It is common knowledge that the Fair Work Act 2009 and the National Employment Standards are the building blocks of Australia’s industrial relations system, forming the core framework for regulating employment relationships and rights and obligations for both employers and employees. 

However, with such a comprehensive and complex system, employers may feel overwhelmed by the responsibility of ensuring that their organisation and systems are compliant.

The Fair Work Health Check-up, located on the APA’s HR Portal, has been developed to make this process easier for members by providing an accessible document that covers the key obligations an employer must fulfil.

What is the Fair Work Health Check-up?

A longstanding resource available to members, it has recently undergone an update in recognition of the significant industrial relations changes in 2022–23. 

The Fair Work Health Check-up resource is essentially an all-in-one tool designed to make both employers and employees aware of the relevant legislation and industrial instruments that may apply to them, ensuring that the foundation of HR compliance upon which everything else is built is accurate.

Members answer specific questions in relation to the legislation and then perform self-assessments to determine whether they are compliant or not.

The check-up can be broken down into three core categories.

Industrial relations

This section is a general checklist covering industrial relations systems, industrial instruments and employment standards, obligations in relation to common HR issues (eg, casual conversion and sexual harassment), applicable employee information statements and leave entitlements.

Pay and conditions

This section provides a general checklist covering how employees must be paid, pay slip requirements and entitlement to penalty rates and allowances in accordance with the relevant award or agreement.

Time and wages record keeping

This section is a general checklist of all the relevant record keeping requirements for employers. 

It’s not uncommon for this to be overlooked and this checklist makes sure it does not remain forgotten.

Why is the Fair Work Health Check-up important?

The core benefit of this resource is its focus on compliance. Compliance with the applicable legislation and industrial instruments is important because their primary purpose is to facilitate fair and equitable treatment for both employers and employees within Australia. 

There has been a greater focus on industrial relations in recent years, with new compliance penalties being considered—one such example is the possibility of federal wage theft laws in the upcoming Fair Work Legislation Amendment (Closing Loopholes) Bill 2023.

The best time to address noncompliance is now rather than waiting to be caught out down the line. 

Key reasons why it’s important for members to review the Fair Work Health Check-up include (but are not limited to) the following.

Preventing underpayment claims

The Fair Work Act 2009 and industrial instruments such as modern awards set out the minimum wages that employers must pay to their employees. 

Ensuring, through the Fair Work Health Check- up, that these minimum wage standards are being adhered to allows underpayment claims to be significantly minimised or prevented altogether.

Minimising or eliminating employee disputes

Adhering to the Fair Work Act 2009 and the National Employment Standards can help prevent workplace disputes, since clear compliance with employment laws and standards reduces the likelihood of conflicts arising from misunderstandings or perceived injustices. 

This helps facilitate a more positive work environment and minimises the time associated with fixing employment issues as they arise. Prevention is the best cure for a future problem.

Facilitating positive employee relations

Compliance helps build positive relationships between employers and employees. 

When employees feel that their rights are respected and upheld, they are more likely to be satisfied, engaged and motivated in their roles. 

This improves employee productivity and retention and minimises the costs associated with performance management or recruitment should an employee leave the business.

Potential penalties for noncompliance

It’s crucial to emphasise that compliance isn’t a discretionary action; it is a legal obligation for employers to uphold. Failure to adhere to these obligations can result in significant ramifications, not only for the business as a whole but also on an individual level. 

Individuals such as a director involved in an organisation can be subject to fines when there has been a violation of the Fair Work Act 2009 or Fair Work regulations.

Direct (financial) penalties will depend on the nature of the noncompliance issue—for example, whether it was a contravention of the Fair Work Act 2009, a breach of Fair Work regulations or underpayment within an award. 

A Fair Work Inspector has the authority to issue an infringement notice to the business and to individuals, which obliges employers to pay a penalty. 

Underpayment can also result in the need to make back payments, including interest.

In addition to this, it is important to note that a business can also experience indirect consequences that stem from the initial noncompliance. 

Most notably, employers who have previously been found to be in violation of the Fair Work Act 2009 may inadvertently subject themselves to heightened scrutiny from regulatory bodies like the Fair Work Ombudsman, possibly triggering additional, unplanned investigations and audits of the business in the future. 

These are onerous and time-consuming processes. 

Employers may also suffer reputational damage due to noncompliance with their obligations, which can have a flow-on effect on business performance.

In summary

It is imperative for employers to maintain a vigilant approach to adhering to the Fair Work Act 2009 and any other applicable industrial instruments. 

Employers are strongly encouraged to make use of the Fair Work Health Check-up resource as an effective means of self-assessing compliance with their employment obligations and avoiding future issues. 

APA Business Group Premium Principal members can access the resource by heading to the APA’s HR Portal and navigating to ‘Recruitment’>‘Complying with workplace legislation’>‘Fair Work Health Check-up’.

Content supplied. The HR in Practice specialist workplace relations and work (occupational) health and safety advisory service is operated by Wentworth Advantage.

APA Business Group Premium Principal members can contact the HR in Practice service on 1300 138 954 or hrinpractice@australian.physio or click here to access the full suite of online resources.

For more information about joining the APA Business Group, email info@australian.physio or call 1300 306 622. 

>>Disclaimer: The material contained in this publication is general comment and is not intended as advice on any particular matter, nor should it be relied on as a substitute for legal or professional advice. Wentworth Advantage Pty Ltd expressly disclaim all and any liability to any persons whatsoever in respect of anything done or omitted to be done by any such person in reliance whether in whole or in part upon any of the contents of this publication. ©Wentworth Advantage Pty Ltd. 2023