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FAIR WORK ACT 2009 - SECT 540

Limitations on who may apply for orders etc.

Employees, employers, outworkers and outworker entities

             (1)  The following persons may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if the person is affected by the contravention, or will be affected by the proposed contravention:

                     (a)  an employee;

                    (aa)  a prospective employee;

                     (b)  an employer;

                     (c)  an outworker;

                     (d)  an outworker entity.

Employee organisations and registered employee associations

             (2)  An employee organisation or a registered employee association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision in relation to an employee, only if:

                     (a)  the employee is affected by the contravention, or will be affected by the proposed contravention; and

                     (b)  the organisation or association is entitled to represent the industrial interests of the employee.

             (3)  However, subsection (2) does not apply in relation to:

                     (a)  items 4, 7 and 14 in the table in subsection 539(2); or

                     (b)  a contravention or proposed contravention of:

                              (i)  an outworker term in a modern award; or

                             (ii)  a term in an enterprise agreement that would be an outworker term if it were included in a modern award.

             (4)  An employee organisation may apply for an order under this Division, in relation to a contravention or proposed contravention of:

                     (a)  an outworker term in a modern award; or

                     (b)  a term in an enterprise agreement that would be an outworker term if it were included in a modern award;

only if the employee organisation is entitled to represent the industrial interests of an outworker to whom the term relates.

Employer organisations

             (5)  An employer organisation may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if the organisation has a member who is affected by the contravention, or who will be affected by the proposed contravention.

Industrial associations

             (6)  An industrial association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if:

                     (a)  the industrial association is affected by the contravention, or will be affected by the proposed contravention; or

                     (b)  if the contravention is in relation to a person:

                              (i)  the person is affected by the contravention, or will be affected by the proposed contravention; and

                             (ii)  the industrial association is entitled to represent the industrial interests of the person.

             (7)  If an item in column 2 of the table in subsection 539(2) refers to an industrial association then, to avoid doubt, an employee organisation, a registered employee association or an employer organisation may apply for an order, in relation to a contravention or proposed contravention of a civil remedy provision, only if the organisation or association is entitled to apply for the order under subsection (6).

Regulations

             (8)  The regulations may prescribe a person for the purposes of an item in column 2 of the table in subsection 539(2). The regulations may provide that the person is prescribed only in relation to circumstances specified in the regulations.



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