What is the Fair Work Act 2009?

The Fair Work Act is the primary piece of legislation governing Australia’s workplaces.

The Act and the associated regulations include entitlements that cover all employees.

The Fair Work Act:

Provides fair terms and conditions of employment.
Sets out rights and responsibilities of employees, employers and organisations in relation to employment.
Provides for compliance with an enforcement of the Act.
Provides for the administration of the Act by establishing the Fair Work Commission and the Fair Work Ombudsman.

It also outlines the National Employment Standards (NES), Modern Awards, and Enterprise Agreements, which provide the minimum entitlements for employees in Australia.

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How do you comply with the Fair Work Act?

The Fair Work Act is a long and complex document. Business owners and employers are often confused by the legal terminology, however as noncompliance can have significant consequences, so it’s important to stay informed.

The document is reviewed and updated regularly. Additions include:

Right to disconnect.
Pay secrecy.
Family and domestic violence leave.
Fixed term contracts.
New rights for regulated workers such as gig workers.
Payday Superannuation.

The Fair Work Commission and the Fair Work Ombudsman administer, govern, and facilitate fair work in Australia and ensure employers and business owners adhere to the legislation.

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The importance of Fair Work in Australia.

With most of Australia’s population spending the majority of their days at work, it is important the relationship between employees and employers is fair, productive and equal for all involved. To achieve this, employers and business owners have a responsibility to keep up to date with Fair Work legislation and regulations.

In many cases, workplace incidents and disputes occur due to employers not knowing their obligations. It is the responsibility of business owners and employers to be up to date with all legislation and ensure employees receive their correct entitlements and treated fairly.

Non-compliance with the Fair Work Act is a serious issue. In addition to facing heavy penalties, businesses can be impacted by negative publicity due to the nature of Government investigations.

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The National Employment Standards

The Fair Work Act includes 12 legislated National Employment Standards (NES). These standards provide protection to all people working in Australia and include:

Maximum weekly hours.
Requests for flexible working arrangements.
Casual employment.
Parental leave and related entitlements.
Annual leave.
Personal/carer’s leave, compassionate leave and family and domestic violence leave.
Community service leave.
Long service leave.
Public holidays.
Superannuation contributions.
Notice of termination and redundancy pay.
Fair Work Information Statement (the FWIS) and Casual Employment Information Statement (the CEIS).

Compliance with these standards is mandatory for all Australian businesses, regardless of industry, business size or unique circumstance.

importance of diversity and inclusion in the workplace

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Modern Awards

Most employees are covered by a Modern Award. These Awards cover various industries and occupations. They typically contain terms and entitlements relating to minimum wages, penalty rates, allowances, and superannuation.

Modern Awards also include types of employment, flexible working arrangements, hours of work, rest breaks, employee classifications, allowances, leave and leave loading.

As a business owner or employer, it’s your responsibility to ensure Modern Awards are adhered to and correctly applied throughout your workplace.

National Minimum Wage

The National Minimum Wage applies to employees not covered by a modern award or registered agreement. It is the minimum hourly rate an employee is entitled to be paid for their ordinary hours of work.

The minimum wage is reviewed annually and set by the Fair Work Commission’s Expert Panel. Made up of seven people including a President, three full-time, and three part-time members. The panel is chosen for their expertise in workplace relations, economics, commerce, and social policy.

It’s important to note some awards contain introductory pay rates for new employees in their industry and may be less than the National Minimum Wage. These rates usually only apply for a limited time until an employee progresses to the next level.

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The Fair Work Commission and Fair Work Ombudsman

The Fair Work Commission (FWC) is the independent national workplace relations tribunal. Its core focus is on resolving workplace issues and disputes between employees and employers. The FWC issues legally binding decisions via its tribunal process.

What does the FWC handle?

Unfair dismissal and general protection claims
Stop bullying orders
Disputes under awards or agreements
Making enterprise agreements
Regulating the taking of industrial action.

Some of the key roles of the FWC include:

Setting the national minimum wage Creating and changing modern awards Approving enterprise agreements Acting as the independent moderator in disputes including unfair dismissal and adverse action Resolving disputes under awards, agreements, or the National Employment Standards (NES).

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The Fair Work Ombudsman

The Fair Work Ombudsman (FWO) works to help employees and employers correctly understand the Fair Work Act. Their focus is on keeping workplaces fair through education and mediation, information on workplace rights and responsibilities, and employer obligations.

Another function of the FWO is to monitor compliance across industries. It has the power to conduct an audit, respond to complaints, and investigate any case of non-compliance. This enhances the FWO’s approach to creating a fair workplace.

What the FWO does not handle:

Unfair dismissals and unlawful terminations.
Changes to legislation, minimum wages, industry awards or registered agreements.
Investigations of bullying complaints.

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Fair Work Information Statement

Prior to, or shortly after, commencing employment, you must provide your employee with a Fair Work Information Statement (FWIS). This is a fact sheet by the Fair Work Ombudsman that informs employees about their workplace entitlements under the Fair Work Act.

The Fair Work Information Statement covers:

The 12 National Employment Standards
Right to request flexible working arrangements
Modern Awards
Agreement making under the Fair Work Act
Individual flexibility arrangements
Freedom of association and workplace rights (general protections)
Termination of employment
Right of entry
The roles of the Fair Work Ombudsman and the Fair Work Commission.

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Resolving workplace disputes

If a dispute occurs and you and your employee are unable to resolve the situation, the FWO can act as a mediator.

The FWO can appoint a Fair Work Inspector to investigate an alleged breach of the Fair Work Act. Inspectors have the authority to conduct an audit, respond to complaints, and investigate any case of non-compliance with Australia’s workplace laws.

Early intervention can often resolve situations without the involvement of regulatory bodies.

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Unfair Dismissal

On average the Fair Work Commission receives between 14,000 and 15,000 unfair dismissal claims per year.

When the Fair Work Commission assesses issues of unfair dismissal, it’s expected employers are able to demonstrate they have followed a fair process. You must provide the employee with the right to respond and take all reasonable actions to resolve the issue prior to ending employment.

An independent conciliator from the Fair Work Commission is an impartial representative. Their role is to provide the employer and employee with an opportunity to have an informal conciliation and possibly reach an agreed settlement without the need for a court hearing.

The role of the conciliator is to:

Actively help the parties reach a resolution.
Lead discussions and provide guidance.
Explore the issues.
Challenge views expressed, explore alternatives and comment on possible outcomes.

If the conciliation process does not resolve the issue, the case will proceed to a formal conference or hearing. This is similar to a court hearing, and an enforceable decision is made.

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Peninsula has an experienced team of experts available 24/7 to offer advice and guidance for your business on the Fair Work Act 2009, modern awards and the national minimum wage.

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This article is for general information purposes only and does not constitute as business or legal advice and should not be relied upon as such. It does not take into consideration your specific business, industry or circumstances. You should seek legal or other professional advice regarding matters as they relate to you or your business. To the maximum extent permitted by law, Peninsula Group disclaim all liability for any errors or omissions contained in this information or any failure to update or correct this information. It is your responsibility to assess and verify the accuracy, completeness, and reliability of the information in this article.