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Australian Labour And Employment Law Pdf

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Legislation, industrial instruments, and the common law are the main sources of employment law. Each year the FWC conducts an annual wage review and decides on a national minimum wage. The contract of employment and common law principles are important sources of the terms and conditions of employees, particularly for those who are not covered by an award or enterprise agreement.

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Labour law , the varied body of law applied to such matters as employment, remuneration, conditions of work, trade unions , and industrial relations. In its most comprehensive sense, the term includes social security and disability insurance as well. Unlike the laws of contract , tort , or property , the elements of labour law are somewhat less homogeneous than the rules governing a particular legal relationship. In addition to the individual contractual relationships growing out of the traditional employment situation, labour law deals with the statutory requirements and collective relationships that are increasingly important in mass-production societies, the legal relationships between organized economic interests and the state, and the various rights and obligations related to some types of social services.

Australian Labour and Employment Law

Legislation, industrial instruments, and the common law are the main sources of employment law. Each year the FWC conducts an annual wage review and decides on a national minimum wage. The contract of employment and common law principles are important sources of the terms and conditions of employees, particularly for those who are not covered by an award or enterprise agreement.

How are different types of worker distinguished? Employment law generally protects those who work pursuant to a contract of service rather than a contract for services. At common law, this distinction between employees and independent contractors is determined by applying a multi-indicia test, which looks at the totality of the employment relationship.

The distinction between permanent and casual employees can be important when determining whether an employee is entitled to certain benefits. If not, do employees have to be provided with specific information in writing? Contracts of employment do not have to be in writing. It is not uncommon for a contract to be partly written, partly oral. Upon commencing employment, all employees must be provided with a copy of the Fair Work Information Statement, advising them of their rights under the NES.

Terms may be implied into a contract by fact, custom or law. Most implied terms can be excluded by the express terms of the contract. In the absence of an entire agreement clause, terms included in policies may be incorporated into a contract of employment if expressed in promissory language.

Does bargaining usually take place at company or industry level? The determination of modern awards by the FWC involves submissions from interested parties, rather than through collective bargaining. At the workplace or enterprise level, agreements are bargained between employers and employees often through bargaining representatives , or between employers and unions directly in the case of genuinely new enterprises. The terms and conditions of enterprise agreements must cover certain mandated terms, but otherwise can deal with any matters pertaining to the employment relationship.

The Fair Work Registered Organisations Act provides for the registration of employee and employer associations and enterprise associations. Registration entails responsibilities with respect to the rules of an organisation, governance standards and financial management.

New obligations regarding auditing arrangements and financial disclosures by officers and related persons commenced on 2 May Through registration, unions acquire rights in relation to standing in proceedings to represent the interest of members and potential members. The FW Act also allows registered unions the right to act as bargaining representatives and the capacity to enforce standards on behalf of members.

In cases of entry for the purpose of investigating a suspected breach, the permit holder may:. Entry for the purpose of discussions with employees requires written notice of no less than 24 hours, unless an exemption applies. To qualify as protected industrial action under the FW Act, any industrial action, either by employee or employer, must be organised for the purpose of supporting or advancing claims in relation to a proposed enterprise agreement. It cannot be part of pattern bargaining, nor can it relate to a demarcation dispute.

To be protected it must meet these requirements:. If so, what are the main rights and responsibilities of such bodies? The schemes for employee representation at board level, found in some European countries, do not exist in Australia.

If so, on what grounds is discrimination prohibited? Employees are protected by a range of federal, state and territory anti-discrimination legislation. While the attributes covered in each legislative scheme vary, the specific protected attributes in the FW Act include:. In Australia, there are two commonly used formulations of what constitutes unlawful discrimination: direct discrimination; and indirect discrimination. Direct discrimination occurs when the complainant is treated less favourably than a person without the protected attribute in the same or similar circumstances, where this treatment is causally related to the protected attribute.

Indirect discrimination occurs when an unreasonable requirement or condition is imposed upon a complainant which operates as an unfair barrier for the complainant with a protected attribute.

While sexual harassment is illegal under state and Commonwealth legislation, Australia does not have mandatory training requirements. Each piece of Australian anti-discrimination legislation contains its own specific exceptions or exemptions, which are often tailored to a specific attribute. In the employment context, common exceptions are genuine occupational qualifications, inherent requirements of the job and unjustifiable hardship disability specific , acts done under statutory authority, and employment in a private household or private educational institution.

