| AFPCS – Australian Fair Pay & Conditions Standard |
These are terms and conditions which apply to all employees covered by the Workplace Relations Act 1996 (WRA). Includes provisions in relation to wages; maximum ordinary hours; annual leave; personal leave; and parental leave.
To be replaced by National Employment Standards under the Fair Work Act 2009 which commences on 1 January 2010. |
| AIRC – Australian Industrial
Relations Commission |
Federal workplace relations tribunal. Most of its powers assumed by Fair Work Australia on 1 July 2009. The remainder of its powers will be assumed by Fair Work Australia on 1 January 2010. |
| APPLICANT |
The party which commences legal action against another. In some jurisdictions known as a plaintiff. |
| AWARD |
An industrial instrument created by the Australian Industrial Relations Commission (in the case of federal awards) or the relevant state Industrial Relations Commission, which provides for certain terms and conditions of employment. An award may be common rule (applying to an entire industry), enterprise (applying to a particular enterprise) and respondency based (applying only to those employers listed as respondents to it).
From 1 January 2009 current federal awards will be replaced by Modern Awards. |
| AWARD EMPLOYEE |
An employee whose employment is the subject of an award (whether federal or state), as opposed to a non-award employee who is not the subject of an award. The majority of Australian employees are award employees. |
| AWARD-FREE EMPLOYEE |
An employee whose employment is not the subject of an award. Usually professional and more senior employees and those in new/emerging industries. |
| BASE RATE OF PAY |
The base rate of pay of a national system employee is the rate payable to him/her for ordinary hours worked but not including: incentive based payments and bonuses; loadings; monetary allowance; overtime and penalty rates; and any other separately identifiable allowance. See also ‘Full rate of pay’. |
| BETTER OFF OVERALL TEST |
Since 1 January 2010 enterprise agreements made by national system employers and employees under the Fair Work Act 2009 are subject to this test. It means that an award covered employee must be better off overall if the agreement applied to the employee than if the relevant Modern Award applied. |
| BULLYING |
This term has not been defined in legislation or otherwise in case law. It is generally thought to refer to repeated, unreasonable behaviour directed towards an employee, or group of employees which may result in a risk to the health and safety of the employee. |
| CASUAL EMPLOYEE |
A worker who is engaged on an irregular and short term basis.
For specific legislative purposes, may include a worker who is
employed on a regular and systematic basis for a “short
period” (usually less than 12 months). For award purposes, an
employee who is engaged and paid as such. |
| COLLECTIVE AGREEMENT |
An industrial instrument, created and approved by the parties to it (i.e. an employer and a group of employees or an employer and a union). May be a union collective agreement or an employee collective agreement or an employer greenfields agreement or a union greenfields agreement or a multiple-business agreement. Also known as an enterprise agreement. |
| CONSTRUCTIVE
DISMISSAL |
The circumstances in which an employee resigns or
otherwise leaves his/her employment as a consequence of
the employer’s conduct. A clear example is where an
employer demands that an employee “resign or be sacked!”.
However it may arise in more subtle circumstances. |
| CONTRACT |
An agreement between two or more parties. The obligations
of the parties under the contract may be implied or express or
both. The contract may be oral or in writing or a combination
of both. |
| CONTRACT FOR
SERVICE |
A contract for a contractor to provide services to another.
