Key points
- The Fair Work Amendment (Protecting Penalty and Overtime Rates) Bill 2025 (the Bill) seeks to amend the Fair Work Act 2009 to ensure that:
- pre-existing penalty and overtime rates in modern awards are not reduced, and
- no terms are included in modern awards that would substitute penalty or overtime rate entitlements with alternative entitlements that would reduce additional remuneration from penalty or overtime entitlements that any employee would otherwise receive.
- The Bill does not impose any obligation to include penalty or overtime rates in modern awards or enterprise agreements.
- In response to concerns raised about the scope of the Bill as introduced, in debate in the House of Representatives the Government introduced an amendment which it explained would clarify that no requirement would be imposed on the Fair Work Commission to undertake a review of all modern awards, initiate a review of any award terms outside the scope of an application before it, or exercise its powers to make, vary or revoke modern awards.
- The Bill also does not provide protections for penalty or overtime rates in enterprise agreements. However, existing requirements concerning the approval of enterprise agreements, alongside the new measures in the Bill, may make it slightly more difficult for enterprise agreements that include ‘rolled up’ rates of pay or annualised salaries to gain approval in the future. In turn, this means the Bill may protect the minimum employment conditions that must be provided in some enterprise agreements.
- The Bill has been referred to the Senate Education and Employment Legislation Committee for inquiry and report by 21 August 2025.
Introductory Info
Date of introduction: 2025-07-24
House introduced in: House of Representatives
Portfolio: Employment and Workplace Relations
Commencement: The Bill commences the day after receiving Royal Assent
Purpose of the Bill
The Fair Work Amendment (Protecting Penalty and Overtime Rates) Bill 2025 (the Bill) seeks to amend the Fair Work Act 2009 (FW Act) to provide that the Fair Work Commission (FWC) must, when making, varying or revoking modern awards under Part 2-3 of the FW Act, ensure that:
- penalty or overtime rates are not reduced and
- modern awards do not include terms that substitute penalty or overtime rate entitlements for other arrangements that would reduce the additional remuneration that any employee would otherwise receive.
Structure of the Bill
The Bill contains one schedule which inserts:
- new section 135A into Division 2 of Part 2-3 of the FW Act
- new Part 19 into Schedule 1 of the FW Act.
Background
Overview of penalty and overtime rates
Although the FW Act does not define ‘penalty rates’ and ‘overtime rates’, the Fair Work Ombudsman distinguishes these terms as follows:
- ‘Penalty rates are higher pay rates that can apply when an employee works particular hours or days such as evenings, weekends or public holidays’
- Overtime rates are higher rates of pay payable on ‘work performed outside the ordinary hours listed in an award or agreement’.
The origin of penalty rates can be traced back to at least 1909 (p. 504). Historically, penalty rates existed to:
- compensate employees working outside ordinary hours and
- deter employers from scheduling work outside ordinary hours.
This position has, however, changed. Employment law academic, Andrew Stewart notes that the ‘modern purpose of penalty rates is [no longer] to deter the scheduling of work at anti-social times, but to compensate workers for the disamenity involved’ (p. 263).
Stewart also notes that since the 1980s, not only have there been changes to the rationale for penalty rates, but also to the rationale for overtime payments ‘especially in sectors such as retail and hospitality where consumer demand has prompted businesses to expand their trading hours’ (p. 462).
Through these shifts, the setting of compensation for non-standard hours has been a point of contention, particularly in relation to penalty rates. Stewart notes that (p. 263, emphasis added):
The level at which penalty rates are set by awards has attracted continual criticism from employer groups, especially in sectors where consumer demand requires expanded trading hours. A number of applications to reduce or eliminate penalty rates were made to the FWC as part of the ‘four-yearly’ review of modern awards.
….
In its 2015 report on the workplace relations framework, the Productivity Commission expressed strong support for the concept of penalty rates and accepted that there is a case for imposing a premium for work on weekends. But it also recommended that for retail and hospitality workers (though not others), Sunday rates should be reduced to match those set for Saturdays, on the basis that the social impact of working on a Sunday was no longer what it used to be.
