FAQs
What is the role of the Fair Work Commission?
The Fair Work Commission is Australia's national workplace relations tribunal. It is the independent body responsible for:
- Setting wage rates.
- Creating and changing modern awards.
- Approving enterprise agreements.
- Resolving disputes including unfair dismissal claims.
What is the purpose of the National Employment Standards?
The National Employment Standards form part of a safety net that serves to provide fair, relevant and enforceable minimum entitlements for all employees. These can include:
- Maximum weekly hours.
- Casual employment.
- Annual leave, parental leave, personal/carer's leave and related entitlements.
- Domestic violence leave.
- Long service leave.
- Superannuation contributions.
- Public holidays.
- Notice of termination and redundancy pay.
What are modern awards and how do they work?
A Modern Award is a legal document that outlines minimum pay rates and conditions of employment for employers and employees in a specific industry or a specific occupation. Modern Awards are created by the Fair Work Commission (FWC). Minimum pay rates, hours of work, overtime, allowances, rosters and breaks are some of the inclusions in a modern award. While a modern award covers a specific industry, an enterprise agreement covers a specific business or businesses. If an enterprise agreement applies to an employee, the modern award does not apply.
What is the role of Fair Work Ombudsman?
The Fair Work Ombudsman is an agency of the Australian Government that serves to provide advice and information in relation to the federal workplace relations system.
The Fair Work Ombudsman promotes and monitors compliance with workplace laws. The office of the FWO can take action against businesses that breach any aspect of the Fair Work Act 2009. The FWO can also assist business owners and employees to resolve issues.
What is the difference between the Fair Work Ombudsman and the Fair Work Commission?
While they sound similar the Fair Work Ombudsman (FWO) and the Fair Work Commission (FWC) are two separate government organisations with different roles.
The Fair Work Ombudsman is responsible for:
- Investigating workplace complaints.
- Conducting audits to ensure compliance.
- Enforcing the Fair Work Act 2009.
The Fair Work Commission is responsible for:
- Setting minimum wage rates.
- Creating and changing modern awards.
- Approving enterprise agreements.
- Resolving disputes including unfair dismissal claims.
What does the Fair Work Act do?
The Fair Work Act 2009 is the legislation that regulates the federal workplace relations system. It sets out the terms and conditions of employment, the rights and responsibilities of employees, employers and employee organisations in relation to that employment.
Why was the Fair Work Act 2009 introduced?
The Fair Work Act 2009 was introduced to govern Australia's workplace relations system and legislate for the entitlements available to Australian workers. The legislation aims to provide protections of minimum entitlements, enable flexible work arrangements and fairness at work.
What are employer responsibilities under the Fair Work Act 2009?
All Australian employers are required to meet their obligations within the Fair Work Act 2009. The responsibilities include, but are not limited, to:
- Abiding by the minimum entitlements contained within the National Employment Standards and any applicable modern award.
- Paying the appropriate wage and entitlements.
- Keeping appropriate and accurate records (as prescribed within the Fair Work Regulations).
- Not taking (or proposing to take) action against employees for prohibited reasons.
Employers must also respect employees' right to disconnect from work after hours, ensure a safe work environment, including protection against workplace bullying and harassment, and protect against workplace discrimination.
What’s the difference between workplace misconduct and serious misconduct?
This typically involves behaviour that is inappropriate and/or violates company policies but is not severe enough to justify termination of employment. As a small business owner or manager, you can issue a written warning about the unacceptable behaviour. You must be clear about the reason for the warning, establish clear behavioural change expectations, be fair and reasonable, and clearly outline the consequences, including the possibility of employment termination, if unacceptable behaviour continues.
Misconduct can include:
- Breaches of company policies or procedures but not considered severe.
- Inappropriate language or behaviour towards colleagues.
- Constant lateness
- Failure to perform employment duties to the expected standard.
- Minor breaches of health and safety regulations.
Serious misconduct:
If an employee engages in serious misconduct, you may have reasonable grounds to dismiss them without notice or pay in lieu of notice after first implementing a disciplinary process.
Serious misconduct is the same as gross misconduct and can include:
- Illegal drug or alcohol use at work.
- Theft or fraud.
- Purposeful destruction company property.
- Sexual harassment/assault.
- Physical assault and verbal threats of harm to colleagues or managers.
If you intend to dismiss an employee for serious misconduct, it’s critical you follow a fair process. You should seek legal advice from an employment law specialist before proceeding with termination.
