Fair Work Act Booklet - The Australian Workers Union

FAIR WORK ACT
What does it mean for me?

CONTENTS
2 Glossary
3 Introduction
4 Fair Work Australia & Modern Awards
6 Safety Net & What it means for workers
8 Bargaining
9 Agreements
10 Unfair Dismissal
12 Protections
16 Key things to remember
GLOSSARY
• FWA Fair Work Act
• FWO Fair Work Ombudsman
• EBA Enterprise Bargaining Agreement
• NES National Employment Standards
• AFPC Australian Fair Pay Commission
• AWU The Australian Workers’ Union
• Good Faith Bargaining requires employers and unions to use
their best endeavours to agree to and implement an effective
bargaining process.
• Consultation Clause is a clause in an agreement stating that
an employer is required to consult employees about major
workplace changes.
• Dispute Settlement Clause is a clause in an agreement that
refers to the process by which disputes at workplaces are
brought to an end.
• Small Business Fair Dismissal Code is a code for small
businesses to follow when dismissing an employee in order to
make the dismissal fair.
• Adverse Action is action considered to be unfavourable to an
employee.

INTRODUCTION
The Fair Work Act is the new set of national industrial relations
laws which replaced WorkChoices on July 1 2009.
It is crucial that you understand the new system
and how it applies to your workplace.
What’s changed?
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Australian Workplace Agreements
(AWAs) no longer exist.
The fundamental right to bargain
collectively is protected.
Workers are given additional protections.
3 million workers are now covered
by unfair dismissal protections.
Workers have rights to make
complaints regarding employment
www.awu.net.au
3

FAIR WORK AUSTRALIA (FWA)
Fair Work Australia is a government agency that provides a range
of services for employees and employers. Fair Work Australia will
replace the responsibilities and powers of the:
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Australian Industrial Relations Commission
Australian Fair Pay Commission
Workplace Authority
The new system covers the majority of
workplaces in Australia.
Key elements of the new system are:
• a legislated safety net of 10 National
Employment Standards (NES)
• new modern awards
• revised enterprise bargaining
arrangements
• protections dealing with workplace
and industrial rights, including
protection against discrimination
and unfair dismissal
• two new organisations to regulate
the system: Fair Work Australia
and the Fair Work Ombudsman.

WHAT is an award?
An award covers particular employers and workers and sets
out minimum conditions of employment. For example, there are
awards that cover employers and workers who are fruit pickers/
packers and miners.
Under the new system all existing awards have been
modernised and consolidated updating basic conditions and
entitlements for all industries.
An award will not apply when an enterprise agreement
applies.
www.awu.net.au
5

SAFETY NET
The new safety net consists of ten National
Employment Standards (NES) and new modern
awards. NES are minimum standards.
If you have an agreement at your workplace
its conditions cannot undercut NES.
WHAT does it mean for me?
The NES cannot be traded off, its ten conditions are the
absolute minimum guarantee.
AGREEMENT/S
• are made between employers
& workers about terms and conditions of
employment. It acts independently of the Award
but does not undercut NES
• AWARD is an enforceable document containing
employment conditions. They build on the NES
and contain more extensive conditions
• NES is the absolute minimum standard terms &
conditions for an employee

WHAT are the NES Minimum Standards?
• 38 hour week & right to refuse unreasonable overtime
• 24 months parental leave
• Flexible working hours
• 4 weeks annual leave + 1 more for some shift workers
• 10 days personal/sick/carers leave
• Employees to be informed about rights when starting
employment
• 2 days compassionate/emergency leave
• Unpaid community service leave
• All national and state public holidays
• Long service leave
• Redundancy leave
•
Notice of termination & redundancy pay
www.awu.net.au
7

BARGAINING
WHAT is bargaining?
Bargaining is the process by which one or more employers
and employees negotiate a collective agreement that
covers wages and conditions of employment.
Either side may be represented in the process
by a bargaining representative.
Within 14 days of agreeing to bargain, an employer must
notify workers of their right to representation.
WHO can bargain?
A union can be the bargaining representative for workers. That is the
AWU can be your bargaining representative Employers must recognise
and bargain with the workers’ representative.
WHAT does bargaining mean for workers?
Bargaining gives workers a say in their workplace rights and conditions.
Both employers and unions must bargain in good faith. For example,
they should attend meetings and respond to requests for information.
If parties don’t bargain in good faith, parties
can apply to FWA to intervene.
If a majority of workers in a workplace want a collective
agreement, the employer must bargain with their union
and/or any other bargaining representative.
YOUR bargaining rights:
• The right to be represented by a union, the AWU
• The right to see an agreement 7 days prior to voting
• The right to vote on an agreement

AGREEMENTS
WHAT is an agreement?
It is an agreement made between employers and employees about
terms and conditions of employment.
WHAT can be in an agreement?
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Wages and wage increases
Conditions such as penalty rates, allowances, classifications and
leave
Union training leave
Paid time off to participate in union activities
Union participation in consultation and dispute settlement
Ensuring contractors cannot be used to undercut regular
employees.
IN addition all your agreements must have:
• A consultation clause - an employer is required to consult
employees about major workplace changes.
• A flexibility clause - allows changes to working conditions
in order to meet the needs of the employer and employee.
These agreements must be in writing and can be terminated
by either the employer or employee giving 4 weeks notice
• A nominal expiry date - 4 years or less
• A dispute settlement procedure allowing representation. For
example, if a group of workers are in dispute about their
overtime not being paid, they can have a union negotiate on
their behalf to resolve the dispute.
Agreements must pass the BOOT or Better Off Overall Test.
This means they must leave workers better off than the
relevant award.
www.awu.net.au
9