The Fair Work safety net, penalty rates and overtime rates
The FW Act establishes the Fair Work system — a safety net of fair, relevant and enforceable minimum terms and conditions (FW safety net), comprised of three key components (p. 14):
For the reasons discussed in the Key issues and provisions section of this Digest, the existence of penalty and overtime rates is an expected and permitted (but not required) element of modern awards, and therefore the FW safety net.
Proposed reforms and reductions in penalty rates
Since the introduction of the FW Act, there have been various proposed reforms and FWC cases aimed at reforming or reducing penalty rates, including but not limited to:
- a 2014 FWC decision to reduce the Sunday penalty rates for workers covered by the Restaurant Industry Award from 150% to 130%, with the reduction being phased in: 140% from 1 July 2014 and then 130% from 1 January 2015
- recommendations from the Productivity Commission (PC) in its 2015 Workplace Relations Framework Inquiry Report (Recommendations 15.1, 15.2, 15.4, 16.2) pp. 54-55, 323, 412 (vol 1)
- 2 private senators’ Bills, the Fair Work Amendment (Small Business—Penalty Rates Exemption) Bill 2012 and the Fair Work Amendment (Penalty Rates Exemption for Small Businesses) Bill 2015
- a 2017 FWC decision (the Penalty Rates Case) which reduced Sunday penalty rates (among other changes) in certain modern awards as set out in the Appendix to this Digest and
- temporary changes to the Clerks – Private Sector Award in response to the impacts of COVID-19 on clerical and administrative employees which, among other things, changed the span of ordinary hours, therefore reducing access to penalty and overtime rate entitlements.
In general, reform proposals related to penalty and overtime rates have been contentious, including those related to the introduction of ‘rolled up’ rates and ‘loaded rates’ of pay and other forms of ‘annualised salaries’, a key concern specifically referenced by the Explanatory Memorandum to the Bill.
‘Rolled up’ rates, ‘annualised’ salaries, penalty and overtime rates
Whilst the terms ‘rolled up’ rates and ‘loaded rates’ of pay and ‘annualised salaries’ are used somewhat interchangeably, they differ in the following ways:
- ‘rolled up’ or ‘loaded’ rates of pay (sometimes referred to as ‘flat rate’ or ‘all-in’ rates of pay) are where an employer ‘rolls up’ some or all applicable penalties, loadings and allowances payable under an award into a single rate of hourly pay for employees and
- ‘annualised salaries’ are where, under an award, an employer:
- pays employees a fixed regular salary (rather than being paid an hourly rate for the hours worked) based on the hours they will ordinarily work which includes remuneration for a wide variety of any (or all) applicable award allowances, overtime, penalty rates, leave loading etc and
- if required, separately pays employees for hours worked outside the ‘outer limits’ (pp. 4, 6) of those covered by the annualised wage.
Despite these differences, both are argued to be ways for employers to simplify payroll administration (pp. 2, 4).[2]
Annualised salaries in modern awards
The FWC varied a number of modern awards to provide employers with the ability to use annualised salary arrangements in 2019, and then again in 2022. In most of the modern awards that allow for annualised salaries, a no-disadvantage test (NDT) applies, one example of which is:
The annualised wage must be no less than the amount the employee would have received under this award for the work performed over the year for which the wage is paid… [emphasis added]
Further, most annualised salary terms in modern awards require employers to keep a record of:
- the annualised wage payable
- which provisions of the award are satisfied by the payment of the annualised wage
- the method by which the annualised wage has been calculated, including:
- specification of each separate component of the annualised wage and
- any overtime or penalty assumptions used in the calculation, and
- the 'outer limit’ number of ordinary hours which would attract the payment of a penalty rate and the outer limit number of overtime hours which the employee may be required to work in a pay period or roster cycle without being entitled to an amount in excess of the annualised wage.
In addition, most annualised salary terms in modern awards impose significant record-keeping obligations, requiring employers to record the starting and finishing times, and any unpaid breaks taken, of each employee subject to an annualised wage arrangement for the purpose of:
- identifying whether there has been any shortfall in the amount the employee was paid under the annualised wage arrangement and
- the amount they would have otherwise been entitled to be paid under the award.
That is, as noted by Professor Andrew Stewart (p. 2), existing annualised salary provisions in modern awards effectively impose an audit process on employers to ensure that employees ‘have not been paid less than they would have received under the penalty or overtime rate provisions of the award’ and by doing so, provides ‘a safeguard against disadvantage’.
