Changes To The Contract
In accordance with common law contractual principles, an employer may not change any terms of the employee’s contract without the employee’s consent. Such consent may be express (by the employee agreeing to the change) or implied (by the employee continuing to work for the employer without protest for an appropriate period of time after being made aware of the change).
Any change of terms to which the employee does not consent will amount to a breach of contract. If the change is a significant one which goes to the root of the contract, the contract may be regarded as having been repudiated and the employee is entitled to accept such repudiation and treat the contract as at an end. In so doing, the employee may also claim that he or she has been constructively dismissed (and seek damages accordingly).
Change In Ownership Of The Business
When there is a change in ownership of a business (except a change merely in the shareholding ownership), the Transfer of Business provisions of the Fair Work Act are likely to apply. There is no requirement that the employees carrying out the work in question automatically become employees of the new owner of the business. Where employees are employed by the new employer, some entitlements under the National Employment Standards will automatically carry over, but the new employer can decide if they do not want to recognise others. If an enterprise agreement applies to the work, the employees will retain those terms and conditions unless the new owner obtains an order from FWC that the agreement is varied or ceases to operate.
All enterprise agreements and most modern awards include a consultation term which requires the employer to consult with employees to whom the enterprise agreement/award applies (and with applicable representatives) about major workplace changes that are likely to have a significant effect on their employment. These consultation obligations would apply to the old employer in a transmission of business such that they should consult with the affected employees (and their representatives) in the lead up to the change in ownership taking place.
Social Security Contributions
An employer must contribute an amount (currently 9.5%, but increasing to 10% from 1 July 2021) of an employee’s ordinary time earnings to a superannuation fund, subject to a maximum contributions base (which generally increases from 1 July each year). A superannuation fund may pay a pension or lump sum upon retirement and may also provide insurance for total and permanent disability, while in the workforce. There are no other social security contributions imposed on employers. The Department of Social Services administers a range of means-tested welfare benefits for the unemployed, low paid or sick employees and retirees.
Accidents At Work
Employers have a common law duty to have regard to the safety of their employees. Employers are also responsible under common law for loss and damage suffered by third parties caused by the acts of their employees where the employees were acting in the course of their employment.
In addition to common law duties, a number of additional obligations are imposed on employers through legislation (most significantly the various occupational health and safety statutes applying in each State or Territory). The Commonwealth and a majority of States and Territories have implemented a single set of model Work Health and Safety (WHS) laws. In addition, the employer also owes specific statutory duties to members of the public who are affected by the activities of the employer, and other people’s employees working on their premises. In some instances, a breach of the employer’s statutory duties may give rise to criminal and civil liability.
There are also statutory ‘workers compensation’ insurance schemes in each State and Territory that provide for payment of medical costs and compensation for loss of income due to illnesses or injuries suffered by workers as a result of their work, funded by premiums paid by employers. Employees may also be able to seek other common law damages if they are seriously injured.
Discipline And Grievance
Where an employee is eligible for protection from unfair dismissal (see further below), an employer’s failure to give the employee a warning about their poor performance and an opportunity to improve will likely render any performance-related dismissal unfair. Generally, a dismissal will also be unfair if the employer’s decision to dismiss the employee is made before giving the employee the opportunity to respond to the reason for the dismissal.
An employer is also prohibited by the Fair Work Act’s general protections provisions from taking adverse action against an employee, including by way of termination, because of certain proscribed reasons (including because the employee has made a complaint or inquiry in relation to their employment).
The Corporations Act 2001 (Cth) (‘Corporations Act’) also provides protection to whistle-blowers who report certain misconduct about companies and company officers. The Corporations Act prevents detrimental action being taken against an employee whistleblower.
More generally, employers are free to apply contractual rights and implement their own policies to deal with disciplinary practices and employee grievances, so long as those policies provide for procedural fairness.
Employees are protected from discrimination on various grounds, including sex, age, sexual orientation, marital status, race, religion or belief, disability, family responsibilities, parental or carer status, political activity or belief, membership or non-membership of a trade union or other industrial activity.
Such discrimination is prohibited before the employment relationship commences (for example, in advertising for a job), during the employment (for example, in failing to promote) or on termination.
Prohibited conduct includes both direct discrimination (for example, refusing to employ a man or woman) and indirect discrimination (for example, by imposing a condition which is irrelevant to the job but is such that fewer people of a particular group can qualify).
An employer may take a ‘special measure’ for the purpose of promoting or realising substantive equality for members of a group with a particular attribute without discriminating. For example, by increasing employment opportunities for Indigenous persons.
Sexual harassment is a separate type of claim but is linked with discrimination. It involves unwanted conduct of a sexual nature that a reasonable person, having regard to all the circumstances, would have anticipated would have offended, humiliated or intimidated the victim.
There is no minimum period of employment for protection from discrimination or sexual harassment. Discrimination or sexual harassment can lead to a complaint to State of Federal human rights bodies and claims in anti-discrimination tribunals or the Federal Courts. There is no limit to the damages which can be awarded (and this may include ‘general damages’ for hurt, distress and humiliation). Compensation may be awarded for personal injury if the employee can show that the discrimination caused the harm.
