Skip to main content

Ribbon

  • About us
  • Contact us
  • Glossary
  • News & media
Fair Work Commission logo

Fair Work Commission

Australia's national workplace relations tribunal
Search is closed
Menu is closed

Search

Main menu

  • Awards & agreements
    • Minimum wages & conditions
    • Awards
    • Agreements
    • Legislation & regulations for awards & agreements
  • Cases, decisions & orders
    • Major cases
    • Summaries of significant decisions
    • Decisions by keywords
    • FWC Bulletin
    • Archived decisions & orders
    • Transcripts
    • Court reviews
    • Historical cases
  • Registered organisations
    • Fact sheets, templates & webinars
    • Find registered organisations
    • Find State-recognised associations
    • Registration
    • Running a registered organisation
    • Entry permits
    • Industrial action
    • Gazette notices
    • Lodgment
  • Resources
    • Online lodgment
    • Forms
    • Where to get legal help
    • Research
    • Workplace Relations Education Series
    • Benchbooks
    • Fact sheets, guides & videos
    • Practice notes
    • Resources in other languages
    • Case studies
    • Quarterly practitioner updates
    • Related sites
  • Termination of employment
    • Unfair dismissal
    • General protections dismissal
    • Unlawful termination
    • How the Commission works
  • Disputes at work
    • Fairness in the workplace
    • Resolving issues at the Commission
    • JobKeeper disputes
    • General protections (unlawful actions)
    • Anti-bullying
    • Cooperative Workplaces
    • Industrial action
    • Awards & enterprise agreements disputes
    • Disputes about entry
    • How the Commission works
  • Home
  • Industrial action benchbook
  • Payments relating to industrial action
Back to top

Industrial action benchbook

An overview of legal procedure & case law

Partial work bans

Print this page

 

Table of contents

On this page

  • Introduction
  • Reduction in payments based on partial work ban
  • Form of partial work ban notice
  • Content of partial work ban notice
  • Manner of giving notice
  • Orders by the Commission relating to partial work bans
  • Case examples
  • Employer gives notice of non-payment
  • Employer does not give notice – no reduction in payments
  • References

Introduction

Industrial action may take the form of a partial work ban which is defined as industrial action that is not:

  • a failure or refusal by an employee to attend for work
  • a failure or refusal by an employee who attends for work to perform any work at all, or
  • an overtime ban.[1]

A partial work ban is industrial action that falls short of a total stoppage of work.[2]

For instance, a work ban that is limited to a refusal by teachers to mark homework could be considered a partial work ban.[3]

Payments for partial work bans

The prohibition of payment to an employee in s.470 does not apply to partial work bans that are protected industrial action, other than for overtime bans.

In the case of a partial work ban employers have discretion, subject to the notice requirements, to either:

  • accept the partial performance of work and pay an employee in full, or
  • make a reduced payment to an employee based on the partial performance of work by the employee, or
  • refuse to accept the performance of any work by an employee, until the employee is prepared to perform all of his or her normal work, and not pay the employee during the period of the industrial action.[4]

Reduction in payments based on partial work ban

See Fair Work Act s.471

If an employee engaged, or engages in protected industrial action that is a partial work ban, and the employer gives the employee a written notice stating that because of the partial work ban, the employee's payments will be reduced by the proportion specified in the notice, then the employee's payments are reduced by that proportion in relation to the industrial action period.

The industrial action period is the period:

  • starting at the later of:
    • the start of the first day on which the employee implemented the partial work ban, or
    • the start of the next day, after the day on which the notice was given, on which the employee performs work; and
  • ending at the end of the day on which the ban ceases.[5]

An illustrative example is provided in the Explanatory Memorandum:[6]

Allison works at the Sandy Shores Private Clinic which operates seven days a week. On Friday 13 May 2011, Allison's bargaining representative provides her employer with three working days' notice of protected industrial action by employees it represents that will take the form of partial work bans over a two week period, commencing the following Thursday. The bans include refusing to admit new patients before noon on each day.

On the Monday, Allison's employer decides that the employees' payments will be reduced by 40 per cent on account of any partial work bans and gives the bargaining representative and affected employees written notice of the proposed reductions over the two week period. The reductions begin on the Thursday, the first day on which the bans are implemented.

In calculating a reduced payment based on the partial performance of work, an employer should be guided by the Fair Work Regulations which prescribe how the proportion is to be worked out.[7]

The reduction in payments cannot simply be arrived at by estimating the potential cost impact of the industrial action and allocating this cost to the employees undertaking industrial action.[8]

If the Commission has ordered under s.472 that the employee's payments be reduced by a different proportion – then they are to be reduced by the proportion specified in the order.

The rest of the terms of the modern award, enterprise agreement or contract of employment that applies to the employee's employment will continue to have effect.

Working out proportion of reduction of employee's payments

The proportion of any reduction for an employee or class of employees is worked out by carrying out the following steps:

Step 1: Identify the work that an employee or a class of employees is failing or refusing to perform, or is proposing to fail or refuse to perform.

Step 2: Estimate the usual time that the employee or the class of employees would spend performing the work during a day.

