 s 3 and Sch 9 item 811, opn 1 Jan 2013]

Subdivision D — Application of the finance law

[9-1950]

Application of the finance law

673A For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013): (a) the following group of persons is a listed entity: (i) the General Manager; (ii) the staff of the FWC referred to in section 670; (iii) persons whose services are made available to the FWC under section 672; (iv) consultants engaged under section 673; and (b) the listed entity is to be known as the Fair Work Commission; and (c) the General Manager is the accountable authority of the listed entity; and (d) the persons referred to in paragraph (a) are officials of the listed

entity; and (e) the purposes of the listed entity include the functions of the General Manager referred to in section 657.

DIVISION 9 — OFFENCES RELATING TO THE FAIR WORK COMMISSION [Div 9 heading am Act 174 of 2012 s 3 and Sch 9 item 812, opn 1 Jan 2013]

[9-2120]

Offences in relation to the FWC

674 Insulting or disturbing an FWC Member (1) A person commits an offence if: (a) the person engages in conduct; and (b) the person’s conduct insults or disturbs an FWC Member in the performance of functions, or the exercise of powers, as an FWC Member. Penalty: Imprisonment for 12 months. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 814, 815, opn 1 Jan 2013]

Using insulting language (2) A person commits an offence if: (a) the person uses insulting language towards another person; and (b) the person is reckless as to whether the language is insulting; and [page 965] (c) the other person is an FWC Member performing functions, or exercising powers, as an FWC Member. Penalty: Imprisonment for 12 months. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 815, opn 1 Jan 2013]

Interrupting matters before the FWC (3) A person commits an offence if:

(a) the person engages in conduct; and (b) the person’s conduct interrupts a matter before the FWC. Penalty: Imprisonment for 12 months. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 816, 817, opn 1 Jan 2013]

Creating or continuing a disturbance (4) A person commits an offence if: (a) the person engages in conduct; and (b) the person’s conduct creates, or contributes to creating or continuing, a disturbance; and (c) the disturbance is in or near a place where the FWC is dealing with a matter. Penalty: Imprisonment for 12 months. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 817, opn 1 Jan 2013]

Improper influence of FWC Members etc (5) A person commits an offence if: (a) the person uses words (whether by writing or speech) that are intended to improperly influence another person; and (b) the other person is an FWC Member or a person attending before the FWC. Penalty: Imprisonment for 12 months. [subs (5) am Act 174 of 2012 s 3 and Sch 9 items 818–820, opn 1 Jan 2013]

Delegates of the FWC (6) A reference in subsections (1) to (5) to the FWC or an FWC Member includes a delegate of the FWC. [subs (6) subst Act 174 of 2012 s 3 and Sch 9 item 821, opn 1 Jan 2013]

Adversely affecting public confidence in the FWC (7) A person commits an offence if: (a) the person publishes a statement; and (b) the statement implies or states that an FWC Member (whether identified or not) has engaged in misconduct in relation to the

performance of functions, or the exercise of powers, as an FWC Member; and (c) the FWC Member has not engaged in that misconduct; and (d) the publication is likely to have a significant adverse effect on public confidence that the FWC is properly performing its functions and exercising its powers. Penalty: 12 months imprisonment. Note 1: Sections 135.1, 135.4, 139.1, 141.1 and 142.1 of the Criminal Code create offences of using various dishonest means to influence a Commonwealth public official. Note 2: Sections 676 and 678 of this Act and sections 36A, 37, 38 and 40 of the Crimes Act 1914 create offences relating to interference with a witness. Section 39 of that Act makes it an offence to destroy anything that may be required in evidence. [subs (7) am Act 174 of 2012 s 3 and Sch 9 items 822–824, opn 1 Jan 2013] [s 674 am Act 174 of 2012 s 3 and Sch 9 item 813, opn 1 Jan 2013]

[page 966]

[9-2140]

Contravening an FWC order

675 (1) A person commits an offence if: (a) the FWC has made an order under this Act; and (b) either of the following applies: (i) the order applies to the person; (ii) a term of the order applies to the person; and (c) the person engages in conduct; and (d) the conduct contravenes: (i) a term of the order referred to in subparagraph (b)(i); or (ii) the term referred to in subparagraph (b)(ii). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 826, opn 1 Jan 2013]

(2) However, subsection (1) does not apply to the following orders: (a) an order under Part 2-3 (which deals with modern awards); (b) a bargaining order; (c) a scope order;

(d) (e) (f) (g)

an order under Part 2-6 (which deals with minimum wages); an equal remuneration order; an order under Part 2-8 (which deals with transfer of business); an order under Division 6 of Part 3-3 (which deals with the suspension or termination of protected industrial action); (h) a protected action ballot order, or an order in relation to a protected action ballot order or a protected action ballot; (i) an order under Part 3-5 (which deals with stand down); (j) an order under Part 6-4B (which deals with workers bullied at work). Penalty: Imprisonment for 12 months. [subs (2) am Act 73 of 2013 s 3 and Sch 3 item 5, opn 1 Jan 2014]

(3) Strict liability applies to paragraphs (1)(a) and (b). Note: For strict liability, see section 6.1 of the Criminal Code. [s 675 am Act 174 of 2012 s 3 and Sch 9 item 825, opn 1 Jan 2013]

[9-2160]

Intimidation etc

676 A person commits an offence if: (a) the person threatens, intimidates, coerces or prejudices another person; and (b) the person does so because the other person has given, or proposes to give, information or documents to the FWC. Penalty: Imprisonment for 12 months. Note: A person may also contravene a civil remedy provision by threatening etc. a person who has given, or proposes to give, information or documents to the FWC (see section 343). [s 676 am Act 174 of 2012 s 3 and Sch 9 item 827, opn 1 Jan 2013]

[9-2180] Offences in relation to attending before the FWC 677 Required to attend (1) A person commits an offence if: (a) the person has been required to attend before the FWC; and [page 967] (b) the person fails to attend as required. Penalty: Imprisonment for 6 months. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 829, opn 1 Jan 2013]

Oath or affirmation (2) A person commits an offence if: (a) the person attends before the FWC; and (b) the FWC requires the person to take an oath or make an affirmation; and (c) the person refuses or fails to be sworn or to make an affirmation as required.

Penalty: Imprisonment for 6 months. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 829, opn 1 Jan 2013]

Questions or documents (3) A person commits an offence if: (a) the person attends before the FWC; and (b) the FWC requires the person to answer a question or produce a document; and (c) the person refuses or fails to answer the question or produce the document. Penalty: Imprisonment for 6 months. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 829, opn 1 Jan 2013]

Reasonable excuse (4) Subsection (1), (2) or (3) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

(5) A reference in this section to the FWC or an FWC Member includes a delegate of the FWC. [subs (5) subst Act 174 of 2012 s 3 and Sch 9 item 830, opn 1 Jan 2013] [s 677 am Act 174 of 2012 s 3 and Sch 9 item 828, opn 1 Jan 2013]

[9-2200]

False or misleading evidence

678 Giving false or misleading evidence (1) A person (the witness) commits an offence if: (a) the witness gives sworn or affirmed evidence; and (b) the witness gives the evidence as a witness: (i) in a matter before the FWC; or (ii) before a person taking evidence on behalf of the FWC for use in a matter that the witness will start by application to the FWC; and (c) the evidence is false or misleading.

Penalty: Imprisonment for 12 months. Note: A person will not commit an offence if the person carries out the conduct constituting the offence under duress (see section 10.2 of the Criminal Code). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 831, opn 1 Jan 2013]

Inducing or coercing another person to give false or misleading evidence (2) A person (the offender) commits an offence if: (a) another person (the witness) has been, or will be, required to appear as a witness in a matter before the FWC (whether the person is to appear before the FWC or a delegate of the FWC); and [page 968] (b) the offender induces, threatens or intimidates the witness to give false or misleading evidence in the matter. Penalty: Imprisonment for 12 months. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 831, opn 1 Jan 2013]

PART 5-2 — OFFICE OF THE FAIR WORK OMBUDSMAN DIVISION 1 — INTRODUCTION

[9-2440]

Guide to this Part

679 This Part is about the Office of the Fair Work Ombudsman. Division 2 is about the Fair Work Ombudsman. The Fair Work Ombudsman’s functions include promoting and monitoring compliance with this Act, and providing education, assistance and advice to employees, employers, outworkers, outworker entities and organisations. Division 3 is about the Office of the Fair Work Ombudsman. The Office of the Fair Work Ombudsman consists of the Fair Work Ombudsman, Fair Work Inspectors and staff. The inspectors exercise compliance powers for purposes including determining whether this Act is being complied with. The compliance powers include the power to enter certain premises, and to inspect and make copies of documents on the premises.

[Editor’s note: Section 679 of this legislation is reproduced in this format in line with the official version.]

[9-2460]

Meanings of employee and employer

680 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). [s 680 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY TO SECTION 680*

Employee — s 680 …. Employer — s 680 …. TCF contract outworkers — s 680 Note …. This Part — s 680 ….

[9-2460.01] [9-2460.05] [9-2460.10] [9-2460.20]

[9-2460.01] Employee — s 680 See ss 12, 15(1), 30E(1) and 30P(1). [9-2460.05] Employer — s 680 See ss 12, 15(2), 30E(2) and 30P(2). [9-2460.10] TCF contract outworkers — s 680 Note See ss 12 and 789BB(2). [9-2460.20] This Part — s 680 This Part is Pt 5–2. *Editor’s Note: Commentary to s 680 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ [page 969]

DIVISION 2 — FAIR WORK OMBUDSMAN Subdivision A — Establishment and functions and powers of the Fair Work Ombudsman

[9-2650]

Establishment

681 There is to be a Fair Work Ombudsman.

[9-2670]

Functions of the Fair Work Ombudsman

682 (1) The Fair Work Ombudsman has the following functions: (a) to promote: (i) harmonious, productive and cooperative workplace relations; and (ii) compliance with this Act and fair work instruments; including by providing education, assistance and advice to employees, employers, outworkers, outworker entities and organisations and producing best practice guides to workplace relations or workplace practices; (b) to monitor compliance with this Act and fair work instruments; (c) to inquire into, and investigate, any act or practice that may be contrary to this Act, a fair work instrument or a safety net contractual entitlement; (d) to commence proceedings in a court, or to make applications to the FWC, to enforce this Act, fair work instruments and safety net contractual entitlements; (e) to refer matters to relevant authorities; (f) to represent employees or outworkers who are, or may become, a party to proceedings in a court, or a party to a matter before the FWC, under this Act or a fair work instrument, if the Fair Work Ombudsman considers that representing the employees or outworkers will promote compliance with this Act or the fair work instrument; (g) any other functions conferred on the Fair Work Ombudsman by any Act. Note 1: The Fair Work Ombudsman also has the functions of an inspector (see section 701). Note 2: In performing functions under paragraph (a), the Fair Work Ombudsman might, for example, produce a best practice guide to achieving productivity through bargaining. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 832, opn 1 Jan 2013]

(2) The Fair Work Ombudsman must consult with the FWC in producing guidance material that relates to the functions of the FWC. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 833, opn 1 Jan 2013]

[9-2690] Delegation by the Fair Work Ombudsman 683 (1) The Fair Work Ombudsman may, in writing, delegate to a member of the staff of the Office of the Fair Work Ombudsman or to an inspector all or any of the Fair Work Ombudsman’s functions or powers under any Act (other than his or her functions or powers as an inspector). (2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Fair Work Ombudsman. [page 970]

[9-2710]

Directions from the Minister

684 (1) The Minister may, by legislative instrument, give written directions to the Fair Work Ombudsman about the performance of his or her functions. Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the direction (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act). [subs (1) am Act 126 of 2015 s 3 and Sch 1 item 212, opn 5 Mar 2016]

(2) The direction must be of a general nature only. (3) The Fair Work Ombudsman must comply with the direction. (4) The Fair Work Ombudsman is not required to comply with the direction to the extent that it relates to the Fair Work Ombudsman’s performance of functions, or exercise of powers, under the Public Service Act 1999 in relation to the Office of the Fair Work Ombudsman.

[9-2730]

Minister may require reports

685 (1) The Minister may, in writing, direct the Fair Work Ombudsman to give the Minister specified reports relating to the Fair Work Ombudsman’s functions. (2) The Fair Work Ombudsman must comply with the direction. (3) The direction, or the report (if made in writing), is not a legislative

instrument.

[9-2750]

Annual report

686 To avoid doubt, the requirement on the Fair Work Ombudsman to give an annual report to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 does not require or authorise the disclosure of information for the purposes of the Privacy Act 1988.

Subdivision B — Appointment and terms and conditions of the Fair Work Ombudsman

[9-2890] Appointment of the Fair Work Ombudsman 687 (1) The Fair Work Ombudsman is to be appointed by the GovernorGeneral by written instrument. (2) Before the Governor-General appoints a person as the Fair Work Ombudsman, the Minister must be satisfied that the person: (a) has suitable qualifications or experience; and (b) is of good character. (3) The Fair Work Ombudsman holds office on a full-time basis. (4) The Fair Work Ombudsman holds office for the period specified in the instrument of appointment. The period must not exceed 5 years. Note: The Fair Work Ombudsman is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).

[page 971]

[9-2910] Remuneration of the Fair Work Ombudsman 688 (1) The Fair Work Ombudsman is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that

remuneration by the Tribunal is in operation, the Fair Work Ombudsman is to be paid the remuneration that is prescribed by the regulations. (2) The Fair Work Ombudsman is to be paid the allowances that are prescribed by the regulations. (3) This section has effect subject to the Remuneration Tribunal Act 1973.

[9-2930] Leave of absence of the Fair Work Ombudsman 689 (1) The Fair Work Ombudsman has the recreation leave entitlements that are determined by the Remuneration Tribunal. (2) The Minister may grant the Fair Work Ombudsman leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

[9-2950] Outside work of the Fair Work Ombudsman 690 The Fair Work Ombudsman must not engage in paid work outside the duties of his or her office without the Minister’s approval. [s 690 am Act 174 of 2012 s 3 and Sch 8 items 74, 75, opn 1 Jan 2013]

[9-2970]

Disclosure of interests to the Minister

691

[9-2990] Resignation of the Fair Work Ombudsman 692 (1) The Fair Work Ombudsman may resign his or her appointment by giving the Governor-General a written resignation. (2) The resignation takes effect on the day it is received by the GovernorGeneral or, if a later day is specified in the resignation, on that later day.

[9-3010]

Termination of appointment of the Fair

Work Ombudsman 693 (1) The Governor-General may terminate the appointment of the Fair Work Ombudsman: (a) for misbehaviour; or (b) if the Fair Work Ombudsman is unable to perform the duties of his or her office because of physical or mental incapacity. (2) The Governor-General must terminate the appointment of the Fair Work Ombudsman if: (a) the Fair Work Ombudsman becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors, or makes an assignment of his or her remuneration for the benefit of his or her creditors; or (b) the Fair Work Ombudsman is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or [page 972] (c) the Fair Work Ombudsman engages, except with the Minister’s approval, in paid work outside the duties of his or her office (see section 690); or (d) the Fair Work Ombudsman fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section. [subs (2) am Act 174 of 2012 s 3 and Sch 8 item 76, opn 1 Jan 2013]

[9-3030] Other terms and conditions of the Fair Work Ombudsman 694 The Fair Work Ombudsman holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor-General.

[9-3050] Appointment of acting Fair Work Ombudsman 695 (1) The Minister may, by written instrument, appoint a person who is qualified for appointment as the Fair Work Ombudsman to act as the Fair Work Ombudsman: (a) during a vacancy in the office of Fair Work Ombudsman (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Fair Work Ombudsman is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office. Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.

(2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because: (a) the occasion for the appointment had not arisen; or (b) there was a defect or irregularity in connection with the appointment; or (c) the appointment had ceased to have effect; or (d) the occasion to act had not arisen or had ceased.

DIVISION 3 — OFFICE OF THE FAIR WORK OMBUDSMAN Subdivision A — Establishment of the office of the Fair Work Ombudsman

[9-3240] Establishment of the Office of the Fair Work Ombudsman 696 (1) The Office of the Fair Work Ombudsman is established by this section. (2) The Office of the Fair Work Ombudsman consists of: (a) the Fair Work Ombudsman; and (b) the staff of the Office of the Fair Work Ombudsman; and

(c) the inspectors appointed under section 700.

Subdivision B — Staff and consultants etc

[9-3380]

Staff

697 (1) The staff of the Office of the Fair Work Ombudsman must be persons engaged under the Public Service Act 1999. (2) For the purposes of the Public Service Act 1999: [page 973] (a) the Fair Work Ombudsman and the staff of the Office of the Fair Work Ombudsman together constitute a Statutory Agency; and (b) the Fair Work Ombudsman is the Head of that Statutory Agency.

[9-3400] Persons assisting the Fair Work Ombudsman 698 The Fair Work Ombudsman may also be assisted: (a) by employees of Agencies (within the meaning of the Public Service Act 1999); or (b) by officers and employees of a State or Territory; or (c) by officers and employees of authorities of the Commonwealth, a State or a Territory; whose services are made available to the Fair Work Ombudsman in connection with the performance of any of his or her functions. Note: For example, State or Territory employees could be made available to assist the Fair Work Ombudsman in providing education in a particular region.

[9-3420]

Consultants

699 The Fair Work Ombudsman may engage persons having suitable qualifications and experience as consultants to the Office of the Fair Work

Ombudsman.

Subdivision C — Appointment of Fair Work Inspectors

[9-3560]

Appointment of Fair Work Inspectors

700 (1) The Fair Work Ombudsman may, in writing, appoint as a Fair Work Inspector: (a) a person who has been appointed, or who is employed, by the Commonwealth; or (b) a person who is employed by a State or Territory. (2) The Fair Work Ombudsman may appoint a person as a Fair Work Inspector only if the Fair Work Ombudsman is satisfied that the person is of good character. (3) A Fair Work Inspector is appointed for the period specified in the instrument of appointment. The period must not exceed 4 years. Note: A Fair Work Inspector is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).

[9-3580] Fair Work Ombudsman is a Fair Work Inspector 701 The Fair Work Ombudsman is a Fair Work Inspector by force of this section.

[9-3600]

Identity cards

702 (1) The Fair Work Ombudsman must issue an identity card to an inspector appointed under section 700. (2) The Minister must issue an identity card to the Fair Work Ombudsman. [page 974] Form of identity card

(3) The identity card must: (a) be in the form approved by the Fair Work Ombudsman; and (b) contain a recent photograph of the inspector. Inspector must carry card (4) An inspector must carry the identity card at all times when performing functions or exercising powers as an inspector. Offence (5) A person commits an offence if: (a) the person ceases to be an inspector; and (b) the person does not, within 14 days of so ceasing, return the person’s identity card to the Fair Work Ombudsman or the Minister (as the case may be). Penalty: 1 penalty unit. (6) Subsection (5) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

Defence — card lost or destroyed (7) Subsection (5) does not apply if the identity card was lost or destroyed. Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

Subdivision D — Functions and powers of Fair Work Inspectors

[9-3740] Conditions and restrictions on functions and powers 703 The functions, and powers (compliance powers), conferred on an inspector are subject to such conditions and restrictions as are specified in his or her instrument of appointment. COMMENTARY TO SECTION 703*

Derivation …. Compliance powers — s 703 ….

[9-3740.01] [9-3740.05]

Inspector — s 703 ….

[9-3740.10]

[9-3740.01] Derivation The section is loosely derived from s 167(5) of the Workplace Relations Act 1996. [9-3740.05] Compliance powers — s 703 The Explanatory Memorandum to the Fair Work Bill states at [2608] that: The powers of inspectors are collectively referred to as compliance powers and include powers set out in cll 708, 709, 711, 712, 714 and 716 in this Part. See also Commonwealth Ombudsman, Fair Work Ombudsman: Exercise of coercive informationgathering powers (1 June 2010) at 1.6. [9-3740.10] Inspector — s 703 See ss 12 and 700. *Editor’s note: Commentary to s 703 updated by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________ [page 975]

[9-3760] General directions by the Fair Work Ombudsman 704 (1) The Fair Work Ombudsman may, by legislative instrument, give a written direction to inspectors relating to the performance of their functions or the exercise of their powers as inspectors. (2) The direction must be of a general nature only, and cannot relate to a particular case. (3) An inspector must comply with the direction.

[9-3780] Particular directions by the Fair Work Ombudsman 705 (1) The Fair Work Ombudsman may give a direction to an inspector relating to the performance of the inspector’s functions or the exercise of the inspector’s powers as an inspector. (2) The inspector must comply with the direction. (3) If a direction is in writing, the direction is not a legislative instrument.

[9-3800] Purpose for which powers of inspectors may be exercised 706 (1) An inspector may exercise compliance powers (other than a power under section 715 or 716) for one or more of the following purposes (compliance purposes): (a) determining whether this Act or a fair work instrument is being, or has been, complied with; (b) subject to subsection (2), determining whether a safety net contractual entitlement is being, or has been, contravened by a person; (c) the purposes of a provision of the regulations that confers functions or powers on inspectors; (d) the purposes of a provision of another Act that confers functions or powers on inspectors. Note: The powers in sections 715 (which deals with enforceable undertakings) and 716 (which deals with compliance notices) may be exercised for the purpose of remedying the effects of certain contraventions.

(2) An inspector may exercise compliance powers for the purpose referred to in paragraph (1)(b) only if the inspector reasonably believes that the person has contravened one or more of the following: (a) a provision of the National Employment Standards; (b) a term of a modern award; (c) a term of an enterprise agreement; (d) a term of a workplace determination; (e) a term of a national minimum wage order; (f) a term of an equal remuneration order.

[9-3820] When powers of inspectors may be exercised 707 An inspector may exercise compliance powers: (a) at any time during working hours; or (b) at any other time, if the inspector reasonably believes that it is

necessary to do so for compliance purposes. [page 976]

[9-3840]

Power of inspectors to enter premises

708 (1) An inspector may, without force: (a) enter premises, if the inspector reasonably believes that this Act or a fair work instrument applies to work that is being, or applied to work that has been, performed on the premises; or (b) enter business premises, if the inspector reasonably believes that there are records or documents relevant to compliance purposes on the premises, or accessible from a computer on the premises. (2) Despite paragraph (1)(a), an inspector must not enter a part of premises that is used for residential purposes unless the inspector reasonably believes that the work referred to in that paragraph is being performed on that part of the premises. (3) The inspector must, either before or as soon as practicable after entering premises, show his or her identity card to the occupier, or another person who apparently represents the occupier, if the occupier or other person is present at the premises.

[9-3860]

Powers of inspectors while on premises

709 The inspector may exercise one or more of the following powers while on the premises: (a) inspect any work, process or object; (b) interview any person; (c) require a person to tell the inspector who has custody of, or access to, a record or document; (d) require a person who has the custody of, or access to, a record or document to produce the record or document to the inspector either while the inspector is on the premises, or within a specified period; (e) inspect, and make copies of, any record or document that:

(f)

(i) is kept on the premises; or (ii) is accessible from a computer that is kept on the premises; take samples of any goods or substances in accordance with any procedures prescribed by the regulations.

Note: See also sections 713, 713A and 714 (which deal with self-incrimination and produced documents etc.). [s 709 am Act 54 of 2009 s 3 and Sch 12[4], opn 14 Sep 2009]

[9-3880]

Persons assisting inspectors

710 (1) A person (the assistant) may accompany the inspector onto the premises to assist the inspector if the Fair Work Ombudsman is satisfied that: (a) the assistance is necessary and reasonable; and (b) the assistant has suitable qualifications and experience to properly assist the inspector. (2) The assistant: (a) may do such things on the premises as the inspector requires to assist the inspector to exercise compliance powers; but (b) must not do anything that the inspector does not have power to do. (3) Anything done by the assistant is taken for all purposes to have been done by the inspector. [page 977]

[9-3900] address

Power to ask for person’s name and

711 (1) An inspector may require a person to tell the inspector the person’s name and address if the inspector reasonably believes that the person has contravened a civil remedy provision. (2) If the inspector reasonably believes that the name or address is false, the inspector may require the person to give evidence of its correctness. (3) A person must comply with a requirement under subsection (1) or (2)

if: (a) the inspector advises the person that he or she may contravene a civil remedy provision if he or she fails to comply with the requirement; and (b) the inspector shows his or her identity card to the person. Note: This subsection is a civil remedy provision (see Part 4-1).

(4) Subsection (3) does not apply if the person has a reasonable excuse.

[9-3920] Power to require persons to produce records or documents 712 (1) An inspector may require a person, by notice, to produce a record or document to the inspector. (2) The notice must: (a) be in writing; and (b) be served on the person; and (c) require the person to produce the record or document at a specified place within a specified period of at least 14 days. The notice may be served by sending the notice to the person’s fax number. (3) A person who is served with a notice to produce must not fail to comply with the notice. Note: This subsection is a civil remedy provision (see Part 4-1).

(4) Subsection (3) does not apply if the person has a reasonable excuse. COMMENTARY TO SECTION 712*

Derivation …. Civil remedy provision — s 712 …. Document — s 712(1), (2)(c) …. Inspector — s 712(1) …. Reasonable Excuse — s 712(4) …. Record — s 712(1), (2)(c) …. Outline of Section ….

[9-3920.1] [9-3920.5] [9-3920.10] [9-3920.15] [9-3920.20] [9-3920.25] [9-3920.30]

[9-3920.1] Derivation The section is very loosely derived from s 169 of the Workplace Relations Act

1996. For the history of that section see Thorson v Pine (2004) 139 FCR 527; 134 IR 343; [2004] FCA 1316; BC200406674 at [24]–[26]. [9-3920.5] Civil remedy provision — s 712 Note See ss 12 and 539. [9-3920.10] Document — s 712(1), (2)(c) See Acts Interpretation Act s 2B. [9-3920.15] Inspector — s 712(1) see s 12. [page 978] [9-3920.20] Reasonable Excuse — s 712(4) There is little assistance provided to the court in respect to the interpretation and operation of the term “reasonable excuse” as contained in s 712(4) of the Fair Work Act: Fair Work Ombudsman v Ballina Island Resort Pty Ltd (2011) 207 IR 312; [2011] FMCA 500; BC201104977 at [77]. Note s 713 removes the privilege against incrimination and penalty. Section 712 is contained in Pt 5-2 Div 3 Subdiv D of the FW Act, which concerns the functions and powers of Fair Work inspectors. It is obvious that s 712 is an important part of the armoury of powers of fair work inspectors appointed by the FWO. The powers are to be exercised to assist the inspectors in the discharge of the functions identified in s 706 of the FW Act. That includes the function of determining whether there has been compliance with the FW Act itself and with an Award made under the Act (s 706(1)(a)). The concept of “reasonable excuse” in s 712 is to be construed having regard to this statutory context: Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365; BC201411341 at [156]. After reviewing the authorities in Fair Work Ombudsman v Nerd Group Australia Pty Ltd (No 2) (2012) 262 FLR 315; [2012] FMCA 6; BC201203046, Lucev FM held at [99] that: The modern approach is to consider the concept of reasonable excuse having regard to statutory objects and purposes, as well as the particular factual circumstances of the case. Making a judgment on what constitutes a reasonable excuse may not be easy, and minds may differ upon the ultimate answer. In the case of Ganin v NSW Crime Commission (1993) 32 NSWLR 423; 70 A Crim R 417 at 439, Kirby B stated that while; [i]t is undesirable that different formulae should be substituted for that which parliament has enacted. Nevertheless, in judging whether a “reasonable excuse” exists, it was clearly appropriate for the decision-maker to put out of mind imaginary and insubstantial fears or those which, in the practical world, are so remote as to be safely ignored or over-ruled as unreasonable in each case, a judgment must be made. Some examples were given in Fair Work Ombudsman v Finetune Holdings Pty Ltd (No 2) [2012] FMCA 349; BC201203050 at [30]: The usual business activities and constraints, time pressures and resourcing issues, may not be the sort of physical or practical difficulties amounting to a reasonable excuse for non-compliance with a statutory notice to produce. The type of difficulty required is more than just usual business activity. Examples might include: the debilitating illness or injury of the person (or a close family member of the person) running a one-person or very small company; a fire, flood or other natural disaster which has destroyed the documents required to be

produced, or delayed their production; or the prior removal of the documents required to be produced by the police or some government agency. [9-3920.25] Record — s 712(1), (2)(c) See Acts Interpretation Act ss 2B and 25A. [9-3920.30] Outline of Section Section 712 of the FW Act, … provides for an Inspector to require a person, by notice, to produce a record or document to an Inspector, and that a person served with a notice to produce must not fail to comply with the notice, provided they do not have a reasonable excuse for their failure to comply: Fair Ombudsman v Nerd Group Australia (No 2) (2012) 262 FLR 315; [2012] FMCA 6; BC201203046 at [116]. For the request to be valid, it must be connected to a purpose set out in s 706. [page 979] The fact that a notice seeks documents in wide terms does not mean that s 86 notice is invalid; Donnelly v O’Donnell, (2005) 146 IR 434; [2005] FCA 1412; BC200507448 at [22]. A mere statement of the general purpose for which the inspector’s powers are conferred will not inform the recipient about the relevance or legitimacy of the request contained in a notice … It will trouble the inspector little to identify that purpose and once identified, allow the recipient of the notice to adjudge its relevance and hence the validity of the request: Thorson v Pine (2004) 139 FCR 527; 134 IR 343; [2004] FCA 1316; BC200406674 at [30]. That decision was specifically referred to in the Explanatory Memorandum to the Fair Work Bill 2008 stating that: This case determined that in order to be valid, a notice to produce must, on its face, identify the specific purpose for which the notice is issued. An interesting question arises as to the interplay between a notice to produce and the coercive powers of a court or tribunal to compel production during proceedings involving the same parties. In Laing v Carroll (2005) 146 FCR 511; 154 IR 8; [2005] FCAFC 202; BC200506862 at [76], [93] and [283], the Full Federal Court rejected the argument that the power to issue a notice for production was spent when when proceedings for a penalty are brought against a party the subject of the notice to produce. Nevertheless, if the inspector: used this procedure for the purpose of interfering with the Court’s process, he could be guilty of a contempt of court. Therefore, if he had made a request for documents, for that reason then he might be guilty of a contempt and the request would be an abuse of process. As to the principles for determining penalty for breach see: Fair Work Ombudsman v Nerd Group Australia Pty Ltd (No 3) [2012] FMCA 891; BC201207433. *Editor’s note: Commentary to s 712 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[9-3940]

Self-incrimination

713 (1) A person is not excused from producing a record or document under paragraph 709(d), or subsection 712(1), on the ground that the

production of the record or document might tend to incriminate the person or expose the person to a penalty. (2) However, in the case of an individual none of the following are admissible in evidence against the individual in criminal proceedings: (a) the record or document produced; (b) producing the record or document; (c) any information, document or thing obtained as a direct or indirect consequence of producing the record or document. (d) [repealed] (e) [repealed] [subs (2) am Act 54 of 2009 s 3 and Sch 12 item 2, opn 1 July 2009; Act 103 of 2013 s 3 and Sch 1 item 47, opn 29 June 2013] Editor’s note: Subparagraphs 2(d) and (e) were purportedly repealed by Act 54 of 2009. That amendment, however, was stated in a Note to the Fair Work Act 2009 to be misdescribed and accordingly these provisions remained. With the retrospective commencement of 1 July 2009, Act 136 of 2012 has amended Act 54 of 2009 so that s 713(2)(d) and (e) of the Fair Work Act 2009 are now repealed.

[9-3960] Certain records and documents are inadmissible 713A The following are not admissible in evidence in criminal proceedings against an individual: (a) any record or document inspected or copied under paragraph 709(e) of which the individual had custody, or to which the individual had access, when it was inspected or copied; [page 980] (b) any information, document or thing obtained as a direct or indirect consequence of inspecting or copying a record or document of which the individual had custody, or to which the individual had access, when it was inspected or copied under paragraph 709(e). [s 713A insrt Act 54 of 2009 s 3 and Sch 12[4], opn 14 Sep 2009]

[9-3980]

Power to keep records or documents

714 (1) If a record or document is produced to an inspector in accordance with this Subdivision, the inspector may: (a) inspect, and make copies of, the record or document; and (b) keep the record or document for such period as is necessary. (2) While an inspector keeps a record or document, the inspector must allow the following persons to inspect, or make copies of, the record or document at all reasonable times: (a) the person who produced the record or document; (b) any person otherwise entitled to possession of the record or document; (c) a person authorised by the person referred to in paragraph (b).

[9-4000] Enforceable undertakings relating to contraventions of civil remedy provisions 715 Application of this section (1) This section applies if the Fair Work Ombudsman reasonably believes that a person has contravened a civil remedy provision. Accepting an undertaking (2) The Fair Work Ombudsman may accept a written undertaking given by the person in relation to the contravention, except as provided by subsection (5). Withdrawing or varying an undertaking (3) The person may withdraw or vary the undertaking at any time, but only with the Fair Work Ombudsman’s consent. Relationship with orders in relation to contraventions of civil remedy provisions (4) An inspector must not apply for an order under Division 2 of Part 4-1 in relation to a contravention of a civil remedy provision by a person if an undertaking given by the person under this section in relation to the

contravention has not been withdrawn. Note: A person other than an inspector who is otherwise entitled to apply for an order in relation to the contravention may do so.

Relationship with compliance notices (5) The Fair Work Ombudsman must not accept an undertaking in relation to a contravention if the person has been given a notice in relation to the contravention under section 716. [page 981] Enforcement of undertakings (6) If the Fair Work Ombudsman considers that the person who gave the undertaking has contravened any of its terms, the Fair Work Ombudsman may apply to the Federal Court, the Federal Circuit Court or an eligible State or Territory Court for an order under subsection (7). [subs (6) am Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013]

(7) If the court is satisfied that the person has contravened a term of the undertaking, the court may make one or more of the following orders: (a) an order directing the person to comply with the term of the undertaking; (b) an order awarding compensation for loss that a person has suffered because of the contravention; (c) any other order that the court considers appropriate.

[9-4020]

Compliance notices

716 Application of this section (1) This section applies if an inspector reasonably believes that a person has contravened one or more of the following: (a) a provision of the National Employment Standards; (b) a term of a modern award; (c) a term of an enterprise agreement;

(d) a term of a workplace determination; (e) a term of a national minimum wage order; (f) a term of an equal remuneration order. Giving a notice (2) The inspector may, except as provided by subsection (4), give the person a notice requiring the person to do either or both of the following within such reasonable time as is specified in the notice: (a) take specified action to remedy the direct effects of the contravention referred to in subsection (1); (b) produce reasonable evidence of the person’s compliance with the notice. (3) The notice must also: (a) set out the name of the person to whom the notice is given; and (b) set out the name of the inspector who gave the notice; and (c) set out brief details of the contravention; and (d) explain that a failure to comply with the notice may contravene a civil remedy provision; and (e) explain that the person may apply to the Federal Court, the Federal Circuit Court or an eligible State or Territory Court for a review of the notice on either or both of the following grounds: (i) the person has not committed a contravention set out in the notice; (ii) the notice does not comply with subsection (2) or this subsection; and (f) set out any other matters prescribed by the regulations. [subs (3) am Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013]

[page 982] Relationship with enforceable undertakings (4) An inspector must not give a person a notice in relation to a

contravention if: (a) the person has given an undertaking under section 715 in relation to the contravention; and (b) the undertaking has not been withdrawn. Relationship with civil remedy provisions (4A) An inspector must not apply for an order under Division 2 of Part 4-1 in relation to a contravention of a civil remedy provision by a person if: (a) the inspector has given the person a notice in relation to the contravention; and (b) either of the following subparagraphs applies: (i) the notice has not been withdrawn, and the person has complied with the notice; (ii) the person has made an application under section 717 in relation to the notice that has not been completely dealt with. Note: A person other than an inspector who is otherwise entitled to apply for an order in relation to the contravention may do so.

(4B) A person who complies with a notice in relation to a contravention of a civil remedy provision is not taken: (a) to have admitted to contravening the provision; or (b) to have been found to have contravened the provision. Person must not fail to comply with notice (5) A person must not fail to comply with a notice given under this section. Note: This subsection is a civil remedy provision (see Part 4-1).

(6) Subsection (5) does not apply if the person has a reasonable excuse. COMMENTARY TO SECTION 716(3)

Strict compliance with s 716(3) is necessary for a compliance notice to be valid ….

[9-4020.05]

[9-4020.05] Strict compliance with s 716(3) is necessary for a compliance notice to be valid A letter from a Fair Work Inspector purporting to make a determination of a contravention of the FW Act and requiring compliance does not make it a s 716 notice. Strict compliance with the matters in s 716(3) is necessary. Further, although a s 716 notice need not explicitly identify itself as such in order to be effective and valid, this is a factor that the court can take into account when determining whether or not it is one: see Ecosway Pty Ltd v Fair Work Ombudsman [2013] FCCA 1734 at [49]. In that case, it was

held that documents referred to as “letters of determination” of alleged breaches of the FW Act issued by an inspector with the Fair Work Ombudsman failed to comply with s 716(3)(d) and (e), but were not in fact s 716 notices for other reasons. By way of obiter dicta, it was also noted at [58], that if a letter is not intended to be a s 716 notice then it should say so, particularly where “quasi-coercive and quasiofficial language and terminology” is used.

____________________

[9-4040]

Review of compliance notices

717 (1) A person who has been given a notice under section 716 may apply to the Federal Court, the Federal Circuit Court or an eligible State or Territory Court for a review of the notice on either or both of the following grounds: [page 983] (a) the person has not committed a contravention set out in the notice; (b) the notice does not comply with subsection 716(2) or (3). [subs (1) am Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013]

(2) At any time after the application has been made, the court may stay the operation of the notice on the terms and conditions that the court considers appropriate. (3) The court may confirm, cancel or vary the notice after reviewing it.

Subdivision E — Disclosure of information by the office of the Fair Work Ombudsman

[9-4180] Disclosure of information by the Office of the Fair Work Ombudsman 718 Information to which this section applies (1) This section applies to the following information: (a) information acquired by the Fair Work Ombudsman in the course of performing functions, or exercising powers, as the Fair Work Ombudsman;

(b) information acquired by an inspector in the course of performing functions, or exercising powers, as an inspector; (c) information acquired by a member of the staff of the Office of the Fair Work Ombudsman in the course of performing functions, or exercising powers, as a member of that staff; (d) information acquired by a person in the course of assisting the Fair Work Ombudsman under section 698, or in the course of performing functions, or exercising powers, as a consultant under section 699; (e) information acquired by a person in the course of assisting an inspector under section 710. Disclosure that is necessary or appropriate, or likely to assist administration or enforcement (2) The Fair Work Ombudsman may disclose, or authorise the disclosure of, the information if the Fair Work Ombudsman reasonably believes: (a) that it is necessary or appropriate to do so in the course of performing functions, or exercising powers, under this Act; or (b) that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth, a State or a Territory. Disclosure to the Minister (3) The Fair Work Ombudsman may disclose, or authorise the disclosure of, the information to the Minister if the Fair Work Ombudsman reasonably believes that the disclosure is likely to assist the Minister to consider a complaint or issue in relation to a matter arising under this Act. Disclosure to the Department (4) The Fair Work Ombudsman may disclose, or authorise the disclosure of, the information to: (a) the Secretary of the Department; or (b) an SES employee, or an APS employee, in the Department; [page 984]

for the purpose of briefing, or considering briefing, the Minister if the Fair Work Ombudsman reasonably believes the disclosure is likely to assist the Minister to consider a complaint or issue in relation to a matter arising under this Act.

[page 985]

CHAPTER 6 — MISCELLANEOUS PART 6-1 — MULTIPLE ACTIONS DIVISION 1 — INTRODUCTION

[9-4470]

Guide to this Part

719 This Part provides rules relating to applications for remedies under this Act. Division 2 prevents certain applications where other remedies are available. Division 3 prevents multiple applications or complaints in relation to the same conduct. [Editor’s note: Section 719 of this legislation is reproduced in this format in line with the official version.]

[9-4490]

Meanings of employee and employer

720 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). [s 720 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY TO SECTION 720*

Derivation …. Employee — s 720 …. Employer — s 720 …. TCF contract outworkers — s 720 Note …. This Part — s 720 …. Outline of section …. [9-4490.1] Derivation The section is new.

[9-4490.1] [9-4490.5] [9-4490.10] [9-4490.12] [9-4490.14] [9-4490.15]

[9-4490.5] Employee — s 720 See ss 12, 15(1), 30E(1) and 30P(1). [9-4490.10] Employer — s 720 See ss 12, 15(2), 30E(2) and 30P(2). [9-4490.12] TCF contract outworkers — s 720 Note See s 789BB(2). [9-4490.14] This Part — s 720 This Part is Pt 4-1. [9-4490.15] Outline of section Paragraph 2697 of the Explanatory Memorandum to the Fair Work Bill 2008 states that the terms employer and employee have their ordinary meanings because this Part is incidental to other parts of the Bill. An action dealt with by this Part could relate to a national system employee, or to an employee other than a national system employee, depending on the part of the Bill that authorises the substantive action. *Editor’s note: Commentary on s 720 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________ [page 986]

DIVISION 2 — CERTAIN ACTIONS NOT PERMITTED IF ALTERNATIVE ACTION CAN BE TAKEN

[9-4680]

Equal remuneration applications

721 (1) The FWC must not deal with an application for an equal remuneration order if the FWC is satisfied that there is available to the employees to whom the order will apply, an adequate alternative remedy that: (a) exists under a law of the Commonwealth (other than Part 2-7) or a law of a State or Territory; and (b) will ensure equal remuneration for work of equal or comparable value for those employees. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 834, 835, opn 1 Jan 2013]

(2) A remedy that: (a) exists under a law of the Commonwealth, a State or a Territory relating to discrimination in relation to employment; and (b) consists solely of compensation for past actions; is not an adequate alternative remedy for the purposes of this section.

[9-4700] Notification and consultation requirements applications 722 The FWC must not make an order under subsection 532(1) or 787(1) if the FWC is satisfied that there is available to the applicant, or to the employees represented by the applicant, an alternative remedy that: (a) exists under a law of the Commonwealth (other than Division 2 of Part 3-6 or Division 3 of Part 6-4) or a law of a State or Territory; and (b) will give effect, in relation to the employees and registered employee associations concerned, to the requirements of Article 13 of the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer, done at Geneva on 22 June 1982 ([1994] ATS 4). Note: In 2009, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au). [s 722 am Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009; Act 174 of 2012 s 3 and Sch 9 items 836, 837, opn 1 Jan 2013]

[9-4720]

Unlawful termination applications

723 A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct. COMMENTARY TO SECTION 723*

Derivation …. General protections court application …. Must not make — s 371(1) …. Unlawful termination application …. Outline of section ….

[9-4720.1] [9-4720.5] [9-4720.7] [9-4720.10] [9-4720.15] [page 987]

[9-4720.1] Derivation Section 674(2) of the Workplace Relations Act 1996. [9-4720.5] General protections court application See s 12 and s 370(2). An interesting question arises as to whether a person is entitled to make a general protections court application if they have not

fulfilled the requirements in s 371. [9-4720.7] Must not make — s 371(1) The Federal Court has interpreted the words “must not” in the phrase “proceedings must not be instituted” as imposing a statutory bar on the institution of other proceedings in the Federal Court where there are existing proceedings in this court. The interpretation adopted by the Federal Court of the words “must not” in s 32AA(1) of the Federal Court of Australia Act 1976 (FC Act) accords with the natural meaning of that phrase. It is difficult to see why those words ought not be given similar meaning, and effect, in s 723 of the FW Act insofar as they purport to prohibit the making of an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct. Pitrau v Barrick Mining Services Pty Ltd (2012) 259 FLR 447; [2012] FMCA 186; BC201201652 at [20]–[43] (23 March 2012). [9-4720.10] Unlawful termination application The phrase is not defined. The phrases unlawful termination court application and unlawful termination FWA application are defined in s 12. [9-4720.15] Outline of section Paragraph 2702 of the Explanatory Memorandum to the Fair Work Act states that s 723 prevents a person from making an unlawful termination application under Div 2 of Pt 6-4 if they are able to make an application under the general protection provisions in Pt 3-1 in relation to the same termination of employment. This is because the general protections and unlawful termination provisions cover the same grounds of when a termination is for a prohibited reason. The unlawful termination provisions are only intended to be an extension of these protections to persons who are not covered by the general protections provisions in Pt 3-1 in relation to the termination. For an example of the practical difficulties caused by this section see Trudgett v Training Aids Australia Pty Ltd [2010] FWA 2235 (22 March 2010). *Editor’s note: Commentary to s 723 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

DIVISION 3 — PREVENTING MULTIPLE ACTIONS Subdivision A — Equal remuneration applications

[9-4910]

Equal remuneration applications

724 (1) The FWC must not deal with an application for an equal remuneration order in relation to an employee if proceedings for an alternative remedy: (a) to ensure equal remuneration for work of equal or comparable value for the employee; or (b) against unequal remuneration for work of equal or comparable value for the employee;

have commenced under a law of the Commonwealth (other than Part 2-7) or a law of a State or Territory. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 838, opn 1 Jan 2013]

[page 988] (2) Subsection (1) does not prevent the FWC from dealing with the application if the proceedings for the alternative remedy: (a) have been discontinued by the party who commenced the proceedings; or (b) have failed for want of jurisdiction. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 839, opn 1 Jan 2013]

(3) If an application has been made to the FWC for an equal remuneration order in relation to an employee, a person is not entitled to commence proceedings for an alternative remedy under a law of the Commonwealth (other than Part 2-7) or a law of a State or Territory: (a) to ensure equal remuneration for work of equal or comparable value for the employee; or (b) against unequal remuneration for work of equal or comparable value for the employee. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 839, opn 1 Jan 2013]

(4) Subsection (3) does not prevent a person from commencing proceedings for an alternative remedy if: (a) the applicant has discontinued the application for the equal remuneration order; or (b) the application has failed for want of jurisdiction. (5) A remedy that: (a) exists under a law of the Commonwealth, a State or a Territory relating to discrimination in relation to employment; and (b) consists solely of compensation for past actions; is not an alternative remedy for the purposes of this section.

Subdivision B — Applications and complaints relating to dismissal

[9-5050]

General rule

725 A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies. COMMENTARY TO SECTION 725*

Derivation …. Dismissed …. In relation to …. Make …. Must …. Outline of section ….

[9-5050.01] [9-5050.05] [9-5050.10] [9-5050.15] [9-5050.20] [9-5050.25]

[9-5050.01] Derivation The section is new. It is loosely derived from s 672 of the Workplace Relations Act 1996. See Ilardo v Rail Corporation of New South Wales t/as RailCorp (2010) 197 IR 397; [2010] FWAFB 6473 at [17]–[18] for a brief history. [9-5050.05] Dismissed See s 386. [9-5050.10] In relation to The use of the phrase “in relation to” does not require exclusivity or predominance, but rather a relationship, other than a tenuous or remote relationship: Birch v [page 989] Wesco Electrics (1966) Pty Ltd [2012] FMCA 5; BC201200007 at [84]. In Cook v ACI Operations Pty Ltd [2011] FWA 3715; BC201170666, DP Bartel was confronted with a compliant to the AHRC that sought a remedy in relation to conduct by the employer, leading up to but excluding the dismissal of the applicant. The Deputy President found at [20] that: While it is apparent that the dismissal was the catalyst for the initial complaint to the AHRC, the April amended complaint does not rely on the dismissal as a condition precedent to make the case that the employer engaged in discriminatory conduct and the remedy sought from the AHRC does not relate to the dismissal. [9-5050.15] Make An application that is lodged out of time is not made unless and until the Fair Work Commission allows a further period for the making of it. When an out of time “application for relief” is lodged the only function that the Fair Work Commission is empowered to perform is to determine whether time for the making of the application should be extended. An application that is lodged within time is, however, made at the time of filing: Shegog v ABC Transport Pty Ltd [2012] FWA 101 at [11]. The full bench confirmed this reasoning in Re ABC Transport Pty Ltd [2012] FWAFB 3212 (26 April 2012); (2012) 221 IR 9; BC201272673 at [11]:

The text of s 394(2) deals with two possible situations. First, an application for an order under Div 4 granting a remedy (an unfair dismissal remedy) can be made within 14 days after the dismissal took effect (an “in-time” application.) Secondly an application can be made more than 14 days after the dismissal took effect (an “out of time” application) — but only if a further period for the making of the application is allowed by FWA. If FWA has not allowed this further period, such an application cannot be made. As a matter of grammatical logic, no application has been made until allowed by FWA. The reasoning was applied to a general protections case in Reeve v Ramsay Health Care Ltd [2012] FMCA 120; BC201200838 at [69]: if the extension of time application is not brought, there is no application. The situation of an amended complaint was considered in Cook v ACI Operations Pty Ltd [2011] FWA 3715; BC201170666 at [15] by DP Bartel: I consider that the phrase “make an application or complaint” in s 725 has an ambulatory operation. That is, it is to be considered at the point in time when the operation of s 725 falls to be determined. Such an approach is consistent with the mischief intended to be cured by the subdivision and is consistent with the approach in s 732(3) of the Act, as discussed above. As such, it is the application and/or complaint as it stands at the time that the issue falls for determination that is in issue when considering the operation of s 725 of the Act. [9-5050.20] Must The use of “must” is indicative of an imperative command, either positive or negative, depending upon the word or words which follow it in the relevant statutory provision. It expresses necessity in the sense of an obligation or requirement: Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5; BC201200007 at [42]. [9-5050.25] Outline of section The statutory purpose for which s 725 of the Act was enacted was to prevent an applicant, having filed an application or complaint of one type in relation to their dismissal, from filing an application or complaint of another type in relation to their dismissal … The statutory purpose, put simply, is to limit an applicant to a single remedy: Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5; BC201200007 at [75]. [page 990] The effect of the Act is not that neither application is valid but that the applicant is forced to elect between both applications: Chacko v Compass Group (Australia) Pty Ltd [2010] FWA 7418 at [20]. See also Isles v Northern Territory Police, Fire and Emergency Services t/as NTPSES [2010] FWA 9147; BC201071221. *Editor’s note: Commentary to Section 725 prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________

[9-5070] Dismissal remedy bargaining order applications

726 (1) This section applies if: (a) a dismissal remedy bargaining order application has been made by, or on behalf of, the person in relation to the dismissal; and (b) the application has not: (i) been withdrawn by the person who made the application; or (ii) failed for want of jurisdiction. (2) A dismissal remedy bargaining order application is an application for a bargaining order made on the ground that the person was dismissed in contravention of the good faith bargaining requirement in paragraph 228(1) (e).

[9-5090]

General protections FWC applications

727 (1) This section applies if: (a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and (b) the application has not: (i) been withdrawn by the person who made the application; or (ii) failed for want of jurisdiction; or (iii) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful). [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 841, 842, opn 1 Jan 2013; Act 73 of 2013 s 3 and Sch 4A item 11, opn 1 Jan 2014]

(1A) This section also applies if: (a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and (b) the application has not: (i) been withdrawn by the person who made the application; or (ii) failed for want of jurisdiction; and (c) a certificate in relation to the dispute has been issued by the FWC

under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and (d) a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c). [subs (1A) insrt Act 73 of 2013 s 3 and Sch 4A item 12, opn 1 Jan 2014]

[page 991] (2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 843, 844, opn 1 Jan 2013] [s 727 am Act 174 of 2012 s 3 and Sch 9 item 840, opn 1 Jan 2013]

[9-5110]

General protections court applications

728 This section applies if: (a) a general protections court application has been made by, or on behalf of, the person in relation to the dismissal; and (b) the application has not: (i) been withdrawn by the person who made the application; or (ii) failed for want of jurisdiction. COMMENTARY TO SECTION 728*

Derivation …. Dismissal — s 728(a) …. General protections court application — s 728(a) …. In relation to — s 728(a) …. Made — s 728728(a) …. Want of jurisdiction — s 728(b)(ii) …. Withdrawn — s 728(b)(i) …. Outline of section ….

[9-5110.01] [9-5110.05] [9-5110.10] [9-5110.15] [9-5110.20] [9-5110.25] [9-5110.30] [9-5110.35]

[9-5110.01] Derivation The section is loosely derived from s 674 of the Workplace Relations Act. [9-5110.05] Dismissal — s 728(a) See s 386. [9-5110.10] General protections court application — s 728(a) See s 12. [9-5110.15] In relation to — s 728(a) See [9-5050.10]. [9-5110.20] Made — s 728728(a) See [9-5050.15]. [9-5110.25] Want of jurisdiction — s 728(b)(ii) The meaning of the phrase is subject to many of the difficulties that bedevil notions of jurisdictional error. A series of cases dealing with the phrase in a privative clause in South Australia were summarised in the case of Tsimpinos v Allianz (Australia) Workers’ Compensation (SA) Pty Ltd (2004) 88 SASR 311; 233 LSJS 300; [2004] SASC 124; BC200402488 at [28]: The expressions “excess of jurisdiction” and “want of jurisdiction” are well understood. The expressions are not terms of art. Speaking generally, it can be said that there is a “want of jurisdiction” when a court or tribunal does an act which is beyond its general power or authority and that there is an “excess of jurisdiction” when it does an act, the doing of which is within its general authority or power, but which was done in breach of the conditions which authorise the doing of acts of that class or nature… The Full Bench in Department of Family and Community Services v Jeffery Raymond Keith Stannard — PR911260 [2001] AIRC 1227 held at [28] that: In our view, it is clear from Dowsett J’s judgment that Mr Stannard’s application under the ADJR Act was dismissed, not for want of jurisdiction, but because he failed to make good any [page 992] ground which might have entitled him to an order in his favour. The statements made by Dowsett J that “the particulars fail to raise any proper basis for judicial review” and that the questions addressed by Mr Stannard’s counsel were “largely related to the merits of the matter rather than any proper basis for judicial review” do not, in our view, indicate that Mr Stannard’s application failed for want of jurisdiction… [9-5110.30] Withdrawn — s 728(b)(i) Cugura v Frankston City Council (2011) 206 IR 205; [2011] FMCA 195; BC201101569 at [36] states that: As defined in the Macquarie Dictionary the meaning of “withdrawn” is: (1) past participle of withdrawn; (2) shy, retiring or modest; (3) secluded, as a place and “withdraw” (1) to draw back or away, take back, remove; (2) to retract or recall; (3) to retire, retreat, go apart or away; (4) to retract a statement or expression; (5) Parl. Proc. to remove an amendment, motion etc from consideration. The Concise Oxford Dictionary reprinted 1990, 1991 at p 1408 defines “withdraw” past part. “withdrawn” as (1) pull or take aside or back; (2) discontinue, cancel, retract; (3) remove, take away; (4) take (money) out of an account; (5) retire or go away, move away or back (6) (as withdrawn adj.) abnormally shy and unsociable, mentally detached. The word “withdrawn” where it appears in ss 726–732 of the Act is to be read widely: Cutter v Torrens Road Community Child Care Assoc Inc [2012] QMC 7 at [28]. A dismissal by consent may constitute a withdrawal for the purposes of the section.

[9-5110.35] Outline of section The Explanatory Memorandum to the Fair Work Bill 2009 at paras 2710 and 2711 states that: In all cases the anti-double dipping provisions will not apply where the initial application has: been withdrawn; or failed for want of jurisdiction. This is intended to ensure that a person does not miss out on a remedy because they were unable to make a competent application for another remedy or where they have realised another remedy may be more appropriate than the remedy they initially sought. *Editor’s note: Commentary to s 728 prepared by Ian Latham BA (Hons)/LLB (ANU), Barrister.

____________________

[9-5130]

Unfair dismissal applications

729 (1) This section applies if: (a) an unfair dismissal application has been made by the person in relation to the dismissal; and (b) the application has not: (i) been withdrawn by the person who made the application; or (ii) failed for want of jurisdiction; or (iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 845, opn 1 Jan 2013]

(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.

[9-5150]

Unlawful termination FWC applications

730 (1) This section applies if: (a) an unlawful termination FWC application has been made by, or on behalf of, the person in relation to the dismissal; and [page 993] (b) the application has not:

(i) been withdrawn by the person who made the application; or (ii) failed for want of jurisdiction; or (iii) resulted in the issue of a certificate under paragraph 776(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful). [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 847, 848, opn 1 Jan 2013; Act 73 of 2013 s 3 and Sch 4A item 16, opn 1 Jan 2014]

(1A) This section also applies if: (a) an unlawful termination FWC application has been made by, or on behalf of, the person in relation to the dismissal; and (b) the application has not: (i) been withdrawn by the person who made the application; or (ii) failed for want of jurisdiction; and (c) a certificate in relation to the dispute has been issued by the FWC under paragraph 776(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and (d) a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 777(1)(b) and (c). [subs (1A) insrt Act 73 of 2013 s 3 and Sch 4A item 17, opn 1 Jan 2014]

(2) An unlawful termination FWC application is an application under section 773 for the FWC to deal with a dispute that relates to dismissal. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 849, 850, opn 1 Jan 2013] [s 730 am Act 174 of 2012 s 3 and Sch 9 item 846, opn 1 Jan 2013]

[9-5170]

Unlawful termination court applications

731 This section applies if: (a) an unlawful termination court application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not: (i) been withdrawn by the person who made the application; or (ii) failed for want of jurisdiction.

[9-5190] laws

Applications and complaints under other

732 (1) This section applies if: (a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and (b) the application or complaint has not: (i) been withdrawn by the person who made the application; or (ii) failed for want of jurisdiction. (2) An application or complaint under another law is an application or complaint made under: (a) a law of the Commonwealth (other than this Act); or (b) a law of a State or Territory. [page 994] (3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended. [subs (3) am Act 70 of 2009 s 3 and Sch 3, opn 1 Jan 2010] COMMENTARY TO SECTION 732*

Derivation …. Amendment of the complaint — s 732(3) …. In relation to — s 732(1)(a) …. Made by — s 732(a) …. Withdrawn — s 732(2)(a) …. Outline of section ….

[9-5190.01] [9-5190.05] [9-5190.10] [9-5190.15] [9-5190.20] [9-5190.25]

[9-5190.01] Derivation See [9-5050.01]. [9-5190.05] Amendment of the complaint — s 732(3) Section 732(3) is designed to prevent an applicant or complainant from circumventing the provisions of sub b by lodging an application or complaint under another law and later amending it to so that it relates to a dismissal: Cook v ACI Operations Pty Ltd [2011] FWA 3715; BC201170666 at [14]. [9-5190.10] In relation to — s 732(1)(a) See [9-5050.10]. [9-5190.15] Made by — s 732(a) See [9-5050.15]. [9-5190.20] Withdrawn — s 732(2)(a) See [9-5110.30]. [9-5190.25] Outline of section The effect of ss 725 and 732 is to ensure that only one application in relation to the dismissal can be entertained, that is, relevantly, an application under AHRC Act or an application under the FW Act: Railpro Services Pty Ltd v Flavel [2015] FCA 504; BC201504344 at [121]. *Editor’s note: Commentary to s 732 prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________

[9-5210] Dismissal does not include failure to provide benefits 733 For the purposes of this Subdivision, a reference to an application or complaint made in relation to a dismissal does not include a reference to an application or complaint made only in relation to failure by the employer concerned to provide a benefit to which the dismissed person is entitled as a result of the dismissal.

Subdivision C — General protections applications that do not relate to dismissal

[9-5350]

General rule

734 (1) A person must not make a general protections court application in relation to conduct that does not involve the dismissal of the person if: (a) an application or complaint under an anti-discrimination law has been made by, or on behalf of, the person in relation to the conduct; and (b) the application or complaint has not:

(i) been withdrawn by the person who made the application; or (ii) failed for want of jurisdiction. [page 995] (2) A person must not make an application or complaint under an antidiscrimination law in relation to conduct that does not involve the dismissal of the person if: (a) a general protections court application has been made by, or on behalf of, the person in relation to the conduct; and (b) the application has not: (i) been withdrawn by the person who made the application; or (ii) failed for want of jurisdiction.

PART 6-2 — DEALING WITH DISPUTES DIVISION 1 — INTRODUCTION

[9-5590]

Guide to this Part

735 This Part is about dealing with disputes between national system employees and their employers. Division 2 deals with the powers of the FWC and other persons to deal with a dispute if a modern award, enterprise agreement or contract of employment includes a term that provides for the FWC or the person to deal with the dispute. [Editor’s note: Section 735 of this legislation is reproduced in this format in line with the official version.] [s 735 am Act 174 of 2012 s 3 and Sch 9 item 851, opn 1 Jan 2013]

[9-5610]

Meanings of employee and employer

736 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). [s 736 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY TO SECTION 736*

Derivation …. National system employee — s 736 …. National system employer — s 736 …. TCF contract outworkers — s 736 Note …. This Part — s 736 …. This Part — s 736 ….

[9-5610.01] [9-5610.05] [9-5610.10] [9-5610.12] [9-5610.14] [9-5610.15]

[9-5610.01] Derivation The section is new. [9-5610.05] National system employee — s 736 See ss 12, 13, 30C. [9-5610.10] National system employer — s 736 See ss 12, 14, 30D. [9-5610.12] TCF contract outworkers — s 736 Note See s 789BB(2). [page 996] [9-5610.14] This Part — s 736 This Part is Pt 4-1. [9-5610.15] This Part — s 736 This Part is Pt 6-2. *Editor’s note: Commentary to s 736 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

DIVISION 2 — DEALING WITH DISPUTES Subdivision A — Model term about dealing with disputes

[9-5800]

Model term about dealing with disputes

737 The regulations must prescribe a model term for dealing with disputes for enterprise agreements. COMMENTARY TO SECTION 737*

The Regulations — s 737 …. Enterprise agreement — s 737 ….

[9-5800.01] [9-5800.05]

[9-5800.01] The Regulations — s 737 See Sch 6.1. [9-5800.05] Enterprise agreement — s 737 See s 12. *Editor’s note: Commentary to s 737 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

Subdivision B — Dealing with disputes

[9-5940]

Application of this Division

738 This Division applies if: (a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or (b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or (c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or (d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

[9-5960]

Disputes dealt with by the FWC

739 (1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 853, opn 1 Jan 2013]

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

[page 997] (a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or (b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter. Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)). [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 854, 855, opn 1 Jan 2013]

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 856, opn 1 Jan 2013]

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so. Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). [subs (4) am Act 174 of 2012 s 3 and Sch 9 items 857, 858, opn 1 Jan 2013]

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties. [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 859, opn 1 Jan 2013]

(6) The FWC may deal with a dispute only on application by a party to the dispute. [subs (6) am Act 174 of 2012 s 3 and Sch 9 item 860, opn 1 Jan 2013] [s 739 am Act 174 of 2012 s 3 and Sch 9 item 852, opn 1 Jan 2013] COMMENTARY TO SECTION 739*

Derivation …. Arbitrate — s 739(4) …. Conciliate — s 739(4) Note …. Employer — s 739(2) …. Enterprise agreement — s 739(2)(a); note …. Fair Work Instrument — s 739(5) …. FWC — s 739(1), (2), (2)(a), (b), Note, (3), (4), note, (5), (6) ….

[9-5960.01] [9-5960.05] [9-5960.10] [9-5960.15] [9-5960.20] [9-5960.25] [9-5960.30]

Mediate — s 739(4) …. Reasonable business grounds — s 739(2) …. Term — s 739(1), (2)(b), note, (3), (4) …. The dispute — s 739(2), (4) …. The term — s 739(3), (4) …. This Act — s 739(5) …. Outline of section ….

[9-5960.35] [9-5960.40] [9-5960.45] [9-5960.46] [9-5960.47] [9-5960.50] [9-5960.55]

[9-5960.01] Derivation The section is new. [9-5960.05] Arbitrate — s 739(4) Arbitration is not an essential ingredient of dispute settlement procedures: Re Woolworths Ltd (t/as Produce and Recycling Distribution Centre) [2010] FWAFB 1464; (2010) 192 IR 124 at [28]. [The Commission’s] arbitration functions are directed to preventing and settling industrial disputes not re-solved by amicable agreement and involve the making of binding awards which are not consensual in their nature: R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 51 ALR 469; 58 ALJR 127; 7 IR 201; BC8400542. The process was described in very broad terms by Isaacs J in Australian Railways Union v Victorian [page 998] Railways Commissioners (ARU case) (1930) 44 CLR 319; [1931] ALR 37; (1930) 4 ALJR 338; BC3000009 at 355: The essential principle of this system is, that the matter in dispute shall be referred, and that the decision of the referee shall be accepted. [Arbitration] is recognised as a form of adjudication in which an independent tribunal makes a binding and legally enforceable determination of matters in dispute: Wolski, Bobette — “The Model Dispute Resolution Procedure for Australian Workplace Agreements: A Dispute Systems Design Perspective” [1998] BondLawRw 2; (1998) 10(1) Bond Law Review 7. A finding as to whether jurisdiction exists is a necessary pre-requisite to arbitrating to settle an industrial dispute: Schweppes Australia Pty Ltd v United Voice (2012) 218 IR 251; [2012] FWA 643; BC201270538 at [39]. Section 739 does not operate such that dispute settlement procedures in an agreement can only confer jurisdiction on the tribunal to arbitrate in circumstances where the parties covered by the agreement have agreed to refer that particular dispute to arbitration. Parties may agree upon a dispute settlement procedure which provides that all disputes about matters arising under the agreement are resolved by arbitration, by the Tribunal: Cape Australia Holdings Pty Ltd t/as Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) (2012) 223 IR 17; [2012] FWAFB 3994; BC201274423 at [22]. [9-5960.10] Conciliate — s 739(4) Note Mediation and conciliation both suffer from definitional uncertainty, a problem which is compounded in industrial relations by the fact that neither procedure is defined in the Act (conciliation is not even defined in the Australian Constitution). The two terms are sometimes used interchangeably: Wolski, Bobette — “The Model Dispute Resolution Procedure for Australian Workplace Agreements: A Dispute Systems Design Perspective” [1998] BondLawRw 2; (1998) 10(1) Bond Law Review 7. [C]onciliation functions involve and are directed to assisting the

prevention or settlement of industrial disputes by “amicable agreement” between the prospective or actual parties to the particular dispute: The R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 51 ALR 469; 58 ALJR 127; 7 IR 201; BC8400542. Conciliators may provide the parties with recommendations for resolution of disputes. As the Full Bench held in Clermont Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FWCFB 3332 at [29] that: The meaning that should be ascribed to the word “conciliation” pursuant to ss 739 and 595 of the Act does not require a convoluted answer. It is to be given its long standing meaning in an industrial context. That meaning accords with the proposition found in Finance Sector Union of Australia and New Zealand Banking Group Limited in which the Full Bench of the Commission referred to recommendations as “a common feature of the conciliation process” and made the following observations: [32] We make it clear that in our view the making of a recommendation is often a useful tool in the conciliator’s armoury and can facilitate the parties reaching agreement. As the President of the South Australian Commission said in Re: Clerks Customs Agent (SA) Award: The prime charter course of the Commission is, in any proceedings before it under the statute, to attempt to effect conciliation by mediation between the parties and that is a process well known to all who appear in this jurisdiction. It is, in our view, quite proper, indeed quite normal, in the course of many if not most mediations, for the person attempting the mediation to make positive suggestions to the parties as to what might be a suitable basis for resolving the matter, indeed, if felt appropriate, expressing strong [page 999] views as to what might be a possible consequence, prima facie, of any arms length arbitration before the Commission. There is nothing improper about that. It happens every day of the week. [9-5960.15] Employer — s 739(2) See s 737. [9-5960.20] Enterprise agreement — s 739(2)(a); note See s 12. [9-5960.25] Fair Work Instrument — s 739(5) See s 12. [9-5960.30] FWC — s 739(1), (2), (2)(a), (b), Note, (3), (4), note, (5), (6) See s 12. [9-5960.35] Mediate — s 739(4) Mediation, which is essentially a form of assisted negotiation, tends to be interest-based in approach. It has been defined as a process aimed at producing a consensual settlement that accommodates the needs or interests of the parties: Wolski, Bobette — “The Model Dispute Resolution Procedure for Australian Workplace Agreements: A Dispute Systems Design Perspective” [1998] BondLawRw 2; (1998) 10(1) Bond Law Review 7. [9-5960.40] Reasonable business grounds — s 739(2) See s 65(5A). [9-5960.45] Term — s 739(1), (2)(b), note, (3), (4) Section 739(1) makes it plain that the phrase “the term” in s 739(3) and (4) is a reference to a term referred to in s 738. In the context of an enterprise agreement “the term” being referred to in s 739(3) and (4) is the dispute settlement procedure in the agreement: Cape Australia Holdings Pty Ltd t/as Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) (2012) 223 IR 17; 64 AILR 101-656; BC201274423 at

[20]. [9-5960.46] The dispute — s 739(2), (4) Section 739 does not operate such that dispute settlement procedures in an agreement can only confer jurisdiction on the tribunal to arbitrate in circumstances where the parties covered by the agreement have agreed to refer that particular dispute to arbitration. Parties may agree upon a dispute settlement procedure which provides that all disputes about matters arising under the agreement are resolved by arbitration, by the Tribunal: Cape Australia Holdings Pty Ltd t/as Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) (2012) 223 IR 17; [2012] FWAFB 3994; BC201274423 at [22]. [9-5960.47] The term — s 739(3), (4) Section 739(1) makes it plain that the phrase “the term” in ss 739(3) and (4) is a reference to a term referred to in s 738. In the context of an enterprise agreement “the term” being referred to in ss 739(3) and (4) is the dispute settlement procedure in the agreement: Cape Australia Holdings Pty Ltd t/as Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) (2012) 223 IR 17; [2012] FWAFB 3994; BC201274423 at [22]. [9-5960.50] This Act — s 739(5) See s 12. [9-5960.55] Outline of section The Explanatory Memorandum to the Fair Work Bill states at [2737] that: Under subcl 739(4) FWA can make a binding decision in relation to a dispute if, in accordance with a term in a modern award, enterprise agreement or contract, the parties have agreed to this, whether the term refers to arbitration, final determination, making an award or order or something similar. For example, a term of an enterprise agreement could authorise FWA to arbitrate or determine (however described) a dispute under that enterprise agreement, resulting in a binding determination. [page 1000] In Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645; 75 ALJR 670; [2001] HCA 16; BC200100869, the High Court held at [31] that: Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator’s powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator’s award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it. The Full Federal Court reached a similar conclusion in relation to the decision of a Full Bench hearing an appeal from the decision maker. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; BC201508307 at [58], the Court held that that the Full Bench’s powers on appeal will reflect the fact that the appeal is from a consent arbitration and is, itself, in the nature of an arbitration. The Court earlier held at [57] that: …there is much in the proposition that parties who choose to go to arbitration with FWC take that body as they find it. Such choice will be made with knowledge of the structure of that body and of the appellate function performed by the Full Bench. The reference of a dispute for resolution by FWC is for resolution by that body, and not by one part of it. It follows that if the parties intend that

there be no appeal pursuant to s 604, they should say so. Similarly, if it is intended that any appeal be other than by way of private arbitration, the parties should say so. See generally Jamie Darams “Dispute resolution terms in private agreements: is fair work commission private arbitrator?” (2016) 22(1) ELB 144. It is necessary for the Tribunal to ascertain the character of the dispute that is before it in order determine whether it has jurisdiction to deal with the dispute: Maritime Union Of Australia v Australian Plant Services Pty Ltd — PR908236 [2001] AIRC 898 at [57]. In Maritime Union of Australia, The v Skilled Group Ltd [2015] FWC 8312 at [34]–[36], Cambridge C dealt with many of the principles of construction of industrial instruments in holding that: The principles that are to apply to resolving questions of contested interpretation/construction of the terms contained in an Enterprise Agreement has been the subject of an authoritative Decision of a Full Bench of this Commission in the matter of The Australasian Meat Industry Employees Union v Golden Cockrell Pty Ltd (Golden Cockerel). At paragraph 41 of the Golden Cockerel Decision, the Full Bench set out the following principles that apply to the approach to resolving questions of contested interpretation/construction of terms of an Enterprise Agreement: From the foregoing, the following principles may be distilled: 1. The AI Act does not apply to the construction of an enterprise agreement made under the Act. 2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity. 3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists. 4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement. 5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement. [page 1001] 6.

7. 8.

9.

Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include: (a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; (b) notorious facts of which knowledge is to be presumed; (c) evidence of matters in common contemplation and constituting a common assumption. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose. Context might appear from: (a) the text of the agreement viewed as a whole; (b) the disputed provision’s place and arrangement in the agreement; (c) the legislative context under which the agreement was made and in which it operates. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified

objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement. 10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.” Further, in respect to resolving matters of contested construction, the question of the conduct of the parties in connection with the contested terms has been examined in the following extract from the Full Bench Decision in Essential Energy v Australian Municipal, Administrative, Clerical and Services Union and Others…: In addition, there is one well-established further principle relevant to the interpretation of industrial instruments, including enterprise agreements, which we consider to be relevant, namely that it is not permissible to take into account the conduct of par ties which occurs after an industrial instrument is made as an aid to interpret that industrial instrument. It is also relevant to refer to the paragraphs which immediately precede the extract quoted above from the Essential Energy Decision and which includes the often cited extract from a Judgement of Madgwick J in Kucks v CSR Ltd…: “But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.” The power of the Commission may be tempered by the doctrine of managerial prerogative as described in the XPT case: (1984) 295 CAR 188. As the Full Bench held in Lend Lease Project Management and Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FWCFB 1889: [26] The principle stated in the XPT Case was as follows: It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an [page 1002] employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable. [27] It may be accepted that the above principle is one which should be taken into account and given significant weight in the exercise of an arbitral discretion concerning whether the Commission should intervene in relation to a lawful business management decision by an employer. However, to elevate the XPT Case principle into an immutable rule applicable to any employer decision is to overstate the effect of the principle… Limitations also exist given the effect of ss 27 and 29 of the Act. As the Full Bench noted in Lend Lease at [36]: … to the extent that there is any inconsistency between an enterprise agreement and any State or

Territory law dealing with workers compensation or occupational health and safety, the State or Territory law prevails and the inconsistent provision of the enterprise agreement is rendered of no legal effect. *Editor’s note: Commentary on s 739 by Ian Latham BA(Hons)/LLB (ANU).

____________________

[9-5980] Dispute dealt with by persons other than the FWC 740 (1) This section applies if a term referred to in section 738 requires or allows a person other than the FWC to deal with a dispute. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 862, opn 1 Jan 2013]

(2) The person must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless: (a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the person dealing with the matter; or (b) a determination under the Public Service Act 1999 authorises the person to deal with the matter. Note: This does not prevent a person from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) If, in accordance with the term, the parties have agreed that the person may arbitrate (however described) the dispute, the person may do so. (4) Despite subsection (3), the person must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties. [s 740 am Act 174 of 2012 s 3 and Sch 9 item 861, opn 1 Jan 2013]

PART 6-3 — EXTENSION OF NATIONAL EMPLOYMENT STANDARDS ENTITLEMENTS DIVISION 1 — INTRODUCTION

[9-6220]

Guide to this Part

741 This Part contains Divisions that extend some National Employment Standards entitlements to nonnational system employees. [page 1003] Division 2 extends the entitlements to unpaid parental leave, and related entitlements. Division 3 extends the entitlements to notice of termination or payment in lieu of notice. [Editor’s note: Section 741 of this legislation is reproduced in this format in line with the official version.]

[9-6240]

Meanings of employee and employer

742 In this Part, employee and employer have their ordinary meanings. COMMENTARY TO SECTION 742*

Derivation …. Employee — s 742 …. Employer — s 742 ….

[9-6240.05] [9-6240.10] [9-6240.15]

[9-6240.05] Derivation The section is new. [9-6240.10] Employee — s 742 See ss 12, 15(1), 30E(1) and 30P(1). [9-6240.15] Employer — s 742 See ss 12, 15(2), 30E(2) and 30P(2). *Editors’ note: Commentary on s 742 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

DIVISION 2 — EXTENSION OF ENTITLEMENT TO UNPAID PARENTAL LEAVE AND RELATED ENTITLEMENTS Subdivision A — Main provisions

[9-6430]

Object of this Division

743 The object of this Division is to give effect, or further effect, to: (a) the ILO Convention (No. 156) concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities, done at Geneva on 23 June 1981 ([1991] ATS 7); and (b) the Workers with Family Responsibilities Recommendation, 1981 (Recommendation No. R165) which the General Conference of the ILO adopted on 23 June 1981; by providing for a system of unpaid parental leave and related entitlements, that will help men and women workers who have responsibilities in relation to their dependent children: (c) to prepare for, enter, participate in or advance in economic activity; and (d) to reconcile their employment and family responsibilities. Note 1: In 2009, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au). Note 2: In 2009, the text of a Recommendation adopted by the General Conference of the ILO was accessible through the ILO website (www.ilo.org).

[page 1004]

[9-6450] Extending the entitlement to unpaid parental leave and related entitlements 744 Extension of Division 5 of Part 2-2 and related provisions (1) The provisions of Division 5 of Part 2-2, and the related provisions identified in subsection (2), apply in relation to a non-national system employee as if: (a) any reference in the provisions to a national system employee also included a reference to a non-national system employee; and (b) any reference in the provisions to a national system employer also included a reference to a non-national system employer. Note 1: Division 5 of Part 2-2 provides for unpaid parental leave and related entitlements. Note 2: This subsection applies to express references to national system employees and national system

employers, and to references that are to national system employees and national system employers because of section 60 or another similar section.

(2) The related provisions are the following, so far as they apply in relation to Division 5 of Part 2-2 as it applies because of subsection (1): (a) the provisions of Divisions 2 and 13 of Part 2-2; (b) any other provisions of this Act prescribed by the regulations; (c) any provisions of this Act that define expressions that are used (directly or indirectly) in provisions of Division 5 of Part 2-2, or in provisions referred to in paragraph (a) or (b) of this subsection. Modifications are set out in Subdivision B (3) The extended parental leave provisions have effect subject to the modifications provided for in Subdivision B. The extended parental leave provisions are the provisions of Division 5 of Part 2-2, and the related provisions identified in subsection (2) of this section, as they apply because of this section. Regulations made for the purpose of provisions (4) Subsection (1) also applies to any regulations made for the purpose of a provision to which that subsection applies, other than a provision that is modified by Subdivision B.

[9-6470] Contravening the extended parental leave provisions 745 (1) A non-national system employer must not contravene the extended parental leave provisions. Note 1: This subsection is a civil remedy provision (see Part 4-1). Note 2: The extended parental leave provisions also affect national system employers (including as section 44 applies to them) and their national system employees. This is because the provisions may result in a national system employee, and a non-national system employee, being an employee couple.

(2) However, an order cannot be made under Division 2 of Part 4-1 in relation to a contravention (or alleged contravention) of subsection 76(4). Note: Subsection 76(4) states that an employer may refuse an application to extend unpaid parental leave only on reasonable business grounds.

[page 1005]

[9-6490] References to the National Employment Standards include extended parental leave provisions 746 A reference in this Act, or another law of the Commonwealth, to the National Employment Standards includes a reference to the extended parental leave provisions.

[9-6510] State and Territory laws that are not excluded 747 This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to the birth or adoption of children, to the extent that those laws: (a) apply to non-national system employees; and (b) provide entitlements for those employees that are more beneficial than the entitlements under the extended parental leave provisions.

Subdivision B — Modifications of the extended parental leave provisions

[9-6650] Non-national system employees are not award/agreement free employees 748 A non-national system employee is not an award/agreement free employee for the purpose of the extended parental leave provisions.

[9-6670] Modification of meaning of base rate of pay for pieceworkers 749 Section 16 has effect as if the following paragraph were added at the end of subsection 16(2):

(d) the employee is a non-national system employee, and the regulations prescribe, or provide for the determination of, the employee’s base rate of pay for the purposes of the extended parental leave provisions.

[9-6690] Modification of meaning of full rate of pay for pieceworkers 750 Section 18 has effect as if the following paragraph were added at the end of subsection 18(2): (d) the employee is a non-national system employee, and the regulations prescribe, or provide for the determination of, the employee’s full rate of pay for the purposes of the extended parental leave provisions.

[9-6710] Modification of meaning of ordinary hours of work — if determined by State industrial instrument 751 Section 20 has effect as if the following subsection were inserted before subsection 20(1): (1A) If a State industrial instrument applies to a non-national system employee and specifies, or provides for the determination of, the employee’s ordinary hours of work, the employee’s ordinary hours of work are as specified in, or determined in accordance with, that instrument. [page 1006]

[9-6730] Modification of meaning of ordinary hours of work — if not determined by State industrial instrument 752 Section 20 has effect as if references in subsections 20(1), (2) and (3)

to an award/agreement free employee also included references to a nonnational system employee to whom either of the following paragraphs applies: (a) a State industrial instrument applies to the employee, but it does not specify, or provide for the determination of, the employee’s ordinary hours of work; (b) no State industrial instrument applies to the employee.

[9-6750] Modification of meaning of ordinary hours of work — regulations may prescribe usual weekly hours 753 Section 20 has effect as if the following subsection were added at the end: (5) For a non-national system employee: (a) who is not a full-time employee; and (b) who does not have usual weekly hours of work; and (c) to whom either of the following subparagraphs applies: (i) a State industrial instrument applies to the employee, but it does not specify, or provide for the determination of, the employee’s ordinary hours of work; (ii) no State industrial instrument applies to the employee; the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of the extended parental leave provisions.

[9-6770]

Modification of meaning of pieceworker

754 Section 21 has effect as if the following paragraph were added at the end of subsection 21(1): (d) a non-national system employee who is in a class of employees prescribed by the regulations as pieceworkers for the purpose of the extended parental leave provisions.

[9-6790] Modification of provision about interaction with paid leave 755 Section 79 applies as if subsections 79(2) and (3) were omitted.

[9-6810] Modification of provision about relationship between National Employment Standards and agreements 756 Section 128 has effect as if references to an award/agreement free employee also included references to a non-national system employee.

[9-6830] Modification of power to make regulations 757 Section 129 has effect as if the following subsection were added at the end: (2) The regulations may: (a) permit non-national system employers and non-national system employees to agree on matters that would or might otherwise be contrary to an extended parental leave provision; and [page 1007] (b) prohibit such employers and employees from agreeing on matters, or prohibit such employers from making requirements of such employees, that would or might otherwise be permitted by an extended parental leave provision.

DIVISION 3 — EXTENSION OF ENTITLEMENT TO NOTICE OF TERMINATION OR PAYMENT IN LIEU OF NOTICE Subdivision A — Main provisions

[9-7020]

Object of this Division

758 The object of this Division is to give effect, or further effect, to: (a) the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer, done at Geneva on 22 June 1982 ([1994] ATS 4); and (b) the Termination of Employment Recommendation, 1982 (Recommendation No. R166) which the General Conference of the ILO adopted on 22 June 1982. Note 1: In 2009, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au). Note 2: In 2009, the text of a Recommendation adopted by the General Conference of the ILO was accessible through the ILO website (www.ilo.org).

[9-7040] Extending entitlement to notice of termination or payment in lieu of notice 759 Extension of Subdivision A of Division 11 of Part 2-2 and related provisions (1) The provisions of Subdivision A of Division 11 of Part 2-2, and the related provisions identified in subsection (2), apply in relation to a nonnational system employee as if: (a) any reference in the provisions to a national system employee also included a reference to a non-national system employee; and (b) any reference in the provisions to a national system employer also included a reference to a non-national system employer. Note 1: Subdivision A of Division 11 of Part 2-2 provides for notice of termination or payment in lieu of notice. Note 2: This subsection applies to express references to national system employees and national system employers, and to references that are to national system employees and national system employers because of section 60 or another similar section.

(2) The related provisions are the following, so far as they apply in relation to Subdivision A of Division 11 of Part 2-2 as it applies because of subsection (1): (a) the provisions of Division 2, Subdivision C of Division 11, and Division 13, of Part 2-2;

(b) any other provisions of this Act prescribed by the regulations; (c) any provisions of this Act that define expressions that are used (directly or indirectly) in provisions of Subdivision A of Division 11 of Part 2-2, or in provisions referred to in paragraph (a) or (b) of this subsection. Modifications are set out in Subdivision B (3) The extended notice of termination provisions have effect subject to the modifications provided for in Subdivision B. The extended notice of termination [page 1008] provisions are the provisions of Subdivision A of Division 11 of Part 2-2, and the related provisions identified in subsection (2) of this section, as they apply because of this section. Regulations made for the purpose of provisions (4) Subsection (1) also applies to any regulations made for the purpose of a provision to which that subsection applies, other than a provision that is modified by Subdivision B.

[9-7060] Contravening the extended notice of termination provisions 760 A non-national system employer must not contravene the extended notice of termination provisions. Note: This section is a civil remedy provision (see Part 4-1).

[9-7080] References to the National Employment Standards include extended notice of termination provisions 761 A reference in this Act, or another law of the Commonwealth, to the

National Employment Standards includes a reference to the extended notice of termination provisions.

[9-7100] State and Territory laws that are not excluded 762 This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements relating to notice of termination of employment (or payment in lieu of notice), to the extent that those laws: (a) apply to non-national system employees; and (b) provide entitlements for those employees that are more beneficial than the entitlements under the extended notice of termination provisions.

Subdivision B — Modifications of the extended notice of termination provisions

[9-7240] Non-national system employees are not award/agreement free employees 763 A non-national system employee is not an award/agreement free employee for the purpose of the extended notice of termination provisions.

[9-7260] Modification of meaning of full rate of pay for pieceworkers 764 Section 18 has effect as if the following paragraph were added at the end of subsection 18(2): (d) the employee is a non-national system employee, and the regulations prescribe, or provide for the determination of, the employee’s full rate of pay for the purposes of the extended notice of termination provisions. [page 1009]

[9-7280]

Modification of meaning of pieceworker

765 Section 21 has effect as if the following paragraph were added at the end of subsection 21(1): (d) a non-national system employee who is in a class of employees prescribed by the regulations as pieceworkers for the purpose of the extended notice of termination provisions.

[9-7300] Modification of provision about notice of termination by employee 766 Section 118 has effect as if the following subsection were added at the end: (2) A State industrial instrument may include terms specifying the period of notice a non-national system employee must give in order to terminate his or her employment.

[9-7320] Modification of provision about relationship between National Employment Standards and agreements 767 Section 128 has effect as if references to an award/agreement free employee also included references to a non-national system employee.

[9-7340] Modification of power to make regulations 768 Section 129 has effect as if the following subsection were added at the end: (2) The regulations may: (a) permit non-national system employers and non-national system employees to agree on matters that would or might otherwise be contrary to an extended notice of termination provision; and (b) prohibit such employers and employees from agreeing on matters, or prohibit such employers from making requirements of such employees, that would or might otherwise be permitted by an

extended notice of termination provision.

PART 6-3A — TRANSFER OF BUSINESS FROM A STATE PUBLIC SECTOR EMPLOYER [Pt 6-3A insrt Act 175 of 2012 s 3 and Sch 1 item 1, opn 5 Dec 2012]

DIVISION 1 — INTRODUCTION

[9-7370]

Guide to this Part

768AA This Part provides for the transfer of certain terms and conditions of employment when there is a transfer of business from a non-national system employer that is a State public sector employer (called “the old State employer”) to a national system employer (called “the new employer”). A transfer of business involves the transfer of employment of one or more employees of the old State employer to the new employer. Each of those employees is a “transferring employee”. [page 1010] If there is a transfer of business, then this Part provides for certain terms and conditions of employment with the old State employer to be transferred to the employment of the transferring employee with the new employer. This Part achieves the transfer of those terms and conditions by creating a new instrument — a “copied State instrument” — for each transferring employee. The new instrument is a federal instrument and is enforceable under this Act.

[9-7372]

Meanings of employee and employer

768AB In this Part, employee and employer have their ordinary meanings. COMMENTARY TO SECTION 768AB*

Derivation …. Employee — 768AB …. Employer — 768AB …. [9-7372.01] Derivation The section is new. [9-7372.05] Employee — 768AB See ss 12, 15(1), 30E(1) and 30P(1).

[9-7372.01] [9-7372.05] [9-7372.10]

[9-7372.10] Employer — 768AB See ss 12, 15(2), 30E(2) and 30P(2). *Editor’s note: Commentary on s 768AB prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

DIVISION 2 — COPYING TERMS OF STATE INSTRUMENTS WHEN THERE IS A TRANSFER OF BUSINESS

[9-7380]

What this Division is about

768AC This Division sets out when there is a transfer of business from the old State employer to the new employer.

[9-7382]

When does a transfer of business occur?

768AD (1) When there is a transfer of business There is a transfer of business from a non-national system employer that is a State public sector employer of a State (the old State employer) to a national system employer (the new employer) if the following requirements are satisfied: (a) the employment of a person who is a State public sector employee of the old State employer has terminated; (b) within 3 months after the termination, the person becomes employed by the new employer; (c) the work (the transferring work) the person performs for the new employer is the same, or substantially the same, as the work the person performed for the old State employer; (d) there is a connection between the old State employer and the new employer as described in subsection (2), (3) or (4). [page 1011] (2) Transfer of assets from old State employer to new employer There is a connection between the old State employer and the new employer if, in

accordance with an arrangement between: (a) the old State employer or an associated entity of the old State employer; and (b) the new employer or an associated entity of the new employer; the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible): (c) that the old State employer, or the associated entity of the old State employer, owned or had the beneficial use of; and (d) that relate to, or are used in connection with, the transferring work. (3) Old State employer outsources work to new employer There is a connection between the old State employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old State employer, or an associated entity of the old State employer, has outsourced the transferring work to the new employer or an associated entity of the new employer. (4) New employer is an associated entity of old employer There is a connection between the old State employer and the new employer if the new employer is an associated entity of the old State employer when the transferring employee becomes employed by the new employer.

[9-7384] Meaning of transferring employee, termination time and re-employment time 768AE (1) The person referred to in paragraph 768AD(1)(a) is a transferring employee in relation to the transfer of business. (2) The termination time of a transferring employee is the start of the day the employment of the employee is terminated by the old State employer. (3) The re-employment time of a transferring employee is the start of the day the employee becomes employed by the new employer.

DIVISION 3 — COPIED STATE INSTRUMENTS Subdivision A — Guide to this Division

[9-7392]

What this Division is about

768AF If there is a transfer of business, then this Division provides for certain terms and conditions of a transferring employee’s employment with the old State employer to be transferred to the employment with the new employer. The transfer of those terms and conditions is achieved by creating a new instrument — called a “copied State instrument” — for the transferring employee. The new instrument is a federal instrument that is enforceable under this Act. There are 2 types of copied State instruments — a copied State award and a copied State employment agreement. [page 1012] A copied State award copies the terms of a State award that covered the transferring employee and the old State employer immediately before the termination of the employee’s employment with the old State employer. A copied State employment agreement copies the terms of a State employment agreement that covered the transferring employee and the old State employer immediately before the termination of the employee’s employment with the old State employer.

Subdivision B — Copied State instruments

[9-7394]

Contravening a copied State instrument

768AG A person must not contravene a term of a copied State instrument for a transferring employee that applies to the person. Note 1: This section is a civil remedy provision (see Part 4-1). Note 2: For when a copied State instrument for a transferring employee applies to a person, see section 768AM.

[9-7396]

What is a copied State instrument?

768AH A copied State instrument for a transferring employee is the following: (a) a copied State award for the employee; (b) a copied State employment agreement for the employee.

[9-7398]

What is a copied State award?

768AI (1) If, immediately before the termination time of a transferring employee: (a) a State award (the original State award) was in operation under the State industrial law of the State; and (b) the original State award covered (however described in the original State award or a relevant law of the State) the old State employer and the transferring employee (whether or not the original State award also covered other persons); then a copied State award for the transferring employee is taken to come into operation immediately after the termination time. Note 1: Even though a copied State award comes into operation in relation to the transferring employee, it will not be enforceable by the employee or another person (for example, the new employer) unless and until it applies to the employee or other person. In particular, it will not apply to the employee or new employer before the employee becomes employed by the new employer. For when the copied State award applies to a person, see section 768AM. Note 2: A copied State employment agreement for the transferring employee may also come into operation immediately after the termination time, see subsection 768AK(1). If it does, then the State’s interaction rules that were in force immediately before the termination time apply for the purposes of working out the interaction between the copied State award and the copied State employment agreement (see item 11 of Schedule 3A to the Transitional Act as that item applies in a modified way because of section 768BY).

(2) The copied State award is taken to include the same terms as were in the original State award immediately before the termination time. Note: The State’s instrument content rules that were in force immediately before the termination time apply to the copied State award (see item 10 of Schedule 3A to the Transitional Act as that item applies in a modified way because of section 768BY).

[page 1013] (3) If the terms of the original State award were affected by an order, a decision or a determination of a State industrial body or a court of the State that was in operation immediately before the termination time, the terms of the copied State award are taken to be similarly affected by the terms of that order, decision or determination.

[9-7400]

What is a State award?

768AJ (1) A State award is an instrument in relation to which the following conditions are satisfied: (a) the instrument regulates terms and conditions of employment; (b) the instrument was made under a State industrial law by a State industrial body; (c) the instrument is referred to in that law as an award. (2) However, the regulations may provide that an instrument of a specified kind: (a) is a State award; or (b) is not a State award.

[9-7402] What is a copied State employment agreement? 768AK (1) If, immediately before the termination time of a transferring employee: (a) a State employment agreement (the original State agreement) was in operation under a State industrial law of the State; and (b) the original State agreement covered (however described in the original State agreement or a relevant law of the State) the old State employer and the transferring employee (whether or not the original State agreement also covered other persons); then a copied State employment agreement for the transferring employee is taken to come into operation immediately after the termination time. Note 1: Even though a copied State employment agreement comes into operation for the transferring employee, it will not be enforceable by the employee or another person (for example, the new employer) unless and until it applies to the employee or other person. In particular, it will not apply to the employee or new employer before the employee becomes employed by the new employer. For when the copied State employment agreement applies to a person, see section 768AM. Note 2: A copied State award for the transferring employee may also come into operation immediately after the termination time, see subsection 768AI(1). If it does, then the State’s interaction rules that were in force immediately before the termination time apply for the purposes of working out the interaction between the copied State employment agreement and the copied State award (see item 11 of Schedule 3A to the Transitional Act as that item applies in a modified way because of section 768BY).

(2) The copied State employment agreement is taken to include the same terms as were in the original State agreement immediately before the termination time. Note: The State’s instrument content rules that were in force immediately before the termination time apply to the copied State employment agreement (see item 10 of Schedule 3A to the Transitional Act as that item applies in a modified way because of section 768BY).

(3) If the terms of the original State employment agreement were affected by an order, a decision or a determination of a State industrial body or a court of the State that was in operation immediately before the termination time, the terms of the copied State employment agreement are taken to be similarly affected by the terms of that order, decision or determination. [page 1014] (4) If the original State agreement is a collective State employment agreement, the copied State employment agreement is a copied State collective employment agreement. (5) If the original State agreement is an individual State employment agreement, the copied State employment agreement is a copied State individual employment agreement.

[9-7404]

What is a State employment agreement?

768AL (1) A State employment agreement is: (a) an agreement in relation to which the following conditions are satisfied: (i) the agreement is between a non-national system employer and one or more of the employees of the employer, or between a non-national system employer and an association of employees registered under a State industrial law; (ii) the agreement determines terms and conditions of employment of one or more employees of the employer; (iii) the agreement was made under a State industrial law; or (b) a determination in relation to which the following conditions are

satisfied: (i) the determination determines terms and conditions of employment; (ii) the determination was made under a State industrial law by a State industrial body; (iii) the determination was made in a situation in which parties who were negotiating for the making of an agreement of a kind described in paragraph (a) had not been able to reach an agreement; (iv) the purpose of the determination was to resolve the matters that were at issue in those negotiations. (2) However, the regulations may provide that an instrument of a specified kind: (a) is a State employment agreement; or (b) is not a State employment agreement. (3) A State employment agreement is a State collective employment agreement unless: (a) it is an agreement of a kind that, under the relevant State industrial law, could only be entered into by a single employee and a single employer; or (b) the agreement is of a kind prescribed by the regulations. (4) A State employment agreement referred to in paragraph (3)(a) or (b) is a State individual employment agreement.

[9-7406] When does a copied State instrument apply to a person? 768AM (1) Transferring employee and organisations A copied State instrument for a transferring employee applies to the transferring employee or an organisation if: (a) the instrument covers the employee or organisation; and (b) the instrument is in operation; and (c) no other provision of this Act provides, or has the effect, that the instrument does not apply to the employee or organisation; and [page 1015] (d) immediately before the employee’s termination time, the employee or organisation would have been: (i) required by the law of the State to comply with terms of the original State award or original State agreement for the instrument; or (ii) entitled under the law of the State to enforce terms of the original State award or original State agreement for the instrument. (2) New employer and other employers A copied State instrument for a transferring employee applies to an employer (whether the new employer or another employer) if: (a) the instrument covers the employer; and (b) the instrument is in operation; and (c) no other provision of this Act provides, or has the effect, that the instrument does not apply to the employer; and (d) immediately before the employee’s termination time, the old State employer would have been: (i) required by the law of the State to comply with terms of the

original State award or original State agreement for the instrument; or (ii) entitled under the law of the State to enforce terms of the original State award or original State agreement for the instrument. Note: This subsection may operate in relation to an employer that is not the new employer in the situation where there has been a later transfer of business by the new employer (see Part 2-8).

(3) Other circumstances when instrument applies A copied State instrument for a transferring employee also applies to a person if an FWC order made under a provision of this Act provides, or has the effect, that the instrument applies to the person. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 1339, opn 1 Jan 2013]

(4) Instrument only applies in relation to transferring work A reference in this Act to a copied State instrument for a transferring employee applying to the employee is a reference to the instrument applying to the employee in relation to the transferring work of the employee.

[9-7408] When does a copied State instrument cover a person? 768AN (1) Transferring employee and new employer A copied State instrument for a transferring employee covers the employee and the new employer in relation to the transferring work from the employee’s reemployment time. (2) Employee organisation A copied State instrument for a transferring employee covers an employee organisation in relation to the employee if: (a) the instrument covers the employee because of subsection (1); and (b) immediately before the employee’s termination time, the original State award or original State agreement for the instrument covered (however described in the original State award or original State agreement or in a relevant law of the State) the organisation in relation to the employee. (3) Employer organisation A copied State instrument for a transferring employee covers an employer organisation in relation to the new employer if: (a) the instrument covers the new employer because of subsection (1);

and [page 1016] (b) immediately before the employee’s termination time, the original State award or original State agreement for the instrument covered (however described in the original State award or original State agreement or in a relevant law of the State) the organisation in relation to the old State employer. (4) Other circumstances when a person is covered A copied State instrument for a transferring employee also covers a person if any of the following provides, or has the effect, that the instrument covers the person: (a) a provision of this Act or of the Registered Organisations Act; (b) an FWC order made under a provision of this Act; (c) an order of a court. Example: The FWC may make a consolidation order specifying that the instrument covers a person specified in the order (see subsections 768BE(1) and 768BH(1)). [subs (4) am Act 174 of 2012 s 3 and Sch 9 items 1340, 1341, opn 1 Jan 2013]

(5) Circumstances when a person is not covered Despite subsections (1), (2), (3) and (4), a copied State instrument for a transferring employee does not cover a person if any of the following provides, or has the effect, that the instrument does not cover the person: (a) a provision of this Act; (b) an FWC order made under a provision of this Act; (c) an order of a court. Example: If, after the transferring employee’s re-employment time, an enterprise agreement starts to cover the employee, subsection 768AU(2) provides that a copied State instrument for the employee ceases to cover the employee. [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 1342, opn 1 Jan 2013]

(6) Despite subsections (1), (2), (3) and (4), a copied State instrument for a

transferring employee that has ceased to operate does not cover a person. (7) Covered only in relation to transferring work A reference to a copied State instrument for a transferring employee covering the employee is a reference to the instrument covering the employee in relation to the transferring work of the employee.

