In it’s entirety, the Fair Work Act is a hefty and complex legal code — and one that can be difficult for employers (especially small businesses) to interpret. So without first obtaining a law degree, how can you be sure that your businesses is complying with best practice under the Commonwealth Government’s Fair Work Act 2009?
The Fair Work system applies to all employers and employees engaged in the national workplace relations framework (which includes the majority of all Australian workers and businesses). It covers four major regulatory components: National Employment Standards, industry-specific awards, the national minimum wage, and protection from unfair dismissal.
For those who are not covered by the Fair Work framework — such as some individuals employed by state, territory or local governments — separate protective provisions apply according to jurisdiction.
- stop work if health and safety is believed to be at risk (in this case, employees are obliged to undertake alternative duties as directed by their employer that are deemed to be safe);
- choose whether or not they wish to join a union.
- They must not feel pressured by a union or by an employer to make this decision; and work without the influence of coercion — meaning, they must not feel bullied, threatened or pressured by another party to behave in a certain way (for instance, being pressured to participate in industrial action instigated by another party).
Recognising employee rights
The first step to ensuring compliance with the Fair Work Act is to recognise the rights of your employees. Construction industry employers should be aware that, in accordance with the Fair Work Act, workers reserve the right to:
A checklist for minimising risk to your business under the Fair Work Act:
The next step in minimising your risk of non-compliance is to assess your business operations under the following requirements of the Fair Work Act. If you answer ‘no’ to any of these questions, it’s worth examining your current activities in order to strengthen your Fair Work compliance:
- Are you implementing the appropriate modern awards applicable to your construction industry employees?
- Are you and your employees familiar with the National Employment Standards system?
- Are you aware of your obligations in respect to flexible work arrangements, redundancy and termination? Do employees have access to the appropriate breaks during their workday, in accordance with their award?
- Do you have a system in place for tracking employee leave entitlements?
- Do you make pay slips available to employees (which include full details regarding pay rates, any relevant superannuation and deductions, hours worked, and your ABN/contact information)?
- Are you and your employees familiar with their responsibilities under Australian Work Health and Safety laws?
- Do you keep comprehensive records on all your employees and transactions?
Further helpful construction industry checklists can also be found here, on the Latham blog.
What happens in the case of a dispute
If a workplace dispute arises for any reason not covered by General Protections, or occurs outside of the enterprise agreement bargaining process, then industrial action is considered unlawful. Workers should not participate in unprotected industrial action, and as an employer it is against the law for you to pay employees if they choose to engage in these activities — regardless of whether it is protected or unprotected.
If an employee lodges a complaint or dispute against your business, you will be obliged to grant workplace access to Fair Work Inspectors, should they be sent on behalf of the Commonwealth Fair Work Ombudsman. In some instances, Union officials may also have a right to enter building worksites.
If the Fair Work Ombudsman is alerted to a workplace dispute, don't panic - there are many factors that are considered in determining an appropriate course of action. These include: the level of public interest the case will receive, whether barriers to independent dispute resolution exist, whether or not a small business owner has limited access to a human resources expertise, any previous issues with compliance, the availability of sufficient evidence of a breach, and how long ago the matter took place (disputes should be lodged within two years).
If it’s decided that action is required, you may be required to undertake education and compliance activities, engage in a mediation process, be taken to small claims court, be put ‘on notice’ for future action if the problem arises again, or — in the worst case scenario ― be subject to an inquiry or investigation. If an investigation reveals serious instances of non-compliance, the Fair Work Ombudsman will then take a business to court. However, in most cases of breach to the Fair Work Act, a compliance notice will issued, requiring the employer to resolve the issue.
Failure to comply with the Fair Work Act can cause serious damage to your business — so it’s worth investing some time into understanding the law. If you’re looking for further clarification or advice on how the Fair Work Act applies to your business, contact the Fair Work Commission, the Fair Work Ombudsman, Fair Work Building & Construction, or consider an independent consultant such as Employerline.