Fair Work Act 2009

The FWC may deal with the dispute by arbitration, including by making an order (an arbitrated protected rate of pay order) determining:

how the rate of pay at which the employer must pay the employee in connection with the work is to be worked out; and

that the employer must pay the rate of pay worked out in that way to the employee in connection with the work.

If the employer is a national system employer only because of section 30D or 30N, the rate of pay for the purposes of paragraph (1)(a) of this section must not include any amount that relates to an excluded subject matter within the meaning of subsection 30A(1) or 30K(1).

Sections 30D and 30N extend the meaning of national system employer.

The FWC must not make an arbitrated protected rate of pay order unless the FWC considers that it would be fair and reasonable to make the order.

If the parties have notified the FWC, in writing, that they agree to the FWC arbitrating the dispute, an arbitrated protected rate of pay order made in relation to the dispute may apply in relation to work performed at any time on or after the day the regulated labour hire arrangement order comes into force.

If the parties have not notified the FWC that they agree to the FWC arbitrating the dispute, an arbitrated protected rate of pay order made in relation to the dispute may apply only in relation to work performed on or after:

if the arbitrated protected rate of pay order is made before the regulated labour hire arrangement order to which the order relates comes into force—the day the regulated labour hire arrangement order comes into force; or

otherwise—the day the arbitrated protected rate of pay order is made.

If the FWC makes an arbitrated protected rate of pay order in relation to the dispute, the order has effect, in relation to so much of the work as is performed during the period to which the order applies, despite the following:

section 306F (protected rate of pay payable to employees if a regulated labour hire arrangement order is in force);

any provision of the following that provides for a lower rate of pay than that worked out in accordance with the order:

a fair work instrument that applies to the employee;

a covered employment instrument (other than a fair work instrument) that applies to the employee;

the employee’s contract of employment.

A person must not contravene a term of an arbitrated protected rate of pay order.

This subsection is a civil remedy provision (see Part 4‑1).

In making an order under this section, the FWC must ensure that, if an exception in section 306G would apply to the requirement to pay the regulated employee at no less than the protected rate of pay, the exception also applies in relation to the requirement to pay the employee at the rate worked out under the arbitrated protected rate of pay order.