FAIR WORK REGULATIONS 2009 (SLI NO 112 OF 2009)

I, QUENTIN BRYCE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Fair Work Act 2009.

Contents

Chapter 1 Introduction

Part 1-1 Introduction

Division 1 Preliminary

1.01 Name of Regulations 11

1.02 Commencement 11

Part 1-2 Definitions

Division 1 Introduction

1.03 Definitions 12

Division 2 The Dictionary

1.04 Meaning of designated outworker term 12

1.05 Meaning of eligible State or Territory court 12

1.06 Meaning of prescribed State industrial authority 13

1.07 Meaning of serious misconduct 13

1.08 Meaning of TCF award 14

Division 4 Other definitions

1.09 Meaning of base rate of pay -- pieceworkers (national system employee) 14

1.10 Meaning of base rate of pay -- pieceworkers (enterprise agreement) 15

1.11 Meaning of ordinary hours of work for award/agreement free employees 15

1.12 Meaning of pieceworker 16

Part 1-3 Application of the Act

Division 2 Interaction with State and Territory laws

1.13 State and Territory laws that are not excluded by section 26 of the Act -- prescribed laws 17

1.14 Act excludes prescribed State and Territory laws 18

1.15 Interaction of modern awards and enterprise agreements with State and Territory laws 18

Division 4 Miscellaneous

1.16 Interaction between fair work instruments and public sector employment laws 19

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 12 Fair Work Information Statements

2.01 Fair Work Ombudsman to prepare and publish Fair Work Information Statement -- content 21

2.02 Fair Work Ombudsman to prepare and publish Fair Work Information Statement -- manner of giving Statement to employees 21

Division 13 Miscellaneous

2.03 What can be agreed to etc. in relation to award/agreement free employees 22

Part 2-4 Enterprise agreements

Division 3 Bargaining and representation during bargaining

2.04 Notice of employee representational rights -- how notice is given 23

2.05 Notice of employee representational rights -- prescribed form 24

2.06 Appointment of bargaining representatives -- independence 24

Division 4 Approval of enterprise agreements

2.07 FWA may approve an enterprise agreement with undertakings -- requirements for signing undertaking 24

2.08 Model flexibility term for enterprise agreement 24

2.09 Model consultation term for enterprise agreement 24

2.10 FWA may approve variation of enterprise agreement with undertaking -- requirements for signing undertaking for variation 25

Division 8 FWA's general role in facilitating bargaining

2.11 What a bargaining order must specify -- bargaining order for reinstatement of employee 25

Part 2-9 Other terms and conditions of employment

Division 2 Payment of wages

2.12 Certain terms have no effect -- reasonable deductions 26

Division 3 Guarantee of annual earnings

2.13 High Income threshold 27

Chapter 3 Rights and responsibilities of employee, employers organisations etc

Part 3-1 General protections

Division 5 Other protections

3.01 Temporary absence -- illness or injury 30

Division 8 Compliance

Subdivision A Contraventions involving dismissal

3.02 Application fees 31

Subdivision B Other contraventions

3.03 Application fees 33

Subdivision C Conference costs

3.04 Schedule of costs 35

Part 3-2 Unfair dismissal

Division 2 Protection from unfair dismissal

3.05 When a person is protected from unfair dismissal -- high income threshold 37

Division 4 Remedies for unfair dismissal

3.06 Remedy -- compensation (amount taken to have been received by the employee) 39

Division 5 Procedural matters

3.07 Application fees 39

3.08 Schedule of costs 41

Part 3-3 Industrial action

Division 2 Protected industrial action

3.09 Purposes prescribed for continuity of employment when employer response action occurs 43

Division 6 Suspension or termination of protected industrial action by FWA

3.10 Persons prescribed for order to suspend or terminate protected industrial action 43

Division 8 Protected action ballots

3.11 FWA may decide on ballot agent other than the Australian Electoral Commission -- requirements for protected action ballot agent 44

3.12 Requirements for independent advisor 45

3.13 Notice of protected action ballot order -- notifying employees 45

3.14 Protected action ballot to be conducted by Australian Electoral Commission or other specified ballot agent -- directions about ballot paper 47

