Commonwealth Consolidated Acts Commonwealth Consolidated ActsNote: See section 795A.
Part 1 -- Amendments made by the Fair Work Amendment (Textile, Clothing and Footwear Industry) Act 2012
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.
2 Section 789BB of amended Act applies to contracts entered into after commencement
(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.
3 Effect on TCF contract outworker's entitlements
Accrued entitlements not affected
(1) The amendments made by the amending Act do not affect any entitlement that a TCF contract outworker had accrued before commencement.
Effect of modern award term requiring National Employment Standards to be applied to TCF contract outworker
(2) 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);
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.
4 Fair work instruments etc. made before commencement
(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.
(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.
5 Application of Division 3 of Part 6 - 4A of amended Act
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.
6 Application of subsection 203(2A) of amended Act
Subsection 203(2A) of the amended Act applies in relation to enterprise agreements made after commencement.
7 Regulations dealing with various matters
Application, saving and transitional
(1) 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).
Application to TCF outworkers of provisions of the Transitional Act
(3) The regulations may make provisions dealing with how the Transitional Act applies in relation to TCF outworkers.
(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.
Retrospective application of regulations
(5) 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.
Part 2 -- Amendments made by the Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012
In this Part:
"amended Act" means this Act as amended by the Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012 .
9 Application of sections 149A and 155A of amended Act
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.
10 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.
(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.
11 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.
(3) The FWC must do so by 1 January 2014 (despite section 155A of the amended Act).
12 Application of paragraph 194(h) of amended Act
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.
Part 3 -- Amendments made by the Fair Work Amendment (Respect for Emergency Services Volunteers) Act 2016
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.
14 Application of amendments--objectionable emergency management terms
Application of amendments
(1) 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.
Enterprise agreements approved before commencement--preservation of terms in accordance with amended Act
(3) 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.
Part 4 -- Amendments made by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017
In this Part:
"amended Act" means this Act as amended by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 .
16 Application of amendments--unreasonable requirements to spend or pay amounts
Subsections 325(1) and (1A) of the amended Act apply in relation to requirements made after this clause commences.
17 Saving of regulations--unreasonable deductions
Regulations in force, immediately before the commencement of this clause, for the purposes of subsection 326(2) of the Fair Work Act 2009 have effect after that commencement as if they had been made for the purposes of subsection 326(2) of the amended Act.
18 Application of amendments--increasing maximum penalties for contraventions of certain civil remedy provisions
(1) Sections 539, 557A and 557B of the amended Act apply in relation to conduct engaged in on or after the commencement of this Part.
(2) If:
(a) conduct was engaged in by a person before and after that commencement; and
(b) the conduct is part of a course of conduct referred to in subsection 557(1);
the conduct engaged in before that commencement is to be treated as constituting a separate contravention from the conduct engaged in after that commencement for the purposes of section 557.
(3) However, a court may still consider a contravention of a civil remedy provision (whether or not the provision is referred to in subsection 557(2)) by a person that occurred before the commencement of this Part for the purposes of determining whether a person's conduct was part of a systematic pattern of conduct referred to in paragraph 557A(1)(b).
(1) Section 558B of the amended Act applies in relation to contraventions of civil remedy provisions by franchisee entities or subsidiaries that occur after the end of the period of 6 weeks beginning on the day this Part commences.
(2) To avoid doubt, in determining for the purposes of paragraph 558B(1)(d) or (2)(c) of the amended Act whether a person could reasonably be expected to have had knowledge as referred to in that paragraph, a court may have regard to conduct that occurred, or circumstances existing, before the end of the period referred to in subclause (1).
20 Application of amendments--hindering or obstructing the Fair Work Ombudsman and inspectors etc.
Section 707A of the amended Act applies in relation to conduct engaged in at or after the commencement of this Part.
21 Application of power to give FWO notices
Sections 712A to 712F of the amended Act apply in relation to an FWO notice given after this Part commences, whether the investigation to which the notice relates is begun before or after the commencement of this Part.
22 Application of amendments relating to self - incrimination etc.
Section 713 of the amended Act applies in relation to information given, records or documents produced or questions answered after the commencement of this Part.
Section 714A of the amended Act applies in relation to reports prepared after the commencement of this Part.
24 Application of amendments--false or misleading information or documents
Subsections 535(4) and 536(3) and section 718A of the amended Act apply in relation to conduct engaged in after the commencement of this Part.
24A Application of amendments--presumption where records not provided
Section 557C of the amended Act applies in relation to contraventions of civil remedy provisions that occur after the commencement of this Part.
Part 5 -- Amendments made by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018
In this Part:
"4 yearly review of modern awards" has the meaning given by this Act, as in force immediately before the commencement of Schedule 1 to the amending Act.
"amended Act" means this Act as amended by the amending Act.
"amending Act" means the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 .
"Schedule 1 commencement day" means the day on which Schedule 1 to the amending Act commences.
"Schedule 2 commencement day" means the day on which Schedule 2 to the amending Act commences.
Division 2 -- Amendments made by Schedule 1 to the amending Act
26 Incomplete review of modern award
Scope
(1) This clause applies in relation to a review of a modern award conducted as part of a 4 yearly review of modern awards if:
(a) the review of the modern award commenced before the Schedule 1 commencement day; and
(b) immediately before that day, the review of the modern award had not been completed.
Saving
(2) Despite the repeal of:
(a) Division 4 of Part 2 - 3 (which deals with 4 yearly reviews of modern awards); and
(b) paragraph 582(4)(a) (which deals with directions by the President); and
(c) subsections 616(2) and (3) (which deal with the FWC's functions etc. that must be performed by a Full Bench);
by the amending Act, those provisions continue to apply, in relation to the review of the modern award, as if those repeals had not happened.
(3) Despite the repeal of paragraph 582(4)(a) (which deals with directions by the President) by the amending Act, a direction given by the President to an FWC Member under that paragraph that was in force immediately before the Schedule 1 commencement day continues to have effect, in relation to the review of the modern award, as if that repeal had not happened.
(3A) If, after the commencement of Part 5 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 , the FWC is considering, under repealed Division 4 of Part 2 - 3 (as continued in force under subclause (2)), whether an amendment to a modern award is justified by work value reasons, the FWC's consideration of those work value reasons must:
(a) be free of assumptions based on gender; and
(b) include consideration of whether historically the work has been undervalued because of assumptions based on gender.
Common issues
(4) For the purposes of this clause, it is immaterial whether the review of the modern award is conducted in relation to an issue that the modern award has in common with another modern award.
Division 3 -- Amendments made by Schedule 2 to the amending Act
28 Application of amendments--when employees have genuinely agreed to an enterprise agreement
(1) The amendments of section 188 of this Act made by Schedule 2 to the amending Act apply in relation to an application made under section 185 of this Act for approval of an enterprise agreement if the application is made:
(a) on or after the Schedule 2 commencement day; or
(b) before the Schedule 2 commencement day, if circumstances covered by subclause (2) apply.
(2) The circumstances covered by this subclause are:
(a) on or before the Schedule 2 commencement day, the FWC had neither approved, nor refused to approve, the enterprise agreement; or
(b) before the Schedule 2 commencement day:
(i) the FWC approved, or refused to approve, the enterprise agreement; and
(ii) an application was made under section 604 for an appeal against the decision to approve, or refuse to approve, the enterprise agreement; and
(iii) the FWC had not yet made a final decision on the appeal; or
(c) all of the following apply:
(i) within 21 days before the Schedule 2 commencement day, the FWC approved, or refused to approve, the enterprise agreement;
(ii) immediately before the Schedule 2 commencement day, an application had not been made under section 604 for an appeal against the decision to approve, or refuse to approve, the enterprise agreement;
(iii) within 21 days after the FWC approved, or refused to approve, the enterprise agreement, an application is made under section 604 for an appeal against that decision.
Division 4 -- Amendments made by Schedule 3 to the amending Act
29 Application of section 641B of the amended Act
Section 641B of the amended Act applies in relation to alleged misbehaviour or incapacity of an FWC Member occurring before or after the commencement of Schedule 3 to the amending Act.
Part 6 -- Amendments made by the Fair Work Amendment (Corrupting Benefits) Act 2017
30 Disclosure by organisations and employers
The amendments of Subdivision A of Division 4 of Part 2 - 4 made by Schedule 2 to the Fair Work Amendment (Corrupting Benefits) Act 2017 apply in relation to a proposed enterprise agreement for which the access period under subsection 180(4) begins on or after the commencement of this Part.
