First published on Wednesday, May 28, 2025
Last updated on Wednesday, May 28, 2025
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As an employer, remaining compliant with the Fair Work Act 2009 is imperative to the functioning of your Australian business. It’s a key piece of Australian legislation that came into effect on July 1st, 2009, and we refer to many times in our HR and employment law guides.
The Fair Work Act establishes the framework for workplace relations, it encompasses minimum employment standards and regulates various employment and industrial matters. It also sets up the Fair Work Commission and Fair Work Ombudsman to administer and enforce the Act, protecting the rights and responsibilities of both employers and employees across Australia.
What is covered by the Fair Work Act 2009
Key areas covered by the Fair Work Act include:
General Protections
The Fair Work Act provides protections against discrimination and adverse action based on various protected attributes, including race, sex, age, and disability. This means an employer cannot take actions like termination, demotion, or reduction in pay based on these protected characteristics.
National Employment Standards (NES)
The National Employment Standards sets out 10 minimum entitlements for all employees, including entitlements to annual leave, personal leave, community service leave, and parental leave.
These minimum standards are mandatory for employees covered by the national workplace relations system regardless of industry, business size or unique circumstance. The purpose of these standards is to protect minimum entitlements of employees working in Australia under the national system regardless of their award, registered agreement or employment contract.
Unfair Dismissal
The Fair Work Act provides mechanisms for employees to seek remedy for unfair dismissal. It outlines the circumstances in which a dismissal is considered fair and provides pathways for employees to challenge unfair dismissals through the Fair Work Commission.
Collective Bargaining
Collective bargaining is the process in which working people, through their unions, negotiate contracts with their employers to determine their terms of employment, including pay, benefits, hours, leave, job health and safety policies, ways to balance work and family, and more.
The Fair Work Act facilitates this negotiation of enterprise agreements between employers and employees. They can be single-enterprise or multi-enterprise and are designed to cover a group of employees who are distinct geographically, operationally, or organizationally.
Industrial Action
Industrial action is defined as actions taken by either employees or employers to disrupt the normal operation of a workplace. This can only be taken once the employee (or their representatives) have acted.
For employees, this can include strikes, work bans (refusing to perform specific duties), and refusing to work overtime. For employers, it can include locking out employees by preventing them from working.
The Act regulates industrial action, helping to balance the rights of employers and employees, and provides for the use of dispute resolution mechanisms.
As an employer, it can be a difficult situation to navigate. Our employment relations experts are on hand 24/7 to offer advice and guidance when you need it most.
Modern Awards
As of 1 January 2010, The Fair Work Act allows for the establishment of modern awards. These are legally binding instruments that set out minimum terms and conditions of employment for specific industries or occupations.
Modern awards provide entitlements such as:
Fair Work Commission
The Act establishes the Fair Work Commission, which acts as an independent employment tribunal and plays a crucial role in administering and enforcing the FW Act. The purpose of this organisation is to work for the benefit of Australia’s workforce, assisting employees and employers in maintaining fair and productive workplaces.
Its functions include enforcing required minimum wages and employment conditions, assisting in enterprise bargaining, industrial action, dispute resolution, termination of employment, and a variety of other workplace matters.
The Fair Work Commission has a number of roles and responsibilities as the independent national workplace relations tribunal.
Some of the FWC's key responsibilities include:
Setting the national minimum wages
Creating and changing modern awards
Approving enterprise agreements
Acting as the independent moderator in disputes including unfair dismissal and adverse action
Resolving disputes under awards, enterprise agreements/other registered agreements, or the National Employment Standards (NES)
The Fair Work Commission is also able to determine award coverage for employees.
If a dismissal is deemed to be unfair, they can determine a reinstatement of the job, or even financial compensation depending on the circumstance. However, for a determination of this nature to take place, an employee must lodge an application form, as well as stipulate their reasoning.
Failure to comply with the Fair Work Act 2009
Failure to comply with the Fair Work Act 2009 can lead to significant consequences for businesses and individuals, including financial penalties, legal action, and reputational damage.
The Fair Work Ombudsman (FWO) can investigate breaches and issue compliance notices, and failure to comply with these notices can result in court proceedings and further penalties.
Ensure your business complies with the Fair Work Act 2009
Whether it's getting pay right under the relevant award or agreement, meeting your record-keeping obligations, or ensuring smooth dispute resolution. There's a lot to consider.
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