Note 1:The situations in which a workplace determination, rather than a modern award or enterprise agreement, provides an employee’s terms and conditions of employment are limited. In most cases, this Act applies to a workplace determination as if it were an enterprise agreement in operation (see section 279). See Part 2–5 generally for the rules on workplace determinations.
Note 2:Part 2–8 provides for the transfer of certain modern awards, enterprise agreements and workplace determinations if there is a transfer of business from an employee’s employer to another employer.
Other terms and conditions
(2) In addition, other terms and conditions of employment include:
(a) those terms and conditions arising from:
(i) a national minimum wage order (see Part 2–6); or
(ii) an equal remuneration order (see Part 2–7); and
(b) those terms and conditions provided by Part 2–9.
Note: Part 2–9 deals with miscellaneous terms and conditions of employment, such as payment of wages.
Subdivision B — Terms and conditions of employment provided by the National Employment Standards
44 Contravening the National Employment Standards
(1) An employer must not contravene a provision of the National Employment Standards.
Note: This subsection is a civil remedy provision (see Part 4–1).
(2) However, an order cannot be made under Division 2 of Part 4–1 in relation to a contravention (or alleged contravention) of subsection 65(5) or 76(4).
Note 1:Subsections 65(5) and 76(4) state that an employer may refuse a request for flexible working arrangements, or an application to extend unpaid parental leave, only on reasonable business grounds.
Note 2:Modern awards and enterprise agreements include terms about settling disputes in relation to the National Employment Standards (other than disputes as to whether an employer had reasonable business grounds under subsection 65(5) or 76(4)).
Subdivision C — Terms and conditions of employment provided by a modern award
45 Contravening a modern award
A person must not contravene a term of a modern award.
Note 1:This section is a civil remedy provision (see Part 4–1).
Note 2:A person does not contravene a term of a modern award unless the award applies to the person: see subsection 46(1).
46 The significance of a modern award applying to a person
(1) A modern award does not impose obligations on a person, and a person does not contravene a term of a modern award, unless the award applies to the person.
(2) A modern award does not give a person an entitlement unless the award applies to the person.
Note: Subsection (2) does not affect the ability of outworker terms in a modern award to be enforced under Part 4–1 in relation to outworkers who are not employees.
47 When a modern award applies to an employer, employee, organisation or outworker entity
When a modern award applies to an employee, employer, organisation or outworker entity
(1) A modern award applies to an employee, employer, organisation or outworker entity if:
(a) the modern award covers the employee, employer, organisation or outworker entity; and
(b) the modern award is in operation;and
(c) no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.
Note 1:Section 57 provides that a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.
Note 2:In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).
Modern awards do not apply to high income employees
(2) However, a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee.
Modern awards apply to employees in relation to particular employment
(3) A reference in this Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment.
48 When a modern award covers an employer, employee, organisation or outworker entity
When a modern award covers an employee, employer, organisation or outworker entity
(1) A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.
Note: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).
Effect of other provisions of this Act, FWA orders or court orders on coverage
(2) A modern award also covers an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award covers the employee, employer, organisation or outworker entity:
(a) a provision of this Act or of the Fair Work (Registered Organisations) Act 2009;
(b) an FWA order made under a provision of this Act;
(c) an order of a court.
(3) Despite subsections (1) and (2), a modern award does not cover an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award does not cover the employee, employer or organisation or outworker entity:
(a) a provision of this Act;
(b) an FWA order made under a provision of this Act;
(c) an order of a court.
Modern awards that have ceased to operate
(4) Despite subsections (1) and (2), a modern award that has ceased to operate does not cover an employee, employer, organisation or outworker entity.
Modern awards cover employees in relation to particular employment
(5) A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.
49 When a modern award is in operation
When a modern award comes into operation
(1) A modern award comes into operation:
(a) on 1 July in the next financial year after it is made; or
(b) if it is made on 1 July in a financial year — on that day.
(2) However, if FWA specifies another day as the day on which the modern award comes into operation, it comes into operation on that other day. FWA must not specify another day unless it is satisfied that it is appropriate to do so.
(3) The specified day must not be earlier than the day on which the modern award is made.
Note: For when a State reference