Part 8 -- Amendments made by the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018
39 Entitlement to unpaid family and domestic violence leave
(1) Subdivision CA of Division 7 of Part 2 - 2, as inserted by the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 , applies in relation to an employee whose employment started before the commencement of that Act as if the period:
(a) starting on that commencement; and
(b) ending on the first day after that commencement that is an anniversary of the day the employment started;
were a 12 month period.
(2) For the purposes of this clause, if an employee is employed by a particular employer:
(a) as a casual employee; or
(b) for a specified period of time, for a specified task or for the duration of a specified season;
the start of the employee's employment is taken to be the start of the employee's first employment with that employer.
40 Resolving uncertainties and difficulties about interaction between enterprise agreements and unpaid family and domestic violence leave
(1) On application by an employer, employee or employee organisation covered by an enterprise agreement that was made before the commencement of the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 , the FWC may make a determination varying the agreement:
(a) to resolve an uncertainty or difficulty relating to the interaction between the agreement and the following (the unpaid family and domestic violence leave provisions ):
(i) the provisions of Subdivision CA of Division 7 of Part 2 - 2;
(ii) section 107, to the extent that it relates to taking leave under that Subdivision; or
(b) to make the agreement operate effectively with the unpaid family and domestic violence leave provisions.
(2) A variation of an enterprise agreement under this clause operates from the day specified in the determination, which may be a day before the determination is made.
Part 9 -- Amendments made by the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020
In this Part:
"amending Act" means the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020 .
"Schedule 1 commencement day" means the day on which Schedule 1 to the amending Act commences.
"Schedule 2 commencement day" means the day on which Schedule 2 to the amending Act commences.
42 Amendments about stillbirth, death and hospitalisation of children
(1) The amendments of Division 5 (parental leave and related entitlements) of Part 2 - 2 made by Schedule 1 to the amending Act apply in relation to the stillbirth or death of a child on or after the Schedule 1 commencement day, subject to subclauses (2) to (4).
(2) Section 78A (hospitalised children), as inserted by Schedule 1 to the amending Act, applies in relation to a child born on or after the Schedule 1 commencement day.
(3) The amendment of section 84A (replacement employees) made by Schedule 1 to the amending Act applies if:
(a) an employer engages the replacement employee on or after the Schedule 1 commencement day; and
(b) the child in relation to whom the other employee is taking unpaid parental leave was not stillborn, or did not die, before that day.
Unpaid special maternity leave
(4) The amendments of section 80 (unpaid special maternity leave) made by Schedule 1 to the amending Act apply to a pregnancy that ends on or after the Schedule 1 commencement day.
(5) The amendments of Subdivision C (compassionate leave) of Division 7 of Part 2 - 2 made by Schedule 1 to the amending Act apply in relation to a permissible occasion that occurs on or after the Schedule 1 commencement day.
43 Amendments about flexible unpaid parental leave
Application provision
(1) The amendments of Division 5 of Part 2 - 2 made by Schedule 2 to the amending Act apply in relation to a child if the child's date of birth, or day of placement, is on or after the Schedule 2 commencement day.
Transitional provision--giving notice of taking flexible unpaid parental leave
(2) If:
(a) before the Schedule 2 commencement day, an employee gives notice to an employer in accordance with subsection 74(1) of the taking of a period (the initial leave period ) of unpaid parental leave under section 71 or 72 in relation to a child; and
(b) the child's date of birth or day of placement is on or after the Schedule 2 commencement day;
then the employee may, during the 1 - month period starting on the Schedule 2 commencement day, give the employer written notice of the taking of flexible unpaid parental leave.
(3) The notice under subclause (2) must specify the number of days of flexible unpaid parental leave that the employee intends to take in relation to the child.
(4) The employee may, in the notice under subclause (2), advise the employer of a change to the end date of the initial leave period, but only if the change is necessary to allow the employee to take the flexible unpaid parental leave for the number of days referred to in subclause (3).
(5) If the employee gives notice in accordance with subclauses (2) and (3), then:
(a) the notice is taken to be a notice given under subsection 74(1) in relation to the taking of flexible unpaid parental leave; and
(b) subsections 74(3A) and (3B) are taken to have been complied with in relation to the giving of that notice; and
(c) if the notice contains advice as referred to in subclause (4)--the employee is taken to have complied with subsection 74(4) in relation to the initial leave period.
(6) The employee cannot take flexible unpaid parental leave before the end of 4 weeks starting on the day the notice under subclause (2) is given, despite subsection 74(4B).
Part 10 -- Amendments made by the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021
In this Part:
"amended Act" means this Act as amended by the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021.
"amending Act" means the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021 .
"commencement" means the commencement of this Part.
Division 2 -- Amendments made by Schedule 1 to the amending Act
45 Resolving uncertainties and difficulties about interaction between enterprise agreements and the definition of casual employee and casual conversion rights
(1) On application by an employer, employee or employee organisation covered by an enterprise agreement that was made before commencement, the FWC may make a determination varying the agreement:
(a) to resolve an uncertainty or difficulty relating to the interaction between the agreement and any of the following:
(i) the definition of casual employee in section 15A of the amended Act (including to deal with uncertainty or difficulty arising from the circumstances in which employees are to be employed as casual employees under the agreement);
(ii) the provisions of Division 4A of Part 2 - 2 of the amended Act; or
(b) to make the agreement operate effectively with that section or those provisions.
(2) A variation of an enterprise agreement under this clause operates from the day specified in the determination, which may be a day before the determination is made.
46 Application of certain amendments
(1) Section 15A of the amended Act applies on and after commencement in relation to offers of employment that were given before, on or after commencement.
(2) Subclause (1) does not apply in relation to a person who is an employee of an employer as a result of accepting an offer that was made before commencement if either of the following apply in relation to that person:
(a) a court made a binding decision before commencement that the person is not a casual employee of the employer;
(b) the person converted the employment before commencement to employment other than casual employment under a term of a fair work instrument or contract of employment.
(3) In addition to subclause (1), section 15A of the amended Act (and the amendment made by item 1 of Schedule 1 to the amending Act) also applies before commencement in relation to offers of employment that were given before commencement, unless either of the following apply in relation to a person who is or was an employee of an employer as a result of accepting the offer:
(a) a court made a binding decision before commencement that the person is not a casual employee of the employer;
(b) the person converted the employment before commencement to employment other than casual employment under a term of a fair work instrument or contract of employment.
(4) To avoid doubt, if, apart from subclause (3), an employee could have made a claim for accrued relevant entitlements (within the meaning of subsection 545A(4) of the amended Act), the effect of that subclause is that the employee has not accrued, and cannot make a claim for, those entitlements.
(5) Subject to clause 47, Division 4A of Part 2 - 2 of the amended Act applies in relation to periods of employment starting before, on or after commencement.
(6) Section 545A of the amended Act applies in relation to entitlements that accrue, and loading amounts paid, on or after commencement.
(7) In addition to subclause (6), section 545A of the amended Act also applies in relation to entitlements that accrue, and loading amounts paid, before commencement.
(8) To avoid doubt, section 545A of the amended Act applies:
(a) to periods of employment starting before, on or after commencement (regardless of whether the employment period ended before commencement); and
(b) regardless of whether a person is, or is not, an employee of the relevant employer at the time a claim to which that section relates is made.
(9) A reference to periods of employment as a casual employee in section 87, 96, 117, 119 or 121 of the amended Act applies to periods of employment starting before, on or after commencement.
(10) A reference to a regular casual employee in section 23, 65, 67 or 384 of the amended Act applies to periods of employment starting before, on or after commencement.
(11) To avoid doubt, nothing in subclause (1) is taken to change the time at which the person became an employee of the employer.
47 Transitioning casual employees
(1) This clause applies in relation to an employee and an employer (other than a small business employer) if any or all of the following apply:
(a) the employee was, immediately before commencement (and disregarding subclause 46(3)), a casual employee of the employer;
(b) the employee was, immediately before commencement (and disregarding subclause 46(3)), designated as a casual employee by the employer for the purposes of:
(i) any fair work instrument that applies to the employee; or
(ii) the employee's contract of employment;
(c) the employee is a casual employee of the employer within the meaning of section 15A of the amended Act because of an offer of an employment made before commencement.
