Employment Law in Australia

The terms and conditions which govern the relationship between an employee and employer are regulated by various statutes in Australia.

The Fair Work Act 2009 (Cth) (the Fair Work Act) is the primary source of federal legislation regulating the employment relationship, with this setting out the minimum terms and conditions for the vast majority of employees within Australia. The Fair Work Act sets out minimum entitlements that apply to all national system employees, known as the National Employment Standards (NES), as well as allowing for the creation of Modern Award and Enterprise Agreements to build upon these minimum entitlements with industry, occupation or workplace specific terms and conditions.

The primary regulatory bodies in the national system are the Fair Work Commission and the Fair Work Ombudsman. The Fair Work Commission sets the National Minimum Wage, creates and amends Modern Awards, approves Enterprise Agreements and any related protected industrial action, and resolves or arbitrates disputes pertaining to unfair dismissal, general protections and other matters. The Fair Work Ombudsman’s key function is to promote compliance through educating businesses on legislation, as well as auditing and investigating businesses for potential contraventions of relevant legislation. The Fair Work Ombudsman can mediate underpayment disputes, issue fines to employers for non-compliance, and initiate prosecution of employers for contraventions of legislation, regulations, awards, and agreements.

This report will focus on employees in the federal system who are covered by the Fair Work Act, as this applies to most employees within Australia. Note that employees of non-constitutional corporations in Western Australia are not covered by the Fair Work Act, and accordingly this report should not be relied upon for employees in this category. Limited other groups of employees in various states and territories are likewise not covered by the Fair Work Act. For these employees, advice on the applicable state system should be sought.

• The Fair Work Act 2009 is the primary source of federal legislation regulating the employment relationship, setting out the minimum terms and conditions for the majority of employees. A minority of employees are covered by State or Territory industrial relations legislation

• When recruiting, employers must comply with anti-discrimination and general protection laws as potential employees should only be assessed on the basis of their skills, experience and merit rather than on the basis of characteristics that are unrelated to the job or workplace rights that they have exercised . Recruitment and Selection

• Under the health and safety legislation in most States and Territories, a person or business has a primary duty to take reasonably practicable steps to eliminate or minimise risks that may adversely impact the health and safety of its workers when carrying out their duties. Work Health and Safety

• Federal legislation prohibits discriminatory practices that target or exclude groups or individuals on the basis of their race, gender, disability and age. State specific legislation prevents discrimination on the basis of other characteristics, such as religion, pregnancy, physical appearance, sexual orientation, family or carer responsibilities, political opinions and social origins. Discrimination

• All employees covered by the federal system are protected by National Employment Standards (NES) that cover maximum weekly hours, flexible working, parental leave, annual leave, personal leave, community service leave, long service leave, public holidays, notice of termination, redundancy pay, and Fair Work Information Statements. National Employment Standards

• An employment contract should typically be provided at the commencement of an employee’s engagement with the company, with the signature of both parties’ evidence of their agreement of the terms. In some circumstances a written employment contract is required either when the employee starts employment or shortly after. Contracts

• The terms and conditions of a contract must be mutually agreed between an employer and an individual employee without coercion. Contracts

• An employee may terminate their employment at any time, providing notice in accordance with the applicable Modern Award, Enterprise Agreement or contract of employment. Employee Resignation

• The General Protections of the Fair Work Act enshrine the right of all employees to join an industrial association and engage in lawful industrial activities, amongst other rights. Unions

• There is no general right for employees to legally engage in strike action. Strikes

• Employees must be a citizen, permanent resident or the holder of a class of visa that allows work to be undertaken. Rights to Work in Australia

• All employers need to regularly review rates of pay to ensure employee’s rates do not fall below the minimum level prescribed by the applicable Modern Award, Enterprise Agreement or National Minimum Wage. Remuneration

• The process for terminating an employee is subject to protections under the Fair Work Act, Fair Work Regulations, Anti-Discrimination and General Protections laws and other applicable legislation. Termination of Employment