Workers Rights what are they?
Workers Rights what are they? Since 1 January 2010, the Fair Work Act 2009 (Cth) (the Act) has been in operation. This Act applies to most Australian workplaces and regulates the employer/employee relationship by stipulating all workers rights. Contained within this legislation are the National Employment Standards (NES). General protections provisions, the rights of full-time, part-time and casual workers, unfair dismissal provisions and much more.
The NES and Contracts of Employment
NES has 10 minimum employment entitlements that must be provided to all employees by employers. The NES cover the following:
- maximum weekly hours of work
- entitlements to leave and public holiday pay;
- flexible working arrangements;
- the provision of a Fair Work Information Statement; and
- notice of termination and redundancy pay.
The NES provide a safety net for employees and stipulate a variety of workers rights. NES guarantees the minimum standards of work conditions and employee work entitlements. Whether an employee is employed on a full time, casual or part-time basis. However, only certain NES entitlements apply to casual employees.
The minimum workers’ rights and entitlements in Australia, as set out in the NES, are not replaced by a contract of employment entered into by an employee and an employer. If an entitlement in a contract is less than the NES or excludes the NES, that term has no effect as you cannot contract out of statute or law.
For example. If a full-time employee agrees in their contract of employment to only receive five days personal/Carer’s leave per year. That employee (despite what the contract says) is still entitled to 10 days paid personal/Carer’s leave.
This is because the NES state that a full-time employee is entitled to 10 days of paid personal/carer’s leave per year. However, if the contract of employment provides entitlements or terms that are of more benefit or favourable to an employee. Those terms and entitlements are enforceable as they are above the minimum workers rights set by the NES.
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The Rights of Full-Time Employees
Full-time employees are employed on a permanent basis under an ongoing contract of employment. Under the NES, permanent full-time employees are entitled to the following minimum conditions of employment:
- to work a maximum of 38 hours per week. However, an employer can request or require that an employee work additional hours, but only if the additional hours are considered reasonable;
- the right to request a flexible working arrangement if the full-time employee meets the eligibility requirements. And are either a parent or a person responsible for the care of young children. A carer, have a disability, are 55 years of age or older or experiencing violence from a family member. (or providing care or support to immediate family or a member of their household experiencing violence).
- paid annual leave of four weeks per year;
- unpaid parental leave of up to 12 months and the right to request unpaid parental leave for another 12 months. To be eligible, a full-time employee must have completed 12 months service with their employer. Have or will have the responsibility of a child;
- paid personal/carer’s leave of up to 10 days per year, two days unpaid carer’s leave and two days of compassionate leave as required;
- written notice of the day of termination, in the event an employee’s employment is ended by their employer. However, if an exception applies, such as the employee’s employment was terminated due to the employee’s serious misconduct. An employer is not obligated to provide the employee with notice.
- Under the NES, an employer is also required to give an employee a certain amount of notice. Or pay a notice payment in lieu of the employee working out the applicable notice period. The amount of notice depends on how long the employee has worked for the employer.
- If an employee’s service with their employer amounts to one year. The employee is entitled to a minimum of one week’s notice from their employer. Alternatively a payment of one week’s pay instead of the employer giving the employee the notice.
- The NES also provides that if an employee has completed two years continuous service with their employer and they are aged 45 years or over, they are entitled to an additional week of notice. It is important to note that if an employee’s contract of employment sets out notice arrangements that are more beneficial than the minimum provided by the NES, then those arrangements will usually apply.
- in the event an employer makes an employee’s position of employment redundant. A full-time employee may also be entitled to redundancy pay under the NES. The NES provides for up to 16 weeks of redundancy pay is payable depending on the length of their service with their employer.
- However, redundancy pay is not payable in all circumstances under the NES. For example, if an employee works for a Small Business Employer, then they are not entitled to redundancy pay under the NES. Though, it is important to also check an employee’s contract of employment for any entitlements in relation to redundancy pay; and
- on the commencement of their employment with an employer, an employee must be provided with a copy of the Fair Work Information Statement.
- The statement contains information about the NES, modern awards, agreement making, the rights and benefits of employees, and the roles of the Fair Work Commission and the Fair Work Ombudsman.
The Rights of Part-Time Employees
Part-time employees are also employed on a permanent basis, but they work less than 38 ordinary hours per week. Part-time employees are entitled to the same terms and conditions of employment as a full-time employee, however, their entitlements are generally pro-rated to how many hours of work they perform each week.
For example, a part-time employee is still entitled to four weeks of annual leave per year under the NES, but this entitlement is calculated on how many hours the part-time employee works each week. This means that if a part-time employee works 20 hours per week, their annual leave payment is calculated on a 20 hour week (and not a 38 hour week).
