Employment law – rights and
responsibilities
Riverland Community
Legal Service
Types of employment
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Employee or contractor?
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Control over work
Payment arrangements
Insurance, taxation, superannuation
Tools and equipment
“Sham” contracting
Types of employment
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Casual employment
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Irregular hours
May or may not be offered work
Discretion to refuse work
Casual status is not solely determined by
contract
Casual employees
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Entitlements
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No holiday pay, sick pay or payment for public
holidays not actually worked
Should be payed loading (at least 20% extra)
Are entitled to workers compensation
Sometimes entitled to long service leave
Are entitled to superannuation if paid more than
$450 a month (or less if by award)
Casual employees
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Protections
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Are protected by anti-discrimination legislation
Are protected by unfair dismissal legislation if are
employed on a regular and systematic basis
and have a reasonable expectation of ongoing
work
Terms of employment
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Express terms
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Under contract of employment
Under award or modern award
Rules of conduct or employer’s policies (if brought
to employee’s attention)
Implied terms
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Implied by law
Implied by conduct or circumstances of job
Federal or State system?
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Federal system
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Constitutional corporation
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Where revenue is raised (doesn’t have to be profitoriented)
Commonwealth government authorities
State system
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State government authorities
Local councils
National Employment Standards
(federal system only)
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Minimum standards of employment
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Max 38 hours per week full time
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But can be asked to work additional hours if reasonable
Up to 24 months unpaid parental leave (with
conditions attached)
4 weeks annual leave (5 weeks if a shift worker)
Public holiday pay
Redundancy pay
Equal opportunity protections
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Prohibited to discriminate in employment in
regards to:
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Age
Sex
Sexuality
Marital status
Pregnancy
Race
Disability
Equal opportunity protections
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Religious dress
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Generally cannot discriminate based on religious
dress
Exceptions:
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Safety hazards
Where face needs to be identified
Reasonable dress codes
Occupational health & safety
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Employer must provide a safe work
environment
Must maintain equipment and provide
adequate safety training
Employees must follow health and safety
instructions
Different requirements for different industries
Termination of employment
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By giving notice (i.e. resigning)
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No reason need be given
Notice period set by contract or award
If no set notice period, must give reasonable
notice (unless there is a set period of
employment)
Termination by employer
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Breach of employment contract
Consistent poor performance
Consistent misconduct
Summary dismissal
Retrenchment, redundancy and bankruptcy
Unfair dismissal
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Different laws apply to small businesses
Where dismissal is harsh, unjust or
unreasonable
Must have worked 6 months (or 1 year if
small business)
14 days to make an application
Unfair dismissal
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Harsh, unjust or unreasonable
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Terminated for poor performance but given no
warning or opportunity to improve
Terminated for performing in accordance with the
employer’s directions
Constructive dismissal
Unfair dismissal
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Application to Fair Work Australia
Mandatory attendance at conference
Remedies:
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Reinstatement (primary remedy)
Compensation
Unlawful dismissal
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Dismissal that is in breach of certain general
protections
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Discriminatory dismissal
Dismissal for union involvement
Dismissal for temporary absence due to illness
Organisations
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Fair Work Australia
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1300 799 675
Unfair dismissal
Complaints regarding entitlements (federal system only)
SafeWork SA
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1300 365 255
Occupational health & safety
Complaints regarding entitlements (State system only)
Organisations
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Employee Ombudsman (SA)
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8207 1970
Advice on rights and entitlements
Advocacy on behalf of employees (except in
cases of unfair dismissal)
Human Rights Commission
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1300 656 419
Discrimination complaints
Organisations
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Equal Opportunity Commission
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8207 1977
Discrimination complaints
Legal Services Commission
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1300 366 424
Free legal advice
Organisations
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Working Women’s Centre
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8410 6499
Free legal advice
Also consider contacting the relevant union
for advocacy and representation