My Legal Crunch has Employment Lawyers to assist you if you:
• Are an employee and need legal assistance
• Are an employer and need legal assistance
• Are having a workplace dispute
• Need employment contracts drafted
• Need legal advice about workplace entitlements
• Need legal advice about redundancy
• Need legal advice about dismissal or unfair dismissal
• Need legal advice about adverse action
• Need legal advice about workplace discrimination and/or harassment
Employment Law is a set of laws that govern the rights, duties, and responsibilities that employers and employees have in a working relationship. We all have rights, duties, and responsibilities whether we are an employer or employee. Our skilled Employment Lawyers can help you to understand your position, draft documents on your behalf, negotiate on your behalf or help you enforce your rights.
The following information is general in nature only and should not be understood as legal advice.
Employment Law General Overview
Most Australian workers are protected by the Fair Work Act which provides for a range of work place entitlements and standards. The Fair Work Act creates lawful rights, duties, and responsibilities. In addition, there are other rights duties and responsibilities imposed by general law and State/Territory laws.
Some employees may be covered by State or Territory laws. This is usually the case where an employee works for a State or Territory Government.
Often the first issue that needs to be addressed is whether an employer/employee relationship exists. Usually, this is straightforward because of a written or verbal employment contract and the type of relationship. Some relationships such as an employer and contractor may or may not have an employer/employee relationship. This depends on the facts and circumstances. In some cases where parties did not intend to have an employer/employee relationship the law may force the relationship on the parties. If you are unclear on whether you have an employer/employee relationship contact us.
There are many laws that can affect employment relationships. Generally, the laws and standards that affect an employer and employee relationship are:
1. The employment contract between the parties;
2. Workplace policy that applies to an employee;
3. The Fair Work Act 2009 which has three tiers of rules and standards:
The National Employment Standards;
Enterprise Bargaining Agreements.
4. Anti-discrimination legislation;
5. State/Territory based human rights and related legislation;
6. Legislation regarding duties of care and negligence;
7. Special legislation that applies to public servants;
8. Privacy laws; and
9. Laws made by Courts over many years are also known as the Common Law which often interact with all the above categories of legislation and regulation.
While this may seem overwhelming at first, in reality, most employment law scenarios only involve a few of the above areas of the law and can be resolved readily with one of our experienced Employment Law Lawyers.
The Fair Work Act
The Fair Work Act 2009 governs most employment relationship in Australia.
The National Employment Standards
The Fair Work Act creates a set of standards called the National Employment Standards. These are the minimum standards that an employer must adhere to and are the basis by which most employment relationships are governed.
Some conditions which are governed by the National Employment Standards are:
• maximum weekly work hours;
• flexible working arrangements for a parent of a school-aged child;
• parental leave;
• annual leave;
• personal leave;
• public holiday pay;
• notice of termination and redundancy; and
• long service leave.
Where the Fair Work Act applies to an employment relationship Awards normally apply depending on which industry and the role an employee is employed in. Awards apply in addition to the National Employment Standards. Often Awards change the National Employment Standards to provide special conditions and standards for different industries and occupations.
Awards often specify conditions such as:
• whether the Award can be varied by employer\employee agreement;
• types of employment;
• minimum wages;
• accident pay;
• superannuation payment requirements;
• work hours;
• shift work and rosters;
• overtime and penalty rates;
• annual leave;
• personal leave and or carers leave; and
• public holidays.
With over 122 industry and occupation Awards in force, it's important to understand which Award applies to an employment\employee relationship so you know your rights and responsibilities.
Enterprise Bargaining Agreements
Often the type of rules that apply to an employment relationship depends on the size and sophistication of an employer. Sophisticated and large employers and/or unions may create a special type of agreement called an Enterprise Bargaining Agreement. An Enterprise Bargaining Agreement is also commonly known as an "EBA". An Enterprise Bargaining Agreement is an agreement that often gives employees greater standards and protections than an Award. An Enterprise Bargaining Agreement is specific to your workplace or company and if in force may govern employer\employee relationships.
Often Enterprise Bargaining Agreements are sophisticated documents drawn up by lawyers working for employers and unions. Like any agreement, it can be a difficult and daunting task to understand your rights and duties. At My Legal Crunch, our Employment Lawyers are well versed in the intricacies of employment law and will ensure that you understand your rights and obligations and will assist you to enforce your rights.
If you are an employer engaging an employee or an employee engaged in paid work, there are various entitlements that employers must meet. Some entitlements may be varied by an Award and the type of employment may affect employee entitlements. Full-time and part-time employees have different standards as compared to casual employees.
