Australia: Employee rights

Original and updating authors: Shana Schreier-Joffe, Dean Tolkin and Tiffany Wu, Keypoint Law

See the legal services provided by the authors of International > Australia, including any discounts/offers for subscribers.

Summary

• Most employees have certain minimum entitlements, known as National Employment Standards (NES), in areas such as working hours, leave and termination of employment. (See General)
• A full-time employee can be required to work a maximum of 38 ordinary hours each week, plus "reasonable" additional hours. (See Hours of work)
• The statutory NES do not deal with rest breaks or rest periods, which are governed mainly by modern awards, enterprise agreements and employment contracts. (See Rest breaks and rest periods)
• The statutory NES do not impose restrictions on Sunday working, or provide for a premium rate of pay for work on Sundays, and these issues are governed mainly by modern awards, enterprise agreements and employment contracts. (See Sunday work)
• Employees are generally entitled to four weeks of annual leave per year of service with an employer, and to a paid day off on public holidays. (See Holiday and holiday pay)
• As part of a general statutory system of unpaid parental leave, pregnant employees or primary carers who have at least 12 months' continuous service are entitled to take up to 12 months of parental leave. (See Maternity and pregnancy rights)
• Employees who have at least 12 months' continuous service are entitled to take up to 12 months of unpaid parental leave in connection with the birth or adoption of a child, and may request up to 12 months' additional leave. (See Unpaid parental leave)
• Under a federal scheme, eligible employees who are the primary carer of a newborn or recently adopted child may receive a state benefit, paid at the rate of the national minimum wage, during up to 22 weeks of leave related to the child's birth or adoption. (See Paid parental leave)
• Employees are generally entitled to take 10 days' paid personal/carer's leave each year if they are ill or injured, or need to care for an immediate family or household member who is ill, injured or having an emergency, and to take short periods of unpaid carer's leave if they have used up their entitlement to paid personal/carer's leave. (See Personal/carer's leave)
• Employees are generally entitled to take two days of paid compassionate leave on each occasion when a member of their immediate family or their household dies or suffers a life-threatening illness or injury. (See Compassionate leave)
• Employees are entitled to take 10 days of paid family and domestic violence leave in each 12-month period. (See Family and domestic violence leave)
• Employees are entitled to take long service leave after a certain period of continuous service with their employer. Specific entitlements are governed by state and territory legislation, with a typical entitlement of two months of paid long service leave after 10 years' service. (See Long service leave)
• Employees engaged in community service related to managing emergencies or disasters are entitled to take unpaid leave to perform the service. Employees are also entitled to take community service leave to attend jury duty and, in such cases, the leave may be partially paid by the employer. (See Community service leave)
• Employees with at least 12 months' continuous service are generally entitled to ask their employer for a change to their working arrangements, if they have certain caring responsibilities (such as care for a child of school age or younger) or in certain other circumstances (such as where they are aged 55 or older). Employers may refuse such requests only on reasonable business grounds. (See Right to request flexible working arrangements)
• Part-time employees have the same entitlements as full-time employees under federal employment legislation, on a pro rata basis, where relevant. (See Part-time workers)
• Employees on fixed-term contracts have many of the same entitlements under federal employment legislation as those on open-ended contracts, but with exceptions. For example, they are not entitled to a minimum notice period or redundancy pay. (See Fixed-term workers)
• "Casual" employees (those who have no guaranteed hours of work and usually work irregular hours) are excluded, fully or partly, from some entitlements under federal employment legislation, such as the entitlement to paid annual leave and personal/carer's leave, but are entitled to an enhanced hourly pay rate. (See Casual employees)
• There are protections for “employee-like workers” including workers performing work in the gig economy, or who work for organisations that engage workers through a digital platform. (See Regulated workers)
• Temporary agency work, often known as "on-hire" services, generally takes the form of an "on-hire business" assigning "on-hire employees" to work temporarily at a "host organisation". On-hire employees are employees of the on-hire business and not of the host organisation. (See Temporary agency workers)
• There is no specific legislation governing home working. (See Remote working)
• In business transfers, the employment relationships of the employees of the transferred business do not transfer automatically to the new owner. However, where the new owner employs such employees, their terms and conditions of employment receive certain protections. (See Transfers of undertakings)
• When a company is insolvent and goes into liquidation, employees' outstanding pay-related claims have priority over the claims of other unsecured creditors, and are covered, up to certain limits, by a public Fair Entitlements Guarantee scheme. (See Insolvency of employer)
• Federal employment legislation does not generally deal with disciplinary matters, except in relation to unfair dismissal. (See Disciplinary and grievance procedures)
• Federal data protection and privacy legislation does not apply to private-sector employers handling employee records for reasons directly related to the employment relationship. (See Data protection and employee privacy)
• Workers receive protection from bullying at work, defined as unreasonable behaviour that creates a risk to health and safety. (See Bullying)
• Employees and prospective employees receive certain "general protections" against discrimination, victimisation and other unfair treatment by employers, in order to protect their "workplace rights". (See General protections)
• Employees who engage in specified acts of "whistleblowing" receive certain statutory protection. (See Whistleblowing)
• Employees have a right to disconnect outside of their work hours. (See Right to disconnect)