UNFAIR DISMISSAL
WHAT’S Unfair?
A worker has been unfairly dismissed if Fair Work Australia finds
that:
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they were dismissed
the dismissal was harsh, unjust or unreasonable, and
the dismissal was not a case of genuine redundancy.
It’s not an unfair dismissal if the employer is a small business
employer (employs fewer than 15 full time equivalent employees)
and they follow the Small Business Fair Dismissal Code.
WHERE to go for help?
If you believe you’ve been
unfairly dismissed you can
apply to FWA for assistance.
You must apply to FWA within 14
days after a dismissal takes effect,
although FWA may accept late
applications. There is an application
fee of $59.50 but this may be waived.
Contact The AWU for more
information on 1300 885 653
To make a claim you must
have completed the minimum
employment period of at least
six months (12 months if your
employer is a small business).
Billy, a green keeper,
has been working at
Atlas Golf Course for 13
months.
Atlas Golf Course
employ 25 hospitality
staff and 6 green
keepers. Two weeks
ago the manager told
Billy that they no longer
required him to work
and dismissed him.

WHAT happens next?
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FWA will check the application to see if its complete.
They will notify your employer.
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• A conciliation will be arranged to assist both sides to resolve
the matter by agreement.
• If a resolution can’t be reached a conference will be held and
if FWA find the dismissal was unfair your employer can be
ordered to either:
• reinstate you (give you back your job), or
• compensate you for up to 26 weeks pay.
Remember...your AWU organiser can work
with you through this process
Billy contacted his union,The AWU, who told him that this was
not allowed under the Fair Work Act 2009. Fortunately for him,
employers cannot unfairly dismiss anyone who has completed a
12 month minimum period of employment.
Billy was reinstated.
• This is a case study. All decisions of FWA will be based on the individual
circumstances and merits of the matter
www.awu.net.au

PROTECTIONS
The general protections provisions of the Fair Work Act 2009 (the
Act) aims to protect workplace rights and freedom of association
and provide protection from workplace discrimination.
WHAT is discrimination?
Direct discrimination occurs when someone
is treated unfairly or less favourably in the
same or similar circumstances because, for
example, of their gender or race.
Indirect discrimination occurs when there is
a rule, policy, practice or procedure that is
the same for everyone, but has an unequal
or disproportionate effect for a specific
group of people.
WHAT about Union
membership?
All employees have the right to
join or not join a union.
They must not be pressured by the
union or employer or any other person
to make a decision about joining or not joining a union.
Important! An employer cannot dismiss an
employee based on whether or not they’re a union
member or involved in union activities.
Every worker has the right to join a union

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Joan, 39 has worked at AZV for 18 months. She has been
overlooked for promotion twice in favour of men who started later
than her. She feels she has been discriminated against by her
employer because she is woman. She can now make a complaint
to FWA on the grounds of discrimination.
This is a case study. All decisions of FWA will be based on the individual
circumstances and merits of the matter
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www.awu.net.au

PROTECTIONS
WHAT is a workplace right?
A workplace right is an entitlement
under an award or agreement or a
workplace law. For example employees
are entitled to be paid for all hours
worked including meetings or training.
An employer must not take any
adverse action against an employee
because they have a workplace right,
have exercised a workplace right, or
propose to exercise a workplace right.
An employer must not take any adverse
action against a worker (or prospective
worker) because of his or her race,
colour, sex, sexual preference, age,
physical or mental disability, marital
status, family or carer’s responsibilities,
pregnancy, religion, political opinion,
national extraction or social origin.
In addition, an employer must not
dismiss a worker because he/she
is temporarily absent from work
because of illness or injury.

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Tom and Maura worked at TZM Holdings for over a
year. They suspected they were being underpaid and
approached their boss. The boss started to harass and
intimidate them before he dismissed them both.
They contacted their union, The AWU. Their union believe
this happened because they complained about their
entitlements. The manager is now being prosecuted.
The Fair Work Ombudsman claims the company has
breached the workers’ right of freedom of association.
The maximum penalty per breach is $33,000
This is a case study. All decisions of FWA will be based on
the individual circumstances and merits of the matter
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www.awu.net.au

KEY THINGS TO REMEMBER
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A worker has the right to join a union.
• The NES can’t be traded off, these are the absolute minimum guarantee.
Awards and agreements can provide better standards but not worse ones.
• Employers must recognise and bargain with your union
and any other bargaining representative.
• If a majority of workers in a workplace want a collective
agreement, the employer must bargain with their union
and/or any other bargaining representative.
• If you believe you’ve been unfairly dismissed contact
your union or the FWA for assistance.
• Workers have the right to make a complaint about their
working conditions and not be discriminated against for it.
• AWU Members have the right to be represented by their union
THE AUSTRALIAN WORKERS’ UNION
1300 885 653
www.awu.net.au
FAIR WORK OMBUDSMAN
13 13 94
www.fwo.gov.au
FAIR WORK ONLINE
13 13 94
www.fairwork.gov.au
FAIR WORK AUSTRALIA
1300 799 675
www.fwa.gov.au
UNIONS AUSTRALIA
1300 4 UNION
www.unionsaustralia.com.au
ACTU
1300 362 223
www.actu.asn.au
Authorised by Paul Howes, AWU National Secretary