Fair Work in Australia

Guide Topics

What is the Role of Fair Work in Australia?

The Fair Work Ombudsman and the Fair Work Commission (previously called Fair Work Australia) are independent government organisations.  They both regulate Australia’s workplace relations system but have different roles. The two bodies govern the oversight of the Fair Work Act’s practical application in Australian workplaces. These agencies work in tandem to administer, govern, and cooperate fair work within Australia and ensure that employers and business owners alike adhere to what is included in the legislation.

What Does the Fair Work Legislation Cover?

The Fair Work Act 2009 (FWA) regulates the employment relationship for most employers within Australia. The FWA provides a safety net of minimum entitlements, enable flexible working arrangements and fairness at work and prevent discrimination against employees. The Fair Work Act protects and governs a variety of aspects to work conditions for most businesses. Some of the key areas that fall under the legislation include:
  • minimum wage
  • parental leave
  • modern awards
  • redundancy
  • unfair dismissal and more
Regardless of your specific business model or industry, employees covered by the Fair Work Act are entitled to certain rights and entitlements associated with your industry, including a minimum rate of pay. It’s important that employers both understand any applicable obligations under the FWA as well as maintain them within their businesses.

The Fair Work Act 2009

The primary legislation which governs at the center of all of Australia’s workplace relations is the Fair Work Act 2009 (FWA). This item of legislation includes entitlements and regulations that cover the majority of employees within the Australian workforce. As a business owner or employer, you are responsible for providing applicable entitlements. With this in mind, it is important for you to be informed and understand any applicable requirements and obligations under the FWA. The Act creates a system that outlines an array of minimum entitlements, including the National Employment Standards (NES), Modern Awards, and Enterprise Agreements. These standards, Awards and agreements cannot be undercut by way of individual employment contracts. You can find out more about Modern Awards here in Employsure’s full guide. Similar to a lot of other items of Australian legislation, the FWA is a complicated document, over 500 pages long. It can be difficult for anyone to read through and comprehend. It is understandable then that business owners and employers alike are often confused by the difficult language. However, even though it is rather complex to understand, business owners must still adhere to the rules.

What Do The Fair Work Commission And Fair Work Ombudsman Do?

The Fair Work Commission (FWC)

The FWC is the independent national workplace relations tribunal. It is responsible for maintaining a safety net of minimum wages and employment conditions, as well as a range of other workplace functions and regulations.

What it can do

  • help employees and employers bargain in good faith and to make, vary or terminate enterprise agreements
  • deal with applications relating to ending employment including unfair dismissal, unlawful termination or general protections
  • deal with applications for an order to stop bullying at work
  • make orders about industrial action, including strikes, work bans and lock outs
  • provide mediation, conciliation and in some cases hold public tribunal hearings to resolve various individual and collective workplace disputes
  • make workplace determinations, hear and decide on equal remuneration claims, and deal with applications about transfer of business, stand down, general protections and right of entry disputes.

What it can’t do

  • provide advice on entitlements under an award or registered agreements
  • enforce minimum pay and award entitlements.
  • is the independent national workplace relations tribunal which has the power to carry out a range of functions relating to workplace matters. Some of the workplace matters the FWC oversees are the ten minimum conditions set out in the NES, enterprise bargaining, industrial actions, dispute resolution and termination of employment. While they oversee all of these factors to workplace relations, their core focus is on resolving workplace issues and disputes between employees and employers.
Similar to the FWC, the Fair Work Ombudsman (FWO) works to ensure the correct understanding and implementation of the Fair Work Act’s legislation in Australia. However, unlike the FWC’s tribunal-nature, the FWO works to help employees, employers, contractors and the wider workplace community understand their workplace rights and responsibilities, with the key agenda being to keep workplaces fair through education and mediation. All of the FWO’s services are free and rather than operating in an enforcement capacity, they offer information, tools, templates and help for individuals to resolve workplace matters without the need for intervention. What they can do
  • educate people about fair work practices, rights and obligations
  • resolve workplace issues by promoting and monitoring compliance with suspected breaches of workplace laws, awards and registered agreements
  • enforce workplace laws and seek penalties for breaches of workplace laws
  • enforce certain orders made by the Fair Work Commission.

What they can’t do

  • investigate unfair dismissal and unlawful termination applications
  • make changes to the legislation, awards or registered agreements
  • investigate bullying and harassment complaints.

What is the Purpose of Fair Work in Australia?

The purpose of the FWA is to establish national workplace standards between an employer and an employee. The FWA provides a safety net of minimum entitlements, enable flexible working arrangements and fairness at work and prevent discrimination against employees.  

What is the Fair Work Act and What Does it Cover?

The Fair Work Act oversees the employment relationship in Australia. The act serves to provide a safety net of minimum entitlements through the national minimum wage, Modern Awards and the National Employment Standards (the NES). Further it allows for flexible working arrangements, protection from unfair dismissal and ensures all employees are treated fairly and protected from discrimination.

What is Australian Employment Law?

There is legislation that applies to all national system employers across Australia. This is regardless of territory, states, business models or industry. The objective is to place responsibility on the employer to ensure that their employees are treated fairly and are receiving the minimum employment rights and entitlements – including minimum pay, leave entitlements, redundancy, notice periods, and more. Below is a list of important national workplace legislation in Australia:
  • Fair Work Act 2009
  • National Employment Standards (NES)
  • Work Health and Safety Standards (WHS)
  • State and Federal anti-discrimination laws
  • Privacy Act 1988
  • Workplace Gender Equality Act 2012

Who is covered by the National Workplace Relations System?

If you:
  • work for a constitutional corporation
  • work in Victoria (except if you are a law enforcement officer or an executive in the public sector), the ACT or the NT (except if you are a member of the Police Force)
  • work in the private sector in NSW, Queensland or SA
  • work in the private sector or local government sector in Tasmania
You are covered by the national system. If you:
  • work in the state public sector or for a non-constitutional corporation in either local government or private industry in WA
  • work in the state public sector or local government in NSW, Queensland and SA
  • work in the state public sector in Tasmania.
You are not covered by the national system.

Why are Fair Work practices important?

Employers are legally obligated to comply with all aspects of Australian employment law and ensure all employees can work comfortably in a safe and secure environment – free of bullying, discrimination, and harassment. In many cases, workplace incidents and disputes occur due to employers being unaware of their obligations, but equally so, many cases involve a degree or uncertainty or confusion with what the exact requirements are. Nevertheless, it is the responsibility of business owners and employers to be fully up to date with Fair Work Australia legislation, and ensure that their employees both receive the correct entitlements as outlined in the relevant industrial instrument and that they are treated fairly.

What is the Difference between the Fair Work Commission and Ombudsman?

The Fair Work Commission is responsible for maintaining a safety net of minimum wages and employment conditions, as well as a range of other workplace functions and regulation (i.e.: Changes Awards/Agreements, Conciliates & Concludes Conflict). In most situations, small business owners will rarely deal directly with the Fair Work Commission unless they are involved in a case. The Fair Work Ombudsman works to help employees, employers, contractors and the wider workplace community understand their workplace rights and responsibilities (i.e.:  Educates & Investigates) in most day to day activities relating to managing the HR within a business, small businesses will refer most to the Fair Work Ombudsman.

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