Note: The effect of this application provision is to provide a requirement for an employer (other than a small business employer) to assess whether to offer conversion under Division 4A of Part 2 - 2 of the amended Act (as modified under this clause) to any employee who was, or may have been, a casual employee immediately before commencement, and to any employee who at commencement is a casual employee within the meaning of section 15A of the amended Act.
(2) Division 4A (other than Subdivision C) of Part 2 - 2 of the amended Act is taken to apply in relation to the employee and employer for the period (the transition period ) of 6 months after commencement only as if:
(a) the employer was required under section 66B of the amended Act to assess, at a time during the transition period, whether the employer was required to make an offer to the employee under that section; and
(b) paragraph 66B(1)(a) of the amended Act were a requirement for the employee to have been employed by the employer for a period of 12 months ending the day the assessment is made; and
(c) paragraph 66B(2)(c) of the amended Act were a requirement to give the offer to the employee within 21 days after making the assessment; and
(d) subsection 66C(3) of the amended Act included a requirement to give a notice under that subsection if, when the assessment is made, the employee does not meet the requirement in paragraph (b) of this clause; and
(e) paragraph 66C(4)(c) of the amended Act were a requirement to give the notice within 21 days of making the assessment but no later than the end of the transition period.
(3) Subdivision C of Part 2 - 2 of the amended Act does not apply in relation to the employee and employer for the transition period.
(4) Division 4A (including Subdivision C) of Part 2 - 2 of the amended Act applies in relation to the employee and employer to whom paragraph (1)(a) or (b) applies after the transition period as if the employee were a casual employee of the employer within the meaning of section 15A of the amended Act.
(5) An employer referred to in subclause (1) must give an employee referred to in that subclause a Casual Employment Information Statement as soon as practicable after the end of the transition period.
47A Casual employees of small business employers
(1) This clause applies in relation to an employee and a small business employer if any or all of the following apply:
(a) the employee was, immediately before commencement (and disregarding subclause 46(3)), a casual employee of the employer;
(b) the employee was, immediately before commencement (and disregarding subclause 46(3)), designated as a casual employee by the employer for the purposes of:
(i) any fair work instrument that applies to the employee; or
(ii) the employee's contract of employment;
(c) the employee is a casual employee of the employer within the meaning of section 15A of the amended Act because of an offer of an employment made before commencement.
(2) Division 4A, other than Subdivision B, of Part 2 - 2 of the amended Act applies in relation to the employee and employer to whom paragraph (1)(a) or (b) applies on and after commencement as if the employee were a casual employee of the employer within the meaning of section 15A of the amended Act.
(3) An employer referred to in subclause (1) must give an employee referred to in that subclause a Casual Employment Information Statement as soon as practicable after commencement.
48 Variations to modern awards
(1) If:
(a) a modern award is made before commencement; and
(b) the modern award is in operation on commencement; and
(c) immediately before commencement, the modern award includes a term (the relevant term ) that:
(i) defines or describes casual employment; or
(ii) deals with the circumstances in which employees are to be employed as casual employees; or
(iii) provides for the manner in which casual employees are to be employed; or
(iv) provides for the conversion of casual employment to another type of employment;
then the FWC must, within 6 months after commencement, review the relevant term in accordance with subclause (2).
(2) The review must consider the following:
(a) whether the relevant term is consistent with this Act as amended by Schedule 1 to the amending Act;
(b) whether there is any uncertainty or difficulty relating to the interaction between the award and the Act as so amended.
(3) If the review of a relevant term under subclause (1) finds that:
(a) the relevant term is not consistent with this Act as amended by Schedule 1 to the amending Act; or
(b) there is a difficulty or uncertainty relating to the interaction between the award and the Act as so amended;
then the FWC must make a determination varying the modern award to make the award consistent or operate effectively with the Act as so amended.
(4) The determination must be made as soon as reasonably practicable after the review is conducted.
(5) A determination under subclause (3) comes into operation on (and takes effect from) the start of the day the determination is made.
(6) Section 168 applies to a determination made under subclause (3) as if it were a determination made under Part 2 - 3.
Part 11 -- Amendments made by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021
Scope
(1) This clause applies to an order that was in force under subsection 789FF(1) immediately before the commencement of this clause.
Transitional
(2) Despite the repeal of that subsection by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 , that subsection continues to apply, in relation to the order, as if that repeal had not happened.
49A Applications for orders to stop sexual harassment
The amendments of section 789FC made by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 apply in relation to an application made under that section after the end of the 2 - month period beginning at the commencement of this clause.
50 Orders to stop sexual harassment
For the purposes of subparagraph 789FF(1)(b)(ii) (as amended by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 ), it is immaterial whether the worker has been sexually harassed at work before, at or after the commencement of this clause.
Part 12 -- Amendments made by the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022
In this Part:
"amending Act" means the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 .
"deferred start day" means the day after the end of the period of 3 months beginning on the day Schedule 2 to the amending Act commences.
"pre-commencement enterprise agreement" means an enterprise agreement made before the commencement of Schedule 1 to the amending Act.
"small business employee" means an employee whose employer was, on the day Schedule 1 to the amending Act commences, a small business employer (whether or not the employee was employed by the employer on that day).
52 Entitlement to paid family and domestic violence leave
Non - small business employees
(1) The amendments made by Schedule 1 to the amending Act apply in relation to an employee, other than a small business employee, whose employment starts on or after the commencement of that Schedule.
(2) The amendments made by Schedule 1 to the amending Act also apply, from the commencement of that Schedule, in relation to an employee, other than a small business employee, whose employment started before that commencement, as if the period:
(a) starting on that commencement; and
(b) ending on the first day after that commencement that is an anniversary of the day the employment started;
were a 12 month period.
Small business employees
(3) The amendments made by Schedule 1 to the amending Act apply in relation to a small business employee whose employment starts on or after 1 August 2023.
(4) The amendments made by Schedule 1 to the amending Act also apply, from 1 August 2023, in relation to a small business employee whose employment started before 1 August 2023, as if the period:
(a) starting on 1 August 2023; and
(b) ending on the first day after 1 August 2023 that is an anniversary of the day the employment started;
were a 12 month period.
Start of casual employment
(5) For the purposes of this clause, if an employee is employed by a particular employer:
(a) as a casual employee; or
(b) for a specified period of time, for a specified task or for the duration of a specified season;
the start of the employee's employment is taken to be the start of the employee's first employment with that employer.
53 Resolving interactions between enterprise agreements and paid family and domestic violence leave
(1) On application by an employer, employee or employee organisation covered by a pre - commencement enterprise agreement, if:
(a) the agreement includes terms entitling employees to paid family and domestic violence leave within the ordinary meaning of that expression; and
(b) the FWC considers that the effect of those terms is detrimental when compared with the entitlement under Subdivision CA of Division 7 of Part 2 - 2 as amended by Schedule 1 to the amending Act (the NES entitlement );
the FWC may make a determination varying the agreement to make the agreement consistent with the NES entitlement.
(2) On application by an employer, employee or employee organisation covered by a pre - commencement enterprise agreement, the FWC may make a determination varying the agreement to make it operate effectively with the following:
(a) the provisions of Subdivision CA of Division 7 of Part 2 - 2 as amended by Schedule 1 to the amending Act;
(b) section 107, to the extent that it relates to taking leave under that Subdivision.
(3) A variation of a pre - commencement enterprise agreement under this clause operates from the day specified in the determination, which may be a day before the determination is made.
54 Entitlement to extended paid family and domestic violence leave provisions
(1) The amendments made by Schedule 2 to the amending Act apply in relation to a national system employee, whether the employee's employment started before or after the commencement of that Schedule.
Non - national system employees
(2) The amendments made by Schedule 2 to the amending Act apply in relation to a non - national system employee whose employment starts on or after the deferred start day.
(3) The amendments made by Schedule 2 to the amending Act also apply, from the deferred start day, in relation to a non - national system employee whose employment started before the deferred start day, as if the period:
(a) starting on the deferred start day; and
(b) ending on the first day after the deferred start day that is an anniversary of the day the employment started;
were a 12 month period.
Start of casual employment
(4) For the purposes of this clause, if an employee is employed by a particular employer:
(a) as a casual employee; or
(b) for a specified period of time, for a specified task or for the duration of a specified season;
the start of the employee's employment is taken to be the start of the employee's first employment with that employer.
Part 13 -- Amendments made by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022
In this Part:
"amended Act" means this Act as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 .
"amending Act" means the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 .
