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National Employment Law | Employment Lawyers Australia

Written by Michelle Makela

Michelle Makela is one of our Legal Practice Directors and the National Practice Manager. She holds a Bachelor of Laws, a Bachelor of Science (Psychology) and a Master’s in Criminology. Michelle has had a varied career, working in commercial litigation, criminal law, family law and estate planning. Michelle joined Go To Court Lawyers in 2011. She now supervises a team of over 80 solicitors across Australia.

As an employee in Australia, you are protected by national employment law at federal and/or  state/territory levels.

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 Basic Rights under the National Employment Standards

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

If you have worked for the same employer for 12 months or more and you satisfy certain criteria, you have the right to request flexible working arrangements, though your employer can refuse the request if there are reasonable ground for doing so.

The Standards state that you 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 you have been working for your employer, and your age. Note that the notice period can be longer if you and your employer have agreed on a longer period, and minimum notice periods will not apply if you have been summarily terminated due to misconduct.

If you work in a small business, your dismissal may be covered by the Small Business Fair Dismissal Code.

Are You Covered By the Fair Work System?

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

If you work for a state or local government, it is likely that your workplace falls under state legislation, rather than national employment law, unless your 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 the 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 work place, though it does not confer a specific right and only obligates employers with more than 100 staff to report on gender equality data.

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

What Can I Do if My Employment Rights Have Been Violated?

If you have been discriminated against or if your rights have been violated in some way, you could have a valid claim against your 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.

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