Step 3: Work out the time estimated in Step 2 as a percentage of an employee's usual hours of work for a day.

The solution from working through the above steps is the proportion by which the employee's payment will be reduced.[9]

'Work' is capable of meaning something more than just the physical task that is banned and that is the impact of that task on the 'work' of the employee.[10]

Form of partial work ban notice

A notice about the reduction of an employee's payments due to a partial work ban must be in a legible form and in English.[11] Communication should have regard to the needs of the workforce, particularly regarding the cultural diversity of the employees and their language skills.

Content of partial work ban notice

A notice about a partial work ban given to an employee must:

  • specify the day on which the notice is issued
  • specify the industrial action engaged in, or proposed to be engaged in, that constitutes the partial work ban
  • state that the notice will take effect from the later of:
    • the start of the first day of the partial work ban
    • the start of the first day after the day on which the notice is given to the employee, if the employee performs work on that day, and
  • state that the notice will cease to have effect at the end of the day on which the partial work ban ceases.

If the notice is a notice stating that, because of the ban, the employee's payments will be reduced by a proportion specified in the notice, it must also:

  • state that the employee's payments will be reduced by an amount specified in the notice for each day the employee engages in the partial work ban
  • specify an estimate of the usual time the employer considers an employee would spend during a day performing the work that is the subject of the work ban, and
  • specify the amount by which the employee's payments will be reduced for each day the employee engages in the work ban.

If the notice is a notice stating that, because of the ban the employee will not be entitled to any payments, it must also state that the employee will not be entitled to any payment for a day on which the employee engages in the partial work ban.[12]

Manner of giving notice

The employer is taken to have given a notice about partial work bans to the employee if the employer:

  • has taken all reasonable steps to ensure that the employee, and the employee's bargaining representative (if any), receives the notice, and
  • has complied with any requirements, relating to the giving of the notice, prescribed by the Fair Work Regulations.

Giving notice about partial work bans

An employer may give notice to an employee about reduction in payments relating to a partial work ban in one of the following ways:

The employer may give the notice to the employee personally.

The employer may send the notice by pre-paid post to:

  • the employee's residential address, or
  • a postal address nominated by the employee.

The employer may send the notice to:

  • the employee's email address at work, or
  • another email address nominated by the employee.

The employer may fax the notice to:

  • the employee's fax number at work
  • the employee's fax number at home, or
  • another fax number nominated by the employee.[13]

Orders by the Commission relating to partial work bans

See Fair Work Act s.472

The Commission may make an order varying the proportion by which an employee's payments are reduced, however the Commission may only make an order if a person has applied for it.

An employee, or the employee's bargaining representative, may apply to the Commission for an order if a notice has been given stating that the employee's payments will be reduced.

In considering making such an order, the Commission must take into account:

  • whether the proportion specified in the notice about the reduction of payments was reasonable having regard to the nature and extent of the partial work ban to which the notice relates, and
  • fairness between the parties taking into consideration all the circumstances of the case.

An illustrative example is provided in the Explanatory Memorandum:[14]

Allison's bargaining representative applies to the Commission to reduce the proportion of Sandy Shores' proposed deduction. After taking into account whether the 40 per cent deduction was reasonable having regard to the nature and extent of the partial work bans and fairness between the parties, the Commission orders Sandy Shores to reduce the deduction to 15 per cent and to pay the difference to the employees.

Application for an order in relation to partial work bans

An application to the Commission for an order to vary the proportion by which an employee's payments are reduced must include the following documentation:

  • a completed and signed application form [Form F39], and
  • a copy of the written notice given by the employer to the employee.

Link to application form

  • Form F39 – Application for an order in relation to partial work bans

All forms are available on the Forms page of the Commission's website

Case examples

Order varying the proportion by which an employee's payments have been reduced

AFMEPKIU v ASC Pty Ltd

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ASC Pty Ltd [2012] FWA 1377 (Bartel DP, 16 February 2012).

Facts

Protected industrial action in the form of bans on work activities including overtime and call outs was taken by Supervisors engaged by ASC. A Notice of Reduction in Payment was issued by the respondent, indicating that reductions in daily rates of pay would be implemented' ... based on the amount of time Supervisors would usually spend during a day performing the work subject to a work ban.'

Outcome

The Commission found that the employer overestimated the extent of the bans and that its approach led to an overstating of the percentage deduction. After taking into account the effect of overtime bans in calculating the extent of the partial work bans, it was determined that the proportional reductions implemented by the employer should be modified. The Commission also took into account the additional cost impact on the employer caused by disruption to the work of other employees as a result of the bans.

Relevance

The Commission held that the appropriate approach to the assessment of a proportional reduction in payment in this circumstance was to identify the time spent on banned work, calculated as a percentage of average weekly hours.

United Voice – Northern Territory Branch v Commissioner for Public Employment for the Northern Territory

United Voice – Northern Territory Branch v Commissioner for Public Employment for the Northern Territory[2014] FWC 1185 (Catanzariti VP, 17 February 2014)

Facts

United Voice members organised protected industrial action regarding their employment with the Northern Territory Fire and Rescue Service. The Commissioner for Public Employment for the Northern Territory issued a notice of his intention to deduct $124 for each shift on which industrial action was taken. United Voice then notified the respondent of its intention to apply for an order varying this amount to $11 per shift, and also notified that it had advised members not to participate in the industrial action until the application was determined.

