Posts: Fair Work Act

A number of amendments were made to the Fair Work Act 2009 (Cth) which commenced on 26 August 2024. A brief summary of the changes are set out here for those who may have missed them.

Amendments to the Fair Work Act 2009 (Cth) (FW Act) introduced by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth), required modern awards to include a term that provides for the exercise of the rights of workplace delegates. Amendments to the Fair Work Act 2009 (Cth) introduced by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth), required modern awards to include a term that provides for the exercise of the rights of workplace delegates.

One of the effects of the amendments to the Fair Work Act 2009 (Cth) (FW Act) which came into effect on 6 June 2023 is that employers now have greater obligations when responding to requests for flexible working arrangements made under s 65 of the FW Act.

On 22 June 2023, the Federal Government passed the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth). The Amendment Act introduces a number of changes to the Fair Work Act 2009 (Cth) aimed at protecting worker entitlements, promoting gender equality and delivering reforms to improve fairness in the workplace relations system.

Following the Federal Government’s recent passage of the Fair Work Amendment (Secure Jobs, Better Pay) Bill 2022, it is essential that employers are informed and prepared about the changes due to be made to the Fair Work Act 2009 (Cth), many of which will be in place before the end of the year.

One of the key elements of a procedurally fair disciplinary process is for the employee in question to be notified of the seriousness of the process (including the potential disciplinary penalties) and to be provided with an opportunity to respond to any allegations before a decision as to disciplinary action has been made.

Under the Fair Work Act 2009 (Cth), the Federal Circuit and Family Court of Australia (Division 2) is able to determine certain underpayment disputes as “small claims proceedings”.

When starting a new job, employees and HR are often inundated with administration and paperwork which must be prepared or completed. There are certain documents which must be provided to new employees and their importance should not be overlooked.

Access to the unfair dismissal jurisdiction under the Fair Work Act 2009 (Cth) is on the basis that the employee is “dismissed” from the employment. A jurisdictional objectional can be raised if the employee has not been actually dismissed by the employer.

In most cases of redundancy, employers have an obligation to consult with affected employees about the proposed redundancy and consider whether or not anything can be done to mitigate or minimise the impact on the employee, such as redeployment or obtaining other acceptable employment for the employee.

The Fair Work Ombudsman (FWO) regularly engages in enforcement action for contraventions of the Fair Work Act 2009 (Cth) (FW Act). Such enforcement action includes issuing infringement and compliance notices, entering into enforceable undertakings or commencing litigation against companies and others involved in contraventions.

The general protections provisions of the Fair Work Act 2009 (Cth) (FW Act) are wide-ranging in the sense that they provide protections to, and prohibit adverse action by, persons and entities beyond an employee and an employer.

In March 2021, the casual employment amendments to the Fair Work Act 2009 (Cth) (FW Act) introduced a new statutory definition of “casual employee” and an entitlement to casual conversion as one of the National Employment Standards (NES).

The general protections provisions under the Fair Work Act 2009 (Cth) (FW Act) provide protections against adverse action which is taken for a prohibited reason. Prohibited reasons for taking adverse action include situations where a person has a workplace right and exercises (or proposes to exercise) that right. Workplace rights include the right to utilise leave entitlements under the FW Act.

The Fair Work Act 2009 (Cth) (FW Act) requires that employers comply with a number of procedural elements in a disciplinary process prior to making a decision about whether an employee’s conduct or behaviour warrants disciplinary action.

Under the general protections provisions in the Fair Work Act 2009 (Cth) (FW Act), it is unlawful for a person to take adverse action against another person for a proscribed reason. One of the features of the general protections provisions under the FW Act is the presumption that adverse action was taken for a proscribed reason unless it is proven that the adverse action was not taken for that reason.

There is a common misconception that probationary periods allow an employer to dismiss an employee for any reason (or for no reason at all) prior to the confirmation of their employment. This is not necessarily the case and, in fact, there is no statutory basis that entitles an employer and an employee to a probationary period.

No profession loves hard copies of records more than lawyers – but it is often human resources who have the most to do with record keeping, particularly in relation to retaining employee records.

An employer’s past job advertisements, which stated a preference for “Asian staff”, have been used by the Fair Work Commission (FWC) to support its finding that an employee was dismissed because she was not of Chinese descent.