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Employment & Work Place

On this page

National Industrial Relations System

From 1 January 2010, all private sector employers and employees have been covered by the national workplace relations system administered by the federal government.

All existing awards (both federal and state) have been streamlined into around 120 modern awards.

  • If you were covered by a federal award on 31 December 2009, you must now use the appropriate modern award.
  • If you were covered by a South Australian state award on 31 December 2009, that award has been preserved as a state reference award for a period of 12 months to 31 December 2010. From 1 January 2011 those awards will cease and the appropriate modern award will then apply.
  • If you are starting a new business as a sole trader or partnership, the appropriate modern award will apply.
South Australia 1  employment law employer employee workplace fair work award contractor unfair dismissal

National Employment Standards

There are 10 new National Employment Standards (NES).

Since the 1st January, 2010 these standards have applied to all businesses and all employees regardless of whether they were previously covered by a federal award or a South Australian state award.

The 10 National Employment Standards are:

  • Maximum weekly hours of work - 38 hours per week, plus reasonable additional hours.
  • Requests for flexible working arrangements - allows parents or carers of a child under school age or of a child under 18 with a disability, to request a change in working arrangements to assist with the child's care.
  • Parental leave and related entitlements - up to 12 months unpaid leave for every employee, plus a right to request an additional 12 months unpaid leave, plus other forms of maternity, paternity and adoption related leave. 
  • Annual leave - 4 weeks paid leave per year, plus an additional week for certain shift workers.
  • Personal / carer's leave and compassionate leave - 10 days paid personal / carer's leave, two days unpaid carer's leave as required, and two days compassionate leave (unpaid for casuals) as required.
  • Community service leave - unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to 10 days for jury service.
  • Long service leave - a transitional entitlement for certain employees who had certain LSL entitlements before 1/1/10 pending the development of a uniform national long service leave standard.
  • Public holidays - a paid day off on a public holiday, except where reasonably requested to work.
  • Notice of termination and redundancy pay - up to 4 weeks notice of termination (5 weeks if the employee is over 45 and has at least 2 years of continuous service) and up to 16 weeks redundancy pay, both based on length of service.
  • Provision of a Fair Work Information Statement - employers must provide this statement to all new employees. It contains information about the NES, modern awards, agreement making, the right to freedom of association, termination of employment, individual flexibility arrangements, rights of entry, transfer of business, and the respective roles of Fair Work Commission and the Fair Work Ombudsman.

More information about the NES is available at Fair Work Online.

Enterprise Agreements

Agreements set out the conditions of employment between an employee or group of employees and their employer.From 1 January 2010, only "enterprise agreements" can be made between employees and employers.

Other types of agreements made previously under the Workplace Relations Act 2006 cover the conditions of individual employees, or a group of employees. These include:

  • Collective agreements
  • AWAs (Australian Workplace Agreements)
  • ITEAs (Individual Transitional Employment Agreements)

Those agreements made prior to 1 January 2010 will continue on until they are terminated or replaced.

Casual Employees and NES

Only some of the entitlements under the National Employment Standards apply to casual employees.

These are:

  • two days unpaid carer-s leave and two days unpaid compassionate leave per occasion
  • maximum weekly hours
  • community service leave (except paid jury service)
  • to have a day off on a public holiday, unless reasonably requested to work by the employer
  • provision of the Fair Work Information Statement

In addition, casual employees who have been employed for at least 12 months by an employer on a regular and systematic basis and with an expectation of ongoing employment are entitled to:

  • make requests for flexible working arrangements
  • parental leave

Discrimination at Work

There are laws to protect discrimination in the workplace against people because of their sex, marital status, age, disabilities or race.

The Australian Human Rights Commission is an independent statutory organisation that works to protect and promote the human rights of all people in Australia. They can assist you to resolve issues involving discrimination in the workplace.

Acts, Regulations, Rules & Forms

Are you looking for detailed information like this, or contact details for any of the bodies mentioned on this page. If so, then start on our Employment Law for Lawyers page.

If it isn't there, then start on our Finding Detailed Legal Information page.

Please read our warning on that page "Be careful using these resources".

The Law is not always as straightforward as it appears. We have not included any information about when and how to use that information or any traps. We assume that the Lawyers will know this.

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Contractor or Employee?

An independent contractor works under a contract for a specific job or length of time. For example, a plumber is hired to fix a leak.

