On this page
- Introduction
- Employee entitlements and protections
- Modern awards and enterprise agreements
- Unions in the workplace
- Western Australia and the Fair Work system
Introduction
The Fair Work system is the national system of workplace laws that establishes minimum terms and conditions of employment, and sets out the rights of workers and the industrial relations obligations of most employers.
The Fair Work system applies to national system employers and national system employees, which includes most not-for-profit 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 not-for-profit is a constitutional corporation.
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 anti-discrimination obligations are largely regulated by the states and territories (although Federal legislation can also apply) and are not covered by the Fair Work system. You can find further information on these topics on other pages of this site.
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, but 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 (NES), and
- any applicable modern award or enterprise agreement under the Fair Work Act
National Employment Standards
The NES sets out the minimum employment standards that apply to all employees under the Fair Work system. They include minimum entitlements such as (but not limited to) leave, public holidays, notice of termination and redundancy pay. All employers must comply with, and cannot contract out of, the NES.
The NES provides a safety net for all Australian employees and relates to:
- maximum weekly work hours
- requests for flexible working arrangements
- offers and requests to convert from casual to permanent employment
- parental leave and related entitlements
- annual leave
- personal/carer's leave, compassionate leave and family and domestic violence leave
- community service leave
- long service leave
- public holidays
- superannuation contributions
- notice of termination and redundancy pay, and
- Information statements (Fair Work Information Statement, Casual Employment Information Statement, and Fixed Term Contract Information Statement)
Our fact sheet 'Employee entitlements and protections' contains information about:
- employee entitlements under the Fair Work Act, including the NES
- industrial instruments, and
- general protections and 'adverse action', including workplace rights, industrial activities, sham contracting arrangements, sexual harassment, discrimination, and the right to disconnect
Modern awards and enterprise agreements
Our fact sheet contains information about modern awards and enterprise agreements including:
- what is a modern award and when does it apply?
- what is an enterprise agreement?
Unions in the workplace
Our fact sheet considers:
- what is a union?
- what is freedom of association?
- the rights of union officials to enter the workplace
Western Australia and the Fair Work system
The national Fair Work legislation only covers 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. Section 14 provides that a national system employer includes 'constitutional corporations'.
What is a constitutional corporation?
Constitutional corporations are defined in section 51 placitum (xx) of the Commonwealth Constitution as ‘foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’.
Definition
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 certain incorporated associations and statutory authorities, and which conducts trading or financial activities as a sufficiently significant portion of its overall activities.
Trading activities can include selling goods or services (such as merchandise), or fundraising.
Financial activities can include receiving money from grants or other funding, where the grant or funding has a commercial nature. It does not matter that the income from trading activities is used for charitable purposes or if the not-for-profit organisation has many functions that are non-trading or commercial in character.
A foreign corporation, meaning a body incorporated outside of Australia, may also be a constitutional corporation in circumstances where the corporation employs an individual to perform work in Australia.
Note
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 is generally not a national system employer, and will therefore 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.
The content on this webpage was last updated in August 2024 and is not legal advice. See full disclaimer and copyright notice.
