Commonwealth Consolidated Acts

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FAIR WORK ACT 2009 - SECT 333F

Exceptions to limitations

  (1)   Subsection   333E(1) does not apply in relation to a contract of employment entered into by a person and an employee if:

  (a)   the employee is engaged under the contract to perform only a distinct and identifiable task involving specialised skills; or

  (b)   the employee is engaged under the contract in relation to a training arrangement; or

  (c)   the employee is engaged under the contract to undertake essential work during a peak demand period; or

  (d)   the employee is engaged under the contract to undertake work during emergency circumstances or during a temporary absence of another employee; or

  (e)   in the year the contract is entered into the amount of the employee's earnings under the contract is above the high income threshold for that year; or

  (f)   the contract relates to a position for the performance of work that:

  (i)   is funded in whole or in part by government funding or funding of a kind prescribed by the regulations for the purposes of this subparagraph; and

  (ii)   the funding is payable for a period of more than 2 years; and

  (iii)   there are no reasonable prospects that the funding will be renewed after the end of that period; or

  (g)   the contract relates to a governance position that has a time limit under the governing rules of a corporation or association of persons; or

  (h)   a modern award that covers the employee includes terms that permit any of the circumstances mentioned in subsections   333E(2) to (4) to occur; or

  (i)   the contract is of a kind prescribed by the regulations for the purposes of this paragraph.

  (2)   For the purposes of paragraph   (1)(e), if under the terms of the contract either of the following apply:

  (a)   the employee is required to work fewer hours than a full - time employee for a year;

  (b)   the employee is required to work for only part of a year;

the high income threshold for that year is taken, for the purposes of that paragraph, to be the amount, or the amount worked out using a method, prescribed by the regulations for the purposes of this subsection.

  (3)   For the purposes of subsection   (2), in determining whether an award/agreement free employee has worked fewer hours than a full - time employee, regard may be had to the following:

  (a)   the hours of work of any other full - time employees or part - time employees of the employer employed in the same position as (or in a position that is comparable to) the position of the employee;

  (b)   the definition of ordinary hours of work in subsection   20(2).

Evidential burden

  (4)   If, in proceedings for a civil penalty order against a person for a contravention of subsection   333E(1), the person wishes to rely on an exception in this section, then the person bears an evidential burden in relation to that matter.


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