Section 135A — Fair Work Act 2009: Special provisions relating to penalty rates and overtime rates

(1) In exercising its powers under this Part to make, vary or revoke modern awards, the FWC must ensure that: (a) the rate of a penalty rate or an overtime rate that employees are entitled to receive is not reduced; and (b) modern awards do not include terms that substitute employees’ entitlements to receive penalty rates or overtime rates where those terms would have the effect of reducing the additional remuneration referred to in paragraph 134(1)(da) that any employee would otherwise receive. (2) Subsection (1) does not limit the operation of section 144 (flexibility terms) or section 160 (which deals with variation to remove ambiguities or correct errors). (3) Nothing in subsection (1) requires the FWC to exercise its powers under this Part to make, vary or revoke modern awards.