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What every employer should know about the National Employment Standards and their Fair Work obligations

National Employment Standards

From 1 January 2010, employers and employees in the national workplace system have been covered by the new National Employment Standards (NES).

Under the NES, employees have guaranteed minimum conditions. Together with pay rates in modern awards (which also generally took effect from 1 January 2010) and minimum wage orders, the NES makes up the safety net that cannot be altered to the disadvantage of the employee.

In addition to the NES, generally an employee's terms and conditions of employment come from a modern award, agreement, award and agreement based transitional instruments, minimum wage orders, transitional minimum wage instruments, state or federal laws.


Fair Work Information Statement

From 1 January 2010, all employers covered by the national workplace relations system have an obligation to give to each new employee a Fair Work Information Statement (the Statement) before, or as soon as possible after, the employee starts employment.


Providing this statement is one of the 10 minimum standards in the NES that apply to the employment of employees.

What's in the Statement?
The Statement contains information about:

  • the NES
  • the effect on an employee's NES entitlements when there is a transfer of business
  • modern awards
  • making agreements under the Fair Work Act 2009
  • individual flexibility arrangements
  • the right to freedom of association
  • termination of employment
  • right of entry (including the protection of personal information by privacy laws)
  • the roles of the Fair Work Ombudsman and Fair Work Australia.

Recent developments

The Fair Work Ombudsman (FWO) has received a lot of press in recent times with high profile industrial action affecting industries right around the country. Don't be fooled into thinking that the FWO is focused on big business though. There is increasing activity by this body toward small business compliance with the Fair Work Act 2009 and this means that if you employ, you must review your arrangements.

The most critical issue for small business owners is if you have responsibilities for determining and adjusting your employee wage rates, you may become personally liable for penalties if your company fails to meet its minimum legal obligations. Check this excerpt from David Bates, MD, Workforce Guardian, a leading online employment relations service for employers:

'As a company director you need to be diligent, methodical and accurate in your observance of the Fair Work Act 2009. And this includes the Modern Awards you apply to your employees and the entitlements that they receive. It's really important to remember that just because you pay over and above the Modern Award pay rates it doesn't mean that you're exempt from the overall provisions of the particular Modern Award and National Employment Standards (NES).

'As a case in point, a penalty of $72,000 was recently imposed on the sole director and company secretary of a waste management facility in the Australian Capital Territory who had been found to be underpaying 10 of its former employees.'

To read more from David Bates, check out the Blog on

If you have any concerns about your compliance with the Fair Work Act, please phone Glenn Ingram on 03 5144 4566 or email: You can also refer to the Fair Work Australia website at: