The Australian Resources and Energy Employer Association (AREEA) has called on the Federal Government to use the National Employment Standards (NES) review to fix structural flaws in Australia’s workplace laws, not expand entitlements or add more complexity and business costs. 

AREEA’s submission to the House of Representatives Inquiry into the NES argues the central issue is the growing incoherence between the law and modern work practices. 

“Nearly 17 years after the Fair Work Act was introduced, the system no longer reflects how work is actually performed, particularly in continuous, shift-based and FIFO operations that underpin Australia’s resources and energy sector,” said AREEA Chief Executive Steve Knott AM. 

“The Government’s NES review must fix what’s broken. It should not become a vehicle for union campaigns to expand entitlements without proper parliamentary process and rigorous scrutiny.” 

Public holiday confusion damaging 24/7 industries 

AREEA says the most urgent reform area is the application of public holiday provisions in 24/7 and remote workplaces. 

A 2023 Full Federal Court decision has created ongoing confusion for employers operating continuous rosters, requiring them to “request” employees to work public holidays even where long-term roster arrangements already incorporate those days. 

“In remote and offshore environments, employees cannot simply walk off site or down tools on a public holiday,” Mr Knott said. 

“The law currently assumes a traditional Monday-to-Friday workplace. That is not how Australia’s resources industry and many others operate. Public holidays are already built into roster design and remuneration structures.” 

AREEA is calling for clear statutory rules that: 

• Allow roster-based public holiday notifications for continuous operations; 

• Clarify how refusals are assessed in FIFO and remote contexts; and 

• Prevent double payment where public holidays are already priced into annualised salaries. 

.“This is about restoring common sense and coherence to the safety net, not reducing employee protections. Our workplace laws must recognise that many employees are already compensated for working an assumed number of public holidays each year. 

“It defies common sense that resources sector managers should have to “request” FIFO employees to work on a public holiday that already falls within their roster and for which they have already been compensated.” 

Record-keeping rules out of step with modern realities 

AREEA also warned that highly prescriptive award-based record-keeping obligations attached to annualised salaries have become a major source of technical non-compliance, even where employees are paid well above award rates. 

“In many remote operations, highly skilled employees are paid guaranteed annual earnings significantly above minimum standards. Award rates become largely irrelevant,” Mr Knott said. 

“Yet employers are required to operate parallel time-recording systems solely to satisfy award technicalities that have no impact on pay outcomes. 

“The system has shifted from protecting employees against underpayment to penalising employers for paperwork defects. That is surely not what Parliament intended.” 

AREEA’s submission calls for: 

• Moderation of annualised salary record-keeping rules; 

• Safe harbour compliance mechanisms where employees are demonstrably better off overall; and 

• Simplification of reconciliation requirements in 24/7 and roster-based environments.

AREEA emphasised that its submission does not seek to reduce the core safety net. 

“The NES was designed to be clear, simple and enforceable,” Mr Knott said. 

“Instead, years of court rulings and piecemeal changes to the law have turned it into a source of duplication, uncertainty and litigation risk. 

“Australia’s resources sector operates in globally competitive markets. We need workplace laws that support productivity and certainty, not complexity for complexity’s sake. 

“This review is an opportunity to modernise the safety net for modern work. It should not be used to expand regulation without evidence of need.” 

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