Considering employing someone in Australia? To do that compliantly, an employer has a lot of obligations they have to fulfil. One comprehensive and important topic is the set of local employee rights a remote worker in Australia is entitled to, especially if they fall under what are called Modern Awards.
To employ someone in Australia, you need to be a registered employer. To get a full overview of what that would take and see all the obligations you will have as an employer, please read our Australia Country Guide. Alternatively, you can work with an Employer of Record, such as Boundless, which will employ the worker on your behalf locally. That would spare you any registrations and ensure compliance with employment and tax law, all the while assuring harmonised experience for your employees there.
Regardless of the employment approach, all employees in Australia are entitled to the following employee rights.
Employment contracts do not have to be in writing. However, it is best practice to record the key terms of employment in a formal written agreement.
Contracts should include the following elements at a minimum:
- Name and personal details of both employer and employee
- Employment commencement date
- Job title and description
- Tasks and duties of the employee
- Weekly work hours
- Employment type (i.e. full-time, part-time or casual)
- Method of payment
- Resignation and termination notices
- Confidentiality agreement
- Obligations in respect of the intellectual property
- Provisions to deal with changes in the role or scope of duties
- Any applicable post-termination restrictions, such as non-compete obligations
Employers are also required to provide all employees with a copy of the Fair Work Information Statement, which summarises crucial provision and employee rights under the National Employment Standards.
Employees are entitled to receive a payslip, hard or e-copy, within one working day of being paid.
Employees with 12 months of service have the right to request to adjust their existing working schedule. This can include flexible working hours, pattern or location of work to suit their lifestyle and circumstances better.
Flexible working is available for employees who are:
- Parents, carers of a child who is in school or younger
- 55+ years
- Have a disability
- Experiencing family or domestic violence within the immediate family
Employers must consider and respond to the employee’s written request within 21 days. They can only refuse the request on reasonable business grounds.
Each state and territory in Australia has equal opportunity legislation in place, which broadly requires that employers treat and give all employees equal opportunity to be hired, promoted, and trained.
Fair work information statement
Employers have to provide each new employee with a copy of the Fair Work Information Statement, which includes information about the conditions of employment, including their rights.
Modern Awards are legal documents that outline the minimum entitlements and conditions of employment of over 120 different jobs. They primarily cover wages and conditions and are based on the particular industry and occupation. Some key aspects that contribute to Modern Awards are the type of employment, overtime, penalty rates, allowances, superannuation, and leave entitlements. Employers need to pay employees, which are covered by a Modern Award, the amount set out in the relevant award at least. Employers can find whether a Modern Award covers an employee by using the ‘Award Finder‘.
Software developers and engineers are typically covered by the Professional Employees Award 2020.
Suppose a Modern Award covers a particular employee. In that case, they need to be notified of the applicable award, the relevant level/classification under the award and the applicable rate of pay. These terms should be included in the employment contract.
An enterprise agreement is another form of industrial instrument, which, like Modern Awards, also contains minimum terms and conditions of employment. They are, however, made at an enterprise level and therefore apply to particular groups of an employer.
Health & Safety
In Australia, the specific requirements for health and safety vary between states. In general, all employers must undertake processes to identify and manage risks and implement health and safety committees, which include nominated employee representatives. The general obligation is that an employer has a duty of care to protect its employees so far as reasonably practicable.
Whistleblower protections extend to a variety of public and private activities and cover both current and former employees who disclose any of the following:
- A corporations’ misconduct, as well as an improper state of affairs or circumstances, that breach the laws that regulate them
- Disclosures of corruption involving public sector bodies and officeholders
- Violation of the laws regulating registered organisations, such as trade unions.
Under the Corporations Act 2001 (Cth), public and enterprise companies must offer more substantial protection to whistleblowing employees through an adequate whistleblower policy. They should be guaranteed anonymity if requested, given increased immunity against prosecutions and extended protection against detriment (including dismissal) through victimisation.
Employees are protected from adverse treatment when making a complaint or inquiry about their employment, irrespective of whether those qualify for whistleblower protection.
It is common for employers to implement policies intended to protect employees who report misconduct.
Sexual harassment protection
Sexual harassment is unlawful under the state and Commonwealth legislation, but Australian law does not require training. Since employers carry a responsibility for the employee’s health and well-being at work, they can be held liable if sexual harassment at the workplace does occur. For this reason, the implementation of sexual harassment policies, procedures and training are highly recommended. They will serve as evidence that an employer has taken reasonable steps to prevent harassment from occurring.
