At WorkLawyers we can give advice on short matters. These can range from:
Short matters are those which will typically resolve in a week or two, without needing to bring the matter to a hearing. If you are unsure whether your legal issue is a short matter, please call to tell us your employment problem- your first phone call with us will always be free!
Under the Australian law called the Fair Work Act[1] most people are protected from unlawful actions happening in the workplace. These are rights called ‘General Protections’.[2]
General protections apply to:[3]
Some examples of General Protections include:[4]
If you are an employee who has experienced an adverse action in breach of any of the rights described above, we can help you address this by making an application to the Fair Work Commission.
Following an application, an employer will be asked to respond, and you may be compensated for the breach.[5]
It is important to note that a strict time-limit (21 days) applies if you have been dismissed following a breach of General Protections. For us to best assist you, please get in touch as soon as possible if this applies to you.
If you are an employer, we can assist you with representation and responding to the Fair Commission for your matter. We understand that the process of resolving a dispute can be a stressful time so we strive to make it as quick and efficient as possible and we will provide you legal assistance every step of the way.
[1] Fair Work Act 2009 (Cth).
[2] <https://www.fwc.gov.au/what-are-general-protections>.
[3] <https://www.fwc.gov.au/job-loss-or-dismissal/dismissal-under-general-protections/about-general-protections/who-general-0#:~:text=The%20general%20protections%20laws%20cover%20current%20employers%20and%20potential%20employers,no%20dismissal%20(Form%20F8C).>.
[4] <https://www.legalaid.nsw.gov.au/my-problem-is-about/my-job/termination-of-employment/general-protections-dismissal/what-are-general-protections#accordion-4dda6ad507-item-cdcb2dfa80>.
[5] <https://www.fwc.gov.au/job-loss-or-dismissal/dismissal-under-general-protections/about-general-protections/understand>.
In Australia there are federal, state and territory laws[1] in place which make workplace discrimination unlawful against an employee or prospective employee. This includes full-time, part-time, casual and probationary employees, apprentices, trainees and any individuals employed for a set period of time or season.[2]
Discrimination is when an adverse action happens because of a person’s physical feature or attribute. Under the Fair work Act, these features and attributes include:[3]
If you are an employer, it is important for you to note that it is also unlawful for you to allow discrimination to occur within your workplace.[4] However, in certain circumstances exceptions may apply meaning an action may not be discriminatory even if it might seem to be.
For example, an action will not be discriminatory if it is:[5]
Discrimination is a complex area of employment law. If you think you have been subject to discrimination, or you think you may be liable to workplace discrimination please get in touch with us.
For employees[6] – there is a strict 21-day time limit to make an application to the Fair Work Commission if you have been dismissed because of discrimination. Please get in touch with us here if this applies to you.
If you have not been dismissed but experienced workplace discrimination, we can give you advice on whether you can submit a complaint to a state/territory anti-discrimination body, or the Australian Human Rights Commission.
For employers – Discrimination is a serious matter and you must take all steps necessary to prevent it from happening at your workplace. If you need legal assistance to handle a complaint against you, please reach out to us.
[1] <https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/australias-anti-discrimination-law>.
[2] <https://www.fairwork.gov.au/tools-and-resources/fact-sheets/rights-and-obligations/workplace-discrimination#what-is-not-considered-unlawful-discrimination>.
[3] Ibid.
[4] <https://antidiscrimination.nsw.gov.au/anti-discrimination-nsw/organisations-and-community-groups/your-rights-and-responsibilities-as-an-employer.html>.
[5] <https://www.fairwork.gov.au/employment-conditions/protections-at-work/protection-from-discrimination-at-work>.
[6] <https://www.fairwork.gov.au/employment-conditions/protections-at-work/protection-from-discrimination-at-work>.
Everyone has a right to a safe workplace that is free from sexual harassment. Sexual harassment occurs when someone makes an unwelcome sexual advance, request for a sexual favour or engage in any other unwelcome conduct of a sexual nature which could offend, humiliate or intimidate the person who is harassed.[1]
“Everyone” in the definition within the Fair Work Act include current and future:[2]
Since 6 March 2023, there has been some legislative changes which expanded the scope of this law to apply to any form of sexual harassment ‘in connection with work’.[3] This means that any of the persons described above must also not be sexually harassed by another worker, customer, client or a supplier of the business, or a visitor to the workplace.[4]
It’s important to note that this new and expanded scope is not retrospective, meaning different levels of protection will apply if sexual harassment occurred before or after this date.
