Fair Work Act 2009
Sections and provisions with full text and the judgments that cite each one.
Section 312 — Instruments that may transfer
Meaning of transferable instrument (1) Each of the following is a transferable instrument: (a) an enterprise agreement that has been approved by the FWC; (b) a workplace determination; (c) a named…
Section 313 — Transferring employees and new employer covered by transferable instrument
(1) If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then: (a) the…
Section 314 — New non-transferring employees of new employer may be covered by transferable instrument
(1) If: (a) a transferable instrument covers the new employer because of paragraph 313(1)(a); and (b) after the transferable instrument starts to cover the new employer, the new employer employs a…
Section 315 — Organisations covered by transferable instrument
Employer organisation covered by named employer award (1) If: (a) a named employer award covers the new employer because of paragraph 313(1)(a); and (b) the named employer award covered an employer…
Section 316 — Transferring employees who are high income employees
(1) This section applies if: (a) the old employer had given a guarantee of annual earnings for a guaranteed period to a transferring employee; and (b) the transferring employee was a high income…
Section 317 — FWC may make orders in relation to a transfer of business
This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.
Section 318 — Orders relating to instruments covering new employer and transferring employees
Orders that the FWC may make (1) The FWC may make the following orders: (a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring…
Section 319 — Orders relating to instruments covering new employer and non-transferring employees
Orders that the FWC may make (1) The FWC may make the following orders: (a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a non-transferring…
Section 320 — Variation of transferable instruments
Application of this section (1) This section applies in relation to a transferable instrument that covers, or is likely to cover, the new employer because of a provision of this Part. Power to vary…
Section 321 — Guide to this Part
This Part deals with other terms and conditions of employment. Division 2 is about the frequency and methods of payment of amounts payable to national system employees in relation to the performance…
Section 322 — Meanings of employee and employer
In this Part, employee means a national system employee, and employer means a national system employer. Note: See also Division 2 of Part 6-4A (TCF contract outworkers taken to be employees in…
Section 323 — Method and frequency of payment
(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work: (a) in full (except as provided by section 324); and (b) in money by one, or a…
Section 324 — Permitted deductions
(1) An employer may deduct an amount from an amount payable to an employee in accordance with subsection 323(1) if: (a) the deduction is authorised in writing by the employee and is principally for…
Section 325 — Unreasonable requirements to spend or pay amount
(1) An employer must not directly or indirectly require an employee to spend, or pay to the employer or another person, an amount of the employee’s money or the whole or any part of an amount payable…
Section 326 — Certain terms have no effect
Unreasonable deductions for benefit of employer (1) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term permits, or has the effect…
Section 327 — Things given or provided, and amounts required to be spent or paid, in contravention of this Subdivision
In proceedings for recovery of an amount payable to an employee in relation to the performance of work: (a) anything given or provided by the employer contrary to paragraph 323(1)(b) and subsection…
Section 327A — Offence—failing to pay certain amounts as required
(1) An employer commits an offence if: (a) the employer is required to pay an amount (a required amount) to, on behalf of, or for the benefit of, an employee under: (i) this Act; or (ii) a fair work…
Section 327B — The Voluntary Small Business Wage Compliance Code
(1) The Minister may, by legislative instrument, declare a Voluntary Small Business Wage Compliance Code. (2) If the Fair Work Ombudsman is satisfied that a small business employer complied with the…
Section 327C — Commencing proceedings for certain offences against this Act
(1) Proceedings for an offence against: (a) subsection 327A(1) (offence for failing to pay amounts as required); or (b) a related offence provision, to the extent that the related offence provision…
Section 328 — Employer obligations in relation to guarantee of annual earnings
Employer must comply with guarantee (1) An employer that has given a guarantee of annual earnings to an employee must (subject to any reductions arising from circumstances in which the employer is…
Section 329 — High income employee
(1) A full-time employee is a high income employee of an employer at a time if: (a) the employee has a guarantee of annual earnings for the guaranteed period; and (b) the time occurs during the…
Section 330 — Guarantee of annual earnings and annual rate of guarantee
(1) An undertaking given by an employer to an employee is a guarantee of annual earnings if: (a) the employee is covered by a modern award that is in operation; and (b) the undertaking is an…
Section 331 — Guaranteed period
The guaranteed period for a guarantee of annual earnings is the period that: (a) starts at the start of the period of the undertaking that is the guarantee of annual earnings; and (b) ends at the…
Section 332 — Earnings
(1) An employee’s earnings include: (a) the employee’s wages; and (b) amounts applied or dealt with in any way on the employee’s behalf or as the employee directs; and (c) the agreed money value of…
Section 333 — High income threshold
