Fair Work Act 2009
Sections and provisions with full text and the judgments that cite each one.
Section 74 — Notice and evidence requirements
General requirement to give notice of taking leave (1) An employee must give the employee’s employer written notice of the taking of unpaid parental leave under section 71, or flexible unpaid…
Section 75 — Extending period of unpaid parental leave—extending to use more of available parental leave period
Application of this section (1) This section applies if: (a) an employee has, in accordance with section 74, given notice of the taking of a period of unpaid parental leave (the original leave…
Section 76 — Extending period of unpaid parental leave—extending for up to 12 months beyond available parental leave period
Employee may request further period of leave (1) An employee who takes unpaid parental leave under section 71 for the employee’s available parental leave period may request the employee’s employer to…
Section 76A — Responding to requests for extension of unpaid parental leave
Responding to the request (1) If, under subsection 76(1), an employee requests an employer to agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months…
Section 76B — Disputes about extension of period of unpaid parental leave
Application of this section (1) This section applies to a dispute between an employer and an employee that relates to a request by the employee to the employer under subsection 76(1) to agree to an…
Section 76C — Arbitration
(1) For the purposes of paragraph 76B(4)(b), the FWC may deal with the dispute by arbitration by making any of the following orders: (a) if the employer has not given the employee a written response…
Section 77 — Effect of making a single interest employer authorisation
Paragraph 172(5)(b) of the amended Act, as inserted by Part 21 of Schedule 1 to the amending Act, applies in relation to single interest employer authorisations on or after the commencement of that…
Section 77A — Effect of stillbirth or death of child on unpaid parental leave
Stillbirth—preserving entitlement to birth-related leave (1) If: (a) a child is stillborn; and (b) an employee would have been entitled to unpaid parental leave that is birth-related leave, if the…
Section 78 — Employee who ceases to have responsibility for care of child
(1) This section applies to an employee who has taken unpaid parental leave in relation to a child if the employee ceases to have any responsibility for the care of the child for a reason other than…
Section 78A — Hospitalised children
Agreeing to not take unpaid parental leave for a period while child remains in hospital (1) If: (a) a child is required to remain in hospital after the child’s birth, or is hospitalised immediately…
Section 78B — Application to certain authorisations made after commencement
If, because of the operation of clause 74, 75 or 76 of this Part, the FWC makes a single interest employer authorisation after the commencement of Part 21 of Schedule 1 to the amending Act: (a)…
Section 78C — Availability of scope orders
Despite the repeal of subsection 238(2) of this Act by Part 21 of Schedule 1 to the amending Act, that subsection continues to apply after the commencement of that Part to proposed single-enterprise…
Section 79 — Interaction with paid leave
(1) This Subdivision (except for subsections (2) and (3)) does not prevent an employee from taking any other kind of paid leave while the employee is taking unpaid parental leave. If the employee…
Section 79A — Keeping in touch days
(1) This Subdivision does not prevent an employee from performing work for the employee’s employer on a keeping in touch day while the employee is taking unpaid parental leave. If the employee does…
Section 79B — Unpaid parental leave not extended by paid leave or keeping in touch days
If, during a period of unpaid parental leave, an employee: (a) takes paid leave; or (b) performs work for the employee’s employer on a keeping in touch day; taking that leave or performing that work…
Section 80 — Unpaid special parental leave
Entitlement to unpaid special parental leave (1) An employee is entitled to a period of unpaid special parental leave if the employee is not fit for work during that period because: (a) the employee…
Section 80A — Approval of enterprise agreement—requirement relating to genuine agreement of employers
Subsection 186(2AA) of the amended Act applies in relation to an enterprise agreement made after the commencement of that subsection.
Section 81 — Transfer to a safe job
(1) This section applies to a pregnant employee if the employee gives the employee’s employer evidence that would satisfy a reasonable person that the employee is fit for work, but that it is…
Section 81A — Paid no safe job leave
(1) If: (a) section 81 applies to a pregnant employee but there is no appropriate safe job available; and (b) the employee is entitled to unpaid parental leave; and (c) the employee has complied with…
Section 82 — Employee on paid no safe job leave may be asked to provide a further medical certificate
Employer may ask employee to provide a medical certificate (1) If an employee is on paid no safe job leave during the 6 week period before the expected date of birth of the child, the employer may…
Section 82A — Unpaid no safe job leave
(1) If: (a) section 81 applies to a pregnant employee but there is no appropriate safe job available; and (b) the employee is not entitled to unpaid parental leave; and (c) if required by the…
Section 83 — Small claims procedure
(1) The following provisions apply in relation to small claims proceedings commenced on or after the commencement of Part 24 of Schedule 1 to the amending Act: (a) the amendment of paragraph…
Section 84 — Employment advertisements
Division 4 of Part 3-6 of this Act, as inserted by Part 25 of Schedule 1 to the amending Act, applies in relation to employment advertised on or after the day that is one month after the commencement…
Section 84A — Replacement employees
(1) Before an employer engages an employee to perform the work of another employee who is going to take, or is taking, unpaid parental leave, the employer must notify the replacement employee: (a)…
Section 85 — Unpaid pre-adoption leave
Entitlement to unpaid pre-adoption leave (1) An employee is entitled to up to 2 days of unpaid pre-adoption leave to attend any interviews or examinations required in order to obtain approval for the…
