FAIR WORK LEGISLATION AMENDMENT (CLOSING LOOPHOLES NO. 2) ACT 2024 (NO. 2, 2024)

(a) the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and

(b) the employee would be entitled to a casual loading or a specific rate of pay for casual employees under the terms of a fair work instrument if the employee were a casual employee, or the employee is entitled to such a loading or rate of pay under the contract of employment.

Note: An employee who commences employment as a casual employee remains a casual employee until the occurrence of a specified event (see subsection (5)).

(2) For the purposes of paragraph (1)(a), whether the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work is to be assessed:

(a) on the basis of the real substance, practical reality and true nature of the employment relationship; and

(b) on the basis that a firm advance commitment can be in the form of the contract of employment or, in addition to the terms of that contract, in the form of a mutual understanding or expectation between the employer and employee not rising to the level of a term of that contract (or to a variation of any such term); and

(c) having regard to, but not limited to, the following considerations (which may indicate the presence, rather than an absence, of such a commitment):

(i) whether there is an inability of the employer to elect to offer, or not offer, work or an inability of the employee to elect to accept or reject work (and whether this occurs in practice);

(ii) whether, having regard to the nature of the employer's enterprise, it is reasonably likely that there will be future availability of continuing work in that enterprise of the kind usually performed by the employee;

(iii) whether there are full - time employees or part - time employees performing the same kind of work in the employer's enterprise that is usually performed by the employee;

Note: A regular pattern of work does not of itself indicate a firm advance commitment to continuing and indefinite work. An employee who has a regular pattern of work may still be a casual employee if there is no firm advance commitment to continuing and indefinite work.

(a) for the purposes of paragraph (2)(b), a mutual understanding or expectation may be inferred from conduct of the employer and employee after entering into the contract of employment or from how the contract is performed; and

(b) the considerations referred to in paragraph (2)(c) must all be considered but no single consideration is determinative and not all considerations necessarily need to be satisfied for an employee to be considered as other than a casual employee; and

(c) a pattern of work is regular for the purposes of subparagraph (2)(c)(iv) even if it is not absolutely uniform and includes some fluctuation or variation over time (including for reasonable absences such as for illness, injury or recreation).

(4) Despite subsection (1), an employee is not a casual employee of an employer if:

(a) the contract of employment includes a term that provides the contract will terminate at the end of an identifiable period (whether or not the contract also includes other terms that provide for circumstances in which it may be terminated before the end of that period); and

(b) the employee is a member of the academic staff or teaching staff of a higher education institution; and

(i) the Higher Education Industry - Academic Staff - Award 2020 as in force from time to time;

(d) the employee is not a State public sector employee of a State within the meaning of subsection 30A(1).

Note 1: A modern award covers an employee if the award is expressed to cover the employee, even if the modern award does not apply to the employee because an enterprise agreement applies to the employee in relation to that particular employment (see subsection 57(1) which deals with interaction between modern awards and enterprise agreements).

Note 2: This means an employee on a fixed term contract who is not covered by paragraphs (4)(b) and (c) may be a casual employee or may be other than a casual employee, depending on whether the employee satisfies the requirements of subsections (1) to (3).

Employees engaged as casual employees remain so until the occurrence of a specified event

(5) A person who commences employment as a casual employee within the meaning of subsections (1) to (4) remains a casual employee of the employer until:

(a) the employee's employment status is changed to full - time employment or part - time employment under Division 4A of Part 2 - 2; or

(b) the employee's employment status is changed by order of the FWC under section 66MA or 739; or

(c) the employee's employment status is changed to full - time employment or part - time employment under the terms of a fair work instrument that applies to the employee; or

(d) the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.

Omit "converted under Division 4A of Part 2 - 2", substitute "changed under Division 4A of Part 2 - 2".

The object of this Division is to establish a framework for dealing with changes to casual employment status that:

A casual employee may give an employer a written notification under this section if:

(a) having regard to subsections 15A(1) to (4) and the employee's current employment relationship with the employer, the employee believes that the employee no longer meets the requirements of those subsections; and

(b) the employee does not have a dispute with the employer relating to the operation of Division 4A of Part 2 - 2 being dealt with under section 66M (including by way of arbitration under section 66MA) or under section 739; and

(i) is a small business employer at the time the notification is given--the employee has been employed by the employer for a period of at least 12 months beginning the day the employment started; or

(ii) is not a small business employer at the time the notification is given--the employee has been employed by the employer for a period of at least 6 months beginning the day the employment started; and

(d) in the period of 6 months before the day the notification is given, the employee has not:

(i) received a response from the employer under section 66AAC not accepting a previous notification made under this section; or

(v) had a dispute with the employer relating to the operation of Division 4A of Part 2 - 2 resolved under section 66M (including by way of arbitration under section 66MA) or under section 739.

Note: This section does not prevent an employee changing to full - time employment or part - time employment other than under this Division (see paragraphs 15A(5)(c) and (d)).

(1) An employer must give an employee a written response to a notification given under section 66AAB within 21 days after the notification is given to the employer.

(ii) does not accept the notification on one or more grounds referred to in subsection (4); and

(i) whether the employee is changing to full - time employment or part - time employment;

(iii) the day the employee's change to full - time employment or part - time employment takes effect;

(3) Before giving a response under subsection (1), the employer must consult with the employee about the notification and must, if the employer is accepting the notification, discuss the matters the employer intends to specify for the purposes of subparagraphs (2)(b)(i) to (iii).

(4) For the purposes of subparagraph (2)(a)(ii), the employer may not accept the notification on any of the following grounds:

(a) having regard to subsections 15A(1) to (4) and the employee's current employment relationship with the employer, the employee still meets the requirements of those subsections;

(b) there are fair and reasonable operational grounds for not accepting the notification;

(c) accepting the notification would result in the employer not complying with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.

Note 2: In relation to paragraph (4)(c), see (for example) the APS Employment Principle at paragraph 10A(1)(c) of the Public Service Act 1999 (which deals with decisions based on merit) and any directions made under subsection 11A(2) of that Act in relation to that principle.

(5) For the purposes of paragraph (4)(b), fair and reasonable operational grounds for not accepting the notification include the following:

(a) substantial changes would be required to the way in which work in the employer's enterprise is organised;

(b) there would be significant impacts on the operation of the employer's enterprise;

(c) substantial changes to the employee's terms and conditions would be reasonably necessary to ensure the employer does not contravene a term of a fair work instrument that would apply to the employee as a full - time employee or part - time employee (as the case may be).

Note: For the purposes of paragraphs (5)(a) and (c), substantial changes include changes that significantly affect the way an employee would need to work.

(1) If an employer responds under section 66AAC that the employer accepts an employee's notification given under section 66AAB, the employee is taken to be a full - time employee or part - time employee (as the case may be) beginning on the day specified in the response.

(2) The day specified in the response for the purposes of subsection (1) must be the first day of the employee's first full pay period that starts after the day the employer response is given, unless the employer and employee agree to another day.

To avoid doubt, an employee is taken, on and after the day specified in a notice for the purposes of subparagraph 66AAC(2)(b)(iii), to be a full - time employee or part - time employee of the employer for the purposes of the following:

(1) An employer must not do any of the following in order to avoid any right or obligation under this Division:

(a) requires an employee to change to full - time employment or part - time employment under this Division; or

(b) permits an employer to require an employee to change to full - time employment or part - time employment under this Division; or

(c) requires an employer to increase the hours of work of an employee who gives a notification to change to full - time employment or part - time employment under this Division.

(3) To avoid doubt, each of the following is a workplace right within the meaning of Part 3 - 1:

(f) participating in a dispute about the operation of this Division in accordance with sections 66M and 66MA.

Note: The general protections provisions in Part 3 - 1 prohibit adverse action, coercion, undue influence or pressure, and misrepresentations because of a workplace right of an employee.

(1) This section applies to a dispute between an employer and an employee about the operation of Subdivision B of this Division.

(4) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.

Note 1: Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph 146(b) and subsection 186(6)).

Note 2: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards. However, a term of a modern award or an enterprise agreement has no effect to the extent it contravenes section 55 (see section 56).

(5) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.

(a) the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and

(b) the FWC may deal with the dispute by arbitration in accordance with section 66MA.

(10) The employer or employee may appoint a person, or an employer organisation or employee organisation, that is entitled to represent the industrial interests of the employer or employee to provide the employer or employee (as the case may be) with support or representation for the purposes of:

Note: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).

(11) Without limiting section 609, the procedural rules may provide, in relation to a dispute between an employer and employee that has been referred to the FWC under subsection (5) of this section, for the joinder of the following as parties to the dispute:

(a) any other employee that has a dispute to which this section applies with the same employer;

(b) any employee organisation that is entitled to represent the industrial interests of such an employee.

(1) For the purposes of paragraph 66M(6)(b), the FWC may deal with the dispute by arbitration, including by making any orders it considers appropriate, including (but not limited to) any order referred to in subsection (4) of this section.

(2) However, the FWC must not make an order under this section unless the FWC considers that it would be fair and reasonable to make the order.

Note: The FWC must also take into account the object of this Act and the object of this Division (see paragraph 578(a)).

(3) The FWC must not make an order under subsection (1) that would be inconsistent with:

(b) a term of a fair work instrument (other than an order made under that subsection) that, immediately before the order is made, applies to the employer and employee.

(b) that the employee be treated as a full - time employee or part - time employee (as the case may be) from the first day of the employee's first full pay period that starts after the day the order is made, or such later day that the FWC considers appropriate.

(5) In considering whether to make, and the terms of, an order under subsection (1) (including an order referred to in subsection (4)) in relation to a dispute about the operation of Subdivision B of this Division (which deals with employee choice about casual employment), the FWC must:

(a) have regard to whether substantial changes to the employee's terms and conditions would be reasonably necessary to ensure the employer does not contravene a term of a fair work instrument that would apply to the employee as a full - time employee or part - time employee; and

(b) disregard conduct of the employer and employee that occurred after the employee gave the notification under section 66AAB (which deals with employee choice notifications) to the employer.

Omit "converted under Division 4A of Part 2 - 2", substitute "changed under Division 4A of Part 2 - 2".

Omit "and offers and requests for casual conversion", substitute "and how this can be changed".

(aa) an employee who has completed 6 months of employment (12 months if a small business employer) can notify the employer if, having regard to the employee's current employment relationship with the employer, the employee believes that the employee no longer meets the requirements of subsections 15A(1) to (4);

(ab) the grounds upon which an employer may not accept a notification given by an employee;

(1) An employer must give a casual employee the Casual Employment Information Statement:

(a) before, or as soon as practicable after, the employee starts employment as a casual employee with the employer; and

(b) as soon as practicable after the employee has been employed by the employer for a period of 6 months beginning the day the employment started; and

(i) the employee has been employed by the employer for a period of 12 months beginning the day the employment started;

(ii) the end of any subsequent period of 12 months for which the employee is employed by the employer.

(2) However, paragraph (1)(b) and subparagraph (1)(c)(ii) do not apply if at the time the employer has employed the employee for the period referred to in that paragraph or subparagraph, the employer is a small business employer.

(3) This section does not, apart from the operation of paragraph (1)(b), require the employer to give the employee the Statement more than once in any 12 months.

Note: This is relevant if the employer employs the employee more than once in the 12 months.

(c) the employee is not a casual employee of the employer for whom the period referred to in paragraph (b) is identified by reference to the completion of the shift of work to which the contract relates; and

(ia) giving a notification, or receiving an offer or notice, under Division 4A of Part 2 - 2 (which deals with casual employment);

in order to engage the individual as a casual employee to perform the same, or substantially the same, work.

A person (the employer ) that employs, or has at any time employed, an individual to perform particular work other than as a casual employee must not make a statement that:

(b) is made in order to persuade or influence the individual to enter into a contract for casual employment under which the individual will perform the same, or substantially the same, work for the employer.

(1C) Proceedings are also to be dealt with as small claims proceedings under this section if:

(a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit and Family Court of Australia (Division 2) in connection with a dispute; and

(b) the dispute relates to whether a person was a casual employee of an employer when the person commenced employment with that employer; and

(c) the person applying for the order indicates, in a manner prescribed by the regulations or by the rules of the court, that the person wants the small claims procedure to apply to the proceedings.

Note: Orders that a court may make under Division 2 in relation to small claims proceedings under this subsection may include a declaration that the employee was a casual employee, a part - time employee or a full - time employee when the employee commenced employment with the employer.

After "related employers", insert ", or that are all related employers mentioned in subsection (3A),".

(3A) Two or more employers that are all related employers under paragraph (5A)(c) (whether or not those employers are also related employers under another paragraph of subsection (5A)) may make a multi - enterprise agreement under subsection (3).

; or (c) the employers carry on similar business activities under the same franchise and are:

Special rule--single - enterprise agreement replaces single interest employer agreement

(a) a single interest employer agreement applies to an employee in relation to particular employment; and

(b) a single - enterprise agreement that covers the employee in relation to the same employment comes into operation;

the single interest employer agreement ceases to apply to the employee when the single - enterprise agreement comes into operation, and can never so apply again.

Special rule--single - enterprise agreement replaces supported bargaining agreement

(a) a supported bargaining agreement applies to an employee in relation to particular employment; and

(b) a single - enterprise agreement that covers the employee in relation to the same employment comes into operation;

the supported bargaining agreement ceases to apply to the employee when the single - enterprise agreement comes into operation, and can never so apply again.

(1) This section applies to a proposed single - enterprise agreement (the new agreement ) if:

(a) a single interest employer agreement or a supported bargaining agreement (each of which is an old agreement ) applies to an employee in relation to particular employment; and

(c) when the new agreement comes into operation, the old agreement will cease to apply to the employee in relation to that employment.

(2) An employer must not request under subsection 181(1) that employees approve the new agreement by voting for it unless:

(a) each employee organisation to which the old agreement applies has provided the employer with written agreement to the making of the request; or

Note: Voting request orders can be made where failure to provide written agreement to the making of a request is unreasonable in the circumstances (see section 240B).

(ba) if the agreement is a single - enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies--those employees;

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that:

(a) each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee; and

(b) if the agreement is a single - enterprise agreement that covers one or more employees (each of whom is an old agreement employee ) to whom a supported bargaining agreement or a single interest employer agreement applies--each old agreement employee would be better off overall if the single - enterprise agreement applied to the employee than if the supported bargaining agreement or single interest employer agreement (as the case requires) applied to the employee.

Note 2: Section 193A sets out rules for applying the better off overall test, including requiring the FWC to only have regard to patterns or kinds of work, or types of employment, that are reasonably foreseeable at the test time (see subsection 193A(6)).

(1A) If an employee is, at the test time, both an old agreement employee and an award covered employee, the FWC must undertake an assessment against only paragraph (1)(b) for that employee.

(2A) If, under the flexibility term in the supported bargaining agreement or single interest employer agreement, an individual flexibility arrangement has been agreed to by an old agreement employee and his or her employer, the FWC must disregard the individual flexibility arrangement for the purposes of determining whether the single - enterprise agreement passes the better off overall test.

After "modern award", insert ", supported bargaining agreement or single interest employer agreement (as the case requires)".

(ii) if the agreement is a single - enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies--those employees;

; (c) if the agreement is a single - enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies--the bargaining representative or bargaining representatives of those employees (other than a bargaining representative that is not an employee organisation).

(ii) if the agreement is a single - enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies--those employees;

After "modern award", insert ", supported bargaining agreement or single interest employer agreement (as the case requires)".

(a) before approving the agreement the FWC had regard, under subsection 193A(6), to patterns or kinds of work, or types of employment engaged in, or to be engaged in, by:

(5) An employee is covered by this subsection if, on the assumption that the test time mentioned in section 193 were the time the application is made under subsection (1) of this section, the employee would be an employee referred to in subparagraph (2)(a)(ii).

(aa) in the case of an agreement of a kind covered by paragraph 193(1)(b)--the condition that a supported bargaining agreement or a single interest employer agreement applies to the employees is satisfied in relation to an employee covered by subsection 227A(5); and

(1B) Despite subsection (1), a bargaining representative of an employee may not apply to the FWC for a determination if:

(a) a single interest employer agreement or a supported bargaining agreement applies to the employee; and

(2) Despite subsection (1), a bargaining representative may not apply to the FWC for a scope order in relation to a proposed single - enterprise agreement if:

(a) a single interest employer agreement or a supported bargaining agreement applies to one or more employees who will be covered by the proposed single - enterprise agreement; and

(b) the single interest employer agreement or supported bargaining agreement has not passed its nominal expiry date.

