On 1 January 2010, modern awards came into effect in the national workplace relations system, establishing minimum pay and conditions in a number of industries.
Employees or outworkers who believe the introduction of modern awards has led, or will lead, to a reduction in their take-home pay may be able to seek a take-home pay order to preserve their pay.
This guide is intended to make it easier for employees, outworkers and employers to understand how an application is made and the process that may be involved.
It is not a substitute for the legislative provisions for take-home pay orders.
In case of doubt, independent advice should be sought.
Take-home pay is the pay an employee or outworker actually receives after tax and certain deductions such as salary sacrificing arrangements.
The introduction of modern awards is not intended to result in a reduction in the take-home pay of employees or outworkers.
To obtain a take-home pay order, an employee or outworker must be eligible, and must apply in writing to the Fair Work Commission, Australia's national workplace relations tribunal.
The Commission is an independent body with power to carry out a range of functions. Its work is carried out by members with the support of administrative staff.
The person making the application is known as the applicant and the relevant employer is the respondent.
If successful in gaining a take-home pay order an employee or outworker will have their take-home pay preserved while they remain in the same job.
An application for a take-home pay order can be made by:
In order to make a take-home pay order, the Commission must be satisfied that the employee(s) or outworker(s) claiming a reduction in take-home pay have actually suffered a reduction in pay or are likely to suffer a reduction in pay.
Generally the Commission must also be satisfied that:
To apply for a take-home pay order the applicant must complete the relevant Commission form and lodge (submit) it with the Commission.
An individual employee or outworker making an application should use Form F47A.
An applicant who is applying on behalf of multiple employees or outworkers should use Form F47C.
There is no time limit or fee required for making such an application.
In completing the application please make sure you have answered all questions and, where requested, included specific details. Make sure you sign and date the form.
You may have a lawyer or paid agent to help you prepare and/or lodge a copy of written documents such as an application or submissions.
You will find below an explanation of some of the terms in the form.
The form can be lodged by email or fax sent to any Commission office.
If you need help completing the relevant form, please contact the Commission. You may have a lawyer or paid agent to help you prepare and/or lodge the application.
At the end of forms F47A and F47C there is a reference to the form being 'served'.
In the case of forms F47A and F47C this means the applicant must give a copy of the application to the employer as soon as practicable after the application is lodged with the Commission.
In the case of forms F47B and F47D this means the respondent must give a copy of the employer’s response to the applicant as soon as practicable after the response is lodged with the Commission.
An employer who is served with a copy of an application for a take-home pay order is required to lodge a response with the Commission within 14 days of receiving the application.
The response should be prepared by completing the relevant Fair Work Commission form.
In the case of an application involving an individual employee or outworker, use Form F47B for the employer's response.
In the case of an application involving multiple employees or outworkers, use Form F47D for the employer's response.
In completing the employer response form please ensure you have answered all questions and, where requested, included specific details. Make sure the form is signed and dated.
The application will be assigned to a Commission Member who will decide how the case should be handled and may ultimately make a binding decision.
The Commission Member may:
There is no requirement for you to be represented by another person when you appear in proceedings at the Commission. You will need the permission of the Commission Member dealing with your case if you wish to be represented by a lawyer or paid agent, unless that person is:
If you decide to represent yourself in proceedings it will be easier for you if you are well prepared. You may consider having one or more individuals with you for support, however, in a private conference you should be prepared to tell the Commission Member dealing with your case why you would like the presence of such individuals.
There is no cost to you if you require an interpreter at a Commission conference or hearing, but you must ask the Commission to provide an interpreter, either when lodging your application, or before the day of the conference or hearing.
If you are required to attend a conference or hearing at the Commission you will be notified of the date and time by mail. This is known as a notice of listing.
Before you attend a conference or hearing at the Commission, however, you should check the hearings and conferences list for further information.
The list identifies all of the cases for a particular day, together with the Fair Work Commission members dealing with them, the times of the hearings and conferences and the location (the floor and the room number).
The list is published in capital city newspapers and on our website (on the Hearings & conferences page) each day. Printed copies of the list can also be found at Commission public counters, near the courtrooms or, in some Commission premises, on the building's ground floor.
If your hearing or conference is in a regional courthouse you may have to ask for information at the inquiry counter.
If you cannot attend a scheduled hearing or conference you may be able to ask for an adjournment in certain circumstances, provided that you do so with sufficient notice.
Any application for an adjournment must be given in writing and provide full reasons for seeking the adjournment.
Adjournment applications will only be granted on substantial grounds.
If a take-home pay order is made the employer of the named employee(s) or outworker(s) must comply with its terms.
The order continues to have effect so long as the modern award continues to cover the relevant employee(s) or outworker(s), subject to any limitations in the order itself. This means the order will generally continue while the applicant(s) remain in the same job, and while that job is covered by the modern award.
Commission staff can provide you with information by email or over the telephone. Such information can include help with: