F2009L02356 — Fair Work Regulations 2009

1.01 Name of Regulations These Regulations are the Fair Work Regulations 2009 . 1.03 Definitions In these Regulations: Act means the Fair Work Act 2009 . folio means 72 words. Note: Schedule 3.1 sets out certain charges that may be incurred per folio. There are generally 3 folios to a page. high performance sport : see subregulation 2.15(4). performance support professional : see subregulation 2.15(2). philanthropic entity means an entity registered under the Australian Charities and Not ‑ for ‑ profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25 ‑ 5(5) of that Act. quarter means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October in a year. WHS entry permit has the same meaning as in the Work Health and Safety Act 2011 . 1.04 Meaning of designated outworker term For paragraph (f) of the definition of designated outworker term in section 12 of the Act, each of the following terms is prescribed: (a) a term that deals with the filing of records about work to which outworker terms of a modern award apply; (b) a term that deals with the provision of materials; (c) a term that is incidental to a designated outworker term, including a term dealing with the observance of the award. 1.05 Meaning of eligible State or Territory court For the purposes of paragraph (d) of the definition of eligible State or Territory court in section 12 of the Act, the following courts are prescribed: (a) the Industrial Court of New South Wales; (b) the South Australian Employment Court. 1.06 Meaning of prescribed State industrial authority For the definition of prescribed State industrial authority in section 12 of the Act, the following State tribunals are prescribed: (a) the Industrial Relations Commission of New South Wales; (b) the Queensland Industrial Relations Commission; (c) the Western Australian Industrial Relations Commission; (d) the South Australian Employment Tribunal; (e) the Tasmanian Industrial Commission. 1.07 Meaning of serious misconduct (1) For the purposes of the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning. Examples of serious misconduct—employees (2) For the purposes of subregulation (1), conduct that is serious misconduct includes the following conduct of an employee: (a) wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment; (b) conduct that causes serious and imminent risk to: (i) the health or safety of a person; or (ii) the reputation, viability or profitability of the employer’s business; (c) engaging in theft, fraud, assault or sexual harassment in the course of the employee’s employment; (d) being intoxicated at work; (e) refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment. (3) Paragraphs (2)(c) to (e) do not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable. Examples of serious misconduct—employee ‑ like workers (4) For the purposes of subregulation (1), conduct that is serious misconduct includes the following conduct of an employee ‑ like worker performing digital platform work through or by means of a digital labour platform, or under a services contract arranged or facilitated through or by means of a digital labour platform : (a) wilful or deliberate behaviour that is inconsistent with: (i) the employee ‑ like worker continuing to perform that work; or (ii) the employee ‑ like worker’s continued access to that digital labour platform; (b) conduct that causes serious and imminent risk to: (i) the health or safety of a person; or (ii) the reputation, viability or profitability of the digital labour platform operator; (c) engaging in theft, fraud, assault or sexual harassment in the course of performing that work or in relation to accessing that digital labour platform; (d) being intoxicated in the course of performing that work; (e) refusing to carry out a lawful and reasonable instruction that is consistent with: (i) the employee ‑ like worker continuing to perform that work; or (ii) the employee ‑ like worker’s continued access to that digital labour platform. Examples of serious misconduct—regulated road transport contractors (5) For the purposes of subregulation (1), conduct that is serious misconduct includes the following conduct of a regulated road transport contractor performing work under a services contract: (a) wilful or deliberate behaviour that is inconsistent with the continuation of the services contract; (b) conduct that causes serious and imminent risk to: (i) the health or safety of a person; or (ii) the reputation, viability or profitability of a road transport business that is a party to the services contract ; (c) engaging in theft, fraud, assault or sexual harassment in the course of performing that work; (d) being intoxicated in the course of performing that work; (e) refusing to carry out a lawful and reasonable instruction that is consistent with the services contract. When a person is taken to be intoxicated (6) For the purposes of paragraphs (2)(d), (4)(d) and (5)(d), a person (the worker ) is taken to be intoxicated if the worker’s faculties are, by reason of the worker being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the worker is unfit to be entrusted with the worker’s duties or with any duty that the worker may be called upon to perform. 1.08 Meaning of TCF award For the definition of TCF award in section 12 of the Act, each instrument mentioned in the following table is prescribed. Item Instrument 1 Clothing Trades Award 1999 2 Felt Hatting Industry Award 1999 3 Footwear Industries Award 2000 4 Notional Agreements Preserving the State Award that includes terms and conditions derived from the New South Wales Clothing Trades (State) Award, The 5 Notional Agreements Preserving the State Award that includes terms and conditions derived from the New South Wales Footwear Manufacturing Industry (State) Award, The 6 Notional Agreements Preserving the State Award that includes terms and conditions derived from the New South Wales Textile Industry (State) Award, The 7 Notional Agreements Preserving the State Award that includes terms and conditions derived from the Queensland Clothing Trades Award—Southern and Central Divisions 2003, The 8 Notional Agreements Preserving the State Award that includes terms and conditions derived from the Queensland Clothing Trades Award—State (Excluding South ‑ East Queensland) 2003, The 9 Notional Agreements Preserving the State Award that includes terms and conditions derived from the Queensland Footwear Manufacturing Award—State 2005, The 10 Notional Agreements Preserving the State Award that includes terms and conditions derived from the Queensland Surgical Bootmaking, Bespoke Bootmaking and Boot Repairing Award—State 2003, The 11 Notional Agreements Preserving the State Award that includes terms and conditions derived from the South Australian Boot and Shoe Award 2006, The 12 Notional Agreements Preserving the State Award that includes terms and conditions derived from the South Australian Clothing Trades Award, The 13 Notional Agreements Preserving the State Award that includes terms and conditions derived from the Tasmanian Bootmakers Award, The 14 Notional Agreements Preserving the State Award that includes terms and conditions derived from the Tasmanian Clothing Industry Award, The 15 Notional Agreements Preserving