As an employer, you have an obligation to comply with all aspects of Australian employment law and ensure your employees can work comfortably in a safe and secure environment – free of bullying, discrimination, and harassment.
The main sources of employment law in Australia are
legislation (federal, state and territory laws);
industrial instruments; and
the common law.
The Fair Work Act 2009 is arguably the most important piece of employment law in Australia. It provides the minimum terms and conditions for the majority of employees in Australia that are covered by the national workplace relations system. The National Employment Standards (NES), contained in the Fair Work Act 2009 set out 10 minimum entitlements which apply to most employees in the private sector.
However, it is not the only piece of workplace relations legislation in Australia, as it is supplemented by other federal, state and territory laws, nor does it apply to every workplace in Australia. For example, Western Australia maintains its own state-based workplace relations system that partially covers the private sector in that state.
It is necessary to know what workplace relations system covers your business and your employees, to determine what legislation applies. If the national workplace relations system applies, your business may be covered by an industrial instrument such as a modern award, enterprise agreement or other registered agreement which sets out additional minimum employment conditions that apply to a particular industry or occupation above and beyond the National Employment Standards.
There is legislation that applies to all national system employers across Australia – in other words, to most employers in Australia. This is regardless of territory, states, business model or industry.
The objective of this legislation is to place responsibility on the employer to ensure that their employees are treated fairly and are receiving the minimum employment rights and entitlements for the industry they work in and the job they do within that industry – including minimum pay, leave entitlements, redundancy, periods of notice for termination, and more.
Here is a list of some of the most important workplace relations legislation that governs industrial relations and employment relationships in Australia:
Fair Work Act 2009
National Employment Standards (NES)
Work Health and Safety Standards (WHS)
State and Federal anti-discrimination laws
Privacy Act 1988
What Are The Different Types Of Legislation?
Below are a few examples of some of the legislation relating to employment in Australia.
Fair Work Act 2009
The purpose of this act is to establish the parameters of the employment relationship between an employer and an employee. The act serves to provide a safety net of minimum entitlements such as a national minimum wage, and the National Employment Standards (the NES) with further employment conditions and entitlements set out in Modern Awards or enterprise or other registered agreements.
It enables flexible working arrangements, provides protection from unfair dismissal and contains general protections provisions which ensure employees are treated fairly and protected from discrimination The act also creates bodies that have administrative and enforcement roles within the national workplace relations system, for example the Fair Work Commission.
Under Australian employment law, the terms of the Fair Work Act 2009 apply to businesses of all types, sizes, and industries across Australia.
However, there are a few exemptions to this. For example, in Western Australia the following types of business would not be covered by the Fair Work Act:
Other unincorporated entities
State And Federal Anti-Discrimination Laws
The Fair Work Act can help protect employees from discrimination, but even if an employee is no longer employed, there are multiple acts within Australia that are aimed at helping protect people from discrimination and harassment that is relevant to employment. . There is legislation at a Federal level that protects people from race, sex, disability and age discrimination. This is governed by the Australian Human Rights Commission.
In addition to the Federal laws each state and territory have their own anti-discrimination and harassment legislation that protects employees, and prospective employees, in the workplace depending on the circumstances of the complaint. The purpose of this legislation is to protect employees against all forms of discrimination – this includes age, gender, marital status, race, religion, sexual orientation and more. Workplace Health and Safety Acts can provide protection from bullying.
Work Health And Safety Act 2011
This is a set of model Workplace Health and Safety (WHS) laws that need to implemented by the Commonwealth and each individual state and territory to become legally binding. The model WHS laws have been implemented (with some individual modifications) in the Australian Capital Territory, New South Wales, the Northern Territory, Queensland, South Australia, Tasmania and the Commonwealth, and will be adopted in Western Australia in 2021.
The model act provides a framework to protect the health, safety, and welfare of all employees at work. It also protects the health and safety of other people who may be associated with the workplace such as customers, visitors, and the general public.
From provisions allocating duties pertaining to the management and control of risks, incident reporting and consulting of workers, to enforcement through fines and penalties, this workplace health and safety legislation covers a wide range of employer obligations, which are aimed at the safety, security and comfort of employees. The act also has specifc provision pertaining to workplace bullying, as It is a risk to health and safety because it may affect the mental and physical health of workers.
