Penalty and Overtime Rates Are Now Protected by Law

The Act inserted Section 135A into the Fair Work Act 2009, headed special provisions relating to penalty rates and overtime rates. In exercising its powers to make, vary or revoke modern awards, the Commission must ensure two things: that the rate of a penalty rate or an overtime rate employees are entitled to receive is not reduced, and that modern awards do not include terms substituting employees’ entitlements to receive those rates where the substitute would reduce the additional remuneration the employee would otherwise receive.

The Fair Work Ombudsman sets out the work the second limb covers, and the list is the whole of unsociable working time rather than weekends alone.

• overtime
• shifts
• weekends or public holidays
• unsocial, irregular or unpredictable hours

The two limbs do different work. The first stops the percentage itself being lowered. The second reaches a term that leaves the percentages untouched but replaces the entitlement with something else, a higher base rate for instance, in a way that reduces what an employee actually receives for working those hours. An award may no longer carry either.

Both the cases already before the Commission on 30 August 2025 and any starting on or after it. That is unusual and worth stating plainly: a party that had spent months arguing for a substitute rate found the statutory test had changed under it, without any transitional carve-out for work in progress.

The Federal Register of Legislation carries the Act as made under C2025A00037, dated 29 August 2025, and its application provision applies the amendments to the exercise of the Commission’s award powers on and after commencement, including in relation to matters already on foot. The Fair Work Ombudsman gives 30 August 2025 as the date the Fair Work Act was updated, and that is the date used throughout this page.

This site publishes real penalty and overtime multipliers for 3 awards, MA000003, MA000004, MA000009, read from the award text and checked against each award’s own rates schedule. Across them that is 16 separate conditions, each one a percentage the award sets for a named span of time.

Those percentages are only worth publishing because they are durable. Section 135A is what makes them durable: inside an award, they cannot be reduced by the tribunal, and they cannot be swapped for a term that leaves the employee with less. A page of multipliers that could be replaced next quarter by one flat figure would be a page of trivia.

What the section does not do is settle what you are owed, which depends on the award that covers you, your classification and your roster. Start from Award Pay Rates for the award, then apply the loading on the penalty page.

The figure in circulation is 2.6 million workers. It belongs to the Minister for Employment and Workplace Relations, whose media release states the Act protects the penalty and overtime rates of 2.6 million Australians who work public holidays, weekends, late nights and early mornings. We attribute it rather than adopt it, because no page we can read shows the arithmetic behind it.

The same release describes employees who rely on modern awards as more likely to be women, 59.8%, to work part time, 66.7%, to be under the age of 35, 57.3%, and to be employed on a casual basis, 48.3%. Those four figures are the Minister’s as well, and they are the reason a change to award substitution terms is not a technical matter.