Section 86 — Definitions
In this Part: amended Act means this Act as amended by the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023. amending Act means the Fair Work Legislation Amendment…
Section 87 — Entitlement to annual leave
Amount of leave (1) For each year of service with an employer (other than periods of employment as a casual employee of the employer), an employee is entitled to: (a) 4 weeks of paid annual leave; or…
Section 88 — Superannuation—reduction of employer’s liability to the extent of superannuation charge payments
Subsection 149B(2), as inserted by Part 2 of Schedule 3 to the amending Act, applies in relation to an employer’s obligation to make superannuation contributions on behalf of an employee, whether the…
Section 89 — Employee not taken to be on paid annual leave at certain times
Public holidays (1) If the period during which an employee takes paid annual leave includes a day or part-day that is a public holiday in the place where the employee is based for work purposes, the…
Section 90 — Employee authorised deductions
(1) An authorisation made for the purposes of paragraph 324(1)(a) that is in force immediately before the commencement of Schedule 5 continues in force, after the commencement, until it is withdrawn.…
Section 91 — Transfer of employment situations that affect entitlement to payment for period of untaken paid annual leave
Transfer of employment situation in which employer may decide not to recognise employee’s service with first employer (1) Subsection 22(5) does not apply (for the purpose of this Division) to a…
Section 92 — Application—section 121
Despite the amendment made by item 28 of Part 2 of Schedule 1 to the amending Act, section 121, as in force immediately before the commencement of that item, continues to apply in relation to the…
Section 93 — Modern awards and enterprise agreements may include terms relating to cashing out and taking paid annual leave
Terms about cashing out paid annual leave (1) A modern award or enterprise agreement may include terms providing for the cashing out of paid annual leave by an employee. (2) The terms must require…
Section 94 — Cashing out and taking paid annual leave for award/agreement free employees
Agreements to cash out paid annual leave (1) An employer and an award/agreement free employee may agree to the employee cashing out a particular amount of the employee’s accrued paid annual leave.…
Section 95 — FWC to vary certain modern awards
(1) This clause applies in relation to a modern award if the award: (a) is made before 1 July 2024; and (b) is to be in operation on that day. (2) The FWC must, by 30 June 2024, make a determination…
Section 96 — Application of section 205A of amended Act
(1) Section 205A (enterprise agreements to include delegates’ rights terms etc.) of the amended Act does not apply in relation to an enterprise agreement if: (a) before 1 July 2024, the employer…
Section 97 — Taking paid personal/carer’s leave
An employee may take paid personal/carer’s leave if the leave is taken: (a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or (b)…
Section 98 — Employee taken not to be on paid personal/carer’s leave at certain times
Public holidays (1) If the period during which an employee takes paid personal/carer’s leave includes a day or part-day that is a public holiday in the place where the employee is based for work…
Section 99 — Application of amendments
(1) The amendment of subsection 409(6A) of this Act made by Part 14A of Schedule 1 to the amending Act applies in relation to industrial action to the extent that the industrial action occurs, or is…
Section 100 — Definitions
In this Part: amended Act means this Act as amended by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. amending Act means the Fair Work Legislation Amendment (Closing…
Section 101 — Resolving uncertainties and difficulties about interaction between fair work instruments and the definition of casual employee and employee choice
(1) The FWC may make a determination varying a fair work instrument that is a modern award, enterprise agreement or workplace determination that was made before the commencement of this clause: (a)…
Section 102 — Application of amendments
Application of definition of casual employee (1) Section 15A of the amended Act applies on and after commencement in relation to employment relationships entered into before, on or after…
Section 103 — Taking unpaid carer’s leave
(1) An employee may take unpaid carer’s leave for a particular permissible occasion if the leave is taken to provide care or support as referred to in section 102. (2) An employee may take unpaid…
Section 104 — Entitlement to compassionate leave
(1) An employee is entitled to 2 days of compassionate leave for each occasion (a permissible occasion) when: (a) a member of the employee’s immediate family or a member of the employee’s household:…
Section 105 — Taking compassionate leave
(1) An employee may take compassionate leave for a particular permissible occasion if the leave is taken: (a) to spend time with the member of the employee’s immediate family or household who has…
Section 106 — Payment for compassionate leave (other than for casual employees)
If, in accordance with this Subdivision, an employee, other than a casual employee, takes a period of compassionate leave, the employer must pay the employee at the employee’s base rate of pay for…
Section 106A — Entitlement to paid family and domestic violence leave
(1) An employee is entitled to 10 days of paid family and domestic violence leave in a 12 month period. (2) Paid family and domestic violence leave: (a) is available in full at the start of each 12…
Section 106BA — Payment for paid family and domestic violence leave
(1) If, in accordance with this Subdivision, an employee takes a period of paid family and domestic violence leave, the employer must pay the employee, in relation to the period: (a) for an employee…
Section 106B — Taking paid family and domestic violence leave
(1) The employee may take paid family and domestic violence leave if: (a) the employee is experiencing family and domestic violence; and (b) the employee needs to do something to deal with the impact…
Section 106C — Confidentiality
(1) Employers must take steps to ensure information concerning any notice or evidence an employee has given under section 107 of the employee taking leave under this Subdivision is treated…