Section 101 — Fair Work Act 2009: Resolving uncertainties and difficulties about interaction between fair work instruments and the definition of casual employee and employee choice

(1) The FWC may make a determination varying a fair work instrument that is a modern award, enterprise agreement or workplace determination that was made before the commencement of this clause: (a) for an enterprise agreement or workplace determination—on application by an employer, employee or employee organisation covered by the enterprise agreement or workplace determination; or (b) for a modern award: (i) by the FWC on its own initiative; or (ii) on application by an employer organisation or employee organisation entitled to represent the industrial interests of an employer or employee covered by the award. (2) The FWC may make a determination varying the instrument: (a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and any of the following: (i) the definition of casual employee in section 15A of the amended Act (including to deal with uncertainty or difficulty arising from the circumstances in which employees are to be employed as casual employees under the agreement); (ii) the provisions of Division 4A of Part 2-2 of the amended Act; or (b) to make the instrument operate effectively with that section or those provisions. (3) A variation of a fair work instrument under this clause operates from the day specified in the determination, which may be a day before the determination is made. (4) If the determination relates to a modern award, the FWC must publish the award as varied as soon as practicable on the FWC’s website or by any other means the FWC considers appropriate.