Section 333F — Fair Work Act 2009: Exceptions to limitations

(1) Subsection 333E(1) does not apply in relation to a contract of employment entered into by a person and an employee if: (a) the employee is engaged under the contract to perform only a distinct and identifiable task involving specialised skills; or (b) the employee is engaged under the contract in relation to a training arrangement; or (c) the employee is engaged under the contract to undertake essential work during a peak demand period; or (d) the employee is engaged under the contract to undertake work during emergency circumstances or during a temporary absence of another employee; or (e) in the year the contract is entered into the amount of the employee’s earnings under the contract is above the high income threshold for that year; or (f) the contract relates to a position for the performance of work that: (i) is funded in whole or in part by government funding or funding of a kind prescribed by the regulations for the purposes of this subparagraph; and (ii) the funding is payable for a period of more than 2 years; and (iii) there are no reasonable prospects that the funding will be renewed after the end of that period; or (g) the contract relates to a governance position that has a time limit under the governing rules of a corporation or association of persons; or (h) a modern award that covers the employee includes terms that permit any of the circumstances mentioned in subsections 333E(2) to (4) to occur; or (i) the contract is of a kind prescribed by the regulations for the purposes of this paragraph. (2) For the purposes of paragraph (1)(e), if under the terms of the contract either of the following apply: (a) the employee is required to work fewer hours than a full-time employee for a year; (b) the employee is required to work for only part of a year; the high income threshold for that year is taken, for the purposes of that paragraph, to be the amount, or the amount worked out using a method, prescribed by the regulations for the purposes of this subsection. (3) For the purposes of subsection (2), in determining whether an award/agreement free employee has worked fewer hours than a full-time employee, regard may be had to the following: (a) the hours of work of any other full-time employees or part-time employees of the employer employed in the same position as (or in a position that is comparable to) the position of the employee; (b) the definition of ordinary hours of work in subsection 20(2). Evidential burden (4) If, in proceedings for a civil penalty order against a person for a contravention of subsection 333E(1), the person wishes to rely on an exception in this section, then the person bears an evidential burden in relation to that matter.