Protection from bullying
All employees have the right to be respected and not bullied at the workplace, through repeated unreasonable acts by an individual or a group of people, that create a risk to their health or safety. Unreasonable behaviour includes victimising, humiliating, intimidating or threatening. Examples of bullying include:
- Behaving aggressively
- Teasing or making practical jokes
- Pressuring someone to behave inappropriately
- Excluding someone from work-related events
- Placing unreasonable work demands
Protection from discrimination
It is unlawful to either directly or indirectly discriminate against a person in all aspects of employment relationships, including recruitment and termination. Discrimination is prohibited based on:
- Physical or mental disability
- Carer or family responsibilities
- Skin colour
- Marital status
- Political opinion
- Social origin
- National origin
The range of attributes varies from state to state.
Unfair dismissal protection
Employees who have been employed for six months (12 months for businesses with less than 15 employees) are protected from dismissals that are “harsh, unjust or unreasonable”.
When the Fair Work Commission investigates a potentially harsh, unjust or unreasonable dismissal, they will review:
- The individual’s capacity or conduct and whether either presented a valid reason for the dismissal, which includes how it impacted other employees safety or welfare
- If the employee was notified of the reason
- If they were given a chance to respond
- If the employer unreasonably refused the employee to bring a support person for any discussion
- If the cause was unsatisfactory performance, whether the employer had expressed their dissatisfaction with the performance
- Whether the size of the enterprise may impact the dismissal procedures
- Whether the absence of dedicated human resource management specialists or expertise at the enterprise would be likely to impact on the dismissal procedures
When an employee claims unfair dismissal, the Fair Work Commission will ask the employer to give evidence of compliance with this Code. Things that qualify as evidence include a warning issued to the employee, copies of written notices, a statement of termination or signed witness statements.
Protection from adverse employer actions
Current and potential employees are extended protections from adverse actions against their fundamental workplace rights. Under the Fair Work Act, they are:
- Workplace rights
- Freedom of association
- Protection from workplace discrimination
- Effective relief from discrimination, victimisation, or unfair treatment
Relating to the existence or exercise of these fundamental employee rights, employers are forbidden from the following adverse actions:
- Dismissing employees
- Denying legal entitlements
- Changing jobs negatively
- Treating some employees differently than others
- Refusing to hire potential employees
- Offering some employees more unfair terms and conditions
Personal information protection
There is no general legal right to privacy. Currently, the Privacy Act 1988 provides a framework for the collection, correction, use and disclosure of personal information. However, the handling of “employee records” by a private-sector employer is exempt from the Privacy Act. The Privacy Act only applies to an employee record if the information is used for purposes unrelated to the employment relationship.
Employers are free to collect, use and disclose employee records and outsource employment-related functions without obtaining prior consent, provided these acts are directly related to the employment relationship.
This does not apply to prospective employees or contractors.
Employees are protected from the following acts:
- Adverse action or threats
- unlawful firing, injuring the employment (a phrase commonly used in Australia, it refers to removing something fundamental to employment, such as loss of pay or reduction in rank), acts of discrimination during hiring and employment, changing an employee’s job to their disadvantage, offering one employee unfair terms and conditions for the job compared to others
- Coercion – forcing someone to do something against their will
- Forcing to use or not use a workplace right
- Threatening to fire or demote an employee if they refuse to vote for an enterprise agreement.
- Undue influence or pressure – using power to try to influence or pressure an employee to change certain conditions of employment such as
- Enter or not enter into a job or registered agreement; agree to or terminate a flexibility arrangement; accept a guarantee of annual earnings; agree or not agree to a deduction to them
Personal and carer’s leave
Full-time employees are entitled to ten days paid personal leave per year, which can be used as sick or carer’s leave.
Parental leave comprises the birth or adoption of a child and includes maternity leave, paternity leave (for fathers or partners) and adoption leave. All parental leave is unpaid, but depending on the agreement, company policy or award, the leave can be paid. Primary carers are usually entitled to government-funded parental leave pay at the national minimum wage for a maximum period of 18 weeks.
Long service leave
Employees that have been working with the same company for an extended period are entitled to a long service leave of 2 to 3 months. The minimum length of service varies from five to ten years, depending on the state.
When an employee ceases work with an employer, and they haven’t taken all of their extended service leave, they are entitled the amount of leave on a pro-rata basis, as long as they fulfil the required length of service.
There is no at-will employment termination in Australia. Under the FW Act, employees are entitled to a minimum notice period that ranges between one and four weeks. Employees that have worked with the company for two years and are 45 years of age or older receive an additional week’s notice. Employers may choose to pay in lieu of notice, provided there is an ability to do so under their contract of employment.
It is common practice for employers to include longer notice periods in an employee’s contract of employment. Most tech companies have a 1-month notice period (which would increase to 5 weeks’ notice if the employee has attained five years of service and is over the age of 45). It is also common for senior executives to be bound longer periods of notice, for example, three months.
Workers’ compensation is statutory insurance that all employers must provide. It protects employees in case they suffer a work-related injury or disease. Generally, the payment covers wages while the employee is unfit for work and medical expenses and rehabilitation costs.
