Most employees in Australia are covered by one of the nation’s Modern Awards. There are roughly 130 of these Awards, and it’s critical your clients know which Awards apply to their employees because penalties of up to $54,000 per breach apply.
Most employer non-compliance is caused by a simple lack of awareness: if they haven’t confirmed which Awards apply in their workplace, it simply isn’t possible for them to be compliant.
1. Award Coverage
It’s critical to note that Modern Awards apply as a matter of law and not employer choice or preference. This means your clients can’t decide for themselves which Award(s) will apply in their workplace.
If a Modern Award covers an employee’s industry or occupation – and if that Award contains an appropriate classification for the work performed by an employee – chances are that Award applies as a matter of law.
This is critical because relying on a defence of ‘I didn’t know about the Award’ simply won’t work, especially given Modern Awards have now been in force for almost 6 years.
2. Copies in the Workplace
By law, employees must have access to a copy of their Modern Award in the workplace, either in hard copy or in electronic form.
One of the first things a Fair Work Inspector will do during a random workplace audit is ask where the Award is located. They may also ask your client’s employees if they know the name of their Award and where the Award can be found. If your client’s employees have no idea, your clients will find themselves in trouble.
3. Classifying Employees
Almost every Modern Award contains a clause requiring your client to confirm – in writing – which of the Award’s classification levels applies to each of their employees. This obligation applies even if your clients are paying employees ‘above-Award’ wages or salaries.
Your clients will, accordingly, be in breach of this legal obligation if they’ve never determined which Modern Award(s) apply in their workplace.
4. Written Agreements
Many Modern Awards also impose a legal obligation on employers to record certain information in writing when a new worker commences employment.
For example, most Modern Awards require part-time employees to be issued with a written agreement about their days and hours of work. These written agreements are not ‘optional’ and they must comply with the applicable Award’s requirements.
5. Award(s)…With an ‘S’!
It’s possible for more than one Modern Award to apply to your client’s workplace. The general rule is that an individual employee can only be covered by one Modern Award at a time, but this doesn’t prevent multiple Modern Awards applying to different employees across different parts of a business.
Accordingly, it’s critical your clients identify all applicable Modern Awards to ensure they’re fully-compliant.
Modern Awards sound like hard work because, frankly, they are! And they’re just one part of Australia’s incredible complex employment laws. If your clients need help understanding Modern Awards (or dismissals, performance management, workplace health and safety, or the 10 National Employment Standards – NES), talk to the friendly experts at Workforce Guardian today.
David Bates, MD, Workforce Guardian. Ph 1300 659 563
FREE HR HEALTH CHECK FOR KEY ADVISORS
Under section 550 of the Fair Work Act 2009, key business advisors such as accountants and bookkeepers can be held personally liable as an ‘accessory’ for their clients’ breaches of Australian employment law. Workforce Guardian’s FREE Fair Work Liability Check will confirm whether you’re exposed to potential penalties of up to $54,000 for each of your own and your clients’ breaches of Australian employment law. If you answer no/unsure to any of these questions, you should take urgent action to reduce your risk of accessorial and personal liability.