The passing of the Secure Jobs, Better Pay legislation constitutes the biggest shake-up to Australia’s national industrial relations framework in over a decade. This alert provides a summary of the key amendments to Australia’s workplace laws, in addition to practical guidance on steps that employers need to take to ensure they are compliant with the Act.
In our final publication of the Back-to-Basics Series, we look at the ways in which an employment relationship can be concluded and the specific steps to follow in order to avoid seeing the inside of a courtroom and/or making substantial unplanned financial contributions to the outbound employee’s bank balance. Furthermore, careful management when bringing an employment relationship to an end, for whatever reason, can be achieved so that the departing employee does not leave disgruntled and likely to damage the business’ reputation.
In our fifth publication of the ongoing series, we now examine the role of modern awards and enterprise agreements in the regulation of employment terms and conditions. Other than the NES, the Fair Work Act 2009 (Cth) (“Fair Work Act”) provides for a number of mechanisms to regulate basic terms and conditions of employment, the most important being modern awards and enterprise agreements.
One of the primary purposes of the Fair Work Act is to create minimum requirements, protections and obligations in order to provide a balanced framework for cooperative and productive workplace relations that promote national economic prosperity for all Australians. The Fair Work Act achieves this objective by implementing a number of mechanisms including the National Employment Standards, and the creation of Modern Awards, Enterprise Agreements, protections for unfair dismissal, provisions that protect against adverse action and sham contracting, all of which are obligations that employers must abide by and can result in significant legal remedies where a breach occurs.
An employment contract is an agreement between an employer and an employee which sets out the terms that will govern each individual employment relationship. An employment contract is created as soon as there is agreement between the parties regarding the employment. As such, even if there is no written document, an employment contract exists which governs the terms of the relationship. If there is no written agreement, the terms will be implied by law and fact. This creates significant uncertainty for both parties and a fruitful area for later litigation.
There are a variety of different types of employment relationships that can exist between an employer and an employee. There are four main types of employment arrangements being: part-time employees, full-time employees, casual employees, and fixed-term/project specific employees.
While these types of employment might seem simple to understand at a first glance, there are many nuances that are specific to each type of employment arrangement. It is essential that each of these types of employment are understood because each of these arrangements give rise to different rights and responsibilities between the employer and the employee.
Our clients’ often come to us with questions that go to the heart of the employment relationship, and we are continually surprised that experienced business owners do not understand the basic legal principles and laws underpinning the employment relationship. We will be dedicating the next 6 issues of our client alerts to a series on the Basics of Employment Law.
The industrial landscape of Australia has changed rapidly in recent years, with the evolution of the gig-economy and business’ over-reliance on labour hire arrangements and the increasing casualisation of the workforce. This shift has exacerbated insidious consequences such as prolific wage theft, gender inequality, and job insecurity. The new Labour Government headed by Anthony Albanese (“Labour”) is taking direct aim at some of these issues, with a series of vision statements and plans that espouse commitment to stamping out sexual harassment at work, improving job security, facilitating pathways to permanent work, and securing equal pay.
In 2018, sexual harassment was at the forefront of the public psyche. In response to an industrial landscape rife with sexual harassment, the Respect@Work campaign was launched. After two years of research, in March 2020, the Australian Human Rights Commission (“AHRC”) released the Respect@Work: Sexual Harassment National Inquiry Report (“the Report”) which made 55 recommendations to prevent sexual harassment and to improve responses to complaints. Among these recommendations was the concept of imposing a ‘positive’ duty on employers to prevent sexual harassment in the workplace. The rationale was that this approach will lighten the burden on victims and attempt to overcome circumstances where employees feel they are unable to make complaints or adequately resolve issues, due to fears around job security or being treated differently.
Workplace Bullying as an issue is not new, however it remains very prevalent in Australian workplaces. In fact, in research conducted by the Australian Workplace Barometer at the University of Adelaide in 2021, Australia ranked third worst in bullying rates compared to 34 countries in Europe. In research conducted by the same organisation in 2019, it found that two thirds of employees suffered from bullying at work.
Bullying in the workplace is very bad for business. Not only can it result in significant legal claims, but more often than not, it translates into lost revenue as a result of personal leave days, absenteeism, lack of motivation and productivity and poor morale and turnover of employees.
The Commissioner of Taxation (“the Commissioner”) is ramping up efforts to identify unpaid superannuation entitlements by businesses who have been incorrectly operating under the assumption that contractors are not entitled to receive superannuation contribution payments. Under the Superannuation Guarantee (Administration) Act 1992 (“the Act”), contractors may be entitled to superannuation where they are classified as an employee for the purposes of the Act. The definition of ‘employee’ under the Act is much broader than that commonly understood.
A claim for breach of the general protections, or as it is otherwise known, “adverse action”, is the lesser known of two predominant claims brought by employees in circumstances where their employment is terminated. While most employers are familiar with the threat of an unfair dismissal claim, fewer understand the risks associated with taking adverse action against an employee.