[9-7410] When is a copied State instrument in operation? 768AO (1) When instrument comes into operation A copied State instrument for a transferring employee comes into operation immediately after the employee’s termination time. (2) When copied State award ceases to operate A copied State award for a transferring employee ceases to operate at the following time: (a) unless paragraph (b) applies — the end of the period (the default period) that is 5 years or such longer period as is prescribed by the regulations, starting on the day the employee’s termination time occurred; (b) if the regulations allow the FWC to make an order to extend the period of operation of a copied State award for a transferring employee and, in [page 1017] accordance with those regulations, the FWC makes an order that the award operates for a period that is longer than the default period — the end of that period. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 1343, opn 1 Jan 2013]

(3) The regulations may: (a) prescribe circumstances in which the FWC may make an order for the purposes of paragraph (2)(b); and (b) prescribe a maximum period that the order may specify; and (c) otherwise make provision in relation to the making of the order.

[subs (3) am Act 174 of 2012 s 3 and Sch 9 item 1343, opn 1 Jan 2013]

(4) When copied State agreement ceases to operate A copied State employment agreement for a transferring employee ceases to operate when it is terminated, which may happen before or after the nominal expiry date of the agreement. Note 1: See section 768AY for how the copied State employment agreement can be terminated. Note 2: If, after the transferring employee’s re-employment time with the new employer, an enterprise agreement is made that covers the employee and the new employer, then the copied State employment agreement will cease to cover the employee and the new employer and will never cover them again, see section 768AU.

(5) The nominal expiry date of a copied State employment agreement for a transferring employee is: (a) the day the original State agreement would nominally have expired under the State industrial law of the State; or (b) if that day falls after the end of 4 years beginning on the day the employee’s termination time occurs — the last day of that 4-year period. (6) Once instrument ceases operation, can never operate again A copied State instrument for a transferring employee that has ceased to operate can never operate again.

DIVISION 4 — INTERACTION BETWEEN COPIED STATE INSTRUMENTS AND THE NES, MODERN AWARDS AND ENTERPRISE AGREEMENTS Subdivision A — Guide to this Division

[9-7418]

What this Division is about

768AP This Division provides for how copied State instruments interact with the National Employment Standards, modern awards and enterprise agreements.

Subdivision B — Interaction with the NES

[9-7420] Interaction between the NES and a copied State instrument 768AQ To the extent that a term of a copied State instrument for a transferring employee is detrimental to the employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the instrument is of no effect. [page 1018]

[9-7422] Provisions of the NES that allow instruments to contain particular kinds of terms 768AR (1) Application of particular provisions of the NES The following provisions have effect, on and after the re-employment time of a transferring employee, as if a reference to a modern award or an enterprise agreement included a reference to a copied State instrument for the transferring employee: (a) section 63 (which allows terms dealing with averaging of hours of work); (b) section 93 (which allows terms dealing with cashing out and taking paid annual leave); (c) section 101 (which allows terms dealing with cashing out paid personal/carer’s leave); (d) subsection 107(5) (which allows terms dealing with evidence requirements for paid personal/carer’s leave etc); (e) subsection 115(3) (which allows terms dealing with substitution of public holidays); (f) section 118 (which allows terms dealing with an employee giving notice to terminate his or her employment); (g) subsections 121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section 119 does not apply);

(h) section 126 (which allows terms providing for school-based apprentices and trainees to be paid loadings in lieu). (2) Terms about paid annual leave and personal/carer’s leave If a copied State instrument for a transferring employee: (a) includes terms referred to in subsection 93(1) but the terms do not include the requirements referred to in subsection 93(2); or (b) includes terms referred to in subsection 101(1) but the terms do not include the requirements referred to in subsection 101(2); then the instrument is taken to include terms that include the requirements. (3) Shiftworker annual leave entitlement If a copied State instrument for a transferring employee applies to the employee, then subsections 87(3) to (5) have effect, on and after the employee’s re-employment time, in the same way as they apply to an award/agreement free employee. Note: If the transferring employee qualifies for the shiftworker annual leave entitlement under those subsections, the employee will be entitled to 5 (rather than 4) weeks of paid annual leave.

Subdivision C — Interaction with modern awards

[9-7424]

Modern awards and copied State awards

768AS (1) While a copied State award for a transferring employee: (a) covers the employee, or an employer (whether the new employer or another national system employer) or other person in relation to the employee; and (b) is in operation; a modern award does not cover the employee, or the employer or other person in relation to the employee. [page 1019] Note 1: When the copied State award for a transferring employee ceases to cover the employee, a modern award will start to cover the employee, or an employer or other person in relation to the employee. Note 2: This subsection may operate in relation to an employer that is not the new employer in the situation where there has been a later transfer of business by the new employer (see Part 2-8).

(2) Subsection (1) does not apply for the purposes of section 193 (which is about the better off overall test for enterprise agreements). Note: For the purposes of determining whether an enterprise agreement that covers a transferring employee passes the better off overall test, subsection (2) allows the enterprise agreement to be compared against a modern award that covers the employee.

(3) This section has effect subject to any FWC order about coverage under subsection 768BA(1). [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 1344, opn 1 Jan 2013]

[9-7426] Modern awards and copied State employment agreements 768AT (1) Copied State collective employment agreements If a copied State collective employment agreement for a transferring employee and a modern award both apply: (a) to the employee; or (b) to an employer (whether the new employer or another national system employer) or another person in relation to the employee; then the copied State collective employment agreement for the employee prevails over the modern award, to the extent of any inconsistency. Note 1: This subsection has effect subject to item 17 of Schedule 9 to the Transitional Act as that item applies in a modified way because of section 768BY. That item, as modified, requires that the base rate of pay under the copied State employment agreement must not be less than the modern award rate. Note 2: This subsection may operate in relation to an employer that is not the new employer in the situation where there has been a later transfer of business by the new employer (see Part 2-8).

(2) Copied State individual employment agreements While a copied State individual employment agreement for a transferring employee applies: (a) to the employee; or (b) to an employer (whether the new employer or another national system employer) or another person in relation to the employee; a modern award does not apply to the employee, or to the employer or other person in relation to the employee. Note 1: However, a modern award can cover the transferring employee while the copied State individual employment agreement applies. Note 2: This subsection has effect subject to item 17 of Schedule 9 to the Transitional Act as that item applies in a modified way because of section 768BY. That item, as modified, requires that the base

rate of pay under the copied State employment agreement must not be less than the modern award rate. Note 3: This subsection may operate in relation to an employer that is not the new employer in the situation where there has been a later transfer of business by the new employer (see Part 2-8).

[page 1020] (3) FWC coverage orders This section has effect subject to any FWC order about coverage under subsection 768BA(1). [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 1345, 1346, opn 1 Jan 2013]

Subdivision D — Interaction with enterprise agreements

[9-7428] Enterprise agreements and copied State instruments 768AU (1) While a copied State instrument for a transferring employee covers the employee and the new employer in relation to the transferring work, an enterprise agreement that covers the new employer at the employee’s re-employment time does not cover the employee in relation to that work. Note 1: The fact that a copied State collective employment agreement for a transferring employee covers the employee does not prevent the employee and the new employer from replacing that agreement at any time with an enterprise agreement, regardless of whether the employee’s copied State collective employment agreement has passed its nominal expiry date. Note 2: Industrial action must not be taken before the nominal expiry date of a copied State collective employment agreement for a transferring employee (see item 4 of Schedule 13 to the Transitional Act as that item applies in a modified way because of section 768BY).

(2) However, if after the re-employment time, another enterprise agreement starts to cover the employee and the new employer in relation to the transferring work, then the copied State instrument for the employee ceases to cover the employee and the new employer and can never cover them again. (3) This section has effect subject to any FWC order about coverage under subsection 768BA(1). [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 1346, opn 1 Jan 2013]

DIVISION 5 — VARIATION AND TERMINATION OF COPIED STATE INSTRUMENTS Subdivision A — Guide to this Division

[9-7436]

What this Division is about

768AV This Division sets out when a copied State instrument may be varied or terminated.

Subdivision B — Variation of copied State instruments

[9-7438]

Variation in limited circumstances

768AW A copied State instrument for a transferring employee cannot be varied except under: (a) section 768AX; or (b) item 20 of Schedule 3A to the Transitional Act (which deals with variation of discriminatory instruments) as that item has effect because of section 768BY; or [page 1021] (c) item 20 of Schedule 9 to the Transitional Act (which deals with variation of instruments in annual wage reviews) as that item has effect because of section 768BY; or (d) Division 4 of Part 3 of Schedule 11 to the Transitional Act (which deals with transfer of business) as that Division has effect because of section 768BY.

[9-7440]

Variation of copied State instruments

768AX (1A) Application of this section This section applies if there is, or is likely to be, a transfer of business.

(1) Variations that may be made The FWC may vary a copied State instrument for a transferring employee: (a) to remove terms that the FWC is satisfied are not, or will not be, capable of meaningful operation or to vary those terms so that they are capable of meaningful operation; or (b) to remove an ambiguity or uncertainty in the instrument; or (c) to enable the instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise; or (d) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, or to make the instrument operate effectively with the National Employment Standards; or (e) if the instrument is a copied State employment agreement—to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or (f) to remove terms that are inconsistent with Part 3-1 (which deals with general protections), or to vary terms to make them consistent with that Part. Note: Paragraph (d) does not affect a term of the copied State instrument that is permitted by a provision of the National Employment Standards as the provision has effect under section 768AR. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 1347, 1348, opn 1 Jan 2013]

(2) Who may apply for a variation The FWC may make a variation under subsection (1): (a) on its own initiative; or (b) on application by a person who is, or is likely to be, covered by the copied State instrument; or (c) on application by an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the copied State instrument. Note: The copied State instrument for the transferring employee may also cover another transferring employee or a non-transferring employee if a consolidation order is made. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 1349, opn 1 Jan 2013]

(3) Matters that the FWC must take into account In deciding whether to make a variation under subsection (1), the FWC must take into account the following:

(a) the views of: (i) the employees who would be affected by the copied State instrument as varied; and (ii) the new employer or a person who is likely to be the new employer; (b) whether any employees would be disadvantaged by the copied State instrument as varied in relation to their terms and conditions of employment; [page 1022] (c) if the copied State instrument is a copied State employment agreement—the nominal expiry date of the agreement; (d) whether the copied State instrument, without the variation, would have a negative impact on the productivity of the new employer’s workplace; (e) whether the new employer would incur significant economic disadvantage as a result of the copied State instrument, without the variation; (f) the degree of business synergy between the copied State instrument, without the variation, and any workplace instrument that already covers the new employer; (g) the public interest. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 1350, 1351, opn 1 Jan 2013]

(4) Variation relating to the NES If there is a dispute about the making of a variation for the purposes of paragraph (1)(d), the FWC may compare the entitlements that are in dispute: (a) on a “line-by-line” basis, comparing individual terms; or (b) on a “like-by-like” basis, comparing entitlements according to particular subject areas; or (c) using any combination of the above approaches the FWC sees fit. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 1351, opn 1 Jan 2013]

(5) The regulations may make provisions that apply to determining, for the purposes of paragraph (1)(d), whether terms of a copied State instrument for a transferring employee are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards. (6) When variation may be made A variation may be made under subsection (1) in relation to a copied State instrument of a transferring employee: (a) before the copied State instrument comes into operation, if it is likely that the instrument will come into operation; and (b) before the employee is a transferring employee, if it is likely that the employee will become a transferring employee. (7) Restriction on when variation may come into operation A variation under subsection (1) operates from the day specified in the variation, which may be a day before the variation is made.

Subdivision C — Termination of copied State instruments

[9-7442]

Termination in limited circumstances

768AY (1) A copied State instrument for a transferring employee cannot be terminated except under items 22, 23, 24, 25 and 26 of Schedule 3A to the Transitional Act (which deal with termination of State employment agreements) as those items have effect because of section 768BY. (2) A copied State instrument for a transferring employee that has been terminated ceases to operate and can never operate again. Note: A copied State instrument that does not operate cannot cover a person (see subsection 768AN(6)).

[page 1023]

DIVISION 6 — FWC ORDERS ABOUT COVERAGE OF COPIED STATE INSTRUMENTS AND OTHER INSTRUMENTS [Div 6 heading am Act 174 of 2012 s 3 and Sch 9 item 1352, opn 1 Jan 2013]

Subdivision A — Guide to this Division

[9-7450]

What this Division is about

768AZ This Division allows the FWC to make an order that a copied State instrument for a transferring employee does not, or will not, cover the employee and that an enterprise agreement or named employer award that covers the new employer covers, or will cover, the employee instead. It also allows the FWC to make an order that a copied State instrument for a transferring employee does not, or will not, cover an employee organisation but instead covers, or will cover, another employee organisation. [s 768AZ am Act 174 of 2012 s 3 and Sch 9 item 1353, opn 1 Jan 2013]

[9-7452] business

Orders in relation to a transfer of

768AZA (1) This Division provides for orders to be made if there is, or is likely to be, a transfer of business. (2) An order may be made under this Division in relation to a copied State instrument of a transferring employee: (a) before the copied State instrument comes into operation, if it is likely that the instrument will come into operation; and (b) before the employee is a transferring employee, if it is likely that the employee will become a transferring employee.

Subdivision B — Coverage orders

[9-7454] FWC orders about coverage for transferring employees 768BA (1) Orders that the FWC may make The FWC may make the following orders: (a) an order that a copied State instrument for a transferring employee that would, or would be likely to, cover the transferring employee and the new employer because of subsection 768AN(1) does not, or

will not, cover the transferring employee and the new employer; (b) an order that an enterprise agreement or named employer award that covers the new employer at the transferring employee’s reemployment time covers, or will cover, the transferring employee. [subs (1) am Act 174 of 2012 s 3 and Sch 9 items 1355, 1356, opn 1 Jan 2013]

(2) Who may apply for an order The FWC may make an order under subsection (1): (a) on its own initiative; or (b) on application by any of the following: [page 1024] (i)

a transferring employee or an employee who is likely to be a transferring employee; (ii) the new employer or a person who is likely to be the new employer; (iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i); (iv) if the application relates to an enterprise agreement — an employee organisation that is, or is likely to be, covered by the agreement. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 1356, opn 1 Jan 2013]

(3) Matters that the FWC must take into account In deciding whether to make an order under subsection (1), the FWC must take into account the following: (a) the views of: (i) the employees who would be affected by the order; and (ii) the new employer or a person who is likely to be the new employer; (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

(c) if the order relates to a copied State employment agreement or an enterprise agreement — the nominal expiry date of the agreement; (d) whether the copied State instrument would have a negative impact on the productivity of the new employer’s workplace; (e) whether the new employer would incur significant economic disadvantage as a result of the copied State instrument covering the new employer; (f) the degree of business synergy between the copied State instrument and any workplace instrument that already covers the new employer; (g) the public interest. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 1357, 1358, opn 1 Jan 2013]

(4) Restriction on when order may come into operation An order under subsection (1) must not come into operation in relation to a particular transferring employee before the later of the following: (a) the transferring employee’s re-employment time; (b) the day on which the order is made. [s 768BA am Act 174 of 2012 s 3 and Sch 9 item 1354, opn 1 Jan 2013]

[9-7456] FWC orders about coverage for employee organisations 768BB (1) The FWC may make an order that: (a) a copied State instrument for a transferring employee that would, or would be likely to, cover an employee organisation (the first employee organisation) in relation to the transferring employee because of subsection 768AN(2) does not, or will not, cover the organisation; and (b) another employee organisation (the second employee organisation) is, or will be, covered by the copied State instrument in relation to the employee. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 1360, opn 1 Jan 2013]

(2) When making an order under subsection (1), the FWC must consider whether the second employee organisation is a federal counterpart (within the

meaning of section 9A of the Registered Organisations Act) of the first employee organisation. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 1361, opn 1 Jan 2013]

[page 1025] (3) The regulations may: (a) prescribe circumstances in which the FWC may make an order for the purposes of subsection (1); and (b) otherwise make provision in relation to the making of the order. (4) An order under subsection (1) must be made in accordance with any regulations that are made for the purposes of subsection (3). [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 1361, opn 1 Jan 2013] [s 768BB am Act 174 of 2012 s 3 and Sch 9 item 1359, opn 1 Jan 2013]

DIVISION 7 — FWC ORDERS ABOUT CONSOLIDATING COPIED STATE INSTRUMENTS ETC [Div 7 heading am Act 174 of 2012 s 3 and Sch 9 item 1362, opn 1 Jan 2013]

Subdivision A — Guide to this Division

[9-7464]

What this Division is about

768BC This Division allows the FWC to consolidate the various workplace instruments that may apply in the new employer’s workplace. It achieves this by allowing the FWC to make an order that a copied State instrument for a particular transferring employee is also a copied State instrument for one or more other transferring employees or non-transferring employees. Subdivision B deals with consolidating copied State instruments for transferring employees. Under that Subdivision, the FWC may make an order that the copied State instrument for a transferring employee (“employee A”) is also the copied State instrument for one or more other transferring employees. If the FWC makes a consolidation order for those other transferring employees, then this Act is modified so that the copied State instrument for employee A is also the copied State instrument for those other transferring employees (see section 768BF). Subdivision C deals with non-transferring employees. Under that Subdivision, the FWC may make an order that the copied State instrument for employee A (who is a transferring employee) is also the

copied State instrument for one or more non-transferring employees. If the FWC makes a consolidation order for those non-transferring employees, then this Act is modified so that the copied State instrument for employee A is also the copied State instrument for those non-transferring employees (see section 768BI). [s 768BC am Act 174 of 2012 s 3 and Sch 9 item 1363, opn 1 Jan 2013]

[9-7466] business

Orders in relation to a transfer of

768BCA (1) This Division provides for orders to be made if there is, or is likely to be, a transfer of business. (2) An order may be made under this Division in relation to a copied State instrument of a transferring employee: (a) before the copied State instrument comes into operation, if it is likely that the instrument will come into operation; and (b) before the employee is a transferring employee, if it is likely that the employee will become a transferring employee. [page 1026]

Subdivision B — Consolidation orders in relation to transferring employees

[9-7468] Consolidation orders in relation to transferring employees 768BD (1) Consolidation order The FWC may make an order (a consolidation order) that a copied State instrument for a transferring employee (employee A) is also a copied State instrument for one or more other transferring employees. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 1365, opn 1 Jan 2013]

(2) Who may apply for order The FWC may make a consolidation order under subsection (1): (a) on its own initiative; or

(b) on application by any of the following: (i) a transferring employee, or an employee who is likely to be a transferring employee; (ii) the new employer or a person who is likely to be the new employer; (iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i). [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 1366, opn 1 Jan 2013]

(3) Matters that the FWC must take into account In deciding whether to make a consolidation order under subsection (1), the FWC must take into account the following: (a) the views of: (i) the employees who would be affected by the order; and (ii) the new employer or a person who is likely to be the new employer; (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment; (c) if the order relates to a copied State employment agreement — the nominal expiry date of the agreement; (d) whether the copied State instrument for employee A would have a negative impact on the productivity of the new employer’s workplace; (e) whether the new employer would incur significant economic disadvantage if the order were not made; (f) the degree of business synergy between the copied State instrument for employee A and any workplace instrument that already covers the new employer; (g) the public interest. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 1367, 1368, opn 1 Jan 2013]

(4) Restriction on when order may come into operation A consolidation order under subsection (1) must not come into operation in relation to a particular transferring employee (other than employee A) before the later of

the following: (a) the transferring employee’s re-employment time; (b) the day on which the order is made.

[9-7470] Consolidation order to deal with application and coverage 768BE (1) A consolidation order under subsection 768BD(1) must specify when the copied State instrument for employee A applies to, and covers: (a) another transferring employee; and [page 1027] (b) the new employer in relation to the other transferring employee; and (c) an employee organisation in relation to the other transferring employee; which must not be before the other transferring employee’s re-employment time. (2) Once the consolidation order comes into operation in relation to the other transferring employee, the copied State instrument for the other transferring employee ceases to operate.

[9-7472] Effect of this Act after a consolidation order is made 768BF If the FWC makes a consolidation order under subsection 768BD(1), then this Act has effect in relation to a particular transferring employee (other than employee A), from the time the order comes into operation in relation to that employee, as if a reference in relation to that employee to the copied State instrument for that employee were a reference to the copied State instrument for employee A. [s 768BF am Act 174 of 2012 s 3 and Sch 9 item 1369, opn 1 Jan 2013]

Subdivision C — Consolidation orders in relation to nontransferring employees

[9-7474] Consolidation orders in relation to nontransferring employees 768BG (1) Consolidation order The FWC may make an order (a consolidation order) that a copied State instrument for a transferring employee (employee A) also is, or will be, a copied State instrument for one or more non-transferring employees who perform, or are likely to perform, the transferring work. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 1370, opn 1 Jan 2013]

(2) Non-transferring employees A non-transferring employee of a new employer is a national system employee of the new employer who is not a transferring employee. (3) Who may apply for order The FWC may make a consolidation order under subsection (1): (a) on its own initiative; or (b) on application by any of the following: (i) a non-transferring employee who performs, or is likely to perform, the transferring work; (ii) the new employer or a person who is likely to be the new employer; (iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i); (iv) if the application relates to an enterprise agreement — an employee organisation that is, or is likely to be, covered by the agreement. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 1371, opn 1 Jan 2013]

(4) Matters that the FWC must take into account In deciding whether to make a consolidation order under subsection (1), the FWC must take into account the following: (a) the views of:

(i) the employees who would be affected by the order; and (ii) the new employer or a person who is likely to be the new employer; [page 1028] (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment; (c) if the order relates to a copied State employment agreement or an enterprise agreement — the nominal expiry date of the agreement; (d) whether the copied State instrument for employee A would have a negative impact on the productivity of the new employer’s workplace; (e) whether the new employer would incur significant economic disadvantage if the order were not made; (f) the degree of business synergy between the copied State instrument for employee A and any workplace instrument that already covers the new employer; (g) the public interest. [subs (4) am Act 174 of 2012 s 3 and Sch 9 items 1372, 1373, opn 1 Jan 2013]

(5) Restriction on when order may come into operation A consolidation order under subsection (1) must not come into operation in relation to a particular non-transferring employee before the later of the following: (a) the time when the non-transferring employee starts to perform the transferring work for the new employer; (b) the day on which the order is made.

[9-7476] Consolidation order to deal with application and coverage 768BH (1) A consolidation order under subsection 768BG(1) must specify when the copied State instrument for employee A applies to, and covers: (a) a non-transferring employee; and

(b) the new employer in relation to the non-transferring employee; and (c) an employee organisation in relation to the non-transferring employee; in relation to the transferring work. (2) If an enterprise agreement covers the non-transferring employee and the new employer, the order must also specify that the agreement does not cover: (a) the non-transferring employee; or (b) the new employer in relation to the non-transferring employee; or (c) an employee organisation in relation to the non-transferring employee; in relation to that work.

[9-7478] Effect of this Act after a consolidation order is made 768BI If the FWC makes a consolidation order under subsection 768BG(1), then this Act has effect in relation to a particular non-transferring employee, from the time the order comes into operation in relation to that employee, as if: (a) the copied State instrument for employee A were also the copied State instrument for that employee; and (b) that employee were a transferring employee in relation to that copied State instrument. [s 768BI am Act 174 of 2012 s 3 and Sch 9 item 1374, opn 1 Jan 2013]

[page 1029]

DIVISION 8 — SPECIAL RULES FOR COPIED STATE INSTRUMENTS Subdivision A — Guide to this Division

[9-7486]

What this Division is about

768BJ This Division has a collection of special rules for copied State instruments for transferring employees. Subdivision B deals with the case where a copied State instrument for a transferring employee does not have a term about settling disputes about matters arising under the instrument. In that case, the model term prescribed by the regulations is taken to be a term of the instrument. Subdivision C is about working out service and entitlements of a transferring employee. This is particularly relevant for working out the employee’s entitlements under the National Employment Standards and the copied State instrument for the employee. Subdivision D deals with the case where a copied State award for a transferring employee ceases to operate and the employee suffers a reduction in take home pay. That Subdivision allows the FWC to make a take-home pay order to compensate the employee. Subdivision E modifies particular provisions of this Act in relation to copied State instruments. Subdivision F modifies particular provisions of the Transitional Act in relation to copied State instruments. Subdivision G modifies particular provisions of the Registered Organisations Act in relation to copied State instruments. [s 768BJ am Act 174 of 2012 s 3 and Sch 9 item 1374, opn 1 Jan 2013]

Subdivision B — Terms about disputes

[9-7488]

Where no term dealing with disputes

768BK (1) If a copied State instrument for a transferring employee does not include a term that provides a procedure for settling disputes about matters arising under the instrument, then the instrument is taken to include the model term that is prescribed by the regulations for settling disputes about matters arising under a copied State instrument for a transferring employee. Note: This section deals with the situation where the original State award or original State agreement for the copied State instrument did not include a term about settling disputes about matters arising under the award or agreement.

(2) For the purposes of subsection (1), the model term prescribed for a copied State award for a transferring employee may be the same or different from the model term prescribed for a copied State employment agreement for a transferring employee.

Subdivision C — Service and entitlements of a transferring

employee

[9-7490]

Service for the purposes of this Act

768BL (1) General rule Service of a transferring employee with the old State employer that occurred before the employee’s termination time also counts as service of [page 1030] the employee with the new employer for the purposes of this Act (including for the purposes of determining the employee’s entitlements under the National Employment Standards) after the employee’s re-employment time. (2) Gap between termination time and re-employment time If there is a period of time between the employee’s termination time with the old State employer and the employee’s re-employment time with the new employer, then that period: (a) does not break the employee’s continuous service with the new employer (taking account of the effect of subsection (1)); but (b) does not count towards the length of the employee’s continuous service with the new employer.

[9-7492] NES — working out non-accruing entitlements 768BM (1) Application of this section This section applies for the purposes of determining the entitlements of a transferring employee under the National Employment Standards, other than entitlements to: (a) paid annual leave; or (b) paid personal/carer’s leave. Note: For entitlements to paid annual leave and paid personal/carer’s leave under the National Employment Standards, see section 768BN.

(2) No double entitlement If, before or after the employee’s termination time, the employee has the benefit of an entitlement, the amount of which is

calculated by reference to a period of service, then subsection 768BL(1) does not result in that period of service with the old State employer being counted again when calculating the employee’s entitlements of that kind under the National Employment Standards. (3) To avoid doubt, subsection (2) does not require the employee to serve any initial qualifying period of service for long service leave again. (4) Limitation on application of general rule to redundancy pay If the terms and conditions of employment that applied to the employee’s employment by the old State employer immediately before the employee’s termination time did not provide for an entitlement to redundancy pay, then subsection 768BL(1) does not apply in relation to the employee and the new employer for the purposes of Subdivision B of Division 11 of Part 2-2 (which deals with redundancy pay). (5) If a State industrial body could have made an order giving the employee an entitlement to redundancy pay (however described), had the employee’s employment been terminated for redundancy (however described) before the employee’s termination time, then: (a) the terms and conditions of the employee’s employment referred to in subsection (4) are taken to have provided for an entitlement to redundancy pay; and (b) paragraph 121(1)(b) does not apply in relation to the employee during the 12 months starting at the employee’s re-employment time. Note: Because of paragraph (b), the employee may therefore be entitled to redundancy pay under section 119 if the employee’s employment is terminated by the new employer during the 12-month period starting at the employee’s termination time, even if the new employer is a small business employer.

[page 1031]

[9-7494] NES — working out accruing entitlements 768BN (1) Application of this section This section applies for the purposes of determining the entitlements of a transferring employee under the

National Employment Standards to: (a) paid annual leave; or (b) paid personal/carer’s leave; if the employee had, immediately before the employee’s termination time, an accrued entitlement to an amount of: (c) paid annual leave (however described); or (d) paid personal or carer’s leave (however described). Note: For other entitlements under the National Employment Standards, see section 768BM.

(2) Leave accrued for purposes of the NES The provisions of the National Employment Standards relating to: (a) taking that kind of leave (including rates of pay while taking leave); or (b) cashing-out that kind of leave; apply as a minimum standard to the accrued leave, after the employee’s reemployment time, as if it had accrued under the National Employment Standards. (3) No double entitlement However, if before or after the employee’s termination time, the old State employer paid the employee an amount in relation to some or all of the accrued leave, then for the purposes of subsection (2), the amount of accrued leave is reduced accordingly. (4) Working out whether leave accrued For the purposes of subsection (1), it does not matter whether the entitlement to leave accrued under: (a) the original State award or original State agreement for the copied State instrument for the employee; or (b) a State industrial law of the State.

[9-7496]

Copied State instrument — service

768BO (1) General rule Service of a transferring employee with the old State employer that: (a) occurred before the employee’s termination time; and (b) counted for the purposes of the application to the employee of the original State award or original State agreement for the copied State

instrument for the employee; also counts as service of the employee with the new employer for the purposes of the application to the employee of the copied State instrument after the employee’s re-employment time. (2) Gap between termination time and re-employment time If there is a period of time between the employee’s termination time with the old State employer and the employee’s re-employment time with the new employer, then that period: (a) does not break the employee’s continuous service with the new employer (taking account of the effect of subsection (1)); but (b) does not count towards the length of the employee’s continuous service with the new employer. (3) Effect of consolidation order If the FWC makes a consolidation order under subsection 768BD(1), then, despite section 768BF, the original State award or original [page 1032] State agreement referred to in paragraph (1)(b) of this section is the original State award or original State agreement for the copied State instrument for the employee before the consolidation order was made. [subs (3) am Act 174 of 2012 s 3 and Sch 9 item 1375, opn 1 Jan 2013]

[9-7498] Copied State instrument — working out non-accruing entitlements 768BP (1) Application of this section This section applies for the purposes of determining the entitlements of a transferring employee under a copied State instrument for the employee, other than entitlements to: (a) annual leave (however described); or (b) personal leave or carer’s leave (however described). Note: For entitlements to annual leave or personal leave or carer’s leave under the copied State instrument, see section 768BQ.

(2) No double entitlement If, before or after the employee’s termination time, the employee has the benefit of an entitlement, the amount of which is calculated by reference to a period of service, then subsection 768BO(1) does not result in that period of service with the old State employer being counted again when calculating the employee’s entitlements of that kind under the copied State instrument for the employee. (3) To avoid doubt, subsection (2) does not require the employee to serve any initial qualifying period of service for long service leave again.

[9-7500] Copied State instrument — working out accruing entitlements 768BQ (1) Application of this section This section applies for the purposes of determining the entitlements of a transferring employee under the copied State instrument for the employee to: (a) annual leave (however described); or (b) personal leave or carer’s leave (however described). Note: For other entitlements under the copied State instrument, see section 768BP.

(2) Leave accrued for purposes of the instrument If the employee had, immediately before the employee’s termination time, an accrued entitlement to an amount of: (a) annual leave (however described); or (b) personal leave or carer’s leave (however described); then the accrued leave is taken to have accrued under the copied State instrument for the employee. (3) No double entitlement However, if before or after the employee’s termination time, the old State employer paid the employee an amount in relation to some or all of the accrued leave, then for the purposes of subsection (2), the amount of accrued leave is reduced accordingly. (4) Working out whether leave accrued For the purposes of subsection (2), it does not matter whether the leave accrued under: (a) the original State award or original State agreement for the copied State instrument; or (b) a State industrial law of the State.

[page 1033]

Subdivision D — Cessation of copied State awards: avoiding reductions in take-home pay

[9-7502] Cessation not intended to result in reduction in take-home pay 768BR (1) If a copied State award for a transferring employee ceases to operate because of subsection 768AO(2), the cessation is not intended to result in a reduction in the take-home pay of the employee. (2) A transferring employee’s take-home pay is the pay the employee actually receives: (a) including wages and incentive-based payments, and additional amounts such as allowances and overtime; but (b) disregarding the effect of any deductions that are made as permitted by section 324. Note: Deductions permitted by section 324 may (for example) include deductions under salary sacrificing arrangements.

(3) A transferring employee suffers a reduction in take-home pay if, and only if: (a) when the copied State award for the employee ceases to operate because of subsection 768AO(2), the employee becomes a person to whom a modern award applies; and (b) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the cessation of the copied State award; and (c) the amount of the employee’s take-home pay for working particular hours or for a particular quantity of work after the cessation of the copied State award is less than what would have been the employee’s take-home pay for those hours or that quantity of work immediately before the cessation; and (d) that reduction in the employee’s take-home pay is attributable to the cessation of the copied State award.

[9-7504] Orders remedying reductions in takehome pay 768BS (1) If the FWC is satisfied that a transferring employee to whom a modern award applies has suffered a reduction in take-home pay, the FWC may make any order (a take-home pay order) requiring, or relating to, the payment of an amount or amounts to the employee that the FWC considers appropriate to remedy the situation. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 1375, opn 1 Jan 2013]

(2) The FWC may make a take-home pay order: (a) on its own initiative; or (b) on application by either of the following: (i) a transferring employee who has suffered a reduction in takehome pay; (ii) an organisation that is entitled to represent the industrial interests of the employee. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 1376, opn 1 Jan 2013]

[page 1034] (3) The FWC must not make a take-home pay order if: (a) the FWC considers that the reduction in take-home pay is minor or insignificant; or (b) the FWC is satisfied that the employee has been adequately compensated in other ways for the reduction. [subs (3) am Act 174 of 2012 s 3 and Sch 9 items 1377, 1378, opn 1 Jan 2013]

(4) The FWC must ensure that a take-home pay order is expressed so that: (a) it does not apply to a transferring employee unless the employee has actually suffered a reduction in take-home pay; and (b) if the take-home pay payable to the employee under the modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee under the order. [subs (4) am Act 174 of 2012 s 3 and Sch 9 item 1379, opn 1 Jan 2013]

(5) If the FWC is satisfied that an application for a take-home pay order has already been made in relation to a transferring employee, the FWC may dismiss any later application that is made under these provisions in relation to the same employee. [subs (5) am Act 174 of 2012 s 3 and Sch 9 item 1380, opn 1 Jan 2013]

[9-7506]

Contravening a take-home pay order

768BT A person must not contravene a term of a take-home pay order that applies to the person. Note: This section is a civil remedy provision (see Part 4-1).

[9-7508] How long a take-home pay order continues to apply 768BU A take-home pay order made in relation to a transferring employee to whom a particular modern award applies continues to apply in relation to the employee (subject to the terms of the order) for so long as the modern award continues to cover the employee. Note: It does not matter if the modern award stops applying to the employee because an enterprise agreement starts to apply.

[9-7510] Interaction of take-home pay orders with modern awards and enterprise agreements 768BV A term of a modern award or an enterprise agreement has no effect in relation to a transferring employee to the extent that it is less beneficial to the employee than a term of a take-home pay order that applies to the employee.

[9-7512] orders

Application of this Act to take-home pay

768BW This Act applies as if the following provisions included a reference to a take-home pay order: (a) subsection 675(2) (which is about FWC orders);

(b) subsection 706(2) (which is about powers of inspectors). [s 768BW am Act 174 of 2012 s 3 and Sch 9 item 1381, opn 1 Jan 2013]

[page 1035]

Subdivision E — Modification of this Act

[9-7514] Modification of this Act for copied State instruments 768BX This Act has effect in relation to a transferring employee on and after the employee’s re-employment time as if a reference in a provision referred to in column 1 to a term referred to in column 2 included a reference to the term referred to in column 3. Modification of this Act for copied State instruments Item Column 1 Column 2 Column 3 Provision of this Act Current term New term 1 Division 2 of Part 2-9 modern award copied State award (payment of wages) for the transferring employee 2 Division 2 of Part 2-9 enterprise copied State (payment of wages) agreement employment agreement for the transferring employee 3 Division 3 of Part 2-9 modern award copied State award (guarantee of annual for the transferring earnings) employee 4 Division 3 of Part 2-9 enterprise copied State (guarantee of annual agreement employment earnings) agreement for the transferring employee 5 Part 3-2 (unfair modern award copied State award dismissal) for the transferring employee

6

Part 3-2 (unfair dismissal)

enterprise agreement

7

Division 9 of Part 3-3 (payments relating to periods of industrial action) Division 9 of Part 3-3 (payments relating to periods of industrial action) subsection 481(1) (right of entry)

modern award

10

subsection 524(2) (stand down)

enterprise agreement

11

Part 4-1 (compliance) fair work instrument

12

section 657 (General Manager)

8

9

enterprise agreement

fair work instrument

fair work instrument

copied State employment agreement for the transferring employee copied State award for the transferring employee copied State employment agreement for the transferring employee copied State instrument for the transferring employee copied State instrument for the transferring employee copied State instrument for the transferring employee copied State instrument for the transferring employee [page 1036]

Modification of this Act for copied State instruments Item Column 1 Column 2 Column 3 Provision of this Act Current term New term 13 Part 5-2 (Fair Work fair work copied State Ombudsman) instrument instrument for the transferring employee 14 Part 5-2 (Fair Work modern award copied State award

Ombudsman) 15

Part 5-2 (Fair Work Ombudsman)

enterprise agreement

16

Part 6-2 (dealing with modern award disputes)

17

Part 6-2 (dealing with enterprise disputes) agreement

18

Part 6-2 (dealing with fair work disputes) instrument

for the transferring employee copied State employment agreement for the transferring employee copied State award for the transferring employee copied State employment agreement for the transferring employee copied State instrument for the transferring employee

Subdivision F — Modification of the Transitional Act

[9-7516] Modification of the Transitional Act for copied State instruments 768BY (1) Each relevant transitional provision (see subsection (2)) has effect in relation to a transferring employee as if a reference to a term referred to in column 1 were a reference to the term referred to in column 2. The provision has effect from the time specified in column 3 of the table in subsection (2). Modification of the Transitional Act and regulations for copied State instruments Item Column 1 Column 2 Current term New term 1 Division 2B State instrument copied State instrument for the transferring employee 2 Division 2B State award copied State award for the transferring employee

3

4

5

Division 2B State award applying (within the meaning of the Transitional Act) to a person Division 2B State award covering (within the meaning of the Transitional Act) a person Division 2B State employment agreement

copied State award for the transferring employee applying (within the meaning of this Act) to a person copied State award for the transferring employee covering (within the meaning of this Act) a person copied State employment agreement for the transferring employee [page 1037]

Modification of the Transitional Act and regulations for copied State instruments Item Column 1 Column 2 Current term New term 6 collective Division 2B State copied State collective employment agreement employment agreement for the transferring employee 7 individual Division 2B State copied State individual employment agreement employment agreement for the transferring employee 8 Division 2B State copied State employment employment agreement agreement for the applying (within the meaning transferring employee of the Transitional Act) to a applying (within the meaning person of this Act) to a person 9 Division 2B State copied State employment employment agreement agreement for the covering (within the meaning transferring employee of the Transitional Act) a covering (within the meaning person of this Act) a person

10

nominal expiry date of a Division 2B State employment agreement

11

13

Division 2B referral commencement Division 2B State reference employee Division 2B referring State

14

source State

12

nominal expiry date of a copied State employment agreement for the transferring employee transferring employee’s termination time transferring employee the State of the old State employer the State of the old State employer

(2) For the purposes of subsection (1), the relevant transitional provisions are: (a) the provisions of the Transitional Act that are listed in column 1; and (b) the regulations made for the purposes of those provisions. Modification of the Transitional Act and regulations for copied State instruments Item Column 1 Column 2 Column 3 Relevant Which is about Relevant time transitional provision 1 item 10 of Schedule instrument the transferring 3A content rules employee’s termination time 2 item 11 of Schedule instrument the transferring 3A interaction rules employee’s termination time 3 item 13 (other than references to the transferring note 1 and note 2) of State industrial employee’s Schedule 3A bodies termination time 4 item 17 of Schedule no loss of accrued the transferring 3A rights etc. when employee’s re-

5

item 20 of Schedule 3A

6

item 22 of Schedule 3A

instrument terminates variation of discriminatory instruments collective agreements — termination by agreement

employment time the transferring employee’s termination time the transferring employee’s reemployment time

[page 1038] Modification of the Transitional Act and regulations for copied State instruments Item Column 1 Column 2 Column 3 Relevant Which is about Relevant time transitional provision 7 item 23 of Schedule collective the transferring 3A agreements — employee’s retermination by employment time the FWC 8 item 24 of Schedule individual the transferring 3A agreements — employee’s retermination by employment time agreement 9 item 25 of Schedule individual the transferring 3A agreements — employee’s retermination employment time conditional on enterprise agreement 10 item 26 of Schedule individual the transferring 3A agreements — employee’s re-

11

item 47 of Schedule 3A

12

item 48 of Schedule 3A

13

items 19, 20 and 21 of Schedule 4

unilateral termination by the FWC employee not award/agreement free calculating an employee’s ordinary hours of work interaction with the NES

14

Part 5 of Schedule 9

base rates of pay

15

Division 4 of Part 3 of Schedule 11

transfer of business

16

item 4 of Schedule 12 general protections

17

items 2, 3, 4 and 17 of Schedule 13

industrial action

18

item 4B of Schedule 16 (as that item relates to subitems 25(6) and (7) of Schedule 3A) and item 16 of Schedule 16 (as that item relates to item 4B of Schedule 16) items 12 and 13 of Schedule 16 and item

compliance relating to conditional terminations of individual employment agreements

19

compliance relating to non-

employment time

the transferring employee’s reemployment time the transferring employee’s reemployment time the transferring employee’s reemployment time the transferring employee’s reemployment time the transferring employee’s reemployment time the transferring employee’s termination time the transferring employee’s reemployment time the transferring employee’s reemployment time

the transferring employee’s re-

16 of Schedule 16 (as disclosure obligations that item relates to those items)

employment time

[subs (2) am Act 174 of 2012 s 3 and Sch 9 items 1382, 1383, opn 1 Jan 2013]

[page 1039]

Subdivision G — Modification of the Registered Organisations Act

[9-7518] Modification of the Registered Organisations Act for copied State instruments 768BZ (1) The Registered Organisations Act has effect in relation to a transferring employee on and after the employee’s termination time as if: (a) a reference in that Act to a modern award included a reference to a copied State award for the employee; and (b) a reference in that Act to an enterprise agreement included a reference to a copied State employment agreement for the employee. (2) The regulations may deal with other matters relating to how the Registered Organisations Act applies in relation to a transferring employee.

DIVISION 9 — REGULATIONS

[9-7526]

Regulations

768CA (1) The regulations may: (a) make provision in relation to the transition from State awards and State employment agreements to copied State instruments; and (b) make provision in relation to the transition from copied State instruments to modern awards and enterprise agreements; and (c) deal with how this Act applies in relation to copied State instruments for transferring employees; and

provide that provisions of this Act or the Transitional Act apply in (d) relation to transferring employees or new employers with specified modifications; and (e) otherwise make provision relating to how provisions of this Act or the Transitional Act apply in relation to transferring employees or new employers; and (f) make provision in relation to non-transferring employees of the new employer; and (g) provide that provisions of this Act or the Transitional Act apply in relation to the non-transferring employees with specified modifications; and (h) make other provision in relation to the matters dealt with in this Part. (2) Without limiting subsection (1), the regulations may: (a) modify provisions of this Act or the Transitional Act, or provide for the application (with or without modifications) of provisions of this Act or the Transitional Act to matters to which they would otherwise not apply; and (b) provide differently for the purposes of different provisions, or in relation to different situations. (3) However, this section does not allow regulations to: (a) modify a provision so as to impose an obligation which, if contravened, constitutes an offence; or (b) include new provisions that create offences. (4) The provisions of this Part (including this section) that provide for regulations to deal with matters do not limit each other. [page 1040]

PART 6-4 — ADDITIONAL PROVISIONS RELATING TO TERMINATION OF

EMPLOYMENT DIVISION 1 — INTRODUCTION

[9-7580]

Guide to this Part

769 This Part contains provisions to give effect, or further effect, to certain international agreements relating to discrimination and termination of employment. Division 2 makes it unlawful for an employer to terminate an employee’s employment for certain reasons. Division 2 also deals with compliance. In most cases, a dispute that involves the termination of an employee’s employment will be dealt with by a court only if the dispute has not been resolved by the FWC. Division 3 sets out notification and consultation requirements in relation to certain terminations of employment. [Editor’s note: Section 769 of this legislation is reproduced in this format in line with the official version.] [s 769 am Act 174 of 2012 s 3 and Sch 9 item 863, opn 1 Jan 2013]

[9-7600]

Meanings of employee and employer

770 In this Part, employee and employer have their ordinary meanings. COMMENTARY TO SECTION 770*

Derivation …. Employee — s 770 …. Employee — s 770 ….

[9-7600.01] [9-7600.05] [9-7600.10]

[9-7600.01] Derivation The section is new. [9-7600.05] Employee — s 770 See ss 12, 15(1), 30E(1) and 30P(1). [9-7600.10] Employee — s 770 See ss 12, 15(2), 30E(2) and 30P(2). *Editor’s note: Commentary to s 770 prepared by Ian Latham BA(Hons)/LLB (ANU), Barrister.

____________________

DIVISION 2 — TERMINATION OF EMPLOYMENT

[9-7790]

Object of this Division

771 The object of this Division is to give effect, or further effect, to: (a) the ILO Convention (No. 111) concerning Discrimination in respect of Employment and Occupation, done at Geneva on 25 June 1958 ([1974] ATS 12); and (b) the ILO Convention (No. 156) concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities, done at Geneva on 23 June 1981 ([1991] ATS 7); and [page 1041] (c) the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer, done at Geneva on 22 June 1982 ([1994] ATS 4); and (d) the Termination of Employment Recommendation, 1982 (Recommendation No. R166) which the General Conference of the ILO adopted on 22 June 1982. Note 1: In 2009, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au). Note 2: In 2009, the text of a Recommendation adopted by the General Conference of the ILO was accessible through the ILO website (www.ilo.org).

[9-7810] Employment not to be terminated on certain grounds 772 (1) An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons: (a) temporary absence from work because of illness or injury of a kind prescribed by the regulations; (b) trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;

(c) non-membership of a trade union; (d) seeking office as, or acting or having acted in the capacity of, a representative of employees; (e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; (f) race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin; (g) absence from work during maternity leave or other parental leave; (h) temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances. Note: This subsection is a civil remedy provision (see Part 4-1). [subs (1) am Act 98 of 2013 s 3 and Sch 1 item 63G, opn 1 Aug 2013]

(2) However, subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating a person’s employment if: (a) the reason is based on the inherent requirements of the particular position concerned; or (b) if the person is a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed — the employment is terminated: (i) in good faith; and (ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed. (3) To avoid doubt, if: (a) an employer terminates an employee’s employment; and (b) the reason, or a reason, for the termination is that the position held by the employee no longer exists, or will no longer exist; and

[page 1042] (c) the reason, or a reason, that the position held by the employee no longer exists, or will no longer exist, is the employee’s absence, or proposed or probable absence, during maternity leave or other parental leave; the employee’s employment is taken, for the purposes of paragraph (1)(g), to have been terminated for the reason, or for reasons including the reason, of absence from work during maternity leave or other parental leave. (4) For the purposes of subsection (1), subsection 109(2) (which deals with the meaning of voluntary emergency management activity) has effect as if the word employee had its ordinary meaning. COMMENTARY TO SECTION 772*

Derivation …. Civil remedy provision — s 772 Note …. Competent administrative authority — s 772(1)(e) …. Employee — s 772(1)(d), (3)(a), (b), (c), (4) …. Employer — s 772(1)(b), (e), (3)(a) …. Filing of a complaint — s 772(1)(e) …. Inherent requirements — s 772(2)(a) …. Participation in proceedings — s 772(1)(e) …. Outline of section ….

[9-7810.01] [9-7810.05] [9-7810.10] [9-7810.15] [9-7810.20] [9-7810.25] [9-7810.30] [9-7810.35] [9-7810.40]

[9-7810.01] Derivation Section 650 of the Workplace Relations Act. Against — s 772(1)(e) The use of the word “against” in s 170CK(2)(e) also means that the complaint must be to someone other than the employer. An employee who complained to the employer about the employer’s conduct would not be filing a complaint “against” that employer.’ Zhang v Royal Australian Chemical Institute Inc (2005) 144 FCR 347; [2005] FCAFC 99; BC200503679 at [26]. [9-7810.05] Civil remedy provision — s 772 Note See s 12. [9-7810.10] Competent administrative authority — s 772(1)(e) [T]he natural meaning of the expression “competent administrative authority” is a body with legal capacity to manage, deal with, or suitably address an employee’s allegation against his or her employer, in some way: see Claveria v Pilkington Australia Ltd (2007) 167 IR 444; [2007] FCA 1692; BC200709540 at [111]. [T]he expression “competent administrative authorities” has no technical meaning or fixed application. It may signify no more than an “appropriate body” (other than a legislative or judicial body or the employer) in the ratifying State to receive the communication of an allegation of misconduct on the employer’s part. A body will be appropriate in this context if it has the legal capacity to manage or

suitably address the allegation in some way (whether by investigation, a dispute resolution process or otherwise). To approach the expression in this way is in keeping with its ordinary meaning. I refer in this connection to English language dictionaries, such as the Oxford English Dictionary or The Macquarie Dictionary. The expression “competent administrative authorities” is plainly a compound one. Bearing in mind the terms, history and object of the Convention, as well as the specific object of Art 5(c), it apparently signifies bodies (other than the employer) within the ratifying State having the legal capacity to manage, deal with, or suitably address the allegation in some way (other than by judicial decision or legislative action). In this context, an allegation of misconduct on the employer’s part might be managed or suitably addressed in a variety of ways, including by investigation, reporting, prosecution, engagement of a dispute resolution process, making a determination or recommendation, or providing information and advice. I reject the [page 1043] respondent’s submission that the expression “competent administrative authorities” refers only to “an authority with the capacity and the right to determine a controversy which is properly raised with it”. This is to adopt an unjustifiably narrow approach, which is at odds with the history of Art 5(c), and the aim of the Termination of Employment Convention and Art 5(c). The purpose of Art 5(c) is best served if a liberal interpretation of the expression “competent administrative authorities” is adopted, because it extends to an employee the protection against illegitimate retaliatory termination that Art 5(c) was designed to give: Claveria v Pilkington Australia Ltd (2007) 167 IR 444; [2007] FCA 1692; BC200709540 at [106]–[107]. A trade union may be a competent administrative authority in some circumstances: Although not constituted by statute, trade unions continue to have a particular and distinct status as registered organizations under the Act. This status indicates that, for some purposes at least, they are capable of constituting “competent administrative authorities”, although whether a union has such status in any particular case will depend on the nature of the allegation an employee makes against his or her employer, the relief sought, and whether the union is legally capable of managing, dealing with, or addressing the grievance appropriately … 119. Plainly enough, a trade union will not be a “competent administrative authority” for every grievance. Whether or not it has this status will depend on the nature of the grievance and the union’s legal capacity to manage, deal with, or otherwise appropriately address it: Claveria v Pilkington Australia Ltd (2007) 167 IR 444; [2007] FCA 1692; BC200709540 at [116]. [9-7810.15] Employee — s 772(1)(d), (3)(a), (b), (c), (4) See s 770. [9-7810.20] Employer — s 772(1)(b), (e), (3)(a) See s 770. [9-7810.25] Filing of a complaint — s 772(1)(e) An employee who complains to his/her employer does not thereby file a complaint. A complaint can only be filed somewhere and with someone other than the employer and probably only to a court or Tribunal. That is consistent with reading the “filing of a complaint” with the words that follow “or the participation in proceedings”, namely “against an employer involving alleged violation of laws or regulations”: Zhang v The Royal Australian Chemical Institute Inc (2005) 144 FCR 347; [2005] FCAFC 99; BC200503679 at [25]. [9-7810.30] Inherent requirements — s 772(2)(a) See [7-2310.25].

[9-7810.35] Participation in proceedings — s 772(1)(e) See [8-5660.25]. [9-7810.40] Outline of section The object of the section is to give effect to a number of ILO conventions: see s 771. The section has been eclipsed by the general protection provisions. *Editors’ note: Commentary on s 772 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[9-7830] dispute

Application for the FWC to deal with a

773 If: (a) an employer has terminated an employee’s employment; and (b) the employee, or an industrial association that is entitled to represent the industrial interests of the employee, alleges that the employee’s employment was terminated in contravention of subsection 772(1); the employee, or the industrial association, may apply to the FWC for the FWC to deal with the dispute. [s 773 am Act 174 of 2012 s 3 and Sch 9 items 864, 865, opn 1 Jan 2013]

[page 1044]

[9-7850]

Time for application

774 (1) An application under section 773 must be made: (a) within 21 days after the employment was terminated; or (b) within such further period as the FWC allows under subsection (2). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 866, opn 1 Jan 2013; Act 73 of 2013 s 3 and Sch 4A item 18, opn 1 Jan 2014]

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) any action taken by the employee to dispute the termination; and (c) prejudice to the employer (including prejudice caused by the

delay); and (d) the merits of the application; and (e) fairness as between the person and other persons in a like position. [subs (2) am Act 174 of 2012 s 3 and Sch 9 items 867, 868, opn 1 Jan 2013]

[9-7870]

Application fees

775 (1) The application must be accompanied by any fee prescribed by the regulations. (2) The regulations may prescribe: (a) a fee for making an application to the FWC under section 773; and (b) a method for indexing the fee; and (c) the circumstances in which all or part of the fee may be waived or refunded. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 869, opn 1 Jan 2013]

[9-7890] Dealing with a dispute (other than by arbitration) 776 (1) If an application is made under section 773, the FWC must deal with the dispute (other than by arbitration). Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3). Note: For conferences, see section 592.

(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then: (a) the FWC must issue a certificate to that effect; and (b) if the FWC considers, taking into account all the materials before it, that arbitration under section 777, or an unlawful termination court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

(4) An unlawful termination court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of subsection 772(1). [s 776 subst Act 73 of 2013 s 3 and Sch 4A item 19, opn 1 Jan 2014]

[page 1045]

[9-7910]

Dealing with a dispute by arbitration

777 (1) This section applies if: (a) the FWC issues a certificate under paragraph 776(3)(a) in relation to the dispute; and (b) the parties notify the FWC that they agree to the FWC arbitrating the dispute; and (c) the notification: (i) is given to the FWC within 14 days after the day the certificate is issued, or within such period as the FWC allows on an application made during or after those 14 days; and (ii) complies with any requirements prescribed by the procedural rules; and (d) sections 726, 727, 728, 729, 731 and 732 do not apply. Note: Sections 726, 727, 728, 729, 731 and 732 prevent multiple applications or complaints of a kind referred to in those sections from being made in relation to the same dispute. A notification can only be made under this section where there is no such other application or complaint in relation to the dispute at the time the notification is made. Generally, once a notification is made no such application or complaint can be made in relation to the dispute (see section 730).

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders: (a) an order for reinstatement of the employee; (b) an order for the payment of compensation to the employee; (c) an order for payment of an amount to the employee for remuneration lost; (d) an order to maintain the continuity of the employee’s employment; (e) an order to maintain the period of the employee’s continuous

service with the employer. (3) A person to whom an order under subsection (2) applies must not contravene a term of the order. Note: This subsection is a civil remedy provision (see Part 4-1). [s 777 subst Act 73 of 2013 s 3 and Sch 4A item 19, opn 1 Jan 2014]

[9-7930]

Taking a dispute to court

778 A person who is entitled to apply under section 773 for the FWC to deal with a dispute must not make an unlawful termination court application in relation to the dispute unless: (a) both of the following apply: (i) the FWC has issued a certificate under paragraph 776(3)(a) in relation to the dispute; (ii) the unlawful termination court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or (b) the unlawful termination court application includes an application for an interim injunction. Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 777(1)), an unlawful termination court application cannot be made in relation to the dispute (see sections 730 and 731).

[page 1046] Note 2: For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988. [s 778 subst Act 73 of 2013 s 3 and Sch 4A item 19, opn 1 Jan 2014]

[9-7950]

Appeal rights

779 (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under subsection 777(2) (which is about arbitration of a dispute) unless the FWC considers that it is in the

public interest to do so. (2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under subsection 777(2) can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact. [s 779 subst Act 73 of 2013 s 3 and Sch 4A item 19, opn 1 Jan 2014]

[9-7960]

Costs orders against parties

779A (1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if: (a) an application for the FWC to deal with the dispute has been made under section 773; and (b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute. (2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 781. (3) This section does not limit the FWC’s power to order costs under section 611. [s 779A insrt Act 73 of 2013 s 3 and Sch 4A item 19, opn 1 Jan 2014] COMMENTARY TO SECTION 779A*

Derivation …. History …. Costs incurred — s 779A(1) …. FWC — s 779A(1), (a), (b), (2), (3) …. May — s 779A(1), (2) …. Indemnity costs …. Onus of proof …. Party— s 779A(1), (b), (2) …. Pay the costs only if — s 779A(2) …. Unreasonable act or omission — s 779A(2)(b) …. Outline of section [8-6940.65] …. [9-7960.01] Derivation See [8-6940.01].

[9-7960.01] [9-7960.05] [9-7960.10] [9-7960.15] [9-7960.20] [9-7960.25] [9-7960.30] [9-7960.35] [9-7960.40] [9-7960.45] [9-7960.50]

[9-7960.05] History See [8-6940.05]. [9-7960.10] Costs incurred — s 779A(1) See [8-6940.07]. [page 1047] [9-7960.15] FWC — s 779A(1), (a), (b), (2), (3) See s 12. [9-7960.20] May — s 779A(1), (2) See [8-6940.10]. [9-7960.25] Indemnity costs See [8-6940.15]. [9-7960.30] Onus of proof See [8-6940.20]. [9-7960.35] Party— s 779A(1), (b), (2) See [8-6940.25]. [9-7960.40] Pay the costs only if — s 779A(2) See [8-6940.30] [9-7960.45] Unreasonable act or omission — s 779A(2)(b) See [8-6940.45]. [9-7960.50] Outline of section [8-6940.65] The Revised Explanatory Memorandum to the Fair Work Bill 2013 states at [288] that: New s 779A is similar to the costs orders that are available against parties in relation to unfair dismissal matters (see s 400A). The Revised Explanatory Memorandum goes on to state at [290] that: The power to award costs under new s 779A is not intended to prevent a party from robustly pursuing or defending a dispute before the FWC. Rather, the power is intended to address the small proportion of litigants who pursue or defend disputes in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party. *Editors’ note: Commentary on s 779A by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[9-7970] agents

Costs orders against lawyers and paid

780 (1) This section applies if: (a) an application for the FWC to deal with a dispute has been made under section 773; and (b) a person who is a party to the dispute has engaged a lawyer or paid agent (the representative) to represent the person in the dispute; and

under section 596, the person is required to seek the FWC’s (c) permission to be represented by the representative. (2) The FWC may make an order for costs against the representative for costs incurred by the other party to the dispute if the FWC is satisfied that the representative caused those costs to be incurred because: (a) the representative encouraged the person to start, continue or respond to the dispute and it should have been reasonably apparent that the person had no reasonable prospect of success in the dispute; or (b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute. (3) The FWC may make an order under this section only if the other party to the dispute has applied for it in accordance with section 781. (4) This section does not limit the FWC’s power to order costs under section 611. [s 780 subst Act 73 of 2013 s 3 and Sch 4A item 19, opn 1 Jan 2014]

[page 1048]

[9-7990]

Applications for costs orders

781 An application for an order for costs in relation to an application under section 773 must be made within 14 days after the FWC finishes dealing with the dispute. [s 781 subst Act 73 of 2013 s 3 and Sch 4A item 19, opn 1 Jan 2014]

[9-8000]

Schedule of costs

781A (1) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order under section 611, 779A or 780 in relation to an application under section 773, including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis. (2) If a schedule of costs is prescribed for the purposes of subsection (1),

then, in awarding costs under section 611, 779A or 780 in relation to an application under section 773, the FWC: (a) is not limited to the items of expenditure appearing in the schedule; but (b) if an item does appear in the schedule — must not award costs in relation to that item at a rate or of an amount that exceeds the rate or amount appearing in the schedule. [s 781A insrt Act 73 of 2013 s 3 and Sch 4A item 19, opn 1 Jan 2014]

[9-8010]

Contravening costs orders

782 A person to whom an order for costs made under section 779A or 780 applies must not contravene a term of the order. Note: This section is a civil remedy provision (see Part 4-1). [s 782 am Act 73 of 2013 s 3 and Sch 4A item 20, opn 1 Jan 2014]

[9-8020] 4 Reason for action to be presumed unless proved otherwise 783 (1) If: (a) in an application in relation to a contravention of subsection 772(1), it is alleged that a person took, or is taking, action for a particular reason; and (b) taking that action for that reason would constitute a contravention of subsection 772(1); it is presumed that the action was, or is being, taken for that reason, unless the person proves otherwise. [subs (1) am Act 73 of 2013 s 3 and Sch 4A item 21, opn 1 Jan 2014]

(2) Subsection (1) does not apply in relation to orders for an interim injunction. COMMENTARY TO SECTION 783*

Derivation …. History …. Alleged — s 783 (1)(a) …. Interim injunction — s 136(2) ….

[9-8020.01] [9-8020.05] [9-8020.10] [9-8020.15]

[page 1049]

Outline of section ….

[9-8020.20]

[9-8020.01] Derivation Section 361 Fair Work Act 2009. See [7-2850.1]. [9-8020.05] History See [7-2850.5]. [9-8020.10] Alleged — s 783 (1)(a) See [7-2850.10]. [9-8020.15] Interim injunction — s 136(2) See [7-2850.20]. [9-8020.20] Outline of section See [7-2850.30]. *Editors’ note: Commentary to 783 by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

DIVISION 3 — NOTIFICATION AND CONSULTATION REQUIREMENTS RELATING TO CERTAIN TERMINATIONS OF EMPLOYMENT Subdivision A — Object of this Division

[9-8220]

Object of this Division

784 The object of this Division is to give effect, or further effect, to: (a) the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer, done at Geneva on 22 June 1982 ([1994] ATS 4); and (b) the Termination of Employment Recommendation, 1982 (Recommendation No. R166) which the General Conference of the ILO adopted on 22 June 1982. Note 1: In 2009, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au). Note 2: In 2009, the text of a Recommendation adopted by the General Conference of the ILO was accessible through the ILO website (www.ilo.org).

Subdivision B — Requirement to notify Centrelink

[9-8360] Employer to notify Centrelink of certain proposed terminations 785 (1) If an employer decides to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons, the employer must give a written notice about the proposed terminations to the Chief Executive Officer of the Commonwealth Services Delivery Agency (Centrelink). (2) The notice must be in the form (if any) prescribed by the regulations and set out: (a) the reasons for the terminations; and (b) the number and categories of employees likely to be affected; and (c) the time when, or the period over which, the employer intends to carry out the terminations. (3) The notice must be given: (a) as soon as practicable after making the decision; and (b) before terminating an employee’s employment in accordance with the decision. [page 1050] (4) The employer must not terminate an employee’s employment in accordance with the decision unless the employer has complied with this section. Note: This subsection is a civil remedy provision (see Part 4-1).

(5) The orders that may be made under subsection 545(1) in relation to a contravention of subsection (4) of this section: (a) include an order requiring the employer not to terminate the employment of employees in accordance with the decision, except as permitted by the order; but (b) do not include an order granting an injunction.

Subdivision C — Failure to notify or consult registered employee

associations

[9-8500] FWC may make orders where failure to notify or consult registered employee associations about terminations 786 (1) The FWC may make an order under subsection 787(1) if it is satisfied that: (a) an employer has decided to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons; and (b) the employer has not complied with subsection (2) (which deals with notifying relevant registered employee associations) or subsection (3) (which deals with consulting relevant registered employee associations); and (c) the employer could reasonably be expected to have known, when he or she made the decision, that one or more of the employees were members of a registered employee association. [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 881, opn 1 Jan 2013]

Notifying relevant registered employee associations (2) An employer complies with this subsection if: (a) the employer notifies each registered employee association of which any of the employees was a member, and that was entitled to represent the industrial interests of that member, of the following: (i) the proposed terminations and the reasons for them; (ii) the number and categories of employees likely to be affected; (iii) the time when, or the period over which, the employer intends to carry out the terminations; and (b) the notice is given: (i) as soon as practicable after making the decision; and (ii) before terminating an employee’s employment in accordance

with the decision. Consulting relevant registered employee associations (3) An employer complies with this subsection if: (a) the employer gives each registered employee association of which any of the employees was a member, and that was entitled to represent the industrial interests of that member, an opportunity to consult the employer on: (i) measures to avert or minimise the proposed terminations; and (ii) measures (such as finding alternative employment) to mitigate the adverse effects of the proposed terminations; and [page 1051] (b) the opportunity is given: (i) as soon as practicable after making the decision; and (ii) before terminating an employee’s employment in accordance with the decision. [s 786 am Act 174 of 2012 s 3 and Sch 9 item 880, opn 1 Jan 2013]

[9-8520]

Orders that the FWC may make

787 (1) The FWC may make whatever orders it considers appropriate, in the public interest, to put: (a) the employees; and (b) each registered employee association referred to in paragraph 786(2)(a) or (3)(a); in the same position (as nearly as can be done) as if the employer had complied with subsections 786(2) and (3). [subs (1) am Act 174 of 2012 s 3 and Sch 9 item 883, opn 1 Jan 2013]

(2) The FWC must not, under subsection (1), make orders for any of the following: (a) reinstatement of an employee;

(b) withdrawal of a notice of termination if the notice period has not expired; (c) payment of an amount in lieu of reinstatement; (d) payment of severance pay; (e) disclosure of confidential information or commercially sensitive information relating to the employer, unless the recipient of such information gives an enforceable undertaking not to disclose the information to any other person; (f) disclosure of personal information relating to a particular employee, unless the employee has given written consent to the disclosure of the information and the disclosure is in accordance with that consent. [subs (2) am Act 174 of 2012 s 3 and Sch 9 item 883, opn 1 Jan 2013] [s 787 am Act 174 of 2012 s 3 and Sch 9 item 882, opn 1 Jan 2013]

[9-8540]

Application to the FWC for order

788 The FWC may make the order only on application by: (a) one of the employees; or (b) a registered employee association referred to in paragraph 786(2) (a) or (3)(a); or (c) any other registered employee association that is entitled to represent the industrial interests of one of the employees. [s 788 am Act 174 of 2012 s 3 and Sch 9 items 884, 885, opn 1 Jan 2013]

Subdivision D — Limits on scope of this Division

[9-8680]

Limits on scope of this Division

789 (1) This Division does not apply in relation to any of the following employees: (a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season; (b) an employee whose employment is terminated because of serious misconduct;

(c) a casual employee; [page 1052] (d) an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement; (e) a daily hire employee working in the building and construction industry (including working in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures); (f) a daily hire employee working in the meat industry in connection with the slaughter of livestock; (g) a weekly hire employee working in connection with the meat industry and whose termination of employment is determined solely by seasonal factors; (h) an employee prescribed by the regulations as an employee in relation to whom this Division does not apply. (2) Paragraph (1)(a) does not prevent this Division from applying in relation to an employee if a substantial reason for employing the employee as described in that paragraph was to avoid the application of this Division.

PART 6-4A — SPECIAL PROVISIONS ABOUT TCF OUTWORKERS [Pt 6-4A insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012]

DIVISION 1 — INTRODUCTION

[9-8685] 789AA

Guide to this Part

This Part contains special provisions about TCF outworkers. Division 2 provides for TCF contract outworkers to be taken to be employees in certain circumstances for the purposes of most of the provisions of this Act. Division 3 provides for TCF outworkers (whether employees or contractors) to recover unpaid remuneration from entities that are indirectly responsible for work done by the outworkers. Division 4 allows the regulations to prescribe a code dealing with standards of conduct and practice relating to TCF outwork. Division 5 contains miscellaneous provisions.

[9-8690]

Meanings of employee and employer

789AB In this Part, employee and employer have their ordinary meanings. COMMENTARY TO SECTION 789AB*

Derivation …. Employee — s 789AB …. Employer — s 789AB …. This Part – s 798AB ….

[9-8690.01] [9-8690.05] [9-8690.10] [9-8690.15]

[9-8690.01] Derivation The section is new. [9-8690.05] Employee — s 789AB See ss 12, 15(1), 30E(1) and 30P(1). [page 1053] [9-8690.10] Employer — s 789AB See ss 12, 15(2), 30E(2) and 30P(2). [9-8690.15] This Part – s 798AB This part is Pt 6-4A. *Editors’ note: Commentary on s 789AB prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[9-8695]

Objects of this Part

789AC The objects of this Part are to eliminate exploitation of outworkers in the textile, clothing and footwear industry, and to ensure that those outworkers are employed or engaged under secure, safe and fair systems of work, by: (a) providing nationally consistent rights and protections for those

outworkers, regardless of whether they are employees or contractors; and (b) establishing an effective mechanism by which those outworkers can recover amounts owing to them in relation to their work from other parties in a supply chain; and (c) providing for a code dealing with standards of conduct and practice to be complied with by parties in a supply chain.

DIVISION 2 — TCF CONTRACT OUTWORKERS TAKEN TO BE EMPLOYEES IN CERTAIN CIRCUMSTANCES

[9-8700]

Provisions covered by this Division

789BA (1) This Division covers the provisions of this Act, other than the following provisions (and other than regulations made for the purposes of the following provisions): (a) Division 1, and this Division, of this Part; (b) Divisions 2A and 2B of Part 1-3 (application of this Act in referring States); (c) Part 3-4 (right of entry); (d) Part 3-5 (stand down); (e) Part 6-3 (extension of National Employment Standards entitlements); (ea) Part 6-3A (transfer of business from a State public sector employer); (f) Part 6-4 (additional provisions relating to termination of employment); (g) Part 1 of Schedule 1. [subs (1) am Act 175 of 2012 s 3 and Sch 1 item 60, opn 5 Dec 2012]

(2) Provisions of this Act that are not covered by this Division are to be interpreted disregarding the effect of this Division in relation to other provisions of this Act. Note: For example, references to national system employees and national system employers, in provisions of this Act that are not covered by this Division, are to be interpreted disregarding the effect of this Division in relation to the definitions of those expressions in sections 13 and 14.

(3) References in provisions that are covered by this Division to matters dealt with in, or occurring under, provisions of this Act that are not covered by this Division (the excluded provisions) are to be interpreted having regard to the fact that this Division does not apply for the purposes of the excluded provisions. [page 1054]

[9-8705] TCF contract outworkers taken to be employees in certain circumstances 789BB (1) For the purposes of the provisions covered by this Division: (a) a TCF contract outworker is taken to be an employee (within the ordinary meaning of that expression), and to be a national system employee, in relation to particular TCF work performed by the outworker, if: (i) the work is performed directly or indirectly for a Commonwealth outworker entity; and (ii) if the entity is a constitutional corporation — the work is performed for the purposes of a business undertaking of the corporation; and (b) the person (whether a Commonwealth outworker entity referred to in subparagraph (a)(i) or another person) that engages the outworker is taken to be the employer (within the ordinary meaning of that expression), and to be a national system employer, of the outworker in relation to the TCF work. Note 1: See section 17A for when TCF work is performed directly or indirectly for a person. Note 2: See also section 789BC, which allows regulations to deal with matters relating to TCF contract outworkers who are taken by this section to be employees.

(2) A TCF contract outworker is a TCF outworker who performs work other than as an employee. (3) In interpreting any of the following for the purposes of the provisions covered by this Division: (a) provisions of this Act;

(b) any instrument that is relevant to the relationship between the TCF contract outworker and the person referred to in paragraph (1)(b); an interpretation that is consistent with the objective stated in subsection (4) is to be preferred to an interpretation that is not consistent with that objective. (4) The objective is that a TCF contract outworker who is taken to be an employee in relation to TCF work should have the same rights and obligations in relation to the work as an employee would have if he or she were employed by the person referred to in paragraph (1)(b) to do the work. (5) This section has effect subject to regulations made for the purposes of section 789BC.

[9-8710] Regulations relating to TCF outworkers who are taken to be employees 789BC (1) For the purpose of furthering the objective stated in subsection 789BB(4), the regulations may do either or both of the following in relation to TCF outworkers (deemed employees) who are taken by section 789BB to be employees of other persons (deemed employers) in relation to TCF work: (a) provide that provisions covered by this Division apply in relation to deemed employees and deemed employers with specified modifications; (b) otherwise make provision relating to how provisions covered by this Division apply in relation to deemed employees and deemed employers. [page 1055] (2) Regulations made for the purposes of subsection (1) may provide differently: (a) for the purposes of different provisions; or (b) in relation to different situations. (3) This section does not allow regulations to: (a) modify a provision that creates an offence, or that imposes an

obligation which, if contravened, constitutes an offence; or (b) include new provisions that create offences.

DIVISION 3 — RECOVERY OF UNPAID AMOUNTS

[9-8715]

When this Division applies

789CA (1) Outworker not paid for TCF work in certain circumstances This Division applies if: (a) a TCF outworker performs TCF work for a person (the responsible person): (i) as an employee of the responsible person; or (ii) under a contract for the provision of services to the responsible person; and (b) the responsible person does not pay an amount (the unpaid amount) that is payable, in relation to the TCF work, by the responsible person: (i) to the outworker; or (ii) to another person, for the benefit of the outworker; on or before the day when the amount is due for payment; and (c) the unpaid amount is payable under: (i) a contract; or (ii) this Act, or an instrument made under or in accordance with this Act; or (iii) another law of the Commonwealth; or (iv) a transitional instrument as continued in existence by Schedule 3 to the Transitional Act; or (v) a State or Territory industrial law, or a State industrial instrument. Note: For the purpose of this Division, the effect of Division 2 must be taken into account in determining whether a TCF outworker performs work as a national system employee of a national system employer. [subs (1) am Act 175 of 2012 s 3 and Sch 1 item 61, opn 5 Dec 2012]

(2) Without limiting paragraph (1)(b), the unpaid amount may (subject to

paragraph (1)(c)) be an amount of any of the following kinds that relates to (or is attributable to) the TCF work: (a) an amount payable by way of remuneration or commission; (b) an amount payable in respect of leave; (c) an amount payable by way of contributions to a superannuation fund; (d) an amount payable by way of reimbursement for expenses incurred. (3) Meaning of indirectly responsible entity Subject to subsections (4) and (5), a person is an indirectly responsible entity in relation to the TCF work if: (a) the person is a Commonwealth outworker entity; and (b) the TCF work was performed indirectly: (i) for the entity; and [page 1056] (ii) if the entity is a constitutional corporation — for the purposes of a business undertaking of the corporation. Note: See section 17A for when TCF work is performed indirectly for a person.

(4) Extent of liability of indirectly responsible entity If subsection (3) is satisfied in relation to a Commonwealth outworker entity and part only of the TCF work: (a) the entity is an indirectly responsible entity in relation to that part of the TCF work; and (b) for the purposes of applying this Division in relation to the entity and that part of the TCF work, the unpaid amount is so much only of the amount referred to in paragraph (1)(b) as is attributable to that part of the TCF work. (5) Retailer of goods not an indirectly responsible entity in certain circumstances If: (a) a Commonwealth outworker entity, as a retailer, sells goods produced by the TCF work; and (b) the entity does not have any right to supervise or otherwise control

the performance of the work before the goods are delivered to the entity; the entity is not an indirectly responsible entity in relation to the TCF work.

[9-8720] Liability of indirectly responsible entity for unpaid amount 789CB (1) Each indirectly responsible entity (or the indirectly responsible entity, if there is only one) is liable to pay the unpaid amount. (3) If there are 2 or more indirectly responsible entities, those entities are jointly and severally liable for the payment of the unpaid amount. (4) Subject to subsection 789CE(1A), this section does not affect the liability of the responsible person to pay the unpaid amount.

[9-8725] Demand for payment from an apparent indirectly responsible entity 789CC (1) The TCF outworker, or a person acting on behalf of the outworker, may give an apparent indirectly responsible entity a written demand for payment of the amount that the outworker reasonably believes the entity is liable for under section 789CB. (2) An entity is an apparent indirectly responsible entity in relation to the TCF work if the TCF outworker reasonably believes that the entity is an indirectly responsible entity in relation to the TCF work. (3) The demand must: (a) specify the amount, and identify the responsible person; and (b) include particulars of the TCF work to which the amount relates, and why the amount is payable by the entity to which the demand is given; and (c) state that if the specified amount is not paid by a specified time, proceedings may be commenced against the entity under section 789CD. (4) The time specified for the purpose of paragraph (3)(c) must not be less than 14 days after the demand is given to the entity.

[subs (4) am Act 136 of 2012 s 3 and Sch 1 item 124, opn 1 July 2012]

[page 1057]

[9-8730] Court order for entity to pay amount demanded 789CD (1) If: (a) in accordance with section 789CC, an apparent indirectly responsible entity has been given a demand for payment of a specified amount; and (b) the amount has not been paid in full by the time specified in the demand; a person or organisation specified in subsection (2) (the applicant) may commence proceedings for an order requiring the entity to pay the specified amount. (2) The proceedings may be commenced: (a) by the TCF outworker; or (b) on the TCF outworker’s behalf, by: (i) an organisation that is entitled to represent the industrial interests of the outworker; or (ii) an inspector. (3) The proceedings may be commenced in: (a) the Federal Court; or (b) the Federal Circuit Court; or (c) an eligible State or Territory court. [subs (3) am Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013]

(4) Subject only to subsections (5) and (6), the court may make an order requiring the entity to pay, to the outworker or to another person on the outworker’s behalf, the specified amount (or so much of that amount as the applicant alleges is still owing). (5) The court must not make an order under subsection (4) if the entity

satisfies the court that the entity is not liable under section 789CB to pay any of the specified amount. (6) If the entity satisfies the court that the amount of the entity’s liability under section 789CB is less than the specified amount (or is less than so much of that amount as the applicant alleges is still owing), the court must not make an order under subsection (4) requiring the entity to pay more than that lesser amount. (7) In making the order, the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary. (8) Without limiting subsection (7), in determining the amount of interest, the court must take into account the period between the day when the unpaid amount was due for payment by the responsible person and the day when the order is made. (9) Proceedings cannot be commenced under this section more than 6 years after the time when the unpaid amount became due for payment by the responsible person.

[9-8735] Effect of payment by entity (including entity’s right to recover from responsible person) 789CE (1) This section applies if an entity pays an amount in discharge of a liability of the entity under section 789CB, or pursuant to an order under section 789CD. (1A) The payment discharges the liability of the responsible person for the unpaid amount, to the extent of the payment. This does not affect any right that the entity has to recover an equivalent amount from the responsible person (under this section or otherwise) or from another person, or to be otherwise indemnified in relation to the making of the payment. [page 1058] (2) The entity may, in accordance with this section, recover from the responsible person an amount (the recoverable amount) equal to the sum of: (a) the amount paid by the entity as mentioned in subsection (1); and

(b) any interest paid by the entity in relation to that amount pursuant to an order under section 789CD. (3) The entity may recover the recoverable amount: (a) by offsetting it against any amount that the entity owes to the responsible person; or (b) by action against the responsible person under subsection (4). (4) The entity may commence proceedings against the responsible person for payment to the entity of the recoverable amount. The proceedings may be commenced in: (a) the Federal Court; or (b) the Federal Circuit Court; or (c) an eligible State or Territory court. [subs (4) am Act 13 of 2013 s 3 and Sch 2 item 1, opn 12 Apr 2013]

(5) The court may make an order requiring the responsible person to pay the entity the recoverable amount (or so much of it as is still owing) if the court is satisfied that: (a) this section applies as mentioned in subsection (1); and (b) the entity has not otherwise recovered the recoverable amount in full from the responsible person. (6) In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary. (7) Without limiting subsection (6), in determining the amount of interest, the court must take into account the period between the day when the recoverable amount was paid by the entity and the day when the order is made. (8) Proceedings cannot be commenced under this section more than 6 years after the time when the entity paid the recoverable amount.

[9-8740] rights

Division does not limit other liabilities or

789CF Nothing in this Division limits any other liability or right in respect of the entitlement of the TCF outworker to the unpaid amount (or to have the

unpaid amount paid to another person for the outworker’s benefit).

DIVISION 4 — CODE OF PRACTICE RELATING TO TCF OUTWORK

[9-8745]

Regulations may provide for a code

789DA For the purpose of furthering the objects of this Part, the regulations may prescribe a code (the TCF outwork code) dealing with standards of conduct and practice to be complied with in relation to any of the following: (a) the employment or engagement of TCF outworkers; (b) arranging for TCF work to be performed, if the work: (i) is to be performed by TCF outworkers; or (ii) is of a kind that is often performed by TCF outworkers; [page 1059] (c) the sale of goods produced by TCF work. Note 1: In situations where there is a chain or series of arrangements for the supply or production of goods, the TCF outwork code may (subject to section 789DC) impose obligations on any persons that are parties to arrangements in that chain or series. Note 2: References in other provisions to “this Act” include the code, because the code is in the regulations and is therefore within the definition of this Act in section 12.

[9-8750] Matters that may be dealt with in TCF outwork code 789DB (1) The matters that may be dealt with in the TCF outwork code include (but are not limited to) the following: (a) record keeping requirements; (b) reporting on compliance with record keeping requirements, or with other requirements of the code; (c) general matters relating to the operation and administration of the

code. (2) The TCF outwork code must not specify wages or other entitlements for TCF outworkers.

[9-8755] Persons on whom obligations may be imposed by TCF outwork code 789DC (1) The TCF outwork code may only impose obligations on a person if one or more of subsections (2) to (5) applies to the person. Note: See also subsection (6), which limits the matters in relation to which obligations may be imposed.

(2) This subsection applies to a person if the person is a national system employer that employs TCF outworkers. Note: For the purpose of this Division, the effect of Division 2 must be taken into account in determining whether a person is a national system employer that employs TCF outworkers.

(3) This subsection applies to a person if: (a) the person is a Commonwealth outworker entity; and (b) the person arranges for TCF work to be performed (directly or indirectly): (i) for the person; and (ii) if the person is a constitutional corporation — for the purposes of a business undertaking of the corporation; and (c) the work: (i) is to be performed by TCF outworkers; or (ii) is of a kind often performed by TCF outworkers. Note: See section 17A for when a person arranges for TCF work to be performed directly or indirectly for the person.

(4) This subsection applies to a person if: (a) the person arranges for TCF work to be performed; and (b) the work: (i) is to be performed by TCF outworkers; or (ii) is of a kind often performed by TCF outworkers; and (c) the work is to be performed indirectly: (i) for another person, being a Commonwealth outworker entity;

and [page 1060] (ii) if that Commonwealth outworker entity is a constitutional corporation — for the purposes of a business undertaking of that corporation. (5) This subsection applies to a person if the person is a constitutional corporation that sells goods produced by TCF work. (6) The capacity for the TCF outwork code to impose obligations on a person is subject to the following limitations: (a) the obligations that may be imposed on a person because subsection (2) applies to the person are limited to obligations relating to the person’s employment of TCF outworkers; (b) the obligations that may be imposed on a person because subsection (3) applies to the person are limited to obligations relating to TCF work (or an arrangement for TCF work) because of which that subsection applies to the person; (c) the obligations that may be imposed on a person because subsection (4) applies to the person are limited to obligations relating to TCF work (or an arrangement for TCF work) because of which that subsection applies to the person; (d) the obligations that may be imposed on a person because subsection (5) applies to the person are limited to obligations relating to the person being a seller of goods as referred to in that subsection.

[9-8760] Other general matters relating to content of TCF outwork code 789DD (1) The TCF outwork code may be expressed to apply in relation to: (a) all persons covered by section 789DC, or specified classes of those

persons; and (b) all TCF work, or specified classes of TCF work. Note: A class of person or TCF work may (for example) be identified by reference to a particular sector of the textile, clothing or footwear industry.

(2) The TCF outwork code may provide differently for: (a) different classes of persons covered by section 789DC; or (b) different classes of TCF work; or (c) different situations.

[9-8765] Relationship between the TCF outwork code and other instruments 789DE (1) A TCF award prevails over the TCF outwork code, to the extent of any inconsistency. (2) The TCF outwork code prevails over any of the following, to the extent of any inconsistency: (a) an enterprise agreement; (b) a workplace determination; (c) an agreement-based transitional instrument, as continued in existence by Schedule 3 to the Transitional Act. [subs (2) am Act 175 of 2012 s 3 and Sch 1 item 62, opn 5 Dec 2012]

(3) Subject to subsection (5), the TCF outwork code may: (a) make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time; or [page 1061] (b) make provision to the effect that compliance with a specified term of an instrument or other writing as in force or existing from time to time is taken to satisfy a particular requirement of the code. (4) The kinds of instrument or other writing by reference to which the TCF

outwork code may make provision as mentioned in subsection (3) include (but are not limited to) the following: (a) a TCF award; (b) a code (however described), dealing with matters relating to outworkers, that is made under a law of a State or Territory. (5) The TCF outwork code cannot make provision as mentioned in subsection (3) by reference to any of the following: (a) an enterprise agreement; (b) a workplace determination; (c) an agreement-based transitional instrument, as continued in existence by Schedule 3 to the Transitional Act. [subs (5) am Act 175 of 2012 s 3 and Sch 1 item 62, opn 5 Dec 2012]

(6) Subsections (3) and (4) have effect despite subsection 14(2) of the Legislation Act 2003. [subs (6) am Act 126 of 2015 s 3 and Sch 1 item 213, opn 5 Mar 2016]

DIVISION 5 — MISCELLANEOUS

[9-8770] Part not intended to exclude or limit State or Territory laws relating to outworkers 789EA (1) This Part is not intended to exclude or limit the operation of a law of a State or Territory (or an instrument made under a law of a State or Territory), to the extent that the law (or instrument) relates to outworkers and is capable of operating concurrently with this Part. (2) A reference in subsection (1) to this Part includes a reference to any regulations made for the purposes of this Part.

PART 6-4B — WORKERS BULLIED AT WORK [Pt 6-4B insrt Act 73 of 2013 s 3 and Sch 3 item 6, opn 1 Jan 2014]

FAIR WORK ACT 2009 ANTI-BULLYING JURISDICTION SUMMARY Editor’s note: This summary of the Fair Work Commission’s new jurisdiction has been authored by a team of employment specialists from Seyfarth Shaw Australia, Justine Turnbull, Partner, Ben Dudley, Partner, Aaron Allegretto, Senior Associate and Vanja Bulut, Associate.

CONTENTS Paragraph Fair Work Act 2009 Anti-Bullying Jurisdiction Summary Background …. Overview ….

[Com 95,010] [Com 95,020] [page 1062]

Paragraph Fair Work Act 2009 Anti-Bullying Jurisdiction Summary Who can make an application to the FWC? ….

[Com 95,030]

What sort of behaviour will constitute bullying? …. How will the FWC deal with applications? …. When and what orders might the FWC make? …. Other Avenues for Addressing Workplace Bullying Claims …. References ….

[Com 95,040] [Com 95,050] [Com 95,060] [Com 95,070] [Com 95,080]

[Com 95,010] Background In 2012, the House of Representatives Standing Committee on Education and Employment released a report titled Workplace Bullying: We Just Want it to Stop.1 The report suggested that current law was inadequate in protecting vulnerable workers from being bullied at work, and recommended a remedy via the Fair Work Commission (FWC). Also in 2012, Safe Work Australia released a report estimating the rate of bullying in Australia at 6.8% and compared this to rates of 1–4% reported in studies from other countries.2 In seeking to address the findings and recommendations of these reports, in 2013 the federal government passed legislation allowing a worker who reasonably believes he or she has been bullied at work to apply to the FWC for an order to stop the bullying. [Com 95,020] Overview From 1 January 2014 Part 6-4B of the Fair Work Act 2009 (Cth) (the Fair Work Act), containing a federal anti-workplace bullying measure, will commence. The new legislation provides that a worker is “bullied” if an individual or group repeatedly behaves unreasonably towards the worker or a group of which the worker is a member and that behaviour creates a risk to health and safety. “Reasonable management action carried out in a reasonable manner” is specifically excluded from the bullying concept. The FWC is empowered to “deal with” applications under Part 6-4B and may make ‘any order it considers appropriate’ (other than an order for payment of money) to prevent the worker being bullied. The FWC has published an anti-bullying “benchbook” (the benchbook), guide and a summary of its case management model and forms for use by applicants, respondents and employers/principals in the jurisdiction. However, the jurisdiction is new, and a body of case law and authority has not yet been developed about how the various concepts will be interpreted and applied. Safe Work Australia and various State Governments have published guides/Codes of Practice to assist workplaces in preventing and dealing with bullying. [Com 95,030] Who can make an application to the FWC? Section 789FC(1) of the Fair Work Act allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying under Section 789FF of the Fair Work Act. In short, to make an application, the following elements need to be established: [page 1063] 1. 2. 3.

The person making the application is a ‘worker’ …3 Who ‘reasonably believes’ …4 That he or she has been ‘bullied at work’5

Each of these elements requires detailed consideration to determine whether the criterion is met. The Fair Work Act provides definitions for “worker” and “bullied at work”. Who is a “worker”? Section 789FC(2) provides that “worker” has the same meaning as in the Work Health and Safety Act 2011 (Cth) (the WHS Act), with the exception that “worker” does not include members of the Defence Force.6 Broadly speaking, for the purposes of the WHS Act, a worker is an individual who performs work in any capacity. Section 7(1) of the WHS Act provides that: A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as: (a) an employee; or (b) a contractor or subcontractor; or (c) an employee of a contractor or subcontractor; or (d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or (e) an outworker; or (f) an apprentice or trainee; or (g) a student gaining work experience; or (h) a volunteer; or (i) a person of a prescribed class. The remaining subsections in s 7 of the WHS Act provide that “worker” includes: The Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee;7 A member of the Defence Force8 (members of the Defence Force are expressly excluded from the definition of “worker” under subs 789FC(2) of Part 6-4B); A person who is the holder of, or acting in, an office established by a law of the Commonwealth or a law of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island);9 A person who constitutes, or is acting as the person constituting, a public authority;10 A person who is, or is acting as, a member or a deputy member of a public authority;11 A person who is, or is acting as, a member or a deputy member of a body established by or under an Act establishing a public authority for a purpose associated with the performance of the functions of the public authority;12 and A person of a class specified in the Minister’s declaration.13 In Arnold Balthazaar v Raelene McGuire; Department of Human Services (Commonwealth) [2014] FWC 2076, one of the first decisions of the FWC under this jurisdiction, it was found that [page 1064] a carer who received social security payments from Centrelink could not be properly characterised as an employee and/or an outworker and/or a volunteer carrying out work for the department. Accordingly, the carer, who alleged that Centrelink staff were bullying him, did not have a valid application that can found jurisdiction in the FWC. What does ‘reasonable belief’ involve? The term “reasonably believes” is a term used in other

legislation and common law. Other sections of the Fair Work Act use the term “reasonably believes”, including ss 503, 504, 519, 655, 707, 708, 711, 715, 716 and 789CC. The term contains two elements that must be satisfied: the first is that the applicant must actually believe that they have been “bullied at work”. That is, the worker must subjectively hold the belief that they have been bullied at work; and the second is that the applicant’s belief must be reasonable — that is, the belief held by the worker must be objectively reasonable. The FWC will determine what is “reasonable” on a case-by-case basis, taking into account all the circumstances. In Amie Mac v Bank of Queensland Ltd and Others [2015] FWC 774, Vice President Hatcher stated at [79] that “objectively speaking, there must be something to support it or some other rational basis for the holding of the belief and it is not irrational or absurd”. When is someone “bullied at work”? Section 789FD(1) of the Fair Work Act provides that a worker is “bullied at work” if: while the worker is at work in a constitutionally-covered business, an individual or group of individuals repeatedly behaves unreasonably towards the worker (or a group of workers of which the worker is a member); and that behaviour creates a risk to health and safety. Section 789FD(2) expressly excludes reasonable management action carried out in a reasonable manner from the definition of “bullied”. These elements are addressed in turn below. When is a worker at work? The term at work is not defined in Pt 6-4B of the Fair Work Act. A five member Full Bench in Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others [2014] FWCFB 9227 found (at [51]) that the legal meaning of the expression “while the worker is at work” would cover circumstances where the alleged bullying conduct occurs at a time when the worker is performing work, at any time or location, and when the worker is engaged in some other activity which is authorised or permitted by their employer. The Full Bench also noted: [53] In most instances the practical application of the definition of “bullied at work” in s 789FD will present little difficulty. But there will undoubtedly be cases which will be more complex, some of which were canvassed during the course of oral argument. For example, a worker receives a phone call from their supervisor about work related matters, while at home and outside their usual working hours. Is the worker “at work” when he or she engages in such a conversation? In most cases the answer will be yes, but it will depend on the context, including custom and practice, and the nature of the worker’s contract. With respect to the particular challenge of bullying which occurs on social media, the Full Bench rejected the submission that the worker would have to be “at work” at the time the social media posts were made. Rather, the Full Bench found that: [55] … The behaviour continues for as long as the comments remain on facebook. It follows that the worker need not be “at work” at the time the comments are posted, it would suffice if they accessed the comments later while “at work”, subject to the comment we make at [51] above [as referred to above]. [page 1065]

What is a constitutionally-covered business? Section 789FD of the Fair Work Act does not require that the worker who has been bullied is employed, engaged or otherwise legally connected to the particular business in which the bullying takes place. Rather, it requires only that the bullying conduct takes place while the worker is at work in a constitutionally-covered business. In A B [2014] FWC 6723, the FWC held that applications to stop bullying cannot be made by employees of state government departments or authorities (in this case, a school teacher employed by the NSW Department of Education), as these types of workers are not employed in a constitutionallycovered business. Pursuant to s 789FD(3) of the Fair Work Act, a constitutionally-covered business is a business or undertaking within the meaning of the WHS Act conducted by a person where one of the following applies: the person is a constitutional corporation; the person is the Commonwealth; the person is a Commonwealth authority; the person is a body corporate incorporated in a Territory; or the business or undertaking is conducted principally in a Territory or Commonwealth place. The concept of business or undertaking (also known as PCBU) is a broad one. A business is usually an enterprise operated with the aim of making a profit and has a degree of organisation, system and continuity.14 Undertakings usually have elements of organisation, systems and possibly continuity, but are usually not profit-making or commercial in nature”.15 There are certain exemptions from what is a business or undertaking.16 It is possible that more than one person may be conducting the particular business or undertaking. Even if one of the persons conducting the business does not fall within s 789FD(3)(a), it is still possible that the business or undertaking is a constitutionally-covered business. Many, but not all, persons conducting businesses or undertakings in Australia are constitutional corporations. However, the person conducting a particular business or undertaking might be: a sole-trader, partnership or unincorporated association; a state government or authority. Pursuant to s 51(xx) of the Australian Constitution, the term constitutional corporation includes” foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.”17 The analysis involves two steps. First, it must be established that the entity in question is a “corporation”. Second, it must be established that it is a “foreign, trading or financial corporation.” Corporations include entities incorporated under the Corporations Act 2001 (Cth) and entities that have corporate status conferred on them by other legislation, such as statutory authorities or not-for-profit bodies incorporated under special legislation. In ascertaining whether a worker performs work for a constitutionally covered business, it may be necessary to consider a preliminary issue of for whom the worker actually performs their work. In Mircea Stancu [2015] FWC 1999, the applicant was a volunteer who was placed by Australian Volunteers International (AVI) and performed work as a Sanitation Engineer in the Ministry of Public Works and Utilities, Kiribati. Commissioner Lee concluded that although AVI retained a significant role while the applicant was working in Kiribati, it was the Ministry which obtained the benefit of his work, and he was working as a volunteer for the Ministry, which is not a constitutionally covered business. In any case, Commissioner Lee concluded that the anti-bullying provisions of the Fair Work Act could not apply in Kiribati. [page 1066]

[Com 95,040] What sort of behaviour will constitute bullying? Assuming that the behaviour occurs while the worker is at work in a constitutionally-covered corporation, there are then three key elements that must be established in order for behaviour to constitute bullying. The behaviour must: be repeated; be unreasonable; and create a risk to health and safety. Each of these elements is considered further below. Repeated Behaviour The Explanatory Memorandum states that “repeated behaviour” refers to the persistent nature of the behaviour and can refer to a range of behaviours over time, ie, it is not necessary for the same type of unreasonable behaviour to persist over time. A series of different unreasonable behaviours will constitute bullying, even if there is no repeat of the same specific kind of behaviour. Unreasonable Behaviour The Explanatory Memorandum states that “unreasonable behaviour” is “behaviour that a reasonable person, having regard to the circumstances, may see as unreasonable” — that is, it is an objective test. The question is whether the behaviour is unreasonable from the perspective of a reasonable person taking an objective view of the matter. Again, “reasonableness” will be determined by the FWC on a case-by-case basis, taking into account all of the circumstances. The Explanatory Memorandum states that “unreasonable” behaviour would include (but is not limited to) behaviour that is “victimising, humiliating, intimidating or threatening”. In Amie Mac v Bank of Queensland Ltd and Others [2015] FWC 774, Vice President Hatcher attempted to “draw up a list of features at least some of which one might expect to find in a course of repeated unreasonable behavior that constituted bullying”. He stated that: [99] … My list included the following: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim blaming and discrimination… In The Applicant v General Manager and Company C [2014] FWC 3940, Commissioner Roe considered whether the general manager had engaged in repeated unreasonable behaviour. The Commissioner noted that the behaviour is to be considered in context having regard to the overall situation. He further noted that, “It is to be expected that people, including managers, will from time to time get upset and angry and will express that upset and anger”. Ultimately, Commissioner Roe found that: It was reasonable management action in all of the circumstances for the General Manager to forcefully communicate in both words and body language that the way in which the Applicant was interacting with him was unacceptable and that it could not continue. I accept that if this behaviour was then reinforced by repeated similar behaviour then the behaviour at the October 30 meeting should be considered in a different light and contribute to a finding of unreasonable or bullying behaviour. Risk to Health and Safety The term “risk to health and/or safety” is a term used in workplace health and safety legislation. Accordingly, this term will likely be interpreted by reference to the standards contained in workplace health and safety legislation, especially given that the bullying laws are expressly intended to complement existing workplace health and safety regulation for addressing bullying.

