The Fair Work system
From 1 January 2010, several important changes in Australia’s workplace laws affected all employers and employees in the national workplace relations system.
The changes included the introduction of new National Employment Standards (NES), many state employers moving into the national system, and the commencement of modern awards.
From 1 January 2010, modern awards replaced most existing awards, national agreements preserving state awards (NAPSAs) and Australian Pay and Classification Scales .
Other changes introduced on 1 July 2009 include:
- revised enterprise bargaining arrangements
- streamlined protections dealing with workplace rights and industrial activities including protection against discrimination and unfair dismissal
- two new organisations to regulate the system - Fair Work Australia and the Fair Work Ombudsman.
The new national workplace relations system covers the majority of workplaces in Australia.
From 1 January 2010, sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, Queensland, South Australia and Tasmania are covered by the national system rather than their own specific state system.
The New South Wales, Queensland, South Australian and Tasmanian State governments have enacted legislation to allow them to refer certain workplace relations matters to the federal government. This means that all private sector employers in these states are covered by the national system. However, State public sector, and in most cases local government employees, in these states will continue to be covered by the relevant State system.
The West Australian government has decided not to refer their workplace relations powers to the Commonwealth at this stage. All sole traders, partnerships, unincorporated entities, non-trading corporations and public sector employers in West Australia remain in their state system.
All employers in the national system must now comply with new:
- General protections, unfair and unlawful dismissal laws
- agreement making obligations
- transfer of business rules
- workplace rights specified in the Fair Work Act 2009.
From 1 January 2010 employers in the national system, must:
- comply with the National Employment Standards (NES) - the safety net of 10 minimum employment entitlements set out in the Fair Work Act 2009.
- ensure that the wages provided to employees at a minimum comply with the wages set out in a modern award or the national minimum wage order.
From 1 January 2010, both employers and employees also have new rights and responsibilities to achieve fairness and flexibility in the employment relationship.
There are special transitional rules for employers who were previously covered by the state system in New South Wales, Queensland, South Australia and Tasmania to help transition them into the national system:
- State awards that covered these employers and employees before 1 January 2010 (known as Division 2B State awards ) continued to apply from 1 January 2010 until 31 December 2010.
- Division 2B State enterprise awards continue to apply.
- Employers and employees who were covered by a Division 2B State award will generally be covered by a modern award from 1 January 2011.
- However in most cases, the conditions in Division 2B State awards will continue to apply until the end of the full pay period commencing before 1 February 2011 (depending on the transitional arrangements in the relevant modern award).
- From the first full pay period on or after 1 February 2011, the conditions in the relevant modern award will apply, subject to any transitional arrangements.
- State employment agreements that applied to their business before 1 January 2010 continue to operate until terminated or replaced by an enterprise agreement or workplace determination under the Fair Work Act 2009. (‘State Employment Agreements’ are agreements that determine terms and conditions of employment and are made under a state industrial law). From 1 January 2010 these will be known as “Division 2B State employment agreements.”
Division 2B State Awards and Division 2B State employment agreements operate alongside the National Employment Standards (NES). This means that employees must receive at least the minimum entitlements in the NES, which may be supplemented by other entitlements in their Division 2B State Award or Division 2B State employment agreement.
For more information on how your workplace is affected by the new national workplace relations system, see your relevant state website:
ACT and Northern Territory
All employees and employers in the ACT and Northern Territory are under the national workplace relations system. The Fair Work Act 2009 applies to all employees and employers in the territories. From 1 January 2010, the NES and modern awards also begin to apply.
All private sector employees and employers in Victoria have worked under the national system since 1996. The Fair Work Act 2009 has applied to private sector employers and employees in Victoria since 1 July 2009. From 1 January 2010, the NES and modern awards also begin to apply.
Western Australia has elected not to join the national system at this stage. Most employees of incorporated entities in Western Australia are already covered by the national system, but those of sole traders, partnerships or other unincorporated organisations will continue to operate under the WA state system.
Find out more:
As an employer, you must:
- give each new employee the Fair Work Information Statement before, or as soon as practicable after, the employee commences employment
- meet minimum rates of pay in a modern award or national minimum wage order
- meet terms and conditions of applicable modern award
- meet the terms and conditions of the National Employment Standards (NES).