"commencement" means the commencement of this Part.
Division 2 -- Amendments made by Part 1 of Schedule 1 to the amending Act
56 Appeal of decisions of the Registered Organisations Commissioner
Divisions 3 and 4 of Part 5 - 1, as amended by Division 2 of Part 1 of Schedule 1 to the amending Act, have effect as if a reference to a decision made under the Registered Organisations Act by the General Manager included a reference to a decision made under the Registered Organisations Act before the commencement of Division 2 of Part 1 of that Schedule by the Registered Organisations Commissioner (including a delegate of the Commissioner), other than a decision under subsection 293H(3) of the Registered Organisations Act.
Division 3 -- Amendments made by Part 4 of Schedule 1 to the amending Act
(1) Sections 3 and 134 of the amended Act apply, after commencement, in relation to the FWC performing functions, or exercising powers, in relation to:
(a) a matter that arises after commencement; or
(b) a proceeding in the FWC that was on foot at commencement, or commences after commencement.
(2) Section 284 of the amended Act applies, after commencement, in relation to an annual wage review conducted in:
(a) the financial year beginning on 1 July 2022; or
(b) a later financial year.
Division 4 -- Amendments made by Part 5 of Schedule 1 to the amending Act
(1) Section 157 of the amended Act applies after commencement in relation to a determination or modern award made under that section after commencement.
(2) Subsections 302(3A) to (4A) of the amended Act apply after commencement in relation to the FWC performing functions, or exercising powers, in relation to:
(a) a matter that arises after commencement; or
(b) a proceeding in the FWC that was on foot at commencement, or commences after commencement.
(3) If an application under subsection 302(3) of this Act as in force immediately before commencement has not been finally determined at commencement, subsection 302(5) of the amended Act applies in relation to the application as if it were an application under paragraph 302(3)(b) of the amended Act.
Division 5 -- Amendments made by Part 7 of Schedule 1 to the amending Act
(1) Section 333B of the amended Act applies after commencement in relation to an employee if:
(a) the employee's contract of employment is entered into on or after commencement; or
(b) the employee's contract of employment is entered into before commencement and does not include a term that is inconsistent with subsection 333B(1) or (2) of the amended Act.
(2) If:
(a) an employee's contract of employment is entered into before commencement; and
(b) the contract includes a term that is inconsistent with subsection 333B(1) or (2) of the amended Act; and
(c) after commencement, the contract is varied at a particular time;
section 333B of the amended Act applies in relation to the employee after that time.
(3) Section 333C of the amended Act applies after commencement in relation to a fair work instrument made before, on or after commencement.
(4) Section 333C of the amended Act applies after commencement in relation to a contract of employment if:
(a) the contract is entered into on or after commencement; or
(b) the contract is entered into before commencement and does not include a term that is inconsistent with subsection 333B(1) or (2) of the amended Act.
(5) If:
(a) a contract of employment is entered into before commencement; and
(b) the contract includes a term that is inconsistent with subsection 333B(1) or (2) of the amended Act; and
(c) after commencement, the contract is varied at a particular time;
section 333C of the amended Act applies in relation to the contract after that time.
(6) Section 333D of the amended Act applies after the 6 - month period beginning on commencement in relation to a contract of employment entered into on or after commencement.
Division 6 -- Amendments made by Part 8 of Schedule 1 to the amending Act
60 Prohibiting sexual harassment in connection with work
(1) Despite the amendments of Part 6 - 4B made by Schedule 1 to the amending Act, that Part, as in force immediately before the commencement of Division 1 of Part 8 of that Schedule, continues to apply, on and after that commencement, in relation to:
(a) the sexual harassment of a worker at work before that commencement; and
(b) the sexual harassment of a worker at work on or after that commencement, if the sexual harassment is part of a course of conduct that begins before that commencement.
(2) Despite the repeal of subsection 789FF(1) by Schedule 1 to the amending Act, an order that was in force under that subsection immediately before the commencement of Division 1 of Part 8 of that Schedule continues in force (and may be dealt with) on and after that commencement as if that repeal had not happened.
(3) Subsection 527D(1) does not apply in relation to sexual harassment of a worker if the sexual harassment is part of a course of conduct that begins before the commencement of Division 1 of Part 8 of Schedule 1 to the amending Act.
Division 7 -- Amendments made by Part 9 of Schedule 1 to the amending Act
61 Anti - discrimination and special measures
(1) Subject to subclauses (2) and (3), the amendments made by Part 9 of Schedule 1 to the amending Act apply on and after commencement.
(2) The amendments of sections 172A and 195 made by Part 9 of Schedule 1 to the amending Act apply in relation to enterprise agreements made on and after commencement.
(3) The amendment of section 351 made by Part 9 of Schedule 1 to the amending Act applies in relation to adverse action taken on and after commencement.
Division 8 -- Amendments made by Part 10 of Schedule 1 to the amending Act
Section 333E of the amended Act applies in relation to a contract of employment entered into on or after the commencement of Part 10 of Schedule 1 to the amending Act (whether or not a previous contract referred to in subsection 333E(4) of the amended Act was entered into before, on or after that commencement).
63 Resolving uncertainties and difficulties about interaction between enterprise agreements and the provisions of Division 5 of Part 2 - 9
(1) On application by an employer or employee covered by an enterprise agreement that was made before the commencement of Part 10 of Schedule 1 to the amending Act, the FWC may make a determination varying the enterprise agreement to resolve an uncertainty or difficulty relating to the interaction between the enterprise agreement and the provisions of Division 5 of Part 2 - 9.
(2) A variation of an enterprise agreement under this clause operates from the day specified in the determination, which may be a day before the enterprise agreement is made.
Division 9 -- Amendments made by Part 11 of Schedule 1 to the amending Act
64 Requests for flexible working arrangements
The amendments made by Divisions 1, 3, 4 and 5 of Part 11 of Schedule 1 to the amending Act apply in relation to a request made under subsection 65(1) of this Act on or after the commencement of that Part.
Division 10 -- Amendments made by Part 12 of Schedule 1 to the amending Act
65 Termination of enterprise agreements after nominal expiry date
The amendments made by Part 12 of Schedule 1 to the amending Act apply in relation to an application for the termination of an enterprise agreement made under section 225:
(a) on or after the commencement of that Part; or
(b) before the commencement of that Part if, at that commencement, the FWC has neither terminated nor refused to terminate the agreement.
Division 11 -- Amendments made by Part 14 of Schedule 1 to the amending Act
66 Genuine agreement in relation to enterprise agreements
Despite the amendments made by Part 14 of Schedule 1 to the amending Act, Part 2 - 4 continues to apply, as if the amendments had not been made, in relation to:
(a) any proposed enterprise agreement for which the notification time occurs before the commencement of Part 14 of that Schedule; and
(b) any variation of an enterprise agreement for which the employer's request that affected employees for the variation approve the variation by voting for it occurs before that commencement.
Division 12 -- Amendments made by Part 16 of Schedule 1 to the amending Act
67 The better off overall test
The amendments made by Part 16 of Schedule 1 to the amending Act apply in relation to enterprise agreements made on and after the commencement of that Part.
Division 13 -- Amendments made by Part 17 of Schedule 1 to the amending Act
68 Validation of approval of enterprise agreement
Section 602A of the amended Act applies in relation to an approval given by the FWC before, at or after the commencement of that section.
69 Validation of approval of variation of enterprise agreement
Section 602B of the amended Act applies in relation to an approval given by the FWC before, at or after the commencement of that section.
Division 14 -- Amendments made by Part 18 of Schedule 1 to the amending Act
70 Serious breach declarations
Despite the amendments made to the following provisions of this Act by Part 18 of Schedule 1 to the amending Act, those provisions continue to apply, in relation to an application made under section 234 of this Act before that Part commences, as if the amendments had not been made:
(a) Subdivision B of Division 8 of Part 2 - 4;
(b) Division 4 of Part 2 - 5;
(c) section 274;
(d) section 413.
71 Intractable bargaining declarations
In making a declaration under section 235 of the amended Act, the FWC may have regard to conduct engaged in before or after the commencement of Subdivision B of Division 8 of Part 2 - 4 of the amended Act.
Division 15 -- Amendments made by Part 19 of Schedule 1 to the amending Act
(2) The amendments of sections 437 and 440 made by Division 2 of Part 19 of Schedule 1 to the amending Act apply in relation to an application made under subsection 437(1) of this Act on or after the commencement of that Division.