[page 1067] There must be a causal connection between the risk to health and safety and the bullying behaviour — that is, the bullying must be what is creating the relevant risk. Reasonable management action There is a critical exemption from bullying for conduct that is “reasonable management action carried out in a reasonable manner”. This phrase is similar to phrases used in workers compensation legislation throughout Australia and there is therefore a significant body of authority which is likely to bear on the FWC’s interpretation of those words. Nevertheless, the concept may expand upon that body of authority, as the Explanatory Memorandum provides that: 112 Persons conducting a business … need to be able to make necessary decisions to respond to poor performance or if necessary take disciplinary action and also effectively direct and control the way work is carried out. For example, it is reasonable for employers to allocate work and for managers and supervisors to give fair and constructive feedback on a worker’s performance. These actions are not considered to be bullying if that are carried out in a reasonable manner that takes into account the circumstances of the case and do not leave the individual feeling (for example) victimised or humiliated.18 The FWC will consider all the circumstances in determining whether the management action was reasonable, including: the circumstances that led to the need for action to be taken; the circumstances in which the action was taken; and the consequences of the action. Whether conduct is “reasonable” will be determined as a matter of fact, using an objective test (that is, the worker’s perception of the action will not be a relevant factor). It is not expected that the FWC will hold management to a standard of “best practice”.19 In Mircea Stancu [2015] FWC 1999, for instance, Commissioner Lee concluded that the approach taken by management appeared to be reasonable overall, notwithstanding that its procedures for inquiring into complaints about the applicant’s conduct were “not perfect”. In Ms SB [2014] FWC 2104, a manager alleged that she had been subjected to repeated unreasonable treatment by two of her subordinates. The manager told Commissioner Hampton the bullying conduct against her included: the two separate complaints made against her; the company’s decision to investigate those complaints; the company’s failure, following the first complaint, to prevent similar conduct happening again; “ongoing malicious rumours” being spread about her in the workplace, which were perpetuated by her employer failing to notify employees of the outcome of the complaints; daily harassment and badgering by one subordinate; and a subordinate taking notes of conversations between them. Commissioner Hampton, the head of the anti-bullying jurisdiction, found that: bullying could potentially be undertaken by a subordinate towards their manager, and the action taken by the employer in this case was not unreasonable, and although in “hindsight” the company should have provided more support of the applicant, any failure on the company’s part was not “unreasonable”. In providing some clarity on the reasonable management action exception, the Commissioner noted

that the test is whether the management action was reasonable, “not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’”. [page 1068] In Mr Tao Sun [2014] FWC 3839, Commissioner Cloghan similarly dismissed an application for an order to stop bullying, finding that it was not unreasonable for the general manager to allocate a project to the employee, notwithstanding the fact that the project was not referred to in the employee’s position description, and monitor the employee’s performance on the project. The Commissioner noted that: It is not sustainable for employees to say that a task is beyond their skill level and if the Employer does not agree, allege that it is workplace bullying. Such a situation would be tantamount to the Commission endorsing a one sided self determining premise as bullying in the workplace… In James Willis v Marie Gibson and Others [2015] FWC 1131, Commissioner Lewin refused to dismiss an employee’s application based on a jurisdictional objection that the alleged bullying conduct complained of was “reasonable management action carried out in a reasonable manner”. The Commissioner accepted that managers of the employer found the employee problematic to deal with and insufficiently respectful of authority. He noted that there may have been “a reasonable basis for orthodox performance management processes” to be applied to the employee, but stated that “‘disciplinary’ action went beyond this”. He stated that: [12] In my view, a requirement for relevant management action to be reasonable is that there must be some line of cause and effect between conduct, behavior or performance of an employee, and the relevant management action, and that the management action is a reasonable and proportionate response to the attributes of the employee to which it is directed… The Commissioner found that on the evidence before him, he was unable to make a satisfactory link between the employee’s conduct, behavior or work performance and misconduct or unsatisfactory work performance which would warrant “disciplinary action”. In Applicant v Respondent [2014] FWC 6285, Senior Deputy President Drake dismissed an application for an order to stop bullying by a senior public servant. The employee claimed that his senior manager had, among other things, made hurtful remarks, told him to “go back where he came from”, put him down, and fabricated non-existent performance issues. The employer gave evidence that it had already conducted two internal investigations into the employee’s allegations of bullying against his manager and found no evidence of bullying. The employer also gave evidence that the employee had only satisfied one of five criteria of the performance improvement plan instituted for him, and gave examples of problems with the employee’s performance. The Senior Deputy President accepted that the employee had an honestly held belief that the performance management action had been motivated by a desire to find a reason to terminate his employment, but was not persuaded that his belief was justified: I am not persuaded that there is any justification for the applicant’s belief. All of the material which I have considered demonstrates an ordinary exercise of management prerogative. I am satisfied that the respondent’s managers are managing the applicant’s performance in an ordinary fashion. I am not equally satisfied that the applicant is engaging in that review in a cooperative fashion. [Com 95,050] How will the FWC deal with applications? Section 789FE(1) provides the FWC with

a broad discretion to deal with applications. The term “to deal with” is not defined in Part 6-4B, but a note to the subsection provides that: For example, the FWC may start to inform itself of the matter under section 590, it may decide to conduct a conference under section 592, or it may decide to hold a hearing under section 593. [page 1069] The only procedural constraint imposed on the FWC is that it must begin to deal with the application within 14 days after the application is made. The FWC’s draft summary of the case management model (the summary) sets out the manner in which it is expected that FWC will proceed to determine applications. It is noteworthy that the Summary indicates that: The FWC might start to deal with an application by informing itself through inquiries or by requiring the provision of information from other parties (for example, by requiring the employer or PCBU to provide a response to the application) — and it is expected that will be the first step;20 The FWC will ordinarily provide a copy of the application to the individuals whose alleged conduct has prompted the application;21 Jurisdictional issues may be dealt with before any substantive proceedings occur;22 and Mediation will only be proposed where it is appropriate having regard to the nature of the allegations made.23 It is expected that, to the extent that conferences or hearings are required, they would proceed in a similar manner, and subject to similar rules and procedures, as other proceedings before FWC (eg, unfair dismissal proceedings). Of interest is the FWC’s approach in Ms SB (referred to above) where Commissioner Hampton had the proceedings reported anonymously so as to minimise the potential reputational damage to the parties from the proceedings. However, in Justin Corfield [2014] FWC 4887, Bowker and Others v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The-Victorian Branch and Others [2014] FWC 7381 and Amie Mac v Bank of Queensland Ltd and Others [2015] FWC 774, the FWC refused applications to deidentify the parties. In Justin Corfield, the FWC observed that hearings should be conducted in accordance with the principle of open justice, and that “mere embarrassment, distress or damage by publicity” is not a sufficient basis to make an order to de-identify the parties. In Bowker and Others, the FWC refused the respondent union’s application to de-identify the parties finding that the embarrassment and risk of prejudice outlined by the union did not outweigh the desirability of open justice. In Amie Mac, the FWC noted that open justice in anti-bullying cases will either publicly identify persons who have engaged in bullying behavior, or else vindicate the reputations of persons against whom unsubstantiated accusations of bullying are made. In either case, the public scrutiny involved has a deterrent effect that is in the public interest. The FWC retains a general power to dismiss applications if: the application is not made in accordance with the Fair Work Act; the application is frivolous or vexatious; or the application has no reasonable prospect of success.24 Section 789FE(2) provides the FWC with an express power to dismiss an application if the FWC considers that it might involve matters that relate to Australia’s defence, Australia’s national security, existing or future covert operations (within the meaning of s 12E of the WHS Act) of the Australian

Federal Police (AFP) or existing or future international operations (within the meaning of a s 12E of the WHS Act) of the AFP. The FWC can make an order for costs in relation to bullying applications in some circumstances.25 In Ms S.W. [2014] FWC 4476, Commissioner Hampton considered an [page 1070] employer’s application for costs, but ultimately rejected the cost claim against the employee who made an unsuccessful anti-bullying application which failed on jurisdictional grounds, finding that he was not persuaded it should have been reasonably apparent to the applicant that the application had no reasonable prospect of success. Conversely, in Paul Hill v L E Stewart Investments Pty Ltd T/A Southern Highlands Taxis and Coaches; Laurie Stewart; Robert Carnachan; Nick Matinca [2014] FWC 5588, Vice President Hatcher did make a costs order. He found that the FWC had the discretion to make a costs order because it should have been apparent that where the applicant had been dismissed from his employment, there was no reasonable prospect that he would succeed as there was no risk that he would continue to be bullied. The Vice President was persuaded to exercise his discretion because the applicant acted unreasonably by failing to attend a hearing without notice to the Commission or the respondent, and by failing to provide a reasonable explanation for not attending. Legal Representation Similarly to other matters in the FWC, subject to some limited exceptions, parties in anti-bullying applications will need to request permission if they wish to be represented by a lawyer or paid agent pursuant to s 596(2) of the Fair Work Act. In H v Centre and Others [2014] FWC 6128, the employer’s request to be represented by a lawyer was granted, due to the complex nature of the proceedings and issues to be dealt with. The employee opposed the employer’s application, arguing that according to the Anti-bullying Benchbook, parties must normally appear on their own behalf, and further, the proceeding was not particularly complex. However the FWC found the matter would be dealt with more efficiently if the employer was permitted to be represented. In Narissa Vormwald [2014] FWC 7378, the respondent employer and six respondent employees requested permission for legal representation on the basis that this would help the matter be dealt with more efficiently, as the proceedings were complex: there were eight witnesses to be called, and a significant volume of material to deal with. The FWC granted permission for the respondents to be legally represented. In Obatoki v Mallee Track Health & Community Services and Others [2015] FWCFB 1661, the Full Bench granted the respondent to an appeal from an anti-bullying decision permission to be represented by a barrister. The Full Bench held that while the matter was not significantly complex, permission should be granted because the matter would be dealt with more efficiently, and because the issues raised on appeal had not previously been considered by a Full Bench. [Com 95,060] When and what orders might the FWC make? Assuming that there has been a valid application to the FWC, if the FWC is satisfied that: a worker has been bullied at work; and there is a risk that the worker will continue to be bullied, then it may make any order that it considers appropriate to prevent the worker from being bullied, other than an order requiring payment of a pecuniary amount.26 While the orders that may be made is relatively unconstrained, there is no obligation on the FWC to make any order — that is, the making of an order remains entirely within the discretion of the FWC,

even if it has determined that a worker was ‘bullied at work’. The need for the FWC to find that there is a risk that bullying will continue It is important to note that the power of the FWC to grant an order is limited to preventing the worker from being bullied at work, and the focus is on resolving the matter and enabling normal working relationships to resume.27 That is, the jurisdiction is not intended to be used as a mechanism for compensation to be provided for past conduct. Rather, it is “forward looking” and intended to prevent aberrant behaviour recurring. This is emphasised by the fact that the FWC may make an order only if it is [page 1071] satisfied that there is a risk that the worker will continue to be bullied at work. The FWC will take into account a broad range of factors, including whether circumstances have changed or whether action has been taken by the PCBU to deal with the behaviour. It is unlikely that orders will be made where the worker, or the individual responsible for the bullying, is no longer in a position where the bullying could continue (for example, where either no longer works in that business). In Shaw v Australia and New Zealand Banking Group Ltd T/A ANZ Bank; Haines [2014] FWC 3408, the FWC ruled that in circumstances where the employee was dismissed after lodging his anti-bullying application, the FWC could not be satisfied that there was a risk that the employee would continue to be bullied at work. Accordingly, the application was dismissed as there were no reasonable prospects of success. The FWC did note, however, that should the applicant successfully challenge his dismissal and be reinstated, the dismissal of the anti-bullying application would not operate as a bar to any future application. In Obatoki v Mallee Track Health & Community Services and Others [2014] FWC 8828, the applicant sought orders against a number of officers and employees of Mallee Track Health & Community Services (the Association), to which he provided medical services pursuant to a contract between the Association and a company that he controlled. During the proceedings, the parties informed the FWC that the contractual relationship between the Association and the company had ended, and that as such Dr Obatoki would no longer perform medical services for the Association. Deputy President Kovacic therefore dismissed the application on the basis that there could be no continuing risk to Dr Obatoki. On appeal, a Full Bench confirmed that this decision was correct (see Obatoki v Mallee Track Health & Community Services and Others [2015] FWCFB 1661). In Dr Pushpa Ravi v Baker IDI Heart and Diabetes Institute Holdings Ltd; Dr Anne Reutens [2014] FWC 7507, the applicant’s fixed term contract had ended at the time she made her anti-bullying application. The FWC found that there was no indication or evidence that she would be re-employed by the same company in the near future or mid-term, and there was only a mere possibility that she may in the future be employed by the company. Accordingly, there was no risk of continued bullying and the application was dismissed as there were no reasonable prospects of success. Neither the Fair Work Act nor the Explanatory Memorandum specifies what level of risk is required in order for the FWC to make an order. This issue will require detailed consideration by the FWC. The FWC may interpret the level of risk consistently with “risk to health and safety” in s 789FD(1)(b), in which case the standard of risk used in workplace health and safety regulation may inform the standard used in s 789FF. It is also not clear what continue to be bullied means, in particular, is it a risk that just one more incident of unreasonable behaviour will occur, or is it necessary for there to be a risk of continued repeated unreasonable behaviour? This provision requires that the bullying “by the individual or group” will continue, ie, bullying at the hands of the same people.

Who can orders bind? There are no limits on who the orders may bind. The Explanatory Memorandum provides that: ‘orders will not necessarily be limited or apply only to the employer of the worker who is bullied, but could also apply to others, such as co-workers and visitors to the workplace’.28 What type of orders might be made? The Explanatory Memorandum gives the following examples of orders the FWC could make in response to bullying applications.29 that the individual or group of individuals stop the specified behaviour; monitoring of behaviours by an employer; [page 1072] compliance with an employer’s workplace bullying policy; the provision of information and additional support and training to workers; review of the employer’s workplace bullying policy. It is possible, of course, that the FWC might make other orders, including: requiring an employer to transfer the worker, or the individuals responsible for the bullying, to different geographical locations or different business units; or the demotion or discipline of the individuals responsible for the bullying. Indicative of the types of orders the FWC can make, in Applicant v Respondent (PR548852, 21 March 2014) the FWC made orders, albeit by consent, requiring the employee subject to the application to: complete any exercise at the employer’s premises before 8 am; have no contact with the applicant alone; make no comment about the applicant’s clothes or appearance; not send any emails or texts to the applicant except in emergency circumstances; and not raise any work issues without notifying the Chief Operating Officer of the respondent, or his subordinate, beforehand; these orders were amended on 10 September 2014 (PR555329), again by consent, requiring the employee subject to the application to; not exercise on the balcony in front of, or in the vicinity of, the applicant’s desk between 8.15 am and 4.15 pm; not speak to the applicant in circumstances where there are no other individuals within listening-range; make no comment about the applicant’s attire or appearance; not send any emails to the applicant unless the substance of the correspondence is work-related and either of two named co-workers is also an addressee; not send any text messages or call the applicant on her personal telephone unless those messages are in relation to an immediate work-related emergency; and not raise any issues relating to the applicant’s work capabilities or job performance without notifying either of two named co-workers beforehand. In another unusual application heard by Commissioner Williams (Scott Blenkinsop v Blenkinsop Nominees Pty Ltd; Silverglade Pty Ltd; and Ross Blenkinsop (PR555521, 15 September 2014)), two brothers working for the family business agreed, for an initial three-month trial period, that the brothers will, amongst other things:

refrain from making written and or oral statements to each other and or others (save for their families), that are abusive and or offensive to or about each other, and or disparaging of each other; refrain from emailing each other and or each other’s legal representatives excessively (judged objectively to the standard of a reasonable person); and only contact each other via email between the hours of 9 AM and 5 PM, Monday to Friday, limited to no more than three emails per day, except in the case of emergency. Given that the bullying orders to date have been made with the consent of the parties, we are yet to see whether the FWC will exercise its wide powers and issue orders which dictate how an employer operates its business on a day-to-day basis other than by consent. What matters will the FWC consider in making orders? In making orders, the FWC must take into account (to the extent it is aware):30 any final or interim outcomes arising out of an investigation into the matter by another person or body; any procedure available to the worker to resolve grievances or disputes; [page 1073] any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes; and any matters that the FWC considers relevant. The purpose of this provision is to ensure that the FWC frames orders consistently with compliance action being taken by the employer/business or a regulator or other body.31 How are orders of FWC enforced? Section 789FG provides that a person to whom an order under s 789FF applies must not contravene a term of the order. Section 789FG is a civil remedy provision, which means that a person affected by the contravention, an industrial association or an inspector can apply to the Federal Court, the Federal Magistrates’ Court or an eligible State or Territory court for orders in relation to the contravention or proposed contravention of the order.32 The Federal Court or Federal Magistrates’ Court may make any order that the court considers appropriate if the court is satisfied that a person has contravened or proposes to contravene a civil remedy provision.33 [Com 95,070] Other Avenues for Addressing Workplace Bullying Claims There may be other legal avenues of recourse where an employee’s behaviour has been ‘unreasonable’ or ‘inappropriate’ which has the effect of ‘victimising, humiliating, intimidating or threatening’ another employee. Workplace health and safety legislation In serious circumstances, workplace bullying that poses a health and safety risk may be subject of an investigation (and prosecution) by a state health and safety agency. An employee who is injured as a result of workplace bullying may be entitled to lodge a worker’s compensation claim in relation to that injury. Each state or territory work health and safety authority publishes a number of resources on workplace bullying, including codes of practice, guides and fact sheets, some of these are provided in a table under the heading “references” below. Workplace rights legislation Termination of employment An eligible employee34 may make an application to the FWC alleging that

the termination of employment was harsh, unjust or unreasonable.35 A person is dismissed if: (a) the termination of their employment was on the employer’s initiative;36 or (b) the person has resigned from her or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.37 Commonly referred to as a “constructive dismissal”. Adverse Action The Fair Work Act 2009 (Cth) prohibits employers from taking adverse action, against an employee on discriminatory grounds38 or because the person has, or has not, workplace right or proposes to, or proposes not to, exercise a workplace right. [page 1074] An individual who advises, encourages, incites or coerces another second person to take adverse action,39 against a third person may also be taken to have contravened the Fair Work Act. In a workplace bullying context, if a person bullies another employee because of, for example, their “workplace right” or a discriminatory ground, the employee may have recourse under the Fair Work Act 2009 (Cth) to file a “General Protections” application with the FWC. A workplace right includes, among others, the right to make a complaint or inquiry to a body having the capacity under a workplace law to seek compliance with that law. Accordingly, an employee who makes a workplace bullying complaint to the FWC, for example, will be protected from adverse action for making such a complaint. Unlawful termination An employee may also make an “unlawful termination of employment” application where her or his employment was terminated on proscribed grounds.40 A person must not make an unlawful termination application in relation to conduct if the employee is entitled to make a general protections court application in relation to that conduct.41 Discrimination legislation An employee is entitled to file a complaint where the behaviour contravenes the anti-discrimination legislation. Workplace behaviour that discriminates on the basis of on the basis of race, colour, sex, religion, political opinion, national extraction, social origin, age, medical record, criminal record, marital status, impairment, disability, nationality, sexual preference, trade union activity may be subject to a complaint in the anti-discrimination jurisdiction. The Australian Human Rights Commission publishes a guide to Australia’s anti-discrimination laws here. Anti-domestic violence legislation From 1 July 2013, the Fair Work Act 2009 (Cth) was amended to extend the categories of employees who have the right to request flexible working arrangements for employees experiencing family violence42 or are caring or supporting a family or household member because they are experiencing family violence.43 Other criminal law Inappropriate workplace conduct or behaviour that is of a physical nature, a sexual assault, violent or abusive may be referred to the police. A person who commits an assault on another person may be prosecuted for their behaviour. In Victoria, the Crimes Amendment (Bullying) Bill 2011 (Vic) amended the Crimes Act 1958 (Vic)44 to make it an offence for a person to engage in a proscribed kind of “course of conduct”. The Explanatory Memorandum to the Bill describes the “new conduct” to include behaviour that is often described as bullying,45 which includes inciting fear, physical or mental harm, including self- harm.46 Mental harm is defined as including psychological harm and suicidal thoughts.47

Other Claims Negligence/Tort A person may file a claim alleging that the employer owed the person a duty of care. An employer may be tortiously liable for not taking reasonable or necessary steps to prevent [page 1075] an injury, loss or damage to a person, in the care of the employer. Reasonable or necessary steps may include the prevention or management of a workplace bullying complaint or risks. Breach of Contract An employer’s failure to comply with conditions and terms of an employment contract, which may include incorporated workplace policies may result in a breach of contract claim. [Com 95,080] References FWC Case Management Model: http://www.fwc.gov.au/documents/resources/Anti-bullying-case-mgmt-model.pdf Please see the Anti-bullying guidecard at [127-100] for a copy of the form. FWC process flow chart: http://fwc.gov.au/documents/antibullying/AntiBullyingFlowchart.pdf Please see the Anti-bullying guidecard at [127-105] for a copy of the form. FWC guide to Anti-workplace bullying: http://fwc.gov.au/documents/antibullying/Guide_antibullying.pdf Please see the Anti-bullying guidecard at [127-110] for a copy of the form. FWC Benchbook: http://benchbooks.fwc.gov.au/anti-bullying/assets/File/ABBenchbook.pdf FWC Forms Form F72 — Application for an order to stop bullying: http://www.fwc.gov.au/documents/forms/Form_F72.pdf Form F73 — Response from the employer/principal: http://www.fwc.gov.au/documents/forms/Form_F73.pdf Form F74 — Response from a person against whom bullying has been alleged: http://www.fwc.gov.au/documents/forms/Form_F74.pdf

State Federal

WHS Local State Website Publication http://www.safeworkaustralia.gov.au/ Guide for Preventing and Responding to Workplace Bullying48 Dealing with workplace bullying — a worker’s

Federal

http://www.comcare.gov.au

ACT

www.worksafe.act.gov.au

guide Workplace Bullying: Frequently Asked Questions Preventing and Managing bullying at work: a guide for employers Checklist for Employers Addressing Workplace Bullying I think I am Being Bullied — What Should I Do? Recognising and Responding the Risks of Workplace Bullying Developing a Complete Complaints Resolution Process to Address Workplace Bullying [page 1076]

State

WHS Local State Website

NSW

www.workcover.nsw.gov.au

Publication Work Health and Safety (Preventing and Responding to Bullying) Code of Practice 2012 (No 1) Complaint form Bullying prevention kit Preventing and responding to bullying at work: Factsheet Reporting bullying fact sheet Management commitment — guide sheet Other resources may be downloaded here.

NT

QLD

SA

Tas

Vic

WA

1

www.worksafe.nt.gov.au

How to manage work health and safety risks — Code of practice Dealing with bullying at work — workers Workplace Harassment — Information for Workers Duty to Manage Health and Safety Risk — Psychological Hazards www.worksafe.qld.gov.au Prevention of workplace harassment: Code of Practice 2004 Psychological health for small business Workplace bullying. If you don’t step in, you’re support it. www.safework.sa.gov.au Dealing with Workplace Bullying Preventing Workplace Bullying www.wst.tas.gov.au How to Manage Work Health and Safety Risks — Code of Practice Bullying: A guide for employers and workers www.worksafe.vic.gov.au Workplace bullying — prevention and response What To Do If Bullying Happens To You www.commerce.wa.gov.au/Work Code of practice: Violence, Safe/ aggression and bullying at work 2010 Dealing with bullying at work — A guide for workers

House of Representatives Standing Committee on Education and Employment Parliament of

Australia, Workplace Bullying: We Just Want it to Stop (2012) accessed 15 January 2014, www.aph.gov.au. 2 The Australian Workplace Barometer: Report on Psychosocial Safety Climate and Worker Health in Australia, Safe Work Australia (2012) accessed 15 January 2014, www.safeworkasutralia.gov.au at 8. 3 Fair Work Act, s 789FC(1)–(2). 4 Fair Work Act s 789C(1). 5 Fair Work s 789FD(1)–(2). 6 Fair Work s 789FC(2). 7 WHS Act, s 7(2). 8 WHS Act s 7(2A). 9 Fair Work Act s 789FC(1). 10 WHS Act, s 7(2C). 11 WHS Act s 7(2D). 12 WHS Act s 7(2E). 13 WHS Act ss 7(2F), 7 (2G), 7(2H). 14 See “SafeWork Australia — Interpretive Guidelines to model WHS Act — the meaning of “person conducting a business or undertaking”. 15 See SafeWork Australia. 16 See WHS Act, s 5. 17 The Constitution of the Commonwealth of Australia (1901) s 51(xx). 18 See Revised Explanatory Memorandum, Fair Work Amendment Bill 2013 (Cth). 19 See the Benchbook, p 34. 20 See FWC Summary of case management model (the summary), p 9. 21 See the summary, p 9. 22 See the summary, p 10. 23 See the summary, p 10. 24 Fair Work Act, s 587. 25 Fair Work Act, s 611. 26 Fair Work Act, s 789FF(1). 27 Revised Explanatory Memorandum, Fair Work Amendment Bill 2013 (Cth) 36 [120] (EM). 28 EM 35–6 [119]. 29 EM 36 [121]. 30 Fair Work Act, s 789FF (2). 31 EM (Cth) 36 [123]. 32 See Fair Work Act s 539. 33 Fair Work Act s 545. 34 See s 382 of the Fair Work Act 2009 (Cth). 35 Section 385 of the Fair Work Act 2009 (Cth) and s 387 of the Fair Work Act 2009 (Cth) defines the criteria for considering harshness etc. 36 Section 386(1)(a) of the Fair Work Act 2009 (Cth). 37 Section 386(1)(b) of the Fair Work Act 2009 (Cth).

Section 351 of the Fair Work Act 2009 (Cth) sets out the prohibited grounds, being race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. 39 Section 362 of the Fair Work Act 2009 (Cth). 40 Section 772 of the Fair Work Act 2009 (Cth). 41 Section 723 of the Fair Work Act 2009 (Cth). 42 Section 65(1A)(e) of the Fair Work Act 2009 (Cth). 43 Section 65(1A)(f) of the Fair Work Act 2009 (Cth). 44 See s 21A (2)(da), (db), (dc) and (dd) of the Crimes Act 1958 (Vic). 45 Crimes Amendment (Bullying) Bill 2011 (Vic) Explanatory Memorandum — cl 3, p 2. 46 Section 21A (2)(g) of the Crimes Act 1958 (Vic). 47 Section 21A (8) of the Crimes Act 1958 (Vic). 48 Safe Work Australia sought public submissions on a Code of Practice for Workplace Bullying, however, abandoned that process and instead released its Guide for Preventing and Responding to Workplace Bullying. 38

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[page 1077]

DIVISION 1 — INTRODUCTION

[9-8780]

Guide to this Part

789FA This Part allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying.

[9-8785]

Meanings of employee and employer

789FB In this Part, employee and employer have their ordinary meanings. COMMENTARY TO SECTION 789FB*

Derivation …. Employee — s 789FB …. Employer — s 789FB …. Outline of section ….

[9-8785.05] [9-8785.10] [9-8785.15] [9-8785.20]

[9-8785.05] Derivation The section is new. [9-8785.10] Employee — s 789FB See ss 12, 15(1), 30E(1) and 30P(1). [9-8785.15] Employer — s 789FB See ss 12, 15(2), 30E(2) and 30P(2). [9-8785.20] Outline of section The section is curious. As VP Hatcher said in Mac [2015] FWC 774: The words “employee” and “employer” are nowhere used in the text of Part 6-4B (except in s 789FB itself), and the importation of the WHS Act definition of “worker” makes it clear that Part 6-4B is not confined in its operations to employment relationships, but rather seeks to embrace all those who might be performing work for a business or undertaking in whatever capacity. Striving to give s 789FB some work to do, it may perhaps be a confirmatory provision that, insofar as Part 6-4B applies to employees and their employers, it is not confined by the definitions of “national system employee” and “national system employer” in ss 13 and 14 respectively of the FW Act. *Editors’ note: Commentary on s 789FB prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

DIVISION 2 — STOPPING WORKERS BEING BULLIED AT WORK

[9-8790] bullying

Application for an FWC order to stop

789FC (1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF. (2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force. Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

[page 1078] (3) The application must be accompanied by any fee prescribed by the regulations. (4) The regulations may prescribe: (a) a fee for making an application to the FWC under this section; and (b) a method for indexing the fee; and (c) the circumstances in which all or part of the fee may be waived or refunded. COMMENTARY TO SECTION 789FC*

Derivation …. Bullied at work — s 789FC(1) …. Defence Force — s 789FC …. Employee — s 789FC(2) Note …. Contractor — s 789FC(2) Note …. FWC — s 789FC(1), (4)(a) …. Outworker — s 789FC(2) Note …. Reasonably believes — s 789FC(1) ….

[9-8790.01] [9-8790.05] [9-8790.10] [9-8790.15] [9-8790.20] [9-8790.25] [9-8790.30] [9-8790.35]

Subcontractor — s 789FC(2) Note …. Trainee — s 789FC(2) Note …. Volunteer — s 789FC(2) Note …. Worker — s 789FC(1), (2), Note …. Outline of section ….

[9-8790.40] [9-8790.45] [9-8790.50] [9-8790.55] [9-8790.60]

[9-8790.01] Derivation The section is new. [9-8790.05] Bullied at work — s 789FC(1) See ss 12 and 789FD. [9-8790.10] Defence Force — s 789FC See s 7 Work Health and Safety Act 2011. [9-8790.15] Employee — s 789FC(2) Note See s 789FB. [9-8790.20] Contractor — s 789FC(2) Note The term is not defined. [9-8790.25] FWC — s 789FC(1), (4)(a) See s 12. [9-8790.30] Outworker — s 789FC(2) Note See s 12. [9-8790.35] Reasonably believes — s 789FC(1) The question as to whether such a test involves a subjective or objective test or a mixture of both is difficult to answer. For a review of the authorities as to a similar question in a different statutory context see R v Oblack (2005) 65 NSWLR 75; 195 FLR 212; [2005] NSWCCA 440; BC200511158. The expression “reasonable belief” and similar expressions are utilised in a wide variety of contexts by the statutory and common law. It is clear from cases decided in those differing contexts that not only must the requisite belief be actually and genuinely be held by the relevant person, but in addition the belief must be reasonable in the sense that, objectively speaking, there must be something to support it or some other rational basis for the holding of the belief and it is not irrational or absurd: Mac [2015] FWC 774 at [79]. [9-8790.40] Subcontractor — s 789FC(2) Note The term is not defined. [9-8790.45] Trainee — s 789FC(2) Note See [5-970.300.05]. [9-8790.50] Volunteer — s 789FC(2) Note See [5-970.95.50]. [page 1079] [9-8790.55] Worker — s 789FC(1), (2), Note See s 7 Work Health and Safety Act 2011. In Balthazaar v Department of Human Services (Cth) (2014) 241 IR 390; [2014] FWC 2076, VP Watson held at [17] that: It is clear that the scope of the anti-bullying jurisdiction is very broad and extends well beyond the classes of employees covered by other provisions of the FW Act. Whereas most other provisions of the FW Act regulate the relationships of employers and employees, with certain limitations, the antibullying jurisdiction is clearly intended to cover persons who perform work for a person conducting

a business or undertaking even though there may not be an employment relationship at common law. Indeed the remedy created by the provisions is available with respect to bullying at work that may be engaged in by persons beyond the employer and its employees and independently of any formal relationship between the individuals concerned. Not all relationships involving the performance of work were covered however. His Honour went on to hold at [26] that: In my view, while obviously intended to cover a broad range of work arrangements, the provisions are not unlimited. In my view they are clearly not intended to cover relationships such as students performing work for teachers, domestic work by family members or relationships outside the context of paid or unpaid work in the commonly understood sense. [9-8790.60] Outline of section The section sets out the procedural requirements for an anti bullying application. See generally Joseph Cantanzariti, The Fair Work Commission’s new anti-bullying jurisdiction, Employment Law Bulletin 2014, Col 20 No 2 p 18.

*Editor’s note: Commentary to s 789FC prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[9-8795]

When is a worker bullied at work?

789FD (1) A worker is bullied at work if: (a) while the worker is at work in a constitutionally-covered business: (i) an individual; or (ii) a group of individuals; repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and (b) that behaviour creates a risk to health and safety. (2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner. (3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either: (a) the person is: (i) a constitutional corporation; or (ii) the Commonwealth; or (iii) a Commonwealth authority; or (iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place; then the business or undertaking is a constitutionally-covered business. [page 1080] COMMENTARY ON SECTION 789FD*

Derivation …. At work — 789FD(1)(a) …. Behaves unreasonably — 789FD (1)(a) …. Commonwealth place — 789FD(3)(b) …. Commonwealth authority — 789FD(3)(a)(iii) …. Constitutional corporation — 789FD(3)(a)(i) …. Constitutionally-covered business — 789FD(1)(a) …. Reasonable management action — 789FD(2) …. Repeatedly — 789FD(1)(a) …. While — s 789FD(1)(a) …. Outline of section ….

[9-8795.01] [9-8795.03] [9-8795.05] [9-8795.10] [9-8795.15] [9-8795.20] [9-8795.25] [9-8795.30] [9-8795.35] [9-8795.36] [9-8795.40]

[9-8795.01] Derivation The section is new. In Sun [2014] FWC 3839 at [36], Cloghan C held that: Part 6-4B-Workers bullied at work of the FW Act, is the Government’s legislative response to the House of Representatives Standing Committee on Education and Employment Inquiry report “Workplace Bullying, We just want it to stop”. [9-8795.03] At work — 789FD(1)(a) The reference to “is at work” in s 789FD(1) simply provides the context in which the bullying behaviour has taken place. The alleged bullying behaviour must take place prior to the making of an application for an order under s 789FF. Section 789FC(1) makes this clear. Only a worker who reasonably believes that he or she “has been bullied at work” can apply for an order: Kathleen McInnes [2014] FWCFB 1440 at [7]. As Gostencnik DP held in Shaw [2014] FWC 3408 at [16]–[17], the employment relationship must still be in existence for orders to be made: As s 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application. It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing

on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work. In Sharon Bowker v DP World Melbourne [2014] FWCFB 9227 at [48] the Full Bench grappled with the difficult question as to whether cyber bullying took place at work. As the Full Bench reasoned at [48]–[53]: We have concluded that the legal meaning of the expression “while the worker is at work” certainly encompasses the circumstance in which the alleged bullying conduct (ie the repeated unreasonable behaviour) occurs at a time when the worker is “performing work”. Further, being “at work” is not limited to the confines of a physical workplace. A worker will be “at work” at any time the worker performs work, regardless of his or her location or the time of day. As we have mentioned, the focal point of the definition is on the worker (ie the applicant). [page 1081] The individual(s) who engage in the unreasonable behaviour towards the worker need not be ‘at work’ at the time they engage in that behaviour. While a worker performing work will be “at work” that is not an exhaustive exposition of the circumstances in which a worker may be held to be at work within the meaning of s 789FD(1)(a). For example, it was common ground at the hearing of this matter that a worker will be “at work” while on an authorised meal break at the workplace and we agree with that proposition. But while a worker is on such a meal break he or she is not performing work. Indeed by definition they are on a break from the performance of work. It is unnecessary for us to determine whether the provisions apply in circumstances where a meal break is taken outside the workplace. In our view an approach which equates the meaning of “at work” to the performance of work is inapt to encompass the range of circumstances in which a worker may be said to be “at work”. It seems to us that the concept of being “at work” encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work) … In most instances the practical application of the definition of “bullied at work” in s 789FD will present little difficulty. But there will undoubtedly be cases which will be more complex, some of which were canvassed during the course of oral argument. For example, a worker receives a phone call from their supervisor about work related matters, while at home and outside their usual working hours. Is the worker “at work” when he or she engages in such a conversation? In most cases the answer will be yes, but it will depend on the context, including custom and practice, and the nature of the worker’s contract. During the course of oral argument counsel for the MUA submitted that the worker would have to be “at work” at the time the facebook posts were made. We reject this submission. The relevant behaviour is not limited to the point in time when the comments are first posted on facebook. The behaviour continues for as long as the comments remain on facebook. It follows that the worker need not be “at work” at the time the comments are posted, it would suffice if they accessed the comments

later while “at work”, subject to the comment we make at paragraph 51 above. [9-8795.05] Behaves unreasonably — 789FD (1)(a) The Explanatory Memorandum to Fair Work Amendment Bill 2013 notes at [109] that: The Committee went on to note that “repeated behaviour” refers to the persistent nature of the behaviour and can refer to a range of behaviours over time and that “unreasonable behaviour” is behaviour that a reasonable person, having regard to the circumstances may see as unreasonable (in other words it is an objective test). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening. In Mac [2015] FWC 774 at [99]; VP Hatcher wrote that: During a longueur in the hearing, I attempted to draw up a list of the features at least some of which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work. My list included the following: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination. [page 1082] The determination of whether or not behaviour is unreasonable must be done objectively. What was known or should reasonably be known about the situation of particular individuals, including their physical and emotional situation, is part of the objective circumstances. However, just because a person reacts badly to behaviour or perceives behaviour in a particular way does not necessarily make it unreasonable: see VC [2014] FWC 3940 at [66]. In Ms SB [2014] FWC 2104, Hampden C found at [51] that: The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that: management actions do not need to be perfect or ideal to be considered reasonable; a course of action may still be ‘reasonable action’ even if particular steps are not; to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’; any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances. [9-8795.10] Commonwealth place — 789FD(3)(b) See s 12. [9-8795.15] Commonwealth authority — 789FD(3)(a)(iii) See s 12. [9-8795.20] Constitutional corporation — 789FD(3)(a)(i) See s 12.

[9-8795.25] Constitutionally-covered business — 789FD(1)(a) See s 12 and s 789FD(3). [9-8795.30] Reasonable management action — 789FD(2) The Explanatory Memorandum to Fair Work Amendment Bill 2013 at [112] stated that: Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions. They need to be able to make necessary decisions to respond to poor performance or if necessary take disciplinary action and also effectively direct and control the way work is carried out. For example, it is reasonable for employers to allocate work and for managers and supervisors to give fair and constructive feedback on a worker’s performance. These actions are not considered to be bullying if they are carried out in a reareasonable manner that takes into account the circumstances of the case and do not leave the individual feeling (for example) victimised or humiliated. Section 789FD(2) is loosely modelled upon provisions in Australian workers’ compensation statutes which exclude employers’ liability for certain workplace injuries caused by reasonable management action. In the context of s 789FD as a whole, the subsection does not operate as an exclusion as such but only operates (as expressly stated) to avoid doubt, since it is clear that reasonable management action undertaken in a reasonable manner would not constitute unreasonable behaviour under s 789FD(1)(a) in the first place. However it does serve to provide guidance in the interpretation and application of the unreasonable behaviour element of s 789FD(1)(a) in circumstances where an applicant alleges that management action such as performance management, disciplinary action, allocation of work, restructuring of the workplace and employer directions constitutes bullying: Mac [2015] FWC 774 at [95]. [page 1083] As Commissioner Hampton held in GC [2014] FWC 6988 at [52]: In its application, the provision comprises three elements: the behaviour (being relied upon as bullying conduct) must be management action; it must be reasonable for the management action to have been taken; and the management action must have been carried out in a manner that is reasonable. As Lewin C held in James Willis v Capital Radiology Pty Ltd at [12]: a requirement for relevant management action to be reasonable is that there must be some line of cause and effect between conduct, behaviour or performance of an employee, and the relevant management action, and that the management action is a reasonable and proportionate response to the attributes of the employee to which it is directed. [9-8795.35] Repeatedly — 789FD(1)(a) In Ms SB [2014] FWC 2104, Hampden C held at [41] that: There is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably (provided there is more than one occurrence), nor does it appear that the same specific behaviour has to be repeated. What is required is repeated unreasonable behaviour by the individual or individuals towards the applicant worker or a group of workers to which the applicant belongs. [9-8795.36] While — s 789FD(1)(a) The first part of the expression “while the worker is at work”

presents little difficulty. These words are plainly intended to create a temporal connection between the bullying conduct (ie the repeated unreasonable behaviour directed at the worker: s 789FD(1)(a)) and the worker being “at work”. In the context of s 789FD(1)(a) the word “while” is used as a conjunction, meaning “during the time that”. Sharon Bowker v DP World Melbourne [2014] FWCFB 9227 at [32]. [9-8795.40] Outline of section The Explanatory Memorandum to the Fair Work Amendment Bill 2013 states at [108] that: 108. This definition reflects the definition of workplace bullying that was recommended in the Workplace Bullying — We just want it to stop report. The Committee considered the existing definitions used by State, Territory and federal jurisdictions and expert evidence and concluded that there were three criteria that were most helpful in defining bullying behaviour — the behaviour has to be repeated, unreasonable and cause a risk to health and safety. Importantly, a s 789FF order operates prospectively and is directed at preventing the worker being bullied at work. The Commission is specifically precluded from making an order requiring the payment of a pecuniary amount; hence it cannot make an order requiring a respondent to pay an amount of compensation to an applicant. The legislative scheme is not directed at punishing past bullying behaviour or compensating the victims of such behaviour. It is directed at stopping future bullying behaviour: Kathleen McInnes [2014] FWCFB 1440 at [9]. Deputy President Gostencnik described the test in Sharon Bowker v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The-Victorian Branch and Others [2014] FWC 73264 at [19]: The applications the subject of this proceeding are concerned with determining, inter alia, whether the conduct complained of by the Applicants is properly described as being bullied at work by an individual or group of individuals, whether that conduct occurred and if so, whether there is a risk that the Applicants will continue to be bullied at work by the individual or group.

*Editor’s note: commentary on s 789FD prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________ [page 1084]

[9-8800]

FWC to deal with applications promptly

789FE (1) The FWC must start to deal with an application under section 789FC within 14 days after the application is made. Note: For example, the FWC may start to inform itself of the matter under section 590, it may decide to conduct a conference under section 592, or it may decide to hold a hearing under section 593.

(2) However, the FWC may dismiss an application under section 789FC if the FWC considers that the application might involve matters that relate to: (a) Australia’s defence; or

(b) Australia’s national security; or (c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or (d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police. Note: For another power of the FWC to dismiss applications under section 789FC, see section 587.

[9-8805]

FWC may make orders to stop bullying

789FF (1) If: (a) a worker has made an application under section 789FC; and (b) the FWC is satisfied that: (i) the worker has been bullied at work by an individual or a group of individuals; and (ii) there is a risk that the worker will continue to be bullied at work by the individual or group; then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group. (2) In considering the terms of an order, the FWC must take into account: (a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body — those outcomes; and (b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes — that procedure; and (c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes — those outcomes; and (d) any matters that the FWC considers relevant. COMMENTARY TO SECTION 789FF*

Derivation ….

[9-8805.01]

Any matters — s 789FF(2)(d) …. Bullied — s 789FF(1)(b)(i), (ii) …. Considers appropriate — s 789FF(1) …. Continue to be bullied — s 789FF(1)(b)(ii) ….

[9-8805.05] [9-8805.10] [9-8805.15] [9-8805.20] [page 1085]

FWC — 789FF(1)(b), (2)(a), (b), (c) …. Worker — s 789FF(1)(a)(i), (ii), (2)(b), (c) …. Outline of Section ….

[9-8805.25] [9-8805.30] [9-8805.35]

[9-8805.01] Derivation The section is new. [9-8805.05] Any matters — s 789FF(2)(d) See [7-4340.15]. [9-8805.10] Bullied — s 789FF(1)(b)(i), (ii) See s 789FD. [9-8805.15] Considers appropriate — s 789FF(1) See [8-5200.15]. That phrase has been interpreted broadly elsewhere in the Act. The intention of parliament here seems narrower. The Explanatory Memorandum to the Fair Work Amendment Bill 2013 at [118]–[120] states that: Orders will not necessarily be limited or apply only to the employer of the worker who is bullied, but could also apply to others, such as co-workers and visitors to the workplace. Orders could be based on behaviour such as threats made outside the workplace, if the threats relate to work. The power of the FWC to grant an order is limited to preventing the worker from being bullied at work, and the focus is on resolving the matter and enabling normal working relationships to resume. The FWC cannot order reinstatement or the payment of compensation or a pecuniary amount. Examples of the orders that the FWC may make include an order requiring: the individual or group of individuals to stop the specified behaviour; regular monitoring of behaviours by an employer; compliance with an employer’s workplace bullying policy; the provision of information and additional support and training to workers; review of the employer’s workplace bullying policy. The Full Bench in Obatoki v Mallee Track Health & Community Services [2015] FWCFB 1661 held at [18]: … we note that s 789FF(1) confers upon the Commission a wide discretion in relation to the types of orders it can make (“any order it considers appropriate”). It is not simply stop bullying orders that can be made by the Commission but also orders which have a rational connection to the jurisdiction. The only prohibition on the types of orders that can be made is pecuniary orders, that is, orders for monetary compensation to be payable to an application.

As to difficulties with potential remedies, see Xueying (Shirley) Liu, Anti-bullying provisions in the Fair Work Act: operation and cases, employment law bulletin, December 2014 [149]. [9-8805.20] Continue to be bullied — s 789FF(1)(b)(ii) In Shaw [2014] FWC 3408 at [16], DP Gostencnik held in relation to a dismissed employee that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work. [9-8805.25] FWC — 789FF(1)(b), (2)(a), (b), (c) See s 12. [9-8805.30] Worker — s 789FF(1)(a)(i), (ii), (2)(b), (c) See s 789FC(2). [9-8805.35] Outline of Section The section describes the orders that may be made by the Commission.

*Editor’s note: Commentary to s 789FF prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________ [page 1086]

[9-8810]

Contravening an order to stop bullying

789FG A person to whom an order under section 789FF applies must not contravene a term of the order. Note: This section is a civil remedy provision (see Part 4-1). COMMENTARY TO SECTION 789FG*

Derivation …. Contravene — s 789FG …. Civil Remedy Provision — s 789FG Note ….

[9-8810.01] [9-8810.05] [9-8810.10]

[9-8810.01] Derivation The section is new. [9-8810.05] Contravene — s 789FG See [5-3400.15]. [9-8810.10] Civil Remedy Provision — s 789FG Note See s 539.

*Editor’s note: Commentary to s 789FG prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[9-8815]

Actions under work health and safety

laws permitted 789FH Section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws (within the meaning of that Act) do not apply in relation to an application under section 789FC. Note: Ordinarily, if a worker makes an application under section 789FC for an FWC order to stop the worker from being bullied at work, then section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws would prohibit a proceeding from being commenced, or an application from being made or continued, under those laws in relation to the bullying. This section removes that prohibition.

[9-8820] This Part is not to prejudice Australia’s defence, national security etc. 789FI Nothing in this Part requires or permits a person to take, or to refrain from taking, any action if the taking of the action, or the refraining from taking the action, would be, or could reasonably be expected to be, prejudicial to: (a) Australia’s defence; or (b) Australia’s national security; or (c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or (d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.

[9-8825] Force

Declarations by the Chief of the Defence

789FJ (1) Without limiting section 789FI, the Chief of the Defence Force may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a specified activity. [page 1087] (2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

[9-8830] Security

Declarations by the Director-General of

789FK (1) Without limiting section 789FI, the Director-General of

Security may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a person carrying out work for the Director-General. (2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

[9-8835] ASIS

Declarations by the Director-General of

789FL (1) Without limiting section 789FI, the Director-General of the Australian Secret Intelligence Service may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a person carrying out work for the Director-General. (2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

PART 6-5 — MISCELLANEOUS DIVISION 1 — INTRODUCTION

[9-8920]

Guide to this Part

790 This Part deals with miscellaneous matters such as delegations and regulations. [Editor’s note: Section 790 of this legislation is reproduced in this format in line with the official version.]

[9-8940]

Meanings of employee and employer

791 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).

[s 791 am Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] COMMENTARY TO SECTION 791*

Derivation …. Employee — s 791 Note …. National system employee — s 791 …. National system employer — s 791 …. TCF contract outworkers — s 791 Note …. This Part — s 791 ….

[9-8940.01] [9-8940.05] [9-8940.10] [9-8940.15] [9-8940.20] [9-8940.25] [page 1088]

[9-8940.01] Derivation The section is new. [9-8940.05] Employee — s 791 Note See ss 12, 15(1), 30E(1) and 30P(1). [9-8940.10] National system employee — s 791 See ss 12, 13, 30C. [9-8940.15] National system employer — s 791 See ss 12, 14, 30D. [9-8940.20] TCF contract outworkers — s 791 Note See s 12. [9-8940.25] This Part — s 791 This part is Pt 6.5.

*Editors’ note: Commentary to s 791 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

DIVISION 2 — MISCELLANEOUS

[9-9130]

Delegation by Minister

792 (1) The Minister may, in writing, delegate all or any of his or her functions or powers under this Act (except under section 32A) to: (a) the Secretary of the Department; or (b) an SES employee, or acting SES employee, in the Department. [subs (1) am Act 33 of 2016 s 3 and Sch 5 item 56, opn 1 July 2016]

(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Minister. Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

[9-9150]

Liability of bodies corporate

793 Conduct of a body corporate (1) Any conduct engaged in on behalf of a body corporate: (a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official; is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body. State of mind of a body corporate (2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show: (a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and (b) that the person had that state of mind. Meaning of state of mind (3) The state of mind of a person includes: (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person’s reasons for the intention, opinion, belief or purpose. [page 1089] Disapplication of Part 2.5 of the Criminal Code (4) Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act. Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility.

(5) In this section, employee has its ordinary meaning.

[9-9170]

Signature on behalf of body corporate

794 For the purposes of this Act, a document may be signed on behalf of a body corporate by an authorised officer of the body and need not be made under the body’s seal. COMMENTARY TO SECTION 794*

Derivation …. Authorised officer — s 794 …. Body corporate — s 794 …. Document — s 794 …. Seal — s 794 …. This Act — s 794 …. Outline of section ….

[9-9170.01] [9-9170.05] [9-9170.10] [9-9170.15] [9-9170.20] [9-9170.25] [9-9170.30]

[9-9170.01] Derivation Section 827 of the Workplace Relations Act 1996. That section has some similarity with reg 12 of the Workplace Relations (Registration and Accountability of Organisations) Regulations 2003. [9-9170.05] Authorised officer — s 794 The question whether an agreement is signed by an authorised officer of the organisation depends on the rules of the organisation. An agreement that is not signed in accordance with the rules is not signed by an authorised officer and therefore not signed by the organisation: Australian Workers’ Union v Leighton Contractors Pty Ltd (2012) 218 IR 140; [2012] FWAFB 207 at [37]. [9-9170.10] Body corporate — s 794 See [5-970.50.10]. [9-9170.15] Document — s 794 See s 2B of Acts Interpretation Act 1901. [9-9170.20] Seal — s 794 See Fair Work Fair Work (Registered Organisations) Act 2009 s 27(d). Turquand’s case made clear that, “the sealing of a document was treated as an act of the company itself, similar in effect to a signature by an individual … rather than an act done by agents on behalf of the company”: Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 at 156; 93 ALR 385; 2 ACSR 161; BC9002916 (28 June 1990) per Mason CJ. [9-9170.25] This Act — s 794 See s 12. [9-9170.30] Outline of section Section 794 provides that, for the purposes of the FW Act, a document may be signed on behalf of a body corporate by an authorised officer of the body and need not be made under the body’s seal: Australian Workers’ Union v Leighton Contractors Pty Ltd and Others (2013) 209 FCR 191; 295 ALR 449; [2013] FCAFC 4; BC201300150 at [49].

*Editors’ note: Commentary to s 794 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________ [page 1090]

[9-9190] Public sector employer to act through employing authority 795 Employer to act through employing authority (1) For the purposes of this Act and the procedural rules, the employer of an employee (a public sector employee) employed in public sector employment must act only through the employee’s employing authority acting on behalf of the employer. Acts done by or to employing authority (2) For the purposes of this Act and the procedural rules, anything done by or to a public sector employee’s employing authority acting on behalf of the employee’s employer is taken to have been done by or to the employer (as the case may be). Application of subsections (1) and (2) (3) Subsections (1) and (2) apply despite any other law of the Commonwealth, a State or a Territory. Meaning of public sector employment (4) Public sector employment means employment of, or service by, a person in any capacity (whether permanently or temporarily, and whether full-time or part-time): (a) under the Public Service Act 1999 or the Parliamentary Service Act 1999; or (b) by or in the service of a Commonwealth authority; or (c) under a law of the Australian Capital Territory relating to employment by that Territory, including a law relating to the Australian Capital Territory Government Service; or

(d) by or in the service of: (i) an enactment authority as defined by section 3 of the A.C.T. Self-Government (Consequential Provisions) Act 1988; or (ii) a body corporate incorporated by or under a law of the Australian Capital Territory and in which the Australian Capital Territory has a controlling interest; other than an authority or body prescribed by the regulations; or (e) under a law of the Northern Territory relating to the Public Service of the Northern Territory; or (f) by or in the service of a Northern Territory authority; or (g) by or in the service of a person prescribed by the regulations; or (h) under a law prescribed by the regulations. (5) However, public sector employment does not include: (a) employment of, or service by, a person prescribed by the regulations; or (b) employment or service under a law prescribed by the regulations. This subsection does not apply for the purposes of section 40. Note: Section 40 deals with the interaction between fair work instruments and public sector employment laws.

Meaning of employing authority (6) An employing authority of an employee is the person prescribed by the regulations as the employee’s employing authority. [page 1091]

[9-9195]

The Schedules

795A The Schedules have effect. Note: The Schedules contain application, transitional and saving provisions relating to amendments of this Act. [s 795A subst Act 175 of 2012 s 3 and Sch 1 item 62A, opn 5 Dec 2012]

[9-9210]

Regulations — general

796 (1) The Governor-General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) Regulations made under this Act prevail over procedural rules made under this Act, to the extent of any inconsistency.

[9-9230]

Regulations conferring functions

796A The regulations may confer functions on the following: (a) the FWC; (b) the General Manager [s 796A insrt Act 55 of 2009 s 3 and Sch 18, opn 1 July 2009; am Act 174 of 2012 s 3 and Sch 9 item 886, opn 1 Jan 2013] COMMENTARY TO SECTION 796A*

Derivation …. FWC — s 796A …. General Manager — s 796A ….

[9-9230.01] [9-9230.05] [9-9230.10]

[9-9230.01] Derivation The section is new. See s 846 of the Workplace Relations Act 1996. [9-9230.05] FWC — s 796A See s 12. [9-9230.10] General Manager — s 796A See s 12.

*Editors’ note: Commentary to s 796A prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[9-9250]

Regulations dealing with offences

797 (1) The regulations may provide for offences against the regulations. (2) The penalties for offences must not be more than 20 penalty units. COMMENTARY TO SECTION 797*

Derivation ….

[9-250.01]

Offences — s 797 …. Penalty Units — s 797 ….

[9-250.05] [9-250.10]

[9-250.01] Derivation Section 846(f) of the Workplace Relations Act 1996. [page 1092] [9-250.05] Offences — s 797 See [8-5620.10]. [9-250.10] Penalty Units — s 797 See s 12.

*Editors’ note: Commentary to s 797 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[9-9270]

Regulations dealing with civil penalties

798 (1) The regulations may provide for civil penalties for contravention of the regulations. (2) The penalties for contravention must not be more than: (a) 20 penalty units for an individual; or (b) 100 penalty units for a body corporate. COMMENTARY TO SECTION 798*

Derivation …. Body corporate — s 798(2)(b) …. Civil Penalties — s 798(1) …. Contravention — s 798(1), (2) …. Penalty Units — s 797 ….

[9-9270.01] [9-9270.05] [9-9270.10] [9-9270.15] [9-9270.20]

[9-9270.01] Derivation Section 846(g) of the Workplace Relations Act 1996. [9-9270.05] Body corporate — s 798(2)(b) [T]he legislature may provide for the creation of a body which, as distinct from the natural persons composing it, has legal personality, whether or not the legislature chooses to identify its creature by the term “corporation”: Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620; 132 ALR 198; 70 ALJR 93; BC9501518 at 37. [9-9270.10] Civil Penalties — s 798(1) See s 539(1). [9-9270.15] Contravention — s 798(1), (2) See [8-4960.11].

[9-9270.20] Penalty Units — s 797 See s 12.

*Editors’ note: Commentary to s 798 prepared by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[9-9290] notices

Regulations dealing with infringement

799 Infringement notices for offences (1) The regulations may provide for a person who is alleged to have committed an offence against the regulations to pay a penalty to the Commonwealth as an alternative to prosecution. (2) The penalty must not exceed one-fifth of the maximum penalty prescribed by the regulations for that offence. (3) [subs (3) rep Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009] (4) [subs (4) rep Act 55 of 2009 s 3 and Sch 23, opn 1 July 2009]

[9-9310] Regulations dealing with exhibiting fair work instruments 800 The regulations may provide for the exhibiting, on the premises of an employer, of a fair work instrument or a term of a fair work instrument. [page 1093] COMMENTARY TO SECTION 800*

Employer — s 800 …. Fair work instrument — s 800 …. Premises — s 800 …. [9-9310.05] Employer — s 800 See s 791. [9-9310.10] Fair work instrument — s 800 See s 12. [9-9310.15] Premises — s 800 See s 12.

[9-9310.05] [9-9310.10] [9-9310.15]

*Editors’ note: Commentary to s 800 prepared by Ian Latham BA(Hons) LLB (ANU), Barrister.

____________________

[page 1094]

[9-9580]

SCHEDULE 1 — APPLICATION, SAVING AND TRANSITIONAL PROVISIONS RELATING TO AMENDMENTS OF THIS ACT

[Sch 1 insrt Act 33 of 2012 s 3 and Sch 1, opn 1 July 2012] Note: See section 795A.

PART 1 — AMENDMENTS MADE BY THE FAIR WORK AMENDMENT (TEXTILE, CLOTHING AND FOOTWEAR INDUSTRY) ACT 2012 Definitions 1 In this Part: amended Act means this Act as amended by the amending Act. amending Act means the Fair Work Amendment (Textile, Clothing and Footwear Industry) Act 2012. commencement means the commencement of this Part. deemed employee means a TCF contract outworker who is taken by section 789BB of the amended Act to be an employee. deemed employer means a person who is taken by section 789BB of the amended Act to be the employer of a deemed employee.

Section 789BB of amended Act applies to contracts entered into after commencement 2 (1) Section 789BB of the amended Act applies in relation to particular TCF work performed by a TCF contract outworker only if the contract for the provision of services, for the purpose of which the outworker performs the work, is entered into after commencement. (2) Subclause (1) does not prevent regulations made for the purposes of section 789BC of the amended Act, or clause 7 of this Part, from dealing with the effect, in relation to a person who is taken by section 789BB of the amended Act to be an employee, of matters that occurred before commencement.

Effect on TCF contract outworker’s entitlements 3 (1) Accrued entitlements not affected The amendments made by the amending Act do not affect any entitlement that a TCF contract outworker had accrued before commencement. (2) Effect of modern award term requiring National Employment Standards to be applied to TCF contract outworker To avoid doubt, if: (a) a term of a modern award requires the principal of a TCF contract outworker to apply the National Employment Standards to the outworker as if the outworker were an employee; and (b) because of Division 2 of Part 6-4A of the amended Act, the outworker is taken to be an employee (being a national system employee) of the principal for the purposes of Part 2-2 of the amended Act (the National Employment Standards); [page 1095] then, to the extent that the term gives the outworker an entitlement that is the same as an entitlement (the NES entitlement) of the outworker (as a national system employee) under the National Employment Standards, the term

operates in parallel with the outworker’s NES entitlement, but not so as to give the outworker a double benefit.

Fair work instruments etc made before commencement 4

(1) This clause applies in relation to: (a) a fair work instrument made before commencement; or (b) a transitional instrument as continued in existence by Schedule 3 to the Transitional Act.

[subcl (4) am Act 175 of 2012 s 3 and Sch 1 item 63, opn 5 Dec 2012]

(2) A reference in the instrument to an employee or an employer does not include a deemed employee or a deemed employer, unless the instrument is, after commencement, varied to make it clear that the reference is intended to include a deemed employee or deemed employer. (3) This clause is not to be taken to confer a power to vary the instrument.

Application of Division 3 of Part 6-4A of amended Act 5 For the purposes of Division 3 of Part 6-4A of the amended Act, an entity is not an indirectly responsible entity in relation to particular TCF work if the arrangement to which the entity is a party, being the arrangement because of which the work can be regarded as being performed indirectly for the entity, was entered into before commencement.

Application of subsection 203(2A) of amended Act 6 Subsection 203(2A) of the amended Act applies in relation to enterprise agreements made after commencement.

Regulations dealing with various matters 7 (1) Application, saving and transitional The regulations may make provisions dealing with matters of an application, saving or transitional nature relating to the amendments made by the amending Act. (2) The provisions of this Part have effect subject to any regulations that are made for the purpose of subclause (1). (3) Application to TCF outworkers of provisions of the Transitional Act The regulations may make provisions dealing with how the Transitional Act applies in relation to TCF outworkers. [subcl (3) am Act 175 of 2012 s 3 and Sch 1 items 64, 65, opn 5 Dec 2012]

(4) Without limiting subclause (3), regulations made for the purposes of that subclause may: (a) provide that the Transitional Act applies with specified modifications; or (b) otherwise make provision relating to how provisions of that Act apply. [subcl (4) am Act 175 of 2012 s 3 and Sch 1 item 66, opn 5 Dec 2012]

(5) Retrospective application of regulations Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to regulations made for the purposes of subclause (1) or (3) of this clause. [subcl (5) subst Act 126 of 2015 s 3 and Sch 1 item 214, opn 5 Mar 2016]

[page 1096]

PART 2 — AMENDMENTS MADE BY THE

SUPERANNUATION LEGISLATION AMENDMENT (FURTHER MYSUPER AND TRANSPARENCY MEASURES) ACT 2012 [Pt 2 insrt Act 171 of 2012 s 3 and Sch 4 item 8, opn 1 Jan 2013]

Definitions In this Part: amended Act means this Act as amended by the Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012.

8

Application of sections 149A and 155A of amended Act 9 Sections 149A and 155A of the amended Act apply in relation to a modern award that is in operation on or after 1 January 2014, whether or not the award was made before that day.

FWC to vary certain modern awards (1) This clause applies in relation to a modern award if the award: (a) is made before 1 January 2014; and (b) is in operation on that day; and (c) immediately before that day, does not include a term (the relevant term) of the kind mentioned in section 149A of the amended Act. (2) The FWC must, by 31 December 2013, make a determination varying the modern award to include the relevant term. 10

[subcl (2) am Act 61 of 2013 s 3 and Sch 1 item 12J, opn 1 Jan 2013]

(3) A determination made under subclause (2) comes into operation on (and takes effect from) 1 January 2014. (4) Section 168 applies to a determination made under subclause (2) as if it were a determination made under Part 2-3. [cl 10 am Act 61 of 2013 s 3 and Sch 1 item 12H, opn 1 Jan 2013]

FWC to update text of certain modern awards (1) This clause applies in relation to a modern award if the award: (a) is made before 1 January 2014; and (b) is in operation on that day; and (c) immediately before that day, includes a term (the relevant term) of the kind mentioned in section 155A of the amended Act that specifies a fund or scheme (a non-complying fund or scheme) that does not satisfy paragraph (1)(a) or (b) of that section. (2) The FWC must ensure that the text of the modern award as published by the FWC does not include a non complying fund or scheme in the relevant term. 11

[subcl (2) am Act 61 of 2013 s 3 and Sch 1 items 12L, 12M, opn 1 Jan 2013]

(3) The FWC must do so by 1 January 2014 (despite section 155A of the amended Act). [subcl (3) am Act 61 of 2013 s 3 and Sch 1 item 12N, opn 1 Jan 2013] [cl 11 am Act 61 of 2013 s 3 and Sch 1 item 12K, opn 1 Jan 2013]

[page 1097]

Application of paragraph 194(h) of amended Act 12 Paragraph 194(h) of the amended Act applies in relation to an enterprise agreement that is approved by the FWC on or after 1 January 2014. [cl 12 am Act 61 of 2013 s 3 and Sch 1 item 12P, opn 1 Jan 2013]

PART 3 — AMENDMENTS MADE BY THE FAIR WORK AMENDMENT (RESPECT FOR EMERGENCY SERVICES VOLUNTEERS) ACT 2016 [Pt 3 insrt Act 62 of 2016 s 3 and Sch 1 item 9, opn 13 Oct 2016]

Definitions In this Part: amended Act means this Act as amended by the Fair Work Amendment (Respect for Emergency Services Volunteers) Act 2016. commencement means the commencement of this Part.

13

Application of amendments — objectionable emergency management terms 14 (1) Application of amendments The amended Act applies, after commencement, in relation to enterprise agreements approved, and workplace determinations made, before or after commencement. (2) Sections 254A and 281AA of the amended Act apply in relation to a matter that is before the FWC on or after commencement, even if the matter was before the FWC before commencement. (3) Enterprise agreements approved before commencement — preservation of terms in accordance with amended Act If an enterprise agreement approved before commencement includes an objectionable emergency management term, a term of the agreement has effect after commencement to the extent that: (a) the term can have effect in accordance with the amended Act; and (b) it would not exceed the Commonwealth’s legislative power for the term so to have effect.

[page 1098]

[9-9600]

SCHEDULE 2 — AMENDMENTS MADE BY THE FAIR WORK AMENDMENT (TRANSFER OF BUSINESS) ACT 2012 Note: See section 795A.

[Sch 2 insrt Act 175 of 2012 s 3 and Sch 1 item 67, opn 5 Dec 2012]

Definitions 1

In this Schedule: amending Act means the Fair Work Amendment (Transfer of Business) Act 2012. commencement means the commencement of this Schedule.

Application of the amendments made by the amending Act 2 The amendments made by the amending Act apply in relation to a transfer of business referred to in Part 6-3A (as inserted by item 1 of Schedule 1 to the amending Act), but only if the connection between the old State employer and the new employer referred to in paragraph 768AD(1)(d) (as inserted by that item) occurs on or after commencement.

[page 1099]

[9-9620]

SCHEDULE 3 — AMENDMENTS MADE BY THE FAIR WORK AMENDMENT ACT 2012 Note: See section 795A.

[Sch 3 insrt Act 174 of 2012 s 3 and Sch 11 item 1, opn 1 Jan 2013]

PART 1 — PRELIMINARY Definitions 1

In this Schedule: amending Act means the Fair Work Amendment Act 2012. doing a thing includes making an instrument. FWA (short for Fair Work Australia) means the body referred to in section 575, as in force immediately before the commencement of Part 1 of Schedule 9 to the amending Act.

PART 2 — DEFAULT SUPERANNUATION (SCHEDULE 1) Schedule 1 to the amending Act 2 (1) Section 149B, subsection 149C(1) and section 149D (as inserted by Schedule 1 to the amending Act) apply in relation to a modern award that: (a) is made on or after 1 January 2014; or (b) is made before 1 January 2014 and that is varied on or after that day under Division 4A of Part 2–3 (as inserted by Schedule 1 to the amending Act).

(2) Despite the repeal of sections 149A and 155A made by Schedule 1 to the amending Act, those sections continue in force in relation to a modern award that: (a) is made before 1 January 2014; and (b) is not varied on or after that day under Division 4A of Part 2–3 (as inserted by Schedule 1 to the amending Act). (3) The amendments made by items 15, 18, 19 and 20 of Schedule 1 to the amending Act apply in relation to a modern award that is in operation on or after 1 January 2014, whether or not the award was made before that day.

Transitional provision — when first variations of default fund term take effect 2A (1) This clause applies to the first 4 yearly review of default fund terms of modern awards under Division 4A of Part 2-3 (as inserted by Schedule 1 to the amending Act). (2) In the review, determinations under that Division (whether made under section 156H or 156J) varying the default fund term of a modern award: (a) must take effect at the same time; and (b) must not take effect before 1 January 2015.

Transitional provision — modern awards made on or after 1 January 2014 2B If a modern award is made in the period that starts on 1 January 2014 and ends on 31 December 2017, then, until the default fund term of the award is varied after that [page 1100] period under Division 4A of Part 2-3 (as inserted by Schedule 1 to the amending Act), this Act has effect in relation to the award as if subsection 149D(1A) (as inserted by that Schedule) were as follows:

(1A) Superannuation funds offering employer MySuper products A default fund term of a modern award must permit an employer covered by the award to make contributions, for the benefit of a default fund employee, to a superannuation fund that offers an employer MySuper product that relates to the employer.

PART 3 — MODERN AWARDS (SCHEDULE 3)

Part 1 of Schedule 3 to the amending Act 3 (1) This clause applies if, before the commencement of Part 1 of Schedule 3 to the amending Act (which is about variation etc of modern awards): (a) a determination was made under subsection 160(1) (about varying a modern award); or (b) an application was made under subsection 160(2) (about varying a modern award). (2) The determination and the application are as valid, and are taken always to have been as valid, as they would have been if paragraphs 160(2) (c) and (d) (as inserted by Part 1 of Schedule 3 to the amending Act) had been in force at the time the determination or application was made.

PART 4 — ENTERPRISE AGREEMENTS (SCHEDULE 4)

Part 1 of Schedule 4 to the amending Act 4 The amendment made by Part 1 of Schedule 4 to the amending Act (which is about enterprise agreements covering a single employee) applies in relation to enterprise agreements that are purportedly made after the commencement of that Part.

Part 2 of Schedule 4 to the amending Act 5 The amendments made by Part 2 of Schedule 4 to the amending Act (which is about bargaining representatives) apply in relation to appointments of bargaining representatives that are made after the commencement of that Part.

Part 3 of Schedule 4 to the amending Act 6 (1) The amendment made by Part 3 of Schedule 4 to the amending Act (which is about unlawful terms) applies in relation to enterprise agreements that are made before or after the commencement of that Part. (2) However, if: (a) an enterprise agreement that was made before the commencement of that Part included a term referred to in paragraph 194(ba) (as inserted by Part 3 of Schedule 4 to the amending Act); and (b) a person made an election in accordance with that term before the commencement of that Part; then the amendment does not apply in relation to that person. [page 1101]

Part 4 of Schedule 4 to the amending Act 7 The amendment made by Part 4 of Schedule 4 to the amending Act (which is about scope orders) applies in relation to applications for a scope order that are made after the commencement of that Part.

Part 5 of Schedule 4 to the amending Act 8 (1) The amendments made by Part 5 of Schedule 4 to the amending Act (which is about notice of employee representational rights) apply in relation to notices of employee representational rights that are given after the commencement of that Part. (2) Regulations that: (a) were made for the purposes of subsection 174(6) before the commencement of Part 5 of Schedule 4 to the amending Act; and (b) were in force immediately before that commencement; continue in force (and may be dealt with) after that commencement as if they had been made for the purposes of subsection 174(1A) (as inserted by Part 5 of Schedule 4 to the amending Act).

PART 5 — GENERAL PROTECTIONS (SCHEDULE 5)

Part 1 of Schedule 5 to the amending Act 9 The amendment made by Part 1 of Schedule 5 to the amending Act (which is about time limits for making applications) applies in relation to dismissals that take effect after the commencement of that Part.

PART 6 — UNFAIR DISMISSAL (SCHEDULE 6)

Part 1 of Schedule 6 to the amending Act 10 The amendment made by Part 1 of Schedule 6 to the amending Act (which is about time limits for making applications) applies in relation to dismissals that take effect after the commencement of that Part.

Part 2 of Schedule 6 to the amending Act 11 The amendments made by Part 2 of Schedule 6 to the amending Act (which is about the power to dismiss applications) apply in relation to dismissals that take effect after the commencement of that Part.

Part 3 of Schedule 6 to the amending Act 12 The amendments made by Part 3 of Schedule 6 to the amending Act (which is about costs orders against parties) apply in relation to dismissals that take effect after the commencement of that Part.

Part 4 of Schedule 6 to the amending Act 13 The amendment made by Part 4 of Schedule 6 to the amending Act (which is about costs orders against lawyers and paid agents) applies in relation to dismissals that take effect after the commencement of that Part. [page 1102]

PART 7 — INDUSTRIAL ACTION (SCHEDULE 7)

Part 1 of Schedule 7 to the amending Act 14 The amendments made by Part 1 of Schedule 7 to the amending Act (which is about electronic voting in protected action ballots) apply in relation to applications for protected action ballot orders that are made after the commencement of that Part.

Part 2 of Schedule 7 to the amending Act 15 The amendments made by Part 2 of Schedule 7 to the amending Act (which is about employees to be balloted in protected action ballots) apply in relation to applications for protected action ballot orders that are made after the commencement of that Part.

Part 3 of Schedule 7 to the amending Act 16 The amendments made by Part 3 of Schedule 7 to the amending Act (which is about conducting protected action ballots) apply in relation to protected action ballot orders that are made after the commencement of that Part.

PART 8 — THE FAIR WORK COMMISSION (SCHEDULE 8)

Part 1 of Schedule 8 to the amending Act 17 The amendment made by Part 1 of Schedule 8 to the amending Act (which is about stay orders) applies in relation to orders under subsection 606(1) that are made after the commencement of that Part.

Part 2 of Schedule 8 to the amending Act 18 The amendments made by Part 2 of Schedule 8 to the amending Act (which is about conflicts of interest) apply in relation to matters that an FWC member begins to deal with before or after the commencement of that Part.

Part 4 of Schedule 8 to the amending Act 19 The amendments made by Part 4 of Schedule 8 to the amending Act (which is about appointing acting Commissioners) apply in relation to appointments that are made after the commencement of that Part.

Part 5 of Schedule 8 to the amending Act 20 The amendments made by Part 5 of Schedule 8 to the amending Act (which is about appointing the General Manager) apply in relation to appointments and acting appointments that are made after the commencement of that Part.

Part 6 of Schedule 8 to the amending Act 21 The amendments made by Part 6 of Schedule 8 to the amending Act (which is about Vice Presidents) apply in relation to appointments that take effect after the commencement of that Part.

Part 7 of Schedule 8 to the amending Act 22 The amendments made by Part 7 of Schedule 8 to the amending Act (which is about handling complaints) apply after the commencement of that Part in relation to a complaint about an FWC Member, regardless of whether: [page 1103] (a) the complaint is made before or after that commencement; or (b) the circumstances that give rise to the complaint occur before or after that commencement.

Part 8 of Schedule 8 to the amending Act 23 The amendments made by Part 8 of Schedule 8 to the amending Act (which is about engaging in outside work) apply in relation to paid work that is engaged in after the commencement of that Part.

PART 9 — CHANGING THE NAME OF FAIR WORK AUSTRALIA (SCHEDULE 9) Transitional provision — President 24 (1) The person holding office as the President of FWA immediately before the commencement of Part 1 of Schedule 9 to the amending Act continues to hold office as the President of the FWC. (2) If, before that commencement, a thing was done by, or in relation to, the President of FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, the President of the FWC. (3) For the purposes of subclause (2), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done. (4) The Minister may, by writing, determine that subclause (2): (a) does not apply in relation to a specified thing done by, or in relation to, the President of FWA; or (b) applies as if the reference in that subclause to the President of the FWC were a reference to the FWC; or (c) applies as if the reference in that subclause to the President of the FWC were a reference to another FWC member. A determination under this subclause has effect accordingly. (5) A determination made under subclause (4) is not a legislative instrument.

Transitional provision — Deputy President 25 (1) Subject to subclause (2), a person holding office as a Deputy President of FWA immediately before the commencement of Part 1 of Schedule 9 to the amending Act continues to hold office as a Deputy President of the FWC. (2) If, immediately before that commencement, a person: (a) is a member of a prescribed State industrial authority; and (b) holds office as a Deputy President of FWA; the person continues to hold office as a Deputy President of the FWC for the balance of the person’s term of appointment that remains immediately before that commencement. (3) If, before that commencement, a thing was done by, or in relation to, a Deputy President of FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, a Deputy President of the FWC. [page 1104] (4) For the purposes of subclause (3), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done. (5) The Minister may, by writing, determine that subclause (3): (a) does not apply in relation to a specified thing done by, or in relation to, a Deputy President of FWA; or (b) applies as if the reference in that subclause to the Deputy President of the FWC were a reference to the FWC; or (c) applies as if the reference in that subclause to the Deputy President of the FWC were a reference to another FWC member. A determination under this subclause has effect accordingly. (6) A determination made under subclause (5) is not a legislative

instrument.

Transitional provision — Commissioner 26 (1) Subject to subclause (2), a person holding office as a Commissioner of FWA immediately before the commencement of Part 1 of Schedule 9 to the amending Act continues to hold office as a Commissioner of the FWC. (2) If, immediately before that commencement, a person: (a) is a member of a prescribed State industrial authority; and (b) holds office as a Commissioner of FWA; the person continues to hold office as a Commissioner of the FWC for the balance of the person’s term of appointment that remains immediately before that commencement. (3) If, before that commencement, a thing was done by, or in relation to, a Commissioner of FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, a Commissioner of the FWC. (4) For the purposes of subclause (3), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done. (5) The Minister may, by writing, determine that subclause (3): (a) does not apply in relation to a specified thing done by, or in relation to, a Commissioner of FWA; or (b) applies as if the reference in that subclause to a Commissioner of the FWC were a reference to the FWC; or (c) applies as if the reference in that subclause to a Commissioner of the FWC were a reference to another FWC member. A determination under this subclause has effect accordingly. (6) A determination made under subclause (5) is not a legislative instrument.

Transitional provision — Minimum Wage Panel Member 27 (1) A person holding office as a Minimum Wage Panel Member of FWA immediately before the commencement of Part 1 of Schedule 9 to the amending Act continues to hold office: (a) as a Minimum Wage Panel Member of the FWC; and [page 1105] (b) for the balance of the person’s term of appointment that remains immediately before that commencement. (2) If, before that commencement, a thing was done by, or in relation to, a Minimum Wage Panel Member of FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, a Minimum Wage Panel Member of the FWC. (3) For the purposes of subclause (2), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done. (4) The Minister may, by writing, determine that subclause (2): (a) does not apply in relation to a specified thing done by, or in relation to, a Minimum Wage Panel Member of FWA; or (b) applies as if the reference in that subclause to a Minimum Wage Panel Member of the FWC were a reference to the FWC; or (c) applies as if the reference in that subclause to a Minimum Wage Panel Member of the FWC were a reference to another FWC member. A determination under this subclause has effect accordingly. (5) A determination made under subclause (4) is not a legislative instrument.

Operation of laws — things done by, or in relation to, FWA 28 (1) If, before the commencement of Part 1 of Schedule 9 to the amending Act, a thing was done by, or in relation to, FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, the FWC. (2) For the purposes of subclause (1), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done. (3) The Minister may, by writing, determine that subclause (1): (a) does not apply in relation to a specified thing done by, or in relation to, FWA; or (b) applies as if the reference in that subclause to the FWC were a reference to the President of the FWC; or (c) applies as if the reference in that subclause to the FWC were a reference to another FWC member. A determination under this subclause has effect accordingly. (4) A determination made under subclause (3) is not a legislative instrument.

Transitional provision — General Manager and staff of FWA 29 (1) General Manager The person holding office as the General Manager of FWA immediately before the commencement of Part 1 of Schedule 9 to the amending Act continues to hold office: (a) as the General Manager of the FWC; and (b) for the balance of the person’s term of appointment that remains immediately before that commencement.

[page 1106] (2) If, before that commencement, a thing was done by, or in relation to, the General Manager of FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, the General Manager of the FWC. (3) For the purposes of subclause (2), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done. (4) The Minister may, by writing, determine that subclause (2): (a) does not apply in relation to a specified thing done by, or in relation to, the General Manager of FWA; or (b) applies as if the reference in that subclause to the General Manager of the FWC were a reference to the Commonwealth. A determination under this subclause has effect accordingly. (5) A determination made under subclause (4) is not a legislative instrument. (6) Staff A person who, immediately before that commencement, was a member of the staff of FWA, continues, on and after that commencement, as a member of the staff of the FWC.

Operation of section 7 and subsection 25B(1) of the Acts Interpretation Act 1901 not limited 30 This Part and Schedule 9 to the amending Act do not limit the operation of section 7 or subsection 25B(1) of the Acts Interpretation Act 1901.

PART 10 — OTHER AMENDMENTS (SCHEDULE 10)

Part 1 of Schedule 10 to the amending Act 31 The amendment made by Part 1 of Schedule 10 to the amending Act (which is about costs orders in court proceedings) applies in relation to proceedings commenced after the commencement of that Part.

PART 11 — REGULATIONS Regulations about application, transitional and saving matters 32 (1) The regulations may prescribe matters of an application, transitional or saving nature relating to the amendments and repeals made by the amending Act. (2) Without limiting subclause (1), the regulations may: (a) provide that Part 9 of this Schedule or Part 4 of Schedule 9 to the amending Act applies with specified modifications; or (b) provide that the Transitional Act applies with specified modifications. (3) The provisions referred to in subclause (2) have effect subject to regulations made for the purposes of this clause. (4) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to: (a) regulations relating to the amendments and repeals made by Schedule 9 to the amending Act; and (b) regulations made for the purposes of subclause (2). [subcl (4) subst Act 126 of 2015 s 3 and Sch 1 item 215, opn 5 Mar 2016]

[page 1107]

[9-9640]

SCHEDULE 4 — AMENDMENTS MADE BY THE FAIR WORK AMENDMENT ACT 2013

[Sch 4 insrt Act 73 of 2013 s 3 and Sch 7 item 1, opn 28 June 2013] Note: See section 795A.

PART 1 — PRELIMINARY Definition 1

In this Schedule: amending Act means the Fair Work Amendment Act 2013.

Part 2 — FAMILY-FRIENDLY MEASURES (SCHEDULE 1)

Part 1 of Schedule 1 to the amending Act 2 The amendments made by Part 1 of Schedule 1 to the amending Act apply in relation to a period of unpaid special maternity leave that starts after the commencement of that Part.

Part 2 of Schedule 1 to the amending Act 3 The amendments made by Part 2 of Schedule 1 to the amending Act apply in relation to the taking of unpaid parental leave by members of an employee couple if the first taking of leave by either member of the employee couple occurs after the commencement of that Part.

Part 3 of Schedule 1 to the amending Act 4 The amendments made by Part 3 of Schedule 1 to the amending Act apply in relation to a request that is made under subsection 65(1) after the commencement of that Part.

Part 4 of Schedule 1 to the amending Act 5 (1) Application of amendments The amendment made by item 19 of Schedule 1 to the amending Act applies in relation to a modern award that is in operation on or after 1 January 2014, whether or not the award was made before that day. (2) The amendments made by items 20 and 21 of Schedule 1 to the amending Act apply in relation to an enterprise agreement that is made after the commencement of Part 4 of that Schedule. (3) Transitional provision If: (a) a modern award is made before 1 January 2014; and (b) the modern award is in operation on that day; and (c) immediately before that day, the modern award does not include a term (the relevant term) of the kind mentioned in section 145A (as inserted by item 19 of Schedule 1 to the amending Act); then the FWC must, by 31 December 2013, make a determination varying the modern award to include the relevant term. (4) A determination made under subclause (3) comes into operation on (and takes effect from) 1 January 2014. [page 1108] (5) Section 168 applies to a determination made under subclause (3) as if it were a determination made under Part 2-3.

Part 5 of Schedule 1 to the amending Act 6 The amendments made by Part 5 of Schedule 1 to the amending Act apply in relation to evidence that is given under section 81 after the commencement of that Part.

PART 3 — MODERN AWARDS OBJECTIVE (SCHEDULE 2) Schedule 2 to the amending Act 7 The amendment made by Schedule 2 to the amending Act applies in relation to a modern award that is made or varied after the commencement of that Schedule.

PART 4 — ANTI-BULLYING MEASURE (SCHEDULE 3) Schedule 3 to the amending Act 8 The amendments made by Schedule 3 to the amending Act apply in relation to an application that is made under section 789FC (as inserted by item 6 of that Schedule) after the commencement of that Schedule.

PART 4A — CONFERENCES (SCHEDULE 3A) Schedule 3A to the amending Act 8A The amendments made by Schedule 3A to the amending Act apply in relation to a matter that arises before or after the commencement of that Schedule, whether or not a conference starts to be conducted in relation to the matter before or after that commencement.

PART 5 — RIGHT OF ENTRY (SCHEDULE 4) Schedule 4 to the amending Act 9 (1) Application of amendment relating to sections 492 and 492A The amendment made by item 7 of Schedule 4 to the amending Act applies in relation to interviews conducted and discussions held after the commencement of that item. (2) Application of amendments relating to section 505A The amendments made by items 12 and 13 of Schedule 4 to the amending Act apply in relation to the frequency of entry after the commencement of those items. (3) Application of amendments relating to accommodation arrangements and transport arrangements The amendments made by items 14 and 15 of Schedule 4 to the amending Act do not apply in relation to arrangements entered into before the commencement of those items.

PART 6 — CONSENT ARBITRATION FOR GENERAL PROTECTIONS AND UNLAWFUL TERMINATION (SCHEDULE 4A) Schedule 4A to the amending Act 10 (1) The amendments made by Part 1 of Schedule 4A to the amending Act apply in relation to dismissals that take effect after the commencement of that Schedule. [page 1109] (2) The amendments made by Part 2 of Schedule 4A to the amending Act apply in relation to employment that is terminated after the commencement of that Schedule.

PART 7 — THE FWC (SCHEDULE 5) Item 4 of Schedule 5 to the amending Act 11 The amendment made by item 4 of Schedule 5 to the amending Act applies in relation to an appointment made after the commencement of that Schedule.

[page 1110]

[9-9650]

SCHEDULE 5 — AMENDMENTS MADE BY THE FAIR WORK AMENDMENT ACT 2015

[Sch 5 insrt Act 156 of 2015 Sch 2 item 1, opn 27 Nov 2015] Note: See section 795A.

Definition 1

In this Schedule: amending Act means the Fair Work Amendment Act 2015.

Part 1 of Schedule 1 to the amending Act 2 The amendment made by Part 1 of Schedule 1 to the amending Act applies in relation to a request made after the commencement of that Part.

Part 5 of Schedule 1 to the amending Act 9 The amendments made by Part 5 of Schedule 1 to the amending Act, so far as they concern proposed enterprise agreements, apply in relation to a proposed enterprise agreement if an employer agrees to bargain for the proposed enterprise agreement after the commencement of that Part.

Part 7 of Schedule 1 to the amending Act 11 The amendment of section 437 made by Part 7 of Schedule 1 to the amending Act applies in relation to an application made under that section, if the application was made after the commencement of that Part.

Part 10 of Schedule 1 to the amending Act 14 Paragraph 559(3A)(c) applies in relation to an amount that was paid to the Commonwealth under subsection 559(1) after the commencement of Part 10 of Schedule 1 to the amending Act.

[page 1111]

Fair Work Regulations 2009 TABLE OF PROVISIONS Regulation

Title

Paragraph

CHAPTER 1 — INTRODUCTION PART 1-1 — INTRODUCTION

1.01 1.02

DIVISION 1 — PRELIMINARY Name of Regulations …. Commencement ….

[10-100] [10-105]

PART 1-2 — DEFINITIONS

1.07 1.08

DIVISION 1 — INTRODUCTION Definitions …. DIVISION 2 — THE DICTIONARY Meaning of designated outworker term …. Meaning of eligible State or Territory court [Repealed] …. Meaning of prescribed State industrial authority …. Meaning of serious misconduct …. Meaning of TCF award ….

1.09

DIVISION 4 — OTHER DEFINITIONS Meaning of base rate of pay — pieceworkers

1.03 1.04 1.05 1.06

[10-210] [10-235] [10-240] [10-245] [10-250] [10-255]

1.10 1.11 1.12

(national system employee) …. Meaning of base rate of pay — pieceworkers (enterprise agreement) …. Meaning of ordinary hours of work for award/agreement free employees …. Meaning of pieceworker ….

[10-280] [10-285] [10-290] [10-295]

PART 1-3 — APPLICATION OF THE ACT DIVISION 2 — INTERACTION WITH STATE AND TERRITORY LAWS 1.13 State and Territory laws that are not excluded by section 26 of the Act — prescribed laws …. [10-400] 1.14 Act excludes prescribed State and Territory laws …. [10-405] [page 1112] Regulation

1.15

Title

Interaction of modern awards and enterprise agreements with State and Territory laws ….

Paragraph

[10-410]

DIVISION 2A — APPLICATION OF ACT IN A REFERRING STATE 1.15A State public sector employer …. [10-435] DIVISION 3 — GEOGRAPHICAL APPLICATION OF THE ACT 1.15B Definitions for Division 3 …. [10-460] 1.15C Meanings of Australian employer and Australian-based employee …. [10-463] 1.15D Modification of application of Act — ships engaged in innocent passage …. [10-465] 1.15E Extension of Act to the exclusive economic [10-467] zone and the continental shelf — ships ….

1.15F

1.15G

1.16

Extension of Act beyond the exclusive economic zone and the continental shelf …. Amendments made by Fair Work Amendment Regulation 2012 (No 2) …. DIVISION 4 — MISCELLANEOUS Interaction between fair work instruments and public sector employment laws ….

[10-470] [10-475]

[10-495]

CHAPTER 2 — TERMS AND CONDITIONS OF EMPLOYMENT PART 2-2 — THE NATIONAL EMPLOYMENT STANDARDS DIVISION 12 — FAIR WORK INFORMATION STATEMENTS 2.01 Fair Work Ombudsman to prepare and publish Fair Work Information Statement — content …. [10-650] 2.02 Fair Work Ombudsman to prepare and publish Fair Work Information Statement — manner of giving Statement to employees …. [10-655]

2.03

DIVISION 13 — MISCELLANEOUS What can be agreed to etc. in relation to award/agreement free employees ….

[10-680]

PART 2-4 — ENTERPRISE AGREEMENTS DIVISION 3 — BARGAINING AND REPRESENTATION DURING BARGAINING 2.04 Notice of employee representational rights — how notice is given …. [10-785] 2.05 Notice of employee representational rights — prescribed form …. [10-790]

[page 1113] Regulation

2.06

Title

Appointment of bargaining representatives — independence ….

Paragraph

[10-795]

DIVISION 4 — APPROVAL OF ENTERPRISE AGREEMENTS 2.06A Bargaining representative must apply for FWC approval of an enterprise agreement — requirements for signing agreement …. [10-800] 2.07 FWC may approve an enterprise agreement with undertakings — requirements for signing undertaking …. [10-820] 2.08 Model flexibility term for enterprise agreement …. [10-825] 2.09 Model consultation term for enterprise agreement …. [10-830] 2.09A Requirements for signing variation of enterprise agreement …. [10-833] 2.10 FWC may approve variation of enterprise agreement with undertaking — requirements for signing undertaking for variation …. [10-835] DIVISION 8 — FWC’S GENERAL ROLE IN FACILITATING BARGAINING 2.11 What a bargaining order must specify — bargaining order for reinstatement of employee …. [10-860] PART 2-9 — OTHER TERMS AND CONDITIONS OF EMPLOYMENT

2.12

DIVISION 2 — PAYMENT OF WAGES Certain terms have no effect — reasonable deductions ….

[10-965]

2.13

DIVISION 3 — GUARANTEE OF ANNUAL EARNINGS High Income threshold …. [10-990]

CHAPTER 3 — RIGHTS AND RESPONSIBILITIES OF EMPLOYEES, EMPLOYERS, ORGANISATIONS ETC. PART 3-1 — GENERAL PROTECTIONS

3.01

DIVISION 5 — OTHER PROTECTIONS Temporary absence — illness or injury ….

[10-1145]

DIVISION 8 — COMPLIANCE

3.02

Subdivision A — Contraventions involving dismissal Application fees …. [10-1170]

3.03

Subdivision B — Other contraventions Application fees ….

[10-1190] [page 1114]

Regulation

3.04

Title

Subdivision C — Conference costs Schedule of costs ….

Paragraph

[10-1210]

PART 3-2 — UNFAIR DISMISSAL DIVISION 2 — PROTECTION FROM UNFAIR DISMISSAL 3.05 When a person is protected from unfair dismissal — high income threshold …. [10-1315]

3.06

DIVISION 4 — REMEDIES FOR UNFAIR DISMISSAL Remedy — compensation (amount taken to have been received by the employee) …. [10-1340]

3.07 3.08

DIVISION 5 — PROCEDURAL MATTERS Application fees …. Schedule of costs ….

[10-1365] [10-1370]

PART 3-3 — INDUSTRIAL ACTION

3.09

DIVISION 2 — PROTECTED INDUSTRIAL ACTION Purposes prescribed for continuity of employment when employer response action occurs …. [10-1475]

DIVISION 6 — SUSPENSION OR TERMINATION OF PROTECTED INDUSTRIAL ACTION BY THE FWC 3.10 Persons who can apply for an order to suspend or terminate protected industrial action …. [10-1495]

3.11

3.12 3.13 3.14

3.15 3.16 3.16A 3.17

DIVISION 8 — PROTECTED ACTION BALLOTS FWC may decide on ballot agent other than the Australian Electoral Commission — requirements for protected action ballot agent …. Requirements for independent advisor …. Notice of protected action ballot order — notifying employees …. Protected action ballot to be conducted by Australian Electoral Commission or other specified ballot agent — directions about ballot paper …. Compilation of roll of voters …. Protected action ballot papers — form …. Conduct of protected action ballot by electronic voting …. Report about conduct of protected action ballot — independent advisor ….

[10-1525] [10-1530] [10-1535]

[10-1540] [10-1545] [10-1550] [10-1553] [10-1555]

Subdivision G — Miscellaneous Conduct of protected action ballot — ballot papers ….

3.18

[10-1575] [page 1115]

Regulation

3.19 3.20

3.21

3.22 3.23 3.24

Title

Conduct of protected action ballot — scrutiny of ballot …. Conduct of protected action ballot — scrutineers ….

Paragraph

[10-1580] [10-1585]

DIVISION 9 — PAYMENTS RELATING TO PERIODS OF INDUSTRIAL ACTION Payments relating to partial work bans — working out proportion of reduction of employee’s payments …. [10-1610] Payments relating to partial work bans — form of partial work ban notice …. [10-1615] Payments relating to partial work bans — content of partial work ban notice …. [10-1620] Manner of giving notice about partial work ban …. [10-1625] PART 3-4 — RIGHT OF ENTRY

DIVISION 2 — ENTRY TO INVESTIGATE SUSPECTED CONTRAVENTION RELATING TO TCF AWARD WORKERS 3.24A Prescribed accreditation body …. [10-1650]

3.25

DIVISION 3 — STATE OR TERRITORY OHS RIGHTS Meaning of State or Territory OHS law …. [10-1730] DIVISION 6 — ENTRY PERMITS, ENTRY NOTICES AND CERTIFICATES

3.26 3.27 3.28 3.29

Form of entry permit …. Form of entry notice …. Form of exemption certificate …. Form of affected member certificate ….

[10-1755] [10-1760] [10-1765] [10-1770]

PART 3-6 — OTHER RIGHTS AND RESPONSIBILITIES DIVISION 2 — NOTIFICATION AND CONSULTATION RELATING TO CERTAIN DISMISSALS Subdivision A — Requirement to notify Centrelink Employer to notify Centrelink of certain proposed dismissals — form of notice ….

3.30

[10-1875]

DIVISION 3 — EMPLOYER OBLIGATIONS IN RELATION TO EMPLOYEE RECORDS AND PAY SLIPS

3.31 3.32 3.33 3.34 3.35 3.36 3.37

Subdivision 1 — Employee records Records — form …. Records — content …. Records — pay …. Records — overtime …. Records — averaging of hours …. Records — leave …. Records — superannuation contributions ….

[10-1900] [10-1905] [10-1910] [10-1915] [10-1920] [10-1925] [10-1930] [page 1116]

Regulation

3.38 3.39 3.40 3.41 3.42

Title

Records — individual flexibility arrangement …. Records — guarantee of annual earnings …. Records — termination of employment …. Records — transfer of business …. Records — inspection and copying of a

Paragraph

[10-1935] [10-1940] [10-1945] [10-1950]

3.44

record …. Records — information concerning a record …. Records — accuracy ….

3.45 3.46

Subdivision 2 — Pay slips Pay slips — form …. Pay slips — content ….

3.43

[10-1955] [10-1960] [10-1965]

[10-1985] [10-1990]

CHAPTER 4 — COMPLIANCE AND ENFORCEMENT PART 4-1 — CIVIL REMEDIES

4.01A

4.01

DIVISION 2 — ORDERS Applications for orders in relation to contraventions of civil remedy provisions ….

[10-2145]

DIVISION 3 — SMALL CLAIMS PROCEDURE Plaintiffs may choose small claims procedure ….

[10-2170]

DIVISION 4 — GENERAL PROVISIONS RELATING TO CIVIL REMEDIES AND INFRINGEMENT NOTICES 4.02 General …. [10-2195] 4.03 Definitions for Division 4 …. [10-2200] 4.03A Course of conduct …. [10-2205] 4.04 When an infringement notice can be given …. [10-2210] 4.05 Content of infringement notice …. [10-2215] 4.06 Time for payment of penalty …. [10-2220] 4.07 Extension of time to pay penalty …. [10-2225] 4.08 Withdrawal of infringement notice …. [10-2230] 4.09 Effect of payment of penalty …. [10-2235] 4.10 Refund of penalty …. [10-2240]

DIVISION 5 — UNCLAIMED MONEY Unclaimed money ….

4.11

[10-2265]

CHAPTER 5 — ADMINISTRATION PART 5-1 — FAIR WORK COMMISSION DIVISION 5 — FWC MEMBERS Delegation by President of functions and powers of FWC ….

5.01

[10-2420] [page 1117]

Regulation

5.01A

5.01B 5.02 5.03

Title

Delegation by the President of functions and powers of FWC — prescribed members of staff of FWC …. Appointment of Vice President …. Dual federal and Territory appointments of Deputy Presidents or Commissioners …. Oath and affirmation of office ….

Paragraph

[10-2423] [10-2424] [10-2425] [10-2430]

DIVISION 7 — SEALS AND ADDITIONAL POWERS OF THE PRESIDENT AND THE GENERAL MANAGER 5.04 President must provide certain information etc. to the Minister and Fair Work Ombudsman …. [10-2455] 5.04A Delegation by General Manager to staff …. [10-2460] PART 5-2 — OFFICE OF THE FAIR WORK OMBUDSMAN DIVISION 3 — OFFICE OF THE FAIR WORK OMBUDSMAN 5.05 Powers and functions of inspectors — notification of failure to observe requirements …. [10-2560]

5.06

Powers of inspectors while on premises — taking samples of goods and substances ….

[10-2565]

CHAPTER 6 — MISCELLANEOUS PART 6-2 — DEALING WITH DISPUTES DIVISION 2 — DEALING WITH DISPUTES Subdivision A — Model term about dealing with disputes Model term about dealing with disputes …. [10-2720]

6.01

PART 6-3 — EXTENSION OF NATIONAL EMPLOYMENT STANDARDS ENTITLEMENTS DIVISION 2 — EXTENSION OF ENTITLEMENT TO UNPAID PARENTAL LEAVE AND RELATED ENTITLEMENTS 6.02 Modification of meaning of base rate of pay for pieceworkers (non-national system employees) …. [10-2825] 6.03 Meaning of pieceworker …. [10-2830] PART 6-3A — TRANSFER OF BUSINESS FROM STATE PUBLIC SECTOR EMPLOYER 6.03A FWA orders about coverage for employee organisations …. [10-2850] 6.03B Model term for dealing with disputes about matters arising under a copied State instrument …. [10-2855] [page 1118] Regulation

Title

Paragraph

PART 6-4 — ADDITIONAL PROVISIONS RELATING TO

TERMINATION OF EMPLOYMENT

6.04 6.05 6.06

DIVISION 2 — TERMINATION OF EMPLOYMENT Temporary absence — illness or injury …. [10-2935] Application fees …. [10-2940] Schedule of costs …. [10-2945]

DIVISION 3 — NOTIFICATION AND CONSULTATION REQUIREMENTS RELATING TO CERTAIN TERMINATIONS OF EMPLOYMENT

6.07

Subdivision B — Requirement to notify Centrelink Employer to notify Centrelink of certain proposed terminations — form of notice ….

