Knowing your way around employment law, the Fair Work Act, Ombudsman, and Commission can be tricky. The MEA Employer Advice team have answered some of the most common questions electrical contractors ask around Fair Work. 

What does the Fair Work Act mean for electrical contractors?

The Fair Work Act 2009 and Regulations is the main legislation that governs employment law in Australia.  It covers the majority of private businesses in Australia. Sole traders and partnerships in Western Australia are NOT covered by the Fair Work System.

The Fair Work Act covers areas the employment relationship including:

• Award system of minimum terms and conditions.
• Enterprise agreements and bargaining rules.
• Record keeping and pay slips.
• Union right of entry/union disputes.
• the National Employment Standards.
• Unfair dismissal and General Protections rules.
• Fair Work bullying and sexual harassment jurisdictions.
• Operation of the Fair Work Commission.

Is the Fair Work Act the only law that covers employment?

No. Employment law is not singularly governed by the Fair Work Act and there is a range of other pieces of legislation that dictate what an employer can and cannot do. These include:

• Workers’ compensation legislation.
• Workplace Health and Safety legislation.
• Disability and discrimination legislation.
• Super guarantee legislation.
• Long service leave.

There are three bodies have roles in the Fair Work system:

1. The Fair Work Commission
2. Fair Work Ombudsman
3. Fair Work Federal Divisions of the Federal Court and the Federal Circuit Court (previously known as the Federal Magistrates Court).

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What award covers electrical contractors?

Most electrical contractors will be covered by the Electrical, Electronic and Communications Contracting Award 2020 (Modern Award) which provides a minimum set of terms and conditions; in addition to the National Employment Standards (NES). Detailing rates of pay, allowances, hours of work provisions engagement of different types of workers, including apprentices.

Some Master Electricians may be covered by the Manufacturing and Associated Industries and Occupations Award 2020, Black Coal Industry Award 2020 or others based on the types of work and locations they perform it.

Many members are covered by multiple awards such as the Clerks – Private Sector Award 2020 that covers their administration staff.

What responsibilities do electrical contractors have under the Fair Work Act?

Electrical contractors need to comply with it or face potential fines, unfair dismissal claims, general protections claims and underpayment of wages claims. Any of which can significantly harm a business’ viability.

What is the Fair Work Commission?

The Commission is Australia’s national workplace relations tribunal. It was established by the Fair Work Act 2009 (Fair Work Act) and is responsible for administering the provisions of the Fair Work Act.

The Commission’s powers and functions include:

• dealing with unfair dismissal claims.
• dealing with anti-bullying claims.
• dealing with general protections and unlawful termination claims.
• setting the national minimum wage and minimum wages in modern awards.
• making, reviewing and varying modern awards.
• assisting the bargaining process for enterprise agreements.
• approving, varying and terminating enterprise agreements.
• making orders to stop or suspend industrial action.
• dealing with disputes brought to the Commission under the dispute resolution procedures of modern awards and enterprise agreements.
• determining applications for right of entry permits.
• promoting cooperative and productive workplace relations and preventing disputes.

The Commission and General Manager also have responsibilities in relation to the registration, amalgamation, and cancellation of registered organisations and the making and alteration of their rules under the Fair Work (Registered Organisations) Act 2009.

What is the Fair Work Ombudsman?

The Fair Work Ombudsman investigates complaints and contraventions of the workplace relations law. The Fair Work divisions of the Federal Court and the Federal Circuit Court hear matters arising from workplace relations laws. The courts also have power to hear matters in relation to notice of termination and redundancy. The Fair Work Division of the Federal Circuit Court limit is $20,000.

How can MEA help electrical contractors facing Fair Work action?

While MEA regularly helps members with representation in claims in the Commission our best efforts are prior to a decision to terminate being made. Very little can be rectified if the business has already made the decision to terminate without putting in place a defendable basis to operate.

The Fair Work Act 2009 (Cth) lays down basic principles that must be followed to fairly and lawfully dismiss employees. This involves:

• Having a valid reason for the dismissal – one that is not unfair or unlawful. A valid reason is one which is “sound, defensible or well founded”, but not “capricious, fanciful, spiteful or prejudiced”,
• Having sufficient reason for the dismissal, e.g. does the employee’s conduct or performance justify dismissal or is the employee’s work no longer an operational requirement of the employer,
• Carrying out the dismissal in a way that is procedurally fair, such as investigating allegations and giving employees an opportunity to respond to allegations,
• A decision to dismiss should not be harsh or unreasonable given the circumstances,
• Giving notice of dismissal to the employee.

If an employee feels they have been unfairly dismissed they may be able to apply to the Fair Work Commission (FWC) for reinstatement or compensation. If FWC considers a dismissal to be unfair, it may order the employee be reinstated or compensation be paid to them.

An employee could also make an unlawful termination claim to FWC or discrimination claim to the applicable state/territory discrimination or human rights commission. Prospective employees, those who may only be candidates for a vacant position may be able to make a claim.

The MEA Employer Advice team recommends that all Master Electricians take the time to prepare for dismissal by seeking advice on how to engage in reasonable management action in a reasonable way.

The MEA Employer Advice team is available to discuss any Fair Work, or employment law questions that Master Electricians may have. If you need assistance with Fair Work phone the experts direct on 1300 889 198.