Australia Labor Management QA
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The Manager of Global Payroll Services
Ms. Kerry Chen, USA Graduate School Alumni & a well-English speaker
LRC – Australia Labor Regulations
What must be included in the contents of a labor contract in Australia?
According to Fair Work Act 2009 (Cth), No.28, SS87-94, 124.
There are a number of implied requirements in an employment contract even where they are not specified.
- the employer’s duty to give reasonable notice of termination
- the employer and employee’s responsibility to act in good faith during the employment relationship
- the employee’s duty not to dispose confidential information
- the employee’s duty to diligently carry out work responsibilities and
- the employee’s duty to follow all lawful instructions
Employers have to give every new employee a copy of the Fair Work Information Statement before, or as soon as possible after, they start their new job.
The statement provides new employees with information about their conditions of employment, including:
- the National Employment Standards
- right to request flexible working arrangements
- modern awards
- making agreements under the Fair Work Act
- individual flexibility arrangements
- freedom of association and workplace rights (general protections)
- termination of employment
- right of entry
- the role of the Fair Work Ombudsman and the Fair Work Commission
Does Australia arrange labor contract in fixed term?
What should be the length of the labor contract in Australia?
Employment contracts may provide for indefinite term or for a fixed or maximum term of employment.
Maximum term states on when the professional can complete the work and guarantees that it does not go any further than this.
The exact length of a fixed-term contract can vary, from a few weeks to 12 months or more.
What is the minimum age for hiring new employee in Australia?
Each state or territory has its own standards for the minimum age at which employees can begin working.
For example, In Victoria, the average minimum working age is 15. If you’re 11 or 12, you can only work as delivery work.
If you’re 13 or 14, you can only work in retail or a food business.
However, there are no minimum age restrictions in New South Wales.
Is it a requirement for employer in Australia to conduct a pre-employment background check?
According to Privacy Act 1988, No. 119.
Background checks are generally permissible if they are directly relevant to the role and the applicant consents to the check.
However, equal employment opportunity legislation can make it unlawful for employers to probe for certain types of information and the Privacy Act 1988 imposes strict rules on how personal information can be handled.
Criminal record checks also are subject to laws regulating how recent the criminal record information must be to be considered in hiring.
Is the Non-Competition indemnity clause in labor contract in Australia has legal effect?
Covenants not to compete can be written into an employment contract when the employee’s work is particularly confidential or if the employee could cause trade harm to the company if he or she were to work for a competitor.
Covenants not to compete must protect legitimate business interests and be reasonable in whom they apply to, what they restrict, and how long they apply.
If reasonable and properly constructed, a covenant not to compete can be enforced by injunction or through an award of damages for harm to the employer’s business.
What are the regulations on Gender Discrimination in employment specifically for female workers in Australia?
According to Sex Discrimination Act 1984, No. 4.
The federal Sex Discrimination Act, as well as state statutes, prohibits discrimination based on a person’s gender in all areas of employment.
The Sex Discrimination Act also prohibits discrimination against employees, commission agents or contractors because they are pregnant, may become pregnant in the future or are breast-feeding.
Employment agencies, partnerships and qualifying bodies are also prohibited from such discrimination against those seeking their services.
It is also unlawful for potential employers to question applicants about current or future pregnancies or for an employer to inappropriately use medical information collected from pregnant women (such information can only be used for appropriate purposes, such as occupational health and safety reasons).
Can the employer in Australia collect, or process data transmitted by employees over the internet?
According to Privacy Act 1998, No.119, S7B, and Australian Privacy Principles Guidelines.
The Privacy Act 1988, Australia’s federal privacy law, does not cover surveillance in the workplace, but some states and territories have enacted laws that do, such as the New South Wales Workplace Surveillance Act 2005.
This law requires that employees be given advance written notice of various forms of surveillance and that employers develop a workplace policy before using computer surveillance to monitor email or Internet use or blocking the delivery of emails or access to Internet sites.
