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The Fair Work system is the national system of workplace laws that establishes minimum terms and conditions of employment, sets out the rights of workers and the industrial relations obligations of most employers.
The Fair Work system applies to most not-for-profit (NFP) organisations and their employees in all states and territories with the exception of Western Australia. In Western Australia the Fair Work system only applies where the NFP is a constitutional corporation. See below more information on Western Australian NFPs and their employees.
The Fair Work system comprises the Fair Work Act 2009 (Cth) and other federal 'Fair Work' legislation and regulations.
Other employment-related matters such as occupational health and safety, long service leave and equal opportunity obligations are largely regulated by the States and Territories (although federal legislation can also apply) and are not covered by the Fair Work system. There is information on these topics on other pages of the Information Hub (use the search tool, and see the related resources panel to the left).
The fact sheets on this page each outline key components of the Fair Work System.
Employee entitlements and protections
Not-for-profit community organisations are bound by the same employment laws as any other employer. Working out the entitlements you owe your employees and meeting those obligations can seem overwhelming. Meeting the legal entitlements of your employees is vital - your organisation is breaking the law if it doesn't meet these obligations, and your organisation's success and development often hinges on your employees. Unless you meet their entitlements and treat them fairly and well, things can go very wrong!
An employment contract is the basis of the terms of an employment relationship. However, these terms are subject to:
- certain minimum standards set out by the National Employment Standards; and
- any applicable modern award or enterprise agreement under the Fair Work Act.
National Employment Standards (NES)
The NES sets out 10 minimum employment standards that apply to all employees under the Fair Work system. They include minimum entitlements for leave, public holidays, notice of termination and redundancy pay. All employers must comply with the NES.
The NES provides a safety net for all Australian employees and relates to:
- maximum weekly hours
- requests for flexible working arrangements
- parental leave and related entitlements
- annual leave
- personal/carer's leave and compassionate leave
- community service leave
- long service leave
- public holidays
- notice of termination, and
- redundancy pay.
The fact sheet below contains information about employee enitlements under the Fair Work Act, National Employment Standards, industrial instruments and general protections claims and 'adverse action' under the Fair Work Act.
Modern Awards and Enterprise Agreements
The fact sheet below contains information about modern awards and enterprise agreements including:
- what governs employment relationships under the Fair Work Act 2009 (Cth) (Fair Work Act)?
- what is a modern award and when does it apply? and
- what is an enterprise agreement?
Unions in the workplace
The fact sheet below outlines information regarding:
- the Australian union system
- rights to freedom of association, and
- rights of union officials to enter the workplace.
Western Australia and the Fair Work system
The Fair Work legislation will only cover not-for-profit organisations and their employees in Western Australia if the not-for-profit organisation is a national system employer within the meaning of section 14 of the Fair Work Act 2009 (Cth) (Fair Work Act). Section 14 provides that a national system employer includes 'constitutional corporations'. Constitutional corporations are defined in section 51(xx) of the Commonwealth Constitution as ‘foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’.
A constitutional corporation is a body which is incorporated under a federal or state Act (for example, it has ‘Pty Ltd' in its name) including incorporated associations and statutory authorities, and which conducts trading or financial activities as a sufficiently significant part of its business. Trading or financial activities can include selling goods or services (such as merchandise), or fundraising. Trading activities can also include receiving money from grants or other funding, where the grant or funding has a commercial nature.
A foreign corporation, meaning a body incorporated outside of Australia, is also a constitutional corporation.
It’s important to know which industrial relations system covers your organisation. Determining whether your organisation is a constitutional corporation or not can be a complex process. If you are not sure whether your organisation is a constitutional corporation, you should get legal advice.
The Fair Work Ombudsman may be able to help Western Australian not-for-profit organisations work out whether they are a constitutional corporation and covered by the Fair Work Act and other federal laws.
If a Western Australian not-for-profit organisation is not a constitutional corporation, it will be covered by the Western Australian industrial relations system. Information about the Western Australian industrial relations system is available from the WA Department of Commerce.