A Compliance Guide For Employers on the Key Employment Laws in Australia

Employment laws in Australia are designed to establish a fair and safe workplace for both employers and employees. The legal framework encompasses several key legislations, including the Fair Work Act 2009, which outlines national employment standards, and the Work Health and Safety Act 2011, which ensures a safe working environment. 

Adherence to these laws is crucial for employers to avoid legal repercussions and foster a positive workplace culture. Compliance not only protects businesses from penalties but also enhances employee satisfaction and productivity.

In this article, we’ll provide a compliance guide on the key employment laws in Australia.  

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Starting Employment Legally: Awards, Agreements, and Contracts 

Before we discuss the key employment laws in Australia, let’s first differentiate between awards, enterprise agreements, and employment contracts - all of which contain the terms and conditions of employment, and thus, are crucial in hiring. 

• An award mostly covers an entire industry or profession (eg. legal services). 
• An enterprise agreement covers a group of employees and a specific business or businesses. An employer and at least 2 employees can create an agreement.  
• An employment contract is an agreement that is specific between one employee and the employer. 

Here are some important points:

• An enterprise agreement is optional; employers have no legal obligation to create an enterprise agreement
• However, if an enterprise agreement is made, it overrides the modern award. 
• A contract cannot override an award. If the terms a contract offers are less than that of the award’s, the award terms apply. 
• It’s possible to have both an enterprise agreement and an employment contract. For example, an employment contract can explicitly state that the employee agrees to the redundancy payment set out in the enterprise agreement. 
• Likewise, it’s possible for a contract to specifically exclude the terms in an enterprise agreement. 

Most importantly, the terms and conditions set within an award, agreement, or contract cannot displace those in force within the key employment laws in Australia, particularly the Fair Work Act and the National Employment Standards. 

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By Law, Are Employment Contracts Required?

As surprising as it sounds, no law obliges employers to create an employment contract with their employees. However, if there is one, remember that it is legally binding. 

There are also limited cases when a job is not covered by an award or an agreement (award and agreement free). In this scenario, an employment contract may be created. 

Note that despite not being covered by an award or an agreement, employees are entitled to the National Employment Standards (to be discussed in the later section), and National Minimum Wage, which is currently at $23.23 per hour. 

Key Employment Laws in Australia: A Guide For Employers 

There are several laws governing employment in Australia, here are some of they key acts employers must comply with:

• The Fair Work Act 2009
• Superannuation Guarantee (Administration) Act 
• Work Health and Safety Law 
• Fair Work Amendment of 2013
• Anti-Discrimination Laws 
• Privacy Act of 1988 

The Fair Work Act 2009

The Fair Work Act of 2009 is one of the key employment laws in Australia, governing the protection of certain rights from some unlawful actions. 

In general, the Fair Work Act of 2009 protects the employees’:

• Workplace rights 
• Rights to be free from discrimination 
• Rights to engage in industrial activities (eg. trade unions)
• Rights to negotiate arrangements without pressure or influence 

Workplace Rights

Someone has workplace rights if they have benefits or roles/responsibilities as a result of a workplace law or instrument or an order from an industrial body (eg. the Fair Work Commission). 

In essence, an individual exercises their workplace rights if they are able to initiate or participate in a process or proceedings, complain to a person or party to seek compliance with the workplace law or instrument, and make an inquiry or complaint in anything related to their employment. 

Note:

A workplace law is any law that regulates the relationship between the employee and employer.  A workplace instrument does not include the employment contract; in most cases, it points to an award or enterprise agreement. 

Protection of Employee Rights

Under the Fair Work Act, employees have the right to be protected from discrimination and they have the choice to engage (or not engage) in industrial activities, such as trade unions. 

This entails that employers MUST NOT:

• Take an unlawful adverse action, such as unjust termination or denying employment because of personal characteristics. 
• Organise or take an action (or threaten to) against an individual for activities, like exercising their workplace rights, joining an industrial activity, or assigning a role or task to another person. Doing so falls under coercion, which is unlawful. 
• Misrepresent (make misleading or false representations) another person’s obligations, the workplace right of another person etc. 

In addition to these, it is one of an employee’s workplace rights to discuss or not discuss their current or previous pay with colleagues or superiors, particularly when discussing the terms of employment. 

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National Employment Standards (NES)

The National Employment Standards are not a law in themselves but are part of the Fair Work Act of 2009. Given their significant role in guiding employer practices regarding hiring and managing employees, dedicating a section to them is highly beneficial.

The National Employment Standards (NES) are the minimum entitlements an employer must provide to their employees under the national workplace relations system. Note that only some of these entitlements are available to casual employees. 

