Fair Work Legislation 2016-17


Fair Work Legislation 2016-17

Sep 2016

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Thomson Reuters’ Fair Work Legislation 2016–17 comprises a comprehensive suite of the current federal workplace legislation capturing the latest amendments up to 12 August 2016. The legislation includes:

  • Fair Work Act 2009
  • Fair Work Regulations 2009
  • Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 [Extracts]
  • Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009
  • Fair Work (Registered Organisations) Act 2009
  • Fair Work (Registered Organisations) Regulations 2009
  • Fair Work Commission Rules 2013
  • Fair Work (Building Industry) Act 2012
  • Fair Work (Building Industry) Regulation 2015
  • Building Code 2013 [Extracts]
  • Fair Entitlements Guarantee Act 2012
  • Fair Entitlements Guarantee Regulation 2012
  • Fair Entitlements Guarantee (Indexation of Maximum Weekly Wage) Regulation 2013
  • Competition and Consumer Act 2010 [Extracts]
  • Federal Court of Australia Act 1976 [Extracts]
  • Federal Court and Federal Circuit Court Regulation 2012
  • Federal Court Rules 2011  [­Extracts]
  • Federal Circuit Court of Australia Act 1999 [Extracts]
  • Federal Circuit Court Rules 2001 [Extracts]
  • Independent Contractors Act 2006
  • Independent Contractors Regulations 2007
  • Paid Parental Leave Act 2010
  • Paid Parental Leave Rules 2010
  • Workplace Gender Equality Act 2012
  • Workplace Gender Equality (Matters In Relation To Gender Equality Indicators) Instrument 2013 (No 1)
  • Workplace Gender Equality (Minimum Standards) Instrument 2014


Fair Work Legislation 2016–17 includes revised commentary on key provisions of the FW Act, featuring many additional sections. Also included are articles reviewing the first seven years of the adverse action provisions of the FW Act, and the Royal Commission into Trade Union Governance and Corruption, together with an extensive summary of developments since the last edition in the Year in Review.
Significant cases over the past year, detailed in the commentary, include:

·       Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 256 CLR 137; 90 ALJR 107; [2015] HCA 45 – in which the High Court considered the application of the “sham contracting” prohibition (s 357 of the FW Act) to tripartite labour hire arrangements. The High Court held that s 357 still applies even if the misrepresentation is made by the employer about the relationship between the labour hire company and the worker.

·       Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 90 ALJR 113; 255 IR 87; [2015] HCA 46 – in which the High Court decided that courts are able to consider an agreement between the parties on penalties, or submissions by a regulator on the quantum or range of penalties.

·       Australian Mines and Metals Association Inc v Maritime Union of Australia [2016] FCAFC 71 and Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72 – in these two Full Federal Court judgments, the Federal Court has adopted a wide approach to when industrial action will be protected. Protection will be lost under s 413(5) only if there has been a contravention of a FWC order in operation at the time of the proposed industrial action.

·       Hart v Coles Supermarkets Australia Pty Ltd [2016] FWCFB 2887 – where a Full Bench of the FWC adopted a strict approach to applying the “better off overall test” (BOOT) regarding all award-covered employees under the proposed agreement. The Full Bench concluded that the BOOT was not satisfied, particularly as employees working at times attracting award penalty rates would not be better off under the proposed agreement.

·       Transport Workers' Union of Australia v ALDI Foods Pty Ltd (2016) 255 IR 248; [2016] FWCFB 91 – in which a Full Bench of the FWC upheld the employer’s ability to enter into an agreement with employees in a new geographical area as a single-enterprise employee agreement, rather than as a greenfields agreement.

The legislation also incorporates the amendments made by the Fair Work Amendment Act 2015 (Act 156, 2015 – Sch 1, Pts 1, 5, 7 and Sch 2 effective 27 November 2015 and Sch 1, Pt 10 effective 1 January 2016) which, amongst other changes, extends good faith bargaining rules to greenfields agreements. The amending legislation also implements a prohibition on the taking of protected industrial action before bargaining has formally commenced, and requires discussions before an employer is able to refuse a request for an extension to unpaid parental leave.