Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 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) is included in a class of instruments or terms that are prescribed by the regulations for the purposes of that particular law.

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.