(1) Subject to this section, the high income threshold is the amount prescribed by, or worked out in the manner prescribed by, the regulations. (2) A regulation made for the purposes of subsection…
Section 333A — Prospective employees
If: (a) an employer, or a person who may become an employer, gives to another person an undertaking that would have been a guarantee of annual earnings if the other person had been the employer’s or…
Section 333B — Employees not subject to pay secrecy
(1) An employee may disclose, or not disclose, any of the following information to any other person: (a) the employee’s remuneration; (b) any terms and conditions of the employee’s employment that…
Section 333C — Pay secrecy terms to have no effect
A term of a fair work instrument or a contract of employment has no effect to the extent that the term would be inconsistent with subsection 333B(1) or (2) (about employee rights relating to pay…
Section 333D — Prohibition on pay secrecy terms
An employer contravenes this section if: (a) the employer enters into a contract of employment or other written agreement with an employee; and (b) the contract or agreement includes a term that is…
Section 333E — Limitations
(1) A person contravenes this subsection if: (a) the person enters into a contract of employment with an employee; and (b) the contract includes a term that provides the contract will terminate at…
Section 333F — 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…
Section 333G — Effect of entering prohibited fixed term contract
(1) If a person enters into a contract of employment with an employee in contravention of subsection 333E(1): (a) the term of the contract that provides that the contract will terminate at the end of…
Section 333H — Anti-avoidance
(1) A person must not do any of the following in order to avoid any right or prohibition under this Division: (a) terminate an employee’s employment for a period; (b) delay re-engaging an employee…
Section 333J — Fixed Term Contract Information Statement
(1) The Fair Work Ombudsman must prepare a Fixed Term Contract Information Statement and publish the Statement in the Gazette. (2) The Statement must include information about: (a) Subdivision A of…
Section 333K — Giving new employees the Fixed Term Contract Information Statement
If a person enters into a contract of employment that includes a term that provides the contract will terminate at the end of an identifiable period (whether or not the contract also includes other…
Section 333L — Disputes about the operation of this Division
Application of this section (1) This section applies to a dispute between an employer and employee about the operation of this Division. Resolving disputes (2) In the first instance, the parties to…
Section 333M — Employee right to disconnect
(1) An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable. (2) An employee…
Section 333N — Disputes about the employee right to disconnect
(1) This section applies if: (a) there is a dispute between an employer and an employee because the employee has refused to monitor, read or respond to contact or attempted contact under subsection…
Section 333P — Orders to stop refusing contact or to stop taking certain actions
(1) If an application made under subsection 333N(3) includes an application to make an order under this section and the FWC is satisfied that either or both of the following apply: (a) an employee…
Section 333Q — Contravening an order
A person to whom an order under section 333P applies must not contravene a term of the order. Note: This section is a civil remedy provision (see Part 4-1).
Section 333R — Actions under work health and safety laws permitted
Section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws (within the meaning of that Act) do not apply in relation to an application made under…
Section 333S — This Subdivision is not to prejudice Australia’s defence, national security etc.
Nothing in this Subdivision requires or permits a person to take, or to refrain from taking, any action if the taking of the action, or the refraining from taking the action, would be, or could…
Section 333T — Declarations by the Director-General of Security
(1) Without limiting section 333S, the Director-General of Security may, by legislative instrument, declare that all or specified provisions of this subdivision do not apply in relation to a person…
Section 333U — Declarations by the Director-General of ASIS
(1) Without limiting section 333S, the Director-General of the Australian Secret Intelligence Service may, by legislative instrument, declare that all or specified provisions of this Subdivision do…
Section 333V — Dealing with disputes in other ways
If an application made under subsection 333N(3) for the FWC to deal with a dispute does not consist solely of an application for an order under section 333P: (a) the FWC must deal with the dispute;…
Section 333W — Guidelines
(1) The FWC must make written guidelines in relation to the operation of this Division. (2) Guidelines made under subsection (1) are not a legislative instrument.
Section 333X — Employer-funded paid parental leave—preserved if child is stillborn or dies
Application of this section (1) This section applies if: (a) a child is stillborn or dies; and (b) an employee would have been entitled to leave, under the terms and conditions of the employee’s…
Section 334 — Guide to this Part
This Part provides general workplace protections. Division 2 sets out the circumstances in which this Part applies. Division 3 protects workplace rights, and the exercise of those rights. Division 4…
Section 335 — Meanings of employee and employer
In this Part, employee and employer have their ordinary meanings. Note: See also Division 2 of Part 6-4A (TCF contract outworkers taken to be employees in certain circumstances).
Section 336 — Objects of this Part
(1) The objects of this Part are as follows: (a) to protect workplace rights; (b) to protect freedom of association by ensuring that persons are: (i) free to become, or not become, members of…