FAQs

A dismissal occurs when an employer terminates the employment of his or her employee. This is often referred to as 'firing' someone. It is not a dismissal if the employee leaves his or her job voluntarily - this is called a 'resignation'.

These terms are not defined within the Fair Work Act. However, the Act does set out the factors which can be considered by Fair Work Australia to determine whether a dismissal falls into this category. These factors are as follows:

• Was there was a valid reason for the dismissal which relates to the employee's ability to do the job or their behaviour?
• Was the employee advised of this reason?
• Was the employee was given a chance to respond to the reason given?
• Was there an unreasonable refusal by the employer to allow the employee to have a support person present to assist him or her in any relevant discussions?
• If the employee was fired because of poor performance, was he or she warned that their performance was unsatisfactory?
• Does the size of the business impact on the procedure the employer is able to follow in order to dismiss an employee?
• Does the absence of a dedicated human resources specialist, or equivalent expertise, impact the types of procedures followed in dismissals?

A person is considered to have been 'unfairly dismissed' when the national industrial relations regulator, Fair Work Australia, is satisfied that:

• The employee has been dismissed
• The dismissal was harsh, unjust or unreasonable
• The dismissal was not a case of genuine redundancy
• The dismissal was inconsistent with the 'Small Business Fair Dismissal Code' (where applicable).

A redundancy occurs when an employee is dismissed because the job he or she is doing is no longer required to be done by anyone. For example, if an employer buys a machine that performs a job previously done by an employee, that employee's job may be 'made redundant'. A redundancy will only be 'genuine' when it is not possible for the employer to 'redeploy' - or reassign, the employee to another job in the business or it is unreasonable for the employer to redeploy his or he employee in the circumstances. If an employee is made 'genuinely redundant', the dismissal will not be considered unfair.

Not every employee is entitled to make an application for unfair dismissal if he or she is dismissed. To be eligible, the employee must:

• Have worked for the employer for the 'minimum employment period', and
• Be covered by an award, agreement or be earning less than the 'high income threshold'

The minimum employment period is the amount of time a person must have worked for his or her employer before being dismissed to be eligible to lodge an application for unfair dismissal. The period varies depending on whether the employee was employed by a 'small business'.

The minimum employment periods are as follows:

• Employed by a 'small business' = 12 months
• Employed by any other business = 6 months

The minimum employment period is based on continuous service - that is, the amount of time an employee has worked for the employer without interruption. If a person is employed as a casual, their period of employment will count as long as the hours they worked were relatively stable and they expected their casual employment to continue.

Although unauthorised absences and most periods of unpaid leave will not count towards the period of service, they do not break an employee's continuity of service. So, if an employee takes a month of unauthorised leave, that time won't count towards determining whether the employee has met the minimum employment period, but it also won't stop any period of employment served after he or she returns to work from being counted in determining the period of service.

If ownership of a business changes, the new employer can choose not to recognise the service performed by employees for the previous owner in determining length of service, but the new employer must tell the employees about this in writing before the new period of employment starts.

The Fair Work Act currently defines a 'small business' as being any business that employs fewer than 15 full-time equivalent employees. You should note that this is not a simple headcount of your existing employees. Instead, you must perform a careful calculation which includes the contribution of your long term casual and part-time employees, as well as any other employees who may have joined or left your employment in the four week period immediately before the dismissal.

The Fair Work for Small Business Portal includes a handy calculator guide to assist you in determining whether or not your business will be considered a 'small business' by Fair Work Australia.

An 'award' is a document which sets out the minimum employment conditions which apply to a particular industry or occupation. From 1 January 2010, most existing awards will be placed by new 'Modern Awards' which are currently being prepared by the Australian Industrial Relations Commission.

An 'agreement' is a document negotiated between an employer and his or her employees which sets out the conditions of employment within their workplace. These are often referred to as 'Collective Agreements' or 'Enterprise Agreements'. These agreements build on relevant awards and any other minimum employment conditions set out in the legislation.

The 'High Income Threshold' refers to the annual amount that a person may earn in one year before he or she becomes ineligible to lodge a claim for unfair dismissal. At present, the high income threshold is set at $108300 and this amount will be indexed annually. The high income threshold calculation includes superannuation. Employees above the high income threshold can have a agreement according to Common Law, often called a Common Law agreement.

The Small Business Fair Dismissal Code is a new feature of the national industrial relations system and applies only to small businesses (see the definition of 'small business' above). The Code sets out the steps a small business employer should follow when dismissing an employee. If the employer carefully follows this Code and ensured the dismissal is consistent with it, then Fair Work Australia will automatically consider the dismissal to be 'fair'. If the small business employer does not follow the Code, the dismissal claim made by the employee will be treated like any other claim. The Code still allows an employee to be fired without notice if there is serious misconduct, such as theft or violence. Use of the Code is voluntary but is strongly recommended.

No. Under the previous legislation - WorkChoices - small businesses were exempt from the unfair dismissal laws, but this is no longer the case under the new Fair Work. As of 1 July 2009, there is no longer any automatic exemption for small businesses and all employees are protected from unfair dismissal, regardless of whether the business is large or small, providing the other eligibility criteria discussed above have been met.

Unfair dismissal applications must be lodged with Fair Work Australia within 14 days of the dismissal talking effect. However, Fair Work Australia has the discretion to accept late applications in exception circumstances. Employers may object to Fair Work Australia considering an application which is made after the 14 deadline has passed. Applicants must pay an administration fee when they lodge their application.

Once an application has been received, Fair Work Australia will check:

• Whether the application was made before the deadline
• Whether the employee is protected by unfair dismissal legislation
• Whether the dismissal was consistent with the Small Business Unfair Dismissal Code (where applicable), and
• Whether the dismissal was a genuine redundancy.

After looking at these factors, Fair Work Australia may decide to investigate the merits of the claim or decide that the application will not be considered further.

If the facts of the claim are in dispute - that is, the employer and employee cannot agree on what actually happened in relation to the dismissal - Fair Work Australia will convene either a conference or a hearing. A conference is Fair Work Australia's preferred option because these are informal and private, whereas hearings are more formal and must generally be held in public.