(4) A bargaining representative for a proposed single - enterprise agreement (the new agreement ) may apply to the FWC for an order (also a voting request order ) permitting an employer to make a request under subsection 181(1) that employees approve the new agreement by voting for it if all of the following apply:

(a) a single interest employer agreement or a supported bargaining agreement (each of which is an old agreement ) applies to one or more employees who will be covered by the new agreement;

(e) each employee organisation to which the old agreement applies has been asked to provide the employer with written agreement to the making of the request;

(f) one or more of the employee organisations has failed to provide the written agreement.

(2) The FWC is taken to have varied a supported bargaining authorisation to remove an employee when the employee is covered by an enterprise agreement, or a workplace determination, that is in operation.

(5) The FWC must determine the model flexibility term for enterprise agreements.

(a) ensure that the model term is consistent with the requirements set out in subsection (1); and

(i) whether the model term is broadly consistent with comparable terms in modern awards;

(iii) whether all persons and bodies have had a reasonable opportunity to be heard and make submissions to the FWC for consideration in determining the model term;

(iv) the object of this Act (see section 3), and the objects of this Part (see section 171);

Note 1: The FWC must be constituted by a Full Bench to make the model flexibility term (see subsection 616(4A)).

(7) A determination under subsection (5) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.

(3) The FWC must determine the model consultation term for enterprise agreements.

(a) ensure that the model term is consistent with the requirements set out in subsections (1) and (1A); and

(i) whether the model term is broadly consistent with comparable terms in modern awards;

(iii) whether all persons and bodies have had a reasonable opportunity to be heard and make submissions to the FWC for consideration in determining the model term;

(iv) whether the model term would, or would be likely to have, the effect referred to in paragraph 195A(1)(a), (b), (c) or (d) (objectionable emergency management terms);

(v) the object of this Act (see section 3), and the objects of this Part (see section 171);

Note 1: The FWC must be constituted by a Full Bench to make the model consultation term (see subsection 616(4A)).

(5) To avoid doubt, subsections (1) and (1A) do not limit the matters the model consultation term may deal with.

(6) A determination under subsection (3) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.

(4A) A determination of any of the following model terms must be made by a Full Bench:

(a) a model flexibility term for enterprise agreements, under subsection 202(5);

(b) a model consultation term for enterprise agreements, under subsection 205(3);

(d) a model term for copied State instruments about dealing with disputes, under subsection 768BK(1A).

(1) The FWC must determine a model term for dealing with disputes for enterprise agreements.

(a) ensure that the model term is consistent with the requirements set out in subsection 186(6); and

(i) whether the model term is broadly consistent with comparable terms in modern awards;

(iii) whether all persons and bodies have had a reasonable opportunity to be heard and make submissions to the FWC for consideration in determining the model term;

Note 1: The FWC must be constituted by a Full Bench to make the model term dealing with disputes (see subsection 616(4A)).

(3) A determination under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.

Omit "prescribed by the regulations", substitute "determined under subsection (1A)".

Omit "subsection (1), the model term prescribed", substitute "subsection (1A), the model term determined".

(3) In determining the model term, the FWC must take into account the following matters:

(a) whether the model term is broadly consistent with comparable terms in modern awards;

(c) whether all persons and bodies have had a reasonable opportunity to be heard and make submissions to the FWC for consideration in determining the model term;

Note 1: The FWC must be constituted by a Full Bench to make the model term for settling disputes (see subsection 616(4A)).

(4) A determination under subsection (1A) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.

(1) This section applies if, immediately before the determination is made, an enterprise agreement applies to one or more employees who will be covered by the determination.

(2) A term that is included in the determination to comply with subsection 270(3), and that deals with a particular matter, must be not less favourable to each of those employees, and any employee organisation that was a bargaining representative of any of those employees, than a term of the enterprise agreement that deals with the matter.

(3) If a term to be included in the determination is not less favourable to a class of employees to which a particular employee belongs, the FWC is entitled to assume, in the absence of evidence to the contrary, that the term is not less favourable to the employee.

(a) a term that the bargaining representatives for the proposed enterprise agreement concerned had agreed, at the time the application for the intractable bargaining declaration concerned was made, should be included in the agreement; and

(b) any other term, in addition to a term mentioned in paragraph (a), that the bargaining representatives had agreed, at the time the declaration was made, should be included in the agreement; and

(c) if there is a post - declaration negotiating period for the declaration--any other term, in addition to a term mentioned in paragraph (a) or (b), that the bargaining representatives had agreed, at the end of the period, should be included in the agreement.

(1) The associated regulated business for a workplace delegate who is a regulated worker must not:

(b) knowingly or recklessly make a false or misleading representation to the workplace delegate; or

(c) unreasonably hinder, obstruct or prevent the exercise of the rights of the workplace delegate under this Act or a fair work instrument .

(2) To avoid doubt, subsection (1) applies only in relation to the workplace delegate acting in that capacity.

(3) The burden of proving that the conduct of the associated regulated business is not unreasonable as mentioned in subsection (1) lies on the associated regulated business.

(4) Subsection (1) does not apply in relation to conduct required by or under a law of the Commonwealth or a State or a Territory.

(5) The associated regulated business for a workplace delegate who is a regulated worker is the regulated business that:

(b) arranged for, or facilitated entry into, the services contract under which the workplace delegate performs work.

Omit "for members of the organisation who work in a particular enterprise", substitute:

(b) members of the organisation who perform work for, or that has been arranged or facilitated by, a particular regulated business.

Omit "their employer", substitute "the employer or regulated business concerned".

(i) in relation to employees--reasonable access to the workplace and workplace facilities where the enterprise concerned is being carried on; and

(ii) in relation to regulated workers--reasonable access to the workplace facilities provided by the regulated business concerned; and

(iii) if the workplace delegate is an employee--reasonable access to paid time, during normal working hours, for the purposes of related training, unless the workplace delegate is employed by a small business employer.

(4) The employer of, or associated regulated business for, the workplace delegate is taken to have afforded the workplace delegate the rights mentioned in subsection (3) if the employer or regulated business has complied with the delegates' rights term in the fair work instrument that applies to the workplace delegate.

"right to disconnect term" means a term in a modern award that provides for the exercise of an employee's rights set out in subsections 333M(1) and (2).

Division 6 is about generally allowing an employee to refuse contact or attempted contact from their employer (or from a third party where the contact or attempted contact relates to their work) outside the employee's working hours. The FWC may deal with disputes between an employer and an employee about the right to disconnect, including by making orders to stop an employee from refusing contact or to stop an employer from taking certain actions.

(1) An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee's working hours unless the refusal is unreasonable.

(2) An employee may refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee's working hours unless the refusal is unreasonable.

(3) Without limiting the matters that may be taken into account in determining whether a refusal is unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:

(b) how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;

(i) to remain available to perform work during the period in which the contact or attempted contact is made; or

(ii) for working additional hours outside of the employee's ordinary hours of work;

(d) the nature of the employee's role and the employee's level of responsibility;

(e) the employee's personal circumstances (including family or caring responsibilities).

Note: For the purposes of paragraph (c), the extent to which an employee is compensated includes any non - monetary compensation.

(4) For the avoidance of doubt, each of the rights in subsections (1) and (2) is a workplace right within the meaning of Part 3 - 1.

Note: The general protections provisions in Part 3 - 1 also prohibit the taking of adverse action by an employer against an employee because of a workplace right of the employee under this Division.

(5) For the avoidance of doubt, an employee's refusal to monitor, read or respond to contact, or attempted contact, from their employer, or from a third party if the contact or attempted contact relates to their work, will be unreasonable if the contact or attempted contact is required under a law of the Commonwealth, a State or a Territory.

(b) the enterprise agreement includes a right to disconnect term that is more favourable to the employee than the rights in subsections (1) and (2);

the right to disconnect term in the agreement continues to apply to the employee.

(a) there is a dispute between an employer and an employee because the employee has refused to monitor, read or respond to contact or attempted contact under subsection 333M(1) or (2) and:

(ii) the employer has asserted that the refusal is unreasonable and the employee reasonably believes the refusal is not unreasonable; or

(b) there is another dispute between the employer and the employee about the operation of section 333M.

(2) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level by discussions between the parties.

(3) If discussions at the workplace level do not resolve the dispute, a party to the dispute may apply for the FWC to do either or both of the following:

(a) make an order under section 333P (orders to stop refusing contact or to stop taking certain actions);

(4) The employer or employee to the dispute may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:

(b) applying to the FWC to make an order under section 333P or otherwise deal with the dispute; or

Note: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).

(1) If an application made under subsection 333N(3) includes an application to make an order under this section and the FWC is satisfied that either or both of the following apply:

(a) an employee has unreasonably refused to monitor, read or respond to contact or attempted contact for the purposes of subsection 333M(1) or (2) and there is a risk the employee will continue to do so;

(b) an employee's refusal to monitor, read or respond to contact or attempted contact for the purposes of subsection 333M(1) or (2) is not unreasonable and there is a risk that the employer will:

(i) take disciplinary or other action against the employee because of the employer's belief that the refusal is unreasonable; or

(ii) continue to require the employee to monitor, read or respond to contact or attempted contact despite the employee's refusal to do so;

(2) The FWC may make any order it considers appropriate (other than an order requiring the payment of a pecuniary amount):

(a) if the FWC is satisfied that the circumstance set out in paragraph (1)(a) applies--to prevent the employee from continuing to unreasonably refuse to monitor, read or respond to contact or attempted contact; or

(b) if the FWC is satisfied that the circumstance set out in subparagraph (1)(b)(i) applies--to prevent the employer from taking the action; or

(c) if the FWC is satisfied that the circumstance set out in subparagraph (1)(b)(ii) applies--to prevent the employer from continuing to require the employee to monitor, read or respond to contact or attempted contact.

(a) start to deal with an application, to the extent that it consists of an application for an order under this section, within 14 days after the application is made; and

(b) deal with the application as soon as is reasonably practicable after the FWC starts to deal with it.

(4) Despite subsection (2), the FWC may dismiss an application made under subsection 333N(3), to the extent that it consists of an application for an order under this section, if the FWC considers that the application:

(iii) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011 ) of the Australian Federal Police; or

(iv) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011 ) of the Australian Federal Police.

(5) If an employer considers an application made under subsection 333N(3) (the original application ) to be frivolous or vexatious, the employer may apply to the FWC:

(a) to have the original application dealt with expeditiously and efficiently; and

(b) a decision on the original application communicated by the FWC to the parties to the dispute in a timely way.

A person to whom an order under section 333P applies must not contravene a term of the order.

Section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws (within the meaning of that Act) do not apply in relation to an application made under subsection 333N(3) that includes an application for an order under section 333P.

Note: Ordinarily, if a person makes an application under subsection 333N(3) for an order under section 333P in relation to particular conduct, then section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws would prohibit a proceeding from being commenced, or an application from being made or continued, under those laws in relation to the same conduct. This section removes that prohibition.

Nothing in this Subdivision requires or permits a person to take, or to refrain from taking, any action if the taking of the action, or the refraining from taking the action, would be, or could reasonably be expected to be, prejudicial to:

(c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011 ) of the Australian Federal Police; or

(d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011 ) of the Australian Federal Police.

(1) Without limiting section 333S, the Director - General of Security may, by legislative instrument, declare that all or specified provisions of this subdivision do not apply in relation to a person carrying out work for the Director - General.

(2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

(1) Without limiting section 333S, the Director - General of the Australian Secret Intelligence Service may, by legislative instrument, declare that all or specified provisions of this Subdivision do not apply in relation to a person carrying out work for the Director - General.

(2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

If an application made under subsection 333N(3) for the FWC to deal with a dispute does not consist solely of an application for an order under section 333P:

(b) if the parties notify the FWC that they agree to the FWC arbitrating the dispute--the FWC may deal with the dispute by arbitration.

Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion (see subsection 595(2)). See section 333P if the application also includes an application for an order under that section.

(1) The FWC must make written guidelines in relation to the operation of this Division.

(2) Subsection (1) does not apply if the employer proves that, when the representation was made, the employer reasonably believed that the contract was a contract for services.

(3) In determining, for the purpose of subsection (2), whether the employer's belief was reasonable:

Omit ", exercising rights under this Part", insert "exercising rights under this Part, or otherwise act in an improper manner".

Omit "hindering or obstructing a permit holder", substitute "conduct referred to in subsection (1)".

(da) requiring, for a specified period, some or all of the exemption certificates that might be issued in relation to the organisation on the ground mentioned in subparagraph 519(1)(b)(ii) (suspected underpayment) to be issued subject to specified conditions;

(ea) banning, for a specified period, the issue of exemption certificates on the ground mentioned in subparagraph 519(1)(b)(ii) (suspected underpayment) in relation to the organisation, either generally or to specified permit holders;

(i) the FWC reasonably believes that advance notice of the entry given by an entry notice might result in the destruction, concealment or alteration of relevant evidence; or

(ii) the FWC is satisfied that the suspected contravention, or contraventions, involve the underpayment of wages, or other monetary entitlements, of a member of the organisation whose industrial interests the organisation is entitled to represent and who performs work on the premises, and the FWC reasonably believes that advance notice of the entry given by an entry notice would hinder an effective investigation into the suspected contravention or contraventions.

(da) if the exemption certificate is issued on the ground mentioned in subparagraph (1)(b)(ii) (suspected underpayment)--the names of any permit holders who may enter;

"selected civil remedy provision" means a provision referred to in column 1 of item 1, 2, 3, 4, 5, 7, 8, 9, 10, 10A, 11A, 29, 29AA, 29A, 32, 33, 33A or 34 in the table in subsection 539(2).

the pecuniary penalty must not be more than 5 times the amount worked out in accordance with paragraph (2)(b).

Example: Generally, subsection 323(1) requires an employer to pay an employee the full amount payable to the employee in relation to the performance of work.

A contravention of subsection 323(1) is a serious contravention if the employer knowingly does not pay the employee in full or is reckless as to whether the failure would occur. It does not matter if the employer does not know the exact amount of the underpayment.

(2) For the purposes of subsection (1), a person is reckless as to whether a contravention would occur if:

(a) the person is aware of a substantial risk that the contravention would occur; and

(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.

Note 3A: The penalties referred to in column 4 of the table are adjusted for bodies corporate and for contraventions associated with underpayment amounts (see section 546).

(e) the application specifies that the applicant wants the maximum penalty to be calculated based on a multiple of the underpayment amount; and

(f) the person is not taken to have contravened the civil remedy provision under section 550 (person involved in a contravention);

Note: For when contravention of a civil remedy provision is associated with an underpayment amount, see section 546A.

(1) A contravention of a civil remedy provision is associated with an underpayment amount if:

(a) an employer is required to pay an amount (a required amount ) to, on behalf of, or for the benefit of, an employee under this Act, a fair work instrument or a transitional instrument (as continued in existence by Schedule 3 to the Transitional Act); and

(c) the conduct results in a failure to pay the required amount to, on behalf of, or for the benefit of, the employee in full on or before the day when the required amount is due for payment; and

(2) The underpayment amount the contravention is associated with is, to the extent it can be determined by the court, the difference between:

(b) the amount (including a nil amount) the employer actually paid to, on behalf of, or for the benefit of, the employee on account of the required amount.

; (d) an order requiring a person to comply, either wholly or partly, with a notice (other than an infringement notice) given to the person by an inspector or the Fair Work Ombudsman.

Omit "(either under this Act or the Workplace Relations Act 1996 as in force before the commencement of this Part)", substitute "under this Act".

163 Subsection 93(1) (subparagraph (b)(i) of the definition of constituent part )

166 Subsection 93(1) (paragraph (a) of the definition of separately identifiable constituent part )

167 Subsection 93(1) (paragraph (b) of the definition of separately identifiable constituent part )

168 Subsection 93(1) (paragraph (c) of the definition of separately identifiable constituent part )

Omit "In the case of a postal ballot, the ballot paper", substitute "The ballot paper".

Omit "or (1A) is kept in electronic form, the electoral official, or designated official,", substitute "is kept in electronic form, the electoral official".

(a) the assets and liabilities of the constituent part before it, or the organisation of which it was a State or Territory branch, was de - registered under Part 2 in connection with the formation of the amalgamated organisation; and

(b) invite the person to give written notice, within a period of 28 days after being sent the statement (the notice period ), to the amalgamated organisation or to the newly registered organisation that:

(ii) the person wants to become a member of the newly registered organisation; and

(4) As soon as practicable after the amalgamated organisation receives a notice under paragraph (3)(b), it must notify the newly registered organisation of the receipt.

(5) As soon as practicable after the newly registered organisation receives a notice under paragraph (3)(b), it must notify the amalgamated organisation of the receipt.

(6) If a person referred to in subsection (2) gives written notice in accordance with paragraph (3)(b), within the notice period, that the person wants to become a member of the newly registered organisation, the person:

(a) ceases, by force of this subsection, to be a member of the amalgamated organisation with effect from the end of the day on which the notice is received by the amalgamated organisation or the newly registered organisation (as the case may be); and

(b) becomes, by force of this subsection and without payment of entrance fee, a member of the newly registered organisation with effect from the day after the day referred to in paragraph (a) of this subsection.