the State Award that includes terms and conditions derived from the Tasmanian Textile Award, The 16 Notional Agreements Preserving the State Award that includes terms and conditions derived from the Western Australian Bag, Sack and Textile Award, The 17 Notional Agreements Preserving the State Award that includes terms and conditions derived from the Western Australian Bespoke Bootmakers’ and Repairers’ Award No. 4 of 1946, The 18 Notional Agreements Preserving the State Award that includes terms and conditions derived from the Western Australian Clothing Trades Award 1973, The 19 Textile Industry Award 2000 20 Textile, Clothing, Footwear and Associated Industries Award 2010 1.08AA Meaning of contractor high income threshold (1) For the purposes of subsection 15C(1) of the Act, this regulation: (a) prescribes the amount of the contractor high income threshold for the year starting on 1 July 2024; and (b) sets out the manner in which the contractor high income threshold is to be worked out for a later year starting on 1 July. Amount for year starting on 1 July 2024 (2) The amount for the year starting on 1 July 2024 is $175,000. Amount for a later year (3) The amount for the year starting on 1 July 2025, or a later year starting on 1 July, is: (a) for the year starting on 1 July 2025—the amount for the year starting on 1 July 2024, indexed using the following method statement; or (b) for a later year—the amount worked out under this subregulation for the previous year, indexed using the following method statement. Method statement Step 1. Identify the assessment of current average weekly ordinary time earnings published by the Australian Statistician and in effect on 1 July in the current year. Note: This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full ‑ time adult employees of all employers in Australia for that day. Step 2. Divide it by the assessment of current average weekly ordinary time earnings published by the Australian Statistician and in effect on 1 July of the previous year. Note: This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full ‑ time adult employees of all employers in Australia for that day. Step 3. Round the result to 3 decimal places. If the fourth decimal place is 5 or above, round it up. If the rounded result is less than 1, the rounded result becomes 1. Multiply the amount referred to in paragraph (a) or (b) (as the case may be) for the previous year by the rounded result. If the result is not a multiple of $100, round the result to the nearest multiple of $100. If the result is a multiple of $50, round it up to the next multiple of $100. The result is the amount for the year. 1.08A Meaning of in a road transport contractual chain —exclusion of livestock industry (1) The following industries are prescribed for the purposes of paragraph 15RA(3)(d) of the Act: (a) the industry that would comprise the road transport and distribution industry (within the meaning of the Road Transport and Distribution Award 2020 as in force on 1 July 2024), to the extent it would relate to transporting or otherwise dealing with livestock covered by subregulation (2), if the references in that award to “livestock” covered all such livestock; (b) the industry that would comprise the private transport industry (within the meaning of the Road Transport (Long Distance Operations) Award 2020 as in force on 1 July 2024) engaged in long distance operations (within the meaning of that award), to the extent it would relate to transporting or otherwise dealing with livestock covered by subregulation (2), if the references in that award to “livestock” covered all such livestock. (2) This subregulation covers cattle, sheep, goats, pigs, horses, poultry, emus, ostrich, alpaca, deer, camels and buffalo. 1.08B Meaning of road transport industry —exclusion of livestock industry (1) For the purposes of paragraph 15S(1)(a) of the Act, the Road Transport and Distribution Award 2020, as in force on 1 July 2024, is taken not to apply in relation to transporting or otherwise dealing with livestock covered by subregulation 1.08A(2). (2) For the purposes of paragraph 15S(1)(b) of the Act, the Road Transport (Long Distance Operations) Award 2020, as in force on 1 July 2024, is taken not to apply in relation to transporting or otherwise dealing with livestock covered by subregulation 1.08A(2). 1.09 Meaning of base rate of pay— pieceworkers (national system employee) (1) For paragraph 16(2)(c) of the Act, this regulation provides for the determination of the base rate of pay for the purposes of the National Employment Standards for a national system employee who is an award/agreement free employee and a pieceworker. Note: The Act defines award/ agreement free employee in section 12 and pieceworker in section 21. (2) The base rate of pay, expressed as an hourly rate of pay, is worked out using the formula: where: TA is the total amount earned by the employee during the relevant period. TH is the total hours worked by the employee during the relevant period. the relevant period is: (a) for an employee who was continuously employed by the employer for a period of 12 months or more immediately before the base rate of pay is to be worked out—the 12 months before the rate is to be worked out; or (b) for an employee who was continuously employed by the employer for a period of less than 12 months immediately before the base rate of pay is to be worked out—that period. 1.10 Meaning of base rate of pay —pieceworkers (enterprise agreement) (1) For subsection 16(3) of the Act, this regulation provides for the determination of the base rate of pay for the purpose of section 206 of the Act for a pieceworker who is covered by a modern award. Note: Section 206 of the Act deals with an employee’s base rate of pay under an enterprise agreement (2) The base rate of pay is the rate in the modern award identified as the base rate of pay for the purposes of the National Employment Standards. 1.11 Meaning of ordinary hours of work for award/agreement free employees (1) For subsection 20(4) of the Act, this regulation provides for the determination of hours that are taken to be the usual weekly hours of work of an award/agreement free employee who: (a) is not a full ‑ time employee; and (b) does not have usual weekly hours of work. Note: Under section 20 of the Act, the usual weekly hours of work of an award/agreement free employee are relevant to establishing the employee’s ordinary hours of work. (2) To work out the usual weekly hours of work for an employee who has been employed by the employer for at least 4 weeks: (a) identify the total number of hours that the employee has worked during the previous 4 completed weeks; and (b) divide the result by 4. (3) To work out the usual weekly hours of work for an employee who has been employed by the employer for less than 4 weeks: (a) identify the total number of hours that the employee has worked during the period; and (b) divide the result by the number of completed weeks for which the employee has been employed by the employer. 