The parties to the contract for service have a commercial
relationship. |
| CONTRACT OF SERVICE |
A contract between an employee and employer. The parties
to the contract of service have an employment
relationship. |
| CONTRACTOR |
A person who or entity which contracts with another party
under a contract for service. |
| DEFENDANT |
The party against whom legal action is taken. In some
jurisdictions known as a respondent. |
| DISMISSAL |
Termination of the employment contract at the initiative of
the employer. Can include constructive dismissal (see above). |
| EMPLOYEE |
A person who is employed by an employer under a contract of
service. |
| EMPLOYER |
A sole trader, partnership, corporation or government
entity which employs employees. |
| FAIR WORK ACT 2009 |
Key legislation in federal workplace regulation system. It applies to all private sector employers and their employees as well as Commonwealth public sector employers and their employees. |
| FAIR WORK AUSTRALIA |
Federal workplace relations tribunal. Replaces the Australian Industrial Relations Commission. Find out more at www.fairwork.gov.au |
| FAIR WORK OMBUDSMAN |
Federal government body responsible for providing information about workplace rights and responsibilities, investigation workplace complaints and enforcing compliance. |
| FMW – Federal Minimum
Wage |
The minimum wage for all Australian employees covered by the Fair Work Act 2009. From 1 July 2010 onwards the FMW will be set by Fair Work Australia. |
| FULL RATE OF PAY |
The full rate of pay of a national system employee is the rate if pay payable to him/her including all of the following: incentive based payments and bonuses; loadings; monetary allowance; overtime and penalty rates; and any other separately identifiable allowance. |
| GENUINE REDUNDANCY |
A dismissal of an employee will be a case of genuine redundancy if the person’s employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employee’s enterprise and the employer has complied with any obligation to consult about the redundancy in a Modern Award or enterprise agreement that applies to the employee. The dismissal will not be a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer. |
| GOOD FAITH BARGAINING |
Bargaining representatives for a proposed enterprise agreement are required to engage in good faith bargaining, by:
attending and participating in meetings at reasonable times; disclosing relevant information (other than confidential information) in a timely manner; responding to proposals made by other bargaining representatives for the agreement in a timely manner; giving genuine consideration to the proposals of other bargaining representatives for the agreement and giving reasons for his/her responses to those proposals; refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining; recognizing and bargaining with the other bargaining representatives for the agreement. This does not require a bargaining representative to either make concessions during bargaining or to reach agreement on the terms that are to be included in the agreement. |
| GREENFIELDS
AGREEMENT |
A workplace agreement made in relation to a new business. |
| INDUSTRIAL ACTION |
Under the Fair Work Act 2009, industrial action is: performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee the result of which is a restriction or limitation on, or a delay in, the performance of the work; a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employer; a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work; and, the lockout of employees from their employment by their employer. |
| JURISDICTION |
A Court, Commission or Tribunal will be entitled to
hear only certain sorts of claims – this is what is
known as the jurisdiction. This will be determined by the
nature of the claim and applicable legislation. For example,
because the remedy of an unlawful termination claim derives
only from Federal legislation and only the Federal Court is
empowered to hear such claims, the applicable jurisdiction is
that of the Federal Court. |
| MAXIMUM ORDINARY
HOURS |
Under the National Employment Standards (NES) the maximum ordinary hours which can be worked by any employee the subject of the Fair Work Act 2009 is 38 hours per week and reasonable additional hours. What is “reasonable additional hours” is determined by reference to a number of matters relevant to the particular workplace and the circumstances of the particular individual employee. |
| MODERN AWARD |
An award which applies to national system employers and their employees who come within the coverage and classification provisions of the relevant Award. Modern Awards commenced on 1 January 2010. |
| MULTIPLE BUSINESS
AGREEMENT |
A workplace agreement involving more than one business and its employees. |
| NAPSA – Notional Agreement Preserving a State Award |
This document includes any term and condition that was in the original State award, except for terms relating to wages or wage and classification structure. Includes preserved entitlements. Terms which contain prohibited content are void.
From 1 January 2010 NAPSAS will be overridden by any applicable Modern Award. |
| NATIONAL EMPLOYER STANDARDS (NES) |
A set of 10 minimum terms and conditions of employment which applies to all national system employees. The NES commenced on 1 January 2010 Includes: maximum ordinary hours; request for flexible work hours; notice of termination and redundancy pay; annual leave; personal career’s leave; parental leave; community services leave; long service leave; public holidays; Fair Work Information Statement. |
| NATIONAL SYSTEM EMPLOYEE |
An employee employed by a national system employer – for example a Company. This employee’s employment is regulated by the Fair Work Act 2009. |
| NATIONAL SYSTEM EMPLOYER |
A national system employer includes private sector employers operating nationally or in any State other than Western Australia or in the Territories as well as Commonwealth public sector employers and Commonwealth authorities. |
| NON-AWARD EMPLOYEE |
Also known as a common law employee. This is an employee whose employment is not the subject of an award. As with award employees, the employment of these employees is the subject of the common law and all relevant legislation (both Federal and State). |
| ONUS OF PROOF |
This refers to the party to legal action who/which is
responsible for proving an element or elements of the
action. The onus of proof will usually be borne by the
party commencing the action. However in some
situations the onus of proof will be borne by
the party defending the action – e.g. unlawful
termination claims. |
| OPERATIONAL REASONS |
Reasons of an economic, technological, structural or
similar nature relating to the employer’s undertaking,
establishment, service or business: refer subsection
643(9) of the Workplace Relations Act 1996 (Cth). If an employee is dismissed from his/her employment
for a genuine operational reason he/she will not be
eligible to make an unfair dismissal claim. |
| PARENTAL LEAVE |
Provided for under the NES this form of leave includes maternity leave, paternity leave and adoption leave. Parental leave includes the entitlement to 12 months unpaid leave following the birth of a child. In certain circumstances an employee may be entitled to request an extension of parental leave by an additional 12 months.
