Fair Work Act. Australia
application that this Division gives to this Act will apply to the offences in this Act.
Division 4—Miscellaneous
37 Act binds Crown
(1) This Act binds the Crown in each of its capacities.
(2) However, this Act does not make the Crown liable to be prosecuted for an offence.
38 Act not to apply so as to exceed Commonwealth power
(1) Unless the contrary intention appears, if a provision of this Act:
(a) would, apart from this section, have an application (an invalid application) in relation to:
(i) one or more particular persons, things, matters, places, circumstances or cases; or
(ii) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;
because of which the provision exceeds the Commonwealth’s legislative power; and
(b) also has at least one application (a valid application) in relation to:
(i) one or more particular persons, things, matters, places, circumstances or cases; or
(ii) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;
that, if it were the provision’s only application, would be within the Commonwealth’s legislative power;
it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.
(2) Despite subsection (1), the provision is not to have a particular valid application if:
(a) apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or
(b) the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power.
(3) Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).
(4) This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.
39 Acquisition of property
This Act, or any instrument made under this Act, does not apply to the extent that the operation of this Act or the instrument would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).
40 Interaction between fair work instruments and public sector employment laws
Generally, public sector employment laws prevail
(1) A public sector employment law prevails over a fair work instrument that deals with public sector employment, to the extent of any inconsistency.
When fair work instruments or their terms prevail
(2) However, a fair work instrument, or a term of a fair work instrument, that deals with public sector employment prevails over a public sector employment law, to the extent of any inconsistency, if:
(a) the instrument or term is prescribed by the regulations for the purposes of that particular law; or
(b) the instrument or term (other than an FWA order or a term of an FWA order) is included in a class of instruments or terms that are prescribed by the regulations for the purposes of that particular law.
Meaning of public sector employment law
(3) A public sector employment law is a law of the Commonwealth (other than this Act) or a Territory, or a term of an instrument made under such a law, that deals with public sector employment.
Laws that fair work instruments never prevail over
(4) Subsection (2) does not apply to any provisions of the following that are public sector employment laws:
(a) the Safety, Rehabilitation and Compensation Act 1988;
(b) the Superannuation Act 1976;
(c) the Superannuation Act 1990;
(d) the Superannuation Act 2005;
(e) the Superannuation (Productivity Benefit) Act 1988;
(f) an instrument made under a law referred to in any of the above paragraphs.
Relationship with section 29
(5) This section prevails over section 29, to the extent of any inconsistency.
40A Application of the Acts Interpretation Act 1901
(1) The Acts Interpretation Act 1901, as in force on 25 June 2009, applies to this Act.
(2) Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Act.
Chapter 2—Terms and conditions of employment
Part 2–1—Core provisions for this Chapter
Division 1—Introduction
41 Guide to this Part
This Part has the core provisions for this Chapter, which deals with terms and conditions of employment of national system employees. The main terms and conditions come from the National Employment Standards, modern awards, enterprise agreements and workplace determinations.
The National Employment Standards (Part 2–2) are minimum terms and conditions that apply to all national system employees.
A modern award (see Part 2–3), an enterprise agreement (see Part 2–4) or a workplace determination (see Part 2–5) provides terms and conditions for those national system employees to whom the award, agreement or determination applies. Only one of those instruments can apply to an employee at a particular time.
Division 2 has the provisions to enforce the National Employment Standards, modern awards and enterprise agreements. It also sets out when a modern award or enterprise agreement applies to a person and the significance of that for this Act.
Note: In most cases, this Act applies to a workplace determination as if it were an enterprise agreement in operation (see section 279). For the rules about workplace determinations, see Part 2–5.
Division 3 deals with the interaction between the National Employment Standards, modern awards and enterprise agreements.
42 Meanings of employee and employer
In this Part, employee means a national system employee, and employer means a national system employer.
Division 2—Core provisions for this Chapter
Subdivision A — Terms and conditions of employment provided under this Act
43 Terms and conditions of employment provided under this Act
Main terms and conditions
(1) The main terms and conditions of employment of an employee that are provided under this Act are those set out in:
(a) the National Employment Standards (see Part 2–2); and
(b) a modern award