Employment Law & Workplace Relations

Overview of Workplace Relations/Employment Law in Australia- Fair Work Act 2009 (Cth)

The Fair Work Act 2009 (Cth) is the main piece of legislation regulating workplace relations in Australia. It comprises several Parts and Divisions, each of which regulate different aspects of the employment relationship between national system employers and employees.

Below is a summary of its main parts/divisions:

Part 2-2: National Employment Standards (NES)

The NES are a set of 10 minimum employment entitlements that must apply to all employees covered by the national workplace relations system. These standards include:

• Maximum weekly hours of 38 hours per week, plus reasonable additional hours.
• Requests for flexible working arrangements: Available for certain employees, such as parents or carers.
• Parental leave: Up to 12 months of unpaid leave, with the right to request an additional 12 months.
• Annual leave: Four weeks of paid leave per year, with additional leave for certain shift workers.
• Personal/carer’s leave and compassionate leave: 10 days of paid personal/carer’s leave, two days of unpaid carer’s leave, and two days of compassionate leave.
• Community service leave: Unpaid leave for voluntary emergency activities and jury duty.
• Long service leave: As per applicable awards or agreements.
• Public holidays: A paid day off on public holidays, except where reasonably requested to work.
• Notice of termination and redundancy pay: Minimum notice periods and redundancy pay based on length of service.
• Superannuation: Employer obligations in relation to superannuation payments;
• Fair Work Information Statement, Fixed Term Information Statement and Casual Employment Information Statement: Must be provided to all new employees, outlining their rights and entitlements.

Part 2-3: Modern Awards

Modern Awards are industry specific standards that provide additional minimum terms and conditions on top of the NES. They cover aspects such as wages, working hours, breaks, allowances, and overtime. Employers must comply with the relevant Modern Award for their industry or occupation.

Part 2-4: Enterprise Agreements

Enterprise agreements allow employers and employees to tailor employment conditions to suit their specific workplace needs. They can provide better wages, greater flexibility, and improved working conditions compared to the minimum standards set by Modern Awards and the National Employment Standards (NES).

Part 3-2: Unfair Dismissal

This Part protects national system employees who have completed the relevant qualifying period from unfair dismissal whereby the dismissal is found to be harsh, unjust or unreasonable either because there is no valid reason that can be evidenced/proved or insufficient procedural fairness was provided. Unfair Dismissals are heard by the Fair Work Commission which can order compensation or reinstatement if a dismissal is found to be unfair.

Part-3-1: General Protections

The General Protections regime defines employee and employer workplace rights and aims to prevent adverse action against those who have exercised those workplace rights.

Recent changes to the Fair Work Act 2009 (Cth)- Closing Loopholes Legislation

Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth): The Closing Loopholes legislation introduced several changes to the Fair Work Act 2009 (Cth) including:

Right to Disconnect: From August 26, 2024, non-small business employers must allow employees to refuse work-related contact outside of working hours if it is unreasonable.

Criminalisation of Wage Theft: For the first time, intentional underpayment of wages will be considered a criminal offence. Employers who knowingly underpay their employees could face severe penalties, including imprisonment and substantial fines. The laws extend liability to individuals involved in decision-making processes, such as directors and managers, not just their businesses.

New Definitions: Updated definitions for ’employee’, ’employer’, and ‘casual employee’ will come into effect, along with a new process for casual employees to convert to permanent employment.

Labour Hire Arrangements: Regulated labour hire arrangement orders will commence from November 1 2024 mandating the same pay for the same job for labour-hire workers when compared to in house employees.

Workplace Delegates’ Rights: From 1 July 2024, all modern awards were amended to include a clause outlining the increased rights of union workplace delegates. 

Changes to the Fair Work Act 2009 (Cth) under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth).

Pay Secrecy: Employers can no longer prohibit employees from discussing their pay.

Flexible Work: New rules enhance employees’ rights to request flexible working arrangements and granting the Fair Work Commission the ability to arbitrate disputes about flexible working arrangements.

Fixed-Term Contracts: New restrictions on the use of fixed-term contracts, in particular the use of multiple successive fixed-term contracts to avoid the provision of permanent job security.

Changes to laws on sexual harassment:

• Prohibition of Sexual Harassment: As of 6 March 2023, the Fair Work Act 2009 (Cth) explicitly prohibits sexual harassment in connection with work. This includes harassment by employees, contractors, work experience students, and volunteers.
• Positive Duty on Employers: Employers now have a positive duty to take reasonable steps to prevent sexual harassment in the workplace. This means they must actively work to create a safe environment.
• Expanded Protections: The new laws extend protections to future workers and people conducting a business or undertaking, not just current employees.
• Fair Work Commission Powers: The Fair Work Commission has been granted greater powers to handle sexual harassment disputes. It can now deal with these issues through conciliation, mediation, and arbitration, and can order compensation or other remedies.
• Liability for Employers: Employers can be held liable for sexual harassment conducted by their employees or agents unless they can prove they took all reasonable steps to prevent it.