(3) Subject to subclause (2) of this clause, the amendments of Part 3 - 3 made by Division 2 of Part 19 of Schedule 1 to the amending Act apply in relation to a protected action ballot order if the application for the order is made under subsection 437(1) of this Act on or after the commencement of that Division.
(4) The amendments of section 539 made by Division 2 of Part 19 of Schedule 1 to the amending Act apply in relation to a contravention, or proposed contravention, of a civil remedy provision referred to in item 18, 19 or 20 of the table in subsection 539(2) that occurs on or after the commencement of that Division.
(5) The amendment made by Division 3 of Part 19 of Schedule 1 to the amending Act applies in relation to an application made under subsection 437(1) of this Act on or after the commencement of that Division.
(6) The amendments of Part 3 - 3 made by Division 4 of Part 19 of Schedule 1 to the amending Act apply in relation to employee claim action if the application for the relevant protected action ballot order is made under subsection 437(1) of this Act on or after the commencement of that Division.
(7) The amendments of Part 3 - 3 made by Division 5 of Part 19 of Schedule 1 to the amending Act apply in relation to a protected action ballot order if the application for the order is made under subsection 437(1) of this Act on or after the commencement of that Division.
Division 16 -- Amendments made by Part 21 of Schedule 1 to the amending Act
73 Variation of single interest employer agreement to add employer and employees
Subdivision AD of Division 7 of Part 2 - 4 of the amended Act, as inserted by Part 21 of Schedule 1 to the amending Act, applies in relation to variations of single interest employer agreements on or after the commencement of that Part of the amending Act, if the agreements were made after that commencement.
74 Application to existing applications for declarations
(1) This clause applies in relation to applications for declarations made under subsection 247(1) of the Act immediately before the commencement of Part 21 of Schedule 1 to the amending Act if, immediately before that commencement, the Minister had not made a decision on the application.
(2) Despite the amendments of Division 10 of Part 2 - 4 made by Part 21 of Schedule 1 to the amending Act, that Division continues to apply as if those amendments had not been made.
75 Application to existing Ministerial declarations where application for authorisation not made
(1) This clause applies in relation to declarations made under subsection 247(3) of the Act before the commencement of Part 21 of Schedule 1 to the amending Act if, immediately before that commencement, 2 or more of the employers to whom the declaration relates had not made an application for an authorisation.
(2) If, after that commencement, those employers make an application for an authorisation, then, despite the amendments of Division 10 of Part 2 - 4 made by Part 21 of Schedule 1 to the amending Act, that Division continues to apply in relation to the application as if those amendments had not been made.
76 Application to existing applications for authorisations
(1) This clause applies in relation to applications for authorisations made under subsection 248(1) of the Act immediately before the commencement of Part 21 of Schedule 1 to the amending Act if, immediately before that commencement, the FWC had not made a decision on the application.
(2) Despite the amendments of Division 10 of Part 2 - 4 made by Part 21 of Schedule 1 to the amending Act, that Division continues to apply as if those amendments had not been made.
77 Effect of making a single interest employer authorisation
Paragraph 172(5)(b) of the amended Act, as inserted by Part 21 of Schedule 1 to the amending Act, applies in relation to single interest employer authorisations on or after the commencement of that Part if the authorisation was made on or after that commencement.
78 Application to existing applications to vary authorisations
The amendments to section 251 made by Part 21 of Schedule 1 to the amending Act do not apply in relation to applications for variations made before the commencement of that Part.
78A Application to authorisations in operation before commencement
(1) This clause applies in relation to 2 or more employers that were, immediately before the commencement of Part 21 of Schedule 1 to the amending Act, specified in a single interest employer authorisation made under subsection 249(1) that is in operation.
(2) For the purposes of section 172 of the amended Act, the employers are taken to be related employers within the meaning of subsection 172(5A).
78B Application to certain authorisations made after commencement
If, because of the operation of clause 74, 75 or 76 of this Part, the FWC makes a single interest employer authorisation after the commencement of Part 21 of Schedule 1 to the amending Act:
(a) Division 10 of Part 2 - 4 of this Act, as in force immediately before that commencement, continues to apply in relation to the authorisation; and
(b) for the purposes of section 172 of the amended Act, the employers specified in the authorisation are taken to be related employers within the meaning of subsection 172(5A).
78C Availability of scope orders
Despite the repeal of subsection 238(2) of this Act by Part 21 of Schedule 1 to the amending Act, that subsection continues to apply after the commencement of that Part to proposed single - enterprise agreements in relation to which a single interest employer authorisation is in operation.
Division 17 -- Amendments made by Part 23 of Schedule 1 to the amending Act
80A Approval of enterprise agreement--requirement relating to genuine agreement of employers
Subsection 186(2AA) of the amended Act applies in relation to an enterprise agreement made after the commencement of that subsection.
81 Approval of cooperative workplace agreement--requirement relating to representation
Subsection 186(2A) of the amended Act applies in relation to a cooperative workplace agreement made after the commencement of that subsection.
82 Variation of cooperative workplace agreement to add employer and employees
Subdivision AC of Division 7 of Part 2 - 4 of the amended Act applies in relation to a variation of a cooperative workplace agreement, if the agreement was made after the commencement of that Subdivision.
Division 17A -- Amendments made by Part 23A of Schedule 1 to the amending Act
82A Multi - enterprise agreements and general building and construction work
Subsection 186(2B) of the amended Act, as inserted by Part 23A to the amending Act, applies in relation to:
(a) the approval of an enterprise agreement, if the agreement is made after the commencement of that Part; and
(b) the approval of a variation of an enterprise agreement, if the variation is made after the commencement of that Part.
Division 18 -- Amendments made by Part 24 of Schedule 1 to the amending Act
(1) The following provisions apply in relation to small claims proceedings commenced on or after the commencement of Part 24 of Schedule 1 to the amending Act:
(a) the amendment of paragraph 548(2)(a) of this Act made by that Part;
(b) subsection 548(2A) as inserted by that Part.
(2) Subsections 548(10) and (11), as inserted by Part 24 of Schedule 1 to the amending Act, apply in relation to:
(a) small claims proceedings commenced, but not finally determined, before the commencement of that Part; and
(b) small claims proceedings commenced after the commencement of that Part.
Division 19 -- Amendments made by Part 25 of Schedule 1 to the amending Act
Division 4 of Part 3 - 6 of this Act, as inserted by Part 25 of Schedule 1 to the amending Act, applies in relation to employment advertised on or after the day that is one month after the commencement of Part 25 of Schedule 1 to the amending Act (whether the employment was first advertised before, on or after that day).
Division 20 -- Amendments made by Part 25B of Schedule 1 to the amending Act
85 Requests for extension of period of unpaid parental leave
The amendments made by Part 25B of Schedule 1 to the amending Act apply in relation to a request made under subsection 76(1) of this Act on or after the commencement of that Part.
Part 14 -- Amendments made by the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023
In this Part:
"amended Act" means this Act as amended by the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 .
"amending Act" means the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 .
Division 2 -- Amendments made by Schedule 2 to the amending Act
87 Amendments about unpaid parental leave
(1) The amendments made by Schedule 2 to the amending Act apply in relation to an employee in respect of a child if the child's date of birth, or day of placement, is on or after 1 July 2023.
(2) If:
(a) before the commencement of Schedule 2 to the amending Act, an employee gave notice to the employee's employer in accordance with subsection 74(1) of the taking of a period of unpaid parental leave under section 72 in relation to a child; and
(b) the period of unpaid parental leave is covered by paragraph 72(3)(a) or (4)(a); and
(c) the child's date of birth, or day of placement, is on or after 1 July 2023;
the period of unpaid parental leave is to be treated, after the commencement of Schedule 2 to the amending Act, as a continuous period of unpaid parental leave under section 71 of the amended Act.
(3) If:
(a) before the commencement of Schedule 2 to the amending Act, an employee gave notice to the employee's employer in accordance with subsection 74(1) of the taking of a period of concurrent leave under subsection 72(5) in relation to a child; and
(b) the child's date of birth, or day of placement, is on or after 1 July 2023;
the period of concurrent leave is to be treated, after the commencement of Schedule 2 to the amending Act, as a period of flexible unpaid parental leave under section 72A of the amended Act.