Outcome

The Commission considered the respondent's approach to calculating this reduction not only erroneous but also inherently flawed, in that it estimated the potential cost impact of the industrial action and allocated it to the employees undertaking the action. While the respondent's approach was rejected, the applicant's submission was also not accepted.

Having regard to evidence and submissions of both parties, the Commission ordered that the amount by which payments should be reduced was 15 per cent of the amount that would otherwise be paid for the completion of a shift.

Relevance

Given the difficulties in determining wages for individual shifts, a proportionate reduction in the form of a percentage of total wages per shift was considered a more appropriate form for expressing the reduction in payments. The Commission held this to be consistent with the authorities and stated the correct approach is to look at all of the circumstances of the case.

Transport Workers Union v Department of Territory and Municipal Services (ACTION)

Transport Workers Union v Department of Territory and Municipal Services (ACTION)[2010] FWA 4558 (Deegan C, 19 June 2010).

Facts

The TWU gave notice of an intention to impose a partial work ban on the collection of cash fares by bus drivers for a period of one week. The respondent issued notices informing employees of a two-thirds reduction in payment for each day they took part in the partial work ban. The TWU asserted this reduction was unreasonable as the collection of fares accounted for no more than five or six minutes of a driver's time per shift.

Outcome

In considering whether the proposed pay reduction was 'reasonable', the Commission found the ban would affect revenue and may inconvenience passengers. It also took into account that a bus service would continue to be provided by drivers taking part in the industrial action, and that a large part of the operating cost was funded by government subsidy and not the collection of revenue. As such, it was determined that the most appropriate factor was the percentage fare collection contributed to the overall cost. An order was made reducing employee payments by 20.1 per cent.

Relevance

The Commission determined that in this circumstance the most appropriate method was to reduce the employee's pay by the same amount as the employer revenue was reduced by the work ban.

Independent Education Union (South Australia) Incorporated v Catholic Schools Endowment Society Incorporated (Catholic Education Office)

Independent Education Union (South Australia) Incorporated v Catholic Schools Endowment Society Incorporated (Catholic Education Office) [2016] FWC 892 (Hampton C, 15 February 2016); [2016] FWC 1057 (Hampton C, 23 February 2016).

Facts

The IEU notified six Catholic schools in South Australia of the intention to take protected industrial action including partial work bans. The employers notified all staff that participation in some of the partial work bans would result in a percentage reduction in their salaries.

The IEU sought an order from the Commission to reduce the salary reductions to zero on the basis that the notices were not valid under the Fair Work Act because the employers did not provide the notice, or take reasonable steps to provide the notice, to the employees' bargaining representatives. In the alternative, the IEU sought a significant decrease in the salary reductions on the basis that the employers' proposals were not consistent with the legislation and were unfair.

Outcome

The Commission found that the notices had been provided to the employees as relevantly required by the Fair Work Act. The Commission held that there was no requirement that the notices must also be provided to the bargaining representatives if they have been given (directly) to each of the employees as required by s.471(1)(c).

The Commission found that the employers' approach to the calculation of the proposed reductions was fundamentally compliant with the legislative scheme however there was no identifiable allowance made for any (other) meaningful work that might be undertaken by the employee during that time. The Commission varied the notices to change the reduction from 7 per cent to 5 per cent for partial work bans on undertaking relief teaching.

Relevance

It would generally be prudent for an employer to also provide the notice to the bargaining representative(s) given that it may not always be possible to demonstrate the actual provision of the s.471 notice to every employee.

The formula adopted by employers to calculate a reduction in salary must not result in an unreasonable reduction when applied to one of the particular partial work bans given the circumstances applying to that work under the Enterprise Agreement.

Order NOT varying the proportion by which an employee's payments have been reduced

Assessment undertaken prospectively not retrospectively

The Australian Institute of Marine and Power Engineers v Port of Brisbane Pty Ltd [2011] FWA 4653 (Simpson C, 23 August 2011).

Facts

An application was made by AIMPE seeking an order that union members engaged in partial work bans have the reduction determined by the employer altered from 35 per cent to 4.16 per cent while work bans were in effect. This reduction excluded periods of work where such bans were suspended in order to ensure the safety of vessel, crew and marine environment.

Outcome

While finding that some errors were made by the respondent in the methodology it used to assess the reduction percentage, the Commission was satisfied that the adoption of 35 per cent was not unreasonable at the time. The Commission was not satisfied that a reduction of this percentage was warranted on the basis of the nature and extent of the partial work ban. As the applicant did not provide sufficient evidence to persuade the Commission that the 35 per cent proportionate reduction should be disturbed, the application was dismissed.

Relevance

The Commission held that an assessment of whether a proportionate reduction is reasonable should have regard to the nature and extent of a partial work ban. The Commission also found that this assessment is to be undertaken prospectively at the time of issuing the notice, rather than retrospectively after the partial work ban ceases.