1.12 Meaning of pieceworker (1) For paragraph 21(1)(c) of the Act, this regulation prescribes a class of award/agreement free employees as pieceworkers. Note: Under paragraph 21(1)(c) of the Act, a pieceworker is an award/agreement free employee who is in a class of employees prescribed by the regulations as pieceworkers. (2) The class is award/agreement free employees who: (a) are paid a rate set by reference to a quantifiable output or task; and (b) are not paid a rate set by reference to a period of time worked. Examples of rates set by reference to a quantifiable output or task 1 A rate of pay calculated by reference to the number of articles produced. 2 A rate of pay calculated by reference to the number of kilometres travelled. 3 A rate of pay calculated by reference to the number of articles delivered. 4 A rate of pay calculated by reference to the number of articles sold. 5 A rate of pay calculated by reference to the number of tasks performed. 1.13 State and Territory laws that are not excluded by section 26 of the Act—prescribed laws For paragraph 27(1)(b) of the Act, each of the following laws of a State or Territory is a law to which section 26 of the Act does not apply: (a) a law dealing with the suspension, cancellation or termination of a training contract; (aa) a law dealing with the suspension, cancellation or termination of a contract of employment that is: (i) associated with a training contract; and (ii) entered into as part of a training arrangement; (b) a law dealing with a period of probation of an employee that: (i) is part of a training arrangement; but (ii) is not a period of probationary employment; (c) a law that provides protection for an employee who discloses information or makes a complaint under a law that deals with any of the following: (i) whistleblowers; (ii) environmental protection; (iii) health services; (iv) transport safety or operations; (v) the supply of essential services; (d) a law dealing with non ‑ disclosure agreements, or any other contracts or agreements, that relate to the disclosure of information relating to sexual harassment in a workplace or in connection with work. Note: Under subsection 27(1) of the Act, section 26 of the Act does not apply to a law of a State or Territory so far as the law is prescribed by the regulations as a law to which section 26 does not apply. 1.14 Act excludes prescribed State and Territory laws For subsection 28(1) of the Act, each of the following laws of a State or Territory is prescribed: (a) a law relating to child labour, to the extent to which it deals with terms and conditions of employment that: (i) are provided for by the National Employment Standards; or (ii) may be included in a modern award; or (iii) may be included in an enterprise agreement under section 55 of the Act; but not to the extent to which it deals with the times at which, or the periods during which, a child may be employed; (b) a law relating to training arrangements, to the extent to which it deals with terms and conditions of employment that: (i) are provided for by the National Employment Standards; or (ii) may be included in a modern award; or (iii) may be included in an enterprise agreement under section 55 of the Act; (c) the Contracts Review Act 1980 of New South Wales, to the extent to which it relates to contracts of employment. Note: Under subsection 28(1) of the Act, the Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations. 1.15 Interaction of modern awards and enterprise agreements with State and Territory laws For subsection 29(3) of the Act, each of the following laws of a State or Territory is prescribed: (a) a law relating to child labour, to the extent to which it deals with terms and conditions of employment that: (i) are provided for by the National Employment Standards; or (ii) may be included in a modern award; or (iii) may be included in an enterprise agreement under section 55 of the Act; but not to the extent to which it deals with the times at which, or the periods during which, a child may be employed; (b) a law relating to training arrangements, to the extent to which it deals with terms and conditions of employment that: (i) are provided for by the National Employment Standards; or (ii) may be included in a modern award; or (iii) may be included in an enterprise agreement under section 55 of the Act; (c) the Contracts Review Act 1980 of New South Wales, to the extent that it relates to contracts of employment. Note: Under subsection 29(3) of the Act, a term of a modern award or enterprise agreement does not apply subject to a law of a State or Territory that is prescribed by the regulations as a law to which modern awards and enterprise agreements are not subject. 1.15A State public sector employer For paragraph (e) of the definition of State public sector employer in section 30A of the Act, the following kinds of employers are specified: (a) an employer: (i) that is a public entity within the meaning of the Public Administration Act 2004 of Victoria; and (ii) to which paragraphs (a), (b) and (c) of the definition of State public sector employer do not apply; (b) an employer: (i) that is a special body within the meaning of the Public Administration Act 2004 of Victoria; and (ii) to which paragraphs (a), (b) and (c) of the definition of State public sector employer do not apply. 1.15B Definitions for Division 3 In this Division: coastal trading has the meaning given by section 7 of the Coastal Trading (Revitalising Australian Shipping) Act 2012 . continuous voyage permit : (a) means a continuing permit issued under section 286 of the Navigation Act 1912 as in force immediately before 1 July 2012; and (b) includes a continuing permit granted in relation to an application to which paragraphs 5(a) and (b) of Schedule 2 to the Coastal Trading (Revitalising Australian Shipping) (Consequential Amendments and Transitional Provisions) Act 2012 apply. emergency licence has the meaning given by subsection 6(1) of the Coastal Trading (Revitalising Australian Shipping) Act 2012 . emergency licensed ship means a ship used to undertake a voyage authorised by an emergency licence. general licence has the meaning given by subsection 6(1) of the Coastal Trading (Revitalising Australian Shipping) Act 2012 . general licensed ship means a ship: (a) in relation to which a general licence has been issued and is in force; and (b) which engages in coastal trading under the licence. innocent passage has the meaning it has under the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982. majority Australian ‑ crewed ship means a ship (other than an Australian ship, an emergency licensed ship, a general licensed ship, a transitional general licensed ship or a temporary licensed ship) of which: (a) the majority of the crew are residents of Australia; and (b) the operator: (i) is a resident of Australia; or (ii) has its principal place of business in Australia, or (iii) is incorporated in Australia. single voyage permit : (a) means a single voyage permit issued under section 286 of the Navigation Act 1912 as in force immediately before 1 July 2012; and (b) includes a single voyage permit granted in relation to an application to which paragraphs 5(a) and (b) of Schedule 2 to the Coastal Trading (Revitalising Australian Shipping) (Consequential Amendments and Transitional Provisions) Act 2012 apply. temporary licence has the meaning given by subsection 6(1) of the Coastal Trading (Revitalising Australian Shipping) Act 2012 . temporary licensed ship