This comparison/audit process must be performed annually and any shortfall is to be repaid to the employee within 14 days.
Current applications to FWC related to penalty and overtime rates
In 2024, the Australian Retailers Association (ARA) applied to the FWC to vary the General Retail Industry Award to, among other things:
Similar applications were made by the Australian Industry Group (AIG), the New South Wales Business Chamber Limited (NSWBC) and Australian Business Industrial (ABI) to introduce what are, in effect, annualised salaries (pp. 5–9) into the Clerks – Private Sector Award 2020.
In addition, NSWBC and ABI made a submission to the FWC's Working from home – Clerks – Private Sector Award 2020 test case seeking work-from-home-related changes to the clerks award to, among other things, vary the spread of ordinary working hours. As noted recently by the FWC in relation to gender-based differences in the span of ordinary working hours in modern awards and their impacts, employees covered by awards with a broader span of ordinary hours ‘are less likely to receive overtime due to their working hours falling within broader spans of ordinary hours’ (p. 1).
That is, the effect of increasing in the span of ordinary working hours (as occurred temporarily under the Clerks Award during the COVID-19 pandemic) is to reduce the need to pay penalty rates, and therefore potentially reduce remuneration of some employees.
The Government’s response to applications to vary modern awards
On 21 February 2025, former Minister for Employment and Workplace Relations (Employment Minister), Senator Murray Watt, made a submission to the FWC as part of proceedings involving a number of applications to vary the General Retail Industry Award 2020. In this submission, the Minister noted, among other things, that (emphasis added):
Penalty rates and overtime rates are an essential feature of minimum terms and conditions in modern awards and should not be reduced by variations to the Award in this matter… The trading off of entitlements to overtime, penalty rates, and payment for work on a public holiday or substitute day off, in exchange for a rate of pay still falling far below average weekly ordinary time earnings for full-time adults, is at serious risk of failing to meet the modern awards objective where no detailed evidence or even an explanation of the basis for calculating the uplift at 25% has been provided. The trade-off of entitlements properly belongs to the bargaining framework. The variation of modern awards – including the Award in this matter – should not result in any reduction in worker entitlements.
Election commitments related to the Bill
In the leadup to the 2025 election the Albanese Government announced an election policy of legislating ‘to protect penalty rates in awards, ensuring the wages of around three million workers do not go backwards’. This was followed on 19 April 2025 by a media release from the former Employment Minister pointing to the Albanese Government’s commitment to ‘legislate to protect penalty rates in awards’.
After the 2025 Federal election, the current Employment Minister, Amanda Rishworth reiterated on 29 May 2025 ‘the Australian Government's intention to legislate as soon as possible following the resumption of the Australian Parliament to protect penalty rates in modem awards from being reduced or removed’ (emphasis added).
The introduction of this Bill to the Parliament was then announced on 19 July 2025. This announcement contained a commitment to protect both penalty and overtime rates. In the second reading speech on the Bill, the Employment Minister stated that:
Penalty rates and overtime rates matter. They are a long-standing feature and a vital part of the modern award safety net, which supports some of the lowest paid workers in our country.
The Bill appears to be both a response to concerns about the current applications to vary modern awards before the FWC, as well as an implementation of the Albanese Government’s 2025 election commitments noted above.
Policy position of non-government parties/independents
At the time of writing, the Coalition has noted several concerns with the Bill including:
The Shadow Minister for Industrial Relations and Employment, Tim Wilson stated in an interview on 17 August 2025 that (pp. 6-7):
… right now we have the Labor Party actively seeking to introduce laws where they're undermining workers getting paid more so that they can increase the costs on small business and increase complexity… we want to have a conversation with employers about how we make the system simpler, more straightforward and introduce harmony into the workplace so people can get paid more and make it easier, because at the moment the Unions are actively running around and undermining people getting paid more… We literally have a case when the Fair Work Commission right now, where the retail industry wants to pay their workers 35% more and the Labor Party has introduced laws to kneecap that position because it would undermine the influence and power of unions at the expense of pay.
