Awards are enforceable documents containing minimum terms and conditions of employment in addition to any legislated minimum terms. Comparatively an employment contract states the rights and responsibilities between an employer and employee.
Does an award apply to my occupation?
The first step to take is understanding your rights as an employee. This means determining if your position falls under an award or registered agreement. An award or registered agreement covers most employees.
However, every employee in Australia is entitled to a national minimum wage and the National Employment Standards (NES). This is irrespective of the kind of agreement they fall under. To check if your position is covered under an award, Fair Work Australia offers a simple tool.
Visit Fair Work Australia to see if your position is covered.
Awards do not cover many managers and senior professionals. High income earners also do not fall under awards. This refers to individuals guaranteed to earn more than the high income threshold for that year.
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Does my employment contract trump an award?
When you sign an employment contract you are legally binding yourself to uphold certain responsibilities. Subsequently it’s important to understand if you’re losing any rights with a new position. Similarly, if you are an employer it’s important to make sure your employment agreement accurately reflects the rights and responsibilities you wish to convey.
An important note here is that an employment agreement cannot make employees worse off than their minimum legal entitlements. This means even if a signed employment agreement states an employee will have more diminished rights than an award or the NES, they will continue to apply.
Example
A food service business which is part of the hospitality industry in Sydney employs Alex as a senior manager. Business A does not have a registered agreement. The Hospitality Award covers most hospitality employees and some management staff but not senior managers. Subsequently, the Hospitality Award does not cover Alex. There are also no other awards which apply to Alex’s role. Alex’s position is therefore award and agreement free. His employment agreement will consequently contain his entitlements and rights. His rights will be inclusive of the NES as under the Fair Work Act 2009.
Conclusion
Ultimately a key takeaway is that all Australian employees regardless of their contract, award or registered agreement have specific rights under the National Employment Standards.
Simply put, signing an employment agreement will not mean you are no longer covered by an award. So long as your position continues to be under an award, the employment agreement will not replace the entitlements the award affords you.
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