Fair Work Amendment (Protecting Penalty and Overtime Rates) Act 2025

No. 37, 2025

An Act to amend the law relating to penalty and overtime rates, and for related purposes

Contents

1 Short title 1

2 Commencement 2

3 Schedules 2

Schedule 1—Amendments 3

Fair Work Act 2009 3

Fair Work Amendment (Protecting Penalty and Overtime Rates) Act 2025

No. 37, 2025

An Act to amend the law relating to penalty and overtime rates, and for related purposes

[Assented to 28 August 2025]

The Parliament of Australia enacts:
1 Short title

This Act is the Fair Work Amendment (Protecting Penalty and Overtime Rates) Act 2025.
2 Commencement 1

Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information Commencement information Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1. The whole of this Act The day after this Act receives the Royal Assent. 30 August 2025

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 2

Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Amendments

Fair Work Act 2009

 1 At the end of Division 2 of Part 2-3

Add:

 135A Special provisions relating to penalty rates and overtime rates 1

In exercising its powers under this Part to make, vary or revoke modern awards, the FWC must ensure that:

 a

the rate of a penalty rate or an overtime rate that employees are entitled to receive is not reduced; and

 b

modern awards do not include terms that substitute employees’ entitlements to receive penalty rates or overtime rates where those terms would have the effect of reducing the additional remuneration referred to in paragraph 134(1)(da) that any employee would otherwise receive.

 2

Subsection (1) does not limit the operation of section 144 (flexibility terms) or section 160 (which deals with variation to remove ambiguities or correct errors).

 3

Nothing in subsection (1) requires the FWC to exercise its powers under this Part to make, vary or revoke modern awards.

 2 In the appropriate position in Schedule 1

Insert:

 127 Application of amendments

The amendments made by Schedule 1 to the Fair Work Amendment (Protecting Penalty and Overtime Rates) Act 2025 apply in relation to the exercise of the FWC’s powers under Part 2-3 to make, vary or revoke a modern award on and after the commencement of that Schedule, including in relation to:

[Minister’s second reading speech made in—

House of Representatives on 24 July 2025

Senate on 25 August 2025]

(30/25)

 a

an application for the making, variation or revocation of a modern award made before that commencement; and

 b

a modern award made before that commencement.