means a ship: (a) that is used to undertake a voyage authorised by a temporary licence; and (b) to which one of the following applies: (i) within 12 months before commencing the voyage, the ship commenced at least 2 other voyages authorised by a temporary licence; (ii) within 12 months before commencing the voyage: (A) the ship commenced at least one other voyage authorised by a temporary licence; and (B) was issued with a single voyage permit; (iii) within 12 months before commencing the voyage, the ship was issued with at least 2 single voyage permits; (iv) within 15 months before commencing the voyage, the ship was issued with a continuous voyage permit. transitional general licence means a licence issued under Division 1 of Part 4 of the Coastal Trading (Revitalising Australian Shipping) Act 2012 following an application made under item 10 of Schedule 2 to the Coastal Trading (Revitalising Australian Shipping) (Consequential Amendments and Transitional Provisions) Act 2012 . transitional general licensed ship means a ship: (a) in relation to which a transitional general licence has been issued and is in force; and (b) which engages in coastal trading under the licence. transit passage has the meaning it has under the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982. WA government employer means a public sector body (within the meaning of the Public Sector Management Act 1994 (WA) as in force at the commencement of Schedule 1 to the Fair Work Amendment (Christmas Island and Cocos (Keeling) Islands) Regulations 2018 ). However, to avoid doubt, the Shire of Christmas Island and the Shire of Cocos (Keeling) Islands are not WA government employers. 1.15C Meanings of Australian employer and Australian ‑ based employee For paragraph 35(1)(g) of the Act, the employer of a person who is a member of the crew performing duties on a majority Australian ‑ crewed ship is prescribed as an Australian employer. 1.15D Modification of application of Act—ships engaged in innocent passage For section 32 of the Act, the Act does not apply in relation to all the waters of the sea on the landward side of the outer limits of the territorial sea of Australia, including such waters within the limits of a State or Territory to the extent to which its application would be inconsistent with a right of innocent passage or transit passage being exercised by a ship other than: (a) an emergency licensed ship; or (b) a general licensed ship; or (c) a temporary licensed ship; or (d) a transitional general licensed ship; or (e) a majority Australian ‑ crewed ship. 1.15DA Modification of application of Act—Christmas Island and Cocos (Keeling) Islands For the purposes of section 32 of the Act, the Act applies in relation to the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands as if: (a) paragraph 14(1)(f) of the Act did not apply to the extent it would make a WA government employer a national system employer; and (b) Part 3 ‑ 1 of the Act did not apply to action taken in the Territory by or in relation to: (i) a WA government employer that would be a national system employer but for paragraph (a); or (ii) an individual so far as he or she is employed, or usually employed, by a WA government employer mentioned in subparagraph (i); and (c) paragraph 789FD(3)(b) of the Act did not apply to a business or undertaking conducted in the Territory by a WA government employer. Note 1: Paragraph (a) does not prevent provisions of the Act applying in relation to a WA government employer as a non ‑ national system employer (see for example Parts 6 ‑ 3 and 6 ‑ 4 of the Act). Note 2: Paragraph (c) does not prevent Part 6 ‑ 4B of the Act applying in relation to a business or undertaking conducted by a WA government employer that is a constitutional corporation: see subparagraph 789FD(3)(a)(i) of the Act. 1.15E Extension of Act to the exclusive economic zone and the continental shelf—ships (1) For subsection 33(3) of the Act, the Act is extended to and in relation to each of the following ships in the exclusive economic zone or the waters above the continental shelf: (a) an emergency licensed ship; (b) a general licensed ship; (c) a temporary licensed ship; (d) a transitional general licensed ship. (2) For subsection 33(3) of the Act, the Act is extended to and in relation to a majority Australian ‑ crewed ship in the exclusive economic zone or the waters above the continental shelf. Note: The extension of this Act to emergency licensed ships, general licensed ships, temporary licensed ships, transitional general licensed ships and majority Australian ‑ crewed ships in the exclusive economic zone and the waters above the continental shelf (including provisions relating to compliance and enforcement, administration and right of entry by reason of the extension of the rest of the Act, so far as it relates to the specified provisions) is subject to: (a) Australia’s international obligations relating to foreign ships; and (b) the concurrent jurisdiction of a foreign State. 1.15F Extension of Act beyond the exclusive economic zone and the continental shelf (1) For subsection 34(3) of the Act, the Act is extended to: (a) an Australian employer; and (b) an Australian ‑ based employee; in relation to the Australian Antarctic Territory. (2) For subsection 34(3) of the Act, the provisions of the Act mentioned in the following table, and the rest of the Act so far as it relates to those provisions, are extended to: (a) an Australian employer in relation to the employer’s Australian ‑ based employees; and (b) an Australian ‑ based employee in relation to the employee’s employer if the same enterprise agreement applies to both of them; in relation to all of the area outside the outer limits of the exclusive economic zone and the continental shelf. Item Provision of the Act 1 Part 2 ‑ 1—core provisions for Chapter 2 2 Part 2 ‑ 2—the National Employment Standards 3 Part 2 ‑ 3—modern awards 4 Part 2 ‑ 6—minimum wages 5 Part 2 ‑ 7—equal remuneration 6 Part 2 ‑ 8—transfer of business 7 Part 2 ‑ 9—other terms and conditions of employment (3) For subsection 34(3) of the Act, the provisions of the Act mentioned in the following table, and the rest of the Act so far as it relates to those provisions, are extended to: (a) an Australian employer in relation to the employer’s Australian ‑ based employees; and (b) an Australian ‑ based employee in relation to the employee’s employer; in relation to all of the area outside the outer limits of the exclusive economic zone and the continental shelf. Item Provision of the Act 1 Part 2 ‑ 1—core provisions for Chapter 2 2 Part 2 ‑ 4—enterprise agreements 3 Part 2 ‑ 5—workplace determinations 4 Part 3 ‑ 3—industrial action (4) For subsection 34(3) of the Act, Part 3 ‑ 1 of the Act, and the rest of the Act so far as it relates to that Part, are extended to: (a) an Australian employer; and (b) an Australian ‑ based employee; in relation to all of the area outside the outer limits of the exclusive economic zone and the continental shelf. Note: Part 3 ‑ 1 of the Act relates to general protections. (5) For subsection 34(3) of the Act, Part 3 ‑ 2 of the Act, and the rest of the Act so far as it relates to that Part, are extended to an Australian ‑ based employee in relation to the employee’s Australian employer in relation to all of the area outside the outer limits of the exclusive economic zone and the continental shelf. Note: Part 3 ‑ 2 of the Act relates to unfair dismissal. (6) For subsection 34(3) of the Act, Part 3 ‑ 5 of the Act, and the rest of the Act so far as it relates to that Part, are extended to an Australian employer in relation to the employer’s Australian ‑ based employees in relation to all of the area outside the outer limits of the exclusive economic zone and the continental shelf. Note 1: Part 3 ‑ 5 of the Act relates to stand down. Note 2: Provisions of the Act that are specified as extending beyond the exclusive economic zone and the continental shelf (including provisions relating to compliance and enforcement, administration and right of entry by reason of the extension of the rest of the Act, so far as it relates to the specified provisions) are subject to: (a) Australia’s international obligations relating to foreign ships; and (b) the concurrent jurisdiction of a foreign State. 