You need to start getting ready now for their
introduction on 01 January 2010
This Update draws your attention to a number of important issues
which you need to keep in mind and address in the near future, so
you are prepared for changes that will take effect on 01 January
Introduction – Start getting ready now for 01
Employers who are covered by Australia' s Federal workplace
relations system (and that is the vast majority of private sector
employers, including many not for profit organisations) need to be
aware that from 1 January 2010 there will be very significant
changes to the existing arrangements they have in relation to
awards and agreements covering their staff. These changes will be
brought in by the Rudd Labor Government's "Fair Work Act
We have formed the impression that most employers are not
focussing yet on what they will have to deal with from 1 January
next – either because of "change exhaustion",
or because 1 January is too long off, or because what is coming
does not seem as controversial as WorkChoices so they will cope or
at least muddle through...
This Bulletin is therefore your WAKE UP
The Ten National Employment Standards
The Fair Work Act 2009 ("the Act") provides that from
01 January 2010, National Employment Standards (NES) will take
effect. There are 10 NES that provide for minimum terms and
conditions for all national system employees
whether or not they are covered by an award or agreement
– eg everyone from the factory floor to senior
management. (Refer to our previous client bulletin on NES).The
following are the 10 "NES":
maximum weekly hours ;
requests for flexible working arrangements
parental leave and related entitlements
personal/carer's leave and compassionate leave
community service leave
long service leave
notice of termination and redundancy pay
Fair Work Information Statement.
Also from 01 January 2010, Modern Awards made by the Australian
Industrial Relations Commission (AIRC) will take effect and
existing awards (including State awards known now as NAPSAs) will
no longer be applicable – i.e. most old awards
will lapse on 1 January 2010.
Modern Awards are progressively being made by the AIRC covering
employees, primarily by reference to industries, but also some will
cover employees in defined occupations such as nurses. Once these
modern awards become effective the awards they replace cease to
operate and can never operate again.
So it is vital that all who are covered by awards now, whether
they be Federal or State awards, be aware that on 1 January 2010
new modern award will replace these instruments.
Not for profit employers using corporate entities
We are particularly aware that many "not for profit"
operators in aged care services (and related activities) and
educational establishments currently operate under NAPSAs and
employ staff through a corporation.
From 01 January 2010 these industrial instruments will be
replaced by modern awards and the NES, which will be the minimum
terms and conditions that will be applicable. Thus, for example,
those who are in aged care service will not have existing State
awards covering them anymore from that date, they will instead have
to employ staff under the Aged Care Services Award 2010 (a Modern
Award) and abide by the 10 NES.
Employers with existing agreements
Those employers who operate under a federal agreement or a
preserved state agreement (PSA) will be in a slightly different
position on 1 January 2010 compared to employers covered by awards.
These old agreements will continue to apply after 1 January 2010
(until replaced), except that the NES provisions will override any
part of an agreement that is more detrimental to an employee than
the NES, and the agreement has to provide wages at least at the
level of the wages in the Modern Award for the workforce covered by
So, those employers will need to compare the provisions of the
agreement with the provisions of the NES. If the agreement provides
a lesser standard than that provided by the NES, then the NES
provision will apply to the exclusion of the agreement provision.
If the agreement rates are less than the rates provided in the
award then the rates in the Modern Award must be applied.
We hope the above very brief explanation of the changes starting
on 1 January 2010 enliven people to the fact that if they don't
get ready for that date, they may well then find themselves out of
their comfort zone, embarrassed and off side with their work
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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Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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