Fair Work Act 2009 (Cth)

16.3 The Fair Work Act replaced the Workplace Relations Act 1996 (Cth) and most provisions of the Act took effect on 1 July 2009. The history surrounding the enactment of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), the Federal election campaign in 2007—including the policy announcement Forward with Fairness,[2]which preceded the Fair Work Act—and the introduction of the Fair Work Act, have been the subject of much debate and commentary.

16.4 The introduction of the Fair Work Act was the result of extensive consultation with stakeholders throughout the drafting process. There was also significant lobbying by various groups prior to its introduction, in particular unions and business groups, for changes to the proposed Act. The Government engaged in consultation with key non-government stakeholders, primarily through the establishment of a number of advisory groups.[3] The Government also conducted a number of other specific consultations in relation to the NES.[4] The present Inquiry comes not long after the conclusion of those consultative processes and shortly before a planned Post-Implementation Review of the Fair Work Act.


16.5 The Fair Work Act regulates ‘national system’ employers and employees.[5] From 1 January 2010, all states other than Western Australia referred their industrial relations powers to the Commonwealth, essentially creating a new national industrial relations system.[6] As a result, the national system covers the Commonwealth, Commonwealth authorities and constitutional corporations,[7] and

  • all other employment in Victoria, ACT and the Northern Territory;
  • all private sector employment in New South Wales, Queensland and South Australia; and
  • all private sector and local government employment in Tasmania.

16.6 The system does not cover:

  • state public sector or local government employment or employment by non-constitutional corporations in the private sector in Western Australia;
  • state public sector and local government employment in NSW, Queensland and South Australia; or
  • state public sector employment in Tasmania.

16.7 Employment that is not covered under the national industrial relations system remains regulated by the relevant state industrial relations systems. However, some entitlements under the Fair Work Act extend to non-national system employees.[8]

16.8 The Fair Work Regulations 2009 (Cth) address matters of detail within the framework established by the Fair Work Act. For example, the Fair Work Regulations provide additional definitions, explain the application of the Act and elaborate on certain terms and conditions of employment.


16.9 Section 3 of the Fair Work Act contains the objects of the Act and sets out the manner in which the Act is intended to achieve its specific objectives, which are to:

provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

(f) achieving productivity and fairness through an emphasis on enterprise‑level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

(g) acknowledging the special circumstances of small and medium‑sized businesses.

16.10 The objects reflect, on the one hand, the need to provide a legislative framework which is flexible for businesses and promotes productivity and economic growth and, on the other, the desire to ensure the framework is fair and protects the rights of employees to a guaranteed safety net, flexible working arrangements and fairness and representation at work.

16.11 Of particular importance in the context of this Inquiry is the incorporation of references to, and actual entitlements based on, the concept of social inclusion. For example, the inclusion of parental leave and the right to request flexible working arrangements appear to indicate a commitment to ‘provide an opportunity for federal employees to improve the balance between their work and family life and thus support the social inclusion policy objective’.[9]

16.12 The need for a balanced legislative framework is the main challenge faced by the ALRC in considering what improvements could be made to the Fair Work Act to protect the safety of those experiencing family violence, while ensuring proposals are also consistent with the objects of the Act.

Post-Implementation Review

16.13 By January 2012, the Australian Government has committed to commencing a Post-Implementation Review (PIR) of the Fair Work Act. The PIR will report on the regulatory impacts of the legislation and whether the Act is meeting its objectives.[10]

16.14 In considering what improvements could be made to the Fair Work Act to protect employees experiencing family violence, the ALRC is of the view that, at some point, amendments to a range of provisions under the Act, examined in this chapter, may be necessary. The PIR is likely to provide an appropriate forum in which the ALRC’s discussion of the issues relating to family violence in the context of the Act may be considered.

Recommendation 16–1 The Australian Government should consider family violence-related amendments to the Fair Work Act 2009 (Cth) in the course of the 2012 Post-Implementation Review of the Act.

[2] See, eg, K Rudd and J Gillard, Forward with Fairness: Policy Implementation Plan (2007).

[3] National Workplace Relations Consultative Council and sub-committees, Business Advisory Group, Workers Advisory Group and Small Business Working Group: National Workplace Relations Consultative Council Act 2002 (Cth); Explanatory Memorandum, Fair Work Bill 2008 (Cth), [r19].

[4] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [r20].

[5] The definition of ‘national system employee’ and ‘national system employer’ are contained in ss 13 and 14 of the Fair Work Act 2009 (Cth) and are extended by ss 30C, 30D, 30M and 30N to cover employers in referring states: Fair Work Act 2009 (Cth) ss 13, 14, 30C, 30D, 30M and 30N.

[6] In 1996 Victoria was the first state to refer key industrial relations powers to the Commonwealth.

[7] Constitutional corporations are those to which the federal corporations power applies. The corporations power allows the Australian Parliament to make laws with respect to certain types of corporations: Australian Constitution s 51(xx).

[8] For example, non-national system employees are entitled to unpaid parental leave, notice of termination, payment in lieu or notice and protection from unlawful termination of employment: Fair Work Act 2009 (Cth) pts 6–3, 6–4.

[9] J Murray and R Owens, ‘The Safety Net: Labour Standards in the New Era’ in A Forsyth and
A Stewart (eds), Fair Work: The New Workplace Laws and the Work Choices Legacy (2009) 40, 66.

[10] The PIR is consistent with the Government’s objective of improving the effectiveness and efficiency of regulation. The PIR was referred to in Explanatory Memorandum, Fair Work Bill 2008 (Cth), [r360]; and DEEWR, Agency Budget Statement 2011–2012 (2011), Outcome 5, 130.