Fair Work Act 2009
Sections and provisions with full text and the judgments that cite each one.
Section 337 — Application of this Part
This Part applies only to the extent provided by this Division. Note: Sections 30G and 30R extend the operation of this Part in a referring State.
Section 338 — Action to which this Part applies
(1) This Part applies to the following action: (a) action taken by a constitutionally-covered entity; (b) action that affects, is capable of affecting or is taken with intent to affect the…
Section 338A — Meaning of independent contractor
A reference in this Part to an independent contractor includes a reference to a regulated worker. Note: A regulated worker must be an individual: see section 15G and related definitions.
Section 339 — Additional effect of this Part
In addition to the effect provided by section 338, this Part also has the effect it would have if any one or more of the following applied: (a) a reference to an employer in one or more provisions of…
Section 340 — Protection
(1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or…
Section 341 — Meaning of workplace right
Meaning of workplace right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order…
Section 342 — Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person. Meaning of adverse action Item Column 1 Adverse action is taken by ... Column 2 if ... 1…
Section 343 — Coercion
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) exercise or not exercise,…
Section 344 — Undue influence or pressure
An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to: (a) make, or not make, an agreement or arrangement under the National…
Section 345 — Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about: (a) the workplace rights of another person; or (b) the exercise, or the effect of the exercise, of a…
Section 346 — Protection
A person must not take adverse action against another person because the other person: (a) is or is not, or was or was not, an officer or member of an industrial association; or (b) engages, or has…
Section 347 — Meaning of engages in industrial activity
A person engages in industrial activity if the person: (a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or (b) does, or does not: (i)…
Section 348 — Coercion
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.…
Section 349 — Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about either of the following: (a) another person’s obligation to engage in industrial activity; (b) another…
Section 350 — Inducements—membership action
(1) An employer must not induce an employee to take, or propose to take, membership action. Note: This subsection is a civil remedy provision (see Part 4-1). (2) A person who has entered into a…
Section 350A — Protection for workplace delegates
(1) The employer of a workplace delegate must not: (a) unreasonably fail or refuse to deal with the workplace delegate; or (b) knowingly or recklessly make a false or misleading representation to the…
Section 350B — Protection for workplace delegates—regulated workers
(1) The associated regulated business for a workplace delegate who is a regulated worker must not: (a) unreasonably fail or refuse to deal with the workplace delegate; or (b) knowingly or recklessly…
Section 350C — Workplace delegates and their rights
Meaning of workplace delegate (1) A workplace delegate is a person appointed or elected, in accordance with the rules of an employee organisation, to be a delegate or representative (however…
Section 351 — Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation,…
Section 352 — Temporary absence—illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. Note: This section is a civil…
Section 353 — Bargaining services fees
(1) An industrial association, or an officer or member of an industrial association, must not: (a) demand; or (b) purport to demand; or (c) do anything that would: (i) have the effect of demanding;…
Section 354 — Coverage by particular instruments
(1) A person must not discriminate against an employer because: (a) employees of the employer are covered, or not covered, by: (i) provisions of the National Employment Standards; or (ii) a…
Section 355 — Coercion—allocation of duties etc. to particular person
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) employ, or not employ, a…
Section 356 — Objectionable terms
A term of a workplace instrument, or an agreement or arrangement (whether written or unwritten), has no effect to the extent that it is an objectionable term.
Section 357 — Misrepresenting employment as independent contracting arrangement
(1) A person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be,…
Section 358 — Dismissing to engage as independent contractor
An employer must not dismiss, or threaten to dismiss, an individual who: (a) is an employee of the employer; and (b) performs particular work for the employer; in order to engage the individual as an…
Section 359 — Misrepresentation to engage as independent contractor
A person (the employer) that employs, or has at any time employed, an individual to perform particular work must not make a statement that the employer knows is false in order to persuade or…
Section 359B — Dismissing to engage as casual employee
An employer must not dismiss, or threaten to dismiss, an individual who: (a) is an employee of the employer; and (b) performs particular work for the employer; in order to engage the individual as a…
Section 359C — Misrepresentation to engage as casual employee
A person (the employer) that employs, or has at any time employed, an individual to perform particular work other than as a casual employee must not make a statement that: (a) the employer knows is…
Section 360 — Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Section 361 — Reason for action to be presumed unless proved otherwise
(1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking…
Section 362 — Advising, encouraging, inciting or coercing action
(1) If: (a) for a particular reason (the first person’s reason), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and (b) the…
Section 363 — Actions of industrial associations
(1) For the purposes of this Part, each of the following is taken to be action of an industrial association: (a) action taken by the committee of management of the industrial association; (b) action…
Section 364 — Unincorporated industrial associations
Person includes unincorporated industrial association (1) For the purposes of this Part, a reference to a person includes a reference to an unincorporated industrial association. Liability for…
Section 365 — Application for the FWC to deal with a dismissal dispute
If: (a) a person has been dismissed; and (b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in…
Section 366 — Time for application
(1) An application under section 365 must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (2). (2) The FWC may allow…
Section 367 — Application fees
(1) The application must be accompanied by any fee prescribed by the regulations. (2) The regulations may prescribe: (a) a fee for making an application to the FWC under section 365; and (b) a method…
Section 368 — Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration). Note: The FWC may deal with a dispute by mediation or conciliation, or by making a…
Section 369 — Dealing with a dismissal dispute by arbitration
(1) This section applies if: (a) the FWC issues a certificate under paragraph 368(3)(a) in relation to the dispute; and (b) the parties notify the FWC that they agree to the FWC arbitrating the…
Section 370 — Taking a dismissal dispute to court
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless: (a) both of the…
Section 372 — Application for the FWC to deal with a non-dismissal dispute
If: (a) a person alleges a contravention of this Part; and (b) the person is not entitled to apply to the FWC under section 365 for the FWC to deal with the dispute; the person may apply to the FWC…
Section 373 — Application fees
(1) The application must be accompanied by any fee prescribed by the regulations. (2) The regulations may prescribe: (a) a fee for making an application to the FWC under section 372; and (b) a method…
Section 374 — Conferences
(1) If: (a) an application is made under section 372; and (b) the parties to the dispute agree to participate; the FWC must conduct a conference to deal with the dispute. Note 1: For conferences, see…
Section 375 — Advice on general protections court application
If the FWC considers, taking into account all the materials before it, that a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must…
Section 375A — Appeal rights
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under subsection 369(2) (which is about arbitration of a dismissal dispute) unless the FWC…
Section 375B — Costs orders against parties
(1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if: (a) an application for the FWC to deal with the dispute…
Section 376 — Costs orders against lawyers and paid agents
(1) This section applies if: (a) an application for the FWC to deal with a dispute has been made under section 365 or 372; and (b) a person who is a party to the dispute has engaged a lawyer or paid…
Section 377 — Applications for costs orders
An application for an order for costs in relation to an application under section 365 or 372 must be made within 14 days after the FWC finishes dealing with the dispute.
Section 377A — Schedule of costs
(1) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order under section 611, 375B or 376 in relation…
Section 378 — Contravening costs orders
A person to whom an order for costs made under section 375B or 376 applies must not contravene a term of the order. Note: This section is a civil remedy provision (see Part 4-1).