The Fair Work Act 2009 is the key legislative framework governing the relationship between employers and employees. As an employer, understanding your duties under the Fair Work legislation is crucial for cultivating a positive and successful workplace environment. 

However, there’s a lot of components to the Fair Work Act. It can be a bit confusing to know what provisions apply and under what circumstances. Most importantly, it’s vital to determine who the Fair Work Act applies to. 

Even though the legislation is a commonwealth law – meaning it has powers all across Australia, there are still some exceptions when it comes to their Fair Work legislation. 

Let’s take a closer look at who the Fair Work Act applies to (and much more) below. 

What Is The Fair Work Act? 

As we mentioned (see above), the Fair Work Act is one of the main legislative mechanisms that function to secure the rights of workers in Australia. Even though most of the provisions in the Act are clearly aimed at setting minimum standards of treatment for employees, the Fair Work Act is also there to help employers. 

What Can Fair Work Help Me With?

If you’re a business owner that currently has employees working for them (or you plan to in the future) then it’s just as, if not more necessary for you to be familiar with the Fair Work Act. For an employer, the Fair Work Act provides clarity on a number of things, including: 

  • Pay 
  • Leave 
  • Workplace issues
  • Onboarding and termination 
  • Flexibility 
  • Workplace protections 
  • Performance management 
  • Record keeping

Not every workplace is the same, so it can be difficult to apply general information to specific situations. It’s always a good idea to talk to a legal expert about compliance measures in the workplace. That way, you’ll always be able to rest assured your actions are operating in accordance with the law and not infringing on your employees rights. 

Who Is Protected By The Fair Work Act? 

The Fair Work Act protects all employees and employers that are considered to be under the ‘national system’. Employers that are an incorporated entity are generally classified as ‘national system employers’. 

So, if you’re running a company, there’s a high chance that your company falls under the Fair Work Act. That means, you need to take proactive steps to make sure your employees are being treated correctly under it. This means, making sure all their conditions are meeting the National Employment Standards (NES) they are receiving the correct entitlements and awards, all their other workplace rights are being fully met. 

Remember, the Fair Work Act is a legal requirement. Not following through on your obligations as an employer under it can lead to legal consequences, a bad relationship with your employees and cause your company to gain a bad reputation. 

On the other hand, if you take reasonable measures to ensure all your employees’ rights are secured under the Fair work Act, then this could aid your liabilities if something ever gets wrong, shine a positive light on your workplace and be the start of a healthy workplace environment. 

Who Isn’t Covered By The Fair Work Act? 

Even though the Fair Work Act applies to most employees and employers in Australia, there are still exceptions when it comes to certain factors and circumstances. Here’s a few instances where the Fair Work Act may not be applicable. 

State System Employees: Employees that are not covered under the national systems are generally known as state system employees. Even though they technically don’t fall under the act, they are still provided with certain fundamental rights such as anti-harassment and unlawful termination under it. 

Small Business Exemptions: Small businesses (less than 15 employees) aren’t entirely exempt from the Act however, there are certain provisions in it that don’t always apply to small businesses. 

Independent Contractors: Depending on specific circumstances, the Act may not cover independent contractors in some cases. 

Volunteers and Unpaid Interns: Volunteers and unpaid interns are not protected by the Fair Work act. In some cases, employees will be incorrectly classified as a volunteer or unpaid intern – in this scenario the Act is likely to apply to those workers. 

Non-For-Profit Organisations: Employees of non-for-profit organisations also are not covered by the Fair Work Act however, under certain circumstances they can be. 

Employment laws are complex and highly dependent on the individual context they’re being applied under. We recommend seeking expert legal advice to ensure your conduct is in line with the Fair Work act regulations. 

What Is The Fair Work Commission and Ombudsman?

The Fair Work Ombudsman (FWO) and Fair Work Commission (FWC) were established by the Fair Work Act. The authority and powers of both the ombudsman and commission are quite different. The range of issues they deal with are also not the same. 

The FWO is an independent government agency that provides information on Fair Work related workplace rights such as pay and entitlements. The Ombudsman doesn’t resolve issues or start court proceedings, however they do have inspectors who have the power to investigate a claim. Once a claim has been investigated, the Ombudsman is able to send a ‘notice’ to an employer letting them know about an issue as well as the right resolution. 

The FWC is a tribunal. The FWC has the authority to provide mediation and conciliation, they can also aid employees in negotiations, make determinations, deal with applications on certain disputes and even make decisions if the matter falls within their scope. 

What Other Employment Laws Should I Look Out For? 

Whether the Fair Work Act applies to your workplace or not, there’s still a number of other workplace regulations you need to be aware of as an employer. We’ve listed some common considerations below: 

  • Workplace health and safety 
  • Privacy laws
  • Industry specific regulations 
  • Right to work 

Talking to an expert in Employment Law can help you figure out what regulations you need to focus on for your company, plus the steps you need to take to be legally compliant. 

Next Steps

The Fair Work Act is a key legislation when it comes to workplace laws in Australia. Knowing if, when and how it applies is essential for all Australian employers. To summarise what we’ve discussed: 

  • The Fair Work Act 2009 is a crucial legislative framework governing employer-employee relationships in Australia
  • It sets minimum standards for treatment of employees while providing clarity for employers on various aspects such as pay, leave, workplace issues, onboarding, termination, flexibility, workplace protections, performance management, and record keeping
  • The Act protects all employees and employers under the ‘national system,’ including incorporated entities, with legal consequences for non-compliance
  • Exceptions to coverage can include state system employees, small businesses with fewer than 15 employees, independent contractors in specific circumstances, volunteers, unpaid interns, and employees of non-for-profit organisations 
  • The Fair Work Ombudsman provides information on workplace rights, investigates claims, and issues notices, while the Fair Work Commission acts as a tribunal, offering mediation, conciliation, and decision-making authority 
  • Employers should also be aware of other employment laws, including workplace health and safety, privacy laws, industry-specific regulations, and the right to work 
  • Seeking expert legal advice is recommended to ensure compliance with the Fair Work Act and other relevant employment laws for a positive and legally sound workplace environment 

If you would like a consultation on the Fair Work Act, you can reach us at 1800 730 617 or for a free, no-obligations chat.

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