s 2.15

Contracts to which limitations on fixed term contracts do not apply

In force

Organised sport

(1)

For the purposes of paragraph 333F(1)(i) of the Act, a contract entered into by a person and an employee is prescribed if:

(a)

the employee is engaged under the contract to primarily perform work as:

(i)

an athlete participating in an organised sport; or

(ii)

a coach for an athlete participating in an organised sport; or

(iii)

another kind of performance support professional for an athlete participating in an organised sport; or

(iv)

a match official for an organised sport; or

(v)

a performance support professional for a match official for an organised sport; and

(b)

the person is:

(i)

a National Sporting Organisation or a National Sporting Organisation for People with Disability recognised by the Australian Sports Commission; or

(ii)

the governing body for an organised sport in a State or a Territory; or

(iii)

if the governing bodies for an organised sport in a State or a Territory are split between metropolitan and non‑metropolitan areas—the governing body for the non‑metropolitan areas; or

(iv)

a body conducting a State or Territory level competition for an organised sport; or

(v)

a member of, or a person otherwise affiliated with, an Organisation or body referred to in subparagraph (i), (ii), (iii) or (iv); and

(c)

the contract is entered into on or after 6 December 2023.

(2)

A performance support professional is a person whose work primarily involves direct support or assessment of:

(a)

an athlete’s participation in an organised sport; or

(b)

the performance of a match official for an organised sport.

High performance sport—international event organising bodies

(3)

For the purposes of paragraph 333F(1)(i) of the Act, a contract entered into by a person and an employee is prescribed if:

(a)

the employee is engaged under the contract to perform work that primarily involves direct support of the administration or organisation of a particular international event for a high performance sport; and

(b)

the international event is not regularly held in Australia; and

(c)

either:

(i)

the international organising body or the international event has granted the person the right to host the particular international event; or

(ii)

the person is seeking to be granted the right to host the particular international event by the international organising body for the international event; and

(d)

the person is:

(i)

the international organising body for the international event; or

(ii)

the Australian organising body for the international event; or

(iii)

the Australian organising body for the particular international event; and

(e)

the contract is entered into on or after 6 December 2023.

(4)

A high performance sport is:

(a)

the part of a sport that is performed at the elite level by athletes; or

(b)

the part of a sport that is performed at the elite level by athletes with disability.

Charity and not‑for‑profit sector employees

(7)

For the purposes of paragraph 333F(1)(i) of the Act, a contract entered into by a person and an employee is prescribed if:

(a)

the person is, or enters into the contract on behalf of, a philanthropic entity (the relevant entity); and

(aa)

the total annual revenue of the relevant entity is less than $10,000,000; and

(b)

the contract relates to a position for the performance of work that is funded in whole or in part by:

(i)

government funding provided by way of a grant or procurement, other than funding excluded by subregulation (8); or

(ii)

funding provided by a philanthropic entity (other than the relevant entity or an associated entity of the relevant entity); or

(iii)

funding provided as a testamentary gift or testamentary contribution to the relevant entity for a charitable purpose (within the meaning of the Charities Act 2013) of the relevant entity; and

(c)

the work is to be performed for the purposes of a specific program or project to which the funding relates; and

(d)

the period for which the program or project is to be conducted is, taking into account so much of that period (if any) as has already occurred, a period of not more than 5 years; and

(e)

the identifiable period (see paragraph 333E(1)(b) of the Act) at the end of which the contract will terminate is substantially the same as the period, or the remainder of the period, for which the program or project is to be conducted; and

(f)

if the employee is already, or has previously been, employed by the person—the employment of the employee for the identifiable period would not result in continuity or substantial continuity of an employment relationship between the person and the employee for a period of more than 7 years; and

(g)

at the time the contract is entered into, the employee is not covered by either of the following modern awards:

(i)

the Higher Education Industry—Academic Staff—Award 2020;

(ii)

the Higher Education Industry—General Staff—Award 2020; and

(h)

any arrangements for the provision of funding covered by paragraph (b) of this subregulation take effect on or after 1 November 2024; and

(i)

the contract is entered into:

(i)

on or after 1 November 2024; and

(ii)

before 1 November 2026.

(7A)

For the purposes of paragraph 2.15(7)(aa), if:

(a)

the relevant entity is part of a reporting group (within the meaning of the Australian Charities and Not‑for‑profits Commission Act 2012); and

(b)

the total annual revenue for the reporting group is $10,000,000 or more for the most recent financial year (for which financial statements are available) to end before the person entered into the contract with the employee;

the relevant entity’s total annual revenue is taken to be $10,000,000 or more, unless the relevant entity provides evidence to the contrary that would satisfy a reasonable person.

(8)

For the purposes of subparagraph (7)(b)(i), the following are excluded:

(a)

any payments made to, or for the benefit of, an individual, if the entitlement to the payments is provided for under legislation of the Commonwealth, a State or a Territory;

(b)

any payments made for the purposes of the program known as the Commonwealth Home Support Programme.

Medical or health research sector employees

(9)

For the purposes of paragraph 333F(1)(i) of the Act, a contract entered into by a person and an employee is prescribed if:

(a)

the person is, or enters into the contract on behalf of, one of the following (the relevant entity):

(i)

a philanthropic entity;

(ii)

an entity controlled by a philanthropic entity;

(iii)

a body established for a public purpose by or under a law of the Commonwealth, a State or a Territory;

(iv)

an entity controlled by such a body; and

(aa)

the total annual revenue of the relevant entity is less than $100,000,000; and

(b)

the contract relates to a position for the performance of work that is funded in whole or part by:

(i)

government funding; or

(ii)

funding provided by a philanthropic entity other than the relevant entity; or

(iii)

if the relevant entity is a philanthropic entity—funding provided to the relevant entity for a charitable purpose (within the meaning of the Charities Act 2013) of the relevant entity (including funding provided as a testamentary gift or testamentary contribution for such a purpose); and

(c)

the work primarily involves carrying out medical or health research of any of the following kinds:

(i)

basic research;

(ii)

pre‑clinical research;

(iii)

clinical research;

(iv)

translational research; and

(d)

the work is to be performed for the purposes of a specific program or project to which the funding relates; and

(e)

the period for which the program or project is to be conducted is, taking into account so much of that period (if any) as has already occurred, a period of not more than 5 years; and

(f)

(g)

(h)

at the time the contract is entered into, the employee is not covered by either of the following modern awards:

(i)

the Higher Education Industry—Academic Staff—Award 2020;

(ii)

the Higher Education Industry—General Staff—Award 2020; and

(i)

any arrangements for the provision of funding covered by paragraph (b) of this subregulation take effect on or after 1 November 2024; and

(j)

the contract is entered into:

(i)

on or after 1 November 2024; and

(ii)

before 1 November 2026.

(9A)

For the purposes of paragraph 2.15(9)(aa), if:

(a)

the relevant entity is part of a reporting group (within the meaning of the Australian Charities and Not‑for‑profits Commission Act 2012); and

(b)

the total annual revenue for the reporting group is $100,000,000 or more for the most recent financial year (for which financial statements are available) to end before the person entered into the contract with the employee;

the relevant entity’s total annual revenue is taken to be $100,000,000 or more, unless the relevant entity provides evidence to the contrary that would satisfy a reasonable person.

Note:

This regulation prescribes matters relating to circumstances where the limitations on fixed term contracts in section 333E of the Act do not apply. Regardless, if a substantial reason for employing an employee for a specified period is to avoid the application of Division 11 of Part 2‑2 of the Act (which deals with notice of termination and redundancy pay), that Division may still apply: see subsection 123(2) of the Act.

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