(4) If:
(a) before the commencement of Schedule 2 to the amending Act, an employee gave notice to the employee's employer in accordance with subsection 74(1) of the taking of a period of unpaid parental leave under section 71, 72 or 72A in relation to a child; and
(b) the child's date of birth, or day of placement, is on or after 1 July 2023;
then:
(c) the employee may give the employer a written notice (an amendment notice ) that makes amendments to the subsection 74(1) notice that are consistent with the amended Act; and
(d) if the employee gives an amendment notice to the employer in relation to the child:
(i) the amendments made by the amendment notice must not take effect until at least 4 weeks after the amendment notice is given to the employer; and
(ii) any requirement imposed by this Act (other than subsection 74(4) or (4B)) in relation to the period within which the employer is to be given written notice of the taking of unpaid parental leave is waived for the taking of the unpaid parental leave covered by the amendment notice; and
(e) the employee is not entitled to give more than one amendment notice to the employer in relation to the child.
Division 3 -- Amendments made by Schedule 3 to the amending Act
88 Superannuation--reduction of employer's liability to the extent of superannuation charge payments
Subsection 149B(2), as inserted by Part 2 of Schedule 3 to the amending Act, applies in relation to an employer's obligation to make superannuation contributions on behalf of an employee, whether the requirements of that subsection are satisfied before or after the commencement of that Part.
Division 4 -- Amendments made by Schedule 4 to the amending Act
89 Interaction of a workplace determination with an earlier enterprise agreement
The amendments made by Schedule 4 to the amending Act apply in relation to:
(a) an enterprise agreement that applies to an employee in relation to particular employment before, on or after the commencement of that Schedule; and
(b) a workplace determination that:
(i) covers the employee in relation to the same employment; and
(ii) comes into operation before, on or after the commencement of that Schedule.
Division 5 -- Amendments made by Schedule 5 to the amending Act
90 Employee authorised deductions
(1) An authorisation made for the purposes of paragraph 324(1)(a) that is in force immediately before the commencement of Schedule 5 continues in force, after the commencement, until it is withdrawn.
(2) An authorisation covered by subclause (3) that is in force immediately before the commencement of Schedule 5:
(a) is taken to be, and taken always to have been, made in compliance with section 324 as in force immediately before the commencement; and
(b) continues in force, after the commencement, until it is withdrawn.
(3) An authorisation is covered by this subclause if the authorisation:
(a) was purportedly made for the purposes of paragraph 324(1)(a) as in force immediately before the commencement of Schedule 5; and
(b) purportedly authorises multiple or ongoing deductions for amounts as varied from time to time; and
(c) would, after the commencement, comply with section 324 of the amended Act.
(4) However, paragraph (2)(a) does not affect rights or liabilities arising between parties to proceedings:
(a) in which judgment is reserved by a court before the commencement of Schedule 5; or
(b) which have been heard and finally determined by a court before the commencement;
to the extent those rights or liabilities arose from, or were affected by, an authorisation covered by subclause (3).
Part 15 -- Amendments made by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023
In this Part:
"amended Act" means this Act as amended by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 .
"amending Act" means the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 .
Division 2 -- Amendments made by Part 2 of Schedule 1 to the amending Act
Despite the amendment made by item 28 of Part 2 of Schedule 1 to the amending Act, section 121, as in force immediately before the commencement of that item, continues to apply in relation to the termination of an employee's employment if any of the following occurred before that commencement:
(a) the termination of the employee;
(b) any other termination covered by that section as amended that caused the employer to become a small business employer.
Division 3 -- Amendments made by Part 6 of Schedule 1 to the amending Act
93 Application of amendments--regulated labour hire arrangement orders
Application of requirement to pay protected rate of pay
(1) Section 306F of the amended Act (protected rate of pay payable to employees if a regulated labour hire arrangement order is in force) applies on and after 1 November 2024 regardless of whether any agreement resulting in the performance of work by a regulated employee is entered into before, on or after that day.
Anti - avoidance provisions apply retrospectively in relation to certain conduct and schemes
(2) Division 4 of Part 2 - 7A of the amended Act (anti - avoidance) applies, on and after the introduction day, in relation to:
(a) conduct engaged in; or
(b) a scheme that is entered into, begun to be carried out or carried out;
on or after the introduction day.
(3) In this section:
"introduction day" means the day on which the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 was introduced into the Parliament.
Division 4 -- Amendments made by Part 7 of Schedule 1 to the amending Act
94 Application of section 149E of amended Act
(1) Section 149E (delegates' rights terms) of the amended Act applies in relation to a modern award that is in operation on or after 1 July 2024, whether or not the award was made before that day.
(2) However, a modern award is not invalid on or after 1 July 2024 only because it does not include a delegates' rights term.
95 FWC to vary certain modern awards
(1) This clause applies in relation to a modern award if the award:
(a) is made before 1 July 2024; and
(b) is to be in operation on that day.
(2) The FWC must, by 30 June 2024, make a determination varying the modern award to include a delegates' rights term.
(3) A determination made under subclause (2) comes into operation on (and takes effect from) 1 July 2024.
(4) Section 168 applies to a determination made under subclause (2) as if it were a determination made under Part 2 - 3.
96 Application of section 205A of amended Act
(1) Section 205A (enterprise agreements to include delegates' rights terms etc.) of the amended Act does not apply in relation to an enterprise agreement if:
(a) before 1 July 2024, the employer concerned asks the employees to approve the agreement by voting for it; and
(b) by that vote, the employees approve the agreement; and
(c) the FWC approves the agreement.
(2) In deciding, after 1 July 2024, whether to approve the agreement mentioned in subclause (1) (in that form), the FWC must disregard section 205A.
97 Application of subsections 273(6) and (7) of amended Act
(1) Subsections 273(6) and (7) (delegates' rights terms) of the amended Act apply in relation to a workplace determination made on or after 1 July 2024.
(2) However, a workplace determination is not invalid on or after 1 July 2024 only because it does not include a delegates' rights term.
Division 5 -- Amendments made by Part 14 of Schedule 1 to the amending Act
98 Offence relating to failure to pay certain amounts as required
Subsection 327A(1) of the amended Act applies in relation to conduct that occurs after the commencement of Part 14 of Schedule 1 to the amending Act, including conduct that occurs after that commencement that is part of a course of conduct that began before that commencement.
Division 6 -- Amendments made by Part 14A of Schedule 1 to the amending Act
(1) The amendment of subsection 409(6A) of this Act made by Part 14A of Schedule 1 to the amending Act applies in relation to industrial action to the extent that the industrial action occurs, or is to occur, on or after the commencement of that Part.
(2) However, the amendment does not apply in relation to doing any of the following before that commencement in relation to industrial action, even if the industrial action occurs, or was to occur, on or after that commencement:
(a) organising the industrial action;
(b) threatening to engage in the industrial action;
(c) threatening to organise the industrial action;
(d) engaging in any other conduct in relation to the industrial action.
(3) For the purposes of subsection 409(6A) of this Act, as amended by Part 14A of Schedule 1 to the amending Act, it does not matter whether a contravention of an order made under section 448A of this Act occurred before, on or after the commencement of that Part.
Part 16 -- Main amendments made by the Fair Work Legislation Amendment (Closing Loopholes No. 2 ) Act 2024
In this Part:
"amended Act" means this Act as amended by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 .
"amending Act" means the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 .
Division 2 -- Amendments made by Part 1 of Schedule 1 to the amending Act
101 Resolving uncertainties and difficulties about interaction between fair work instruments and the definition of casual employee and employee choice
(1) The FWC may make a determination varying a fair work instrument that is a modern award, enterprise agreement or workplace determination that was made before the commencement of this clause:
(a) for an enterprise agreement or workplace determination--on application by an employer, employee or employee organisation covered by the enterprise agreement or workplace determination; or
(b) for a modern award:
(i) by the FWC on its own initiative; or
(ii) on application by an employer organisation or employee organisation entitled to represent the industrial interests of an employer or employee covered by the award.
(2) The FWC may make a determination varying the instrument:
(a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and any of the following:
(i) the definition of casual employee in section 15A of the amended Act (including to deal with uncertainty or difficulty arising from the circumstances in which employees are to be employed as casual employees under the agreement);
(ii) the provisions of Division 4A of Part 2 - 2 of the amended Act; or
(b) to make the instrument operate effectively with that section or those provisions.
(3) A variation of a fair work instrument under this clause operates from the day specified in the determination, which may be a day before the determination is made.