There are state and territory regulators that administer the compensation and amount of money paid.
The amount paid to an employee is an insurance payment and not a wage. The employee can be paid:
- Directly by the insurer
- From the insurer through the employer
- By the workers’ compensation regulator
Unemployment payment can be claimed by people between the age of 22 and retirement age who are Australian citizens, holders of permanent residency visa and new residents who have resided in the country for 104 weeks and meet the income criteria.
To be eligible for the unemployment benefit, the individual must have lost their job and demonstrate that they are actively looking for a new one. Alternatively, they are entitled to if they are sick or injured and unable to do their usual work. Payment amount depends on each person’s circumstances and is between AU$510 – AU$790.
Fair Entitlement Guarantee
The Australian Government offers financial assistance to eligible employees who have lost their job because their employer was liquidated or bankrupt.
Employees have access to the Fair Entitlement Guarantee scheme that guarantees payment of both:
- Some instances of employment termination
- Unpaid wages (up to 13 weeks and subject to a current cap of $2,451 per week)
Employees are further entitled to receive priority treatment, be ranked above unsecured creditors and be paid in a required order set out under corporations legislation.
The Fair Entitlement Guarantee does not cover the following entitlements:
- One-off or irregular payments
Employees are entitled to two days paid compassionate leave if an employee’s immediate family member is seriously ill or dies. Immediate family is an employee’s:
- De facto partner
- Child, parent, grandparent, grandchild or sibling of their spouse or de facto partner
Employees can take compassionate leave for other relatives (e.g. cousins, aunts and uncles) if they are a member of the employee’s household, or if the employer agrees to this.
Family & domestic violence leave
Employees are entitled to five days of unpaid leave in 12 months (some companies elect to provide paid leave) in the case of family domestic violence incidence. What falls under that is any violent, threatening or otherwise abusive behaviour by an employee’s close relative that seeks to coerce or control them or causes them harm or fear. This could come from any member of the employee’s immediate family (or is related to them according to The Aboriginal or Torres Strait Islander kinship rules).
Community service leave
Employees are entitled to a leave for engaging in an eligible community service activity, such as for voluntary emergency management activities (unpaid) or jury duty (paid). The following criteria must be met:
- The activity is related to an emergency or a natural disaster
- The employee volunteers to do the activity
- The employee was either requested to volunteer or would have been
- The employee is a member of or associated with a recognised emergency management body
An employee is entitled to take community service leave while they are engaged in the activity and for reasonable travel and rest time. There is no limit on the amount of community service leave an employee can take.
Employees must give their employers notice of the absence as soon as possible and the period or expected period of absence. Employers may request the employee to provide evidence that they’re entitled to community service leave.
Employees who have been with the company for at least 12 weeks are entitled to redundancy pay when their employment is terminated because the employer no longer requires the job. Redundancy pay varies from 4 to 16 weeks’ pay based on the amount of time the company has employed them:
- Between 1-2 years: 4 weeks’ pay
- Between 2-3 years: 6 weeks’ pay
- Between 3-4 years: 7 weeks’ pay
- Between 4-5 years: 8 weeks’ pay
- Between 5-6 years: 10 weeks’ pay
- Between 6-7 years: 11 weeks’ pay
- Between 7-8 years: 13 weeks’ pay
- Between 8-9 years: 14 weeks’ pay
- Between 9-10 years: 16 weeks’ pay
Want to see this in a neatly packed visual way and see how leading employers augment these benefits? Grab our Australia benefits benchmark infographic.
Employees have the right to join or not a union at work, and cannot be treated less favourably or pressured for deciding either way.
Want to employ someone in Australia?
Adhering to employment law and employee rights in Australia will require a commitment to learning and working with a lot of local regulations. We are here to help you on that journey and take the time to make sense of complex legislative information, which we turn into easy to understand resources and comprehensive country guides (check our guide to Australia).
However, staying on top of Australian employment law may not be a top priority for you right now. That doesn’t mean you should give up on employing your next remote worker out of Australia or opt for hiring them as an independent contractor instead (which is a bad idea).
Boundless can help you employ anyone in Australia legally and hassle-free. We own and operate an Australian Professional Employer Organisation as part of our multi-country offering. Through the Employer of Record model, we act as the legal employer to your remote workers and take care of the many obligations that come with adhering to these employee rights in Australia. Learn more.
The making available of information to you on this site by Boundless shall not create a legal, confidential or other relationship between you and Boundless and does not constitute the provision of legal, tax, commercial or other professional advice by Boundless. You acknowledge and agree that any information on this site has not been prepared with your specific circumstances in mind, may not be suitable for use in your business, and does not constitute advice intended for reliance. You assume all risk and liability that may result from any such reliance on the information and you should seek independent advice from a lawyer or tax professional in the relevant jurisdiction(s) before doing so.