Employment & Labor Law In Australia: Fair Work Act 2009
The most significant sources of the labor Law in Australia include industrial instruments, legislation, and common law. The Fair Work Act 2009 (the FW Act) is responsible for governing the majority percentage of Australian employees. The relevant industrial instruments comprise modern awards. The Fair Work Commission (the FWC) determines these awards.
The awards are responsible for providing a safety net of the minimum pay rates and employment conditions. These awards are also a benchmark to check if the employees are ‘better off overall’ as per the proposed enterprise agreement. Every year, the FWC conducts the annual wage review to decide the national minimum wage for that year.
“The Fair Work Act establishes a safety net comprising: the NES, modern awards and national minimum wage orders; and a compliance and enforcement regime. It also establishes an institutional framework for the administration of the system comprising FWA and the FWO. The Fair Work Divisions of the Federal Court and Federal Magistrates Court and, in some cases, state and territory courts, perform the judicial functions under the Fair Work Act.”
Also, if you are interested in other countries, you can read the article below:
Why Legislation Is Important in The Workplace
Legislation is one of the most important instruments of the governmental body in organizing society and protecting citizens. It determines amongst others the rights and responsibilities of individuals and authorities to whom the legislation applies.
Employment law is designed to ensure fairness at work and can help to improve productivity and well as is a necessary response to demographic and social change. It also makes a positive contribution to employee relationships and increases employees’ sense of being fair and trusting in their employer.
History of Labor Law in Australia
As is stated on Wikipedia, labor law in Australia concerns the Commonwealth, state, and common law on the rights and duties of workers, unions, and employers in Australia. Australian labor law (also known as industrial relations law) has a dual structure, where some employment issues and relationships are governed by Commonwealth (the Australian federal government) laws, and others are governed by state and territory laws or the common law. Labor law in Australia shares a heritage with laws across the Commonwealth of Nations, UK labor law, and standards set by the ILO or International Labor Organization, the Australian legislature and courts have built a comprehensive charter of rights at work.
Labor Law in Australia: Working Hours
The National Employment Standards (NES) provide for a maximum working week of 38 hours or 7.6 hours a day unless the additional hours are reasonable. It is common for employers and employees to reach an agreement about the reasonableness of additional hours, which can include reasonable overtime is required in a role.
Types of Workers Protected by the Australian Employment Law
Under the employment law, those workers who work pursuant to the contract of service get protection rather than working for a contract for services. A multi-indica test is applicable to distinguish between the independent contractors operating in Australia from those who are working as employees.
Also, the difference between casual and permanent employees is essential when the government needs to determine who is eligible for the employment benefits. For obtaining other benefits, casual employees must fall under the category of ‘continuous casuals’ as per the FW Act. There are certain protections that apply to casuals as well as out workers who are ‘long-term.’
How Are Workers Treated in Australia?
The best place to investigate the issue above is the governmental body in each country;
Australian government declares:
Australia has a well-developed employment system, designed to provide flexibility and certainty to both employers and their employees. This system is subject to Australian, and state and territory government requirements.
The central elements of this system include a set of national standards of employment for all Australian employees, occupational health and safety regulations, and superannuation (pension) payments. The Fair Work Ombudsman (FWO) and The Fair Work Commission (FWC) are the two key organizations in Australia’s workplace relations system.
Minimum Employment Terms Decided by the Labor Law in Australia
There are specific terms and conditions that employers have to abide by. These terms are decided by the National Employment Standards (NES). These terms revolve around the ten main areas as given below:
- The requests for flexible working arrangements.
- The maximum number of hours per week.
- Personal careers leave as well as compassionate leave.
- The Fair Work Information Statement
- Leaves for long service.
- The public holidays.
- Leaves pertaining to parental needs and other related entitlements.
- Leaves on an annual basis.
- The leaves for community service.
- Notice of termination and redundancy pay.
What Rights Do Employers Have in The Workplace?
Employers have few rights other than to expect employees to carry out their duties to a reasonable standard, follow reasonable management directions, and abide by their contract and workplace policies and procedures.
However, there are numbers of obligations and responsibilities towards employees under the Fair Work Act and other industrial relations legislation.
Some of the most important responsibilities to consider include:
- Provide a safe working environment
- Protect all employees from bullying, discrimination, and sexual harassment
- Provide employees with the correct pay and entitlements
- Record keeping obligations
- Give all employees the necessary training, resources, and mentoring they need to work safely and efficiently
- Inform all employees of their rights and responsibilities
- Train employees on potential hazards and safety risks in the workplace
- Meet first aid requirements
- Report workplace incidents and injuries to Safe Work Australia
- Supply protective clothing and equipment for employees and ensure they know how to use them correctly
Trade Union Rights and Regulations
The FW Act mentions the registration of employees as well as employer associations and other enterprise associations. This registration involves responsibilities in relation to the rules and regulations of a company, the different governance standards as well as financial management. There are multiple procedures set by the legislation that can cancel out the registration of organizations, amalgamate them, or resolve their demarcation disputes.
There are certain rights the trade unions gain through registration. These are related to being a part of the proceedings in order to represent the rights and interests of the members. Also, the FW Act also gives allowance to the trade unions to bargain on behalf of the members in the proceedings.
The representatives from the trade unions who have the permit have the allowance to enter the employer’s premises. The main purpose behind this revolves around the investigation of certain measures. These could relate to health and safety laws, industrial instruments, or any kind of breaches from the employer’s end. Here are the main rights are given for investigation:
- The representative can perform an inspection of any relevant procedure, object, or work.
- The representative has a permit to perform interviews with willing participants.
- Ask the employer or head of the organization to show any documents or records that are relevant to the issue.
Protection of Employees from Discrimination
There are several federal, state, as well as territory anti-discrimination legislation that protects the employees of the country. Also, the employees get protection by the FW Act as per the ‘general protections’ mentioned in the act.
These protections forbid any employer from taking any severe actions against any of the employees on the grounds of discrimination. There are multiple attributes that the FW Act covers and provides protection against. These are attributes such as color, sex, marital status, religion, pregnancy, race, sex, mental or physical disability, etc.
Unlawful Discriminations and Their Circumstances
There are two significant formulations in Australia that come under unlawful discrimination:
- Direct discrimination
- Indirect discrimination
Direct discrimination occurs when the affected employee gets unfair treatment and is favored less on the grounds of some protected attribute.
On the other hand, indirect discrimination occurs when there is some unreasonable condition or requirement posed on an employee due to one of the protected attributes.
Employees Should Exercise Their Rights
The employees do have certain rights and must exercise them in case they feel that their rights are being violated in any manner. Employees can first lodge a legal complaint against the employer responsible. Also, they can escalate these complaints to even a tribunal or a court for enforcing legal rights or obligations. Any of the terms that come under the FW Act can be exercised and argued upon if any employee faces issues with his/her employer.