(7) If a person referred to in subsection (2) gives written notice in accordance with paragraph (3)(b), within the notice period, that the person wants to remain a member of the amalgamated organisation, the person remains a member of the amalgamated organisation.

(8) If a person referred to in subsection (2) fails to give written notice in accordance with paragraph (3)(b), the person:

(a) ceases, by force of this subsection, to be a member of the amalgamated organisation with effect from the end of the day after the end of the notice period; and

(9) A person who ceases to be a member of the amalgamated organisation because of the operation of subsection (6):

(a) is not liable to make any payment because the person gave no notice, or insufficient notice, of ceasing to be such a member under the rules of the organisation; and

(b) otherwise, remains liable for such payments as are due in accordance with those rules.

(10) Despite subsection (8), if a person to whom that subsection would apply, at any time before the day upon which the constituent part is registered as an organisation under section 110, gives notice in writing to the amalgamated organisation or to the applicant for a ballot under section 94 that the person wishes to remain a member of the amalgamated organisation after the registration of the constituent part as an organisation under section 110, the person remains a member of the amalgamated organisation.

(11) As soon as practicable after the end of the notice period, the amalgamated organisation must notify the newly registered organisation of any notices under subsection (10) it has received.

(12) As soon as practicable after the end of the notice period, the newly registered organisation must notify the amalgamated organisation of any notices under subsection (10) the applicant under section 94 has received.

(2) However, the rules must not permit a person to hold office after the later of:

(a) the day that would have been the person's last day of term in the constituent office if the withdrawal had not occurred; and

(2) Despite the amendments of the Fair Work (Registered Organisations) Act 2009 made by this Part and subject to subitem (3), Part 3 of Chapter 3 of the old Act continues to apply as if those amendments had not been made, in relation to:

(a) an application that was made to the FWC under section 94 of the old Act; and

(b) anything done in relation to the application (whether before or after the commencement of this item).

(a) an application was made to the FWC under section 94 of the old Act for a secret ballot to be held to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation; and

(i) the application related to a constituent part of the amalgamated organisation that is a branch, division or part of the organisation referred to in paragraph (c) of the definition of separately identifiable constituent part in subsection 93(1) of the old Act;

(ii) the application was made after the end of the period referred to in paragraph 94(1)(c) of the old Act; and

(e) anything that was done in relation to the application before the commencement of this item (including by the applicant, the FWC, the AEC or any other person):

(4) For the purposes of paragraph (3)(c), if a certificate in relation to a ballot was prepared, dated and signed under subsection 106(1) of the old Act before 1 July 2023, it does not matter if the FWC has made, or makes, an order under paragraph 108(2)(b) of the Fair Work (Registered Organisations) Act 2009 that a fresh ballot be conducted in place of the ballot because of an irregularity.

(1) For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.

(2) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:

(a) the totality of the relationship between the individual and the person must be considered; and

(b) in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.

Note: This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.

(3) Subsections (1) and (2) do not apply to the following provisions of this Act:

(b) Partâ€¯3 - 1, to the extent that Partâ€¯3 - 1 applies only because of the operation of section 30G or 30R.

Person may notify individual before the section 15AA commencement that they may give an opt out notice

(2) The person may give the individual a written notice before the section 15AA commencement stating that the individual may give the person an opt out notice, if the person considers that the relationship may, on the section 15AA commencement, become a relationship in which the person is the employer of the individual because of the operation of section 15AA.

(3) The person may give the individual a written notice on or after the section 15AA commencement stating that the individual may give the person an opt out notice, if the person considers that the relationship may be a relationship in which the person is the employer of the individual because of the operation of section 15AA.

(4) The person must not give the individual a notice under subsection (2) or (3) unless the person considers that, when the notice is given, the individual's earnings for work performed under the relationship exceed the contractor high income threshold.

(5) The individual may give an opt out notice to the person, stating that the individual elects that section 15AA is not to apply to the relationship between the person and the individual:

(a) if the person has given a notice to the individual under subsection (2) or (3) of this section--within 21 days of the giving of the notice; or

(b) if the person has not given a notice to the individual under subsection (2) or (3) of this section--at any time after the commencement of this section.

(6) The individual may give only one opt out notice in respect of the relationship.

(7) The opt out notice must state that the individual considers that the individual's earnings for work performed under the relationship exceed the contractor high income threshold when the opt out notice is given.

Note: Section 15AA of this Act is inserted by item 237 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 , which commences in accordance with item 21 of the table in subsection 2(1) of that Act.

(1) This section applies if an individual gives an opt out notice to a person in respect of the relationship between the person and the individual in accordance with section 15AB.

(2) If the opt out notice is given before the section 15AA commencement, and is not revoked before that commencement under section 15AD, then:

(a) by force of this section, section 15AA does not start to apply to the relationship on that commencement; and

(b) section 15AA does not apply to the relationship after that commencement, unless the opt out notice is revoked.

(3) If the opt out notice is given on or after the section 15AA commencement, then:

(a) by force of this section, section 15AA ceases to apply to the relationship on the day on which the opt out notice is given; and

(b) section 15AA does not apply to the relationship on or after that day, unless the opt out notice is revoked.

Note: If an individual does not give an opt out notice to a person in accordance with section 15AB, section 15AA starts to apply, or continues to apply, (as applicable) to the relationship between the person and the individual.

(1) An individual who has given an opt out notice to a person may (subject to subsection (4)), at any time after giving the opt out notice, revoke the opt out notice by giving written notice (a revocation notice ) to the person that the individual elects that section 15AA is to apply to the relationship between the person and the individual.

(2) If an individual gives a revocation notice to a person before the section 15AA commencement, section 15AA applies, by force of this subsection, to the relationship between the person and the individual on and after that commencement.

(3) If an individual gives a revocation notice to a person on or after the section 15AA commencement, section 15AA applies, by force of this subsection, to the relationship between the person and the individual on and after the day on which the revocation notice is given.

(4) An individual may give only one revocation notice in respect of a particular relationship.

This Part deals with special provisions relating to the road transport industry.

Division 2 sets out the road transport objective.

The Expert Panel for the road transport industry must have regard to the road transport objective when performing functions and exercising powers under certain provisions of this Act. These functions and powers cover both employees and employers and regulated road transport contractors and road transport businesses.

Division 3 establishes the Road Transport Advisory Group. This Group includes representatives from the road transport industry. It has advisory functions under Chapter 3A (in relation to road transport minimum standards) and the prioritisation of the FWC's work so far as it relates to the road transport industry.

In performing a function or exercising a power under this Act, the Expert Panel for the road transport industry must take into account the need for an appropriate safety net of minimum standards for regulated road transport workers and employees in the road transport industry, having regard to the following:

(a) the need for standards that ensure that the road transport industry is safe, sustainable and viable;

(iii) administrative and compliance costs for road transport industry participants;

(c) the need to avoid adverse impacts on the sustainability, performance and competitiveness of supply chains and the national economy;

Note: The matters that must be dealt with by the Expert Panel for the road transport industry are matters relating to modern awards relating to the road transport industry, road transport minimum standards orders and road transport contractual chain orders (see subsection 617(10B)). The President also has a discretion to direct the Expert Panel for the road transport industry to deal with a matter (see subsection 617(10D)).

(2) The function of the Road Transport Advisory Group is to advise the FWC in relation to matters that relate to the road transport industry including, but not limited to the following:

(a) the making and varying of modern awards that relate to the road transport industry;

(b) the making and varying of road transport minimum standards orders and road transport guidelines;

(ba) the making and varying of road transport contractual chain orders and road transport contractual chain guidelines;

(3) Before advising the FWC in relation to a matter, the Road Transport Advisory Group must consult any relevant subcommittee established under section 40G.

(4) The President must consult, and have regard to the views of, the Road Transport Advisory Group in determining priorities for the work of the FWC in relation to matters affecting the road transport industry.

(1) The Road Transport Advisory Group consists of such members as the Minister from time to time appoints.

(2) In appointing the members of the Road Transport Advisory Group, the Minister must ensure that the membership consists of persons who are members of or who are nominated by the following:

(a) an organisation that is entitled to represent the industrial interests of one or more regulated road transport contractors;

(b) an organisation that is entitled to represent the industrial interests of one or more road transport businesses.

(3) A member of the Road Transport Advisory Group holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.

(4) The Minister may revoke a person's appointment to the Road Transport Advisory Group.

(5) The President may give the Road Transport Advisory Group directions as to the way in which the body is to carry out its functions.

(6) The President may appoint a member of the Expert Panel for the road transport industry to chair the Road Transport Advisory Group.

(1) The Road Transport Advisory Group may establish subcommittees to advise it in relation to matters relevant to the performance of its functions.

(2) A subcommittee may include persons who are not members of the Road Transport Advisory Group, but a subcommittee must be chaired by a member.

(a) if a proposed road transport minimum standards order or a proposed road transport contractual chain order will cover owner drivers; or

(b) if the FWC proposes to perform a function or exercise a power in relation to a road transport minimum standards order or a road transport contractual chain order that has, or may have, an effect upon owner drivers that is more than minor or technical.

Note 4: If the FWC is making, varying or revoking a modern award that the President considers might relate to the road transport industry, it must take into account the road transport objective (see section 40D).

(a) the President gives a direction that 2 or more matters be dealt with jointly; and

(i) must be dealt with by an Expert Panel constituted to deal with a matter that relates to the road transport industry (see subsection 617(10B); or

(ii) is a matter that the President considers might relate to the road transport industry and has directed be dealt with by an Expert Panel constituted for the purpose (see subsection 617(10D);

the direction that the matters be dealt with jointly must require that all the matters be dealt with by an Expert Panel constituted to deal with a matter that relates to the road transport industry.

Note: For the constitution of an Expert Panel for that purpose, see subsection 620(1E).

(4B) Subsection (4A) does not limit the power of the President to direct that other matters be dealt jointly with by an Expert Panel.

(4C) The President may give a direction that an FWC member deal with a matter that the President considers might relate to the road transport industry, if the FWC member has knowledge of, or experience in, the road transport industry, whether or not the President considers that the matter might relate to another industry or sector.

(10B) The following must be made by an Expert Panel constituted for that purpose:

(a) a modern award made under Part 2 - 3 that the President considers might relate to the road transport industry;

(b) a determination made under subsection 157(1) varying or revoking a modern award that the President considers might relate to the road transport industry;

(c) a road transport minimum standards order made under paragraph 536JY(1)(b) or a determination made under subsection 536KQ(1) varying or revoking a road transport minimum standards order;

(ca) a deferral determination made under subsection 536KQJ(1) in relation to a road transport minimum standards order;

(cb) a suspension determination made under subsection 536KQP(1) in relation to a road transport minimum standards order;

(cc) a determination made under subsection 536KQ(1) varying or revoking a road transport minimum standards order to give effect to a decision to vary or revoke the minimum standards order under paragraph 536KQS(2)(a) or (b);

(cd) a decision made under paragraph 536KQS(2)(a), (b) or (c) as to whether or not to vary or revoke a road transport minimum standards order;

(d) road transport guidelines made under subsection 536KR(1) or a determination made under subsection 536KZ(1) varying or revoking road transport guidelines;

(da) a road transport contractual chain order made under section 536PD or a determination made under 536PT varying or revoking a road transport contractual chain order;

(db) road transport contractual chain guidelines made under section 536QP or a determination made under section 536QW varying or revoking road transport contractual chain guidelines;

(dc) a deferral determination made under subsection 536QB(1) in relation to a road transport contractual chain order;

(dd) a suspension determination made under subsection 536QG(1) in relation to a road transport contractual chain order;

(de) a determination made under subsection 536PT(1) varying or revoking a road transport contractual chain order to give effect to a decision to vary or revoke the road transport contractual chain order under paragraph 536QK(2)(a) or (b);

(df) a decision made under paragraph 536QK(2)(a), (b) or (c) as to whether or not to vary or revoke a road transport contractual chain order;

(e) such other instruments as are prescribed that the President considers might relate to the road transport industry.

Note 1: For the constitution of an Expert Panel for that purpose, see subsection 620(1E).

Note 2: The road transport objective is relevant to the functions of an Expert Panel referred to in this subsection, see section 40D.

(10C) For the purposes of subsection (10B), if the President considers that a determination or a modern award, or a prescribed instrument, might relate to the road transport industry, it does not matter if the President considers that the determination or modern award or prescribed instrument might relate to another industry or sector.

(10D) The President may direct that the following matters be dealt with by an Expert Panel constituted for the purpose:

(a) an employee - like worker minimum standards order or a determination varying or revoking an employee - like worker minimum standards order, if the President considers that the order might relate to the road transport industry or sector;

(b) employee - like guidelines or a determination varying or revoking employee - like guidelines, if the President considers that the guidelines might relate to the road transport industry;

whether or not the President considers that the matter might also relate to another industry or sector.

Note: For the constitution of an Expert Panel for that purpose, see subsection 620(1E).

(f) dealing with a matter that the President considers might relate to the road transport industry.

(1E) An Expert Panel constituted under this subsection for a purpose referred to in subsection 617(10B) or (10D) must include (except as provided by section 622):

(a) the President, or a Vice President or Deputy President appointed by the President to be the Chair of the Panel; and

(b) at least one Expert Panel Member or other FWC Member who has knowledge of, or experience in, the road transport industry; and

Additional requirement relating to the constitution of an Expert Panel for deferral or suspension of road transport minimum standards orders

(1F) If an Expert Panel is constituted under subsection (1E) for a purpose referred to in paragraph 617(10B)(ca), (cb), (cc) or (cd) in relation to a road transport minimum standards order (which deal with deferral and suspension), a majority of the members of the Expert Panel must not be members of the Expert Panel that made the road transport minimum standards order concerned.

Additional requirement relating to the constitution of an Expert Panel for deferral or suspension of road transport contractual chain orders

(1G) If an Expert Panel is constituted under subsection (1E) for a purpose referred to in paragraph 617(10B)(dc), (dd), (de) or (df) in relation to a road transport contractual chain order (which deal with deferral and suspension), a majority of the members of the Expert Panel must not be members of the Expert Panel that made the road transport chain order concerned.

(1) Subject to this section, the contractor high income threshold is the amount prescribed by, or worked out in the manner prescribed by, the regulations.

(2) A regulation made for the purposes of subsection (1) has no effect to the extent that it would have the effect of reducing the amount of the contractor high income threshold.

(a) in prescribing a manner in which the contractor high income threshold is worked out, regulations made for the purposes of subsection (1) specify a particular matter or state of affairs; and

(b) as a result of a change in the matter or state of affairs, the amount of the contractor high income threshold worked out in that manner would, but for this subsection, be less than it was on the last occasion on which this subsection did not apply;

the contractor high income threshold is the amount that it would be if the change had not occurred.

(a) an employee - like worker minimum standards order (see subsection 536JY(2));

(a) that relates to the performance of work under the contract by an individual; and

(b) that has the requisite constitutional connection specified in subsection (2) or (3).

Note: Conditions or collateral arrangements relating to a services contract may be taken to be part of the services contract: see subsection (4).

(i) the work concerned is wholly or principally to be performed in a Territory in Australia;

(iii) at least one party to the contract is a natural person who is resident in, or a body corporate that has its principal place of business in, a Territory in Australia;

(iv) the work concerned is done in the course of constitutional trade or commerce.

Note: In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia in section 12).

(3) For the purposes of Part 3A - 2 (minimum standards for regulated workers), Part 3A - 3 (unfair deactivation and unfair termination) and Part 3A - 4 (collective agreements) to the extent to which those Parts relate to digital platform work, a contract for services also has the requisite constitutional connection if the contract was arranged or facilitated through or by means of a digital labour platform, where the operator of the digital labour platform is:

(d) a natural person who is resident in, or a body corporate that has its principal place of business in, a Territory in Australia.

Note: In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia in section 12).

(4) A condition or collateral arrangement that relates to a services contract is taken to be part of that services contract if, were the condition or arrangement itself a contract for services, it would have the requisite constitutional connection.

A reference to a regulated worker, in relation to a services contract, includes a reference to a person who may become a regulated worker for a services contract.

For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between an individual and a person for the purposes of determining:

(a) whether the individual is an employee of the person within the ordinary meaning of that expression; or

(b) whether the person is an employer of the individual within the ordinary meaning of that expression;

the effect upon the relationship of a minimum standards order, minimum standards guidelines or a collective agreement applying to, or covering, the individual or the person is to be disregarded.