[10-2970]

Part 6-4B — WORKERS BULLIED AT WORK DIVISION 2 — STOPPING WORKERS BEING BULLIED AT WORK 6.07A Application fees …. [10-2975] PART 6-5 — MISCELLANEOUS DIVISION 2 — MISCELLANEOUS

6.08

6.09

6.10

Subdivision 1 — Employment matters Public sector employer to act through employing authority — meaning of public sector employment …. Public sector employer to act through employing authority — meaning of employing authority …. No action for defamation in certain cases …. SCHEDULE 2.1 — NOTICE OF EMPLOYEE REPRESENTATIONAL RIGHTS …. SCHEDULE 2.2 — MODEL FLEXIBILITY

[10-3075]

[10-3080] [10-3085]

[10-3105]

TERM ….

[10-3110]

SCHEDULE 2.3 — MODEL CONSULTATION TERM …. SCHEDULE 3.1 — SCHEDULE OF COSTS …. SCHEDULE 3.2 — BALLOT PAPERS …. Form 1 — Ballot paper under Part 3 of Chapter 3 …. SCHEDULE 3.3 — FORMS RELATING TO ENTRY TO PREMISES …. Form 1 — Entry permit to enter premises …. Form 2 — Entry notice …. Form 3 — Exemption certificates …. Form 4 — Affected member certificate ….

[10-3115] [10-3120] [10-3125] [10-3135] [10-3150] [10-3160] [10-3165] [10-3170] [10-3175] [page 1119]

Title

SCHEDULE 3.4 — FORMS FOR CERTAIN DISMISSALS …. Form 1 — Notice to Centrelink of proposed dismissals …. SCHEDULE 4.1 — FORM OF CLAIM FOR UNCLAIMED MONEY …. SCHEDULE 5.1 — OATH AND AFFIRMATION OF OFFICE …. SCHEDULE 5.2 — INFORMATION AND COPIES OF DOCUMENTS TO BE PROVIDED TO THE MINISTER AND THE FAIR WORK OMBUDSMAN …. SCHEDULE 6.1 — MODEL TERM FOR DEALING WITH DISPUTES FOR

Paragraph

[10-3195] [10-3200] [10-3220] [10-3240]

[10-3260]

ENTERPRISE AGREEMENTS …. SCHEDULE 6.1A — MODEL TERM FOR DEALING WITH DISPUTES ABOUT MATTERS ARISING UNDER COPIED STATE INSTRUMENT …. SCHEDULE 6.2 — FORMS FOR CERTAIN TERMINATIONS …. Form 1 — Notice to Centrelink of proposed terminations …. SCHEDULE 6.3 — PUBLIC SECTOR EMPLOYMENT — EMPLOYING AUTHORITIES ….

[10-3280]

[10-3290] [10-3300] [10-3310]

[10-3330]

[page 1121]

Fair Work Regulations 2009 TABLE OF AMENDMENTS The Fair Work Regulations 2009 SLI 112 of 2009 were registered on 19 June 2009 (F2009L02356) and commenced on 1 July 2009, apart from Pts 22 and 6-3 which will commence on 1 January 2010. This Regulation is amended by: Amending Legislation Fair Work Amendment Regulations 2009 (No 1) SLI 164 of 2009 Fair Work Amendment Regulations 2009 (No 2) SLI 207 of 2009 Fair Work Amendment Regulations 2009 (No 3) SLI 300 of 2009 Fair Work Legislation Amendment Regulations 2009 (No 2) Fair Work Legislation Amendment Regulations 2009 (No 3) Fair Work Amendment

Date of Notification 30 June 2009 (F2009L02567)

Date of Commencement rr 1–4, Sch 1: 1 July 2009; Sch 2: 1 January 2010

14 August 2009 (F2009L03140)

regs 1–3 and Sch 1: 14 August 2009; Sch 2: 1 October 2009 13 November 2009 14 November 2009 (FR2009L04157) 14 December 2009 1 January 2010

14 December 2009 1 January 2010

25 May 2010

26 May 2010

Regulations 2010 (No 1) SLI 99 of 2010 Fair Work Amendment Regulations 2011 (No 1) SLI 23 of 2011 Fair Work Amendment Regulations 2011 (No 2) SLI 91 of 2011 Fair Work Amendment Regulations 2011 (No 3) SLI 152 of 2011 Fair Work Amendment Regulations 2011 (No 4) SLI 244 Fair Work Amendment Regulation 2012 (No 1) SLI 64 Fair Work Amendment Regulation 2012 (No 2) SLI 197 Work Health and Safety Legislation Amendment Regulation 2012 (No 1) SLI 218 Fair Work Legislation Amendment Regulation 2012 (No 1) SLI 321 Fair Work Legislation Amendment Regulation 2012 (No 2) SLI 322 Fair Work Amendment Regulation 2012 (No 3) SLI 323

11 March 2011 (F2011L00418)

12 March 2011

21 June 2011

22 June 2011

17 August 2011

20 August 2011 (F2011L01697)

12 December 2011 13 December 2011 (F2011L02641) 11 May 2012

12 May 2012

20 August 2012 (F2012L01708)

21 August 2012

14 September 2012 15 September 2012 (F2012L01870)

11 December 2012 1 January 2013 (F2012L02450) 11 December 2012 12 December 2012

11 December 2012 1 January 2013

[page 1122]

Amending Legislation Federal Circuit Court of Australia Legislation (Consequential Amendments) Regulation 2013 (No 1) SLI 51 Fair Work Amendment Regulation 2013 (No 1) SLI 69 Fair Work Amendment Regulation 2013 (No 2) SLI 139 Fair Work and Other Legislation Amendment (AusAID) Regulation 2013 SLI 242 Fair Work Amendment (Anti-Bullying) Regulation 2013 SLI 263 Fair Work Amendment (Protected Industrial Action) Regulation 2014 No 95

Date of Date of Commencement Notification 11 April 2013 regs 1–4 and Sch 1: 12 (F2013L00649) April 2013

16 May 2013 22 May 2013 (F2013L00815) 28 June 2013 ss 1–4: 1 July 2013; Sch 1: (F2013L01221) 1 July 2013; Sch 2: 1 January 2014 25 November 26 November 2013 2013 (F2013L01972) 12 December 1 January 2014 2013 (F2013L02094) 30 June 2014 1 July 2014 (F2014L00881)

[page 1123]

CHAPTER 1 — INTRODUCTION PART 1-1 — INTRODUCTION DIVISION 1 — PRELIMINARY

[10-100]

Name of Regulations

1.01 These Regulations are the Fair Work Regulations 2009.

[10-105]

Commencement

1.02 These Regulations commence as follows: (a) on 1 July 2009 — these Regulations, other than Parts 2-2 and 6-3; (b) on 1 January 2010 — Parts 2-2 and 6-3.

PART 1-2 — DEFINITIONS DIVISION 1 — INTRODUCTION

[10-210]

Definitions

1.03 In these Regulations: Act means the Fair Work Act 2009. quarter means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October in a year. WHS entry permit has the same meaning as in the Work Health and Safety Act 2011. [def insrt SLI 218 of 2012 s 4 and Sch 2[1], opn 15 Sep 2012]

DIVISION 2 — THE DICTIONARY

[10-235]

Meaning of designated outworker term

1.04 For paragraph (f) of the definition of designated outworker term in section 12 of the Act, each of the following terms is prescribed: (a) a term that deals with the filing of records about work to which outworker terms of a modern award apply; (b) a term that deals with the provision of materials; (c) a term that is incidental to a designated outworker term, including a term dealing with the observance of the award. COMMENTARY TO REGULATION 1.04

Expansion of the term pursuant to definition in FW Act s 12 ….

[10-235.10]

[10-235.10] Expansion of the term pursuant to definition in FW Act s 12 These terms add to the terms defined to be a designated outworker in sub-para (a)–(e) in that definition contained in s 12 of the FW Act. Sub-paragraph (f) provides for further terms to be prescribed. Regulation 1.04 thus expands the terms already included in that definition in relation to outworkers in the textile, clothing or footwear industry.

____________________ [page 1124]

[10-240] court

Meaning of eligible State or Territory

1.05 [reg 1.05 rep SLI 391 of 2009 reg 3 and Sch 1, opn 1 Jan 2010]

[10-245] Meaning of prescribed State industrial authority 1.06 For the definition of prescribed State industrial authority in section 12 of the Act, the following State tribunals are prescribed: (a) the Industrial Relations Commission of New South Wales;

(b) (c) (d) (e)

the Queensland Industrial Relations Commission; the Western Australian Industrial Relations Commission; the Industrial Relations Commission of South Australia; the Tasmanian Industrial Commission. COMMENTARY TO REGULATION 1.06

Specifying State industrial commissions ….

[10-240.10]

[10-240.10] Specifying State industrial commissions There are no boards, courts, tribunals, bodies or officials provided for in the definition of prescribed State industrial authority in s 12 of the FW Act, and reg 1.06 specifies the various State industrial commissions which that defined term comprises.

____________________

[10-250]

Meaning of serious misconduct

1.07 (1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning. (2) For subregulation (1), conduct that is serious misconduct includes both of the following: (a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; (b) conduct that causes serious and imminent risk to: (i) the health or safety of a person; or (ii) the reputation, viability or profitability of the employer’s business. (3) For subregulation (1), conduct that is serious misconduct includes each of the following: (a) the employee, in the course of the employee’s employment, engaging in: (i) theft; or (ii) fraud; or (iii) assault; (b) the employee being intoxicated at work; (c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of

employment. (4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable. (5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform. [page 1125] COMMENTARY TO REGULATION 1.07*

Derivation …. Inclusive definition given for term not otherwise defined in the FW Act …. Assault — Subregulation 1.07(3)(a)(iii) …. Fraud — Subregulation 1.07(3)(a)(ii) …. Intoxicated at work — Subregulation 1.07(3)(b) …. Onus of proof …. Ordinary meaning — Subregulation 1.07(1) …. Refusing to carry out a lawful and reasonable instruction — Subregulation 1.07(3)(c) …. Reputation, viability or profitability — Subregulation 1.07(2)(b)(ii) …. Serious and imminent risk — Subregulation 1.07(2)(b) …. Theft — Subregulation 1.07(3)(a)(i) …. Wilful or deliberate behaviour — Subregulation 1.07(2) (a) …. [10-250.5] Derivation Workplace Relations Regulations Regulation 12.10.

[10-250.5] [10-250.10] [10-250.15] [10-250.20] [10-250.25] [10-250.30] [10-250.35] [10-250.40] [10-250.45] [10-250.50] [10-250.55] [10-250.60]

[10-250.10] Inclusive definition given for term not otherwise defined in the FW Act It is notable that the meaning of serious misconduct in s 12 of the FW Act has no definition itself and delegates this to the regulation. This enables the regulations to completely define that term as it is used in the FW Act. Importantly, as the first sub-paragraph makes clear, reg 107 is an inclusive definition, not an exhaustive definition, of serious misconduct, and leaves the ordinary meaning of “serious misconduct” intact. Instead, reg 1.07 seeks to remove doubt as to whether or not certain specified conduct is or is not serious misconduct, at least on a prima facie basis. In this regard, reg 1.07(4) places the onus of proof on an employee to show that conduct falling under subreg (3) is not serious misconduct, based on the reasonableness of ongoing employment during a period of notice (presumably consequent to dismissal for engaging in that conduct). Significantly, there is no such possible exemption to conduct falling within that described in reg 1.07(2). [10-250.15] Assault — Subregulation 1.07(3)(a)(iii) Any assault committed in the workplace, however trivial, is a serious matter: Appeal by Mobil Oil Australia Ltd (AIRC (Melbourne), Polites SDP, Duncan DP, Hodder Cmr, Melbourne, PRN4832, 11 September 1996, unreported). Whether a fight in the workplace constitutes grounds for summary dismissal will depend very much upon the circumstances AWU-FIME Amalgamated Union v Queensland Alumina (1995) 62 IR 385 at 393. A threat to kill another may constitute grounds for termination: R. Dobrecovic v Paper Converting Company Plastics (AIRC (Brisbane), Hoffman Cmr, PR P8975, 19 February 1998, unreported). [10-250.20] Fraud — Subregulation 1.07(3)(a)(ii) In Mourilyan v James Hardie Australia Pty Ltd [2010] FWA 9672; BC201070884 Commissioner Asbury held at [86]: In circumstances where the reason for a dismissal is serious misconduct said to amount to fraud, it is critical that an assessment be made as to whether, on the balance of probabilities, the employee did actually engage in serious misconduct. It is not the case that where fraud is alleged, that the standard of proof to be applied shifts, so that the question of whether the employee did engage in fraud is determined on the basis that it must be established beyond reasonable doubt. [page 1126] [10-250.25] Intoxicated at work — Subregulation 1.07(3)(b) Subregulation 1.07(5) provides that an employee is taken to be intoxicated if the employee is under the influence of a drug, and the employee’s faculties are so impaired that the employee is “unfit to be entrusted with the employee’s duty or with any duty that the employee may be called upon to perform”. However, there is an exception if the employee’s intoxicant is a lawfully administered drug. Conduct was found to be outside the regulation in Robins v Sir Charles Gaidner Hospital (1999) 95 IR 27 (AIRC (Perth), O’Conner Cmr, PR0725, 14 January 1999, unreported) where the employee was discovered at work with some marijuana that he had not yet smoked; Worden v Diamond Offshore General Company (1997) 78 IR 85 (AIRC (Darwin), Eames Cmr, PS0242, 18 October 1999, unreported) where an employee on an off-shore rig tested positive to marijuana, but there was no evidence of impairment; and Watson v Tamworth Radio Development Co (AIRC (Sydney), Smith Cmr, PR2297, 18 February 1999, unreported) where it was not clear whether an employee radio announcer was affected by a hang-over compounded by cold and flu medication or intoxication. [10-250.30] Onus of proof At common law, the onus of proof rests on the employer to establish that it had a right to terminate the employment without proper notice: Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66; 6 ALJR 457a; BC3390103. Many findings of serious misconduct arguably require use of the standard in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; 12 ALJR 100; BC3800027 at [361]: see Carole Ann Barrick v Qantas Flight Catering Ltd (AIRC (Brisbane) Hodder

Cmr, PR900764, 14 January 2001, unreported, at [60]), Quinny Fu v Comnet International Pty Ltd, (AIRC (Melbourne), Acton SDP, P S4569, 11 April 2000, unreported, at [31]). However, note Y. Hassan and E. Abejaron v Nestle Dairy Products (AIRC (Melbourne), Watson SDP, Acton SDP, Hingley Cmr, PR S6338, 24 May 2000, unreported) where the failure to apply Briginshaw was not seen as an error in the context of proceedings where criminal conduct was not alleged: at [14]–[15] and discussion in T Donaghey, Termination of Employment, 1st ed, LexisNexis, Sydney, 2006 (Donaghey) at 7.15–7.16. [10-250.35] Ordinary meaning — Subregulation 1.07(1) The reference to serious misconduct carries its common law meaning: Mario Bartucciotto v Euro Printing Co Pty Ltd (IRCA(WA), von Doussa J, 21 February 1996, unreported); Robert Leslie Watts v Cadbury Schweppes Pty Ltd (IRCA, Ritter JR, 5 May 1997, unreported); Brackenridge v Toyota Motor Corp Aust Ltd (1996) 142 ALR 99. [T]he expression “serious misconduct”, is a relative term having no precise meaning. The determination of whether misconduct is “serious” and whether the circumstances in which its consequences arise for consideration are “serious” involves a value judgment about which minds are likely to differ: Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381; BC201511771 at [101]. “Serious misconduct” that justifies summary dismissal at common law has been described as “conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment”: North v Television Corp Ltd (1976) 11 ALR 599; applied in Gooley v Westpac Banking Corp (1995) 129 ALR 628; 59 IR 262. A slightly different formulation was used in Downer EDI Ltd v Gillies (2012) 92 ACSR 373; [2012] NSWCA 333; BC201208688 at [83]: … it can be taken that the conduct must be incompatible with the due or faithful discharge of the employee’s duty or inconsistent with the relationship of trust and confidence between employer and employee. Repugnance between the conduct and the relationship must be found. There is no reason why the term “misconduct” should be confined to only that conduct which is contrary to or in breach of any specific direction, rule or policy: Soliman v University of Technology, Sydney (2012) 207 FCR 277; 226 IR 214; [2012] FCAFC 146; BC201208136 at [31]. Examples of conduct that may constitute serious misconduct but that may not fall within the conduct referred to in the regulations are the examples of lying during an investigation by an employer: Streeter v Telstra Corporation Ltd (2007) EOC 93-470; [2007] AIRC 679, (10 August 2007); Barrick and Qantas Flight Catering Ltd (AIRC (Brisbane), Hodder Cmr, PR900764, 14 [page 1127] January 2001, unreported at [113]); plagiarism: Petrina Maria Quinn and Charles Sturt University (AIRC (Sydney), Roberts Cmr, Sydney, 15 February 2005, PR 968580 and the abuse of email: M Smith v Western Hospital, AIRC (Melbourne), Foggo Cmr, P Q1359, 2 June 1998, unreported); David Kenny and Epic Energy (AIRC (Perth), O’Connor Cmr, PR S0947, 15 November 1999, unreported); see generally Donaghey, at 7.44–7.59. Swearing may also constitute serious misconduct. Swearing might be considered acceptable in some workplaces but not in others. The context may be relevant. As stated by Bissett C in Elanor Jalea v Sunstate Airlines (Queensland) Pty Ltd (t/as Qantas Link) [2012] FWA 1360; BC201271260 at [116]: Swearing … is very common. Acceptable standards of language across workplaces are not uniform. What might be acceptable on a building site is unlikely to be the accepted norm in an office environment. While the line might be unclear, there is also a substantial difference between “conversational” swearing and an outburst of the type that occurred during this incident. As Sams DP held in Slater v Patrick Port Logistics (2012) 225 IR 362; [2012] FWA 7204; BC201276653 at [138]:

there is a vast difference between banter and the use of swearing or foul language in an aggressive or abusive manner with an intent to threaten or intimidate another employee. As the Privy Council held quaintly in Jupiter General Insurance Co v Shroff [1937] 3 All ER 67 at 74, one must apply the standards of men, and not those of angels, and remember that men are apt to show temper when reprimanded. At common law, an employee’s misconduct may be the basis for summary dismissal even if the employer did not know of the misconduct at the time of the dismissal: Shepherd v Felt & Textiles of Aust Ltd (1931) 45 CLR 359 at 377–78; 37 ALR 194; 5 ALJR 109b; Concut Pty Ltd v Worrell (2000) 176 ALR 693; 103 IR 160; [2000] HCA 64; BC200007593. It is clear that in certain circumstances an employee’s employment may be validly terminated because of out of hours conduct. But such circumstances are limited: the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or the conduct damages the employer’s interests; or the conduct is incompatible with the employee’s duty as an employee: Rose v Telstra Corporation Litd (1998) 35 AILR 3-966; [1998] AIRC 1592; N Print Q9292. However an employer who has full knowledge of the misconduct of an employee, and who makes a decision to continue to employ the employee, cannot at a later date, unless of course other facts come to his knowledge, dismiss him summarily on the basis of the employee’s known misconduct. It is said that the employer has waived his right to dismiss the employee summarily, and thereby condones the misconduct: Rankin v Marine Power International Pty Ltd (2001) 107 IR 117; [2001] VSC 150; BC200102544 at [352]. After summarising the authorities, Gillard J held in Rankin at [357] that: Consistent with the authorities, the plaintiff, who relies upon condonation in the present proceeding, would have to prove: (i) that the employer had full knowledge of the employee’s misconduct; (ii) that with that knowledge, the employer retains the employee in his service; (iii) that having made the election, he deliberately abandons his right to summarily dismiss the employee. [10-250.40] Refusing to carry out a lawful and reasonable instruction — Subregulation 1.07(3)(c) At common law, a definite refusal by the employee to perform his or her duties gives the employer the right to summarily terminate the employment: Adami v Maison de Luxe Ltd (1924) 35 CLR 143; 30 ALR 438; [1925] VLR 147; BC2400018; Pepper v Webb [1969] 2 All ER 216; [1969] 1 WLR 514; and Byrnes v Treloar (1997) 77 IR 332; BC9706571. [page 1128] In Miller v University of New South Wales, PR910187; [2001] AIRC 1055, at [58]–[59] (11 October 2001) the full bench held: [i]t may be serious misconduct to disobey an order of an employer which is lawful and reasonable … In determining whether a refusal to carry out the lawful and reasonable direction of an employer constitutes serious misconduct, it is necessary to have regard to all the circumstances, including the nature and extent of the employee’s conduct. An intentional and conscious refusal to carry out instructions on the part of the employee is required, and a mere failure to do so will not suffice: Furey v Civil Service Association of WA (Inc) (FCA(WA), Farrell J, 19 June 1998, unreported (Furey); BC9802704); Adami v Maison de Luxe Ltd (1924) 35 CLR

143; 30 ALR 438; [1925] VLR 147; BC2400018; (Adami). Where an employee raises a counterproposal to an instruction and is not advised that the counter-proposal is rejected, the employee can not be said to have refused to carry out the instruction: Furey, above. Nor is there a repudiation of the contract by the employee if he or she acts in good faith on a mistaken interpretation of the contract: Scharmann v APIA Club Ltd (1983) 6 IR 157; Schaffer Ltd v Findlay Durham & Brodie [1953] 1 WLR 106; and Adami, above. In some cases there has been an issue about whether the employer’s command was within the scope of the contract: if, for example, an employer directs an employee to undertake activities outside of work hours: Curd v Le Pine Funeral Services, (AIRC (Melbourne), Smith Cmr, Print P8505, 6 February 1998, unreported) where an employee was unable to work on a day for which he received a stand-byallowance; and Pastrycooks, Biscuit Makers & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 where an employee van salesman refused to make a late delivery. [10-250.45] Reputation, viability or profitability — Subregulation 1.07(2)(b)(ii) Deliberate sabotage of an employer’s business can be a valid reason for dismissal: Ellis v Manbulloo Ltd [2011] FWA 600; BC201170192 at [33] (31 January 2011). [10-250.50] Serious and imminent risk — Subregulation 1.07(2)(b) This category of misconduct picks up the inherent requirement of employment that work be performed with reasonable safety to the person and to others. McHugh J has held that such a requirement is implied into every contract as a matter of fact and of law: X v Commonwealth (1999) 200 CLR 177; 167 ALR 529 at 537; [1999] HCA 63; BC9907850 at [32]. In Parmalat Food Products Pty Ltd v Wililo [2011] FWA 1166; FWAFB 1166; (2011) 207 IR 243; at [18] (2 March 2011), the full bench stressed the importance of safety in the workplace holding that: Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in NSW. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences. To similar effect, in Hunter Douglas Hunter Douglas v SSX Services Pty Ltd t/as The Australian Reinforcing Company [2010] FWA 2693; BC201070680 at [6]–[8], (14 April 2010), Hamberger SDP stated that: The Occupational Health and Safety Act 2000 (NSW) places responsibility upon an employer to provide a safe and healthy workplace, and upon employees to act in a proper and safe manner towards other workers. Employees who commit breaches of health and safety procedures in a wilful, negligent or reckless manner can reasonably be held to have committed misconduct. Indeed, the definition of serious misconduct in regulation 1.07 of the Fair Work Act 2009 (the Act) expressly includes conduct that causes serious and imminent risk to the health and safety of a person. Not all breaches of health and safety procedure will automatically entitle an employer to dismiss an employee. The severity of the breach needs to be considered. Moreover an employee’s previous record may well be a relevant consideration. [page 1129] In Kennelly v Incitec Pty Ltd; [1998] FCA 1470; BC9806183 Spender J held that an employee’s failure to inspect a machine to determine it was in a position to be started before removing the “danger tag”, which indicated it had been the subject of repairs, constituted misconduct.

The commission has found that the following examples of misconduct do not fall within subreg 12.10: Gordich v Mayne Nickless Pty Ltd t/as Amaguard (AIRC (Perth), Laing Cmr, Print S9633, 25 August 2000, unreported) in which the employee armed escort driver “dry fired” his weapon in the employer’s loading bay; Ward v Kyabram and District Memorial Hospital (AIRC (Melbourne), Smith Cmr, Print R8937, 10 September 1999, unreported) in which a registered nurse made mistakes in preparing IV infusions for patients on five occasions; West v Steggles Ltd (AIRC (Melbourne), Hingley Cmr, Print S1671, 23 December 1999, unreported) in which the employee threw a chicken body contrary to company policy; Viney v M & V Brown Pty Ltd (AIRC (Melbourne), Holmes C, Print P9930, 6 May 1998, unreported) in which the employee swore at his supervisor; Kearney and Bender v Qantas Airways Ltd (AIRC (Melbourne), Cribb Cmr, Print P6999, 26 November 1997, unreported) in which the employees fought in the workplace over personal matters; and Kovacevic v DMG Industries Pty Ltd (AIRC (Melbourne), Whelan Cmr, Print S5478, 2 May 2000, unreported) in which thefitter and turner smoked in the welding room contrary to company policy. Conduct which is negligent may fall within the definition. At common law, mere negligence will not justify summary dismissal: Fillieul v Armstrong (1837) 112 ER 580 in which a school teacher delayed his return to school two days after the term commenced; Rankin v Marine Power International Pty Ltd (2001) 107 IR 117; [2001] VSC 150; BC200102544 (Rankin) in whicha senior business development manager failed to carry out certain procedures required by the company manual and failed to carry out a costs analysis to alert senior management that there would be a substantial costs overrun at an earlier stage. “Habitual neglect” (see Callo v Brouncker (1831) 4 C & P 518; 172 ER 807) or a single instance of “substantial” or “gross” negligence may justify summary dismissal (see Savage v British India Steam Navigation Company Ltd (1930) 46 TLR 294 in which a ship’s captain failed to prevent a valve on a vessel from being opened and water flowing into the hold, damaging valuable Persian carpets; Baster v London and County Printing Works [1899] 1 QB 901 in which an employee failed to properly adjust a machine, which was worth 800 pounds; and Re Rubel Bronze and Metal Co [1918] 1 KB 315; (1917) 118 LT 348). In Matthew John v The Star Pty Ltd, Cmr Cambridge surveyed some of the common law authorities to conclude that at [53] that in certain circumstances, an act of gross negligence which causes substantial loss or damage to the employer, may represent a valid basis for summary dismissal. At [63]–[64] he doubted whether this was the case under the statutory definition. At common law an employee’s incompetence is only grounds for summary dismissal where an employee holds him or herself out as having a particular skill, but when entrusted with the job, demonstrates that he or she does not have that skill. [10-250.55] Theft — Subregulation 1.07(3)(a)(i) See Alan McIndoe v BHP Coal Pty Ltd (AIRC (Brisbane), P T3478, 17 November 2000, unreported); Fu v Comnet International Pty Ltd (AIRC (Melbourne), Acton SDP, P S4569, 11 April 2000, unreported), Barrick and Qantas Flight Catering Ltd (AIRC (Brisbane), Hodder Cmr, PR900764, 14 January 2001, unreported). Wilfully damaging an employer’s goods has been treated as tantamount to theft: Azzopardi v Accredited Distributors Pty Ltd Co (AIRC (Melbourne), Acton DP, P R3176, 22 March 1999, unreported). [10-250.60] Wilful or deliberate behaviour — Subregulation 1.07(2)(a) At common law an employee may be dismissed for wilfully disobeying a lawful order of the employer: Bouzourou v The Ottoman Bank [1930] AC 271. However, something more than ill-advised conduct or omission to act as a result of an error of judgment will be required: Gooley v Westpac Banking Corporation (1995) 129 ALR 628; 59 IR 262. See a useful summary of authorities in Geoffrey Hewitt v Chubb Security Personnel Pty Ltd (AIRC (Melbourne), Grainger Cmr, PR 976758, 28 May 2007, unreported, at [27]– [28]).

[page 1130] An employer may be justified in summarily dismissing an employee even if the employee has not demonstrated an intention not to perform the contract in the future: an example is where an employee borrows money from the shop till and repays it the following day: Sinclair v Neighbour [1967] 2 QB 279; [1966] 3 All ER 988; [1967] 2 WLR 1. Conduct that is “repugnant” to the employment relationship (but not a repudiation of it) may be “inconsistent with the continuation of the contract of employment”. Conduct which results in a conflict between the employee’s interest and duty to the employer, or destroys the confidence between employer and employee may also ground a right to dismiss without notice: Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66; 6 ALJR 457a; BC3390103; Concut Pty Ltd v Worrell (2000) 176 ALR 693; 103 IR 160; [2000] HCA 64; BC200007593 (Concut, above) (concerned a branch manager who dishonestly used the employer’s materials and property to build his own house); Watts v Cadbury Schweppes Pty Ltd (IRCA (WA), Ritter JR, 5 May 1997, unreported) (concerned an employee who dishonestly claimed a fitness allowance). There is no rule of law that defines the degree of misconduct that would justify dismissal without notice. The question is one of fact: for example, in MacIntosh v Harness Racing (IRCA, Smith Cmr, 10 November 1999, unreported) Smith Cmr held that a race caller’s failure to report the rigging of a race did not stand equally with such corrupt practices as fixing a race, and did not constitute serious misconduct. In assessing whether the employer is justified in summarily dismissing an employee it is relevant to acknowledge that to do so is a “drastic step [which] not only has financial implications for the employee but carries with it a certain obloquy”: Williams v Printers Trade Services (1984) 26 AILR 170; 7 IR 82 at [85] per Toohey J. See also Johnson v Unisys Ltd [2003] 1 AC 518; [2001] 2 All ER 801; (2001) 2 WLR 1076; [2001] UKHL 13 at 1101 per Lord Millett; Concut; Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66; 6 ALJR 457a; BC3390103; Rankin, above at [250]. *Editor’s note: Commentary to “Inclusive definition given for term not otherwise defined in the FW Act” by Erik Young, Barrister, Fifteenth Floor Wardell Chambers. All other commentary prepared by Emily Hammond BA LLB (Syd) and John Trew QC LLB (Syd) and updated by Ian Latham BA (Hons) LLB (ANU), Barrister.

____________________

[10-255]

Meaning of TCF award

1.08 For the definition of TCF award in section 12 of the Act, each instrument mentioned in the following table is prescribed. Item

Instrument

1

Clothing Trades Award 1999

2

Felt Hatting Industry Award 1999

3

Footwear Industries Award 2000

4

Notional Agreements Preserving the State Award that includes terms and conditions derived from the New South Wales Clothing Trades (State) Award, The

5

Notional Agreements Preserving the State Award that includes terms and conditions derived from the New South Wales Footwear Manufacturing Industry (State) Award, The

6

Notional Agreements Preserving the State Award that includes terms and conditions derived from the New South Wales Textile Industry (State) Award, The

7

Notional Agreements Preserving the State Award that includes terms and conditions derived from the Queensland Clothing Trades Award — Southern and Central Divisions 2003, The

8

Notional Agreements Preserving the State Award that includes terms and conditions derived from the Queensland Clothing Trades Award — State (Excluding South-East Queensland) 2003, The

[page 1131]

Item

Instrument

9

Notional Agreements Preserving the State Award that includes terms and conditions derived from the Queensland Footwear Manufacturing Award — State 2005, The

10

Notional Agreements Preserving the State Award that includes terms and conditions derived from the Queensland Surgical Bootmaking, Bespoke Bootmaking and Boot Repairing Award — State 2003, The

11

Notional Agreements Preserving the State Award that includes terms and conditions derived from the South Australian Boot and Shoe Award 2006, The

12

Notional Agreements Preserving the State Award that includes terms and conditions derived from the South Australian Clothing Trades Award, The

13

Notional Agreements Preserving the State Award that includes terms and conditions derived from the Tasmanian Bootmakers Award, The

14

Notional Agreements Preserving the State Award that includes terms and conditions derived from the Tasmanian Clothing Industry Award, The

15

Notional Agreements Preserving the State Award that includes terms and conditions derived from the Tasmanian Textile Award, The

16

Notional Agreements Preserving the State Award that includes terms and conditions derived from the Western Australian Bag, Sack and Textile Award, The

17

Notional Agreements Preserving the State Award that includes terms and conditions derived from the Western Australian Bespoke Bootmakers’ and Repairers’ Award No 4 of 1946, The

18

Notional Agreements Preserving the State Award that includes terms and conditions derived from the Western Australian Clothing Trades Award 1973, The

19

Textile Industry Award 2000

20

Textile, Clothing, Footwear and Associated Industries Award 2010

[reg 1.08 subst SLI 207 of 2009 reg 3 and Sch 1, opn 14 Aug 2009]

DIVISION 4 — OTHER DEFINITIONS

[10-280]

Meaning of base rate of pay —

pieceworkers (national system employee) 1.09 (1) For paragraph 16(2)(c) of the Act, this regulation provides for the determination of the base rate of pay for the purposes of the National Employment Standards for a national system employee who is an award/agreement free employee and a pieceworker. Note: The Act defines award/agreement free employee in section 12 and pieceworker in section 21.

(2) The base rate of pay, expressed as an hourly rate of pay, is worked out using the formula:

[page 1132] where: TA is the total amount earned by the employee during the relevant period. TH is the total hours worked by the employee during the relevant period. the relevant period is: (a) for an employee who was continuously employed by the employer for a period of 12 months or more immediately before the base rate of pay is to be worked out — the 12 months before the rate is to be worked out; or (b) for an employee who was continuously employed by the employer for a period of less than 12 months immediately before the base rate of pay is to be worked out — that period.

[10-285] Meaning of base rate of pay — pieceworkers (enterprise agreement) 1.10 (1) For subsection 16(3) of the Act, this regulation provides for the determination of the base rate of pay for the purpose of section 206 of the Act for a pieceworker who is covered by a modern award.

Note: Section 206 of the Act deals with an employee’s base rate of pay under an enterprise agreement

(2) The base rate of pay is the rate in the modern award identified as the base rate of pay for the purposes of the National Employment Standards. COMMENTARY TO REGULATION 1.10

Consistency between rates of pay ….

[10-285.10]

[10-285.10] Consistency between rates of pay This regulation maintains consistency between the base rate of pay for pieceworkers and all other workers as provided for in the National Employment Standards.

____________________

[10-290] Meaning of ordinary hours of work for award/agreement free employees 1.11 (1) For subsection 20(4) of the Act, this regulation provides for the determination of hours that are taken to be the usual weekly hours of work of an award/agreement free employee who: (a) is not a full-time employee; and (b) does not have usual weekly hours of work. Note: Under section 20 of the Act, the usual weekly hours of work of an award/agreement free employee are relevant to establishing the employee’s ordinary hours of work.

(2) To work out the usual weekly hours of work for an employee who has been employed by the employer for at least 4 weeks: (a) identify the total number of hours that the employee has worked during the previous 4 completed weeks; and (b) divide the result by 4. (3) To work out the usual weekly hours of work for an employee who has been employed by the employer for less than 4 weeks: (a) identify the total number of hours that the employee has worked during the period; and [page 1133] (b) divide the result by the number of completed weeks for which the

employee has been employed by the employer. COMMENTARY TO REGULATION 1.11

Completion or non-completion of four weeks’ work ….

[10-290.10]

[10-290.10] Completion or non-completion of four weeks’ work This regulation distinguished between employees who have worked for at least four weeks and those who have not. In the former case, it is the most recent four completed weeks that are used. In the latter case, it is simply a number of hours worked divided by completed weeks. Importantly, in both cases, this calculation excludes incomplete weeks. Difficulties may conceivably arise if the employee has worked for more than four weeks but not all of those weeks are complete weeks.

____________________

[10-295]

Meaning of pieceworker

1.12 (1) For paragraph 21(1)(c) of the Act, this regulation prescribes a class of award/agreement free employees as pieceworkers. Note: Under paragraph 21(1)(c) of the Act, a pieceworker is an award/agreement free employee who is in a class of employees prescribed by the regulations as pieceworkers.

(2) The class is award/agreement free employees who: (a) are paid a rate set by reference to a quantifiable output or task; and (b) are not paid a rate set by reference to a period of time worked. Examples of rates set by reference to a quantifiable output or task 1 A rate of pay calculated by reference to the number of articles produced. 2 A rate of pay calculated by reference to the number of kilometres travelled. 3 A rate of pay calculated by reference to the number of articles delivered. 4 A rate of pay calculated by reference to the number of articles sold. 5 A rate of pay calculated by reference to the number of tasks performed.

PART 1-3 — APPLICATION OF THE ACT DIVISION 2 — INTERACTION WITH STATE AND TERRITORY LAWS

[10-400] State and Territory laws that are not excluded by section 26 of the Act — prescribed laws 1.13 For paragraph 27(1)(b) of the Act, each of the following laws of a State or Territory is a law to which section 26 of the Act does not apply: (a) a law dealing with the suspension, cancellation or termination of a training contract; (aa) a law dealing with the suspension, cancellation or termination of a contract of employment that is: (i) associated with a training contract; and (ii) entered into as part of a training arrangement; (b) a law dealing with a period of probation of an employee that: (i) is part of a training arrangement; but (ii) is not a period of probationary employment; [page 1134] (c) a law that provides protection for an employee who discloses information or makes a complaint under a law that deals with any of the following: (i) whistleblowers; (ii) environmental protection; (iii) health services; (iv) transport safety or operations; (v) the supply of essential services. Note: Under subsection 27(1) of the Act, section 26 of the Act does not apply to a law of a State or Territory so far as the law is prescribed by the regulations as a law to which section 26 does not apply. [reg 1.13 am SLI 364 of 2009 reg 4 and Sch 2, opn 1 Jan 2010] COMMENTARY TO REGULATION 1.13

Outline of regulation ….

[10-400.10]

[10-400.10] Outline of regulation This regulation specifies the State and Territory laws to which s 26 of the FW Act does not apply, to the effect that where those laws would otherwise be rendered ineffective by virtue of the operation of s 26 of the FW Act, their operation is nonetheless preserved by virtue of being prescribed in reg 1.13.

____________________

[10-405] Act excludes prescribed State and Territory laws 1.14 For subsection 28(1) of the Act, each of the following laws of a State or Territory is prescribed: (a) a law relating to child labour, to the extent to which it deals with terms and conditions of employment that: (i) are provided for by the National Employment Standards; or (ii) may be included in a modern award; or (iii) may be included in an enterprise agreement under section 55 of the Act; but not to the extent to which it deals with the times at which, or the periods during which, a child may be employed; (b) a law relating to training arrangements, to the extent to which it deals with terms and conditions of employment that: (i) are provided for by the National Employment Standards; or (ii) may be included in a modern award; or (iii) may be included in an enterprise agreement under section 55 of the Act; (c) the Contracts Review Act 1980 of New South Wales, to the extent to which it relates to contracts of employment. Note: Under subsection 28(1) of the Act, the Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations. COMMENTARY TO REGULATION 1.14

Outline of regulation ….

[10-405.10]

[10-405.10] Outline of regulation This regulation is effectively the reverse of reg 1.13 in that it excludes the operation of certain State and Territory laws where they would otherwise apply, including where such laws otherwise fall within reg 1.13.

____________________ [page 1135]

[10-410] Interaction of modern awards and enterprise agreements with State and Territory laws 1.15 For subsection 29(3) of the Act, each of the following laws of a State or Territory is prescribed: (a) a law relating to child labour, to the extent to which it deals with terms and conditions of employment that: (i) are provided for by the National Employment Standards; or (ii) may be included in a modern award; or (iii) may be included in an enterprise agreement under section 55 of the Act; but not to the extent to which it deals with the times at which, or the periods during which, a child may be employed; (b) a law relating to training arrangements, to the extent to which it deals with terms and conditions of employment that: (i) are provided for by the National Employment Standards; or (ii) may be included in a modern award; or (iii) may be included in an enterprise agreement under section 55 of the Act; (c) the Contracts Review Act 1980 of New South Wales, to the extent that it relates to contracts of employment. Note: Under subsection 29(3) of the Act, a term of a modern award or enterprise agreement does not apply subject to a law of a State or Territory that is prescribed by the regulations as a law to which modern awards and enterprise agreements are not subject. COMMENTARY TO REGULATION 1.15

Outline of regulation ….

[10-410.10]

[10-410.10] Outline of regulation This regulation excludes the operation of the State and Territory

laws prescribed in it to ensure the primacy of the terms of modern awards and enterprise agreements over those specified laws.

____________________

DIVISION 2A — APPLICATION OF ACT IN A REFERRING STATE

[10-435]

State public sector employer

1.15A For paragraph (e) of the definition of State public sector employer in section 30A of the Act, the following kinds of employers are specified: (a) an employer: (i) that is a public entity within the meaning of the Public Administration Act 2004 of Victoria; and (ii) to which paragraphs (a), (b) and (c) of the definition of State public sector employer do not apply; (b) an employer: (i) that is a special body within the meaning of the Public Administration Act 2004 of Victoria; and (ii) to which paragraphs (a), (b) and (c) of the definition of State public sector employer do not apply. [reg 1.15A am SLI 391 of 2009 reg 3 and Sch 1, opn 1 Jan 2010]

[page 1136]

DIVISION 3 — GEOGRAPHICAL APPLICATION OF THE ACT COMMENTARY TO DIVISION 3

Outline of Division ….

[10-459]

[10-459] Outline of Division This Division of the regulations relates to the modification of the application of the FW Act in various circumstances in order to allow for the varying practical circumstances of employment beyond Australia’s lad area. In particular, it relates to the employment of employees in Australian territorial waters, Australia’s economic zone and the continental shelf, and the extension of the application of the FW Act to the Australian Antarctic Territory and Australian based

employers (as defined) who operate overseas using Australian based employees (as defined).

____________________

[10-460]

Definitions for Division 3

1.15B In this Division: coastal trading has the meaning given by section 7 of the Coastal Trading (Revitalising Australian Shipping) Act 2012. [def insrt SLI 197 of 2012 s 3 and Sch 1[1], opn 21 Aug 2012]

continuous voyage permit: (a) means a continuing permit issued under section 286 of the Navigation Act 1912 as in force immediately before 1 July 2012; and (b) includes a continuing permit granted in relation to an application to which paragraphs 5(a) and (b) of Schedule 2 to the Coastal Trading (Revitalising Australian Shipping) (Consequential Amendments and Transitional Provisions) Act 2012 apply. [def insrt SLI 197 of 2012 s 3 and Sch 1[2], opn 21 Aug 2012]

emergency licence has the meaning given by subsection 6(1) of the Coastal Trading (Revitalising Australian Shipping) Act 2012. [def insrt SLI 197 of 2012 s 3 and Sch 1[3], opn 21 Aug 2012]

emergency licensed ship means a ship used to undertake a voyage authorised by an emergency licence. [def insrt SLI 197 of 2012 s 3 and Sch 1[4], opn 21 Aug 2012]

general licence has the meaning given by subsection 6(1) of the Coastal Trading (Revitalising Australian Shipping) Act 2012. [def insrt SLI 197 of 2012 s 3 and Sch 1[5], opn 21 Aug 2012]

general licensed ship means a ship: (a) in relation to which a general licence has been issued and is in force; and (b) which engages in coastal trading under the licence. [def insrt SLI 197 of 2012 s 3 and Sch 1[6], opn 21 Aug 2012]

innocent passage has the meaning it has under the United Nations Convention on the Law of the Sea done at Montego Bay on 10

December 1982. licensed ship [def rep SLI 197 of 2012 s 3 and Sch 1[7], opn 21 Aug 2012]

majority Australian-crewed ship means a ship (other than an Australian ship, an emergency licensed ship, a general licensed ship, a transitional general licensed ship or a temporary licensed ship) of which: [page 1137] (a) the majority of the crew are residents of Australia; and (b) the operator: (i) is a resident of Australia; or (ii) has its principal place of business in Australia, or (iii) is incorporated in Australia. [def insrt SLI 164 of 2009 reg 5 and Sch 2, opn 1 Jan 2010; am SLI 197 of 2012 s 3 and Sch 1[8], opn 21 Aug 2012]

permit ship [def rep SLI 197 of 2012 s 3 and Sch 1[9], opn 21 Aug 2012]

single voyage permit: (a) means a single voyage permit issued under section 286 of the Navigation Act 1912 as in force immediately before 1 July 2012; and (b) includes a single voyage permit granted in relation to an application to which paragraphs 5(a) and (b) of Schedule 2 to the Coastal Trading (Revitalising Australian Shipping) (Consequential Amendments and Transitional Provisions) Act 2012 apply. [def insrt SLI 197 of 2012 s 3 and Sch 1[10], opn 21 Aug 2012]

temporary licence has the meaning given by subsection 6(1) of the Coastal Trading (Revitalising Australian Shipping) Act 2012. [def insrt SLI 197 of 2012 s 3 and Sch 1[11], opn 21 Aug 2012]

temporary licensed ship means a ship:

(a) that is used to undertake a voyage authorised by a temporary licence; and (b) to which one of the following applies: (i) within 12 months before commencing the voyage, the ship commenced at least 2 other voyages authorised by a temporary licence; (ii) within 12 months before commencing the voyage: (A) the ship commenced at least one other voyage authorised by a temporary licence; and (B) was issued with a single voyage permit; (iii) within 12 months before commencing the voyage, the ship was issued with at least 2 single voyage permits; (iv) within 15 months before commencing the voyage, the ship was issued with a continuous voyage permit. [def insrt SLI 197 of 2012 s 3 and Sch 1[12], opn 21 Aug 2012]

transit passage has the meaning it has under the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982. transitional general licence means a licence issued under Division 1 of Part 4 of the Coastal Trading (Revitalising Australian Shipping) Act 2012 following an application made under item 10 of Schedule 2 to the Coastal Trading (Revitalising Australian Shipping) (Consequential Amendments and Transitional Provisions) Act 2012. [def insrt SLI 197 of 2012 s 3 and Sch 1[13], opn 21 Aug 2012]

[page 1138] transitional general licensed ship means a ship: (a) in relation to which a transitional general licence has been issued and is in force; and (b) which engages in coastal trading under the licence. [def insrt SLI 197 of 2012 s 3 and Sch 1[14], opn 21 Aug 2012]

[10-463] Meanings of Australian employer and Australian-based employee 1.15C For paragraph 35(1)(g) of the Act, the employer of a person who is a member of the crew performing duties on a majority Australian-crewed ship is prescribed as an Australian employer. [reg 1.15C insrt SLI 164 of 2009 reg 5 and Sch 2, opn 1 Jan 2010]

[10-465] Modification of application of Act — ships engaged in innocent passage 1.15D For section 32 of the Act, the Act does not apply in relation to all the waters of the sea on the landward side of the outer limits of the territorial sea of Australia, including such waters within the limits of a State or Territory to the extent to which its application would be inconsistent with a right of innocent passage or transit passage being exercised by a ship other than: (a) an emergency licensed ship; or (b) a general licensed ship; or (c) a temporary licensed ship; or (d) a transitional general licensed ship; or (e) a majority Australian-crewed ship. [reg 1.15D insrt SLI 364 of 2009 reg 4 and Sch 2, opn 1 Jan 2010; am SLI 197 of 2012 s 3 and Sch 1[15], opn 21 Aug 2012]

[10-467] Extension of Act to the exclusive economic zone and the continental shelf — ships 1.15E (1) For subsection 33(3) of the Act, the Act is extended to and in relation to each of the following ships in the exclusive economic zone or the waters above the continental shelf: (a) an emergency licensed ship; (b) a general licensed ship; (c) a temporary licensed ship;

(d) a transitional general licensed ship. [subreg (1) subst SLI 197 of 2012 s 3 and Sch 1[16], opn 21 Aug 2012]

(2) [subreg (2) rep SLI 197 of 2012 s 3 and Sch 1[16], opn 21 Aug 2012] (3) [subreg (3) rep SLI 197 of 2012 s 3 and Sch 1[16], opn 21 Aug 2012] (4) [subreg (4) rep SLI 197 of 2012 s 3 and Sch 1[16], opn 21 Aug 2012] (2) For subsection 33(3) of the Act, the Act is extended to and in relation to a majority Australian-crewed ship in the exclusive economic zone or the waters above the continental shelf. [subreg (5) renum as subreg (2) SLI 197 of 2012 s 3 and Sch 1[17], opn 21 Aug 2012]

[page 1139] Note: The extension of this Act to emergency licensed ships, general licensed ships, temporary licensed ships, transitional general licensed ships and majority Australian-crewed ships in the exclusive economic zone and the waters above the continental shelf (including provisions relating to compliance and enforcement, administration and right of entry by reason of the extension of the rest of the Act, so far as it relates to the specified provisions) is subject to: (a) Australia’s international obligations relating to foreign ships; and (b) the concurrent jurisdiction of a foreign State. [reg 1.15E insrt SLI 364 of 2009 reg 4 and Sch 2, opn 1 Jan 2010; am SLI 197 of 2012 s 3 and Sch 1[18], opn 21 Aug 2012]

[10-470] Extension of Act beyond the exclusive economic zone and the continental shelf 1.15F (1) For subsection 34(3) of the Act, the Act is extended to: (a) an Australian employer; and (b) an Australian-based employee; in relation to the Australian Antarctic Territory. (2) For subsection 34(3) of the Act, the provisions of the Act mentioned in the following table, and the rest of the Act so far as it relates to those provisions, are extended to: (a) an Australian employer in relation to the employer’s Australianbased employees; and

an Australian-based employee in relation to the employee’s (b) employer if the same enterprise agreement applies to both of them; in relation to all of the area outside the outer limits of the exclusive economic zone and the continental shelf. Item

Provision of the Act

1

Part 2-1 — core provisions for Chapter 2

2

Part 2-2 — the National Employment Standards

3

Part 2-3 — modern awards

4

Part 2-6 — minimum wages

5

Part 2-7 — equal remuneration

6

Part 2-8 — transfer of business

7

Part 2-9 — other terms and conditions of employment

(3) For subsection 34(3) of the Act, the provisions of the Act mentioned in the following table, and the rest of the Act so far as it relates to those provisions, are extended to: (a) an Australian employer in relation to the employer’s Australianbased employees; and (b) an Australian-based employee in relation to the employee’s employer; in relation to all of the area outside the outer limits of the exclusive economic zone and the continental shelf. Item

Provision of the Act

1

Part 2-1 — core provisions for Chapter 2

2

Part 2-4 — enterprise agreements

[page 1140]

Item

Provision of the Act

3

Part 2-5 — workplace determinations

4

Part 3-3 — industrial action

(4) For subsection 34(3) of the Act, Part 3-1 of the Act, and the rest of the Act so far as it relates to that Part, are extended to: (a) an Australian employer; and (b) an Australian-based employee; in relation to all of the area outside the outer limits of the exclusive economic zone and the continental shelf. Note: Part 3-1 of the Act relates to general protections.

(5) For subsection 34(3) of the Act, Part 3-2 of the Act, and the rest of the Act so far as it relates to that Part, are extended to an Australian-based employee in relation to the employee’s Australian employer in relation to all of the area outside the outer limits of the exclusive economic zone and the continental shelf. Note: Part 3-2 of the Act relates to unfair dismissal.

(6) For subsection 34(3) of the Act, Part 3-5 of the Act, and the rest of the Act so far as it relates to that Part, are extended to an Australian employer in relation to the employer’s Australian-based employees in relation to all of the area outside the outer limits of the exclusive economic zone and the continental shelf. Note 1: Part 3-5 of the Act relates to stand down. Note 2: Provisions of the Act that are specified as extending beyond the exclusive economic zone and the continental shelf (including provisions relating to compliance and enforcement, administration and right of entry by reason of the extension of the rest of the Act, so far as it relates to the specified provisions) are subject to: (a) Australia’s international obligations relating to foreign ships; and (b) the concurrent jurisdiction of a foreign State.

[10-475] Amendments made by Fair Work Amendment Regulation 2012 (No 2) 1.15G The amendments of regulations 1.15B, 1.15D and 1.15E made by Schedule 1 to the Fair Work Amendment Regulation 2012 (No 2) do not

apply in relation to: (a) licensed ship within the meaning of regulation immediately before the commencement of Amendment Regulation 2012 (No 2); or (b) a permit ship within the meaning of regulation immediately before the commencement of Amendment Regulation 2012 (No 2).

1.15B as in force the Fair Work 1.15B as in force the Fair Work

[reg 1.15G insrt SLI 197 of 2012 s 3 and Sch 1[19], opn 21 Aug 2012]

DIVISION 4 — MISCELLANEOUS

[10-495] Interaction between fair work instruments and public sector employment laws 1.16 For paragraph 40(2)(b) of the Act, a fair work instrument or a term of a fair work instrument (other than an FWC order or a term of an FWC order) is prescribed for the purposes of the following laws: [page 1141] (a) an ordinance made under the Seat of Government (Administration) Act 1910 that: (i) deals with public sector employment; and (ii) was, immediately before the repeal of the Workplace Relations Act 1996, inconsistent with that Act or an agreement, award order or determination made under that Act; (b) an enactment, within the meaning of the Australian Capital Territory (Self-Government) Act 1988, that: (i) deals with public sector employment; and (ii) was, immediately before the repeal of the Workplace Relations Act 1996, inconsistent with that Act or an agreement, award order or determination made under that Act; (c) a determination mentioned in paragraph 53(6)(b) of the Northern

Territory (Self-Government) Act 1978 that was, immediately before the repeal of the Workplace Relations Act 1996, inconsistent with an award or workplace agreement (within the meaning of the Workplace Relations Act 1996). Note: Under subsection 40(2) of the Act, fair work instruments, or terms of fair work instruments, that deal with public sector employment prevail over the public sector employment laws as described in that subsection. [reg 1.16 subst SLI 23 of 2011 r 3 and Sch 1, opn 12 Mar 2011; am SLI 321 of 2012 s 3 and Sch 1[25], opn 1 Jan 2013]

[page 1143]

CHAPTER 2 — TERMS AND CONDITIONS OF EMPLOYMENT PART 2-2 — THE NATIONAL EMPLOYMENT STANDARDS DIVISION 12 — FAIR WORK INFORMATION STATEMENTS COMMENTARY TO DIVISION 12

Outline of Division ….

[10-649]

[10-649] Outline of Division The regulations for this Division deal with the practical matters required of the Fair Work Ombudsman in the fulfilment of his/her role of providing a source of information to the public about the effect of the FW Act and minimum terms and conditions of employment, and the steps that must be taken by employers to ensure that such information is provided to employees.

____________________

[10-650] Fair Work Ombudsman to prepare and publish Fair Work Information Statement — content 2.01 (1) For subsection 124(4) of the Act, a Fair Work Information Statement must contain an explanation of the effect on an employee’s entitlements under the National Employment Standards if: (a) the transfer of a business occurs as described in section 311 of the Act; and (b) the employee becomes a transferring employee. Note: Section 311 of the Act identifies the participants in the transfer of the business as including a “transferring employee”.

(2) For subsection 124(4) of the Act, a Fair Work Information Statement must set out the circumstances, described in subsections 65(1A) and (1B) of

the Act, in which an employee may request a change in working arrangements. [subs (2) insrt SLI 139 of 2013 s 4 and Sch 1 item 2, opn 1 July 2013] [s 2.01 am SLI 139 of 2013 s 4 and Sch 1 item 1, opn 1 July 2013]

[10-655] Fair Work Ombudsman to prepare and publish Fair Work Information Statement — manner of giving Statement to employees 2.02 (1) For subsection 124(4) of the Act, each of the following is a manner in which an employer may give the Fair Work Information Statement to an employee. (2) The employer may give the Statement to the employee personally. (3) The employer may send the Statement by pre-paid post to: (a) the employee’s residential address; or (b) a postal address nominated by the employee. (4) The employer may send the Statement to: (a) the employee’s email address at work; or (b) another email address nominated by the employee. (5) The employer may send to the employee’s email address at work (or to another email address nominated by the employee): (a) an electronic link to the page of the Fair Work Ombudsman’s website on which the Statement is located; or [page 1144] (b) an electronic link that takes the employee directly to a copy of the Statement on the employer’s intranet. (6) The employer may fax the Statement to: (a) the employee’s fax number at work; or (b) the employee’s fax number at home; or (c) another fax number nominated by the employee.

(7) Subregulations (2) to (6) do not prevent the employer from using another manner of giving the Statement to the employee.

DIVISION 13 — MISCELLANEOUS COMMENTARY TO DIVISION 13

Outline of Division ….

[10-679]

[10-679] Outline of Division This regulation specifies the matters about which employees who are not covered by a modern award or enterprise agreement may agree with their employer that would otherwise be contrary to Pt 2-1 of the FW Act. Such matters are currently limited to annual leave and carers leave.

____________________

[10-680] What can be agreed to etc. in relation to award/agreement free employees 2.03 For paragraph 129(a) of the Act, employers and award/agreement free employees may agree to the provision of either or both of: (a) extra annual leave in exchange for foregoing an equivalent amount of pay; and (b) extra personal/carer’s leave in exchange for foregoing an equivalent amount of pay.

PART 2-4 — ENTERPRISE AGREEMENTS DIVISION 3 — BARGAINING AND REPRESENTATION DURING BARGAINING

[10-785] Notice of employee representational rights — how notice is given 2.04 (1) For subsection 173(5) of the Act, each of the following is a manner in which the employer for a proposed enterprise agreement may give employees who will be covered by the agreement notice of the right to be represented by a bargaining representative for the agreement.

(2) The employer may give the notice to the employee personally. (3) The employer may send the notice by pre-paid post to: (a) the employee’s residential address; or (b) a postal address nominated by the employee. (4) The employer may send the notice to: (a) the employee’s email address at work; or (b) another email address nominated by the employee. (5) The employer may send to the employee’s email address at work (or to another email address nominated by the employee) an electronic link that takes the employee directly to a copy of the notice on the employer’s intranet. [page 1145] (6) The employer may fax the notice to: (a) the employee’s fax number at work; or (b) the employee’s fax number at home; or (c) another fax number nominated by the employee. (7) The employer may display the notice in a conspicuous location at the workplace that is known by and readily accessible to the employee. (8) Subregulations (2) to (7) do not prevent the employer from using another manner of giving the notice to the employee. COMMENTARY TO REGULATION 2.04

Outline of regulation ….

[10-785.10]

[10-785.10] Outline of regulation This regulation covers most forms of notifying an employee of the terms of a document about the employee’s representational rights, but not all. Importantly, reg 2.04(8) allows other forms of notice to employees. This would conceivably include social media forums or other forms of electronic communication which continue to evolve with the advancement of technology.

____________________

[10-790]

Notice of employee representational

rights — prescribed form 2.05 For subsection 174(6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed.

[10-795] Appointment of bargaining representatives — independence 2.06 A bargaining representative of an employee must be: (a) free from control by the employee’s employer or another bargaining representative; and (b) free from improper influence from the employee’s employer or another bargaining representative. COMMENTARY TO REGULATION 2.06

Outline of regulation ….

[10-795.10]

[10-795.10] Outline of regulation This regulation is made pursuant to s 178(3) of the FW Act.

____________________

DIVISION 4 — APPROVAL OF ENTERPRISE AGREEMENTS

[10-800] Bargaining representative must apply for FWC approval of an enterprise agreement — requirements for signing agreement 2.06A (1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement. (2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if: (a) it is signed by: (i) the employer covered by the agreement; and (ii) at least 1 representative of the employees covered by the agreement; and

[page 1146] (b) it includes: (i) the full name and address of each person who signs the agreement; and (ii) an explanation of the person’s authority to sign the agreement. Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.

(3) Unless the representative of the employees covered by the agreement is an employee in a class of employees who will be bound by the agreement, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement. [reg 2.06A insrt SLI 300 of 2009 r 3 and Sch 1,; am SLI 321 of 2012 s 3 and Sch 1[25], opn 1 Jan 2013] COMMENTARY TO REGULATION 2.06A

Outline of regulation ….

[10-800.10]

[10-800.10] Outline of regulation This regulation requires that there is a single document that is signed on behalf of the employer and the employees that the enterprise agreement covers, and does not permit the submission to the Fair Work Commission of an exchanged copy signed by only one party to it. It also requires that the signatories be properly identified.

____________________

[10-820] FWC may approve an enterprise agreement with undertakings — requirements for signing undertaking 2.07 For subsection 190(5) of the Act, an undertaking relating to a an enterprise agreement must be signed by each employer who gives the undertaking. [reg 2.07 am SLI 321 of 2012 s 3 and Sch 1[25], opn 1 Jan 2013]

[10-825] Model flexibility term for enterprise agreement 2.08 For subsection 202(5) of the Act, the model flexibility term for

enterprise agreements is set out in Schedule 2.2.

[10-830] Model consultation term for enterprise agreement 2.09 For subsection 205(3) of the Act, the model consultation term is set out in Schedule 2.3.

[10-833] Requirements for signing variation of enterprise agreement 2.09A (1) For subsection 210(4) of the Act, this regulation prescribes the requirements for the signing of a variation to an enterprise agreement. (2) For paragraph 210(2)(a) of the Act, a copy of a variation to an enterprise agreement is a signed copy only if: (a) it is signed by: (i) the employer covered by the agreement as varied; and (ii) at least 1 representative of the employees covered by the agreement as varied; and (b) it includes: (i) the full name and address of each person who signs the variation; and [page 1147] (ii) an explanation of the person’s authority to sign the variation. Note: Paragraph 210(2)(a) of the Act requires an application for approval of a variation to an enterprise agreement to be accompanied by a signed copy of the variation.

(3) Unless the representative of the employees covered by the agreement as varied is an employee in a class of employees who will be bound by the agreement as varied, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement as varied. [reg 2.09A insrt SLI 300 of 2009 r 3 and Sch 1, opn 14 Nov 2009]

COMMENTARY TO REGULATION 2.09A

Outline of regulation ….

[10-833.10]

[10-833.10] Outline of regulation As for reg 2.06, this regulation requires that there is a single document for the variation to the enterprise agreement that is signed on behalf of the employer and the employees that the enterprise agreement covers, and does not permit the submission to the Fair Work Commission of an exchanged copy signed by only one party to it. It also requires that the signatories be properly identified.

____________________

[10-835] FWC may approve variation of enterprise agreement with undertaking — requirements for signing undertaking for variation 2.10 For subsection 212(4) of the Act, an undertaking relating to the variation of an enterprise agreement must be signed by each employer who gives the undertaking. [reg 2.10 am SLI 321 of 2012 s 3 and Sch 1[25], opn 1 Jan 2013]

DIVISION 8 — FWC’S GENERAL ROLE IN FACILITATING BARGAINING [Div 8 heading am SLI 321 of 2012 s 3 and Sch 1[26], opn 1 Jan 2013]

[10-860] What a bargaining order must specify — bargaining order for reinstatement of employee 2.11 (1) For paragraph 231(3)(b) of the Act, this regulation provides for the FWC to take action and make orders in connection with, and to deal with matters relating to, a bargaining order for reinstatement of an employee under paragraph 231(2)(d) of the Act. [subreg (1) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(2) The FWC may make any of the following orders: (a) an order to reappoint the employee to the position in which he or she was employed immediately before the termination of his or her employment; (b) an order to appoint the employee to another position for which the

terms and conditions of employment are no less favourable than those under which he or she was employed immediately before the termination of his or her employment; (c) any order that the FWC thinks appropriate to maintain continuity of the employee’s employment; (d) an order that the employer who terminated the employment of the employee pay the employee an amount for remuneration lost, or likely to have been lost, because of the termination. [subreg (2) subst SLI 321 of 2012 s 3 and Sch 1[17], opn 1 Jan 2013]

[page 1148] COMMENTARY TO REGULATION 2.11

Outline of regulation ….

[10-860.10]

[10-860.10] Outline of regulation This regulation deals with a situation in which the Fair Work Commission has found that an employee has been dismissed in breach of the good faith bargaining requirements.

____________________

PART 2-9 — OTHER TERMS AND CONDITIONS OF EMPLOYMENT DIVISION 2 — PAYMENT OF WAGES

[10-965] Certain terms have no effect — reasonable deductions 2.12 (1) For subsection 326(2) of the Act, a circumstance in which a deduction mentioned in subsection 326 (1) of the Act is reasonable is that: (a) the deduction is made in respect of the provision of goods or services: (i) by an employer, or a party related to the employer; and (ii) to an employee; and

(b) the goods or services are provided in the ordinary course of the business of the employer or related party; and (c) the goods or services are provided to members of the general public on: (i) the same terms and conditions as those on which the goods or services were provided to the employee; or (ii) on terms and conditions that are not more favourable to the members of the general public. Example 1: A deduction of health insurance fees made by an employer that is a health fund. Example 2: A deduction for a loan repayment made by an employer that is a financial institution.

(2) For subsection 326(2) of the Act, a circumstance in which a deduction mentioned in subsection 326(1) of the Act is reasonable is that the deduction is for the purpose of recovering costs directly incurred by the employer as a result of the voluntary private use of particular property of the employer by an employee (whether authorised or not). Examples of costs 1 The cost of items purchased on a corporate credit card for personal use by the employee. 2 The cost of personal calls on a company mobile phone. 3 The cost of petrol purchased for the private use of a company vehicle by the employee.

DIVISION 3 — GUARANTEE OF ANNUAL EARNINGS

[10-990]

High Income threshold

2.13 (1) For subsection 333(1) of the Act, this regulation sets out the manner in which the high income threshold is to be worked out. (2) The high income threshold for the period starting on 1 July 2009 and ending at the end of 30 June 2010 is worked out using the following steps. [page 1149] First indexation

Step 1

Step 2

Step 3

Identify the assessment of current average weekly ordinary time earnings published by the Australian Statistician for February 2008 and in effect on 1 July 2008. Note: This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full-time adult employees of all employees in Australia for that day. Divide it by the assessment of current average weekly ordinary time earnings published by the Australian Statistician for May 2007 and in effect on 27 August 2007. Note: This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full-time adult employees of all employees in Australia for that day. Round the result to 3 decimal places. If the fourth decimal place is 5 or above, round it up. If the rounded result is less than 1, the rounded result becomes 1. Multiply $100,000 by the rounded result. If the result is not a multiple of $100, round the result to the nearest multiple of $100. If the result is a multiple of $50, round it up to the next multiple of $100. This result will be indexed again in step 6.

Second indexation Step 4 Identify the assessment of current average weekly ordinary time earnings published by the Australian Statistician for February 2009 and in effect on 1 July 2009. Note: This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full-time adult employees of all employees in Australia for that day. Step 5 Divide it by the assessment of current average weekly ordinary time earnings published by the Australian Statistician for February 2008 and in effect on 1 July 2008. Note: This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full-time adult employees of all employees in Australia for that day. Step 6 Round the result to 3 decimal places. If the fourth decimal

place is 5 or above, round it up. If the rounded result is less than 1, the rounded result becomes 1. Multiply the amount worked out in step 3 by the rounded result. If the result is not a multiple of $100, round the result to the nearest multiple of $100. If the result is a multiple of $50, round it up to the next multiple of $100. The result is the high income threshold for the period starting on 1 July 2009 and ending at the end of 30 June 2010. (3) The high income threshold for the year starting on 1 July 2010, or a later year starting on 1 July, is the threshold for the previous year, indexed using the following steps. [page 1150] Step 1

Step 2

Step 3

Identify the assessment of current average weekly ordinary time earnings published by the Australian Statistician and in effect on 1 July in the current year. Note: This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full-time adult employees of all employees in Australia for that day. Divide it by the assessment of current average weekly ordinary time earnings published by the Australian Statistician and in effect on 1 July of the previous year. Note: This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full-time adult employees of all employees in Australia for that day. Round the result to 3 decimal places. If the fourth decimal place is 5 or above, round it up. If the rounded result is less than 1, the rounded result becomes 1. Multiply the high income threshold for the previous year by the rounded result.

If the result is not a multiple of $100, round the result to the nearest multiple of $100. If the result is a multiple of $50, round it up to the next multiple of $100. The result is the high income threshold for the year starting on 1 July. [page 1151]

CHAPTER 3 — RIGHTS AND RESPONSIBILITIES OF EMPLOYEES, EMPLOYERS, ORGANISATIONS ETC. PART 3-1 — GENERAL PROTECTIONS DIVISION 5 — OTHER PROTECTIONS

[10-1145]

Temporary absence — illness or injury

3.01 (1) For section 352 of the Act, this regulation prescribes kinds of illness or injury. Note: Under section 352 of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

(2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within: (a) 24 hours after the commencement of the absence; or (b) such longer period as is reasonable in the circumstances. Note: The Act defines medical certificate in section 12.

(3) A prescribed kind of illness or injury exists if the employee: (a) is required by the terms of a workplace instrument: (i) to notify the employer of an absence from work; and (ii) to substantiate the reason for the absence; and

(b) complies with those terms. (4) A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3)(a) of the Act, for taking paid personal/carer’s leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act. Note: Paragraph 97(a) of the Act provides that an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee.

(5) An illness or injury is not a prescribed kind of illness or injury if: (a) either: (i) the employee’s absence extends for more than 3 months; or (ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and (b) the employee is not on paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence. [subreg (5) am SLI 300 of 2009 r 3 and Sch 1, opn 14 Nov 2009]

(6) In this regulation, a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation. [page 1152]

DIVISION 8 — COMPLIANCE COMMENTARY TO DIVISION 8

Outline of Division ….

[10-1169]

[10-1169] Outline of Division The regulations for this Division comprise the mechanical provisions by which the fees for applications to the Fair Work Commission for dealing with disputes are set and indexed from year to year, and costs orders are to be calculated.

____________________

Subdivision A — Contraventions involving dismissal

[10-1170]

Application fees

3.02 (1) For subsection 367(2) of the Act, this regulation sets out matters relating to a fee for making an application to the FWC under section 365 of the Act. [subreg (1) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(2) Fee at commencement of Regulations If the application is made in the financial year starting on 1 July 2009, the fee is $59.50. (3) Method for indexing the fee If the application is made in a financial year starting on 1 July 2010, or 1 July in a later year (the application year), the amount of the fee is to be worked out as follows: (a) identify the amount of the fee for an application made in the previous financial year; (b) multiply it by the indexation factor for the application year (see subregulation (4)); (c) round the result to the nearest multiple of 10 cents, rounding up if the result ends in 5 cents. (4) The indexation factor for the application year is worked out using the following formula, and then rounded under subregulation (5):

where: index number, for a quarter, means the All Groups Consumer Price Index Number (being the weighted average of the 8 capital cities) published by the Australian Statistician for that quarter. most recent March year means the period of 12 months ending on 31 March in the financial year that occurred immediately before the application year. previous March year means the period of 12 months immediately preceding the most recent March year. quarter means a period of 3 months ending on 31 March, 30 June, 30

September or 31 December. (5) The result under subregulation (4) must be rounded up or down to 3 decimal places, rounding up if the result ends in 0.0005. (6) A calculation under subregulation (4): (a) is to be made using the index numbers published in terms of the most recently published reference base for the Consumer Price Index; and (b) is to be made disregarding index numbers that are published in substitution for previously published index numbers (unless the substituted numbers are published to take account of changes in the reference base). [page 1153] (7) No fee — hardship If the FWC is satisfied that the person making an application will suffer serious hardship if the person is required to pay the fee, no fee is payable for making the application. [subreg (7) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(8) Refund of fee — discontinuing application The FWC must repay to the person an amount equal to the fee if: (a) the fee has been paid; and (b) the application is subsequently discontinued as mentioned in section 588 of the Act; and (c) either: (i) at the time the application is discontinued, the application has not yet been listed for conducting a conference; or (ii) if the application has, at or before that time, been listed for conducting a conference on a specified date or dates — the discontinuance occurs at least 2 days before that date or the earlier of those dates. [subreg (8) am SLI 321 of 2012 s 3 and Sch 1[28], opn 1 Jan 2013]

Subdivision B — Other contraventions

[10-1190]

Application fees

3.03 (1) For subsection 373(2) of the Act, this regulation sets out matters relating to a fee for making an application to the FWC under section 372 of the Act. [subreg (1) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(2) Fee at commencement of Regulations If the application is made in the financial year starting on 1 July 2009, the fee is $59.50. (3) Method for indexing the fee If the application is made in a financial year starting on 1 July 2010, or 1 July in a later year (the application year), the amount of the fee is to be worked out as follows: (a) identify the amount of the fee for an application made in the previous financial year; (b) multiply it by the indexation factor for the application year (see subregulation (4)); (c) round the result to the nearest multiple of 10 cents, rounding up if the result ends in 5 cents. (4) The indexation factor for the application year is worked out using the following formula, and then rounded under subregulation (5):

where: index number, for a quarter, means the All Groups Consumer Price Index Number (being the weighted average of the 8 capital cities) published by the Australian Statistician for that quarter. most recent March year means the period of 12 months ending on 31 March in the financial year that occurred immediately before the application year. previous March year means the period of 12 months immediately preceding the most recent March year. [page 1154]

quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December. (5) The result under subregulation (4) must be rounded up or down to 3 decimal places, rounding up if the result ends in 0.0005. (6) A calculation under subregulation (4): (a) is to be made using the index numbers published in terms of the most recently published reference base for the Consumer Price Index; and (b) is to be made disregarding index numbers that are published in substitution for previously published index numbers (unless the substituted numbers are published to take account of changes in the reference base). (7) No fee — hardship If the FWC is satisfied that the person making an application will suffer serious hardship if the person is required to pay the fee, no fee is payable for making the application. [subreg (7) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(8) Refund of fee — discontinuing application The FWC must repay to the person an amount equal to the fee if: (a) the fee has been paid; and (b) the application is subsequently discontinued as mentioned in section 588 of the Act; and (c) either: (i) at the time the application is discontinued, the application has not yet been listed for conducting a conference; or (ii) if the application has, at or before that time, been listed for conducting a conference on a specified date or dates — the discontinuance occurs at least 2 days before that date or the earlier of those dates. [subreg (8) am SLI 321 of 2012 s 3 and Sch 1[28], opn 1 Jan 2013]

Subdivision C — Conference costs

[10-1210]

Schedule of costs

3.04 (1) For section 376 of the Act, the schedule of costs set out in Schedule 3.1 is prescribed. (2) In awarding costs: (a) the FWC is not limited to the items of expenditure mentioned in Schedule 3.1; but (b) if an item of expenditure is mentioned in Schedule 3.1, the FWC must not award costs for that item at a rate or of an amount in excess of the rate or amount mentioned in Schedule 3.1 for that item. Note: An application for an order for costs must be made in accordance with the procedural rules. [subreg (2) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(3) A bill of costs must identify, by an item number, each cost and disbursement claimed. (4) In Schedule 3.1: folio means 72 words. Note: There are generally 3 folios to a page.

[page 1155]

PART 3-2 — UNFAIR DISMISSAL DIVISION 2 — PROTECTION FROM UNFAIR DISMISSAL

[10-1315] When a person is protected from unfair dismissal — high income threshold 3.05 (1) For subparagraph 382(b)(iii) of the Act, this regulation explains how to work out amounts for the purpose of assessing whether the high

income threshold applies in relation to the dismissal of a person at a particular time. Note: Under section 382 of the Act, a person is protected from unfair dismissal if specified circumstances apply. One of the circumstances is that the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

(2) Piece rates Subregulations (3), (4) and (5) apply if part or all of the person’s income at the time of the dismissal is paid as piece rates that are: (a) set by reference to a quantifiable output or task; and (b) not paid as a rate set by reference to a period of time worked. (3) If the person was continuously employed by the employer and was not on leave without full pay at any time during the period of 12 months immediately before the dismissal, the total amount of piece rates paid or payable to the person in respect of the period of 12 months ending immediately before the dismissal is an amount for subparagraph 382(b)(iii) of the Act. (4) If the person was continuously employed by the employer and was on leave without full pay at any time during the period of 12 months immediately before the dismissal, the total of: (a) for the days during that period that the employee was not on leave without full pay — the actual piece rates received by the employee; and (b) for the days that the employee was on leave without full pay — an amount worked out using the formula:

is an amount for subparagraph 382(b)(iii) of the Act. (5) If the person was continuously employed by the employer for a period of less than 12 months immediately before the dismissal, the total amount of piece rates worked out using the formula:

is an amount for subparagraph 382(b)(iii) of the Act.

(6) Benefits other than payment of money If: (a) the person is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person’s employer; and (b) the benefit is not an entitlement to a payment of money and is not a non-monetary benefit within the meaning of subsection 332(3) of the Act; and (c) the FWC is satisfied, having regard to the circumstances, that: (i) it should consider the benefit for the purpose of assessing whether the high income threshold applies to a person at the time of the dismissal; and [page 1156] (ii) a reasonable money value of the benefit has not been agreed by the person and the employer; and (iii) the FWC can estimate a real or notional money value of the benefit; the real or notional money value of the benefit estimated by the FWC is an amount for subparagraph 382(b)(iii) of the Act. [subreg (6) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013] COMMENTARY TO REGULATION 3.05

Outline of regulation …. Benefits other than payment of money …. Use of a vehicle ….

[10-1315.10] [10-1315.15] [10-1315.20]

[10-1315.10] Outline of regulation This regulation deals with the calculation of an employee’s income for the purpose of determining whether or not the employee is entitled to pursue an unfair dismissal claim in the Fair Work Commission pursuant to s 382(b)(iii) of the FW Act in circumstances where piece rates are paid or substantial non-monetary benefits are provided to an employee. In the latter case, there is no restriction as to the nature of the benefits that the Fair Work Commission may take into account, and even where precise financial calculation is impossible, a notional amount may be calculated or even estimated by the Fair Work Commission. [10-1315.15] Benefits other than payment of money The respondent bears the evidentiary onus to support its motion that the applicant was not protected from unfair dismissal. The wording of reg

5.05(6)(c) indicates that FWA has a degree of discretion in deciding whether it should consider a benefit for the purposes of assessing whether the high income threshold applies to a person at the time of dismissal. Once it has been determined that a benefit meets the criteria contained in reg 305(6)(a) and (b), FWA must consider whether it is satisfied that each of reg 305(6)(c)(i), (ii) and (iii) apply: Mrs Lynn Chang v Ntscorp Ltd [2010] FWA 1952; BC201070766 at [5] (9 March 2010). [10-1315.20] Use of a vehicle There is a line of authorities that have established that private use of a motor vehicle is to be taken into account in establishing an employee’s remuneration. Although the provisions for determining an employee’s earnings are different in the current Act, there is nothing in the provisions which would point to the non-inclusion of the benefit of private use of a motor vehicle in the assessment with the high income threshold: Mr Brian Tuohy v Polyfoam (Australia) Pty Ltd [2010] FWA 9112; BC201071178 at [65] (1 December 2010). In dealing with the question of the motor vehicle, Commissioner Deegan adopted the principles enunciated by Senior Deputy President Watson in Condon v G James Extrusion Company (1997) 74 IR 283[1], namely that: 1. The private benefit derived by an employee through the provision to such an employee of a fully maintained motor vehicle will constitute remuneration for the purpose of s 170CC(3) and (4); and 2. For the purposes of determining remuneration, the focus should be upon the private benefit derived by the employee and the provision of a motor vehicle for business purposes would not form part of the remuneration. These principles appear to reflect a distinction that has been made, in our view quite properly, between the provision of a motor vehicle as part of a salary package and the provision of a motor vehicle as a piece of equipment supplied by the employer to enable the employee to perform the job. Where a motor vehicle is provided to an employee in lieu of salary that might otherwise have been paid, it is appropriate that the private benefit derived by the employee from the provision of the motor vehicle be counted as part of the employee’s remuneration. Where, however, the vehicle is provided for business purposes and the employee’s entitlement to private use is purely incidental, the provision of the motor vehicle should be treated no differently to the provision by [page 1157] the employer of any other tool or piece of equipment essential to the performance of the job: Rofin Australia Pty Ltd v Newton (1997) 78 IR 78 at 82 adopted in Stephen Brian Batley v Cocos Islands Cooperative Society Ltd [2010] FWA 2289 at [37]–[38] (29 March 2010). In our view the most appropriate method of calculating the value of the motor vehicle component of an applicant’s remuneration is as follows: 1. Determine the annual distance travelled by the vehicle in question. 2. Determine the percentage of the annual distance travelled which was for the applicant’s private purposes. 3. Multiply the figures from 1 and 2. This provides the annual distance travelled for private purposes. 4. Estimate the cost per kilometre for a vehicle of the type used. This information can be obtained from the RACV, NRMA or like motoring organisations. 5. Multiply the annual distance travelled for private purposes by the estimated cost per kilometre. The result is the value of the motor vehicle component of the applicant’s

remuneration. The ATO formula may be used in circumstances where the parties agree that it will provide a reliable estimate: H W Fewings v Kunbarllanjnja Community Government Council — 519/98 S Print Q0675 [1998] AIRC 268, VP Ross, SDP Watson, Cmr Bacon, (2 March 1998).

____________________

DIVISION 4 — REMEDIES FOR UNFAIR DISMISSAL

[10-1340] Remedy — compensation (amount taken to have been received by the employee) 3.06 For paragraph 392(6)(b) of the Act: (a) an employee who was on leave without pay for any part of a period is taken to have received the remuneration that the employee would ordinarily have received during the period of leave if the employee had not been on leave without pay; and (b) an employee who was on leave without full pay for any part of a period is taken to have received the remuneration that the employee would ordinarily have received during the period of leave if the employee had not been on leave without full pay.

DIVISION 5 — PROCEDURAL MATTERS COMMENTARY TO DIVISION 5

Outline of Division ….

[10-1364]

[10-1364] Outline of Division The regulations for this Division comprise the mechanical provisions by which the fees for applications to the Fair Work Commission for dealing with unfair dismissal applications are set and indexed from year to year, and costs orders are to be calculated.

____________________

[10-1365]

Application fees

3.07 (1) For subsection 395(2) of the Act, this regulation sets out matters relating to a fee for making an application to the FWC under Division 5 of Part 3-2 of the Act. [subreg (1) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(2) Fee at commencement of Regulations If the application is made in the

financial year starting on 1 July 2009, the fee is $59.50. [page 1158] (3) Method for indexing the fee If the application is made in a financial year starting on 1 July 2010, or 1 July in a later year (the application year), the amount of the fee is to be worked out as follows: (a) identify the amount of the fee for an application made in the previous financial year; (b) multiply it by the indexation factor for the application year (see subregulation (4)); (c) round the result to the nearest multiple of 10 cents, rounding up if the result ends in 5 cents. (4) The indexation factor for the application year is worked out using the following formula, and then rounded under subregulation (5):

where: index number, for a quarter, means the All Groups Consumer Price Index Number (being the weighted average of the 8 capital cities) published by the Australian Statistician for that quarter. most recent March year means the period of 12 months ending on 31 March in the financial year that occurred immediately before the application year. previous March year means the period of 12 months immediately preceding the most recent March year. quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December. (5) The result under subregulation (4) must be rounded up or down to 3 decimal places, rounding up if the result ends in 0.0005. (6) A calculation under subregulation (4):

(a) is to be made using the index numbers published in terms of the most recently published reference base for the Consumer Price Index; and (b) is to be made disregarding index numbers that are published in substitution for previously published index numbers (unless the substituted numbers are published to take account of changes in the reference base). (7) No fee — hardship If the FWC is satisfied that the person making an application will suffer serious hardship if the person is required to pay the fee, no fee is payable for making the application. [subreg (7) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(8) The FWC must repay to the person an amount equal to the fee if: (a) the fee has been paid; and (b) the application is subsequently discontinued as mentioned in section 588 of the Act; and (c) the FWC is satisfied that the FWC did not deal with the application in a substantial way before the application was discontinued. [subreg (8) subst SLI 321 of 2012 s 3 and Sch 1[18], opn 1 Jan 2013]

[page 1159]

[10-1370]

Schedule of costs

3.08 (1) For subsection 403(1) of the Act, the schedule of costs set out in Schedule 3.1 is prescribed. Note 1: Under subsection 403(2) of the Act, in awarding costs, the FWC is not limited to the items of expenditure mentioned in Schedule 3.1. However, if an item of expenditure is mentioned in Schedule 3.1, the FWC must not award costs for that item at a rate or of an amount in excess of the rate or amount mentioned in Schedule 3.1 for that item. Note 2: An application for an order for costs must be made in accordance with the procedural rules. [subreg (1) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(2) The FWC may allow the costs of briefing more than one counsel only if the FWC certifies that the attendance is necessary. Note: It is likely that certification under subregulation (2) would occur only in relation to a very large or complex case.

[subreg (2) subst SLI 321 of 2012 s 3 and Sch 1[19], opn 1 Jan 2013]

(3) If the FWC considers it appropriate, a charge in Schedule 3.1 that is applicable to a solicitor is applicable to a person who: (a) is not a solicitor; but (b) is mentioned in section 596 of the Act. Note: section 596 of the Act sets out who may represent a party to a proceeding before the FWC. [subreg (3) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(4) A bill of costs must identify, by an item number, each cost and disbursement claimed. (5) In exercising its discretion under item 1002 of Schedule 3.1, the FWC must have regard to commercial rates for copying and binding, and is not obliged to apply the photographic or machine-made copy costs otherwise allowable in the Schedule. [subreg (5) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(6) In Schedule 3.1: folio means 72 words. Note: There are generally 3 folios to a page.

PART 3-3 — INDUSTRIAL ACTION DIVISION 2 — PROTECTED INDUSTRIAL ACTION

[10-1475] Purposes prescribed for continuity of employment when employer response action occurs 3.09 For section 416A of the Act, the following purposes are prescribed: (a) superannuation; (b) remuneration and promotion, as affected by seniority; (c) any entitlements under the National Employment Standards. Note: Section 416A of the Act deals with employer response action. Under the section, employer response action for a proposed enterprise agreement does not affect the continuity of employment of the employees who will be covered by the agreement for such purposes as are prescribed by the regulations.

[page 1160]

DIVISION 6 — SUSPENSION OR TERMINATION OF PROTECTED INDUSTRIAL ACTION BY THE FWC [Div 6 insrt SLI 95 of 2014 s 4 and Sch 1 item 1, opn 1 July 2014]

[10-1495] Persons who can apply for an order to suspend or terminate protected industrial action 3.10 For subparagraph 424(2)(b)(iii) of the Act, the following persons may apply for an order suspending or terminating protected industrial action for a proposed enterprise agreement: (a) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is not a referring State as defined in section 30B or 30L of the Act — the Minister of the State who has responsibility for workplace relations matters in the State; (b) an organisation or other person directly affected, or who would be directly affected, by the industrial action other than an employee who will be covered by the agreement.

DIVISION 8 — PROTECTED ACTION BALLOTS

[10-1525] FWC may decide on ballot agent other than the Australian Electoral Commission — requirements for protected action ballot agent 3.11 (1) For subparagraph 444(1)(b)(ii) of the Act, this regulation sets out requirements that the FWC must be satisfied have been met before a person other than the Australian Electoral Commission becomes the protected action ballot agent for a protected action ballot. Note: The person must also be a fit and proper person to conduct the ballot. [subreg (1) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(2) The person must be capable of ensuring the secrecy and security of

votes cast in the ballot. (3) The person must be capable of ensuring that the ballot will be fair and democratic. (4) The person must be capable of conducting the ballot expeditiously. (5) The person must have agreed to be a protected action ballot agent. (6) The person must be bound to comply with the Privacy Act 1988 in respect to the handling of information relating to the protected action ballot. (7) If the person is an industrial association or a body corporate, the FWC must be satisfied that: (a) each individual who will carry out the functions of the protected action ballot agent for the industrial association or body corporate is a fit and proper person to conduct the ballot; and (b) the requirements in subregulations (2) to (6) are met for the individual. [subreg (7) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013] [reg 3.11 am SLI 321 of 2012 s 3 and Sch 1[25], opn 1 Jan 2013]

[page 1161]

[10-1530]

Requirements for independent advisor

3.12 (1) For subparagraph 444(3)(c)(ii) of the Act, this regulation sets out requirements that the FWC must be satisfied have been met before a person becomes the independent advisor for a protected action ballot. Note: The person must also be sufficiently independent of each applicant for the protected action ballot order. [subreg (1) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(2) The person must be capable of giving the protected action ballot agent: (a) advice that is directed towards ensuring that the ballot will be fair and democratic; and (b) recommendations that are directed towards ensuring that the ballot will be fair and democratic. (3) The person must have agreed to be the independent advisor.

[10-1535] Notice of protected action ballot order — notifying employees 3.13 (1) For section 445 and paragraph 469(b) of the Act, this regulation sets out procedures to be followed for notifying employees in relation to the conduct of a protected action ballot. (2) Content of notice The protected action ballot agent for the ballot must, as soon as practicable after the FWC makes the protected action ballot order, take all reasonable steps to notify each employee who is eligible to be included on the roll of voters that the FWC has made the order. [subreg (2) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(3) The notice must include: (a) any matter specified by the FWC in the ballot order; and (b) the voting method or methods to be used; and (c) each location (if any) at which the ballot will be conducted; and (d) either: (i) the date or dates on which the ballot will be conducted; or (ii) the period during which the ballot will be conducted; and (e) contact details for the protected action ballot agent; and (f) contact details for the independent advisor (if any). [subreg (3) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(4) The notice must also include: (a) a statement that the employee may contact the protected action ballot agent to find out whether the employee is on the roll of voters; and (b) a statement that the employee may ask the protected action ballot agent to add or remove the employee’s name from the roll of voters; and (c) a statement that the employee may raise any concerns or complaints about the conduct of the ballot (including any alleged irregularity) with: (i) the protected action ballot agent; or

[page 1162] (ii) if the protected action ballot agent is not the Australian Electoral Commission — the FWC; or (iii) the independent advisor (if any). Note: Section 453 of the Act sets out the circumstances in which an employee is eligible to be included on the roll of voters for the protected action ballot. [subreg (4) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(5) Manner of notification The protected action ballot agent may give the notice to an employee by doing any of the following: (a) giving the notice to the employee personally; (b) sending the notice by pre-paid post to: (i) the employee’s residential address; or (ii) a postal address nominated by the employee; (c) sending the notice to: (i) the employee’s email address at work; or (ii) another email address nominated by the employee; (d) sending to the employee’s email address at work (or to another email address nominated by the employee) an electronic link that takes the employee directly to a copy of the notice on the employer’s intranet; (e) faxing the notice to: (i) the employee’s fax number at work; or (ii) the employee’s fax number at home; or (iii) another fax number nominated by the employee; (f) displaying the notice in a conspicuous location at the workplace that is known by and readily accessible to the employee. (6) Subregulation (5) does not prevent a protected action ballot agent from giving notice to an employee by another means. (7) Protected action ballot agent — access to workplace An employer must allow the protected action ballot agent access to the workplace for the purpose of notifying employees of the information about the protected action

ballot. Note: Subregulation (7) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(8) An employer must allow the protected action ballot agent access to the workplace for the purpose of preparing for, or conducting the protected action ballot. Note: Subregulation (8) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions. COMMENTARY TO REGULATION 3.13

Outline of regulation ….

[10-1535.10]

[10-1535.10] Outline of regulation It may be noted that reg 3.13(5) specifies various means by which notification of a protected action ballot may take place, but does not allow for other means. As such, other means of providing the notice in electronic form or via social media will not satisfy the notice requirements of reg 3.13.

____________________ [page 1163]

[10-1540] Protected action ballot to be conducted by Australian Electoral Commission or other specified ballot agent — directions about ballot paper 3.14 For paragraphs 449(2)(e) and 469(b) of the Act, the protected action ballot agent for a protected action ballot may provide with the ballot paper: (a) directions to be followed by an employee entitled to vote in the ballot so that the vote complies with the Act and these Regulations; and (b) other directions that the agent reasonably believes may assist in ensuring an irregularity does not occur in the conduct of the ballot; and (c) notes to assist an employee who is entitled to vote in the ballot by

informing him or her of matters relating to conduct of the ballot. COMMENTARY TO REGULATION 3.14

Outline of regulation ….

[10-1540.10]

[10-1540.10] Outline of regulation This regulation is framed in terms which, on its face, indicate the protected action ballot agent has merely a discretion to provide the directions and notes contained in subparas (a)–(c). However the regulation is consequent to ss 449(2)(e) and 469(b) of the FW Act, which provides mandatory provisions as to the manner in which a protected action ballot is to be conducted. Accordingly, as a matter of prudence, a protected action ballot agent should ensure that reg 3.14 is complied with.

____________________

[10-1545]

Compilation of roll of voters

3.15 (1) For section 452 and paragraph 469(b) of the Act, this regulation applies if: (a) an applicant for a protected action ballot order; or (b) the employer of an employee who is to be balloted; provides information under subsection 450(4) or 452(3) of the Act. Note: Subsection 450(4) of the Act allows the FWC to direct the provision of information required to assist in compiling a roll of voters. Subsection 452(3) allows the protected action ballot agent to make a similar direction. [subreg (1) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(2) The applicant or employer must include with the information a declaration in writing that the applicant or employer reasonably believes that the information is complete, up-to-date and accurate.

[10-1550]

Protected action ballot papers — form

3.16 (1) For paragraph 455(1)(a) of the Act, the form of a ballot paper for a protected action ballot that is to be conducted by attendance voting or postal voting is set out in Form 1 of Schedule 3.2. (2) For paragraphs 455(1)(b) and 469(c) of the Act, a ballot paper for a protected action ballot that is to be conducted by electronic voting must include the information and the content set out in Form 1 of Schedule 3.2. [reg 3.16 subst SLI 321 of 2012 s 3 and Sch 1[1], opn 1 Jan 2013]

[10-1553] Conduct of protected action ballot by electronic voting 3.16A (1) If a protected action ballot is conducted by electronic voting, the protected action ballot agent must ensure that: [page 1164] (a) only employees on the roll of voters are provided with access to the electronic voting system; and (b) each employee to be balloted can vote only once in the ballot; and (c) there is a record of who has voted; and (d) there is no way of identifying how any employee has voted; and (e) the sum of the votes cast for each proposition and the votes cast against each proposition is the same as the total votes cast. [reg 3.16A insrt SLI 321 of 2012 s 3 and Sch 1[1], opn 1 Jan 2013]

[10-1555] Report about conduct of protected action ballot — independent advisor 3.17 (1) For section 458 and paragraphs 469(b) and (e) of the Act, this regulation sets out requirements for the preparation of a report under subsection 458(2) or (3) of the Act by the independent advisor for a protected action ballot agent. Note: Subsection 458(2) of the Act requires a protected action ballot agent or independent advisor to prepare a report about the conduct of the ballot. Subsection 458(3) of the Act requires the agent or advisor to prepare a report at the direction of the FWC. [subreg (1) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(2) For the purpose of preparing the report, the independent advisor may: (a) be present at the conduct of any part of a protected action ballot (including the scrutiny of the roll of voters); and (b) request information held by the protected action ballot agent for the ballot; and (c) make a recommendation to the ballot agent for the purpose of

ensuring the conduct of the protected action ballot will be fair and democratic; and (d) set out in his or her report: (i) a description of any recommendation made under paragraph (c); and (ii) whether the protected action ballot agent complied with the recommendation.

Subdivision G — Miscellaneous

[10-1575] Conduct of protected action ballot — ballot papers 3.18 (1) For paragraph 469(b) of the Act, this regulation sets out procedures to be followed in relation to the conduct of a protected action ballot. (2) The protected action ballot agent for the ballot must: (a) for attendance voting or postal voting — issue to each employee who is to be balloted a ballot paper that bears: (i) the agent’s initials; or (ii) a facsimile of the agent’s initials; and (b) for electronic voting — ensure that the protected action ballot identifies the protected action ballot agent who is authorised to conduct the protected action ballot. [subreg (2) subst SLI 321 of 2012 s 3 and Sch 1[2], opn 1 Jan 2013]

(2A) For subregulation (2), a ballot paper may be issued to an employee by post, email or electronically. [subreg (2A) insrt SLI 321 of 2012 s 3 and Sch 1[2], opn 1 Jan 2013]

[page 1165] (3) If the ballot is conducted by postal voting, the agent must, as soon as practicable, post to each employee who is to be balloted a sealed envelope

that contains: (a) the ballot paper; and (b) information about: (i) the closing date of the ballot; and (ii) the time, on the closing date, by which the agent must receive the employee’s vote; and (c) an envelope in which the employee must place his or her ballot paper; and (d) a prepaid envelope addressed to the protected action ballot agent and that may be posted without cost to the employee; and (e) any other material that the protected action ballot agent considers to be relevant to the ballot. (4) The envelope mentioned in paragraph (3)(c) must: (a) set out a form of declaration that the employee has not voted before in the ballot; and (b) have a place on which the employee can sign the envelope; and (c) be able to fit into the prepaid envelope mentioned in paragraph (3) (d). (4A) Electronic voting If the ballot is conducted by electronic voting, the protected action ballot agent must, as soon as practicable, issue to each employee who is to be balloted the following: (a) instructions that allow the employee to access the relevant electronic voting program, including a unique identifier that allows the employee to access the relevant electronic voting program; (b) information about the closing date for the ballot and the time, on the closing date, by which the protected action ballot agent must receive the employee’s vote; (c) any other material that the protected action ballot agent considers to be relevant to the ballot. Examples of unique identifiers 1 A username and password. 2 A username and a personal identification number. [subreg (4A) insrt SLI 321 of 2012 s 3 and Sch 1[3], opn 1 Jan 2013]

(5) Replacement ballot paper — postal voting An employee who is to be balloted by postal voting may ask the protected action ballot agent for a replacement ballot paper because: (a) the employee did not receive the documents mentioned in subregulation 3.13(3); or (b) the employee did not receive a ballot paper in those documents; or (c) the ballot paper has been lost or destroyed; or (d) the ballot paper has been spoilt. (6) The request must: (a) be received by the protected action ballot agent on or before the closing day of the ballot; and (b) state the reason for the request; and (c) if practicable, be accompanied by evidence that verifies, or tends to verify, the reason; and (d) include a declaration by the employee that the employee has not voted at the ballot. [page 1166] (7) The protected action ballot agent must give the employee a replacement ballot paper if the agent is satisfied that: (a) the reason for the request is a reason mentioned in subregulation (5); and (b) the request is in accordance with the requirements mentioned in subregulation (6); and (c) the employee has not voted at the ballot. (7A) Replacement information — electronic voting An employee may ask the protected action ballot agent for a replacement of the information provided under subregulation (4A) if: (a) the employee did not receive information about how to access the electronic voting system; or (b) the information provided under subregulation (4A) has been lost or

destroyed; or (c) the unique identifier provided for under subregulation (4A) did not allow the employee to access the electronic voting system. [subreg (7A) insrt SLI 321 of 2012 s 3 and Sch 1[4], opn 1 Jan 2013]

(7B) A request under subregulation (7A) must: (a) be received by the protected action ballot agent on or before the closing day for the ballot; and (b) state the reason for the request; and (c) if it is available, be accompanied by evidence that verifies, or tends to verify, the reason given for the request; and (d) include a declaration by the employee that the employee has not voted in the ballot. [subreg (7B) insrt SLI 321 of 2012 s 3 and Sch 1[4], opn 1 Jan 2013]

(7C) The protected action ballot agent must give an employee replacement information if the protected action ballot agent is satisfied that: (a) the reason for the request is a reason mentioned in subregulation (7A); and (b) the request is in accordance with the requirements mentioned in subregulation (7B); and (c) the employee has not voted in the ballot. [subreg (7C) insrt SLI 321 of 2012 s 3 and Sch 1[4], opn 1 Jan 2013]

(8) Replacement ballot paper — attendance voting If: (a) an employee is to be balloted by attendance voting; and (b) the employee satisfies the protected action ballot agent, before depositing the ballot paper in the repository that serves to receive or hold ballot papers, that the employee has accidentally spoilt the paper; the protected action ballot agent must give the employee a replacement ballot paper. [subreg (8) am SLI 321 of 2012 s 3 and Sch 1[5]–[7], opn 1 Jan 2013]

(9) The protected ballot agent must also: (a) mark “spoilt” on the ballot paper and initial the marking; and (b) keep the ballot paper.

