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ABKJ Lawyers Gold Coast

Employment Law FAQs

Find out more about equal employment opportunity by reading the frequently asked questions below. For further information, our lawyers can provide professional advice in all areas of employment law.

What is equal employment opportunity (EEO)?

EEO exists when people are treated on their merits at every stage of the employment relationship. This includes: selection and recruitment, promotion and transfer, training and development opportunities, retrenchment and redundancy.

What laws must employers follow when hiring new employees?

There are workplace laws that apply to all employees in the national workplace relations system. Before hiring a new employee, an employer should make sure that they know about their responsibilities under the Fair Work Act 2009 (Cth).

The National Employment Standards

There are 10 National Employment Standards (NES) that apply to all employees in the national system.

Awards & Agreements

Modern Awards
A modern award is a document that sets out the minimum wages and conditions for an industry or occupation. They apply on top of the NES. Modern awards cover things like pay, hours of work, rosters, breaks, allowances, penalty rates and overtime.

Enterprise Agreements
An enterprise agreement is a document that sets out the minimum wages and conditions for a workplace. When an agreement is in place, it will usually apply instead of the modern award. The agreement is negotiated between the employer, a group of employees and their representatives. The agreement is then lodged with the Fair Work Commission for approval.

Award/Agreement free employees
Some employees will not be covered by a modern award or enterprise agreement. These employees are considered to be award/agreement free. These employees are still entitled to the national minimum wage and the NES.

Wages

Employees must be paid at least the minimum wage provided in their award or agreement. If they are not covered by an award or agreement, they must be paid at least the national minimum wage. Pay rates are based on an employee’s duties and other factors like their age and qualifications. If an employee’s duties change, their wage may also change. Wages usually increase on 1 July every year.

Record-keeping & Pay Slips

An employer needs to keep written time and wage records for each employee. This includes records about:

  • their employment including:
    • the employee’s name;
    • the employer’s name and ABN;
    • whether the employee is full-time or part-time, permanent, fixed term or casual;
    • the date on which the employee began employment,
  • pay;
  • overtime;
  • hours of work;
  • leave;
  • superannuation contributions;
  • termination of employment;
  • agreements relating to an individual’s employment including individual flexibility agreements and guarantees of annual earnings.

These records must be kept for at least seven years. An employer should also give all employees a pay slip within one day of paying their wages.

Discrimination

Discrimination in the workplace is illegal. Employees (or potential employees) cannot be discriminated against because of their race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Taxation & Superannuation

Employers need to meet tax obligations for all workers. This includes PAYG withholding and superannuation on behalf of their employees. Some employers will also have to pay payroll tax when their total wages exceed a certain level called the ‘exemption threshold’.

Workplace Health & Safety and Worker’s Compensation

As an employer, it is their responsibility to provide a healthy and safe working environment for their employees. An employer should also pay worker’s compensation insurance for their employees.

Can employers monitor their employees’ Internet usage or read their emails?

Employee and employer use of internet and email can raise issues about workplace privacy. Password access and login codes may give employees the impression that their email and web browsing activities during work hours are private. Employees may not be aware that these activities can be scrutinised by their employer.

It may be reasonable for an employer to monitor some of its staff’s activities to ensure staff are performing their duties and using resources appropriately. At such, if your workplace monitors its staff’s use of email, the internet and other computer resources, and you have been advised of that monitoring, it would generally be allowed.

How can I tell if I should be classified as a contractor or employee?

You will need to determine whether you are classified as an independent contractor or employee before entering a contract. Your status will affect your rights and obligations with your employer or the business you contract with. You can be an employee for some work and an independent contractor for other work.

The individual circumstances of a working relationship are important in determining whether you are an independent contractor or employee.

Contractor

An independent contractor:

  • has established his or her own business;
  • is usually paid to achieve an agreed result;
  • usually provides skilled services;
  • generally controls how those services are provided;
  • may be free to subcontract the work to others;
  • is free to refuse additional work;
  • often supplies the material or special tools to complete the job;
  • usually bears the risk and cost of fixing their faculty work;
  • can advertise to the general public;
  • usually has no right to employee entitlements such as paid leave.

