Understanding employment law in Australia

Employment legislation exists to govern the relationship between an employer and their employee for as long as that relationship exists, and sometimes even after the employee has left their former employers.

These workplace laws aim to place the employer as the responsible party for ensuring that employees are treated fairly, that their rights are upheld, and that they receive the right wages and other benefits they are entitled to.

What is the employment law in Australia?

As an employer, you are required to follow all aspects of Australian employment law.

The laws you need to follow will depend on a variety of factors including where your business operates and where your employees are located.

All Australian employers, however, have a responsibility to give workers a safe, secure environment. This goes beyond physical safety and comfort, to include making sure the work environment is free of bullying, discrimination, and harassment.

The main sources of employment law in Australia

It's important to know what workplace relations system covers your business and your employees, to determine what legislation applies.

If the national workplace relations system applies, your business may be covered by an industrial instrument such as a modern award, enterprise agreement or other registered agreement that sets out additional minimum employment conditions that apply to a particular industry or occupation above and beyond the National Employment Standards.

• Legislation (federal laws, and state and territory laws)

• Industrial instruments

• The common law

What employment laws govern Australian workplaces

Some workplace laws apply to a majority of Australian employees, regardless of the specific state or territory.

The five key pieces of legislation include:

1. The Fair Work Act 2009

The Fair Work Act is one of the most significant pieces of employment legislation and includes the national minimum wage and a host of other employment entitlements.

It provides the terms and conditions for the majority of Australian employees that are covered by the national workplace relations system, but in Western Australia sole traders, partnerships, other unincorporated entities, and non-trading corporations are not covered by the FWA.

The rights provided by this legislation cannot be undermined or contracted out of regardless of any agreement in writing or verbal agreements. It's also supported by other federal, state and territory laws.

2. The National Employment Standards (NES)

The National Employment Standards (NES) are contained in the Fair Work Act 2009 and set out 11 minimum entitlements which apply to most employees in the private sector.

They are:

• Maximum weekly hours
• Requests for flexible working arrangements
• Offers and requests to convert from casual to permanent employment
• Parental leave and related entitlements
• Annual leave
• Carer's/personal leave, compassionate leave and family and domestic violence leave
• Community service leave
• Long service leave
• Public holidays
• Notice of termination and redundancy pay
• Fair Work Information Statement (the FWIS) and Casual Employment Information Statement (the CEIS)

3. The Work Health and Safety Standards (WHS)

These Standards are set out as model workplace health and safety laws. Each state and territory needs to implement them in order to make these standards the law.

This largely applies in the Australian Capital Territory, New South Wales, the Northern Territory, Queensland, South Australia, Tasmania, Western Australia, and the Commonwealth.

It's important to note that the health and safety framework the WHS provides applies to both employees at work as well as anyone who may be associated with the workplace like customers.

4. The state and federal anti-discrimination laws

While a Workplace Health and Safety Act can provide for bullying and employment laws can protect from workplace discrimination, federal legislation is in place to protect people from race, gender, marital status, religion, disability, and age discrimination. The Australian Human Rights Commission governs how this is upheld.

Each state and territory also maintain their own laws to prevent discrimination and harassment in the workplace.

5. The Privacy Act 1988

The 13 Australian Privacy Principles guide:

• How personal information is collected, used, and disclosed
• The governance and accountability of an organisation or agency
• How to assure the integrity and correction of personal information
• An individual's rights to access their personal information.

These give organisations the ability to tailor their own privacy practices accordingly.

What rights do employers have in the workplace?

Employers can expect employees to reach a reasonable standard in their work, follow reasonable management directions, and comply with their employment contract as well as policies and procedures put in place by the business.

Outside of these few points, however, employers have far more obligations to their employees than vice versa.

The Fair Work Ombudsman

Employers who haven't heard about the Fair Work Ombudsman (the Ombudsman) in Australia are very likely few and far between. Even if you haven't had dealings with them in the past, you're likely to have heard about them.

But let's start at the beginning.

What is the Fair Work Ombudsman?

The Ombudsman is an Australian government agency responsible for administrative and enforcement roles to make sure employers comply with their Australian employment law obligations.

That includes obligations surrounding modern awards and enterprise agreements, as well as pay rates.

The Ombudsman can be viewed as an adviser to employers who want further information or clarity about their Fair Work obligations. But they also work to resolve issues with employment obligations and employee entitlements.

How can the Ombudsman help you with Australian employment law?

Employers considering the Ombudsman to be something that must be avoided at all costs are missing out on the helpful assistance the Ombudsman offers to help the employment relationship run smoothly. Along with enforcing standards, it can also provide advice to businesses and employers in general.

The Ombudsman also attempts to resolve misunderstandings or conflicts at work before they become formal problems.

What is the difference between the Fair Work Commission and the Fair Work Ombudsman?

The Fair Work Commission (FWC) is the independent national workplace relations tribunal.

It's responsible for maintaining a safety net of minimum wages and employment conditions, as well as a range of other workplace functions and regulations.

