EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Employment and Workplace Relations
Fair Work Act 2009
Proclamation
Subsection 2(1) of the Fair Work Act (the Act) provides that sections 3 to 40 of the Act commence on a single day to be fixed by proclamation. However, if any of the provisions of sections 3 to 40 do not commence within twelve months of the date the Act receives the royal assent, then those provisions commence on the first day after the end of that twelve month period. The Act received the Royal Assent on 7 April 2009.
The Proclamation fixes 26 May 2009 as the day on which sections 3 to 40 of the Act commence. Under subsection 2(1) of the Act, sections 573 to 718 of and Schedule 1 to the Act commence at the same time as sections 3 to 40.
The Act will replace the Workplace Relations Act 1996, and will govern federal workplace relations.
The Proclamation commences the provisions which establish the institutional framework for the new workplace relations system. These provisions are contained in sections 573 to 718 (Chapter 5 – Administration) of the Act. The Proclamation also commences related provisions which support the early commencement of the institutional framework. These provisions include the objects, definitions and application provisions (sections 3 to 40) and transitional provisions (Schedule 1). The transitional provisions appoint the current President of the Australian Industrial Relations Commission as the inaugural President of Fair Work Australia.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Fair Work Act 2009, enacted to overhaul and replace the Workplace Relations Act 1996, was introduced to create a more balanced and fair workplace relations system. The Act was assented to on 7 April 2009 and was proclaimed to commence on 26 May 2009 by the Minister for Employment and Workplace Relations. The overarching policy objective of the Act is to establish a new institutional framework that aims to provide a fair and efficient workplace relations system, ensuring better outcomes for employees, employers, and the broader economy. The Proclamation under subsection 2(1) of the Act ensures that certain sections of the Act, including those establishing the institutional framework, definitions, objects, and transitional provisions, commence on the specified date. The Act aims to govern federal workplace relations comprehensively, with a focus on creating a more equitable environment for all parties involved.
Scope and Application
The Fair Work Act 2009 applies to a wide range of entities, including employers, employees, and workplace organisations, and governs federal workplace relations across Australia. It establishes the institutional framework for the new workplace relations system, replacing the Workplace Relations Act 1996. The Act’s jurisdictional reach extends to all employment and workplace relations matters governed by federal law, encompassing various industries and conduct within the workplace. The Act's commencement is governed by the Proclamation, which sets 26 May 2009 as the effective date for specific sections, ensuring a timely and orderly transition from the previous legislative framework. While the Act broadly applies to all federal workplace relations, certain provisions may be subject to modification or clarification through subordinate instruments, facilitating the implementation of the new system and addressing specific issues as they arise.
Key Provisions
The Fair Work Act 2009, commencing on 26 May 2009 as per the Proclamation under subsection 2(1), outlines various operative sections that establish the foundational framework for Australia's federal workplace relations system. Sections 3 to 40 of the Act, which include objects, definitions, and application provisions, lay the groundwork for the new system (sections 3-40). The more detailed provisions, particularly those establishing the institutional framework for the new workplace relations system, are found in sections 573 to 718, which also commence on the same day (section 573-718). This includes the establishment of Fair Work Australia, a body that replaces the Australian Industrial Relations Commission under transitional provisions in Schedule 1 of the Act.
The Act imposes a variety of obligations on parties and entities within the federal workplace relations system. Employers, employees, and organisations must comply with the provisions outlined in the Act, which govern employment standards, enterprise bargaining, and dispute resolution mechanisms. The Fair Work Commission, established by the Act, has the authority to make awards and regulate certain aspects of employment conditions, such as minimum wages and working hours (section 170). Employers are required to provide employees with a Fair Work Information Statement, which outlines their rights and obligations under the Act (section 120). Additionally, the Act mandates the establishment of a safe and healthy work environment, with specific obligations for employers to comply with occupational health and safety regulations.
Breaching the provisions of the Fair Work Act can result in various civil and criminal consequences. For instance, employers who fail to comply with the minimum wage requirements or other employment standards can face fines and penalties. The maximum penalty for an individual offence under the Fair Work Act can be up to $21,000, while the maximum penalty for a corporation can be significantly higher, reaching up to $1,050,000 (section 546). Criminal offences under the Act can also result in imprisonment, with penalties varying depending on the severity of the breach. The Act provides for both civil and criminal enforcement mechanisms, allowing the Fair Work Ombudsman to take action against those who contravene its provisions. Additionally, the Fair Work Commission has the authority to make orders and impose penalties for breaches of awards and agreements.