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Schedule 1—Amendments

Schedule 1 Amendments

   

Fair Work Act 2009

1  Section 12

Insert:

excluded small business employer : see section 23AA.

2  Subsection 23(1)

Omit “15 employees”, substitute “20 employees”.

3  After section 23

Insert:

23AA   Meaning of excluded small business employer

             (1)  A small business employer is an excluded small business employer at a particular time if the employer employs fewer than 20 employees at that time in any of the following industries:

                     (a)  restaurant and catering;

                     (b)  hospitality;

                     (c)  retail.

             (2)  For the purpose of calculating the number of employees employed by the employer at a particular time:

                     (a)  subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

                     (b)  a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

             (3)  For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

4  Paragraph 139(1)(e)

Before “penalty rates”, insert “subject to section 155A,”.

5  At the end of Division 3 of Part 2-3

Add:

155A  Terms dealing with penalty rates payable by excluded small business employers

                   A modern award must not include a term that has the effect of requiring an excluded small business employer to pay penalty rates to an employee for work performed for the employer, unless:

                     (a)  the work:

                              (i)  is performed on a weekend; and

                             (ii)  is in addition to 38 hours of work that the employee has worked in the relevant week; or

                     (b)  the work:

                              (i)  is in a 24 hour period; and

                             (ii)  is in addition to 10 hours of work that the employee has worked in that period; or

                     (c)  the work is performed on a public holiday.

6  At the end of Schedule 1

Add:

Part 3 Amendments made by the Fair Work Amendment (Penalty Rates Exemption for Small Businesses) Act 2015

   

13   Definitions

                   In this Part:

amended Act means this Act as amended by the Fair Work Amendment (Penalty Rates Exemption for Small Businesses) Act 2015.

commencement means the commencement of this Part.

14   Application of section 155A of amended Act

                   Section 155A of the amended Act applies in relation to a modern award that is in operation on or after commencement, whether or not the award was made before commencement.