Fair Work Act. Australia

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СКАЧАТЬ applies to a person and the significance of that for this Act.

      Note: In most cases, this Act applies to a workplace determination as if it were an enterprise agreement in operation (see section 279). For the rules about workplace determinations, see Part 2–5.

      Division 3 deals with the interaction between the National Employment Standards, modern awards and enterprise agreements.

      42 Meanings of employee and employer

      In this Part, employee means a national system employee, and employer means a national system employer.

      Division 2—Core provisions for this Chapter

      Subdivision A — Terms and conditions of employment provided under this Act

      43 Terms and conditions of employment provided under this Act

      Main terms and conditions

      (1) The main terms and conditions of employment of an employee that are provided under this Act are those set out in:

      (a) the National Employment Standards (see Part 2–2); and

      (b) a modern award (see Part 2–3), an enterprise agreement (see Part 2–4) or a workplace determination (see Part 2–5) that applies to the employee.

      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 СКАЧАТЬ