[10-1580] Conduct of protected action ballot — scrutiny of ballot 3.19 (1) For paragraph 469(b) of the Act, this regulation sets out procedures to be followed in relation to the conduct of a protected action ballot. (2) Counting votes The protected action ballot agent for the ballot must determine the result of the ballot by conducting a scrutiny in accordance with this regulation. [page 1167] (3) As soon as practicable after the close of the ballot, the protected action ballot agent must: (a) admit the valid ballot papers and reject the informal ballot papers; and (b) count the valid ballot papers; and (c) record the number of votes: (i) in favour of the question or questions; and (ii) against the question or questions; and (d) count the informal ballot papers. (4) Informal votes A vote is informal only if: (a) for an attendance vote or a postal vote — the ballot paper does not bear: (i) the initials of the protected action ballot agent; or (ii) a facsimile of the agent’s initials; or (b) the ballot paper is marked in a way that allows the employee to be identified; or (c) the ballot paper is not marked in a way that makes it clear how the employee meant to vote; or (d) a direction under regulation 3.14 that was to be followed by an employee entitled to vote in the ballot has not been complied with.

[subreg (4) am SLI 321 of 2012 s 3 and Sch 1[8], opn 1 Jan 2013]

(5) However, a vote is not informal because of paragraph (4)(a) if the protected action ballot agent is satisfied that the ballot paper is authentic. (6) If the protected action ballot agent is informed by a scrutineer that the scrutineer objects to a ballot paper being admitted as formal, or rejected as informal, the agent must: (a) decide whether the ballot paper is to be admitted as formal or rejected as informal; and (b) for an attendance vote or a postal vote — endorse the decision on the ballot paper and initial the endorsement. [subreg (6) am SLI 321 of 2012 s 3 and Sch 1[9], opn 1 Jan 2013]

(7) If the protected action ballot agent conducting the ballot is informed by a scrutineer to the effect that, in the scrutineer’s opinion, an error has been made in the conduct of the scrutiny, the authorised ballot agent must: (a) decide whether an error has been made; and, (b) if appropriate, direct what action is to be taken to correct or mitigate the error. (8) To preserve the secrecy of a postal vote or an electronic vote, the protected action ballot agent must ensure that the independent advisor or a scrutineer does not have access to any evidence that may allow the ballot paper to be identified as having been completed by a particular employee. [subreg (8) am SLI 321 of 2012 s 3 and Sch 1[10], opn 1 Jan 2013]

(9) Control of scrutiny process If a person: (a) is not entitled to be present, or to remain present, at a scrutiny; or (b) interrupts the scrutiny of a ballot, except to perform a function mentioned in subregulation (3); the protected action ballot agent conducting the ballot may direct the person to leave the place where the scrutiny is being conducted. [page 1168] (10) A person to whom a direction is given under subregulation (9) must comply with the direction.

Note: Subregulation (10) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

[10-1585] Conduct of protected action ballot — scrutineers 3.20 (1) For paragraph 469(d) of the Act, this regulation sets out matters relating to the qualifications, appointment, powers and duties of scrutineers for a protected action ballot. (2) Appointment The employer may appoint 1 or more scrutineers to perform the functions set out in this regulation. (3) The applicant for a protected action ballot may appoint 1 or more scrutineers to perform the functions set out in this regulation. (4) An appointment under subregulation (2) or (3) must be made by an instrument signed on behalf of the employer or applicant. (5) A person who does not have a current appointment under subregulation (2) or (3): (a) is not a scrutineer; and (b) is not permitted to attend the scrutiny of ballot material as a scrutineer; and (c) is not permitted to perform the functions set out in this regulation. (6) Functions A scrutineer may be present at the scrutiny of ballot material as follows: (a) if the ballot is conducted by postal voting or by electronic voting, the scrutineer may be present after the protected action ballot agent has acted under subregulation 3.19(8) to remove evidence of an employee’s identity; (b) if the ballot is not conducted by postal voting or by electronic voting, the scrutineer may be present when the protected action ballot agent is ready to conduct the scrutiny of the ballot material. [subreg (6) am SLI 321 of 2012 s 3 and Sch 1[11], [12], opn 1 Jan 2013]

(7) However: (a) the total number of scrutineers in attendance at a particular time at

the scrutiny of the ballot material must not exceed the total number of people who are: (i) performing functions and duties as, or on behalf of, the protected action ballot agent; and (ii) engaged on the scrutiny of the ballot material at that time; and (b) if a person fails to produce the person’s instrument of appointment as a scrutineer for inspection by the protected action ballot agent for the ballot, when requested by the agent to do so, the agent may refuse to allow the person to attend or act as a scrutineer. (8) At the scrutiny of the ballot material: (a) if the scrutineer objects to a decision that a vote is formal or informal, the scrutineer may inform the protected action ballot agent of the objection; and (b) if the scrutineer considers that an error has been made in the conduct of the scrutiny, the scrutineer may inform the protected action ballot agent of the scrutineer’s opinion. [page 1169]

DIVISION 9 — PAYMENTS RELATING TO PERIODS OF INDUSTRIAL ACTION

[10-1610] Payments relating to partial work bans — working out proportion of reduction of employee’s payments 3.21 For subsection 471(3) of the Act, the proportion mentioned in paragraph 471(2)(a) of the Act is worked out for an employee or a class of employees by carrying out the following steps. Step 1 Identify the work that an employee or a class of employees is failing or refusing to perform, or is proposing to fail or refuse to perform. Step 2 Estimate the usual time that the employee or the class of

Step 3

employees would spend performing the work during a day. Work out the time estimated in Step 2 as a percentage of an employee’s usual hours of work for a day. The solution is the proportion by which the employee’s payment will be reduced for a day.

[10-1615] Payments relating to partial work bans — form of partial work ban notice 3.22 For paragraph 471(6)(a) of the Act, a notice given under paragraph 471(1)(c) or (4)(c) of the Act about the reduction of an employee’s payments due to a partial work ban must be in a legible form and in English.

[10-1620] Payments relating to partial work bans — content of partial work ban notice 3.23 (1) For paragraph 471(6)(b) of the Act, a notice about a partial work ban given to an employee under paragraph 471(1)(c) or (4)(c) of the Act must: (a) specify the day on which the notice is issued; and (b) specify the industrial action engaged in, or proposed to be engaged in, that constitutes the partial work ban; and (c) state that the notice will take effect from the later of: (i) the start of the first day of the partial work ban; and (ii) the start of the first day after the day on which the notice is given to the employee, if the employee performs work on that day; and (d) state that the notice will cease to have effect at the end of the day on which the partial work ban ceases. (2) If the notice is given under paragraph 471(1)(c) of the Act, it must also: (a) state that the employee’s payments will be reduced by an amount specified in the notice for each day the employee engages in the partial work ban; and (b) specify an estimate of the usual time the employer considers an

employee would spend during a day performing the work that is the subject of the work ban; and (c) specify the amount by which the employee’s payments will be reduced for each day the employee engages in the work ban. (3) If the notice is given under paragraph 471(4)(c) of the Act, it must also state that the employee will not be entitled to any payment for a day on which the employee engages in the partial work ban. [page 1170]

[10-1625] work ban

Manner of giving notice about partial

3.24 (1) For paragraph 471(7)(b) of the Act, this regulation prescribes how the employer may give employees notice for paragraph 471(1)(c) or (4)(c) of the Act. (2) The employer may give the notice to the employee personally. (3) The employer may send the notice by pre-paid post to: (a) the employee’s residential address; or (b) a postal address nominated by the employee. (4) The employer may send the notice to: (a) the employee’s email address at work; or (b) another email address nominated by the employee. (5) The employer may fax the notice to: (a) the employee’s fax number at work; or (b) the employee’s fax number at home; or (c) another fax number nominated by the employee. COMMENTARY TO REGULATION 3.24

Outline of regulation ….

[10-1625.10]

[10-1625.10] Outline of regulation It may be noted that reg 3.24 specifies various means by which notification of a partial work ban may take place, but does not allow for other means. As such, other

means of providing the notice in electronic form or via social media will not satisfy the notice requirements of reg 3.24.

____________________

PART 3-4 — RIGHT OF ENTRY DIVISION 2 — ENTRY TO INVESTIGATE SUSPECTED CONTRAVENTION RELATING TO TCF AWARD WORKERS [Div 2 insrt SLI 323 of 2012 s 3 and Sch 1[1], opn 1 Jan 2013]

[10-1650]

Prescribed accreditation body

3.24A (1) Ethical Clothing Australia is specified as the prescribed body for the purposes of paragraph 483A(6)(a) of the Act. (2) Ethical Clothing Australia means the Homeworker Code Committee Inc trading as Ethical Clothing Australia. COMMENTARY TO REGULATION 3.24A

Outline of regulation ….

[10-1650.10]

[10-1650.10] Outline of regulation This regulation specifies the body that provides accreditation for employers which provides certain exemptions to those accredited employers from being subject to entry for certain purposes by right of entry permit holders relating to clothing, textile and footwear award workers.

____________________

DIVISION 3 — STATE OR TERRITORY OHS RIGHTS

[10-1730]

Meaning of State or Territory OHS law

3.25 For subsection 494(3) of the Act, each law mentioned in the following table is prescribed. [page 1171] Item

Law

1 2 3 4

Work Health and Safety Act 2011 of New South Wales Occupational Health and Safety Act 2004 of Victoria Work Health and Safety Act 2011 of Queensland Sections 49G and 49I to 49O of the Industrial Relations Act 1979 of Western Australia, but only to the extent to which those provisions provide for, or relate to, a right of entry to investigate a suspected contravention of: (a) the Occupational Safety and Health Act 1984 of Western Australia; or (b) the Mines Safety and Inspection Act 1994 of Western Australia

4A 5 6

Work Health and Safety Act 2012 (SA) Work Health and Safety Act 2012 of Tasmania Work Health and Safety Act 2011 of the Australian Capital Territory Work Health and Safety (National Uniform Legislation) Act 2011 of the Northern Territory

7

[reg 3.25 am SLI 207 of 2009 reg 3 and Sch 2,; SLI 218 of 2012 s 4 and Sch 2[2],; SLI 69 of 2013 s 4 and Sch 1, opn 22 May 2013]

DIVISION 6 — ENTRY PERMITS, ENTRY NOTICES AND CERTIFICATES COMMENTARY TO DIVISION 6

Outline of Division ….

[10-1754]

[10-1754] Outline of Division The regulations for this Division provide for the various forms comprising right of entry permits, entry notices and certain certificates.

____________________

[10-1755]

Form of entry permit

3.26 For paragraph 521(a) of the Act, the form of an entry permit issued to an official of an organisation is set out in Form 1 in Schedule 3.3.

[10-1760]

Form of entry notice

3.27 For paragraph 521(a) of the Act, the form of an entry notice is set out in Form 2 in Schedule 3.3.

[10-1765]

Form of exemption certificate

3.28 For paragraph 521(a) of the Act, the form of an exemption certificate issued to an organisation is set out in Form 3 in Schedule 3.3.

[10-1770]

Form of affected member certificate

3.29 For paragraph 521(a) of the Act, the form of an affected member certificate issued to an organisation is set out in Form 4 in Schedule 3.3. [page 1172]

PART 3-6 — OTHER RIGHTS AND RESPONSIBILITIES DIVISION 2 — NOTIFICATION AND CONSULTATION RELATING TO CERTAIN DISMISSALS Subdivision A — Requirement to notify Centrelink

[10-1875] Employer to notify Centrelink of certain proposed dismissals — form of notice 3.30 For subsection 530(2) of the Act, the form of a notice to Centrelink of a proposed dismissal under subsection 530(1) is set out in Form 1 of Schedule 3.4.

DIVISION 3 — EMPLOYER OBLIGATIONS IN RELATION TO EMPLOYEE RECORDS AND PAY SLIPS Note about Subdivision 1 The regulations in Subdivision 1 set out the kinds of records that must be made and kept for the purposes of sections 535 and 796 of the Act. These records are required to be

kept by employers for 7 years. An employer must keep a record in respect of each employee about: (a) basic employment details such as the name of the employer and the employee and the nature of their employment (e.g. part-time, full-time, permanent, temporary or casual); and (b) pay; and (c) overtime hours; and (d) averaging arrangements; and (e) leave entitlements; and (f) superannuation contributions; and (g) termination of employment (where applicable); and (h) individual flexibility arrangements and guarantees of annual earnings. There are also obligations on old employers and new employers in transfer of business situations. Records must be properly maintained. For example, regulation 3.31 sets out form requirements to make sure that records are legible and readily accessible to an inspector. Regulation 3.44 sets out requirements to ensure that records are accurate at all times. This subdivision also deals with obligations for employers in relation to facilitate the inspection and copying of records by employees (see also the inspector powers set out at Part 5-2 of the Act). Most of the obligations in this Part are civil remedy provisions. This means that Part 4-1 of the FW Act will apply (including the course of conduct rule in section 550). Note about Subdivision 2 The regulations in Subdivision 2 deal with the form and content of pay slips for the purposes of section 536 of the Act. Pay slips must include all of the information set out in regulation 3.46.

Subdivision 1 — Employee records

[10-1900]

Records — form

3.31 (1) For subsection 535(1) of the Act, an employee record made and kept by an employer for this Subdivision must be of the following kind: (a) a record in a legible form and in the English language; [page 1173] (b) a record in a form that is readily accessible to an inspector. Note: Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 of the Act deal with infringement notices relating to alleged contraventions of civil remedy provisions.

(2) For section 796 of the Act, an employee record made and kept by an

employer for this Subdivision must be of the following kind: (a) a record in a legible form and in the English language; (b) a record in a form that is readily accessible to an inspector. Note: Subregulation (2) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

[10-1905]

Records — content

3.32 For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies: (a) the employer’s name; and (b) the employee’s name; and (c) whether the employee’s employment is full-time or part-time; and (d) whether the employee’s employment is permanent, temporary or casual; and (e) the date on which the employee’s employment began; and (f) on and after 1 January 2010 — the Australian Business Number (if any) of the employer. Note: Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

[10-1910]

Records — pay

3.33 (1) For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies: (a) the rate of remuneration paid to the employee; and (b) the gross and net amounts paid to the employee; and (c) any deductions made from the gross amount paid to the employee. (2) If the employee is a casual or irregular part-time employee who is guaranteed a rate of pay set by reference to a period of time worked, the record must set out the hours worked by the employee. (3) If the employee is entitled to be paid: (a) an incentive-based payment; or

(b) a bonus; or (c) a loading; or (d) a penalty rate; or (e) another monetary allowance or separately identifiable entitlement; the record must set out details of the payment, bonus, loading, rate, allowance or entitlement. Note: Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

[page 1174]

[10-1915]

Records — overtime

3.34 For subsection 535(1) of the Act, if a penalty rate or loading (however described) must be paid for overtime hours actually worked by an employee, a kind of employee record that the employer must make and keep is a record that specifies: (a) the number of overtime hours worked by the employee during each day; or (b) when the employee started and ceased working overtime hours. Note: Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

[10-1920]

Records — averaging of hours

3.35 For subsection 535(1) of the Act, if an employer and employee agree in writing to an averaging of the employee’s hours of work, a copy of the agreement is a kind of employee record that the employer must make and keep. Note: Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

[10-1925]

Records — leave

3.36 (1) For subsection 535(1) of the Act, if an employee is entitled to leave, a kind of employee record that the employer must make and keep is a record that sets out: (a) any leave that the employee takes; and (b) the balance (if any) of the employee’s entitlement to that leave from time to time. (2) If an employer and employee agree to cash out an accrued amount of leave: (a) a copy of the agreement is a kind of employee record that the employer must make and keep; and (b) a kind of employee record that the employer must make and keep is a record that sets out: (i) the rate of payment for the amount of leave that was cashed out; and (ii) when the payment was made Note: Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

[10-1930] Records — superannuation contributions 3.37 (1) For subsection 535(1) of the Act, if an employer is required to make superannuation contributions for the benefit of an employee, a kind of employee record that the employer must make and keep is a record that specifies: (a) the amount of the contributions made; and (b) the period over which the contributions were made; and (c) the date on which each contribution was made; and (d) the name of any fund to which a contribution was made; and (e) the basis on which the employer became liable to make the contribution, including:

a record of any election made by the employee as to the fund to which contributions are to be made; and (ii) the date of any relevant election. (i)

[page 1175] (2) In subregulation (1): contributions does not include a contribution in respect of a defined benefit interest (within the meaning of the Superannuation Industry (Supervision) Regulations 1994) in a defined benefit fund (within the meaning of the Superannuation Industry (Supervision) Act 1993). Note: Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

[10-1935] Records — individual flexibility arrangement 3.38 For subsection 535(1) of the Act, if an employer and employee agree in writing on an individual flexibility arrangement under the Act: (a) a copy of the agreement is a kind of employee record that the employer must make and keep; and (b) a copy of a notice or agreement that terminates the agreement is a kind of employee record that the employer must make and keep. Note: Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

[10-1940] earnings

Records — guarantee of annual

3.39 (1) For subsection 535(1) of the Act, if an employer gives a guarantee of annual earnings under section 330 of the Act, the guarantee is a kind of employee record that the employer must make and keep. Note: Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4

of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

(2) For subsection 535(1) of the Act, if an employer revokes a guarantee of annual earnings under section 330 of the Act, a kind of employee record that the employer must make and keep is a record of the date of the revocation. Note: Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

[10-1945]

Records — termination of employment

3.40 For subsection 535(1) of the Act, if an employee’s employment is terminated, a kind of employee record that the employer must make and keep is a record that sets out: (a) whether the employment was terminated: (i) by consent; or (ii) by notice; or (iii) summarily; or (iv) in some other manner (specifying the manner); and (b) the name of the person who acted to terminate the employment. Note: Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

[page 1176]

[10-1950]

Records — transfer of business

3.41 (1) For section 796 of the Act, this regulation applies if a transfer of business occurs as described in section 311 of the Act. Note: Section 311 identifies the participants in the transfer of the business as: (a) the old employer; and (b) the new employer; and (c) a transferring employee.

(2) The old employer must transfer to the new employer each employee record concerning a transferring employee that the old employer was required

to keep for subsection 535(1) of the Act at the time at which the connection between the old employer and the new employer mentioned in paragraph 311(1)(d) of the Act occurs. Note: Subregulation (2) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(3) If the old employer is a Commonwealth authority, the old employer only has to provide copies of those records. (4) If the transferring employee becomes an employee of the new employer after the time at which the connection between the old employer and the new employer mentioned in paragraph 311(1)(d) of the Act occurs, the new employer must ask the old employer to give the new employer the employee records concerning the transferring employee. Note: Subregulation (4) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(5) If the old employer receives a request under subregulation (4), the old employer must give the employee records to the new employer. Note: Subregulation (5) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(6) The new employer who receives transferred employee records must keep the records, as if they had been made by the new employer at the time at which they were made by the old employer. Note: Subregulation (6) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(7) The new employer is not required to make employee records relating to the transferring employee’s employment with the old employer.

[10-1955] record

Records — inspection and copying of a

3.42 (1) For subsection 535(3) of the Act, an employer must make a copy of an employee record available for inspection and copying on request by the employee or former employee to whom the record relates. Note: Subregulation (1) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy

provisions.

[page 1177] (2) The employer must make the copy available in a legible form to the employee or former employee for inspection and copying. Note: Subregulation (2) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(3) If the employee record is kept at the premises at which the employee works or the former employee worked, the employer must: (a) make the copy available at the premises within 3 business days after receiving the request; or (b) post a copy of the employee record to the employee or former employee within 14 days after receiving the request. Note: Subregulation (3) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(4) If the employee record is not kept at the premises at which the employee works or the former employee worked, the employer must, as soon as practicable after receiving the request. (a) make the copy available at the premises; or (b) post a copy of the employee record to the employee or former employee. Note 1: Subregulation (4) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions. Note 2: Under the Act, an inspector is also permitted to inspect and copy an employee record for the purposes of the Act. The inspector may also require the production of the employee record.

[10-1960] record

Records — information concerning a

3.43 (1) An employer who has been asked by an employee or former employee to make a copy of an employee record available for inspection must tell the employee or former employee, on request, where employee

records relating to the employee or former employee are kept. Note: Subregulation (1) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(2) The employee or former employee may interview the employer, or a representative of the employer, at any time during ordinary working hours, about an employee record that the employer has made or will make. Note: Part 5-2 of Chapter 5 of the Act sets out the circumstances in which an inspector can inspect employee records and require the production of employee records.

[10-1965]

Records — accuracy

3.44 (1) An employer must ensure that a record that the employer is required to keep under the Act or these Regulations is not false or misleading to the employer’s knowledge. Note: Subregulation (1) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

[page 1178] (2) An employer must correct a record that the employer is required to keep under the Act or these Regulations as soon as the employer becomes aware that it contains an error. Note: Subregulation (2) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(3) An employer must ensure that a record that the employer is required: (a) to keep under the Act or these Regulations; and (b) to correct in accordance with subregulation (2); contains a notation of the nature of the corrected error with the correction. Note: Subregulation (3) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(4) An employer must not alter a record that the employer is required to keep under the Act or these Regulations except:

(a) in compliance with subregulation (2) or (3); or (b) to any extent otherwise permitted by the Act or these Regulations. Note: Subregulation (4) is a civil remedy provision to which Part 4-1 applies. Division 4 of Part 4-1 deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(5) An employer must ensure that a record that the employer is required to keep under the Act or these Regulations is not altered by another person except: (a) in compliance with subregulation (2) or (3); or (b) to any extent otherwise permitted by the Act or these Regulations. Note: Subregulation (5) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(6) A person must not make use of an entry in an employee record made and kept by an employer for this Subdivision if the person does so knowing that the entry is false or misleading. Note: Subregulation (6) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

Subdivision 2 — Pay slips

[10-1985]

Pay slips — form

3.45 For paragraph 536(2)(b) of the Act, a pay slip must be: (a) in electronic form; or (b) a hard copy. Note: Subsection 536(2) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

[10-1990]

Pay slips — content

3.46 (1) For paragraph 536(2)(b) of the Act, a pay slip must specify: (a) the employer’s name; and (b) the employee’s name; and

[page 1179] (c) the period to which the pay slip relates; and (d) the date on which the payment to which the pay slip relates was made; and (e) the gross amount of the payment; and (f) the net amount of the payment; and (g) any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive-based payment or other separately identifiable entitlement; and (h) on and after 1 January 2010 — the Australian Business Number (if any) of the employer. (2) If an amount is deducted from the gross amount of the payment, the pay slip must also include the name, or the name and number, of the fund or account into which the deduction was paid. (3) If the employee is paid at an hourly rate of pay, the pay slip must also include: (a) the rate of pay for the employee’s ordinary hours (however described); and (b) the number of hours in that period for which the employee was employed at that rate; and (c) the amount of the payment made at that rate. (4) If the employee is paid at an annual rate of pay, the pay slip must also include the rate as at the latest date to which the payment relates. (5) If the employer is required to make superannuation contributions for the benefit of the employee, the pay slip must also include: (a) the amount of each contribution that the employer made during the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contribution was made; or (b) the amounts of contributions that the employer is liable to make in relation to the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contributions will be made.

(6) In subregulation (5): contributions does not include a contribution in respect of a defined benefit interest (within the meaning of the Superannuation Industry (Supervision) Regulations 1994) in a defined benefit fund (within the meaning of the Superannuation Industry (Supervision) Act 1993). Note: Subsection 536(2) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

[page 1181]

CHAPTER 4 — COMPLIANCE AND ENFORCEMENT PART 4-1 — CIVIL REMEDIES DIVISION 2 — ORDERS

[10-2145] Applications for orders in relation to contraventions of civil remedy provisions 4.01A (1) For subsection 539(3) of the Act, a provision referred to in an item of the table in subregulation (2) is a civil remedy provision. (2) For each civil remedy provision in an item of the table, the table sets out: (a) the persons who would be referred to in column 2 of the table in subsection 539(2) of the Act if there were an item for the civil remedy provision in that table; and (b) the Courts that would be referred to in column 3 of that table; and (c) the maximum penalty that would be referred to in column 4 of that table. Item Civil remedy Persons Courts Maximum provision penalty 1 subregulation An applicant Federal Court 20 penalty 3.13(7) for the Federal units protected Circuit action ballot Court order The An eligible protected State or action ballot Territory

2

3

4

5

agent An employee organisation An inspector subregulation An applicant 3.13(8) for the protected action ballot order The protected action ballot agent An employee organisation An inspector subregulation The protected 3.19(10) action ballot agent An inspector

Court

Federal Court 20 penalty Federal units Circuit Court An eligible State or Territory Court

Federal Court Federal Circuit Court An eligible State or Territory Court subregulation An employee Federal Court 3.31(2) An inspector Federal Circuit Court An eligible State or Territory Court subregulation An employee Federal Court 3.41(2) An inspector Federal Circuit Court An eligible State or

20 penalty units

20 penalty units

20 penalty units

Territory Court

[page 1182] Item 6

7

8

9

Civil remedy Persons Courts Maximum provision penalty subregulation An employee Federal Court 20 penalty 3.41(4) An inspector Federal units Circuit Court An eligible State or Territory Court subregulation An employee Federal Court 20 penalty 3.41(5) An inspector Federal units Circuit Court An eligible State or Territory Court subregulation An employee Federal Court 20 penalty 3.41(6) An inspector Federal units Circuit Court An eligible State or Territory Court subregulation An employee Federal Court 20 penalty 3.42(1) An inspector Federal units Circuit

10

subregulation An employee 3.42(2) An inspector

11

subregulation An employee 3.42(3) An inspector

12

subregulation An employee 3.42(4) An inspector

13

subregulation An employee 3.43(1) An inspector

Court An eligible State or Territory Court Federal Court Federal Circuit Court An eligible State or Territory Court Federal Court Federal Circuit Court An eligible State or Territory Court Federal Court Federal Circuit Court An eligible State or Territory Court Federal Court Federal Circuit Court An eligible State or Territory Court

20 penalty units

20 penalty units

20 penalty units

20 penalty units

14

subregulation An employee Federal Court 20 penalty 3.44(1) An inspector Federal units Circuit Court An eligible State or Territory Court [page 1183]

Item 15

16

17

Civil remedy Persons Courts Maximum provision penalty subregulation An employee Federal Court 20 penalty 3.44(2) An inspector Federal units Circuit Court An eligible State or Territory Court subregulation An employee Federal Court 20 penalty 3.44(3) An inspector Federal units Circuit Court An eligible State or Territory Court subregulation An employee Federal Court 20 penalty 3.44(4) An inspector Federal units Circuit Court An eligible State or

18

19

Territory Court subregulation An employee Federal Court 3.44(5) An inspector Federal Circuit Court An eligible State or Territory Court subregulation An employee Federal Court 3.44(6) An inspector Federal Circuit Court An eligible State or Territory Court

20 penalty units

20 penalty units

[subs (2) am SLI 51 of 2013 s 4 and Sch 1 item 49, opn 12 Apr 2013]

DIVISION 3 — SMALL CLAIMS PROCEDURE

[10-2170] Plaintiffs may choose small claims procedure 4.01 (1) For paragraph 548(1)(c) of the Act, the manner in which a person must indicate that he or she wants a small claims procedure to apply to an action that the person has commenced is: (a) by: (i) endorsing the papers initiating the action with a statement that the person wants a small claims procedure to apply to the action; or (ii) lodging with the magistrates court or the Federal Circuit Court a paper that identifies the action and states that the person wants a small claims procedure to apply to the action; and

by serving a copy of the papers initiating the action, together with a (b) copy of the paper (if any) mentioned in subparagraph (a)(ii), on every other party to the action. [subs (1) am SLI 51 of 2013 s 4 and Sch 1 item 49, opn 12 Apr 2013]

(2) Subregulation (1) does not apply to an action that a person starts in a magistrates court or the Federal Circuit Court if rules of court relating to that court prescribe the manner in which the person indicates that he or she wants a small claims procedure to apply to the action. [subs (2) am SLI 51 of 2013 s 4 and Sch 1 item 49, opn 12 Apr 2013]

[page 1184] (3) For subsection 548(8) of the Act, a party to small claims proceedings in the Federal Circuit Court may be represented by an official of an industrial association if the party is granted leave to do so by the Federal Circuit Court. [subreg (3) insrt SLI 244 of 2011 reg 3 and Sch 1[1],; am SLI 51 of 2013 s 4 and Sch 1 item 49, opn 12 Apr 2013]

(4) For subsection 548(8) of the Act, a party to small claims proceedings heard in a magistrates court may be represented by an official of an industrial association if: (a) the party is granted leave to do so by that court; and (b) the law of the State allows a party to be represented in that court, in the circumstances mentioned in paragraph (a), by officials of bodies representing interests related to the matters in dispute. [subreg (4) insrt SLI 244 of 2011 reg 3 and Sch 1[1], opn 13 Dec 2011]

DIVISION 4 — GENERAL PROVISIONS RELATING TO CIVIL REMEDIES AND INFRINGEMENT NOTICES

[10-2195]

General

4.02 (1) For subsection 558(1) of the Act, this Division provides for a person who is alleged to have contravened a civil remedy provision to pay a penalty to the Commonwealth as an alternative to civil proceedings

(2) This Division does not: (a) require an infringement notice to be issued to a person for an alleged contravention of a civil remedy provision; or (b) affect the liability of a person to proceedings for contravention of a civil remedy provision if an infringement notice is not issued to the person for the alleged contravention; or (c) affect the liability of a person to proceedings for contravention of a civil remedy provision if the person does not comply with an infringement notice for the alleged contravention; or (d) limit or otherwise affect the penalty that may be imposed by a court on a person for a contravention other than the contravention of the civil remedy provision for which the infringement notice was issued.

[10-2200]

Definitions for Division 4

4.03 In this Division: civil remedy provision means a civil remedy provision in: (a) item 29 of the table in subsection 539(2) of the Act; or (b) items 4 to 19 of the table in subregulation 4.01A(2). contravention means a contravention of a civil remedy provision. infringement notice means an infringement notice under regulation 4.04. nominated person means the person to whom a recipient can apply: (a) to have an infringement notice withdrawn; or (b) to be allowed more time to pay a penalty. recipient means a person to whom an infringement notice is given under subregulation 4.04(1). [page 1185]

[10-2205]

Course of conduct

4.03A For paragraph 557(2)(s) of the Act, each civil remedy provision mentioned in items 4 to 19 of the table in subregulation 4.01A(2) is prescribed.

[10-2210] given

When an infringement notice can be

4.04 (1) If an inspector reasonably believes that a person has committed 1 or more contraventions of a particular civil remedy provision, the inspector may give to the person an infringement notice relating to the alleged contravention or contraventions. (2) An infringement notice must be given within 12 months after the day on which the contravention or contraventions are alleged to have taken place. (3) This regulation does not authorise the giving of 2 or more infringement notices to a person in relation to contraventions of a particular civil remedy provision that: (a) allegedly took place on the same day; and (b) allegedly relate to the same action or conduct by the person. (4) An inspector must not give an infringement notice in respect of a contravention if the Fair Work Ombudsman has accepted an enforceable undertaking from the person under section 715 of the Act in relation to the relevant civil remedy provision.

[10-2215]

Content of infringement notice

4.05 (1) An infringement notice must: (a) specify the recipient’s full name; and (b) specify the recipient’s address; and (c) specify the name of the inspector who issued it; and (d) specify its date of issue; and (e) set out brief details of the alleged contravention, including the civil remedy provision that has been allegedly contravened; and (f) specify the penalty for the alleged contravention that is payable under the notice; and

(g) state where and how the penalty can be paid; and (h) specify the maximum penalty that a court could impose on the recipient for the alleged contravention; and (i) identify the nominated person; and (j) explain how the recipient can apply to the nominated person: (i) to have the infringement notice withdrawn; or (ii) to be allowed more time to pay the penalty; and (k) state the effect of the recipient paying the penalty within the required time, as explained in regulation 4.09; and (l) be signed by the inspector who issued it. (2) The infringement notice may contain any other information that the inspector who issues it thinks necessary. Note: The maximum penalty payable under the infringement notice for an alleged contravention is onetenth of the penalty that a court could impose.

[10-2220]

Time for payment of penalty

4.06 (1) The penalty stated in an infringement notice must be paid within 28 days after the day on which the notice is served on the recipient unless subregulation (2), (3) or (4) applies. [page 1186] (2) If the recipient applies for a further period of time in which to pay the penalty, and the application is granted, the penalty must be paid within the further period allowed. (3) If the recipient applies for a further period of time in which to pay the penalty, and the application is refused, the penalty must be paid within 7 days after the notice of the refusal is served on the recipient. (4) If the recipient applies for the notice to be withdrawn, and the application is refused, the penalty must be paid within 28 days after the notice of the refusal is served on the person.

[10-2225]

Extension of time to pay penalty

4.07 (1) Before the end of 28 days after receiving an infringement notice, the recipient may apply, in writing, to the nominated person for a further period of up to 28 days in which to pay the penalty stated in the notice. (2) Within 14 days after receiving the application, the nominated person must: (a) grant or refuse a further period not longer than the period sought (but less than 28 days); and (b) notify the person in writing of the decision and, if the decision is a refusal, the reasons for the decision.

[10-2230]

Withdrawal of infringement notice

4.08 (1) Before the end of 28 days after receiving the infringement notice, the recipient may apply, in writing, to the nominated person for the infringement notice to be withdrawn. (2) Within 14 days after receiving the application, the nominated person must: (a) withdraw or refuse to withdraw the infringement notice; and (b) notify the recipient in writing of the decision and, if the decision is a refusal, the reasons for the decision. (3) If the nominated person has not approved, or refused to approve, the withdrawal of the infringement notice within the period allowed by subregulation (2), the application is taken to have been refused. (4) An inspector may also withdraw an infringement notice issued by him or her by serving a notice of withdrawal on the recipient without an application having been made. (5) A notice of the withdrawal of an infringement notice must: (a) specify the recipient’s full name; and (b) specify the recipient’s address; and (c) specify its date of issue; and (d) state that the infringement notice is withdrawn.

[10-2235]

Effect of payment of penalty

4.09 If an infringement notice is not withdrawn, and the recipient pays the penalty stated in the notice: (a) any liability of the recipient for the alleged contravention is discharged; and (b) no proceedings may be brought against the recipient, by any person, for the alleged contravention; and (c) the recipient is not taken to have admitted to having contravened the civil remedy provision; and (d) the recipient is not taken to have been convicted of a contravention. [page 1187]

[10-2240]

Refund of penalty

4.10 If an infringement notice is withdrawn after the penalty stated in it has been paid, the Commonwealth must refund the amount of the penalty to the person who paid it.

DIVISION 5 — UNCLAIMED MONEY

[10-2265]

Unclaimed money

4.11 For paragraph 559(3)(b) of the Act, the form of a claim for the payment of unclaimed money is set out in Schedule 4.1.

[page 1189]

CHAPTER 5 — ADMINISTRATION PART 5-1 — FAIR WORK COMMISSION [Pt 5-1 heading am SLI 321 of 2012 s 3 and Sch 1[24], opn 1 Jan 2013]

DIVISION 5 — FWC MEMBERS [Div 5 heading am SLI 321 of 2012 s 3 and Sch 1[25], opn 1 Jan 2013]

[10-2420] Delegation by President of functions and powers of FWC 5.01 (1) For paragraph 625(2)(i) of the Act, the requirement to give a copy of a protected action ballot order under section 445 of the Act is a prescribed function. (2) For paragraph 625(2)(i) of the Act, each of the following functions is a prescribed function: (a) being satisfied under subregulation 3.02(7) that a person making an application to the FWC under section 365 of the Act will suffer serious hardship if the person is required to pay the fee for the application; (b) being satisfied under subregulation 3.03(7) that a person making an application to the FWC under section 372 of the Act will suffer serious hardship if the person is required to pay the fee for the application; (c) being satisfied under subregulation 3.07(7) that a person making an application to the FWC under Division 5 of Part 3-2 of the Act will suffer serious hardship if the person is required to pay the fee for the application; (d) being satisfied under subregulation 6.05(7) that a person making an

application to the FWC under subsection 773(2) of the Act will suffer serious hardship if the person is required to pay the fee for the application. [subreg (2) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(3) For paragraph 625(2)(i) of the Act, the power to issue a WHS entry permit to a person under section 134 of the Work Health and Safety Act 2011 is a prescribed power. [subreg (3) insrt SLI 218 of 2012 s 4 and Sch 2[4], opn 15 Sep 2012] [Heading am SLI 99 of 2010 reg 3 and Sch 1,; SLI 218 of 2012 s 4 and Sch 2[3], opn 15 Sep 2012; SLI 321 of 2012 s 3 and Sch 1[25], opn 1 Jan 2013] COMMENTARY TO REGULATION 5.01

Outline of regulation ….

[10-2420.10]

[10-2420.10] Outline of regulation This regulation provides for the various functions or powers of the Fair Work Commission to be delegated to either the General Manager of the Fair Work Commission, a member of its staff who is a member of the Senior Executive Service (or is acting as such), or is a person prescribed in reg 5.01A, pursuant to s 625(2) and (3) of the FW Act.

____________________ [page 1190]

[10-2423] Delegation by the President of functions and powers of FWC — prescribed members of staff of FWC 5.01A For paragraph 625(3)(c) of the Act, each class of employees of the FWC set out in the following table is prescribed. Item Class of employees 1 State or Territory Service Manager [reg 5.01A insrt SLI 99 of 2010 reg 3 and Sch 1, opn 26 May 2010; am SLI 321 of 2012 s 3 and Sch 1[25], [27], opn 1 Jan 2013]

[10-2424]

Appointment of Vice President

5.01B For clause 32 of Schedule 3 of the Act, if a person appointed as a

Vice President of the FWC under section 626 of the Act was, under item 1 of Schedule 18 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, taken to be a Deputy President of FWA: (a) the person has the same rank, status and precedence as a Judge of the Federal Court; and (b) to avoid doubt, if the Judges’ Pension Act 1968 applies to the person, that Act continues to apply to the person; and (c) if the salary payable to the person under section 79 of the Workplace Relations Act 1996 is more than the salary that would be payable to the person as Vice President under section 637 of the Act — the person is entitled to receive the amount that was payable to the person under section 79 of the Workplace Relations Act 1996 immediately prior to the appointment; and (d) section 639 of the Act does not apply to the person. [reg 5.01B insrt SLI 321 of 2012 s 3 and Sch 1[13], opn 1 Jan 2013]

[10-2425] Dual federal and Territory appointments of Deputy Presidents or Commissioners 5.02 (1) For paragraph 632(a) of the Act, the following Commonwealth tribunals are prescribed: (a) the Defence Force Remuneration Tribunal; (b) the Pharmaceutical Benefits Remuneration Tribunal; (c) the Road Safety Remuneration Tribunal. [subreg (1) am SLI 64 of 2012 s 3 and Sch 1[1], [2], opn 12 May 2012]

(2) For paragraph 632(a) of the Act, the following Territory tribunals are prescribed: (a) the Prison Officers Arbitral Tribunal of the Northern Territory; (b) the Police Officers Arbitral Tribunal of the Northern Territory. COMMENTARY TO REGULATION 5.02

Outline of regulation ….

[10-2425.10]

[10-2425.10] Outline of regulation This regulation specifies the appointments that a Deputy President

or Commissioner of the Fair Work Commission may hold concurrently with their appointment at the Fair Work Commission.

____________________ [page 1191]

[10-2430]

Oath and affirmation of office

5.03 (1) For section 634 of the Act, the oath and affirmation for an FWC Member are set out in Schedule 5.1. [subreg (1) am SLI 321 of 2012 s 3 and Sch 1[25], opn 1 Jan 2013]

(2) An oath or affirmation to be taken by the President must be taken before: (a) the Governor-General; or (b) a Justice of the High Court; or (c) a Judge of the Federal Court; or (d) a Judge of the Supreme Court of a State or a Territory. (3) An oath or affirmation to be taken by an FWC Member other than the President must be taken before: (a) the Governor-General; or (b) a Justice of the High Court; or (c) a Judge of the Federal Court; or (d) a Judge of the Supreme Court of a State or a Territory; or (e) the President. [subreg (3) am SLI 321 of 2012 s 3 and Sch 1[25], opn 1 Jan 2013]

DIVISION 7 — SEALS AND ADDITIONAL POWERS OF THE PRESIDENT AND THE GENERAL MANAGER

[10-2455] President must provide certain information etc. to the Minister and Fair Work Ombudsman

5.04 (1) For subsection 654(1) of the Act: (a) the information and copies of documents which the President must provide to the Minister are set out in Part 1 of Schedule 5.2; and (b) the information and copies of documents which the President must provide to the Fair Work Ombudsman are set out in Part 2 of Schedule 5.2. Note: Information prescribed in Schedule 5.2 is minimum information only.

(2) Schedule 5.2 also sets out the time by which the information and documents must be provided. (3) In addition to the matters in Schedule 5.2, the Minister may request from the President a copy of: (a) an order or interim order made by the FWC; or (b) an instrument made under section 262, 266, 269, 320 or 458 of the Act. [subreg (3) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(4) If the Minister requests a copy of an instrument or order, the President must provide the copy: (a) within 24 hours after the request; or (b) if the instrument, order or interim order has not been written within that period — as soon as practicable. (5) For the Minister: (a) information, or a copy of a document, may be provided: [page 1192] (i) in paper form; or (ii) in electronic form, in accordance with any particular information technology requirements notified to the President by the Secretary; and (b) subparagraph (a)(ii) does not prevent the President from including other relevant information with information provided to the Minister in electronic form; and

(c) a copy of a document that is provided to the Minister in paper form must be posted to the address notified to the President by the Secretary; and (d) information, or a copy of a document, that is provided to the Minister in electronic form must be sent to the e-mail address notified to the President by the Secretary; and (e) the President must ensure that: (i) all copies of documents that are to be provided to the Minister in paper form during a week are given at the same time in that week; and (ii) all information, or copies of documents, of a particular kind that are to be provided to the Minister in electronic form during a week are provided at the same time in that week. (6) The President may provide information mentioned in subitem 15.1 of Schedule 5.2: (a) by providing the Minister with a copy of a relevant statutory declaration provided by an employer in accordance with paragraph 185(2)(b) of the Act and the procedural rules; or (b) by other means. (7) For the Fair Work Ombudsman: (a) information, or a copy of a document, may be provided: (i) in paper form; or (ii) in electronic form, in accordance with any particular information technology requirements notified to the President by the Fair Work Ombudsman; and (b) subparagraph (a)(ii) does not prevent the President from including other relevant information with information provided to the Fair Work Ombudsman in electronic form; and (c) a copy of a document that is provided to the Fair Work Ombudsman in paper form must be posted to the address notified to the President by the Fair Work Ombudsman; and (d) information, or a copy of a document, that is provided to the Fair Work Ombudsman in electronic form must be sent to the e-mail

address notified to the President by the Fair Work Ombudsman; and (e) the President must ensure that: (i) all copies of documents that are to be provided to the Fair Work Ombudsman in paper form during a week are given at the same time in that week; and (ii) all information, or copies of documents, of a particular kind that are to be provided to the Fair Work Ombudsman in electronic form during a week are provided at the same time in that week. [page 1193]

[10-2460]

Delegation by General Manager to staff

5.04A For paragraph 671(1)(b) of the Act, each class of employees of the FWC set out in the following table is prescribed. Item Class of employees 1 State or Territory Service Manager [reg 5.04A insrt SLI 99 of 2010 reg 3 and Sch 1, opn 26 May 2010; am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013] COMMENTARY TO REGULATION 5.04A

Outline of regulation ….

[10-2460.10]

[10-2460.10] Outline of regulation This regulation specifies the category of person to whom the General Manager of the Fair Work Commission may delegate any or all of his/her powers.

____________________

PART 5-2 — OFFICE OF THE FAIR WORK OMBUDSMAN DIVISION 3 — OFFICE OF THE FAIR WORK OMBUDSMAN

[10-2560] Powers and functions of inspectors — notification of failure to observe requirements 5.05 If an inspector is satisfied that a person has failed to observe a requirement imposed by or for the Act, these Regulations or a fair work instrument, the inspector may, by notice in writing: (a) inform the person of the failure; and (b) require the person to take the action specified in the notice, within the period specified in the notice, to rectify the failure; and (c) require the person to notify the inspector in accordance with the notice of any action taken to comply with the notice; and (d) advise the person of the actions the inspector may take if the person fails to comply with the notice.

[10-2565] Powers of inspectors while on premises — taking samples of goods and substances 5.06 For paragraph 709(f) of the Act, an inspector must not take a sample of goods or a substance until the inspector has informed: (a) the owner; or (b) another person in charge of the goods or substances; or (c) a representative of the owner or other person; of the inspector’s intention to take the sample.

[page 1195]

CHAPTER 6 — MISCELLANEOUS PART 6-2 — DEALING WITH DISPUTES DIVISION 2 — DEALING WITH DISPUTES Subdivision A — Model term about dealing with disputes

[10-2720]

Model term about dealing with disputes

6.01 For section 737 of the Act, the model term for dealing with disputes for enterprise agreements is set out in Schedule 6.1.

PART 6-3 — EXTENSION OF NATIONAL EMPLOYMENT STANDARDS ENTITLEMENTS DIVISION 2 — EXTENSION OF ENTITLEMENT TO UNPAID PARENTAL LEAVE AND RELATED ENTITLEMENTS

[10-2825] Modification of meaning of base rate of pay for pieceworkers (non-national system employees) 6.02 (1) For section 16 of the Act, as modified by section 749 of the Act, this regulation provides for the determination of the base rate of pay for the purposes of the extended parental leave provisions for a non-national system employee who is a pieceworker. Note 1: Section 749 of the Act modifies section 16 of the Act by giving it effect as if a paragraph 16(2) (d) were added. Note 2: The Act defines pieceworker in section 21. The effect of section 21 is modified for a non-

national system employees by section 754 of the Act.

(2) The base rate of pay, expressed as an hourly rate of pay, is the rate provided in, or calculated in accordance with, a State industrial instrument that applies to the employee. (3) If there is no rate provided in, or calculated in accordance with, a State industrial instrument that applies to the employee, the base rate of pay, expressed as an hourly rate of pay, is worked out using the formula:

where: TA is the total amount earned by the employee during the relevant period. TH is the total hours worked by the employee during the relevant period. the relevant period is: (a) for an employee who was continuously employed by the employer for a period of 12 months or more immediately before the base rate of pay is to be worked out — the 12 months before the rate is to be worked out; or [page 1196] (b) for an employee who was continuously employed by the employer for a period less than 12 months immediately before the base rate of pay is to be worked out — that period.

[10-2830]

Meaning of pieceworker

6.03 (1) For section 21 of the Act, as modified by section 754 of the Act, this regulation prescribes a class of non-national system employees as pieceworkers. Note: Section 754 of the Act modifies section 21 by giving it effect as if a paragraph 21(1)(d) were added. Under the new paragraph 21(1)(d), a pieceworker is a non-national system employee who is in a class of employees prescribed by the regulations as pieceworkers.

(2) The class is non-national system employees who:

(a) are paid a rate set by reference to a quantifiable output or task; and (b) are not paid a rate set by reference to a period of time worked. Examples of rates set by reference to a quantifiable output or task 1 A rate of pay calculated by reference to the number of articles produced. 2 A rate of pay calculated by reference to the number of kilometres travelled. 3 A rate of pay calculated by reference to the number of articles delivered. 4 A rate of pay calculated by reference to the number of articles sold. 5 A rate of pay calculated by reference to the number of tasks performed.

PART 6-3A — TRANSFER OF BUSINESS FROM STATE PUBLIC SECTOR EMPLOYER [Pt 6-3A insrt SLI 322 of 2012 s 3 and Sch 1[1], opn 12 Dec 2012]

[10-2850] FWA orders about coverage for employee organisations 6.03A For paragraph 768BB(3)(a) of the Act, a circumstance in which FWA may make an order mentioned in subsection 768BB(1) of the Act is that the order is to be made: (a) on FWA’s own initiative; or (b) on application to FWA by a transferring employee, or a person who is likely to be a transferring employee; or (c) on application to FWA by the new employer, or a person who is likely to be the new employer; or (d) on application to FWA by an employee organisation that is entitled to represent the industrial interests of an employee mentioned in paragraph (b).

[10-2855] Model term for dealing with disputes about matters arising under a copied State instrument 6.03B For section 768BK of the Act, the model term for dealing with disputes about matters arising under a copied State instrument is set out in

Schedule 6.1A.

PART 6-4 — ADDITIONAL PROVISIONS RELATING TO TERMINATION OF EMPLOYMENT DIVISION 2 — TERMINATION OF EMPLOYMENT

[10-2935]

Temporary absence — illness or injury

6.04 (1) For paragraph 772(1)(a) of the Act, this regulation prescribes kinds of illness or injury. Note: Under section 772 of the Act, an employer must not terminate an employee’s employment because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

[page 1197] (2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within: (a) 24 hours after the commencement of the absence; or (b) such longer period as is reasonable in the circumstances. Note: The Act defines medical certificate in section 12.

(3) A prescribed kind of illness or injury exists if the employee: (a) is required by the terms of a workplace instrument: (i) to notify the employer of an absence from work; and (ii) to substantiate the reason for the absence; and (b) complies with those terms. (4) An illness or injury is not a prescribed kind of illness or injury if: (a) either: (i) the employee’s absence extends for more than 3 months; or

(ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and (b) the employee is not on paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence. [subreg (4) am SLI 300 of 2009 r 3 and Sch 1, opn 14 Nov 2009]

(5) In this regulation, a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation.

[10-2940]

Application fees

6.05 (1) For subsection 775(2) of the Act, this regulation sets out matters relating to a fee for making an application to the FWC under section 773 of the Act. [subreg (1) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(2) Fee at commencement of Regulations If the application is made in the financial year starting on 1 July 2009, the fee is $59.50. (3) Method for indexing the fee If the application is made in a financial year starting on 1 July 2010, or 1 July in a later year (the application year), the amount of the fee is to be worked out as follows: (a) identify the amount of the fee for an application made in the previous financial year; (b) multiply it by the indexation factor for the application year (see subregulation (4)); (c) round the result to the nearest multiple of 10 cents, rounding up if the result is 5 cents. (4) The indexation factor for the application year is worked out using the following formula, and then rounded under subregulation (5):

where: [page 1198] index number, for a quarter, means the All Groups Consumer Price Index Number (being the weighted average of the 8 capital cities) published by the Australian Statistician for that quarter. most recent March year means the period of 12 months ending on 31 March in the financial year that occurred immediately before the application year. previous March year means the period of 12 months immediately preceding the most recent March year. quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December. (5) The result under subregulation (4) must be rounded up or down to 3 decimal places, rounding up if the result is 0.0005. (6) A calculation under subregulation (4): (a) is to be made using the index numbers published in terms of the most recently published reference base for the Consumer Price Index; and (b) is to be made disregarding index numbers that are published in substitution for previously published index numbers (unless the substituted numbers are published to take account of changes in the reference base). (7) No fee — hardship If the FWC is satisfied that the person making an application will suffer serious hardship if the person is required to pay the fee, no fee is payable for making the application. [subreg (7) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(8) Refund of fee — discontinuing application The FWC must repay to the person an amount equal to the fee if: (a) the fee has been paid; and (b) the application is subsequently discontinued as mentioned in section 588 of the Act; and

(c) either: (i) at the time the application is discontinued, the application has not yet been listed for conducting a conference; or (ii) if the application has, at or before that time, been listed for conducting a conference on a specified date or dates — the discontinuance occurs at least 2 days before that date or the earlier of those dates. [subreg (8) am SLI 321 of 2012 s 3 and Sch 1[28], opn 1 Jan 2013] COMMENTARY TO REGULATION 6.05

Outline of regulation ….

[10-2940.10]

[10-2940.10] Outline of regulation This regulation comprises the mechanical provisions by which the fees for applications to the Fair Work Commission for dealing with disputes about the termination of an employee’s employment, where the employee is entitled to be represented by a union, are set and indexed from year to year.

____________________

[10-2945]

Schedule of costs

6.06 (1) For section 780 of the Act, the schedule of costs set out in Schedule 3.1 is prescribed. (2) In awarding costs: (a) the FWC is not limited to the items of expenditure mentioned in Schedule 3.1; but [page 1199] (b) if an item of expenditure is mentioned in Schedule 3.1, the FWC must not award costs for that item at a rate or of an amount in excess of the rate or amount mentioned in Schedule 3.1 for that item. Note: An application for an order for costs must be made in accordance with the procedural rules. [subreg (2) am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

(3) A bill of costs must identify, by an item number, each cost and disbursement claimed.

(4) In Schedule 3.1: folio means 72 words. Note: There are generally 3 folios to a page. COMMENTARY TO REGULATION 6.06

Outline of regulation ….

[10-2945.10]

[10-2945.10] Outline of regulation This regulation comprises the mechanical provisions by which costs orders are to be calculated in relation to disputes brought pursuant to s 773 of the FW Act.

____________________

DIVISION 3 — NOTIFICATION AND CONSULTATION REQUIREMENTS RELATING TO CERTAIN TERMINATIONS OF EMPLOYMENT Subdivision B — Requirement to notify Centrelink

[10-2970] Employer to notify Centrelink of certain proposed terminations — form of notice 6.07 For subsection 785(2) of the Act, the form of a notice to Centrelink of a proposed termination under subsection 785(1) is set out in Form 1 of Schedule 6.2.

Part 6-4B — WORKERS BULLIED AT WORK [Pt 6–4B insrt SLI 263 of 2013 s 4 and Sch 1[1], opn 1 Jan 2014]

DIVISION 2 — STOPPING WORKERS BEING BULLIED AT WORK

[10-2975]

Application fees

6.07A (1) For subsection 789FC(4) of the Act, this regulation sets out matters relating to a fee for making an application to the FWC under subsection 789FC(1) of the Act.

(2) Fee at commencement of this regulation If an application is made on or after 1 January 2014 but before 1 July 2014, the fee is $65.50. [page 1200] (3) Method for indexing the fee If an application is made in a financial year starting on or after 1 July 2014 (the application year), the amount of the fee is to be worked out as follows: (a) identify the amount of the fee for an application made in the later of: (i) the year commencing on 1 January 2014; and (ii) the previous financial year; (b) multiply it by the indexation factor for the application year (see subregulation (4)); (c) round the result to the nearest multiple of 10 cents, rounding up if the result ends in 5 cents. (4) The indexation factor for the application year is worked out using the following formula, and then rounded under subregulation (5):

where: index number, for a quarter, means the All Groups Consumer Price Index Number (being the weighted average of the 8 capital cities) published by the Australian Statistician for that quarter. most recent March year means the period of 12 months ending on 31 March in the financial year that occurred immediately before the application year. previous March year means the period of 12 months immediately preceding the most recent March year. quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.

(5) The result under subregulation (4) must be rounded up or down to 3 decimal places, rounding up if the result ends in 0.0005. (6) A calculation under subregulation (4): (a) is to be made using the index numbers published in terms of the most recently published index reference for the Consumer Price Index; and (b) is to be made disregarding index numbers that are published in substitution for previously published index numbers (unless the substituted numbers are published to take account of changes in the index reference). (7) No fee — hardship If the FWC is satisfied that the person making an application will suffer serious hardship if the person is required to pay the fee, no fee is payable for making the application. (8) Refund of fee — discontinuing application The FWC must repay to the person an amount equal to the fee if: (a) the fee has been paid; and (b) the application is subsequently discontinued as mentioned in section 588 of the Act; and (c) at the time the application is discontinued, the application has not yet been listed for conducting a conference or hearing. [page 1201]

PART 6-5 — MISCELLANEOUS DIVISION 2 — MISCELLANEOUS Subdivision 1 — Employment matters

[10-3075] Public sector employer to act through employing authority — meaning of public sector

employment 6.08 (1) Employment or service that is public sector employment For paragraph 795(4)(h) of the Act, each of the following laws is prescribed: (aa) the Australian Civilian Corps Act 2011; (a) the Australian Federal Police Act 1979; (b) the Governor-General Act 1974; (c) the Naval Defence Act 1910; (d) the Members of Parliament (Staff) Act 1984. [subreg (1) am SLI 91 of 2011 reg 3 and Sch 1[2], opn 22 June 2011]

(2) Employment or service that is not public sector employment For paragraph 795(5)(a) of the Act, a member of the Defence Force is prescribed. (3) For paragraph 795(5)(a) of the Act, a member of the Police Force of the Northern Territory is prescribed. (4) For paragraph 795(5)(a) of the Act, a person who: (a) holds an office established under a law of the Commonwealth or of a Territory; but (b) is not a person who, otherwise than in his or her capacity as the holder of that office, is employed or serves in a capacity described in paragraphs 795(4)(a) to (h) of the Act; is prescribed. Example: An APS employee who also holds a part-time statutory office, or who is granted leave without pay from his or her APS employment in order to take up a full-time statutory office.

(5) For paragraph 795(5)(b) of the Act, the Prisons (Correctional Services) Act of the Northern Territory is prescribed. COMMENTARY TO REGULATION 6.08

Outline of regulation ….

[10-3075.10]

[10-3075.10] Outline of regulation This regulation specifies the various State and Territory laws that are not otherwise identified in s 795(4) of the FW Act, as arise from time to time, and give rise to public sector employment and which are intended to be bound by s 795(1) of the FW Act.

____________________

[10-3080] Public sector employer to act through employing authority — meaning of employing authority 6.09 For subsection 795(6) of the Act, the employing authority of a person mentioned in an item of Schedule 6.3 is: (a) the person or body mentioned in the item as the employing authority; or (b) each person or body mentioned in the item as the employing authority. [page 1202]

[10-3085] cases

No action for defamation in certain

6.10 (1) No action or proceeding, civil or criminal, for defamation lies against the Commonwealth or an electoral official conducting, on behalf of the Australian Electoral Commission, a protected action ballot under the Act in relation to the printing or issuing of a document or other material by the electoral official. (2) If the document or other material mentioned in subregulation (1) is printed by another person, no action or proceeding, civil or criminal, for defamation lies against that person in relation to the printing.

[page 1203]

[10-3105]

SCHEDULE 2.1 — NOTICE OF EMPLOYEE REPRESENTATIONAL RIGHTS (regulation 2.05)

[Sch 2.1 am SLI 321 of 2012 s 3 and Sch 1[24], opn 1 Jan 2013]

Fair Work Act 2009, subsection 174(6) [Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage]. What is an enterprise agreement? An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Commission. If you are an employee who would be covered by the proposed agreement: You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Commission about bargaining for the agreement. You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer. [If the agreement is not an agreement for which a low-paid authorisation applies — include:] If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your

union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative. [If a low-paid authorisation applies to the agreement — include:] Fair Work Commission has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union’s status as your representative, or you are a member of another union that also applied for the authorisation. [if the employee is covered by an individual agreement-based transitional instrument — include:] If you are an employee covered by an individual agreement: If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if: the nominal expiry date of your existing agreement has passed; or a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate). [page 1204] Questions? If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to www.fairwork.gov.au, or contact the Fair Work Commission Infoline on [insert number].

[page 1205]

[10-3110]

SCHEDULE 2.2 — MODEL FLEXIBILITY TERM (regulation 2.08)

Model flexibility term (1) An employer and employee covered by this enterprise agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the agreement if: (a) the agreement deals with 1 or more of the following matters: (i) arrangements about when work is performed; (ii) overtime rates; (iii) penalty rates; (iv) allowances; (v) leave loading; and (b) the arrangement meets the genuine needs of the employer and employee in relation to 1 or more of the matters mentioned in paragraph (a); and (c) the arrangement is genuinely agreed to by the employer and employee. (2) The employer must ensure that the terms of the individual flexibility arrangement: (a) are about permitted matters under section 172 of the Fair Work Act 2009; and (b) are not unlawful terms under section 194 of the Fair Work Act 2009; and (c) result in the employee being better off overall than the employee would be if no arrangement was made. (3) The employer must ensure that the individual flexibility arrangement:

(a) is in writing; and (b) includes the name of the employer and employee; and (c) is signed by the employer and employee and if the employee is under 18 years of age, signed by a parent or guardian of the employee; and (d) includes details of: (i) the terms of the enterprise agreement that will be varied by the arrangement; and (ii) how the arrangement will vary the effect of the terms; and (iii) how the employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and (e) states the day on which the arrangement commences. (4) The employer must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to. (5) The employer or employee may terminate the individual flexibility arrangement: (a) by giving no more than 28 days written notice to the other party to the arrangement; or (b) if the employer and employee agree in writing — at any time.

[page 1206]

[10-3115]

SCHEDULE 2.3 — MODEL CONSULTATION TERM (regulation 2.09)

[Sch 2.3 am SLI 139 of 2013 s 4 and Sch 2 item 1, opn 1 Jan 2014]

Model consultation term (1) This term applies if the employer: (a) has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or (b) proposes to introduce a change to the regular roster or ordinary hours of work of employees. (2) Major change For a major change referred to in paragraph (1)(a): (a) the employer must notify the relevant employees of the decision to introduce the major change; and (b) subclauses (3) to (9) apply. (3) The relevant employees may appoint a representative for the purposes of the procedures in this term. (4) If: (a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and (b) the employee or employees advise the employer of the identity of the representative; the employer must recognise the representative. (5) As soon as practicable after making its decision, the employer must: (a) discuss with the relevant employees: (i) the introduction of the change; and

(ii) the effect the change is likely to have on the employees; and (iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and (b) for the purposes of the discussion — provide, in writing, to the relevant employees: (i) all relevant information about the change including the nature of the change proposed; and (ii) information about the expected effects of the change on the employees; and (iii) any other matters likely to affect the employees. (6) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees. (7) The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees. (8) If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in paragraph (2)(a) and subclauses (3) and (5) are taken not to apply. [page 1207] (9) In this term, a major change is likely to have a significant effect on employees if it results in: (a) the termination of the employment of employees; or (b) major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or (c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or (d) the alteration of hours of work; or (e) the need to retrain employees; or (f) the need to relocate employees to another workplace; or (g) the restructuring of jobs.

(10) Change to regular roster or ordinary hours of work For a change referred to in paragraph (1)(b): (a) the employer must notify the relevant employees of the proposed change; and (b) subclauses (11) to (15) apply. (11) The relevant employees may appoint a representative for the purposes of the procedures in this term. (12) If: (a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and (b) the employee or employees advise the employer of the identity of the representative; the employer must recognise the representative. (13) As soon as practicable after proposing to introduce the change, the employer must: (a) discuss with the relevant employees the introduction of the change; and (b) for the purposes of the discussion — provide to the relevant employees: (i) all relevant information about the change, including the nature of the change; and (ii) information about what the employer reasonably believes will be the effects of the change on the employees; and (iii) information about any other matters that the employer reasonably believes are likely to affect the employees; and (c) invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities). (14) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees. (15) The employer must give prompt and genuine consideration to matters raised about the change by the relevant employees. (16) In this term:

relevant employees means the employees who may be affected by a change referred to in subclause (1).

[page 1208]

[10-3120]

SCHEDULE 3.1 — SCHEDULE OF COSTS (subregulations 3.04(1), 3.08(1) and 6.06(1))

PART 1 — INSTRUCTIONS [Pt 1 am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

Item

Matter for which charge may be made Instructing to make or oppose an application under sections 365 and 372 of Part 3-1, section 394 of Part 3-2 and section 773 of Part 6-4 of the Act Instructing to make or oppose any other proceeding relating to an application under sections 365 and 372 of Part 3-1, section 394 of Part 3-2 and section 773 of Part 6-4 of the Act Instructing for a case for opinion of counsel, or for counsel to advise (including attendance on counsel with brief)

Charge

104

Instructing for a necessary document in response to directions given by the FWC

Either: (a) $125; or (b) at the discretion of the FWC

105

Instructing for brief to counsel or An amount that the FWC

101

102

103

Either: (a) $210; or (b) at the discretion of the FWC Either: (a) $210; or (b) at the discretion of the FWC Either: (a) $91; or (b) at the discretion of the FWC

brief notes for solicitor (if necessary) 106

considers appropriate having regard to all the circumstances of the case Instructing for a necessary An amount that the FWC document not otherwise provided considers appropriate having for in this Part regard to all the circumstances of the case

PART 2 — DOCUMENTS [Pt 2 am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

Item 201

202

203

204

205

Matter for which charge may be made A notice of appearance, including copies, filing and service by respondent An application or notice of motion, including copies to file and serve, and attendance to file

Charge $115

The sum of: (a) for the first 3 folios — $93; and (b) for each additional folio — $6

A necessary document prepared $74 in response to directions given by the FWC, including copies to file and serve, and attendance to file A brief to counsel (including a The sum of: brief to hear judgment) and (a) for the first 3 folios — attending counsel with the brief $80; and (b) for each additional folio — $7 Copy of a document to accompany a brief

The charge mentioned in item 501

[page 1209] Item 206

Matter for which charge may Charge be made A necessary summons, and $63 issuing 1 copy to serve and arranging for service

PART 3 — DRAWING Item 301

Matter for which charge may Charge be made Drawing a necessary document $8 per folio not covered by Part 1 or 2 of this Schedule

PART 4 — WRITING OR TYPING LEGAL LETTERS Item 401

Matter for which charge may be made Writing or typing a legal letter

Charge $4 per folio

PART 5 — COPIES [Pt 5 am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

Item 501

Matter for which charge may Charge be made Copy of a document, including a Either: carbon, photographic or machine- (a) $2 per page; or made copy (b) if allowance for 10 or more pages is claimed in respect of a document or

documents — at the discretion of the FWC

PART 6 — PERUSAL AND SCANNING [Pt 6 am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

Item 601

602

Matter for which charge may be made Perusing a document, including a special letter (for example, a letter from counsel that includes an opinion)

Charge Either: (a) if paragraph (b) does not apply: (i) for a document that contains up to 3 folios — $16; or (ii) for a document that contains more than 3 folios — $4 per folio; or (b) if allowance for 30 or more folios is claimed for a document — at the discretion of the FWC

Scanning a document, if it is not Either: necessary to peruse the document (a) $6 per page; or (b) if allowance for 10 or more pages is claimed in respect of any document or documents — at the discretion of the FWC

[page 1210]

PART 7 — EXAMINATION

Item 701

Matter for which charge may be made Examining a document, if it is not necessary to peruse or scan the document (for example, an examination of an appeal book): (a) by a solicitor (b) by a clerk

Charge

$74 per half hour $16 per half hour

PART 8 — LETTERS [Pt 8 am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

Item 801

802 803 804

Matter for which charge may be made Short letter (for example, a formal acknowledgment, a letter comprising 1 page or a letter concisely dealing with a subject) Ordinary letter, including letter between principal and agent Circular letter (for example, a letter sent to more than 1 party) Special letter (for example, a letter from counsel that includes an opinion)

Charge $12

$24 $7 for each letter (after the first) Either: (a) $50; or (b) an amount that the FWC considers reasonable having regard to the length of the letter, the questions involved and appropriate items and charges in this Schedule

805

Fax copy including attendance to Either: dispatch (a) $63; or (b) an amount that the FWC considers reasonable in the circumstances

806

Receiving and filing an incoming $7 letter

PART 9 — SERVICE [Pt 9 am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

Item

Matter for which charge may

Charge

901

902

be made Personal service of any document of which personal service is required (other than service that may be claimed under another item of this Schedule)

Service of a document at the office of the address for service, either by delivery or by post

Either: (a) $62; or (b) an amount that the FWC considers reasonable having regard to time occupied, distance travelled and other relevant circumstances $16

[page 1211]

PART 10 — PREPARATION OF APPEAL BOOKS [Pt 10 am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

Item 1001

Matter for which charge may Charge be made Preparation of appeal books, if some of the work is done outside the solicitor’s office (for example, attendance on the printer for printing or collating documents, or general oversight of the preparation of the appeal books), and the FWC is satisfied that the work or general oversight has been done efficiently: (a) for work done or overseen by $135 per hour a solicitor (b) for work done or overseen by $34 per hour a clerk

1002

Preparation of appeal books, if the work is done entirely within the solicitor’s office

An amount that the FWC considers appropriate, having regard to the charges for the material used

PART 11 — ATTENDANCES [Pt 11 am SLI 321 of 2012 s 3 and Sch 1[20], [21], [27], opn 1 Jan 2013]

Item 1101

1102

Matter for which charge may Charge be made An attendance that is capable of $34 being made by a clerk, such as at the FWC registry An attendance that requires the attendance of a solicitor or managing clerk (or other equally suitably qualified person) and involves the exercise of skill or legal knowledge (including an attendance to inspect or negotiate): (a) by a solicitor $60 per quarter hour (b) by a managing clerk or other $13 per quarter hour equally suitably qualified person

1103

1104

1105

1106

An attendance for which no other provision is made in this Schedule An attendance by telephone that does not involve the exercise of skill or legal knowledge An attendance on counsel in person with brief or papers (if not otherwise provided for in this Schedule) An attendance on counsel in

$56

$11

$35

$35

1107

person to set a time, date and place for a conference or consultation An attendance on counsel by telephone to set a time, date and place for a conference or consultation

$11

[page 1212] Item 1108

1109

Matter for which charge may be made A necessary conference or consultation with counsel

Charge Either: (a) for a conference of up to half an hour — $93; or (b) for a conference of more than half an hour — $135 for each hour or part of an hour

An attendance at the FWC, an FWC conference or chambers for hearing with counsel (where the FWC considers such attendance is necessary): (a) for attendance by a solicitor

$221 for each hour or part of an hour of the attendance: (a) during the hearing; and (b) when likely to be heard, but not heard; up to a maximum of $1 005 per day

(b) for attendance by a managing $93 for each hour, up to a clerk or other equally suitably maximum of $409 per day qualified person in place of a

solicitor

1110 1111

1112

(c) for attendance by any other clerk or person in place of a solicitor

$49 for each hour, up to a maximum of $218 per day

An attendance to hear judgment An attendance on taxation of costs:

$62

(a) if a solicitor attends

$135 for each hour or part of an hour

(b) if a clerk attends

$34 for each hour or part of an hour

An attendance by a solicitor at the FWC or chambers for the hearing of an application or appeal, or In conference with counsel, at a distance of more than 50 kilometres from his or her place of business, if it is neither appropriate nor proper for an agent to attend

The FWC may allow an amount that the FWC considers reasonable, not exceeding $ 309, for each day of absence from the place of business (except a Saturday, Sunday or public holiday

PART 12 — GENERAL CARE AND CONDUCT [Pt 12 am SLI 321 of 2012 s 3 and Sch 1[22], opn 1 Jan 2013]

Item 1201

Matter for which charge may be made If the case or circumstances warrant it, an allowance may be claimed under this item in addition to any other item that appears in this Schedule, for general care and conduct in relation to the following:

Charge The FWC may allow an amount the FWC considers reasonable in the circumstances of the case

[page 1213] Item

Matter for which charge may be made

Charge

(a) the complexity of the matter and the difficulty and novelty of questions raised; (b) the importance of the matter to the party and the amount involved; (c) the skill, labour, specialised knowledge and responsibility involved in the matter on the part of the solicitor; (d) the number and importance of the documents prepared or perused, without regard to length; (e) the time taken by the solicitor; (f) research and consideration of questions of law and fact

PART 13 — FEES FOR COUNSEL FOR SOLICITOR APPEARING AS COUNSEL [Pt 13 am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

Item 1301

1302

Matter for which charge may be made For counsel’s fees incurred by a solicitor Note The fees incurred may be claimed as a disbursement. For solicitor’s fees if a solicitor

Charge An amount that the FWC considers to be fair and reasonable according to the circumstances of the case and the seniority of counsel An amount that the FWC

appears as counsel (or briefs another solicitor as counsel) when it would be appropriate to brief counsel

considers to be fair and reasonable according to the circumstances of the case and the seniority of the solicitor

PART 14 — WITNESSES’ EXPENSES [Pt 14 am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

Item 1401

1402

Matter for which charge may be made For the attendance of a witness who is called because of his or her professional, scientific or other special skill or knowledge For the attendance of a witness, other than a witness covered in item 1401:

Charge $161 to $801 per day

(a) who is not remunerated in his $93 to $149 per day or her occupation by wages, salary or fees

1403

(b) who is remunerated in his or her occupation by wages, salary or fees

The amount lost by attendance at the FWC

For travel expenses for a witness who lives more than 50 kilometres from the FWC (in addition to a charge under item 1401 or 1402)

An amount that the FWC considers reasonable for the actual cost of travel, plus a reasonable amount for meals and accommodation [page 1214]

PART 15 — DISBURSEMENTS [Pt 15 am SLI 321 of 2012 s 3 and Sch 1[27], opn 1 Jan 2013]

Item 1501

1502

1503

Matter for which charge may be made Registry fee or other fee or payment

Charge

The amount of the fee or payment to the extent to which it has been properly and reasonably incurred and paid Travelling expenses, if a solicitor An amount that the FWC attends at the FWC or chambers, considers reasonable for or on conference with counsel, in travelling expenses, to the the circumstances mentioned in extent to which they have item 1109 been reasonably incurred and paid Postage and transmission The amount of the expenses expenses in relation to a matter to the extent that it has been mentioned in Part 8 properly and reasonably incurred and paid

[page 1215]

[10-3125] SCHEDULE 3.2 — BALLOT PAPERS (regulation 3.16)

[103135]

Form 1 BALLOT PAPER UNDER PART 3 OF CHAPTER 3 (regulation 3.16)

[Form 1 am SLI 321 of 2012 s 3 and Sch 1[24], opn 1 Jan 2013]

Fair Work Act 2009, Chapter 3, Part 3.3, Division 8 BALLOT OF MEMBERS OF (Name of organisation) (Initials, or facsimile of initials, of the person conducting the ballot) BALLOT PAPER IN RESPECT OF PROTECTED ACTION BALLOT CLOSING DATE OF BALLOT: (Date) The proposed protected industrial action to which this ballot applies is [description]. DIRECTIONS TO VOTERS 1. Record your vote on the ballot paper as follows: if you approve the proposed protected industrial action, mark the YES box opposite the question; if you do not approve the proposed protected industrial action, mark the NO box opposite the question.

2.

Do not place on this paper any mark or writing that may identify you.

QUESTION(S) FOR VOTERS

(Text of question or questions as ordered by Fair Work Commission)

YES NO

INFORMATION FOR VOTERS 1. The applicant(s) for the protected action ballot order is or are [name(s)]. 1 1. The agent of the applicant(s) for the protected action ballot order is [name]. 1 2. The employees who are to be balloted are [description]. 1 1

3.

omit if inapplicable

The protected action ballot agent authorised to conduct the ballot is [name]. YOUR VOTE IS SECRET, AND YOU ARE FREE TO CHOOSE WHETHER OR NOT TO SUPPORT THE PROPOSED INDUSTRIAL ACTION.

[page 1216]

[10-3150]

SCHEDULE 3.3 — FORMS RELATING TO ENTRY TO PREMISES (regulation 3.26)

[103160]

Form 1 ENTRY PERMIT TO ENTER PREMISES (regulation 3.26)

[Form 1 am SLI 321 of 2012 s 3 and Sch 1[24], opn 1 Jan 2013]

Fair Work Regulations 2009, regulation 3.26 ENTRY PERMIT TO ENTER PREMISES This entry permit is issued to [name], of [name of organisation] under section 512 of the Fair Work Act 2009. The permit holder is entitled, while the permit is in force, to exercise the powers and functions given to the permit holder by Part 3-4 of the Fair Work Act 2009. This permit expires at the end of 3 years beginning on the day it is issued, unless the period is extended under subsection 516(2) of the Fair Work Act 2009, or the permit holder ceases to be an official of the organisation, or the permit is revoked. Dated 20 Delegate of Fair Work Commission Note: This permit must be returned to Fair Work Commission within 7 days after it is revoked or suspended, conditions are imposed on it after it was issued, or it expires.

[103165]

Form 2 ENTRY NOTICE (regulation 3.27)

Fair Work Regulations 2009, regulation 3.27 ENTRY NOTICE I, [full name], of [name of organisation], and having been issued an entry permit under section 512 of the Fair Work Act 2009, give notice that I propose to enter [name and address of premises] on [date of proposed entry]. Delete each block of text below which is not appropriate The suspected contravention, or contraventions, to which this notice relates are: [particulars of the suspected contravention or contraventions]. As the entry is authorised by section 481 of the Fair Work Act 2009 (which deals with entry to investigate suspected contraventions), I declare that: [name of organisation], under [provision in organisation’s rules], is entitled to represent the industrial interests of a member who performs work at the premises mentioned above; and the suspected contravention or contraventions relate to or affect that member. [page 1217] The suspected contravention, or contraventions, to which this notice relates are: [particulars of the suspected contravention or contraventions]. As the entry is authorised by paragraph 483A(1)(a) of the Fair Work Act 2009 (which deals with entry to investigate suspected contraventions relating to TCF outworkers), I declare that: [name of organisation], under [provision in organisation’s rules], is entitled to represent the industrial interests of a TCF outworker who performs work at the premises mentioned above; and the suspected contravention or contraventions relate to or affect that TCF outworker. As the entry is authorised by paragraph 483A(1)(b) of the Fair Work Act 2009 (which deals with entry to investigate suspected contraventions of a designated outworker term), I declare that [name of organisation], under [provision in organisation’s rules], is entitled to represent the industrial interests of TCF outworkers. The suspected contravention, or contraventions, to which this notice relates are: [particulars of the suspected contravention or contraventions]. As the entry is authorised by section 483D of the Fair Work Act 2009 (which deals with entry to other

premises to investigate suspected contraventions relating to TCF outworkers), I declare that: [name of organisation], under [provision in organisation’s rules], is entitled to represent the industrial interests of a TCF outworker who performs work at the premises mentioned above; and the suspected contravention or contraventions relate to or affect that TCF outworker. As the entry is authorised by section 484 of the Fair Work Act 2009 (which deals with entry to hold discussions), I declare that [name of organisation], under [provision in organisation’s rules], is entitled to represent the industrial interests of an employee or TCF outworker who performs work on the premises mentioned above.

Given at [time] Dated

20 Signature of permit holder

[103170]

Form 3 EXEMPTION CERTIFICATES (regulation 3.28)

[Form 3 am SLI 321 of 2012 s 3 and Sch 1[24], opn 1 Jan 2013]

Fair Work Regulations 2009, regulation 3.28 EXEMPTION CERTIFICATE This certificate is issued to [name of organisation]. Section 481 of the Fair Work Act 2009 authorises entry to premises for the purpose of investigating contraventions, or suspected contraventions, of the Fair Work Act 2009, or a term of a fair work instrument. The organisation issued with this certificate is exempted from the obligation to comply with the notice requirements for entry to premises under section 487 of that Act. For this certificate: [page 1218]

(a) The premises to which it relates are: [name and address of premises]

(b) The day or days on which the entry may occur are: [day or days]

(c) The suspected contravention or contraventions to which the entry relates are: [particulars of suspected contravention or contraventions]

Dated

20 Delegate of Fair Work Commission

Note: Entry to the premises must be on a day specified in this certificate.

[103175]

Form 4 AFFECTED MEMBER CERTIFICATE (regulation 3.29)

[Form 4 am SLI 321 of 2012 s 3 and Sch 1[24], opn 1 Jan 2013]

Fair Work Regulations 2009, regulation 3.29 AFFECTED MEMBER CERTIFICATE This certificate is issued to [name of organisation]. Section 520 of the Fair Work Act 2009 authorises Fair Work Commission to issue an affected member certificate if a permit holder seeks to enter premises for the purpose of investigating contraventions, or suspected contraventions, of the Fair Work Act 2009, or a term of a fair work instrument. For section 520 of the Fair Work Act 2009, Fair Work Commission is satisfied that: a member of the organisation performs work on the premises below; and the organisation is entitled to represent the industrial interests of the member; and a suspected contravention of the Fair Work Act 2009, or a term of a fair work instrument, relates to, or affects, that member.

For this certificate: (a) The premises to which it relates are: [name and address of premises] (b) The suspected contravention or contraventions to which it relates are: [particulars of suspected contravention or contraventions] Dated 20 Delegate of Fair Work Commission

[page 1219]

[10-3195]

SCHEDULE 3.4 — FORMS FOR CERTAIN DISMISSALS (regulation 3.30)

[103200]

Form 1 NOTICE TO CENTRELINK OF PROPOSED DISMISSALS (regulation 3.30)

Fair Work Act 2009, section 530 NOTICE TO CENTRELINK OF PROPOSED DISMISSALS TO: CENTRELINK I, [full name of employer or person completing notice on behalf of employer], the [position held] of [name of employer of person completing notice], give notice, under subsection 530(1) of the Fair Work Act 2009, that [name of employer] proposes to dismiss the employment of 15 or more of its employees, for the following reasons: [Set out reasons for proposed dismissals. Reasons may be of an economic, technological, structural or similar nature, or for reasons including such reasons]

The number and categories of employees likely to be affected by the proposal are: [Set out the categories and number per category]

It is intended that [name of employer] will carry out the proposed dismissals at the following time/s, or over the following period/s of time: [Provide specific dates if known, or approximate period of time]

Dated

20

__________ Signature __________ Position * Omit section reference as appropriate

[page 1220]

[10-3220] SCHEDULE 4.1 — FORM OF CLAIM FOR UNCLAIMED MONEY (regulation 4.11) Fair Work Regulations 2009, regulation 4.11 CLAIM FOR UNCLAIMED MONEY Claimant’s Details Claimant’s name Residential address Postcode Postal address (if different from above): Postcode Daytime phone no ( ) Email address (if any):

Mobile no (if any):

Details of the Claim Please provide the following details regarding your former employment and the amount the employer was required to pay to you. Name of former employer Address of former employer Date of commencing former employment Date of leaving former employment Amount claimed Please attach evidence showing that you were employed by the former employer (for example, a pay slip). Please provide any further information about the circumstances of your claim that you would like to be considered.

Payment Details Please indicate how you would like to be paid the unclaimed money (mark the appropriate box). direct debit to a particular account; or a cheque posted to the residential or postal address you provided in this form If you have selected direct debit, please provide the following: [page 1221] Account name (eg Jan and John Citizen) Name of financial institution BSB number Account number

Branch: -

Declaration/Authority I declare that the information provided in this claim form is true and correct to the best of my knowledge. I understand that making a false declaration is an offence. I authorise and direct the Fair Work Ombudsman to pay the money claimed, and any additional money the Fair Work Ombudsman may identify as belonging to me, in the way I have directed in this form (by direct deposit or cheque). Claimant’s name: Claimant’s signature:

Date

/

/

[page 1222]

[10-3240]

SCHEDULE 5.1 — OATH AND AFFIRMATION OF OFFICE (subregulation 5.03(1))

Oath

I, [name], do swear that I will bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, that I will well and truly serve Her in the office of [name of office] and that I will faithfully and impartially perform the duties of the office. So help me God! I, [name], do solemnly and sincerely promise and declare that I will bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, that I will well and truly serve Her in the office of [name of office] and that I will faithfully and impartially perform the duties of the office.

[page 1223]

[10-3260]

SCHEDULE 5.2 — INFORMATION AND COPIES OF DOCUMENTS TO BE PROVIDED TO THE MINISTER AND THE FAIR WORK OMBUDSMAN (regulation 5.04)

PART 1 — INFORMATION AND COPIES OF DOCUMENTS TO BE PROVIDED TO THE MINISTER [Pt 1 am SLI 300 of 2009 r 3 and Sch 1, opn 14 Nov 2009; SLI 321 of 2012 s 3 and Sch 1[14], [15], [27], opn 1 Jan 2013]

Item 1 1.1

1.2

This information or copy of a document … Awards The number of: (a) determinations varying modern awards; and (b) modern awards; and (c) determinations revoking modern awards; made in a quarter under section 157 of the Act

is to be provided to the Minister … as soon as practicable after the end of the quarter

The number of applications made as soon as practicable after in a quarter under section 158 of the end of the quarter the Act for: (a) the making of a determination

varying or revoking a modern award under section 157 of the Act; or (b) the making of a modern award, under section 157 of the Act 1.3

1A 1A.1

1A.2

1A.3

1A.4

The number of determinations made in a quarter under section 161 of the Act varying modern awards Modern awards The number of determinations varying modern awards made in a quarter under item 5 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 The number of determinations varying modern awards made in a quarter under item 7 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 The number of applications for take-home pay orders made in a quarter under item 9 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 The number of take-home pay orders made in a quarter under item 9 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments)

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

Act 2009

[page 1224] Item 1B 1B.1

1B.2

1B.3

1B.4

1B.5

This information or copy of a document … Modern enterprise awards The number of applications for modern enterprise awards made in a quarter under item 4 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 The number of modern enterprise awards made in a quarter under item 4 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 The number of applications for the FWC to terminate enterprise instruments made in a quarter under item 5 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 The number of terminations of enterprise instruments made in a quarter under item 5 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 The number of variations of instruments made in a quarter

is to be provided to the Minister … as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

1B.6

1B.7

1B.8

2 2.1

2.2

2.3

under item 9 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 The number of terminations of instruments made in a quarter under item 9 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 The number of applications for take-home pay orders made in a quarter under item 12 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 The number of take-home pay orders made in a quarter under item 12 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Enterprise agreements The number of applications for the approval of enterprise agreements made in a quarter under section 185 of the Act The number of applications for variations of an enterprise agreement made in a quarter under section 210 of the Act The number of applications for variations of an enterprise agreement made in a quarter under section 217 of the Act

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

[page 1225] Item 2.4

2.5

2.6

2.7

3 3.1

3.2

3.3

3.4

This information or copy of a document … The number of enterprise agreements approved in a quarter under section 186 of the Act The number of enterprise agreements approved in a quarter under section 189 of the Act The number of variations of enterprise agreements approved in a quarter under section 211 of the Act The number of variations of enterprise agreements approved in a quarter under section 217 of the Act Bargaining orders The number of applications for bargaining orders made in a quarter under section 229 of the Act The number of applications for serious breach declarations made in a quarter under section 234 of the Act The number of applications for majority support determinations made in a quarter under section 236 of the Act The number of applications for scope orders made in a quarter under section 238 of the Act

is to be provided to the Minister … as soon as practicable after the end of the quarter as soon as practicable after the end of the quarter as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

3.5

3.6

3.7

3.8

3.9

3.10

4 4.1

4.2

4.3

5 5.1

The number of applications for the FWC to deal with disputes made in a quarter under section 240 of the Act The number of bargaining orders made in a quarter under section 230 of the Act The number of serious breach declarations made in a quarter under section 235 of the Act The number of majority support determinations made in a quarter under section 237 of the Act The number of scope orders made in a quarter under section 238 of the Act The number of decisions to deal with a dispute made in a quarter under section 240 of the Act Low-paid bargaining The number of applications made for low-paid authorisations in a quarter under section 242 of the Act The number of low-paid authorisations made in a quarter under section 243 of the Act The number of low-paid authorisations varied in a quarter under section 244 of the Act Single interest employer authorisations The number of applications for single interest employer authorisations made in a quarter under section 248 of the Act

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter as soon as practicable after the end of the quarter as soon as practicable after the end of the quarter as soon as practicable after the end of the quarter as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

[page 1226] Item 5.2

5.3

5.4

5.5

5.6

6 6.1

This information or copy of a document … The number of applications for variations of single interest employer authorisations to remove the employer’s name from the authorisation made in a quarter under section 251 of the Act The number of applications for variations of single interest employer authorisations to extend the period for which the authorisation is in operation made in a quarter under section 252 of the Act The number of single interest employer authorisations made in a quarter under section 249 of the Act The number of single interest employer authorisations varied to remove the employer’s name from the authorisation in a quarter under section 251 of the Act The number of single interest employer authorisations varied to extend the period for which the authorisation is in operation in a quarter under section 252 of the Act Workplace determinations The number of applications for

is to be provided to the Minister … as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after

6.2

6.3

6.4

6.5

6.6

7 7.1

8 8.1

consent low-paid determinations made in a quarter under section 260 of the Act The number of applications made for special low-paid workplace determinations in a quarter under section 260 of the Act The number of consent low-paid determinations made in a quarter under section 261 of the Act The number of special low-paid workplace determinations made in a quarter under section 262 of the Act The number of industrial action related workplace determinations made in a quarter under section 266 of the Act The number of bargaining related workplace determinations made in a quarter under section 269 of the Act Equal remuneration orders The number of equal remuneration orders made in a quarter under section 302 of the Act Transfer of business The number of applications for orders relating to instruments covering a new employer and transferring employees made in a quarter under section 318 of the Act

the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

[page 1227]

Item 8.2

8.3

8.4

8.5

8.6

9 9.1

9.2

This information or copy of a document … The number of applications for orders relating to instruments covering a new employer and non-transferring employees made in a quarter under section 319 of the Act The number of applications for variations of a transferable instrument made in a quarter under section 320 of the Act The number of orders made in a quarter under section 318 of the Act relating to instruments covering a new employer and transferring employees The number of orders made in a quarter under section 319 of the Act relating to instruments covering a new employer and non-transferring employees The number of variations of transferable instruments made in a quarter under section 320 of the Act General protections — compliance The number of applications for the FWC to deal with disputes made in a quarter under section 365 of the Act The number of applications for the FWC to deal with disputes made in a quarter under section

is to be provided to the Minister … as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

9.3

10 10.1

10.2

372 of the Act The number of certificates issued in a quarter under section 369 of the Act to the effect that the FWC is satisfied that all reasonable attempts to resolve a dispute have been, or are likely to be, unsuccessful Unfair dismissal The number of applications for orders granting a remedy made in a quarter under section 394 of the Act For applications for an order granting a remedy dealt with in a quarter under section 394 of the Act: (a) the number of applications in relation to which the dismissal was found to be unfair, including: (i) the number of orders made in the quarter under section 391 of the Act for a person’s reinstatement; and (ii) the number of orders made in the quarter under section 392 of the Act for the payment of compensation to a person; and

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

[page 1228] Item

This information or copy of a document … (b) the number of applications

is to be provided to the Minister …

that related to a small business employer; and (c) the number of applications dismissed because dismissal was found to be fair; and (ca) the number of applications dismissed in a quarter under section 399A of the Act; and (d) the number of claims dismissed because the dismissal was consistent with the Small Business Fair Dismissal Code; and (e) the number of claims dismissed because the dismissal was a case of genuine redundancy; and (f) the number of cases dismissed for want of jurisdiction; and (g) the number of cases settled without a decision being made; and (h) the time from the date of the application to the date of judgement; and (i) the number of cases settled by the conduct of 1 or more conferences; and (j) the number of cases settled by hearing 10.3

The number of applications for as soon as practicable after the FWC to deal with disputes for the end of the quarter which the FWC had allowed a

10.4

10.5

11 11.1

11.2

11.3

11.4

further period for the application to be made that were made in a quarter under section 394 of the Act The number of orders for costs against a lawyer or a paid agent made in a quarter under section 401 of the Act The number of costs orders made against a party to a matter in a quarter under section 400A of the Act Protected action ballots and industrial action The number of applications to vary protected ballot orders made in a quarter under section 447 of the Act The number of applications to revoke protected ballot orders made in a quarter under section 448 of the Act The number of applications to extend periods in which industrial action is authorised made in a quarter under section 459 of the Act The number of applications for orders varying the proportion by which an employee’s payments are reduced made in a quarter under section 472 of the Act

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

[page 1229]

Item 11.5

11.7

11.8

12 12.1

12.2

12.3

12.4

This information or copy of a document … The number of orders made in a quarter under section 447 of the Act to vary a protected ballot order The number of extensions made in a quarter under section 459 of the Act to extend a period in which industrial action is authorised The number of orders made in a quarter under section 472 of the Act varying the proportion by which an employee’s payments are reduced Right of entry The number of applications for orders relating to access to nonmember records made in a quarter under section 483AA of the Act The number of applications for orders relating to a dispute about the operation of Part 3-4 of the Act made in a quarter under section 505 of the Act The number of orders relating to access to non-member records made in a quarter under section 483AA of the Act The number of orders relating to a dispute about the operation of Part 3-4 of the Act made in a quarter under section 505 of the Act

is to be provided to the Minister … as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

12.5

12.6

12.7

12.8

12.9

12.10

12.11

12.12

12.13

13

The number of actions restricting the rights that are exercisable under Part 3-4 of the Act by an organisation, or officials of an organisation taken in a quarter under section 508 of the Act The number of entry permits revoked in a quarter under section 510 of the Act The number of entry permits suspended in a quarter under section 510 of the Act The number of applications for entry permits made in a quarter under section 512 of the Act The number of applications for exemption certificates made in a quarter under section 519 of the Act The number of applications for affected member certificates made in a quarter under section 520 of the Act The number of entry permits issued in a quarter under section 512 of the Act The number of exemption certificates issued in a quarter under section 519 of the Act The number of affected member certificates issued in a quarter under section 520 of the Act Miscellaneous — disputes

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter as soon as practicable after the end of the quarter as soon as practicable after the end of the quarter as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter as soon as practicable after the end of the quarter as soon as practicable after the end of the quarter

[page 1230]

Item 13.1

13.2

13.3

13A 13A.1

13A.2

This information or copy of a document … The number of applications for the FWC to deal with disputes in relation to a refusal by an employer to a request by an employee for flexible working arrangements made in a quarter under section 739 of the Act The number of applications for the FWC to deal with disputes made in a quarter under section 773 of the Act The number of certificates issued in a quarter under section 777 of the Act to the effect that the FWC is satisfied that all reasonable attempts to resolve a dispute have been, or are likely to be, unsuccessful Registered organisations The number of applications for registration made in a quarter under section 18A, 18B or 18C of Schedule 1 to the Fair Work (Registered Organisations) Act 2009 by: (a) an employer association; or (b) an employee association; or (c) an enterprise association

is to be provided to the Minister … as soon as practicable after the end of the quarter

The number of applications for orders made in a quarter under section 133 of Schedule 1 to the Fair Work (Registered Organisations) Act 2009

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

13A.3

13A.4

13A.5

13A.6

13A.7

13A.8

The number of orders made in a quarter under section 133 of Schedule 1 to the Fair Work (Registered Organisations) Act 2009 The number of applications for representation orders made in a quarter under section 137A of Schedule 1 to the Fair Work (Registered Organisations) Act 2009 The number of representation orders made in a quarter under section 137A of Schedule 1 to the Fair Work (Registered Organisations) Act 2009 The number of: (a) applications for recognition made in a quarter under clause 1 of Schedule 2 to the Fair Work (Registered Organisations) Act 2009; and (b) applications for orders cancelling recognition made in a quarter under clause 3 of that Schedule

as soon as practicable after the end of the quarter

The number of applications for recognition granted in a quarter under clause 1 of Schedule 2 to the Fair Work (Registered Organisations) Act 2009 The number of orders cancelling recognition made in a quarter under clause 3 of Schedule 2 to the Fair Work (Registered Organisations) Act 2009

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

[page 1231] Item 13B 13B.1

13B.2

14 14.1

14.2

14.3

This information or copy of a document … Transitional instruments The number of applications for conditional terminations made in a quarter under item 18 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 The number of conditional terminations made in a quarter under item 18 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Industrial action A list of the applications filed in a week under sections 418, 419 and 420 of the Act for orders relating to stopping industrial action, including: (a) a statement that the matter has commenced; and (b) the case numbers of the applications; and

is to be provided to the Minister …

A list of all applications filed in a week under sections 423, 424, 425 and 426 of the Act for orders suspending or terminating protected industrial action A list of all applications filed in a week under Division 8 of Part 3-

as soon as practicable after the end of the week

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the week

as soon as practicable after the end of the week

14.4

14A 14A.1

3 of the Act relating to protected action ballots For each application in a list as soon as practicable after mentioned in item 14.1, 14.2 or the end of the week 14.3: (a) a statement that the matter has commenced; and (b) the case numbers of the applications; and (c) the type of matter, identified by reference to the relevant section of the Act; and (d) the names of the parties, identifying which of the parties is the applicant and the respondent; and (e) whether the party is an individual or an organisation; and (f) for a party that is an organisation — whether the party is an employee or employer organisation; and (g) a copy of any order made in relation to the matter Transitional instruments A list of determinations made in as soon as practicable after a week under item 14 of the end of the week Schedule 9 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, including: (a) the names of the applicants; and (b) the names of the relevant

modern awards

[page 1232] Item 14A.2

15 15.1

This information or copy of a document … The number of determinations made in a week under item 14 of Schedule 9 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Enterprise agreements For an enterprise agreement that has been approved under section 186, 211 or 217 of the Act: (a) a copy of the enterprise agreement and any variation of the enterprise agreement; and (b) the title of the enterprise agreement; and (c) the number assigned to the enterprise agreement by the FWC; and (d) the date on which the enterprise agreement was approved or varied; and (e) the name of each employer; and (f) the Australian Business Number (if any) of each employer; and (g) a brief description of the work

is to be provided to the Minister … as soon as practicable after the end of the week

undertaken at each workplace to which the enterprise agreement applies; and (h) the name of each employee organisation which the enterprise agreement covers; and (i) each State or Territory in relation to which the enterprise agreement applies; and (j) the name of each award that covers an employee who is, or will be, covered by the enterprise agreement; and (j) the name of each award that covers an employee who is, or will be, covered by the enterprise agreement; and (k) if the enterprise agreement replaces another agreement: (i) the title of the replaced agreement; and (ii) the number of the replaced agreement, as assigned by the FWC or the Workplace Authority; and (l) whether the enterprise agreement is: (i) a single-enterprise agreement; or (ii) a multi-enterprise agreement; or (iii) a greenfields agreement that is a single enterprise agreement; or

as soon as practicable, but not later than 21 days after the day on which the relevant decision or order was made

(iv) a greenfields agreement that is a multi-enterprise agreement; and (m) the number of employees: (i) employed by each employer; and (ii) covered by the enterprise agreement; and (n) whether the agreement was approved under subsection 189(2) of the Act; and

[page 1233] Item

This information or copy of a document …

is to be provided to the Minister …

(o) whether the enterprise agreement was made as a result of a low-paid bargaining authorisation; and (p) whether the enterprise agreement was made as a result of a single-interest employer authorisation 15.2

For an order made under section 223 or 226 of the Act approving the termination of an enterprise agreement or terminating the enterprise agreement: (a) a copy of the approval or termination; and (b) if the agreement previously

as soon as practicable, but not later than 21 days after the day on which the order was made

had a different number assigned by the FWC — each previous number; and (c) the date on which the termination took effect or will take effect 16 16.1

16.2

Transitional instruments For a pre-reform agreement that has been varied under Part 3 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, a copy of the varied agreement and the order varying the agreement For each transitional instrument that has been terminated under item 15 or 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009: (a) a copy of the approval or termination; and (b) the date on which the termination took effect or will take effect

as soon as practicable, but not later than 21 days after the day on which the order was made

as soon as practicable, but not later than 21 days after the day on which the transitional instrument was terminated

PART 2 — INFORMATION AND COPIES OF DOCUMENTS TO BE PROVIDED TO THE FAIR WORK OMBUDSMAN [Pt 2 am SLI 321 of 2012 s 3 and Sch 1[16], [27], opn 1 Jan 2013]

Item

This information or copy of a document …

is to be provided to the Fair Work Ombudsman …

1 1.1

1.2

2 2.1

General protections — compliance The number of applications for the FWC to deal with disputes made in a quarter under section 365 of the Act The number of applications for the FWC to deal with disputes made in a quarter under section 372 of the Act Unfair dismissal The number of applications for orders granting a remedy made in a quarter under section 394 of the Act

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

[page 1234] Item 2.2

This information or copy of a is to be provided to the Fair document … Work Ombudsman … For applications for an order granting a remedy dealt with in a quarter under section 394 of the Act: (a) the number of applications in relation to which the dismissal was found to be unfair, including: (i) the number of orders made in the quarter under section 391 of the Act for a person’s reinstatement; and (ii) the number of orders made in the quarter under section 392 of the Act for the payment of

compensation to a person; and (b) the number of applications that related to a small business employer; and (c) the number of applications dismissed because dismissal was found to be fair; and (ca) the number of applications dismissed in a quarter under section 399A of the Act; and (d) the number of claims dismissed because the dismissal was consistent with the Small Business Fair Dismissal Code; and as soon as practicable after (e) the number of claims dismissed because the dismissal the end of the quarter was a case of genuine redundancy; and (f) the number of cases dismissed for want of jurisdiction; and (g) the number of cases settled without a decision being made; and (h) the time from the date of the application to the date of judgement; and (i) the number of cases settled by the conduct of 1 or more conferences; and (j) the number of cases settled by hearing 3 3.1

Industrial action The number of applications to

as soon as practicable after

3.2

3.3

3.4

vary protected ballot orders made in a quarter under section 447 of the Act The number of applications to revoke protected ballot orders made in a quarter under section 448 of the Act The number of applications to extend periods in which industrial action is authorised made in a quarter under section 459 of the Act The number of applications for orders varying the proportion by which an employee’s payments are reduced made in a quarter under section 472 of the Act

the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

[page 1235] Item 3.5

3.6

3.7

This information or copy of a document … The number of orders made in a quarter under section 447 of the Act to vary a protected ballot order The number of orders made in a quarter under section 447 of the Act to revoke a protected ballot order The number of extensions made in a quarter under section 459 of the Act to extend a period in which industrial action is authorised

is to be provided to the Fair Work Ombudsman … as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

as soon as practicable after the end of the quarter

3.8

3.9

3.10

3.11

3.12

The number of orders made in a quarter under section 459 of the Act relating to a dispute about the operation of Part 3-4 of the Act, including the number of orders in relation to which the FWC dealt with the dispute on its own initiative A list of the applications filed in a week under sections 418, 419 and 420 of the Act for orders relating to stopping industrial action, including: (a) a statement that the matter has commenced; and (b) the case numbers of the applications; and

as soon as practicable after the end of the quarter

A list of all applications filed in a week under sections 423, 424, 425 and 426 of the Act for orders suspending or terminating protected industrial action A list of all applications filed in a week under Division 8 of Part 33 of the Act relating to protected action ballots For each application in a list mentioned in item 3.9, 3.10 or 3.11: (a) a statement that the matter has commenced; and (b) the case numbers of the applications; and (c) the type of matter, identified by reference to the relevant

as soon as practicable after the end of the week

as soon as practicable after the end of the week

as soon as practicable after the end of the week

as soon as practicable after the end of the week

section of the Act; and (d) the names of the parties, identifying which of the parties is the applicant and the respondent; and (e) whether the party is an individual or an organisation; and (f) for a party that is an organisation — whether the party is an employee or employer organisation 3.13

A copy of a written report about a protected action ballot made under section 458 of the Act

within 24 hours after the report is written

[page 1236] Item 3.14

This information or copy of a document … A copy of any order made in relation to a matter mentioned in item 3.9, 3.10 or 3.11

is to be provided to the Fair Work Ombudsman … either: (a) within 24 hours after the order is made; or (b) if the order has not been written within that period — as soon as practicable

[page 1237]

[10-3280]

SCHEDULE 6.1 — MODEL TERM FOR DEALING WITH DISPUTES FOR ENTERPRISE AGREEMENTS (regulation 6.01)

Model term (1) If a dispute relates to: (a) a matter arising under the agreement; or (b) the National Employment Standards; this term sets out procedures to settle the dispute. (2) An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term. (3) In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management. (4) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Commission. [subcl (4) am SLI 321 of 2012 s 3 and Sch 1[24], opn 1 Jan 2013]

(5) The Fair Work Commission may deal with the dispute in 2 stages: (a) the Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and (b) if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then: (i) arbitrate the dispute; and (ii) make a determination that is binding on the parties. Note: If Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act.

