Employment Rights and Entitlements: What You Need to Know

Co-Author: Brooklyn Younger

KEY TAKE OUTS:

• The National Employment Standards are the minimum standards of rights and entitlements of employees in Australia.
• Your employer may vary what your rights and entitlements are under Australian Employment Law, however they cannot abrogate these minimum standards.
• Some of your key entitlements include leave entitlements, a maximum number of working hours per week, penalty rates, ability to request flexible working arrangements and notice of termination.

 

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With the wide variety of employment arrangements, it can be difficult as an employee to understand what their rights and entitlements are. Similarly, as an employer, it can be difficult to understand what your rights and liabilities are. This blog will further explore the entitlements of employees, and the obligations imposed upon employers to uphold these rights and entitlements.

The National Employment Standards are the minimum standards that must be given to all employees. These are contained in Part 2.2 of the Fair Work Act 2009 (Cth). Your employment may also be governed by a contract, award, enterprise agreement or other registered agreement which may vary your working conditions. The workplace conditions provided under these arrangements cannot be less than the minimum requirements found in the National Employment Standards or exclude the National Employment Standards from operation.

What are your rights?

The National Employment Standards provides minimum standards for maximum weekly hours, requests for flexible working arrangements, casual workers conversion, entitlements relating to parental duties, leave entitlements, public holidays, superannuation contributions, notice of termination and redundancy pay. Before commencing your employment, your employer is required to provide you with the Fair Work Information Statement prepared by the Fair Work Ombudsman. This Statement includes information about your rights as a worker in Australia.

Leave Entitlements

You have entitlements to access both paid and unpaid leave for specific circumstances. All full-time or part-time employees accrue 4 weeks of paid annual leave throughout the year. Employees are also entitled to personal/carer’s leave of 10 days for full-time employees and proportionately for part-time workers. Employees are also entitled to parental leave, compassionate leave, family and domestic violence leave under the National Employment Standards. Casual employees are entitled to two days per occasion for carer’s leave where an immediate family member or household member has suffered a personal injury or illness, or an unexpected emergency has taken place.

Maximum Weekly Hours

An employer cannot request that you work additional hours unless it is reasonable for them to do so. Under s 62 of the Fair Work Act 2009 (Cth), an employee should not be asked to work more than 38 hours in a week, unless required by their employment contract. As an employee you are entitled to refuse a request to work additional hours if they are unreasonable. In Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512, the Court found that although the contract described 50 hours as the ‘ordinary working hours’ for the employee, this was unreasonable in the employee’s circumstances. The employers request required regular obligation to work an additional 12 hours to the National Employment Standards and the award, as well as creating safety risks resulting from fatigue. The Court also noted that as a recent immigrant to Australia, the employee was not aware of his entitlements under Australian law which is why he had not made any request to his employer to enforce his entitlements before speaking with the Union.

Penalty Rates

The contract, award, or enterprise agreement under which you work may entitle you to penalty rates for working at particular times. Penalty rates are not a requirement of the Fair Work Act 2009 and so whether you are entitled to penalty rates will be subject to your employment arrangements. Your employer should make you aware of when you are being paid penalty rates. You may be entitled to penalty rates if you work overtime, weekends, public holidays, early mornings or late evenings.

Request for Flexible Working Arrangements

Considering the push to have workers return to the office after COVID-19, it is important to be aware of the entitlement to request flexible working arrangements in specific circumstances under s 65A of the Fair Work Act 2009 (Cth). These circumstances include pregnancy, parental or carer responsibilities, if you are an employee with a disability or over the age of 55 or if you are experiencing family or domestic violence. Your employer is able to refuse the request for flexible working arrangements on ‘reasonable business grounds’ such as cost to or capacity of the employer in making such arrangements.

Casual Workers Conversion

If you are a casual worker who has been employed by your employer for a period of 12 months and has worked a regular pattern of hours for the past six months, you are entitled to a conversion to full-time or part-time employment consistent with your regular hours. To receive this conversion, an employee can write to their employer to change to permanent employment if they meet the following criteria:

• Have been employed with the company for at least 6 months (or at least 12 months if they are employed by a small business).
• Be able to explain why they believe that they no longer meet the requirements of a casual employee definition.

What is a Casual Employee?

A person is considered to be a casual employee if, when they commence their employment:

• The nature of the employment relationship has no firm commitment to future and ongoing work, and
• They are entitled to receive a casual loading or specific casual rate of pay under a particular award, registered agreement, or employment contract.

Notice of Termination

Your employer is required to give you written notice of the day of termination of a minimum period determined by s 117 of the Fair Work Act 2009 (Cth). For an employment period less than a year, the employer is only required to give one week’s notice. If the employment period was between 1-3 years, then the notice period is two weeks, if it was between 3-5 years, 3 weeks, and for any employment longer than 5 years the notice period must be at least 4 weeks.  The employer may make a payment in lieu of notice, the amount being the full pay rate that they would have had to pay the employee had they continued working until the end of the minimum period of notice.

Ensuring Compliance with your Employees Entitlements

As an employer you can ensure compliance with these entitlements by regularly reviewing and updating your employment contracts and workplace policies. A failure to protect the rights and entitlements of your employees may leave you liable to Court proceedings for breaches of the Fair Work Act 2009 (Cth). If you are in breach of the Fair Work Act 2009 (Cth), you may be investigated by the Fair Work Ombudsman and issued with a compliance notice or infringement notice. You may also become liable under other areas of law for these breaches. For example, a failure to grant flexible working arrangements may be found to be in breach of anti-discrimination laws if the discrimination is relating to an attribute that is protected under the legislation, including but not limited to gender, marital status, race, and carers responsibilities.

The best way to ensure that you are meeting your rights and liabilities as employer is by having your employment contracts and workplace policies professionally drafted. At Coutts we can also help you ensure that you continue to remain compliant with changes to the law and government mandates through the review of these documents.

 

How can Coutts Lawyers help Employees?

We can assist you in reviewing and understanding your contract of employment and by identifying your entitlements to ensure there are no potential breaches of your rights under Australian Employment Law.

Schedule an Appointment Now

How can Coutts Lawyers help Employers?

As an employer it is important that you understand the rights and entitlements of your employees to ensure that you are providing a safe and healthy work environment. We can help you ensure that your contracts and policies are consistent with Australia Employment Law while meeting your needs as an employer. We can also assist on any performance or restructuring in a way that is lawful.

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