(1) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between an individual and a person, any steps taken by a digital labour platform operator to comply with its obligations under any of the following in relation to the individual are to be disregarded:

(1A) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between an individual and a person, any steps taken by a road transport business to comply with its obligations under any of the following in relation to the individual are to be disregarded:

(2) An employee - like worker to whom an employee - like worker minimum standards order applies in relation to particular digital platform work is not an employee of any person in relation to that work.

(3) A regulated road transport contractor to whom a road transport minimum standards order applies in relation to particular work in the road transport industry is not an employee of any person in relation to that work.

(1) A digital labour platform means an online enabled application, website or system operated to arrange, allocate or facilitate the provision of labour services, where:

(i) engages independent contractors directly or indirectly through or by means of the application, website or system; or

(ii) acts as an intermediary for or on behalf of more than one distinct but interdependent sets of users who interact with the independent contractors or the operator via the application, website or system; and

(b) any of the following processes payments referable to the work performed by the independent contractors:

(iii) a person contracted, whether directly or through one or more interposed entities, by the operator or an associated entity of the operator to process the payments.

(2) A digital labour platform also means an online enabled application, website or system that is prescribed by the regulations for the purposes of this subsection.

(3) A digital labour platform does not include an online application, website or system prescribed by the regulations for the purposes of this subsection.

(a) an online application, website or system may be specified by name or by inclusion in a specified class or specified classes;

(b) an online application, website or system may be specified in respect of all forms of digital platform work, or in respect of specified forms of digital platform work.

A digital labour platform operator means the operator of a digital labour platform, being an operator that enters into or facilitates a services contract under which work is performed by employee - like workers.

(i) the work is performed under a services contract through or by means of a digital labour platform, or the services contract under which the work is performed was arranged or facilitated through or by means of a digital labour platform; and

(2) Digital platform work does not include work prescribed by the regulations for the purposes of this subsection.

(3) For the purposes of paragraph (1)(b) and subsection (2), work may be specified by name or by inclusion in a specified class or specified classes.

(i) an individual who is a party to a services contract in their capacity as an individual (other than as a principal), and performs work under the contract; or

(ii) if a body corporate is a party to a services contract (other than as a principal)--an individual who is a director of the body corporate, or a member of the family of a director of a body corporate, and performs work under the contract; or

(iii) if a trustee of a trust is a party to a services contract in their capacity as a trustee (other than as a principal)--an individual who is a trustee of the same trust and performs work under the contract, whether or not the individual is a party to the contract; or

(iv) if a partner in a partnership is a party to a services contract in their capacity as a partner (other than as a principal)--an individual who is a partner in the same partnership and performs work under the contract, whether or not the individual is a party to the contract; and

(b) the person performs all, or a significant majority, of the work to be performed under the services contract; and

(d) the person does not perform any work under the services contract as an employee; and

(i) the person has low bargaining power in negotiations in relation to the services contract under which the work is performed;

(ii) the person receives remuneration at or below the rate of an employee performing comparable work;

(iii) the person has a low degree of authority over the performance of the work;

(iv) the person has such other characteristics as are prescribed by the regulations.

(2) In this Part, a reference to an independent contractor includes a reference to an individual who is an employee - like worker within the meaning of subsection (1).

(3) Regulations made for the purposes of subparagraph (1)(e)(iv) may specify that a person must have all or only one or some of the characteristics prescribed.

(4) For the purposes of determining whether an individual satisfies the criteria specified in paragraph (1)(e), the effect of a minimum standards order, minimum standards guidelines or a collective agreement applying to, or covering, the individual is to be disregarded.

(i) an individual who is a party to a services contract in their capacity as an individual (other than as a principal), and performs work under the contract; or

(b) the person performs all, or a significant majority, of the work to be performed under the services contract; and

(d) the work performed under the services contract is work in the road transport industry; and

(e) the person is not an employee - like worker who performs work in the road transport industry under the services contract.

(2) In this Part, a reference to an independent contractor includes a reference to an individual who is a regulated road transport contractor within the meaning of subsection (1).

(a) receives services under a services contract, where the services contract provides for the performance of work in the road transport industry; or

(b) is a constitutional corporation, or is included in a class of constitutional corporations, prescribed by the regulations for the purposes of this paragraph.

(2) For the purposes of paragraph (1)(b), a business or undertaking may be specified by name or by inclusion in a specified class or specified classes.

(1) A road transport contractual chain means a chain or series of contracts or arrangements:

(a) under which work is performed for a party to the first contract or arrangement in the chain or series by a regulated road transport contractor or a road transport employee - like worker under a services contract, or by an employee; and

(b) in which at least one party to the first contract or arrangement in the chain or series is a constitutional corporation.

(a) the person is a party (a primary party ) to the first contract or arrangement in the road transport contractual chain; or

(b) the person is a party (a secondary party ) to a subsequent contract or arrangement in the road transport contractual chain, being a contract or arrangement under which work is performed for the secondary party by a regulated road transport contractor or a road transport employee - like worker under a services contract, or by an employee; or

(c) the person is a regulated road transport contractor or a road transport employee - like worker who performs work under a services contract in the road transport contractual chain.

(3) Despite subsection (2), an individual is not in a road transport contractual chain in relation to:

(a) the delivery of a thing to the individual by a regulated road transport contractor, a road transport employee - like worker or an employee, if the delivery of the thing is solely for the individual's private or domestic purposes; or

(b) the consignment of a thing by the individual for delivery by a regulated road transport contractor, a road transport employee - like worker or an employee if the consignment of the thing is solely for the individual's private or domestic purposes; or

(d) work performed by the individual in an industry prescribed by the regulations for the purposes of this subsection.

(a) an industry may be specified by name or by inclusion in a specified class or specified classes; and

(b) an industry may be specified in respect of work in the road transport industry, or in respect of specified forms of such work.

(5) For the purposes of subsection (1), work performed by a regulated road transport contractor or a road transport employee - like worker under a services contract, or by an employee, in a chain or series of contracts or arrangements:

(a) is taken to be performed for the person who engaged the regulated road transport contractor, road transport employee - like worker or employee; and

(b) is also taken to be performed for each party to a contract or arrangement in the chain or series of contracts or arrangements.

(6) This section also has the effect that it would have if it only applied to a secondary party to the extent that rights conferred on, and obligations imposed on, the secondary party by Chapter 3B have, or are likely to have, an impact on the business of the constitutional corporation that is a primary party to the first contract or arrangement in a road transport contractual chain.

(7) This section also has the effect that it would have if it only applied to a secondary party to a contract or arrangement in a road transport contractual chain that:

(c) is a national system employer to the extent that it engages national system employees to perform work in the road transport industry; or

A road transport employee - like worker means an employee - like worker who performs work in the road transport industry.

(a) the road transport and distribution industry within the meaning of the Road Transport and Distribution Award 2020 as in force on 1 July 2024, with such modifications (if any) as are prescribed by regulations for the purposes of this paragraph; and

(b) the long distance operations in the private road transport industry within the meaning of the Road Transport (Long Distance Operations) Award 2020 as in force on 1 July 2024, with such modifications (if any) as are prescribed by regulations for the purposes of this paragraph; and

(c) the waste management industry within the meaning of the Waste Management Award 2020 as in force on 1 July 2024, with such modifications (if any) as are prescribed by regulations for the purposes of this paragraph; and

(d) the cash in transit industry within the meaning of the Transport (Cash in Transit) Award 2020 as in force on 1 July 2024, with such modifications (if any) as are prescribed by regulations for the purposes of this paragraph; and

(e) the passenger vehicle transportation industry within the meaning of clause 4.2 of the Passenger Vehicle Transportation Award 2020, not including paragraph 4.2(c)), as in force on 1 July 2024, with such modifications (if any) as are prescribed by regulations for the purposes of this paragraph; and

(f) any other industry (however described) prescribed by the regulations for the purposes of this paragraph.

(2) For the purposes of paragraph (1)(f), the regulations may prescribe an industry by applying, adopting or incorporating any matter contained in a modern award as in force or existing from time to time.

This Part is about the coverage and operation of the provisions of this Chapter.

Division 2 sets out when minimum standards orders, minimum standards guidelines and collective agreements cover regulated workers and regulated businesses.

Division 3 specifies the rules relating to the interaction of the provisions of this Chapter with State and Territory laws.

Division 3A deals with deferral and suspension of minimum standards orders by the inister and deferral and suspension of road transport minimum standards orders by the FWC.

Division 3B deals with consultation before varying or revoking road transport minimum standards orders after deferral.

Division 3C deals with consultation before varying or revoking employee - like worker minimum standards orders after deferral.

Note 2: A person does not contravene a term of a minimum standards order unless the order applies to the person: see subsection 536JC(1).

(1) A minimum standards order does not impose obligations on a person, and a person does not contravene a term of a minimum standards order, unless the order applies to the person.

(2) A minimum standards order does not give a person an entitlement unless the order applies to the person.

(c) no other provision of this Act provides, or has the effect, that the minimum standards order does not apply to the regulated worker.

When an employee - like minimum standards order applies to a digital labour platform operator

(2) An employee - like minimum standards order applies to a digital labour platform operator if:

(a) the employee - like minimum standards order covers the digital labour platform operator; and

(b) the employee - like minimum standards order covers employee - like workers; and

(i) directly or indirectly engages, under services contracts, employee - like workers covered by the employee - like minimum standards order who perform work through or by means of a digital labour platform operated by the digital labour platform operator; or

(ii) arranges or facilitates services contracts through or by means of a digital labour platform operated by the digital labour platform operator, under which work is performed by employee - like workers covered by the employee - like minimum standards order; and

(e) no other provision of this Act provides, or has the effect, that the employee - like minimum standards order does not apply to the digital labour platform operator.

When a road transport minimum standards order applies to a road transport business

(3) A road transport minimum standards order applies to a road transport business if:

(a) the road transport minimum standards order covers the road transport business; and

(b) the road transport minimum standards order covers regulated road transport contractors; and

(c) the road transport business receives the services under a services contract of a regulated road transport contractor covered by the road transport minimum standards order; and

(e) no other provision of this Act provides, or has the effect, that the road transport minimum standards order does not apply to the road transport business.

(4) A reference in this Act to a minimum standards order applying to a regulated worker is a reference to the order applying to the regulated worker in relation to a services contract.

(1) A minimum standards order covers a regulated worker or a regulated business if the order is expressed to cover the regulated worker or the regulated business.

(2) A minimum standards order also covers a regulated worker or a regulated business if any of the following provides, or has the effect, that the order covers the regulated worker or the regulated business:

(3) Despite subsections (1) and (2), a minimum standards order does not cover a regulated worker or a regulated business if any of the following provides, or has the effect, that the order does not cover the regulated worker or the regulated business:

(4) Despite subsections (1) and (2), a minimum standards order that has ceased to operate does not cover a regulated worker or a regulated business.

(1) A minimum standards order comes into operation on the day specified in the order.

(2) The specified day must not be earlier than the day on which the minimum standards order is made.

(2A) The specified day for an employee - like worker minimum standards order must be a day that the FWC is satisfied will provide sufficient time for the FWC to undertake a reasonable period of consultation after the relevant notice of intent for the order was published, having regard to the unique nature of digital platform work.

(3) The specified day for a road transport minimum standards order must not be earlier than 12 months after the relevant notice of intent for the order was published.

(3A) Despite subsection (3), the specified day may be a day not earlier than 6 months after the relevant notice of intent for the order was published, if the FWC is satisfied that there are circumstances that urgently require specifying such a day.

When a determination varying or revoking a minimum standards order comes into operation

(4) A determination varying or revoking a minimum standards order comes into operation on the day specified in the determination.

(5) The specified day must not be earlier than the day on which the determination is made.

(6A) The relevant notice of intent for an employee - like worker minimum standards order is the notice of intent published under subsection 536KAA(1) at the same time as the draft of the employee - like worker minimum standards order is made.

(7) The relevant notice of intent for a road transport minimum standards order is the notice of intent published under subsection 536KB(1) at the same time as the draft of the road transport minimum standards order is made.

(1) Minimum standards guidelines cover a regulated worker or a regulated business if the guidelines are expressed to cover the regulated worker or the regulated business.

(2) Minimum standards guidelines also cover a regulated worker or a regulated business if any of the following provides, or has the effect, that the guidelines cover the regulated worker or the regulated business:

(3) Despite subsections (1) and (2), minimum standards guidelines do not cover a regulated worker or a regulated business if any of the following provides, or has the effect, that the guidelines do not cover the regulated worker or the regulated business:

(4) Despite subsections (1) and (2), minimum standards guidelines that have ceased to operate do not cover a regulated worker or a regulated business.

(1) Minimum standards guidelines come into operation on the day specified in the guidelines.

(2) The specified day must not be earlier than the day on which the minimum standards guidelines are made.

When a determination varying or revoking minimum standards guidelines comes into operation

(3) A determination varying or revoking minimum standards guidelines comes into operation on the day specified in the determination.

(4) The specified day must not be earlier than the day on which the determination is made.

Note 2: A person does not contravene a term of a collective agreement unless the agreement applies to the person: see section 536JK.

(1) A collective agreement does not impose obligations on a person, and a person does not contravene a term of a collective agreement, unless the agreement applies to the person.

(2) A collective agreement does not give a person an entitlement unless the agreement applies to the person.

(c) no other provision of this Act provides, or has the effect, that the collective agreement does not apply to the regulated worker.

(i) the digital labour platform operator directly or indirectly engages, under services contracts, employee - like workers covered by the collective agreement who perform work through or by means of a digital labour platform operated by the digital platform operator; or

(ii) the digital labour platform operator arranges or facilitates services contracts, through or by means of a digital labour platform operated by the digital platform operator, under which work is performed by employee - like workers covered by the collective agreement; and

(d) if the regulated business is a road transport business--the road transport business receives services under services contracts under which the regulated road transport contractors perform work; and

(e) no other provision of this Act provides, or has the effect, that the collective agreement does not apply to the regulated business.

(3) A reference in this Act to a collective agreement applying to a regulated worker is a reference to the collective agreement applying to the regulated worker in relation to a services contract.

(1) A collective agreement covers a regulated worker, a regulated business or an organisation if the agreement is expressed to cover the regulated worker, the regulated business or the organisation.

(2) A collective agreement also covers a regulated worker, a regulated business or an organisation if any of the following provides, or has the effect, that the agreement covers the regulated worker, the regulated business or the organisation:

(3) Despite subsections (1) and (2), a collective agreement does not cover a regulated worker, a regulated business or an organisation if any of the following provides, or has the effect, that the agreement does not cover the regulated worker, the regulated business or the organisation:

(4) Despite subsections (1) and (2), a collective agreement that has ceased to operate does not cover regulated worker, a regulated business or an organisation.

(a) at the end of the period of operation specified in the collective agreement as required by paragraph 536MS(3)(a); or

(b) if an earlier day is specified in a termination notice in relation to the collective agreement that is registered under subsection 536MW(1)--on that day.

(4) A term of a collective agreement has no effect in relation to a regulated worker in respect of a matter to the extent that the term is detrimental to the regulated worker in any respect, when compared to a minimum standards order or a law of a State or Territory that applies to the regulated worker in relation to that matter.

(5) Without limiting any other provision of this Act, a reference in this section to a law of a State or Territory:

(a) includes a reference to a regulation, rule or other instrument (however described) made pursuant to, or for the purposes of, a law of a State or Territory; and

(b) is a reference to a law of a State or Territory as in force from time to time.

(1) For the purposes of this Chapter, the rights, entitlements, obligations and liabilities of a regulated worker, a regulated business or a party to a services contract are not affected by a law of a State or Territory to the extent that the law would otherwise do one or more of the following:

(a) take or deem the regulated business, regulated worker or party to be an employer or employee, or otherwise treat the regulated business, regulated worker or party as if the regulated business, regulated worker or party, as the case requires, were an employer or employee, for the purposes of a law that relates to one or more workplace relations matters (or provide a means for the regulated business, regulated worker or party to be so taken, deemed or treated);

(b) confer or impose rights, entitlements, obligations or liabilities on the regulated business, regulated worker or party in relation to matters that, in an employment relationship, would be workplace relations matters (or provide a means for rights, entitlements, obligations or liabilities in relation to such matters to be conferred or imposed on the regulated business, regulated worker or party);

(c) without limiting paragraphs (a) and (b)--expressly provide for a court, commission or tribunal to do any of the following in relation to a services contract on an unfairness ground:

(i) make an order or determination (however described) setting aside, or declaring to be void or otherwise unenforceable, all or part of the services contract;

(ii) make an order or determination (however described) amending or varying all or part of the services contract.

(2) The rights, entitlements, obligations and liabilities of a regulated business, a regulated worker or a party to a services contract are not affected by a law of a State or Territory that is specified in regulations made for the purposes of this subsection, to the extent that the law is so specified.