(4) If the determination relates to a modern award, the FWC must publish the award as varied as soon as practicable on the FWC's website or by any other means the FWC considers appropriate.
Application of definition of casual employee
(1) Section 15A of the amended Act applies on and after commencement in relation to employment relationships entered into before, on or after commencement.
(2) Despite subclause (1), for the purposes of applying section 15A of the amended Act on and after commencement in relation to employment relationships entered into before commencement:
(a) conduct of an employer and employee that occurred before commencement is to be disregarded for the purposes of applying subsections 15A(2) and (3) in relation to that employee; and
(b) if an employee's contract of employment immediately before commencement included a term of a kind referred to in subsection 15A(4)--that subsection is taken not to apply in relation to the employee for the remainder of the term of that contract.
Continuing casual employees
(3) For the purposes of subclause (1), an employee who was, immediately before commencement, a casual employee of an employer within the meaning of section 15A as in force at that time, is taken to be a casual employee of the employer within the meaning of section 15A of the amended Act on and after commencement.
Application of employee choice and casual conversion provisions
(5) The amendments of Division 4A of Part 2 - 2 made by the amending Act apply on and after commencement in relation to employment relationships entered into before, on or after commencement.
(6) For the purposes of applying subclause (5) in relation to employment relationships entered into before commencement:
(a) any period of employment as a casual employee that occurred before commencement is to be disregarded for the purposes of paragraphs 66AAB(c) and (d) of the amended Act; and
(b) paragraph 66AAB(d) of the amended Act is taken to include a requirement that in the period referred to in that paragraph the employee has not:
(ia) been given a notice before commencement under subsection 66C(3) that the employer is not required to make an offer to the employee under section 66B; or
(ib) been given a notice after commencement under subsection 66C(3) that the employer is not required to make an offer to the employee under section 66B (as those sections continue to apply because of subclauses (6AA) and (6AB)); or
(ic) declined before commencement, under section 66D, an offer made by the employer under section 66B; or
(id) declined after commencement, under section 66D, an offer made by the employer under section 66B (as those sections continue to apply because of subclauses (6AA) and (6AB)); or
(i) been given a response before commencement by the employer under section 66G refusing a request made by the employee under section 66F; or
(ii) been given a response after commencement by the employer under section 66G refusing a request made by the employee under section 66F (as those sections continue to apply because of subclauses (6A) and (6B)).
(6AA) Despite subclause (5), sections 66B and 66C as in force immediately before commencement continue to apply after commencement for a period of 6 months from commencement in relation to employment relationships entered into before commencement where the employer is not a small business employer at commencement.
(6AB) Despite subclause (5), sections 66D and 66E as in force immediately before commencement continue to apply after commencement in relation to:
(a) an offer made before commencement by an employer under section 66B for which, immediately before commencement, a response under section 66D or a notice under section 66E had not been given; or
(b) an offer made after commencement by an employer under section 66B, or a notice given after commencement under subsection 66C(3) that the employer has decided not to make an offer to the employee under section 66B (as those sections continue to apply because of subclause (6AA)).
(6A) Despite subclause (5), section 66F as in force immediately before commencement continues to apply after commencement in relation to employment relationships entered into before commencement for a period of:
(a) for an employer that is a small business employer at commencement--12 months from commencement; or
(b) for an employer that is not a small business employer at commencement--6 months from commencement.
(6B) Despite subclause (5), sections 66G to 66J as in force immediately before commencement continue to apply after commencement in relation to:
(a) a request made before commencement by an employee under section 66F for which, immediately before commencement, a response under section 66G or a notice under section 66J had not been given; or
(b) a request made after commencement by an employee under section 66F (as that section continues to apply because of subclause (6A)).
(7) Despite subclause (5), sections 66M, 548 and 739 as in force immediately before commencement continue to apply after commencement to:
(a) disputes that arose before commencement relating to the operation of Division 4A of Part 2 - 2; and
(aa) disputes that arise after commencement relating to the operation of sections 66B to 66E (as those sections continue to apply because of subclauses (6AA) and (6AB)); and
(b) disputes that arise after commencement relating to the operation of sections 66F to 66J (as those sections continue to apply because of subclauses (6A) and (6B)).
(8) In this clause:
"commencement" means the commencement of Part 1 of Schedule 1 to the amending Act.
For the purposes of applying section 66L of this Act during the period beginning when this clause commences and ending when Part 1 of Schedule 1 to the amending Act commences, the reference to "this Division" in that provision is taken to include a reference to that Division as amended by that Part.
Division 3 -- Amendments made by Part 4 of Schedule 1 to the amending Act
(1) Subsections 58(4) and (5), as inserted by the amending Act, apply in relation to single - enterprise agreements made after the commencement of Part 4 of Schedule 1 to that Act, whether the single interest employer agreement or supported bargaining agreement was made before or after that commencement.
(2) Section 180B and subsection 240A(4), as inserted by the amending Act, apply in relation to single interest employer agreements and supported bargaining agreements whether made before or after the commencement of Part 4 of Schedule 1 to that Act.
(3) Subsections 236(1B) and 238(2), as inserted by the amending Act, apply in relation to applications made after the commencement of Part 4 of Schedule 1 to that Act, whether the single interest employer agreement or supported bargaining agreement was made before or after that commencement.
105 Variation of supported bargaining authorisations
Subsection 245(2), as inserted by the amending Act, applies in relation to enterprise agreements and workplace determinations that come into operation before or after the commencement of Part 4 of Schedule 1 to that Act.
106 Application of better off overall test to replacement agreements
Sections 193 and 193A, as amended by the amending Act, apply in relation to single - enterprise agreements made on or after the commencement of Part 4 of Schedule 1 to that Act, whether the supported bargaining agreement or single interest employer agreement was made before or after that commencement.
Division 4 -- Amendments made by Part 5 of Schedule 1 to the amending Act
107 Model terms and enterprise agreements
(1) Despite the amendments made by Part 5 of Schedule 1 to the amending Act, sections 202, 205 and 737, as in force immediately before the commencement of that Part, continue to apply in relation to an enterprise agreement if:
(a) before that commencement, the employer concerned asks the employees to approve the agreement by voting for it; and
(b) by that vote, the employees approve the agreement; and
(c) the FWC approves the agreement.
(2) In deciding, after the commencement of that Part, whether to approve the agreement mentioned in subclause (1) (in that form), the FWC must disregard the amendments made by that Part.
108 Model terms and copied State instruments
Despite the amendments made by Part 5 of Schedule 1 to the amending Act, section 768BK, as in force immediately before the commencement of that Part, continues to apply in relation to a model term that is taken, before that commencement, to be a term of a copied State instrument.
109 Disallowance--model terms made before commencement
Section 42 (disallowance) of the Legislation Act 2003 does not apply to a determination made in the exercise of a power under subsection 202(5), 205(3), 737(1) or 768BK(1A) of the amended Act, before the commencement of Part 5 of Schedule 1 to the amending Act, relying on subsection 4(1) of the Acts Interpretation Act 1901 .
Note: Subsection 4(1) of the Acts Interpretation Act 1901 provides for the exercise of powers between the passing and commencement of an Act.
Division 5 -- Amendments made by Part 5A of Schedule 1 to the amending Act
110 Application of amendments--intractable bargaining workplace determinations
(1) This clause applies to the following provisions:
(a) section 270A of the amended Act;
(b) subsection 274(3) of the amended Act.
(2) The provisions apply in relation to determinations made on or after the commencement of Part 5A of Schedule 1 to the amending Act (including determinations in relation to which the declaration concerned, or the application for the declaration concerned, was made before that commencement).
(3) The provisions also apply in relation to determinations made before that commencement, in the circumstances specified in clause 111.
111 Application of amendments to intractable bargaining workplace determinations made before commencement
(1) This clause applies in relation to an intractable bargaining workplace determination made before the commencement of Part 5A of Schedule 1 to the amending Act (the original determination ).
(2) On application by an employer, employee or employee organisation covered by the original determination, the FWC must make a determination (a variation ) varying the original determination where required so as to give effect to the provisions to which clause 110 applies.
(3) An application under subclause (2) must be made before the end of the period of 12 months commencing on the day Part 5A of Schedule 1 to the amending Act commences.
(4) The FWC may make a variation despite paragraph 603(3)(c).
(5) Any variation must be made by a Full Bench.
(6) A variation operates from the day specified by the FWC in the variation, which must not be a day before the variation is made.