These minimum entitlements are as follows:

• Maximum weekly hours should be 38, but reasonable additional hours are allowed. 
• Certain employees can request to modify their work arrangements 
• Up to 12 months of unpaid parental leave, and the right to ask for another 12 months of unpaid leave 
• 4 weeks of paid leave annually, plus an additional paid week off for some shift workers 
• 10 days of paid sick and carer’s leave (prorated for part-time employees), 2 days of unpaid carer’s leave, and 2 days of compassionate leave as needed.
• 10 days of paid leave for family and domestic violence issues 
• Unpaid leave for voluntary emergency activities and jury service. For jury service, employees can apply for up to 10 days of paid leave. 
• Paid time off for public holidays, but employers can arrange for employees to work if the request is reasonable.  Note that for casual employees, public holidays are unpaid. 
• Up to 5 weeks of notice of termination, and up to 16 weeks of redundancy pay (depending on length of service) 
• Paid leave for employees who have been with the same employer for a long time. 

Superannuation Guarantee Act

The Superannuation Guarantee Act ensures that employers pay for the employee’s super contributions, which goes to their retirement account. Under this act, employers have to contribute 11% of the employee’s ordinary time earnings if they are:

• Over 18 years of age
• Under the age of 18 but works over 30 hours a week 

Employment Laws Concerning Health and Safety

One of the key employment laws in Australia is the Work Health and Safety Act of 2011, which entails that a person conducting a business or undertaking (eg. employers), must take steps they are reasonably able to for the health, safety, and welfare of the workers, employers who conduct work, and the public. 

The Work Health and Safety Act discusses the requirements for:

• Licensing and registrations
• Incident notifications
• Consulting with workers
• Compliance and enforcement
• Dispute resolution

Under this employment law, there may be several codes of practice that apply to your business that you must follow. A breach to the Work Health and Safety Law may result in various penalties, depending on the category of offence. 

The highest offence is industrial manslaughter, which occurs when a person conducting a business or undertaking (or a senior officer) causes the death of a worker due to negligence. The corporate body may pay up to $10 million, and the person involved may be imprisoned for up to 20 years.  

Here are more information on the categories of offences and their corresponding penalties and punishments:

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Read more about the Penalties here. 

Discrimination and Human Rights Laws in Australia 

Australia also has various employment laws to protect workers against discrimination and preserve their human rights. 

While the Fair Work Act of 2009 has already stated that workers should not be discriminated against, employers still have individual laws to take into account. These are as follows:

789FD of the Fair Work Amendment Act 2013 (Cth)

It defines workplace bullying as repeated unreasonable behaviour by a person or group of individuals against a worker. 

Bullying in the workplace includes:

• Using offensive language, yelling, or screaming
• Isolating or excluding employees
• Harassment, including psychological harassment
• Intimidating behaviour
• Assigning tasks that are meaningless and unrelated to the job
• Giving tasks that are impossible to complete
• Deliberately altering work schedules to inconvenience specific employees
• Withholding vital information to undermine work performance
• Providing constant, unconstructive criticism or nitpicking
• Suppressing employees' ideas
• Overloading employees with work or giving insufficient time for completion, then criticising the outcome

Under the anti-discrimination law and the Work Health and Safety Law, it’s the employer’s duty to provide a safe workplace. Hence, an employer that permits bullying breaches the law and can be subject to the penalties outlined earlier. 

Here’s more information on workplace bullying in Australia. 

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Age, Disability, Sex, and Racial Discrimination Acts

On top of protecting workers from bullying, employers also have the legal responsibility to protect them from being discriminated against based on their age, disability, sex, and race. 

• The Age Discrimination Act 2004 highlights that an individual cannot be denied employment due to their age. 
• The Disability Discrimination Act 1992 emphasises that an employee has the same rights as those without a disability; hence they cannot be treated badly because they have a disability. 
• The Sex Discrimination Act 1984 ensures that men and women are treated equally, regardless of their relationships and family responsibilities. 
• The Racial Discrimination Act 1975 ensures that no employee would be treated badly or unfairly on the basis of their race, skin colour, or country of origin, or culture. 

Privacy Act of 1988

The Privacy Act safeguards an individual’s rights in personal and family matters. This legislation grants employees control over how services and organisations use their personal information. It enables them to: 

• Understand the purpose of collecting their personal information and influence its usage
• Request the confidentiality of their information
• Access their personal data, including health information
• Prevent unsolicited phone calls and emails.

If an employee believes a company or representative has breached their privacy, they may file a complaint with the Office of the Australian Information Commissioner. 

Compliance with the Australian Employment Laws: How Veremark Helps

Ensuring compliance with Australian employment laws is essential for creating a safe and fair workplace. 

Veremark provides comprehensive background screening services that reduce risks and ensure you hire suitable candidates. Our background checks,  like criminal record checks, help maintain workplace safety, while thorough investigations into a candidate's history can uncover past incidents of bullying and harassment. Moreover, all checks are conducted in strict compliance with the Privacy Act, ensuring candidates' personal information is protected. 

Verimark offers easy, automated background screening tailored to any industry and role, global checks for a diverse workforce, and 24/7 support to assist you whenever needed. With a pay-as-you-go model, you can access reliable candidate verification without long-term contracts. These features ensure a faster time to hire while maintaining compliance and reducing risks.

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