Welcome to Grahame Jackson & Associates – Employment Law
Fair Work Act 2009
In 2009 the Fair Work Act (the Act) was introduced. From 1 January 2010, the Act applies to all employees in NSW.The changes to the employment laws are designed to give employees greater protections and entitlements via minimum wages and the re-introduction of Modern Awards and National Employment Standards (NES).
Employers must comply with their obligations under the Act, the applicable Award and the NES.
Some employers already offer employees better minimum conditions (including pay) than the Awards dictate and so the changes won’t have a drastic effect on those relationships. Other employers have to raise their standards to the new minimum levels under the Awards.
Part of the new regime is allowing employers and employees flexibility in agreeing to terms and conditions of their employment. These additional terms are called Individual Flexibility Agreements (IFA). The IFA’s are not mandatory and are in addition to the minimum Award standards, they are supposed to make employees “better off”.
National Employment Standards
The 10 minimum National Employment Standards are;Maximum weekly hours of work – 38 hours per week, plus reasonable additional hours.
Requests for flexible working arrangements – allows parents or carers of a child under school age or of a child under 18 with a disability, to request a change in working arrangements to assist with the child’s care.
Parental leave and related entitlements – up to 12 months unpaid leave for every employee, plus a right to request an additional 12 months unpaid leave, plus other forms of maternity, paternity and adoption related leave.
Annual leave – 4 weeks paid leave per year, plus an additional week for certain shift workers.
Personal / carer’s leave and compassionate leave – 10 days paid personal / carer’s leave, two days unpaid carer’s leave as required, and two days compassionate leave (unpaid for casuals) as required.
Community service leave – unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to 10 days for jury service.
Long service leave – a transitional entitlement for certain employees who had certain LSL entitlements before 1/1/10 pending the development of a uniform national long service leave standard.
Public holidays – a paid day off on a public holiday, except where reasonably requested to work.
Notice of termination and redundancy pay – up to 4 weeks notice of termination (5 weeks if the employee is over 45 and has at least 2 years of continuous service) and up to 16 weeks redundancy pay, both based on length of service.
Provision of a Fair Work Information Statement (click for a copy) – employers must provide this statement to all new employees. It contains information about the NES, modern awards, agreement-making, the right to freedom of association, termination of employment, individual flexibility arrangements, rights of entry, transfer of business, and the respective roles of Fair Work Australia and the Fair Work Ombudsman.
Casual Employees
The Act distinguishes between full-time/part-time workers and casual workers.Only certain NES entitlements apply to casual workers;
- two days unpaid carer’s leave and two days unpaid compassionate leave per occasion
- maximum weekly hours
- community service leave (except paid jury service)
- to have a day off on a public holiday, unless reasonably requested to work by the employer
- provision of the Fair Work Information Statement.
In addition, casual employees who have been employed for at least 12 months by an employer on a regular and systematic basis and with an expectation of ongoing employment are entitled to:
- make requests for flexible working arrangements
- parental leave.
Modern Awards
Employees are also protected by a national system of 122 Modern Awards. Most employment situations will be covered by these Awards which are industry and occupation based.The Awards typically set out the application of the NES with the Award, flexibility arrangements, Dispute resolution procedures, employment categories and termination and redundancy provisions, wage rates, ordinary hours of work, annual leave and other types of leave (personal, carers, compassionate and community service).
Employees who are not covered by a specific Modern Award, are now covered by the Miscellaneous Award.
Flexibility
Parents, or Carers, who have worked for their employer for at least 12 months can now request changes in – hours of work, patterns of work and location of the work. The employer can only refuse on “reasonable business grounds”, such as; the impact on finances, efficiency, productivity and customer service to the business, the inability to organize work amongst existing staff, or recruit a replacement employee, and those factors that need to be put in place to accommodate the request.Part of the new regime is allowing employers and employees flexibility in agreeing to terms and conditions of their employment. These additional terms are called Individual Flexibility Agreements (IFA). The IFA’s are not mandatory and are in addition to the minimum Award standards, they are supposed to make you “better off”. Some IFA’s relate to payment of above award wages, paying out portions of annual leave, and varying other award terms.