In addition, persons alleging discrimination or sexual harassment may file claims with the FWC under the general protection provisions (referred to above).
Victimisation is a form of prohibited discrimination, which generally involves treating a person less favourably because they have complained (or intend to complain) about discrimination or sexual harassment, or because they have given evidence in relation to another person’s complaint. An employee must not be disciplined or dismissed, or suffer reprisals from colleagues, for complaining about discrimination or harassment at work or for being involved in an investigation concerning another person’s complaint.
The concept of equal pay is recognised by legislation, namely the Equal Pay provisions of the Fair Work Act. Those provisions are aimed at classes of work where there are differences in rates of remuneration between men and women where the work is of comparable value. Further, the Workplace Gender Equality Act 2012 (Cth) requires universities and private sector employers with more than 100 workers to report annually on how the organisation is performing against a set of ‘gender equality indicators’. These indicators include the composition of the organisation’s workforce and the extent to which men and women receive equal remuneration.
The Fair Work Act has a discrete jurisdiction to prevent bullying. The FWC has broad powers to make orders it considers appropriate, to prevent workplace bullying, known as a stop-bullying order, but it is not empowered to make an order requiring payment of a pecuniary amount or reinstatement. Bullying is also a breach of an employer’s primary duty to provide a safe place of work under occupational health and safety laws. A breach of those laws could lead to substantial fines and imprisonment. An employer may also be liable to make payments under worker’s compensation legislation, where the bullying results in a physical or mental injury.
Compulsory Training Obligations
There are no compulsory training obligations for employees generally, but some trades/professions impose their own standards/expectations.
It is possible for employers to off-set earnings against employee’s debts. However, the employer may only make a deduction from an employee’s wages if it meets certain requirements under the Fair Work Act. These requirements include that the deduction is authorised by a statutory or contractual provision or a term of an enterprise agreement or award, the employee has given his or her prior written consent to the deduction, and the deduction is principally for the benefit of the employee.
Payments For Maternity And Disability Leave
The Federal Government funded paid parental leave scheme provides eligible employees with up to 18 weeks of pay at the national minimum wage ($753.80 per week as at 1 July 2020 – 30 June 2021) and for 2 weeks of pay at the minimum wage for fathers or same sex partners of the mother of the child. In addition, many employers voluntarily (or as a result of collective bargaining) provide for paid parental leave funded by the employer.
Paid personal leave is available (as described earlier) if an employee cannot attend work due to an illness or injury.
Workers compensation schemes (as described earlier) provide for payments to employees if they are unable to work as a result of an illness or injury arising as a result of the employment.
Workers who are unable to work as a result of illness or injury not related to work may be able to access social security payments or, if they are injured as a result of a traffic accident, third party insurance schemes.
Employers are required to maintain workers compensation insurance under an approved policy with an authorised insurer, against liability for injury or disease sustained by employees during, and arising out of, their employment.
Absence For Military Or Public Service Duties
Employees are entitled to take leave for military or jury service duties or participate in voluntary emergency management activities (as described earlier).
Works Councils or Trade Unions
Employees have a workplace right to join or not join a trade union and to participate in activities as a representative of other employees. An employer who refuses to employ, dismisses or takes any other adverse action against a person because of such membership/non-membership, or industrial activity, is liable to prosecution and claims for damages. Where such claims are made, the employer must establish that the adverse action was taken for reasons that did not include the persons membership or non-membership of an industrial association or because of their decision to engage or not engage in certain industrial activities. Where an employee succeeds in such a claim, penalties may be imposed on the employer and any person involved in the adverse action.
Trade unions have a right to enter premises on 24 hours’ notice to hold discussions with employees during authorised breaks or to investigate suspected breaches of industrial instruments. An employer and union can agree on the location within an employer’s premises where a union may meet with the employees. In the absence of any agreement, the employee lunchroom is the default location for such meetings to take place.
In negotiations for an enterprise agreement, employers must bargain in good faith with bargaining representatives of employees, which can include a trade union. Where a union wants to bargain for an enterprise agreement, but the employer does not want to bargain, the union may make application to the FWC for a majority support determination. If a majority of the employees support the union’s involvement, the employer must recognise and bargain in good faith with the union.
Employees’ Right To Strike
There is no general right for employees to strike. However, certain immunities will be granted in respect of taking “protected industrial action”. Action may be protected industrial action if it is taken during enterprise bargaining negotiations. For industrial action to be protected, it must be taken after the nominal expiry date of an enterprise agreement has passed, and conducted strictly in accordance with statutory requirements, which include obtaining an order from the FWC to conduct a ballot beforehand and providing the employer with notice of the actual industrial action to be taken at least 3 working days before the action commences.
Employees On Strike
Employers can dismiss employees if they engage in industrial action that is not “protected industrial action”, but employers must not dismiss employees on such grounds where the action is “protected”.
There are strict limitations with respect to what employees may be paid during periods of industrial action.
Employers’ Responsibility For Actions Of Their Employees
Employers are generally responsible for the acts of their employees, except where an employee is acting wholly outside the course of his or her employment. In some circumstances, an employer may avoid vicarious liability for the actions of its employees if it can prove, on the balance of probabilities, that it took reasonable precautions to prevent certain conduct occurring.