Employer gives notice of non-payment

If an employee engaged, or engages, in protected industrial action that is a partial work ban on a day and the employer gives to the employee a written notice stating that, because of the ban:

  • the employee will not be entitled to any payments, and
  • the employer refuses to accept the performance of any work by the employee until the employee is prepared to perform all of his or her normal duties;

then the employee is not entitled to any payments in relation to the industrial action period.[15]

Failure or refusal to attend for, or perform work

If an employer has given an employee a notice of non-payment, and the employee fails or refuses to attend for work, or fails or refuses to perform any work at all if he or she attends for work, during the industrial action period, then:

  • the failure or refusal is employee claim action if the original protected industrial action is employee claim action, or
  • the failure or refusal is employee response action if the original protected industrial action is employee response action.[16]

Employer does not give notice – no reduction in payments

If an employee engaged, or engages, in a partial work ban against an employer, and the employer does not give the employee a notice about the reduction of payments or non-payment, then the employee's payments for the day are not to be reduced because of the ban.[17]

References

[1] Fair Work Act s.470(3).

[2] Explanatory Memorandum to Fair Work Bill 2008 at para. 1866.

[3] Explanatory Memorandum to Fair Work Bill 2008 at para. 1865.

[4] Fair Work Act s.471(4).

[5] Fair Work Act s.471(5).

[6] Explanatory Memorandum to Fair Work Bill 2008 at para. 1875.

[7] Fair Work Regulations r.3.21.

[8] United Voice – Northern Territory Branch v Commissioner for Public Employment for the Northern Territory [2014] FWC 1185 (Catanzariti VP, 17 February 2014) at para. 22.

[9] Fair Work Regulations r.3.21.

[10] Transport Workers Union v Department of Territory and Municipal Services (ACTION) [2010] FWA 4558 (Deegan C, 19 June 2010) at para. 34.

[11] Fair Work Regulations r.3.22.

[12] Fair Work Regulations r.3.23.

[13] Fair Work Regulations r.3.24.

[14] Explanatory Memorandum to Fair Work Bill 2008 at para. 1880.

[15] Fair Work Act s.471(4).

[16] Fair Work Act s.471(4A).

[17] Fair Work Act s.471(8).

Updated time

Last updated

07 October 2019

 

 

Bookmark/Search this post

Facebook logo Google+ logo Twitter logo

 

Page feedback

Did you find what you were looking for?

Please note: If you would like a response to your question, please contact us or lodge a complaint. This feedback is only about content on this page and will be used to improve website usability. The comments are not monitored for personal information or workplace complaints. 

