Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 76C

  (1)   For the purposes of paragraph   76B(4)(b), the FWC may deal with the dispute by arbitration by making any of the following orders:

  (a)   if the employer has not given the employee a written response to the request under section   76A--an order that the employer be taken to have refused the request;

  (b)   if the employer refused the request:

  (i)   an order that it would be appropriate for the grounds on which the employer refused the request to be taken to have been reasonable business grounds; or

  (ii)   an order that it would be appropriate for the grounds on which the employer refused the request to be taken not to have been reasonable business grounds;

  (c)   if the FWC is satisfied that the employer has not responded, or has not responded adequately, to the employee's request under section   76A--an order that the employer take such further steps as the FWC considers appropriate, having regard to the matters in section   76A;

  (d)   subject to subsection   (4) of this section:

  (i)   an order that the employer grant the request; or

  (ii)   an order that the employer agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months (other than the period requested by the employee) immediately following the end of the available parental leave period.

Note:   An order by the FWC under paragraph   (c) could, for example, require the employer to give a response, or further response, to the employee's request, and could set out matters that must be included in the response or further response.

  (2)   In making an order under subsection   (1), the FWC must take into account fairness between the employer and the employee.

  (3)   The FWC must not make an order under paragraph   (1)(c) or (d) that would be inconsistent with:

  (a)   a provision of this Act; or

  (b)   a term of a fair work instrument (other than an order made under that paragraph) that, immediately before the order is made, applies to the employer and employee.

  (4)   The FWC may make an order under paragraph   (1)(d) only if the FWC is satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order.

  (5)   If the FWC makes an order under paragraph   (1)(a), the employer is taken to have refused the request.

  (6)   If the FWC makes an order under paragraph   (1)(b), the grounds on which the employer refuses the request are taken:

  (a)   for an order made under subparagraph   (1)(b)(i)--to be reasonable business grounds; or

  (b)   for an order made under subparagraph   (1)(b)(ii)--not to be reasonable business grounds.

Contravening an order under subsection   (1)

  (7)   A person must not contravene a term of an order made under subsection   (1).

Note:   This subsection is a civil remedy provision (see Part   4 - 1).