National Employment Law | Employment Lawyers Australia

Employees in Australia are protected by employment law at both federal and state/territory level. If you are facing an issue at work, it is useful to know about the national employment laws as they set out the minimum requirements for the vast majority of workplaces in Australia.

The Fair Work System

The Fair Work Act 2009 is the most important employment law in Australia. It establishes the Fair Work System, which sets out the 10 minimum National Employment Standards.

The Standards outline the maximum number of working hours your employer can require you to work, flexible working arrangements, parental leave and other entitlements, and annual leave. They also cover other types of leave, such as compassionate leave and long service leave. Regulations under national employment law on public holidays and termination and redundancy are also outlined in the Standards.

Your rights under the National Employment Standards

The Standards are designed to protect the rights of employees. Every applicable contract, award, or enterprise agreement must allow for these 10 standards at a minimum. For example, an employer cannot ask an employee to work more than 38 hours in a week unless it is reasonable to do so.

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, though their employer can refuse the request if there are reasonable grounds for doing so.

The Standards state that employees have the right to four weeks of paid annual leave each year.

Termination and notice periods

The Standards require written notices for termination and minimum notice periods ranging from one to five weeks, depending on how long a person has been working for an employer and their age. Note that the notice period can be longer if both parties have agreed on a longer period, and minimum notice periods will not apply if a worker has been summarily terminated due to misconduct.

If a person works in a small business, their dismissal may be covered by the Small Business Fair Dismissal Code.

Does the Fair Work System apply?

Most workers – including foreign workers – in any occupation and industry are covered by the Fair Work System, but there are exceptions.

If a person works for a state or local government, it is likely that their workplace falls under state legislation, rather than national employment law, unless the employer is in the ACT or the NT.

In WA, sole traders, partnerships, non-trading corporations, and unincorporated entities are not covered by the Fair Work System, and most state and local government workplaces also fall under state laws.

If your issue is related to workers’ compensation or work health and safety, then it is covered by state legislation.

Workplace discrimination and equality

Other relevant national laws relate to human rights such as general rights against age, sex, disability, and racial discrimination that protect you in the workplace context. There is also a law on gender equality in the workplace.

The national anti-discrimination laws make it unlawful for employers to discriminate on the grounds of race, age, sex, disability, and other grounds.

The sex discrimination legislation is broad in scope as it covers marital status as well as other issues such as pregnancy, potential pregnancy, and family responsibilities.

The gender equality law is aimed at encouraging equal treatment in the workplace, though it does not confer a specific right and only obligates employers with more than 100 staff to report on gender equality data.

The employment contract itself will also determine the terms of employment and will be an important document for understanding your rights at work.

When employment rights are violated

If a person has been discriminated against or if their rights have been violated in some way, they could have a valid claim against the employer.

You can lodge an application with the Fair Work Commission or make a complaint to the Fair Work Ombudsman. You might be able to commence legal action to obtain compensation, redundancy payments, or damages. You could have other orders made against your employer to rectify your employment situation.

If you have been discriminated against, you could make a complaint to the Australian Human Rights Commission, go through the conciliation process, and/or consider legal action. State equal opportunity commissions or tribunals also have the power to receive complaints made under state laws.

If your employer breaches a term in your employment contract, under the common law you have the right to sue for any loss you experience as a result of that breach.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.