Yes, you may be represented by a person connected with an organisation, employer association or peak council which generally represents employers in your industry or position. You may also be represented by a lawyer or other paid agent but only if you have received prior permission from Fair Work Australia which in most circumstances is unlikely.

The issue of costs - that is, all the legal fees associated with the unfair dismissal application - is quite complex. Fair Work Australia can provide you with detailed information about how costs applications can be made and when they are likely to be awarded by Fair Work Australia.

Yes, but only in very limited circumstances. Fair Work Australia will only allow you to appeal a decision made in relation to an unfair dismissal application where doing so is in the 'public interest'. This is a high threshold and, in practice, it is unlikely that you will be granted an appeal so it's critical that you are prepared for a single meeting.

If a dismissal is found to be unfair, Fair Work Australia may order the employer to:

• Reinstate the employee - that is, rehire the employee into the position he or she held before the dismissal or to another position which provides terms and conditions of employment at least as good as those of the person's old job, or
• Pay the employee compensation. Fair Work Australia must take into account all the circumstances of the case when determining how much compensation should be paid. The precise factors which must be considered are set out in the Fair Work Act. No compensation will be awarded for shock, distress or humiliation.

The maximum amount of compensation that can be awarded is the lesser of:

• Half the high income threshold, which would currently equal $54 150, or
• The equivalent 26 weeks' pay.

The Fair Work Act is Commonwealth legislation which began operation on 1 July 2009. This Act replaces the Workplace Relations Act - often called WorkChoices - and establishes a new national industrial relations system. Although most parts of the Fair Work Act commenced operating on 1 July, some important parts - such as those relating to Modern Awards and the 10 new National Employment Standards - will not take effect until 1 January 2010.

The Fair Work Act is binding on all 'national system employers'. The vast majority of businesses operating in Australia are 'national system employers', including all incorporated entities, such as Proprietary Limited (Pty Ltd) companies that are financial or trading - that is, actually in business - as well as all businesses operating in the N.T., the A.C.T and Victoria.

If your business operates in Queensland, NSW, SA, WA or Tasmania, and you are still unsure whether or not you are a national system employer, you should call the Fair Work Ombudsman on 13 13 94 for further advice as soon as possible. If you're not a national system employer, your industrial relations obligations will be determined by separate laws in your own state and the Fair Work Ombudsman can point you in the right direction.

The 'bridging period' is a term used to describe the period of time between the initial commencement of the Fair Work Act (1 July 2009) and the commencement of the new National Employment Standards and Modern Award System (1 January 2010). During this period a number of special rules apply, but these are technical in nature and should not unduly concern you as a small business employer.

The 10 National Employment Standards are the new minimum standards which form the basis of the 'safety net' for employees. These new Standards will commence operation on 1 January 2010 and replace the current 'Fair Pay and Conditions Standard'. The ten Standards are as follows:

1. Maximum Weekly Hours

The maximum number of 'ordinary hours' that an employee may work in any given week is set at a maximum of 38. An employee may still be required or requested to work 'reasonable additional hours', however, the employee can refuse to work these hours if they are 'unreasonable'. To determine whether additional hours are reasonable or not, the following factors must be considered:

• Any risk to employee health and safety from working the additional hours
• The employee's personal circumstances
• The needs of the business in which the employee works
• The amount of advance notice the employee was given
• The amount of notice the employee provided of his or her intention to refuse the request to work the extra hours
• Whether the employee would be entitled to overtime rates or other compensation for working the extra hours
• The normal patterns of work in that industry, and
• The specific nature of the employee's role and level of responsibility
• In determining the 'ordinary hours' of work for one of your employees you will also need to refer to any award or agreement which applies as these may set out different requirements. Lastly, this Standard also allows for the 'averaging of hours' worked over a period of 26 weeks to account for any significant fluctuations in the hours an employee works from week to week.

2. Requests for Flexible Working Arrangements

This Standard allows eligible employees to ask for flexible working arrangements. To be eligible, the employee must have 12 months of continuous service and be responsible for the care of a child under school age or a disabled child under 18. Such requests may only be refused by the employer on 'reasonable business grounds.'

3. Parental Leave and Related Entitlements

This Standard allows eligible employees to request up to 24 months unpaid leave in relation to the birth or adoption of a child. To be eligible, the employee must have 12 months of continuous service.

4. Annual Leave

The minimum, paid annual leave entitlement is set at 4 weeks per year of service. Agreements and awards may also permit the 'cashing out' of annual leave entitlements.

5. Personal/Carer's Leave and Compassionate Leave

All employees - except casuals - are entitled to a minimum of 10 paid personal/carer's leave days per year. Employees are also entitled to two days of unpaid personal/carer's leave and two days of paid compassionate leave per occasion. Agreements and awards may also permit the 'cashing out' of these leave entitlements.

6. Community Service Leave

This Standard provides that employees are entitled to take up to 10 days of paid leave per year to perform jury service and unlimited, unpaid leave to perform emergency management activities.

7. Long Service Leave

The Commonwealth Government is working with state government to establish a uniform national long service leave entitlement. Until this is completed, existing entitlements will continue to apply.

8. Public Holidays

This Standard confirms that all employees are entitled to 8 paid public holidays per year for the following occasions:

• New Year's Day
• Australia Day
• Good Friday
• Easter Monday
• ANZAC Day
• Queen's Birthday
• Christmas Day
• Boxing Day

Public holidays proclaimed by a state or territory government - such as Melbourne Cup Day in Victoria or the nation's various Show Days - are in addition to these entitlements.

9. Notice of Termination and Redundancy Pay

This Standard requires that employees be advised of their dismissal in writing and, if made redundant, be provided with redundancy payments based on years of service. You should note that the redundancy pay entitlement does not apply where the employer is a small business. Awards and agreements may also set out more generous entitlements than those contained in the Standard so be sure to check if any of these apply to your employees.

10. Fair Work Information Statement

All employees must be given a copy of the Commonwealth Government's Fair Work Information Statement by their employer prior to commencing employment or as soon as practicable after they begin work.

