HR Hot Tip – Which industrial instruments apply to which groups of employees?

22 October 2020

Welcome to our series of HR interviews with Lawyer Monika Nosal who answers some of the most common questions asked by HR managers regarding employees’ legal entitlements.

The most common industrial instruments are:

  • modern awards
  • enterprise agreements
  • the National Employment Standards (NES)

Modern awards provide minimum terms and conditions of employment for a specific industry or occupation. Not all industries and occupations are covered by a modern award.

An enterprise agreement is a negotiated collective agreement between one or more employers and employees, which has been approved by the Fair Work Commission. An enterprise agreement sets out the minimum terms of employment between the parties covered by the agreement. There are certain terms an enterprise agreement must contain in order for it to be approved. An enterprise agreement may also incorporate certain terms from the relevant modern award.

All employees in the national system are covered by the NES. NES conditions cannot be excluded by modern awards and enterprise agreements.

Employers should familiarise themselves with the instruments relevant to their workforce.

Employers obligations under the NES, modern awards, enterprise agreements and contracts can be complex, overlapping, and at times confusing.

Employers need to familiarise themselves with and understand their legal obligations in order to avoid any possible claims by employees (both existing and former) and unsuccessful job applicants, as well as prosecution by the Fair Work Ombudsman. Under the accessorial liability provisions of the Fair Work Act 2009 (Cth), employers and individuals such as directors and HR managers can be personally held accountable for breaching workplace laws in certain circumstances.

A HR Legal Audit conducted by Rigby Cooke can provide the HR function and, in turn, provide employers with comfort in knowing that they are legally compliant, or at least provide advance warning of any potential compliancy issues before they become problematic.

Disclaimer: This publication contains comments of a general nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional advice. No responsibility can be accepted by Rigby Cooke Lawyers or the authors for loss occasioned to any person doing anything as a result of any material in this publication.

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