From 1 January 2010 a new national workplace relations system began to apply to most employees in Australia. This fact sheet provides details of your rights and entitlements under the Fair Work Act.
Fair Work Laws
As an employee, you are entitled to the following minimum employment terms and conditions:
- For full time employees – a maximum standard working week of 38 hours. Your employer can require you to work reasonable additional hours but you have the right to refuse unreasonable hours. Whether the hours are unreasonable will depend on your position, the arrangement of the hours, health and safety and your family responsibilities. Note that the relevant Modern Award may provide for averaging of hours over more than a week.
- The right to request flexible working arrangements to care for a child under school age, or a child (under 18) with a disability. Your employer must consider the request and can only refuse on reasonable business grounds.
- 12 months unpaid parental (or adoption) leave for each parent after the birth (or adoption) of a child. You also have the right to request a further twelve months unpaid parental leave. Your employer can only refuse on reasonable business grounds.
- Four weeks paid annual leave each year plus an additional week for some shift workers.
- Ten days paid personal or carer’s leave each year that carries over from year to year. You can use this leave when you’re sick or when you need to care for a member of your immediate family or household.
- Two days paid compassionate leave when a member of your immediate family or household dies or is seriously ill. If you require more time off, you can take two additional days of unpaid carer’s leave.
- Community Service Leave for jury service or activities dealing with certain emergencies or natural disasters. With the exception of jury service, this leave is unpaid.
- Long Service Leave. Your existing long service leave is secured by the new federal laws.
- Public holidays and the entitlement to be paid for ordinary hours on those days. Penalty rates for working on public holidays are provided for in Modern Awards and Enterprise Agreements. You have the right to reasonably refuse to work a public holiday.
- Notice of termination and redundancy pay.
- The right for new employees to receive the Fair Work Information Statement.
A complete copy of the National Employment Standards (NES) can be viewed at www.fairwork.gov.au. Please note some limitations may apply — for instance, if you are a casual employee your terms and conditions of employment will be slightly different.
For further information contact your union or phone 1300 4 UNION (1300 486 466).
Modern Awards
In addition to the National Employment Standards, most employees are covered by a Modern Award. Modern Awards provide additional enforceable conditions of employment, including:
- Minimum wages
- Penalty rates
- Types of employment
- Flexible working arrangements
- Superannuation
- Hours of work
- Rest breaks
- Classifications
- Allowances
- Leave and leave loadings
- Procedures for consultation, representation and dispute settlement.
- Some Modern Awards also contain industry-specific redundancy entitlements
The Modern Award that applies to your industry or occupation will apply to you unless the Award has been replaced by an Enterprise Agreement. If you are a manager or high income employee, the Modern Award may not apply to you, but the NES will.
Transitional arrangements to introduce Modern Awards will apply to wages, penalties and loadings for five years. Your employer is not permitted to use these transitional arrangements to reduce your take home pay.
For further information about Modern Awards or minimum rates of pay during the transition period contact your union or phone 1300 4 UNION (1300 486 466).
Enterprise Agreements
Your wages and employment conditions may be set in an Enterprise Agreement that applies at your workplace. An enterprise agreement replaces the Modern Award, but not the NES, which continues to apply.
An enterprise agreement must be genuinely agreed to by the majority of employees at the workplace, and must leave employees better off overall than they would be if the award applied.
There are specific rules relating to the way in which enterprise agreements are made. These rules include:
- Your right to be represented (see further below)
- Bargaining or negotiations must be conducted in good faith
- Rules for taking industrial action
- Employees under the age of 18 require the co-signature of a parent or guardian when making an enterprise agreement
Once approved by Fair Work Australia, your Enterprise Agreement is enforceable and may provide for changes in your terms and conditions of employment.
Individual Flexibility Arrangements
Your Modern Award or Enterprise Agreement must include a flexibility term.
This term allows you and your employer to agree to an Individual Flexibility Arrangement (IFA), which varies the effect of certain terms of the Modern Award or Enterprise Agreement, which applies to you. The IFA must leave you better off overall than you would be if you remained covered by the award or agreement without variation.
You cannot be forced to make an IFA. IFAs are to be in writing and if you are under 18 years of age, your IFA must be co-signed by your parent or guardian. If you change your mind you can cancel the agreement by giving four weeks notice.
Representation at Work and in Bargaining
Regardless of whether your terms and conditions are set by a Modern Award or an Enterprise Agreement, you have the right to be
- Consulted about changes at your workplace
- Represented (including by a Union) in those consultations
- Represented (including by a Union) in disputes at work
The Small Business Dismissal Code also provides that employees must be given the opportunity to be represented in any discussions that might lead to dismissal.
You have the right to be represented in bargaining for an enterprise agreement. Your employer must recognise and bargain with bargaining representatives.
If you are a Union member, then your Union is your bargaining representative. The Union can attend meetings and negotiate directly with your employer on your behalf.
If you are not a Union member, you can nominate the Union as your bargaining representative. The Union can become involved at any stage in the agreement-making process provided the Union has at least one member at your workplace.
You have the right to invite a Union Official to your workplace to provide advice and assistance.
Union Officials can enter a workplace, even where the employer opposes their entry, provided the official has a valid entry permit and has provided sufficient notice of their intention to enter the premises.
Union Officials may visit your workplace for discussions with workers and to investigate suspected contraventions of workplace laws or occupational health and safety matters.
Workplace Rights - General Protections
It is unlawful for an employer to threaten to or actually dismiss you, negatively alter your position or treat you differently because:
- You have a workplace right
- You make an inquiry or complaint in relation to your employment or workplace rights
- You join the Union or participate in lawful activities such as voting on an agreement or taking protected industrial action
- You perform a representative role in your workplace. This includes occupational health and safety representatives, harassment officers and union delegates
- Of your race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin
It is unlawful for an employer to place undue influence or pressure on you to agree to change certain employment arrangements. For example your employer can not pressure you to sign an Individual Flexibility Arrangements.
It is unlawful for an employer to coerce you to exercise your workplace rights in a particular way. For example your employer can not pressure you not to take leave to which you are entitled.
An employee, Union or Fair Work Inspector, can enforce a workplace right. Please note that applications relating to General Protections which involve a dismissal must be lodged with Fair Work Australia within 60 days.
If you have experienced unfair treatment, you should contact your union or phone 1300 4 UNION (1300 486 466).
Termination of Employment
If your employment is terminated, including through redundancy, resignation or dismissal, you are entitled to receive any outstanding employment entitlements. This may include:
- Outstanding wages
- Payment in lieu of notice
- Payment for accrued annual leave
- Long service leave
- Any applicable redundancy payments
Unfair Dismissal
Your employer should not dismiss you in a manner that is ‘harsh, unjust or unreasonable’.
If this occurs, it may constitute ‘unfair dismissal’ and you may be eligible to apply to Fair Work Australia for your job back or compensation.
All employees are protected from unfair dismissal provided they have served the qualifying period. The qualifying period is 12 months for small business employees and 6 months for everyone else.
Please note that unfair dismissal applications must be lodged within 21 days of dismissal. There are special provisions that apply to employees in small businesses, including the Small Business Fair Dismissal Code.