Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (55 of 2009)

Schedule 3   Continued existence of awards, workplace agreements and certain other WR Act instruments

Part 5   Transitional instruments and the FW Act

Division 3   Other general provisions about how the FW Act applies in relation to transitional instruments

33   Employee's ordinary hours of work

Item applies for purpose of determining employee's ordinary hours of work for the FW Act

(1) For the purposes of the FW Act, the ordinary hours of work of an employee to whom a transitional instrument applies are to be determined in accordance with this item.

Ordinary hours as specified in transitional instrument

(2) If a transitional instrument that applies to the employee specifies, or provides for the determination of, the employee's ordinary hours of work, the employee's ordinary hours of work are as specified in, or determined in accordance with, that instrument.

If subitem (2) does not apply and there is agreement

(3) If subitem (2) does not apply, the employee's ordinary hours of work are the hours agreed by the employee and his or her employer as the employee's ordinary hours of work.

If subitem (2) does not apply and there is no agreement

(4) If subitem (2) does not apply but there is no agreement under subitem (3), the ordinary hours of work of the employee in a week are:

(a) if the employee is a full time employee - 38 hours; or

(b) if the employee is not a full-time employee - the lesser of:

(i) 38 hours; and

(ii) the employee's usual weekly hours of work.

If subitem (2) does not apply: agreed hours are less than usual weekly hours

(5) If:

(a) subitem (2) does not apply; and

(b) the employee is not a full-time employee; and

(c) there is an agreement under subitem (3) between the employee and his or her employer, but the agreed ordinary hours of work are less than the employee's usual weekly hours of work;

the ordinary hours of work of the employee in a week are the lesser of:

(d) 38 hours; and

(e) the employee's usual weekly hours of work.

Regulations may prescribe usual weekly hours

(6) For an employee who is not a full-time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee's usual weekly hours of work for the purposes of subitems (4) and (5).