Overview

Our lives are significantly influenced by our jobs: how we live, the people we meet and how we see ourselves. Employment brings us into a relationship over which, for many employees, there is little control. This is particularly the case for young people entering the workforce for the first time.

When an employee accepts a job in return for pay, this gives rise to an employment relationship. Regardless of whether it is verbal or written, this agreement is an employment contract. It is legally enforceable like any other contract. Promises are made by each party to the contract and, if these promises are breached, then legal remedies are available to enforce the contract.

The law has evolved to reflect the significant changes to the workforce over the past century. These changes include:

  • a greater number of women working;
  • the move from permanent full time to casual and part time jobs. In Australia approximately a quarter of workers are casual; and
  • the move away from a ‘job for life’. Most workers will change employers or even occupations several times in their working life.

There has been an increasing recognition of the need for regulatory protection, concerning discrimination, family leave and termination of employment.

Since 2005, there has been a lot of community interest and debate about employment law in Australia. In 2005, the Federal Government passed the Workplace Relations Amendment (Work Choices) Act 2005. Work Choices brought about some very important changes in employment law in Australia.

There were more changes to the law in 2009, when the Fair Work Act 2009 came into effect. The Fair Work Act cancelled Work Choices (this is called ‘repealing’), and set up a new system of industrial relations in Australia.

With the considerable changes in the area of employment law in the last decade, the national system has increased its scope dramatically. Some entitlements have been restricted, while new rights and obligations have been created.

Unfortunately, one effect of these changes is that many employers and employees are confused about their rights and obligations.

These changes represent a tremendous shift in the way the Federal Government has used its constitutional power to make laws. The Australian Constitution gives the Federal Government some powers in relation to employment law. Until Work Choices, this comprised a combination of the ‘conciliation and arbitration’ power and the ‘corporations’ power. The Federal Government has now established that it can legislate in this field on the basis of the ‘corporations’ power. (New South Wales v Commonwealth [2006] HCA 52. There is also a good summary paper, The Workplace relations case - implications for the states, Briefing Paper 18/2006.) This allows it to considerably expand its reach into areas previously covered by the states. This reach has been further expanded by the referral of some industrial relations powers by most of the states to the Commonwealth, so that there is now a national workplace relations system for the private sector throughout Australia (except Western Australia).

The New South Wales industrial relations system continues to operate alongside the national system, although it covers a smaller number of workers. Until the recent changes, the majority of NSW employees were regulated by the state system. Now, most people are subject to the national system.

Federal and state systems

There are two parallel systems of workplace regulation in New South Wales – the national system and the NSW system.

  • The national system covers most issues in relation to most workers, in particular in the Federal public sector, and is run by the Australian Government (also called the ‘Commonwealth’). These employees are called ‘national system employees’; and
  • The NSW system covers state public servants and employees of local councils. It also regulates some aspects of work for most employees in NSW, such as long service leave.

Fair Work Commission

Hot Tip

The Fair Work Commission was previously called Fair Work Australia. The name was changed to Fair Work Commission on 1 January 2013.

In the national system, the industrial tribunal is called the Fair Work Commission('the Commission'). The Commission replaced the Australian Industrial Relations Commission in July 2009. The main pieces of legislation that establish and regulate the national system are:

  • Fair Work Act 2009– the main legislation under which Fair Work Australia (FWA) operates;
  • Fair Work (Registered Organisations) Act 2009– sets out the standards to be met by unions and employer associations and the processes involved in the registration of such organisations;
  • Fair Work Regulations 2009– these regulations work alongside the Fair Work Act 2009;
  • Fair Work (Registered Organisations) Regulations 2009– these regulations work alongside the Fair Work (Registered Organisations) Act 2009;
  • Fair Work Australia Rules 2010– these rules outline practices and procedures to be followed in the work of FWA. They are issued under the authority of the FWA President; and
  • Small Business Fair Dismissal Code – provides information about dismissals by small business employers.

The Fair Work Ombudsman ('FWO') is responsible for enforcing industrial law. FWO also provides advice and assistance to individual employees in relation to their employment.

The NSW system

In the New South Wales system, the industrial tribunal is called the NSW Industrial Relations Commission (‘NSWIRC’). The Industrial Court of NSW exercises the judicial functions of the Commission.

There are many pieces of legislation that relate in some way to employment in NSW. Some of the important pieces of legislation are:

  • Industrial Relations Act 1996;
  • Industrial Relations General Regulation 2001;
  • Industrial Relations Commission Rules 2009;
  • Long Service Leave Act 1955; and
  • Public Sector Employment and Management Act 2002 No 43.

Which system applies to my employment?