In addition, it is possible under most statutory schemes to obtain a temporary exemption. Can employers settle claims before or after they are initiated? Generally, a complaint must first be lodged with the relevant statutory authority for investigation and attempted resolution through conciliation. The second stage involves escalating the complaints to a court or tribunal to enforce legal rights and obligations.

Employees and prospective employees can also enforce their discrimination rights under the FW Act by making a general protections claim, with the process varying depending on whether a dismissal is involved.

Most discrimination claims are resolved through conciliation or negotiation. If a general protections claim is successful, the FWC may order reinstatement, payment of compensation or lost remuneration, and continuity of service.

A wide range of workers are covered under anti-discrimination legislation, including apprentices or trainees, workers on probation, part-time and full-time workers, casual workers, labour hire workers, contract workers and workers on a work visa.

While there are no specific provisions that provide additional protection against discrimination for atypical workers, there are some protections, such as those relating to carer and parental responsibilities, which may arise incidentally.

From 1 January , public and large proprietary companies are required to have a whistleblower policy in line with stronger protection for whistleblowing employees under the Corporations Act from 1 July Whistleblowers are guaranteed anonymity if requested, given increased immunities against prosecution, and protection against detriment including dismissal through victimisation.

Severe civil and criminal penalties will apply to employers who breach those protections, and courts are empowered to make orders for relief against a company if they fail to fulfil a duty of care to protect a whistleblowing employee from detriment.

All employees in Australia are entitled to unpaid parental leave if they have worked for their employer for at least 12 months. Under the NES, employees are entitled to 12 months of unpaid parental leave following the birth or adoption of a child, and a request can be made for an additional 12 months of leave.

Employees may be entitled to paid parental leave from the Australian Government or from their employer under an enterprise agreement, contract or policy. In its current formulation, payment under this scheme does not affect the entitlement to unpaid leave or affect parental leave paid by the employer.

Employees have the right to return to the same job they had before going on leave. If an employee was transferred to a safe job before they took parental leave or they reduced their hours due to pregnancy, then they are entitled to return to the job they had before the transfer or reduction. Fathers who are the primary carer of a child may also be entitled to unpaid parental leave under the NES. Parental leave entitlements in Australia extend beyond maternity leave to include paternity and partner leave, adoption leave, and special maternity leave where an employee has a pregnancy-related illness or her pregnancy ends after 12 weeks because of a miscarriage, termination or stillbirth.

Employees such as parents returning to work after taking parental leave, and those with other caring responsibilities, have the right to request flexible working arrangements. Employers can only refuse such a request on reasonable business grounds.

At common law, contracts of employment do not automatically transfer. Under the FW Act there may be a transfer of employment between two employers where the transferring employee commences work within three months of termination from the old employer, the work performed is substantially the same, and one of the following connections is established:.

How does a business sale affect collective agreements? Continuity of long service leave entitlement is dependent on the applicable state legislation. How long does the process typically take and what are the sanctions for failing to inform and consult? The FW Act places no obligation on employers to notify employees of a transfer of business, although consultation obligations regarding redundancies may consequentially arise.

The consultation obligations regarding redundancies may be enforced by the FWC. An applicable award or agreement may dictate specific consultation processes.

Employees can be dismissed in connection with a business sale if their position is genuinely redundant discussed below at questions 6.

An enterprise agreement will continue to apply to a transferring employee while they are performing transferring work, until it is terminated or replaced. However, the new employer, a transferring employee or a union may apply to the FWC for an order varying the application of the transferring instrument.

How is the notice period determined? To end employment, an employer must give the employee written notice of the last date of employment, or payment in lieu of notice. Minimum notice periods are based on length of service and age where the employee is over 45 years old. Longer notice requirements may apply under an industrial instrument, contract or policy. In what circumstances is an employee treated as being dismissed?

Is consent from a third party required before an employer can dismiss? Employees are protected against terminations of their employment that are harsh, unjust or unreasonable, that are discriminatory, or that arise as a consequence of the exercise of a workplace right or engaging in industrial activities.

Consent is not required from a third party. Are employees entitled to compensation on dismissal and if so, how is compensation calculated?