If you have been subject to workplace sexual harassment, we can help you draft and lodge a complaint. Different time limits will apply depending on which agency the application is lodged to, but we can give you more tailored advice depending on your circumstances.[5]
For clarity the Fair Work Commission identifies that behaviours which may be perceived as sexual harassment can include:
In connection with the legislative requirement under the Fair Work Act, there is also a positive duty for employers and principals to ensure sexual harassment in connection with work does not occur. This means that employers must eliminate and minimise risks of sexual harassment, as is reasonably practicable, by:[6]
Failure to do so employers and principals may be held vicariously liable under the Sex Discrimination Act 1984, but there is an exception if the employer or principal can prove that they have taken all reasonable steps to prevent any sexual harassment from occurring.[7]
For us to best assist you and accurately inform you on how workplace sexual harassment law applies to you, please get in contact with us.
[1] <https://www.fwc.gov.au/issues-we-help/sexual-harassment/what-workplace-sexual-harassment>.
[2] <https://www.fairwork.gov.au/employment-conditions/bullying-sexual-harassment-and-discrimination-at-work/sexual-harassment-in-the-workplace>.
[3] <https://www.fairwork.gov.au/newsroom/news/secure-jobs-better-pay/new-workplace-sexual-harassment-laws#:~:text=Published%206%20March%202023,conducting%20a%20business%20or%20undertaking>.
[4] <https://www.fwc.gov.au/issues-we-help/sexual-harassment/what-workplace-sexual-harassment>.
[5] <https://sexualharassmentaustralia.com.au/lodging-your-sexual-harassment-claim-late/#Lodging_your_sexual_harassment_claim_late>.
[6] <https://www.comcare.gov.au/about/forms-pubs/docs/pubs/safety/workplace-sexual-harassment-guidance-for-employers.pdf>.
[7] <https://www.fwc.gov.au/issues-we-help/sexual-harassment/respond-application-about-workplace-sexual-harassment>.
An underpayment of wage, which can also be known as wage theft, happens when an employee is not paid their minimum pay rate, their correct wage, or their entitlements as stipulated by the National employment Standards (NES), modern award or enterprise agreement.
This can sometimes be an innocent mistake or a miscalculation made by an employer or their payroll, if they made an error in calculating the hours worked, entitlements or overtime rates of an employee.
If however, the underpayment was not done by mistake this could be a serious contravention of the law and penalties may apply.
The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 amends the Fair Work Act 2009 and a new criminal offence will be introduced for intentional underpayment of employees’ wages and entitlements. This new law will come into effect on the later of 1 January 2025, or when the Fair Work Commission’s Voluntary Small Business Wage Compliance Code starts.[1]
More on this new Law:
It is a criminal offence if an employer is found to have intentionally engaged in conduct which result in an underpayment of their employee. This will include the underpayment of wages as well as superannuation contributions if they are related to an employee’s entitlements under the Fair Work Act, a modern award or an enterprise agreement. What this new law will not apply to, is if an entitlement is solely contractual.
If an employer is found to have committed an underpayment offence, a maximum penalty of 10 years’ imprisonment and/or a maximum fine of whichever is greater – three times the amount of the underpayment, or $1,565,000 (for an individual) or $7,825,000 (for a body corporate) will apply.
Sayed v CFMEU
The Fair Work Ombudsman will be primarily responsible for investigating the new criminal offence, but it will also have the power to refer matters to the Commonwealth Director of Public Prosecutions or the Australian Federal Police for consideration and prosecution if they regard it as appropriate.
It is important to note that the new wage theft offence will not apply retrospectively, meaning the law will only apply to offences committed after the new law comes into force. Once that occurs there is a time limit of 6 years (after the offence occurred), to bring an action against an employer.[2]
If you would like to know more about how this new law will apply to you or if you have experienced an underpayment, simply reach out to us and we can help you.
[1] <https://www.dewr.gov.au/closing-loopholes/resources/compliance-and-enforcement-criminalising-wage-theft>.
[2] Fair Work Act 2009 s 327C “Commencing proceedings for certain offences against this Act”.
Under the Fair Work Act there are 4 things to consider in relation to unfair dismissal at work. Each of these will be explored further below, but essentially if a person wants to bring an unfair dismissal claim:
Harsh unjust byrne v Australian Airlines .