3.15 Compilation of roll of voters 48

3.16 Protected action ballot papers -- form 48

3.17 Report about conduct of protected action ballot -- independent advisor 48

Subdivision G Miscellaneous

3.18 Conduct of protected action ballot -- ballot papers 49

3.19 Conduct of protected action ballot -- scrutiny of ballot 51

3.20 Conduct of protected action ballot -- scrutineers 53

Division 9 Payments relating to periods of industrial action

3.21 Payments relating to partial work bans -- working out proportion of reduction of employee's payments 55

3.22 Payments relating to partial work bans -- form of partial work ban notice 56

3.23 Payments relating to partial work bans -- content of partial work ban notice 56

3.24 Manner of giving notice about partial work ban 57

Part 3-4 Right of entry

Division 3 State or Territory OHS rights

3.25 Meaning of State or Territory OHS law 58

Division 6 Entry permits, entry notices and certificates

3.26 Form of entry permit 58

3.27 Form of entry notice 59

3.28 Form of exemption certificate 59

3.29 Form of affected member certificate 59

Part 3-6 Other rights and responsibilities

Division 2 Notification and consultation relating to certain dismissals

Subdivision A Requirement to notify Centrelink

3.30 Employer to notify Centrelink of certain proposed dismissals -- form of notice 60

Division 3 Employer obligations in relation to employee records and pay slips

Subdivision 1 Employee records

3.31 Records -- administration 61

3.32 Records -- general matters 61

3.33 Records -- pay 62

3.34 Records -- overtime 63

3.35 Records -- averaging of hours 63

3.36 Records -- leave 63

3.37 Records -- superannuation contributions 64

3.38 Records -- individual flexibility arrangement 65

3.39 Records -- guarantee of annual earnings 65

3.40 Records -- termination of employment 65

3.41 Records -- transfer of business 66

3.42 Records -- inspection and copying of a record 67

3.43 Records -- information concerning a record 68

3.44 Records -- accuracy 68

Subdivision 2 Pay slips

3.45 Pay slips -- form 69

3.46 Pay slips -- content 69

Chapter 4 Compliance and enforcement

Part 4-1 Civil remedies

Division 3 Small claims procedure

4.01 Plaintiffs may choose small claims procedure 71

Division 4 General provisions relating to civil remedies and infringement notices

4.02 General 72

4.03 Definitions for Division 4 72

4.04 When an infringement notice can be given 73

4.05 Content of infringement notice 73

4.06 Time for payment of penalty 74

4.07 Extension of time to pay penalty 75

4.08 Withdrawal of infringement notice 75

4.09 Effect of payment of penalty 76

4.10 Refund of penalty 76

Division 5 Unclaimed money

4.11 Unclaimed money 76

Chapter 5 Administration

Part 5-1 Fair Work Australia

Division 5 FWA members

5.01 Delegation by the President of functions and powers of FWA 77

5.02 Dual federal and Territory appointments of Deputy Presidents or Commissioners 77

5.03 Oath and affirmation of office 77

Division 7 Seals and additional powers of the President and the General Manager

5.04 President must provide certain information etc. to the Minister and Fair Work Ombudsman 78

Part 5-2 Office of the Fair Work Ombudsman

Division 3 Office of the Fair Work Ombudsman

5.05 Powers and functions of inspectors -- notification of failure to observe requirements 81

5.06 Powers of inspectors while on premises -- taking samples of goods and substances 81

Chapter 6 Miscellaneous

Part 6-2 Dealing with disputes

Division 2 Dealing with disputes

Subdivision A Model term about dealing with disputes

6.01 Model term about dealing with disputes 82

Part 6-3 Extension of National Employment Standards entitlements

Division 2 Extension of entitlement to unpaid parental leave and related entitlements

6.02 Modification of meaning of base rate of pay for pieceworkers (non-national system employees) 83

6.03 Meaning of pieceworker 84

Part 6-4 Additional provisions relating to termination of employment

Division 2 Termination of employment

6.04 Temporary absence -- illness or injury 85

6.05 Application fees 86

6.06 Schedule of costs 88

Division 3 Notification and consultation requirements relating to certain terminations of employment

Subdivision B Requirement to notify Centrelink 89

6.07 Employer to notify Centrelink of certain proposed terminations -- form of notice 89

Part 6-5 Miscellaneous

Division 2 Miscellaneous

Subdivision 1 Employment matters

6.08 Public sector employer to act through employing authority -- meaning of public sector employment 90

6.09 Public sector employer to act through employing authority -- meaning of employing authority 91

6.10 No action for defamation in certain cases 91

Schedule 2.1 Notice of employee representational rights 92

Schedule 2.2 Model flexibility term 94

Schedule 2.3 Model consultation term 96

Schedule 3.1 Schedule of costs 98

Part 1 Instructions 98

Part 2 Documents 99

Part 3 Drawing 99

Part 4 Writing or typing legal letters 100

Part 5 Copies 100

Part 6 Perusal and scanning 100

Part 7 Examination 101

Part 8 Letters 101

Part 9 Service 102

Part 10 Preparation of appeal books 103

Part 11 Attendances 103

Part 12 General care and conduct 105

Part 13 Fees for Counsel for solicitor appearing as Counsel 106

Part 14 Witnesses' expenses 106

Part 15 Disbursements 107

Schedule 3.2 Ballot papers 108

Form 1 Ballot paper under Part 3 of Chapter 3 108

Schedule 3.3 Forms relating to entry to premises 110

Form 1 Entry permit to enter premises 110

Form 2 Entry notice 111

Form 3 Exemption certificates 113

Form 4 Affected member certificate 114

Schedule 3.4 Forms for certain dismissals 115

Form 1 Notice to Centrelink of proposed dismissals 115

Schedule 4.1 Form of claim for unclaimed money 116

Schedule 5.1 Oath and affirmation of office 118

Schedule 5.2 Information and copies of documents to be provided to the Minister and the Fair Work Ombudsman 119

Part 1 Information and copies of documents to be provided to the Minister 119

Part 2 Information and copies of documents to be provided to the Fair Work Ombudsman 131

Schedule 6.1 Model term for dealing with disputes for enterprise agreements 135

Schedule 6.2 Forms for certain terminations 137

Form 1 Notice to Centrelink of proposed terminations 137

Schedule 6.3 Public sector employment -- employing authorities 138

Commonwealth Numbered Regulations

FAIR WORK REGULATIONS 2009 (SLI NO 112 OF 2009) - NOTES