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International calls: +61 3 9653 9123

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Australian employment law and the Fair Work Act 2009

The Fair Work Act 2009 – a “one-stop shop” for matters relating to industrial relations in Australia

The Fair Work Act 2009 was a significant milestone in Australian employment law. It created a “one-stop shop” for matters relating to industrial relations within Australia. The Fair Work Commission is a national tribunal charged with the responsibility of dispute resolution.

Objective of Fair Work Act 2009

From its inception, the purpose of the legislation was to create a national workplace relations system for private sector employees.

Key components of the system are the National Employment Standards (NES). In addition, Federal Awards are now simplified.

The NES addresses 10 basic standards such as hours, leave entitlements, public holidays etc.

How useful is the Fair Work Commission for Australian executives?

Although these minimum conditions will apply to even the most senior executives, they should nevertheless be regarded as simply that, i.e. minimum conditions. While these minimums are of assistance to executives, they should by no means be regarded as necessarily appropriate (still less ideal) for those at a middle or senior level. This is particularly so as it relates to notice and severance payments.

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In other words, although many employers will no doubt seek to portray that they are offering “Fair Work Conditions”, executives should not forget that they can and should attempt to negotiate terms and conditions that are superior to these terms.

Similarly, although the FWC will offer an “independent umpire” in dispute resolution, this is unlikely to be of any assistance to executives in resolving significant contractual disputes with their former employers. Australian common-law courts will remain the venue where such issues will be ultimately contested.

Contract law remains critical

The fact remains that for middle to senior level executives in Australia, the law of contract remains critical in determining their legal position. Employees at this level should not lose sight of this and need to be creative as well as assertive when it comes to their terms and conditions of employment. This includes not being lulled into a false sense of security in the mistaken belief that they have a “safety net” underneath them, and that they no longer need to be concerned about their contract of employment.

This should actually be a cause for celebration, because Australian employment law, based as it is on the law of contract, enables private-sector executives in particular to customise their terms and conditions of employment.

This means that the executive employment contract that you ultimately sign should be a reflection of the skill and experience that you bring to the table. It effectively forms the foundation stone upon which your lifestyle and living standards are built.

Australian expatriates need to be aware of their vulnerabilities

Australian executives who seek to work overseas need to be particularly aware of their vulnerabilities. This is not just because they are negotiating a role within the company but also endeavoring to provide certainty in the living arrangements for both themselves and their families.

By considering the material on this website and taking appropriate and timely legal advice, Australian employment law can be used to your advantage to ensure that you are not left exposed in your dealings with your employer.

See also:

Redundancy advice – are you entitled to a severance payment,  Negotiating an executive employment contract and Checklist for negotiating an expatriate employment contract.

Call 1300 789 302 to speak to an employment lawyer. International calls +61 3 9653 9123

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult a lawyer for individual advice regarding your own situation.