Modern Awards will replace most existing awards when they commence operation on 1 January 2010. These new awards will be tailored to the needs of specific industries and will build on the National Employment Standards. Modern Awards may include an additional 10 minimum conditions of employment relating to:

• Minimum wages
• Types of employment - that is, casual, part-time etc
• Arrangements relating to when work is performed
• Overtime and penalty rates
• Annualised wages or salary arrangements
• Allowances
• Leave related matters
• Superannuation
• Consultation procedures, and
• Dispute settlement and representation

Modern awards will also include a 'flexibility clause' which will assist employers and employees to agree to new arrangements which meet their specific needs. All Modern Awards will be reviewed every 4 years.

Modern Awards will apply to most industries and occupations which have been traditionally covered by awards. However, a person with guaranteed earnings more than the 'high income threshold', which is current set at $108 300 per year, is free to agree to their own pay and conditions without reference to modern awards. The undertaking given by the employer in respect of the guaranteed level of income must be in writing and must be accepted by the employee. You should take action now to find out whether your business will be covered by a Modern Award as you may need to take action before 1 January 2010 to meet new legal obligations.

The new Modern Awards system should not result in any employee taking home less pay than he or she took home before the award was introduced. If it does, and the employee is performing the same (or comparable) job and working under the same working conditions (e.g. particular span of hours), then the employee - or their trade union or other representative - may apply to Fair Work Australia for a 'Take-Home Pay Order' which will restore their take home pay to the pre-award level.

The Fair Work Act has significantly changed the rules which govern unfair dismissals. Small business employers should note that the previous small business exemption from unfair dismissal legislation has been abolished by the Fair Work Act. In addition, the Fair Work Act has introduced a new 'Small Business Unfair Dismissal Code' which should be followed by all small business employers when they dismiss an employee.

For detailed information about the changes which have been made to unfair dismissal laws, please review the dedicated 'Unfair Dismissal FAQ' document, which is available for immediate download on the Fair Work for Small Business Portal.

The Fair Work Act sets out an entirely new framework for Collective Bargaining at the workplace level and new rules now apply to what can - and cannot - be included in a new Enterprise Agreement. In addition, all parties may now be represented by 'bargaining agents' and all negotiations must take place in 'good faith'.

For detailed information about the changes which have been made to the Collective Bargaining framework, please review the dedicated 'Collective Bargaining FAQ' document, which is available for immediate download on the Fair Work for Small Business Portal.

Special rules apply to those awards and agreements made before the introduction of the Fair Work Act on 1 July 2009 and which are still operating. You should contact the Fair Work Ombudsman on 13 13 94 for more information if any of these awards or agreements apply to your small business.

It is important to remember that the new National Employment Standards will commence on 1 January 2010 and will apply to all employees regardless of whether they are covered by a separate Enterprise Agreements. This means you may need to change the terms or conditions of your employees from 1 January 2010 if their current entitlements are less generous than those set out in the new Standards.

The Fair Work Act sets out a number of specific 'protections' for employees. These protections relate to:

Workplace rights, such as the right to participate in meetings and file complaints. It is illegal for an employer to take 'adverse action' against an employee because they choose to exercise any of their workplace rights. Adverse action is a broad concept that includes demoting or firing an employee or refusing to employ someone who has applied for a job because he or she intends to exercise a workplace right.

Discrimination on the basis of personal attributes such as age, gender or nationality, and

Sham Contracting - that is, when an employer attempts to disguise a traditional employer/employee relationship as a contracting arrangement so as to avoid paying superannuation and other entitlements.

Industrial action can take many forms including strikes, 'go-slows' or 'stop work meetings'. Under the Fair Work Act, employees may still take 'protected' action - that is, action which is permitted under the Fair Work Act and which relates to a proposed Enterprise Agreement. Industrial action can only take place if the following requirements have been met:

• The bargaining representatives are genuinely trying to reach an agreement
• The bargaining representatives have not contravened (broken) any orders which have been made by Fair Work Australia in relation to the agreement
• Proper notice has been given of the industrial action which will take place
• Action has not been organised or commenced before the nominal expiry date of the agreement, and
• Fair Work Australia has not issued a suspension o termination order in relation to the action and no 'serious breach declaration' applies.

Action taken by employees in support of their claims must:

• Be authorised by a majority of employees via a protected action ballot - that is, a vote by employees
• Be taken within 30 days of the announcement of the ballot results or within a further period of 30 days where this is approved by Fair Work Australia
• Occur only after the employer has been given 3 days' notice
• Not be in support of pattern bargaining (that is, using gains at one workplace as the basis for claims at another workplace) or unlawful matters.

You should note that if an employee refuses to work because of any reasonable concerns he or she may have about their immediate health and safety, the refusal will not be classed as industrial action.

No. In fact, it is illegal to pay employees when they are taking most forms of industrial action.  Where there is a partial withdrawal of labour - such as a partial work ban or restriction - the employer can choose whether to pay the employees or not for the work they do perform.

Yes. Fair Work Australia has the power to suspend or terminate protected action either before it commences or after it has begun. Fair Work Australia will look at all the circumstances surrounding the industrial action when deciding whether to suspend or terminate the action.

Yes, the Fair Work Act allows properly authorised union officials to enter your workplace during normal business hours. They may only enter to either:

1. Hold discussions with your employees during lunch or other rest breaks, or
2. To investigate a suspected breach of the Fair Work Act, or an award or agreement.

If the union official is entering to investigate a suspected breach:

• The official must have a reasonable suspicion that the breach is occurring, and
• The breach must relate to a member of that official's union who is employed at that workplace, and
• The union official's union must be entitled to represent that employee.

Union official must:

• provide 24 hours notice of their intention to visit,
• show their permit on arrival
• only enter during normal business hours, and
• comply with all reasonable requests in relation to health and safety and the location of discussions with employees.

Strict rules govern the behaviour of union officials when they enter workplaces and the use of information obtained by union officials during the course of their visit. Heavy penalties apply for breaching these rules: up to $6600 for the official and $33000 for his or her union.

Yes. Under the Act, a change in ownership is usually considered to be a 'transfer of business'. When a transfer takes place, an agreement or award that applied to employees before the transfer will, in most cases, still continue to apply after the transfer is complete. This ensures employees continue to receive the same entitlements. The rules relating to transfers of business are quite technical so if you are unsure you should seek specialist advice when buying or selling a business.

