Employment & workplace law in Australia
Protect Your Business and Employees with Our Employment Law Expertise
Are you an Australian employer or employee, facing workplace issues that require legal guidance? Do you want to ensure your employment contracts, policies, and practices comply with the latest laws and regulations in Australia? Look no further than our law firm.
Here are some of the employment law services we offer:
Employment contracts and policies: We can draft, review, or negotiate your employment contracts, policies, or procedures to ensure they comply with the relevant awards, legislation, or industry standards. We can also advise you on how to manage issues such as remuneration, leave entitlements, workplace health and safety, and anti-discrimination.
Unfair dismissal and adverse action: We can assist you in lodging, responding, or appealing unfair dismissal claims under the Fair Work Act 2009 (Cth) or state laws. We can also advise you on how to handle adverse action claims, such as discrimination, bullying, or harassment.
Workplace investigations and disputes: We can conduct impartial and confidential workplace investigations into allegations of misconduct, harassment, or discrimination. We can also represent you in mediation, conciliation, or litigation proceedings related to employment disputes.
Enterprise bargaining and industrial action: We can advise you on how to negotiate enterprise agreements, individual flexibility arrangements, or workplace determinations that meet your needs and comply with the relevant laws. We can also assist you in responding to industrial action, such as strikes, lockouts, or picketing.
Workplace training and compliance: We can provide customized training programs for your employees, managers, or directors on various employment law topics, such as workplace conduct, diversity and inclusion, performance management, and termination. We can also conduct compliance audits to identify areas of risk and provide practical solutions.
With our client-focused approach, we aim to provide timely, pragmatic, and cost-effective legal services that align with your business objectives and values. We are committed to building long-term relationships with our clients based on trust, integrity, and excellence.
Contact us today to schedule a consultation and discover how we can help you navigate the complex world of employment law and achieve success in your workplace.
The Fair Work Act 2009 & Fair Work Regulations 2009
The Federal and state legislation and case law govern a contractual relationship between employer and employee in Australia. The Fair Work Act 2009 (FW Act) and the Fair Work Regulations 2009 are the main legislation in Australia. They govern a safety net of minimum wages, entitlements, flexible working arrangements, and more importantly, fairness at the workplace every employer in Australia has to comply with the law above and the National Employment Standards.
The National Employment Standards (NES)
These ten (10) fundamental standards is a critical feature and backbone of the employment law in Australia. Breach of the NES result in serious consequences and careful attention and practice are required. Any employment contracts, enterprise agreement and registered agreement made between you and your employers shall not be provided for anything less than provided by the NES.
NES 10 minimum entitlements
1. Maximum working hours
A full-time employee shall work no more than 38 hours per week plus reasonable additional hours. Employees can refuse to work unreasonable additional hours.
The employee’s health and safety, family responsibility and notice were given to work additional hours etc. will be taken into account when assessing the reasonableness of additional working hours.
2. Flexible working arrangement
Flexible working arrangements include hours, pattern and location of work.
2a. working for the same employer for at least 12 months
Employees who are the parent of a child who is school-aged or younger, a carer, having a disability, over the age of 55 or experiencing domestic violence can request a flexible working arrangement.
2b. causal employees
A casual employee can request a flexible working arrangement if they have been working for or have a reasonable expectation of continuing work with the same employer regularly and systematically for at least 12 months.
3. Maternity & parental leave
Employees who have worked for their employer for at least 12 months can take parental leave for 12 months and a right to request an additional 12 months’ unpaid leave
From 26th November 2020 onwards, parents who are impacted by stillbirth or infant death have access to a 12 months’
unpaid parental leave.
4. Annual leave
All full-time and part-time employees get 4 weeks of paid annual leave based on their working hours per week.
5. Personal, carers, compassionate and family & domestic violence leave
5a. Personal and carers
Employees are entitled to 10 days paid leave and 2 days unpaid leave on request.
5b. Compassionate leave
Employees are entitled to 2 days of compassionate leave on request.
5c. Family & domestic violence leave
Employees are entitled to 5 days unpaid family & domestic violence leave each year
6. Community service leave
Employees can take unpaid community service leave for voluntary emergency management activities and paid leave for jury duty. There are no limits on the amount of community service leave an employee take. Reasonable travel and rest time can be taken into account.
7. long service leave
Employees who have been working for the same employer for more than 10 years are entitled to 2 months of paid leave.
