Fair Work Act 2009

This section applies to a decision to make or vary, or not to make or vary, an employee‑like worker minimum standards order, other than a decision of the FWC to refuse to consider an application to make or vary such an order.

Before making a decision to which this section applies, the FWC must consider whether, on the whole, the persons included (or purportedly included) in the class of employee‑like workers to be covered by the order, or the order as proposed to be varied, are employee‑like workers.

If the FWC is not satisfied that, on the whole, the persons included (or purportedly included) in the class of employee‑like workers to be covered by the minimum standards order, or the order as proposed to be varied, are employee‑like workers, the FWC must decide to refuse to consider the application, or not to make or vary the order, as the case requires.

The FWC:

must not make or vary the employee‑like worker minimum standards order unless there has been genuine engagement with the parties to be covered; and

must not make or vary the employee‑like worker minimum standards order unless the consultation process set out in Subdivision BA has been followed; and

must have regard to choice and flexibility in working arrangements in making or varying the employee‑like worker minimum standards order.