Unlike an employee, an independent contractor generally doesn't work regularly for an employer, and can choose whether or not to do a particular job they're offered.

The Fair Work Act 2009 contains penalties for what it describes as "sham arrangements" where an employee is incorrectly treated as an independent contractor. If your business receives services on a regular basis from independent contractors, it is important to ensure that your understanding of their legal status is correct.

Courts will consider a range of factors in determining whether a worker is an employee or a contractor, including:

  • Extent of right to exercise control;
  • Mode of remuneration;
  • Tax arrangements;
  • Ownership and maintenance of equipment;
  • Obligation to work;
  • Control over hours of work;
  • Right to work for more than one principal;
  • Right to delegate work;
  • Provision for holidays or leave;
  • Whether the contractor is running its own business;
  • Level of skill involved in the labour; and
  • Uniform and labeling.

The distinction is complicated, and you should obtain legal advice before making any decisions about independent contractors.

Read more about Contractors at Fair Work Online - Contractors and their different legal rights and obligations at .

It is important for businesses to be clear about whether their relationship with their workers is as an employer or as a contractor.

If you are unclear, then you should seek legal advice. FWA has information on hiring new employees.

Am I Really a Casual Employee?

Although you are referred to as a 'casual' employee, it is possible that, in fact, you are not. Generally speaking, this may be the case if you are getting regular work and the understanding between you and your employer is that the work will continue.

The rights of casual employees are different to those of permanent ones. If you think you are classified incorrectly by your employer, you should obtain legal advice or ring Fair Work Online on 13 13 94..

employment law employer employee workplace fair work award contractor unfair dismissal

Workplace Bullying

Workplace bullying is a current concern for employers and employees alike; nobody wants workplace bullying to exist within their place of work. There is information out there to assist all involved. The Australian Human Rights Commission website has a fact sheet that defines workplace bullying and mechanisms for dealing with it when it occurs:

Similarly, the SafeWork SA web site provides significant guidance to both employers and employees:

Safework SA's checklist to stop the workplace bully:

  1. Identify the bully or bullies
    Make sure you know exactly who is doing the bullying. Is there a ringleader? Who has the power?
  2. Keep records
    Keep a diary of bullying incidents, when and where it happened, who was responsible and how you felt
  3. Talk about it
    Discuss the problem with other workers, health and safety representatives and union officials.
  4. Do not retaliate
    Don't become a bully yourself or use physical violence; you may be seen as no better than the bullies themselves
  5. Stay where you are
    Don't resign or seek a transfer; this would be letting the bully win
  6. Make a formal complaint
    A formal complaint should be in writing and you need to keep a copy. Make sure your complaint shows a consistent pattern of mistreatment and that you use the correct procedure (get help if you are not sure).

Policies and procedures

While an employment contract should set out the legal entitlements and obligations of the employer and the employee, the purpose of employment policies and procedures is to guide the parties in their day to day interactions.

Where an employment contract would ordinarily cover an employee's entitlement to annual leave, the policies would ordinarily deal with the process for making a leave application.

While the needs of different organisations vary, all organisations should have policies or procedures in relation to occupational health and safety, bullying, equal opportunity and sexual harassment, and policies in relation to leave applications.

When drafting policies, it is important to avoid using "promissory" or contractual language (i.e., "Leave applications will be approved as long as they are made four weeks in advance of the date of the leave"). Recent cases have indicated that terms of policies which appear to be contractual in nature can be enforced as contractual terms. It is preferable to ensure that the employer retains discretion (i.e., "Leave applications which are made four weeks in advance of the date of the leave may be approved, subject to the requirements of the business").

Community Information

Working Women's Centres

www.wwc.org.au

1st Floor, Station Arcade
52 Hindley Street, Adelaide, SA, 5000

Toll Free: 1800 652 697
Work No: (08) 8410 6499
Fax No: (08) 8410 6770
Email: wwc@wwc.org.au

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Performance management

When an employee's performance becomes an issue for an employer, it is important that it is managed fairly and reasonably. A failure to do so on the part of the employer could give rise to claims of bullying, as well as a potential unfair dismissal. When considering whether to dismiss an employee for poor performance, there are a number of factors which need to be taken into consideration:

  • Have you informed the employee of the performance concerns?
  • Have you given the employee the opportunity to comment on those concerns?
  • Have you established performance criteria or performance improvement targets?
  • Have you given the employee an adequate opportunity to meet those criteria or targets?
  • Have you explained to the employee that a failure to meet those criteria or targets could give rise to the termination of the employment?