Some employee entitlements that apply to full-time and part-time employees include:
• Annual leave
• Sick Leave/Personal Leave/Carer's leave
• Community service leave
• Long service leave
• Parental leave and related entitlements
• Public holidays
• Notice of termination
• Redundancy pay
Casual employees usually have fewer entitlements, however, they are compensated with higher Award wages. Some employee entitlements for casual employees include:
• 2 days unpaid carer's leave
• 2 days unpaid compassionate leave for each occasion
• Community service leave
• Public holidays
Some casual employees who have been employed on a regular and systematic basis for 12 months or more are entitled to:
• make requests for flexible work arrangements
• parental leave
Full-time and part-time employees are entitled to a minimum of 4 weeks of paid annual leave. Further, an industry and occupation Award or Enterprise Bargaining Agreement may set out additional annual leave entitlements over and above 4 weeks.
If an employee remains with the same employer continuously, their annual leave will accrue each year. This means that if the employee only takes 1 week of annual leave during 2 years of employment, the employee will have been entitled to 8 weeks of annual leave in total, meaning the employer must pay an additional 7 weeks of paid annual leave.
Sick Leave (Personal Leave & Carer's Leave)
Personal, or sick leave, is another entitlement that employers must provide to certain types of employees. Generally, for each year of service with an employee, a full-time or part-time employee is entitled to 10 days of paid personal or carer’s leave. Unlike annual leave, sick leave does not accrue from year to year. That means you are only entitled to 10 days of paid personal or carer’s leave per year. Some Awards or Enterprise Bargaining Agreements may grant employees the ability to cash-in personal leave.
Parental leave may be birth-related leave or adoption-related leave. This leave also applies to same-sex couples. Each member of an employee couple is entitled to take up to 12 months unpaid parental leave where:
• The employee has responsibility for the care of a child.
• The leave is associated with:
o the birth of a child of the employee, their spouse or de facto partner; or
o the adoption of a child under 16 years of age.
An employee must take their parental leave as a single continuous period. A single employee is entitled to 12 months paid leave and may request an additional 12 months of unpaid leave. An employer must consider this request and provide a written response. An employer may refuse a request where there are reasonable business grounds.
In the case of a couple, both employees (even where they work for different employers) are entitled to take 12 months leave each. The maximum combined period of leave available to a couple is 24 months and the leave must be taken continuously.
An employee may take annual leave at the same time as parental leave.
While an employee is away on parental leave the employer cannot terminate the employee's position or change an employee's job to disadvantage the employee. If an employer does, an employee can apply to the Fair Work Commission for a resolution. The Fair Work Commission may reinstate the employee's position or order the employer to pay an employee lost wages.
Ending An Employment Relationship
There are three main ways an employment relationship can be ended:
2. redundancy; and
3. employee resignation.
Both employers and employees have duties around ending an employment relationship. Employees are expected to give their employers fair notice and have other duties to their employer some of which continue to apply to the employee even after employment has ended. Employers have a duty of care to employees and have duties and responsibilities when ending an employment relationship with an employee.
When either an employer or employee fails to recognise and carry out their duties, consequences are likely to follow. Often negotiations can reduce the consequences from a breach of duties.
Dismissal is a term used to represent where an employer had terminated the employment of an employee. Under employment laws, dismissal can be brought about in two ways:
1. An employer terminated an employee's employment at their own initiative; or
2. An employee is forced to resign because of the conduct of the employer or another employee of the employer.
Sometimes it is not clear if there has been an actual dismissal which can cause dispute. For example, there has not been a dismissal if an employee was employed under a contract which has now ended.
Dismissal occurs at the time an employer communicates the dismissal to an employee that the employee is dismissed. Dismissal notification can be made orally by the employer. When dismissal has been put in writing, the dismissal does not take effect until the employee has received the written communication. It is important that an employer clearly communicates the dismissal. A dismissal based on a condition occurring or subject to employer internal review processes may not constitute notice of dismissal.
Conditions regarding dismissal are often covered by a combination of an employment contract, the National Employment Standards, an Award or Enterprise Bargaining Agreements and other laws.
Period of Notice
If an employee is being dismissed the employer must provide notice of when the termination will take effect from and if appropriate how many days the employee has until their employment is to cease.
The amount of notice required is set out by the Fair Work Act and is dependent on how long the employee has been working for the employer and any conditions that may apply under an Award.
General Minimum Periods of Notice
Period of continuous service equal to or less than 1 year - Minimum period of notice 1 week.
Period of continuous service more than 1 year and up to 3 years - Minimum period of notice 2 weeks.
Period of continuous service more than 3 years and up to 5 years - Minimum period of notice 3 weeks.
Period of continuous service more than 5 years - Minimum period of notice 4 weeks
Where an employer wishes to terminate an employee's employment, they should provide the employee with written notice on the day of termination.
Once an employee has received notice of dismissal the following may occur:
1. The employee continues working in their normal employed position for the period of notice;
2. The employer may elect to pay out the period of notice to the employee and the employee ceases work for the employer without providing employee services during the period of notice; or
3. The employee may approach the employer about reducing the period of notice.
Employees Over 45 Years
If an employee is over 45 years of age and they have completed at least 2 years of continuous service with the employer, that employee is entitled to an additional one week's notice on top of the minimum notice periods stated above. This special rule has been put in place to assist older employees who may find it difficult to find employment after their current employment has ceased.