Fair Work Australia is the nation's new industrial relations regulator and tribunal. It commenced initial operation on 1 July 2009 and replaces the Australian Industrial Relations Commission (AIRC). On 1 January 2010 Fair Work Australia will oversee both the new Modern Award system and the 10 new National Employment Standards.

Fair Work Australia has been established to provide independent and impartial help to both employers and employees. The powers granted to Fair Work Australia are wider than those which were granted to its predecessor, the AIRC, and include powers to:

• Vary awards
• Make minimum wage orders - which will establish the minimum wage for employees paid in accordance with new modern awards
• Assess new enterprise agreements against the 'Better Off Overall Test' (from 1 January 2009) and approve these agreements where appropriate
• Hear and decide applications related to unfair dismissals
• Deal with any issues relating to the general workplace protections set out in the Fair Work Act or any issues relating to unlawful terminations
• Make 'orders' - or rulings - in relation to 'good faith bargaining' and industrial action, such as strikes and go-slows
• Vary or modify awards and agreements that apply to a business which is being bought or sold
• Help employers and employees to resolve work-related disputes
• Deal with any issues related to the right of trade union officials to enter workplaces
• Oversee the operation of the National Employment Standards when these commence on 1 January 2010.

In addition to the Australian Industrial Commission, Fair Work Australia also replaces the following bodies:

• The Australian Industrial Registry (from 1 January 2010)
• The Australian Fair Pay Commission and Secretariat (from 31 July 2009)
• Some functions exercised by the Workplace Authority (from 31 January 2010)

As a small business employer you are likely to have direct contact with Fair Work Australia in a number of circumstances, including the following:

a) Making new enterprise agreements. Small businesses are able to make Enterprise Agreements with their employees. These will usually be in the form of Single-Enterprise Agreements which cover a single employer and a group of employees. Fair Work Australia is responsible for reviewing all new Enterprise Agreements and approving these when they meet all of the necessary requirements. A new Enterprise Agreement cannot take effect until it has been approved by Fair Work Australia. Disputes relating to new Enterprise Agreements, including those relating to the 'good faith bargaining' requirements will also be dealt with by Fair Work Australia.

For more information about the new Collective Bargaining process, please review the dedicated FAQ document available for immediate download on the Fair Work for Small Business Portal.

b) Varying and Terminating Agreements. You will need to contact Fair Work Australia if you already have an Enterprise Agreement in place which needs to be varied or terminated for any reason. Only Fair Work Australia has the power to vary and terminate agreements which have been previously approved and are already in operation.

c) Industrial Action. Fair Work Australia has responsibility for authorising 'protected' industrial action - that is, action which is legal - and ensuring disputes which have led to industrial action are resolved as quickly and fairly as possible. Fair Work Australia will also oversee the 'Protected Action Ballot' process to ensure industrial action is supported by a majority of employees. Additionally, Fair Work Australia can also order that action already underway must stop at a particular time and may also order that planned action be postponed or cancelled.

d) Right of Entry. Right of entry refers to the right of properly authorised trade union officials to enter your workplace for the purposes of either investigating a suspected breach of the law, an award or Enterprise Agreement, or in order to hold discussions with your employees during their scheduled rest breaks. Fair Work Australia will only issue an entry permit to a trade union official if it is satisfied he or she is a fit and proper person to hold such a permit. Any disputes relating to right of entry should be referred immediately to Fair Work Australia.

e) Transfer of Business. Fair Work Australia also plays an important role when a business changes hands. Any existing awards or agreements that apply to the employees in that workplace will usually continue to apply even after the sale, but Fair Work Australia has the power to order that an existing award or agreement no longer apply following the sale, or that it should be modified to take into account the specific needs of the new employer's business.

f) Dismissals. This is another area where you are very likely to have contact with Fair Work Australia. Any claim by an employee that he or she was unfairly dismissed (dismissed - or fired - in circumstances which are harsh, unjust or unreasonable) must be lodged by the employee with Fair Work Australia within 14 days of the dismissal taking effect, although exceptions may be granted in exceptional circumstances. Once an application has been received, Fair Work Australia will check that the employee is eligible to make an application relating to unfair dismissal and that the application was received in time.

If Fair Work Australia accepts the application it will then arrange for a conference or hearing so that the employer and employee can explain their views. As a general rule, employers will be expected to represent themselves and will usually be asked to attend the Fair Work Australia's nearest office. Fair Work Australia has the power to decide an outcome and, if the dismissal is unfair, it may order the employer to rehire the employee or pay them compensation.

For more information about unfair dismissals, please review the dedicated FAQ document available for immediate download on the Fair Work for Small Business Portal.

g) General Protections. These are a series of specific employee protections set out in the Fair Work Act, and include such things as the right to join - or not join - a trade union and the right not be discriminated against on the basis of personal attributes such as age, gender and sexual orientation. Fair Work Australia has responsibility for enforcing the general protections and ensuring employees who exercise any of the rights included in the general protection are not subject to 'adverse action' - such as demotion or dismissal - by their employer.

Fair Work Australia can be reached in a number of convenient ways:

Online: www.fwa.gov.au This website includes a 'live help' function where you can chat with an employee from Fair Work Australia in real time

Email: you may send your questions to inquiries@fwa.gov.au

Telephone: call the Fair Work Australia Help Line on 1300 799 675

Post: send mail to Fair Work Australia, GPO Box 1994, Melbourne, Victoria, 3001

Visit: the Fair Work Australia office in your capital city. Addresses can be found on the Fair Work Australia website at www.fwa.gov.au

The Fair Work Ombudsman replaced the Workplace Ombudsman on 1 July 2009. It has also taken over responsibility for some of the advisory functions previously exercised by the Workplace Authority, including operation of the national Fair Work Infoline.

The Fair Work Ombudsman is responsible for exercising a number of functions in the new Fair Work system:

• Promoting harmonious, productive and cooperative workplace relations
• Promoting and monitoring compliance with the new Fair Work Act 2009
• Providing education and assistance to employers, employees, outworkers (that is, those employed in workplaces not traditionally considered workplaces), as well as outworker entities and other organisations
• Investigating breaches of the Fair Work Act and related 'instruments', such as Modern Awards, Enterprise Agreements and the National Employment Standards.
• Commencing court or Fair Work Australia proceedings when necessary, and
• Providing representation to employees and outworkers when they are involved in a matter before Fair Work Australia and such representation considered appropriate.