Poor performance is rarely a grounds for summary dismissal, so you should provide an employee with notice of termination or payment in lieu of notice.

Disciplinary action

Disciplinary action may be necessary where an employee's behaviour or conduct in the workplace is inappropriate. Examples of when disciplinary action may arise include:

  • Sexual harassment or bullying;
  • Refusal to comply with instructions; or
  • Failure to attend for work.

Disciplinary action can involve informal discussions, formal warnings, and may result in the termination of employment. The key questions to consider are as follows:

  • Have you informed the employee of the allegations?
  • Have you given the employee the opportunity to respond to those allegations?
  • Is it necessary to conduct an investigation to establish the facts?
  • Does the conduct warrant some form of disciplinary action?
  • If so, what nature of disciplinary action is appropriate, in the context of the conduct?
  • Is the conduct of such a serious nature that it requires that the employee be immediately dismissed, or is it conduct which warrants warnings or other measures?

Where an employee has engaged in serious or wilful misconduct, or has engaged in conduct which causes a risk to the health and safety of a person or the reputation, viability or profitability of the employer's business, it may be appropriate to terminate the employment summarily. However, it is always best to obtain legal advice before summarily dismissing an employee, as this often gives rise to litigation.

Unfair Dismissal

A person has been unfairly dismissed if Fair Work Commission finds that:

  • the employee was dismissed, and
  • the dismissal was harsh, unjust or unreasonable, and
  • the dismissal was not a case of genuine redundancy, and
  • the dismissal was not consistent with the Small Business Fair Dismissal Code, where the employee was employed by a small business.

A small business is a business that employs less than time equivalent employees. Casual employees are included in the head count if they are employed on a regular basis. Related business entities are counted as one business.

An employee must have worked for a small business continuously for one year before they can make a claim for unfair dismissal.

Employees in businesses with more than 15 staff must have been continuously employed for six months before they can make a claim for unfair dismissal.

When Fair Work Commission is considering whether treatment is harsh, unjust and unreasonable it looks to see if : 

  • there was a valid reason for ending the employment
  • the person dismissed was notified about the reason
  • a support person was allowed to be included in discussions about the dismissal
  • the employee was warned about any unsatisfactory performance beforehand
  • the size of the business and how this may have impacted on procedures that were followed
  • the business lacked human resource expertise and whether that would have been likely to impact on the dismissal.
  • any other things that they think are relevant.

Further information is available from the Fair Work Australia Dismissals topic.

If you are unsure as to whether you have been unfairly dismissed or not, it is best to obtain legal advice or to speak to Fair Work Online - Homepage

Claims for unfair dismissal must be lodged within 14 days of dismissal. Fair Work Commission may allow extra time in exceptional circumstances.

Employers of all classifications are subject to legislation governing discrimination and sexual harassment (called unlawful termination).

South Australia 3 employment law employer employee workplace fair work award contractor unfair dismissal

Termination of injured workers

There are a number of legal risks which can arise if an employer wishes to terminate the employment of an employee who is absent due to illness or injury.

If the reason for the termination relates to the injury, or the period of absence from work, the termination could constitute a breach of the Fair Work Act 2009, the Disability Discrimination Act 1992, and/or the Equal Opportunity Act 1985.

If the reason for the termination relates to the employee's performance, the employer must consider the extent to which the performance is affected by the injury or illness in making its decision. It may be lawful to terminate if it is not possible for the employee to perform the reasonable requirements of the position.

If the termination arises from a redundancy, the employer may need to be able to demonstrate that the criteria for selecting employees for redundancy were not biased against employees with injuries.

If the injury occurred in the workplace and is the subject of a claim for workers compensation the employer may also have obligations under those laws and should not terminate the employee without first checking their obligations under those laws..

These risks need to be considered before any decision is made in relation to terminating the employment of an employee who is absent due to illness or injury.

Paid Parental Leave

Paid Parental Leave scheme is administered by the Family Assistance Office.

This deals with your entitlement to be paid during parental leave.

Whether or not you are entitled to parenting leave and for how long is a separate issue.

Fair Work - Parental leave explains what you are entitled to and what you must do. This usually includes giving at least 10 weeks notice of your start and end dates.