Employment law – rights and responsibilities Riverland Community Legal Service

Types of employment Employee or contractor? – Control over work – Payment arrangements – Insurance, taxation, superannuation – Tools and equipment “Sham” contracting

Types of employment Casual employment – Irregular hours – May or may not be offered work – Discretion to refuse work Casual status is not solely determined by contract

Casual employees Entitlements – No holiday pay, sick pay or payment for public holidays not actually worked – Should be payed loading (at least 20% extra) – Are entitled to workers compensation – Sometimes entitled to long service leave – Are entitled to superannuation if paid more than $450 a month (or less if by award)

Casual employees Protections – Are protected by anti-discrimination legislation – Are protected by unfair dismissal legislation if are employed on a regular and systematic basis and have a reasonable expectation of ongoing work

Terms of employment Express terms – Under contract of employment – Under award or modern award – Rules of conduct or employer’s policies (if brought to employee’s attention) Implied terms – Implied by law – Implied by conduct or circumstances of job

Federal or State system? Federal system – Constitutional corporation Where revenue is raised (doesn’t have to be profit- oriented) – Commonwealth government authorities State system – State government authorities – Local councils

National Employment Standards (federal system only) Minimum standards of employment – Max 38 hours per week full time But can be asked to work additional hours if reasonable – Up to 24 months unpaid parental leave (with conditions attached) – 4 weeks annual leave (5 weeks if a shift worker) – Public holiday pay – Redundancy pay

Equal opportunity protections Prohibited to discriminate in employment in regards to: – Age – Sex – Sexuality – Marital status – Pregnancy – Race – Disability

Equal opportunity protections Religious dress – Generally cannot discriminate based on religious dress – Exceptions: Safety hazards Where face needs to be identified Reasonable dress codes

Occupational health & safety Employer must provide a safe work environment Must maintain equipment and provide adequate safety training Employees must follow health and safety instructions Different requirements for different industries

Termination of employment By giving notice (i.e. resigning) – No reason need be given – Notice period set by contract or award – If no set notice period, must give reasonable notice (unless there is a set period of employment)

Termination by employer Breach of employment contract Consistent poor performance Consistent misconduct Summary dismissal Retrenchment, redundancy and bankruptcy

Unfair dismissal Different laws apply to small businesses Where dismissal is harsh, unjust or unreasonable Must have worked 6 months (or 1 year if small business) 14 days to make an application

Unfair dismissal Harsh, unjust or unreasonable – Terminated for poor performance but given no warning or opportunity to improve – Terminated for performing in accordance with the employer’s directions Constructive dismissal

Unfair dismissal Application to Fair Work Australia Mandatory attendance at conference Remedies: – Reinstatement (primary remedy) – Compensation

Unlawful dismissal Dismissal that is in breach of certain general protections – Discriminatory dismissal – Dismissal for union involvement – Dismissal for temporary absence due to illness

Organisations Fair Work Australia – – Unfair dismissal – Complaints regarding entitlements (federal system only) SafeWork SA – – Occupational health & safety – Complaints regarding entitlements (State system only)

Organisations Employee Ombudsman (SA) – – Advice on rights and entitlements – Advocacy on behalf of employees (except in cases of unfair dismissal) Human Rights Commission – – Discrimination complaints

Organisations Equal Opportunity Commission – – Discrimination complaints Legal Services Commission – – Free legal advice

Organisations Working Women’s Centre – – Free legal advice Also consider contacting the relevant union for advocacy and representation