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Fair Work Australia - Frequently Asked Questions


When will the new Fair Work Australia policy be implemented?

The new policy will be implemented in January 2010. In the time leading up to this there will be changes made to the current Work Choices plicy that will make the transition smoother and provide a better sytem in the lead up to the full roll out of the FWA policy.

Where can I find information on the current and proposed changes to the industrial relations laws?

On our links page you will find all the necessary departments available.

What Do I need To Know For January 2010 and beyond?


From 1 January 2010 there are several important changes in Australia’s workplace laws that affect all employers and employees in the national workplace relations system.

The changes include the introduction of new National Employment Standards (NES), many employers in New South Wales, Queensland, Tasmania and South Australia moving into the national system, and the commencement of modern awards.

Employers and employees need to be prepared for these changes.

National Employment Standards (NES)

The Fair Work Act provides a safety net of enforceable minimum employment terms and conditions through the National Employment Standards (NES).

The NES sets out 10 minimum workplace entitlements which apply to all employers and employees in the national workplace relations system from 1 January 2010 (however only certain entitlements apply to casual employees).

The NES replaces the non-pay rate provisions of the Australian Fair Pay and Conditions Standard (the Standard), which applies up to and including 31 December 2009.

Fair Work Information Statement

From 1 January 2010, all employers covered by the national workplace relations system have an obligation to give each new employee a Fair Work Information Statement (the Statement) before, or as soon as possible after, the employee starts employment.



Sole traders, partnerships & others moving into the national system

From 1 January 2010, sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, Queensland, South Australia and Tasmania are covered by the national system rather than their own specific state system. Employers that were already operating under the national system continue to be covered (eg. Pty Ltd businesses, employers in the ACT, NT and Victoria).

There are special transitional rules for employers in these states to help them move into the national system,including:

  • State awards that covered these employers and employees before 1 January 2010 continue to apply and are known as Division 2B State awards. They automatically terminate at the end of 31 December 2010 (except for State enterprise awards). These employers and employees are then covered by a relevant modern award.
  • State employment agreements that covered these employers and employees continue to operate until terminated or replaced and are known as Division 2B State employment agreements


However, state awards and state employment agreements operate alongside the National Employment Standards (NES). This means that, employees must receive at least the minimum entitlements in the NES (to the extent that they apply), along with any other entitlements in their state award or workplace agreement (provided that these are at least as beneficial as the corresponding NES entitlement(s)).


Modern awards

From 1 January 2010 modern awards replace existing awards in most industries.

Modern awards are industry or occupation-based enforceable minimum employment standards which apply in addition to the NES.

Modern awards cover all employers and employees who perform work in those industries or occupations covered by a particular modern award. However, modern awards may not apply to some managers or higher income employees (who have an appropriate guarantee of annual earnings of more than $108,300 annually) even if a modern award covers the industry in which they work.

Modern awards contain terms and conditions about:

  • minimum wages
  • overtime and penalty rates
  • types of employment
  • work arrangements (eg. rosters, variation to working hours)
  • hours of work
  • rest breaks
  • classifications
  • allowances
  • leave and leave loadings
  • superannuation
  • procedures for consultation, representation and dispute settlement.

Some modern awards also contain terms about redundancy.

Transition to modern awards

Modern awards were created to establish one set of minimum conditions for employers and employees across Australia who work in the same industries and occupations.

As the modern awards replace thousands of federal and state-based awards, the impact of the wages and conditions in the modern awards vary between states, industries and employers.

To lessen the financial impact of the new arrangements, modern awards may contain transitional provisions which allow increases and decreases in minimum conditions to be progressively phased in.

Modern awards may contain:

  • a model phasing schedule
  • transitional provisions specific to the modern award
  • no transitional arrangements at all.

In modern awards containing the model phasing schedule, new rates of pay will not come into force until 1 July 2010 and may be phased in over 5 annual instalments.

If there are no transitional provisions in a modern award, then the wages specified in a modern award need to be paid from 1 January 2010.


What changes can I expect as an employer or employee?

Follow this link to find current information on the new Industrial Relations reforms.

