Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 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

  (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.

  (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

  (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.