Fair Work System
This page contains legal information on the Fair Work system established under the Fair Work Act 2009 ('FW Act'). It provides information about how the Fair Work system operates and who it applies to and contains links to further fact sheets on the rights and obligations it imposes.
What is the Fair Work system and does it apply to me or my organisation?
The Fair Work system is the national system of workplace laws that establishes minimum terms and conditions of employment, sets out the rights of workers and the industrial relations obligations of most employers.
The Fair Work system applies to most Not for Profit (NFP) organisations and their employees in all states and territories with the exception of Western Australia. In Western Australia the Fair Work system only applies where the NFP is a constitutional corporation. See below more information on Western Australian NFPs and their employees.
The Fair Work system comprises the Fair Work Act 2009 (Cth) (FW Act) and other federal 'Fair Work' legislation and regulations.
Other employment-related matters such as occupational health and safety, long service leave and equal opportunity obligations are largely regulated by the States and Territories (although federal legislation can also apply) and are not covered by the Fair Work system.
More information on other laws is available on the PilchConnect overview page on employment law.
Other relevant information is available on PilchConnect's pages on:
NFPs who employ or contract with individuals should also ensure they comply with obligations to pay the superannuation guarantee surcharge, and have in place worker's compensation insurance.
Issues to consider under the Fair Work system - PilchConnect fact sheets
An employment contract is the basis of the terms of an employment relationship. However, these terms are subject to:
- certain minimum standards set out by the National Employment Standards; and
- any applicable modern award or enterprise agreement under the FW Act.
Further information on the National Employment Standards, modern awards and enterprise agreements is set out below.
National Employment Standards (NES)
The NES sets out 10 minimum employment standards that apply to all employees under the Fair Work system. They include minimum entitlements for leave, public holidays, notice of termination and redundancy pay. All employers must comply with the NES.
Modern awards and enterprise agreements
Modern awards set out minimum employment entitlements for employees depending on their industry or occupation. The entitlements in awards apply on top of the minimum conditions in the NES. Employers must identify which modern awards apply to their employees, and ensure they comply with these modern awards.
Enterprise agreements sit above modern awards, and are created through negotiation between an employer and employees collectively - usually though a union. Not all employees will have an enterprise agreement in place with their employer. Enterprise agreements cannot exclude the minimum conditions in the NES. The following fact sheet explains modern awards and enterprise agreements.
General protections for employees and contractors
The Fair Work system has rights called ‘general protections' that cover all employees that the system applies to. These rights are protected and employers and employees should be aware of their details. The following fact sheet sets out more information on general protections.
Unions in the workplace
The Fair Work system regulates what unions can do in the workplace. All employees and independent contractors are free to join or not join a union. In certain situations unions can enter the workplace and access records. The following fact sheet sets out more information about unions.
Western Australia and the Fair Work system
The Fair Work legislation will only cover NFPs and their employees in Western Australia if the NFP is a 'constitutional corporation'.
A constitutional corporation is a body which is incorporated under a federal or state Act (e.g. has ‘Pty Ltd' in its name, including incorporated associations and statutory authorities), and which conducts trading or financial activities as a significant part of their business. Trading or financial activities can include selling goods or services (such as merchandise), or fundraising.
A foreign corporation, meaning a body incorporated outside of Australia, is also a constitutional corporation.
If you are unsure of whether your organisation is a constitutional corporation, legal advice should be sought. The Fair Work Ombudsman may be able to assist Western Australian NFPs to work out whether they are a constitutional corporation.
If a Western Australian NFP is not a constitutional corporation, they will be covered by the Western Australian industrial relations system. Information about the Western Australian industrial relations system is available from the WA Department of Commerce.
Government WA, Department of Commerce