Mini sites

  • Annual Report 2013–14
    • Reader's guide
    • 1. Overview
      • President's introduction
      • General Manager's overview
      • Performance summary
      • Major achievements 2013–14
    • 2. About the Commission
      • Who we are and what we do
      • Our structure
      • Outcome and program structure
      • Our clients and stakeholders
        • In focus—Small Business Outreach
      • Our future direction
        • In focus–New website
        • In focus–Virtual tour
        • In focus–Mock hearings
      • Our history
    • 3. Performance reporting
      • Overview
      • Legislative amendments
      • Workload
      • Timeliness benchmarks
      • Resolving disputes
      • Determining unfair dismissal applications
      • Setting the minimum wage
        • In focus–Pay Equity Unit
      • Orders relating to industrial action
        • Case study–Emergency Services Telecommunications Authority
        • Case study–Sydney Water
      • Processes relating to modern awards
        • In focus–4 yearly review of awards
      • Approving agreements
        • Case study–Catholic Education Victoria
        • Case study–Orora Fibre Packaging
      • Regulating registered organisations
      • Determining anti-bullying applications
        • In focus–Setting up the anti-bullying jurisdiction
        • Case study–Anti-bullying
      • Key performance indicators
    • 4. Management and accountability
      • Corporate governance
      • Planning and development
      • Ethical standards
      • Accountability
      • Our workforce
      • Employee pay and entitlements
      • Service Charter, complaints and Code of Conduct
      • Financial management
    • 5. Appendices
      • A | Member activities
      • B | List of Members
      • C | Panel assignments
      • D | Methodology for Chart 2–Matters dealt with by the Commission and its predecessors 1998–99 to 2013–14
      • E | Promoting fairness and improving access
      • F | Efficiency and innovation
      • G | Increasing accountability
      • H | Productivity and engaging with industry
      • I | Documents relating to the work of the Commission
      • J | Fair Work Commission addresses
      • K | Lodgment and case load statistics
      • L | Methodology for Chart 6–Number of Commission sittings, various
      • M | Subscription services
      • N | Information on specific statutory requirements
      • O | Fraud Control Certificate
      • P | Fair Work Commission Service Charter
      • Q | Financial statements
        • Independent Audit Report
        • Statement by the General Manager and Chief Financial Officer
        • Statement of Comprehensive Income
        • Statement of Financial Position
        • Statement of Changes in Equity
        • Cash Flow Statement
        • Schedule of Commitments
        • Schedule of Administered Items
        • Notes to the financial statements
          • Note 1: Summary of Significant Accounting Policies
          • Note 2: Events after the Reporting Period
          • Note 3: Expenses
          • Note 4: Income
          • Note 5: Fair Value Measurements
          • Note 6: Financial Assets
          • Note 7: Non-financial Assets
          • Note 8: Payables
          • Note 9: Provisions
          • Note 10: Cash Flow Reconciliation
          • Note 11: Contingent Liabilities and Assets
          • Note 12: Senior Executive Remuneration
          • Note 13: Remuneration of Auditors
          • Note 14: Financial Instruments
          • Note 15: Financial Assets Reconciliation
          • Note 16: Administered Income
          • Note 17: Administered Payables
          • Note 18: Administered Cash Flow Reconciliation
          • Note 19: Administered Contingent Liabilities and Assets
          • Note 20: Appropriations
          • Note 21: Compliance with Statutory Conditions for Payments from the Consolidated Revenue Fund
          • Note 22: Compensation and Debt Relief
          • Note 23: Reporting of Outcomes
          • Note 24: Net Cash Appropriation Arrangements
      • R | Agency resource statement
      • S | Expenses and resources for outcome
      • T | Glossary
      • U | Acronyms and abbreviations
      • V | List of requirements
    • Letter of transmittal
    • Inquiries and copyright
    • Videos
    • Downloads
  • Annual Report 2014–15
    • Introduction
    • Preliminary information
      • Contents
      • Letter of transmittal
      • Readers guide
    • Part 1 Overview
      • President's introduction
      • General Manager's overview
      • Performance summary
      • Major achievements
    • Part 2 About the Commission
      • Outcome and programme structure
      • Who we are and what we do
      • Our structure
      • Our history
      • Our clients and stakeholders
      • Our future direction
      • Future directions - Continuing the change program
    • Part 3 Performance reporting
      • Overview
      • Legislative amendments
      • Workload
      • Timeliness benchmarks
      • Resolving disputes
      • Unlawful termination disputes
      • Determining unfair dismissal applications
      • Setting the minimum wage
      • Orders relating to industrial action
      • Processes relating to modern awards
      • Enterprise agreements
      • Determining anti-bullying applications
      • Regulating registered organisations
      • Key performance indicators
    • Part 4 Management and accountability
      • Corporate governance
      • Planning and development
      • Workplace health and safety
      • Business continuity
      • Ethical standards
      • Fair Work Commission values
      • Freedom of information
      • Accountability
      • The Commission's workforce
      • Employee pay and entitlements
      • Service Charter, complaints and code of conduct
      • Financial management
      • Agency resource statement
      • Expenses and resources for outcome
    • Acronyms and abbreviations
    • Part 5 Appendices
      • Appendix A
      • Appendix B
      • Appendix C
      • Appendix D
      • Appendix E
      • Appendix F
      • Appendix G
      • Appendix H
      • Appendix I
      • Appendix J
      • Appendix K
      • Appendix L
      • Appendix M
      • Appendix N
      • Glossary
  • Annual Report 2015–16
    • Preliminary information
      • Letter of transmittal
      • Readers' guide
    • Part 1: Overview
      • President's report
      • General Manager's report
    • Part 2: About the Commission
    • Part 3: Performance
      • Performance summary
      • Annual performance statements 2015–16
      • Operational performance
        • Applications lodged
        • Hearings & conferences
        • Information & assistance
