Employees in Australia are covered by legislative protections at both federal and state/territory level. The national employment laws are contained in the Fair Work Act 2009, as well as in anti-discrimination legislation and in the common law. This page deals with the national employment law system.
The Fair Work system
Fair Work Act 2009 contains the 10 minimum National Employment Standards (NES) that apply to all national system employees. Employees who are not covered by the national system are regulated by state legislation.
The NES cover issues like the maximum number of working hours an employer can require an employee to work, flexible working arrangements, parental leave, annual leave, compassionate leave, long service leave, public holidays, notice of termination and redundancy pay.
Employees rights under the National Employment Standards
The National Employment Standards are designed to protect the rights of workers. Every contract, award, or enterprise agreement made under the national employment law must provide for these 10 standards at a minimum.
Examples of standards that apply to national systems employees under the NES include the following:
- An employer must not ask an employee to work more than 38 hours in a week unless it is reasonable to do so
- An employee has the right to four weeks of paid annual leave each year.
- If an employee has worked for the same employer for 12 months or more and satisfies certain criteria, they have the right to request flexible working arrangements. However, the employer can refuse the request if there are reasonable grounds for doing so.
Termination and notice periods
The NES imposes minimum standards for the termination of employees. If a person is employed by a small business, they may also be covered by the Small Business Fair Dismissal Code.
The NES requires written notice to be given when an employee is terminated and for a minimum notice period to be given. The required notice period depends on the age of the employee and how long they have been working for the employer and ranges from one week to five weeks. The required notice period may be longer where an employee and employer have agreed on a longer period.
Minimum notice periods do not apply where an employee has been summarily terminated due to misconduct.
National system or state system?
Most Australian workers in all occupations and industries are covered by the Fair Work System. However, employment law issues related to workers’ compensation or work health and safety are covered by state legislation.
If a person is employed by a state or local government, it is likely that their workplace falls under state legislation, rather than national employment law. However, local, state and territory employees in the ACT and NT are covered by the Fair Work system.
In WA, sole traders, partnerships, non-trading corporations, and unincorporated entities are not covered by the Fair Work System. Most state and local government workplaces in WA also fall under the state laws.
Workplace discrimination
There is other national legislation that is relevant to employment law, such as the Age Discrimination Act, the Disability Discrimination Act, the Sex Discrimination Act and the Race Discrimination Act, which prohibit discrimination on prescribed grounds in the workplace and elsewhere.
Claims against employers
If you have been discriminated against or if your rights have been violated in some way, you may be entitled to make a claim against your employer.
You can do this by lodging an application with the Fair Work Commission or making a complaint to the Fair Work Ombudsman. You may be able to seek compensation, a redundancy payment, or damages. There may also be other orders that can be made against your employer to rectify your employment situation.
If you have been unlawfully discriminated against at work, you can make a complaint to the Australian Human Rights Commission, go through the conciliation process, and/or consider other forms of legal action.
Employment contracts
Your employment contract itself will determine many of the terms of your employment and is an important document for understanding your rights at work.
If your employer breaches a term of your employment contract, under the common law, you have the right to sue for any loss you experience because of that breach.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
