Doing business in another country or jurisdiction can present
unexpected difficulties and challenges. For foreign businesses
looking to expand into Australia, complying with Australia's
industrial relations system can be particularly difficult.
However, ensuring that you meet your employment obligations and
that you have sound employment practices in place is essential to
the success of your Australian operations.
WHEN DOES THE FAIR WORK ACT 2009 APPLY TO YOUR
BUSINESS OR EMPLOYEES?
The Fair Work Act 2009 (FW Act)
applies to all companies formed within Australia and all of their
employees in Australia, and to the employees of foreign
corporations operating in Australia. However, the FW Act can apply
to employees working in other countries and in particular:
employees of foreign businesses whose primary place of work is
in Australia but who may work in other countries; and
employees who are employed by companies who are managed and
controlled in Australia but who are located outside of
WHAT ARE EMPLOYEE'S ENTITLEMENTS UNDER THE FAIR WORK
The FW Act sets out minimum conditions of employment for
all employees, called the National Employment
Standards (NES). The NES are:
The maximum weekly hours that an employee can be directed to
An employee's right to request flexible working
An employee's rights to take parental leave, annual leave,
personal leave, compassionate leave, community service leave, and
An employee's right to be given notice if their employment
is terminated; and
An employee's right to be paid redundancy pay if their
employment is terminated by reason of redundancy.
The FW Act also creates instruments called Modern
Awards. Modern Awards set out further minimum conditions
of employment, such as minimum wages and additional rates of pay
for working evenings, weekends, overtime, and public holidays, for
employees employed in specific occupations and industries.
For example, the Banking, Finance and Insurance Award
2010 provides minimum conditions of employment for clerical,
technical, and middle-managerial employees in the banking, finance,
and insurance industries.
The FW Act also provides additional rights to employees if they
are deemed to have been unfairly dismissed or bullied, or if they
have been adversely treated because they exercised one of their
"workplace rights" under the NES or a Modern
WHAT ARE THE CONSEQUENCES OF FAILING TO COMPLY WITH THE
FAIR WORK ACT 2009?
Failing to understand or comply with your business'
obligations under the FW Act, the NES or Modern Awards can result
in employees bringing legal claims against you seeking damages and,
in many instances, financial penalties of up to $54,000 against
your business and penalties of up to $10,800 against the individual
decision-makers within your business.
For directors may be held personally liable for unpaid employee
entitlements if they are found to be liable as accessories to the
MDC Legal assists a range of employers to ensure that their
businesses comply with the requirements of the Fair Work Act, State
legislation and workplace awards and agreements.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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