Employment Law in Australia – What You Need to Know

Employment law in Australia is the primary mechanism used to protect employees against unfair treatment in the workplace, including discrimination, bullying, sexual harassment, unlawful dismissal, unfair dismissal, and an array of other potential harms.  To ensure that you are protected at work, it is essential to understand your rights and entitlements under the Australian employment law framework and to seek legal advice early.

For employers, it is important to be aware of their obligations under the Australian employment law framework to ensure they are compliant and to minimise legal risks.

In this article, we’ll be providing answers to some of your most common employment law questions.

What is the employment law framework?

Key employment law bodies in Australia include:

• The Fair Work Commission (FWC);
• The Fair Work Ombudsman; and
• The Australian Human Rights Commission.

These bodies primarily utilise the statutory framework within the Fair Work Act 2009 (Cth) (FW Act) to investigate and/or determine employment-related issues.

What are my obligations and responsibilities as an employer?

Under section 44 of the FW Act, employers are expected to comply with the National Employment Standards. These are a set of minimum terms related to:

• Maximum weekly working hours (s 62);
• Requests for flexible working arrangements (s 65);
• Parental leave and related entitlements (s 67);
• Annual and other associated leave (s 86-113);
• Public holidays (s 114);
• Notices of termination/redundancy (s 117); and
• Providing a fair work information statement (s 125).

Failure to abide by these standards could result in penalties for an employer.

Other obligations include the responsibility to keep compliant records regarding each employee for 7 years (s 535) and provide employees with payslips within one day of payment (s 536).

Unfair Dismissal – How do I know if my dismissal was unfair?

The rules regarding unfair dismissal will generally apply to employees who were employed for at least 6 months prior to their termination (or 12 months for small businesses with less than 15 employees).  To be eligible employees must be covered by a modern award or an enterprise agreement, or their annual income must be less than the high-income threshold.

Under section 385 of the FW Act, a dismissal will be unfair if the FWC can be satisfied that:

• A dismissal has actually occurred;
• The dismissal was harsh, unjust, or unreasonable;
• The dismissal was not compliant with the Small Business Fair Dismissal Code (if applicable); and
• The dismissal was not a case of ‘genuine redundancy’.

A dismissal will be a case of ‘genuine redundancy’ if the employee’s job was no longer required due to a change in the employer’s operational requirement. However, a dismissal will not be a genuine redundancy where the dismissed employee could have been redeployed elsewhere within the organisation and/or the employer has failed to comply with a modern award or enterprise agreement to consult about the redundancy.

Employees can also be ‘constructively dismissed’ if they are forced to resign following oppressive acts by their employer (e.g., consistent late payments).

It is important to act quickly as there is a strict 21-day deadline from the date your dismissal took effect to lodge a claim.

How do I know if I am an independent contractor or an employee?

Although employees and independent contractors can often perform similar roles or duties, they are considered distinct categories of relationships with separate rights and obligations attached. Misclassifying employees as independent contractors can result in civil penalties.

Whether a worker is an independent contractor, or an employee will generally be assessed through the use of the ‘whole relationship test’. This test applies to any constitutionally covered business and will consider the real substance, practical reality, and true nature of the relationship (FW Act s 15AA).

In effect, this test requires an assessment of a work relationship to have regard not only to the actual term.

Employment matters affect both employees and employers. Contact our experienced employment lawyers for practical advice and strong representation to help resolve issues quickly and effectively.

Aggie Vlahos, Partner
[email protected] | 0405 995 057

Article co-authored by Kieran Bull, Paralegal at Elit Lawyers.