In Australia, there are various obligations that employers must adhere to in the workplace. Responsibilities differ from state to state, however in NSW employer obligations fall within a range of areas including employee record keeping, workplace discrimination, migrant workers, employment termination and unpaid arrangements.
In addition to the requirement for employers to pay employees at least the minimum wage and in accordance with their workplace responsibilities, here are a few rules employers must follow according to the Fair Work Act 2009.
Record keeping and pay slips
In NSW, employers are obliged to maintain all employee records and ensure they are readily accessible to a Fair Work Inspector. Employee records must be written in legible English, must not be inaccurate or misleading in accordance with each employee, and must be kept for seven years. Employers are also required to make pay slips readily available to all employees.
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Workplace discrimination
Under the Fair Work Act 2009, discrimination in the workplace is unlawful. An employer is required to abstain from adverse action towards an employee, prospective employee or past employee based on their race, sex, sexual preference, age, religion, political opinion, physical or mental disability, among other factors. Adverse action includes unfair dismissal, infliction of injury in the workplace, altering employment to the employee’s detriment, refusal of employment based on the above factors and discriminating between the employee and other employees.
Migrant workers
In Australia, migrant workers maintain the same rights as Australian citizens in the workplace under the Fair Work Act 2009 unless they have obtained a 457 visa through their employment arrangement. A 457 visa is the term given to an employment sponsorship arrangement in Australia. In addition to rights under the Fair Work Act 2009, and according to the Migration Act 1958, employers are obliged to pay travel costs for 457 visa holders and their families to leave Australia if requested in writing. Employers also maintain the right to ensure that 457 visa holders do not work for any other employers during their sponsorship period.
Employment termination
Upon terminating a worker’s employment, an employer is required to notify the employee of their under-performance or misconduct prior to termination, and must allow the employee to have a support person present at time of termination. The duration of employment is considered when determining the lawfulness of an employment termination. An employee in a small business (fewer than 15 people) can apply for unlawful dismissal after a minimum of 12 months, and an employee in a large business can apply for unlawful dismissal after a minimum of six months.
Unpaid internships
Employers must be vigilant when offering unpaid work arrangements. In NSW, unpaid internships are only lawful under two precedents according to the Fair Work Act 2009. The arrangement must be for vocational purposes and/or an employment relationship must not be present within the arrangement. An employment relationship is assessed on a case by case basis, however can be determined by factors including the length of the arrangement, the role of the intern within the business, identifying who benefits from the arrangement and the presence of a verbal or written employment contract.