1.15G Amendments made by Fair Work Amendment Regulation 2012 (No. 2) The amendments of regulations 1.15B, 1.15D and 1.15E made by Schedule 1 to the Fair Work Amendment Regulation 2012 (No. 2) do not apply in relation to: (a) a licensed ship within the meaning of regulation 1.15B as in force immediately before the commencement of the Fair Work Amendment Regulation 2012 (No. 2) ; or (b) a permit ship within the meaning of regulation 1.15B as in force immediately before the commencement of the Fair Work Amendment Regulation 2012 (No. 2) . 1.16 Interaction between fair work instruments and public sector employment laws For paragraph 40(2)(b) of the Act, a fair work instrument or a term of a fair work instrument (other than an FWC order or a term of an FWC order) is prescribed for the purposes of the following laws: (a) an ordinance made under the Seat of Government (Administration) Act 1910 that: (i) deals with public sector employment; and (ii) was, immediately before the repeal of the Workplace Relations Act 1996 , inconsistent with that Act or an agreement, award order or determination made under that Act; (b) an enactment, within the meaning of the Australian Capital Territory (Self ‑ Government) Act 1988 , that: (i) deals with public sector employment; and (ii) was, immediately before the repeal of the Workplace Relations Act 1996 , inconsistent with that Act or an agreement, award order or determination made under that Act; (c) a determination mentioned in paragraph 53(6)(b) of the Northern Territory (Self ‑ Government) Act 1978 that was, immediately before the repeal of the Workplace Relations Act 1996 , inconsistent with an award or workplace agreement (within the meaning of the Workplace Relations Act 1996 ). Note: Under subsection 40(2) of the Act, fair work instruments, or terms of fair work instruments, that deal with public sector employment prevail over the public sector employment laws as described in that subsection. 2.00 Flexible unpaid parental leave For the purposes of subsection 72A(1) of the Act, the following higher number of days is prescribed: (a) if the date of birth or day of placement of the child is during the period starting on 1 July 2024 and ending on 30 June 2025—110 days of flexible unpaid parental leave in relation to the child; (b) if the date of birth or day of placement of the child is during the period starting on 1 July 2025 and ending on 30 June 2026—120 days of flexible unpaid parental leave in relation to the child; (c) if the date of birth or day of placement of the child is on or after 1 July 2026—130 days of flexible unpaid parental leave in relation to the child. Note: For a date of birth or day of placement of a child before 1 July 2024, see subsection 72A(1) of the Act. 2.01 Fair Work Ombudsman to prepare and publish Fair Work Information Statement—content (1) For subsection 124(4) of the Act, a Fair Work Information Statement must contain an explanation of the effect on an employee’s entitlements under the National Employment Standards if: (a) the transfer of a business occurs as described in section 311 of the Act; and (b) the employee becomes a transferring employee. Note: Section 311 of the Act identifies the participants in the transfer of the business as including a “transferring employee”. (2) For subsection 124(4) of the Act, a Fair Work Information Statement must set out the circumstances, described in subsections 65(1A) and (1B) of the Act, in which an employee may request a change in working arrangements. 2.02 Fair Work Ombudsman to prepare and publish Fair Work Information Statement—manner of giving Statement to employees (1) For subsection 124(4) of the Act, each of the following is a manner in which an employer may give the Fair Work Information Statement to an employee. (2) The employer may give the Statement to the employee personally. (3) The employer may send the Statement by pre ‑ paid post to: (a) the employee’s residential address; or (b) a postal address nominated by the employee. (4) The employer may send the Statement to: (a) the employee’s email address at work; or (b) another email address nominated by the employee. (5) The employer may send to the employee’s email address at work (or to another email address nominated by the employee): (a) an electronic link to the page of the Fair Work Ombudsman’s website on which the Statement is located; or (b) an electronic link that takes the employee directly to a copy of the Statement on the employer’s intranet. (6) The employer may fax the Statement to: (a) the employee’s fax number at work; or (b) the employee’s fax number at home; or (c) another fax number nominated by the employee. (7) Subregulations (2) to (6) do not prevent the employer from using another manner of giving the Statement to the employee. 2.02A Fair Work Ombudsman to prepare and publish Casual Employment Information Statement—manner of giving Statement to casual employees (1) For subsection 125A(4) of the Act, each of the following is a manner in which an employer may give the Casual Employment Information Statement to an employee. (2) The employer may give the Statement to the employee personally. (3) The employer may send the Statement by pre ‑ paid post to: (a) the employee’s residential address; or (b) a postal address nominated by the employee. (4) The employer may send the Statement to: (a) the employee’s email address at work; or (b) another email address nominated by the employee. (5) The employer may send to the employee’s email address at work (or to another email address nominated by the employee): (a) an electronic link to the page of the Fair Work Ombudsman’s website on which the Statement is located; or (b) an electronic link that takes the employee directly to a copy of the Statement on the employer’s intranet. (6) The employer may fax the Statement to: (a) the employee’s fax number at work; or (b) the employee’s fax number at home; or (c) another fax number nominated by the employee. (7) Subregulations (2) to (6) do not prevent the employer from using another manner of giving the Statement to the employee. 