Employment law affects almost every aspect of the relationship between employees and employers. Australia has some of the most stringent employment laws in the world, with Victoria’s implantation of these laws being more rigorous than most other states. These frequently asked questions and answers give an insight into some of the key areas of employment law.
As an employee, where can I view my rights and obligations relating to my employment?
Generally, every employee’s employment is governed by an employment contract. Such a contract might be in the form of a written document, or it could be a verbal agreement or exchange of emails. Employment contracts often set out the rights and obligations of both parties to the agreement, so if you have an employment contract, you will be able to refer to that when trying to understand your rights and/or obligations.
Legislation such as the Commonwealth Fair Work Act 2009 also sets out standards for employment which must be met in order for that employment to be legal.
Your employment may be covered by an award or enterprise agreement, which would also state any additional rights you may be entitled to. It is important to check whether or not any of these apply to your employment.
What is unfair dismissal?
Unfair dismissal has occurred if your dismissal is found to have been unreasonably harsh or unjust. In order to be covered by unfair dismissal laws, an employee must have worked for the employer for a minimum period of time (one year for a small business and six months for businesses which employ 15 or more employees). An employee must also earn less than $129,300 per year and not be working as a contractor in order to be protected. Unfair dismissal applications must be lodged with the Fair Work Commission within 21 days of the dismissal occurring. It is recommended that you seek legal advice as soon as possible if you intend to make a claim.
What is redundancy?
Redundancy may occur if the operating environment of an enterprise has changed to the point where the employer no longer requires your position to be filled. Genuine redundancies often come about as a result of restructuring operations and other management initiatives. By law, employers must notify affected employees about the redundancy as soon as possible. Genuine redundancies are often accompanied by one-off payment which is proportionate to the employee’s length of service.
In some cases, employers may seek to dismiss an employee instead of making the redundant in order to avoid paying redundancy entitlements.
What is notice of termination, and does it apply to all employees?
Employers are not able to terminate an employee’s employment without giving them written notice of the date of termination. This notice may be delivered personally or sent to the affected employee’s last known address.
The amount of notice required differs depending on the length of an employee’s service. Generally, the requirements for giving notice are as follows:
For employees with a period of continuous service equalling not more than one year – one week’s notice is required;
If the period of service is more than one year but less than three years – two weeks’ notice is required;
More than three years but less than five years continuous service – three weeks’ notice is required;
More than five years of continuous service – four weeks’ notice is required.
The above notice requirements do not apply to casual employees or independent contractors/subcontractors.
What is the difference between an employee and a contractor?
An employee is someone that is hired by an employer to perform in a role which is set out in an employment contract. Employment contracts theoretically go on forever, unless terminated by either party. An independent contractor or subcontractor on the other hand, essentially hires out their services for a certain period of time on the basis of an individually negotiated contract with another business or entity.
Contractors are often able to negotiate their own pay and conditions, however, some laws that apply to employees do not apply to contractors. For example, a contractor may potentially have their employment terminated within a day’s under the terms of their contract, whereas an employee would be protected by legislation enforcing minimum notice periods etc.
Contractors are also responsible for paying their own tax and superannuation.
What is workplace discrimination?
Under Victoria does Equal Opportunity Act 2010 it is illegal for employers to discriminate against an employee on the basis of that employee possessing a certain attribute or characteristic, or the assumption that they possess that characteristic. Such things as race, gender, parental or marital status, religion, physical features, political beliefs, and sexual orientation are all protected attributes for which discrimination is unlawful. Under these laws, employees are protected at all stages of the employment process, from recruitment to dismissal.
What is workplace bullying?
Workplace bullying occurs in workplaces across all industries and professions, and it can have a significant impact on a workplace by reducing the health and safety prospects of those employees.
Bullying usually constitutes repeated, negative behaviour which is directed towards an employee or group of employees. The behaviour is usually targeted, whether directly or indirectly, and this is what makes it so destructive.
There are many laws that protect employees from workplace bullying, and WorkSafe Victoria actively responds to bullying claims in an effort to minimise the damage they may cause to a workplace’s health and safety environment.
Workplace bullying may also constitute discrimination if a victim is being targeted due to the fact that they possess a certain attribute or characteristic, however, the two do not always align.
What should I do if I believe my workplace rights have been infringed?
If you believe that your employer may have breached your employment rights, you should seek legal advice as soon as possible. Some law firms specialise in employment law, and will be able to provide you with a detailed description of your case and how it is likely to play out in court. Claims made with the Fair Work Commission need to be filed within a certain time period, so if you are having any doubts at all, seek legal advice as soon as possible.
Are all employees protected by employment law?
Employment laws differ slightly throughout the states and territories, as separate bodies exist to administer the Commonwealth Fair Work Act 2009, as well as legislation passed by the states themselves. In Victoria, all employees are protected by the Fair Work Act, including government employees. Independent contractors and casual workers have different rights, but are still awarded some protections under the legislation.