(a) a law of a State or Territory, to the extent that the law deals with matters relating to outworkers (including entry of a representative of a trade union to premises for a purpose connected with outworkers), other than matters mentioned in paragraph (1)(c); or

(i) Chapter 6 of the Industrial Relations Act 1996 (NSW) (and any other provision of that Act to the extent that it relates to, or has effect for the purposes of, a provision of Chapter 6);

(c) a law of a State or Territory that is specified in regulations made for the purposes of this paragraph, to the extent that the law is so specified.

Note: For interaction of these laws with minimum standards orders, see section 536JS.

(4) To avoid doubt, subsection (2) has effect even if a law specified in regulations made under that subsection:

(b) deals with matters that, because of subsection 536JQ(2), are not workplace relations matters.

(5) Without limiting any other provision of this Act, a reference in this section to a law of a State or Territory:

(a) includes a reference to a regulation, rule or other instrument (however described) made pursuant to, or for the purposes of, a law of a State or Territory; and

(b) is a reference to a law of a State or Territory as in force from time to time.

(1) Subject to subsection (2), for the purposes of this Chapter, workplace relations matter means any of the following matters:

(e) making, enforcing or terminating agreements (not being contracts of employment) determining terms and conditions of employment;

(f) disputes between employees and employers, or the resolution of such disputes;

(h) any other matter that is substantially the same as a matter that relates to employees or employers and that is dealt with by or under:

unless the matter is specified in regulations made for the purposes of this paragraph;

(i) any other matter specified in regulations made for the purposes of this paragraph.

(2) For the purposes of subsection (1), none of the following is a workplace relations matter :

(a) prevention of discrimination or promotion of equal employment opportunity, but only if the State or Territory law concerned is neither a State or Territory industrial law nor contained in such a law;

(f) the observance of a public holiday, except the rate of payment of an employee for the public holiday;

(m) any other matter specified in regulations made for the purposes of this paragraph.

(1) Subject to subsection (2), for the purposes of this Chapter, each of the following grounds is an unfairness ground in relation to a services contract:

(iv) an award, agreement or other instrument made under a law referred to in subparagraph (i), (ii) or (iii);

(f) the services contract provides for remuneration at a rate that is, or is likely to be, less than the rate of remuneration for an employee performing similar work;

(g) any other ground that is substantially the same as a ground specified in any of paragraphs (a) to (f);

(h) any other ground specified in regulations made for the purposes of this paragraph.

(2) A ground specified in subsection (1) is not an unfairness ground in relation to a services contract to the extent that the ground relates to matters that, because of subsection 536JQ(2), are not workplace relations matters.

(1) A minimum standards order prevails over a law of a State or Territory, to the extent of any inconsistency.

(1A) It is the intent of the Parliament that, for an employee - like worker or digital labour platform operator to whom an employee - like worker minimum standards order applies in relation to a services contract, this Chapter applies to the exclusion of the laws described in subsection 536JP(3) to the extent that those laws would otherwise affect the rights, entitlements, obligations and liabilities of the employee - like worker or digital labour platform operator in relation to the services contract.

(2) Despite subsections (1) and (1A), a term of a minimum standards order applies subject to the following:

(a) a law of a State or Territory specified in regulations made for the purposes of this paragraph, to the extent that the law is so specified;

(b) a law of a State or Territory that provides for rights or remedies by reference to a law described in paragraph (a).

(a) includes a reference to a regulation, rule or other instrument (however described) made pursuant to, or for the purposes of, a law of a State or Territory; and

(b) is a reference to a law of a State or Territory as in force from time to time.

(1) For the purposes of subsection 51(1) of the Competition and Consumer Act 2010 , and the Competition Code within the meaning of that Act, anything done in accordance with a minimum standards order, minimum standards guidelines or a collective agreement by a person or entity covered by the order, guidelines or agreement is specified in and specifically authorised by this Act.

(2) For the purposes of subsection 51(1) of the Competition and Consumer Act 2010 , and the Competition Code within the meaning of that Act, making a collective agreement by a person or entity is specified in and specifically authorised by this Act.

Conduct in preparation for or incidental to making or applying for registration of a collective agreement

(3) For the purposes of subsection 51(1) of the Competition and Consumer Act 2010 , and the Competition Code within the meaning of that Act, anything done by a person or entity in preparation for, or incidental to, making, or applying for registration of, a collective agreement is specified in and specifically authorised by this Act.

(4) Despite subsections (1), (2) and (3), conduct referred to in those subsections is not specified in or specifically authorised by this Act if the conduct is:

(a) making a contract or arrangement, or arriving at an understanding, that is or contains a cartel provision that satisfies the purpose condition in either paragraph 45AD(3)(a) or 45AD(3)(b) of the Competition and Consumer Act 2010 or the Competition Code within the meaning of that Act; or

(c) done in accordance with a term of a collective agreement, to the extent that the term has no effect because of subsection 536MX(1) or (2) of this Act (about matters in respect of which a collective agreement may not be made, or that are primarily of a commercial nature).

This Part is about setting minimum standards for certain regulated workers, specifically, employee - like workers and regulated road transport contractors.

Division 2 of this Part sets out the minimum standards objective to which the FWC must have regard when performing a function or exercising a power under this Part.

Division 3 empowers the FWC to make minimum standards orders for regulated workers, which set minimum standards to which they are entitled in relation to certain matters including payment terms and working time.

Division 4 empowers the FWC to make minimum standards guidelines for regulated workers.

Division 5 provides for regulations to be made in relation to internal review of certain decisions.

In performing a function or exercising a power under this Part, the FWC must take into account the need for an appropriate safety net of minimum standards for regulated workers, having regard to the following:

(iii) recognise the perspectives of regulated workers, including their skills, the value of the work they perform and their preferences about their working arrangements; and

(iv) do not change the form of the engagement of regulated workers from independent contractor to employee; and

(v) do not give preference to one business model or working arrangement over another; and

(vi) are tailored to the relevant industry, occupation or sector and the relevant business models; and

(vii) are tailored to the type of work, working arrangements and regulated worker preferences; and

(viii) reflect the differences in the form of engagement of regulated workers as independent contractors to the form of engagement of employees; and

(ix) have regard to the ability of regulated workers to perform work under services contracts for multiple businesses, and the fact that the work may be performed simultaneously;

(b) in addition to the other matters provided for in this subsection, the need for standards that deal with minimum rates of pay that:

(i) take into account costs necessarily incurred by regulated workers directly arising from the performance of a services contract; and

(ii) take into account safety net minimum standards that apply to employees performing comparable work; and

(ii) business costs, regulatory burden, sustainability, innovation, productivity or viability;

(v) persons or bodies that use or rely on the work performed by regulated workers, or the services received under services contracts for the performance of that work;

(d) the need to consider other orders or instruments (however described) made under this Chapter and to avoid unnecessary overlap of such orders or instruments.

(1) The FWC may make an order (a minimum standards order ) that sets standards for:

(2) A minimum standards order for employee - like workers is an employee - like worker minimum standards order .

(3) A minimum standards order for regulated road transport contractors is a road transport minimum standards order .

Note: The FWC must be constituted by an Expert Panel for the purposes of making a road transport minimum standards order (see subsection 617(10B)).

(1) Any of the following may apply to the FWC for the making of a minimum standards order:

(a) an organisation that is entitled to represent the industrial interests of one or more regulated workers who would be covered by the proposed minimum standards order;

(b) an organisation that is entitled to represent the industrial interests of one or more of the regulated businesses that would be covered by the proposed minimum standards order;

(c) a regulated business that is included in a class of regulated businesses that would be covered by the proposed minimum standards order;

Note: An Expert Panel can hear applications under this Act for the road transport industry together: see subsection 582(4).

(2) An application under subsection (1) must specify whether it is an application for an employee - like worker minimum standards order or a road transport minimum standards order.

(3) An application for the making of a minimum standards order must specify the class of regulated workers to be covered by the order.

(3A) An application for the making of a minimum standards order must specify the class of regulated businesses to be covered by the order.

(4) Without limiting the way in which a class may be described for the purposes of subsection (3) or (3A), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.

(1) This section applies to a decision to make or vary, or not to make or vary, an employee - like worker minimum standards order, other than a decision of the FWC to refuse to consider an application to make or vary such an order.

(2) Before making a decision to which this section applies, the FWC must consider whether, on the whole, the persons included (or purportedly included) in the class of employee - like workers to be covered by the order, or the order as proposed to be varied, are employee - like workers.

(3) If the FWC is not satisfied that, on the whole, the persons included (or purportedly included) in the class of employee - like workers to be covered by the minimum standards order, or the order as proposed to be varied, are employee - like workers, the FWC must decide to refuse to consider the application, or not to make or vary the order, as the case requires.

(a) must not make or vary the employee - like worker minimum standards order unless there has been genuine engagement with the parties to be covered; and

(b) must not make or vary the employee - like worker minimum standards order unless the consultation process set out in Subdivision BA has been followed; and

(c) must have regard to choice and flexibility in working arrangements in making or varying the employee - like worker minimum standards order.

(1) Before making an employee - like worker minimum standards order, the FWC must:

(a) publish a notice (a notice of intent ) stating that the FWC proposes to make an employee - like worker minimum standards order; and

(b) publish a draft of the proposed employee - like worker minimum standards order.

(2) The FWC must publish the notice of intent and the draft of the employee - like worker minimum standards order on the FWC's website and by any other means the FWC considers appropriate.

(1) The FWC must ensure that affected entities have a reasonable opportunity to make written submissions to the FWC for its consideration in relation to the draft of an employee - like worker minimum standards order published under subsection 536KAA(1)(b), having regard to the unique nature of digital platform work.

(3) However, if a submission made by an entity includes information that is claimed by the entity to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive, the FWC:

(i) a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive); or

(ii) if the FWC considers that it is not practicable to prepare a summary that would comply with subparagraph (i)--a statement that confidential or commercially sensitive information in the submission has not been published.

(4) The publishing of material under subsections (2) and (3) must be on the FWC's website and by any other means the FWC considers appropriate.

(5) A reference in this Act (other than in this section) to a submission under this section includes a reference to a summary or statement referred to in paragraph (3)(b).

(6) For the purposes of subsection (1), an affected entity , in relation to a draft employee - like worker minimum standards order published under paragraph 536KAA(1)(b), is:

(a) a person or body likely to be affected by the making of an employee - like worker minimum standards order based on the draft; or

(b) a person or body prescribed by the regulations, or belonging to a class of persons or bodies prescribed by the regulations.

The FWC may, but is not required to, hold a hearing in relation to a draft employee - like worker minimum standards order.

(1) The FWC may make any changes it thinks appropriate to a draft employee - like worker minimum standards order.

(a) decide not to make the employee - like worker minimum standards order based on the draft; and

(b) publish a subsequent notice of intent under subsection 536KAA(1) in relation to the revised draft employee - like worker minimum standards order, and publish the revised draft; and

(c) follow the process set out in section 536KAB in relation to the revised draft employee - like worker minimum standards order, with the period of consultation under that section to be a period that the FWC is satisfied is a reasonable period of consultation, having regard to the unique nature of digital platform work.

The FWC may decide that no employee - like worker minimum standards order is to be made based on the draft. If the FWC does so, the FWC must publish notice of the decision on its website and by any other means the FWC considers appropriate.

(a) an application is made for a road transport minimum standards order under subsection 536JZ(1) or for a variation of a road transport minimum standards order under section 536KP; or

(b) the FWC is considering making or varying a minimum standards order on its own initiative.

(a) must not make or vary the road transport minimum standards order unless there has been genuine engagement with the parties to be covered; and

(b) must not make or vary the road transport minimum standards order unless the Road Transport Advisory Group has been consulted; and

(c) must not make or vary the road transport minimum standards order unless the consultation process set out in Subdivision D has been followed; and

(d) must have regard to the commercial realities of the road transport industry; and

(e) must be satisfied that making or varying the road transport minimum standards order will not unduly affect the viability and competitiveness of owner drivers or other similar persons.

(a) publish a notice (a notice of intent ) stating that the FWC proposes to make a road transport minimum standards order; and

(2) The FWC must publish the notice of intent and the draft of the road transport minimum standards order on the FWC's website and by any other means the FWC considers appropriate.

(1) The FWC must ensure that affected entities have a reasonable opportunity to make written submissions to the FWC for its consideration in relation to the draft of a road transport minimum standards order published under subsection 536KB(2).

(4) The publishing of material under subsections (2) and (3) must be on the FWC's website and by any other means the FWC considers appropriate.

(5) A reference in this Act (other than in this section) to a submission under this section includes a reference to a summary or statement referred to in paragraph (3)(b).

(6) For the purposes of subsection (1), an affected entity , in relation to a draft road transport minimum standards order published under paragraph 536KB(1)(b) is:

(a) a person or body likely to be affected by the making of a road transport minimum standards order based on the draft; or

(b) a person or body prescribed by the regulations, or belonging to a class of persons or bodies prescribed by the regulations.

The FWC may, but is not required to, hold a hearing in relation to a draft road transport minimum standards order.

(1) The FWC may make any changes it thinks appropriate to a draft road transport minimum standards order.

(a) decide not to make the road transport minimum standards order based on the draft; and

(b) publish a subsequent notice of intent under subsection 536KB(1) in relation to the revised draft road transport minimum standards order, and publish the revised draft; and

(c) follow the process set out in section 536KC in relation to the revised draft road transport minimum standards order (with the period of consultation under that section to be no shorter than 12 months starting when the subsequent notice of intent and the revised draft required by paragraph (b) of this subsection were published).

The FWC may decide that no road transport minimum standards order is to be made based on the draft. If the FWC does so, the FWC must publish notice of the decision on its website and by any other means the FWC considers appropriate.

(1) If an application for a minimum standards order is made to the FWC under subsection 536JZ(1), the FWC may decide to:

(d) if the FWC considers it appropriate to do so, instead make minimum standards guidelines under section 536KR, as if the application had been an application under subsection 536KS(1) for minimum standards guidelines in relation to the regulated workers covered by the application under subsection 536JZ(1).

(2) Without limiting subsection (1), the FWC may refuse to consider the application if it is not consistent with a direction of the President under section 582(4D) (prioritisation).

(1) An employee - like worker minimum standards order must include terms setting out in accordance with this section:

(a) the digital platform work covered by the employee - like worker minimum standards order; and

(b) the digital labour platform operators covered by the employee - like worker minimum standards order; and

(2) An employee - like worker minimum standards order must be expressed to cover:

(i) are engaged through or by means of a digital labour platform operated by a digital platform operator covered by the employee - like worker minimum standards order; or

(ii) perform work under a contract arranged or facilitated through or by means of a digital labour platform operated by a digital platform operator covered by the employee - like worker minimum standards order.

(3) An employee - like worker minimum standards order must specify the digital labour platform operators that are primarily responsible for providing the entitlements of specified employee - like workers.

(a) digital labour platform operators must be specified by inclusion in a specified class or specified classes; and

(b) employee - like workers must be specified by inclusion in a specified class or specified classes.

(5) Without limiting the way in which a class may be described for the purposes of subsection (4), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.

(1) A road transport minimum standards order must include terms setting out in accordance with this section:

(a) the work in the road transport industry covered by the road transport minimum standards order; and

(b) the regulated road transport contractors covered by the road transport minimum standards order; and

(a) road transport businesses must be specified by inclusion in a specified class or specified classes; and

(b) regulated road transport contractors must be specified by inclusion in a specified class or specified classes.

(4) Without limiting the way in which a class may be described for the purposes of subsection (3), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.

A minimum standards order must include a term that provides a procedure for settling disputes about any matters arising under the order.

(1) A minimum standards order may include terms about any of the following matters:

(d) record - keeping in relation to matters covered by or required by this Act, or by an order or instrument made under this Act, being matters that concern regulated workers or regulated businesses;

(2) The matters listed in subsection (1) do not limit the terms that may be included in a minimum standards order.

(1) A minimum standards order must not include terms about any of the following matters:

(c) matters that are primarily of a commercial nature that do not affect the terms and conditions of engagement of regulated workers covered by the minimum standards order;

(d) a term that would change the form of the engagement or the status of regulated workers covered by the minimum standards order including, but not limited to, a term that deems a regulated worker to be an employee;

(e) a matter relating to work health and safety that is otherwise comprehensively dealt with by a law of the Commonwealth, a State or a Territory;

(f) a matter prescribed by the regulations, or belonging to a class of matter prescribed by the regulations for the purposes of this paragraph.

(a) the regulations may specify that a particular matter, or a matter included in a class of matters, is, or is not, dealt with comprehensively by a law of the Commonwealth, a State or a Territory; and

(b) the regulations may prescribe one or more laws of the Commonwealth, a State or a Territory to which that paragraph does, or does not, not apply.