The Shadow Minister moved amendments to the Bill to restrict the impact on small businesses and existing modern awards, and to permit variations of awards if the FWC is satisfied that this would be fair to employees and improve productivity, promote employment opportunities or assist employees to balance their work and family commitments. The amendments would have also required a regulatory impact statement to be prepared within one year of the Bill’s commencement and tabled in Parliament. The amendments were unsuccessful.
The Greens have in the past expressed a position that may indicate support for the Bill, stating that (p. 4):
Minimum standards such as penalty rates, overtime, loadings and allowances must be protected to prevent them being negotiated out of agreements.
However, it is not clear at present what the Greens’ precise position in relation to this Bill is.
Independent Kate Chaney has indicated her opposition to the Bill due to concerns including reducing the independence of the FWC and preventing ‘commonsense simplification to rates’ where a single employee is actually or hypothetically disadvantaged.
Independent Allegra Spender has also indicated her opposition to the Bill due to concerns regarding reducing the independence of the FWC, preventing ‘reasonable options and menus in awards’, preventing ‘an overwhelming majority of workers from accepting better outcomes’ and adding complexity to the award system. Ms Spender unsuccessfully moved a second reading amendment that called for the Government to amend the FW Act to explicitly include productivity as an objective of modern awards, as recommended in the Productivity Commission's report Advancing Prosperity (p. 14, recommendation 7.13).
At the time of writing, the position of other parties and independents on the Bill was not known.
Position of relevant stakeholders
Like many Bills dealing with industrial relations, views of employer and employee stakeholders regarding the Bill are polarised.
Employer groups
Employer groups oppose the Bill. The Australian Chamber of Commerce and Industry (ACCI) described the Bill as a ‘backwards step’ that has ‘the practical effect of prohibiting employers and their employees from negotiating to incorporate penalty rates in return for a higher base salary’. The ACCI has also criticised the Bill on the grounds that:
- The Bill would reduce the range of existing or future options for workplaces to achieve, maintain or improve flexibility and productivity, which risks business viability, investment and jobs, particularly for small businesses (p 1)
- The Bill prevents the FWC from exercising independent decision-making powers in relation to existing proceedings to vary awards and for future similar matters (p 2)
- The Bill would hinder flexibility and productivity, increase complexity in the award system, jeopardise employee wage certainty and prevent employers from adopting ‘simple and efficient payroll practices’ therefore ‘forcing employers to adopt complex and time-consuming record and calculation practices’ (p 2) and
- The threshold of ‘any’ employee in new subsection 135A(1) is an ‘unreasonably high bar’ (p. 3).
The Australian Industry Group (AIG) also opposes the Bill, arguing that the Bill is ‘badly drafted’ and would ‘make it harder for employer to employ people who want to work when it suits them’. The AIG further argues:
- the Bill ‘in substance’ will prohibit the FWC from reducing penalty or overtime rates or inserting substitution terms into modern awards ‘even where such variations are demonstrably fair, necessary, or in the public interest’ (p. i)
- the Bill will ‘undermine the integrity of Australia’s legislative schemes’ (p. i)
- ‘there is no evidence of any current attempt to reduce rates’ and the Bill ‘is primarily aimed at preventing the FWC from progressing three active proceedings—none of which seek to reduce penalty or overtime entitlements, or similar applications in the future’ (p. i).
Employee groups
Unions are supportive of the Bill. The Australian Council of Trade Unions (ACTU) supports the Bill, arguing that the practical effect of ‘rolled-up’ and ‘annualised salary’ proposals similar to those currently being considered by the FWC would be to leave many employees worse off (pp. 4-5). The ACTU also suggests that evidence shows that reducing penalty rates does not increase employment growth (p. 8).
The Shop, Distributive and Allied Employees’ Association (SDA) also supports the Bill, noting the reliance of low-paid workers on penalty rates (particularly young workers and women, p. 1). The SDA also notes the failure of the cuts to penalty rates in 2017 to increase employment growth (pp. 2-3).
The Finance Sector Union (FSU) supports the Bill, arguing:
- employers already have the option to pay employees an annualised wage and employers wanting flexibility should agree to bargain for an enterprise agreement instead of ‘attempting to undermine the award safety net that employees rely upon’ (p. 4)
- FSU’s modelling using various roster patterns determined that the proposed changes to the Banking, Finance and Insurance Award 2020 proposed by NSWBC and ABI would result in ‘real potential for an employee to be underpaid’ (p. 4).
