An industrial instrument is a legally enforceable document relating to minimum entitlements for employees covered within its scope. This usually refers to a modern award, enterprise agreement, and any preserved instrument made under the previous workplace relations system.

The minimum conditions provided under these instruments apply automatically and cannot be overridden by any other arrangement between the employer and an employee.

Types of industrial instruments

Although the Fair Work Act introduced modern awards and enterprise agreements as new industrial instruments, the Fair Work (Transitional and Consequential Amendments) Act 2009 [Cth] preserved existing industrial instruments.

The following are common types of industrial instruments in Australia:

  • modern award
  • enterprise agreement
  • Individual Transitional Employment Agreement (ITEA)
  • workplace agreement
  • preserved state collective or individual agreement
  • pre-reform certified agreement
  • a pre-reform Australian Workplace Agreement (AWA)
  • workplace determination
  • an old IR agreement
  • section 170MX award.

What do industrial instruments cover?

This depends on the type of award, enterprise agreement or other instrument used. Generally speaking, industrial instruments set out rules around the following:

  • maximum weekly hours
  • parental leave and related entitlements
  • annual leave
  • personal leave and compassionate leave
  • community service leave
  • long service leave
  • public holidays
  • notice of termination and redundancy pay
  • any other entitlements or conditions of employment covered by that instrument.

 

Industrial instruments and the National Employment Standards (NES)

The national minimum wage and the National Employment Standards (NES) make up the minimum entitlements for employees in Australia.

An award, employment contract, enterprise agreement or other industrial instrument can't provide for conditions that are less than the national minimum wage or the NES. They also can’t exclude the NES.

The 10 minimum entitlements of the NES are:

  1. maximum weekly hours 
  2. requests for flexible working arrangements
  3. parental leave and related entitlements
  4. annual leave
  5. personal/carer's leave, compassionate leave and unpaid family and domestic violence leave
  6. community service leave
  7. long service leave
  8. public holidays
  9. notice of termination and redundancy pay.