It’s complicated. 

Our industrial relations system is overly complex. There is an unrealistic expectation on employers to be experts on the various levels of industrial regulation and how they work together. 

Let’s start with The Fair Work Act (2009). It applies to nearly all employers in Australia. (The exceptions are some state public sector employees) When I started in industrial relations the printed Act was about 15mm thick. Today it rivals the Bible in size and complexity.

The National Employment Standards (NES), which is a distinct part of the Fair Work Act, applies to almost all employees in Australia. These have grown in number and detail over the last 10 years.

The NES outlines eleven key minimum entitlements for employees such as all types of employee leave, public holidays, flexible working arrangements and termination provisions.

On the next level down Awards cover a range of entitlements and conditions such as working hours and are written (often poorly) for specified industries or occupations. Award coverage is fairly broad but do not cover all employees generally excluding managerial employees. It is important for employers to know if their employees are covered by an Award even when paying above Award wages.

Together, the Fair Work Act, the NES and the Awards are the ‘foundation’ of minimum conditions in Australia.

Employers and employees can decide to negotiate an Enterprise Agreement for their organisation. This is optional. The conditions in an Enterprise Agreement cannot be any less than in the underlying Award and/or the NES. The benefit of an Enterprise Agreement is questionable as the conditions are increasingly required to look identical to Award conditions.

At an organisational level an employer can put in place various Policies such as Codes of Conduct or Alcohol and Other Drugs. Having a Code of Conduct is highly recommended. Policies sit alongside the Fair Work Act, the Award, an Enterprise Agreement and the NES. Where any part of the Policy contradicts those documents it is not valid.

Policies are ‘recognised’ by Fair Work to varying degrees in a dispute situation but are usually not legally enforceable where they create an entitlement. For an employer to rely on Policies (and Procedures) they must be able to show the employee was aware of the content.

At an individual employee level each employee has an employment contract – either written or implied by law. Entitlements granted in an employment contract can exceed but cannot be any less than those in an Award, an Agreement or the NES. There are substantial benefits of having employment contracts for both managers (and professionals) and Award level employees.

Yes, it is complicated.

Contact Hunter Employee Relations if you wish to discuss an audit of your employees’ terms and conditions of employment, to ensure alignment between the different levels mentioned above.

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Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au

Industrial Relations - Employment Law - Workplace Performance