Fair Work Act. Australia
hours of work.
If there is no agreement
(2) If there is no agreement about ordinary hours of work for an award/agreement free employee, the ordinary hours of work of the employee in a week are:
(a) for a full time employee—38 hours;or
(b) for an employee who is not a full-time employee — the lesser of:
(i) 38 hours; and
(ii) the employee’s usual weekly hours of work.
If the agreed hours are less than usual weekly hours
(3) If, for an award/agreement free employee who is not a full-time employee, there is an agreement under subsection (1) between the employee and his or her national system employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work, the ordinary hours of work of the employee in a week are the lesser of:
(a) 38 hours; and
(b) the employee’s usual weekly hours of work.
Regulations may prescribe usual weekly hours
(4) For an award/agreement free employee who is not a full-time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subsections (2) and (3).
21 Meaning of pieceworker
(1) A pieceworker is:
(a) a national system employee to whom a modern award applies and who is defined or described in the award as a pieceworker; or
(b) a national system employee to whom an enterprise agreement applies and who is defined or described in the agreement as a pieceworker; or
(c) an award/agreement free employee who is in a class of employees prescribed by the regulations as pieceworkers.
Note: Sections 197 and 198 affect whether FWA may approve an enterprise agreement covering a national system employee that includes a term that:
(a) defines or describes the employee as a pieceworker, if the employee is covered by a modern award that is in operation and does not include such a term; or
(b) does not define or describe the employee as a pieceworker, if the employee is covered by a modern award that is in operation and includes such a term.
(2) Without limiting the way in which a class may be described for the purposes of paragraph (1)(c), the class may be described by reference to one or more of the following:
(a) a particular industry or part of an industry;
(b) a particular kind of work;
(c) a particular type of employment.
22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i) a period of absence under Division 8 of Part 2–2 (which deals with community service leave); or
(ii) a period of stand down under Part 3–5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind prescribed by the regulations.
(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.
(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.
Meaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 2–2
(4) For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 2–2:
(a) a period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include:
(i) any period of unauthorised absence; or
(ii) any other period of a kind prescribed by the regulations; and
(b) a period referred to in subparagraph (a)(i) or (ii) does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service; and
(c) subsections (1), (2) and (3) do not apply.
Note: Divisions 4 and 5, and Subdivision A of Division 11, of Part 2–2 deal, respectively, with requests for flexible working arrangements, parental leave and related entitlements, and notice of termination or payment in lieu of notice.
(4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.
When service with one employer counts as service with another employer
(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:
(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and
(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.
Note: This subsection does not apply to a transfer of employment between non-associated entities, for the purpose of Division 6 of Part 2–2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2–2 (which deals with redundancy pay), if the second employer decides not to recognise the employee’s service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1)).
(6) If the national system employee has already had the benefit of an entitlement the amount of which was calculated by reference to a period of service with the first employer, subsection (5) does not result in that period of service with the first employer being counted again when calculating the employee’s entitlements of that kind as an employee of the second employer.
Note: For example:
(a) the accrued paid annual leave to which the employee is entitled as an employee of the second employer does not include any period of paid annual leave that the employee has already taken as an employee of the first employer; and
(b) if an employee receives notice of termination or payment in lieu of notice in relation to a period of service with the first employer, that period of service is not counted again in calculating the amount of notice of termination, or payment in lieu, to which the employee is entitled as an employee of the second employer.
Meaning of transfer of