Fair Work Inspectors are government officials who are appointed by the Fair Work Ombudsman to provide assistance to employers, employees and related organisations (such as trade unions) to ensure they are able to comply with their obligations under the Fair Work laws. These inspectors can be identified by the identity card which they must carry with them at all times when performing their duties. Inspectors are responsible for:

• Undertaking education campaigns
• Conducting audits to ensure businesses and others are complying with the laws
• Investigating complaints made in relation to a workplace
• Investigating suspected breaches of the national industrial relations laws, and
• Taking steps to enforce the law in the courts when necessary.

Fair Work Inspectors have been granted powers to enable them to perform their work. All Inspectors have the power to:

• Enter your workplace to investigate a suspected breach
• Inspect work, processes or objects and interview any person in your workplace
• Inspect, copy and/or keep any record or document found in your workplace
• Take samples of goods or substances kept in your workplace
• Be accompanied by an assistant during his or her visits - for example, the Inspector may bring along a translator, forensic accountant or an IT specialist, where necessary
• Require people to provide their name, address and, if there is a suspicion that the information provided is false, proof that the details provided are correct, and
• Give written notice to a person requiring them to produce certain records or other documents

Yes. There are a number of things an Inspector is not authorised to do. An Inspector must not:

• Enter a residential premises or property, unless the Inspector reasonably believes work is being carried out there
• Enter a workplace by force
• Inspect documents for any other purpose other than to ensure compliance or fulfil another purpose which is permitted by law.

Yes. Fair Work Inspectors are specifically empowered to address claims of discrimination. They are able to handle complaints, provide information and undertake targeted compliance and educational activities.

A Compliance Notice is a document issued by a Fair Work Inspector when he or she becomes aware that a person's behaviour has breached a term in any of the following:

• A National Employment Standard (from 1 January 2010)
• A Modern Award (from 1 January 2010)
• An Enterprise Agreement
• A Workplace Determination
• A National Minimum Wage Order, or
• An Equal Remuneration Order

The Compliance Notice requires the person to whom it is issued to take steps to correct the effects of their breach within a specified period of time. Any person who receives a Compliance Notice may ask for it to be reviewed by an appropriate court if he or she believes the breach did not occur or the notice does not contain enough information to enable to him or her correct the effects of the breach.

The Fair Work Infoline is a national telephone information service provided by the Fair Work Ombudsman. The Infoline provides advice and assistance to employers, employees and other related organisations in relation to:

• Rights and entitlements under the new, national Fair Work system
• Workplace Inspections and the complaints process
• The anti-discrimination provisions of the Fair Work Act 2009, and
• Referrals to other agencies for specific assistance

The Fair Work Ombudsman can be reached in a number of convenient ways:

Online: www.fairwork.gov.au

Telephone: Fair Work Infoline 13 13 94 (available Monday - Friday 8am-6pm)

Translation and Interpretation Service: 13 14 50

National Relay Service:

TTY: 13 36 77 (Ask for the Fair Work Infoline on 13 13 94)

Speak and Listen: 1300 555 727 (Ask for the Fair Work Infoline on 13 13 94

Fair Work Australia is the nation's new industrial relations regulator. It commenced operation on 1 July 2009 and has replaced the Australian Industrial Relations Commission (AIRC). Fair Work Australia has broader powers than those which were granted to the AIRC, including the ability to hear and decide disputes and issue orders requiring employers and employees to comply with the Fair Work Act, Modern Awards, Enterprise Agreements and the National Employment Standards. If you belong to an employer association, you should approach it first if you require further assistance. Alternatively, you can call the Fair Work Australia Help Line on 1300 799 675.

You can find out more information about Fair Work Australia in the dedicated FAQ document which can be viewed on the Fair Work for Small Business Portal.

The general advisory functions of the Workplace Authority have now been transferred to a new body called the Fair Work Ombudsman. All general enquiries relating to your responsibilities as an employer may be directed to the Fair Work Infoline on 13 13 94.

The Fair Work Act sets out a number of 'general protections' for employees. These protections relate to:

• Workplace rights, such as the right to participate in meetings and file complaints. It is illegal for an employer to take 'adverse action' against an employee because they choose to exercise any of their workplace rights. Adverse action is a broad concept that includes demoting or firing an employee or refusing to employ someone who has applied for a job because he or she intends to exercise a workplace right.
• Discrimination on the basis of personal attributes such as age, gender or nationality, and
• Sham Contracting - that is, when an employer attempts to disguise a traditional employer/employee relationship as a contracting arrangement so as to avoid paying superannuation, WorkCover and other entitlements.

Fair Work Australia has responsibility for enforcing the general protections and ensuring employees who exercise any of the rights included in the general protection are not subject to 'adverse action' - such as demotion or dismissal - by their employer. You must ensure you comply with all the general protections set out in the Act.

Yes. The Fair Work Act has changed many of the rules relating to Enterprise Agreement making and compliance with the new rules is essential. You should note the following:

• Bargaining which began before 1 July but which was not finished by that date must start again and is subject to the new Fair Work laws
• If you 'made' an Enterprise Agreement before 1 July 2009 but did not lodge it for approval before that date, you will only have until 1 October 2009 to lodge this with the Workplace Authority.
• Agreements finalised between now and December 31 2009 will be assessed by Fair Work Australia against the 'No Disadvantage Test'. From 1 January 2010, the new 'Better Off Overall Test' will apply.
• Existing Enterprise Agreements will remain valid until their expiry. However, the 10 new National Employment Standards will commence operation from 1 January 2010 and, where the National Employment Standards are more generous than those set out in an existing Enterprise Agreement, the National Employment Standards will apply. You should check these carefully to ensure you are complying with the Standards.

Under the new system, employees are entitled to be represented by a 'bargaining representative' during the negotiation of a new Enterprise Agreement. This person may be a union official or any other eligible person appointed by the employee. You are required to negotiate with bargaining representatives in 'good faith'. Additionally, if two or more unions disagree about which is entitled to represent an employee, Fair Work Australia may intervene.

