Australia Employment Act

Tuesday, November 08, 2022 TimeTec 0 Comments

Australia Employment Act and Labour Law

The Australian federal legislation for employment and workplace regulations are governed through The Fair Work Act (2009) which Australian employers are required to uphold to ensure the employees' rights are well respected regarding working hours, overtime, rest days, leave entitlement and more.

Modern Awards
Implemented since the 1st of January, 2010. The Modern Awards are applied by law in over 122 industries and numerous occupations (or a combination of both) that comprise the majority of the workforce in Australia. This award will cover entitlements in several aspects such as:

• Pay
• Hours of work
• Rosters
• Break
• Allowances
• Penalty rates
• Overtime
 Working Hours
Employees are not required to work without a reasonable request outside of the 38 weekly work hours.

Any hours of leave or absence regardless if paid or unpaid, are to be treated as part of the hours of work in a week as long the leaves are within the authorisation of:
i) The Employer
ii) The Employees’ term of employment
iii) Government Authority such as Commonwealth, State or Territory Law
Working Time (Spread of Hours)
The maximum limit and range for overtime are to be determined based on the industries that are covered by Modern Awards. To find out the terms for the industry's additional work hours, you may refer to the information provided by Australia Fair Work Ombudsman here.

Some awards reward the employee by allowing them to take paid time off instead of overtime pay too.

Averaging The Hours of Work Under An Award Or Agreement
The average working hours may stretch over a specific period greater than a week given that the provisions are included within an award, agreement or within a reasonable request.

A full-time employee that would ordinarily work 152 hours over four weeks (average of 38 hours per week), may choose to span out lesser or more towards other weeks over those four weeks.

Averaging Work Hours Sample

Total 4 weeks with a total of 152 work hours (Average to 38 work hours per week).

Do note that the arrangement for averaging out the work hours should also be determined within reason as well as other factors such as family responsibilities, health, safety and relevance of the work hours. The employee also has the right to refuse any averaging work hours arrangement, likewise, employers are not allowed to force the averaging arrangement upon employees unlawfully.
Averaging The Hours of Work for Employees without Award/Agreement
Employees that are free from the award or agreement may choose to accept the arrangement in writing to average out their ordinary hours of work.

Maximum Averaging Period: 26 weeks

Keep in mind that the maximum work hours still apply: 

Flexible Working Arrangement
An employee has the right to request their employer for a flexible work arrangement for any reasons such as:
i) A parent or a carer(Carer Recognition Act 2010) having the responsibility to take care of a child who is of school age or younger
ii) Disability
iii) Age of 55 or older
iv) Experiencing family violence
v) Providing support and care for an immediate family or household experiencing family violence.

An employee may also request to return to work on a part-time basis if they have the responsibility of taking care of their child after returning from parental or adoption leave.

Flexible work arrangements may include:
i) Working Hours (reduce hours, work time start and finish time etc.)
ii) Work Patterns (split shift, job sharing etc.)
iii) Work Locations (Work from home, remote location, etc.)

Casual Employees are not entitled to make the flexible work request unless:
i) Serving on a regular and systematic basis continuously for 12 months of employment
ii) Employer has a reasonable expectation of continuing the employee’s employment on a regular and systematic basis
Breaks and Daily Rest

An employee is allowed to have Rest Breaks for a short time in between the work hours. The rest breaks can also be referred to as ‘crib breaks’, ‘rest pauses’ or ‘tea breaks’.

A Meal Break has a longer rest period without interruption that allows employees to consume their meals.

Similar to Overtime, an award or agreement may provide paid or unpaid rest/meal breaks to the employees such as:
i) Break length
ii) Break types and the number of breaks in between the expected work hours
iii) Rules about breaks and payment

An award may also provide the minimum amount of time off or daily rest in between the shift and work roster of the employees.

Find out the break rules and daily rest set out by the award for your industry over here.
Roster Changes and Working on a Rostered Day Off
Any changes that an employer wants to make to an employee’s regular work roster or ordinary hours of work are required to be discussed with the employee first. They will need to consider a few factors:
i) Information on the expected changes
ii) Gather employee feedback on the potential impact of the changes
iii) Review and consider the feedback from the employee

In regards to employees working on a period that is not required to work, Rostered Day Off (RDO), the employee's supposed day off may be paid or unpaid depending on the rules for RDO that are set out by the award or registered agreement. Typically RDOs are paid due to employees working extra hours when summed over a set time.

For more information on the roster changes rule, you may refer to it here. As for the information regarding RDO, you may refer to it here.
Public Holiday
An employee who works during a public holiday will get at least their base pay rate for the total work hours. Additionally, an award or agreement may provide the employer or employee terms for entitlements such as:
i) Public Holiday Pay Rates
ii) Replacement Leave (Extra Day Off or Extra Annual Leave)
iii) Minimal Shift Lengths
iv) Substituting a public holiday to another date

Annual Leave
Employees are entitled to be paid by the employer during the period of their annual leave.

You may also find out about the annual leave information for the shift workers here.

Accrual of Leave
An employee may be entitled to an accrual of annual leave given that:
i) Employee is entitled to paid leave such as annual, sick and carer’s leave
ii) Employee is serving Jury Duty or other community services.
iii) Long Service

The leave may accrue gradually from year to year if there is any unused annual leave. An employee is not entitled to the accrual of leave if they are on unpaid leave terms.

