The most significant sources of employment and labour Law in Australia include industrial instruments (like employment contracts for prospective employees, etc.), legislation, and common law. The Fair Work Act 2009 (FW) governs most Australian employees. The relevant industrial instruments comprise modern awards. The Fair Work Commission (the FWC) determines these awards.
The awards provide a safety net of the minimum pay rates and employment conditions. These awards are also a benchmark to check if the employees are ‘better off overall’ as per the proposed enterprise agreement. Every year, the FWC conducts the annual wage review to decide the national minimum wage for that year.
“The Fair Work Act establishes a safety net comprising the NES, modern awards and national minimum wage orders; and a compliance and enforcement regime. It also establishes an institutional framework for the administration of the system comprising the FWA and the FWO. The Fair Work Divisions of the Federal Court and Federal Magistrates Court and, in some cases, state and territory courts, perform the judicial functions under the Fair Work Act.“
Also, if you are interested in other countries, you can read the article below:
Why legislation is important in the workplace?
Legislation is one of the most essential instruments of the governmental body in organizing society and protecting citizens. It determines, amongst others, the rights and responsibilities of individuals and authorities to whom the legislation applies.
Employment law is designed to ensure fairness at work, can help improve work health productivity, and is a necessary response to demographic and social change. It also positively contributes to employee relationships and increases employees’ sense of fairness and trust in their employer.
History of labor law in Australia
Labour law in Australia concerns the Commonwealth, state, and common law on the rights and duties of workers, unions, and employers in Australia. Australian labour law (also known as industrial relations law) has a dual structure, where some employment issues and relationships are governed by Commonwealth (the Australian federal government) laws, and others are governed by state and territory laws or common law. Labour law in Australia shares a heritage with laws across the Commonwealth of Nations, UK labour law, and standards set by the ILO or International Labor Organization. The Australian legislature and courts have built a comprehensive charter of rights at work.
Labor laws in Australia: Working Hours
The National Employment Standards (NES) ensure that employee employment (for both private sector employees and public sector employees), work health and safety, and employment relationship is healthy. This is done by providing a maximum working week of 38 or 7.6 hours a day unless the additional hours are reasonable. It is standard for employers and employees to agree about the reasonableness of additional hours, which can include reasonable overtime required in a role.
Types of workers protected by the Australian employment law
Under the employment law, those workers who work pursuant to the contract of service get protection rather than working for a contract for services. A multi-indicia test is applicable to distinguish between independent contractors operating in Australia and those working as employees for employees engaged in industries and occupations covered under employment laws.
Also, the difference between casual and permanent employees is essential when the government needs to determine who is eligible for employment benefits. For obtaining other benefits, casual employees must fall under the ‘continuous casuals’ category as per the FW Act. There are certain protections that apply to casuals as well as out workers who are ‘long-term.’
How are workers treated in Australia?
Australia has a well-developed employment system designed to provide flexibility and certainty to employers and their employees. This system is subject to Australian, and state and territory government requirements.
The central elements of this system include a set of national employment standards for all Australian employees, occupational health and safety legislation, basic health insurance, and superannuation (pension) payments. The Fair Work Ombudsman (FWO) and The Fair Work Commission (FWC) are the two key organizations in Australia’s workplace relations system.
Different types of legislation in Australia
Fair work act 2009
This act helps establish the parameters of an employment relationship between the employer and the employee. This includes the minimum terms and conditions for the employees covered by the national workplace relations system, such as the Fair Work Commission. The act helps provide minimum entitlements, including a national minimum wage increase, the National Employment Standards (NES), and the inclusion of further conditions and entitlements set out in the Modern Awards or other registered agreements, to protect eligible employees. The act further enables flexible working arrangements, unfair dismissal protection, and general protection provisions to ensure employees are treated fairly and without discrimination.
The act applies to all businesses (irrespective of the type, size, or industry). However, there are some exceptions. For instance, the Fair Work Act shall not apply to the following business types in Western Australia:
- Sole traders
- Partnerships
- Other unincorporated entities
- Non-trading corporations
State and federal anti-discrimination laws
While the Fair Work Act protects employees from discrimination, this legislation protects employees who are no longer employed and is aimed at helping them from receiving protection from discrimination and harassment relevant to employment. The legislation is at the Federal level and is governed by the Australian Human Rights Commission.
In addition to federal laws, each state has made its own anti-discrimination and sexual harassment legislation to protect employees and prospective employees, depending upon the circumstances of their complaints.
Therefore, this act helps protect employees from all forms of discrimination (including age, gender, marital status, race, religion, sexual orientation, etc.). The Workplace Health and Safety Act can provide you with the required protection against workplace bullying.
Work health and safety act 2011
This is a set of model Workplace Health and Safety (WHS) laws which are required to be implemented by the Commonwealth along with each state and territory to become legally binding. Today, the model WHS have been implemented in the Australian Capital Territory, New South Wales, the Northern Territory, Queensland, South Australia, Tasmania and the Commonwealth, and was adopted by Western Australia in 2021.