Disability Discrimination Act 1992
(This is covered in state and federal anti-discrimination laws above)
The Disability Discrimination Act is is designed to protect everyone, including employees from discrimination based on their disability, and so it is part of employment law in Australia
Under this act, it is illegal to treat an employee less fairly because they have a disability. This also extends to employees who have relatives, friends, co-workers, or associates of a person with a disability.
What the act considers to be a ‘disability’ applies to not only physical disorders but also intellectual, sensory, neurological, and psychiatric disorders as well.
For this reason, it is important to remember you cannot discriminate against candidates and new hires based on their disability, and that you must – as far is reasonably practicable– accommodate a disabled employee.
As an employer, you have few rights other than to expect employees to carry out their duties to a reasonable standard, follow reasonable management directions, and abide by their contract and workplace policies and procedures. However, you have a number of obligations and responsibilities towards your employees under the Fair Work Act and other industrial relations legislation.
Some of the most important responsibilities to consider include:
provide a safe working environment
protect all employees from bullying, discrimination, and sexual harassment
provide employees with the correct pay and entitlements
record keeping obligations
give all employees the necessary training, resources, and mentoring they need to work safely and efficiently
inform all employees of their rights and responsibilities
train employees on potential hazards and safety risks in the workplace
meet first aid requirements
report workplace incidents and injuries to Safe Work Australia
supply protective clothing and equipment for employees and ensure they know how to use them correctly
The Fair Work Act 2009 (FW Act) and the Fair Work Regulations 2009 are the main legislation we deal with. They govern the employee / employer relationship in Australia. They provide a safety net of minimum entitlements, enable flexible working arrangements and fairness at work and prevent discrimination against employees.
The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 allowed certain parts of the Fair Work system to gradually phase in from 1 July 2009 until around 2014.
The Fair Work (State Referral and Consequential and Other Amendments) Act 2009 and the Fair Work Amendment (State Referrals and Other Measures) Act 2009 changes the FW Act to allow states to refer matters to the Australian federal government to form a national workplace relations system. Before this, workplace laws were set and administered by most individual states. States kept their workplace relations powers over state and local government employees.
Employment laws apply to foreign nationals who are employees based in Australia and whose primary place of work is Australia. It is irrelevant whether the employer is based in Australia or overseas.
See Question 7 in relation to the regulation of the employment relationship. See Question 2 in relation to the statutory employment rights and obligations applicable to these employees and other categories of worker.
If a foreign national is not based in Australia or is not an employee, Australian employment laws dealing with the terms and conditions of employment do not apply during their stay in the country.
The employment laws apply to nationals who are based in Australia and whose primary place of work is in Australia. In some circumstances, these laws may also apply to employees who are engaged in Australia (that is, the contract of employment was formed in Australia) to perform work abroad for an Australian corporation.
The right to work includes the right of everyone to the opportunity to gain his or her living by work which he or she freely chooses or accepts. Rights in work include the enjoyment of just and favourable conditions of work and to form and join trade unions.
Australia is a party to seven core international human rights treaties. The right to work and rights in work is contained in articles 6(1), 7 and 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)- external site.
See also articles 8 and 22 of the International Covenant on Civil and Political Rights (ICCPR)- external site , articles 5(e)(i) and (ii) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD)- external site , articles 11 and 14(2)(e) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)- external site , article 32 of the Convention on the Rights of the Child – external siteand article 27 of the Convention on the Rights of people with disability (CRPD)- external site.
These human rights treaties contain provisions regarding work rights to specific groups:
CEDAW requires measures to be taken to eliminate discrimination against women in employment.
The CRC requires countries to recognise the right of the child to be protected from economic exploitation.
The CRPD requires countries to recognise the right of people with disability to work, on an equal basis with others and to ensure that reasonable accommodation is provided to people with disability in the workplace.
Source 2: https://www.fairwork.gov.au/about-us/legislation
Source 3: https://content.next.westlaw.com/3-503-3758?__lrTS=20200712163855822&transitionType=Default&contextData=(sc.Default)&firstPage=true
Source 4: https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-scrutiny/public-sector-guidance-sheets/right-work-and-rights-work