Serious misconduct can warrant summary dismissal without notice. An employer is entitled to dismiss for business-related reasons where it no longer requires a job to be done by anyone, subject to meeting the minimum entitlement to redundancy pay based on continuous service or a more generous entitlement under an industrial instrument, contract or policy.

Procedural factors are relevant in determining whether a dismissal is unfair, including whether the employee was notified of the reason for termination and given an opportunity to respond, and in the case of unsatisfactory performance, whether the employee was made aware of performance concerns and given an opportunity to improve.

For a redundancy to be genuine, an employer must follow the consultation requirements and have considered reasonable redeployment opportunities. What are the remedies for a successful claim?

An employee can potentially bring one of the following claims: unfair dismissal; general protections; unlawful termination; discrimination; reasonable notice; or breach of contract. Remedies vary in accordance with the particular claim, although employees often seek reinstatement or compensation in FWC proceedings. Settlement of termination claims either before or after claims are initiated is common and generally formalised in the form of a deed of release which is akin to a compromise agreement.

Where an employer proposes to dismiss 15 or more employees, for economic, technological, structural or similar reasons, notice must be given to the trade union representing employees affected by this decision and to a federal government agency Centrelink. Specific consultation obligations regarding the opportunity for trade unions to advocate measures to mitigate the impact of proposed dismissals also apply.

Employees can enforce their rights regarding consultation by application to the FWC. It can make orders seeking to enforce compliance by putting the employees and the trade union in the same or similar position as if the employer had complied with the obligations excluding reinstatement and compensation. Non-solicitation, non-dealing and non-compete covenants are the three main restrictive covenants recognised within employment contracts.

Restrictive covenants are generally unenforceable on the grounds of being contrary to public policy. However, they will be enforced where an employer can show that they have a legitimate interest to protect, and the restraint imposed is no more than reasonably necessary to protect that interest.

Legitimate interest includes goodwill, protection against soliciting employees or the release of confidential information and trade secrets. Under the common law, covenants that are unreasonable will not be enforced. The exception is under the Restraint of Trade Act NSW , which provides that a reasonable restraint will be enforced and allows courts to read down the restraint period to what is reasonable.

Australia: Employment & Labour Laws and Regulations 2020

Nick Ruskin is a partner in the labour, employment, and workplace safety practice. He approaches workplace issues in an efficient, forthright and practical way. His enthusiasm for these areas of law is a hallmark of his practice. Nick has a preference for resolving disputes rather than engaging in unnecessary, technical and usually dissatisfying long game litigation. His experience lies in healthcare, education, the public sector, retail and service industries with particular expertise in employment claims including workplace complaints and investigations, termination and discrimination law claims, labour disputes and advocacy before Tribunals.

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Public International Law

Following intense media attention with high profile employers caught in breach, the Government is considering bringing in criminalisation to deter employers further from systemic wage theft and underpayment of superannuation. New annualised salary clauses are to be inserted into a number of modern awards with effect from 1 March aiming to reduce wage theft through requirements to audit annual salaries, record hours of work, and back pay any shortfall between annual salary and award entitlements following audits. The first reporting period is between 1 July to 30 June , with the mandatory reports to be published by 31 December Israel Folau, an Australian rugby union player, challenged the termination of his employment from Rugby Australia claiming the termination of his contract was an affront to his religious freedom to post his personal beliefs on social media.

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United States labor law sets the rights and duties for employees, labor unions , and employers in the United States. Labor law's basic aim is to remedy the " inequality of bargaining power " between employees and employers, especially employers "organized in the corporate or other forms of ownership association". There are no federal or state laws [ disputed — discuss ] requiring paid holidays or paid family leave : the Family and Medical Leave Act of creates a limited right to 12 weeks of unpaid leave in larger employers. There is no automatic right to an occupational pension beyond federally guaranteed social security , [5] but the Employee Retirement Income Security Act of requires standards of prudent management and good governance if employers agree to provide pensions, health plans or other benefits. The Occupational Safety and Health Act of requires employees have a safe system of work. A contract of employment can always create better terms than statutory minimum rights. But to increase their bargaining power to get better terms, employees organize labor unions for collective bargaining.

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United States labor law

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Australia: Employment & Labour Laws and Regulations 2020

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