Dismissal[1]
Under the Fair Work Act a person is deemed to have been dismissed if:
Unfair[2]
A dismissal may be unfair if it was ‘harsh’, ‘unjust’ or ‘unreasonable’. Under the Fair Work Act there is a list of criteria which are taken into consideration to work out if a dismissal was unfair. These include (but not limited to):
There are also other considerations such as whether or not:[3]
[1] Ibid s 386.
[2] Ibid s 387.
[3] <https://www.fwc.gov.au/job-loss-or-dismissal/unfair-dismissal/about-unfair-dismissal/what-unfair-dismissal>.
Genuine redundancy is when an employer no longer needs anyone to work in the relevant role because there has been changes in the operational requirements of the employer’s enterprise; AND the employer has complied with any obligations imposed by the relevant modern award or enterprise agreement about the redundancy.
Fair Termination via incapacity, poor conduct or genuine redundancy .
If you are an employee and thinks you have been unfairly dismissed from work, please get in touch with us as soon as possible. A strict time limit of 21 days apply (from the day you were dismissed) if you want to bring an action against your employer. There are also various requirements such as a minimum employment period (6 months), a cap on your annual income ($167,500) and whether or not you were covered by a modern award or an enterprise agreement. Reach out to us and we can explore your situation with you.[1]
If you are a small business owner (who has less than 15 employees) who is involved with an unfair dismissal claim we can also provide you with legal assistance. The minimum employment period for an employee will be slightly different for your business (12 months) and you may qualify for an exception under the Small Business Fair Dismissal Code.[2]
[1] https://www.fwc.gov.au/overview-unfair-dismissal#:~:text=Under%20the%20Fair%20Work%20Act%20a%20person%20has%20been%20unfairly,harsh%2C%20unjust%20or%20unreasonable%2C%20and
[2] <https://www.fairwork.gov.au/ending-employment/unfair-dismissal>.
From 26 August 2024 a new law called the “Right to disconnect” is coming into force as part of the Closing Loopholes amendment. From this date onwards the law will apply to non-small business employers.
As for small business employers the law on “Right to disconnect” will come into force on 26 August 2025. A small business is one which has less than 15 employee, and this will include all part-time, full-time and casual employees.[1]
What is the “Right to Disconnect”?
It is a protected right under the general protections regime which means an employee will have a right to refuse to monitor, read or respond to any contact or attempted contact from their employer outside of their ordinary work hours.
Forms of attempted contact will include communications via email, call, text, or any other messaging platforms.
This right will also include any attempted contact from third parties trying to get hold of an employee for work-related matters outside of the employee’s ordinary work hours.
As a result of this upcoming right, employers must be aware that they cannot take adverse action against an employee for reasonably refusing contact outside of their working hours. Whether the employees’ refusal is reasonable or not, rules will apply to assist with this determination. Things which will be taken into consideration are:
Once the new law comes into force, the Fair Work Commission will have jurisdiction to hear dispute in relation to the right to disconnect. Both employers and employees will be able to go to the Fair Work Commission to seek orders on this right. However under the new law the employee and employer must hold workplace level discussions in the first instance to try and resolve their dispute.[2]
[1] <https://www.fwc.gov.au/issues-we-help/small-business-hub/what-small-business>.
[2] Fair Work Act s 333N(2).
Two new changes to employment law are due to start on 26 August 2024 which affect casual employees.[1]
The first change intends to provide a fair, objective definition of a casual employee, whilst the second intends to provide one clear and simple pathway to convert casuals to permanent employees.
Fair, Objective definition of casual employee
The new amended definition of a casual employee will be under s 15A of the Fair Work Act 2009. Casual employees will essentially be defined as someone who has no firm advance commitment to continuing and indefinite work. They must be entitled to a casual loading or specific rate of pay for casuals and the new definition will take into consideration of the practical reality of the employment relationship, not just what was in the employment contract when the casual employee started working.