Division 5A -- Amendments made by Part 8 of Schedule 1 to the amending Act
In this Division:
"commencement" means the commencement of Part 8 of Schedule 1 to the amending Act.
111B Application of section 149F of the amended Act
(1) Section 149F (right to disconnect term) of the amended Act applies in relation to a modern award that is in operation on or after commencement, whether or not the award was made before commencement.
(2) However, a modern award is not invalid on or after commencement only because it does not include a right to disconnect term.
111C FWC to vary certain modern awards
(1) This clause applies in relation to a modern award if the award:
(a) is made before commencement; and
(b) is to be in operation on commencement.
(2) The FWC must, by the day before commencement, make a determination varying the modern award to include a right to disconnect term.
(3) A determination made under subclause (2) comes into operation on (and takes effect from) commencement.
(4) Section 168 applies to a determination made under subclause (2) as if it were a determination made under Part 2 - 3.
111D Application of amendments to small business employers
The amendments made by Part 8 of Schedule 1 to the amending Act do not apply in relation to an employer that is a small business employer on the day of commencement, or an employee of the employer, for a period of 12 months beginning on that day.
Division 6 -- Amendments made by Part 9 of Schedule 1 to the amending Act
Section 357, as amended by Part 9 of Schedule 1 to the amending Act, applies in relation to representations made on or after the commencement of that Part.
Division 7 -- Amendments made by Part 10 of Schedule 1 to the amending Act
113 Application of amendments--right of entry
The amendments of subsection 510(1) made by Part 10 of Schedule 1 to the amending Act apply in relation to each entry permit held by a permit holder whether issued before, on or after the commencement of that Part.
Division 8 -- Amendments made by Part 11 of Schedule 1 to the amending Act
114 Penalties for contravention of civil remedy provisions
Changes to amounts of pecuniary penalties and serious contraventions
(1) The amendments of Part 4 - 1 made by Division 1 of Part 11 of Schedule 1 to the amending Act apply in relation to conduct engaged in after the commencement of that Division.
(2) For the purposes of section 557, conduct engaged in before that commencement cannot constitute the same course of conduct as conduct engaged in after that commencement.
Changes relating to underpayments
(3) The amendments of Part 4 - 1 made by Division 3 of Part 11 of Schedule 1 to the amending Act apply in relation to conduct engaged in after the commencement of that Division.
(4) For the purposes of section 557, conduct engaged in before that commencement cannot constitute the same course of conduct as conduct engaged in after that commencement.
Part 17 -- Amendments made by Part 15 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024
In this Part:
"amended Act" means this Act as amended by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 .
"amending Act" means the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 .
"commencement" means the commencement of item 237 of Part 15 of Schedule 1 to the amending Act.
"old Act" means this Act as in force immediately before commencement.
Division 2 -- Transitional provisions
116 Relationships in existence as at commencement or entered into on or after commencement
(1) Subject to this Schedule and sections 15AB to 15AD of the amended Act, section 15AA of the amended Act applies on and after commencement to the following:
(a) a relationship between an individual and a person entered into before commencement that is in existence as at commencement;
(b) a relationship between an individual and a person entered into on or after commencement.
(2) Despite section 40A, section 7 of the Acts Interpretation Act 1901 , as in force from time to time, applies in relation to the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act.
Note: Section 7 of the Acts Interpretation Act 1901 provides for the effect of amendment and repeal of provisions of Acts, including in relation to rights, liabilities, penalties and forfeitures etc. accrued or incurred before the repeal.
117 References to employees etc. in fair work instruments made before commencement
(1) This clause applies to a fair work instrument that:
(a) was made before commencement; and
(b) is in operation on or after commencement.
(2) A reference in the fair work instrument to an employee or an employer is taken, on and after commencement, to include a reference to an employee or an employer, as the case requires, within the meaning of section 15AA of the amended Act, and, to avoid doubt, does not include a reference to an individual in respect of whom an opt out notice has been given and not revoked.
118 Entitlements determined by reference to length of a period of employment etc.
(1) This clause applies if:
(a) immediately before commencement, an individual was not an employee of a person within the ordinary meaning of that expression; and
(b) because of the operation of section 15AA of the amended Act, on commencement, the individual becomes an employee of the person, within the ordinary meaning of that expression, in respect of that relationship.
(2) For the purposes of determining whether the individual has a right or entitlement under the amended Act or under a fair work instrument in respect of the employment of the individual, being a right or entitlement calculated by reference to:
(a) the individual's length of service (however described) as an employee; or
(b) a minimum period of employment (however described) of the individual;
the nature of the relationship between the individual and the person in respect of a period or periods before commencement is to be ascertained in accordance with the old Act.
119 Old Act applies to proceedings on foot as at commencement
(1) Despite the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act, the old Act continues to apply, on and after commencement, as if that amendment had not been made, in relation to the following:
(a) an application made, or proceedings on foot, as at commencement, other than an application or proceedings prescribed by the regulations;
(b) an application for review of, or an appeal relating to, an application or proceedings referred to in paragraph (a) (whether the application for review was made, or the appeal proceedings were brought, before, on or after commencement).
(2) For the purposes of paragraph (1)(a), an application or proceedings are on foot until all rights of review and appeal in relation to the application or proceedings have expired or have been exhausted.
120 FWC power to deal with uncertainties or difficulties arising from the operation of section 15AA of the amended Act
(1) The FWC may make a determination varying a fair work instrument in order to resolve an uncertainty or difficulty relating to the operation or effect of the fair work instrument, being an uncertainty or difficulty arising as a result of, or in connection with, the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act.
(2) The FWC may make a determination under subclause (1) varying a modern award:
(a) on its own initiative; or
(b) on application by an employer, employee, organisation or outworker entity 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 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.
(3) The FWC may make a determination under subclause (1) varying an enterprise agreement or a workplace determination:
(a) on its own initiative; or
(b) on application by any of the following:
(i) one or more of the employers covered by the enterprise agreement or workplace determination;
(ii) an employee covered by the enterprise agreement or workplace determination;
(iii) an employee organisation covered by the enterprise agreement or workplace determination.
(4) The FWC may make a determination under subclause (1) varying an FWC order:
(a) on its own initiative; or
(b) on application:
(i) by a person affected by the order; or
(ii) if the FWC order is of a kind prescribed by the regulations--by a person prescribed by the regulations in relation to that kind of order.
(5) A variation of a fair work instrument under this clause operates from the day specified in the determination, which may be a day before the determination was made.
(6) The regulations may provide as follows:
(a) that this clause applies, or does not apply, to a specified fair work instrument or a specified class of fair work instrument;
(b) that this clause applies, or does not apply, to a specified uncertainty or difficulty, or a specified class of uncertainty or difficulty.
Division 3 -- Regulations about transitional matters
121 General power for regulations to deal with transitional etc. matters
(1) The regulations may make provisions of a transitional, application or saving nature in relation to the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act.
(2) The regulations may make provisions of a transitional, application or saving nature in relation to the following:
(a) a person becoming an employer because of the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act;
(b) an individual becoming an employee because of the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act.
122 Other general provisions about regulations
(1) This clause applies to regulations made for the purposes of this Part.
(2) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to the regulations.
(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 this 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 this Act.
Part 18 -- Amendments made by Part 16 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024
In this Part:
"amended Act" means this Act as amended by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 .
"amending Act" means the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 .
"commencement" means the commencement of item 238 of Part 16 of Schedule 1 to the amending Act.
"old Act" means this Act as in force immediately before commencement.
Division 2 -- Transitional provisions
124 Unfair deactivation and unfair termination
(1) Part 3A - 3 (unfair deactivation or unfair termination of regulated workers) applies to a deactivation or termination that occurs after commencement.
(2) For the purposes of determining under paragraph 536LD(c) whether an employee - like worker has been performing work for a period of at least 6 months, a period or periods before commencement are not to be counted.
(3) For the purposes of determining under paragraph 536LE(c) whether a regulated road transport contractor has been performing work for a period of at least 6 months, a period or periods before commencement are not to be counted.
125 New applications relating to unfair contracts
An application in relation to a services contract may be made under section 536ND only if the contract was entered into on or after commencement.
126 Services contracts entered into before commencement
(1) This section applies to a services contract entered into before commencement.
(2) Despite the amendments of the Independent Contractors Act 2006 made by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 , the Independent Contractors Act 2006 continues to apply to the services contract after commencement as if those amendments had not been made.