Section 167 — Fair Work Act 2009: Special rules relating to retrospective variations of awards

Application of this section (1) This section applies if a determination varying a modern award has a retrospective effect because it comes into operation under subsection 165(2) or 166(3) on a day before the day on which the determination is made. No effect on past approval of enterprise agreement or variation (2) If, before the determination was made, an enterprise agreement or a variation of an enterprise agreement was approved by the FWC, the validity of the approval is not affected by the retrospective effect of the determination. No creation of liability to pay pecuniary penalty for past conduct (3) If: (a) a person engaged in conduct before the determination was made; and (b) but for the retrospective effect of the determination, the conduct would not have contravened a term of the modern award or an enterprise agreement; a court must not order the person to pay a pecuniary penalty under Division 2 of Part 4-1 in relation to the conduct, on the grounds that the conduct contravened a term of the modern award or enterprise agreement. Note 1: This subsection does not affect the powers of a court to make other kinds of orders under Division 2 of Part 4-1. Note 2: A determination varying a modern award could result in a contravention of a term of an enterprise agreement because of the effect of subsection 206(2).