(1) In addition to the matters in section 536KM, an employee - like worker minimum standards order must not include terms about any of the following matters:

(a) penalty rates for work performed at particular times or on particular days (including, but not limited to, loadings and shift allowances);

(i) time before the acceptance of an engagement on a digital labour platform; or

(ii) time in between the completion of an engagement and the commencement of the next engagement on a digital labour platform;

(2) Despite subsection (1), a term about a matter mentioned in subsection (1) may be included in an employee - like worker minimum standards order if the FWC is satisfied that the inclusion of the term is appropriate, having regard to:

(a) the type of work performed by the employee - like workers covered by the employee - like worker minimum standards order; and

(b) the digital labour platform operators covered by the employee - like worker minimum standards order.

(1) In addition to the matters in section 536KM, a road transport minimum standards order must not include terms about any of the following matters:

(a) a matter relating to road transport that is otherwise comprehensively dealt with:

(b) a matter prescribed by the regulations, or belonging to a class of matter prescribed by the regulations.

(a) the regulations may specify that a particular matter, or a matter included in a class of matters, is, or is not, dealt with comprehensively by the Heavy Vehicle National Law as set out in the Schedule to the Heavy Vehicle National Law Act 2012 (Qld) or another law of the Commonwealth, a State or a Territory; and

(b) the regulations may prescribe one or more laws of the Commonwealth, a State or a Territory to which subparagraph (1)(a)(ii) does, or does not, not apply.

A minimum standards order may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the minimum standards objective.

Any of the following may apply to the FWC for a determination varying or revoking a minimum standards order:

(a) an organisation that is entitled to represent, or another body that represents, the industrial interests of one or more regulated workers covered by the minimum standards order or who would be covered by the minimum standards order as proposed to be varied;

(b) an organisation that is entitled to represent, or another body that represents, the industrial interests of one or more of the regulated businesses covered by the minimum standards order, or that would be covered by the minimum standards order as proposed to be varied;

(c) a regulated business covered by the minimum standards order or that would be covered by the proposed minimum standards order as proposed to be varied;

(ca) a national or State council or federation that is effectively representative of a significant number of organisations or bodies mentioned in paragraph (a) or (b);

(1) The FWC may make a determination varying or revoking a minimum standards order if the FWC is satisfied that making the determination is consistent with the minimum standards objective.

Note: In the case of a road transport minimum standards order, the FWC must also consider the road transport objective.

(2) The FWC may make a determination varying a minimum standards order in such a way that not all of the elements of the variation sought in an application under section 536KP are implemented, including by refusing to make a variation to the extent that it would result in the order covering persons who are not regulated workers.

(3) The FWC may make a determination varying a minimum standards order to remove an ambiguity or uncertainty or to correct an error.

(4) The FWC may make a determination varying or revoking a minimum standards order:

(5) The FWC may also make a determination under subsection (1) varying or revoking a minimum standards order to give effect to a decision under paragraph 536KQS(2)(a) or (b) to vary or revoke the minimum standards order.

Note: Subsection 536KQS(1) requires the FWC to consider whether to vary or revoke a minimum standards order after a deferral declaration, a deferral determination, a suspension declaration or a suspension determination is made in relation to the order.

(1) If the Minister considers it is in the public interest to do so, the Minister may, by notifiable instrument, make a declaration (a deferral declaration ) that defers:

(i) all of the terms of a minimum standards order to a specified class or specified classes of persons; or

(ii) specified terms of a minimum standards order to a specified class or specified classes of persons; or

(2) A deferral declaration made under paragraph (1)(a) is a full deferral declaration , and a deferral declaration made under paragraph (1)(b) is a part deferral declaration , in relation to the minimum standards order to which the deferral declaration relates.

(b) ceases to be in operation on the day on which the FWC decides under subsection 536KQS(2) whether or not to vary or revoke the minimum standards order.

(4) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.

(5) The Secretary of the Department must publish a deferral declaration on the Department's website as soon as practicable after the deferral declaration is made.

(1) The Minister must not make a deferral declaration in relation to a minimum standards order that has already come into operation.

(a) may only make one full deferral declaration in relation to a particular minimum standards order; and

(b) must not make a full deferral declaration in relation to a particular road transport minimum standards order if a deferral determination (whether a full deferral determination or a part deferral determination) has previously been made by the FWC in relation to the road transport minimum standards order.

Note: The FWC may make deferral determinations in relation to road transport minimum standards orders under Subdivision B of this Division.

(3) Subject to subsection (4), the Minister may make more than one part deferral declaration in relation to a particular minimum standards order.

(4) If more than one part deferral declaration or part deferral determination is made in relation to the same minimum standards order as permitted by subsection (3) of this section or subsection 536KQK(3), a later part deferral declaration must not have the effect of deferring, or purporting to defer, the application of a term or terms to any person:

(a) to whom the terms already apply when the later part deferral declaration is made; or

(b) in relation to whom the application of the terms has previously been deferred.

(a) is not in operation during any period when a full deferral declaration in relation to the minimum standards order is in operation; and

(b) is in operation during any period when a part deferral declaration in relation to the minimum standards order is in operation.

Note: Although a minimum standards order is in operation when a part deferral declaration is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.

(1) If the Minister considers it is in the public interest to do so, the Minister may, by notifiable instrument, make a declaration (a suspension declaration ):

(i) all of the terms of a minimum standards order to a specified class or specified classes of persons; or

(ii) specified terms of a minimum standards order to a specified class or specified classes of persons; or

(2) A suspension declaration made under paragraph (1)(a) is a full suspension declaration , and a suspension declaration made under paragraph (1)(b) is a part suspension declaration , in relation to the minimum standards order to which the suspension declaration relates.

(4) Subject to subsection (5), a period of suspension specified in a suspension declaration ends immediately after the end of the period specified in the suspension declaration under subsection (3).

(5) If a period of suspension has not already ended under subsection (3) when the FWC makes a decision under subsection 536KQS(2) as to whether to vary or revoke the minimum standards order, the period of suspension ends on whichever of the following days is applicable:

(a) if the FWC decides to vary or revoke the minimum standards order--on the day that the determination made under subsection 536KQ(1) varying or revoking the minimum standards order comes into operation, which must not be later than 12 months after the day on which the suspension declaration was made;

(ii) if a 7 - day period would result in the suspension lasting longer than 12 months--such shorter period as is specified in the decision, which must be a period that would result in the suspension lasting 12 months or less.

(6) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.

(7) If the Minister makes a suspension declaration, the FWC may make any orders it considers appropriate to ensure that no person is unfairly affected by the suspension.

(8) The Secretary of the Department must publish a suspension declaration on the Department's website as soon as practicable after the suspension declaration is made.

(9) The making of a suspension declaration does not affect any right or liability that a person acquired, accrued or incurred before the suspension declaration is made.

(1) A full suspension declaration in relation to a minimum standards order must be made within 12 months of the day on which the minimum standards order came into operation.

(2) A part suspension declaration in relation to a minimum standards order must be made within 12 months of whichever of the following days is applicable:

(a) if the part suspension declaration suspends the application of all of the terms of the minimum standards order to a specified class of persons--the day on which all of the terms of the minimum standards order first applied to the specified class of persons;

(b) if the part suspension declaration suspends the application of all of the terms of the minimum standards order to 2 or more specified classes of persons--the day on which all of the terms of the minimum standards order first applied to at least one of the specified classes of persons (even if all of the terms of the order did not apply to all of the specified classes on that day);

(c) if the part suspension declaration suspends the application of specified terms of the minimum standards order to a specified class of persons--the day on which the specified terms first applied to the specified class of persons;

(d) if the part suspension declaration suspends the application of specified terms of the minimum standards order to 2 or more specified classes of persons--the day on which the specified terms of the minimum standards order first applied to at least one of the specified classes of persons (even if the order did not apply to all of the specified classes on that day);

(e) if the part suspension declaration suspends the application of specified terms of the minimum standards order to all persons--the day on which the specified terms first applied to all persons.

(a) is not in operation during any period when a full suspension declaration in relation to the minimum standards order is in operation; and

(b) is in operation during any period when a part suspension declaration in relation to the minimum standards order is in operation.

Note: Although a minimum standards order is in operation during a period when a part suspension declaration is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.

The Minister is not required to consult any person or body before making a deferral declaration or a suspension declaration.

(1) An application may be made to the FWC for a determination under subsection 536KQJ(1) (a deferral determination ) in relation to a road transport minimum standards order.

(a) an organisation that is entitled to represent the industrial interests of one or more regulated road transport contractors covered by the road transport minimum standards order;

(b) an organisation that is entitled to represent the industrial interests of one or more of the road transport businesses covered by the road transport minimum standards order;

Note: An Expert Panel can hear applications under this Act for the road transport industry together: see subsection 582(4).

(3) An application for a deferral determination must not be made in relation to a road transport minimum standards order that has already come into operation.

Note: If the road transport minimum standards order concerned comes into operation before the FWC considers the application, the FWC may treat it as a suspension application, see subsection 536KQL(2).

(1) The FWC may, on application under subsection 536KQH(1), make a deferral determination:

(a) that defers the coming into operation of a road transport minimum standards order; or

(i) all of the terms of a road transport minimum standards order to a specified class or specified classes of persons; or

(ii) specified terms of a road transport minimum standards order to a specified class or specified classes of persons; or

(iii) specified terms of a road transport minimum standards order to all persons.

(2) A deferral determination made under paragraph (1)(a) is a full deferral determination , and a deferral determination made under paragraph (1)(b) is a part deferral determination , in relation to the road transport minimum standards order to which the deferral determination relates.

(3) A deferral determination in relation to a road transport minimum standards order:

(b) ceases to be in operation on the day on which the FWC decides under subsection 536KQS(2) whether or not to vary or revoke the road transport minimum standards order.

(1) The FWC must not make a deferral determination in relation to a road transport minimum standards order that has already come into operation.

(a) may only make one full deferral determination in relation to a particular road transport minimum standards order; and

(b) must not make a full deferral determination in relation to a particular road transport minimum standards order if a deferral declaration (whether a full deferral declaration or a part deferral declaration) has previously been made by the Minister in relation to the road transport minimum standards order.

Note: The Minister may make deferral declarations in relation to minimum standards orders under Subdivision A of this Division

(3) Subject to subsection (4), the FWC may make more than one part deferral determination in relation to a particular road transport minimum standards order.

(4) If more than one part deferral determination or part deferral declaration is made in relation to the same road transport minimum standards order as permitted by subsection (3) of this section or subsection 536KQB(3), a later part deferral determination must not have the effect of deferring, or purporting to defer, the application of a term to any person or class of persons:

(a) to whom the term already applies when the later part deferral determination is made; or

(b) in relation to whom the application of the terms has previously been deferred.

(1) If an application for a deferral determination in relation to a road transport minimum standards order is made, the FWC must:

(b) consult the Road Transport Advisory Group before making a decision on the application.

(2) If the road transport minimum standards order concerned comes into operation before the FWC makes a decision on the application, the FWC may treat the application as if it were an application for a suspension determination.

(4) The FWC must make the deferral determination if, and must not make the deferral determination unless, the FWC is satisfied that:

(a) the applicant has provided significant new facts or evidence that was not available at the time the FWC decided to make the road transport minimum standards order; and

(b) the significant new facts or evidence demonstrate that the road transport minimum standards order will not provide, or has not provided, an appropriate safety net of minimum standards for parties in the road transport industry, having regard to the minimum standards objective and the road transport objective.

(5) In considering whether the FWC is satisfied as mentioned in subsection (4), the FWC may have regard to whether one or more previous applications for variation or revocation of the road transport minimum standards order concerned have previously been made.

(6) The FWC must publish a deferral determination on the FWC's website and by any other means the FWC considers appropriate as soon as practicable after making the determination.

(a) is not in operation during any period when a full deferral determination in relation to the road transport minimum standards order is in operation; and

(b) is in operation during any period when a part deferral determination is in operation in relation to the road transport minimum standards order.

Note: Although a road transport minimum standards order is in operation during a period when a part deferral determination is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.

(1) An application may be made to the FWC for a determination (a suspension determination ) under subsection 536KQP(1) in relation to a road transport minimum standards order.

(a) an organisation that is entitled to represent the industrial interests of one or more regulated road transport contractors covered by the road transport minimum standards order;

(b) an organisation that is entitled to represent the industrial interests of one or more of the road transport businesses covered by the road transport minimum standards order;

Note: An Expert Panel can hear applications under this Act for the road transport industry together: see subsection 582(4).

(3) An application for a full suspension determination in relation to a road transport minimum standards order must be made within 12 months of the day on which the order came into operation.

(4) An application for a part suspension determination must be made within 12 months of whichever of the following days is applicable:

(a) if the part suspension determination will suspend the application of all of the terms of the road transport minimum standards order to a specified class--the first day on which all of the terms of the road transport minimum standards order applied to the class of person;

(b) if the part suspension determination will suspend the application of all of the terms of the road transport minimum standards order to 2 or more specified classes of persons--the day on which all of the terms of the road transport minimum standards order first applied to at least one of the specified classes of persons (even if all of the terms of the order did not apply to all of the specified classes on that day);

(c) if the part suspension determination will suspend the application of specified terms of the road transport minimum standards order to a specified class of persons--the first day on which the specified terms applied to the specified class of persons;

(d) if the part suspension determination will suspend the application of specified terms of the road transport minimum standards order to 2 or more specified classes of persons--the day on which the specified terms of the road transport minimum standards order first applied to at least one of the specified classes of persons (even if the order did not apply to all of the specified classes on that day);

(e) if the part suspension determination will suspend the application of specified terms of the road transport minimum standards order to all persons--the first day on which the specified terms applied to all persons.

(1) The FWC may, on application under subsection 536KQN(1), make a suspension determination:

(i) the application of a road transport minimum standards order to a specified class or specified classes of persons; or

(ii) the application of specified terms of a road transport minimum standards order to a specified class or specified classes of persons; or

(iii) the application of specified terms of road transport minimum standards order to all persons.

Note 1: A person may also apply for a variation or revocation of a road transport minimum standards order under section 536KP.

Note 2: Judicial review of decisions of the FWC is available--see paragraph 39B(1A)(c) of the Judiciary Act 1903 .

(2) A suspension determination made under paragraph (1)(a) is a full suspension determination , and a suspension determination made under paragraph (1)(b) is a part suspension determination , in relation to the road transport minimum standards order to which the suspension determination relates.

(3) If the FWC makes a suspension determination in relation to a road transport minimum standards order, the suspension determination must specify the period for which the order is suspended, which:

(4) Subject to subsection (5), a period of suspension specified in a suspension determination ends immediately after the end of the period specified in the suspension determination under subsection (3).

(5) If the period of suspension has not already ended under subsection (4) when the FWC makes a decision under subsection 536KQS(2) as to whether to vary or revoke the road transport minimum standards order, the period of suspension ends on whichever of the following days is applicable:

(a) if the FWC decides to vary or revoke the road transport minimum standards order--on the day that the determination made under subsection 536KQ(1) varying or revoking the minimum standards order comes into operation, which must not be later than 12 months after the day on which the suspension determination was made;

(b) if the FWC decides not to vary or revoke the road transport minimum standards order:

(1) If an application for a suspension determination in relation to a road transport minimum standards order is made, the FWC must:

(b) consult the Road Transport Advisory Group before making a decision on the application.

(3) The FWC must make the suspension determination if, and must not make the suspension determination unless, the FWC is satisfied that:

(a) the applicant has provided significant new facts or evidence that was not available at the time the FWC decided to make the road transport minimum standards order; and

(4) In considering whether the FWC is satisfied as mentioned in subsection (3), the FWC may have regard to whether one or more previous applications for variation or revocation of the minimum standards order have previously been made.

(5) If the FWC makes the suspension determination, the FWC may make any orders it considers appropriate to ensure that no person is unfairly affected by the suspension.

(6) The FWC must publish a suspension determination on the FWC's website and by any other means the FWC considers appropriate as soon as practicable after making the determination.

(7) The making of a suspension determination does not affect any right or liability that a person acquired, accrued or incurred before the suspension determination is made.

(a) is not in operation during any period when a full suspension determination in relation to the road transport minimum standards order is in operation; and

(b) is in operation during any period when a part suspension determination is in operation in relation to the road transport minimum standards order.

(a) the Minister makes a deferral declaration or a suspension declaration in relation to a minimum standards order; or

(b) the FWC makes a deferral determination or a suspension determination in relation to a road transport minimum standards order.

