The Fair Work Act of 2009 (the Act) is one of the many pieces of legislation that governs the relationship between individuals in most private workplaces in Australia. The terms and conditions within the Act are intended to provide a balanced framework for the relationship between both the employer and the employee, as well as between separate employees within the workplace. The Act was also created to promote national economic prosperity and social inclusion to the employees. Legislators purport to plan to accomplish this by doing the following:
- providing certain terms and conditions for working,
- setting out the rights and responsibilities for employees,
- providing for compliance and enforcement of the Act,
- and providing for the administration of the Act.
The Importance of the National Employment Standards
- Maximum hours per week. There are a maximum number of hours that an employee can work per week. If an employee works for more time than this allotment of hours, they must get some kind of compensation, which is usually in the form of a higher rate of pay. The standard rate is calculated at a time and a half; however, this can be decided by the employer, or even negotiated between the employer and employee.
- Flexible work arrangements. As an employee in Australia, you also have the right to request flexible working arrangements. These arrangements allow employees to make changes to their working hours, to change their existing location of work (if the employer has multiple offices), or even to change their pattern of work.
- Parental leave. If an employee is about to become a parent to a newborn child, according to the Fair Work Act (2009), they are entitled to take a sufficient amount of time off. The amount of time the parent wishes to take off will depend on their individual circumstances, however, there are limits to the amount of time a parent can take off work.
- Compassionate and domestic leave. This is essentially the ability for an employee to take time off when they have intense family issues, and/or are experiencing domestic violence. These problems may pervade into the workplace, therefore, employers should make sure that they are treating these claims seriously. No claim for domestic violence should be brushed off, as depending on the nature of the incident, the dismissal can lead to more severe consequences.
- Community service leave. This provision essentially allows an employee to take time off work for helping out the community. This community work does not necessarily need to be political.
- Annual leave. This is also called paid time off in other jurisdictions and is common practices in numerous other countries around the world. As per the Act, all full-time employees are entitled to four weeks of paid leave for each year of work.
- Long service leave. If you have employees that have worked for a long period of time, according to the Fair Work Act (2009), these employees are entitled to take a longer leave of absence from work than traditional shorter-term employees. It is important to note that State and Territory long service leave laws will not apply to national system employees in certain circumstances. It is best to consult with a legal professional in regards to this.
- Public Holidays. Employers are required to make accommodations for employees on nationally recognized public holidays. It is also important to note that public holidays can be national, statewide, and even regional. Therefore, it is best to check with your employer to get the specific rules around this kind of accommodation.
- Notice of termination. All employers are required to give notice to their employees in regards to termination, and they are also supposed to provide reasons for the termination of the employee.
- Fair Work Information Statement. This is essentially a document that informs new employees of the benefits they are entitled to (as described above). As an employer in Australia, you have an obligation to give new employees a copy of this document within a reasonable timeframe.
The Fair Work Act also provides a guaranteed safety net for employers via enforceable minimum terms and conditions that employers must have, regardless of the industry, business size, or the unique characteristics of the business. These are the 10 National Employment Standards, each of which will be looked at in relative detail:
The Role of the Fair Work Commission
When drafting this law, legislators made sure to provide a framework for the administration of this Act. There are two regulatory agencies that conduct this administration; those being the Fair Work Commission and the Fair Work Ombudsman. The former is involved with administering specific provisions of the Act, as well as with reviewing and updating the Act. As with other areas of administrative law, the Commission also operates as a tribunal, hearing disputes regarding areas such as unfair dismissal and unlawful termination. After hearing such disputes, the Commission will make its ruling. The latter, the Fair Work Ombudsman, is involved with providing information, advice, and guidance in regards to the Act, as well as investigating any allegations of the Act being breached. It is important to note that these two regulatory agencies do not necessarily have the final say. This is because they are classified as administrative tribunals/processes, and therefore need to adhere to the strict procedural and substantive rules of administrative law. If you or a known party to a dispute desire a judicial review of administrative action, the relevant profession should be contacted.
Overall, as an owner of a corporation or other organization in Australia, you will generally be bound by the framework of the Fair Work Act. Although there are other pieces of employment legislation that may affect your hiring, retention, and firing practices, as an employer you should be aware of things such as the employee entitlements under the National Employment Standards, as well as, the basic operations of the Fair Work Commission and Fair Work Ombudsman. Adhering to these regulations will help in enduring that the least amount of friction is involved between your organization and its employees.
To learn more, or if you have a specific question about employment law, speak to one of our lawyers.
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