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FAIR WORK ACT 2009 - SECT 306M

Making an alternative protected rate of pay order

Application of this section

  (1)   This section applies if:

  (a)   a regulated labour hire arrangement order is in force that covers a regulated host, an employer and a regulated employee of the employer performing work for the regulated host; or

  (b)   a regulated labour hire arrangement order has been made but is not yet in force that covers a regulated host, an employer and a regulated employee of the employer performing work for the regulated host; or

  (c)   an application for a regulated labour hire arrangement order that would cover a regulated host, an employer and a regulated employee of the employer performing work for the regulated host has been made to the FWC under section   306E but has not been finally determined.

Alternative protected rate of pay order

  (2)   The FWC may make an order (an alternative protected rate of pay order ) specifying:

  (a)   how the rate of pay at which the employer must pay the regulated employee in connection with the work is to be worked out; and

  (b)   that the employer must pay the rate of pay worked out in that way to the regulated employee in connection with the work.

Rate of pay

  (3)   The rate of pay for the purposes of paragraph   (2)(a) must be the protected rate of pay for the regulated employee that would apply if the references in section   306F to the host employment instrument covered by the regulated labour hire arrangement order were instead references to a specified covered employment instrument that:

  (a)   applies to a related body corporate of the regulated host and would apply to a person employed by the related body corporate to perform work of that kind; or

  (b)   applies to the regulated host and would apply to a person employed by the regulated host to perform work of that kind in circumstances that do not apply in relation to the employee.

Who may apply

  (4)   The FWC may make an alternative protected rate of pay order only on application by the employee, the employer, the regulated host or an organisation entitled to represent the industrial interests of any of those persons.

Time for making

  (5)   The FWC must decide whether or not to make the order as quickly as possible after the application is made.

Criteria for making etc.

  (6)   The FWC must not make the order unless satisfied that:

  (a)   it would be unreasonable for the requirement in section   306F, that the employer pay the regulated employee at no less than the protected rate of pay, to apply in connection with that work (including, for example, because the rate would be insufficient or would be excessive); and

  (b)   there is a covered employment instrument of the kind referred to in paragraph   (3)(a) or (b).

  (7)   Before deciding whether to make the order, the FWC must seek the views of the following:

  (a)   the employer;

  (b)   the regulated host;

  (c)   the employer to which a covered employment instrument to be specified in the order for the purposes of subsection   (3) applies (if not the regulated host);

  (d)   the employee;

  (e)   employees to whom the covered employment instrument to be specified in the order for the purposes of subsection   (3) applies;

  (f)   organisations entitled to represent the industrial interests of any of the persons referred to in paragraphs   (a) to (e).

  (8)   In deciding whether to make the order, the FWC must have regard to:

  (a)   whether the host employment instrument covered by the regulated labour hire arrangement order applies only to a particular class or group of employees; and

  (b)   whether, in practice, the host employment instrument has ever applied to an employee at a classification, job level or grade that would be applicable to the regulated employee; and

  (c)   the views (if any) of any persons or organisations mentioned in subsection   (7);

  (d)   the rate of pay that would be payable to the regulated employee in connection with the work if the order were made; and

  (e)   any other matter the FWC considers relevant.

Exception for short - term arrangements

  (9)   In making an order under this section, the FWC must ensure that, if an exception in section   306G would apply to the requirement to pay the regulated employee at no less than the protected rate of pay, the exception also applies in relation to the requirement to pay the employee at the rate worked out under the alternative protected rate of pay order.


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