Working conditions

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Working conditions

Working conditions are determined by National Employment Standards, modern awards, enterprise agreements, or an employment contract.

National Employment Standards, modern awards and enterprise agreements are part of Australia’s national workplace relations system (Fair Work System). They are the minimum working conditions set by the federal government for certain types of jobs. Not all employees will be covered by a modern award or an enterprise agreement, but nearly all employees will be covered by the National Employment Standards.

Your employment contract sets out the other conditions of your work. All employees will have a contract (even if it is not written down). The conditions in your employment contract cannot be less than the National Employment Standards or those in your modern award or enterprise agreement.

You can find out more about the National Employment Standards here.

Click on the links below for more information on:

• Fair Work System
• National Employment Standards
• Modern awards
• Employment Contracts

Fair Work System

The Fair Work System came into effect from January 2010.

The most important parts of Fair Work System for you to be aware of are the National Employment Standards (NES), modern awards and enterprise agreements.

Who is covered by the Fair Work System?

Employees covered by the Fair Work System include those:

• employed by a company (whose names usually end in Pty Ltd or Ltd);
• employed in Victoria, Northern Territory, ACT, NSW, Queensland, South Australia, and Tasmania;
• employed by the Commonwealth or a Commonwealth authority; and
• a waterside employee, maritime employee or flight crew officer employed in connection with interstate or overseas trade or commerce.

Who isn’t covered by the Fair Work System?

The following are generally NOT covered by the Fair Work System:

• most state government public sector employers and most local government employers;
• Western Australian corporations whose main activity is not trading or financial (for example, a charity that is a corporation); and
• Western Australian sole traders and partnerships.

National Employment Standards

The National Employment Standards are a set of 11 minimum employment conditions that an employee covered by the Fair Work System is entitled to.

The National Employment Standards apply to ALL full time and part time employees but only certain entitlements apply to casual employees.

The 11 National Employment Standards are:

1. Maximum weekly hours of work – 38 hours per week, plus reasonable additional hours.
2. Requests for flexible working arrangements –allows employees who meet certain requirements to request flexible work arrangements. This includes where the employee:
   • is a parent responsible for a child of school age or younger;
   • is a carer (as defined by relevant laws);
   • is 55 or older;
   • has a disability;
   • is suffering domestic violence;
   • must provide care or support to an immediate family or household member because they are experiencing domestic violence.
3. Parental leave and related entitlements – up to 12 months unpaid leave upon the birth or adoption of a child, plus a right to request an additional 12 months unpaid leave.  There are also other forms of parental leave that apply in particular circumstances.
4. Annual leave – 4 weeks paid leave per year, plus an additional week for eligible shift workers.
5. Personal / carer’s leave, compassionate leave and family and domestic violence leave – 10 days paid personal / carer’s leave for full time employees, two days unpaid carer’s leave in certain circumstances, and two days paid compassionate leave (unpaid for casuals) as required. All employees in Australia, including casuals, are entitled to 10 days paid leave for reasons relating to domestic and family violence. This is not accumulative year to year.
6. Community service leave – unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to 10 days for jury service.  
7. Long service leave – this applies to some employees who had certain long service leave entitlements before 1 January 2010.  Generally however, the majority of employees will have long service determined in accordance with the applicable State or Territory legislation or relevant industrial instrument.
8. Public holidays – a paid day off on a public holiday, except where an employee is reasonably requested to work.
9. Notice of termination and redundancy pay – for permanent employees, up to 4 weeks’ notice of termination (5 weeks if the employee is over 45 and has at least 2 years of continuous service at the time notice is given) and up to 16 weeks redundancy pay, based on length of service.
10. Provision of a Fair Work Information Statement– employers must provide this statement to all new employees. It contains information about the National Employment Standards, modern awards, agreement-making, the right to freedom of association, termination of employment, individual flexibility arrangements, rights of entry, transfer of business, and the roles of The Fair Work Commission and the Fair Work Ombudsman.
11. Casual conversion – There is now a right for casuals to become permanent employees after 12 months if they meet certain eligibility criteria.