The FSU also argues that employer arguments about the administrative burden of record keeping under existing annualised salary provisions in modern awards have no merit as (p. 4):
Without detailed record-keeping of hours worked, employers cannot demonstrate that they are meeting their obligations to properly pay their workers, not only under the BFI Award but also the Fair Work Act. Nor can employers show that they are ensuring safe and healthy workplaces if they do not even know how many hours their employees are working.
Other stakeholders
Employment law academic Professor Andrew Stewart drew attention to issues related to the Bill’s drafting, including:
- The Bill may not capture changes to the span of ordinary working hours which, whilst not directly reducing penalty rates can nonetheless reduce employees’ remuneration (p. 1) and
- The potential impact of new paragraph 135A(1)(b) on existing annualised salary terms in modern awards (pp. 2-3).
Professor Chris Wright, in his submission to the Senate Education and Employment Legislation Committee inquiry into the Bill, argues that:
- the proposed changes to modern awards before the FWC raise ‘the possibility of such arrangements, if approved, being offered to employees on a ’take-it-or-leave-it’ basis’ (p. 2)
- Australian studies have ‘found no evidence of jobs being created by the 2017 penalty rates reduction’ (p. 3)
- ‘Arrangements exchanging penalty rates for higher base salaries can lead employees to be worse off overall – in some cases, substantially so’ (p. 4) and
- ‘evidence suggests that without penalty rates, not only would workers be disadvantaged, but business problems relating to worker shortages, productivity and consumer demand might end up worse than before’ (p. 5).
Key issues and provisions
As noted earlier, the FW safety net is comprised of the NES, modern awards and the NMWO.
Modern awards are governed by Part 2-3 of the FW Act. The FWC has the power to create, change, or cancel modern awards to achieve the modern awards objective. The FWC's general power to do this is outlined in subsection 157(1), and it has other specific powers under different sections of Part 2-3 also allowing it to vary modern awards in particular circumstances.
The modern awards objective ensures that modern awards, along with the NES and NMWO, provide a fair and relevant minimum safety net (the FW safety net). This includes considering social and economic factors (sections 132 and 282, paragraph 3(b)). Notably, paragraph 134(1)(da) provides that an element of the modern award objective is to provide extra remuneration for employees working overtime; shift work; unsocial, irregular or unpredictable hours; or on weekends or public holidays (that is, penalty and overtime rates of pay).
While they are not part of the NES, penalty and overtime rates may be included in modern awards (section 139). Possibly reflecting their historical and persistent prevalence and significance in Australian industrial relations systems over many decades (pp. 383, 405, 413–416, 420), the modern award objective operates so that their existence is an expected and permitted (but not required) element of modern awards, and therefore the FW safety net.
When a modern award includes penalty or overtime rates, entitlements to those rates arise when work is performed at certain times (i.e. outside the span of ordinary hours or for particular shifts) and on certain days (i.e. weekends, public holidays). That is, penalty and overtime rates are often linked to when work is performed by the employee.
New limits on the power to vary modern awards
The Bill proposes to insert new section 135A into Division 2 of Part 2-3 of the FW Act to require the FWC to ensure that in exercising its power to make, vary and revoke modern awards:
- penalty or overtime rates are not reduced (new paragraph 135A(1)(a)), and
- modern awards do not include terms that substitute penalty or overtime rate entitlements with alternative entitlements that would reduce the penalty or overtime entitlements that any employee would otherwise receive (new paragraph 135A(1)(b)).
New paragraph 135A(1)(a) would guarantee that penalty and overtime rates that already exist in modern awards are not reduced. This paragraph would not, however, be applicable to any modern awards that do not contain penalty or overtime rates of pay.
Application to ‘rolled up’ rates of and ‘annualised’ salaries
The Explanatory Memorandum’s illustrative example (pp. 7–8), along with previous Government announcements and the second reading speech on the Bill appears to suggest that new paragraph 135A(1)(b) is directed towards the inclusion of ‘loaded’ or ‘rolled-up’ rates of pay in modern awards that would leave some employees worse off than if they did not apply.
