Your employees are important business assets, but a poorly performing employee can also be a serious business liability. The relationship between employers and employees is now heavily regulated by the Fair Work Act of 2009. FWA governs issues including minimum wage, overtime, parental, annual and caregiver leave and flexible working arrangements. The laws also regulate worker treatment to ensure that is nondiscriminatory and requires employers to give notice or make payments to employees when employment is terminated. If you, as an employer,

need legal advice about how the law applies in your workplace,
are in charge of performance management,
need to have employment contracts drafted,
suspect that an employee has engaged in misconduct, or
are considering terminating an employee

contact Owen Hodge Lawyers at 1800 770 780 or at ohl@owenhodge.com.au to be sure that your actions are within the law and do not expose you or your business to the risk of legal liability.

The National Employment Standards (NES)

The FWA sets forth 10 minimum standards that provide a safety net for most private-sector employees. These standards became effective on January 1, 2010, and

set maximum weekly hours at 38 per week, plus reasonable additional hours and require overtime pay for hours in excess of 38
permit parents, caregivers, workers age 55 or older, those who have a disability or are victims of domestic violence to request flexible working arrangements
provide unpaid parental leave of up to 12 months per employee, plus a right to request an additional 12 months of unpaid leave and other forms of maternity, paternity and adoption-related leave and entitlements
provide four weeks of paid annual leave per year plus an additional week for certain shift workers
provide paid or unpaid personal, carer’s and compassionate leave, depending on whether the employee is a casual or full-time worker
allow employees to take unpaid leave for certain voluntary emergency activities and paid leave for up to 10 days of jury service
recognize certain pre-2010 long service leave agreements
provide for paid public holidays, except when the employee is reasonably asked to work. These days include New Year’s Day, Australia Day, Good Friday, Easter Monday, Anzac Day, the Queen’s birthday holiday, Christmas Day, Boxing Day and any other day that is declared or generally observed in a state or territory
require written notice of termination or pay in lieu of notice. The law also requires redundancy pay. Both are both based on length of service.
require distribution of the Fair Work Information Statement to all employees. This statement contains information about the NES and the respective roles of the Fair Work Commission and the Fair Work Ombudsman.

Discrimination at Work

Australia has many state and federal laws that protect people from unlawful discrimination. In the context of employment, the two most important are the FWA and New South Wales’ Anti-Discrimination Act of 1977.

In general, the laws prohibit employers from taking adverse action against employees, applicants and independent contractors on certain prohibited grounds. The prohibited reasons include

race,
colour,
sex,
sexual preference,
age,
physical or mental disability,
marital status,
family or carer responsibilities,
pregnancy,
religion,
political opinion,
national extraction and
social origin.

The prohibited actions include

firing
not hiring
offering different pay for similar work
refusing legal entitlements like leave, and
changing the conditions of an employee’s job in a way that disadvantages him or her.

An action is not unlawful discrimination if it is based on the inherent requirements of the job. If a job necessarily requires an employee to be able to lift 75 lbs, an employer need not hire an applicant who, because of disability or any other reason, cannot lift 75 lbs. Different treatment in the workplace is also not unlawful if it is not adverse. An employer who allows pregnant employees more rest breaks is not treating those employees adversely and thus not unlawfully. An employer may take adverse action for reasons that are not related to that person’s status. If a 62-year old cashier consistently, and after warning and retraining opportunities, makes mistakes in giving change, the employer may terminate that employee because of poor performance. Clearly, causation is at the heart of any argument about unlawful discrimination.

Many employers require that issues be addressed under workplace dispute resolution procedures, but you should be very careful about agreements that you ask employees to sign. Your best choice may be to speak with an experienced employment lawyer first. This choice allows you to pursue all options with the full advantage of information.

Termination of Employment

If you are concerned that an employee may complain about unfair dismissal, lack of termination notice or failure to give redundancy pay in accordance with the NES, you may have several things you can do to protect your business.

The Fair Work Commission handles unfair dismissal complaints and will look at whether the dismissal was harsh, unjust or unreasonable. To make this decision, the Commission will evaluate your action to determine whether there was a valid reason for dismissal relating to conduct, capacity or performance of work duties, whether the employee was appropriately notified of the reason, had a chance to respond and whether the employee was permitted to have the assistance of a support person other than a lawyer during any discussions relating to the dismissal. The Commission has produced a check sheet every employer should use as a guideline when contemplating dismissal of an employee. Generally, employees must have been employed by a small employer for at least 12 months or by a larger employer for at least six months to bring an unfair dismissal claim and must bring the claim within 21 days of the dismissal. The Commission may order an employer to reinstate an employee or compensate that employee for a period of up to 26 months.

Unless the employee is a casual worker or terminated for serious misconduct, employers must give advance written notice of termination. How far in advance depends on the employee’s length of service, but can be up to 4 weeks with more than 5 years of continuous service, and up to 2 additional weeks for employees who are over 45 years old. In lieu of notice, an employer must pay for the required notice period.

Employers must make redundancy payments if an employee is terminated because the task is no longer necessary for a particular job or if the employer becomes bankrupt or insolvent. The amount of pay will also depend on length of continuous service but may be up to 16 weeks of pay for employees with between nine and ten years of service. The redundancy pay provisions do not apply to small employers. The provisions relating to NES termination notice and redundancy are administered by the Workforce Ombudsman.

For many employers the requirements of the law are new and unfamiliar. You should protect yourself and your business. Make sure that you approach your new responsibilities with full and unbiased information. If you are uncertain of the steps you must take or are concerned that you may be the subject of a complaint, schedule a consultation with an experienced employment attorney at Owen Hodge Lawyers today. Call or click us at 1 800 770 780 or at ohl@owenhodge.com.au.

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