Other Minimum Periods of Notice
An employment contract, Award or Enterprise Bargaining Agreement can vary the general notice periods above. It's important to review any special rules that may apply to periods of notice.
Ending the Notice Period Early
If an employee has been dismissed and the employer has asked the employee to continue serving during the notice period, an employee can make a request to the employer that the notice period is reduced. If the employer agrees, the period of notice is reduced and:
1. The employee only should serve the reduced notice period; or
2. The employer only should pay out the employee for the reduced notice period.
If an employer does not agree to an earlier notice period, an employee may resign in accordance with any minimum notice period applicable to them.
Unfair dismissal occurs where an employment relationship ends and the dismissal is harsh and/or unjust and/or unreasonable. Whether a dismissal is unfair or not is usually a complex questions which is based on the surrounding circumstances of the dismissal. Unfair dismissal claims can be an emotionally difficult time for both employers and employees. It's important to seek help and support if you are struggling to cope.
Speak to an employer lawyer today for qualified legal advice on your unfair dismissal on 1800 572 417.
For more information on unfair dismissal see our unfair dismissal page.
Redundancy occurs where an employer dismisses an employee on a lawful basis due to changes in the operational requirements of an enterprise. There are strict rules about when a dismissal can be considered a genuine redundancy. If the redundancy is not genuine then the redundancy will become an unfair dismissal.
Our Employment Lawyers can provide advice on redundancy and whether a redundancy is a genuine redundancy having consideration to the circumstances of the dismissal and business operations.
The dismissal will not be a case of genuine redundancy where:
• It would have been reasonable in all the circumstances for the employer to redeploy the employee within the employer’s enterprise or a related entity.
• The employer had a duty to consult with the employee usually because of an Aware of Enterprise Bargaining Agreement and the employer failed to consult with the employee.
Redundancy is often a tricky area of employment law. The consideration of whether a dismissal is a genuine redundancy may take into account many factors.
Usually, an employer can make an employee redundant where the job being provided by the employee is no longer required due to reorganisation or redistribution of duties.
Factors that are often considered in redundancy include:
• The business environment and economic circumstances;
• The performance of the business which can include past performance;
• What steps the business can take to make its operation more efficient before looking to redundancy;
• Whether the business had a duty to consult with the employee before redundancy; or
• The management of the business.
An employer has implied duties at law to an employee to be considerate and fair in redundancy matters. The employer must be able to prove on the balance of probabilities that the redundancy was due to operational requirements.
Discrimination And Workplace Harassment
Discrimination occurs where an employer or another employee treats another employee less favourable due to a protected attribute. The grounds on which discrimination could be found include:
• A person’s race, skin colour or ethnicity
• A person’s gender
• A person’s sexual orientation
• A person’s age
• A physical or mental disability
• A person’s marital status
• Whether a person has family or carer responsibilities
• Whether a person is pregnant
• A person’s political opinion
Some special exceptions can apply which do allow employers to discriminate against certain attributes.
All employees and employers have a responsibility to treat others with respect and to base employment on merit and not discriminate against people based on protected attributes.
If you have concerns about discrimination or are unsure of your position call one of our Employment Lawyers today.
When do Discrimination Protections Apply?
Discrimination protections apply whether an employee is:
• Applying for a job with an employer;
• An employee has been hired but has not started work yet; or
• Anytime during employment.
Employers and employee alike should be careful when dealing with discrimination. If an employer does not have proper policies in place they could be vicariously liable for the conduct of employees.
Employees need to be careful that they don’t claim there has been discrimination when there has not been any. An employee who falsely claims discrimination could be a false allegation which may amount to workplace bullying against the employee who is alleged to have committed discrimination.
At My Legal Crunch, we understand that working relationships can be difficult. We are here to guide employers and employees to protect their rights and make positive choices for the future.
In a legal crunch?
Speak to one of our employment lawyers today on 1800 572 417
Free Case Evaluation
Fill out the form to receive a free confidential consultation
Offices and Locations
Offices & Meeting Rooms
Melbourne | Box Hill | Docklands | Heidelberg | Mount Waverley
Pakenham | Frankston | Southbank | St Kilda | Toorak
Balmain | Blacktown | Bondi Junction | Botany | Chatswood | Hornsby | Liverpool | Miranda | Newcastle | Parramatta Pyrmont | Rockdale | Ryde | Sydney, Martin Place | Sydney, King Street | Surry Hills | Ultimo | Wollongong
Brisbane | Bundall | Fortitude Valley | North Bank
Riverside | Southport | Surfers Paradise
Perth | Osborne Park | West Perth
1800 572 417
(02) 8569 2344