Fair Work Act. Australia

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      23 Meaning of small business employer

      (1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

      (2) For the purpose of calculating the number of employees employed by the employer at a particular time:

      (a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

      (b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

      (3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

      (4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

      (a) the employee who is being dismissed or whose employment is being terminated; and

      (b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.

      Part 1–3—Application of this Act

      Division 1—Introduction

      24 Guide to this Part

      This Part deals with the extent of the application of this Act.

      Division 2 is about how this Act affects the operation of certain State or Territory laws.

      Divisions 2A and 2B are about the extended application of this Act in States that have referred to the Parliament of the Commonwealth matters relating to this Act.

      Division 3 is about the geographical application of this Act.

      Division 4 deals with other matters relating to the application of this Act.

      25 Meanings of employee and employer

      In this Part, employee and employer have their ordinary meanings.

      Division 2—Interaction with State and Territory laws

      26 Act excludes State or Territory industrial laws

      (1) This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.

      (2) A State or Territory industrial law is:

      (a) a general State industrial law; or

      (b) an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:

      (i) regulating workplace relations (including industrial matters, industrial activity, collective bargaining, industrial disputes and industrial action);

      (ii) providing for the establishment or enforcement of terms and conditions of employment;

      (iii) providing for the making and enforcement of agreements (including individual agreements and collective agreements), and other industrial instruments or orders, determining terms and conditions of employment;

      (iv) prohibiting conduct relating to a person’s membership or non-membership of an industrial association;

      (v) providing for rights and remedies connected with the termination of employment;

      (vi) providing for rights and remedies connected with conduct that adversely affects an employee in his or her employment; or

      (c) a law of a State or Territory that applies to employment generally and deals with leave (other than long service leave or leave for victims of crime); or

      (d) a law of a State or Territory providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal or comparable value; or

      (e) a law of a State or Territory providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; or

      (f) a law of a State or Territory that entitles a representative of a trade union to enter premises; or

      (g) an instrument made under a law described in paragraph (a), (b), (c), (d), (e) or (f), so far as the instrument is of a legislative character; or

      (h) either of the following:

      (i) a law that is a law of a State or Territory;

      (ii) an instrument of a legislative character made under such a law;

      that is prescribed by the regulations.

      (3) Each of the following is a general State industrial law:

      (a) the Industrial Relations Act 1996 of New South Wales;

      (b) the Industrial Relations Act 1999 of Queensland;

      (c) the Industrial Relations Act 1979 of Western Australia;

      (d) the Fair Work Act 1994 of South Australia;

      (e) the Industrial Relations Act 1984 of Tasmania.

      (4) A law or an Act of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to:

      (a) all employers and employees in the State or Territory; or

      (b) all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory.

      For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies.

      27 State and Territory laws that are not excluded by section 26

      (1A) Section 26 does not apply to any of the following laws:

      (a) the Anti-Discrimination Act 1977 of New South Wales;

      (b) the Equal Opportunity Act 1995 of Victoria;

      (c) the Anti-Discrimination Act 1991 of Queensland;

      (d) the Equal Opportunity Act 1984 of Western Australia;

      (e) the Equal Opportunity Act 1984 of South Australia;

      (f) the Anti-Discrimination СКАЧАТЬ