Whilst the Bill and its explanatory materials do not directly refer to annualised salary arrangements (regardless of what name they are given) new paragraph 135A(1)(b) would also appear to apply to such arrangements if they have the effect of reducing the penalty or overtime entitlements that any employee would otherwise receive.
No additional restrictions or new requirements
New subsection 135A(2) provides that the protections provided for penalty and overtime rates discussed above do not limit the operation of:
- section 144 of the FW Act, which requires modern awards to contain flexibility terms enabling agreement making on individual flexibility arrangements to vary the effect of the award on an employee and
- section 160 of the FW Act, which allows the FWC to vary a modern award to address ambiguities, uncertainty, or errors.
New subsection 135A(3) – which was inserted into the Bill by Government amendments in the House of Representatives – provides:
Nothing in subsection (1) requires the FWC to exercise its powers under this Part to make, vary or revoke modern awards.
As explained by the Minister, new subsection 135A(3) was included:
… for the avoidance of doubt and to further provide certainty to stakeholders. This bill is unequivocally clear. It will not require the commission to undertake a review of all modern awards, initiate a review of any award terms outside of the scope of application before the commission or exercise its power under part 2-3 of the Fair Work Act to make, vary or revoke modern awards. Application of changes includes matters currently before the Fair Work Commission
New Part 19 of Schedule 1 of the FW Act provides for the application of the amendments contained in new section 135A. This Part ensures that new section 135A applies prospectively to:
- future applications for the making of a new award
- future applications for the variation or revocation of an existing modern award
- existing applications currently before the FWC for the making, variation or revocation of a modern award.
The Bill and enterprise agreements
The Bill does not provide any direct protections for penalty or overtime rates in enterprise agreements. This appears to be because enterprise agreements can, but for exceptional circumstances, only be approved by the FWC if the FWC is satisfied that each award covered employee for a proposed enterprise agreement would be better off overall if the proposed enterprise agreement applied to them instead of the modern award (including those modern awards that contain penalty and overtime rates).
Under existing section 193A of the FW Act, when determining if each employee would be better off overall if a proposed enterprise agreement applied to them instead of a modern award, the FWC must undertake a global assessment, including a consideration of patterns or kinds of work, or types of employment that are reasonably foreseeable at the test time.
This existing requirement makes it very difficult to get enterprise agreements that include ‘all up’ or ‘rolled up’ rates of pay to be approved where one or more employees have patterns of work where a substantive proportion of the hours worked attract penalty or overtime rates under existing modern award provisions.
The measures in the Bill designed to prevent ‘rolled up’ rates of pay being incorporated into modern awards that currently contain penalty and overtime rates, may indirectly make it slightly more difficult for enterprise agreements containing ‘all up’ or ‘rolled up’ rates of pay to gain approval in the future. This is because the Bill, if enacted, would ensure that the comparator used by the FWC when applying the better off overall test—the relevant modern award—will continue to include penalty and overtime rates, rather than ‘rolled up’ rates of pay.
As such, the Bill may protect the minimum employment conditions that must be provided in some enterprise agreements.
Appendix
Changes to penalty rates
Changes to penalty rates from the 2017 decision by the FWC in the Penalty Rates Case.
Award
|
Sunday Penalty rates
|
Public Holiday Penalty Rates
|
Hospitality Award
|
|
- from 250% to 225% for full-time and part-time employees and
- from 275% to 250% for casual employees
|
Fast Food Award
|
- from 150% to 125% for level 1 full-time and part-time employees
- from 175% to 150% for casual employees
|
- from 250% to 225% for full-time and part-time employees and
- from 275% to 250% for casual employees
|
Retail Award
|
- from 200% to 150% for full-time and part-time employees
- from 200% to 175% for casual employees
|
- from 250% to 225% for full-time and part-time employees and
- from various rates of 275 or 250% to a single rate of 250% for casual employees
|
Pharmacy Award
|
- from 200% to 150% for full-time and part-time employees
- from 225% to 175% for casual employees
|
- from 250% to 225% for full-time and part-time employees and
- from 275% to 250% for casual employees
|
Restaurant Award
|
No changes
|
- from 250% to 225% for full-time and part-time employees.
|