In January 2010, the NSW Government gave the Federal Government some of its power over employment law (this is called a ‘referral of power’). This, in addition to the effect of the federal Fair Work Act 2009, means that all employees in the NSW private sector are covered by the national system of industrial relations law.

Since January 2010, the only employees covered by the NSW system are those in the NSW public sector and in the local government sector. The national workplace relations system covers all other employees and employers in NSW (including state-owned corporations such as electricity utilities).

There are 122 modern awards which apply to the private sector in Australia.

It is important to know which system covers your employment. If you think you might be covered by the NSW system, you can get more information from NSW Industrial Relations, your employer, or your union.

Some NSW laws still apply

All employees in NSW, even those covered by the national system, are still subject to certain state laws that have effect in workplaces. NSW law still applies in relation to:

  • Work Health and Safety Act 2011and Work Health and Safety Regulation 2011 (The Work Health and Safety Act 2011provides for NSW to adopt the national model work health and safety laws with effect from 1 January 2012. However, although NSW has adopted a national model, the law itself will still be a NSW law.);
  • discrimination and harassment – see NSW Anti-Discrimination Act 1977;
  • certain entitlements such as long service leave, workers’ compensation and superannuation, see for example: Long Service Leave Act 1955, Workers Compensation Act 1987;
  • the days on which public holidays are observed: Public Holidays Act 2010; and
  • regulation of retail trading hours for shops and banks: Retail Trading Act 2008.

NSW public servants and local government employees may still use the Industrial Relations Act 1996 for issues such as unfair dismissal or for the non-payment of wages.

Other important terms

Conciliation/mediation

A meeting called by an independent party to try to resolve a dispute through negotiation, compromise, and agreement. Negotiations and any agreed outcome of conciliation are usually confidential. Conciliation or mediation is a compulsory step in many kinds of legal actions, including unfair dismissal, and discrimination.

Discrimination, harassment, and bullying

Discrimination is unlawful, and occurs when someone experiences a disadvantage because they have a particular characteristic (such as their sex, race, disability, age, or sexuality), or because someone thinks they have that characteristic.

Harassment is a form of discrimination. It occurs when a person is subjected to specific physical or verbal discrimination because they have a particular characteristic.

Bullying occurs when a person is singled out for harassment, intimidation, or victimisation. Bullying does not necessarily have to be based on a person having a particular characteristic.

Employment contract

All employees have an employment contract, whether or not it is written down. The employment contract sets out the terms and conditions of employment, including the rights and obligations of both the employer and the employee.

Grievance

A dispute between two or more people in the workplace. A grievance should be able to be resolved by negotiation and compromise between the parties involved. A report of misconduct by one employee about another employee is not usually a grievance.

Industrial action

This is action taken by employees or employers during a dispute, which is often about pay and conditions for the employees. It is not unlawful to take industrial action, although there are rules regulating when it can happen. It can take the form of a strike, lock out, restriction on work, or other kind of disruption to the normal routine in the workplace.

National employment standards (NES)

These are ten minimum standards which apply to all workers who are covered by the national system. It is not possible to make an employment contract or collective agreement which gives an employee less than the minimum set out in the NES.

Superannuation

This is a compulsory form of savings which is linked to employment. Nine per cent of an employee’s ordinary earnings must be placed in a superannuation fund, to be invested until the employee retires. The Government’s current plan is to increase the rate of compulsory superannuation contributions, so that they gradually go up to 12% of an employee’s ordinary pay by 2019.

Termination of employment

This refers to any situation in which employment comes to an end. It could be through the employee resigning, or by dismissal, or retrenchment.

Types of employment – full time, part time, and casual

There are generally two kinds of employment – permanent and casual.

A permanent employee can be employed either full time (usually between 35 and 38 hours per week) or part time (less than full time hours). All permanent employees are entitled to annual leave, sick leave, parental leave, and other employment benefits.

Casual employees do not have set hours. They are employed as and when the employer needs them. They are not entitled to some kinds of leave, and they are generally paid at a higher rate than permanent employees to compensate them for lack of leave entitlements.

Some employers mistakenly (or deliberately) pay employees as casuals when they should be recognised as permanent employees. If you think that you are being paid as a casual when you should be paid as a permanent employee, you should raise it with your employer. Alternatively, you can contact your union, Fair Work Australia, or your local community legal centre.

Workplace health and safety

WorkCover is the NSW government body which administers workplace health and safety and the worker’s compensation scheme. It can conduct investigations and can prosecute employers if there has been a breach of workplace safety law.

Workers’ compensation is a system of compulsory insurance to ensure that all workers can be paid compensation if they experience an injury or illness because of their work. Workers’ compensation does not depend on the employee proving that the employer was ‘at fault’ in causing their injury or illness.