[subcl (5) subst SLI 321 of 2012 s 3 and Sch 1[23], opn 1 Jan 2013]

(6) While the parties are trying to resolve the dispute using the procedures in this term: (a) an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and (b) an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless: (i) the work is not safe; or (ii) applicable occupational health and safety legislation would not permit the work to be performed; or (iii) the work is not appropriate for the employee to perform; or (iv) there are other reasonable grounds for the employee to refuse to comply with the direction. (7) The parties to the dispute agree to be bound by a decision made by Fair Work Commission in accordance with this term. [subcl (7) am SLI 321 of 2012 s 3 and Sch 1[24], opn 1 Jan 2013]

[page 1238]

[10-3290]

SCHEDULE 6.1A — MODEL TERM FOR DEALING WITH DISPUTES ABOUT MATTERS ARISING UNDER COPIED STATE INSTRUMENT (regulation 6.03B)

[Sch 6.1A insrt SLI 322 of 2012 s 3 and Sch 1[2], opn 12 Dec 2012]

Model term (1) This term sets out procedures to settle a dispute about a matter arising under a copied State instrument. (2) An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term. (3) In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management. (4) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Australia. (5) Fair Work Australia may deal with the dispute in 2 stages: (a) Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and (b) if Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then: (i) arbitrate the dispute; and (ii) make a determination that is binding on the parties. Note: If Fair Work Australia arbitrates the dispute, it may also use the powers that are available to it under the Act. A decision that Fair Work Australia makes when arbitrating a dispute is a decision for the purpose of Division 3 of Part 5-1 of the Act. Therefore, an appeal may be made against the decision.

(6) While the parties are trying to resolve the dispute using the procedures in this term: (a) an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and (b) an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless: (i) the work is not safe; or (ii) applicable work health and safety legislation would not permit the work to be performed; or (iii) the work is not appropriate for the employee to perform; or (iv) there are other reasonable grounds for the employee to refuse to comply with the direction. (7) The parties to the dispute agree to be bound by a decision made by Fair Work Australia in accordance with this term.

[page 1239]

[10-3300]

SCHEDULE 6.2 — FORMS FOR CERTAIN TERMINATIONS (regulation 6.07)

[103310]

Form 1 NOTICE TO CENTRELINK OF PROPOSED TERMINATIONS (regulation 6.07)

Fair Work Regulations 2009, regulation 6.07 NOTICE TO CENTRELINK OF PROPOSED TERMINATIONS TO: CENTRELINK I, [full name of employer or person completing notice on behalf of employer], the [position held] of [name of employer of person completing notice], give notice, under subsection 785(2) of the Fair Work Act 2009, that [name of employer] proposes to terminate the employment of 15 or more of its employees, for the following reasons: [Set out reasons for proposed terminations. Reasons may be of an economic, technological, structural or similar nature, or for reasons including such reasons] The number and categories of employees likely to be affected by the proposal are: [Set out the categories and number per category] It is intended that [name of employer] will carry out the proposed terminations at the following time/s, or over the following period/s of time: [Provide specific dates if known, or approximate period of time]

Dated 20 ________________ Signature ________________ Position * Omit section reference as appropriate

[page 1240]

[10-3330] SCHEDULE 6.3 — PUBLIC SECTOR EMPLOYMENT — EMPLOYING AUTHORITIES (regulation 6.09) [Sch 6.3 am SLI 300 of 2009 r 3 and Sch 1, opn 14 Nov 2009; SLI 91 of 2011 reg 3 and Sch 1[1], opn 22 June 2011; SLI 152 of 2011 reg 3 and Sch 1[1], opn 20 Aug 2011; SLI 242 of 2013 s 4 and Sch 1 items 1–3, opn 26 Nov 2013] Note: See regulation 6.09.

Employing authorities Item

Person

1

A person who is employed in public sector employment by a particular Commonwealth authority

2

An APS employee, within the

Employing authority or authorities The Minister administering the enactment by or under which the Commonwealth authority employing the persons specified in column 2 of this item was established The principal executive officer (however called) of the Commonwealth authority employing the persons specified in column 2 of this item An officer authorised by the principal executive officer (however called) of the Commonwealth authority employing the persons specified in column 2 of this item The Public Service Minister,

meaning of the Public Service Act 1999, performing duties or employed in a particular Agency as defined in the Public Service Act 1999

within the meaning of the Public Service Act 1999 The Agency Minister, within the meaning of the Public Service Act 1999 The Agency Head, within the meaning of the Public Public Service Act 1999 An APS employee, within the meaning of the Public Service Act 1999, authorised by the Agency Head

3

A Parliamentary Service employee, within the meaning of the Parliamentary Service Act 1999, performing duties or employed in a particular Department as defined in the Parliamentary Service Act 1999

A Presiding Officer within the meaning of the Parliamentary Service Act 1999 The Secretary within the meaning of the Parliamentary Service Act 1999 A Parliamentary Service employee authorised by the Presiding Officer within the meaning of the Parliamentary Service Act 1999

4

A person employed under section The Minister administering the 42 of the Naval Defence Act Naval Defence Act 1910 1910 The persons empowered under the Naval Defence Act 1910 to employ persons

5

A person engaged as a consultant under Part II, or employed under Part III or IV, of the Members of Parliament (Staff) Act 1984

The Minister administering the Members of Parliament (Staff) Act 1984 Each person empowered under the Members of Parliament (Staff) Act 1984 to employ

persons

[page 1241] Employing authorities Item

Person

Employing authority or authorities The Minister of the Northern Territory responsible for the Agency in which the person is employed The Commissioner for Public Employment for the Northern Territory An employee authorised by the Commissioner for Public Employment for the Northern Territory

6

A person employed as an employee in a particular Agency of the Northern Territory Public Sector

7

A person: (a) who is employed by the Northern Territory; but (b) is not a person mentioned in item 6

The Commissioner for Public Employment for the Northern Territory An employee authorised by the Commissioner for Public Employment for the Northern Territory

8

A person employed by a particular Northern Territory authority (being a body corporate established for a public purpose by or under a law of the Northern Territory) under terms and conditions determined or approved by the Commissioner for Public Employment for the Northern Territory

The Minister administering the Act of the Northern Territory by or under which the authority employing the person was established The principal executive officer (however called) of the authority employing the persons specified in column 2 of this item

The Commissioner for Public Employment for the Northern Territory An employee authorised by the principal executive officer (however called) of the authority employing the persons specified in column 2 of this item 9

A person employed by either of the following Northern Territory authorities: (a) Northern Territory Power and Water Authority; (b) Territory Insurance Office

The principal executive officer (however called) of the authority employing the persons specified in column 2 of this item The Commissioner for Public Employment for the Northern Territory An employee authorised by the principal executive officer (however called) of the authority employing the persons specified in column 2 of this item

10

A person who: (a) is employed by a particular Northern Territory authority (being a body corporate established for a public purpose by or under a law of the Northern Territory); but (b) is not a person mentioned in item 8 or 9

The Minister administering the Act of the Northern Territory by or under which the authority employing the person was established The authority employing the person The Commissioner for Public Employment for the Northern Territory An employee authorised by the authority employing the person

[page 1242]

Employing authorities Item 11

Person

Employing authority or authorities A person employed by a The Minister responsible for particular Northern Territory the authority employing the authority (being a body corporate person incorporated under a law of the The principal executive Northern Territory in which the officer (however called) of Northern Territory has a the authority employing the controlling interest) person The Commissioner for Public Employment for the Northern Territory An employee authorised by the principal executive officer (however called) of the authority employing the person

12

A person appointed under section The Minister administering 25 or 26 of the Australian Federal the Australian Federal Police Police Act 1979 Act 1979 The Commissioner within the meaning of that Act An AFP employee authorised by the Commissioner within the meaning of that Act

13

A person employed under the Legislative Assembly (Members’ Staff) Act 1989 of the Australian Capital Territory

The Chief Minister of the Australian Capital Territory An employee authorised by the Chief Minister of the Australian Capital Territory

14

An officer or employee (within the meaning of the Public Sector Management Act 1994 of the Australian Capital Territory) of a government agency, or

The Chief Minister for the Australian Capital Territory The Minister (within the meaning of the Australian

15

autonomous instrumentality, within the meaning of that Act

Capital Territory (SelfGovernment) Act 1988 (the Self-Government Act)) who administers the government agency, or the Act under which the autonomous instrumentality is established The Minister, within the meaning of the SelfGovernment Act, who is responsible for exercising the power of the Australian Capital Territory Executive in relation to industrial relations

A person employed by or in the service of a body corporate (except a Territory instrumentality within the meaning of Public Sector Management Act 1994 of the Australian Capital Territory) that is incorporated under a law of the Territory and in which the Territory has a controlling interest

The principal executive officer (however described) of the body corporate The Minister, within the meaning of the Australian Capital Territory (SelfGovernment) Act 1988, who is responsible for exercising the power of the Australian Capital Territory Executive in relation to industrial relations

[page 1243] Employing authorities Item

Person

16

An officer or employee (within

Employing authority or authorities The Chief Executive Officer

the meaning of the Public Sector Management Act 1994 of the Australian Capital Territory) employed at Calvary Hospital under an arrangement with the Territory under section 26 of that Act

of Calvary Hospital A.C.T. Incorporated The Minister, within the meaning of the Australian Capital Territory (SelfGovernment) Act 1988 (the Self-Government Act), who is responsible for exercising the power of the Australian Capital Territory Executive in relation to public health The Minister, within the meaning of the SelfGovernment Act, who is responsible for exercising the power of the Australian Capital Territory Executive in relation to industrial relations

17

A person who: (a) is employed by or in the service of a body corporate, or an authority, that is established by or under a law of the Australian Capital Territory; but (b) is not mentioned in item 15, 16, 17 or 18

The principal executive officer (however described) of the body corporate or authority The Minister administering the law of the Australian Capital Territory The Minister, within the meaning of the Australian Capital Territory (SelfGovernment) Act 1988, who is responsible for exercising the power of the Australian Capital Territory Executive in relation to industrial relations

18

A person who is employed under The Official Secretary to the section 13 of the GovernorGovernor-General

19

General Act 1974 A person engaged as an employee under subsection 19(1) of the Australian Civilian Corps Act 2011

The Secretary of the Department of Foreign Affairs and Trade An Australian Civilian Corps employee authorised by the Secretary of the Department of Foreign Affairs and Trade

[page 1245]

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 TABLE OF PROVISIONS Section

1 2 3 4

Title

Paragraph

Short title …. Commencement …. Schedule(s) …. Regulations …. SCHEDULE 1 — REPEALS …. SCHEDULE 2 — OVERARCHING SCHEDULE ABOUT TRANSITIONAL MATTERS …. SCHEDULE 3 — CONTINUED EXISTENCE OF AWARDS, WORKPLACE AGREEMENTS AND CERTAIN OTHER WR ACT INSTRUMENTS …. SCHEDULE 3A — TREATMENT OF STATE AWARDS AND STATE EMPLOYMENT AGREEMENTS OF DIVISION 2B REFERRING STATES …. SCHEDULE 4 — NATIONAL EMPLOYMENT STANDARDS ….

[30-100] [30-105] [30-110] [30-115] [30-100]

[30-160]

[30-440]

[30-1230] [30-1330]

SCHEDULE 5 — MODERN AWARDS (OTHER THAN MODERN ENTERPRISE AWARDS AND STATE REFERENCE PUBLIC SECTOR MODERN AWARDS) …. SCHEDULE 6 — MODERN ENTERPRISE AWARDS …. SCHEDULE 6A — STATE REFERENCE PUBLIC SECTOR MODERN AWARDS …. SCHEDULE 7 — ENTERPRISE AGREEMENTS AND WORKPLACE DETERMINATIONS MADE UNDER THE FW ACT …. SCHEDULE 8 — WORKPLACE AGREEMENTS AND WORKPLACE DETERMINATIONS MADE UNDER THE WR ACT ….

[30-1620] [30-1900]

[30-2320]

[30-2600]

[30-3330] [page 1246]

Title

SCHEDULE 9 — MINIMUM WAGES …. SCHEDULE 10 — EQUAL REMUNERATION …. SCHEDULE 11 — TRANSFER OF BUSINESS …. SCHEDULE 12 — GENERAL PROTECTIONS …. SCHEDULE 12A — UNFAIR DISMISSAL …. SCHEDULE 13 — BARGAINING AND INDUSTRIAL ACTION …. SCHEDULE 14 — RIGHT OF ENTRY ….

Paragraph

[30-3880] [30-4310] [30-4550] [30-4870] [30-4900] [30-4930] [30-5550]

SCHEDULE 15 — STAND DOWN …. SCHEDULE 16 — COMPLIANCE …. SCHEDULE 17 — AMENDMENTS RELATING TO THE FAIR WORK DIVISIONS OF THE FEDERAL COURT AND THE FEDERAL MAGISTRATES COURT …. SCHEDULE 18 — INSTITUTIONS …. SCHEDULE 19 — DEALING WITH DISPUTES …. SCHEDULE 20 — WR ACT TRANSITIONAL AWARDS ETC …. SCHEDULE 21 — CLOTHING TRADES AWARD 1999 …. SCHEDULE 22 — REGISTERED ORGANISATIONS …. SCHEDULE 23 — OTHER AMENDMENTS OF THE FW ACT ….

[30-5590] [30-5620]

[30-5730] [30-6280] [30-6760] [30-6780] [30-6850] [31-6870] [31-1000]

[page 1247]

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 TABLE OF AMENDMENTS The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 No 55, was assented to on 25 June 2009 and commences as follows: ss 1–4, Schs 1–5, Sch 6 Pts 1 and 2, Schs 7–21, Sch 22, Sch 23 items 1–2E and 8: 1 July 2009; Sch 6 Pt 3, Sch 23 items 3–7: 1 January 2010; remainder: 1 July 2009. Amending Legislation

Date of Date of Commencement Assent Fair Work (State Referral and 25 June 2009 ss 1–4, Sch 1 items 1–12, Sch Consequential and Other 3: 25 June 2009; Sch 5 Amendments) Act 2009 items 67, 70–72, Sch 12 No 54 items 1–3: 1 July 2009 (s 2); Sch 2 Pt 2 Div 2, Sch 5 items 68, 69: 1 January 2010 (s 2); Sch 5 item 80: the later of either immediately after the commencement of item 68 of Sch 5 (1 January 2010), or the commencement of item 38 of Sch 3 to the Disability Discrimination

and Other Human Rights Legislation Amendment Act 2009 provided this does commence (proposed commencement of item 38 is on the 28th day after the day the Act receives Royal Assent: 5 August 2009); Sch 5 itmes 81, 82: the later of either immediately after the commencement of item 70 (for item 81) or item 72 (for item 82) of Sch 5 (1 July 2009), or the commencement of item 38 of Sch 3 to the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 [page 1248] Amending Legislation

Fair Work (Transitional Provisions and Consequential

Date of Assent

Date of Commencement

provided this does commence (proposed commencement of item 38 is on the 28th day after the day the Act receives Royal Assent: 5 August 2009); Sch 2 Pt 2 items 41–44, 50: 1 July 2009 30 June 2009 r 5.12 and Sch 1; r 2.06 and Sch 2.1: 1 January 2010

Amendments) Regulations 2009 No 166 Fair Work Amendment (State 9 December Referrals and Other 2009 Measures) Act 2009 No 124 Statute Law Revision Act 2011 No 5 Fair Work Amendment Act 2012 No 174

22 March 2011 4 December 2012

s 3 and Sch 2 items 1A–121: 1 January 2010; Sch 3 items 17A–17E: 9 December 2009; Sch 3 Pt 2: 1 January 2010 22 March 2011 ss 1–3: 4 December 2012; Sch 9 Pts 1–2: 1 January 2013 5 December 2012

Fair Work Amendment 4 December (Transfer of Business) Act 2012 2012 No 175 Federal Circuit Court of 14 March ss 1–3: 14 March 2013; Sch 1 Australia (Consequential 2013 items 251–263: 12 April Amendments) Act 2013 2013 No 13 Acts and Instruments 10 September 5 March 2016 (Framework Reform) 2015 (Consequential Provisions) Act 2015 No 126 [page 1249] An Act to amend laws, and deal with transitional matters, in connection with the Fair Work Act 2009, and for other purposes The Parliament of Australia enacts:

[30-100]

Short title

1 This Act may be cited as the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[30-105]

Commencement

2 (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 Provision(s) Commencement 1. Sections 1 to 4 and The day on which this Act anything in this Act receives the Royal Assent. not elsewhere covered by this table 2. Schedules 1 to 5 The day on which Part 2-4 of the Fair Work Act 2009 commences. 3. Schedule 6, Parts 1 At the same time as the and 2 provision(s) covered by table item 2. 4. Schedule 6, Part 3 Immediately after the commencement of Part 2-3 of the Fair Work Act 2009. 4A. Schedule 6A At the same time as the provision(s) covered by table item 2. 5. Schedules 7 to 21 At the same time as the provision(s) covered by table item 2. 6. Schedule 22, items At the same time as the 1 to 90 provision(s) covered by table item 2. 7. Schedule 22, item Immediately after the 91 commencement of the provisions covered by table item 8. 8. Schedule 22, items At the same time as the

Column 3 Date/Details 25 June 2009

1 July 2009

1 July 2009

1 January 2010

1 July 2009

1 July 2009

1 July 2009

1 July 2009

1 July 2009

92 to 627

provision(s) covered by table item 2. [page 1250]

9. Schedule 23, items Immediately after the 1 and 2E commencement of Part 2-4 of the Fair Work Act 2009. 10. Schedule 23, Immediately after the items 3 to 6 commencement of Part 2-2 of the Fair Work Act 2009. 11. Schedule 23, item Immediately after the 7 commencement of Part 2-3 of the Fair Work Act 2009. 12. Schedule 23, item Immediately after the 8 commencement of Part 2-8 of the Fair Work Act 2009. 13. Schedule 23, item Immediately after the 9 commencement of Division 1 of Part 2-9 of the Fair Work Act 2009. 13A. Schedule 23, Immediately after the items 9A and 9B commencement of Part 3-1 of the Fair Work Act 2009. 14. Schedule 23, Immediately after the items 10 to 12 commencement of Part 3-3 of the Fair Work Act 2009. 15. Schedule 23, Immediately after the items 13 to 21 commencement of Part 4-1 of the Fair Work Act 2009. 15A. Schedule 23, Immediately after the item 21A commencement of Part 6-1 of the Fair Work Act 2009. 15B. Schedule 23, Immediately after the

1 July 2009

1 January 2010

1 January 2010

1 July 2009

1 July 2009

1 July 2009

1 July 2009

1 July 2009

1 July 2009

1 July 2009

items 21B and 21C

commencement of Part 6-4 of the Fair Work Act 2009. 16. Schedule 23, item Immediately after the 1 July 2009 22 commencement of section 799 of the Fair Work Act 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.

[30-110]

Schedule(s)

3 Each Act 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. [page 1251]

[30-115]

Regulations

4 The Governor-General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

[page 1252]

[30-100]

SCHEDULE 1 — REPEALS

Editor’s Note: These amendments have been incorporated into the Workplace Relations Act 1996. Workplace Relations Act 1996

[30-105]

Sections 3 to 18

1 Repeal the sections.

[30-110] Parts 2 to 23 2 Repeal the Parts.

[30-115]

Schedules 2 to 9

3 Repeal the Schedules.

[page 1253]

[30-160]

SCHEDULE 2 — OVERARCHING SCHEDULE ABOUT TRANSITIONAL MATTERS

PART 1 — INTERPRETATION OF THE TRANSITIONAL SCHEDULES [30-165]

What are the transitional Schedules?

1 The transitional Schedules are the following (including any regulations made for the purposes of any of the following): (a) this Schedule; and (b) Schedules 2 to 22, other than: (i) Part 3 of Schedule 6; and (ii) Parts 1, 2 and 3 of Schedule 17; and (iii) items 21 to 22 of Schedule 18; and (iv) Parts 1 to 8 of Schedule 22.

[30-170]

The dictionary

2 In the transitional Schedules: affected employee of an employer: see subitem 43(6) of Schedule 3 and subitem 30A(4) of Schedule 3A. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

AFPCS interaction rules: see subitem 22(4) of Schedule 3. agreement-based transitional instrument: see subitem 2(5) of Schedule 3. applies:

(a) in relation to a transitional instrument: see subitem 3(2) of Schedule 3; and (b) in relation to a Division 2B State award: see item 4 of Schedule 3A; and (c) in relation to a Division 2B State employment agreement: see item 6 of Schedule 3A. [def subst Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

award-based transitional instrument: see subitem 2(5) of Schedule 3. bridging period means the period: (a) starting on the WR Act repeal day; and (b) ending immediately before the FW (safety net provisions) commencement day. collective agreement-based transitional instrument: see subitem 2(5) of Schedule 3. collective Division 2B State employment agreement: see subitem 5(5) of Schedule 3A. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

collective State employment agreement: see subitem 2(6) of Schedule 3A. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

common rule: means a common rule within the meaning of clauses 82 to 87 of Schedule 6 to the WR Act (including those clauses as they continue to apply because of item 8A of Schedule 3). [page 1254] conditional termination: (a) in relation to an individual agreement-based transitional instrument: see subitem 18(1) of Schedule 3; and (b) in relation to an individual Division 2B State employment agreement: see subitem 25(1) of Schedule 3A. [def subst Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

continued AFPCS wages provisions: see subitem 5(1) of Schedule 9. continued Schedule 6: see subitem 1(1) of Schedule 20. continuing Schedule 6 instruments: see subitem 1(2) of Schedule 20. covers: (a) in relation to a transitional instrument: see subitem 3(1) of Schedule 3; and (b) in relation to a transitional minimum wage instrument: see item 6 of Schedule 9; and (c) in relation to a Division 2B State award: see item 4 of Schedule 3A; and (d) in relation to a Division 2B State employment agreement: see item 6 of Schedule 3A. [def am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

Division 2A referring State: see subitem 2A(7) of Schedule 3. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

Division 2A State reference employee: see subitem 2A(3A) of Schedule 3. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

Division 2A State reference employer: see subitem 2A(4A) of Schedule 3. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

Division 2A State reference transitional award: see subitem 2A(1A) of Schedule 3. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

Division 2B enterprise award: see subitem 2(4) of Schedule 6. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

Division 2B referral commencement: see subitem 2(4A) of Schedule 3. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

Division 2B referring State: see subitem 2A(7) of Schedule 3. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

Division 2B State award: see item 3 of Schedule 3A. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

Division 2B State employment agreement: see item 5 of Schedule 3A.

[def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

Division 2B State instrument: see item 2 of Schedule 3A. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

Division 2B State reference employee: see subitem 2A(3A) of Schedule 3. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

Division 2B State reference employer: see subitem 2A(4A) of Schedule 3. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

Division 2B State reference outworker entity: see subitem 4(3) of Schedule 3A. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

[page 1255] Division 2B State reference transitional award: see subitem 2A(1A) of Schedule 3. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

enterprise award-based instrument: see subitem 2(2) of Schedule 6. enterprise instrument: see subitem 2(1) of Schedule 6. enterprise instrument modernisation process: see subitem 4(1) of Schedule 6. enterprise preserved collective State agreement: see subitem 2(3) of Schedule 6. Fair Work Australia or FWA means the body referred to in section 575 of the FW Act, as in force immediately before the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012. [def insrt Act 174 of 2012 s 3 and Sch 9 item 1097, opn 1 Jan 2013]

FWA: see Fair Work Australia. [def insrt Act 174 of 2012 s 3 and Sch 9 item 1096, opn 1 Jan 2013]

FWA member has the same meaning as in the FW Act, as in force immediately before the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012.

[def insrt Act 174 of 2012 s 3 and Sch 9 item 1098, opn 1 Jan 2013]

FW Act: see item 3 of this Schedule. FW (safety net provisions) commencement day: means the day on which Parts 2-2, 2-3 and 2-6 of the FW Act commence. individual agreement-based transitional instrument: see subitem 2(5) of Schedule 3. individual Division 2B State employment agreement: see subitem 5(6) of Schedule 3A. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

individual State employment agreement: see subitem 2(7) of Schedule 3A. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

instrument content rules: (a) in Schedule 3: see subitem 4(2) of Schedule 3; and (b) in Schedule 3A: see subitem 10(2) of Schedule 3A. [def subst Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

instrument interaction rules: (a) in Schedule 3: see subitem 5(2) of Schedule 3; and (b) in Schedule 3A: see subitem 11(2) of Schedule 3A. [def subst Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

lodged: (a) in relation to a workplace agreement — means lodged with the Workplace Authority Director under section 344 of the WR Act; and (b) in relation to a variation of a workplace agreement — means lodged with the Workplace Authority Director under section 346N or 377 of the WR Act, as the case may be; and (c) in relation to a termination of a workplace agreement — means lodged with the Workplace Authority Director under section 389 of the WR Act. [page 1256]

made: (a) in relation to a workplace agreement — has the meaning given by section 333 of the WR Act; and (b) in relation to a variation of a workplace agreement — has the meaning given by section 368 of the WR Act. modern enterprise award: see subitem 4(2) of Schedule 6. modern enterprise awards objective: see subitem 6(2) of Schedule 6. modernisation-related reduction in take-home pay: (a) in relation to the Part 10A award modernisation process — see subitems 8(3) and (4) of Schedule 5; and (b) in relation to the enterprise instrument modernisation process — see subitem 11(3) of Schedule 6; and (c) in relation to the State reference public sector transitional award modernisation process — has the meaning given by subitem 13(3) of schedule 6A. modify includes make additions, omissions and substitutions. nominal expiry date, in relation to a Division 2B State employment agreement: see item 27 of Schedule 3A. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

outworker interaction rules: see subitem 12(2) of Schedule 3A. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

Part 10A award modernisation process: see subitem 2(1) of Schedule 5. part of a single enterprise: see subitem 3(4) of Schedule 6. referring State: see subitem 2A(7) of Schedule 3. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

single enterprise: see item 3 of Schedule 6. source agreement, in relation to a Division 2B State employment agreement: see subitem 5(1) of Schedule 3A. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

source award, in relation to a Division 2B State award: see subitem 3(1) of Schedule 3A. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

source State: (a) in relation to a Division 2B State award: see subitem 3(1) of Schedule 3A; and (b) in relation to a Division 2B State employment agreement: see subitem 5(1) of Schedule 3A. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

State and Territory interaction rules: see subitem 5A(2) of Schedule 3. State award: see item 2 of Schedule 3A. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

State employment agreement: see item 2 of Schedule 3A. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

[page 1257] State industrial body means a commission performing or exercising functions under a State industrial law, and includes a member of such a commission and a registrar or deputy registrar of such a commission. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

State industrial law means a law of a State that is a State or Territory industrial law as defined in section 26 of the FW Act. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

State minimum wages instruments: see item 19 of Schedule 9. [def insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

State reference common rule: see subitem 2A(2) of Schedule 3. State reference employee: see subitem 2A(3) of Schedule 3. State reference employer: see subitem 2A(4) of Schedule 3. State reference public sector employee: see subitem 2(2) of Schedule 6A. State reference public sector employer: see subitem 2(3) of Schedule 6A. State reference public sector modern award: see subitem 3(2) of

Schedule 6A. State reference public sector modern awards objective: see subitem 7(2) of Schedule 6A. State reference public sector transitional award: see subitem 2(1) of Schedule 6A. State reference public sector transitional award modernisation process: see subitem 3(1) of Schedule 6A. State reference transitional award: see subitem 2A(1) of Schedule 3. State reference transitional award or common rule means a State reference transitional award or a State reference common rule. take-home pay: see subitem 31(2) of Schedule 3A, subitem 8(2) of Schedule 5, subitem 11(2) of Schedule 6 and subitem 13(2) of Schedule 6A. [def am SLI 54 of 2009 r 3 and Sch 2, opn 1 July 2009; Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

take-home pay order: see subitems 32(1) and (2) of Schedule 3A, subitems 9(1) and (2) of Schedule 5, subitem 12(1) of Schedule 6 and subitem 14(1) of Schedule 6A. [def am Act 124 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

this Act includes the regulations. transitional APCS: see subitem 5(3) of Schedule 9. transitional default casual loading: see subitem 5(3) of Schedule 9. transitional instrument: see subitems 2(3) and (4) of Schedule 3. transitional minimum wage instrument: see subitem 5(3) of Schedule 9. transitional national minimum wage order: see subitem 12(2) of Schedule 9. transitional pay equity order: see subitem 43(1) of Schedule 3 and subitem 30A(1) of Schedule 3A. [def insrt Act 124 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

transitional Schedules: see item 1 of this Schedule. [page 1258]

transitional special FMW: see subitem 5(3) of Schedule 9. transitional standard FMW: see subitem 5(3) of Schedule 9. unlodged collective agreement means a collective agreement that, as at the WR Act repeal day, has not been lodged. unlodged termination, in relation to a workplace agreement, means a termination of a workplace agreement approved in accordance with section 386 of the WR Act, but not lodged as at the WR Act repeal day. unlodged variation, in relation to a workplace agreement, means a variation of the workplace agreement under Division 8 of Part 8 of the WR Act approved in accordance with section 373 of the WR Act, but not lodged as at the WR Act repeal day. Victorian employment agreement: see item 41 of Schedule 3. workplace agreement that operates from approval means a workplace agreement to which Subdivision C of Division 5A of Part 8 of the WR Act applies (see subsection 346K(1) of that Act). WR Act: see item 3 of this Schedule. WR Act instrument: see subitem 2(2) of Schedule 3. WR Act repeal means the commencement of Schedule 1. WR Act repeal day means the day on which the WR Act repeal commences.

[30-175]

Meaning of WR Act and FW Act

3 Meaning of WR Act (1) WR Act means the Workplace Relations Act 1996 and, unless the contrary intention appears, means that Act as in force immediately before the WR Act repeal day. (2) Unless a contrary intention appears, a reference to the WR Act, or to a provision or provisions of the WR Act, includes a reference to regulations made for the purposes of the WR Act, or for the purposes of the provision or provisions of the WR Act. (3) If an item of the transitional Schedules provides for the WR Act, or a provision or provisions of the WR Act, to continue to apply on and after the

WR Act repeal day (or during the bridging period), the WR Act, or the provision or provisions, continue to so apply despite the WR Act repeal. Meaning of FW Act (4) FW Act means the Fair Work Act 2009. (5) Unless a contrary intention appears, a reference to the FW Act, or to a provision or provisions of the FW Act, includes a reference to regulations made for the purposes of the FW Act, or for the purposes of the provision or provisions of the FW Act.

[30-180] Expressions defined in the WR Act or the FW Act 4 (1) Unless a contrary intention appears: (a) expressions used in a transitional Schedule that were defined in the WR Act (other than Schedule 1 to that Act) have the same meanings in that transitional Schedule as they had in that Act; and (b) expressions used in a transitional Schedule that are defined in the FW Act have the same meanings in that transitional Schedule as they have in that Act. [page 1259] (2) If: (a) a provision of a transitional Schedule uses an expression defined in both the WR Act and the FW Act; and (b) it is clear from the context of the provision which of those meanings is intended to apply in that provision; the expression has that meaning. (3) The regulations may define, or clarify the meaning of, an expression used in a transitional Schedule. (4) This item does not apply to expressions defined in item 2.

[30-185] Provisions that apply repealed provisions of the WR Act 5 (1) If a provision of a transitional Schedule provides for provisions (the applied WR Act provisions) of the WR Act to apply on and after the WR Act repeal day, any other provisions of the WR Act, and any regulations or other instruments made under that Act, that are necessary for the effectual operation of the applied WR Act provisions also apply on and after that day. (2) This item has effect: (a) subject to a contrary intention in a provision of a transitional Schedule; and (b) subject to the regulations.

[30-190] Effect of Part 21 of the WR Act to be taken into account 6 (1) To avoid doubt, in interpreting provisions of the transitional Schedules, the effect on the WR Act of Part 21 of that Act (which deals with matters referred by Victoria) before the WR Act repeal day is to be taken into account. Note: For example, a reference in Schedule 3 to a workplace agreement includes a reference to a workplace agreement made under Part 8 of the WR Act, as that Part had effect because of Part 21.

(2) If a provision of the transitional Schedules provides for the application or continued application of provisions of the WR Act on and after the WR Act repeal day, those provisions also have the effect they would have if Part 21 of that Act were still in force. Note: For example, item 2 of Schedule 4 provides for the continued application during the bridging period of Divisions 3, 4, 5 and 6 of Part 7 of the WR Act. The continued application of those Divisions also includes the extended effect those Divisions would have if Part 21 were still in force.

(3) This item has effect: (a) subject to a contrary intention; and (b) subject to the regulations.

PART 2 — REGULATIONS ABOUT TRANSITIONAL MATTERS [30-295] General power for regulations to deal with transitional matters 7 (1) The regulations may make provisions of a transitional, application or saving nature in relation to any of the following: (a) the transition from the regime provided for by the WR Act (and any Acts that amended that Act) to the regime provided for by the FW Act; (b) the amendments and repeals made by the Schedules to this Act;

[page 1260] (c) the transition from the regime provided for by State industrial laws of Division 2B referring States to the regime provided for by this Act and the FW Act, including: (i) the transition from State awards and State employment agreements to Division 2B State instruments; and (ii) the transition from Division 2B State instruments to modern awards and enterprise agreements; (d) the amendments and repeals made by the Fair Work Amendment (State Referrals and Other Measures Act) 2009. [subcl (1) am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(2) Without limiting subitem (1), regulations made for the purpose of that subitem may do any of the following: (a) modify provisions of the FW Act, or provide for the application (with or without modifications) of provisions of the FW Act to matters to which they would otherwise not apply; (b) provide for the application (with or without modifications) of provisions of the WR Act on and after the WR Act repeal day; (c) provide for the application (with or without modifications), as laws of the Commonwealth, of provisions of State industrial laws of Division 2B referring States on and after the Division 2B referral commencement. [subcl (2) am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

[30-300] Regulations relating to matters dealt with in the transitional Schedules 8 (1) The regulations may modify provisions of the transitional Schedules. (2) If a provision of a transitional Schedule provides for repealed provisions of the WR Act to apply on and after the WR Act repeal day, the regulations may: (a) modify the provisions; or

(b) make other provision relating to the application of the provisions. (3) If a provision of a transitional Schedule provides for provisions of the FW Act to apply in relation to matters to which they would otherwise not apply, the regulations may: (a) modify the provisions; or (b) make other provision relating to the application of the provisions. (4) The regulations may make other provision in relation to the matters dealt with in the transitional Schedules. (5) The transitional Schedules have effect subject to regulations made for any of the purposes of this item.

[30-305]

Limitation on power to make regulations

9 (1) The regulations must not: (a) modify provisions of Part 3-4 of the FW Act (which deals with right of entry); or (b) modify provisions of the transitional Schedules that deal with right of entry. (2) The regulations must not confer compliance powers on an inspector that are additional to the compliance powers under Part 5-2 of the FW Act. (3) This item has effect despite items 7 and 8. [page 1261]

[30-310] Other general provisions about regulations 10 (1) This item applies to regulations made for the purpose of any of the provisions of the transitional Schedules (including this Part). (2) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to the regulations. [subcl (2) subst Act 126 of 2015 s 3 and Sch 1 item 222, opn 5 Mar 2016]

(3) If:

(a) regulations are expressed to commence from a date (the registration date) before the regulations are registered under the Legislation Act 2003; and (b) a person engaged in conduct before the registration date; and (c) but for the retrospective effect of the regulations, the conduct would not have contravened a provision of: (i) the WR Act (as it continues to apply because of this Act); or (ii) this Act; or (iii) the FW Act; then a court must not convict the person of an offence, or order the person to pay a pecuniary penalty, in relation to the conduct on the grounds that it contravened a provision of any of those Acts. [subcl (3) am Act 126 of 2015 s 3 and Sch 1 item 223, opn 5 Mar 2016]

(4) The provisions of the transitional Schedules (including this Part) that provide for regulations to deal with matters do not limit each other.

PART 3 — CONDUCT BEFORE WR ACT REPEAL DAY ETC [30-415] Conduct before repeal — WR Act continues to apply 11 Conduct before repeal (1) The WR Act continues to apply, on and after the WR Act repeal day, in relation to conduct that occurred before the WR Act repeal day. Note: For continuation and cessation of WR Act bodies and offices on and after the WR Act repeal day, see item 7 of Schedule 18.

Processes begun before repeal to vary or terminate WR Act instruments (1A) If: (a) a process to vary or terminate a WR Act instrument is begun under the WR Act before the WR Act repeal day; and (b) the WR Act instrument becomes a transitional instrument because

of the operation of Part 2 of Schedule 3; the WR Act continues to apply, on and after the WR Act repeal day, for the purposes of completing the process. Orders made before repeal (2) To avoid doubt, the WR Act continues to apply, on and after the WR Act repeal day, in relation to orders made under that Act, including as it continues to apply under subitem (1). Item subject to this Act (3) This item applies subject to this Act. Note: For the purposes of transition from the WR Act to the FW Act, other provisions of this Act:

[page 1262] (a) modify or exclude the operation of the WR Act as it continues to apply under subitem (1); and (b) provide for the continued operation of the WR Act (including in modified form) in relation to conduct that occurs on or after the WR Act repeal day.

[30-420]

FWC to take over some processes

12 (1) On and after the WR Act repeal day: (a) an application, other than an interim application, that could have been made to any of the following because of item 11 may be made only to the FWC: (i) the Commission; (ii) the President; (iii) a member of the Commission; (iv) a Registrar; and (b) an appeal to the Commission that could have been instituted because of item 11 may be instituted only as an appeal to the FWC; and

a process (however described), other than an interim process, that (c) could have been initiated by the Commission on its own motion because of item 11 may be initiated only by the FWC; and (d) a matter that could have been referred to the Commission under section 46PW of the Australian Human Rights Commission Act 1986 because of item 11 is to be referred only to the FWC. [subcl (1) am Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010; Act 174 of 2012 s 3 and Sch 9 item 1100, opn 1 Jan 2013]

(2) For the purposes of subitem (1), a law of the Commonwealth that relates to an application, appeal, process or matter referred to in that subitem is to be read: (a) as if a reference to a WR Act body or WR Act office were a reference to the FWC, as necessary; and (b) with any other necessary modifications. Note: For WR Act body and WR Act office: see subitem 7(1) of Schedule 18. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1100, opn 1 Jan 2013]

(3) Subitems (1) and (2) apply subject to this Act. (4) In this item: interim application means an application that relates to a matter that is already before, or being dealt with by, the Commission, the President, a member of the Commission or a Registrar before the WR Act repeal day. interim process means a process (however described) that relates to a matter that is already before, or being dealt with by, the Commission, the President, a member of the Commission or a Registrar before the WR Act repeal day. [cl 12 am Act 174 of 2012 s 3 and Sch 9 item 1099, opn 1 Jan 2013]

[30-425]

Regulations — conduct before repeal

13 The regulations may do one or more of the following: (a) modify the operation of the WR Act as it applies under item 11; (aa) provide that subitem 11(1A) does not apply in relation to specified processes; (b) provide for any other matter that, because of item 11, could have

been dealt with by a WR Act body or a person holding a WR Act office to be dealt with by the FWC, or by the FWC only. [cl 13 am Act 174 of 2012 s 3 and Sch 9 item 1100, opn 1 Jan 2013]

[page 1263]

[30-440]

SCHEDULE 3 — CONTINUED EXISTENCE OF AWARDS, WORKPLACE AGREEMENTS AND CERTAIN OTHER WR ACT INSTRUMENTS PART 1 — PRELIMINARY

[30-445]

Meanings of employee and employer

1 In this Schedule, employee and employer have their ordinary meanings.

PART 2 — CONTINUED EXISTENCE OF WR ACT INSTRUMENTS AS TRANSITIONAL INSTRUMENTS [30-550] WR Act instruments that continue in existence as transitional instruments 2 (1) Each WR Act instrument (see subitem (2)) that becomes a transitional instrument (see subitems (3) to (4A)) continues in existence in accordance with this Schedule from when it becomes a transitional instrument, despite the WR Act repeal. Note: In addition to provisions of this Schedule, the following other provisions affect the continued existence of transitional instruments:

(a) Part 2 of Schedule 5 (which deals with the WR Act award modernisation process); (b) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise

instrument modernisation process); (c) Schedule 8 (which deals with workplace agreements and workplace determinations made under the WR Act, including the making of ITEAs during the bridging period); (d) Schedule 11 (which deals with transfer of business); (e) Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day). [subcl (1) am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(2) Each of the following instruments is a WR Act instrument: (a) an award; (aa) a State reference transitional award or common rule; (b) a notional agreement preserving State awards; (c) a workplace agreement; (d) a workplace determination; (e) a preserved State agreement; (f) an AWA; (g) a pre-reform certified agreement; (h) a pre-reform AWA; (i) an old IR agreement; (j) a section 170MX award. Note 1: Workplace agreements are either collective agreements or ITEAs. Note 2: Preserved State agreements are either preserved collective State agreements or preserved individual State agreements. Note 3: For transitional provisions relating to Division 2 of Part 7 of the WR Act (which deals with wages), see Schedule 9. Note 4: For transitional provisions relating to Schedule 6 to the WR Act (which deals with transitional awards etc.), see Schedule 20.

[page 1264] (3) The following WR Act instruments become transitional instruments on the WR Act repeal day: (a) each WR Act instrument (other than a Division 2B State reference

transitional award) that was in operation immediately before the WR Act repeal day; (b) each workplace agreement or workplace determination made before the WR Act repeal day but that had not yet come into operation by that day; (c) any other WR Act instrument that, although not in operation immediately before the WR Act repeal day, could come into operation after that day because of an instrument interaction rule. Note: Victorian employment agreements are not continued as transitional instruments. For provisions relating to these agreements, see Part 7 of this schedule. [subcl (3) am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(3A) If a State reference common rule comes into effect on or after the WR Act repeal day under the provisions that continue to apply because of item 8A, the State reference common rule becomes a transitional instrument when the common rule comes into effect. (4) If an ITEA is made during the bridging period under Division 7 of Part 2 of Schedule 8, the ITEA becomes a transitional instrument when it is made. (4A) A Division 2B State reference transitional award becomes a transitional instrument on the Division 2B referral commencement. The Division 2B referral commencement is the time when Division 2B of Part 13 of the FW Act commences. [subcl (4A) insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(5) Transitional instruments are classified as follows: (a) awards, and notional agreements preserving State awards, are award-based transitional instruments; (b) all other kinds of transitional instruments are agreement-based transitional instruments; (c) agreement-based transitional instruments of the following kinds are collective agreement-based transitional instruments: (i) collective agreements; (ii) workplace determinations; (iii) preserved collective State agreements; (iv) pre-reform certified agreements;

(v) old IR agreements; (vi) section 170MX awards; (d) agreement-based transitional instruments of the following kinds are individual agreement-based transitional instruments: (i) ITEAs; (ii) preserved individual State agreements; (iii) AWAs; (iv) pre-reform AWAs.

[30-555] Meaning of State reference transitional award and various other expressions associated with State references 2A (1) A State reference transitional award is a transitional award that covers: (a) one or more specified State reference employers; and (b) specified State reference employees of those employers. Note: A transitional award includes a transitional Victorian reference award.

[page 1265] (1A) State reference transitional awards are classified as follows: (a) if the employers and employees covered are Division 2A State reference employers and Division 2A State reference employees — the State reference transitional award is a Division 2A State reference transitional award; (b) if the employers and employees covered are Division 2B State reference employers and Division 2B State reference employees — the State reference transitional award is a Division 2B State reference transitional award. [subcl (1A) insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(2) A State reference common rule is a common rule that covers:

(a) specified State reference employers; and (b) specified State reference employees of those employers. (3) A State reference employee is an employee who is a national system employee only because of section 30C or 30M of the FW Act. [subcl (3) am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(3A) State reference employees are classified as follows: (a) employees who are national system employees because of section 30C of the FW Act are Division 2A State reference employees; (b) employees who are national system employees because of section 30M of the FW Act are Division 2B State reference employees. [subcl (3A) insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(4) A State reference employer is an employer that is a national system employer only because of section 30D or 30N of the FW Act. [subcl (4) am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(4A) State reference employers are classified as follows: (a) employers that are national system employers because of section 30D of the FW Act are Division 2A State reference employers; (b) employers that are national system employers because of section 30N of the FW Act are Division 2B State reference employers. [subcl (4A) insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(5) If: (a) a transitional award (the current award), as in force on the WR Act repeal day, covers one or more Division 2A State reference employers, and Division 2A State reference employees of those employers; and (b) the current award also covers: (i) other employees of those employers; or (ii) other employers, and employees of those other employers; then, for the purposes of this Act, the current award is taken instead, on and after that day (subject to subitem (6)), to constitute 2 separate transitional awards as follows: (c) a Division 2A State reference transitional award covering: (i) the employers, and the employees of those employers, referred

to in paragraph (a); and (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a) — that organisation in relation to those employers or employees; and (d) a transitional award covering: (i) the employers, and the employees of those employers, referred to in paragraph (b); and [page 1266] (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b) — that organisation in relation to those employers or employees. [subcl (5) am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(6) If: (a) a transitional award (the current award), as in force on the Division 2B referral commencement, covers one or more Division 2B State reference employers, and Division 2B State reference employees of those employers; and (b) the current award also covers: (i) other employees of those employers; or (ii) other employers, and employees of those other employers; then, for the purposes of this Act, the current award is taken instead, on and after the Division 2B referral commencement, to constitute 2 separate transitional awards as follows: (c) a Division 2B State reference transitional award covering: (i) the employers, and the employees of those employers, referred to in paragraph (a); and (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a) — that organisation in relation to those employers or employees;

(d) a transitional award covering: (i) the employers, and the employees of those employers, referred to in paragraph (b); and (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b) — that organisation in relation to those employers or employees. [subcl (6) insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(7) A referring State is: (a) a State (a Division 2A referring State) that is a referring State as defined in section 30B of the FW Act; or (b) a State (a Division 2B referring State) that is a referring State as defined in section 30L of the FW Act. [subcl (7) insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010] [heading am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

[30-560] The employees, employers etc. who are covered by a transitional instrument and to whom it applies 3 (1) A transitional instrument covers the same employees, employers and any other persons that it would have covered (however described in the instrument or WR Act) if the WR Act had continued in operation. Note 1: The expression covers is used to indicate the range of employees, employers etc. to whom the instrument potentially applies (see subitem (2)). The employees, employers etc. who are within this range will depend on terms of the instrument, and on any relevant provisions of the WR Act. Note 2: Depending on the terms of a transitional instrument and any relevant provisions of the WR Act, the instrument’s coverage may extend to people who become employees after the instrument becomes a transitional instrument.

[page 1267] (2) A transitional instrument applies to the same employees, employers and any other persons the instrument covers as would, if the WR Act had continued in operation, have been: (a) required by the WR Act to comply with terms of the instrument; or

(b) entitled under the WR Act to enforce terms of the instrument. Note: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of a transitional instrument.

(3) However, an award-based transitional instrument does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act). Note: Item 35 deals with the application of section 329 of the FW Act to award-based transitional instruments.

(4) This item has effect subject to: (a) the instrument interaction rules (see item 5); and (b) the variation or termination of transitional instruments as referred to in item 9; (c) Division 2 of Part 5 (which deals with interaction between transitional instruments and FW Act modern awards, workplace determinations and enterprise agreements); and (d) Schedule 11 (which deals with transfer of business); and (e) Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

[30-565] Transitional instruments continue to be subject to the same instrument content rules 4 (1) The same instrument content rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments. Note: Certain instrument content rules relating to the standing down of employees do not continue to apply in relation to WR Act instruments that become transitional instruments (see item 3 of Schedule 15).

(2) Instrument content rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, of any of the following kinds: (a) provisions about what may, must or must not be included in an instrument;

provisions to the effect that a particular term of an instrument is of (b) no effect (however described): (i) either completely or to a limited extent; and (ii) either permanently or for a limited period; (c) provisions to the effect that a particular term is taken to be included in an instrument. Note: Most of the instrument content rules were in the WR Act.

[30-570] Transitional instruments continue to be subject to the same instrument interaction rules 5 (1) The same instrument interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments. (2) Instrument interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that: [page 1268] (a) one instrument has priority over, or excludes, another instrument: (i) either completely or to a particular extent; and (ii) either permanently or for a particular period; or (b) one instrument ceases to operate because of another instrument: (i) either completely or to a particular extent; and (ii) either permanently or for a particular period. Note: Most of the instrument interaction rules were in the WR Act.

[30-575] Transitional instruments continue to be subject to the same State and Territory interaction rules

5A (1) The same State and Territory interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments. (2) State and Territory interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that: (a) an instrument prevails over, or excludes, a law of a State or Territory; or (b) an instrument has effect subject to a law of a State or Territory. Note: Most of the State and Territory interaction rules were in the WR Act.

[30-580] References in transitional instruments to the Australian Industrial Relations Commission etc. 6 (1) If a provision of a transitional instrument confers a power or function on the Australian Industrial Relations Commission, that provision has effect on and after the WR Act repeal day as if references in it to the Commission were instead references to the FWC. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1101, opn 1 Jan 2013]

(2) If a provision of a transitional instrument confers a power or function on the Industrial Registrar or a Deputy Industrial Registrar, that provision has effect on and after the WR Act repeal day as if references in it to the Industrial Registrar or a Deputy Industrial Registrar were instead references to the General Manager of the FWC. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1101, opn 1 Jan 2013]

(3) This item has effect subject to: (a) a contrary intention in this Act; and (b) the regulations.

[30-585] No loss of accrued rights or liabilities when transitional instrument terminates or ceases to apply

7 (1) If a transitional instrument terminates, or ceases to apply in relation to a person, that does not affect: (a) any right or liability that a person acquired, accrued or incurred before the transitional instrument terminated or ceased to apply; or (b) any investigation, legal proceeding or remedy in respect of any such right or liability. [page 1269] (2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the transitional instrument had not terminated or ceased to apply. (3) This item has effect subject to a contrary intention in this Act or in the FW Act.

[30-590] Certain transitional instruments displace certain Commonwealth laws 8 (1) To the extent of any inconsistency, the following transitional instruments displace prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations: (a) a workplace agreement; (b) a pre-reform certified agreement; (c) an AWA; (d) a pre-reform AWA. (2) In subitem (1): Commonwealth law means an Act or any regulations or other instrument made under an Act. prescribed conditions means conditions that are identified by the regulations. (3) If, immediately before the WR Act repeal day, regulations made under section 350 of the WR Act, or that continued to apply under subclause 2(2) or

17(2) of Schedule 7 to the WR Act: (a) identified a condition as a prescribed condition in relation to an instrument referred to in paragraph (1)(a), (b), (c) or (d); or (b) prescribed an Act or any regulations or other instrument made under an Act as a Commonwealth law in relation to such an instrument; those regulations continue to have effect on and after that day as if made for the purposes of this item. (4) Subitem (3) has effect subject to any regulations made for the purposes of subitem (1) or (2).

[30-595] Continuing application of provisions of the WR Act about common rules 8A (1) Subject to this item, clauses 82 to 87 of Schedule 6 to the WR Act continue to apply on and after the WR Act repeal day in relation to State reference common rules. (2) Clauses 82 to 87 continue to apply as if: (a) references in the clauses to the transitional period (including references to the end of the transitional period) were omitted; and (b) a reference in the clauses to the Commission were instead a reference to the FWC; and (c) a reference in the clauses to a Registrar were instead a reference to the General Manager of the FWC; and (d) a reference in the clauses to the Rules of the Commission were instead a reference to the procedural rules of the FWC. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1102, opn 1 Jan 2013]

(3) Subitem (2) has effect unless the context otherwise requires and subject to the regulations. Note: For example, paragraph (2)(a) does not apply if the reference is to something that the Commission did before the WR Act repeal day (or before the reform commencement).

[page 1270]

PART 3 — VARIATION AND TERMINATION OF TRANSITIONAL INSTRUMENTS [30-700] Transitional instruments can only be varied or terminated in limited circumstances 9 (1) A transitional instrument cannot be varied except under: (a) a provision of this Part or the regulations; or (b) item 26 (which deals with resolving difficulties with the interaction between transitional instruments and the National Employment Standards); or (c) Part 2 of Schedule 5 (which deals with the WR Act award modernisation process); or (d) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); or (e) Schedule 8 (which deals with workplace agreements and workplace determinations made under the WR Act); or (f) Schedule 11 (which deals with transfer of business); or (g) Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day). (2) A transitional instrument cannot be terminated (or otherwise brought to an end) except under: (a) a provision of this Part or the regulations; or (b) Part 2 of Schedule 5; or (c) Division 2 of Part 2 of Schedule 6; or (d) Schedule 8; or (e) Schedule 11; or (f) Part 3 of Schedule 2. Note: The references in paragraphs (1)(a) and (2)(a) to a provision of this Part or the regulations includes a reference to a provision of the WR Act or the FW Act as it applies because of a provision of this Part.

[30-705] All kinds of transitional instrument: variation to remove ambiguities etc. 10 (1) On application by a person covered by a transitional instrument, the FWC may make a determination varying the instrument: (a) to remove an ambiguity or uncertainty in the instrument; or (b) to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or (c) to remove terms that are inconsistent with Part 3-1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part. Note: For variation of a transitional instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 26. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1103, opn 1 Jan 2013]

(2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.

[30-710] All kinds of transitional instrument: variation on referral by AHRC 11 (1) This item applies if a transitional instrument is referred to the FWC under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments). [subcl (1) am Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010; Act 174 of 2012 s 3 and Sch 9 item 1103, opn 1 Jan 2013]

[page 1271] (2) If the instrument is an award-based transitional instrument, section 161 of the FW Act applies in relation to the referral of the instrument as if the instrument were a modern award. (3) If the transitional instrument is an agreement-based transitional instrument, section 218 of the FW Act applies in relation to the referral of the instrument as if the instrument were an enterprise agreement.

[heading am Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010]

[30-715] Awards: continued application of WR Act provisions about variation and revocation 12 (1) Subject to this item, Divisions 5 (other than subsections 554(1) to (4)) and 6 of Part 10 of the WR Act continue to apply on and after the WR Act repeal day in relation to transitional instruments that are awards as if references to the Commission were instead references to the FWC. Note: Items 10 and 11 apply instead of subsections 554(1) to (4) of the WR Act. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1103, opn 1 Jan 2013]

(2) The FWC must perform its powers and functions under Divisions 5 and 6 in a way that furthers the objects of Part 10 of the WR Act. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1104, opn 1 Jan 2013]

(3) An award cannot be varied or revoked under Division 5 or 6 after the end of the bridging period, except as follows: (a) an award can be varied after the end of the bridging period under section 553 of the WR Act; (b) an award can be varied or revoked after the end of the bridging period as a result of the FWC continuing to deal with a matter that it was dealing with before the end of the bridging period. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1105, opn 1 Jan 2013]

[30-720] State reference transitional awards: variation and revocation 12A General provisions (1) Subject to this item, Divisions 5 (other than subsections 554(1) to (4)) and 6 of Part 10 of the WR Act apply on and after the WR Act repeal day in relation to transitional instruments that are State reference transitional awards as if: (a) references to the Commission were instead references to the FWC; and (b) references to an award included references to a State reference transitional award.

Note 1: Items 10 and 11 apply instead of subsections 554(1) to (4) of the WR Act. Note 2: For variation of State reference common rules, see the provisions continued in effect by item 8A. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1105, opn 1 Jan 2013]

(2) To avoid doubt, for the purpose of sections 552 and 553 of the WR Act, as applied by subitem (1) in relation to State reference transitional awards, “minimum safety net entitlements” includes minimum safety net entitlements relating to wages. Note: For variation of terms relating to wages after the end of the bridging period, see subitems (4) to (6).

(3) The FWC must perform its powers and functions under Divisions 5 and 6 in a way that furthers the objects of Part 10 of the WR Act. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1106, opn 1 Jan 2013]

[page 1272] Special provisions about variation or revocation after the end of the bridging period (4) A State reference transitional award cannot be varied or revoked after the end of the bridging period except as follows: (a) a State reference transitional award, other than terms relating to wages, can be varied after the end of the bridging period under section 553 of the WR Act; (b) terms of a State reference transitional award relating to wages can be varied after the end of the bridging period in an annual wage review under the FW Act as provided for in subitem (5); (c) a State reference transitional award can be varied after the end of the bridging period as a result of the FWC continuing to deal with a matter that it was dealing with before the end of the bridging period. [subcl (4) am Act 174 of 2012 s 3 and Sch 9 item 1107, opn 1 Jan 2013]

(5) In an annual wage review, the FWC may make a determination varying terms of a State reference transitional award relating to wages. [subcl (5) am Act 174 of 2012 s 3 and Sch 9 item 1107, opn 1 Jan 2013]

(6) For the purpose of subitem (5), Division 3 of Part 2-6 of the FW Act (other than section 292) applies to terms of a State reference transitional award relating to wages in the same way as it applies to a modern award.

[30-725] Pre-reform certified agreements: continued application of WR Act provisions about variation 13 (1) Subject to this item, clause 2A of Schedule 7 to the WR Act continues to apply on and after the WR Act repeal day in relation to transitional instruments that are pre-reform certified agreements as if references to the Commission were instead references to FWA. Note: This subitem has effect subject to Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

(2) An application under clause 2A cannot be made after the end of the bridging period.

[30-730] Preserved collective State agreements: continued application of WR Act provisions about variation 14 (1) Subject to this item, clause 16A of Schedule 8 to the WR Act continues to apply on and after the WR Act repeal day in relation to transitional instruments that are preserved State agreements as if references to the Commission were instead references to FWA. Note: This subitem has effect subject to Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

(2) An application under clause 16A cannot be made after the end of the bridging period.

[30-735] Collective agreement-based transitional instruments: termination by agreement 15 Subdivision C of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements by employers and employees)

applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. [page 1273]

[30-740] Collective agreement-based transitional instruments: termination by the FWC 16 (1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. (2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement. [cl 16 am Act 174 of 2012 s 3 and Sch 9 item 1108, opn 1 Jan 2013]

[30-745] Individual agreement-based transitional instruments: termination by agreement 17 (1) The employee and employer covered by an individual agreementbased transitional instrument may make a written agreement (a termination agreement) to terminate the agreement in accordance with the following requirements: (a) the termination agreement must be signed by the employee and the employer; (b) if the employee is under 18, it must also be signed by a parent or guardian of the employee; (c) the signatures must be witnessed. (2) The termination has no effect unless it has been approved by the FWC. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1109, opn 1 Jan 2013]

(3) The employer or employee may apply to the FWC for approval of the

termination agreement. The application must be made: (a) within 14 days after the termination agreement was made; or (b) if in all the circumstances the FWC considers it fair to extend that period — within such further period as the FWC allows. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1109, opn 1 Jan 2013]

(4) If an application for the FWC to approve the termination agreement is made under subitem (3), the FWC must approve the termination of the instrument if: (a) the FWC is satisfied that the requirements of subitem (1) have been complied with; and (b) the FWC is satisfied that there are no other reasonable grounds for believing that the employee has not agreed to the termination. [subcl (4) am Act 174 of 2012 s 3 and Sch 9 item 1109, opn 1 Jan 2013]

(5) If the termination is approved under subitem (4), the termination operates from the day specified in the decision to approve the termination.

[30-750] Individual agreement-based transitional instruments: termination conditional on enterprise agreement 18 (1) This item provides for the making of an instrument (a conditional termination) that will have the effect of terminating an individual agreementbased transitional instrument if: (a) an enterprise agreement (the proposed enterprise agreement) is made that covers the employee and the employer; and (b) the proposed enterprise agreement comes into operation. (2) If the transitional instrument has not passed its nominal expiry date, the conditional termination must be a written agreement signed by the employer and the employee. The signatures must be witnessed. [page 1274] (3) If the transitional instrument has passed its nominal expiry date, the

conditional termination must be in writing and signed either by the employee or the employer. The signature must be witnessed. (4) If the conditional termination is signed by the employee, and the employee is under 18, it must also be signed by a parent or guardian of the employee. (5) Any other requirements of the regulations relating to the form, content or making of the conditional termination must also be complied with. (6) The employer must give the employee a copy of the conditional termination if: (a) the conditional termination is an agreement signed by the employee and the employer in the circumstances covered by subitem (2); or (b) the conditional termination is signed by the employer in the circumstances covered by subitem (3). Note 1: For compliance with this obligation, see subitem 3(1) of Schedule 16. Note 2: Failure to comply with this obligation does not affect the operation of subitem (8).

(7) The conditional termination must accompany any application to the FWC for approval of the proposed enterprise agreement under section 185 of the FW Act. Note 1: For compliance with this obligation, see subitem 3(2) of Schedule 16. Note 2: Failure to comply with this obligation does not affect the operation of subitem (8), or the validity of an approval by the FWC of the proposed enterprise agreement. [subcl (7) am Act 174 of 2012 s 3 and Sch 9 item 1110, opn 1 Jan 2013]

(8) If the requirements of subitems (2) to (5) have been complied with in relation to the conditional termination, the transitional instrument terminates when the proposed enterprise agreement comes into operation.

[30-755] Individual agreement-based transitional instruments: unilateral termination with the FWC’s approval 19 (1) This item applies to an employer or employee: (a) to whom an individual agreement-based transitional instrument that has passed its nominal expiry date applies; and (b) who wants to terminate the transitional instrument.

(2) The employer or employee may: (a) make a written declaration that identifies the transitional instrument and that states that the employer or employee wants to terminate the transitional instrument; and (b) apply to the FWC for the approval of the termination. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1112, opn 1 Jan 2013]

(3) The employer or employee cannot make an application as mentioned in paragraph (2)(b) unless, at least 14 days before the day on which the application is made, the employer or employee gives the other of them a notice complying with the following requirements: (a) the notice must identify the transitional instrument; (b) the notice must state that the employer or employee intends to apply to the FWC for approval of the termination of the instrument; (c) the notice must state that, if the FWC approves the termination, the transitional instrument will terminate on the 90th day after the day on which the FWC makes the approval decision; [page 1275] (d) if the notice is given by the employer: (i) the notice must state whether, if the instrument terminates during the bridging period, one or more redundancy provisions in the instrument will continue to apply to the employee as provided for by item 38; and (ii) if one or more redundancy provisions in the instrument will so continue to apply to the employee — the notice must include or be accompanied by a copy of the provision or provisions; (e) the notice must comply with any other requirements of the regulations. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1112, opn 1 Jan 2013]

(4) The FWC must approve the termination if the FWC is satisfied that: (a) the transitional instrument applies to the employer and the employee; and

(b) the requirements of subitems (2) and (3) have been complied with. [subcl (4) am Act 174 of 2012 s 3 and Sch 9 items 1113, 1114, opn 1 Jan 2013]

(5) If the FWC approves the termination, the transitional instrument terminates on the 90th day after the day on which the FWC makes the approval decision. [subcl (5) am Act 174 of 2012 s 3 and Sch 9 item 1115, opn 1 Jan 2013] [cl 19 am Act 174 of 2012 s 3 and Sch 9 item 1111, opn 1 Jan 2013]

[30-760] Sunsetting rules for various transitional instruments 20 Notional agreements preserving State awards (1) A notional agreement preserving State awards (other than a notional agreement that is an enterprise instrument) terminates: (a) on the 4th anniversary of the FW (safety net provisions) commencement day; or (b) if the regulations prescribe a later day — on that later day. Division 3 pre-form certified agreements (2) If the employer in relation to a Division 3 pre-reform certified agreement is not a national system employer, the agreement terminates on the earlier of the following: (a) 27 March 2011; (b) when both of the following conditions are satisfied: (i) the agreement has passed its nominal expiry date; (ii) it has been replaced by a State employment agreement (within the meaning of the WR Act). [subcl (2) am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(3) However, if the employer becomes a national system employer before 27 March 2011, subitem (2) does not apply after that time. Old IR agreements (4) If the employer in relation to an old IR agreement is not a national system employer, the agreement terminates on the earlier of the following: (a) 27 March 2011;

(b) when it has been replaced by a State employment agreement (within the meaning of the WR Act). [subcl (4) am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(5) However, if the employer becomes a national system employer before 27 March 2011, subitem (4) does not apply after that time. [page 1276] Section 107MX awards (6) If: (a) the employer in relation to a section 170MX award is not a national system employer; and (b) the section 170MX award: (i) was in force just before 27 March 2006; or (ii) was made on or after that day because of Part 8 of Schedule 7 to the WR Act; the award terminates on the earlier of the following: (c) 27 March 2011; (d) when it has been replaced by a State employment agreement (within the meaning of the WR Act). [subcl (6) am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(7) However, if the employer becomes a national system employer before 27 March 2011, subitem (6) does not apply after that time.

[30-765]

Effect of termination

21 If a transitional instrument terminates, it ceases to cover (and can never again cover) any employees, employers or other persons.

PART 4 — TRANSITIONAL INSTRUMENTS AND THE AUSTRALIAN FAIR PAY AND CONDITIONS STANDARD

[30-870] to apply

Same AFPCS interaction rules continue

22 (1) Subject to this item, the same AFPCS interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments. Note 1: Schedule 4 provides for the continued application of the Australian Fair Pay and Conditions Standard (other than minimum wages provisions) during the bridging period. Note 2: Schedule 9 provides for the continued application of the minimum wages provisions of the Australian Fair Pay and Conditions Standard on and after the WR Act repeal day.

(2) AFPCS interaction rules of the kind referred to in paragraph (4)(b) do not continue to apply after the end of the bridging period. Note: This may result in an employee becoming entitled to a rate of pay under a transitional APCS that is higher than was required to be paid to the employee under a transitional instrument during the bridging period. If that occurs, the employer may apply to the FWC for a determination to phase-in the effect of the increase (see item 14 of Schedule 9). [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1116, opn 1 Jan 2013]

(3) If, immediately before the end of the bridging period, an AFPCS interaction rule of the kind referred to in paragraph (4)(b) produced the result that an employee to whom a transitional instrument applied was not covered by the obligation in subsection 182(1) or (2) of the WR Act in relation to a transitional APCS, the employee becomes covered by that obligation in relation to that transitional APCS from the end of the bridging period. (4) AFPCS interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that: [page 1277] (a) the Australian Fair Pay and Conditions Standard prevails over an instrument (or an instrument is of no effect because of the Standard) either completely or to a particular extent; or (b) an instrument prevails over the Australian Fair Pay and Conditions Standard (or the Standard does not apply because of the instrument) either completely or to a particular extent.

Note: Most of the AFPCS interaction rules were in the WR Act.

PART 5 — TRANSITIONAL INSTRUMENTS AND THE FW ACT DIVISION 1 — INTERACTION BETWEEN TRANSITIONAL INSTRUMENTS AND THE NATIONAL EMPLOYMENT STANDARDS

[30-975]

The no detriment rule

23 (1) To the extent that a term of a transitional instrument is detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the transitional instrument is of no effect. Note 1: A term of a transitional instrument that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the National Employment Standards will continue to have effect. Note 2: Division 3 (which contains other general provisions about how the FW Act applies in relation to transitional instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom transitional instruments apply. Note 3: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).

(1A) If there is a dispute about the application of this item which must be resolved by the FWC in accordance with item 26, the FWC may compare the entitlements which are in dispute: (a) on a “line-by-line” basis, comparing individual terms; or (b) on a “like-by-like” basis, comparing entitlements according to particular subject areas; or (c) using any combination of the above approaches the FWC sees fit. [subcl (1A) am Act 174 of 2012 s 3 and Sch 9 item 1117, opn 1 Jan 2013]

(2) Subitem (1) does not affect a term of a transitional instrument that is permitted by a provision of the National Employment Standards as it has effect under item 24. (3) The regulations may make provisions that apply to determining, for the

purpose of this item, whether terms of a transitional instrument are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.

[30-980] Provisions of the NES that allow instruments to contain particular kinds of terms 24 (1) The following provisions of the National Employment Standards have effect, on and after the FW (safety net provisions) commencement day, as if a reference to a modern award or an enterprise agreement included a reference to a transitional instrument: [page 1278] (a) section 63 (which allows terms dealing with averaging of hours of work); (b) section 93 (which allows terms dealing with cashing out and taking paid annual leave); (c) section 101 (which allows terms dealing with cashing out paid personal/carer’s leave); (d) subsection 107(5) (which allows terms dealing with evidence requirements for paid personal/carer’s leave etc.); (e) subsection 115(3) (which allows terms dealing with substitution of public holidays); (f) section 118 (which allows terms dealing with an employee giving notice to terminate his or her employment); (g) subsections 121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section 119 does not apply); (h) section 126 (which allows terms providing for school-based apprentices and trainees to be paid loadings in lieu). (2) If: (a) a transitional instrument includes terms referred to in subsection (1)

of section 93 or 101 of the National Employment Standards; but (b) the terms do not include the requirements referred to in subsection (2) of that section; the instrument is taken to include terms that include the requirements.

[30-985]

Shiftworker annual leave entitlement

25 (1) If: (a) a transitional instrument applies to an employee; and (b) the employee is a shift worker as defined in section 228 of the WR Act; the employee is taken to qualify for the shiftworker annual leave entitlement for the purposes of section 87 of the FW Act. (2) This item has effect subject to subsection 87(4) of the FW Act.

[30-990] Resolving difficulties about application of this Division 26 (1) On application by a person covered by a transitional instrument, the FWC may make a determination varying the transitional instrument: (a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards; or (b) to make the instrument operate effectively with the National Employment Standards. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1117, opn 1 Jan 2013]

(2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.

[30-995] Division does not affect transitional instruments before NES commencement 27 This Division (including determinations under item 26) does not affect the operation of a transitional instrument at any time before the FW (safety net provisions) commencement day.

[page 1279]

DIVISION 2 — INTERACTION BETWEEN TRANSITIONAL INSTRUMENTS AND FW ACT MODERN AWARDS, ENTERPRISE AGREEMENTS AND WORKPLACE DETERMINATIONS

[30-1020] Modern awards and agreement-based transitional instruments 28 (1) While an agreement-based transitional instrument of any of the following kinds applies to an employee, or to an employer or other person in relation to the employee: (a) a workplace agreement; (b) a workplace determination; (c) a preserved State agreement; (d) an AWA; (e) a pre-reform AWA; a modern award does not apply to the employee, or to the employer or other person in relation to the employee. Note 1: However, a modern award can continue to cover the employee while the agreement-based transitional instrument continues to apply. Note 2: This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement-based transitional instrument must not be less than the relevant modern award rate).

(2) If: (a) an agreement-based transitional instrument of any of the following kinds: (i) a pre-reform certified agreement; (ii) an old IR agreement; (iii) a section 170MX award; and (b) a modern award; both apply to an employee, or to an employer or other person in relation to

the employee, the agreement-based transitional instrument prevails over the modern award, to the extent of any inconsistency. Note: This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement-based transitional instrument must not be less than the relevant modern award rate).

[30-1025] Terms of modern awards about outworker conditions continue to apply 28A (1) This item applies if, at a particular time: (a) an agreement-based transitional instrument applies to an employee; and (b) outworker terms (within the meaning of the FW Act) in a modern award would, but for the transitional instrument, apply to the employee. (2) Despite item 28 and despite any terms of the agreement-based transitional instrument that are detrimental to the employee in any respect when compared to the terms of the modern award, the outworker terms apply at that time to the following persons: (a) the employee; (b) the employer; (c) each employee organisation to which the modern award applies. (3) To avoid doubt, to the extent to which terms of a modern award apply to an employee, an employer or an employee organisation because of subitem (2), the modern award applies to the employee, employer or organisation. [page 1280]

[30-1030] Modern awards and award-based transitional instruments 29 Modern awards other than the miscellaneous modern award (1) If a modern award (other than the miscellaneous modern award) that covers an employee, or an employer or other person in relation to the

employee, comes into operation, then an award-based transitional instrument ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee. Note: A modern award cannot be expressed to cover an employee who is covered by a transitional instrument that is an enterprise instrument or a State reference public sector transitional award (see subsection 143(8) and (10) of the FW Act). [subcl (1) am Act 54 of 2009 s 3 and Sch 2, opn 1 July 2009]

The miscellaneous modern award (2) While an award-based transitional instrument that covers an employee, or an employer or other person in relation to the employee, is in operation, the miscellaneous modern award does not cover the employee, or the employer or other person in relation to the employee. Outworker entities (3) If a modern award (other than the miscellaneous modern award) that contains outworker terms that cover an outworker entity comes into operation, then outworker terms in an award-based transitional instrument cease to cover (and can never again cover) the outworker entity. (4) While outworker terms in an award-based transitional instrument that is in operation cover an outworker entity, any outworker terms in the miscellaneous modern award do not cover the outworker entity. (5) Outworker terms in an award-based transitional instrument are terms that would be outworker terms as defined in the FW Act if they were in a modern award.

[30-1035] FW Act enterprise agreements and workplace determinations, and agreement-based transitional instruments 30 Individual agreement-based transitional instruments (1) While an individual agreement-based transitional instrument applies to an employee, or to an employer in relation to the employee, an enterprise agreement or workplace determination (under the FW Act) does not apply to the employee, or the employer in relation to the employee. Collective agreement-based transitional instruments (2) If an enterprise agreement or workplace determination (under the FW

Act) starts to apply to an employee, or an employer or other person in relation to the employee, then a collective agreement-based transitional instrument ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee. Note 1: The fact that a collective agreement-based transitional instrument applies to employees does not prevent those employees and their employer from replacing that transitional instrument at any time with an enterprise agreement, regardless of whether the transitional instrument has passed its nominal expiry date. Note 2: Industrial action must not be taken before the nominal expiry date of an agreement-based transitional instrument, even if it is being replaced by an enterprise agreement (see item 4 of Schedule 13).

[page 1281]

[30-1040] FW Act enterprise agreements and workplace determinations, and award-based transitional instruments 31 If an enterprise agreement or workplace determination (under the FW Act) applies to an employee, or an employer or other person in relation to the employee, then: (a) an award-based transitional instrument ceases to apply to the employee, and the employer or other person in relation to the employee; but (b) the award-based transitional instrument can (subject to the other provisions of this Part) continue to cover the employee, and the employer or other person in relation to the employee. Note: Subject to the other provisions of this Part, the award-based transitional instrument can again start to apply to the employee, and the employer or other person in relation to the employee, if the enterprise agreement or workplace determination (under the FW Act) ceases to apply to the employee.

[30-1045] Designated outworker terms of awardbased transitional instrument continue to apply 31A (1) This item applies if, at a particular time:

an enterprise agreement or workplace determination (under the FW (a) Act) applies to an employer; and (b) an award-based transitional instrument covers the employer (whether the transitional instrument covers the employer in the employer’s capacity as an employer or an outworker entity); and (c) the transitional instrument includes one or more designated outworker terms. (2) Despite item 31, the designated outworker terms of the award-based transitional instrument apply at that time to the following: (a) the employer; (b) each employee who is both: (i) a person to whom the enterprise agreement or workplace determination applies; and (ii) a person who is covered by the transitional instrument; (c) each employee organisation that is covered by the transitional instrument. (3) To avoid doubt: (a) award-based transitional instruments are taken to be instruments to which the definition of designated outworker term in section 12 of the FW Act applies; and (b) designated outworker terms of an award-based transitional instrument can apply to an employer under subitem (2) even if none of the employees of the employer is an outworker; and (c) to the extent to which designated outworker terms of an awardbased transitional instrument apply to an employer, an employee or an employee organisation because of subitem (2), the transitional instrument applies to the employer, employee or organisation.

DIVISION 3 — OTHER GENERAL PROVISIONS ABOUT HOW THE FW ACT APPLIES IN RELATION TO TRANSITIONAL INSTRUMENTS

[30-1070]

Employee not award/agreement free if

transitional instrument applies 32 (1) An employee is not an award/agreement free employee for the purposes of the FW Act if a transitional instrument applies to the employee. [page 1282] (2) The regulations may make provision in relation to any of the following in relation to employees to whom transitional instruments apply: (a) what is the base rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards); (b) what is the full rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards); (c) whether such an employee is a pieceworker for the purposes of the FW Act.

[30-1075]

Employee’s ordinary hours of work

33 Item applies for purpose of determining employee’s ordinary hours of work for the FW Act (1) For the purposes of the FW Act, the ordinary hours of work of an employee to whom a transitional instrument applies are to be determined in accordance with this item. Ordinary hours as specified in transitional instrument (2) If a transitional instrument that applies to the employee specifies, or provides for the determination of, the employee’s ordinary hours of work, the employee’s ordinary hours of work are as specified in, or determined in accordance with, that instrument. If subitem (2) does not apply and there is agreement (3) If subitem (2) does not apply, the employee’s ordinary hours of work are the hours agreed by the employee and his or her employer as the employee’s ordinary hours of work.

If subitem (2) does not apply and there is no agreement (4) If subitem (2) does not apply but there is no agreement under subitem (3), the ordinary hours of work of the employee in a week are: (a) if the employee is a full time employee — 38 hours; or (b) if the employee is not a full-time employee — the lesser of: (i) 38 hours; and (ii) the employee’s usual weekly hours of work. If subitem (2) does not apply: agreed hours are less than usual weekly hours (5) If: (a) subitem (2) does not apply; and (b) the employee is not a full-time employee; and (c) there is an agreement under subitem (3) between the employee and his or her employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work; the ordinary hours of work of the employee in a week are the lesser of: (d) 38 hours; and (e) the employee’s usual weekly hours of work. Regulations may prescribe usual weekly hours (6) For an employee who is not a full-time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subitems (4) and (5). [page 1283]

[30-1080]

Payment of wages

34 Division 2 of Part 2-9 of the FW Act (which deals with payment of wages) applies, on and after the WR Act repeal day, in relation to a transitional instrument as if: (a) a reference to an enterprise agreement included a reference to an

agreement-based transitional instrument; and (b) a reference to a modern award included a reference to an awardbased transitional instrument.

[30-1085]

Guarantee of annual earnings

35 Division 3 of Part 2-9 of the FW Act (which deals with the guarantee of annual earnings) applies, on and after the FW (safety net provisions) commencement day, as if: (a) a reference to an enterprise agreement included a reference to an agreement-based transitional instrument; and (b) a reference to a modern award included a reference to an awardbased transitional instrument and a transitional APCS. Note: For provisions about transitional APCSs, see Schedule 9.

[30-1090] Application of unfair dismissal provisions 36 Part 3-2 of the FW Act (which deals with unfair dismissal) applies, on and after the WR Act repeal day, as if: (a) the reference in subparagraph 382(b)(i) and paragraph 389(1)(b) of that Act to a modern award included a reference to an award-based transitional instrument; and (b) the reference in subparagraph 382(b)(ii) and paragraph 389(1)(b) of that Act to an enterprise agreement included a reference to an agreement-based transitional instrument.

[30-1095] matters

Regulations may deal with other

37 The regulations may deal with other matters relating to how the FW Act applies in relation to transitional instruments.

PART 6 — PRESERVATION OF REDUNDANCY

PROVISIONS IN AGREEMENTS ETC. [30-1200] Preservation of redundancy provisions when agreement-based transitional instrument terminates 38 When this item applies (1) This item applies if a termination of an agreement-based transitional instrument (the terminated instrument) takes effect during the bridging period in either of the following circumstances: (a) the instrument is a preserved collective State agreement or a prereform certified agreement that is terminated by FWA as provided for by item 16 because of an application made by an employer covered by the agreement; (b) the instrument is an individual agreement-based transitional instrument that terminates under item 19 because FWA approves a termination of the instrument by an employer covered by the instrument. [page 1284] Continuation of redundancy provisions (2) Any redundancy provision that was in the terminated instrument continues to apply to any person to whom the terminated instrument applied immediately before the termination took effect, as if the terminated instrument had continued operating. Note: For how long the redundancy provision continues to apply, see subitem (6).

(3) A redundancy provision that continues to apply to a person under subitem (2) is taken, for the purpose of this Act, to be a transitional instrument of the same kind as the terminated instrument. However, this does not apply for the purpose of: (a) the provisions of Parts 2, 3, 4 and 5 of this Schedule, other than subitems 20(2) and (3) and item 23; or

(b) any other provisions prescribed by the regulations. [subcl (3) am Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010]

Continued redundancy provisions generally prevail over other instruments (4) Subject to subitem (5), a redundancy provision that continues to apply to a person under subitem (2) prevails over any other redundancy provision included in any other instrument that would otherwise apply (even if the provisions in that other instrument might be more beneficial to the employee). Note: For how long the redundancy provision continues to apply, see subitem (6).

(5) However, if: (a) an industry-specific redundancy scheme in a modern award applies to an employee; and (b) a redundancy provision that continues to apply to an employee under subitem (2) is detrimental to the employee, in any respect, when compared to the scheme in the modern award; then the scheme in the modern award prevails over the redundancy provision, to the extent that the redundancy provision is detrimental to the employee. Period for which redundancy provisions are continued (6) A redundancy provision continues under subitem (2) to apply to a person, in relation to an employee to whom the provision applies, until the earliest of the following: (a) the end of the period of 24 months from the time the termination took effect; (b) the time when the employee ceases to be employed by the employer (otherwise than in circumstances covered by the provision); (c) the time when an enterprise agreement, workplace determination or ITEA starts to apply to the employee. Definitions (7) In this item: instrument means: (a) an award-based transitional instrument; or

(b) (c) (d) (e)

a collective agreement; or a collective preserved State agreement; or a pre-reform certified agreement; or an old IR agreement. [page 1285]

redundancy provision means any of the following kinds of provisions: (a) a provision relating to redundancy pay in relation to a termination of employment; (b) a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment; (c) a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment; where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent.

[30-1205] Notification of preservation of redundancy provisions 39 When this item applies (1) This item applies if: (a) FWA makes a decision (a termination decision) of either of the following kinds: (i) a decision to terminate a transitional instrument as referred to in paragraph 38(1)(a); (ii) a decision to approve a termination of a transitional instrument as referred to in paragraph 38(1)(b); and (b) when the termination takes effect, one or more redundancy provisions in the instrument will continue to apply to persons (affected persons) in accordance with item 38.

Notification requirements if the transitional instrument is a 21 preserved collective State agreement or a pre-reform certified 22 agreement (2) If the transitional instrument is a preserved collective State agreement or a pre-reform certified agreement: (a) the termination decision must: (i) identify the redundancy provision or the redundancy provisions; and (ii) state that the provision or provisions will continue to apply to the affected persons; and (iii) specify the date that is 24 months after the time when the termination takes effect; and (iv) state that the provision or provisions will continue to apply until that date, or an earlier date, in accordance with subitem 38(6); and (b) FWA must give a copy of the termination decision to each affected person that is: (i) an employer; or (ii) an employee organisation. (3) An employer that has, under subitem (2), received a copy of a termination decision must take reasonable steps to ensure that all employees to whom the instrument applied immediately before the termination takes effect are given a copy of the decision within 21 days of the employer receiving a copy of the decision. Note: For compliance with this obligation, see item 4 of Schedule 16.

[page 1286] Notification requirements if the transitional instrument is an individual agreement-based transitional instrument (4) If the transitional instrument is an individual agreement-based transitional instrument, the termination decision must: (a) identify the redundancy provision or the redundancy provisions;

and (b) state that the provision or provisions will continue to apply to the affected persons; and (c) specify the date that is 24 months after the time when the termination takes effect; and (d) state that the provision or provisions will continue to apply until that date, or an earlier date, in accordance with subitem 38(6).

[30-1210] Redundancy provisions that were already preserved as at the WR Act repeal day 40 (1) This item applies if, immediately before the WR Act repeal day, redundancy provisions that were in a WR Act instrument (the terminated instrument) that was terminated before that day (the actual termination) were continuing to bind persons under any of the following provisions: (a) section 399A of the WR Act; (b) section 399A of the pre-transition Act (within the meaning of Schedule 7A to the WR Act); (c) clause 6A of Schedule 7 to the WR Act; (d) clause 20A of Schedule 7 to the WR Act; (e) clause 21A of Schedule 8 to the WR Act; (f) clause 21D of Schedule 8 to the WR Act. (2) Item 38 applies as if: (a) the redundancy provisions were a transitional instrument of the same kind as the terminated instrument; and (b) a termination of that transitional instrument took effect on the WR Act repeal day as referred to in subitem 38(1); and (c) the reference in paragraph 38(6)(a) to 24 months were instead a reference to the unexpired part of the period of 24 months that started on the actual termination. (3) Item 39 does not apply to the termination referred to in paragraph (2) (b).

PART 7 — VICTORIAN EMPLOYMENT AGREEMENTS

[30-1215] Part applies to Victorian employment agreements 41 This Part applies to a Victorian employment agreement that was in force in relation to an employer and an employee (the parties) under Division 12 of Part 21 of the WR Act immediately before the WR Act repeal. A Victorian employment agreement is an employment agreement within the meaning of that Division.

[30-1220] Victorian employment agreement enforceable as a contract 42 On and after the WR Act repeal day the Victorian employment agreement is enforceable by one of the parties against the other party as if it were a contract. The provisions of Division 12 of Part 21 of the WR Act do not continue to apply in relation to the agreement. [page 1287]

PART 8 — TRANSITIONAL PAY EQUITY ORDER TAKEN TO HAVE BEEN MADE BY FWA — DIVISION 2B STATE REFERENCE TRANSITIONAL AWARDS [Pt 8 insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

[30-1225] FWA taken to have made a transitional pay equity order to continue the effect of State pay equity orders 43 (1) On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order) under this item.

(2) The transitional pay equity order applies to an employer if: (a) a modern award applies to the employer on or after the Division 2B referral commencement; and (b) the employer is prescribed by the regulations for the purposes of this paragraph, or is included in a class of employers prescribed by the regulations for the purposes of this paragraph; and (c) immediately before the Division 2B referral commencement, a transitional award (the relevant transitional award) applied to the employer. Note: Transitional award has the same meaning as in Schedule 6 to the WR Act. Schedule 6 is continued in operation by Schedule 20 to this Act.

(3) An employer must not be prescribed by regulations for the purposes of paragraph (2)(b) unless: (a) an order, decision or determination of a State industrial body (the source pay equity order) would have applied to the employer if the relevant transitional award had not applied to the employer; and (b) the source pay equity order satisfies subitem (4). (4) A source pay equity order satisfies this subitem if it: (a) was made before 15 September 2009; and (b) provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and (c) was made wholly or partly on the ground of work value, pay equity or equal remuneration (however described); and (d) is prescribed by the regulations for the purposes of this paragraph. (5) If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid if the source pay equity order had applied to the employer in respect of the period. (6) An employee of an employer to which this item applies is an affected employee of the employer if the employee performs work of a kind, at a classification level (however described), in relation to which the source pay equity order determines a base rate of pay.

(7) The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer. (8) A term of a modern award is of no effect to the extent that: (a) an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and [page 1288] (b) the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a). (9) However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (8)(a).

[page 1289]

[30-1230] SCHEDULE 3A — TREATMENT OF STATE AWARDS AND STATE EMPLOYMENT AGREEMENTS OF DIVISION 2B REFERRING STATES [Sch 3A insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

PART 1 — PRELIMINARY [30-1235]

Meanings of employer and employee

1 In this Schedule, employer and employee have their ordinary meanings.

PART 2 — DIVISION 2B STATE INSTRUMENTS [30-1236] What are Division 2B State instruments? 2 (1) A Division 2B State instrument is a Division 2B State award (see item 3) or a Division 2B State employment agreement (see item 5). (2) Subject to subitem (3), a State award is an instrument in relation to which the following conditions are satisfied: (a) the instrument regulates terms and conditions of employment; (b) the instrument was made under a State industrial law by a State industrial body; (c) the instrument is referred to in that law as an award. Note: This definition does not apply to a reference in a provision of this Act to a State award if the provision expressly refers to the meaning that was given by the WR Act.

(3) The regulations may provide that an instrument of a specified kind:

(a) is a State award; or (b) is not a State award. (4) Subject to subitem (5), a State employment agreement is: (a) an agreement in relation to which the following conditions are satisfied: (i) the agreement is between an employer and one or more employees of the employer, or between an employer and an association of employees registered under a State industrial law; (ii) the agreement determines terms and conditions of employment of one or more employees of the employer; (iii) the agreement was made under a State industrial law; or (b) a determination in relation to which the following conditions are satisfied: (i) the determination determines terms and conditions of employment; (ii) the determination was made under a State industrial law by a State industrial body; (iii) the determination was made in a situation in which parties who were negotiating for the making of an agreement of a kind described in paragraph (a) had not been able to reach an agreement; (iv) the purpose of the determination was to resolve the matters that were at issue in those negotiations. Note: This definition does not apply to a reference in a provision of this Act to a State employment agreement if the provision expressly refers to the meaning that was given by the WR Act.

[page 1290] (5) The regulations may provide that an instrument of a specified kind: (a) is a State employment agreement; or (b) is not a State employment agreement.

(6) A State employment agreement is a collective State employment agreement unless: (a) it is an agreement of a kind that, under the relevant State industrial law, could only be entered into by a single employee and a single employer; or (b) the agreement is of a kind prescribed by the regulations for the purpose of this paragraph. (7) A State employment agreement referred to in paragraph (6)(a) or (b) is an individual State employment agreement.

[30-1237]

Division 2B State awards

3 (1) If, immediately before the Division 2B referral commencement: (a) a State award (the source award) was in operation under a State industrial law of a Division 2B referring State (the source State); and (b) the source award covered (however described in the source award or a relevant law of the source State) employers and employees who become Division 2B State reference employers and Division 2B State reference employees on the Division 2B referral commencement (whether or not the source award also covered other persons); a Division 2B State award is taken to come into operation immediately after the Division 2B referral commencement. Note 1: A Division 2B State award is a notional federal instrument derived from the source award. Note 2: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State awards:

(a) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); (b) Schedule 11 (which deals with transfer of business). (2) Subject to this Schedule, the Division 2B State award is taken to include the same terms as were in the source award immediately before the Division 2B referral commencement. Note: For the meanings of Division 2B referral commencement, Division 2B referring State, Division 2B State reference employee and Division 2B State reference employer, see items 2 and 2A of Schedule 3.

(3) If the terms of the source award were affected by an order, decision or determination of a State industrial body or a court of the source State that was in operation immediately before the Division 2B referral commencement, the terms of the Division 2B State award are taken to be similarly affected by the terms of that order, decision or determination.

[30-1238] The employees, employers etc. who are covered by a Division 2B State award and to whom it applies 4 (1) Meaning of covers A Division 2B State award covers the same employees, employers, outworker entities and any other persons that the source award covered [page 1291] (however described in the award or a relevant law of the source State) immediately before the Division 2B referral commencement. Note: The expression covers is used to indicate the range of employees, employers etc. to whom the Division 2B State award potentially applies (see subitem (5)). The employees, employers etc. who are within this range will depend on the terms of the award, and on any relevant provisions of the law of the source State.

(2) The Division 2B State award also covers any employees who become employed by an employer on or after the Division 2B referral commencement, and who would have been covered by the source award if they had become so employed immediately before that commencement. (3) However, the Division 2B State award does not cover: (a) any employees, employers or outworker entities that are not Division 2B State reference employees, Division 2B State reference employers or Division 2B State reference outworker entities; or (b) any employees, employers or outworker entities that are covered by an award-based transitional instrument. A Division 2B State reference outworker entity is an entity that is an outworker entity only because of section 30Q of the FW Act.

(4) If: (a) after the Division 2B referral commencement, a person (the employer) starts to employ employees to do work of a kind that was regulated by the source award immediately before that commencement; and (b) the employer did not employ employees to do that kind of work immediately before that commencement; then the Division 2B State award also does not cover any of the following, in relation to that kind of work: (c) the employer; (d) employees of the employer; (e) any other persons, in relation to the employer or employees of the employer. (5) Meaning of applies A Division 2B State award applies to the same employees, employers, outworker entities and any other persons that the Division 2B State award covers as would have been required by the law of the source State to comply with terms of the source award, or entitled under the law of the source State to enforce terms of the source award, if: (a) the State had not been a referring State; and (b) the law of the source State had continued to apply. Note 1: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of the Division 2B State award. Note 2: The Division 2B State award does not apply to any employers, employees or other persons that it does not cover, whether because of subitem (3) or (4) or otherwise.

(6) However, a Division 2B State award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act). Note: Item 50 deals with the application of section 329 of the FW Act to Division 2B State awards.

(7) Item has effect subject to other provisions This item has effect subject to: (a) the instrument interaction rules (see item 11); and (b) the termination of Division 2B State instruments as referred to in item 18; and

[page 1292] (c) Division 2 of Part 5 of this Schedule (which deals with interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations); and (d) Schedule 11 (which deals with transfer of business). (8) References to laws of States References in this item to the law of a State are references to the law of the State as in force immediately before the Division 2B referral commencement.

[30-1239] Division 2B State employment agreements 5 (1) State employment agreements that were in operation immediately before the Division 2B referral commencement If, immediately before the Division 2B referral commencement: (a) a State employment agreement (the source agreement) was in operation under a State industrial law of a Division 2B referring State (the source State); and (b) the source agreement covered (however described in the source agreement or a relevant law of the source State) employers and employees who become Division 2B State referral employers and Division 2B State referral employees on the Division 2B referral commencement (whether or not the source agreement also covered other persons); a Division 2B State employment agreement is taken to come into operation immediately after the Division 2B referral commencement. Note 1: A Division 2B State employment agreement is a notional federal instrument derived from the source agreement. Note 2: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements:

(a) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); (b) Schedule 11 (which deals with transfer of business). Note 3: For the meanings of Division 2B referral commencement, Division 2B referring State,

Division 2B State reference employee and Division 2B State reference employer, see items 2 and 2A of Schedule 3.

(2) Subject to this Schedule, the Division 2B State employment agreement is taken to include the same terms as were in the source agreement immediately before the Division 2B referral commencement. (3) State employment agreements that come into operation on or after the Division 2B referral commencement If, on or after the Division 2B referral commencement: (a) a State employment agreement (the source agreement) comes into operation under a State industrial law of a Division 2B referring State (the source State); and (b) the source agreement covers (however described in the source agreement or a relevant law of the source State) employers and employees who are Division 2B State referral employers and Division 2B State referral employees when the source agreement comes into operation (whether or not the source agreement also covers other persons); [page 1293] a Division 2B State employment agreement is taken to come into operation immediately after the source agreement comes into operation. Note 1: A Division 2B State employment agreement is a notional federal instrument derived from the source agreement. Note 2: There is limited scope for State employment agreements that cover Division 2B State referral employers and employees to come into operation on or after the Division 2B referral commencement: see Part 6 of this Schedule. Note 3: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements:

(a) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); (b) Schedule 11 (which deals with transfer of business). (4) Subject to this Schedule, the Division 2B State employment agreement is taken to include the same terms as were in the source agreement when it came into operation.

(5) Collective and individual Division 2B State employment agreements If the source agreement in relation to a Division 2B State employment agreement is a collective State employment agreement, the Division 2B State employment agreement is a collective Division 2B State employment agreement. (6) If the source agreement in relation to a Division 2B State employment agreement is an individual State employment agreement, the Division 2B State employment agreement is an individual Division 2B State employment agreement.

[30-1240] The employees, employers etc. who are covered by a Division 2B State employment agreement and to whom it applies 6 (1) Meaning of covers A Division 2B State employment agreement covers the same employees, employers and any other persons that the source agreement covered (however described in the agreement or a relevant law of the source State) immediately before the Division 2B State employment agreement came into operation. Note: The expression covers is used to indicate the range of employees, employers etc. to whom the Division 2B State employment agreement potentially applies (see subitem (4)). The employees, employers etc. who are within this range will depend on the terms of the agreement, and on any relevant provisions of the law of the source State.