The legislation also provides for a pro-rata entitlement after five years, if the employee resigns as a result of illness, incapacity or domestic or other pressing necessity.
There is no entitlement for long service leave if an employee ceases employment before 5 yeas service.
8. Public holidays
Employees are entitled to a paid day off on a public holiday, except where reasonably requested to work.
If an employee is working outside their state on a public holiday, he or she is entitled to public holiday depending on where they are based for work not where they are working on the day of the public holiday.
9. Notice of termination and redundancy pay
Employees are entitled to have up to five weeks’ notice of termination and up to 16 weeks’ severance pay on redundancy.
10. Provision of a Fair Work Information Statement
It must be provided by employers to all new employees and contains information about the NES, Modern Awards, Agreement-making, the right to freedom of association, termination of employment, individual flexibility arrangements, Union rights of entry, transfer of business, and the respective roles of Fair Work Australia and the Fair Work Ombudsman.
what are Awards (modern awards) & agreements?
In a nutshell, Awards and agreements are minimum conditions that the workplace has to comply with. it is a minimum standard with NES that the law says the employer must comply with regardless. There are more than 100 industry or occupation awards that cover most people who work in Australia.
if a business and or your employer has a registered agreement in place and it covers the work that the employee does, then the minimum pay and conditions in the agreement will apply. if no registered agreement then, the minimum pay and conditions in an applicable award will apply. To find out which awards apply to you, visit the fair work ombudsman. https://www.fairwork.gov.au/awards-and-agreements/awards.
what is the employment contract?
The employment contract is a written agreement for employer and employee stating what needs to be done in exchange for what compensation to be paid. the employment contract should not and must not disregard the NES and awards that impose minimum terms and conditions the workplace to comply with. The bottom line is employment contract should not contain less favorable conditions to impose on employees than what is written in the relevant Awards.
Managing to terminate and or ending the employment relationship
when ending an employer and employee relationship, employees carefully consider the final payments
Any pay in lieu of notice of termination
Any accrued annual leave and long service leave entitlements
The balance of any time off instead of overtime that the employee has accrued but not yet taken
Any redundancy pay or entitlements if the employee has been made redundant and is eligible.
What's a genuine redundancy?
your job doesn't need to be done by anyone
your employer followed any consultation requirements in the award, enterprise agreement or other registered agreement.
Not a genuine redundancy if the employer:
still needs the employee’s job to be done by someone (eg. hires someone else to do the job)
has not followed relevant requirements to consult with the employees about the redundancy under an award or registered agreement or
could have reasonably, in the circumstances, given the employee another job within the employer’s business or an associated entity.
Consulting with employees about major workplace changes is almost compulsory procedures
All awards and registered agreements have a consultation process for when there are major changes to the workplace, such as redundancies. Consultation requirements include:
notifying the employees who may be affected by the proposed changes
providing the employees with information about these changes and their expected effects
discussing steps taken to avoid and minimise negative effects on the employees
considering employees ideas or suggestions about the changes.
what is unfair dismissal?
The dismissal was harsh, unjust or unreasonable
The dismissal was not a case of genuine redundancy
The small business did not follow the Small Business Fair Dismissal Code.
what is harsh, unjust, or unreasonable dismissal?
No valid reason for the dismissal
No notified of that reason and an opportunity is given to respond
No support person presented at the meeting for the dismissal
No previous warning on lack of performance satisfaction
No procedural fairness
any other matters that the Fair Work Commission considers relevant.
When to apply for unfair dismissal?
Employees have to apply to the Commission within 21 days after the dismissal has taken effect.
Minimum employment period
Employees can only apply for unfair dismissal if they have been employed for at least 6 months.
Employees who worked for a small business has to be employed for at least 12 months before they can apply
What is a small business employer?
A small business is a business that has less than 15 employees at the time of dismissal.
Employees include regular employees, casual employees, and employees who are based overseas.
Boosting Apprenticeship Commencement wage subsidy
An employer under the Boosting Apprenticeship Commencement (BAC) wage subsidy can’t terminate an employee’s employment without their consent to start an apprenticeship or traineeship.
It is considered a termination of employment if an employee’s role is changed by their employer without the employee’s consent. Employees are entitled to receive final pay entitlements including unused annual leave and notice of termination if termination of employment occurs.