The factors below are taken into account when assessing the practical reality of the employment relationship. However it is important to note that no single consideration is determinative of whether an employee is an casual or not. These factors include:
One clear and simple pathway to permanency
Causal employees who have worked for at least 6 months (or 12 months if they are working in a small business) will have the choice to notify their employer if they believe they no longer meet the definition of a ‘casual employee’. This employment statue will not change automatically and it will be subject to if the following occurs:
Employers will have 21 days to respond to an employee notification and either convert the employee to full-time or part-time employment, or they must provide reasons why a notification is rejected (there are various grounds where an employer is permitted to reject a conversion notification such as if there are fair and reasonable operational grounds to do so). The Fair Work Commission has the power to hear disputes and they may refer matters to arbitration as a last resort to try and resolve a dispute.
Status change will only happen where an employee wants to convert from being casual to permanent. If an employee wants to remain a casual employee, they will not be forced to become permanent.
[1] <https://www.dewr.gov.au/closing-loopholes/resources/stand-casual-workers>.
Since the 15 December 2023, a new Part 2-7A was introduced in the Fair Work Act and rules for labour hire workers have changed.[1]
A labour hire employer is no longer permitted to pay their employees, supplied to a host employer, wages that are lower than what the host employer pays their own employees. Penalties apply if they are in breach of the new ‘”same job same pay” provision.
Where a host employer is subject to an enterprise agreement or any other kind of instrument which provide for terms and conditions of employment (ie a workplace determination or a public service determination), a labour hire employer must follow the same protected rate of pay for their employees and they have a right to request information from a host employer to work out the exact protected rate of pay for their employees.
A host employer also has the obligation to notify a labour hire employer when a new enterprise agreement has been approved, so the labour hire employer can also follow the new protected rate of pay.
The new ‘same job same pay’ legislation is however subject to exceptions, meaning that the Fair Work Commission cannot make an order if:
[1] <https://www.fairwork.gov.au/about-us/workplace-laws/legislation-changes/closing-loopholes>.
Since the 15 December 2023, a new Part 2-7A was introduced in the Fair Work Act and rules for labour hire workers have changed.[1]
A labour hire employer is no longer permitted to pay their employees, supplied to a host employer, wages that are lower than what the host employer pays their own employees. Penalties apply if they are in breach of the new ‘”same job same pay” provision.
Where a host employer is subject to an enterprise agreement or any other kind of instrument which provide for terms and conditions of employment (ie a workplace determination or a public service determination), a labour hire employer must follow the same protected rate of pay for their employees and they have a right to request information from a host employer to work out the exact protected rate of pay for their employees.
A host employer also has the obligation to notify a labour hire employer when a new enterprise agreement has been approved, so the labour hire employer can also follow the new protected rate of pay.
The new ‘same job same pay’ legislation is however subject to exceptions, meaning that the Fair Work Commission cannot make an order if:
[1] <https://www.fairwork.gov.au/about-us/workplace-laws/legislation-changes/closing-loopholes>.
Since the 1 February 2023 family and domestic violence leave has become a paid entitlement for National System Employees under Div 7 Pt2-2 of the FW Act, by virtue of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022.
An employee can take up to 10 days leave at their full rate of pay in a 12 month period (s 106A Fair Work Act).
This entitlement will extend to non-national system employees once the Internation Labour Organization’s Convention concerning Violence and Harassment 2019 (No 190) comes into force in Australia. Since the Convention was ratified in June 2023, this entitlement should take effect in June 2024 under Div 2A of pt 6-3 of the Fair Work Act.
This is sometimes referred to as ‘post-employment restraints’ or ‘restrictive covenants’. A restraint will typically specify an employee’s obligations once their employment ends with their employer.
The terms of the restraint may be contained in a written employment contract or they may be set out in a separate document. They must be consistent with public policy otherwise they are prima facie void.
Additionally, not all post-employment restraints are enforceable unless an employer can prove that the restraint is reasonable, judged at the time when the restraint was agreed.
What is reasonable will depend on a number of factors, including the market concentration of the arrangement i.e. how many competitors there are against a business that seeks to restrain the ex-employee. An employer cannot impose a post-employment restraint merely to protect itself from competition from an ex-employee, or to prevent a valuable worker from other employment.
When an issue regarding a restraint of trade is brought before the courts, considerable weight will be given to what the parties (the employer and employee) have negotiated and embodied in their contract. A contractual consensus is however not definitive. If the terms of a restraint is ambiguous, a court will usually prefer an interpretation which narrows its operation.
Under the common law doctrine for a restraint of trade to be enforceable an employer must be able to prove two elements:
Some examples of when a post-employment restraint is valid:
Disputes about work
Defamation
Construction Disputes
Licensing