(2) The FWC must, as soon as practicable, consider whether or not to vary or revoke the minimum standards order. The FWC must:

(a) must not vary or revoke the minimum standards order unless there has been genuine engagement with the parties to be covered; and

(b) in the case of a road transport minimum standards order--must not vary or revoke the road transport minimum standards order unless the Road Transport Advisory Group has been consulted; and

(c) in the case of a road transport minimum standards order--must have regard to the commercial realities of the road transport industry; and

(d) in the case of a road transport minimum standards order--must be satisfied that the variation or revocation of the minimum standards order will not unduly affect the viability and competitiveness of owner drivers or other similar persons; and

(e) in the case of an employee - like worker minimum standards order--must have regard to choice and flexibility in working arrangements.

Special preconditions for variation or revocation: road transport minimum standards order

(4) In addition to the matters mentioned in subsection (3), the FWC must not vary or revoke a road transport minimum standards order in relation to which a deferral declaration or a deferral determination has been made unless the FWC has followed the process set out in Division 3B of this Part in relation to the variation or revocation.

Special preconditions for variation or revocation: employee - like worker minimum standards order

(5) In addition to the matters mentioned in subsection (3), the FWC must not vary or revoke an employee - like worker minimum standards order in relation to which a deferral declaration or a deferral determination has been made unless the FWC has followed the process set out in Division 3C of this Part in relation to the variation or revocation.

(6) The FWC must publish notice of the FWC's decision under subsection (2) on the FWC's website and by any other means the FWC considers appropriate.

(7) The end of a period of suspension of a minimum standards order under subsection 536KQD(4) or (5) or 536KQP(4) or (5) does not affect the FWC's obligation to consider whether or not to vary or revoke the minimum standards order.

(1) Before deciding to vary or revoke a road transport minimum standards order in relation to which a deferral declaration or a deferral determination has been made, the FWC must:

(a) publish a notice (a notice of intent ) stating that the FWC proposes to vary or revoke the road transport minimum standards order; and

(b) if the proposal is to vary the road transport minimum standards order--publish a draft of the road transport minimum standards order as proposed to be varied.

(2) The FWC must publish the notice of intent and the draft of the road transport minimum standards order as proposed to be varied (if applicable) on the FWC's website and by any other means the FWC considers appropriate as soon as practicable after making the determination.

(1) The FWC must ensure that affected entities have a reasonable opportunity to make written submissions to the FWC for its consideration in relation to the proposed variation or revocation of a road transport minimum standards order in relation to which a notice of intent has been published under paragraph 536KQT(1)(a).

(4) The publishing of material under subsections (2) and (3) must be on the FWC's website and by any other means the FWC considers appropriate.

(5) A reference in this Act (other than in this section) to a submission under this section includes a reference to a summary or statement referred to in paragraph (3)(b).

(6) For the purposes of subsection (1), an affected entity , in relation to a proposed variation or revocation of a road transport minimum standards order in relation to which a notice of intent has been published under paragraph 536KQT(1)(a), is:

(a) a person or body likely to be affected by the proposed variation or revocation; or

(b) a person or body prescribed by the regulations, or belonging to a class of persons or bodies prescribed by the regulations.

(7) The FWC may, but is not required to, hold a hearing in relation to the following:

(1) The FWC may make any changes it thinks appropriate to a draft road transport minimum standards order as proposed to be varied.

(2) If changes proposed to be made under subsection (1) are significant, the FWC must:

(a) decide not to vary the road transport minimum standards order based on the draft; and

(b) publish a subsequent notice of intent under subsection 536KQT(1)(a) in relation to the revised draft road transport minimum standards order, and publish the revised draft; and

(c) follow the process set out in section 536KQU in relation to the revised draft road transport minimum standards order (with the period of consultation under that section to be no shorter than 12 months starting when the subsequent notice of intent and the revised draft required by paragraph (b) of this subsection were published).

(1) Before deciding to vary or revoke an employee - like worker minimum standards order in relation to which a deferral declaration or a deferral determination has been made, the FWC must:

(a) publish a notice (a notice of intent ) stating that the FWC proposes to vary or revoke the employee - like worker minimum standards order; and

(b) if the proposal is to vary the employee - like worker minimum standards order--publish a draft of the proposed employee - like worker minimum standards order as proposed to be varied.

(2) The FWC must publish the notice of intent and the draft of the employee - like worker minimum standards order as proposed to be varied (if applicable) on the FWC's website and by any other means the FWC considers appropriate.

(1) The FWC must ensure that affected entities have a reasonable opportunity to make written submissions to the FWC for its consideration in relation to the proposed variation or revocation of an employee - like worker minimum standards order in relation to which a notice of intent has been published under paragraph 536KQW(1)(a), having regard to the unique nature of digital platform work.

(4) The publishing of material under subsections (2) and (3) must be on the FWC's website and by any other means the FWC considers appropriate.

(5) A reference in this Act (other than in this section) to a submission under this section includes a reference to a summary or statement referred to in paragraph (3)(b).

(6) For the purposes of subsection (1), an affected entity , in relation to a proposed variation or revocation of an employee - like worker minimum standards order in relation to which a notice of intent has been published under paragraph 536KQW(1)(a), is:

(a) a person or body likely to be affected by the proposed variation or revocation; or

(b) a person or body prescribed by the regulations, or belonging to a class of persons or bodies prescribed by the regulations.

(7) The FWC may, but is not required to, hold a hearing in relation to the following:

(a) a draft employee - like worker minimum standards order as proposed to be varied;

(1) The FWC may make any changes it thinks appropriate to a draft employee - like worker minimum standards order as proposed to be varied.

(2) If changes proposed to be made under subsection (1) are significant, the FWC must:

(a) decide not to vary the employee - like worker minimum standards order based on the draft; and

(b) publish a subsequent notice of intent under paragraph 536KQW(1)(a) in relation to the revised draft employee - like worker minimum standards order, and publish the revised draft; and

(c) follow the process set out in section 536KQX in relation to the revised draft employee - like worker minimum standards order (with the period of consultation under that section to be a period that the FWC is satisfied is reasonable having regard to the unique nature of digital platform work).

(1) The FWC may make minimum standards guidelines under this section that set standards for regulated workers performing work under a services contract.

(2) Minimum standards guidelines for employee - like workers are employee - like worker guidelines .

(3) Minimum standards guidelines for regulated road transport contractors are road transport guidelines .

(1) Any of the following may apply to the FWC for the making of minimum standards guidelines:

(a) an organisation that is entitled to represent the industrial interests of one or more regulated workers who would be covered by the proposed minimum standards guidelines;

(b) an organisation that is entitled to represent the industrial interests of one or more of the regulated businesses that would be covered by the proposed minimum standards guidelines;

(c) a regulated business that is included in a class of regulated businesses that would be covered by the proposed minimum standards guidelines;

(2) An application for the making of minimum standards guidelines must specify the class of regulated workers to be covered by the guidelines.

(2A) An application for the making of minimum standards guidelines must specify the class of regulated businesses to be covered by the guidelines.

(3) Without limiting the way in which a class may be described for the purposes of subsection (2) or (2A), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.

(1) This section applies to a decision to make or vary, or not to make or vary, employee - like worker guidelines, other than a decision of the FWC to refuse to consider an application to make or vary such guidelines.

(2) Before making a decision under section 536KU, the FWC must consider whether, on the whole, the persons included (or purportedly included) in the class of employee - like workers to be covered by the minimum standards guidelines, or the guidelines as proposed to be varied, are employee - like workers.

(3) If the FWC is not satisfied that, on the whole, the persons included (or purportedly included) in the class of employee - like workers to be covered by the minimum standards guidelines, or the guidelines as proposed to be varied, are employee - like workers, the FWC must decide to refuse to consider the application, or not to make or vary the guidelines, as the case requires.

(1) If an application for minimum standards guidelines is made to the FWC under subsection 536KS(1), the FWC may decide to:

(d) if the FWC considers it appropriate to do so, instead make a minimum standards order under subsection 536JY(1) instead, as if the application had been an application under subsection 536JZ(1) for a minimum standards order in relation to the regulated workers covered by the application under subsection 536KS(1).

(2) Without limiting subsection (1), the FWC may refuse to consider the application if it is not consistent with a direction of the President under subsection 582(4D) (prioritisation).

The FWC must not make minimum standards guidelines that cover the same regulated workers and the same regulated businesses in relation to the same matters as a minimum standards order that is in operation.

Minimum standards guidelines must include terms setting out the same matters in relation to minimum standards orders as set out in the following:

Minimum standards guidelines may include terms about any of the matters that may be included in minimum standards orders under section 536KL.

Minimum standards guidelines must not include terms about any of the matters that must not be included in minimum standards orders as set out in the following:

(a) in the case of employee - like worker minimum standards orders and road transport minimum standards orders--in section 536KM;

(aa) in the case of employee - like worker minimum standards orders--in section 536KMA;

(1) The FWC may make a determination varying or revoking minimum standards guidelines if the FWC is satisfied that making the determination is consistent with:

(b) if the President considers that the determination might relate to the road transport industry--the road transport objective.

(2) The FWC may make a determination varying minimum standards guidelines in such a way that not all of the elements of the variation sought in an application under section 536L are implemented, including by refusing to make a variation to the extent that it would result in the guidelines covering persons who are not regulated workers.

(3) The FWC may make a determination varying minimum standards guidelines to remove an ambiguity or uncertainty or to correct an error.

(4) The FWC may make a determination varying or revoking minimum standards guidelines:

(5) If the FWC makes a minimum standards order that covers the same regulated workers and the same regulated businesses in relation to the same matters as minimum standards guidelines, the FWC must revoke the minimum standards guidelines with effect on and from the day on which the minimum standards order comes into operation.

(6) If the FWC makes a minimum standards order that covers some or all of the same regulated workers and the same regulated businesses in relation to some or all of the same matters as minimum standards guidelines, the FWC must vary the minimum standards guidelines so that the guidelines do not cover the regulated workers, regulated businesses or matters covered by the order, with effect on and from the day on which the order comes into operation.

Any of the following may apply to the FWC for a determination varying or revoking minimum standards guidelines:

(a) an organisation that is entitled to represent the industrial interests of one or more regulated workers covered by the minimum standards guidelines, or who would be covered by the minimum standards guidelines as proposed to be varied;

(b) an organisation that is entitled to represent the industrial interests of one or more of the regulated businesses covered by the minimum standards guidelines, or that would be covered by the minimum standards guidelines as proposed to be varied;

(c) a regulated business covered by the minimum standards guidelines, or that would be covered by the minimum standards order as proposed to be varied;

This Part is about:

(a) unfair deactivation from digital labour platforms of employee - like workers; and

(b) unfair termination of the services contracts of regulated road transport contractors.

Division 2 sets out when a person is protected from unfair deactivation or unfair termination.

Division 3 sets out the elements that make up unfair deactivation or unfair termination.

Division 4 sets out the remedies that the FWC can grant for unfair deactivation or unfair termination.

Division 5 is about the procedural aspects of getting remedies for unfair deactivation or unfair termination.

(a) to establish a framework for dealing with unfair deactivation of employee - like workers, and unfair termination of regulated road transport contractors, that balances:

(b) to establish procedures for dealing with unfair deactivation and unfair termination that:

(c) to provide remedies if a deactivation or termination is found to be unfair, with an emphasis on reactivation or reinstatement, as the case requires.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the regulated businesses and regulated workers concerned.

Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.

(i) performs work through or by means of a digital labour platform operated by a digital labour platform operator; or

(ii) performs work under a services contract arranged or facilitated through or by means of a digital labour platform operated by a digital labour platform operator; and

(c) the person has been performing work through or by means of that digital labour platform, or under a contract, or a series of contracts, arranged or facilitated through or by means of the digital labour platform, on a regular basis for a period of at least 6 months.

(b) a road transport business receives services under a services contract (whether or not the business is a party to the services contract) under which the person performs work in the road transport industry; and

(c) the person has been performing work in the road transport industry under a services contract, or a series of services contracts, under which that road transport business receives services for a period of at least 6 months.

(a) the person performed digital platform work through or by means of the digital labour platform; and

(b) the digital labour platform operator modified, suspended, or terminated the person's access to the digital labour platform; and

(c) the person is no longer able to perform work under an existing or prospective services contract, or the ability of the person to do so is so significantly altered that in effect the person is no longer able to perform such work.

(1) In considering whether it is satisfied that a person's deactivation was unfair, the FWC must take into account:

(a) whether there was a valid reason for the deactivation related to the person's capacity or conduct; and

(b) whether any relevant processes specified in the Digital Labour Platform Deactivation Code were followed; and

(2) Despite subsection (1) and any other provision of this Part, a deactivation that occurs because of serious misconduct of the person who was deactivated is not unfair.

(3) Despite subsection (1) and any other provision of this Part, a deactivation of a person from a digital labour platform is not unfair if:

(a) the deactivation is constituted by the modification or suspension of the person's access to the digital labour platform for a period of not more than 7 business days; and

(b) the FWC is satisfied that the digital labour platform operator concerned believes on reasonable grounds that one or more of the matters in subsection (4) is applicable.

(a) that the deactivation of the person is necessary to protect the health and safety of a user of the digital labour platform or member of the community;

(b) that the person has engaged in fraudulent or dishonest conduct including, but not limited to, by misrepresenting or falsifying information provided to the digital labour platform operator;

(c) that the person has not complied with licensing and accreditation requirements imposed by or under a law of the Commonwealth, a State or a Territory, whether:

(ii) the requirements relate to the licensing or accreditation of the digital labour platform operator, and the person's conduct causes, or may cause, the digital labour platform operator to breach the requirements;

(d) that the deactivation of the person is necessary to enable the digital labour platform operator to do one or more of the following in relation to a matter specified in paragraph (a), (b) or (c):

(ii) refer the matter to a law enforcement agency (however described) for the purposes of conducting an investigation.

(1) The Minister must, by legislative instrument, make code to be known as the Digital Labour Platform Deactivation Code.

(2) Without limiting the matters covered by the Digital Labour Platform Deactivation Code, the code must deal with the following matters:

(d) the internal processes of digital labour platform operators in relation to deactivation;

(e) communication between the employee - like worker and the digital labour platform operator in relation to deactivation;

(f) the accessibility in practice of the internal processes of digital labour platform operators in relation to deactivation;

(g) the treatment of data relating to the work performed by employee - like workers.

(2A) Before the Minister makes a code under subsection (1), the Minister must be satisfied that there has been such public consultation in relation to the development of the code as the Minister considers appropriate.

(2B) The Minister may, by legislative instrument, vary or revoke the Digital Labour Platform Deactivation Code.

(2C) Before the Minister varies or revokes the Digital Labour Platform Deactivation Code under subsection (2B), the Minister must be satisfied that there has been such public consultation in relation to the variation or revocation as the Minister considers appropriate.

(2D) Subsection (2C) does not apply in relation to a variation if the Minister considers the variation is minor or technical.

(3) A person's deactivation was consistent with the Digital Labour Platform Deactivation Code if, at the time of the deactivation, the digital labour platform operator complied with the Digital Labour Platform Deactivation Code in relation to the deactivation.

(d) the termination was not consistent with the Road Transport Industry Termination Code.

(a) the person performed work as a regulated road transport contractor under a services contract; and

(b) a road transport business received services under the services contract; and

(1) In considering whether it is satisfied that a termination was unfair, the FWC must take into account:

(a) whether there was a valid reason for the termination related to the person's capacity or conduct; and

(b) whether any relevant processes specified in the Road Transport Industry Termination Code were followed; and

(2) Despite subsection (1) and any other provision of this Part, a termination that occurs because of serious misconduct of the person who was deactivated is not unfair.

(1) The Minister may, by legislative instrument, make a code to be known as the Road Transport Industry Termination Code.

(2) Without limiting the matters covered by the Road Transport Industry Termination Code, the code must deal with the following matters:

(d) communication between the regulated road transport contractor and road transport business in relation to a termination.

(3) A person's termination was consistent with the Road Transport Industry Termination Code if, immediately before the time of the termination, or at the time the person was given notice of the termination (whichever happened first), the regulated road transport business that terminated the services contract concerned or as a result of whose conduct the services contract concerned was terminated, complied with the Road Transport Industry Termination Code.

(a) the FWC is satisfied that the person was protected from unfair deactivation (see section 536LD) at the time of being deactivated; and

(2) The FWC may make the order only if the person has made an application under section 536LU.

Note: Division 5 deals with procedural matters such as applications for remedies.

(1) An order for a person's reactivation must be an order that the digital labour platform operator who operated the digital labour platform at the time of the deactivation take measures to restore the person to the position they would have been in but for the deactivation, including as follows:

(a) if the person's access to the digital labour platform was suspended--by removing the suspension;

(b) if the person's access to the digital labour platform was terminated--by reinstating the person's access to the digital labour platform;

(c) by modifying the person's access to the digital labour platform so that the access is as it was before the person's access to the digital labour platform was terminated or suspended.