        • Major application types
          • Unfair dismissals
          • General protections & unlawful termination disputes
          • Anti-bullying
          • Enterprise agreements
          • Resolving disputes
          • Industrial action
        • New Approaches
        • Setting the minimum wage
        • Modern awards
        • Regulating registered organisations
        • Appeals
      • Significant decisions
      • Case studies
        • Case study: Enterprise agreements pilot
        • Case study: Patrick & the MUA
        • Case study: Encouraging regulatory compliance
    • Part 4: Management & accountability
      • Corporate governance
      • Financial management
      • Other mandatory information
    • Appendices
      • Appendix A: List of Members
      • Appendix B: Panel assignments
      • Appendix C: Member activities
      • Appendix D: Lodgment & case load statistics
      • Appendix E: Registered organisations data
      • Appendix F: Performance reporting for the RSRT
      • Appendix G: Financial statements
      • Appendix H: Subscription services
      • Appendix I: Service charter
      • Appendix J: List of requirements
      • Appendix K: Expense & resources outcome, agency resource statement & financial performance analysis
    • Glossary
    • Acronyms & abbreviations
    • Contact us
  • Annual Wage Review 2013–14
  • Anti-bullying benchbook
    • Glossary & naming conventions
    • Overview of benchbook
    • What is workplace bullying?
    • Who is covered by workplace bullying laws?
      • Definition of ‘worker’
      • Definition of ‘constitutionally-covered business’
        • What is a person conducting a business or undertaking?
        • What is a Territory or a Commonwealth place?
        • What is a constitutional corporation?
        • What is the Commonwealth?
    • When is a worker bullied at work?
      • What does ‘at work’ mean?
      • Risk of continued bullying
      • Reasonable management action
    • Making an application
    • Responding to an application
    • If the worker has been dismissed
    • Commission processes
      • Procedural issues
      • Representation by lawyers and paid agents
    • Evidence
    • Outcomes
      • Dismissing an application
      • Contravening an order of the Commission
    • Associated applications
      • Costs
      • Appeals
      • Role of the Court
  • Corporate Plan 2018–19
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Culture
    • 5. Capability
    • 6. Performance
  • Corporate Plan 2019–20
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Our focus
    • 5. Culture
    • 6. Capability
    • 7. Performance
  • Corporate Plan 2020-21
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Key activities
    • 5. Capability
    • 6. Risk
    • 7. Performance
  • Enterprise agreements benchbook
    • Glossary & naming conventions
    • Overview of benchbook
    • What is an enterprise agreement?
      • Single-enterprise agreement
      • Multi-enterprise agreement
      • Differences between single and multi-enterprise agreements
      • Greenfields agreement
    • Content of an enterprise agreement
      • Permitted matters
      • Coverage
      • Scope – who will be covered?
      • Terms & conditions of employment
      • Base rate of pay
      • Nominal expiry date
      • Mandatory terms
      • Flexibility term
      • Consultation term
      • Dispute settlement term
      • Optional terms
      • Terms that cannot be included
        • Terms that exclude the NES
        • Unlawful terms
        • Designated outworker terms
    • Agreement making process
      • Representation
      • Employee right to be represented
      • Bargaining representatives
    • Bargaining
      • Good faith bargaining
      • How long does bargaining take?
    • Voting
      • Voting process
      • Who can vote?
      • Timeframe for vote
      • Voting methods
      • When is an agreement made?
      • If parties cannot agree
    • Making an application
      • Common defects & issues
        • National Employment Standards
        • Better off overall test
        • Mandatory terms
        • Other terms
        • Pre-approval requirements
        • Forms & lodgment
      • Who must apply
      • Timeframe to apply
      • Material to accompany application
      • Signing an agreement
      • Employer must notify employees
    • Commission approval process
      • Genuine agreement
        • Minor procedural or technical errors
      • Where a scope order is in operation
      • Particular kinds of employees
      • Better off overall test (BOOT)
        • When an agreement passes
        • Classes of employees
        • Which award applies
        • Advice about coverage
        • Loaded rates of pay
      • Public interest test
      • Undertakings
      • Powers of the Commission
    • Associated applications
      • Majority support determinations
      • Authorisations to commence bargaining
        • Single interest employer authorisations
        • Ministerial declaration
        • Low-paid authorisations
      • Scope orders
      • Bargaining orders
      • Serious breach declarations
      • Disputes
      • Workplace determinations
        • Low-paid
        • Industrial action related
        • Bargaining related
      • Role of the Court
      • Appeals
      • Varying enterprise agreements
        • Varying by agreement
        • Ambiguity or uncertainty
        • Discrimination
      • Terminating enterprise agreements
        • Terminating by agreement
        • After its nominal expiry date
      • Terminating individual agreements
  • General Manager reporting requirements
  • General protections benchbook
    • Glossary & naming conventions
    • Overview of benchbook
      • When is a person covered by the general protections?
    • What are the general protections?
    • How do the general protections work?
      • Rebuttable presumption as to reason or intent
    • Coverage for general protections
      • What is a constitutionally-covered entity?
      • What is a Territory or a Commonwealth place?
      • What is a trade and commerce employer?
      • What is a Territory employer?
      • What is a national system employer?
    • What if I am not covered?
    • What is adverse action?
      • What is dismissal?
      • Injuring employee in their employment
      • Altering the position of the employee
      • Discriminating
      • Threatened action and organisation of action
      • Exclusions
    • Workplace rights protections
      • Meaning of workplace right
      • Coercion
      • Undue influence or pressure
      • Misrepresentations
      • Requiring the use of COVIDSafe