Unused Annual Leave during Employment Termination
During the end of employment, the employer is required to pay the employees for the amount of their annual leave untaken (if any).
Sick/Carer Leave

The employee is only allowed to take paid sick/carer leave if:

i) Unfit for work due to illness or injury affecting the employee ii) Required to provide care or support to an immediate family or household who is ill, injured or has an emergency.
iii) Female employees taking sick/carer leave as special maternity leave.Similar to annual leave, the employer is required to pay for the period of sick/carer leave taken by the employees. An employee’s entitlement for the paid sick/carer’s leave may also accrue progressively from year to year.

Unpaid Sick/Carer Leave
All employees are entitled to at least 2 days of unpaid sick/carer leave. However, an employee is not allowed to take unpaid sick/carer leave unless the paid sick/carer leave is out of balance. The employee is allowed to take both days continuously or in separation if the employee and employers agree.

Compassionate and Bereavement Leave

All employees are entitled to compassionate leave (bereavement leave). An award or agreement may provide additional entitlements to compassionate leave.

Paid Compassionate Leave Entitlement: 2 Days
An employee is allowed to take the compassionate leave in:
i) 2 continuous days
ii) 2 separate periods with 1 day each
iii) Any 2 separated periods as long as the employer agrees

There is no accrual to compassionate leave and it is not to be considered as part of sick/carer leave entitlement.

An employee can take compassionate leave if:
i) An immediate family member dies, contracts/develops a life-threatening illness or injury
ii) A baby in their immediate family or household is stillborn.
iii) An employee having a miscarriage themselves
iv) Current spouse has a miscarriage

Maternity and Parental Leave
Employees who have worked over 12 months with the employer are entitled to Parental Leave when their child is born or they have adopted a child. Casual employees are only entitled to unpaid Parental Leave if they have served continuously for 12 months or have reasonable expectations of continuing the employment on a regular and systematic basis.

The Parental Leave entitlement includes:
i) Maternity Leave
ii) Paternity/Partner Leave
iii) Adoption Leave
iv) Special Maternity Leave

Such Leave can be taken when:
i) An employee has just given birth
ii) The spouse of an employee has just given birth
iii) An employee adopts a child under the age of 16 years old

Unpaid Parental Leave
Employees are also entitled to continuous 12 months of unpaid parental leave and additional requests for 12 more months of leave if the employer agrees.

A pregnant employee may choose to start the period of leave 6 weeks before the expected date of birth of their child (or earlier if the employer agrees). The said pregnant employee, however, is not allowed to start the leave later than the date she has given birth to her child.

If the child is adopted, the period of leave can only begin on the day of the placement of the child.

Flexible Unpaid Parental Leave
Employees can only take flexible unpaid parental leave within 24 months of the birth of their child or placement of an adopted child. The moment when an employee takes flexible unpaid parental leave, their entitlement to continuous unpaid parental leave will be considered as ended during the first day of flexible unpaid parental leave.

The Flexible Unpaid Parental Leave can be taken in the form of:
i) A single continuous period of 1 day or longer
ii) Separated periods of 1 day or longer for each.

An employee is allowed to take flexible unpaid parental leave after taking one or more continuous unpaid parental leave. The total length of both periods is not allowed to be longer than 12 months

Keeping In Touch Days for Parent

Keeping In Touch Days allows an employee to return to work for days during their unpaid parental leave. This allows the employee to keep themselves up to date with their workplace and refresh their work skills to facilitate their return to work.

Number of Days: 10 Days (Does not affect their unpaid parental leave entitlement) Additional if unpaid parental leave has been extended beyond 12 months: 10 Days.

Mode of work for Keep In Touch Days:
i) Day by day
ii) A few days in a continuous period
iii) All at once

Additional Rule:
i) 42 days after the child's birth or adoption (can only be earlier at employee's request).
ii) Not allowed to be within 14 days after the child’s birth or adoption.
iii) Both employer and employee have to agree.

Unpaid Maternity Leave
A female employee is entitled to a special Unpaid Maternity Leave if she is not fit to work due to any pregnancy-related illness.

Pre-Adoption Leave

Employees are entitled to unpaid pre-adoption leave to attend relevant interviews or examinations for the child's adoption. The employee is not allowed to take this leave if the employer has directed the employee to take other forms of leave such as paid Annual Leave.

Number of Days: 2 Days Unpaid

The Pre-Adoption Leave can be taken as:
i) A single continuous period of 2 days
ii) A separate period if both the employee and employer agree

Unpaid Family and Domestic Violence Leave
The unpaid family and domestic violence leave is available in full and to all types of employees including full-time, part-time and casual employees every beginning of the 12 months. The unpaid family and domestic violence leave do not accrue from year to year.

Number of Days: 5 Days Unpaid (Per Year)

The Unpaid Family and Domestic Violence Leave can be taken as:
i) A single continuous period of 5 days
ii) Separate periods of one or more days each
iii) Any separation of periods that both the employee and employer agree

Long Service Leave
An employee may be entitled to Long Service Leave after serving a long period of work under the same employer. The entitlement to Long Service Leave comes from the laws set in each state or territory. The conditions are usually based on:
i) How long an employee has to work to be entitled
ii) How long the leave the employee is entitled to

Portable Long Service Leave

Certain industries are provided with the legislation by the Australian states and territories to access the Portable Long Service Leave, such as the security, community services, building and construction, coal mining, and contract cleaning industries. Employees who are entitled to Portable Long Service Leave will get to keep their entitlement if they work on different projects for one or more employers.

Community Service Leave
An employee (including casual employees) is entitled to community leave if serving activities such as jury duty or voluntary emergency management activities. The employee is also entitled to take community service leave while engaged in the activity and for reasonable travel and rest periods.

There is no limit for the employee to take community service leave. However, if the employee is serving the jury service, the employer is only entitled to pay for the first 10 days of absence provided with evidence of that 10 absent days.

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