2.03 What can be agreed to etc. in relation to award/agreement free employees For paragraph 129(a) of the Act, employers and award/agreement free employees may agree to the provision of either or both of: (a) extra annual leave in exchange for foregoing an equivalent amount of pay; and (b) extra personal/carer’s leave in exchange for foregoing an equivalent amount of pay. 2.03A Claims to offset certain amounts (1) This regulation applies if: (a) a person is employed by an employer on the basis that the person is a casual employee; and (b) the employer pays the person an amount (the loading amount ) that is clearly identifiable as an amount paid to compensate the person for not having one or more relevant NES entitlements during a period (the employment period ); and (c) during all or some of the employment period, the person was in fact an employee other than a casual employee for the purposes of the National Employment Standards; and (d) the person makes a claim to be paid an amount in lieu of one or more of the relevant NES entitlements. Note 1: This regulation is intended to apply if the person has been mistakenly classified as a casual employee during all or some of the employment period. Note 2: For the purposes of paragraph (b), examples of where it may be clearly identifiable that an amount is paid to compensate the person for not having one or more relevant NES entitlements include in correspondence, pay slips, contracts and relevant industrial instruments. (2) To avoid doubt, the employer may make a claim to have the loading amount taken into account in determining any amount payable by the employer to the person in lieu of one or more relevant NES entitlements. (3) This regulation does not affect the matters to which a court may otherwise have regard, at law or in equity, in determining an employer’s claim to have the loading amount taken into account. (4) A reference in this regulation to a relevant NES entitlement is a reference to an entitlement under the National Employment Standards that casual employees do not have. 2.04 Notice of employee representational rights—how notice is given (1) For subsection 173(5) of the Act, each of the following is a manner in which the employer for a proposed enterprise agreement may give employees who will be covered by the agreement notice of the right to be represented by a bargaining representative for the agreement. (2) The employer may give the notice to the employee personally. (3) The employer may send the notice by pre ‑ paid post to: (a) the employee’s residential address; or (b) a postal address nominated by the employee. (4) The employer may send the notice to: (a) the employee’s email address at work; or (b) another email address nominated by the employee. (5) The employer may send to the employee’s email address at work (or to another email address nominated by the employee) an electronic link that takes the employee directly to a copy of the notice on the employer’s intranet. (6) The employer may fax the notice to: (a) the employee’s fax number at work; or (b) the employee’s fax number at home; or (c) another fax number nominated by the employee. (7) The employer may display the notice in a conspicuous location at the workplace that is known by and readily accessible to the employee. (8) Subregulations (2) to (7) do not prevent the employer from using another manner of giving the notice to the employee. 2.05 Notice of employee representational rights—prescribed form For subsection 174(1A) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed. 2.06 Appointment of bargaining representatives—independence A bargaining representative of an employee must be: (a) free from control by the employee’s employer or another bargaining representative; and (b) free from improper influence from the employee’s employer or another bargaining representative. 2.06AA Disclosure of benefits by organisations and employers—requirements for documents Disclosure by organisations that are bargaining representatives (1) For the purposes of paragraph 179(4)(d) of the Act, the document must: (a) set out the following for each section 179 disclosable benefit: (i) the name of the person who will or can reasonably be expected to provide the benefit (if known by the organisation); (ii) if it is not reasonably practicable to describe the amount of the benefit—the basis on which the amount is or will be determined; and (b) be in the form set out in Schedule 2.1A. Disclosure by employers (2) For the purposes of paragraph 179A(3)(d) of the Act, the document must: (a) set out the following for each section 179A disclosable benefit: (i) the name of the person who will or can reasonably be expected to provide the benefit (if known by the employer); (ii) if it is not reasonably practicable to describe the amount of the benefit—the basis on which the amount is or will be determined; and (b) be in the form set out in Schedule 2.1A. Note: Strict compliance with the form is not required and substantial compliance is sufficient: see section 25C of the Acts Interpretation Act 1901 (as in force on 25 June 2009). 2.06A Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement (1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement. (2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if: (a) it is signed by: (i) the employer covered by the agreement; and (ii) at least 1 representative of the employees covered by the agreement; and (b) it includes: (i) the full name and address of each person who signs the agreement; and (ii) an explanation of the person’s authority to sign the agreement. Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement. (3) Unless the representative of the employees covered by the agreement is an employee in a class of employees who will be bound by the agreement, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement. 2.07 FWC may approve an enterprise agreement with undertakings—requirements for signing undertaking For subsection 190(5) of the Act, an undertaking relating to a an enterprise agreement must be signed by each employer who gives the undertaking. 2.08 Model flexibility term for enterprise agreement For subsection 202(5) of the Act, the model flexibility term for enterprise agreements is set out in Schedule 2.2. 2.09 Model consultation term for enterprise agreement For subsection 205(3) of the Act, the model consultation term is set out in Schedule 2.3. 2.09A Requirements for signing variation of enterprise agreement (1) For subsection 210(4) of the Act, this regulation prescribes the requirements for the signing of a variation to an enterprise agreement. (2) For paragraph 210(2)(a) of the Act, a copy of a variation to an enterprise agreement is a signed copy only if: (a) it is signed by: (i) the employer covered by the agreement as varied; and (ii) at least 1 representative of the employees covered by the agreement as varied; and (b) it includes: (i) the full name and address of each person who signs the variation; and (ii) an explanation of the person’s authority to sign the variation. Note: Paragraph 210(2)(a) of the Act requires an application for approval of a variation to an enterprise agreement to be accompanied by a signed copy of the variation. (3) Unless the representative of the employees covered by the agreement as varied is an employee in a class of employees who will be bound by the agreement as varied, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement as varied. 