Fair Work Commission

Overview

On 1 January 2010, modern awards came into effect in the national workplace relations system, establishing minimum pay and conditions in a number of industries.

Employees or outworkers who believe the introduction of modern awards has led, or will lead, to a reduction in their take-home pay may be able to seek a take-home pay order to preserve their pay.

This guide is intended to make it easier for employees, outworkers and employers to understand how an application is made and the process that may be involved.

It is not a substitute for the legislative provisions for take-home pay orders.

In case of doubt, independent advice should be sought.

What is 'take-home pay'?

Take-home pay is the pay an employee or outworker actually receives after tax and certain deductions such as salary sacrificing arrangements.

It includes:

• wages
• allowances
• overtime payments, and
• any incentive-based payments.

The introduction of modern awards is not intended to result in a reduction in the take-home pay of employees or outworkers.

About take-home pay orders

To obtain a take-home pay order, an employee or outworker must be eligible, and must apply in writing to the Fair Work Commission, Australia's national workplace relations tribunal.

The Commission is an independent body with power to carry out a range of functions. Its work is carried out by members with the support of administrative staff.

The person making the application is known as the applicant and the relevant employer is the respondent.

If successful in gaining a take-home pay order an employee or outworker will have their take-home pay preserved while they remain in the same job.

Who can apply for a take-home pay order?

An application for a take-home pay order can be made by:

• an employee or outworker who believes the introduction of modern awards has led, or will lead, to a reduction in their take-home pay
• a union that is entitled to represent the industrial interests of such an employee or outworker
• a person acting on behalf of an individual employee or outworker or a group of such employees or outworkers who have similar circumstances.

What will the Commission consider?

In order to make a take-home pay order, the Commission must be satisfied that the employee(s) or outworker(s) claiming a reduction in take-home pay have actually suffered a reduction in pay or are likely to suffer a reduction in pay.

Generally the Commission must also be satisfied that:

• the reduction is because of the introduction of a modern award
• the work performed is the same as, or similar, to work performed immediately before the modern award came into operation
• the reduction applies to the same hours of work or quantity of work performed immediately before the modern award came into operation
• the reduction is not minor or insignificant
• the employee(s) or outworker(s) affected have not been adequately compensated in other ways for the reduction.

Making an application

How to apply

To apply for a take-home pay order the applicant must complete the relevant Commission form and lodge (submit) it with the Commission.

An individual employee or outworker making an application should use Form F47A.

An applicant who is applying on behalf of multiple employees or outworkers should use Form F47C.

There is no time limit or fee required for making such an application.

Filling in the form

In completing the application please make sure you have answered all questions and, where requested, included specific details. Make sure you sign and date the form.

You may have a lawyer or paid agent to help you prepare and/or lodge a copy of written documents such as an application or submissions.

You will find below an explanation of some of the terms in the form.

• Applicant – the employee or outworker making the application (the applicant can also be a person or an organisation submitting the application on behalf of an employee/outworker or a class of employees/outworkers).
• Applicant's representative – the applicant may or may not have a representative, such as a lawyer or a union representative (this is not required).
• Respondent – the respondent is the employer (of the employee(s) or outworker(s) who claim the introduction of modern awards has led, or will lead, to a reduction in their take-home pay).
• Transitional instrument – if possible, you should identify the legal document under which you were paid before the introduction of modern awards.
• Reduction in take-home pay – be specific about the particular changes to entitlements that you believe have led, or are likely to lead, to a reduction in your take-home pay.

The form can be lodged by email or fax sent to any Commission office.

If you need help completing the relevant form, please contact the Commission. You may have a lawyer or paid agent to help you prepare and/or lodge the application.

What is service?

At the end of forms F47A and F47C there is a reference to the form being 'served'.

In the case of forms F47A and F47C this means the applicant must give a copy of the application to the employer as soon as practicable after the application is lodged with the Commission.

In the case of forms F47B and F47D this means the respondent must give a copy of the employer’s response to the applicant as soon as practicable after the response is lodged with the Commission.