Yes, but only until 31 December 2009. The only form of individual agreement you may currently make is known as an 'Individual Transitional Employment Agreement'. Australian Workplace Agreements - or 'AWAs' - can no longer be made. From 1 January 2010 you will no longer be able to make new individual agreements with your employees.

Yes. The Fair Work Act has introduced a number of important changes to the rules relating to industrial action. You should note the following:

• Industrial action must still be endorsed by a majority of employees via a secret ballot. Results of secret ballots held before 1 July 2009 are no longer valid. New secret ballots must be held in relation to industrial action which is planned by employees.

Employers must allow 'Protected Action Ballot Agents' (usually officers from the Australian Electoral Commission - or 'AEC') access to the workplace in order to provide information to employees about the ballot and to prepare for, or conduct, the protected action ballot. The Commonwealth Government will pay any costs related to an AEC agent. In all other cases, the person applying for the ballot is responsible for any costs incurred for holding that ballot.

For a secret ballot to be valid, at least 50% of those eligible to vote must cast a vote. For industrial action to be approved more than 50% of the valid votes cast must support the proposed industrial action.

You may still 'stand-down' an employee without pay in these circumstances:

• Industrial action is being taken by the employee
• Machinery has broken down and you could not be reasonably held responsible for the breakdown
• Work must stop for other reasons for which you cannot be reasonably held responsible.

Yes, provided the official holds a valid 'right of entry' permit and has provided 24 hours' notice of the planned entry. The union official may only enter to investigate a suspected breach of the Fair Work Act or another 'industrial instrument' - such as an award or agreement - or for the purpose of conducting discussions with employees during their rest breaks. The official must comply with your reasonable requests in relation to health and safety and the location of any discussions held with your employees.

Yes. It is absolutely essential that you continue to keep accurate, up-to-date time and wages records for all your employees. Your records must detail:

• basic employment details, such as nature of employment (part-time, casual etc) and the employee's commencement date
• rates of pay
• overtime hours worked
• averaging arrangements - that is, any arrangement made between you and the employee to 'average' the hours the employee works over a period of time to  take into account significant fluctuations from week to week
• leave entitlements
• superannuation contributions made
• termination of employment details (where applicable)
• details of any individual flexibility arrangements which have been made and any guarantees of annual earnings, and
• an employee's ABN (only from 1 January 2010 and only if the employee has one)

You must also continue to provide your employees with access to their employment records.

Yes, but to comply with the Fair Work Act the redundancy must be 'genuine'. This means that the work the employee was performing is no longer required to be performed by anyone and that it is impossible for you to redeploy (i.e. reassign) the employee or that any redeployment would be unreasonable in the circumstances. The Fair Work Act sets out minimum notice periods you must provide to employees and you will also need to pay the applicable rate of redundancy pay set out on the National Employment Standards - once these commence operation on 1 January 2010 - if you employ more than 15 employees. If you fail to comply with your obligations the employee may be able to lodge an application for unfair dismissal with Fair Work Australia.

An unfair dismissal occurs when an employee is dismissed - i.e. fired - and the dismissal is:

• Harsh, unjust or unreasonable
• Not a genuine redundancy
• Inconsistent with the Small Business Unfair Dismissal Code (where the Code applies).

The rules relating to unfair dismissals have changed significantly. Previously, small businesses were exempt from unfair dismissal laws, meaning employees dismissed by a small business employer (defined under the old law as an employer with fewer than 100 employees) were not eligible to lodge an application for unfair dismissal. This exemption has been removed by the Fair Work Act. Where the employer has fewer than '15 full-time equivalent' employees, a dismissed employee will need to have worked for the employer for at least 12 months before he or she is eligible to make an application for unfair dismissal. For all other employees, the minimum length of service required is 6 months. You should also note the following important changes:

• Applications relating to unfair dismissal need to be made by the employee to Fair Work Australia within 14 days of the dismissal, although Fair Work Australia may accept late applications in exceptional circumstances.
• Small business employers should use the Small Business Fair Dismissal Code every time they dismiss an employee. If the Code is carefully followed, Fair Work Australia will consider the dismissal to be 'fair' and the matter will be closed. This could save the business thousands of dollars in fees and subsequent penalties.
• If Fair Work Australia finds that a dismissal is unfair, it may order the employer to rehire the employee or pay the employee compensation of any amount capped at the lesser of 26 weeks' pay or $54,150.

You can find out more information about unfair dismissals in the dedicated FAQ document available for immediate download on the Fair Work for Small Business Portal.

New rules relating to the 'transfer' of businesses commenced on 1 July 2009. Most importantly, when a business now changes hands any existing award or agreement covering an employee prior to the transfer will continue to apply even after the change in ownership. This is to ensure that existing employees continue to enjoy the benefits of their approved award or agreement even if the employer sells the business to someone else. For more information and advice about the new rules - and the new definition of a 'transfer' of business - please contact the Fair Work Infoline on 13 13 94.

Modern Awards will replace most existing awards when they commence operation on 1 January 2010. These new awards will be tailored to the needs of specific industries and occupations and will build on the National Employment Standards. Modern Awards may include an additional 10 minimum conditions of employment relating to:

• Minimum wages
• Types of employment - that is, casual, part-time etc
• Arrangements relating to when work is performed
• Overtime and penalty rates
• Annualised wages or salary arrangements
• Allowances
• Leave related matters
• Superannuation
• Consultation procedures, and
• Dispute settlement and representation

Modern awards will also include a 'flexibility clause' which will assist employers and employees to agree to new arrangements which meet their specific needs. All Modern Awards will be reviewed every 4 years.

Modern Awards will apply to most industries and occupations which have been traditionally covered by awards. However, they will not apply to any person earning more than the 'high income threshold', which is current set at $108,300 per year. You should take action now to find out whether your business will be covered by a Modern Award as you may need to take action before 1 January 2010 to meet new legal obligations.

