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What is the Fair Work Act 2009?

At the centre of Australia’s workplace relations is the Fair Work Act 2009 (the Act) legislation.

The Fair Work Act 2009 sets out the rules and obligations for employees and employers under the national workplace relations system. Its purpose is to provide a balanced framework for productive workplace relations that promotes national economic prosperity and social inclusion for all Australians.

Specifically, the Act:

  • provides for terms and conditions of employment
  • sets out rights and responsibilities of employees, employers and organisations in relation to that employment
  • provides for compliance with and enforcement of the Act
  • provides for the administration of the Act by establishing the Fair Work Commission and the Fair Work Ombudsman

Further, the Act provides a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards (NES), Modern Awards and National Minimum Wage orders.

National Employment Standards (NES).

The Act provides for 10 legislated National Employment Standards (NES) and provides protection to all people working in Australia through the inclusion of certain rights that cannot be undermined including:

  • hours of work
  • right to request flexible working arrangements
  • parental leave
  • personal/carer’s and compassionate leave
  • community service leave
  • annual leave
  • long service leave
  • public holidays
  • notice of termination and redundancy pay
  • fair work statement

Visit Employsure’s guide on National Employment Standards to learn more.

Modern Awards.

In addition to the NES, most employees are covered by a Modern Award. These awards cover an industry or occupation and provide additional enforceable minimum employment standards. There is also a Miscellaneous Award that covers employees who are not covered by any other Modern Award. Modern Awards may contain terms about minimum wages, penalty rates, types of employment, flexible working arrangements, hours of work, rest breaks, classifications, allowances, leave and leave loading, superannuation, and procedures for consultation, representation, and dispute settlement. They may also contain terms about industry specific redundancy entitlements. Visit Employsure’s guide on Modern Awards to learn more.

National Minimum Wage.

A minimum wage is the base rate an employee is paid for their ordinary hours of work, and is determined by the industrial instrument the employee is employed under, such as a Modern Award, Enterprise Agreement or National Minimum Wage order. Employees cannot be paid an amount less than the national minimum rate of pay, even if agreed by the employee.

The national minimum wage and pay rates under Modern Awards are reviewed by the Fair Work Commission (FWC) each year to determine if an increase is required, based on national living standards.

The Fair Work Commission and the Fair Work Ombudsman.

The practical application of the Act and other underlying entitlements in workplaces is overseen by two regulatory agencies: the Fair Work Commission and the Fair Work Ombudsman. Together these agencies administer, govern, and cooperate fair work within Australia. Specifically:

  • the Fair Work Commission administer the Act, reviewing the legislation including updating entitlements, national minimum wages, and operates as a tribunal to hear claims and declare rulings
  • the Fair Work Ombudsman governs and investigates allegations of breaches in the workplace and initiates legal proceedings

Visit Employsure’s guide on the Fair Work Commission and the Fair Work Ombudsman to learn more.

As a business owner or employer, you are responsible for treating all your employees fairly and issuing them with the correct entitlements. With this in mind, it is important to be well informed of your requirements and obligations under the Fair Work Act 2009. Under the Act, employee entitlements such as the NES, Modern Awards, and Enterprise Agreements are included. Employment contracts cannot take away the minimum entitlements found in the NES and the corresponding Modern Award associated.

Like any piece of legislation, the Fair Work Act 2009 is a complex and extensive 542-page document that can be difficult for anyone to navigate and ultimately, understand. Justifiably, business owners are often confused by the complex language, yet the cost associated with noncompliance can be significant. Even if you are familiar with the legislation, there are frequent changes you need to be kept up to date on.

For peace of mind about your obligations, call us today on 1300 651 415 to speak to a specialist.

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