Similar to the FWC, the Fair Work Ombudsman (FWO) works to ensure the correct understanding and implementation of the Fair Work Act’s legislation in Australia.

However, unlike the FWC’s tribunal nature, the FWO works to help employees, employers, independent contractors, and the wider workplace community understand their workplace rights and responsibilities, with the key aim being to keep workplaces fair through education and mediation.

All of the FWO’s services are free and rather than operating in an enforcement capacity, they offer information, tools, templates and help for individuals to resolve workplace matters without the need for intervention.

What the FWC can do

• Help employees and employers bargain in good faith and make, vary, or terminate enterprise agreements
  
• Deal with applications relating to ending employment including unfair dismissal, unlawful termination, or general protections
  
• Deal with applications for an order to stop bullying at work
  
• Make orders about industrial action, including strikes, work bans and lockouts
  
• Provide mediation, conciliation, and in some cases hold public tribunal hearings to resolve various individual and collective workplace disputes
  
• Make workplace determinations, hear and decide on equal remuneration claims, and deal with applications about the transfer of business, stand down, general protections and right of entry disputes

What the FWC can’t do

• Provide advice on entitlements under an award or registered agreement
• Enforce minimum pay and award entitlements
  

What the FWO can do

• Educate people about fair work practices, rights, and obligations
  
• Resolve workplace issues by promoting and monitoring compliance with suspected breaches of workplace laws, awards, and registered agreements
  
• Enforce workplace laws and seek penalties for breaches of workplace laws
  
• Enforce certain orders made by the Fair Work Commission

What the FWO can’t do

• Investigate unfair dismissal and unlawful termination applications
  
• Make changes to the legislation, awards or registered agreements
  
• Investigate bullying and harassment complaints
• Resolve workplace matters
  

Your business and the Ombudsman

The ideal scenario for a workplace issue would be to have it resolved prior to any regulatory bodies becoming involved.

However, that's not always possible. So, if an employee suspects, or is aware of the fact, that they are not receiving the correct entitlements as per the Fair Work legislation, the Ombudsman are available to help resolve the issue through processes like mediation.

While it may seem like a big deal to have the Ombudsman involved in your employees’ work relations, their emphasis is on early intervention and resolution by providing advice and support. This means that seeking the advice of the Ombudsman well in advance of any issues arising is the best way to prevent them from occurring in the first place.

There are some cases when employers and employees choose to not seek the advice of the Ombudsman and serious non-compliance can occur.

If this happens the Fair Work Ombudsman may investigate any possible breaches of workplace laws.

Ombudsman inspections:

You should know that Ombudsman inspectors have a high level of power when they are conducting investigations.

They can:

• Get access to inspect workplaces
• Review and copy documentation and records
• Interview any person they believe will be able to assist with determining an outcome

For the most part, the Ombudsman responds to employee complaints to conduct investigations. For example, if any of your employees have underpayment queries or make complaints about actions and entitlements at the workplace, you will most likely receive a visit from an inspector.

Sometimes Ombudsman inspectors review businesses at random. That means you should ensure that you and your employee understand the Fair Work legislation relating to your industry and that you are compliant.

Even though the Ombudsman may receive a lot of complaints, they do not necessarily investigate every single request for assistance. As it is a relatively simple process to put forward a complaint, there needs to be some discretion in deciding which complaints are legitimate and require investigation. The Ombudsman chooses to investigate if the request for assistance is fairly significant or is of public interest.

What to do if the Ombudsman is investigating you or your business

If your business is facing an investigation, it is in your best interest as the business owner to cooperate with the Ombudsman.

You should consent to all their requests and make it as easy as possible for them to conduct the investigation. It may go without saying, but the best remedy for an investigation, and likewise to guarantee you are not investigated in the first place, is to ensure that you have a detailed understanding of your employment obligations and have the correct documents, policies and procedures in place and are offering the correct entitlements to your employees.

So before any considerations of whether you may or may not be investigated by the Ombudsman, make sure that you are aware of your requirements under the Fair Work Act 2009. If faced with an investigation, employers should seek professional advice on how to respond.

How can BrightHR help you stay on top of employment law

Having covered the basics of employment laws in this article, it's abundantly clear that staying compliant is far from a simple feat.

Keeping up with evolving laws takes time and resources. For sole traders or even for a small business, this time and effort can be hard to come by. That's where BrightHR's end-to-end employment relations support system can help.

Meeting your record-keeping obligations

As an employer, keeping secure records that prove your compliance and help your business run smoothly is just one of your legal obligations.

Our HR software simplifies this by helping you centralise, create, and securely store your documentation without thinking twice. BrightHR software includes a library of expertly written HR documents including employment contracts and employee handbooks.

24/7 employment relations support

Legal obligations go beyond accurate documentation. That's why BrightHR also offers you a confidential 24/7 employment relations phone line.

So, whenever you have a question about changes to Australian employment law in Australia you can get immediate answers from a team of Australia-based experts. It's just that easy.