(2) The Division 2B State employment agreement also covers any employees who become employed by an employer on or after the time when the agreement came into operation, and who would have been covered by the source agreement if they had become so employed immediately before that time. (3) However, the Division 2B State employment agreement does not cover: (a) any employees or employers that are not Division 2B State reference employees or Division 2B State reference employers; or (b) any employees or employers that are covered by an award-based transitional instrument. (4) Meaning of applies A Division 2B State employment agreement applies to the same employees, employers and any other persons that the

Division 2B State employment agreement covers as would have been required by the law of the source State to comply with terms of the source agreement, or entitled under the law of the source State to enforce terms of the source agreement, if: [page 1294] (a) the source State had not been a referring State; and (b) the law of the source State had continued to apply. Note 1: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of the Division 2B State employment agreement. Note 2: The Division 2B State employment agreement does not apply to any employers, employees or other persons that it does not cover, whether because of subitem (3) or otherwise.

(5) Item has effect subject to other provisions This item has effect subject to: (a) the instrument interaction rules (see item 11); and (b) the termination of Division 2B State instruments as referred to in item 18; and (c) Division 2 of Part 5 of this Schedule (which deals with interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations); and (d) Schedule 11 (which deals with transfer of business). (6) References to laws of States References in this item to the law of a State are references to the law of the State as in force immediately before the Division 2B referral commencement.

[30-1241] Terms about disputes relating to matters arising under Division 2B State awards 7 (1) If the source award for a Division 2B State award includes a term that provides for disputes relating to matters arising under the award to be settled by: (a) a State industrial body; or (b) a person who is independent of the employers, employees or

organisations covered by the source award; the Division 2B State award is taken not to include that term. (2) Each Division 2B State award is taken to include the model term that is prescribed by the regulations for dealing with disputes relating to matters arising under Division 2B State awards. Note: This subitem applies whether or not the source award included a term as mentioned in subitem (1).

(3) The model term does not apply to disputes about matters arising under the source award before the Division 2B referral commencement. (4) The model term, as taken to be included in a Division 2B State award: (a) cannot be varied; and (b) cannot be removed from the award.

[30-1242] Terms about disputes relating to matters arising under Division 2B State employment agreements 8 (1) This item applies if the source agreement for a Division 2B State employment agreement includes a term that provides for disputes relating to matters arising under the agreement to be settled by: (a) a State industrial body; or (b) a person who is independent of the employers, employees or organisations covered by the source agreement. [page 1295] (2) Item 13 of this Schedule does not apply in relation to the term. Note: Item 13 would otherwise result in references in the term to a State industrial body having effect as if they were references to the FWC. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1118, opn 1 Jan 2013]

(2A) However, if the term provides for disputes relating to matters arising under the source agreement to be settled by a State industrial body, then, despite anything in the source agreement or a law of the source State:

(a) the State industrial body may settle, or decline to settle, such a dispute; and (b) the FWC may settle such a dispute if the State industrial body: (i) ceases to exist; or (ii) declines to settle the dispute. [subcl (2A) am Act 174 of 2012 s 3 and Sch 9 item 1119, opn 1 Jan 2013]

(3) The FWC must, on application in accordance with subitem (4), vary the term in accordance with the application. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1120, opn 1 Jan 2013]

(4) For the purpose of subitem (3), an application must be made: (a) by an employer to which the Division 2B State employment agreement applies, or by an organisation that is entitled to represent the industrial interests of such an employer, with the consent of: (i) one or more employees to whom the agreement applies; or (ii) an organisation that is entitled to represent the industrial interests of one or more such employees; or (b) by an employee to whom the Division 2B State employment agreement applies, or by an organisation that is entitled to represent the industrial interests of such an employee, with the consent of: (i) an employer to which the Division 2B State employment agreement applies; or (ii) an organisation that is entitled to represent the industrial interests of such an employer.

[30-1243] Application to Division 2B State instruments of provisions of FW Act about dealing with disputes 9 (1) Subdivision B of Division 2 of Part 6-2 of the FW Act applies (including for the purpose of section 595 of the FW Act) as follows: (a) the Subdivision applies in relation to the model term that is taken by item 7 to be included in a Division 2B State award in the same way as the Subdivision applies in relation to a term in a modern

award that provides a procedure for dealing with disputes; (b) the Subdivision applies in relation to a term to which item 8 applies that is included in a Division 2B State employment agreement in the same way as the Subdivision applies in relation to a term in an enterprise agreement that provides a procedure for dealing with disputes. (2) The reference in subsections 739(5) and 740(4) of the FW Act to a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties, is taken to include a reference to a decision that is inconsistent with a Division 2B State instrument that applies to the parties. [page 1296]

[30-1244] Division 2B State instruments continue to be subject to the same instrument content rules 10 (1) The instrument content rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State instrument, as if: (a) the rules were provisions of a law of the Commonwealth; and (b) any references in the rules to State awards or State employment agreements (however described in the rules) were instead (respectively) references to Division 2B State awards or Division 2B State employment agreements; and (c) any other modifications of those rules prescribed by the regulations were made. (2) Instrument content rules, in relation to a State, are provisions of a law of the State of any of the following kinds: (a) provisions about what may, or must, be included in an instrument; (b) provisions to the effect that a particular term of an instrument is of no effect (however described): (i) either completely or to a limited extent; and (ii) either permanently or for a limited period;

(c) provisions to the effect that a particular term is taken to be included in an instrument.

[30-1245] Division 2B State instruments continue to be subject to the same instrument interaction rules 11 (1) The instrument interaction rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State instrument, as if: (a) the rules were provisions of a law of the Commonwealth; and (b) any references in the rules to State awards or State employment agreements (however described in the rules) were instead (respectively) references to Division 2B State awards or Division 2B State employment agreements; and (c) any other modifications of those rules prescribed by the regulations were made. [subcl (1) am Act 175 of 2012 s 3 and Sch 1 item 76, opn 5 Dec 2012]

(2) Instrument interaction rules, in relation to a State, are provisions of a law of the State, the effect of which is that: (a) one instrument has priority over, or excludes, another instrument: (i) either completely or to a particular extent; and (ii) either permanently or for a particular period; or (b) one instrument ceases to operate because of another instrument: (i) either completely or to a particular extent; and (ii) either permanently or for a particular period.

[30-1246] Division 2B State awards continue to be subject to the same outworker interaction rules 12 (1) The outworker interaction rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State award, as if:

(a) the rules were provisions of a law of the Commonwealth; and [page 1297] (b) any references in the rules to State awards (however described in the rules) were instead references to Division 2B State awards; and (c) any other modifications of those rules prescribed by the regulations were made. (2) Outworker interaction rules, in relation to a State, are provisions of a law of the State, the effect of which is that: (a) a State award prevails over, or excludes, a law of the State relating to outworkers; or (b) a State award has effect subject to a law of the State relating to outworkers.

[30-1247] References in Division 2B State instruments to State industrial bodies 13 (1) Subject to subitem (2), if a term of a Division 2B State instrument is expressed to confer a power or function on a State industrial body, that term has effect as if references in it to the body were instead references to the FWC. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1121, opn 1 Jan 2013]

(2) If a term of a Division 2B State instrument is expressed to confer a power or function on the registrar, or a deputy registrar, of a State industrial body, that term has effect on and after the Division 2B referral commencement as if references in it to the registrar or a deputy registrar were instead references to the General Manager of the FWC. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1121, opn 1 Jan 2013]

(3) This item has effect subject to: (a) a contrary intention in this Act; and (b) the regulations. Note 1: A Division 2B State award will be taken not to include a term from the source award that

provides for the settlement of disputes relating to matters arising under the award: see item 7. Note 2: This item does not apply to a term of a Division 2B State employment agreement that provides for the settlement of disputes relating to matters arising under the agreement: see item 8.

[30-1248] Non-accruing entitlements: counting service under the source award or source agreement 14 (1) General rule Subitem (2) applies for the purpose of determining the entitlements of a Division 2B State reference employee under a Division 2B State instrument (other than an entitlement to leave of a kind to which item 15 applies). (2) Service of the employee with an employer before the Division 2B referral commencement that counted for the purpose of the application to the employee of the source award or source agreement also counts as service of the employee with the employer for the purpose of the application to the employee of the Division 2B State instrument. (3) No double entitlement If, before the Division 2B referral commencement, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (2) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the Division 2B State instrument. (4) To avoid doubt, subitem (3) does not require an employee to serve any initial qualifying period of service for long service leave again. Note: For how the kinds of matters covered by this item and items 15 and 16 are dealt with in relation to entitlements under the National Employment Standards, see Division 2 of Part 3 of Schedule 4.

[page 1298]

[30-1249] Accruing entitlements: leave accrued immediately before the Division 2B referral commencement

15 (1) This item applies to leave of the following kinds: (a) annual leave (however described) that accrues to an employee; (b) personal leave or carer’s leave (however described) that accrues to an employee. (2) If a Division 2B referral employee to whom a Division 2B State instrument applies had, immediately before the Division 2B referral commencement, an accrued entitlement to an amount of leave to which this item applies (whether the leave accrued under the source award or source agreement, or under a State industrial law), the accrued leave is taken to have accrued under the Division 2B State instrument.

[30-1250] Leave that is being, or is to be, taken under the source award or source agreement 16 (1) If a Division 2B State reference employee was, immediately before the Division 2B referral commencement, taking a period of leave under the source award or source agreement, the employee is entitled to continue on that leave under the Division 2B State instrument for the remainder of the period. (2) If a Division 2B State reference employee has, before the Division 2B referral commencement, taken a step that the employee is required to take so that the employee can, on or after the Division 2B referral commencement, take a period of leave under the source award or source agreement, the employee is taken to have taken the step under the Division 2B State instrument. (3) The regulations may deal with other matters relating to how a Division 2B State instrument applies to leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken by a Division 2B State reference employee under the source award or source agreement.

[30-1251] No loss of accrued rights or liabilities when Division 2B State instrument terminates or ceases to apply 17 (1) If a Division 2B State instrument terminates, or ceases to apply in

relation to a person, that does not affect: (a) any right or liability that a person acquired, accrued or incurred before the instrument terminated or ceased to apply; or (b) any investigation, legal proceeding or remedy in respect of any such right or liability. (2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the Division 2B State instrument had not terminated or ceased to apply. (3) This item has effect subject to a contrary intention in this Act or in the FW Act.

PART 3 — VARIATION AND TERMINATION OF DIVISION 2B STATE INSTRUMENTS [30-1252] Division 2B State instruments can only be varied or terminated in limited circumstances 18 (1) A Division 2B State instrument cannot be varied except under: (a) a provision of this Part or the regulations; or [page 1299] (b) item 8 (which deals with terms about disputes relating to matters arising under Division 2B State employment agreements); or (c) item 40 (which deals with resolving difficulties with the interaction between Division 2B State instruments and the National Employment Standards); or (d) Part 6 of this Schedule (which deals with ongoing operation of State laws for transitional purposes); or (e) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); or (f) item 20 of Schedule 9 (which deals with variation of Division 2B

State awards in annual wage reviews); or (g) Schedule 11 (which deals with transfer of business). (2) A Division 2B State instrument cannot be terminated (or otherwise brought to an end) except under: (a) a provision of this Part or the regulations; or (b) Part 6 of this Schedule; or (c) Division 2 of Part 2 of Schedule 6; or (d) Schedule 11.

[30-1253]

Variation to remove ambiguities etc.

19 (1) On application by a person covered by a Division 2B State instrument, the FWC may make a determination varying the instrument: (a) to remove an ambiguity or uncertainty in the instrument; or (b) if the instrument is a Division 2B State employment agreement — to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or (c) to remove terms that are inconsistent with Part 3-1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part. Note: For variation of a Division 2B State instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 40. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1121, opn 1 Jan 2013]

(2) A variation of a Division 2B State instrument operates from the day specified in the determination, which may be a day before the determination is made.

[30-1254] Variation on referral by Australian Human Rights Commission 20 (1) This item applies if a Division 2B State instrument is referred to the FWC under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments). [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1121, opn 1 Jan 2013]

(2) If the instrument is a Division 2B State award, section 161 of the FW Act applies in relation to the referral of the instrument as if the instrument were a modern award. (3) If the instrument is a Division 2B State employment agreement, section 218 of the FW Act applies in relation to the referral of the instrument as if the instrument were an enterprise agreement. [page 1300]

[30-1255] Division 2B State awards: automatic termination after 12 months 21 (1) A Division 2B State award terminates at the end of 12 months after the Division 2B referral commencement. (2) A term of a Division 2B State award that provides for the award to terminate before the end of that 12 month period is of no effect. (3) This item does not apply to a Division 2B enterprise award. Note: Schedule 6 (modern enterprise awards) applies to Division 2B enterprise awards.

[30-1256] Collective Division 2B State employment agreements: termination by agreement 22 Subdivision C of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective Division 2B State employment agreement as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement.

[30-1257] Collective Division 2B State employment agreements: termination by the FWC 23 Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective Division 2B State employment agreement as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement. [cl 23 am Act 174 of 2012 s 3 and Sch 9 item 1122, opn 1 Jan 2013]

[30-1258] Individual Division 2B State employment agreements: termination by agreement 24 (1) The employee and employer covered by an individual Division 2B State employment agreement (the Division 2B agreement) may make a written agreement (a termination agreement) to terminate the Division 2B agreement in accordance with the following requirements:

(a) the termination agreement must be signed by the employee and the employer; (b) if the employee is under 18, it must also be signed by a parent or guardian of the employee; (c) the signatures must be witnessed. (2) The termination has no effect unless it has been approved by the FWC. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1123, opn 1 Jan 2013]

(3) The employer or employee may apply to the FWC for approval of the termination agreement. The application must be made: (a) within 14 days after the termination agreement was made; or (b) if in all the circumstances the FWC considers it fair to extend that period — within such further period as the FWC allows. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1123, opn 1 Jan 2013]

(4) If an application for the FWC to approve the termination agreement is made under subitem (3), the FWC must approve the termination of the Division 2B agreement if: (a) the FWC is satisfied that the requirements of subitem (1) have been complied with; and [page 1301] (b) the FWC is satisfied that there are no other reasonable grounds for believing that the employee has not agreed to the termination. [subcl (4) am Act 174 of 2012 s 3 and Sch 9 item 1123, opn 1 Jan 2013]

(5) If the termination is approved under subitem (4), the termination operates from the day specified in the decision to approve the termination.

[30-1259] Individual Division 2B State employment agreements: termination conditional on enterprise agreement 25 (1) This item provides for the making of an instrument (a conditional termination) that will have the effect of terminating an individual Division

2B State employment agreement (the Division 2B agreement) if: (a) an enterprise agreement (the proposed enterprise agreement) is made that covers the employee and the employer; and (b) the proposed enterprise agreement comes into operation. (2) If the Division 2B agreement has not passed its nominal expiry date, the conditional termination must be a written agreement signed by the employer and the employee. The signatures must be witnessed. (3) If the Division 2B agreement has passed its nominal expiry date, the conditional termination must be in writing and signed either by the employee or the employer. The signature must be witnessed. (4) If the conditional termination is signed by the employee, and the employee is under 18, it must also be signed by a parent or guardian of the employee. (5) Any other requirements of the regulations relating to the form, content or making of the conditional termination must also be complied with. (6) The employer must give the employee a copy of the conditional termination if: (a) the conditional termination is an agreement signed by the employee and the employer in the circumstances covered by subitem (2); or (b) the conditional termination is signed by the employer in the circumstances covered by subitem (3). Note 1: For compliance with this obligation, see subitem 4B(1) of Schedule 16. Note 2: Failure to comply with this obligation does not affect the operation of subitem (8).

(7) The conditional termination must accompany any application to the FWC for approval of the proposed enterprise agreement under section 185 of the FW Act. Note 1: For compliance with this obligation, see subitem 4B(2) of Schedule 16. Note 2: Failure to comply with this obligation does not affect the operation of subitem (8), or the validity of an approval by the FWC of the proposed enterprise agreement. [subcl (7) am Act 174 of 2012 s 3 and Sch 9 item 1123, opn 1 Jan 2013]

(8) If the requirements of subitems (2) to (5) have been complied with in relation to the conditional termination, the Division 2B agreement terminates when the proposed enterprise agreement comes into operation

[30-1260] Individual Division 2B State employment agreements: unilateral termination with the FWC’s approval 26 (1) This item applies to an employer or employee: (a) to whom an individual Division 2B State employment agreement (the Division 2B agreement) that has passed its nominal expiry date applies; and (b) who wants to terminate the Division 2B agreement. [page 1302] (2) The employer or employee may: (a) make a written declaration that identifies the Division 2B agreement and that states that the employer or employee wants to terminate the agreement; and (b) apply to the FWC for the approval of the termination. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1125, opn 1 Jan 2013]

(3) The employer or employee cannot make an application as mentioned in paragraph (2)(b) unless, at least 14 days before the day on which the application is made, the employer or employee gives the other of them a notice complying with the following requirements: (a) the notice must identify the Division 2B agreement; (b) the notice must state that the employer or employee intends to apply to the FWC for approval of the termination of the agreement; (c) the notice must state that, if the FWC approves the termination, the agreement will terminate on the 90th day after the day on which the FWC makes the approval decision; (d) the notice must comply with any other requirements of the regulations. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1125, opn 1 Jan 2013]

(4) The FWC must approve the termination if the FWC is satisfied that:

the Division 2B agreement applies to the employer and the (a) employee; and (b) the requirements of subitems (2) and (3) have been complied with. [subcl (4) am Act 174 of 2012 s 3 and Sch 9 items 1126, 1127, opn 1 Jan 2013]

(5) If the FWC approves the termination, the Division 2B agreement terminates on the 90th day after the day on which the FWC makes the approval decision. [subcl (5) am Act 174 of 2012 s 3 and Sch 9 item 1128, opn 1 Jan 2013] [cl 26 am Act 174 of 2012 s 3 and Sch 9 item 1124, opn 1 Jan 2013]

[30-1261] Meaning of nominal expiry date of Division 2B State employment agreement 27 The nominal expiry date of a Division 2B State employment agreement is: (a) the day on which the source agreement would nominally have expired under the relevant State industrial law of the source State; or (b) if that day falls after the end of a period of 3 years beginning on the Division 2B referral commencement — the last day of that 3 year period.

[30-1262]

Effect of termination

28 If a Division 2B State instrument terminates, it ceases to cover (and can never again cover) any employees, employers or other persons.

PART 4 — TRANSITION OF EMPLOYEES FROM DIVISION 2B STATE AWARDS TO FW ACT MODERN AWARDS DIVISION 1 — FWA REQUIRED TO CONSIDER VARYING MODERN AWARDS ETC

[30-1263] FWA to consider varying modern awards to continue effect of terms of Division 2B State awards 29 (1) During the period of 12 months starting on the Division 2B referral commencement, FWA: [page 1303] (a) must consider whether any modern awards should be varied to include terms in relation to which the following conditions are satisfied: (i) the purpose of including the terms is to continue (in whole or in part) the effect of terms that are contained in a Division 2B State award, other than a Division 2B enterprise award; (ii) the terms only relate to employees, employers or other persons covered by the Division 2B State award; (iii) the terms deal with matters of a kind that are permitted by section 136 of the FW Act to be included in modern awards; and (b) may make one or more determinations varying modern awards to include such terms. (2) Terms may be included in a modern award in accordance with this item despite section 154 of the FW Act. (3) Terms included in a modern award in accordance with this item: (a) take effect at the end of 12 months after the Division 2B referral commencement; and (b) cease to have effect: (i) at the end of 5 years after the Division 2B referral commencement; or (ii) if the terms are expressed to cease to have effect at an earlier time — at that earlier time.

[30-1264] FWA to consider making orders to continue effect of long service leave terms of Division 2B State awards 30 (1) During the period of 12 months starting on the Division 2B referral commencement, FWA: (a) must consider whether any orders should be made in relation to which the following conditions are satisfied: (i) the purpose of making the order is to continue (in whole or in part) the effect of terms relating to long service leave that are contained in a Division 2B State award, other than a Division 2B enterprise award; (ii) the order only relates to employees, employers or other persons covered by the Division 2B State award; and (b) may make one or more such orders. (2) An order under subitem (1): (a) takes effect at the end of 12 months after the Division 2B referral commencement; and (b) ceases to have effect: (i) at the end of 5 years after the Division 2B referral commencement; or (ii) if the order is expressed to cease to have effect at an earlier time — at that earlier time. (3) Paragraph 675(1)(a) of the FW Act has effect as if it also included a reference to an order under subitem (1). (4) To the extent that a term of a Division 2B State award, or of an enterprise agreement, is detrimental to an employee, in any respect, when compared to an order under subitem (1), the term of the award or agreement is of no effect. Note: A term of a Division 2B State award, or of an enterprise agreement, that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the order will continue to have effect.

[page 1304] (5) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a Division 2B State award or an enterprise agreement are, or are not, detrimental in any respect when compared to an order under subitem (1).

DIVISION 1A — TRANSITIONAL PAY EQUITY ORDER TAKEN TO HAVE BEEN MADE BY FWA — DIVISION 2B STATE AWARDS

[30-1265] FWA taken to have made a transitional pay equity order to continue the effect of State pay equity orders 30A (1) On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order) under this item. (2) The transitional pay equity order applies to an employer if: (a) a Division 2B State award that applies to the employer terminates at a time (the termination time) after the Division 2B referral commencement; and (b) the base rate of pay payable immediately before the termination time to some or all of the employees to whom the Division 2B State award applied was determined in whole or part by, or in accordance with, an order, decision or determination (the source pay equity order) of a State industrial body that: (i) was made before 15 September 2009; and (ii) provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and (iii) was made wholly or partly on the ground of work value, pay equity or equal remuneration (however described); and

immediately after the termination time, a modern award applies to (c) the employer. Note: After the Division 2B referral commencement, a source pay equity order may have effect either because of subitem 3(3) of this Schedule, or because the terms of the source pay equity order had been incorporated in the source award from which the Division 2B State award was derived.

(3) If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid under the Division 2B State award in respect of that period, assuming that: (a) the Division 2B State award had not terminated; and (b) the base rate of pay had continued to be determined in whole or part by, or in accordance with, the source pay equity order in respect of that period. (4) An employee of an employer to which this item applies is an affected employee of the employer if: (a) all of the following conditions are satisfied: (i) the employee was employed by the employer at the termination time; (ii) the Division 2B State award applied to the employee at the termination time; (iii) the employee’s base rate of pay under the Division 2B State award was determined in whole or part by, or in accordance with, the source pay equity order at the termination time; or [page 1305] (b) all of the following conditions are satisfied: (i) the employee becomes employed by the employer after the termination time; (ii) a Division 2B State award would have applied to the employee if he or she had been employed by the employer immediately before the termination time;

(iii) the employee’s base rate of pay under the Division 2B State award would have been determined in whole or part by, or in accordance with, the source pay equity order at the termination time. (5) The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer. (6) A term of a modern award is of no effect to the extent that: (a) an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and (b) the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a). (7) However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (6)(a).

DIVISION 2 — AVOIDING REDUCTIONS IN TAKE-HOME PAY

[30-1266] Termination of Division 2B State awards is not intended to result in reduction in take-home pay 31 (1) The termination of a Division 2B State award by item 21 is not intended to result in a reduction in the take-home pay of employees or outworkers. (2) An employee’s or outworker’s take-home pay is the pay an employee or outworker actually receives: (a) including wages and incentive-based payments, and additional amounts such as allowances and overtime; but (b) disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act.

Note: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.

(3) An employee suffers a reduction in take-home pay to which this item applies if, and only if: (a) when a Division 2B State award terminates because of item 21, the employee becomes a person to whom a modern award applies; and (b) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the termination of the Division 2B State award; and (c) the amount of the employee’s take-home pay for working particular hours or for a particular quantity of work after the termination of the Division 2B State award is less than what would have been the employee’s take-home pay for those hours or that quantity of work immediately before the termination; and (d) that reduction in the employee’s take-home pay is attributable to the termination of the Division 2B State award. [page 1306] (4) An outworker who is not an employee suffers a reduction in take-home pay to which this item applies if, and only if: (a) when a Division 2B State award terminates because of item 21, the outworker becomes a person to whom outworker terms in a modern award relate; and (b) the outworker is performing the same work as (or work that is similar to) the work he or she was performing immediately before the termination of the Division 2B State award; and (c) the amount of the outworker’s take-home pay for working particular hours or for a particular quantity of work after the termination of the Division 2B State award is less than what would have been the outworker’s take-home pay for those hours or that quantity of work immediately before the termination; and (d) that reduction in the outworker’s take-home pay is attributable to

the termination of the Division 2B State award.

[30-1267] home pay

Orders remedying reductions in take-

32 (1) Employees If the FWC is satisfied that an employee, or a class of employees, to whom a modern award applies has suffered a reduction in takehome pay to which item 31 applies, the FWC may make any order (a takehome pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1129, opn 1 Jan 2013]

(2) Outworkers If the FWC is satisfied that an outworker, or a class of outworkers, to whom outworker terms in a modern award relate has suffered a reduction in take-home pay to which item 31 applies, the FWC may make any order (a take-home pay order) requiring, or relating to, the payment of an amount or amounts to the outworker or outworkers that the FWC considers appropriate to remedy the situation. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1129, opn 1 Jan 2013]

(3) General provisions The FWC may make a take-home pay order only on application by: (a) an employee or outworker who has suffered a reduction in takehome pay to which item 31 applies; or (b) an organisation that is entitled to represent the industrial interests of such an employee or outworker; or (c) a person acting on behalf of a class of such employees or outworkers. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1130, opn 1 Jan 2013]

(4) If the FWC is satisfied that an application for a take-home pay order has already been made in relation to an employee or a class of employees, or an outworker or a class of outworkers, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees, or the same outworker or outworkers. [subcl (4) am Act 174 of 2012 s 3 and Sch 9 item 1131, opn 1 Jan 2013]

[30-1268] Ensuring that take-home pay orders are confined to the circumstances for which they are needed 33 (1) The FWC must not make a take-home pay order under item 32 in relation to an employee or class of employees, or an outworker or a class of outworkers, if: (a) the FWC considers that the reduction in take-home pay is minor or insignificant; or [page 1307] (b) the FWC is satisfied that the employee or employees, or outworker or outworkers, have been adequately compensated in other ways for the reduction. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 items 1132, 1133, opn 1 Jan 2013]

(2) The FWC must ensure that a take-home pay order is expressed so that: (a) it does not apply to an employee or outworker unless the employee or outworker has actually suffered a reduction in take-home pay to which item 31 applies; and (b) if the take-home pay payable to the employee or outworker under the modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee or outworker under the order. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1134, opn 1 Jan 2013]

[30-1269] Take-home pay order continues to have effect so long as modern award continues to cover the employee or employees 34 A take-home pay order made in relation to an employee or class of employees to whom a particular modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so

long as the modern award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.

[30-1270] Inconsistency with modern awards and enterprise agreements 35 A term of a modern award or an enterprise agreement has no effect in relation to an employee or outworker to the extent that it is less beneficial to the employee or outworker than a term of a take-home pay order that applies to the employee or outworker.

[30-1271] Application of provisions of FW Act to take-home pay orders 36 The FW Act applies as if the following provisions of that Act included a reference to a take-home pay order: (a) subsection 675(2); (b) subsection 706(2). Note: For compliance with take-home pay orders, see item 7 of Schedule 16 to this Act.

PART 5 — DIVISION 2B STATE INSTRUMENTS AND THE FW ACT DIVISION 1 — INTERACTION BETWEEN DIVISION 2B STATE INSTRUMENTS AND THE NATIONAL EMPLOYMENT STANDARDS

[30-1272]

The no detriment rule

37 (1) To the extent that a term of a Division 2B State instrument is detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the instrument is of no effect. Note 1: A term of a Division 2B State instrument that provides an entitlement that is at least as

beneficial to an employee as a corresponding entitlement of the employee under the National Employment Standards will continue to have effect. Note 2: Division 3 (which contains other general provisions about how the FW Act applies in relation to Division 2B State instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom Division 2B State instruments apply.

[page 1308] Note 3: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).

(2) If there is a dispute about the application of this item which must be resolved by the FWC in accordance with item 40, the FWC may compare the entitlements which are in dispute: (a) on a ‘line-by-line’ basis, comparing individual terms; or (b) on a ‘like-by-like’ basis, comparing entitlements according to particular subject areas; or (c) using any combination of the above approaches the FWC sees fit. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1135, opn 1 Jan 2013]

(3) Subitem (1) does not affect a term of a Division 2B State instrument that is permitted by a provision of the National Employment Standards as it has effect under item 38. (4) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a Division 2B State instrument are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.

[30-1273] Provisions of the NES that allow instruments to contain particular kinds of terms 38 (1) The following provisions of the National Employment Standards have effect, on and after the Division 2B referral commencement, as if a reference to a modern award or an enterprise agreement included a reference to a Division 2B State instrument: (a) section 63 (which allows terms dealing with averaging of hours of

(b) (c) (d) (e) (f) (g)

(h)

work); section 93 (which allows terms dealing with cashing out and taking paid annual leave); section 101 (which allows terms dealing with cashing out paid personal/carer’s leave); subsection 107(5) (which allows terms dealing with evidence requirements for paid personal/carer’s leave etc); subsection 115(3) (which allows terms dealing with substitution of public holidays); section 118 (which allows terms dealing with an employee giving notice to terminate his or her employment); subsections 121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section 119 does not apply); section 126 (which allows terms providing for school-based apprentices and trainees to be paid loadings in lieu).

(2) If: (a) a Division 2B State instrument includes terms referred to in subsection (1) of section 93 or 101 of the National Employment Standards; but (b) the terms do not include the requirements referred to in subsection (2) of that section; the instrument is taken to include terms that include the requirements. [page 1309]

[30-1274]

Shiftworker annual leave entitlement

39 Subsections 87(3) to (5) of the FW Act apply in relation to an employee to whom a Division 2B State instrument applies in the same way as they apply to an award/agreement free employee. Note: If the employee qualifies for the shiftworker annual leave entitlement under those subsections, the employee will be entitled to 5 (rather than 4) weeks of paid annual leave.

[30-1275] Resolving difficulties about application of this Division 40 (1) On application by a person covered by a Division 2B State instrument, the FWC may make a determination varying the instrument: (a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards; or (b) to make the instrument operate effectively with the National Employment Standards. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1136, opn 1 Jan 2013]

(2) A variation of a Division 2B State instrument operates from the day specified in the determination, which may be a day before the determination is made.

DIVISION 2 — INTERACTION BETWEEN DIVISION 2B STATE INSTRUMENTS AND FW ACT MODERN AWARDS, ENTERPRISE AGREEMENTS AND WORKPLACE DETERMINATIONS

[30-1276] Modern awards and Division 2B State employment agreements 41 (1) Collective Division 2B State employment agreements If a collective Division 2B State employment agreement and a modern award both apply to an employee, or to an employer or other person in relation to the employee, the Division 2B State employment agreement prevails over the modern award, to the extent of any inconsistency. Note: This subitem has effect subject to item 42 of this Schedule, and to item 17 of Schedule 9 (which requires that the base rate of pay under a Division 2B State employment agreement must not be less than the modern award rate).

(2) Individual Division 2B State employment agreements While an individual Division 2B State employment agreement applies to an employee, or to an employer or other person in relation to an employee, a modern award does not apply to the employee, or to the employer or other person in relation to the employee.

Note 1: However, a modern award can continue to cover the employee while the individual Division 2B State employment agreement continues to apply. Note 2: This subitem has effect subject to item 42 of this Schedule, and to item 17 of Schedule 9 (which requires that the base rate of pay under a Division 2B State employment agreement must not be less than the modern award rate).

[30-1277] Terms of modern awards about outworker conditions continue to apply 42 (1) This item applies if, at a particular time: (a) a Division 2B State employment agreement applies to an employee; and (b) outworker terms (within the meaning of the FW Act) in a modern award would, but for the Division 2B State employment agreement, apply to the employee. [page 1310] (2) Despite item 41 and despite any terms of the Division 2B State employment agreement that are detrimental to the employee in any respect when compared to the terms of the modern award, the outworker terms apply at that time to the following persons: (a) the employee; (b) the employer; (c) each employee organisation to which the modern award applies. (3) To avoid doubt, to the extent to which terms of a modern award apply to an employee, an employer or an employee organisation because of subitem (2), the modern award applies to the employee, employer or organisation.

[30-1278] awards

Modern awards and Division 2B State

43 (1) Employees and employers While a Division 2B State award that covers an employee, or an employer or other person in relation to the employee, is in operation, a modern award does not cover the employee, or

the employer or other person in relation to the employee. Note: When the Division 2B State award terminates, a modern award will start to cover the employee, or the employer or other person in relation to the employee.

(2) Outworker entities While a Division 2B State award that contains outworker terms that cover an outworker entity is in operation, outworker terms in a modern award do not cover the outworker entity. Note: When the Division 2B State award terminates, a modern award will start to cover the outworker entity.

(3) Outworker terms in a Division 2B State award are terms that would be outworker terms as defined in the FW Act if they were in a modern award.

[30-1279] FW Act enterprise agreements and workplace determinations, and Division 2B State employment agreements 44 (1) Collective Division 2B State employment agreements If an enterprise agreement or workplace determination (under the FW Act) starts to apply to an employee, or an employer or other person in relation to the employee, then a collective Division 2B State employment agreement ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee. Note 1: The fact that a collective Division 2B State employment agreement applies to employees does not prevent those employees and their employer from replacing that agreement at any time with an enterprise agreement, regardless of whether the collective Division 2B State employment agreement has passed its nominal expiry date. Note 2: Industrial action must not be taken before the nominal expiry date of a collective Division 2B State employment agreement (see item 4 of Schedule 13).

(2) Individual Division 2B State employment agreements While an individual Division 2B State employment agreement applies to an employee, or to an employer in relation to the employee, an enterprise agreement or workplace determination (under the FW Act) does not apply to the employee, or the employer in relation to the employee.

[30-1280] FW Act enterprise agreements and workplace determinations, and Division 2B State awards

45 If an enterprise agreement or workplace determination (under the FW Act) applies to an employee, or an employer or other person in relation to the employee, then: [page 1311] (a) a Division 2B State award ceases to apply to the employee, and the employer or other person in relation to the employee; but (b) the Division 2B State award can (subject to the other provisions of this Part) continue to cover the employee, and the employer or other person in relation to the employee. Note: Subject to the other provisions of this Part, the Division 2B State award can again start to apply to the employee, and the employer or other person in relation to the employee, if the enterprise agreement or workplace determination (under the FW Act) ceases to apply to the employee.

[30-1281] Designated outworker terms of Division 2B State award continue to apply 46 (1) This item applies if, at a particular time: (a) an enterprise agreement or workplace determination (under the FW Act) applies to an employer; and (b) a Division 2B State award covers the employer (whether the award covers the employer in the employer’s capacity as an employer or an outworker entity); and (c) the Division 2B State award includes one or more designated outworker terms. (2) Despite item 45, the designated outworker terms of the Division 2B State award apply at that time to the following: (a) the employer; (b) each employee who is both: (i) a person to whom the enterprise agreement or workplace determination applies; and (ii) a person who is covered by the Division 2B State award;

each employee organisation that is covered by the Division 2B (c) State award. (3) To avoid doubt: (a) Division 2B State awards are taken to be instruments to which the definition of designated outworker term in section 12 of the FW Act applies; and (b) designated outworker terms of a Division 2B State award can apply to an employer under subitem (2) even if none of the employees of the employer is an outworker; and (c) to the extent to which designated outworker terms of a Division 2B State award apply to an employer, an employee or an employee organisation because of subitem (2), the award applies to the employer, employee or organisation.

DIVISION 3 — OTHER GENERAL PROVISIONS ABOUT HOW THE FW ACT APPLIES IN RELATION TO DIVISION 2B STATE INSTRUMENTS

[30-1282] Employee not award/agreement free if Division 2B State instrument applies 47 (1) An employee is not an award/agreement free employee for the purposes of the FW Act if a Division 2B State instrument applies to the employee. (2) The regulations may make provision in relation to any of the following in relation to employees to whom Division 2B State instruments apply: [page 1312] (a) what is the base rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards); (b) what is the full rate of pay of such an employee for the purposes of

the FW Act (either generally or for the purposes of entitlements under the National Employment Standards); (c) whether such an employee is a pieceworker for the purposes of the FW Act.

[30-1283]

Employee’s ordinary hours of work

48 (1) Item applies for purpose of determining employee’s ordinary hours of work for the FW Act For the purposes of the FW Act, the ordinary hours of work of an employee to whom a Division 2B State instrument applies are to be determined in accordance with this item. (2) Ordinary hours as specified in Division 2B State instrument If a Division 2B State instrument that applies to the employee specifies, or provides for the determination of, the employee’s ordinary hours of work, the employee’s ordinary hours of work are as specified in, or determined in accordance with, that instrument. (3) If subitem (2) does not apply and there is agreement If subitem (2) does not apply, the employee’s ordinary hours of work are the hours agreed by the employee and his or her employer as the employee’s ordinary hours of work. (4) If subitem (2) does not apply and there is no agreement If subitem (2) does not apply but there is no agreement under subitem (3), the ordinary hours of work of the employee in a week are: (a) if the employee is a full time employee — 38 hours; or (b) if the employee is not a full-time employee — the lesser of: (i) 38 hours; and (ii) the employee’s usual weekly hours of work. (5) If subitem (2) does not apply: agreed hours are less than usual weekly hours If: (a) subitem (2) does not apply; and (b) the employee is not a full-time employee; and (c) there is an agreement under subitem (3) between the employee and his or her employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work;

the ordinary hours of work of the employee in a week are the lesser of: (d) 38 hours; and (e) the employee’s usual weekly hours of work. (6) Regulations may prescribe usual weekly hours For an employee who is not a full-time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subitems (4) and (5).

[30-1284]

Payment of wages

49 Division 2 of Part 2-9 of the FW Act (which deals with payment of wages) applies, on and after the Division 2B referral commencement, in relation to a Division 2B State instrument as if: [page 1313] (a) a reference to an enterprise agreement included a reference to a Division 2B State employment agreement; and (b) a reference to a modern award included a reference to a Division 2B State award.

[30-1285]

Guarantee of annual earnings

50 Division 3 of Part 2-9 of the FW Act (which deals with the guarantee of annual earnings) applies, on and after the Division 2B referral commencement, as if: (a) a reference to an enterprise agreement included a reference to a Division 2B State employment agreement; and (b) a reference to a modern award included a reference to a Division 2B State award.

[30-1286]

Application of unfair dismissal

provisions 51 Part 3-2 of the FW Act (which deals with unfair dismissal) applies, on and after the Division 2B referral commencement, as if: (a) the reference in subparagraph 382(b)(i) and paragraph 389(1)(b) of that Act to a modern award included a reference to a Division 2B State award; and (b) the reference in subparagraph 382(b)(ii) and paragraph 389(1)(b) of that Act to an enterprise agreement included a reference to a Division 2B State employment agreement.

[30-1287] matters

Regulations may deal with other

52 The regulations may deal with other matters relating to how the FW Act applies in relation to Division 2B State instruments.

PART 6 — ONGOING OPERATION OF STATE LAWS FOR TRANSITIONAL PURPOSES [30-1288]

Definitions

53 (1) Subject to subitem (2), in this Part: agreement appeal means an appeal to a State industrial body against a decision made by a State industrial body in an agreement proceeding. agreement proceeding means a proceeding (other than an agreement appeal) before a State industrial body for the body to: (a) approve a State employment agreement; or (b) approve a variation or termination of a State employment agreement; or (c) vary or terminate a State employment agreement. approve, in relation to a State employment agreement or a variation or termination of a State employment agreement, means: (a) approve or certify (however described) the agreement, or the

variation or termination, under a State industrial law; and (b) do any other things (for example, register the agreement) that are required to be done under that law after approval or certification in order for the agreement, or the variation or termination, to come into operation. [page 1314] award appeal means an appeal to a State industrial body against a decision made by a State industrial body in an award proceeding. award proceeding means a proceeding (other than an award appeal) before a State industrial body for the body to: (a) make a State award; or (b) vary or terminate a State award. coverage terms of a source award or source agreement are terms setting out the employees, employers, outworker entities or other persons that are covered (however described) by the award or agreement. terminate, in relation to a State employment agreement, means terminate or rescind (however described) the agreement under a State industrial law. vary, in relation to a State employment agreement, means vary or amend (however described) the agreement under a State industrial law. (2) The regulations may provide that a certain proceeding: (a) is, or is not, an agreement appeal as defined in subitem (1); or (b) is, or is not, an agreement proceeding as defined in subitem (1); or (c) is, or is not, an award appeal as defined in subitem (1); or (d) is, or is not, an award proceeding as defined in subitem (1).

[30-1289] Part does not affect variations or terminations related to a proposed transfer of business 54 Nothing in this Part affects the application of section 26 of the FW Act to a law of a Division 2B referring State so far as the law provides for the variation or termination of a State award or a State employment agreement because of a proposed transfer of business (however described).

[30-1290] Commencement or completion of award appeals 55 (1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the commencement or completion of an award appeal in relation to which the following conditions are satisfied: (a) the decision appealed against was made before the Division 2B referral commencement in an award proceeding; (b) the decision was: (i) to vary, or not to vary, an award; or (ii) to terminate, or not to terminate, an award. Note: The following (to the extent they relate to Division 2B State reference employees and Division 2B State reference employers) are not able to be commenced or completed on of after the Division 2B referral commencement:

(a) award proceedings; (b) award appeals, if the appeal is against a decision to make, or not make, an award. (2) Subitem (1): (a) does not apply to the commencement of an award appeal more than 21 days after the day on which the decision appealed against was made; and (b) ceases to apply to an award appeal if the appeal has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.

[page 1315]

[30-1291]

Completion of agreement proceedings

56 (1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the completion of an agreement proceeding that had commenced before the Division 2B referral commencement. Note: Agreement proceedings (to the extent they relate to Division 2B State reference employees and Division 2B State reference employers) are not able to be commenced on or after the Division 2B referral commencement.

(2) Subitem (1) ceases to apply to an agreement proceeding if the proceeding has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.

[30-1292]

Agreement appeals

57 (1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the commencement or completion of an agreement appeal (whether the decision appealed against is or was made before, on or after the Division 2B referral commencement). (2) Subitem (1): (a) does not apply to the commencement of an agreement appeal more than 21 days after the day on which the decision appealed against was made; and (b) ceases to apply to an agreement appeal if the appeal has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.

[30-1293] Decisions made in award appeals, agreement proceedings and agreement appeals 58 (1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law provides for when any of the following decisions (a State decision) come into operation: (a) a decision made in award appeal to which subitem 55(1) applies;

(b) a decision made in an agreement proceeding to which subitem 56(1) applies; (c) a decision made in an agreement appeal to which subitem 57(1) applies. Note: If a State employment agreement comes into operation on or after the Division 2B referral commencement under a State industrial law of a Division 2B referring State, a Division 2B State employment agreement is taken to come into operation immediately afterwards: see item 5 of this Schedule.

(2) Subject to subitems (3) and (4), if a State decision affects the source award or source agreement for a Division 2B State instrument, the Division 2B State instrument is taken to be affected by the State decision in the same way, and from the same time, as the source award or source agreement is affected by the State decision. (3) Subitem (2) does not apply to a State decision that affects the coverage terms of the source award or source agreement. (4) Any resulting alteration of an entitlement under the Division 2B State instrument takes effect only from the later of the day on which the State decision is made and the day on which the decision comes into operation.

[30-1294] Agreements etc. that had not come into operation by the Division 2B referral commencement 59 (1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law provides: [page 1316] (a) for when a State employment agreement comes into operation, if the State employment agreement was approved by a State industrial body before the Division 2B referral commencement, but the agreement had not yet come into operation by that commencement; or (b) for when a variation or termination of a State employment

agreement comes into operation, if the variation or termination was approved or made by a State industrial body before the Division 2B referral commencement, but the variation or termination had not yet come into operation by that commencement. Note: If a State employment agreement comes into operation on or after the Division 2B referral commencement under a State industrial law of a Division 2B referring State, a Division 2B State employment agreement is taken to come into operation immediately afterwards: see item 5 of this Schedule.

(2) Subject to subitem (3), if, at a time when a Division 2B State employment agreement is in operation, a variation or termination of the source agreement comes into operation as mentioned in subitem (1), the Division 2B State employment agreement is taken to have been varied in the same way, or to have been terminated, (as the case requires) immediately after that time. (3) Subitem (2) does not apply to a variation that affects the coverage terms of the source agreement.

[30-1295] Proceedings relating to entitlements or obligations that arose before the Division 2B referral commencement etc. 60 (1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to compliance with an entitlement or obligation: (a) that arose before the Division 2B referral commencement under a State industrial law; and (b) that relates to an act or omission which occurred before that commencement. (2) Subitem (1) does not apply to entitlements or obligations relating to any of the following: (a) the making, variation or termination of State awards or State employment agreements; (b) bargaining or industrial action. Note: Orders and injunctions of State industrial bodies relating to industrial action that are in operation immediately before the Division 2B referral commencement can continue to have effect, and be enforced, under State law after the Division 2B referral commencement: see item 61.

(3) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to a termination of employment that occurred before the Division 2B referral commencement. (4) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law: (a) relates to proceedings that commenced before the Division 2B referral commencement; and (b) provides for the variation or setting aside of entitlements and obligations arising under a contract of employment, or another arrangement for employment, that a court or a State industrial body of the State finds is unfair. [page 1317]

[30-1296] Continuation of orders and injunctions of State industrial bodies or courts 61 Despite section 26 of the FW Act: (a) an order made, or an injunction granted, by a State industrial body or a court of a Division 2B referring State to prevent or stop industrial action (however described) that was in operation immediately before the Division 2B referral commencement may continue to have effect under the law of the State on and after that day; and (b) the order or injunction may continue to be enforced under the law of the State on or after that day.

[page 1318]

[30-1330]

SCHEDULE 4 — NATIONAL EMPLOYMENT STANDARDS PART 1 — PRELIMINARY

[30-1340]

Meanings of employee and employer

1 In this Schedule, employee and employer have their ordinary meanings.

PART 2 — CONTINUED APPLICATION OF WR ACT MINIMUM ENTITLEMENTS PROVISIONS (OTHER THAN WAGES) DURING BRIDGING PERIOD [30-1445] Continued application of the Australian Fair Pay and Conditions Standard leave and work hours provisions 2 Divisions 3, 4, 5 and 6 of Part 7 of the WR Act continue to apply during the bridging period. Note 1: Part 7 of the WR Act contains the Australian Fair Pay and Conditions Standard. Part 3 of Schedule 9 to this Act provides for the continued application of Division 2 of Part 7 (which deals with wages). Note 2: Part 4 of Schedule 3 to this Act provides for the continued application of the rules about the interaction between transitional instruments and the Australian Fair Pay and Conditions Standard.

[30-1450] Continued application of entitlements to meal breaks, public holidays and parental leave

3 Divisions 1, 2 (other than sections 615 to 618) and 6 of Part 12 of the WR Act continue to apply during the bridging period.

[30-1455] Continued application of notice of termination provisions 4 The following provisions of the WR Act continue to apply in relation to terminations of employment that occur during the bridging period, or notice of which is given during the bridging period: (a) section 661; (b) the following other provisions, as they relate to section 661: (i) subsections 637(3), (4) and (5); (ii) section 638; (iii) section 640; (iv) section 642; (v) section 662.

[30-1460] References to workplace agreements include references to enterprise agreements 4A (1) The provisions of the WR Act that continue to apply because of this Part have effect as if a reference in the provisions to a workplace agreement included a reference to an enterprise agreement. (2) Subitem (1) has effect unless the context otherwise requires and subject to the regulations. [page 1319]

PART 3 — OPERATION OF THE NATIONAL EMPLOYMENT STANDARDS DIVISION 1 — OPERATION IN RELATION TO EMPLOYEES

OTHER THAN DIVISION 2B STATE REFERENCE EMPLOYEES [Div 1 am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

[30-1563]

Application of this Division

5A This Division applies in relation to employees other than Division 2B State reference employees. [cl 5A insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

[30-1565] Non-accruing entitlements: counting service before the FW (safety net provisions) commencement day 5 General rule (1) An employee’s service with an employer before the FW (safety net provisions) commencement day counts as service of the employee with the employer for the purpose of determining the employee’s entitlements under the National Employment Standards, other than entitlements to: (a) paid annual leave; and (b) paid personal/carer’s leave. Note 1: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act). Note 2: Interaction between the National Employment Standards and transitional instruments is dealt with in Division 1 of Part 5 of Schedule 3.

No double entitlement (2) If, before the FW (safety net provisions) commencement day, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (1) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the National Employment Standards. (3) To avoid doubt, subitem (2) does not require an employee to serve any initial qualifying period of service for long service leave again.

Limitation on application of general rule to redundancy pay (4) Subitem (1) does not apply in relation to an employee and an employer for the purposes of Subdivision B of Division 11 of the National Employment Standards (which deals with redundancy pay) if the terms and conditions of employment that applied to the employee’s employment by the employer immediately before the FW (safety net provisions) commencement day did not provide for an entitlement to redundancy pay. (5) In this item: an entitlement to redundancy pay includes an entitlement for an employee to enter into a retention or redeployment period. retention or redeployment period means a period of employment (however described) performed by an employee for an employer as an alternative to: (a) the employment of the employee being terminated immediately due to redundancy; and (b) the employee receiving redundancy pay from the employee’s employer. [subcl (5) insrt SLI 166 r 5.12 and Sch 1, opn 1 Jan 2010]

[page 1320]

[30-1570] Accruing entitlements: leave accrued immediately before the FW (safety net provisions) commencement day 6 (1) This item applies if, immediately before the FW (safety net provisions) commencement day, an employee has an accrued entitlement to an amount of paid annual leave or paid personal/carer’s leave, whether the leave accrued under Part 7 of the WR Act, a transitional instrument or otherwise. (2) The provisions of the National Employment Standards relating to taking that kind of leave (including rates of pay while taking leave), or cashing-out that kind of leave, apply, as a minimum standard, to the accrued

leave as if it had accrued under the National Employment Standards.

[30-1575] Leave that, immediately before the FW (safety net provisions) commencement day, is being, or is to be, taken under Part 7 of the WR Act 7 (1) If: (a) immediately before the FW (safety net provisions) commencement day, an employee is taking a period of a type of leave under Part 7 of the WR Act; and (b) there is an equivalent type of leave under the National Employment Standards; the employee is entitled to continue on leave of the equivalent type under the National Employment Standards for the remainder of the period. Note: For example, if an employee is taking paid annual leave under Part 7 of the WR Act immediately before the FW (safety net provisions) commencement day, the employee is entitled to continue on paid annual leave under the National Employment Standards.

(2) If an employee, or his or her spouse or de facto partner (if the spouse or de facto partner is also an employee), continues on leave under the National Employment Standards in accordance with subitem (1), the employee is entitled to adjust any of the following consistently with the provisions of the National Employment Standards in relation to that type of leave: (a) the amount of leave the employee is taking or will take; (b) the time at which the leave is taken; (c) the arrangements for taking the leave. Note: If the employee’s spouse or de facto partner is also an employee, the employees will be an employee couple for the purposes of the parental leave provisions of the National Employment Standards.

(3) If, before the FW (safety net provisions) commencement day: (a) an employee has taken a step that the employee is required to take so that the employee can, on or after the FW (safety net provisions) commencement day, take a type of leave referred to in subitem (1); and (b) an equivalent step is required under the National Employment Standards; the employee is taken to have taken the step under the National Employment

Standards. Note: For example, if an employee has given the employer an application under section 271 of the WR Act so that the employee can take ordinary maternity leave, the employee is taken to have given the employer notice under section 74 of the FW Act of the taking of unpaid parental leave.

(4) If an employee is taken, by subitem (3), to have taken a step, in relation to leave, under the National Employment Standards, the employee is entitled to adjust the step consistently with the provisions of the National Employment Standards in relation to that type of leave. Note: For example, an employee could vary the content of a notice given to the employer in relation to the leave, or vary the amount of leave the employee has notified the employer that the employee intends to take.

[page 1321] (5) The regulations may deal with other matters relating to how the National Employment Standards apply to leave that, immediately before the FW (safety net provisions) commencement day, is being, or is to be, taken under Part 7 of the WR Act.

[30-1580]

Community service leave

8 (1) An employee may, on or after the FW (safety net provisions) commencement day, be absent from his or her employment under Division 8 of the National Employment Standards even if the period of absence began before that day. (2) If an employee is absent from his or her employment in accordance with subitem (1), subsection 111(5) of the National Employment Standards applies as if a reference to the first 10 days of absence were a reference to the first 10 days of absence occurring on or after the FW (safety net provisions) commencement day.

[30-1585]

Notice of termination

9 (1) Subdivision A of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the FW (safety net provisions) commencement day.

(2) However, that Subdivision does not apply to a termination if notice of the termination was given before the FW (safety net provisions) commencement day.

[30-1590]

Redundancy pay

10 Subdivision B of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the FW (safety net provisions) commencement day, even if notice of the termination was given before that day.

[30-1595]

References to transfers of employment

11 References to a transfer of employment in: (a) provisions of the National Employment Standards; and (b) subsections 22(5) and (6) of the FW Act, as those provisions apply for the purposes of the National Employment Standards; do not cover a situation where the employee became employed by the second employer (within the meaning of subsection 22(7) of the FW Act) at a time before the FW (safety net provisions) commencement day.

[30-1600] bodies

Recognised emergency management

12 A body that was established, or continued in existence, for the purpose, or for purposes that include the purpose, of enabling one or more employees to obtain the protection of subsection 659(2) of the WR Act (which dealt with unlawful termination) is not a recognised emergency management body for the purposes of the FW Act.

[30-1605]

Fair Work Information Statement

13 The obligation in section 125 of the National Employment Standards for an employer to give an employee the Fair Work Information Statement only applies to an employee who starts employment with the employer on or after the FW (safety net provisions) commencement day.

[30-1610]

Regulations

14 The regulations may make provision in relation to how the National Employment Standards apply to, or are affected by, things done or matters occurring before the FW (safety net provisions) commencement day. [page 1322]

DIVISION 2 — OPERATION IN RELATION TO DIVISION 2B STATE REFERENCE EMPLOYEES [Div 2 insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

[30-1611]

Application of this Division

15 This Division applies in relation to Division 2B State reference employees.

[30-1612] Non-accruing entitlements: counting service before the Division 2B referral commencement 16 (1) General rule An employee’s service with an employer before the Division 2B referral commencement counts as service of the employee with the employer for the purpose of determining the employee’s entitlements under the National Employment Standards, other than entitlements to: (a) paid annual leave; and (b) paid personal/carer’s leave. Note 1: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act). Note 2: Interaction between the National Employment Standards and Division 2B State instruments is dealt with in Division 1 of Part 5 of Schedule 3A to this Act.

(2) No double entitlement If, before the Division 2B referral commencement, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service,

subitem (1) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the National Employment Standards. (3) To avoid doubt, subitem (2) does not require an employee to serve any initial qualifying period of service for long service leave again. (4) Limitation on application of general rule to redundancy pay Subitem (1) does not apply in relation to an employee and an employer for the purposes of Subdivision B of Division 11 of the National Employment Standards (which deals with redundancy pay) if the terms and conditions of employment that applied to the employee’s employment by the employer immediately before the Division 2B referral commencement did not provide for an entitlement to redundancy pay. (5) If, had an employee’s employment been terminated for redundancy (however described) before the Division 2B referral commencement, a State industrial body could have made an order giving the employee an entitlement to redundancy pay (however described): (a) the terms and conditions of the employee’s employment referred to in subitem (4) are taken to have provided for an entitlement to redundancy pay; and (b) paragraph 121(1)(b) of the FW Act does not apply in relation to the employee during the period of 12 months starting on the Division 2B referral commencement. Note: Because of paragraph (b), the employee may therefore be entitled to redundancy pay under section 119 of the FW Act if the employee’s employment is terminated during the 12 month period starting on the Division 2B referral commencement, even if the employer is a small business employer.

[page 1323]

[30-1613] Accruing entitlements: leave accrued immediately before the Division 2B referral commencement 17 (1) This item applies if an employee had, immediately before the

Division 2B referral commencement, an accrued entitlement to an amount of paid annual leave or paid personal/carer’s leave, whether the leave accrued under a State industrial law, the source award or source agreement for a Division 2B State instrument, or otherwise. (2) The provisions of the National Employment Standards relating to taking that kind of leave (including rates of pay while taking leave), or cashing-out that kind of leave, apply, as a minimum standard, to the accrued leave as if it had accrued under the National Employment Standards.

[30-1614] Leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken under Division 6 of Part 7 of the WR Act or a State industrial law 18 (1) If: (a) an employee was, immediately before the Division 2B referral commencement, taking a period of a type of leave under: (i) Division 6 of Part 7 of the WR Act; or (ii) a State industrial law; and (b) there is an equivalent type of leave under the National Employment Standards; the employee is entitled to continue on leave of the equivalent type under the National Employment Standards for the remainder of the period. Note: For example, if an employee was taking parental leave under Division 6 of Part 7 of the WR Act immediately before the Division 2B referral commencement, the employee is entitled to continue on unpaid parental leave under the National Employment Standards.

(2) If an employee, or his or her spouse or de facto partner (if the spouse or de facto partner is also an employee), continues on leave under the National Employment Standards in accordance with subitem (1), the employee is entitled to adjust any of the following consistently with the provisions of the National Employment Standards in relation to that type of leave: (a) the amount of leave the employee is taking or will take; (b) the time at which the leave is taken; (c) the arrangements for taking the leave. Note: If the employee’s spouse or de facto partner is also an employee, the employees will be an employee couple for the purposes of the parental leave provisions of the National Employment Standards.

(3) If, before the Division 2B referral commencement: (a) an employee has taken a step that the employee is required to take so that the employee can, on or after the Division 2B referral commencement, take a type of leave referred to in subitem (1); and (b) an equivalent step is required under the National Employment

Standards; the employee is taken to have taken the step under the National Employment Standards. Note: For example, if an employee has given the employer an application under section 271 of the WR Act so that the employee can take ordinary maternity leave, the employee is taken to have given the employer notice under section 74 of the FW Act of the taking of unpaid parental leave.

[page 1324] (4) If an employee is taken, by subitem (3), to have taken a step, in relation to leave, under the National Employment Standards, the employee is entitled to adjust the step consistently with the provisions of the National Employment Standards in relation to that type of leave. Note: For example, an employee could vary the content of a notice given to the employer in relation to the leave, or vary the amount of leave the employee has notified the employer that the employee intends to take.

(5) The regulations may deal with other matters relating to how the National Employment Standards apply to leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken under Division 6 of Part 7 of the WR Act or under a State industrial law of a Division 2B referring State.

[30-1615]

Notice of termination

19 (1) Subdivision A of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the Division 2B referral commencement. (2) However, that Subdivision does not apply to a termination if notice of the termination was given before the Division 2B referral commencement.

[30-1616]

Redundancy pay

20 Subdivision B of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the Division 2B referral commencement, even if notice of the termination was given before that day.

[30-1617]

Fair Work Information Statement

21 The obligation in section 125 of the National Employment Standards for an employer to give an employee the Fair Work Information Statement only applies to an employee who starts employment with the employer on or after the Division 2B referral commencement.

[30-1618]

Regulations

22 The regulations may make provision in relation to how the National Employment Standards apply to, or are affected by, things done or matters occurring before the Division 2B referral commencement.

[page 1325]

[30-1620] SCHEDULE 5 — MODERN AWARDS (OTHER THAN MODERN ENTERPRISE AWARDS AND STATE REFERENCE PUBLIC SECTOR MODERN AWARDS) [Heading am Act 54 of 2009 s 3 and Sch 2, opn 1 July 2009]

PART 1 — PRELIMINARY [30-1630]

Meanings of employee and employer

1 In this Schedule, employee means a national system employee and employer means a national system employer.

PART 2 — THE WR ACT AWARD MODERNISATION PROCESS [30-1735] AIRC to continue and complete the award modernisation process 2 (1) The Australian Industrial Relations Commission is to continue and complete the award modernisation process provided for by Part 10A of the WR Act (the Part 10A award modernisation process). Note: Enterprise award etc. modernisation is provided for in Schedule 6.

(2) For that purpose, Part 10A of the WR Act continues to apply on and after the WR Act repeal day in accordance with this Part. (3) Without limiting subitem (2), the request under section 576C of the WR Act continues to apply on and after the WR Act repeal day, and may be

varied in accordance with that section. (3A) Part 10A of the WR Act applies as if: (a) a reference to an employee were a reference to a national system employee; and (b) a reference to an employer were a reference to a national system employer; and (c) all the words after “eligible entity” in paragraph 576K(2)(b) were omitted and the words “may arrange for work to be performed for the entity (either directly or indirectly), if the work is of a kind that is often performed by outworkers” were substituted; and (d) the definition of eligible entity in section 576U were omitted; and (e) subsection 576Z(4) were omitted; and (f) a reference to an eligible entity were a reference to an outworker entity within the meaning of the FW Act; and (g) subsection 576K(1) were omitted; and (h) a reference to an outworker in subsection 576K(2) were a reference to an outworker within the meaning of the FW Act; and (i) the definition of outworker term in section 576U were omitted; and (j) a reference to an outworker term in section 576V were a reference to an outworker term within the meaning of the FW Act. [cl 3A insrt Act 124 of 2009 s 3 and Sch 3, opn 9 Dec 2009]

(4) The Australian Industrial Relations Commission’s power under section 576H of the WR Act to vary a modern award cannot be exercised after the modern award has come into operation. [page 1326] (5) In continuing and completing the Part 10A award modernisation process, the Australian Industrial Relations Commission must have regard to: (a) the state of the national economy; and (b) the likely effects on the national economy of any modern award that the Commission is considering, or is proposing to make, with

special reference to likely effects on the level of employment and on inflation. (c) the likely effects on the relevant industry or industry sector of any modern award that the Commission is considering, or is proposing to make, including on productivity, labour costs and the regulatory burden on businesses.

[30-1740] Variation and termination of certain transitional instruments etc. to take account of Part 10A award modernisation process 3 (1) The FWC must, as soon as practicable after a modern award (other than the miscellaneous modern award) made in the Part 10A award modernisation process comes into operation (and subject to subitem (3)): (a) terminate any of the following (modernisable instruments) that the FWC considers are completely replaced by the modern award: (i) award-based transitional instruments; (ii) transitional APCSs; and (b) if the FWC considers that the modern award only partly replaces a modernisable instrument—vary the coverage terms of the modernisable instrument accordingly. Note 1: The main provisions about transitional instruments are in Schedule 3, and the main provisions about transitional APCSs are in Schedule 9. Note 2: This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 items 1137, 1138, opn 1 Jan 2013]

(2) As soon as practicable after all modern awards made in the Part 10A modernisation process have come into operation, the FWC must (subject to subitem (3)) terminate any remaining modernisable instruments. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1139, opn 1 Jan 2013]

(3) However, the FWC must not, under this item: (a) terminate a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award, or that covers employees who are also covered by an enterprise instrument or a State reference public sector transitional award; or (b) vary a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award; or (c) vary a modernisable instrument so that it ceases to cover employees who are also covered by an enterprise instrument or a State reference public sector transitional award.

Note 1: Item 9 of Schedule 6 deals with termination and variation of modernisable instruments to take account of the enterprise instrument or a State reference public sector transitional award modification process. Note 2: Item 10 of Schedule 6A deals with termination and variation of State reference public sector transitional awards to take account of the State reference public sector transitional award modernisation process. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1139, opn 1 Jan 2013]

[page 1327] (4) The FWC may establish a process for making decisions under this item to terminate or vary one or more modernisable instruments. [subcl (4) am Act 174 of 2012 s 3 and Sch 9 item 1140, opn 1 Jan 2013]

(5) The FWC may advise persons or bodies about that process in any way the FWC considers appropriate. [subcl (5) am Act 174 of 2012 s 3 and Sch 9 items 1141, 1142, opn 1 Jan 2013]

(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s powers under subitem (5). [subcl (6) am Act 174 of 2012 s 3 and Sch 9 items 1143, 1144, opn 1 Jan 2013]

[30-1745] How the FW Act applies to modern awards made in the Part 10A award modernisation process 4 (1) A modern award made in the Part 10A award modernisation process is, for the purposes of the FW Act (and any other law), taken to be a modern award within the meaning of that Act from the later of the following days: (a) the day on which the award is made; (b) the FW (safety net provisions) commencement day. (2) Section 49 of the FW Act does not apply for the purpose of determining when the modern award comes into operation. Instead, the modern award comes into operation on the day on which it is expressed to commence (in accordance with section 576Y of the WR Act). (3) The regulations may deal with other matters relating to how the FW Act applies in relation to modern awards made in the Part 10A award modernisation process.

[30-1750] Variations to deal with minor problems attributable to award modernisation starting before enactment of FW Act 5 (1) If the FWC considers that there is a minor or technical problem with a modern award that is attributable to the fact that the Part 10A award modernisation process started before the enactment of the FW Act, the FWC may make a determination varying the modern award to resolve the problem. Note: Certain modern awards may, for example, contain references to concepts or provisions that are not consistent with the FW Act as enacted. This variation power allows the FWC to fix such references. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1145, opn 1 Jan 2013]

(2) The FWC may make the determination: (a) on its own initiative; or (b) on application by an employer, employee, organisation or outworker entity covered by the modern award; or

on application by an organisation that is entitled to represent the (c) industrial interests of one or more employers or employees that are covered by the modern award; or (d) if the variation is of outworker terms in the modern award — on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the terms relate. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1146, opn 1 Jan 2013]

[page 1328]

[30-1755] Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years 6 (1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, the FWC must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards. Note: The review required by this item is in addition to the annual wage reviews and 4 yearly reviews of modern awards that the FWC is required to conduct under the FW Act. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1147, opn 1 Jan 2013]

(2) In the review, the FWC must consider whether the modern awards: (a) achieve the modern awards objective; and (b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1147, opn 1 Jan 2013]

(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent the FWC from reviewing 2 or more modern awards at the same time. [subcl (2A) am Act 174 of 2012 s 3 and Sch 9 item 1147, opn 1 Jan 2013]

(3) The FWC may make a determination varying any of the modern awards in any way that the FWC considers appropriate to remedy any issues identified in the review.

Note: Any variation of a modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2-3 of the FW Act). [subcl (3) am Act 174 of 2012 s 3 and Sch 9 items 1148, 1149, opn 1 Jan 2013]

(4) The modern awards objective applies to the FWC making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages. [subcl (4) am Act 174 of 2012 s 3 and Sch 9 item 1150, opn 1 Jan 2013]

(5) The FWC may advise persons or bodies about the review in any way the FWC considers appropriate. [subcl (5) am Act 174 of 2012 s 3 and Sch 9 items 1151, 1152, opn 1 Jan 2013]

(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s powers under subitem (5). [subcl (6) am Act 174 of 2012 s 3 and Sch 9 items 1153, 1154, opn 1 Jan 2013]

[30-1760] Review of transitional arrangements included in modern awards 7 (1) If: (a) a modern award includes terms (review terms) under which the FWC may review transitional arrangements included in the award; and (b) the review terms, and the transitional arrangements, were included in the award in the Part 10A award modernisation process; the FWC may: (c) review the award in accordance with the review terms; and (d) make a determination varying the award in any way it considers necessary, having regard to that review. Note: Any variation of the modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2-3 of the FW Act). [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1155, opn 1 Jan 2013]

[page 1329]

(2) The review terms are taken to be terms that are permitted to be included in the modern award by Subdivision B of Division 3 of Part 2-3 of the FW Act.

PART 3 — AVOIDING REDUCTIONS IN TAKEHOME PAY

[30-1865] Part 10A award modernisation process is not intended to result in reduction in take-home pay 8 (1) The Part 10A award modernisation process is not intended to result in a reduction in the take-home pay of employees or outworkers. (2) An employee’s or outworker’s take-home pay is the pay an employee or outworker actually receives: (a) including wages and incentive-based payments, and additional amounts such as allowances and overtime; but (b) disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act. Note: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.

(3) An employee suffers a modernisation-related reduction in take-home pay if, and only if: (a) a modern award made in the Part 10A award modernisation process starts to apply to the employee when the award comes into operation; and (b) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the modern award came into operation; and (c) the amount of the employee’s take-home pay for working particular hours or for a particular quantity of work after the modern award comes into operation is less than what would have been the employee’s take-home pay for those hours or that quantity of work immediately before the award came into operation; and (d) that reduction in the employee’s take-home pay is attributable to the Part 10A award modernisation process. (4) An outworker who is not an employee suffers a modernisation-related reduction in take-home pay if, and only if: (a) when a modern award that contains outworker terms comes into operation, the outworker is a person to whom outworker terms in

the modern award relate; and (b) the outworker is performing the same work as (or work that is similar to) the work he or she was performing immediately before the modern award came into operation; and (c) the amount of the outworker’s take-home pay for working particular hours or for a particular quantity of work after the modern award comes into operation is less than what would have been the outworker’s take-home pay for those hours or that quantity of work immediately before the award came into operation; and (d) that reduction in the outworker’s take-home pay is attributable to the Part 10A award modernisation process. [page 1330]

[30-1870] home pay

Orders remedying reductions in take-

9 Employees (1) If the FWC is satisfied that an employee, or a class of employees, to whom a modern award applies has suffered a modernisation-related reduction in take-home pay, the FWC may make any order (a take-home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1156, opn 1 Jan 2013]

Outworkers (2) If the FWC is satisfied that an outworker, or a class of outworkers, to whom outworker terms in a modern award relate has suffered a modernisation-related reduction in take-home pay, the FWC may make any order (a take-home pay order) requiring, or relating to, the payment of an amount or amounts to the outworker or outworkers that the FWC considers appropriate to remedy the situation. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1156, opn 1 Jan 2013]

General provisions (3) The FWC may make a take-home pay order only on application by: (a) an employee or outworker who has suffered a modernisationrelated reduction in take-home pay; or (b) an organisation that is entitled to represent the industrial interests of such an employee or outworker; or (c) a person acting on behalf of a class of such employees or outworkers. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1157, opn 1 Jan 2013]

(4) If the FWC is satisfied that an application for a take-home pay order has already been made in relation to an employee or a class of employees, or an outworker or a class of outworkers, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees, or the same outworker or outworkers. [subcl (4) am Act 174 of 2012 s 3 and Sch 9 item 1158, opn 1 Jan 2013]

[30-1875] Ensuring that take-home pay orders are confined to the circumstances for which they are needed 10 (1) The FWC must not make a take-home pay order in relation to an employee or class of employees, or an outworker or a class of outworkers, if: (a) the FWC considers that the modernisation-related reduction in take-home pay is minor or insignificant; or (b) the FWC is satisfied that the employee or employees, or outworker or outworkers, have been adequately compensated in other ways for the reduction. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 items 1159, 1160, opn 1 Jan 2013]

(2) The FWC must ensure that a take-home pay order is expressed so that: (a) it does not apply to an employee or outworker unless the employee or outworker has actually suffered a modernisation-related reduction in take-home pay; and (b) if the take-home pay payable to the employee or outworker under the modern award increases after the order is made, there is a

corresponding reduction in any amount payable to the employee or outworker under the order. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1161, opn 1 Jan 2013]

[page 1331]

[30-1880] Take-home pay order continues to have effect so long as modern award continues to cover the employee or employees 11 A take-home pay order made in relation to an employee or class of employees to whom a particular modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the modern award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.

[30-1885] Inconsistency with modern awards and enterprise agreements 12 A term of a modern award or an enterprise agreement has no effect in relation to an employee or outworker to the extent that it is less beneficial to the employee or outworker than a term of a take-home pay order that applies to the employee or outworker.

[30-1890] Application of provisions of FW Act to take-home pay orders 13 The FW Act applies as if the following provisions of that Act included a reference to a take-home pay order: (a) subsection 675(2); (b) subsection 706(2). Note: For compliance with take-home pay orders, see item 7 of Schedule 16.

[page 1332]

[30-1900]

SCHEDULE 6 — MODERN ENTERPRISE AWARDS PART 1 — PRELIMINARY

[30-1910]

Meanings of employee and employer

1 In this Schedule, employee means a national system employee and employer means a national system employer.

PART 2 — THE ENTERPRISE INSTRUMENT MODERNISATION PROCESS DIVISION 1 — ENTERPRISE INSTRUMENTS

[30-2015]

Enterprise instruments

2 (1) Each of the following is an enterprise instrument: (a) an enterprise award-based instrument; (b) an enterprise preserved collective State agreement; (c) a Division 2B enterprise award. [subcl (1) am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(2) An enterprise award-based instrument is an award-based transitional instrument, other than a State reference public sector transitional award, to which subitem (2A) or (2B) applies. [subcl (2) am Act 54 of 2009 s 3 and Sch 2, opn 1 July 2009]

(2A) This subitem applies to an award-based transitional instrument that is an award, if the award covers employees in:

(a) a single enterprise (or a part of a single enterprise) only; or (b) one or more enterprises, if the employers all carry on similar business activities under the same franchise and are: (i) franchisees of the same franchisor; or (ii) related bodies corporate of the same franchisor; or (iii) any combination of the above. (2B) This subitem applies to an award-based transitional instrument that is a notional agreement preserving State awards, if the notional agreement includes terms and conditions from a State award (within the meaning of the WR Act) that covered employees in: (a) a single enterprise (or a part of a single enterprise) only; or (b) one or more enterprises, if the employers all carried on similar business activities under the same franchise and were: (i) franchisees of the same franchisor; or (ii) related bodies corporate of the same franchisor; or (iii) any combination of the above. [subcl (2B) am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

[page 1333] (3) An enterprise preserved collective State agreement is a transitional instrument that is a preserved collective State agreement in relation to which the following paragraphs are satisfied: (a) a State or Territory law had, on the day before the commencement of Part 2 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005, the effect (however described) of converting a State award (within the meaning of the WR Act) into the relevant State employment agreement (within the meaning of the WR Act); (b) if the State award had continued to have effect in relation to employees, a notional agreement preserving State awards to which subitem (2B) applies would have been taken to come into operation

in relation to those employees. [subcl (3) am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(4) A Division 2B enterprise award is a Division 2B State award that covers: (a) a single enterprise (or a part of a single enterprise) only; or (b) one or more enterprises, if the employers all carry on similar business activities under the same franchise and are: (i) franchisees of the same franchisor; or (ii) related bodies corporate of the same franchisor; or (iii) any combination of the above. [subcl (4) insrt Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

[30-2020] Meaning of single enterprise and part of a single enterprise 3 (1) A single enterprise is: (a) a business, project or undertaking that is carried on by an employer; or (b) the activities carried on by: (i) the Commonwealth, a State or a Territory; or (ii) a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or (iii) any other body in which the Commonwealth, a State or a Territory has a controlling interest. (2) For the purposes of subitem (1), if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer. (3) For the purposes of subitem (1), if 2 or more related bodies corporate each carry on a single enterprise: (a) the bodies corporate are taken to be one employer; and (b) the single enterprises are taken to be one single enterprise. Note: However, an enterprise instrument or a modern enterprise award could just relate to a part of that single enterprise.

(4) A part of a single enterprise includes, for example: (a) a geographically distinct part of the single enterprise; or (b) a distinct operational or organisational unit within the single enterprise.

DIVISION 2 — THE ENTERPRISE INSTRUMENT MODERNISATION PROCESS

[30-2045] The enterprise instrument modernisation process

4 (1) The enterprise instrument modernisation process is the process of making modern awards under this Division to replace enterprise instruments. [page 1334] (2) On application, the FWC may make a modern award (a modern enterprise award) to replace an enterprise instrument. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1162, opn 1 Jan 2013]

(3) The application may be made only: (a) by a person covered by the enterprise instrument; and (b) during the period starting on the WR Act repeal day and ending at the end of 31 December 2013. (4) A modern enterprise award must be made by a Full Bench. (5) In deciding whether or not to make a modern enterprise award, and in determining the content of that award, the FWC must take into account the following: (a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application; (b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process; (c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process); (d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument; (e) the extent to which the enterprise instrument provides enterprisespecific terms and conditions of employment;

(f)

the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons; (g) the views of the persons covered by the enterprise instrument; (h) any other matter prescribed by the regulations. Note: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award. [subcl (5) am Act 174 of 2012 s 3 and Sch 9 item 1162, opn 1 Jan 2013]

(5A) If the FWC makes a modern enterprise award before the FW (safety net provisions) commencement day, the modern enterprise award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day. Note: For when a modern enterprise award is in operation, see item 17. [subcl (5A) am Act 174 of 2012 s 3 and Sch 9 item 1162, opn 1 Jan 2013]

(6) The regulations may deal with other matters relating to the enterprise instrument modernisation process.

[30-2050] the FWC

Enterprise instruments: termination by

5 (1) A person covered by an enterprise instrument may apply to the FWC for the FWC to terminate the instrument. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1164, opn 1 Jan 2013]

[page 1335] (2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013. (3) If an application for the FWC to terminate the enterprise instrument is made under subitem (1), the FWC may: (a) terminate the enterprise instrument; or

(b) decide that the enterprise instrument should not be terminated; or (c) decide to treat the application as if it were an application under item 4. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1164, opn 1 Jan 2013]

(4) In making a decision under subitem (3), the FWC must take into account the following: (a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application; (b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process; (c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process); (d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument; (e) the extent to which the enterprise instrument provides enterprisespecific terms and conditions of employment; (f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to terminate, or not terminate, the enterprise instrument, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons; (g) the views of the persons covered by the enterprise instrument; (h) any other matter prescribed by the regulations. Note: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award. [subcl (4) am Act 174 of 2012 s 3 and Sch 9 item 1164, opn 1 Jan 2013]

(5) If the FWC terminates the enterprise instrument, the termination operates from the day specified in the decision to terminate the instrument, being a day that is not earlier than the FW (safety net provisions) commencement day. [subcl (5) am Act 174 of 2012 s 3 and Sch 9 item 1164, opn 1 Jan 2013] [cl 5 am Act 174 of 2012 s 3 and Sch 9 item 1163, opn 1 Jan 2013]

[30-2055] objective

The modern enterprise awards

6 (1) The modern awards objective and the minimum wages objective apply to the FWC making a modern enterprise award under this Division. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1164, opn 1 Jan 2013]

[page 1336] (2) However, in applying the modern awards objective and the minimum wages objective, the FWC must recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. This is the modern enterprise awards objective. Note 1: See also item 11 (enterprise instrument modernisation process is not intended to result in reduction in take-home pay). Note 2: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day). [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1164, opn 1 Jan 2013]

[30-2060]

Terms of modern enterprise awards

7 (1) Subject to this item and item 8, Division 3 of Part 2-3 of the FW Act (which deals with terms of modern awards) applies in relation to a modern enterprise award made under this Division. Note: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).

Increases in entitlements (2) If the making of a modern enterprise award results in an increase in an

employee’s entitlements, the modern enterprise award may provide for the increases to take effect in stages. Industry-specific redundancy schemes (3) If a modern award includes an industry-specific redundancy scheme in relation to a particular industry, and the FWC makes a modern enterprise award that covers persons who operate in that industry, the FWC may include the industry-specific redundancy scheme in the modern enterprise award. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1164, opn 1 Jan 2013]

[30-2065]

Coverage terms

8 Coverage terms must be included (1) A modern enterprise award must include terms (coverage terms) setting out, in accordance with this item: (a) the enterprise or enterprises to which the modern enterprise award relates; and (b) the employer or employers, employees and organisations that are covered by the modern enterprise award. Enterprises (2) A modern enterprise award must be expressed to relate: (a) to a single enterprise (or a part of a single enterprise) only; or (b) to one or more enterprises, but only if the employers all carry on similar business activities under the same franchise and are: (i) franchisees of the same franchisor; or (ii) related bodies corporate of the same franchisor; or (iii) any combination of the above. Employers and employees (3) A modern enterprise award must be expressed to cover: (a) a specified employer that carries on, or specified employers that carry on, the enterprise or enterprises referred to in subitem (2); and (b) specified employees of the employer or employers covered by the modern enterprise award.

[page 1337] Organisations (4) A modern enterprise award may be expressed to cover one or more specified organisations, in relation to: (a) all or specified employees covered by the award; or (b) the employer, or all or specified employers, covered by the award. Outworker entities (5) A modern enterprise award must not be expressed to cover outworker entities. How coverage etc. is expressed (6) For the purposes of subitem (2), an enterprise must be specified: (a) if paragraph (2)(a) applies to the enterprise — by name; or (b) if paragraph (2)(b) applies to the enterprise — by name, or by the name of the franchise. (7) For the purposes of subitems (3) and (4): (a) an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and (b) employees must be specified by inclusion in a specified class or specified classes; and (c) organisations must be specified by name. Employees not traditionally covered by awards etc. (8) A modern enterprise award must not be expressed to cover classes of employees: (a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or (b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards. Note: For example, in some industries, managerial employees have traditionally not been covered by awards.

[30-2070] Variation and termination of certain instruments to take account of enterprise instrument modernisation process 9 (1) If the FWC makes a modern enterprise award to replace an enterprise preserved collective State agreement, the agreement terminates when the modern award comes into operation. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1165, opn 1 Jan 2013]

(2) The FWC must, as soon as practicable after a modern enterprise award that is made to replace an enterprise instrument comes into operation: (a) terminate the enterprise instrument (if it has not already terminated under subitem (1)); and (b) vary or terminate (as appropriate) any of the following (modernisable instruments): (i) other award-based transitional instruments; (ii) transitional APCSs; (iii) other Division 2B State awards; so that employees who were covered by the enterprise instrument are no longer covered by those modernisable instruments. [page 1338] Note 1: The main provisions about transitional instruments are in Schedule 3, the main provisions about transitional APCSs are in Schedule 9, and the main provisions about Division 2B State awards are in Schedule 3A. Note 2: This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item. [subcl (2) am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010; Act 174 of 2012 s 3 and Sch 9 item 1166, opn 1 Jan 2013]

(3) If the FWC decides not to make a modern enterprise award to replace an enterprise instrument, the instrument terminates when that decision comes into operation. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1167, opn 1 Jan 2013]

(3A) Despite subitem (3), if, before the FW (safety net provisions) commencement day, the FWC makes a decision not to make a modern enterprise award to replace an enterprise instrument, the decision must not come into operation before the FW (safety net provisions) commencement day. [subcl (3A) am Act 174 of 2012 s 3 and Sch 9 item 1167, opn 1 Jan 2013]

(4) If, by the end of the period specified in paragraph 4(3)(b), no application under item 4 or 5 has been made in relation to an enterprise instrument, the instrument terminates at the end of that period. (5) As soon as practicable after all modern enterprise awards made in the enterprise instrument modernisation process have come into operation, the FWC must terminate any remaining modernisable instruments. [subcl (5) am Act 174 of 2012 s 3 and Sch 9 item 1167, opn 1 Jan 2013] [heading am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

[30-2075] Notification of the cut-off for the enterprise instrument modernisation process 10 (1) The FWC must, at least 6 months before the end of the period specified in paragraph 4(3)(b), advise any persons still covered by an enterprise instrument: (a) that the period for making applications under items 4 and 5 ends on 31 December 2013; and (b) of the consequences for the enterprise instrument if an application in relation to the instrument is not made. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1168, opn 1 Jan 2013]

(2) The FWC may give that advice by any means it considers appropriate. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1168, opn 1 Jan 2013]

(3) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s functions and powers under this item. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 items 1169, 1170, opn 1 Jan 2013]

DIVISION 3 — AVOIDING REDUCTIONS IN TAKE-HOME

PAY

[30-2100] Enterprise instrument modernisation process is not intended to result in reduction in take-home pay 11 (1) The enterprise instrument modernisation process is not intended to result in a reduction in the take-home pay of employees. [page 1339] (2) An employee’s take-home pay is the pay an employee actually receives: (a) including wages and incentive-based payments, and additional amounts such as allowances and overtime; but (b) disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act. Note: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.

(3) An employee suffers a modernisation-related reduction in take-home pay if, and only if: (a) a modern enterprise award made in the enterprise instrument modernisation process starts to apply to the employee when the award comes into operation; and (b) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the modern enterprise award came into operation; and (c) the amount of the employee’s take-home pay for working particular hours or for a particular quantity of work after the modern enterprise award comes into operation is less than what would have been the employee’s take-home pay for those hours or that quantity of work immediately before the award came into operation; and

that reduction in the employee’s take-home pay is attributable to (d) the enterprise instrument modernisation process.

[30-2105] home pay

Orders remedying reductions in take-

12 (1) If the FWC is satisfied that an employee, or a class of employees, to whom a modern enterprise award applies has suffered a modernisationrelated reduction in take-home pay, the FWC may make any order (a takehome pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1171, opn 1 Jan 2013]

(2) The FWC may make a take-home pay order only on application by: (a) an employee who has suffered a modernisation-related reduction in take-home pay; or (b) an organisation that is entitled to represent the industrial interests of such an employee; or (c) a person acting on behalf of a class of such employees. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1172, opn 1 Jan 2013]

(3) If the FWC is satisfied that an application for a take-home pay order has already been made in relation to an employee or a class of employees, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1173, opn 1 Jan 2013]

[30-2110] Ensuring that take-home pay orders are confined to the circumstances for which they are needed 13 (1) The FWC must not make a take-home pay order in relation to an employee or class of employees if: [page 1340]

(a) the FWC considers that the modernisation-related reduction in take-home pay is minor or insignificant; or (b) the FWC is satisfied that the employee or employees have been adequately compensated in other ways for the reduction. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 items 1174, 1175, opn 1 Jan 2013]

(2) The FWC must ensure that a take-home pay order is expressed so that: (a) it does not apply to an employee unless the employee has actually suffered a modernisation-related reduction in take-home pay; and (b) if the take-home pay payable to the employee under the modern enterprise award increases after the order is made, there is a corresponding reduction in any amount payable to the employee under the order. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1176, opn 1 Jan 2013]

[30-2115] Take-home pay order continues to have effect so long as modern enterprise award continues to cover the employee or employees 14 A take-home pay order made in relation to an employee or class of employees to whom a particular modern enterprise award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the modern enterprise award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.

[30-2120] Inconsistency with modern enterprise awards and enterprise agreements 15 A term of a modern enterprise award or an enterprise agreement has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a take-home pay order that applies to the employee.

[30-2125] Application of provisions of FW Act to take-home pay orders

16 The FW Act applies as if the following provisions of that Act included a reference to a take-home pay order: (a) subsection 675(2); (b) subsection 706(2). Note: For compliance with take-home pay orders, see item 7 of Schedule 16.

DIVISION 4 — APPLICATION OF THE FW ACT

[30-2150] How the FW Act applies to the modernisation process before the FW (safety net provisions) commencement day 16A For the purposes of making a modern enterprise award before the FW (safety net provisions) commencement day, the following provisions of the FW Act apply as if they had already commenced: (a) Part 2-2 (which deals with the National Employment Standards); (b) section 134 (which deals with the modern awards objective); (c) Division 3 of Part 2-3 (which deals with terms of modern awards); (d) section 284 (which deals with the minimum wages objective); (e) any provisions that are necessary for the effectual operation of the provisions referred to in paragraphs (a) to (d). [page 1341]

[30-2155] How the FW Act applies to modern awards made in the enterprise instrument modernisation process 17 (1) A modern enterprise award made under Division 2 is, for the purposes of the FW Act (and any other law), taken to be a modern award (being a modern enterprise award) within the meaning of that Act from the day on which the modern enterprise award is made.

(2) Section 49 of the FW Act does not apply for the purpose of determining when the modern enterprise award comes into operation. Instead, the modern enterprise award comes into operation on the day on which it is expressed to commence, being a day that is not earlier than the day on which the modern enterprise award is made. (3) The regulations may deal with other matters relating to how the FW Act applies in relation to modern enterprise awards.

PART 3 — AMENDMENTS This part contained amendments to the Fair Work Act 2009 which have already been incorporated into that Act. Accordingly, they are not reproduced here.

[page 1342]

[30-2320]

SCHEDULE 6A — STATE REFERENCE PUBLIC SECTOR MODERN AWARDS PART 1 — PRELIMINARY

[30-2330]

Meanings of employer and employee

1 In this Schedule, employer and employee have their ordinary meanings.

PART 2 — THE STATE REFERENCE PUBLIC SECTOR TRANSITIONAL AWARD MODERNISATION PROCESS DIVISION 1 — STATE REFERENCE PUBLIC SECTOR TRANSITIONAL AWARDS

[30-2435] State reference public sector transitional awards 2 (1) A State reference public sector transitional award is a State reference transitional award or common rule in relation to which the following conditions are satisfied: (a) the only employers that are expressed to be covered by the award or common rule are one or more specified State reference public sector employers; (b) the only employees who are expressed to be covered by the award or common rule are specified State reference public sector

employees of those employers. Note: State reference transitional awards and common rules are continued in existence as transitional instruments by Schedule 3.

(2) A State reference public sector employee is a State reference employee who is a State public sector employee as defined in section 30A or 30K of the FW Act. [subcl (2) am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(3) A State reference public sector employer is a State reference employer that is a State public sector employer as defined in section 30A or 30K of the FW Act. [subcl (3) am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

(4) If: (a) a State reference transitional award or common rule (the current award) covers one or more State reference public sector employers, and State reference public sector employees of those employers; and (b) the current award also covers: (i) other employees of those employers; or (ii) other employers, and employees of those other employers; then, for the purposes of this Act, the current award is taken instead to constitute 2 separate State reference transitional awards or common rules as follows: (c) a State reference public sector transitional award covering: (i) the employers, and the employees of those employers, referred to in paragraph (a); and (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a) — that organisation in relation to those employers or employees; and [page 1343] (d) a State reference transitional award or a State reference common

rule (as the case requires) covering: (i) the employers, and the employees of those employers, referred to in paragraph (b); and (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b) — that organisation in relation to those employers or employees.

DIVISION 2 — THE STATE REFERENCE PUBLIC SECTOR TRANSITIONAL AWARD MODERNISATION PROCESS

[30-2460] The State reference public sector transitional award modernisation process 3 (1) The State reference public sector transitional award modernisation process is the process of making State reference public sector modern awards under this Division covering employers, employees and organisations that are covered by State reference public sector transitional awards. (2) A State reference public sector modern award is a modern award in relation to which the following conditions are satisfied: (a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers; (b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers. (3) A State reference public sector modern award must be made by a Full Bench.

[30-2465] Making State reference public sector modern awards on application 4 (1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to the FWC for the making of a State reference public sector modern award (the proposed award).

[subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1177, opn 1 Jan 2013]

(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013. (3) The application must specify the employers, employees and organisations (the proposed parties) proposed to be covered by the proposed award. (4) The FWC must consider the application, and must make a State reference public sector modern award covering the proposed parties if the FWC is satisfied that: (a) the proposed parties are covered by State reference public sector transitional awards; and (b) the employers and organisations that are proposed parties have agreed to the making of the application. Note: The proposed parties will cease to be covered by State reference public sector transitional awards when the State reference public sector modern award comes into operation: see item 29 of Schedule 3. [subcl (4) am Act 174 of 2012 s 3 and Sch 9 items 1178, 1179, opn 1 Jan 2013]

[page 1344]

[30-2470] Terminating State reference public sector transitional awards on application 5 (1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to the FWC or the Commission to terminate the current award. Note: The Commission ceased to exist on 31 December 2009: see item 7 of Schedule 18. [subcl (1) am Act 124 of 2009 s 3 and Sch 3, opn 9 Dec 2009; Act 174 of 2012 s 3 and Sch 9 items 1180, 1181, opn 1 Jan 2013]

(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013. (3) The FWC or the Commission must not terminate the current award unless the FWC or the Commission is satisfied that the employees who are covered by the current award will, if the current award is terminated, be covered by a modern award (other than the miscellaneous modern award)

that, at the time of the termination, is or is likely to be in operation and that is appropriate for them. [subcl (3) am Act 124 of 2009 s 3 and Sch 3, opn 9 Dec 2009; Act 174 of 2012 s 3 and Sch 9 items 1182, 1183, opn 1 Jan 2013]

(4) In deciding whether to terminate the current award, the FWC or the Commission must take into account the following: (a) the circumstances that led to the making of the current award; (b) the terms and conditions of employment applying in the industry or occupation in which the persons covered by the current award operate, and the extent to which those terms and conditions are reflected in the current award; (c) the extent to which the current award facilitates arrangements, and provides terms and conditions of employment, referred to in paragraphs 7(2)(a) and (b); (d) the likely impact on the persons covered by the current award of a decision to terminate, or not to terminate, the current award; (e) the views of the persons covered by the current award; (f) any other matter prescribed by the regulations. [subcl (4) am Act 124 of 2009 s 3 and Sch 3, opn 9 Dec 2009; Act 174 of 2012 s 3 and Sch 9 item 1184, opn 1 Jan 2013]

(5) If the FWC or the Commission terminates the current award, the termination operates from the day specified in the decision to terminate the current award, being a day that is not earlier than the FW (safety net provisions) commencement day. [subcl (5) am Act 124 of 2009 s 3 and Sch 3, opn 9 Dec 2009; Act 174 of 2012 s 3 and Sch 9 item 1184, opn 1 Jan 2013]

(6) If the Commission terminates the current award, the termination is taken, after the Commission has ceased to exist, to have been made by the FWC. [subcl (6) insrt Act 124 of 2009 s 3 and Sch 3, opn 9 Dec 2009; am Act 174 of 2012 s 3 and Sch 9 items 1184, 1185, opn 1 Jan 2013]

[30-2475] Further obligation of the FWC to make or vary State reference public sector modern

awards at end of application period 6 If, at the end of the period referred to in subitem 4(2), there are one or more State reference public sector transitional awards that still cover some employers and employees, the FWC must make, or (in accordance with section 168L of the FW Act) [page 1345] vary the coverage of, one or more State reference public sector modern awards so that all those employers and employees are covered by State reference public sector modern awards. Note: The employers and employees will cease to be covered by the State reference public sector transitional awards when they start to be covered by a State reference public sector modern award that is in operation: see item 29 of Schedule 3. [cl 6 am Act 174 of 2012 s 3 and Sch 9 items 1186, 1187, opn 1 Jan 2013]

[30-2480] The State reference public sector modern awards objective 7 (1) If the FWC is required by item 4 or 6 to make a State reference public sector modern award, the modern awards objective and the minimum wages objective apply to the making of the modern award. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1188, opn 1 Jan 2013]

(2) However, in applying the modern awards objective and the minimum wages objective, the FWC must recognise: (a) the need to facilitate arrangements for State reference public sector employers and State reference public sector employees that are appropriately adapted to the effective administration of a State; and (b) that State reference public sector modern awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to State reference public sector employers and State reference public sector employees. This is the State reference public sector modern awards objective. Note 1: See also item 13 (State reference public sector transitional award modernisation process is not

intended to result in reduction in take-home pay). Note 2: See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day). [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1188, opn 1 Jan 2013]

[30-2485] Terms of State reference public sector modern awards 8 (1) Division 3 (other than sections 143 and 154) of Part 2-3 of the FW Act (which deals with terms of modern awards) applies in relation to a State reference public sector modern award made under this Division. Note: See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day).

(2) If FWA makes a State reference public sector modern award before the FW (safety net provisions) commencement day, the State reference public sector modern award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.

[30-2490]

Coverage terms

9 Coverage terms must be included (1) A State reference public sector modern award must include terms (coverage terms) setting out, in accordance with this item, the employers, employees and organisations that are covered by the State reference public sector modern award. [page 1346] Employers and employees (2) The coverage terms must be such that: (a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers; and (b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of

those employers. Organisations (3) A State reference public sector modern award may be expressed to cover one or more specified organisations, in relation to: (a) all or specified employees covered by the modern award; or (b) the employer, or all or specified employers, covered by the modern award. Outworker entities (4) A State reference public sector modern award must not be expressed to cover outworker entities. How coverage etc. is expressed (5) For the purposes of this item: (a) an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and (b) employees must be specified by inclusion in a specified class or specified classes; and (c) organisations must be specified by name.

[30-2495] Variation and termination of State reference public sector transitional awards to take account of the modernisation process 10 (1) If a State reference public sector modern award completely replaces a State reference public sector transitional award, the transitional award terminates when the modern award comes into operation. (2) If a State reference public sector modern award partially replaces a State reference public sector transitional award, the FWC must, as soon as practicable after the modern award comes into operation, vary the transitional award so that employees who are covered by the modern award are no longer covered by the transitional award. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1189, opn 1 Jan 2013]

(3) For the purposes of this item: (a) the modern award completely replaces the transitional award if all

the employees who are covered by the transitional award become covered by the modern award when it comes into operation; and (b) the modern award partially replaces the transitional award if only some of the employees who are covered by the transitional award become covered by the modern award when it comes into operation. Note: This item does not limit the effect of any other provision of this Act under which a transitional instrument (a State reference public sector transitional award is a transitional instrument) ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.

[30-2500] Notification of the cut-off for the State reference public sector transitional award modernisation process 11 (1) The FWC must, at least 6 months before the end of the period specified in subitem 4(2), advise any persons still covered by a State reference public sector transitional award: [page 1347] (a) that the period for making applications under items 4 and 5 ends on 31 December 2013; and (b) that the FWC will, at the end of that period, commence the State reference public sector transitional award modernisation process in relation to the transitional award for any employees and employers who are still covered by the transitional award at that time. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 items 1190, 1191, opn 1 Jan 2013]

(2) The FWC may give that advice by any means it considers appropriate. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1192, opn 1 Jan 2013]

(3) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s functions and powers under this item. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 items 1193, 1194, opn 1 Jan 2013]

[30-2505]

Regulations dealing with other matters

12 The regulations may deal with other matters relating to the State reference public sector transitional award modernisation process.

DIVISION 3 — AVOIDING REDUCTIONS IN TAKE-HOME PAY

[30-2530] State reference public sector transitional award modernisation process is not intended to result in reduction in take-home pay 13 (1) The State reference public sector transitional award modernisation process is not intended to result in a reduction in the take-home pay of employees. (2) An employee’s take-home pay is the pay an employee actually receives: (a) including wages and incentive-based payments, and additional amounts such as allowances and overtime; but (b) disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act. Note: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.

