16.1 The Fair Work Act 2009 (Cth)is the key piece of Commonwealth legislation regulating employment and workplace relations. It provides for terms and conditions of employment and sets out the rights and responsibilities of employees, employers and employee organisations in relation to that employment. The Fair Work Act establishes a safety net comprising: the National Employment Standards (NES), modern awards and national minimum wage orders; and a compliance and enforcement regime. It also establishes an institutional framework for the administration of the system comprising Fair Work Australia (FWA) and the Fair Work Ombudsman (FWO).[1]

16.2 Chapters 16 and 17 provide an overview of the Fair Work Act and examine possible options for reform within the context of the ALRC’s recommended five-phase approach to reforms in this area. The focus of this chapter is on potential reform of the Act, its institutions, and agreements and instruments made under the Act, to address the needs—and ultimately the safety—of employees experiencing family violence. The chapter examines the background, coverage and objects of the Fair Work Act, as well as the role and processes of FWA and the FWO. The ALRC suggests ways in which those institutions or their processes may function to protect the safety of those experiencing family violence. In addition, this chapter examines:

  • family violence clauses in enterprise agreements—the ALRC concludes the Australian Government should support the inclusion of family violence clauses which, at a minimum, should contain several basic requirements and recommends that the FWO should develop a guide to negotiating such clauses;

  • individual flexibility arrangements in enterprise agreements—the ALRC considers the appropriateness of individual flexibility arrangements (IFAs) in circumstances where an employee is experiencing family violence and recommends that the FWO should include information on negotiating an IFA in such circumstances in existing guidance material;

  • modern awards—the ALRC considers ways in which modern awards might incorporate family violence-related terms and suggests this should be considered in the course of the modern award reviews to be conducted by FWA in 2012 and 2014; and

  • the general protections provisions under the Fair Work Act—the ALRC recommends that prior to the Australian Government considering inclusion of a family violence-related ground under the general protections provisions, the Australian Human Rights Commission (AHRC) should examine the possible inclusion of a family violence-related protected attribute under Commonwealth anti-discrimination law.

[1] The Fair Work Divisions of the Federal Court and Federal Magistrates Court and, in some cases, state and territory courts, perform judicial functions under the Fair Work Act: Fair Work Act 2009 (Cth) pt 4–2.