2.10 FWC may approve variation of enterprise agreement with undertaking—requirements for signing undertaking for variation For subsection 212(4) of the Act, an undertaking relating to the variation of an enterprise agreement must be signed by each employer who gives the undertaking. 2.10A Approval of variations of enterprise agreements—modification of requirement to take into account statement of principles on genuine agreement (1) For the purposes of subsection 211(6) of the Act, section 188 of the Act has effect with the modifications prescribed by this regulation for the purpose of the FWC deciding, in considering an application for the approval of a variation of an enterprise agreement, whether it is satisfied of the matter referred to in paragraph 211(1)(a) of the Act. (2) In taking into account the statement of principles made under section 188B of the Act: (a) the matter mentioned in paragraph 188B(3)(b) of the Act is taken to be a matter relating to the capacity of employees to be represented in relation to the proposed variation of the enterprise agreement; and (b) the matters mentioned in paragraphs 188B(3)(a), (c), (d) and (e) of the Act are taken to be matters relating to the proposed variation of the enterprise agreement. 2.10B Requirements for signing variations of supported bargaining agreements to add employer and employees (with consent) (1) For the purposes of subsection 216AA(4) of the Act, this regulation prescribes requirements relating to the signing of a variation of a supported bargaining agreement made jointly under section 216A of the Act by the employer who will be covered by the agreement if the variation is approved and the affected employees for the variation. Note: Paragraph 216AA(2)(a) of the Act requires an application for approval of a variation of a supported bargaining agreement to add an employer and employees to be accompanied by a signed copy of the variation. (2) The variation must be signed by the following: (a) the employer or a person authorised by the employer to sign the variation on the employer’s behalf; (b) at least 1 representative of the affected employees. (3) The variation must include, for each person who signs the variation: (a) the full name and address of the person; and (b) an explanation of the person’s authority to sign the variation. (4) Unless the representative of the affected employees is an affected employee, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement as varied. 2.10C Requirements for signing variations of supported bargaining agreements to add employer and employees (without consent) (1) For the purposes of subsection 216B(3) of the Act, this regulation prescribes requirements relating to the signing of a variation of a supported bargaining agreement proposed by an employee organisation that is covered by the agreement. Note: Paragraph 216B(2)(a) of the Act requires an application for approval of a variation of a supported bargaining agreement to add an employer and employees to be accompanied by a signed copy of the variation. (2) The variation must be signed by the employee organisation. (3) The variation must include, for each person who signs the variation: (a) the full name and address of the person; and (b) an explanation of the person’s authority to sign the variation. 2.10D Requirements for signing variations of cooperative workplace agreements to add employer and employees (1) For the purposes of subsection 216CA(4) of the Act, this regulation prescribes requirements relating to the signing of a variation of a cooperative workplace agreement made jointly under section 216C of the Act by the employer who will be covered by the agreement if the variation is approved and the affected employees for the variation. Note: Paragraph 216CA(2)(a) of the Act requires an application for approval of a variation of a cooperative workplace agreement to add an employer and employees to be accompanied by a signed copy of the variation. (2) The variation must be signed by the following: (a) the employer or a person authorised by the employer to sign the variation on the employer’s behalf; (b) at least 1 representative of the affected employees. (3) The variation must include, for each person who signs the variation: (a) the full name and address of the person; and (b) an explanation of the person’s authority to sign the variation. (4) Unless the representative of the affected employees is an affected employee, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement as varied. 2.10E Requirements for signing variations of single interest employer agreements to add employer and employees (with consent) (1) For the purposes of subsection 216DA(4) of the Act, this regulation prescribes requirements relating to the signing of a variation of a single interest employer agreement made jointly under section 216D of the Act by the employer who will be covered by the agreement if the variation is approved and the affected employees for the variation. Note: Paragraph 216DA(2)(a) of the Act requires an application for approval of a variation of a single interest employer agreement to add an employer and employees to be accompanied by a signed copy of the variation. (2) The variation must be signed by the following: (a) the employer or a person authorised by the employer to sign the variation on the employer’s behalf; (b) at least 1 representative of the affected employees. (3) The variation must include, for each person who signs the variation: (a) the full name and address of the person; and (b) an explanation of the person’s authority to sign the variation. (4) Unless the representative of the affected employees is an affected employee, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement as varied. 2.10F Requirements for signing variations of single interest employer agreements to add employer and employees (without consent) (1) For the purposes of subsection 216DB(3) of the Act, this regulation prescribes requirements relating to the signing of a variation of a single interest employer agreement proposed by an employee organisation that is covered by the agreement. Note: Paragraph 216DB(2)(a) of the Act requires an application for approval of a variation of a single interest employer agreement to add an employer and employees to be accompanied by a signed copy of the variation. (2) The variation must be signed by the employee organisation. (3) The variation must include, for each person who signs the variation: (a) the full name and address of the person; and (b) an explanation of the person’s authority to sign the variation. 2.10G Requirements for signing variations of multi ‑ enterprise agreements to remove employer and employees (with consent) (1) For the purposes of subsection 216EA(4) of the Act, this regulation prescribes requirements relating to the signing of a variation of a multi ‑ enterprise agreement made jointly under section 216E of the Act by an employer who will cease to be covered by the agreement if the variation is approved and the affected employees for the variation. (2) The variation must be signed by the following: (a) the employer or a person authorised by the employer to sign the variation on the employer’s behalf; (b) at least 1 representative of the affected employees. (3) The variation must include, for each person who signs the variation: (a) the full name and address of the person; and (b) an explanation of the person’s authority to sign the variation. 