The 10 National Employment Standards are the new legislated minimum standards which form the basis of the 'safety net' for employees. These new Standards will commence operation on 1 January 2010 and replace the current 'Fair Pay and Conditions Standard'. The 10 Standards are as follows:

• Ordinary Hours set at a maximum of 38 per week
• Employees given the right to request flexible working in certain circumstances
• Most employees to be eligible to apply for up to 24 months of unpaid leave in relation to the birth or adoption of a child
• Most employees to be entitled to a minimum of 4 weeks annual leave per year. Shift workers to be entitled to 5 weeks per year.
• Most employees become eligible for personal/carer's leave and compassionate leave
• Most employees become eligible for up to 10 paid community service leave days per year
• New, uniform Long Service Leave entitlements to be agreed by all state and territory governments
• Certain public holidays to be guaranteed
• New termination and redundancy pay and notice entitlements to apply to most employees
• A Fair Work Information Statement to be provided to all employees

Fair Work Australia is now responsible for setting the national minimum wage, A specialist 'Minimum Wage Panel' will review both the national minimum wage and the rates of pay contained within modern awards once every financial year. A number of factors will be taken into account when the national minimum wage and award rates are reviewed and the final figures will be released as soon as the review is complete. It is your responsibility to ensure you adjust pay rates in line with any increases announced by Fair Work Australia.

Collective Bargaining is the term used to describe the process where employers, employees and their bargaining representatives, if required, negotiate the contents of an Enterprise Agreement.

An Enterprise Agreement is the name given to the document setting out the terms and conditions of employment at a particular workplace which has been negotiated between employers, employees and their bargaining representatives via the Collective Bargaining process.

No. The Fair Work Act allows for three different types of Enterprise Agreements to be made:

• Single-Enterprise Agreements. These types of agreements cover a single employer and a group of employees. Additionally, if a number of employers are working closely together - such as managers of different franchises within the same chain - they may apply to Fair work Australia to join together as 'single-interest employers' and all be covered by the same single-enterprise agreement. Single-Enterprise Agreements are the most common type of agreement within the new Fair Work system.
• Multi-Enterprise Agreements. These are agreements which cover two or more separate employers (who have decided voluntarily to be joined under one agreement) and their combined employees, regardless of their location.
• Greenfields Agreements. These are the rarest form of agreement and can only be made in relation to a genuinely new workplace before any employees have been hired by the employer. Greenfields agreements must be made between the employer(s) and union(s) that are entitled to represent the majority of the employees who will be covered by the agreement.

The Fair Work Act sets limits on the matters which may be included within a new Enterprise Agreement. Those matters which can be included are referred to as 'permitted matters' and include:

• matters relating to the relationship between the employer, his or her employees and any organisation which represents those employees - such as a trade union
• deductions from wages matters relating to the actual operation of the Enterprise Agreement

Employees may only take industrial action - such as striking - in support of permitted matters. Additionally, if an Enterprise Agreement contains matters which are not permitted it will still be valid, but those sections containing non-permitted matters will have no effect and are unenforceable.

Yes. The Fair Work Act sets out a number of provisions which must be included in an Enterprise Agreement. These are:

• A Flexibility Term. This term allows the employer and employee to agree to 'individual flexibility arrangements' in order to better meet the genuine needs of both parties. The Flexibility Term must clearly set out which other terms of the Agreement can be varied by an individual flexibility arrangement. If a draft agreement lodged for approval with Fair Work Australia does not contain a Flexibility Term - or if the Term has been unsatisfactorily drafted - the 'Model Flexibility Term' will be taken to be a term of the agreement.
• A Consultation Term. New Agreements must contain a term requiring the employer to consult with his or her employees in relation to any major changes within the workplace which are likely to have a significant effect on those employees. The Term must also allow employees to be represented during any such consultations. As with the Flexibility Term, if a draft agreement lodged for approval with Fair Work Australia does not contain a Consultation Term - or if the Term has been unsatisfactorily drafted - the 'Model Consultation Term' will be taken to be a term of the agreement.
• Dispute Resolution Term. This term sets out the procedures which must be followed if any dispute arises in relation to matters included within the agreement or any matters related to the 10 National Employment Standards. This term must allow for an independent body - such as Fair Work Australia - to deal with the dispute, and must also allow parties to be represented. Unlike the Flexibility Term and the Consultation Term, Fair Work Australia will not approve an agreement that does not include a Dispute Resolution Term. A 'Model Term for Dealing with Disputes' is available, but this must be expressly included by the parties in the draft agreement - it cannot be 'read into' the agreement later.

Yes. The Fair Work Act requires that Enterprise Agreements must not contain any 'unlawful terms'. A term will be considered unlawful if is:

• discriminatory - that is, it discriminates against someone on the basis of a personal attribute such as age, gender or religion. Some exceptions - such as those relating to a 'genuine occupational requirement'- are allowed.
• objectionable - that is, the term breaches one of the 'general protections' set out on the Fair Work Act or the term allows for the collection of a 'bargaining services fee' by a trade union.
• inconsistent with those provisions of the Fair Work Act which deal with unfair dismissals, right of entry by trade union officials and industrial action.
• would result in an exercise of State or Territory occupational health and safety rights in a way that is inconsistent with the right of entry provisions.

Agreements which contain unlawful terms will not be approved by Fair Work Australia and cannot, therefore, become binding on any party.

Under the Fair Work Act, all parties involved in the negotiation of an Enterprise Agreement are entitled to be represented by a bargaining representative. Almost anyone can be appointed as a bargaining representative and there is no limit on the total number of representatives able to take part in a negotiation. Where an employee belongs to a trade union, their union representative will be their default bargaining representative unless the employee appoints another person in writing. Employees may also appoint themselves to be their own bargaining agent. Employers are required to take all reasonable steps to notify each employee of their right to be represented during bargaining.

The Fair Work Act requires that all parties taking part in Enterprise Bargaining negotiations must do so in good faith.  The Act sets out what actions are required in order to fulfil this requirement:

• attend, and participate in, meetings at reasonable times;
• disclose relevant information (other than confidential or commercially sensitive information) in a timely manner;
• respond to proposals made by other bargaining representatives for the agreement in a timely manner;
• give genuine consideration to the proposals of other bargaining representatives for the agreement, and give reasons for the bargaining representative's responses to those proposals;
• recognise and bargain with the other bargaining representatives for the agreement; and
• refrain from capricious or unfair conduct that undermines freedom of association (i.e. the right to join - or not to join - a trade union) or collective bargaining.

