1
LAW OF EMPLOYMENT
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MINIMUM EMPLOYMENT STANDARD
1. FAIR WORK ACT 2009 (CTH)
The Act is Based On:
• Corporations power – s51(xx) Constitution; AND
• Referral by the states of their power over industrial relations to the Cth under s51(xxxvii) (except for WA, which didn’t succeed power to Cth).
o In WA, only employees who work for a ‘constitutional corporation’ are covered by the Act.
i) What is a Constitutional Corporation?
• Corporations that are foreign corporations & trading & financial corporations former w/in the Cth.
• Unincorporated corporations in states other than WA are covered by the Fair Work Act.
• McKinnon:
1. Whether a corporation is a trading corporation will depend on whether trade is a substantial & not merely peripheral activity.
2. Trade does not have to be the predominant activity.
3. ‘Trading’ is given a broad construction & extends beyond buying & selling but includes trade in services.
4. Making a profit is not a prerequisite.
5. It is a q of fact & degree – current activities are important but not the only criteria.
6. Look to the intended purpose of the corporation
ii) Coverage of the FWA:
• All employees in NT, ACT
• All private sector employees in Vic, NSW, Qld, SA and Tas
• All private sector employees in WA who work for a constitutional corporation
• Coverage of public sector employees & local council employees depends on the extent of each state’s referral of power e.g., NSW, Qld have strong state laws covering these employees
• In Victoria, there was a complete referral of power, effective 1 Jan 1997
o Most state public servants may use the unfair dismissals, general protections in the FWA o Many state employees are covered by EBAs made under the Fair Work Act
2. NATIONAL EMPLOYMENT STANDARDS – Part 2-‐2 FWA i) Eligibility
• The NES minimum standards apply to all national system employees (s61) & any breach by an employer will breach the core obligation in s44 FWA to comply w/ them.
• The NES have effect regardless of the instrument that applies to a particular employee.
• Modern Awards & EBAs cannot exclude the NES & have no effect to the extent that they purport to do so – ss55(1) & 56.
• Service:
o Some NES entitlements depend on the length & continuity of an employee’s service w/ an employer i.e., service is the period during which the employee is employed by the employer – s22(1)
o Does not include a period of paid/unpaid unauthorised absence & unpaid leave – s22.
• Although CEOs & Senior Executives will have their own K of employment, they will still be entitled to the NES.
A. MAXIMUM WEEKLY HOURS – DIV 3
Ø 38 hours, or more if reasonable
3 i) Section 62 FWA:
• (1) An employer must not request or require an employee to work more than 38 hours for a full time employee or more than their ordinary hours of work in a week, unless the additional hours are reasonable.
ii) Employee May Refuse to Work Unreasonable Additional Hours – s62(2) FWA:
• (3) In determining whether additional hours are reasonable or unreasonable, the following matters must be taken into account:
(a) Any risk to employee health & safety from working the additional hours;
(b) The employee’s personal circumstances, including family responsibilities;
(c) The needs of the workplace or enterprise in which the employee is employed;
(d) Whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) Any notice given by the employer of any request or requirement to work the additional hours;
(f) Any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) The usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) The nature of the employee’s role, & the employee’s level of responsibility;
(i) Whether the additional hours are in accordance w/ averaging terms included under s63 in a modern award or enterprise agreement that applies to the employee, or w/ an averaging arrangement agreed to by the employer & employee under s64;
(j) Any other relevant matter.
iii) Hours an Employee Works in a Week Includes – s62(5) FWA:
• Any hours of leave, or absence whether paid or unpaid & are authorised by o (a) The employer; or
o (b) By or under a term or condition of the employee’s employment; or o (c) By or under a Cth, State or Territory law.
iv) Averaging Hours – s63 FWA:
• Modern Award or EBA may include terms providing for the averaging of hours of work over a specified period.
• The average hours for a full time employee must not exceed 38 hours or for a non-full time employee their ordinary hours of work.
• E.g., can work 36 hours one week, & 40 hours the next.
B. REQUESTS FOR FLEXIBLE WORKING ARRANGEMENTS – DIV 4
Ø By parents, for care of a child, BUT employer may refuse on reasonable business grounds
i) Employee May Request Change in Working Arrangements – s65 FWA:
• (1) The employee can request for a change in working arrangements where one of the following circumstances apply.
• (1A) The following are the circumstances:
(a) The employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
(b) The employee is a carer (within the meaning of the Carer Recognition Act 2010);
(c) The employee has a disability;
(d) The employee is 55 or older;
(e) The employee is experiencing violence from a member of the employee’s family;
(f) The employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.
• (1b) An employee who is a parent or carer & is returning to work after taking leave in relation to the birth or adoption of a child may request to work part-time .