What is Fair Work Australia

Fair Work Australia (FWA) will replace the AIRC, the Workplace Authority and the Workplace Ombudsman. FWA will be a ‘one-stop-shop’ for information, assistance and advice on Workplace issues. FWA is likely to start operating on 1st July 2009.

What are the National Employment Standards?

The National Employment Standards (NES) are a new safety net introduced by the Labor Government. The NES will apply to all employees in the federal system regardless of industry, occupation or income and will come into effect on 1 January 2010. The NES provide employers with the flexibility and simplicity they need while also ensuring employees' key entitlements are protected. The NES are:

1. Maximum weekly hours of work
2. Request for flexible working arrangements
3. Parental leave and related entitlements
4. Annual leave
5. Personal/Carer's leave and compassionate leave
6. Community service leave
7. Long service leave
8. Public holidays
9. Notice of termination and redundancy pay
10. Fair Work Information Statement.

What are the Modern Awards?

The AIRC have been set the job of developing modern awards to be in effect from 1st
 January 2010. There will be 10 areas above and beyond those of the NES that the modern award will be able to cover-

  1. Minimum wages (including junior employees, employees with a disability and employees under training arrangements) and;

i. Skill-based classification and career structures; and
ii. Incentive-based payments, piece rates and bonuses.

2. Type of employment, such as full-time employment, casual employment, regular part-time employment and shift work, and the facilitation of flexible working arrangements, particularly for employees with family responsibilities.

3. Arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours.

4. Overtime rates.

5. Penalty rates, including for any of the following;
i. Employees working unsocial, irregular, or unpredictable hours;
ii. Employees working on weekends or public holidays;
iii. Shift workers.

6. Annualised wage arrangements that:
i. Have regard to the patterns of work in an occupation, industry or enterprise; and
ii. Provide an alternative to the separate payment of wages and other monetary entitlements; an
iii. Include appropriate safeguards to ensure that individual employees are not disadvantaged.

7. Allowances, including for any of the following:
i. Expenses incurred in the course of employment;
ii. Responsibilities or skills that are not taken into account in rates of pay;
iii. Disabilities associated with the performance of particular tasks or work in particular conditions or locations.

8. Leave, leave loadings and arrangements for taking leave.

9. Superannuation.

10. Procedures for consultation, representation and dispute settlement.

What are the new rules for enterprise agreements?

There is a strong emphasis on collective bargaining in this legislation. Workplace agreements will now be known as enterprise agreements. They will be required to pass the Better Off Overall Test (BOOT), which will be similar to the No-Disadvantage-Test. There is much focus on Good Faith Bargaining.
The agreements are approved by FWA.

The nominal expiry date will be 4 years maximum. An enterprise agreements begins to operate from 7 days after the agreement is approved by FWA.

What will happen to Minimum Wage Determinations?

FWA will be responsible for minimum wage determinations. The new rates are to take effect on or before July 1steach year.

What will the rules be for Transfer of Business?

There is a transfer of business (and therefore transfer of rights and obligations of enterprise agreements, certain modern awards and certain other instruments) if the following requirements are satisfied-
a) The employment of an employee of the old employer has terminated;
b) Within 3 months after the termination, the employee becomes employed by the new employer;
c) The work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
d) There is a connection between the old employer and the new employer (as defined).

There is a connection if- The new employer has beneficial use of some or all of the assets (whether tangible or intangible). The old employer outsources work to the new employer which is performed by the transferring employees. The new employer is an associated entity of the old employer. There is no time frame involved for how long the instruments transfer for.

High Income Employees

A high income employee has a guarantee of annual earnings (above a set amount defined each year starting at $100K). These employees can be exempt from the modern award rulings if agreed in writing.

What are the main changes for unfair dismissal?

Small businesses (less than 15 employees) have a 12 month qualifying time for employees before they can make an unfair dismissal claim.

Larger businesses will have a 6 month qualifying time for employees before they can make an unfair dismissal claim.
A Small Business Fair Dismissal Code has been introduced.

It has been recommended that this process be followed to avoid unfair dismissal issues. Operational reasons by itself will no longer be a reason for termination.

FWA will be responsible for dealing with unfair dismissal claims.

thanks to Haycroft for this information



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