The Fair Work System
If your business is in the national workplace relations system it is covered by the Fair Work laws.
If you don’t know if your business is in the national system, see Who is affected?
The state governments of New South Wales, Queensland, South Australia and Tasmania have handed over some responsibilities for workplace relations to the federal government. In these states:
- all private sector workplaces are now in the national system
- State government and most local government workplaces are still in the State system.
Many workplaces in Western Australia are still in the state system. This includes all sole traders, partnerships, unincorporated entities, non-trading corporations and public sector bodies.
All employers in the national system have to comply with the Fair Work Act 2009. This includes rules about:
- general protections (including protection from discrimination)
- unfair and unlawful dismissal
- agreement making
- transfer of business
- workplace rights.
All employers in the national system must also:
- comply with the National Employment Standards
- pay employees at least the wages set out in a modern award or the national minimum wage order.
The Fair Work Act includes special rules to help employers move into the national system. These applied to workplaces in New South Wales, Queensland, South Australia and Tasmania.
State awards that were in place on 1 January 2010 continued to apply until 1 January 2011, when they were replaced with modern awards. State agreements that were in place on 1 January 2010 may continue to apply.
For details, see:
ACT and Northern Territory
All employees and employers in the ACT and the Northern Territory are in the national workplace relations system. This means that the Fair Work Act, the National Employment Standards and modern awards apply in all workplaces.
All private sector employees and employers in Victoria have been in the national system since 1996. This means that the Fair Work Act, the National Employment Standards and modern awards apply to all private sector workplaces.
Sole traders, partnerships and other unincorporated organisations in Western Australia still operate in the state system. However, most incorporated companies in Western Australia are covered by the national system.
Whether an employer was operating or employing staff before 27 March 2006 is important because it determines the award that the employer may be bound to. This is because:
- on 27 March 2006 many employers moved into the national system from the state system. This affects the rights and obligations of employers and employees who were in the state system.
- on 1 January 2010 the Fair Work system started. This affected most employers and employees, including many who were still in the state system.
A constitutional corporation is a business that falls under the definition in paragraph 51(xx) of the Australian Constitution (Corporations power):
- a foreign corporation
- a financial corporation formed in Australia
- a trading corporation formed in Australia.
Employers who aren’t constitutional corporations include:
- sole traders
- some state government bodies
- corporations whose main activity is not trading or financial (e.g. some charities).
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