This act provides a framework for the protection of the health, safety and welfare of all employees at work. Additionally, the law protects the health and safety of other people associated with the workplace, including customers, visitors, and the general public.
The act covers a wide range of employer obligations related to managing and controlling risks, incident reporting, consulting of workers compensation, enforcement through fines and penalties, etc. The act also consists of specific provisions related to workplace bullying since such incidents can affect the mental and physical health of the workers.
Disability discrimination act 1992
The Disability Discrimination Act is used for the protection of everyone (including employees) from discrimination based on disability. Therefore, the act also forms a part of the Australian Employment Laws. The Federal, state and territory legislation protect their employees and independent contractors from discrimination based on protected attributes.
As per the provisions of this act, it is illegal to treat any employee unfairly due to their disability. The scope of the act is further extended to employees who have relatives, friends, co-workers, or associates of a person with a disability. The scope of disability within the act is not limited to physical disabilities but includes intellectual, sensory, neurological, and psychiatric disorders.
Recently, the Sex Discrimination Act has also been amended to include different employees. Employees covered:
- Prohibit subjecting any employee to a hostile workplace based on sex.
- Businesses undertake reasonable and proportionate measures to eliminate unlawful discrimination based on a person’s sex, unlawful sexual harassment, persons being subjected to a hostile working environment, and related acts of victimization.
Minimum employment terms decided by the labor law authority in Australia
There are specific national employment standards and conditions that employers have to abide by. These terms are decided by the National Employment Standards (NES). These terms revolve around the ten main areas as given below:
- The requests for flexible working arrangements.
- The maximum number of hours per week.
- Personal careers leave as well as compassionate leave.
- The Fair Work Information Statement
- Leaves for long service.
- The public holidays.
- Leaves pertaining to parental needs and other additional minimum employment entitlements.
- Leaves on an annual basis.
- The leaves for community service.
- Notice of termination and redundancy pay.
What rights do employers have in the workplace?
Employers have few rights other than to expect employees to carry out their duties to a reasonable standard, follow reasonable management directions, and abide by their employment contract and workplace policies and procedures.
However, there are several obligations towards employees under the Fair Work Act and other industrial relations acts.
Some of the most important responsibilities to consider include:
- Provide a safe working environment for all employees (including casual employees, shift workers, independent contractors, and other eligible employees).
- Protect all employees from bullying, discrimination, and sexual harassment
- Provide employees with the correct pay and entitlements, and not below the minimum wages. These minimum wages are generally lower for junior employees, apprentices, and those receiving disability support or retirement pension.
- Record-keeping obligations
- Give all employees the necessary training, resources, and mentoring they need to work safely and efficiently
- Inform all employees of their rights and responsibilities
- Train employees on potential hazards and safety risks in the workplace
- Meet first aid requirements
- Report workplace incidents and injuries to Safe Work Australia
- Supply protective clothing and equipment for employees and ensure they know how to use them correctly
- Paid annual leave
Trade union rights and regulations
The FW Act mentions the registration of employees, employer associations, and other enterprise associations. This registration involves responsibilities concerning the rules and regulations of a company, the different governance standards, and financial management. There are multiple procedures set by the legislation that can cancel out the registration of organizations, amalgamate them, or resolve their demarcation disputes.
There are certain rights the trade unions gain through registration. These are related to being a part of the proceedings to represent the rights and interests of the members. The FW Act also allows the trade unions to bargain on behalf of the members in the proceedings.
The representatives from the trade unions who have the permit are allowed to enter the employer’s premises. The primary purpose behind this revolves around the investigation of certain measures. These could relate to health and safety laws, industrial instruments, or any breaches from the employer’s end. Here are the primary rights are given for investigation:
- The representative can inspect any relevant procedure, object, or work.
- The representative has a permit to perform interviews with willing participants.
- Ask the employer or head of the organization to show any documents or records that are relevant to the issue.
How is the employment relationship governed and regulated?
Various factors help in governing the employment relationships in the employment context:
Written employment contract
Even though the Australian employment law helps regulate the employment relationship between the parties, it is common practice to record terms of engagement in a letter of appointment or a formal written employment contract or enterprise agreement to mitigate potential risks for employers and employees. The Federal Fair Work Act 2009 requires all employers to provide their employees with a copy of the Federal Government’s Fair Work Information Statement used to read the summary of the Fair Work Act. The same should also be provided to any new casual employees wherein they are provided with a copy of the Casual Employment Information Statement.
This is followed by the Secure Jobs, Better Pay Act, which amends the Fair Work Act and helps describe the limitations of a fixed-term and maximum-term contracts.
An employer and an employee can’t contract out of statutory employment rights through enterprise agreements.
Implied terms
Employment terms may also be implied under law (such as statutory employment rights, which are implied into employment contracts or terms implied to give effect to the employment contracts). Some implied terms include:
- Employee’s duty of obedience and co-operation.