What are the different leave entitlements?
Full-time and part-time employees are entitled to four weeks of annual leave every 12 months worked. This leave begins accumulating from their first day of employment. Casual employees are not entitled to annual leave.
In addition to annual leave and public holidays, full-time and part-time employees are entitled to:
- Sick and carer's leave – 10 paid days per year for full-time employees
- Parental leave
- Compassionate and bereavement leave
- Family and domestic violence leave – 10 paid days per year for all employees including part-time and casual employees.
- Community service leave
- Long service leave – eligibility varies by state and territory on how long an employee must work for the same employer to get long service leave (e.g. 7 years or 10 years)
If an employee is made redundant or their employment is terminated, annual leave must be paid as if they had taken the leave. This includes any entitlement to annual leave loading outlined in a modern award or enterprise agreement.
For advice on annual leave entitlements specific to your business as an employer, contact Peninsula today.
What can you complain about to the Fair Work Ombudsman?
In addition to enforcing compliance with workplace laws, the Fair Work Ombudsman is responsible for investigating complaints that can be made by employees and employers.
These can include:
- Unpaid entitlements such as superannuation, annual, long service, or other leave.
- Wage theft or deliberate underpayments.
- Bullying, harassment or workplace discrimination.
- Refusing to provide payslips.
- Sham contracting.
- Inaccurate record-keeping.
Peninsula can provide advice on pay rates, leave entitlements, modern awards and enterprise agreements.
What can you complain about to the Fair Work Commission?
The Fair Work Commission (FWC) is Australia’s national workplace relations tribunal. Some complaints to the FWC include:
- Workplace bullying, discrimination, and sexual harassment.
- Unfair terminations, general protections and redundancy
- Wages and entitlements.
- The terms in an award, enterprise agreement, order or guideline.
- Fixed term or unfair contracts.
Knowing your obligations as an employer can reduce the possibility of an employee lodging a formal complaint against you and your business.
What are the 4 basic workplace rights?
The Fair Work Act 2009 protects certain rights of every employee in Australia, including:
1. The right to fair pay and conditions
Employees are entitled to a minimum wage, penalty rates, allowances, and overtime, as set by modern awards or enterprise agreements. They must also receive a copy of the Fair Work Information Statement upon hiring and receive correct pay slips.
Employees are also entitled to various types of leave including:
- Annual and long service leave
- Parental, personal/carer’s leave and compassionate leave
- Public holidays
- Community service leave
2. Right to request flexible work/leave
Employees have the right to request flexible working arrangements (e.g., changing hours) and to take paid or unpaid leave (such as annual leave, personal/carer's leave, and compassionate leave) as per the NES entitlements.
3. Safe workplace environment (WHS)
As an employer it’s essential to have safe work processes and procedures in place to minimise risks and hazards. Regularly evaluate the safety of your workplace and provide safe operational machinery, tools and instruction on safely handling chemicals, solvents or cleaning products.
You must have a response and reporting plan in place in the event of an incident.
4. Freedom from discrimination and harassment.
It is unlawful to take negative action against an employee or potential employee due to their:
- Race or colour
- Age, sex, sexual orientation, gender identity or intersex status
- Physical or mental disability
- Marital status
- Family or carer’s responsibilities
- Pregnancy or breastfeeding
- Religion
- Political opinion
- Experiencing (or having experienced) family and domestic violence.
What is misconduct under the Fair Work Act?
There are various types of workplace misconduct. Some misconduct may result in a warning or disciplinary action. Other misconduct (sometimes referred to as Gross Misconduct) may result in employment termination.
Under the Fair Work Act, serious misconduct can be when an employee:
Behaves in a way that is deliberate and inconsistent with the continuation of their employment contract. It could also cause serious and imminent risk to the health and safety of another person, to the reputation, or profits of their employer's business.
Examples of serious misconduct can include:
- Purposeful damage to company property and vandalism:
- Fraud and dishonest conduct to profit or gain an advantage
- Theft of company property
- Intentional disregard for the safety of themselves and others including the misuse of company equipment or machinery.
- Consuming drugs and alcohol, either before or during work hours that may impair an employee’s capability to complete their duties.
- Assault or sexual harassment, verbally or physically abusing staff or customers, stalking or predatory behaviour.
If an employee commits serious misconduct, you may have reasonable grounds for termination. To minimise the risk of an unfair dismissal claim, you must follow a fair disciplinary process.
