Workplace Law

Employment contracts establish the working relationship by setting out the terms and conditions, frameworks and policies relevant to a specific workplace. They provide clarity for each party, outline the employee and employer’s rights and obligations as well as protect the employer from risks associated with employment. They also clearly define the employee duties, renumeration and any leave entitlements.

Generally, most employees of Australian workplaces are protected under the Fair Work Act 2009 (Cth), however the relevant protections and rights vary depending on the type of employment. The Fair Work Act 2009 (Cth) only covers employees of Australian workplaces, and does not cover state public sector and local government employees.

An employee is hired under an employment contract to perform a role until the contract is terminated by either party. Generally, employees will be paid by the employer in accordance with the hours they work.

A contractor hires out their services to a business under a negotiated contract for services for a specified period of time. Contractors are paid in accordance with invoices they render for the services they provide. Contractors have different laws apply to them in terms of rights and responsibilities and are usually responsible for paying their own taxation and superannuation, and are often required to supply their own equipment.

The difference between a contractor and employee can be very important, as it will determine whether an employer is required to pay superannuation and PAYG withholding, and also whether that person is covered by workers compensation insurance.

All employers should implement an anti-bullying and discrimination policy. After enforcing such policies, it is important to ensure they form part of training, induction processes and are accompanied by appropriate complaints processes and procedures.

These policies can help build a safe and inclusive workplace culture where employees are able to broach management with all issues. However, it is important to review these (and all policies) regularly to ensure they remain relevant and comply with changes to workplace laws.

Workplace policies are documents that set workplace standards to protect employers’ interests and create a positive workplace culture and values.

Workplace policies and procedures are important for all workplaces as they establish integrity and fairness in the workplace and outline the procedures that all employees should be following. They connect the purpose and values of the workplace into the day-to-day procedures. Further, they communicate to employees how to deal with situations, who to advise and what steps to follow.

Although workplace policies are usually not enforceable contractual documents, they are still valuable for the employer as they set out important workplace guidelines which help to minimise the legal or safety risks arising from the workplace. An example of this includes an appropriate resignation or termination policy to minimise risk of an Unfair Dismissal claim from an employee.

The specific policies and procedures that workplaces should implement vary depending on the type workplace. There are, however, many standard workplace policies that employers should implement, including:

• Code of Conduct
• Workplace Health and Safety
• Anti-Discrimination
• Disciplinary procedure
• Dispute resolution
• Complaint procedure
• Termination/resignation procedure
• Internet, social media and email policy
• Overtime policy
• Work from home policy

Prior to changing an employee’s regular working hours you should review the employee’s contract of employment to confirm if this details or specifies agreed hours of work. If so, any variation to the employee’s hours of work would necessitate a variation of their employment contract.

Under the Fair Work Act 2009 (Cth) and the common law, which implies good faith obligation into contracts, the employer must consult with employees about any change to their regular working hours.

It is also important to check if there are any specific obligations under an award, registered agreement or other workplace instruments.

In the absence of serious misconduct, an employee cannot be terminated without warning or notice.

Generally, in instances of unsatisfactory performance, you must first issue a formal warning letter and have a meeting with the employee (in which they may bring a support person with them). During the formal meeting you should advise the employee:

• Advise the employee of the reasons for the warning being issued;
• Ask the employee for their response;
• Provide a set of criteria for future performance measurement;
• Advise the employee that if their performance does not improve to a satisfactory standard, their employment will be reviewed and may be terminated.

The meeting should be followed by a supervised period to track the employee’s progress. If the identified behaviour stops or improves, a letter should be given to the employee outlining their progress and removal from the supervision period.

If their performance and behaviour does not improve, another formal written warning and meeting should occur. This should advise the employee that if they fail to improve they risk termination. It is important to remember to document all verbal meetings.

If the employee continues to unsatisfactorily perform, a written termination should be issued notifying the employee of their termination from employment, the reasons for this and date of termination.

For full-time or part-time employees, it is important to ensure that you have given them at least the minimum amount of notice required under their employment contract or the Fair Work Act 2009 (Cth). In some instances, payment may be made in lieu of notice.

An employee’s final pay should include:

• Outstanding wages or renumeration still owing;
• Accumulated unused annual and long service leave;
• Payment in lieu of notice (if applicable);
• Redundancy pay (if applicable).

