Employment law – rights and responsibilities

Riverland Community Legal Service

Types of employment

Employee or contractor?– Control over work– Payment arrangements– Insurance, taxation, superannuation– Tools and equipment

“Sham” contracting

Types of employment

Casual employment– Irregular hours– May or may not be offered work– Discretion to refuse work

Casual status is not solely determined by contract

Casual employees

Entitlements– No holiday pay, sick pay or payment for public

holidays not actually worked– Should be payed loading (at least 20% extra)– Are entitled to workers compensation– Sometimes entitled to long service leave– Are entitled to superannuation if paid more than

$450 a month (or less if by award)

Casual employees

Protections– Are protected by anti-discrimination legislation– Are protected by unfair dismissal legislation if are

employed on a regular and systematic basis and have a reasonable expectation of ongoing work

Terms of employment

Express terms– Under contract of employment– Under award or modern award– Rules of conduct or employer’s policies (if brought

to employee’s attention)

Implied terms– Implied by law– Implied by conduct or circumstances of job

Federal or State system?

Federal system– Constitutional corporation

Where revenue is raised (doesn’t have to be profit-oriented)

– Commonwealth government authorities

State system– State government authorities– Local councils

National Employment Standards (federal system only)

Minimum standards of employment– Max 38 hours per week full time

But can be asked to work additional hours if reasonable

– Up to 24 months unpaid parental leave (with conditions attached)

– 4 weeks annual leave (5 weeks if a shift worker)– Public holiday pay– Redundancy pay

Equal opportunity protections

Prohibited to discriminate in employment in regards to:– Age– Sex– Sexuality– Marital status– Pregnancy– Race– Disability

Equal opportunity protections

Religious dress– Generally cannot discriminate based on religious

dress– Exceptions:

Safety hazards Where face needs to be identified Reasonable dress codes

Occupational health & safety

Employer must provide a safe work environment

Must maintain equipment and provide adequate safety training

Employees must follow health and safety instructions

Different requirements for different industries

Termination of employment

By giving notice (i.e. resigning)– No reason need be given– Notice period set by contract or award– If no set notice period, must give reasonable

notice (unless there is a set period of employment)

Termination by employer

Breach of employment contract Consistent poor performance Consistent misconduct Summary dismissal Retrenchment, redundancy and bankruptcy

Unfair dismissal

Different laws apply to small businesses Where dismissal is harsh, unjust or

unreasonable Must have worked 6 months (or 1 year if

small business) 14 days to make an application

Unfair dismissal

Harsh, unjust or unreasonable– Terminated for poor performance but given no

warning or opportunity to improve– Terminated for performing in accordance with the

employer’s directions

Constructive dismissal

Unfair dismissal

Application to Fair Work Australia Mandatory attendance at conference Remedies:

– Reinstatement (primary remedy)– Compensation

Unlawful dismissal

Dismissal that is in breach of certain general protections– Discriminatory dismissal– Dismissal for union involvement– Dismissal for temporary absence due to illness

Organisations

Fair Work Australia– 1300 799 675– Unfair dismissal– Complaints regarding entitlements (federal system only)

SafeWork SA– 1300 365 255– Occupational health & safety– Complaints regarding entitlements (State system only)

Organisations

Employee Ombudsman (SA)– 8207 1970– Advice on rights and entitlements– Advocacy on behalf of employees (except in

cases of unfair dismissal)

Human Rights Commission– 1300 656 419– Discrimination complaints

Organisations

Equal Opportunity Commission– 8207 1977– Discrimination complaints

Legal Services Commission– 1300 366 424– Free legal advice

Organisations

Working Women’s Centre– 8410 6499– Free legal advice

Also consider contacting the relevant union for advocacy and representation