Guide—Applying for a take-home pay order

On this page:

• Overview
• Making an application
• The process
• What happens if an order is made?
• Further information

Overview

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.

What is 'take-home pay'?

Take-home pay is the pay an employee or outworker actually receives after tax and certain deductions such as salary sacrificing arrangements.

It includes wages, allowances, overtime payments and any incentive-based payments.

About take-home pay orders

To obtain a take-home pay order, an employee or outworker must be eligible, and must make an application in writing to Fair Work Australia, the national workplace relations tribunal.

Fair Work Australia 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.

Who can apply for a take-home pay order?

An application for a take-home pay order can be made by:

• an employee or outworker who believes the introduction of modern awards has led, or will lead, to a reduction in their take-home pay
• a union that is entitled to represent the industrial interests of such an employee or outworker
• a person acting on behalf of an individual employee or outworker or a group of such employees or outworkers who have similar circumstances.

What will Fair Work Australia consider?

In order to make a take-home pay order, Fair Work Australia 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 likley to suffer a reduction in pay.

Generally Fair Work Australia must also be satisfied that:

• the reduction is attributable to the introduction of a modern award
• the work performed is the same, or similar, to work performed immediately before the modern award came into operation
• the reduction applies to the same hours of work or quantity of work performed immediately before the modern award came into operation
• the reduction is not minor or insignificant
• the employee(s) or outworker(s) affected have not been adequately compensated in other ways for the reduction.

Making an application

How to apply?

To apply for a take-home pay order the applicant must complete the relevant Fair Work Australia form and lodge (submit) it with Fair Work Australia.

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.

Filling in the form

In completing the application please ensure you have answered all questions and, where requested, included specific details. Make sure you sign and date the form.

If you are unsure of some of the terms in the form, the following may be of assistance.

The form can be lodged by:

• post
• email
• facsimile
• in person at any Fair Work Australia office.

What is service?

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 Fair Work Australia.

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 Fair Work Australia.

The employer's response

An employer who is served with a copy of an application for a take-home pay order is required to lodge a response with Fair Work Australia within 14 days of receiving the application.

The response should be prepared by completing the relevant Fair Work Australia 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 process

The application will be assigned to a Fair Work Australia member who will decide how the case should be handled and may ultimately make a binding decision.

The Fair Work Australia member may:

• seek information in writing (written submissions) from the applicant and the respondent
• call a private conference involving the applicant and the respondent—attendance in person may be required, or the conference may be held over the telephone
• call a hearing involving the applicant and the respondent (a formal proceeding that is open to the public and may require the provision of evidence and witnesses).

Do I have to be represented by someone?

There is no requirement for you to be represented by another person when you appear in proceedings at Fair Work Australia. If you wish to be represented by a lawyer or paid agent you will need the permission of Fair Work Australia, unless the lawyer or paid agent is:

• one of your employees or officers (if you are an employer)
• a union or employer organisation, a peak union or employer council, or a bargaining representative.

If you decide to represent yourself in proceedings it will be easier for you if you are well prepared. You may consider bringing one or more individuals with you for support, however, in a private conference you should be prepared to tell the Fair Work Australia member dealing with your case why you would like the presence of such individuals.

What if I need an interpreter?

There is no cost to you if you require an interpreter at a Fair Work Australia conference or hearing, but you must make a request for Fair Work Australia to provide an interpreter, either when lodging your application, or before the day of the conference or hearing.

Finding your way to a hearing or conference

If you are required to attend a conference or hearing at Fair Work Australia 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 Fair Work Australia, 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 Australia 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 the Fair Work Australia website (on the Hearings & conferences page) each day. Printed copies of the list can also be found at Fair Work Australia public counters, near the courtrooms or, in some Fair Work Australia 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.

At conferences or hearings

• When you are addressing a Fair Work Australia member refer to them by their title, e.g. Deputy President or Commissioner. Staff at the hearing or conference can advise you of the appropriate form of address if you have any doubts.
• Make sure you arrive for the conference or hearing early because proceedings begin on time. Notify Fair Work Australia staff when you arrive by approaching them in the hearing or conference room.
• If you are delayed for any reason it is important that you contact Fair Work Australia as early as possible to ensure a message is sent to the appropriate FWA staff.
• If you have a mobile phone or pager, make sure it is switched off in the conference or hearing room.
• It is customary to bow to the Fair Work Australia member, by standing and inclining your head, at the beginning of a hearing and if you leave or enter the hearing room while proceedings are underway.
• It is customary to stand when you are addressing the Fair Work Australia member or questioning a witness.
• If you are attending a face-to-face conference or hearing bring along enough copies of any documents you want to refer to so that everyone involved has a copy.

Adjournments

If you cannot attend a scheduled hearing or conference you may be able to seek an adjournment in certain circumstances and 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.

What happens if an order is made?

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.

Further information

Fair Work Australia staff can provide you with information over the telephone or at an Fair Work Australia public counter. Such information can include help with:

• understanding processes
• filling out forms
• finding your way to a conference or hearing.

For further information and assistance:

• contact the Fair Work Australia Help Line on 1300 799 675

• read the relevant legislation Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Schedule 5, Part 3, Item 9—Orders remedying reductions in take-home pay.