    • Industrial activities protections
      • What are industrial activities?
      • Coercion
      • Misrepresentations
      • Inducements – membership action
    • Other protections
      • Discrimination
        • Race
        • Colour
        • Gender identity & sexual orientation
        • Age
        • Physical or mental disability
        • Marital status
        • Family or carer’s responsibilities
        • Pregnancy
        • Religion
        • Political opinion
        • National extraction
        • Social origin
      • Exceptions
      • Temporary absence – illness or injury
      • Bargaining services fees
      • Coverage by particular instruments
      • Coercion – allocation of duties to particular person
    • Sham arrangements
      • Misrepresenting employment
      • Dismissing to engage as independent contractor
      • Misrepresentation to engage as independent contractor
    • Making an application
      • Dismissal applications
        • Timeframe for lodgment
        • Extension of time for lodging an application
      • Non-dismissal applications
      • Other types of applications
        • Multiple actions relating to dismissal
        • Unfair dismissal
        • Unlawful termination
        • Court application
        • Discrimination
    • Power to dismiss applications
    • Evidence
    • Commission process
      • Conferences & hearings
      • Dealing with different types of general protections disputes
      • Rescheduling or adjourning matters
      • Representation by lawyers and paid agents
      • Bias
    • Outcomes
    • Costs
      • When are costs ordered by the Commission?
      • Costs against representatives
    • Appeals
    • Role of the Court
      • Enforcement of Commission orders
      • Types of order made by the Court
  • Industrial action benchbook
    • Glossary & naming conventions
    • What is industrial action?
      • Unprotected industrial action
        • Orders to stop or prevent unprotected industrial action
      • Protected industrial action
        • Immunity
        • Common requirements
        • Employee claim action
        • Employer response action
        • Employee response action
        • Pattern bargaining
    • Taking protected industrial action
      • Protected action ballots
        • Who may apply?
        • Making an application
        • Commission process
        • Varying a protected action ballot order
        • Revoking a protected action ballot order
      • Voting
        • Ballot agents
        • Who may vote – roll of voters
        • Ballot papers
        • Voting procedure
        • Scrutiny of the ballot
        • Results of the ballot
        • When is industrial action authorised?
      • Notice requirements
      • Commencing protected industrial action
    • Payments relating to industrial action
      • Partial work bans
      • Unprotected industrial action – payments
      • Standing down employees
    • Suspension or termination of protected industrial action
      • Powers of the Commission
        • When the Commission may suspend or terminate
        • When the Commission must suspend or terminate
          • Threats to persons or the economy
          • Suspending industrial action
        • Requirements relating to a period of suspension
      • Powers of the Minister
    • Enforcement
    • Appeals
  • JobKeeper benchbook
    • Glossary
    • Introduction
      • Provisions of the Fair Work Act
    • JobKeeper enabling directions – general
      • Service & entitlement accrual
      • When a JobKeeper enabling direction will have no effect
      • Stand downs that are not jobkeeper enabling stand downs
      • Employee requests
    • Jobkeeper enabling stand down directions – entitled employers
      • Directions about duties & location of work
    • Jobkeeper enabling directions – legacy employers
      • Jobkeeper enabling stand down directions – legacy employers
      • Directions about duties & location of work – legacy employers
      • Termination of a jobkeeper enabling direction – legacy employers
    • Agreements about days or times of work
      • Agreements about days or times of work – entitled employers
      • Agreements about days or times of work – legacy employers
      • Termination of an agreement about days or times of work
    • Employer payment obligations
      • Wage condition
      • Minimum payment guarantee
      • Hourly rate of pay guarantee
    • Agreements about annual leave
    • Protections
    • Disputes we cannot assist with
    • Applications to deal with a dispute
      • Who can make an application
      • Responding to an application
      • Objecting to an application
      • Discontinuing an application
    • Commission process
      • General information
      • Conferences & hearings
      • Procedural issues
    • Evidence
    • Outcomes
      • Contravening an order
      • Appeals
      • Role of the Court
    • Attachments
  • Modern Awards Review 2012
    • Introduction
      • Modern Awards Review 2012
  • Sir Richard Kirby Archives
    • Home
    • Sir Richard Kirby
    • About the Archives
    • Cases
      • Case
      • The Honourable Justice Henry Bournes Higgins (1851–1929)
    • Centenary
    • Exhibitions
      • Exhibition launch: The history of the Australian minimum wage
      • Guide – Opening Exhibition
      • International Industrial Dispute Resolution Conference
        • Speaker – Justice Alan Boulton AO
        • Speaker – Mr Arthur F Rosenfeld
        • Speaker – Mr Craig Smith
        • Speaker – Mr James Wilson
        • Speaker – Mr Kieran Mulvey
        • Speaker – Mr Peter Anderson
        • Speaker – Ms Ginette Brazeau
        • Speaker – Ms Nerine Kahn
        • Speaker – Ms Rita Donaghy CBE
        • Speaker – Ms Sharan Burrow
        • Speaker – Senator Guy Barnett
        • Speaker – The Hon. Julia Gillard
      • The Journey
        • Court
          • Early years
          • New court
            • Profile of Justice O'Connor
            • First registration of an industrial organisation
          • Judges & conciliators
          • The Boilermakers' Case
            • The dispute & appeals
        • Commission
          • Post Boilermakers 1956-1973
          • Hawke & Keating governments
            • Industrial Relations Court
          • Howard Government
        • Fair Work Australia
          • The Fair Work system
          • About Fair Work Australia
          • Transition
          • Fair Work timeline
      • The history of the Australian minimum wage
        • The Great Strikes
        • The first minimum wage: The Victorian minimum wage
        • The Harvester Decision
        • The impact of the Great Depression
        • Working it out: Cost of living versus capacity to pay
        • The removal of award rate discrimination
        • The wage explosion & economic crisis
        • The modern era: The development of a modern minimum wage
      • Treasures of the archives
        • Launch speech?Treasures of the Archives
        • 1. Professor Isaac
        • 2. Register of organisations
        • 3. Perlman letters
        • 4. Sir Richard Kirby photograph
        • 5. Oral history program
        • 6. AIRC sign
        • 7. Folder of wage decisions
        • 8. Centenary exhibition
        • 9. Women's exhibition poster
        • 10. Isaac letters
    • The modern era
    • Past Presidents
    • Past Members
      • Past Members 1956 to present
      • Past Members to 1956
  • Unfair dismissals benchbook
    • Overview of unfair dismissal
    • Glossary & naming conventions
    • Coverage for unfair dismissal
      • Who is protected from unfair dismissal?
      • People excluded from national unfair dismissal laws
        • Independent contractors
        • Labour hire workers
        • Vocational placements & volunteers
        • Public sector employment
      • Constitutional corporations
      • High income threshold
      • Modern award coverage
      • Application of an enterprise agreement
      • What is the minimum period of employment?
        • How do you calculate the minimum period of employment?
        • What is continuous service?
        • What is an excluded period?
      • Bankruptcy
      • Insolvency
    • What is dismissal?
      • When does a dismissal take effect?
      • Terminated at the employer's initiative
      • Forced resignation
      • Demotion
      • Contract for a specified period of time
      • Contract for a specified task
      • Contract for a specified season
      • Training arrangement
      • What is a transfer of employment?
      • Periods of service as a casual employee
      • What is a genuine redundancy?
        • Job no longer required due to changes in operational requirements
        • Consultation obligations
        • Redeployment
      • What is the Small Business Fair Dismissal Code?
    • What makes a dismissal unfair?
      • Valid reason relating to capacity or conduct
        • Capacity
        • Conduct
      • Notification of reason for dismissal
      • Opportunity to respond
      • Unreasonable refusal of a support person
      • Warnings – unsatisfactory performance
      • Size of employer's enterprise and human resources specialists
      • Other relevant matters
    • Making an application
      • Application fee
      • Timeframe for lodgment
      • Extension of time for lodging an application
      • Who is the employer?
      • Multiple actions
      • Discontinuing an application
    • Objecting to an application
    • Commission process
      • Conciliation
      • Hearings and conferences
      • Preparing for hearings and conferences
      • Representation by lawyers and paid agents
      • Rescheduling or adjourning matters
      • Bias
    • Remedies
      • Reinstatement
        • Order for reinstatement cannot be subject to conditions
        • Order to maintain continuity
        • Order to restore lost pay
      • Compensation
        • Calculating compensation
        • Mitigation
        • Remuneration
        • Other relevant matters
        • Compensation cap
        • Instalments
    • Dismissing an application
    • Evidence
    • Costs
      • Costs against representatives
      • Security for costs
    • Appeals
      • Staying decisions
    • Role of the Court
  • Waltzing Matilda and the Sunshine Harvester Factory
    • Introduction
    • The book
      • Book launch
    • The film
      • Film launch
    • Historical material
      • 38 Hour Week Wage Principle [1983]
      • 40 Hour Week Case [1947]
      • 44 Hour Week Case [1927]
      • Apprenticeship indentures
      • Australian Minimum Wage and fitter (trades) rate since 1906
      • Boot Trades Case
      • Careers in Bootmaking and Boot Repairing
      • Cattle Industry Case 1966
      • Commercial Printing Case [1936]
      • Commonwealth Conciliation and Arbitration Act 1904
      • Cost of living newspaper articles from the early 1900s
      • Debates
      • Equal Pay Case 1969
      • Equal Pay Case 1972
      • Fruit Pickers Case
      • Gas Employees Case
      • Graph of Australian Minimum Wage since 1906
      • Harvester Case
      • Historic case judgments on the Fair Work Commission's website
      • Kingston's evidence
      • Linesmen's Case
      • Maternity Leave Case [1979]
      • Metal trades base level minimum wages [1967–2015]
      • Methods of wage adjustment
        • Establishing an Australian Minimum Wage 1907?1922
          • The origins of the Australian minimum wage
          • The 'needs' principle and 'capacity to pay'
          • Women's wages
          • First indexation decision
        • Quarterly indexation 1922–1953
        • The Great Depression 1931
        • Prosperity loadings 1937
        • World War II 1939–1945
        • The post-war period: 1953–1965 basic wage inquiries
        • The total wage 1966–1967
        • Removal of discrimination in award rates
        • Reintroduction of quarterly wage indexation 1975–1978
        • Six monthly wage indexation 1978–1981
        • Wage explosion 1981–1982
        • Reforming awards and work and management practices 1987–1991
        • Six monthly wage indexation 1983–1987
        • Enterprise bargaining and a minimum wage safety net 1991–1996
        • Statutory adjustments
        • The minimum wage in real terms
      • Mrs Beeton's cookbook
      • Paternity Leave Case [1990]
      • Personal/Carer's Leave Test Case [1995]
      • Piddington report
      • Re Bagshaw [1907]
      • Significant cases on the Fair Work Commission's website
      • Statistics for the purpose of comparison with the Australian minimum wage
      • The Amalgamated Society of Engineers v. The Adelaide Steam-ship Company Limited and Others
      • The Australian minimum wage from 1906
      • The Federated Marine Stewards and Pantrymen's Association v. The Commonwealth Steamship Owners' Association and Others
      • The Victorian minimum wage 1896
        • Legislative Council Second Reading Speech to the Factories and Shops Bill 1896
      • The first Award: 1906 Steam-ship Crew
      • 100 years of the minimum wage—Statistical comparison
    • Mrs Beeton's cookbook
    • Glossary
    • Related sites
    • Educational materials
  • AWRS First Findings report

Footer

  • Site map
  • Legal
  • Copyright
  • Accessibility

Coronavirus (COVID-19) information