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Employment Law

Employment Law

Employment law sets out the legal rules that govern relationships at work. All employees should be familiar with their rights at work so that they can protect themselves. Conversely, all business owners and managers need an understanding of employment law to ensure that they meet their obligations to their employees and team members.

Fair Work Legislation

Fair Work legislation is a federal system that applies to most private sector employees in Australia. This law sets out eleven minimum entitlements for all workers (called the National Employment Standards (NES)). These entitlements include fair pay, safe work hours, and access to entitlements such as sick leave. A workers’ rights and responsibilities may be extended by specific awards and enterprise agreements, but they must be consistent with the minimum standards of the NES.

Some workers, such as sole traders, contractors, volunteers and government workers, are not covered by Fair Work. However, all workers in Australia have robust protections at work that are guaranteed through various laws.

Employment Contracts

Many workers will have additional rights and responsibilities set out in their employment contracts. Importantly, an employment contract cannot give less than the guaranteed minimums in the NES, even if both the employee and employer agree.

At a minimum, an employment contract should include details of the employee and employer, the job title, employment type (full time, part time, or casual), commencement date (and end date, if applicable), hours of work, pay and allowances, leave, and notice requirements. However, a well-drafted employment contract should go well beyond these details to help mitigate an employer’s risk.

For instance, the inclusion of robust confidentiality and intellectual property clauses can protect valuable assets of a business. A restraint of trade clause can prevent former employees from poaching clients from a business that relies heavily on good will. An employment contract is also a prime opportunity to provide a new hire with notice of critical company policies such as acceptable use of company internet and email, discrimination and harassment, and occupational health and safety.

Termination

An employment contract for permanent roles will usually also cover termination. Because permanent employees have an expectation of ongoing work, their employment cannot be brought to an end casually. The employment can only be ended due to dismissal (usually due to poor performance or conduct) or redundancy (because the role is no longer needed). In both cases, there are strict rules that an employer must follow.

Dismissal

A dismissal must be “fair”. A dismissal is unfair unless it is made because of a valid, sound, and defensible reason. However, only workers with at least six months of service (or a year for small businesses) can apply to the Fair Work Commission for a declaration that this dismissal was unfair.

Workers who cannot apply to Fair Work due to their short length of service still have general protection against “unlawful termination”. For instance, an employer cannot terminate someone because they are away from work due to illness. Unlawful termination can attract fines for the employer and compensation for the terminated employee.

Redundancy

A role (not a person) becomes redundant when no one is needed to perform the role. A redundancy must be “genuine”, that is, it cannot be used as an alternative to termination.

Getting help with your employment law matter

Employment law is a complex system in Australia, with many overlapping parts. This makes it difficult for business owners and individual workers to understand the full scope of their obligations and protections. Sitting down with a solicitor with experience in employment law can be a good first step to clarifying your position. We have significant expertise across this area and can assist with a range of workplace employment matters including:

  • Drafting and reviewing employment contracts, terms, and conditions
  • Providing representation for cases of unfair dismissal
  • Advising on workplace contracts, including financial advice for termination of employment
  • Drafting and negotiating enterprise agreements
  • Protection of intellectual property
  • Drafting terms and conditions of internet and email usage
  • Discrimination and harassment issues

We also have experience as a Safety (OHS) professional and as an OH&S lawyer and can assist with:

  • Dealing with the regulator if there is a workplace incident or accident
  • Addressing any notices issued
  • Representing you in court if you are charged
  • Drafting and negotiating OHS policies and procedures
  • OHS Statutory obligations under Commonwealth and State legislation
  • Risk management of workplace hazards

If you need assistance, contact one of our lawyers at [email protected] or call 03 9531 8628 for expert legal advice.