From 1 January 2010 this entitlement will be one of the National Employment Standards under the Fair Work Act 2009. |
| PART-TIME
EMPLOYEE |
An employee who works for less than 38 hours per week. An award applying to a part-time employee may include restrictions on the number of part-time workers who may be engaged and a minimum number of days and/or hours for which a part-time employee may be engaged. |
| PERSONAL LEAVE |
Provided for under the NES, this form of leave includes sick leave, personal career’s leave and compassionate
Leave. A full time employee is entitled to 10 days sick leave for each year of service. |
| LITIGATION |
Legal action taken by one party against one or more other
parties in a Court, Commission or Tribunal. The entitlement
to bring such legal action will be sourced from the common
law or legislation. |
| PLAINTIFF |
The party which commences legal action against another. In
some jurisdictions known as an applicant. |
| REASONABLE
NOTICE |
Under the common law most open-ended contracts,
including employment contracts, can only be terminated by
the provision of notice. Where the amount of notice is not
expressly stated in the contract, “reasonable notice” will have
to be provided. What is “reasonable” will depend on all the
circumstances of the employment contract. |
| REDUNDANCY |
Where an employer no longer requires a role to be performed
by anyone. Usually arises as a consequence of organisational
restructure and/or technological change. It does not
immediately follow that the employee who holds the position
will be dismissed (retrenched). This will depend on whether
suitable alternate employment can be offered to the employee. |
| RESPONDENT |
The party against whom legal action is taken. In some
jurisdictions known as a defendant. |
| RETRENCHMENT |
A ground of dismissal where the position held by an employee
has been made redundant and either there is no suitable
alternative employment available to the employee or the
employee has rejected the suitable alternative employment. |
| SEVERANCE
PAY |
This is an amount which will be payable to an employee whose
position has been made redundant and whose employment has
been terminated on the ground of retrenchment provided that
there is no suitable alternative employment is available. |
| SEXUAL
HARASSMENT |
A person is sexually harassed if another person makes an unwelcome sexual advance or an unwelcome request for sexual favours or the other person engages in unwelcome
conduct of a sexual nature in relation to the person harassed in
circumstances in which a reasonable person, having regard to
all the circumstances, would have anticipated that the person
harassed would be offended, humiliated or intimidated.
Conduct of a sexual nature includes a statement of a sexual
nature to a person or in his/her presence, orally or in writing.
See section 28A of the Sex Discrimination Act (Cth) and section
22A of the Anti-Discrimination Act 1975 (NSW).
Two main types of sexual harassment occur in the workplace: harassment accompanied by an employment threat or benefit, for example where a supervisor coerces an employee into submitting to their advances in order for some benefit to be given (e.g. a pay rise); and where a hostile work environment is created, this arises from relentless and continuing unwelcome sexual conduct that interferes with an employees work performance or that creates an intimidated, hostile, abusive or offensive work environment. |
| UNLAWFUL
TERMINATION |
All employees are eligible to make an application to the AIRC if they believe that their employment has been terminated for a prohibited reason. These reasons include (but are not limited to): race, sex, disability and age discrimination. The AIRC is empowered to conciliate these applications. If the matter is not successfully conciliated, the applicant may opt to have the matter referred to the Federal Court of Australia (“the Court”). The Court is empowered to order reinstatement or re-employment and/or compensation if the application is successful. The Court may also impose financial penalties on an employer found to have unlawfully terminated the employment of an employee. |
| VICARIOUS
LIABILITY |
In most circumstances an employer will be liable for the acts of his/her/its employees and agents in the course of their employment. |
| WORKPLACE
HARASSMENT |
This term refers to all forms of conduct within a workplace
which humiliates, offends or intimidates. This includes
bullying, sexual harassment and other behaviours. |
| WRA -
Workplace Relations Act 1996 (Cth)
|
The key industrial legislation for the Federal workplace relations system until 1 July 2009. While some provisions have been overridden by the Fair Work 2009 (FWA), others continue to apply until 1 January 2010 and some others for a transitional period of up to 5 years. |
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