Employment law forms one of the cornerstones of Australian workplaces. With a diverse workforce and a sturdy legal framework, the country is regarded as a budding place for small businesses and employers. There is legislation that applies to all national system employers across Australia – in other words, to most employers in Australia. This is regardless of territory, states, business model or industry. As an employer, you must comply with all aspects of Australian employment law and ensure your employees can work comfortably in a safe and secure environment – free of bullying, discrimination, and harassment. This forms part of an employer’s primary duty of care for their employees and their responsibility to uphold health and safety standards. These laws are created to protect the rights of the employees and build safe and fair workplaces for all.
The main sources of employment law in Australia are legislation (federal, state, and territory laws); industrial instruments; and the common law.
The importance of workplace legislation
The objective of this legislation is to place responsibility on the employer to ensure that their employees are treated fairly and are receiving the minimum employment rights and entitlements for the industry they work in and the job they do within that industry – including minimum pay, leave entitlements, redundancy, periods of notice for termination, and more.
It is necessary to know what workplace relations system covers your business and your employees, to determine what legislation applies. If the national workplace relations system applies, your business may be covered by an industrial instrument such as a modern award, enterprise agreement, or other registered agreement that sets out additional minimum employment conditions that apply to a particular industry or occupation above and beyond the National Employment Standards. The National Employment Standards (NES) acts a safety net for minimum entitlements of national system employees.
Employment law by state
The size of the Australian country adds to its complexity and legal nuances. Employment law does tend to differ by state in Australia. While The Fair Work Act 2009 is the primary federal legislation and applies to all employees in Australia, each state has laws that supplement and modify it. For example, Western Australia maintains its own state-based workplace relations system that partially covers the private sector in that state.
Here is a list of some of the most important workplace relations legislation that governs industrial relations and employment relationships in Australia:
Fair Work Act 2009
The Fair Work Act 2009 is arguably the most important piece of employment law in Australia. It provides the minimum terms and conditions for most employees in Australia that are covered by the national workplace relations system. The National Employment Standards (NES), contained in the Fair Work Act 2009 set out 12 minimum entitlements that apply to most employees in the private sector.
However, it is not the only piece of workplace relations legislation in Australia, as it is supplemented by other federal, state and territory laws, nor does it apply to every workplace in Australia.
The purpose of this act is to establish the parameters of the employment relationship between an employer and an employee. The act provides a safety net of minimum entitlements such as a national minimum wage increase, and the National Employment Standards (the NES) with further employment conditions and entitlements set out in Modern Awards or enterprise or other registered agreements.
It enables flexible working arrangements, provides protection from unfair dismissal, and contains general protections provisions that ensure employees are treated fairly and protected from discrimination. The act also creates bodies that have administrative and enforcement roles within the national workplace relations system, for example the Fair Work Commission.
Under Australian employment law, the terms of the Fair Work Act 2009 apply to businesses of all types, sizes, and industries across Australia.
However, there are a few exemptions to this. For example, in Western Australia, the following types of business would not be covered by the Fair Work Act:
- Sole traders.
- Partnerships.
- Other unincorporated entities.
- Non-trading corporations.
State and Federal anti-discrimination laws
The Fair Work Act can help protect employees from discrimination. Still, even if an employee is no longer employed, multiple acts within Australia are aimed at helping protect people from discrimination and harassment that is relevant to employment. There is legislation at a federal level that protects people from race, sex, disability, and age discrimination. This is governed by the Australian Human Rights Commission.
In addition to the Federal laws, each state and territory has its own anti-discrimination and harassment legislation that protects employees, and prospective employees, in the workplace depending on the circumstances of the complaint. The purpose of this legislation is to protect employees against all forms of discrimination – including age, gender, marital status, race, religion, sexual orientation, and more.
Work Health And Safety Act 2011
This is a set of model Workplace Health and Safety (WHS) laws that need to be implemented by the Commonwealth and each state and territory to become legally binding. The model WHS laws have been implemented (with some individual modifications) in the Australian Capital Territory, New South Wales, the Northern Territory, Queensland, South Australia, Tasmania, and the Commonwealth, and was adopted by Western Australia in 2021.
The Model Act provides a framework to protect the health, safety, and welfare of all employees at work. It also protects the health and safety of other people associated with the workplace such as customers, visitors, and the public.
From allocating duties related to the management and control of risks, incident reporting, and consulting of workers, to enforcement through fines and penalties, this workplace health and safety legislation covers a wide range of employer obligations, which are aimed at the safety, security, and comfort of employees. The act has a specific provision relating to workplace bullying. Workplace bullying is considered a risk to health and safety because it may affect the mental and physical health of workers.
Disability Discrimination Act 1992
The Disability Discrimination Act is designed to protect everyone, including employees from discrimination based on their disability, and so it is part of employment law in Australia.
Under this act, it is illegal to treat an employee less fairly because they have a disability. This also extends to employees who have relatives, friends, co-workers, or associates of a person with a disability.
What the act considers to be a ‘disability’ applies to not only physical disorders but also intellectual, sensory, neurological, and psychiatric disorders as well.
For this reason, it is important to remember you cannot discriminate against candidates and new hires based on their disability, and that you must – as far as reasonably practicable– accommodate a disabled employee.
Other key employment laws in Australia
- Privacy Act 1988.
- Independent Contractors Act 2006.
- Corporations Act 2001.
- Fair Work Regulations 2009.
Employers’ rights in the workplace
As an employer, you have few rights other than to expect employees to carry out their duties to a reasonable standard, follow reasonable management directions, and abide by their contract and workplace policies and procedures. However, you have several obligations and responsibilities towards your employees under the Fair Work Act and other industrial relations legislation.
Some of the most important responsibilities to consider include:
- Provide a safe working environment.
- Protect all employees from bullying, discrimination, and sexual harassment.
- Provide employees with the correct pay and entitlements.
- Record-keeping obligations.
- Give all employees the necessary training, resources, and mentoring they need to work safely and efficiently.
- Inform all employees of their rights and responsibilities.
- Train employees on potential hazards and safety risks in the workplace.
- Meet first aid requirements.
- Report workplace incidents and injuries to Safe Work Australia.
- Supply protective clothing and equipment for employees and ensure they know how to use them correctly.
To stay informed of your responsibilities as an employer, seek advice from a workplace relations specialist. They can inform you about your current rights and update you on changes to legislation that may apply to your business.
The information in this guide has been compiled on the basis of general information current at the time of publication. To the maximum extent permitted by law, we disclaim all liability for any errors or omissions contained in this information or any failure to update or correct this information. It is your responsibility to assess and verify the accuracy, completeness, currency and reliability of the information on this website, and to seek professional advice where necessary. Nothing contained on this website is to be interpreted as a recommendation to use any product, process or formulation or any information on this website.
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