Unfair dismissal occurs if termination or dismissal of an employee is found to be harsh, unjust or unreasonable. Under the Fair Work Act 2009 (Cth) a claim of unfair dismissal needs to be brought to the Fair Work Commission within 21 days of the dismissal.

There are eligibility requirements, being the minimum period of employment (1 year for small business employees or 6 months for other businesses), maximum earning requirements and the protection is not available for contractors.

It is important to seek legal advice quickly as the Fair Work Commission has deadlines attached to many claims. A response form must be lodged with the Fair Work Commission detailing the employment dates, reasons for dismissal, response to claims raised by the employee and any jurisdictional objections.

Following this a conciliation will occur between the employer and employee. The aim of the conciliation is to achieve an informal resolution of the matter.

Each party is able to put their position forward in an attempt to reach an agreed settlement. If the conciliation is unsuccessful in reaching a settlement outcome, the employee may proceed to take the matter to hearing before the Court.

“Casual conversion” is the term used to refer to the process of offering a casual employee a part-time or full-time position after 12 months on their casual contract. However, casual employees do not automatically get converted to part-time or full-time employees. The employee and employer must meet various eligibility requirements for the casual conversion process to apply.

Small Businesses are those that have less than 15 employees (including casual employees engaged on a regular or systematic basis). Small businesses do not have to offer casual conversion, however casual employees can still request conversion after 12 months of casual employment, if they have worked a regular pattern of hours on an ongoing basis for at least the last 6 months.

There are reasonable grounds for not making an offer or refusing a request including that the position wont exist, the hours of work will significantly reduce or the employer would have to significantly adjust the employees work hours to make them full or part time.

If an employer is not going to make an offer of casual conversion, a letter must be written to the employee 21 days after the employees 12-month employment anniversary.

Under the Fair Work Act 2009 (Cth), an employer can ask an employee for a medical certificate for as little as 1 day or less off work.

An employer may ask for this evidence to show that the employee was not able to work because of an illness or injury or needed to care or support a family or household member. If an employee does not provide this evidence when reasonably requested by the employer they may not be entitled to be paid for their sick or careers leave.

It is important to ensure that the request is reasonable and complies with any extra requirements as specified in an award or registered agreement. It is not reasonable to an employer to attend a medical appointment or contact the employee’s doctor for further information.

It is first important to determine the reason for the employee’s absence as they may be legally entitled to leave (e.g. sick, careers or parental). If there is no reason for the failure to attend the workplace as and when required you must first issue a formal warning letter and have a meeting with the employee (in which they may bring a support person with them).

During the formal meeting you should advise the employee:

Advise the employee of the reasons for the warning being issued;
Ask the employee for their response;
Provide a set of criteria for future performance measurement;
Advise the employee that if they continue to fail to attend, their employment will be reviewed and may be terminated.
If the employee continues to fail to attend, another formal written warning and meeting should occur. This should advise the employee that if they fail to attend work without reasonable excuse again, they risk termination. It is important to remember to document all verbal meetings.

If the employee continues to fail to attend the workplace, a written termination should be issued notifying the employee of their termination from employment, the reasons for this and date of termination.

Workplace Health and Safety laws, regulations and codes of practice were modelled by SafeWork Australia in 2011 for other states and territories to adopt. The underlying principle of the model WHS Act is that, so far as is reasonably practicable, duty holders provide workers with the highest level of health and safety.

This means that a person conducting and undertaking a business, as the duty holder, is required to do whatever is reasonably able to be done at the time to ensure the health and safety of their workers. Employers have notification requirements for notifiable incidents. Notifiable incidents are ones that involve death, serious injury or serious illness to a worker or a dangerous incident that exposes workers to a serious risk.

Under WHS Laws, a person conducting or undertaking a business must report a notifiable incident to WorkSafe by the fastest possible means and keep a record of all notifiable incidents for at least five years. Failure to notify SafeWork of the occurrence of a notifiable incident, keep a record of a notifiable incident or preserve an incident site until an inspector arrives carries large penalties.

Businesses also have to have workers compensation from an insurer to ensure that compensation can be paid to an employee injured at work. If an employee is injured at work, the employer needs to notify the insurance company and complete all relevant documentation.