The Rights of Casual Employees
Casual employees do not have guaranteed hours of work, are employed on a per shift basis, do not receive paid leave entitlements for time away from work, notice of termination and any associated payments or redundancy pay.
Casuals employees are paid for each hour they work and their pay is based on the number of hours worked each week. However, a casual employee is not guaranteed a set amount of hours of work per week like an employee employed on a permanent basis is.
In light of the nature of casual employment, casual employees are paid a higher hourly rate of pay, called a casual loading. This loading is in lieu of some benefits that full-time and part-time employees receive from the employer. Such as paid annual and personal/carer’s leave, notice of termination and to compensate for the lack of security of their employment.
Casual employees are entitled to the following minimum conditions of employment.
- to work less than 38 hours per week and only work reasonable additional hours if it is reasonable.
- two days unpaid carer’s leave and two days unpaid compassionate leave for each occasion that this type of leave is requested.
- unpaid community service leave.
- to be absent from work on a public holiday. However, unless a casual employee works the public holiday they will receive no payment for this day off.
- unpaid parental leave entitlements and the right to request flexible working arrangements. If they have been employed with their employer for 12 months or more on a regular and systematic basis with an expectation of ongoing employment.
The Act also provides for other fair conditions of work and protections for all employees. As part of a workers rights, they are protected from unfair dismissal under the Act. If a permanent employee is of the view they have been unfairly dismissed they are eligible to make an unfair dismissal claim.
This is if they have worked for their employer for six months or if their employer is a Small Business Employer. A period of 12 months a Small Business Employer is an employer who employs less than 15 employees. In addition, employees must earn less than the high-income threshold or be covered by a modern award or enterprise agreement.
Casual workers also have the right to lodge a claim of unfair dismissal if they were employed on a regular and systematic basis with a reasonable expectation of ongoing work.
Applications for unfair dismissal must be filed within 21 days from the date the dismissal took effect. Late filing may be accepted but only if the Commission finds there has been exceptional circumstances. If a dismissed employee is filing outside the 21-day period, they will need to provide an explanation of the exceptional circumstances that caused them to not file within the statutory time period.
The Act also provide workers with protection from adverse action under the General Protections provisions. Employers are prohibited from taking adverse action against an employee because of a workplace right. Because they have exercised a workplace right. Participating in industrial activities and protects against discriminatory treatment on the basis of protected attributes and sham arrangements. Adverse actions can include dismissal of an employee.
However it encompasses a range of other actions such as prejudicing the employee, injuring the employee in his or her employment or discriminating against them.
Whilst there is no jurisdictional criteria as per the unfair dismissal regime, employees face the difficulty of linking the exercising of a workplace right and the adverse action. The adverse action must have been taken because of the workplace right (i.e. complaint).
Placing undue influence (coercion)
General protections also provide workers with protection from their employer coercing them into taking (or not taking) a particular action or placing undue influence or pressure on the employee to change their conditions of work or knowingly or recklessly misrepresenting a workplace right or obligations in relation to an industrial activity.
Applications for general protections must be filed within 21 days from the date the dismissal took effect. Late filing may be accepted but only if the Commission finds there has been exceptional circumstances. If a dismissed employee is filing outside the 21-day period, they will need to provide an explanation of the exceptional circumstances that caused them to not file within the statutory time period.
Workers have a right to be protected from discrimination in the workplace. It is unlawful for an employer to take action against an employee because of their race, colour, sex, sexual orientation, age, physical or mental disability. Additionally marital status, family or Carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
As part of their workers’ rights, employees are protected from being bullied and harassed at work. The Act has anti-bullying provisions and employees can make an application to stop bullying if they are being bullied in the workplace. Bullying has to be repeated and unreasonable management action.
Workers rights what are they?, closing comment
Workers rights is very much a individual thing. Each employees circumstances are different. a right that’s important to one employees is not necessarily important to another. Do you need free and confidential advice about your unique workplace situation? Are you looking at making a claim but are unsure about how to approach the situation? Workers rights what are they?, make the call, find out today
To discuss possible representation or to seek advice regarding your unique circumstances, please give us a free call on 1800 333 666. All Fairwork Australia or Fair work Commission matters. Including, abandonment of employment, probation, serious misconduct, constructive dismissal issues.
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One of the nations leading workplace advisors, representatives and commentators. Gary has represented some 12,000 clients over some 20 plus years, published some 300 plus articles. He is passionate about employees rights and the test of fairness in the workplace. Have a problem, concern, wants to contribute to the debate or research, call him directly.