You can check out more online here.

I’m a casual employee, what am I entitled to?

Casual employees are entitled to:

• a higher hourly pay rate than equivalent full time employees.  This is called a ‘casual loading’ and is paid because you don’t get benefits such as paid personal or annual leave.  The amount of this ‘casual loading’ is usually set by the applicable industrial instrument (ie modern award or enterprise agreement)
• two days unpaid carer’s leave and two days unpaid compassionate leave per occasion;
• maximum weekly hours;
• unpaid community service leave (except paid jury service); and
• a copy of the Fair Work Information Statement.

In addition, casual employees who have been employed for at least 12 months by an employer on a regular and systematic basis and with an expectation of ongoing employment on a regular and systematic basis are entitled to:

• make requests for flexible working arrangements; and
• unpaid parental leave.

Modern Awards

Modern awards were created with effect from 1 January 2010 to establish minimum conditions for employers and employees across Australia who work in the same industries or occupations.

Modern awards have simplified thousands of state and federal awards to create 122 awards of general application, and will cover many employees and employers in the Fair Work System.

Which modern award (or other arrangement) am I covered by?

Not all employees are covered by a modern award. Finding your modern award can be complicated – it depends on factors including your job type and duties, who your employer is and the industry in which your employer operates.

Use this link to find an Award: https://www.fairwork.gov.au/awards-and-agreements/awards/find-my-award/.

What’s in a modern award?

Modern awards can contain terms relating to:

• minimum wages, including piecework rates
• types of employment (eg. full-time, part-time, casual)
• overtime and penalty rates
• work arrangements (eg. rosters, variations to working hours)
• annualised wage or salary arrangements
• allowances (eg. travel allowances)
• leave, leave loading and rules relating to taking and payment for leave
• superannuation
• procedures for consultation about major workplace change and changes to part time rosters
• employing outworkers and the work they perform
• an industry-specific redundancy scheme.

In addition, modern awards must also have a flexibility term, which means employers and employees are able to negotiate changes to certain modern award terms to meet their individual needs.

Enterprise agreements

An enterprise agreement is a legally binding agreement which is negotiated between an employer and all, or some, of its employees.

To be valid, an enterprise agreement must be bargained between an employer and its employees (who may be represented by a union); meet the requirements of the Fair Work Act 2009 and be approved by the Fair Work Commission.

This includes that employees must be better off overall under the enterprise agreement than they would be under the modern award/s that would otherwise apply to their employment and that the terms in the enterprise agreement are consistent with the National Employment Standards.

Terms and conditions under an enterprise agreement are similar to those under modern awards and include things such as minimum wages, overtime, penalty rates, allowances and leave entitlements.

Once approved, an enterprise agreement will set minimum terms and conditions for those employees it covers until it is terminated or replaced.

Enterprise agreements have a nominal expiry date of up to four years from when they commence.

While an enterprise agreement covers your employment, it applies to the exclusion of any modern award that would have otherwise applied to you.  However, the rates of pay under an enterprise agreement cannot be less than minimum hourly rate of pay under a modern award that would have otherwise applied to you.

Where can I get further information?

For information and advice about the Fair Work System including your rights, entitlements and obligations, visit the Fair Work Ombudsman website or call the Fair Work Info line on 13 13 94.

Employment contracts

A contract of employment is made when an employer offers you a job and agrees to pay you for your work. The employment contract can be written or verbal.

A contract of employment sets out the terms and conditions for your job such as your pay, annual leave, personal leave and hours of work.

Employment contracts can be formal or informal agreements.

Your employment contract must give you working conditions that are as good as the National Employment Standards. If you are covered by a modern award, your employment contract must also give you working conditions that are as good as or better than the award.