A bargaining representative may apply to Fair Work Australia for a 'Bargaining Order' if he or she believes that the good faith bargaining requirements are not being met. The party making the application should have previously advised the other party, or parties, of their concerns before submitting the application and the application will only be considered if bargaining has officially commenced.

If issued, the Order will specify what actions must be taken by the relevant party to comply with the good faith bargaining requirements. If a party does not comply with a Bargaining Order - and the breach is serious and sustained - a bargaining representative may apply to Fair Work Australia for a 'Serious Breach Declaration'. If this is issued, the parties will have 21 days from the date of the Declaration to reach an agreement and, if they are unable to do this, Fair Work Australia must make a workplace determination which will finalise the agreement without further negotiations.

Fair Work Australia is not able to make an order requiring:

• particular content to be included or not included in a proposed agreement;
• an employer to request that employees approve a proposed agreement; or
• an employee to approve, or not approve, a proposed agreement.

You may only refuse to bargain with your employees if the bargaining request is supported by a minority of your staff. If a person representing one or more of your employees believes that a majority of your staff support the making of an Enterprise Agreement, that representative can apply to Fair Work Australia for a 'Majority Support Determination.' If Fair Work Australia issues this Determination, you will be required to commence bargaining in good faith. If you continue to refuse to bargain, the employee bargaining representatives may seek a Bargaining Order which will require you to commence bargaining.

If an employee bargaining representative believes that a proposed Enterprise Agreement will not cover the most appropriate group of employees, he or she may apply to Fair Work Australia for a Scoping Order. If issued, this Order will specify the employer(s) and employees that must be covered by the proposed enterprise agreement. A representative may only make an application for a Scoping Order where the representative has previously advised the other bargaining representatives of his or her concerns and those other persons have failed to respond within a reasonable period of time. Fair Work Australia may only grant a scope order where:

• the applicant bargaining representative has met the good faith bargaining requirements;
• the order will promote the fair and efficient conduct of bargaining;
• the group of employees to be covered by the agreement that is the subject of the scope order was fairly chosen; and
• it is reasonable in all the circumstances to make the order.

Yes. A majority of your employees must cast a vote approving the agreement. You are required to take all reasonable steps to give your employees access to a copy of the proposed agreement - and related documentation - during the 7 days immediately prior to the vote taking place. You are also required to take reasonable steps to notify employees of the time and place of the vote as well as the voting method that will be used.

Yes. A new agreement cannot take effect until it has been approved by Fair Work Australia. Fair Work Australia will only approve an agreement if it is lodged for approval within 14 days of being made and the application is accompanied by:

• declarations completed by each employer and each employee organisation which was a bargaining representative for the agreement
• an original of the written agreement signed by the bargaining representatives to the agreement
• three copies of the agreement; and
• sufficient additional copies to enable a copy to be provided to each bargaining representative in the event of approval by Fair Work Australia.

Furthermore, Fair Work Australia will only approve a correctly submitted agreement if:

• the agreement is genuinely agreed to by the employees
• in the case of a multi-enterprise agreement, each employer genuinely agreed to the agreement and that no person coerced, or threatened to coerce, any of the employers to make the agreement;
• the terms of the agreement do not contravene the National Employment Standards (from 1 January 2010);
• the agreement passes the better off overall test (from 1 January 2010);
• the group of employees covered by the agreement was fairly chosen;
• the agreement does not contain any unlawful terms;
• the agreement contains a nominal expiry date of not more than four years from the day on which Fair Work Australia approves the agreement;
• the agreement contains a dispute settlement term
• approving the agreement would not undermine good faith bargaining if a scope order is in operation in relation to the agreement;
• if a multi-enterprise agreement was not approved by the employees of all the employers who asked their employees to vote on the agreement, the agreement has been varied to cover only the employers (and their employees) whose employees approved the agreement; and
• the agreement meets the approval requirements dealing with shiftworkers, pieceworkers, outworkers, or school‑based apprentices and school‑based trainees.

If Fair Work Australia has a concern that the agreement does not meet the approval requirements, it may accept an undertaking from an employer (or employers) to address that concern and Fair Work Australia may then approve the agreement. The undertaking, once accepted, is taken to be a term of the agreement and is enforceable against the relevant party or parties.

Yes. A process similar to that used to make a new agreement must be followed and employees who are covered by the agreement must vote in support of the variation.

Yes. Only when the termination is supported by employees and has been approved by Fair Work Australia. If a party makes an application for the termination of an agreement, Fair Work Australia must terminate the agreement if it is satisfied that doing so is not contrary to the public interest and it considers it appropriate, taking into account the views of the employees, each employer, and each employee organisation covered by the agreement, as well as their circumstances, and the likely effect the termination will have on each of them.

Yes. A new 'Low-Paid Bargaining Stream' has been introduced to encourage low-paid employees to bargain with their employer for their first Enterprise Agreement. The term 'low-paid' is not defined and it will be up to Fair Work Australia to decide whether an applicant is eligible to be included within this stream.  Parties can negotiate within the Low-Paid Bargaining Stream only after Fair Work Australia has issued a 'Low-Paid Bargaining Order'. Importantly, this order allows parties to negotiate towards a Multi-Enterprise Agreement only. When deciding whether to issue this Order, Fair Work Australia must take into consideration:

• historical and current matters relating to collective bargaining, including the history of bargaining in that particular  industry;
• the relative bargaining strength of the employers and employees; and
• the current terms and conditions of employment, in comparison to the relevant industry and community standards.

In these circumstances, a bargaining representative may apply to Fair Work Australia for a 'Low Paid Bargaining Determination'. There are two types of Determinations:

• Consent low-paid workplace determination: this can be made on application by the bargaining representatives of one or more of the employer(s) that would be covered by the agreement and the bargaining representatives of the employees of those employers; or
• Special low-paid determination: this can be made on application by a single bargaining representative.

Fair Work Australia must issue a 'Consent' determination wherever possible. Either form of Determination, once issued, will end the negotiations and the Enterprise Agreement will then be finalised.