If you have any questions about an Employment Contract, your Award, the NES, or the Act and your obligations or rights, call us now on (02) 9908 1700.
Termination and Unfair Dismissal
For employeesFor employees to be eligible, they must have been employed for at least 6 months earning less than $153,600 pa (as at 2020), the employer must employ 15 or more employees, they must prove the dismissal was harsh, unjust or unreasonable and not a redundancy.
Additionally, if the employer is a small business (less than 15 employees), the employee must have completed 12 months service.
You must file an application within 14 days.
All employment situations are different and the determination of whether a dismissal was harsh, unjust or unreasonable depends on the specific facts of each case, for example, a situation may have been created that was so intolerable that you resigned, but this may be symptomatic of a “constructive dismissal” and may have been unfair, giving you rights to sue for Unfair Dismissal. Alternatively, you may have been summarily (instantly) dismissed for an improper reason, or without opportunity to explain any underlying circumstances, again giving you rights under the Act.
Your rights are very complex, be sure you receive competent advice.
Alternatives to an Unfair Dismissal action are;
- Breach of Contract
- Misrepresentation
- Discrimination
- Unlawful Termination
Additionally, your termination may have been a legitimate “redundancy” for operational, or insolvency, reasons. You may not have a valid claim for Unfair Dismissal.
Be aware that different termination payouts and notice periods apply if you are over 45.
Contact us now to advise you on the best course of action.
For employers
Call us now on (02) 9908 1700 to advise you on any employee claims filed against you in respect of their termination, or work performance.
You should consider the implications to your business before you terminate an employee’s contract, as sometimes disastrous financial and productivity consequences can follow.
See the Small Business Fair Dismissal Code brochure from Fair Work Australia attached.
Don’t let your knee jerk reaction cause you long term financial pain.
Contact us to ensure any transition is done with the least effect to your business.
Restraints of Trade
Oftentimes employment contracts include a type of coverall restraint which purportedly restricts the employee from working in a particular industry for a set period within a certain area.For any restraint to be enforceable, it needs to be reasonable in all the circumstances, particularly as the restraint seeks to restrict the employee’s income options to protect the employer’s competitive advantage.
For example, the industry that the restraint might apply to could be defined as “real estate industry”, or further defined as “real estate sales agent”, or further, as “home unit sales agent”. Similarly, the restraint area (or territory) could be defined as “Australia”, then limited to “New South Wales”, or to “Sydney Metropolitan Region”, or further to “Neutral Bay”. The restraint time frame could be “read down” from 2 years to 18 months to 1 year to 6 months to 3 months.
The above restraint, at its widest, could be that you can’t be employed in the real estate industry within Australia for 2 years. Alternatively, at its narrowest interpretation, the restraint would be that you can’t work as a home unit sales agent in Neutral Bay for 3 months. Clearly, there is a lot of restraint criteria in between.
Many employers want the restraint as wide as possible, whereas many employees need to limit the scope of any such restraint, particularly when their experience and training does not easily lead to a career shift for a number of months, or even years!
Many restraints across a broad range of industries have been held to be reasonable, and others have not. It depends on a lot of factors, such as; your salary, your employment responsibilities, whether you have access to business confidential information, your length of employment and the proposed new employment (if applicable).
Other issues arising from restraints are whether they are clear and unambiguous. Careful drafting of a restraint’s wording is required to avoid this outcome. The permutations in the above example is a perfect illustration of the extent of variances in a typical restraint clause.
Restraints should be regularly reviewed, perhaps each time a salary/performance review is undertaken, to ensure that the restraint is reasonable and enforceable.
Contact us to get advice on whether your restraints are reasonable for your circumstances and how to negotiate out of them, or be compensated appropriately for them.