(3) An employee suffers a modernisation-related reduction in take-home pay if, and only if: (a) a State reference public sector modern award made in the State reference public sector transitional award modernisation process starts to apply to the employee when the modern award comes into operation; and (b) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the State reference public sector modern award came into operation; and (c) the amount of the employee’s take-home pay for working particular hours or for a particular quantity of work after the State reference

public sector modern award comes into operation is less than what would have been the employee’s take-home pay for those hours or that quantity of work immediately before the modern award came into operation; and (d) that reduction in the employee’s take-home pay is attributable to the State reference public sector transitional award modernisation process. [page 1348]

[30-2535] home pay

Orders remedying reductions in take-

14 (1) If the FWC is satisfied that an employee, or a class of employees, to whom a State reference public sector modern award applies has suffered a modernisation-related reduction in take-home pay, the FWC may make any order (a take-home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1195, opn 1 Jan 2013]

(2) The FWC may make a take-home pay order only on application by: (a) an employee who has suffered a modernisation-related reduction in take-home pay; or (b) an organisation that is entitled to represent the industrial interests of such an employee; or (c) a person acting on behalf of a class of such employees. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1196, opn 1 Jan 2013]

(3) If the FWC is satisfied that an application for a take-home pay order has already been made in relation to an employee or a class of employees, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1197, opn 1 Jan 2013]

[30-2540] Ensuring that take-home pay orders are confined to the circumstances for which they are needed 15 (1) The FWC must not make a take-home pay order in relation to an employee or class of employees if: (a) the FWC considers that the modernisation-related reduction in take-home pay is minor or insignificant; or (b) the FWC is satisfied that the employee or employees have been adequately compensated in other ways for the reduction. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 items 1198, 1199, opn 1 Jan 2013]

(2) The FWC must ensure that a take-home pay order is expressed so that: (a) it does not apply to an employee unless the employee has actually suffered a modernisation-related reduction in take-home pay; and (b) if the take-home pay payable to the employee under the State reference public sector modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee under the order. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1200, opn 1 Jan 2013]

[30-2545] Take-home pay order continues to have effect so long as State reference public sector modern award continues to cover the employee or employees 16 A take-home pay order made in relation to an employee or class of employees to whom a particular State reference public sector modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the State reference public sector modern award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.

[page 1349]

[30-2550] Inconsistency with State reference public sector modern awards and enterprise agreements 17 A term of a State reference public sector modern award or an enterprise agreement has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a take-home pay order that applies to the employee.

[30-2555] Application of provisions of FW Act to take-home pay orders 18 The FW Act applies as if the following provisions of that Act included a reference to a take-home pay order: (a) subsection 675(2); (b) subsection 706(2). Note: For compliance with take-home pay orders, see item 7 of Schedule 16.

DIVISION 4 — APPLICATION OF THE FW ACT

[30-2580] How the FW Act applies to the modernisation process before the FW (safety net provisions) commencement day 19 For the purposes of making a State reference public sector modern award before the FW (safety net provisions) commencement day, the following provisions of the FW Act apply as if they had already commenced: (a) Part 2-2 (which deals with the National Employment Standards); (b) section 134 (which deals with the modern awards objective); (c) Division 3 of Part 2-3 (which deals with terms of modern awards); (d) section 284 (which deals with the minimum wages objective);

(e) any provisions that are necessary for the effectual operation of the provisions referred to in paragraphs (a) to (d).

[30-2585] How the FW Act applies to modern awards made in the State reference public sector transitional award modernisation process 20 (1) A State reference public sector modern award made under Division 2 is, for the purposes of the FW Act (and any other law), taken to be a modern award (being a State reference public sector modern award) within the meaning of that Act from the day on which the State reference public sector modern award is made. (2) Section 49 of the FW Act does not apply for the purpose of determining when the State reference public sector modern award comes into operation. Instead, the modern award comes into operation on the day on which it is expressed to commence, being a day that is not earlier than the day on which the modern award is made. (3) The regulations may deal with other matters relating to how the FW Act applies in relation to State reference public sector modern awards.

[page 1350]

[30-2600]

SCHEDULE 7 — ENTERPRISE AGREEMENTS AND WORKPLACE DETERMINATIONS MADE UNDER THE FW ACT PART 1 — PRELIMINARY

[30-2605]

Meanings of employer and employee

1 In this Schedule, employee means a national system employee, and employer means a national system employer.

PART 2 — TRANSITIONAL PROVISIONS RELATING TO THE APPLICATION OF THE NODISADVANTAGE TEST TO ENTERPRISE AGREEMENTS MADE AND VARIED DURING BRIDGING PERIOD DIVISION 1 — ENTERPRISE AGREEMENTS AND VARIATIONS MADE DURING BRIDGING PERIOD MUST PASS NO-DISADVANTAGE TEST

[30-2710] Approval of agreement or variation by FWA — passing the no-disadvantage test 2 (1) Paragraph 186(2)(d) of the FW Act (including as that paragraph has effect under subsection 211(3) of that Act) and subsection 211(5) of that Act

apply in relation to: (a) an enterprise agreement made during the bridging period; and (b) a variation of an enterprise agreement, if the variation was made during the bridging period; as if the words “better off overall test” were omitted and the words “nodisadvantage test as set out in Division 2 of Part 2 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted. (2) Paragraph 189(1)(b) of the FW Act applies in relation to an enterprise agreement made during the bridging period as if the words “better off overall test” were omitted and the words “no-disadvantage test as set out in Division 2 of Part 2 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted. Note: This means that section 193 (which deals with passing the better off overall test) and subsections 211(4) and (5) (which deal with applying the better off overall test to agreements as proposed to be varied) of the FW Act will have no effect in relation to the approval by FWA of agreements and variations during the bridging period.

DIVISION 2 — THE NO-DISADVANTAGE TEST

[30-2735]

Definitions

3 (1) In this Division: award, includes a State reference transitional award or common rule. designated award, for an employee or employees who are or may be covered by an enterprise agreement, means an award determined by the FWA under item 8, and includes an award taken to be so designated in relation to the employee or employees under item 7 (unless a different award has been designated in relation to the employee or employees under item 8). [page 1351] industrial instrument means any of the following: (a) an AWA;

(b) a workplace agreement; (c) a pre-reform AWA; (d) a pre-reform certified agreement; (e) a workplace determination (within the meaning of the WR Act); (f) a section 170MX award; (g) an old IR agreement; (h) a preserved State agreement. reference instrument has the meaning given by subitem 5(1). relevant general instrument has the meaning given by subitem 5(2). Application of this Division to variations (2) Unless the contrary intention appears, this Division applies to an enterprise agreement as proposed to be varied in a corresponding way to the way in which it applies to an enterprise agreement. (3) For the purposes of subitem (2): (a) a reference in a provision of this Division to an employee who is covered by the agreement is taken to be a reference to an employee who is one of the affected employees for the variation of the agreement (within the meaning of the FW Act); and (b) a reference in a provision of this Division to the employees who are covered by the agreement is taken to be a reference to the affected employees for the variation; and (c) a reference in a provision of this Division to an application for approval of the agreement under section 185 of the FW Act is taken to be a reference to an application for approval of a variation of the agreement under section 210 of that Act. Application of this Division to prospective employees (4) For the purposes of applying this Division to an enterprise agreement, a reference to an employee who is covered by the enterprise agreement is, so far as the context permits, taken to include a reference to a person who may at a future time be covered by the enterprise agreement.

[30-2740]

When does an agreement pass the no-

disadvantage test? 4 (1) An enterprise agreement passes the no-disadvantage test if FWA is satisfied that the agreement does not, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees who are covered by the agreement under any reference instrument relating to one or more of the employees. (2) For the purposes of subitem (1): (a) a law of a State or Territory that: (i) relates to long service leave; and (ii) applied, immediately before the application was made for approval of the agreement under section 185 of the FW Act, to an employee referred to in that subitem, or would have applied to such an employee if he or she had been employed by the employer at that time; is taken, to the extent that it provides for long service leave, to be a reference instrument relating to the employee; and [page 1352] (b) if, apart from this subitem, the only reference instrument relating to the employee is a designated award for the employee — the designated award is to be disregarded to the extent (if any) that it provides for long service leave. Note: An enterprise agreement made during the bridging period will prevail over a law of a State or Territory, to the extent of any inconsistency, so far as that law deals with long service leave (see item 17).

(3) An enterprise agreement or a variation of an enterprise agreement is taken to pass the no-disadvantage test if there is no reference instrument in relation to any of the employees who are covered by the agreement. (4) To avoid doubt, if there is a reference instrument in relation to one or more, but not all, of the employees referred to in subitem (1): (a) if the agreement passes the no-disadvantage test under subitem (1) — it passes the test in relation to all employees who are covered by

the agreement; or (b) if the agreement does not pass the no-disadvantage test under subitem (1) — it does not pass the test in relation to any employees who are covered by the agreement. Note 1: In addition to the no-disadvantage test, during the bridging period, the Australian Fair Pay and Conditions Standard prevails over an enterprise agreement to the extent to which the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee or employees— see subitem 27(1). Note 2: From the FW (safety net provisions) commencement day, a term of an enterprise agreement has no effect to the extent it excludes the National Employment Standards or any provision of the National Employment Standards (see sections 55 and 56 of the FW Act). Note 3: This item applies to an enterprise agreement as proposed to be varied in a corresponding way to the way in which it applies to an enterprise agreement — see subitems 3(2) and (3). Note 4: See item 10 for how FWA makes decisions under this item.

(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the no-disadvantage test, FWA must disregard any individual flexibility arrangement that has been agreed to by an affected employee and his or her employer under the flexibility term in the agreement.

[30-2745]

Reference instruments etc.

5 (1) A reference instrument, in relation to employees who are covered by an enterprise agreement, is: (a) any relevant general instrument; or (b) if there is no relevant general instrument — any designated award; for one or more of the employees. (2) A relevant general instrument, for an employee who is covered by an enterprise agreement, is an award-based transitional instrument: (a) that regulates, or would but for an enterprise agreement or another industrial instrument having come into operation regulate, any term or condition of employment of persons engaged in the same kind of work as that performed or to be performed by the employee under the enterprise agreement; and (b) that applied, or would but for an enterprise agreement or another industrial instrument having come into operation have applied, to the employee’s employer immediately before the day on which the application for approval of the agreement was made under section

185 of the FW Act. [page 1353]

[30-2750] test time

Enterprise agreement to be tested as at

6 (1) In deciding whether an enterprise agreement passes, or does not pass, the no-disadvantage test, FWA must consider it as in existence at the test time. (2) The test time is the time when the application for approval of the agreement was made under section 185 of the FW Act.

[30-2755] Designated awards — before application for FWA approval 7 (1) FWA may, on application by an employer, determine that an award is a designated award for an employee or class of employees of the employer. (2) FWA may make a determination under this item only if it is satisfied that: (a) the employee or employees are or may be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees: (i) are usually regulated by an award; or (ii) would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and (b) unless there is a designated award for the employee or employees, there would be no reference instrument relating to the employee or employees; and (c) there is an award that satisfies the requirements specified in subitem (3). (3) An award or awards determined by FWA under this item:

(a) must be an award or awards regulating, or that would, but for an enterprise agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed or to be performed by the employee or employees; and (b) must, in the opinion of FWA, be an award or awards that would be appropriate for the purpose referred to in paragraph 8(3)(b) if an application were made for approval of an enterprise agreement under section 185 of the FW Act; and (c) must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award). (4) An award determined under this item in relation to an employee or employees is taken to be the designated award determined by FWA under item 8 in relation to the employee or employees if, later, an application is made for approval of an enterprise agreement under section 185 of the FW Act, in relation to the employee or the employees. (5) Despite subitem (4), FWA may determine under item 8 that another award is a designated award in relation to the employee, or in relation to some or all of the employees, if: (a) FWA becomes aware of information that was not available to it at the time of the determination under subitem (1); and (b) FWA is satisfied that, had that information been available to it at that time, FWA would have determined under subitem (1) the other award to be the designated award. (6) FWA may determine different awards under subitem (1) in relation to different employees. [page 1354] (7) In this item, a reference to an employee or employees of an employer includes a reference to a person or persons who may become an employee or employees of the employer. (8) A determination made under this item is not a legislative instrument.

[30-2760] Designated awards — after application for FWA approval 8 (1) This item applies to an enterprise agreement if there is no relevant general instrument in relation to an employee who is, or a class of employees who are, covered by the agreement. (2) FWA must determine that an award is a designated award for the employee or employees referred to in subitem (1), if it is satisfied that: (a) on the date on which the application for approval of the enterprise agreement was made under section 185 of the FW Act, the employee or employees are or would be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees: (i) are usually regulated by an award; or (ii) would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and (b) there is an award that satisfies the requirements specified in subitem (3). (3) An award or awards determined by FWA under this item: (a) must be an award or awards regulating, or that would, but for an enterprise agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed by the employee or employees under the enterprise agreement concerned; and (b) must, in the opinion of FWA, be appropriate for the purpose of deciding whether an enterprise agreement passes the nodisadvantage test; and (c) must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award). (4) FWA may determine different awards under subitem (2) in relation to

different employees. (5) A determination made under this item is not a legislative instrument.

[30-2765]

Effect of State awards etc.

9 For the purposes of paragraphs 7(2)(a) and 8(2)(a), an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by an employee are usually regulated by an award is taken to include an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee: (a) were, immediately before the reform commencement, usually regulated by a State award (within the meaning of the WR Act); or (b) would, but for an industrial instrument or a State employment agreement (within the meaning of the WR Act) having come into operation, usually have been so regulated immediately before the reform commencement. [cl 9 am Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

[page 1355]

[30-2770] Matters taken into account when testing agreement etc. 10 (1) In deciding whether an enterprise agreement passes, or does not pass, the no-disadvantage test, FWA: (a) must have regard to the work obligations of the employee or employees under the enterprise agreement; and (b) may inform itself in any way it considers appropriate including (but not limited to) contacting any of the following: (i) the employer; (ii) the employee, or some or all of the employees, who are covered by the enterprise agreement; (iii) a bargaining representative in relation to the agreement.

(2) In deciding whether to determine that an award is a designated award in relation to an employee or employees of an employer, FWA may inform itself in any way it considers appropriate including (but not limited to) contacting any of the following: (a) the employer; (b) the employee or employees; (c) if the determination would be made under item 8 — a bargaining representative in relation to the agreement.

PART 3 — OTHER REQUIREMENTS AND MODIFICATIONS APPLYING TO MAKING AND VARYING ENTERPRISE AGREEMENTS DURING THE BRIDGING PERIOD DIVISION 1 — REQUIREMENTS RELATING TO APPROVAL

[30-2875] Approval of agreement by FWA — interaction with the National Employment Standards 11 Paragraph 186(2)(c) of the FW Act (which deals with terms that contravene section 55 of that Act) does not apply in relation to: (a) an enterprise agreement made during the bridging period; or (b) a variation of an enterprise agreement, if the variation is made during the bridging period. Note: Section 55 of the FW Act (which deals with the interaction between the National Employment Standards and enterprise agreements etc.) will apply after the end of the bridging period. Section 56 of that Act provides that a term of an enterprise agreement has no effect to the extent that it contravenes section 55.

[30-2880] Approval of agreement by FWA — term about settling disputes

12 Subparagraph 186(6)(a)(ii) of the FW Act (which deals with a requirement for an enterprise agreement to have a term about settling disputes in relation to the National Employment Standards) applies in relation to: (a) an enterprise agreement made during the bridging period; or (b) a variation of an enterprise agreement, if the variation is made during the bridging period; as if the words “as those provisions apply after the end of the bridging period” were added after “National Employment Standards”. Note: For disputes relating to the Australian Fair Pay and Conditions Standard as it applies during the bridging period, see item 27.

[page 1356]

[30-2885] Approval of agreement by FWA — requirements relating to particular kinds of employees 13 (1) Subsection 187(4) of the FW Act (which deals with requirements relating to particular kinds of employees) does not apply in relation to: (a) an enterprise agreement made during the bridging period; or (b) a variation of an enterprise agreement, if the variation is made during the bridging period; except in so far as that subsection requires FWA to be satisfied as referred to in section 200 of the FW Act. (2) Section 200 of the FW Act (which deals with requirements relating to outworkers) applies in relation to the agreement or variation as if: (a) references in that section to a modern award were references to an award or a notional agreement preserving State awards; and (b) references in that section to outworker terms were references to terms that are (or that would be, if the terms were in an award) outworker terms as defined in section 564 of the WR Act.

DIVISION 2 — BASE RATE OF PAY

[30-2910] Base rate of pay under enterprise agreements 14 The FW Act applies during the bridging period as if section 206 (which deals with base rate of pay under enterprise agreements) were omitted.

DIVISION 3 — NO EXTENSIONS OF TIME

[30-2935] No extension of time to apply for approval of agreement made in final 14 days of bridging period 15 Paragraph 185(3)(b) of the FW Act (which deals with extending the period within which an application must be made to FWA for approval of an enterprise agreement) does not apply in relation to an enterprise agreement made during the period of 14 days ending at the end of the bridging period. Note: If an application for approval of an enterprise agreement referred to in this item is not made to FWA within 14 days of it being made:

(a) FWA cannot approve the enterprise agreement; but (b) another enterprise agreement may be made in accordance with Part 2-4 of the FW Act.

[30-2940] No extension of time to apply for approval of variation of agreement made in final 14 days of bridging period 16 Paragraph 210(3)(b) of the FW Act (which deals with extending the period within which an application must be made to FWA for approval of a variation of an enterprise agreement) does not apply in relation to a variation of an enterprise agreement, if that variation was made during the period of 14 days ending at the end of the bridging period. Note: If an application for approval of a variation referred to in this item is not made to FWA within 14 days of it being made: (a) FWA cannot approve the variation; but (b) another variation may be made in accordance with Part 2-4 of the FW Act.

[page 1357]

DIVISION 4 — STATE AND TERRITORY LAWS DEALING WITH LONG SERVICE LEAVE

[30-2965] Enterprise agreement made during the bridging period prevails over State and Territory laws dealing with long service leave 17 Despite subsection 29(2) of the FW Act, an enterprise agreement made during the bridging period prevails over a law of a State or Territory, to the extent of any inconsistency, so far as that law deals with long service leave. Note: A term of such an enterprise agreement will still apply subject to a law of a State or Territory so far as that law is otherwise covered by paragraph 29(2)(a) or (b) of the FW Act.

PART 4 — TRANSITIONAL PROVISIONS TO APPLY THE BETTER OFF OVERALL TEST AFTER END OF BRIDGING PERIOD IF AWARD MODERNISATION NOT YET COMPLETED [30-3070] Application of better off overall test to making of enterprise agreements that cover unmodernised award covered employees 18 (1) This item applies in relation to an enterprise agreement made after the end of the bridging period if one or more of the employees covered by the agreement is an unmodernised award covered employee. Non-greenfields agreements (2) Despite section 193 of the FW Act, if the enterprise agreement is not a greenfields agreement, the agreement passes the better off overall test under that section only if: (a) the FWC is satisfied as referred to in subsection (1) of that section

in relation to the agreement; and (b) the FWC is satisfied, as at the test time, that each unmodernised award covered employee, and each prospective unmodernised award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant award-based transitional instrument and transitional APCS applied to the employee. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1201, opn 1 Jan 2013]

Greenfields agreements (3) Despite section 193 of the FW Act, if the enterprise agreement is a greenfields agreement, the agreement passes the better off overall test under that section only if: (a) the FWC is satisfied as referred to in subsection (3) of that section in relation to the agreement; and (b) the FWC is satisfied, as at the test time, that each prospective unmodernised award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant award-based transitional instrument and transitional APCS applied to the employee. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1201, opn 1 Jan 2013]

FWC may assume employee better off overall in certain circumstances (4) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award or relevant award-based transitional instrument and transitional APCS applied to that class, [page 1358] the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee. [subcl (4) am Act 174 of 2012 s 3 and Sch 9 items 1202, 1203, opn 1 Jan 2013]

State reference transitional awards or common rules: transitional

APCSs not relevant (5) If the relevant award-based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded. Note: State reference transitional awards or common rules contain terms dealing with wages.

[30-3075] Application of better off overall test to variation of enterprise agreements that cover unmodernised award covered employees 19 (1) This item applies in relation to a variation of an enterprise agreement if: (a) the variation is made after the end of the bridging period; and (b) one or more of the employees who are covered by the agreement is an unmodernised award covered employee. (2) Despite subsections 211(4) and (5) of the FW Act, subitems (3) and (4) apply in relation to the variation for the purposes of the FWC being satisfied that the agreement as proposed to be varied passes the better off overall test. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1204, opn 1 Jan 2013]

Modification of the better off overall test (3) An enterprise agreement as proposed to be varied passes the better off overall test if the FWC is satisfied, as at the test time, that: (a) each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee; and (b) each unmodernised award covered employee, and each prospective unmodernised award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant award-based transitional instrument and transitional APCS applied to the employee. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1204, opn 1 Jan 2013]

FWC may assume employee better off overall in certain circumstances (4) For the purposes of determining whether the enterprise agreement as

proposed to be varied passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award or relevant awardbased transitional instrument and transitional APCS applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee. [subcl (4) am Act 174 of 2012 s 3 and Sch 9 items 1205, 1206, opn 1 Jan 2013]

FWC must disregard individual flexibility arrangement (5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement. [subcl (5) am Act 174 of 2012 s 3 and Sch 9 items 1207, 1208, opn 1 Jan 2013]

[page 1359] State reference transitional awards or common rules: transitional APCSs not relevant (6) If the relevant award-based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded. Note: State reference transitional awards or common rules contain terms dealing with wages.

[30-3080]

Definitions

20 In this Part: prospective unmodernised award covered employee, for an enterprise agreement, means a person who, if he or she were an employee at the test time of an employer covered by the agreement: (a) would be covered by the agreement; and (b) would be covered by an award-based transitional instrument (the relevant award-based transitional instrument) that:

(i) is in operation; and (ii) would cover the person in relation to the work that he or she would perform under the agreement; and (iii) covers the employer. test time: (a) for the purposes of item 18 — means the time the application for approval of the agreement by the FWC was made under section 185 of the FW Act; and (b) for the purposes of item 19 — means the time the application for approval of the variation of the enterprise agreement by the FWC was made under section 210 of that Act. [def am Act 174 of 2012 s 3 and Sch 9 item 1209, opn 1 Jan 2013]

unmodernised award covered employee, for an enterprise agreement, means an employee who: (a) is covered by the agreement; and (b) at the test time, is covered by an award-based transitional instrument (the relevant award-based transitional instrument) that: (i) is in operation; and (ii) covers the employee in relation to the work that he or she is to perform under the agreement; and (iii) covers his or her employer.

PART 4A — TRANSITIONAL PROVISIONS TO APPLY THE BETTER OFF OVERALL TEST TO ENTERPRISE AGREEMENTS THAT COVER DIVISION 2B STATE AWARD COVERED EMPLOYEES [Pt 4A subst Act 124 of 2009 r 3 and Sch 2, opn 1 Jan 2010]

[30-3080A]

Application of better off overall test

to making of enterprise agreements that cover Division 2B State award covered employees 20A (1) This item applies in relation to an enterprise agreement made on or after the Division 2B referral commencement, if one or more of the employees covered by the agreement is a Division 2B State award covered employee. [page 1360] (2) Non-greenfields agreements Despite section 193 of the FW Act, if the enterprise agreement is not a greenfields agreement, the agreement passes the better of overall test under that section only if: (a) the FWC is satisfied as referred to in subsection (1) of that section, and paragraph (2)(b) of item 18 of this Schedule, in relation to the agreement (to the extent that those provisions are applicable); and (b) the FWC is satisfied, as at the test time, that each Division 2B State award covered employee, and each prospective Division 2B State award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee. Note: Section 193 of the FW Act and item 18 of this Schedule deal with testing enterprise agreements against other instruments (such as modern awards). An enterprise agreement to which this subitem applies will not be tested against one or more such other instruments in relation to Division 2B State award covered employees. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1210, opn 1 Jan 2013]

(3) Greenfields agreements Despite section 193 of the FW Act, if the enterprise agreement is a greenfields agreement, the agreement passes the better off overall test under that section only if: (a) the FWC is satisfied as referred to in subsection (3) of that section and paragraph (3)(b) of item 18 of this Schedule in relation to the agreement (to the extent that those provisions are applicable); and (b) the FWC is satisfied, as at the test time, that each prospective Division 2B State award covered employee for the agreement would be better off overall if the agreement applied to the

employee than if the relevant Division 2B State award applied to the employee. Note: Section 193 of the FW Act and item 18 of this Schedule deal with testing enterprise agreements against other instruments (such as modern awards). An enterprise agreement to which this subitem applies will not be tested against one or more such other instruments in relation to prospective Division 2B State award covered employees. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1210, opn 1 Jan 2013]

(4) FWC may assume employee better off overall in certain circumstances For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant Division 2B State award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee. [subcl (4) am Act 174 of 2012 s 3 and Sch 9 items 1211, 1212, opn 1 Jan 2013]

[30-3080B] Application of better off overall test to variation of enterprise agreements that cover Division 2B State award covered employees 20B (1) This item applies in relation to a variation of an enterprise agreement if: (a) the variation is made on or after the Division 2B referral commencement; and (b) one or more of the employees covered by the agreement is a Division 2B State award covered employee. [page 1361] (2) Despite subsections 211(4) and (5) of the FW Act, subitems (3) and (4) apply in relation to the variation for the purposes of the FWC being satisfied that the agreement as proposed to be varied passes the better off overall test. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1213, opn 1 Jan 2013]

(3) Modification of the better off overall test An enterprise agreement as

proposed to be varied passes the better off overall test only if: (a) the FWC is satisfied, as at the test time, as mentioned in subitem 19(3) of this Schedule in relation to the agreement as proposed to be varied (to the extent that subitem 19(3) is applicable); and (b) the FWC is satisfied, as at the test time, that each Division 2B State award covered employee, and each prospective Division 2B State award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee. Note: Item 19 of this Schedule deals with testing enterprise agreements as proposed to be varied against other instruments (such as modern awards). A variation to which this subitem applies will not be tested against one or more such other instruments in relation to Division 2B State award covered employees. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1213, opn 1 Jan 2013]

(4) FWC may assume employee better off overall in certain circumstances For the purposes of determining whether the enterprise agreement as proposed to be varied passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant Division 2B State award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee. [subcl (4) am Act 174 of 2012 s 3 and Sch 9 items 1214, 1215, opn 1 Jan 2013]

(5) FWC must disregard individual flexibility arrangement For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by a Division 2B State award covered employee and his or her employer under the flexibility term in the agreement. [subcl (5) am Act 174 of 2012 s 3 and Sch 9 items 1216, 1217, opn 1 Jan 2013]

[30-3080C]

Definitions

20C In this Part: Division 2B State award covered employee, for an enterprise agreement, means an employee who: (a) is covered by the agreement; and

(b) at the test time, is covered by a Division 2B State award (the relevant Division 2B State award) that: (i) is in operation; and (ii) covers the employee in relation to the work that he or she is to perform under the agreement; and (iii) covers his or her employer. [page 1362] prospective Division 2B State award covered employee, for an enterprise agreement, means a person who, if he or she were an employee at the test time of an employer covered by the agreement: (a) would be covered by the agreement; and (b) would be covered by a Division 2B State award (the relevant Division 2B State award) that: (i) is in operation; and (ii) would cover the person in relation to the work that he or she would perform under the agreement; and (iii) covers the employer. test time: (a) for the purposes of item 20A — means the time the application for approval of the enterprise agreement by the FWC was made under section 185 of the FW Act; and (b) for the purposes of item 20B — means the time the application for approval of the variation of the enterprise agreement by the FWC was made under section 210 of that Act. [def am Act 174 of 2012 s 3 and Sch 9 item 1218, opn 1 Jan 2013]

PART 5 — TRANSITIONAL PROVISIONS RELATING TO WORKPLACE DETERMINATIONS MADE UNDER THE FW ACT

[30-3185] Application made during bridging period for special low-paid workplace determination — general requirement relating to minimum safety net 21 Subsection 262(3) of the FW Act (which deals with a general requirement relating to the minimum safety net) applies in relation to an application for a special low-paid workforce determination made during the bridging period as if the words “modern awards together with the National Employment Standards” were omitted and the words “awards together with the Australian Fair Pay and Conditions Standard” were substituted.

[30-3190] Special low-paid workplace determination-employer must not previously have been covered by agreement-based transitional instrument 22 (1) Subsection 263(3) of the FW Act (which deals with additional requirements for making a special low-paid workplace determination) applies in relation to a workplace determination, whether made during or after the bridging period, as if the reference in that subsection to an enterprise agreement included a reference to a collective agreement-based transitional instrument. (2) However, subitem (1) does not apply in relation to a workplace determination if: (a) the collective agreement-based transitional instrument has ceased to operate; and (b) the FWC considers that it is appropriate in the circumstances to make the workplace determination. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1219, opn 1 Jan 2013]

(3) In making a decision for the purposes of paragraph (2)(b) of this item, the FWC must take into account the objects set out in section 241 of the FW Act. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1219, opn 1 Jan 2013]

[page 1363]

[30-3195] Core terms of workplace determinations-assessment of determination made during bridging period against the no disadvantage test 23 Subsection 272(4) of the FW Act (which deals with workplace determinations passing the better off overall test) applies in relation to a workplace determination made during the bridging period as if the words “better off overall test under section 193” were omitted and the words “nodisadvantage test as set out in Division 2 of Part 2 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.

[30-3200] Core terms of workplace determinations — assessment of determination made after bridging period that covers unmodernised award covered employees against the better off overall test 24 (1) This item applies in relation to a workplace determination made after the end of the bridging period if one or more of the employees who will be covered by the determination is an unmodernised award covered employee (within the meaning of Part 4). (2) Subsection 272(4) of the FW Act (which deals with workplace determinations passing the better off overall test) applies in relation to the workplace determination as if the words “under section 193” were omitted and the words “under item 18 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.

[30-3205]

Core terms of workplace

determinations — safety net requirements 25 (1) This item applies in relation to a workplace determination made during the bridging period. (2) Subsection 272(5) of the FW Act (which deals with terms relating to safety net requirements) does not apply in relation to the workplace determination, except in so far as that subsection prevents a workplace determination from including a term that would, if the determination were an enterprise agreement, mean that FWA could not approve the agreement because of the operation of section 200 of that Act (which deals with requirements relating to outworkers). Note: Section 55 of the FW Act (which deals with the interaction between the National Employment Standards and workplace determinations etc.) will apply after the end of the bridging period. Section 56 of that Act provides that a term of a workplace determination has no effect to the extent that it contravenes section 55.

(3) Section 200 of the FW Act (which deals with requirements relating to outworkers) applies in relation to the workplace determination as if: (a) references in that section to a modern award were references to an award or a State reference transitional award or common rule; and (b) references in that section to outworker terms were references to outworker terms as defined in section 564 of the WR Act.

[30-3210] Mandatory terms of workplace determinations — term about settling disputes 26 (1) This item applies in relation to a workplace determination made during the bridging period. (2) Paragraph 273(2)(b) of the FW Act (which deals with a requirement for a workplace determination to have a term about settling disputes in relation to the [page 1364] National Employment Standards) applies in relation to the workplace determination as if the words “as the National Employment Standards apply

after the end of the bridging period” were added after “National Employment Standards”. (3) Subsection 273(3) of the FW Act (which deals with a requirement for a workplace determination to have a term about settling disputes) applies in relation to the workplace determination as if the reference to paragraph 186(6)(a) of the FW Act were a reference to that paragraph in its application to an enterprise agreement made during the bridging period (see item 12). Note: For disputes relating to the Australian Fair Pay and Conditions Standard as it applies during the bridging period, see item 27.

PART 6 — INTERACTION WITH AUSTRALIAN FAIR PAY AND CONDITIONS STANDARD DURING BRIDGING PERIOD [30-3315] Interaction with Australian Fair Pay and Conditions Standard during bridging period 27 Continued application of Australian Fair Pay and Conditions Standard (1) The Australian Fair Pay and Conditions Standard, in its application during the bridging period under item 2 of Schedule 4 and item 5 of Schedule 9 prevails over an enterprise agreement or a workplace determination that applies to an employee to the extent to which, in a particular respect, the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee. Disputes about Australian Fair Pay and Conditions Standard to be resolved using the model dispute resolution process (2) A dispute about: (a) whether the Australian Fair Pay and Conditions Standard provides a more favourable outcome for an employee in a particular respect than an enterprise agreement or workplace determination that applies to that employee; or (b) what the outcome is for an employee in a particular respect under the Australian Fair Pay and Conditions Standard, where an

enterprise agreement or a workplace determination applies to that employee; is to be resolved using the model dispute resolution process referred to in Part 13 of the WR Act. (3) For the purposes of subitem (2), Divisions 2 and 3 of Part 13 of the WR Act apply as if a reference in those Divisions to the Commission or the Industrial Registrar were a reference to FWA. (4) The fact that the model dispute resolution process applies in relation to the dispute does not affect any right of a party to the dispute to take court action to resolve it. (5) To avoid doubt, subitems (2) and (3) apply despite: (a) subsection 694(2) of the WR Act (which deals with when the model dispute resolution process applies); and (b) subsection 595(1) of the FW Act (which deals with when FWA may deal with a dispute). [page 1365] Continued application of regulations (6) Despite the WR Act repeal, regulations made for the purposes of subsection 172(4) of the WR Act continue to apply during the bridging period as if a reference in those regulations to a workplace agreement were a reference to an enterprise agreement and a workplace determination. Australian Fair Pay and Conditions Standard cannot be excluded (7) A term of an enterprise agreement or a workplace determination has no effect to the extent to which it purports to exclude the Australian Fair Pay and Conditions Standard or any part of it. Meaning of workplace determination (8) In this item: workplace determination means a workplace determination made under the FW Act.

PART 7 — TRANSITIONAL PROVISION ABOUT THE OPERATION OF THE BETTER OFF OVERALL TEST IF A TRANSITIONAL PAY EQUITY ORDER APPLIES [Pt 7 insrt Act 124 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

[30-3325] Operation of better off overall test if a transitional pay equity order applies to employer 28 (1) This item applies to an enterprise agreement, or a variation of an enterprise agreement, if: (a) an application for approval of the agreement or variation has been made under the FW Act; and (b) the FWC must decide whether the agreement, or the agreement as proposed to be varied, passes the better off overall test; and (c) an employer covered by the agreement, or the agreement as proposed to be varied, is an employer to which a transitional pay equity order applies; and (d) an employee covered by the agreement, or the agreement as proposed to be varied, is an affected employee of the employer referred to in paragraph (c). [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1220, opn 1 Jan 2013]

(2) For the purposes of determining whether the affected employee would be better off overall if the agreement, or the agreement as proposed to be varied, applied to the employee than if the relevant modern award applied to the employee, the base rate of pay payable under the relevant modern award to the employee is taken to be increased so that it is equal to the amount payable to the employee under the transitional pay equity order. Note: For the meanings of transitional pay equity order and affected employee, see item 2 of Schedule 2.

[page 1366]

[30-3330]

SCHEDULE 8 — WORKPLACE AGREEMENTS AND WORKPLACE DETERMINATIONS MADE UNDER THE WR ACT PART 1 — PRELIMINARY

[30-3335]

Meanings of employer and employee

1 In this Schedule, employee means a national system employee, and employer means a national system employer.

PART 2 — TRANSITIONAL PROVISIONS RELATING TO WORKPLACE AGREEMENTS DIVISION 1 — TRANSITIONAL PROVISIONS RELATING TO COLLECTIVE AGREEMENTS MADE BEFORE THE WR ACT REPEAL DAY

[30-3440] Division applies to collective agreements made before WR Act repeal day 2 This Division applies to a collective agreement made before the WR Act repeal day. Note: Schedule 3 (which deals with transitional instruments) also contains rules that apply to such agreements.

[30-3445]

General rule — continued application

of lodgment provisions, no-disadvantage test and prohibited content rules, etc. 3 The following provisions of Part 8 of the WR Act continue to apply in relation to the collective agreement on and after the WR Act repeal day: (a) subsections 337(8), (9), (10) and (11) (which deal with noncompliance with access and information requirements); (b) section 341 (which deals with lodging unapproved agreements); (c) Division 5 of Part 8 (which deals with lodgment); (d) Division 5A of Part 8 (which deals with the no-disadvantage test); (e) subsections 347(1) and (3) (which deal with when a workplace agreement comes into operation); (f) section 347A (which deals with the operation of workplace agreements); (g) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void); (h) subsection 401(1) and section 412A. Note 1: The general effect of this provision is to preserve the Part 8 rules about lodgment, the nodisadvantage test and prohibited content for collective agreements made before the WR Act repeal day, subject to the modifications set out in this Division. The rules about variation and termination of such collective agreements, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments). Note 2: The rules requiring a collective agreement to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).

[page 1367]

[30-3450] Modification — unlodged collective agreements must be lodged within 14 days 4 (1) Despite item 3, if the collective agreement is an unlodged collective agreement:

(a) the Workplace Authority Director must not consider whether the agreement passes the no-disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 3, unless: (i) the agreement is lodged before the end of the period (the cutoff period) of 14 days referred to in subsection 342(1) or (2) of that Act; and (ii) for a union collective agreement — the agreement was approved before the WR Act repeal day; and (b) if the agreement is not lodged before the end of the cut-off period, it does not come into operation; and (c) subsection 342(3) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 3, does not apply to the lodgment of the agreement. Note: The general effect of this provision is that unlodged collective agreements (other than union collective agreements) must be lodged within 14 days of being made in order to come into operation. Unlodged union collective agreements must have been approved before the WR Act repeal day and be lodged within 14 days of that approval in order to come into operation. However, late lodgment will not give rise to a civil remedy.

(2) If the collective agreement is lodged after the end of the cut-off period, the Workplace Authority Director must give a written notice, stating that the agreement cannot come into operation because it was lodged after the end of the cut-off period, to the following: (a) the employer to which the agreement would have applied if it had come into operation; (b) if the agreement is a union collective agreement or a multiplebusiness agreement that would be a union collective agreement but for subsection 331(1) of the WR Act—the organisation or organisations that would have been covered by the agreement if it had come into operation.

[30-3455] Modification — limits on variation of a collective agreement that operates from approval for the purpose of passing the no-disadvantage test 5 (1) Despite item 3, if the collective agreement is a workplace agreement

that operates from approval, the rules in this item also apply. Note: The general effect of this item is that a collective agreement that operates from approval can only be varied for the purpose of passing the no-disadvantage test if a variation for that purpose is lodged within a specified period.

(2) If, as at the WR Act repeal day: (a) a notice under section 346M of the WR Act about whether the agreement passes the no-disadvantage test has not been given; or (b) a notice under subsection 346M(2) of the WR Act stating that the agreement does not pass the no-disadvantage test has been given but a variation of the agreement, for the purposes of passing that test, has not been made; or [page 1368] (c) a notice under subsection 346M(2) of the WR Act stating that the agreement does not pass the no-disadvantage test has been given and a variation of the agreement, for the purposes of passing that test, has been made but has not been lodged; then Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 3, has effect in relation to the collective agreement subject to subitems (3) and (5). (3) Section 346N of the WR Act, as that section continues to apply because of item 3, has effect in relation to the agreement, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no-disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of: (a) the period of 37 days beginning on whichever of the following days is later: (i) the WR Act repeal day; (ii) the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the agreement; or (b) if the period is extended under subitem (4) — the period as extended. (4) The Workplace Authority Director may extend the period referred to in

paragraph (3)(b) in relation to a particular agreement in circumstances prescribed by the regulations. (5) Section 346Q of the WR Act, as that section continues to apply because of item 3, has effect in relation to the agreement, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the agreement as varied passes the nodisadvantage test unless the variation is lodged within the period referred to in paragraph (3)(a) or (b).

DIVISION 2 — TRANSITIONAL PROVISIONS RELATING TO VARIATIONS OF COLLECTIVE AGREEMENTS MADE BEFORE THE WR ACT REPEAL DAY

[30-3480] Division applies to variations of collective agreements made before WR Act repeal day 6 This Division applies to a variation of a collective agreement under Division 8 of Part 8 of the WR Act, if the variation is made before the WR Act repeal day.

[30-3485] General rule — continued application of lodgment provisions and no-disadvantage test to ordinary variations 7 The following provisions of Part 8 of the WR Act continue to apply in relation to the variation on and after the WR Act repeal day: (a) Division 5A of Part 8 (which deals with the no-disadvantage test); (b) subsections 370(8), (9), (10) and (11) (which deal with noncompliance with access and information requirements); (c) section 374 (which deals with lodgment of unapproved variations); (d) Subdivision C of Division 8 of Part 8 (which deals with lodgment); (e) Subdivision D of Division 8 of Part 8 (which deals with when a variation comes into operation);

(f)

subsection 401(1) and section 412A.

Note: The general effect of this provision is to preserve the Part 8 rules about lodgment and the nodisadvantage test for variations under Division 8 made before the WR repeal day, subject to the modifications set out in this Division.

[page 1369]

[30-3490] Modification — unlodged variations must be lodged within 14 days 8 (1) Despite item 7, if the variation is an unlodged variation: (a) the Workplace Authority Director must not consider whether the varied agreement passes the no-disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 7, unless: (i) the variation is lodged before the end of the period (the cut-off period) of 14 days referred to in subsection 375(1) of that Act; and (ii) for a variation of a union collective agreement or a union greenfields agreement—the variation was approved before the WR Act repeal day; and (b) subsection 375(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 7, does not apply to the variation. Note: The general effect of this provision is that unlodged variations of collective agreements must be lodged within 14 days of being approved in order to come into operation. Unlodged variations of union collective agreements and union greenfields agreements must also have been approved before the WR Act repeal day. However, late lodgment will not give rise to a civil remedy.

(2) If the variation is lodged after the end of the cut-off period, the Workplace Authority Director must give a written notice, stating that the variation cannot come into operation because it was lodged after the end of the cut-off period, to the following: (a) the employer to which the agreement applies; (b) if the agreement is a union collective agreement or a multiplebusiness agreement that would be a union collective agreement but

for subsection 331(1) of the WR Act — the organisation or organisations covered by the agreement.

[30-3495] Modification — limits on varying variations for the purpose of passing the nodisadvantage test 9 (1) Despite item 7, if, as at the WR Act repeal day: (a) a notice under section 346M of the WR Act about whether the agreement as varied passes the no-disadvantage test has not been given in relation to the variation; or (b) a notice under subsection 346M(2) of the WR Act stating that the agreement as varied does not pass the no-disadvantage test has been given in relation to the variation, but a variation, for the purposes of passing that test, has not been made; or (c) a notice under subsection 346M(2) of the WR Act stating that the agreement as varied does not pass the no-disadvantage test has been given in relation to the variation and a variation of the agreement, for the purposes of passing that test, has been made but has not been lodged; then Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, subject to subitems (2) and (4). (2) Section 346N of the WR Act, as that section continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no-disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of: [page 1370] (a) the period of 37 days beginning on whichever of the following days is later:

(i) the WR Act repeal day; (ii) the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the agreement as varied; or (b) if the period is extended under subitem (3) — the period as extended. (3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular variation in circumstances prescribed by the regulations. (4) Section 346Q of the WR Act, as that section continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the agreement as varied passes the nodisadvantage test unless the variation for the purposes of passing that test is lodged within the period referred to in paragraph (2)(a) or (b).

DIVISION 3 — TRANSITIONAL PROVISIONS RELATING TO PRE-WR ACT REPEAL DAY TERMINATIONS OF COLLECTIVE AGREEMENTS

[30-3520] Termination by approval general rule — continued application of lodgment provisions 10 (1) This item applies to a termination of a collective agreement, if the termination has been approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act before that day. (2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day: (a) subsection 381(2) (which deals with when a workplace agreement is terminated); (b) subsections 384(4), (5) and (6) (which deal with non-compliance with information requirements); (c) section 387 (which deals with lodgment of unapproved terminations);

(d) Subdivision C of Division 9 of Part 8 (which deals with lodgment); (e) section 398 (which deals with the effect of non-compliance); (f) subsection 401(1) and section 412A. Note: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of workplace agreements approved before the WR Act repeal day, subject to the modifications set out in item 11. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).

[30-3525] Modification — unlodged terminations must be lodged within 14 days 11 (1) Despite item 10, if a termination to which that item applies is an unlodged termination: (a) the termination does not come into operation unless it is lodged before the end of the 14 day period (the cut-off period) referred to in subsection 388(1) of the WR Act as that subsection continues to apply because of item 10; and [page 1371] (b) subsection 388(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 10, does not apply to the termination. Note: The general effect of this provision is that unlodged terminations must be lodged within 14 days of being made in order to come into operation. However, late lodgment will not give rise to a civil remedy.

(2) If the termination is lodged after the end of the cut-off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because it was lodged after the end of the cut-off period, to the following: (a) the employer to which the agreement applies; (b) if the agreement is a union collective agreement or a multiplebusiness agreement that would be a union collective agreement but for subsection 331(1) of the WR Act — the organisation or organisations covered by the agreement.

[30-3530] Unilateral termination of collective agreement in manner provided for in agreement general rule — continued application of lodgment provisions 12 (1) This item applies to a termination of a collective agreement if a declaration to terminate the agreement is lodged under subsection 392(2) of the WR Act (which deals with unilateral termination in the manner provided in the agreement) before the WR Act repeal day. (2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day: (a) subsection 381(2) (which deals with when a workplace agreement is terminated); (b) section 396 (which deals with receipts for lodgment of declarations); (c) section 397 (which deals with giving notice after lodging notice of termination); (d) section 398 (which deals with the effect of non-compliance); (e) section 412A. Note: The general effect of this provision is to preserve the Part 8 rules in relation to unilateral terminations of workplace agreements, if a declaration to terminate the agreement has been lodged before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).

[30-3535] Termination by the Commission — Commission may continue to deal with applications made before the WR Act repeal day 13 (1) This item applies to a collective agreement in relation to which an application has been made under subsection 397A(2) of the WR Act (which deals with termination by the Commission) before the WR Act repeal day. (2) The following provisions of Part 8 of the WR Act continue to apply in relation to the agreement on and after the WR Act repeal day: (a) subsection 381(2) (which deals with when a collective agreement is

terminated); (b) subsections 397A(1) and (3) (which deal with when the Commission may terminate a collective agreement); (c) section 412A. Note: The general effect of this provision is to preserve the Part 8 rules in relation to applications for terminations of workplace agreements by the Commission made before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).

[page 1372]

DIVISION 4 — TRANSITIONAL PROVISIONS RELATING TO ITEAS MADE BEFORE THE WR ACT REPEAL DAY

[30-3560] Continued application of Part 8 to ITEAs made before the WR Act repeal day 14 (1) This item applies to an ITEA made before the WR Act repeal day. (2) The following provisions of Part 8 of the WR Act continue to apply in relation to the ITEA on and after the WR Act repeal day: (a) Divisions 1 to 5A of Part 8 (which deal with the making and lodgment of workplace agreements and the no-disadvantage test); (b) subsection 347(1) (which deals with when a workplace agreement comes into operation); (c) section 347A (which deals with the operation of workplace agreements); (d) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void); (e) subsection 401(1) and section 412A. Note 1: The general effect of this provision is to preserve the Part 8 rules about lodgment, the nodisadvantage test and prohibited content in relation to ITEAs made before the WR Act repeal day, subject to the modification set out in item 15. The rules about making ITEAs after that day are contained in Division 7 of this Part. The rules about variation and termination of ITEAs after that day, and some other rules, are contained in Schedule 3 (which deals with transitional instruments). Note 2: The rules requiring an ITEA to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).

[30-3565] Modification — limits on variation of an ITEA that operates from approval for the purpose of passing the no-disadvantage test 15 (1) Despite item 14, if the ITEA is a workplace agreement that operates from approval, the rules in this item also apply. Note: The general effect of this item is that an ITEA that operates from approval can only be varied for the purpose of passing the no-disadvantage test if a variation for that purpose is lodged within a specified period.

(2) If, as at the WR Act repeal day:

a notice under section 346M of the WR Act about whether the (a) ITEA passes the no-disadvantage test has not been given; or (b) a notice under subsection 346M(2) of the WR Act stating that the ITEA does not pass the no-disadvantage test has been given but a variation of the ITEA, for the purposes of passing that test, has not been made; or (c) a notice under subsection 346M(2) of the WR Act stating that the ITEA does not pass the no-disadvantage test has been given and a variation of the ITEA, for the purposes of passing that test, has been made but has not been lodged; then Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 14, has effect in relation to the collective agreement subject to subitems (3) and (5). [page 1373] (3) Section 346N of the WR Act, as that section continues to apply because of item 14, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the nodisadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of: (a) the period of 37 days beginning on whichever of the following days is later: (i) the WR Act repeal day; (ii) the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the ITEA; or (b) if the period is extended under subitem (4) — the period as extended. (4) The Workplace Authority Director may extend the period referred to in paragraph (3)(a) in relation to a particular ITEA in circumstances prescribed by the regulations. (5) Section 346Q of the WR Act, as that section continues to apply because of item 14, has effect in relation to the ITEA, on and after the WR Act repeal

day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no-disadvantage test unless the variation is lodged within the period referred to in paragraph (3)(a) or (b).

DIVISION 5 — TRANSITIONAL PROVISIONS RELATING TO VARIATIONS OF ITEAS MADE BEFORE THE WR ACT REPEAL DAY

[30-3590] General rule — continued application of lodgment provisions and no-disadvantage test to ordinary variations 16 (1) This item applies to a variation of an ITEA under Division 8 of Part 8 of the WR Act, if the variation is made before the WR Act repeal day. (2) The following provisions of Part 8 of the WR Act continue to apply in relation to the variation on and after the WR Act repeal day: (a) Division 5A of Part 8 (which deals with the no-disadvantage test); (b) subsections 370(8), (9), (10) and (11) (which deal with noncompliance with access and information requirements); (c) section 374 (which deals with lodgment of unapproved variations); (d) Subdivision C of Division 8 of Part 8 (which deals with lodgment); (e) Subdivision D of Division 8 of Part 8 (which deal with when a variation comes into operation); (f) subsection 401(1) and section 412A. Note: The general effect of this provision is to preserve the Part 8 rules about lodgment and the nodisadvantage test for variations made before the WR Act repeal day of ITEAs, subject to the modification specified in item 17.

[30-3595] Modification — limits on varying variations for the purpose of passing the nodisadvantage test 17 (1) Despite item 16, if, as at the WR Act repeal day:

(a) a notice under section 346M of the WR Act about whether the ITEA as varied passes the no-disadvantage test has not been given in relation to the variation; or [page 1374] (b) a notice under subsection 346M(2) of the WR Act stating that the ITEA as varied does not pass the no-disadvantage test has been given in relation to the variation, but a variation, for the purposes of passing that test, has not been made; or (c) a notice under subsection 346M(2) of the WR Act stating that the ITEA as varied does not pass the no-disadvantage test has been given in relation to the variation and a variation of the ITEA, for the purposes of passing that test, has been made but has not been lodged; then Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, subject to subitems (2) and (4). (2) Section 346N of the WR Act, as that section continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no-disadvantage test set out in section 346D of that Act must be lodged under section 346N before the end of: (a) the period of 37 days beginning on whichever of the following days is later: (i) the WR Act repeal day; (ii) the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the variation; or (b) if the period is extended under subitem (3) — the period as extended. (3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular variation in circumstances prescribed by the regulations.

(4) Section 346Q of the WR Act, as that section continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the nodisadvantage test unless the variation for the purposes of passing that test is lodged within the period referred to in paragraph (2)(a) or (b).

DIVISION 6 — TRANSITIONAL PROVISIONS RELATING TO PRE-WR ACT REPEAL DAY TERMINATIONS OF ITEAS

[30-3620] Termination by approval — continued application of lodgment provisions 18 (1) This item applies to a termination of an ITEA, if the termination is approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act by that time. (2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day: (a) subsection 381(2) (which deals with when a workplace agreement is terminated); (b) subsections 384(4), (5) and (6) (which deal with non-compliance with information requirements); (c) section 387 (which deals with lodgment of unapproved terminations); (d) Subdivision C of Division 9 of Part 8 (which deals with lodgment); [page 1375] (e) section 398 (which deals with the effect of non-compliance); (f) subsection 401(1) and section 412A. Note: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs approved before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).

[30-3625] Unilateral termination of ITEA in manner provided for in agreement — continued application of lodgment provisions 19 (1) This item applies to a termination of an ITEA if a declaration to terminate the ITEA is lodged under subsection 392(2) of the WR Act (which deals with unilateral termination in the manner provided in the ITEA) before the WR Act repeal day. (2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day: (a) subsection 381(2) (which deals with when a workplace agreement is terminated); (b) section 396 (which deals with receipts for lodgment of declarations); (c) section 397 (which deals with giving notice after lodging notice of termination); (d) section 398 (which deals with effect of non-compliance). (e) section 412A. Note: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs, if a declaration to terminate is lodged before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).

[30-3630] Continued application of lodgment provisions where termination by written notice is given before the WR Act repeal day and lodged within 120 days 20 (1) This item applies to an ITEA, if notice to terminate the ITEA is given in accordance with subsection 393(4) of the WR Act (which deals with unilateral termination by giving written notice) before the WR Act repeal day. (2) The following provisions of Part 8 of the WR Act continue to apply on and after the WR Act repeal day in relation to the termination of the ITEA: (a) subsection 381(2) (which deals with when an ITEA is terminated);

(b) sections 393, 394, 395, 396, 397, 397A, 398 and 399A (which deal with matters relating to lodgment of terminations, etc.); (c) section 412A. Note: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs by written notice given before the WR Act repeal day, subject to the modifications set out in subitems (3) to (6). Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).

(3) Modification — declaration to terminate must be lodged within 120 days of WR Act repeal day A declaration may only be lodged, in relation to the ITEA under subsection 393(2) of the WR Act, as that subsection continues to apply because of subitem (2), before the end of the period (the cut-off period) of 120 days beginning on the WR Act repeal day. (4) Section 396 of the WR Act, as that section continues to apply because of subitem (2), does not apply in relation to the ITEA if the declaration is not lodged before the end of the cut-off period. [page 1376] (5) Despite subsection 381(2) and section 398 of the WR Act, as those provisions continue to apply because of subitem (2), the termination of the ITEA does not take effect if the declaration is not lodged before the end of the cut-off period. (6) If the termination is lodged after the end of the cut-off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because the declaration was lodged after the end of the cut-off period, to the following: (a) the employer to which the agreement applies; (b) the employee to whom the agreement applies.

DIVISION 7 — TRANSITIONAL PROVISIONS RELATING TO MAKING ITEAs DURING THE BRIDGING PERIOD

[30-3655] General rule — continued application of Part 8 to making of ITEAs 21 (1) Despite the repeal of Part 8 of the WR Act, an ITEA may, during the bridging period, be made under Division 2 of that Part as if that Part had not been repealed. (2) The following provisions of Part 8 of the WR Act continue to apply in relation to the ITEA on and after the WR Act repeal day: (a) Divisions 1 to 5A of Part 8 (which deal with the making and lodgment of workplace agreements and the no-disadvantage test), other than sections 346ZJ and 346ZK (which deal with dismissing an employee if an agreement does not pass that test); (b) subsections 347(1) and (3) (which deal with when a workplace agreement comes into operation); (c) section 347A (which deals with the operation of workplace agreements); (d) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void); (e) subsections 400(3) and (5), subsection 401(1) and section 412A. Note 1: The general effect of this provision is to permit ITEAs to be made during the bridging period and to preserve the Part 8 rules about lodgment, the no-disadvantage test and prohibited content, subject to the modifications set out in this Division. The rules about variation and termination of ITEAs on and after the WR Act repeal day, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments). Note 2: The rules requiring an ITEA to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).

(3) The provisions referred to in subitem (2) do not apply to an ITEA lodged after the end of the bridging period. (4) If the ITEA is lodged after the end of the bridging period, the Workplace Authority Director must give a written notice, stating that the ITEA cannot come into operation because the ITEA was lodged after the end of the bridging period, to the following: (a) the employer to which the ITEA would have applied if it had come

into operation; (b) the employee to whom the ITEA would have applied if it had come into operation. [page 1377]

[30-3660] Modification — enterprise agreements and workplace determinations are taken to be instruments 22 (1) This item applies to an ITEA made during the bridging period as referred to in subitem 21(1). (2) For the purposes of the application to the ITEA of section 346E of the WR Act, as that section continues to apply because of item 21, enterprise agreements and workplace determinations are taken to be specified in subsection 346E(3) (in addition to the other instruments so specified). (3) For the purposes of the application to the ITEA of section 346ZB of the WR Act, as that section continues to apply because of item 21, enterprise agreements and workplace determinations (within the meaning of the FW Act) are taken to be specified in subsection 346ZB(5) (in addition to the other instruments so specified).

[30-3665] Modification — limits on variation of an ITEA that operates from approval for the purpose of passing the no-disadvantage test 23 (1) Despite item 21, if the ITEA is a workplace agreement that operates from approval, the rules in this item also apply. (2) Section 346N of the WR Act, as that section continues to apply because of item 21, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the nodisadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:

(a) the period of 30 days beginning on the seventh day after the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the ITEA; or (b) if the period is extended under subitem (3) — the period as extended (3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular ITEA in circumstances prescribed by the regulations. (4) Section 346Q of the WR Act, as that section continues to apply because of item 21, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no-disadvantage test unless the variation is lodged within the period referred to in paragraph (2)(a) or (b).

[30-3670]

Modification — subsection 400(5)

24 (1) This item applies to an ITEA made during the bridging period as referred to in subitem 21(1). (2) For the purposes of the application to the ITEA of subsection 400(5) of the WR Act, as that subsection continues to apply because of item 21, the circumstance referred to in subsection 400(6) of that Act is taken to include a reference to the circumstance referred to in subitem 25(2).

[30-3675] Effect of section 342 of the FW Act during the bridging period 25 (1) Despite section 342 of the FW Act, a prospective employer does not contravene subsection 340(1) of that Act if, during the bridging period, the person refuses to employ a person merely because the person requires another person to make an ITEA as a condition of engagement, other than in the circumstance referred to in subitem (2). [page 1378] (2) The circumstance referred to in subitem (1) is that: (a) the first person mentioned in subitem (1) is a new employer; and (b) the new employer requires another person to make an ITEA; and (c) the other person would, if employed by the new employer, be a transferring employee; and (d) the requirement to make the ITEA is a condition of the other person becoming employed by the new employer.

DIVISION 8 — APPLYING THE NO-DISADVANTAGE TEST WHERE THERE IS A TRANSMISSION OR TRANSFER OF BUSINESS

[30-3700] Applying the no-disadvantage test where there is a transmission or a transfer of business 26 (1) This item applies if the Workplace Authority Director is required, because of the application of this Schedule to a workplace agreement, to decide, on or after the WR Act repeal day, whether the workplace agreement passes the no-disadvantage test. (2) Division 7A of Part 11 of the WR Act continues to apply, in relation to

the workplace agreement, as if that Division had not been repealed, with the following modifications: (a) references to a workplace agreement binding an employer or an employee are taken to include references to a workplace agreement that is a transitional instrument covering an employer or employee; (b) references to sections 583 and 585 of the WR Act (other than in section 601D) are taken to include references to section 313 of the FW Act; (c) enterprise agreements and workplace determinations (within the meaning of the FW Act) are taken to be specified in the definition of instrument in subsection 601D(5) (in addition to the other instruments so specified); (d) the reference in subparagraph 601G(1)(b)(i) to the instrument described in paragraph 601D(2)(a) is taken to include a reference to the instrument described in paragraph 27(2)(a) of this Schedule; (e) the reference in subparagraph 601G(1)(b)(ii) to section 598A or clause 27A of Schedule 9 is taken to include a reference to item 9 of Schedule 11; (f) the reference in paragraph 601H(1)(b) to the time of transmission is taken to include a reference to the time when the new employer first employs a transferring employee; (g) paragraph 601H(2)(d) does not apply if the workplace agreement applies to the new employer because of the operation of section 313 of the FW Act.

[30-3705] Employment arrangements if there is a transfer of business and a workplace agreement ceases to operate because it does not pass the nodisadvantage test 27 (1) This item applies if: (a) on a particular day (the cessation day), a workplace agreement (the original agreement) ceases to operate under section 346W or 346ZA of the WR Act (as those provisions continue to apply

because of the operation of this Schedule) because the original agreement does not pass the no-disadvantage test; and [page 1379] (b) during the period beginning when the original agreement was lodged and ending on the cessation day, the original agreement started to cover a new employer and a transferring employee or transferring employees because of the operation of section 313 of the FW Act. (2) Despite subsection 346ZB(2) of the WR Act (as that provision continues to apply because of the operation of this Schedule), the new employer and the transferring employee or transferring employees who were covered by the original agreement immediately before the cessation day are taken, on and from the cessation day, to be covered by: (a) the instrument: (i) that, but for the original agreement having come into operation, would have covered the old employer and the transferring employee or transferring employees immediately before the termination of the employment of the transferring employee or transferring employees with the old employer; and (ii) that was capable of covering the new employer after the time the transferring employee or transferring employees became employed by the new employer under Schedule 11; or (b) if there is no instrument of a kind referred to in paragraph (a) in relation to the old employer and one or more of the transferring employees — the designated award (within the meaning of Division 5A of Part 8 of the WR Act) in relation to that employee or those employees. (3) If, but for the original agreement having come into operation, a redundancy provision would, immediately before the termination of the employment of a transferring employee or transferring employees with the old employer, have applied to the old employer in relation to a transferring

employee or transferring employees to who the original agreement applied because of a preservation item (within the meaning of item 9 of Schedule 11) relating to the agreement, the redundancy provision is taken: (a) to apply to the new employer under item 9 of Schedule 11, on and from the cessation day, in relation to the transferring employee or transferring employees; and (b) to continue to so apply to the employer, in relation to the transferring employee or transferring employees, until the earliest of the following: (i) the end of the period of 24 months beginning on the first day on which the old employer became covered, under the preservation item, by the redundancy provision; (ii) the time when the transferring employee ceases to be employed by the new employer; (iii) the time when an enterprise agreement, workplace determination or ITEA starts to apply to the transferring employee or transferring employees and the new employer. (4) If the original agreement is a workplace agreement as varied under Division 8 of Part 8 of the WR Act, the workplace agreement as in force before the variation was lodged is, despite section 346ZE of that Act (as that section continues to apply because of the operation of this Schedule), capable of being an instrument described in paragraph (2)(a). [page 1380] (5) In this item: award includes a State reference transitional award. instrument means: (a) if the termination of the employment of the transferring employee or transferring employees with the old employer occurred before the WR Act repeal day — any of the following: (i) a workplace agreement; (ii) an award;

(iii) a pre-reform certified agreement; (iv) a preserved State agreement; (v) a notional agreement preserving State awards; and (b) if the termination of the employment of the transferring employee or transferring employees with the old employer occurred on or after the WR Act repeal day—any of the following: (i) an instrument referred to in subparagraph (a)(i), (ii), (iii), (iv) or (v) that is a transitional instrument; (ii) an enterprise agreement; (iii) a workplace determination made under the FW Act. redundancy provision has the meaning given by subitem 38(7) of Schedule 3.

DIVISION 9 — MISCELLANEOUS

[30-3730] 8

References to variations under Division

28 To avoid doubt, a reference in this Part to a variation under Division 8 of Part 8 of the WR Act does not include a reference to a variation made for the purposes of passing the no-disadvantage test.

[30-3735] Variations to pass no-disadvantage test after WR Act repeal day 28A Despite any other provision of Division 5A of Part 8 of the WR Act, as that Division continues to apply because of this Schedule in relation to: (a) a workplace agreement; or (b) a variation of such an agreement under Division of that Part; only one variation for the purposes of passing the no-disadvantage test of the agreement or variation may be lodged with the Workplace Authority Director on or after the WR Act repeal day.

[30-3740] Documents taken to be workplace agreements, etc. 29 To avoid doubt, sections 324A, 368A and 381A of the WR Act continue to have effect for the purposes of a provision of the WR Act that continues to apply because of this Act.

PART 3 — TRANSITIONAL PROVISIONS RELATING TO WORKPLACE DETERMINATIONS MADE UNDER THE WR ACT [30-3845] Continued application of WR Act prohibited content provisions 30 (1) This item applies to a workplace determination made under the WR Act before the WR Act repeal day. [page 1381] (2) Despite the repeal of section 506 of the WR Act, Subdivision B of Division 7 of Part 8 of that Act (which deals with prohibited content), other than section 358 (which deals with prohibited content being void), continues to apply in relation to the workplace determination on and after the WR Act repeal day as if that section had not been repealed. Note 1: The general effect of this provision is to preserve the Part 8 rules about prohibited content for workplace determinations made before the WR Act repeal day. The rules about variation and termination of such workplace determinations, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments). Note 2: The rules about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).

[30-3850] Termination by approval general rule — continued application of lodgment provisions

31 (1) This item applies to a termination of a workplace determination, if the termination has been approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act before that day. Note: Under subsection 506(3) of the WR Act, a workplace determination can only be terminated under Subdivision B of Division 9 of Part 8 of that Act after the determination has passed its nominal expiry date.

(2) Despite the repeal of section 506 of the WR Act, the following provisions of that Act continue to apply in relation to the termination on and after the WR Act repeal day, as if that section had not been repealed: (a) subsection 381(2) (which deals with when a workplace determination is terminated); (b) subsections 384(4), (5) and (6) (which deal with non-compliance with information requirements); (c) section 387 (which deals with lodgment of unapproved terminations); (d) Subdivision C of Division 9 of Part 8 (which deals with lodgment); (e) section 398 (which deals with the effect of non-compliance); (f) subsection 401(1) and section 412A. Note: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of workplace determinations approved before the WR Act repeal day, subject to the modification set out in item 32. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).

[30-3855] Modification — unlodged terminations must be lodged within 14 days 32 (1) Despite item 31, if a termination to which that item applies is an unlodged termination: (a) the termination does not come into operation unless it is lodged before the end of the 14 day period (the cut-off period) referred to in subsection 388(1) of the WR Act as that subsection continues to apply because of item 31; and (b) subsection 388(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of

item 31, does not apply to the termination. Note: The general effect of this provision is that unlodged terminations must be lodged within 14 days of being made in order to come into operation. However, late lodgment will not give rise to a civil remedy.

[page 1382] (2) If the termination is lodged after the end of the cut-off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because it was lodged after the end of the cut-off period, to the following: (a) the employer to which the workplace determination applies; (b) the employees to which the workplace determination applies. (3) In this item: unlodged termination, in relation to a workplace determination, means a termination of a workplace determination approved in accordance with section 386 of the WR Act, but not lodged with the Workplace Authority Director under section 389 of that Act as at the WR Act repeal day.

[30-3860] Termination by the Commission — Commission may continue to deal with applications made before the WR Act repeal day 33 (1) This item applies to a workplace determination in relation to which an application has been made under subsection 397A(2) of the WR Act (which deals with termination by the Commission) before the WR Act repeal day. (2) Despite the repeal of section 506 of the WR Act, the following provisions of that Act continue to apply in relation to the workplace determination on and after the WR Act repeal day as if that section had not been repealed: (a) subsection 381(2) (which deals with when a workplace determination is terminated);

(b) subsections 397A(1) and (3) (which deal with when the Commission may terminate a workplace determination). Note: The general effect of this provision is to preserve the Part 8 rules in relation to applications for terminations of workplace determinations by the Commission made before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).

[30-3865] Documents taken to be workplace determinations, etc. 34 To avoid doubt, section 381A of the WR Act continues to apply for the purposes of a provision of that Act that continues to apply because of this Part.

[page 1383]

[30-3880] SCHEDULE 9 — MINIMUM WAGES PART 1 — PRELIMINARY [30-3885]

Meanings of employee and employer

1 In this Schedule, employee means a national system employee and employer means a national system employer.

PART 2 — SPECIAL PROVISIONS RELATING TO FWA’S FIRST ANNUAL WAGE REVIEW [30-3990] Period to which first annual wage review relates 2 FWA’s first annual wage review is to be conducted and completed in the period: (a) starting on the FW (safety net provisions) commencement day; and (b) ending at the end of the next 30 June; even if that period is not a full financial year.

[30-3995] Exercise of powers in advance of first annual wage review period 3 FWA may, before the start of the period referred to in item 2, exercise powers for the purpose of obtaining information to be taken into account in its first annual wage review. Powers that may be exercised include: (a) inviting persons or bodies to make written submissions to FWA for consideration in the review; and

(b) undertaking or commissioning research for the purposes of the review.

[30-4000] First national minimum wage order does not have to set full range of special national minimum wages 4 (1) In its first annual wage review, FWA does not have to set a full range of special national minimum wages covering all the classes of employees referred to in paragraph 294(1)(b) of the FW Act. (2) However, FWA must set a special national minimum wage for a class or subclass of those employees in its first annual wage review if the transitional national minimum wage order sets a special national minimum wage order for those employees. Note: The transitional national minimum wage order is taken to have been made on the FW (safety net provisions) commencement day: see item 12.

(3) If FWA does not set a full range of special national minimum wages in its first annual wage review, the President of FWA must establish a process for the setting of the remaining special national minimum wages in FWA’s second annual wage review. (4) FWA may advise persons or bodies about that process in any way FWA considers appropriate. (5) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (4). [page 1384]

PART 3 — CONTINUED APPLICATION OF WR ACT PROVISIONS ABOUT MINIMUM WAGES DIVISION 1 — GENERAL PROVISIONS

[30-4105] Continuation of Australian Fair Pay and Conditions Standard wages provisions 5 (1) Division 2 (other than as provided in subitem (2)) of Part 7 of the WR Act continues to apply on and after the WR Act repeal day in accordance with this Part. That Division as it continues to apply is the continued AFPCS wages provisions. Note 1: Part 7 of the WR Act contains the Australian Fair Pay and Conditions Standard. Schedule 4 provides for the continued application of the rest of the Standard during the bridging period. The effect of this Division is not limited just to the bridging period. Note 2: Schedule 3 provides for the continued application of the rules about the interaction between transitional instruments and the Australian Fair Pay and Conditions Standard.

(2) The continued application of Division 2 of Part 7 of the WR Act has effect subject to the following paragraphs: (a) subsections 182(1) and (2), and Subdivisions H, I, L and M, cease to apply when there are no longer any employees covered by transitional APCSs (see also item 11); (b) subsections 182(3) and (4), section 185 and Subdivision G cease to apply at the end of the bridging period (see also item 12); (c) Subdivision D does not continue to apply at all; (d) Subdivisions E, F, K and N cease to apply after the AFPC has ceased to exist (see item 7 of Schedule 18). (3) Without limiting subitem (1) (but subject to subitem (2)), each of the following, as it was under Division 2 of Part 7 of the WR Act immediately before the WR Act repeal day, continues to exist, as a transitional minimum wage instrument, in accordance with this Part on and after that day: (a) an APCS, which continues as a transitional APCS; (b) the rate of the standard FMW, which continues as the transitional standard FMW; (c) a special FMW, which continues as a transitional special FMW; (d) the rate of the default casual loading, which continues as the transitional default casual loading. Note: APCS is short for Australian Pay and Classification Scale. FMW is short for Federal Minimum Wage.

(4) Despite item 6 of Schedule 2, the following provisions of Part 21 of the

WR Act do not apply in relation to the continued AFPCS wages provisions: (a) subparagraph 861(1)(d)(iii); (b) section 865. Note: Paragraph (a) has a flow-through effect to the reference in subparagraph 885(1)(j) of the WR Act to section 861.

[30-4110] References to workplace agreements include references to enterprise agreements 5A (1) The provisions of the WR Act that continue to apply because of item 5 have effect as if a reference in the provisions to a workplace agreement included a reference to an enterprise agreement. [page 1385] (2) Subitem (1) has effect unless the context otherwise requires and subject to the regulations.

[30-4115] The employees who are “covered” by transitional minimum wage instruments 6 (1) Transitional minimum wage instruments cover employees as provided in the following paragraphs: (a) a transitional APCS covers an employee if, under sections 204 and 205 of the continued AFPCS wages provisions, the APCS covers the employment of the employee; (b) the transitional standard FMW covers an employee if, under section 194 of the continued AFPCS wages provisions, the FMW for the employee is the standard FMW; (c) a transitional special FMW covers an employee if, under section 194 of the continued AFPCS wages provisions, the FMW for the employee is that special FMW; (d) the transitional default casual loading covers an employee who is described in subsection 185(1) of the continued AFPCS wages

provisions. (2) However, a transitional APCS does not cover an employee (or an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act). Note 1: Item 35 of Schedule 3 deals with the application of section 329 of the FW Act to transitional APCSs. Note 2: Divisions 2 and 3 of this Part deal with when transitional minimum wage instruments cease to cover employees.

[30-4120] Transitional minimum wage instruments can only be varied or terminated in limited circumstances 7 (1) Despite anything in the continued AFPCS wages provisions, a transitional minimum wage instrument cannot be varied or terminated (or otherwise brought to an end) except as referred to in one of the following subitems. (2) The AFPC can exercise its wage-setting powers to vary a transitional minimum wage instrument as necessary depending on the outcome of the AFPC’s final wage review under the WR Act. Those exercises of wagesetting powers take effect at the time determined by the AFPC (which may be a time after the AFPC has ceased to exist). Note: Schedule 18 provides for when the AFPC ceases to exist.

(3) A transitional APCS can be varied in an annual wage review under the FW Act as provided for in item 10. (4) A transitional APCS can be varied or terminated under: (a) item 3 of Schedule 5 (which deals with variation and termination of transitional APCSs to take account of the Part 10A award modernisation process); or (b) item 9 of Schedule 6 (which deals with variation and termination of transitional APCSs to take account of the enterprise instrument modernisation process).

[30-4125]

Effect of termination

8 If a transitional minimum wage instrument terminates, it ceases to cover (and can never again cover) any employees. [page 1386]

[30-4130] No loss of accrued rights or liabilities when transitional minimum wage instrument terminates or ceases to cover an employee 9 (1) If a transitional minimum wage instrument terminates, or ceases to cover a person, that does not affect: (a) any right or liability that a person acquired, accrued or incurred before the transitional minimum wage instrument terminated or ceased to cover the person; or (b) any investigation, legal proceeding or remedy in respect of any such right or liability. (2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the transitional minimum wage instrument had not terminated or ceased to cover the person.

DIVISION 2 — SPECIAL PROVISIONS ABOUT TRANSITIONAL APCSS

[30-4155] Variation of transitional APCS in annual wage reviews under the FW Act 10 (1) In an annual wage review, the FWC may make a determination varying a transitional APCS. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1221, opn 1 Jan 2013]

(2) For that purpose, Division 3 of Part 2-6 of the FW Act (other than section 292) applies to a transitional APCS in the same way as it applies to a modern award.

[30-4160] Transitional APCS ceases to cover an employee if a modern award starts to cover the employee 11 A transitional APCS ceases to cover an employee when a modern award that covers the employee comes into operation.

DIVISION 3 — SPECIAL PROVISIONS ABOUT THE FMW, SPECIAL FMWs AND THE DEFAULT CASUAL LOADING

[30-4185] Cessation of coverage of transitional standard FMW etc. 12 (1) On the FW (safety net provisions) commencement day, the transitional standard FMW, any transitional special FMWs and the transitional default casual loading cease to cover any employees. Subsections 182(3) and (4), and section 185, of the continued AFPCS wages provisions also cease to cover any employees. (2) On the FW (safety net provisions) commencement day, FWA is taken to have made a national minimum wage order (the transitional national minimum wage order) under Part 2-6 of the FW Act: (a) that: (i) sets the national minimum wage at the rate that was the transitional standard FMW immediately before that day; and (ii) requires employers to pay employees to whom the national minimum wage applies (see subsection 294(3) of the FW Act) a base rate of pay that at least equals the national minimum wage; and [page 1387] (b) if, immediately before that day, there was a transitional special FMW for a class of employees — that:

sets a special national minimum wage for that class of employees that is the same as the transitional special FMW immediately before that day; and (ii) requires employers to pay employees to whom that special national minimum wage applies (see subsection 294(4) of the FW Act) a base rate of pay that at least equals that special national minimum wage; and (c) that: (i) sets the casual loading for award/agreement free employees at the rate that was the transitional default casual loading immediately before that day; and (ii) requires employers to pay, to award/agreement free employees who are casual employees, a casual loading that at least equals the casual loading for award/agreement free employees (as applied to the employees’ base rates of pay). (i)

Note: The requirement in paragraph 294(1)(b) of the FW Act that a national minimum wage order must set special national minimum wages for all award/agreement free employees in the classes referred to in that paragraph does not apply to the transitional national minimum wage order.

(3) The hours for which a rate set in the transitional national minimum wage order is payable are the same as the hours for which the transitional standard FMW, transitional special FMW or transitional default casual loading (as the case requires) would have been payable under the continued AFPCS wages provisions.

PART 4 — UNIVERSAL APPLICATION OF MINIMUM WAGES TO EMPLOYEES: TRANSITIONAL INSTRUMENTS [Heading am Act 124 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

[30-4290] Base rate of pay under agreementbased transitional instrument must not be less than the modern award rate or the national minimum wage order rate etc.

13 If employee is covered by a modern award that is in operation (1) If, on or after the FW (safety net provisions) commencement day: (a) an agreement-based transitional instrument applies to an employee; and (b) a modern award that is in operation covers the employee; the base rate of pay payable to the employee under the transitional instrument (the instrument rate) must not be less than the base rate of pay that would be payable to the employee under the modern award (the award rate) if the modern award applied to the employee. (2) If the instrument rate is less than the award rate, the transitional instrument has effect in relation to the employee as if the instrument rate were equal to the award rate. If employee is not covered by a modern award that is in operation (3) If, on or after the FW (safety net provisions) commencement day: (a) an agreement-based transitional instrument applies to an employee; and (b) the employee is not covered by a modern award that is in operation; and (c) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the [page 1388] employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order; the base rate of pay payable to the employee under the transitional instrument (the instrument rate) must not be less than the employee’s order rate. (4) If the instrument rate is less than the employee’s order rate, the transitional instrument has effect in relation to the employee as if the instrument rate were equal to the employee’s order rate.

Note: The AFPCS interaction rules may affect the base rate of pay payable to an employee (see item 22 of Schedule 3).

[30-4295] FWC may make determinations to phase-in the effect of rate increases resulting from item 13 etc. 14 (1) On application by an employer to whom a transitional instrument applies, the FWC may make a determination the effect of which is to phase-in the effect of increases in base rates of pay that would otherwise take effect on a particular day because of: (a) item 13; or (b) subitem 22(2) of Schedule 3. Note: Under subitem 22(2) of Schedule 3, AFPCS interaction rules that provide for instruments to prevail over the Australian Fair Pay and Conditions Standard stop applying when the bridging period ends. That may result in an employee becoming entitled to a higher rate of pay under a transitional APCS. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1223, opn 1 Jan 2013]

(2) The FWC must not make a determination under this item in relation to an employer unless it is satisfied that the determination is necessary to ensure the ongoing viability of the employer’s enterprise. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1224, opn 1 Jan 2013]

(3) Item 13, and subitem 22(2) of Schedule 3, have effect in relation to an employer subject to any determinations the FWC makes under this item. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1225, opn 1 Jan 2013] [cl 14 am Act 174 of 2012 s 3 and Sch 9 item 1222, opn 1 Jan 2013]

[30-4300] Enterprise agreement base rate of pay not to be less than transitional minimum wage instrument rate 15 (1) If: (a) a transitional minimum wage instrument covers an employee; and (b) an enterprise agreement applies to the employee; the base rate of pay payable to the employee under the enterprise

agreement (the agreement rate) must not be less than the base rate of pay that is payable to the employee under the transitional minimum wage instrument (the instrument rate). (2) If the agreement rate is less than the instrument rate, the enterprise agreement has effect in relation to the employee as if the agreement rate were equal to the instrument rate. Note: If a transitional instrument applies to an employee who is covered by a transitional minimum wage instrument, then (subject to the continued application of the AFPCS interaction rules) the employee must be paid at least the rate required by the continued AFPCS wages provisions.

[page 1389]

PART 5 — PROVISIONS RELATING TO DIVISION 2B STATE INSTRUMENTS [Pt 5 insrt Act 124 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

DIVISION 1 — UNIVERSAL APPLICATION OF MINIMUM WAGES TO EMPLOYEES: DIVISION 2B STATE REFERENCE EMPLOYEES

[30-4301] Base rate of pay under Division 2B State award must not be less than national minimum wage order rate etc. 16 (1) If, on or after the Division 2B referral commencement: (a) a Division 2B State award applies to a Division 2B State reference employee; and (b) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order; the base rate of pay payable to the employee under the Division 2B State

award (the award rate) must not be less than the employee’s order rate. (2) If the award rate is less than the employee’s order rate, the Division 2B State award has effect in relation to the employee as if the award rate were equal to the employee’s order rate.

[30-4302] Base rate of pay under Division 2B State employment agreement must not be less than Division 2B State award rate or modern award rate, or the national minimum wage order rate etc. 17 (1) If employee is covered by a Division 2B State award or modern award that is in operation If, on or after the Division 2B referral commencement: (a) a Division 2B State employment agreement applies to a Division 2B State reference employee; and (b) a Division 2B State award or a modern award that is in operation covers the employee; the base rate of pay payable to the employee under the agreement (the agreement rate) must not be less than the base rate of pay that would be payable to the employee under the Division 2B State award or the modern award (the award rate) if the Division 2B State award or the modern award applied to the employee. (2) If the agreement rate is less than the award rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the award rate. (3) If employee is not covered by a Division 2B State award or modern award that is in operation If, on or after the Division 2B referral commencement: (a) a Division 2B State employment agreement applies to a Division 2B State reference employee; and (b) the employee is not covered by a Division 2B State award or a modern award that is in operation; and (c) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer

to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order; [page 1390] the base rate of pay payable to the employee under the Division 2B State employment agreement (the agreement rate) must not be less than the employee’s order rate. (4) If the agreement rate is less than the employee’s order rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the employee’s order rate.

[30-4303] FWC may make determinations to phase-in the effect of rate increases resulting from item 16 or 17 etc. 18 (1) On application by an employer to whom a Division 2B State instrument applies, the FWC may make a determination the effect of which is to phase-in the effect of increases in base rates of pay that would otherwise take effect on a particular day because of item 16 or 17. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1227, opn 1 Jan 2013]

(2) The FWC must not make a determination under this item in relation to an employer unless it is satisfied that the determination is necessary to ensure the ongoing viability of the employer’s enterprise. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1228, opn 1 Jan 2013]

(3) Items 16 and 17 have effect in relation to an employer subject to any determinations the FWC makes under this item. [subcl (3) am Act 174 of 2012 s 3 and Sch 9 item 1229, opn 1 Jan 2013] [cl 18 am Act 174 of 2012 s 3 and Sch 9 item 1226, opn 1 Jan 2013]

[30-4304] Award/agreement free Division 2B State reference employee not to be paid less than

State minimum amount 19 (1) This item applies in relation to an employee and a period if: (a) the employee is a Division 2B State reference employee; and (b) the transitional national minimum wage order, or another national minimum wage order, is in operation throughout the period; and (c) the employee is an award/agreement free employee throughout the period, and no Division 2B State instrument applies to the employee at any time in the period; and (d) the amount that is payable to the employee in relation to the period under the national minimum wage order is less than the amount (the State minimum amount) that would be payable to the employee in relation to the period under the State minimum wages instruments (see subitem (4)). (2) The national minimum wage order has effect, in relation to the employee and the period, as if it instead required the employer to pay the employee the State minimum amount. (3) In working out the State minimum amount, any increases of rates (whether because of indexation or otherwise) that would have taken effect after the Division 2B State referral commencement under State minimum wages instruments are to be disregarded. (4) The State minimum wages instruments, in relation to the employee, are orders, decisions or rulings (however described), as in force immediately before the Division 2B referral commencement: (a) that were made by a State industrial body under a State industrial law of the Division 2B referring State; and [page 1391] (b) that provide for employees to be paid a minimum wage or a minimum rate of remuneration, or that affect the entitlement of such employees to be paid a minimum wage or a minimum rate of remuneration.

(5) This item has effect subject to the regulations, which may: (a) provide for how amounts referred to in paragraph (1)(d) are to be worked out (for example, in relation to casual employees); or (b) provide for how a national minimum wage order has effect because of subitem (2); or (c) provide that certain orders, decisions or rulings (however described) made by a State industrial body are, or are not, State minimum wages instruments as defined in subitem (4).

DIVISION 2 — OTHER MATTERS

[30-4305] Variation of Division 2B State awards in annual wage reviews under the FW Act 20 (1) In an annual wage review, the FWC may make a determination varying terms of a Division 2B State award relating to wages. [subcl (1) am Act 174 of 2012 s 3 and Sch 9 item 1230, opn 1 Jan 2013]

(2) For that purpose, Division 3 of Part 2-6 of the FW Act (other than section 292) applies to terms of a Division 2B State award relating to wages in the same way as it applies to a modern award.

[page 1392]

[30-4310]

SCHEDULE 10 — EQUAL REMUNERATION PART 1 — PRELIMINARY

[30-4320]

Meaning of employee

1 In this Schedule, employee means a national system employee.

PART 2 — EQUAL REMUNERATION ORDERS UNDER THE FW ACT [30-4425] FWA must take into account AFPC’s final wage review 2 (1) This item applies in relation to a decision whether to make an equal remuneration order under Part 2-7 of the FW Act during the period: (a) starting on the WR Act repeal day; and (b) ending on the day FWA completes its first annual wage review. (2) In deciding whether to make the equal remuneration order, FWA must take into account the outcome of the AFPC’s final wage review under the WR Act.

[30-4430] Inconsistency with certain instruments and orders 3 (1) A term of an instrument or order referred to in subitem (2) has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that:

(a) is made under Part 2-7 of the FW Act; and (b) applies to the employee. (2) For the purposes of subitem (1), the instruments and orders are as follows: (a) a transitional instrument; (b) an order of the Commission made under the WR Act; (c) a transitional APCS; (d) a Division 2B State instrument. Note: A term of a modern award, an enterprise agreement or an FWA order also has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that is made under Part 2-7 of the FW Act and applies to the employee (see section 306 of the FW Act). [subcl (2) am Act 124 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

PART 3 — EQUAL REMUNERATION ORDERS UNDER THE WR ACT [30-4535] orders

Continued effect of equal remuneration

4 (1) An order (a WR Act equal remuneration order) that was: (a) made under Division 3 of Part 12 of the WR Act (as in force from time to time); and (b) in force immediately before the WR Act repeal day; continues to have effect on and after the WR Act repeal day. (2) A WR Act equal remuneration order may be varied or revoked by the FWC under subsections 603(1) and (2) of the FW Act as if it were an order made under Part 2-7 of the FW Act. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1231, opn 1 Jan 2013]

[page 1393]

[30-4540] Inconsistency with certain instruments and orders 5 (1) A term of an instrument or order referred to in subitem (2) has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an order that: (a) was made under Division 3 of Part 12 of the WR Act (as in force from time to time); and (b) was in force immediately before the WR Act repeal day; and (c) applies to the employee. (2) For the purposes of subitem (1), the instruments and orders are as follows: (a) a modern award; (b) an enterprise agreement; (c) an FWC order; (d) a transitional instrument that is an award or a State reference transitional award or common rule; (e) a transitional instrument that is a workplace agreement; (f) an order of the Commission made under the WR Act. [subcl (2) am Act 174 of 2012 s 3 and Sch 9 item 1232, opn 1 Jan 2013]

[page 1394]

[30-4550]

SCHEDULE 11 — TRANSFER OF BUSINESS PART 1 — PRELIMINARY

[30-4560]

Meanings of employee and employer

1 In this Schedule, employee and employer have their ordinary meanings.

PART 2 — TRANSMISSIONS OF BUSINESS OCCURRING BEFORE WR ACT REPEAL DAY [30-4665] General rule — continued application of WR Act 2 (1) This Part applies if: (a) at a time (the time of transmission), a person (the new employer) became the successor, transmittee or assignee of the whole, or a part, of a business of another person (the old employer); and (b) the time of transmission was before the WR Act repeal day. (2) The following provisions of Part 11 of the WR Act (as modified by items 5 and 6 of this Schedule) continue to apply in relation to the transmission of business on and after the WR Act repeal day: (a) Divisions 1 and 2 (which deal with introductory matters); (b) Division 3 (which deals with the transmission of ITEAs) (other than subsection 583(2) and section 584); (c) Division 4 (which deals with the transmission of collective agreements) (other than subsections 585(2), (3) and (5) and

subsections 588(1) and (2)); (d) Division 5 (which deals with the transmission of awards) (other than subsections 595(2), (3), (5) and (6)); (e) Division 6 (which deals with the transmission of APCSs) (other than subsection 598(2)); (f) Division 6A (which deals with the transmission of preserved redundancy provisions) (other than subsection 598A(3)); (g) Division 7 (which deals with entitlements under the Australian Fair Pay and Conditions Standard); (h) Division 8 (which deals with notice requirements and enforcement) (other than section 605). (2A) For the purpose of the continued application, by subitem (2), of Division 5 of Part 11 of the WR Act: (a) a reference in those provisions to an award is taken to include a reference to a State reference transitional award; and (b) despite item 6 of Schedule 2, paragraph 885(1)(e) of that Act does not continue to apply. Note: Paragraph 885(1)(e) would otherwise have disapplied Division 5 of Part 11 of the WR Act.

(3) The following provisions of Schedule 9 to the WR Act (as modified by items 5 and 6 of this Schedule) continue to apply in relation to the transmission of business on and after the WR Act repeal day: (a) Parts 1 and 2 (which deal with introductory matters); (b) Part 2A (which deals with the transmission of AWAs) (other than subclauses 6B(2) and (3) and clause 6C); [page 1395] (c) Part 3 (which deals with the transmission of pre-reform AWAs) (other than subclause 7(2) and clause 9); (d) Part 4 (which deals with the transmission of pre-reform certified agreements) (other than subclauses 10(4), (5), (6) and (8) and clause 12);

(e) Part 5 (which deals with the transmission of State transitional instruments) (other than subclauses 19(2), (3) and (5) and clause 21); (f) Part 5A (which deals with the transmission of preserved redundancy provisions) (other than subclause 27A(3)); (g) Part 6 (which deals with notice requirements and enforcement) (other than clause 31).

[30-4670] Period for which transmitted transitional instrument etc. continues to cover or apply to new employer 3 Transitional instrument covers new employer (1) If the new employer is covered by a transitional instrument in relation to a transferring employee because of a provision of Part 11 of the WR Act or Schedule 9 to that Act, the new employer remains covered by the transitional instrument, by force of this subitem, until whichever of the following first occurs: (a) the instrument is terminated; (b) the transmission period ends; (c) the instrument otherwise ceases to cover the new employer in relation to the transferring employee. (2) However, paragraph (1)(b) does not apply in relation to a pre-reform certified agreement if: (a) the pre-reform certified agreement is a Division 3 pre-reform certified agreement; and (b) the old employer was not an employer within the meaning of subsection 6(1) of the WR Act immediately before the time of transmission; and (c) the new employer was an employer within the meaning of subsection 6(1) of the WR Act at the time of transmission; and (d) the transmission of business occurs as part of the process of the employer in relation to the business being transferred becoming an

employer within the meaning of subsection 6(1) of the WR Act. Transitional APCS covers new employer (3) If a transferring employee’s employment with the new employer is covered by a transitional APCS because of Division 6 of Part 11 of the WR Act, the transferring employee’s employment with the new employer remains covered by that APCS until whichever of the following first occurs: (a) the transitional APCS is terminated; (b) the transitional APCS otherwise ceases to cover the transferring employee. Preserved redundancy provisions apply to new employer (4) If a redundancy provision applies to the new employer and a transferring employee because of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act, the redundancy provision continues to apply to the new employer and the transferring employee until the earliest of the following: (a) the end of the period of 24 months from the time that the agreement that contained the redundancy provision ceased operating; [page 1396] (b) the time when the transferring employee ceases to be employed by the new employer; (c) the time when an enterprise agreement, workplace determination or ITEA starts to apply to the employee.

[30-4675] Effect of industry-specific redundancy scheme in modern award in relation to preserved redundancy provisions 4 If: (a) a redundancy provision applies to the new employer and a transferring employee because of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act; and

(b) an industry-specific redundancy scheme in a modern award applies to the transferring employee; and (c) the redundancy provision is detrimental to the transferring employee, in any respect, when compared to the scheme in the modern award; then, despite subsection 598A(2) of the WR Act or subclause 27A(2) of Schedule 9 to that Act (as the case requires), the scheme in the modern award prevails over the redundancy provision, to the extent that the redundancy provision is detrimental to the transferring employee.

[30-4680] Modification — applications to Commission in relation to transmission of certain transitional instruments 5 Certain provisions have effect subject to orders of the Commission (1) Subsection 585(1) of the WR Act (as it continues to apply because of subitem 2(2) of this Schedule) and subitem 3(1) of this Schedule (to the extent that it applies in relation to a transitional instrument that is a collective agreement) have effect subject to any order of the Commission under section 590 of the WR Act (as that section continues to apply because of subitem 2(2) of this Schedule). (2) Subsection 595(1) of the WR Act (as it continues to apply because of subitem 2(2) of this Schedule) and subitem 3(1) of this Schedule (to the extent that it applies in relation to a transitional instrument that is an award) have effect subject to any order of the Commission (other than an order that would have the effect of extending the transmission period). (3) Subclauses 10(1), (2) and (3) of Schedule 9 to the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) and subitems 3(1) and (2) of this Schedule (to the extent that they apply in relation to a transitional instrument that is a pre-reform certified agreement) have effect subject to any order of the Commission under clause 14 of Schedule 9 to the WR Act (as that clause continues to apply because of subitem 2(3) of this Schedule). (4) Subclause 19(1) of Schedule 9 to the WR Act (as it continues to apply because of subitem 2(3) of this Schedule) and subitem 3(1) of this Schedule

(to the extent that it applies in relation to a transitional instrument that is a State transitional instrument) have effect subject to any order of the Commission under clause 23 of Schedule 9 to the WR Act (as that clause continues to apply because of subitem 2(3) of this Schedule). Time within which application to Commission may be made (5) The following provisions of the WR Act (as they continue to apply because of item 2 of this Schedule) are modified by omitting “before, at or after the transfer time” and substituting “not later than 90 days after the WR Act repeal day”: [page 1397] (a) section 591 (which deals with collective agreements); (b) clause 15 of Schedule 9 (which deals with pre-reform certified agreements); (c) clause 24 of Schedule 9 (which deals with State transitional instruments). (6) An application for an order under subitem (2) may be made not later than 90 days after the WR Act repeal day.

[30-4685]

Modification — civil remedy provisions

6 Modifications of Part 11 of the WR Act (1) The notes to the following provisions of the WR Act (as they continue to apply because of subitem 2(2) of this Schedule) are modified by omitting “section 605” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”: (a) subsection 599(4); (b) subsections 602(2) and (4); (c) subsection 603A(2). (2) Note 1 to the following provisions of the WR Act (as they continue to apply because of subitem 2(2) of this Schedule) is modified by omitting “section 605” and substituting “item 11 of Schedule 16 to the Fair Work

(Transitional Provisions and Consequential Amendments) Act 2009”: (a) subsections 603(1), (2) and (3); (b) subsection 603B(1). Modifications of Schedule 9 to the WR Act (3) The notes to the following provisions of the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) are modified by omitting “clause 31” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”: (a) subclauses 28(2) and (3A) of Schedule 9; (b) subclause 29A(2) of Schedule 9. (4) Note 1 to the following provisions of the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) is modified by omitting “clause 31” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”: (a) subclauses 29(1), (2) and (3) of Schedule 9; (b) subclause 29B(1) of Schedule 9.

PART 3 — TRANSFERS OF BUSINESS OCCURRING ON OR AFTER WR ACT REPEAL DAY DIVISION 1 — TRANSFERS OF BUSINESS: TRANSITIONAL INSTRUMENTS [Heading am Act 124 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

[30-4687]

Application of this Division

6A This Division applies in relation to a transfer of business and transferable instruments that are transitional instruments. Note: Transfers of business affecting Division 2B State instruments are dealt with in Division 4 of this Part. [cl 6A insrt Act 124 of 2009 s 3 and Sch 2, opn 1 Jan 2010]

[page 1398]

[30-4790] Application of FW Act in relation to transferring employees covered by transitional instrument 7 (1) This item applies if: (a) there is a transfer of business from an employer (the old employer) to another employer (the new employer), as described in subsection 311(1) of the FW Act; and (b) the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs on or after the WR Act repeal day. (2) This item applies regardless of whether: (a) the termination of a transferring employee’s employment with the old employer occurs before, on or after the WR Act repeal day; or (b) the employment of a transferring employee by the new employer occurs before, on or after the WR Act repeal day. (3) Part 2-8 of the FW Act (as modified by item 8 of this Schedule) applies in relation to the transfer of business.

[30-4795] Modification — application of FW Act in relation to transitional instruments 8 (1) Subsection 312(1) of the FW Act applies in relation to the transfer of business as if the following paragraph were added at the end: ; (d) a transitional instrument (other than a workplace agreement or a workplace determination that has not yet come into operation and other than a State reference common rule). (2) Except as provided in subitems (3) to (5), Part 2-8 of the FW Act applies in relation to the transfer of business as if: (a) a reference to an enterprise agreement included a reference to an agreement-based transitional instrument; and

(b) a reference to a modern award included a reference to an awardbased transitional instrument, other than a State reference common rule. (3) Paragraph (2)(a) does not apply in relation to the reference to an enterprise agreement in paragraph 312(1)(a) of the FW Act. (4) Paragraph (2)(b) does not apply in relation to the reference to a modern award in subsection 312(2) of the FW Act. (5) The following provisions of Part 2-8 of the FW Act apply in relation to the transfer of business as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument: (a) subsection 315(3); (b) paragraphs 318(1)(b) and (2)(c); (c) paragraphs 319(1)(c) and (2)(c). [subcl (5) am Act 124 of 2009 s 3 and Sch 3, opn 1 Jan 2010]

(6) Paragraph 319(1)(b) of the FW Act applies in relation to the transfer of business as if the words “(other than an individual agreement-based transitional instrument)” were inserted after the words “a transferable instrument”. [page 1399]

DIVISION 2 — TRANSFER OF PRESERVED REDUNDANCY PROVISIONS DURING BRIDGING PERIOD

[30-4820] Transfer of preserved redundancy provisions 9 (1) This item applies if: (a) there is a transfer of business from an employer (the old employer) to another employer (the new employer) as described in subsection 311(1) of the FW Act; and (b) the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs during the

bridging period; and (c) immediately before the termination of an employee’s employment with the old employer, a redundancy provision applied to the old employer and the employee because of a preservation item or a previous application of this item; and (d) the employee is a transferring employee in relation to the transfer of business. (2) This item applies regardless of whether: (a) the termination of the transferring employee’s employment with the old employer occurs before, on or after the WR Act repeal day; or (b) the employment of the transferring employee by the new employer occurs before, on or after the WR Act repeal day. (3) The redundancy provision applies to the new employer and the transferring employee after the time the transferring employee becomes employed by the new employer. (4) Subject to subitem (5), the redundancy provision prevails over any other redundancy provision included in any other instrument that would otherwise have effect, to the extent of any inconsistency (even if the provisions in that other instrument might be more beneficial to the transferring employee). (5) However, if: (a) an industry-specific redundancy scheme in a modern award applies to the transferring employee; and (b) the redundancy provision is detrimental to the transferring employee, in any respect, when compared to the scheme in the modern award; then the scheme in the modern award prevails over the redundancy provision, to the extent that the redundancy provision is detrimental to the transferring employee. (6) The redundancy provision continues to apply to the new employer and the transferring employee until the earliest of the following: (a) the end of the period of 24 months from the time that the agreement that contained the redundancy provision ceased operating;

(b) the time when the transferring employee ceases to be employed by the new employer; (c) the time when an enterprise agreement, workplace determination or ITEA starts to apply to the transferring employee. (7) In this item: instrument has the meaning given by subitem 38(7) of Schedule 3. preservation item means any of the following: (a) item 38 of Schedule 3; (b) item 40 of Schedule 3; [page 1400] (c) a provision of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act (as those provisions continue to apply because of item 2 of this Schedule). redundancy provision has the meaning given by subitem 38(7) of Schedule 3.

[30-4825] Notification of transfer of prese