2.10H Requirements for signing guarantee of termination entitlements (1) For the purposes of paragraph 226A(1)(c) of the Act, this regulation prescribes requirements relating to the signing of a guarantee of termination entitlements given by an employer covered by an enterprise agreement. (2) The guarantee must be signed by the employer. (3) The guarantee must include, for each person who signs the guarantee: (a) the full name and address of the person; and (b) an explanation of the person’s authority to sign the guarantee. 2.11 What a bargaining order must specify—bargaining order for reinstatement of employee (1) For paragraph 231(3)(b) of the Act, this regulation provides for the FWC to take action and make orders in connection with, and to deal with matters relating to, a bargaining order for reinstatement of an employee under paragraph 231(2)(d) of the Act. (2) The FWC may make any of the following orders: (a) an order to reappoint the employee to the position in which he or she was employed immediately before the termination of his or her employment; (b) an order to appoint the employee to another position for which the terms and conditions of employment are no less favourable than those under which he or she was employed immediately before the termination of his or her employment; (c) any order that the FWC thinks appropriate to maintain continuity of the employee’s employment; (d) an order that the employer who terminated the employment of the employee pay the employee an amount for remuneration lost, or likely to have been lost, because of the termination. 2.12A Employee authorised deductions—authorisation requirements Deduction for specified amount (1) For the purposes of paragraph 324(2)(aa) of the Act, a written authorisation by an employee under subparagraph 324(2)(a)(i) of the Act specifying the amount of a deduction must also include the following: (a) the purpose of the deduction; (b) the date on which the deduction is to be made; (c) the name of the person to whom the amount of the deduction is to be given. Multiple or ongoing deductions (2) For the purposes of paragraph 324(2)(aa) of the Act, a written authorisation by an employee under subparagraph 324(2)(a)(ii) of the Act for multiple or ongoing deductions must also include the following: (a) the purpose of the deductions; (b) if the deductions are for a specified amount or amounts—those amounts; (c) either: (i) the dates on which the deductions are to be made; or (ii) the date after which, and the frequency with which, the deductions are to be made; (d) the name of the person to whom the amounts of the deductions are to be given. No application to saved authorisations (3) This regulation does not apply in relation to an authorisation covered by clause 90 of Schedule 1 to the Act. Note: Clause 90 of Schedule 1 to the Act continues the operation of authorisations made before the commencement of Schedule 5 to the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 . 2.12 Certain terms have no effect—reasonable and not reasonable deductions Reasonable deductions (1) For subsection 326(2) of the Act, a circumstance in which a deduction mentioned in subsection 326(1) of the Act is reasonable is that: (a) the deduction is made in respect of the provision of goods or services: (i) by an employer, or a party related to the employer; and (ii) to an employee; and (b) the goods or services are provided in the ordinary course of the business of the employer or related party; and (c) the goods or services are provided to members of the general public on: (i) the same terms and conditions as those on which the goods or services were provided to the employee; or (ii) on terms and conditions that are not more favourable to the members of the general public. Example 1: A deduction of health insurance fees made by an employer that is a health fund. Example 2: A deduction for a loan repayment made by an employer that is a financial institution. (2) For subsection 326(2) of the Act, a circumstance in which a deduction mentioned in subsection 326(1) of the Act is reasonable is that the deduction is for the purpose of recovering costs directly incurred by the employer as a result of the voluntary private use of particular property of the employer by an employee (whether authorised or not). Examples of costs 1 The cost of items purchased on a corporate credit card for personal use by the employee. 2 The cost of personal calls on a company mobile phone. 3 The cost of petrol purchased for the private use of a company vehicle by the employee. Deductions not reasonable (3) For subsection 326(2) of the Act, and subject to subregulations (1) and (2), a circumstance in which a deduction mentioned in subsection 326(1) of the Act is not reasonable is that the deduction is for an amount that may be varied from time to time. 2.13 High Income threshold (1) For subsection 333(1) of the Act, this regulation sets out the manner in which the high income threshold is to be worked out. Note: For the high income threshold for the purposes of subsection 333F(2) of the Act (about exceptions to fixed term contract limitations), see regulation 2.14. (2) The high income threshold for the period starting on 1 July 2009 and ending at the end of 30 June 2010 is worked out using the following steps. First indexation Step 1 Identify the assessment of current average weekly ordinary time earnings published by the Australian Statistician for February 2008 and in effect on 1 July 2008. Note: This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full ‑ time adult employees of all employers in Australia for that day. Step 2 Divide it by the assessment of current average weekly ordinary time earnings published by the Australian Statistician for May 2007 and in effect on 27 August 2007. Note: This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full ‑ time adult employees of all employers in Australia for that day. Step 3 Round the result to 3 decimal places. If the fourth decimal place is 5 or above, round it up. If the rounded result is less than 1, the rounded result becomes 1. Multiply $100 000 by the rounded result. If the result is not a multiple of $100, round the result to the nearest multiple of $100. If the result is a multiple of $50, round it up to the next multiple of $100. This result will be indexed again in step 6. Second indexation Step 4 Identify the assessment of current average weekly ordinary time earnings published by the Australian Statistician for February 2009 and in effect on 1 July 2009. Note: This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full ‑ time adult employees of all employers in Australia for that day. Step 5 Divide it by the assessment of current average weekly ordinary time earnings published by the Australian Statistician for February 2008 and in effect on 1 July 2008. Note: This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full ‑ time adult employees of all employers in Australia for that day. Step 6 Round the result to 3 decimal places. If the fourth decimal place is 5 or above, round it up. If the rounded result is less than 1, the rounded result