For example, an independent contractor might be hired to perform a specific job or series of jobs and often provides specialist skills and materials.

Having an Australian Business Number does not automatically make you an independent contractor. See our article on sham contracting.

Employee

Employees are entitled to a minimum set of conditions under workplace relations law that independent contractors are not entitled to. These include:

  • payment of wages;
  • set hours of work;
  • leave entitlements.

Usually, an employer can direct the way employees work. Independent contractors have more control over how they work.

An employee:

  • is usually supervised by an employer;
  • is usually required to carry out their work in a particular way, and comply with directions to perform work differently from time to time;
  • may be required to work only for one employer;
  • is entitled to paid holidays and sick leave;
  • is often required to represent to the public that they work for the employer (for example, by business cards, uniforms etc);
  • generally cannot subcontract tasks given to him or her. A typical employee earns a fixed wage or salary and works in the business operated by the employer on a permanent, fixed term or casual basis. An employee’s employer usually controls how their work is performed.

Is it ever acceptable for an employer to consider someone’s disability during the hiring process?

Discrimination occurs in the workplace when an employer takes adverse action against an employee or prospective employee because of a protected attribute. Physical or mental disability is one of the protected attributes. Adverse action taken by an employer includes refusing to employ a prospective employee based on his or her attributes.

In some circumstances treating someone differently because of their disability is not against relevant laws. This is known as an exception or exemption. For example, it may not be against the laws to refuse to employ a person with a disability if because of their disability they cannot perform the inherent requirements of a job. However, employers must consider how the person with a disability could be provided with reasonable adjustments to help them do the job. An adjustment is reasonable if it does not impose ‘unjustifiable hardship’ on the employer.

As an employee, where can I view my rights and obligations relating to my employment?

Fair Work Ombudsman
(www.fairwork.gov.au

The Fair Work Ombudsman website provides information and advice about your workplace rights and obligations.

Defence Force Remuneration Tribunal
(www.dfrt.gov.au)

The Defence Force Remuneration Tribunal website Determines pay and pay related allowances for the regular and reserve members of the Australian Defence Force (ADF).

Fair Work Infoline
(www.fairwork.gov.au/contact-us/call-us

If you have a question or problem relating to your workplace, call the Fair Work Infoline on 13 13 94. Before calling, check out the Before you call checklist (www.fairwork.gov.au/contact-us/call-us/before-you-call If you do not have this information when you call, you may be asked to find it out and call back.

Know Your Rights at Work
(www.humanrights.gov.au/complaints/work-out-your-rights-info-employees

The Australian Human Rights Commission can investigate and try to resolve complaints of discrimination and breaches of human rights in work, education, services and other areas based on a person’s sex, disability, race, age and other attributes.

National Employment Standards
(www.fairwork.gov.au/employee-entitlements/national-employment-standards)

What are the National Employment Standards and who do they apply to? Find out more about these 10 minimum entitlements.

Pay and Conditions
(www.business.gov.au/info/run/employ-people/pay-and-conditions

Wages and employment conditions are often one of the first things a potential employee will consider about a job. Provides links to a range of information on employee entitlements and pay.

Remuneration Tribunal
(www.remtribunal.gov.au

Determines the pay of key Commonwealth offices including judges and related offices; senators and members of Parliament (MPs); chief executive officers (CEOs) such as the heads of departments; and other full-time and part-time public offices.

Supporting Working Parents
(supportingworkingparents.humanrights.gov.au

Provides information for employers and employees on employee entitlements and responsibilities and employer obligations in relation to pregnancy, parental leave and return to work.

Visa Holders and Migrants – Know Your Workplace Rights
(www.border.gov.au/Trav/Work/Work/workplace-rights

Information to assist workers from overseas to know their rights and help reduce the incidence of exploitation.

For further advice, contact ABKJ today. Servicing the Gold Coast and surrounding regions.

Employment Law FAQs