Understanding the key pieces of legislation that govern employment in Australia

Key employment laws and regulations

The key pieces of federal legislation which govern national system employers and their employees are the Fair Work Act 2009 (Cth) (“FW Act”) and the Fair Work Regulations 2009 (Cth) (“FW Regulations”).

 

A national system employer is an employer covered and bound by the national workplace relations laws.

Who is covered by national workplace relations laws?

The national workplace relations system covers:

• all employees in Victoria (with limited exceptions in relation to State public sector employees), the Northern Territory and the Australian Capital Territory

• all employees on Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands

• those employed by private enterprise in New South Wales, Queensland, South Australia and Tasmania

• those employed by local government in Tasmania

• those employed by a constitutional corporation in Western Australia (including Pty Ltd companies) – this may include some local governments and authorities

• those employed by the Commonwealth or a Commonwealth authority

• waterside employees, maritime employees or flight crew officers in interstate or overseas trade or commerce.

If your business does not fit in the above descriptions, your business will likely be covered by state legislation.

Fair Work Act 2009 (Cth)

Let’s look at the FW Act in more detail.

The FW Act sets out the rules and standards governing employment relationships, including minimum employment conditions (the National Employment Standards), industry-specific pay and conditions (under modern awards), and the negotiation of workplace agreements (such as enterprise agreements).

The FW Act also covers aspects like minimum wage, unfair dismissal protection, workplace bullying and harassment, industrial action and general protections for employees.

In addition, the FW Act establishes

• the Fair Work Commission, which oversees compliance and resolves disputes; and

• the Fair Work Ombudsman, which provides guidance and enforces the FW Act.

What are the National Employment Standards?

The FW Act sets minimum standards of employment for employees.  These are called the National Employment Standards (“NES”).  The NES are summarised below:

Item	National Employment Standard	Entitlement
1	Maximum weekly hours of work	Full-time employees are entitled to work a maximum of 38 hours per week, plus reasonable additional hours.
2	Requests for flexible working arrangements	Eligible employees can ask to change their working arrangements.
3	Parental leave and related entitlements	Eligible employees can take up to 12 of months unpaid leave and the right to ask for an additional 12 months of unpaid leave. This also includes adoption-related leave.
4	Annual leave	Employees accrued four (4) weeks of paid annual leave (pro rata for part-time employees) per year, plus an additional week for some shift workers.
5	Personal and carer’s leave and compassionate leave	Employees accrue 10 days of paid personal/carer’s leave (pro rata for part-time employees) per year and are entitled to, where eligible, 2 days of unpaid carer’s leave as required and 2 days of compassionate leave as required.
6	Family and domestic violence leave	All employees (including casuals) are entitled to 10 days paid family and domestic violence leave per year.
7	Community service and jury duty leave	Employees are entitled to unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to 10 days for jury service.
8	Long service leave	Employees who have a long tenure with the same employer are entitled to long service leave, in accordance with the applicable State legislation.
9	Public holidays	Employees are entitled to be absent from work on a public holiday.  An employee can, however, be reasonably requested to work in accordance with the FW Act.  Where an employee does not work on a public holiday, they are paid (unpaid for casuals).
10	Notice of termination and redundancy pay	Permanent employees are entitled to up to 5 weeks’ notice of termination and up to 16 weeks’ redundancy pay, both based on length of service (and age in some circumstances).
11	Provision of the Fair Work Information Statement, the Casual Employment Information Statement and the Fixed Term Employment Information Statement	The Fair Work Information Statement (“Statement”) must be provided by employers to all new employees. Casual employees must also be given the Casual Employment Information Statement (in addition to the Statement). Fixed term and maximum term employees must also be given the Fixed Term Employment Information Statement (in addition to the Statement).
12	Casual Conversion	Casual employees have the right to become a permanent (full-time or part-time) employee in some circumstances. This is known as ‘casual conversion’. In some circumstances, there is a requirement for the employer to offer their employee casual conversion, or there may be a right for the employee to request it.

The NES apply to all employees covered by the FW Act.  However, only certain entitlements apply to casual employees.  These are:

1.          Maximum weekly hours;

2.          Two (2) days of unpaid carer’s leave and (2) days of unpaid compassionate leave per occasion;

3.          Ten (10) days of paid family and domestic violence leave (in a 12-month period);

4.          Community service leave (unpaid);

5. Jury duty;

6.          Public holiday leave (unpaid);

7.          Fair Work Information Statement and the Casual Employment Information Statement;

8.          Right to casual conversion.

In addition, casual employees who have been employed for at least 12 months by an employer on a regular and systematic basis and with an expectation of ongoing employment may be entitled to:

• make requests for flexible working arrangements;

• parental leave and related entitlements.

How do the National Employment Standards apply?

Terms in modern awards, enterprise agreements (like enterprise agreements) and employment contracts cannot exclude or provide for an entitlement less than the NES, and those that do have no effect.

However, modern awards, enterprise agreements and employment contracts may specify terms that deal with:

·            averaging an employee’s ordinary hours of work;

·            the cashing out and taking of paid annual leave;

·            the cashing out of paid personal/carer’s leave;

·            the substitution of public holidays; and

·            situations in which redundancy entitlements do not apply.

They may also supplement the NES by providing entitlements that are more favourable for employees.

Fair Work Regulations 2009 (Cth)

The FW Regulations are a set of subsidiary regulations that accompany and support the FW Act. They provide detailed guidance and procedures for implementing various aspects of the FW Act.  Essentially, the regulations serve to clarify and ensure the proper application of the FW Act.

DISCLAIMER

The information in the package is intended as a general guide only, not legal advice, and specific legal or HR advice should be sought when necessary.