National Employment Standards

The Fair Work Act, through the national employment standards (NES) provides a safety net of enforceable minimum employment terms and conditions. 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 which applied up to and including 31 December 2009.  

All the employers under the national workplace relations system have a responsibility of giving every new employee a Fair Work Information Statement immediately before or after the employee starts employment as from first January 2010.

Sole traders, unincorporated entities, non-trading corporations and partnerships in New South Wales, South Australia, Queensland and Tasmania were covered by the national system instead of their own particular state system. Employers that were already operating under the national system Pty Ltd businesses and employers in the ACT continued to be covered. There are unique transitional rules for employers in these states that help them to move into the national system. On the other hand, state awards and state employment agreements work alongside the NES. This implies that employees ought to receive not less than the minimum entitlements in the NES, alongside with any other entitlements in their state award or workplace agreement (Marginson 1993, 57).

Modern awards substituted the existing awards in various industries as from the first of January 2010. They are also industry or occupation-based lowest employment values that pertain besides NES. The modern awards apply to all employers and employees who execute work in the industries or occupations covered by a specific modern award.  Modern awards may not apply to some managers or highly paid employees although a modern award covers the industry in which they work. The terms and conditions contained in the modern awards cover up the following issues: minimum wages, types of employment, overtime, a number of working hours, allowances and penalty rates among others. Terms about redundancy are also covered in the modern awards.

Modern awards were formed to set up one set of minimum working conditions for employees and employers across Australia who works in the similar industries and professions.  Due to the modern awards substituted a majority of federal and state-based awards, salaries and working conditions in the modern awards also varied between states, industries and employers.

Modern awards may contain flexible provisions which allow increases and decreases in least conditions to be progressively phased in so as to minimize the financial effect of the new arrangements.The following may also be contained in the modern awards: transitional provisions particular to the modern award, a model phasing schedule and no transitional agreements at all.

The modern awards having the model phasing schedule, new rates of pay come into force in the first of July 2010 and were phased in over 5 yearly installments. If transitional provisions lacked in a modern award, then the wages specified in a modern award needed to be paid as from the first of January 2010.

The minimum pay and working conditions of an employee according to workplace relations: The workplace relations guides the employer to find out the least pay and conditions to be provided to employees. They also help the employer to know whether the employer is covered by the national or state system and by a modern award or an agreement.

Since the first of January 2010, a number of significant changes in Australia’s workplace laws that affect all employers and employees in the national workplace relations system have taken place. These affect the minimum pay and conditions for the employees. Some of the issues discussed include (FWO 2010: par. 1):

An employee’s minimum wage was set at $14.31 per hour. There is also a basic rate of pay from a pay scale that is meant particularly for the employee's job. In short the employee has the right to be paid not less than the set amount even if it's higher than the minimum salary. If the employee and employer have an industrial agreement, it also includes pay rates that have to be paid for. 

The employer is supposed to pay the accurate rate of pay for all the hours the employees are at work, this comprises of the hours spent in meetings related to work and training. Employees also have a right to other allowances or loadings depending on the kind of job they do i.e. a casual loading is entitled to casuals. Employers are also supposed to pay employees on a regular basis and give out a pay slip within one day before the day of pay (Khosla, Howlett, & Jain, 2005, 78).

Full-time and part-time employees are normally entitled to a paid personal leave, parental leave, annual leave, community service leave and other related leaves according to the national employment standards (NES). Casual employees are entitled to unpaid personal leave, compassionate leave and community service leave but they are not entitled to paid personal leave or annual leave (VAEM 2001: par. 3; Keeves 2003, 89).

According to NES, agreement and award free employees are not required to work at most for 38 hours per week. Employers can also request employees to work for a sensible extra hours.

The national workplace relations laws give most employees the right not to work on public holidays. The employer can request the employee to work on a public holiday, but the employer may not honor the request if there are sensible reasons for doing so.

Under the national workplace relations system, the least standards exist to guarantee one to get some basic entitlements such as leave, maximum work hours and public holiday protections. From the first of January 2010, the National Employment Standards (NES) replaced the non-pay rate provisions of the Australian Fair Pay and Conditions Standard. The national employment standards include some new minimum entitlements, as well as the right to request flexible working arrangements and the right for new employees to receive a Fair Work Information Statement (Barcan 1993, 56; Cieri 2007, 34).

Genuine contract or sham contract?

Sham contracting is the effort of trying to disguise an employment relationship as an independent contracting relationship. Employers mostly do this to keep away from giving an employee their appropriate entitlements, such as minimum rates of pay and leave entitlements (FWO 2010: par. 1; Allen Consulting Group 2007, 73). 

The Fair Work Ombudsman (FWO) has powers to investigate sham contract complaints. The Australian Building and Construction Commissioner (ABCC) has the same powers for issues in the building industry. The FWO and ABCC cannot investigate complaints from independent contractors concerning to a breach of their contract i.e. if they haven't been paid according to the terms of the contract. A contractor in this position is able to take a court action in order to seek legal advice (FWO 2010: par. 2; Aldrich 1990: 46).

Australia is commonly known as a global leader in the field of international education and English language training among others. The education system of Australia is structured such that every state government manages the school system within their locality, implying that each state provides funds and directives for their schools. Every state has both the private and private schools. The Australian Government is very much committed to establish a standardized workplace relations system for the private sector and it also continues to work with the states and territories to realize this. Australia’s workplace relations system, Fair Work, officially came into effect for employers and employees across Australia on the first of July the year 2009. Fair Work Australia has the power to give different awards, decide on the minimum wage orders, endorse agreements, decide on unfair dismissal claims and create orders on matters such as good faith bargaining and industrial action. This helps employees and employers to resolve disputes at the workplace. The Office of the Fair Work Ombudsman promotes productive, harmonious and cooperative relations in workplaces. The workplace relations system is aimed at balancing the needs of employees, employers and unions in order to ensure that Australia is competitive and prosperous, without taking away workplace rights and basic conditions.

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