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An introduction to Australian Employment Law

Upload Date: January 10, 2017

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Video Duration: 3:52

Category: Workforce Insights

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Andrew Stirling is a Managing Associate at Allens, specialising in Industrial and Workplace Relations. He sat down with the Tanda team to talk about Australia's Employment Law.


So my name is Andrew Stirling. I’m a Managing Associate at the law firm Allens. I specialise in employment workplace relations law. So we really do everything from contract drafting through to enterprise bargaining, through to employee disputes and employment law compliance work.

So the primary piece of legislation, that governs employment law in Australia is the Fair Work Act. It’s overseen by the Fair Work Ombudsman who’s the regulator. But also the Court systems, so the Federal Court and Fair Work Commission. I’d like to think of the employment law system in Australia as a bit of a pyramid.

So to get in the door of the employment law system, you need to be an employee. So you need to have an employment contract. Once you’re in the door, the National Employment Standards apply to you so that’s really the minimum benchmark terms and conditions of employment, that apply to all private sector employees in Australia.

Many employees have an additional level of regulation of their terms and conditions of employment. So Modern Awards will apply to a large majority of Australians, providing an additional level of terms and conditions and regulation of their employment. And then other employers and group of employees will have Enterprise Agreements, which they bargain for
with each other. If you have an Enterprise Agreement that applies to your employment then the Modern Award won’t apply.

In terms of compliance burden, I would describe the Modern Award system as being the greatest burden, because the Modern Awards are quite opaque, they’re difficult to interpret. Because they are essentially a one size fits all instrument, what works for one company won’t work for another, even though they all have to comply with that as the minimum standard.

Enterprise Agreements because you have the opportunity to bargain for them, you really ought to be able to comply with them once you have agreed them. The National Employment Standards (NES), they really are bare minimum terms and conditions so they shouldn’t be too hard. There are some interesting regulations. So in terms of payslips and time recording and other things in the Fair Work regulations, there is also an additional compliance burden, and there are also not an obvious compliance burden because they’re not the focus of the regulation.

Primarily the Fair Work Ombudsman will regard the employer as being responsible for compliance with the Fair Work laws. So, rates of pay being correct, provisioning for leave being correct, those sort of things. But increasingly what we’re seeing the Fair Work Ombudsman do, is take a broader view of responsibility. There are accessory liability provisions in the Fair Work Act that the Fair Work Ombudsman has started to enforce more broadly.

So for example there was recently a case where a principal was found responsible for underpayments of its contractor to its employees. So the supply chain, the level of responsibility in the supply chain is becoming an important part of the Fair Work Ombudsman is pursuing. Increasingly what we’re seeing the Fair Work Ombudsman do, is look higher up the supply chain to ensure employees right at the bottom of the supply chain, are being paid appropriately.