In Australia, all employees are governed predominantly by legislation or industrial instruments (ie. agreements). The Fair Work Act 2009, or ‘the Act’, plays one of the biggest roles in protecting employee rights in Australia, though certain states maintain its own state-based workplace relations system.
National Employment Standards (NES)
The Act sets out the NES, which are minimum terms and conditions for the majority of employees in Australia. This is regardless of the employee’s industry or business model. The purpose of NES is to ensure employees are treated fairly and receive their minimum employment rights.
There are 11 minimum NES entitlements:
- Maximum weekly hours
- Requests for flexible working arrangements
- Offers and requests to convert from casual to permanent employment
- Parental leave and related entitlements
- Annual leave
- Other leave (personal/carer’s, compassionate/bereavement, family and domestic violence)
- Community service leave
- Long service leave
- Public holidays
- Notice of termination and redundancy pay
- Distribution of the Fair Work Information Statement
The Act also gives all employees ‘protected’ rights. These are rights, or actions, that employees can exercise which is a protected right or action. An example of a protected workplace right is making a complaint to the Fair Work Ombudsman about their pay rate. An employer cannot take adverse action, such as termination, against an employee if they exercise these rights
There are also two legal instruments that further outline minimum employment conditions – awards and agreements.
Awards address employees in specific industries or occupations. For example, if you are a doctor, you will be covered under the ‘Health Professionals and Support Services Award’. Similarly, a retail worker will be covered under the ‘General Retail Industry Award’.
Agreements specifically apply to one business or a group of businesses. Where a workplace has a registered agreement, the award for that industry will not apply. For example, businesses such as IKEA and Kmart use an agreement to set out minimum employee entitlements.
It is important to note that the entitlement set out in a registered agreement cannot be worse off than applicable award.
Further, awards cannot also be worse off than the NES.
This means that the IKEA agreement cannot have a lower base pay rate than the General Retail Industry Award. The base pay rate in the General Retail Industry Award also cannot be lower than the NES.