(a) the digital labour platform (the original digital labour platform ) from which the person was deactivated no longer exists; and

(b) a similar digital labour platform (the second digital labour platform ) is operated by an associated entity of the operator of the original digital labour platform;

the order under subsection (1) may be an order to the associated entity to provide access to the second digital labour platform on terms and conditions no less favourable than those immediately before the person's access to the original digital labour platform was terminated or suspended.

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the digital labour platform operator or the associated entity to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the deactivation.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from work of any kind during the period between the deactivation and the making of the order for reactivation; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reactivation and the actual reactivation.

(1) Subject to subsection (3), the FWC may order that a new contract be entered into, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair termination (see section 536LE) at the time of being terminated; and

(2) The FWC may make the order only if the person has made an application under section 536LU.

(a) the FWC is satisfied that entering into a new services contract would be inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

(1) An order for a new contract must be an order that the road transport business at the time of the termination enter into a new contract in the same terms as the services contract at the time of the termination or with such variations as the FWC considers appropriate.

(a) the road transport business at the time of the termination is no longer a road transport business; and

(b) an associated entity of the road transport business is a road transport business;

the order under subsection (1) may be an order to the associated entity to enter into a new contract on terms and conditions no less favourable than the services contract immediately before the termination, with such variations as the FWC considers appropriate.

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the road transport business to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the termination.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from work of any kind during the period between the termination and the making of the order that the road transport business enter into a new services contract with the person; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order that the road transport business enter into a new services contract with the person and when the new services contract is entered into.

(1) An order for the payment of compensation to a person must be an order that the road transport business at the time of the termination pay compensation to the person in lieu of entering into a new services contract.

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the road transport business; and

(b) the remuneration that the person would have received, or would have been likely to receive, if the person had not been terminated; and

(d) the amount of any remuneration earned by the person from work of any kind during the period between the termination and the making of the order for compensation; and

(e) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(3) If the FWC is satisfied that misconduct of a person contributed to the road transport business's decision to terminate the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's termination.

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(b) half the amount of the contractor high income threshold immediately before the termination.

(6) The amount is the total amount of remuneration received by the person or to which the person was entitled (whichever is higher) for any period during which the person performed work under the services contract during the 26 weeks immediately before the termination.

(1) A person who has been deactivated or terminated may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair deactivation or unfair termination.

Note 3: Part 6 - 1 may prevent an application being made under this Part in relation to a deactivation or termination if an application or complaint has been made in relation to the deactivation or termination other than under this Part.

(2) A person must not make an application under subsection (1) unless the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the contractor high income threshold.

(4) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) whether the person first became aware of the deactivation or termination after it had taken effect; and

(d) prejudice to the regulated business (including prejudice caused by the delay); and

(f) fairness as between the person and other regulated workers in a similar position; and

(g) any processes specified in the Digital Labour Platform Deactivation Code or the Road Transport Industry Termination Code, as the case requires.

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 536LU(3);

(b) whether the person was protected from unfair deactivation or unfair termination, as the case requires;

(c) whether the deactivation or termination was consistent with the Digital Labour Platform Deactivation Code or the Road Transport Industry Termination Code, as the case requires.

The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.

(1) This section applies in relation to a matter arising under this Part if the FWC conducts a conference in relation to the matter.

(3) The FWC must take into account any difference in the circumstances of the parties to the matter in:

(4) The FWC must take into account the wishes of the parties to the matter as to the way in which the FWC:

(1) The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account:

(b) whether a hearing would be the most effective and efficient way to resolve the matter.

(2) If the FWC holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.

(3) The FWC may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 536MB).

(2) The FWC may exercise its power under subsection (1) on application by a regulated business.

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party ) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 536MD.

(3) This section does not limit the FWC's power to order costs under section 611.

(a) an application for an unfair deactivation or unfair termination remedy has been made under section 536LU; and

(b) a person who is a party to the matter has engaged a lawyer or paid agent (the representative ) to represent the person in the matter; and

(2) The FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because:

(a) the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or

(b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.

(3) The FWC may make an order under this section only if the other party to the matter has applied for it in accordance with section 536MD.

(4) This section does not limit the FWC's power to order costs under section 611.

An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 536MB or 536MC, must be made within 14 days after:

(1) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order:

including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.

(2) If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611 in relation to a matter arising under this Part, or awarding costs under section 536MB or 536MC, the FWC:

(b) if an item does appear in the schedule--must not award costs in relation to that item at a rate or of an amount that exceeds the rate or amount appearing in the schedule.

The procedural rules may provide for the furnishing of security for the payment of costs in relation to matters arising under this Part.

A person to whom an order under this Part applies must not contravene a term of the order.

This Part is about collective agreements. A collective agreement is made between a regulated business, specifically a digital labour platform operator or a road transport business, and an organisation.

A collective agreement provides terms and conditions for the regulated workers to whom it applies.

Division 2 deals with the making of collective agreements and provides for the giving of consultation notices, and for the notification of regulated workers.

Division 3 deals with the registration of collective agreements by the FWC.

Division 4 deals with the variation of collective agreements.

Division 5 deals with the termination of collective agreements.

Division 6 deals with terms of a collective agreement that are of no effect.

The object of this Part is to provide a simple, flexible and fair framework that enables collective agreements to be made by consent for:

(1) This section provides for the making of an agreement (a collective agreement ) between a regulated business and an organisation that is entitled to represent the industrial interests of one or more regulated workers.

(2) A collective agreement may be made between a digital labour platform operator and an organisation that is entitled to represent the industrial interests of one or more employee - like workers, in respect of the following:

(a) the terms and conditions on which employee - like workers covered by the collective agreement perform digital platform work:

(i) under a services contract to which the digital labour platform operator is a party; or

(ii) under a services contract arranged or facilitated through or by means of the digital labour platform operated by the digital labour platform operator;

Note: For when a collective agreement covers a digital labour platform operator, an employee - like worker or an organisation, see section 536JM.

(3) A collective agreement may be made between a road transport business and an organisation that is entitled to represent the industrial interests of one or more regulated road transport contractors, in respect of the following:

(a) the terms and conditions on which regulated road transport contractors covered by the collective agreement perform work under services contracts to which the road transport business is a party;

Note: For when a collective agreement covers a road transport business, a regulated road transport contractor or an organisation, see section 536JM.

(4) A collective agreement referred to in subsection (2) is an employee - like worker collective agreement .

(5) A collective agreement referred to in subsection (3) is a road transport collective agreement .

(1) The following entities may initiate a consultation period for a proposed collective agreement by giving a notice under this section (a consultation notice for the agreement):

(a) a regulated business that will be covered by the proposed collective agreement;

(b) an organisation that is entitled to represent the industrial interests of one or more regulated workers who will be covered by the proposed collective agreement.

(2) A consultation notice for a proposed collective agreement must specify the following:

(a) that the entity giving the notice (the notifying entity ) proposes to try to make a collective agreement under this Part;

(i) if the notifying entity is a regulated business--the name of the organisation to which the consultation notice is given;

(d) the regulated business that will be covered by the proposed collective agreement;

(e) the class of regulated workers who will be covered by the proposed collective agreement.

(1) A consultation notice for a proposed collective agreement must be given on the same day:

(i) if the notifying entity is a regulated business--to an organisation that is entitled to represent the industrial interests of the regulated workers who will be covered by the proposed collective agreement;

(ii) otherwise--to the regulated business that will be covered by the agreement.

(2) The notifying entity for a consultation notice, and the entity to which the consultation notice is given, are the negotiating entities for the proposed collective agreement.

(3) The FWC must publish a copy of the consultation notice on the FWC's website.

(1) After a consultation notice has been given for a proposed collective agreement, either negotiating entity for the agreement must, with the consent of the other negotiating entity, make reasonable efforts to give a notice under this section to whichever of the following is applicable:

(a) for a proposed employee - like worker collective agreement--each eligible employee - like worker for the proposed collective agreement (see subsection (3));

(b) for a proposed road transport collective agreement--each eligible regulated road transport contractor for the proposed collective agreement (see subsection (4)).

(a) the regulated business that will be covered by the proposed collective agreement;

(b) the class of regulated workers that will be covered by the proposed collective agreement, and that the regulated worker to whom the notice is given is included in that class;

(3) For the purposes of this section, an eligible employee - like worker for a proposed employee - like worker collective agreement is an employee - like worker who, at any time during the period of 28 days before the consultation notice was given, was performing work under a services contract:

(a) through or by means of a digital labour platform operated by the digital labour platform operator that will be covered by the proposed collective agreement; or

(b) arranged or facilitated through or by means of a digital labour platform operated by the digital labour platform operator that will be covered by the proposed collective agreement.

(4) For the purposes of this section, an eligible regulated road transport contractor for a proposed road transport collective agreement is a regulated road transport contractor who, at any time during the period of 28 days before the consultation notice was given, was performing work under a services contract to which a road transport business that will be covered by the proposed collective agreement is a party.

(1) If the negotiating entities for a proposed collective agreement are unable to resolve a dispute about the making of the agreement, either negotiating entity may apply to the FWC for the FWC to deal with the dispute.

(2) If an application is made under subsection (1), the FWC must deal with the dispute (other than by arbitration).

Note: For the purposes of this section, the FWC may deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may dismiss an application under subsection (1) if the FWC is satisfied that there are no reasonable prospects of the negotiating entities for the proposed collective agreement making a collective agreement.

(1) A negotiating entity for a proposed collective agreement may request the other negotiating entity for the agreement to sign the agreement.

(2) A request under subsection (1) must not be made earlier than 30 days after the last day on which a notice was given to an employee - like worker or a regulated road transport contractor, as the case requires, under subsection 536MN(1) in relation to the proposed collective agreement.

(3) The collective agreement is made when both of the negotiating parties for the agreement sign the agreement.

(1) If a collective agreement is made, a negotiating entity for the agreement that signed the agreement may, with the consent of the other negotiating entity for the agreement, apply to the FWC to register the agreement.

(2) The application must be accompanied by a signed copy of the collective agreement, which must identify the following:

(3) The application must be accompanied by a declaration signed by the regulated business and the organisation covered by the collective agreement, which must:

(a) state that the regulated business and the organisation explained the terms of the agreement and their effect to the regulated workers covered by the agreement, and a description of the explanation; and

(b) state that the regulated business or the organisation, as the case requires, made reasonable efforts to give a notice under paragraph 536MN(1)(a) or (b) to the regulated workers referred to in whichever of those paragraphs is applicable; and

(c) state that none of the following were subject to any form of duress in relation to the making of the collective agreement:

(iii) a regulated worker to whom a notice was given under paragraph 536MN(1)(a) or (b); and

(e) if a minimum standards order is in operation that covers the same class of regulated workers as the collective agreement covers--specify:

(ii) in relation to each matter dealt with by a term of the collective agreement that is also dealt with by a term of the minimum standards order--how the term of the collective agreement is more beneficial to the regulated workers covered by the collective agreement in relation to that matter than the term of the order in relation to that matter.

(4) The application must be accompanied by any other declaration required by the procedural rules.

(1) If an application for the registration of a collective agreement is made under subsection 536MR(1), the FWC must register the agreement if the requirements of section 536MR and subsections (2), (3) and (3A) of this section are met in relation to the agreement.

(2) The FWC must be satisfied that the collective agreement includes a term that provides a procedure that requires or allows the FWC, or another person who is independent of the persons covered by the agreement, to settle disputes:

(b) that allows for the representation of regulated workers covered by the collective agreement for the purposes of that procedure.

(3) The FWC must be satisfied that the collective agreement includes the following:

(b) a term that provides for requirements in relation to terminating the collective agreement before the end of that period.

(3A) The FWC must be satisfied that the operation of the agreement would not be contrary to the public interest, taking into account the object of this Part set out in section 536MJ.

(4) The FWC must publish a copy of the collective agreement and the declaration referred to in subsection 536MR(3) on the FWC's website.

(1) The following may apply for a variation of a collective agreement that is in operation:

(2) The application must be accompanied by a signed copy of the collective agreement as proposed to be varied, which must identify the following:

(3) The application must be accompanied by a declaration signed by the regulated business and the organisation covered by the collective agreement, which must:

(a) state that the regulated business and the organisation explained the terms of the agreement and their effect to the regulated workers covered by the agreement as proposed to be varied, and a description of the explanation; and

(b) if a minimum standards order is in operation that covers the same class of regulated workers as the collective agreement as proposed to be varied--specify:

(ii) in relation to each matter dealt with by a term of the collective agreement as proposed to be varied that is also dealt with by a term of the minimum standards order--how the term of the collective agreement as proposed to be varied is more beneficial to the regulated workers covered by the collective agreement as proposed to be varied, in relation to that matter, than the term of the order in relation to that matter; and

(c) that no regulated worker, regulated business or organisation covered by the collective agreement as proposed to be varied was subject to any form of duress in relation to the variation.

(4) The application must be accompanied by any other declaration required by the procedural rules.

(1) If an application for a variation of a collective agreement is made under subsection 536MT(1), the FWC must register the agreement as varied if the requirements of section 536MT and subsection (1A) of this section are met in relation to the variation.

(1A) The FWC must be satisfied that variation of the agreement would not be contrary to the public interest, taking into account the object of this Part set out in section 536MJ.

(2) The FWC must publish a copy of the collective agreement as varied and the declaration referred to in subsection 536MT(3) on the FWC's website.

(3) The variation comes into operation when the agreement as varied is registered.

(1) This section applies if a collective agreement has been terminated in accordance with the process specified in the agreement for terminating the agreement before the end of its period of operation.

(2) The regulated business or the organisation covered by the collective agreement must, with the consent of the other, notify the FWC of the termination on the date the agreement is terminated.

(3) The notice under subsection (2) must be accompanied by a declaration signed by the regulated business and the organisation covered by the collective agreement:

(a) stating that the collective agreement has been terminated in accordance with the process; and

(4) The notice must be accompanied by any other declaration required by the procedural rules.

(1) If a notice is given to the FWC under subsection 536MV(2) in relation to a collective agreement, the FWC must register the termination by publishing a notice on the FWC's website:

(b) specifying the date of effect of the termination specified in the declaration under paragraph 536MV(3)(b).

(2) The collective agreement ceases to operate on the date of effect of the termination specified in the declaration under paragraph 536MV(3)(b).

(1) A term of a collective agreement has no effect to the extent that it is a term about a matter other than a matter mentioned in subsection 536MK(2) or (3).

(2) A term of a collective agreement has no effect to the extent that it deals with matters that are primarily of a commercial nature that do not affect the terms and conditions of engagement of regulated workers covered by the agreement.

(3) However, if a collective agreement includes a term that has no effect because of subsection (1) or (2), the inclusion of the term does not prevent the agreement from being a collective agreement.

This Part is about unfair contract terms of services contracts.

It provides a framework for dealing with unfair contract terms.

(a) to establish a framework for dealing with unfair contract terms of services contracts that:

(i) balances the needs of principals and the needs of independent contractors; and

(ii) addresses the need for a level playing field between independent contractors and principals by creating disincentives to the inclusion of unfair contract terms in services contracts; and

(iii) recognises and protects the freedom of independent contractors to enter into services contracts; and

Note: The expression "fair go all round" was used by Sheldon J in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.

(1) The FWC may make an order under this Part in relation to a services contract if the FWC is satisfied that the services contract includes one or more unfair contract terms which, in an employment relationship, would relate to workplace relations matters.

(2) The FWC may make the order only if a person has made an application under section 536ND in relation to the services contract.

(3) The FWC must take into account fairness between the parties concerned in deciding whether to make an order under this Division, and the kind of order to make.

(1) In determining whether a term of a services contract is an unfair contract term, the FWC may take into account the following matters:

(b) whether the services contract as a whole displays a significant imbalance between the rights and obligations of the parties;

(c) whether the contract term under consideration is reasonably necessary to protect the legitimate interests of a party to the contract;

(d) whether the contract term under consideration imposes a harsh, unjust or unreasonable requirement on a party to the contract;

(e) whether the services contract as a whole provides for a total remuneration for performing work that is:

(i) less than regulated workers performing the same or similar work would receive under a minimum standards order or minimum standards guidelines; or

(2) The matters in paragraphs (1)(b) to (f) are to be assessed as at the time the FWC considers the application.

(a) setting aside all or part of a services contract which, in an employment relationship, would relate to a workplace relations matter; or

(b) amending or varying all or part of a services contract which, in an employment relationship, would relate to a workplace relations matter.

(1) A person who is party to a services contract, or an organisation that represents the industrial interests of a person who is party to a services contract, may apply to the FWC for an order under Division 3 granting a remedy on the basis that the services contract contains a term that is unfair.

(2) An application must not be made in relation to a services contract unless, in the year the application is made, the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the contractor high income threshold.

Note: Division 3 sets out when the FWC may order a remedy for an unfair contract term.