What does the Fair Work Act 2009 do?
The Fair Work Act 2009 (Cth), Act No. 28 of 2009, is the principal statute of Australia's national workplace relations system. The Fair Work Ombudsman describes that system as a collection of legislation applying to most employees and employers in Australia, comprising the Fair Work Act itself, the National Employment Standards, registered agreements and awards. The Act is amended frequently. The latest registered compilation is No. 72 (C2026C00293), which takes the text to 1 July 2026, and further amendments that commenced on 7 July 2026 have not yet been incorporated into a compilation.
Its core output is the National Employment Standards, the minimum entitlements that must be provided to employees in the national system. The listed entitlements are maximum weekly hours, requests for flexible working arrangements, casual employment, parental leave and related entitlements, annual leave, personal and carer's leave together with compassionate leave and family and domestic violence leave, community service leave, long service leave, public holidays, superannuation contributions, notice of termination and redundancy pay, and the Fair Work Information Statement and Casual Employment Information Statement.
The NES operates as a floor rather than a default. Other instruments, including awards, employment contracts, enterprise agreements and other registered agreements, cannot provide conditions less than the NES and cannot exclude it. Casual employees receive only some NES entitlements, though those include paid family and domestic violence leave and both information statements.
The Act also establishes the Fair Work Commission, the tribunal that makes awards, approves enterprise agreements and resolves the disputes the Act creates jurisdiction over.
Who does the Fair Work Act 2009 apply to?
It applies to employers and employees in the national workplace relations system, which is most of the Australian workforce. Coverage is not universal, and some state public sector employment sits outside it, so the threshold question in any matter is whether the national system applies at all.
Several obligations turn on employer size. A small business employer is one with fewer than 15 employees at a particular time, counting employees of associated entities and counting casuals only where they are engaged on a regular and systematic basis. That definition drives the unfair dismissal minimum employment period, which is 6 months generally and 12 months for a small business employer, and it drove the staged commencement of the right to disconnect.
Unfair dismissal has a hard procedural edge. An employee who believes they have been unfairly dismissed must apply to the Commission within 21 days of the dismissal. The Commission then assesses whether the dismissal was harsh, unjust or unreasonable, including whether an employee dismissed for underperformance had been warned about their performance beforehand.
Where does AI fit under the Fair Work Act 2009?
The Act does not mention AI. It still shapes AI use in three practical ways.
The first is the right to disconnect, which is now an NES entitlement. Employees may refuse to monitor, read or respond to contact, or attempted contact, outside their working hours unless doing so is unreasonable, and contact includes calls, emails, texts, social media and messaging services from an employer or a third party. It applied from 26 August 2024 for non-small business employers and 26 August 2025 for small business employers. The reasonableness assessment weighs the reason for contact, how disruptive it is, whether the employee is compensated for availability, the employee's role and level of responsibility, and their personal circumstances. AI assistants and automated notification systems that push work into evenings do not create an exemption, and every award now includes a right to disconnect clause.
The second is dismissal and performance. Where an AI system informs a performance assessment or a dismissal decision, the employer still has to satisfy the harsh, unjust or unreasonable test and show the employee was warned. A model output is evidence to be tested, not a substitute for process.
The third is the interaction with privacy law. From 10 December 2026 the Privacy Act 1988 requires entities using personal information in automated decision making that could significantly affect rights or interests to disclose that use. Workforce decisions sit squarely in that category, and the employee records exemption is narrow enough that it should not be assumed to apply.
What should practitioners do under the Fair Work Act 2009?
Audit where automation already touches an employment decision. Rostering engines, productivity dashboards, monitoring tools and drafting assistants used in performance documentation are all in scope even when nobody has called them AI.
For the right to disconnect, set written expectations about out of hours contact rather than relying on custom, check the specific clause in the applicable award or enterprise agreement, and configure tooling so automated messages are not generated outside working hours by default. For dismissal risk, keep the human decision record separate from and superior to any system output, and preserve the warning trail.
Read this alongside the Fair Work Commission entry, since the Commission is where a dispute about any of the above will be resolved, and the HR section for practitioner-level material.
Bottom line
The Fair Work Act is the principal statute of Australia's national workplace relations system, setting the National Employment Standards as a floor no award, contract or registered agreement can undercut or exclude, and establishing the tribunal that resolves the disputes it creates jurisdiction over. It never mentions AI and still shapes AI use in three ways: the right to disconnect, now an NES entitlement carried by every award; the dismissal and performance tests, where a model output is evidence to be tested rather than a substitute for process; and the interaction with privacy law once automated decisions that significantly affect a person must be disclosed. For Australian employers that means auditing where automation already touches an employment decision, including rostering engines, productivity dashboards, monitoring tools and drafting assistants nobody has labelled as AI. Keep the human decision record separate from and superior to any system output, preserve the warning trail, and check the right to disconnect clause in the instrument that actually applies.
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TheAICommand. Intelligence, At Your Command.