The employer's response

An employer who is served with a copy of an application for a take-home pay order is required to lodge a response with the Commission within 14 days of receiving the application.

The response should be prepared by completing the relevant Fair Work Commission form.

In the case of an application involving an individual employee or outworker, use Form F47B for the employer's response.

In the case of an application involving multiple employees or outworkers, use Form F47D for the employer's response.

In completing the employer response form please ensure you have answered all questions and, where requested, included specific details. Make sure the form is signed and dated.

The process

The application will be assigned to a Commission Member who will decide how the case should be handled and may ultimately make a binding decision.

The Commission Member may:

• seek information in writing (written submissions) from the applicant and the respondent
• call a private conference involving the applicant and the respondent – attendance in person may be required, or the conference may be held over the telephone
• call a hearing involving the applicant and the respondent (a formal proceeding that is open to the public and may require the provision of evidence and witnesses).

Do I have to be represented by someone?

There is no requirement for you to be represented by another person when you appear in proceedings at the Commission. You will need the permission of the Commission Member dealing with your case if you wish to be represented by a lawyer or paid agent, unless that person is:

• one of your employees or officers (if you are an employer)
• employed by a union or employer organisation, a peak union or peak employer body.

If you decide to represent yourself in proceedings it will be easier for you if you are well prepared. You may consider having one or more individuals with you for support, however, in a private conference you should be prepared to tell the Commission Member dealing with your case why you would like the presence of such individuals.

What if I need an interpreter?

There is no cost to you if you require an interpreter at a Commission conference or hearing, but you must ask the Commission to provide an interpreter, either when lodging your application, or before the day of the conference or hearing.

Finding your way to a hearing or conference

If you are required to attend a conference or hearing at the Commission you will be notified of the date and time by mail. This is known as a notice of listing.

Before you attend a conference or hearing at the Commission, however, you should check the hearings and conferences list for further information.

The list identifies all of the cases for a particular day, together with the Fair Work Commission members dealing with them, the times of the hearings and conferences and the location (the floor and the room number).

The list is published in capital city newspapers and on our website (on the Hearings & conferences page) each day. Printed copies of the list can also be found at Commission public counters, near the courtrooms or, in some Commission premises, on the building's ground floor.

If your hearing or conference is in a regional courthouse you may have to ask for information at the inquiry counter.

At conferences or hearings

• When you are addressing a Commission Member refer to them by their title, eg Deputy President or Commissioner. Staff at the hearing or conference can advise you of the appropriate form of address if you have any doubts.
• Make sure you arrive for the conference or hearing early because proceedings begin on time. Notify Commission staff when you arrive by approaching them in the hearing or conference room.
• If you are delayed for any reason it is important that you contact the Commission as early as possible to ensure a message is sent to the appropriate Commission staff.
• If you have a mobile phone or pager, make sure it is switched off in the conference or hearing room.
• It is customary to bow to the Commission member, by standing and inclining your head, at the beginning of a hearing and if you leave or enter the hearing room while proceedings are underway.
• It is customary to stand when you are addressing the Commission Member or questioning a witness.
• If you are attending a face-to-face conference or hearing bring along enough copies of any documents you want to refer to so that everyone involved has a copy.

Adjournments

If you cannot attend a scheduled hearing or conference you may be able to ask for an adjournment in certain circumstances, provided that you do so with sufficient notice.

Any application for an adjournment must be given in writing and provide full reasons for seeking the adjournment.

Adjournment applications will only be granted on substantial grounds.

What happens if an order is made?

If a take-home pay order is made the employer of the named employee(s) or outworker(s) must comply with its terms.

The order continues to have effect so long as the modern award continues to cover the relevant employee(s) or outworker(s), subject to any limitations in the order itself. This means the order will generally continue while the applicant(s) remain in the same job, and while that job is covered by the modern award.

Further information

Commission staff can provide you with information by email or over the telephone. Such information can include help with:

• understanding processes
• filling out forms
• finding your way to a conference or hearing.