- Employer’s duty of care and to provide a safe working environment to the employee.
Working time, holidays and flexible working
As per NES, it is possible for an employee to request any change in their working arrangements in cases where the employee has:
- Parental/care responsibilities of a school-aged child.
- Has carer’s responsibilities
- Has a disability
- Is over 55 years of age.
- Is experiencing family violence.
It is possible for a full-time or part-time employee to request such a change after 12 months of continuous service. Long-term casual employees may make such a request where they have a reasonable expectation of continuing employment regularly and systematically. These requests are required to be made in writing, and the employer must respond to such requests within 21 days. However, the employer can refuse such requests on reasonable business grounds.
Holiday entitlement
Minimum paid holiday entitlement: Under the NES, full-time employees receive four weeks of annual leave. This is pro-rated for part-time employees and increased to five weeks for shift workers. Casual employees are not entitled to any paid leave. Cashing out paid annual leave is also permitted under certain circumstances.
Public Holidays: Most employees are entitled to paid public holidays. There are seven national paid public holidays and additional state and territory paid public holidays.
According to Modern Awards and enterprise agreements, additional pay rates will be provided for any work conducted during public holidays.
Notice periods
Employees are required to be provided with a minimum statutory notice period between one to four weeks. If the employee is over 45 years old and has completed at least two years of service, they are entitled to receive an additional week’s notice. These minimum notice periods are not applicable to:
- Casual employees
- Employees employed for a specified period where their employment ceases at the end of that period.
- Employees employed for a particular task or seasonal workers.
- Employees whose employment has been terminated due to any serious misconduct.
Collective agreements
These agreements are often referred to as ‘Enterprise Agreements’ in Australia and made under the Fair Work Act and the Industrial Relations Legislation. While trade unions have the right to act as bargaining representatives for their members/employees, the bargains must take place in good faith through the applicable enterprise agreement. Therefore, these enterprise agreements empower the Fair Work Commission to make orders concerning bargaining. Some procedural steps to make a collective bargaining agreement are:
- Provide the employees with a notice of their right to be represented during the bargaining for the agreement.
- Provide the employees with a copy of the proposed agreement and explain the terms of the agreement and the effect of those terms on the employees.
- Notify employees of the date and place of voting of the agreement, along with details about the voting method.
Once the agreement reaches the approval of a majority (50% +1) of employees, the terms of the agreement get approved. Additionally, the Fair Work Commission must also approve the agreement.
Business protection and restrictive covenants
Post-employment restraints are mostly unenforceable due to being contrary to public policy unless the employer can establish that the scope is reasonably necessary to protect legitimate business interests. There are four types of restraints:
- Non-compete: prohibiting employees from working for competitors.
- Non-solicitation: prohibiting employees from soliciting customers or clients.
- Non-dealing: Preventing employees from accepting work from former clients where the client initiates contact.
- Non-poaching: Preventing employees from poaching other employees of the former employer.
The New South Wales legislation allows courts to enforce restraints to a reasonable extent.
Protection of employees from discrimination
There are federal laws, state laws, and territorial anti-discrimination legislation that protect the employees of the country from discrimination and bullying. Also, the employees get protection by the FW Act as per the ‘general protections’ mentioned in the act.
These protections forbid any employer from taking severe actions against any of the employees on the grounds of discrimination. There are multiple attributes that the FW Act covers and protects against. These are attributes such as colour, sex, marital status, religion, pregnancy, race, sex, mental or physical disability, etc.
Unlawful discrimination and their circumstances
There are two significant formulations in Australia that come under unlawful discrimination:
- Direct discrimination
- Indirect discrimination
Direct discrimination occurs when the affected employee gets unfair treatment and is favoured less on the grounds of some protected attribute.
On the other hand, indirect discrimination occurs when there is some unreasonable condition or requirement posed on an employee due to one of the protected attributes, as per federal and state laws.
Employees should exercise their rights
The employees have certain rights and must exercise them in case they feel that their rights are being violated. Employees can first lodge a legal complaint against the employer responsible. Also, they can escalate these complaints to a tribunal or a court to enforce legal rights or obligations to protect employees. Any terms under the FW Act can be exercised and argued upon if any employee faces issues with their employer.
Frequently Asked Questions (FAQs)
Is employment law in Australia over-regulated?
The employment legislation and relations system in Australia has high regulatory requirements, and employers have numerous layers of regulation. The Fair Work Act 2009 is the primary regulation for setting out the rights and responsibilities of employers, employees, unions, and other employee organizations.
What is the Australian legislation for the workplace?
The Australian legislation for the workplace is the Fair Work Act 2009 regulation. This legislation provides a safety net of minimum entitlements, enables flexible working arrangements, provides fairness at work and prevents discrimination against employees.
What are the basic employment laws in Australia?
Under the Fair Work Act 2009, workers can receive basic employment conditions, including paid holidays, compensation, and safety. Currently, compensation legislation states that an employee cannot spend over 38 hours a week.
