Anthony Forsyth, Consultant, Corrs Chambers Westgarth

Part 2-2 of the Fair Work Act 2009 (Cth) (FW Act) provides for a scheme of ten minimum employment standards known as the National Employment Standards (NES). The NES constitute the minimum terms and conditions of employment for all employees covered by the FW Act.

Minimum employment standards were enshrined in federal legislation for the first time through the amendments to the Workplace Relations Act 1996 (Cth) made by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). Under that legislation, five minimum standards formed the Australian Fair Pay and Conditions Standard (AFPCS). The NES provisions in the FW Act have therefore expanded the number and scope of minimum standards under federal law.

See The National Employment Standards (NES).

For employees not covered by the FW Act, certain minimum terms and conditions may be provided for under applicable state or territory legislation. In some areas (ie public holidays, the “right to request” flexible work), state and territory laws operate in conjunction with and/or supplement the minimum entitlements of national system employees under the NES.

In relation to long service leave, state and territory legislation is presently the main source of regulation.

See Minimum conditions under state/territory laws.

Almost all of the minimum employment conditions regulated by the FW Act, state and territory legislation may also be the subject of provisions in modern awards and enterprise agreements made under the FW Act.