What governs the employer/
employee relationship?
An employer/employee relationship is
governed by common law principles, the
requirements of the fair work legislation,
any applicable award, the terms of any
‘enterprise agreement’ and the terms of the
employment agreement/contract.
Enterprise agreements are basically
agreements made between an employer
and its employees at an ‘enterprise’ level
as opposed to being directly entered into
between the employer and each employee
individually.
The terms of an employment agreement/
contract can be written or verbal, but
should preferably be in writing. However,
before discussing employment agreements/
contracts, it is important to consider the
minimum terms and conditions which will
apply to fitness industry employees.
Minimum Terms and Conditions
The FWA sets out minimum terms
and conditions for most private sector
employees, and employment agreements
are subject to the minimum entitlements
and conditions contained in the National
Employment Standards (NES) and any
applicable award.
NES
The NES are part of the FWA and set out 10
minimum entitlements, namely:
1. Maximum weekly hours – 38 hours per
week, plus reasonable additional hours
2. Requests for flexible working
arrangements – certain employees can
ask for a change in their working
arrangements
3. Parental leave – up to 12 months unpaid
leave per employee, as well as the right to
request an additional 12 months leave
4. Annual leave – four weeks paid leave per
year, plus an additional week for some
shift workers
5. Personal/carer’s leave and
compassionate leave – 10 days paid
personal/carer’s leave per year, two days
unpaid carer’s leave and two days
compassionate leave (unpaid for casuals)
as re quired
6. Community service leave – unpaid leave
for voluntary emergency management
activities and leave for jury service
Written employment agreements can not only provide
protection to the employer, but may also assist in
providing the best chance for an employee to succeed in
your business.
7. Long service leave – paid leave for
employees who have been with the same
employer for a long time
8. Public holidays – a paid day off on a
public holiday, unless reasonably
requested to work
9. Notice of termination and redundancy pay
– up to five weeks’ notice of termination
and up to 16 weeks redundancy pay,
based on length of service
10. Fair Work Information Statement – must
be provided to all new employees.1
Failure to comply with the NES (and other
provisions of the FWA), such as failing to
provide the Fair Work Information Statement
to new employees, exposes employers
to potential penalties of up to $10,200 for
individuals and $51,000 for companies.
Did you provide a Fair Work Information
Statement to the last employee you hired?
It should also be noted that even employees
of employers can be exposed to penalties
under the ‘accessorial liability’ provisions of the
FWA if they are involved in a breach of the FWA.
Fitness Industry Award 2010
Employment agreements must also be read
subject to any applicable award, such as
the Fitness Industry Award 2010 (Award).
The Award sets out the minimum wages
and conditions for employers engaged in
the fitness industry and their employees
covered by the Award. The minimum
conditions set by the Award are in addition
to those contained in the NES.
Every fitness business should familiarise
itself with the Award to determine which of
its employees are covered by it and what
entitlements are required to be provided
to those employees. It is also important to
continually monitor the position with your
various employees because there can be
changes in entitlements (e.g. requirement to
pay a higher wage), for instance, if the nature
of the work changes.
Details on the Award, NES and other
useful employment information can be
obtained from fairwork.gov.au.
Why the need for a written
employment agreement?
Even though all employees will have
minimum terms and conditions as set by
the above referenced instruments, written
employment agreements can help avoid
disputes. In appropriate circumstances,
they can not only provide protection to the
employer, but may also assist in providing
the best chance for an employee to succeed
in your business.
The next instalment in this series of
articles will further discuss some of the
issues that should be considered with
regards to employment agreements, and
look at how to minimise difficulties when
things don’t work out.
This article has provided a general outline only of
some of the issues relating to hiring employees. It
does not constitute legal advice and should not be
relied upon as such. Specific legal and financial
advice should be obtained in relation to the specific
details of each proposed employment arrangement.
Leon Ponte, Juris Doctor (Law) is the founding
principal of Ponte – Business Lawyers for Business
and is in a select group of approximately only 110
lawyers accredited as specialists in business law
by the Law Institute of Victoria. He has a strong
personal interest in the fitness industry, holding
Certificates III and IV, and has provided advice to
fitness facilities, personal trainers and suppliers to
the industry. ponteblfb.com.au
Any questions?
If you have a legal question about
running a fitness business, email
[email protected] and your
question may be addressed in a future issue.
1. Fair Work Ombudsman (Australia) A Guide to Hiring New Employees (fairwork.gov.au/find-help-for/small-business/hiring-employees)
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