Fair Work Act 2009
Sections and provisions with full text and the judgments that cite each one.
Section 379 — Guide to this Part
This Part is about the unfair dismissal of national system employees, and the granting of remedies for unfair dismissal. Division 2 sets out when a person is protected from unfair dismissal. Division…
Section 380 — 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 381 — Object of this Part
(1) The object of this Part is: (a) to establish a framework for dealing with unfair dismissal that balances: (i) the needs of business (including small business); and (ii) the needs of employees;…
Section 382 — When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time: (a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum…
Section 383 — Meaning of minimum employment period
The minimum employment period is: (a) if the employer is not a small business employer—6 months ending at the earlier of the following times: (i) the time when the person is given notice of the…
Section 384 — Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee. (2) However:…
Section 385 — What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent…
Section 386 — Meaning of dismissed
(1) A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment,…
Section 387 — Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account: (a) whether there was a valid reason for the dismissal related to the…
Section 388 — The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code. (2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if: (a) immediately…
Section 389 — Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if: (a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational…
Section 390 — When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if: (a) the FWC is satisfied that the person was protected from unfair dismissal…
Section 391 — Remedy—reinstatement etc.
Reinstatement (1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by: (a) reappointing the person to the position…
Section 392 — Remedy—compensation
Compensation (1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.…
Section 393 — Monetary orders may be in instalments
To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.
Section 394 — Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy. Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal. Note 2: For…
Section 395 — Application fees
(1) An application to the FWC under this Division 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 396 — Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application: (a) whether the application was made within the…
Section 397 — Matters involving contested facts
The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.
Section 398 — Conferences
(1) This section applies in relation to a matter arising under this Part if the FWC conducts a conference in relation to the matter. (2) Despite subsection 592(3), the FWC must conduct the conference…
Section 399 — Hearings
(1) The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account: (a) the views of the parties to the matter;…
Section 399A — Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably: (a) failed to attend a conference…
Section 400 — Appeal rights
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so. (2)…
Section 400A — Costs orders against parties
(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the…
Section 401 — Costs orders against lawyers and paid agents
(1) This section applies if: (a) an application for an unfair dismissal remedy has been made under section 394; and (b) a person who is a party to the matter has engaged a lawyer or paid agent (the…
Section 402 — Applications for costs orders
An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after: (a) the FWC…
Section 403 — 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: (a) under section 611 in relation to a…
Section 404 — Security for costs
The procedural rules may provide for the furnishing of security for the payment of costs in relation to matters arising under this Part.
Section 405 — Contravening orders under this Part
A person to whom an order under this Part applies must not contravene a term of the order. Note: This section is a civil remedy provision (see Part 4-1).
Section 406 — Guide to this Part
This Part deals mainly with industrial action by national system employees and national system employers. Division 2 sets out when industrial action for a proposed enterprise agreement is protected…
Section 407 — 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 408 — Protected industrial action
Industrial action is protected industrial action for a proposed enterprise agreement if it is one of the following: (a) employee claim action for the agreement (see section 409); (b) employee…
Section 409 — Employee claim action
Employee claim action (1) Employee claim action for a proposed enterprise agreement is industrial action that: (a) is organised or engaged in for the purpose of supporting or advancing claims in…
Section 410 — Employee response action
Employee response action (1) Employee response action for a proposed enterprise agreement means industrial action that: (a) is organised or engaged in as a response to industrial action by an…
Section 411 — Employer response action
Employer response action (1) Employer response action for a proposed enterprise agreement means industrial action that: (a) is organised or engaged in as a response to industrial action by: (i) a…
Section 412 — Pattern bargaining
Pattern bargaining (1) A course of conduct by a person is pattern bargaining if: (a) the person is a bargaining representative for 2 or more proposed enterprise agreements; and (b) the course of…
Section 413 — Common requirements that apply for industrial action to be protected industrial action
Common requirements (1) This section sets out the common requirements for industrial action to be protected industrial action for a proposed enterprise agreement. Type of proposed enterprise…
Section 414 — Notice requirements for industrial action
Notice requirements—employee claim action (1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by…
Section 415 — Immunity provision
(1) No action lies under any law (whether written or unwritten) in force in a State or Territory in relation to any industrial action that is protected industrial action unless the industrial action…
Section 416 — Employer response action—employer may refuse to make payments to employees
If an employer engages in employer response action against employees, the employer may refuse to make payments to the employees in relation to the period of the action. Note: If an employee engages…
Section 416A — Employer response action does not affect continuity of employment
Employer response action for a proposed enterprise agreement does not affect the continuity of employment of the employees who will be covered by the agreement, for such purposes as are prescribed by…
Section 417 — Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.
No industrial action (1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on which: (a) an enterprise agreement is approved by the FWC until its…
Section 418 — FWC must order that industrial action by employees or employers stop etc.
(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action: (a) is happening; or (b) is threatened, impending…
Section 419 — FWC must order that industrial action by non-national system employees or non-national system employers stop etc.
Stop orders etc. (1) If it appears to the FWC that industrial action by one or more non-national system employees or non-national system employers: (a) is: (i) happening; or (ii) threatened,…
Section 420 — Interim orders etc.
Application must be determined within 2 days (1) As far as practicable, the FWC must determine an application for an order under section 418 or 419 within 2 days after the application is made.…
Section 421 — Contravening an order etc.
Contravening orders (1) A person to whom an order under section 418, 419 or 420 applies must not contravene a term of the order. Note: This subsection is a civil remedy provision (see Part 4-1). (2)…
Section 422 — Injunction against industrial action if a bargaining representative is engaging in pattern bargaining
(1) The Federal Court or Federal Circuit and Family Court of Australia (Division 2) may grant an injunction on such terms as the court considers appropriate if: (a) a person has applied for the…
Section 423 — FWC may suspend or terminate protected industrial action—significant economic harm etc.
Suspension or termination of protected industrial action (1) The FWC may make an order suspending or terminating protected industrial action for a proposed enterprise agreement that is being engaged…
Section 424 — FWC must suspend or terminate protected industrial action—endangering life etc.
Suspension or termination of protected industrial action (1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that: (a) is being…
Section 425 — FWC must suspend protected industrial action—cooling off
(1) The FWC must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the FWC is satisfied that the suspension is appropriate taking…