Nationally, the Australian Office of the Privacy Commissioner has issued guidelines on workplace surveillance, noting that employers have the right to monitor and restrict the use of email and Internet access and suggesting that employers develop workplace policies regarding the use of such systems.
What are the regulations on working hours in Australia?
According to Fair Work Act 2009 (Cth), No. 28, SS 62-65.
The standard workweek is 38 hours, the standard workday 7.6 hours.
Employers and employees may agree in writing to an averaging arrangement to average their ordinary hours of work.
However, the maximum averaging period is 26 weeks.
Employers cannot force employees to average their hours of work.
What are the regulations on overtime hours in Australia?
What is the overtime premium rate in Australia?
According to Fair Work Act 2009 (Cth), No. 28, SS 62.
There are no federal or state laws setting a standard for overtime pay rates, which are established in collective bargaining agreements.
Overtime is working more than 38 hours in a week or outside the ordinary hours listed in the agreement.
In common practice, the overtime rate for Monday to Saturday is paid one and a half times for the first three hours of overtime and double time thereafter.
Is it common to pay 13th month’s salary in Australia?
Although not required by law, performance-based bonus schemes are common in collective bargaining agreements.
What are the regulations on general leave policy for employee in Australia?
According to Fair Work Act 2009 (Cth), No. 28, SS 87-94.
Full-time employees are entitled to 4 weeks of paid annual leave each year.
There is no qualifying period that must be met to be eligible for annual leave benefits.
Leave accrues progressively during the year and can be accumulated from year to year.
What are the public holidays in Australia?
What is the overtime premium rate during public holiday in Australia?
According to Fair Work Act 2009 (Cth), No. 28, SS 114-116.
The Fair Work Act specifies 8 public holidays, but states or territories can add to these or substitute others in their places.
* Jan 1: New Year’s Day
* Jan 26: Australia Day
* Good Friday
* Easter Monday
* April 25: Anzac Day
* Queen’s Birthday: different dates in various parts of the country
* Dec 25: Christmas Day
* Dec 26: Boxing Day
The usual rate for Sundays and public holidays is double time or double time and one-half.
What are the maternity leave policy for female employee in Australia?
According to Fair Work Act 2009 (Cth), No. 28, SS 67-85.
There is no specific statutory requirement for maternity leave, but eligible employed parents are entitled to 18 weeks of paid parental leave.
Many Australian employers provide paid parental leave on a voluntary basis through an employment contract, an enterprise agreement, or a workplace policy.
- Prenatal leave: A pregnant employee may begin her leave up to 6 weeks before the expected birth of her child.
- Special maternity leave: Special maternity leave can be taken by a female employee for a pregnancy-related illness, to recover from a miscarriage that occurs up to 28 weeks before the expected date of birth or in the event of a stillbirth.
What are the paternity leave policy for male employee in Australia?
According to Fair Work Act 2009 (Cth), No. 28, SS 67-85.
There is no specific statutory requirement for paternity leave, but the father is eligible to take 18 weeks of parental leave paid at the national minimum wage under the Paid Parental Leave program.
What are the provisions on sick leave, bereavement leave and personal leave for employees in Australia?
According to Fair Work Act 2009 (Cth), No. 28, SS 95-107.
“Personal leave” is the term used in Australia for sick leave.
“Carer’s leave” is time off to provide care and support for an immediate family or household member.
Employees get 10 days of paid personal/carer’s leave each year.
Employees are entitled to 2 days of compassionate leave when an immediate family or household member dies or suffers a life-threatening illness or injury.
What are the regulations on pension benefits and social security insurance benefits for employee in Australia?
According to Social Security Act 1991, No. 46, SS 94-120, 266-272.
The legal retirement age in Australia increased to 65.5 years on July 1, 2017 and will rise by 6 months every 2 years until it reaches 67 on July 1, 2023.
The Age Pension is governed by the Social Security Act 1991 and administered by Centrelink, part of the Department of Human Services.
Employees at retirement age can qualify for a lump-sum pension bonus by continuing to work at least 960 hours a year and can stay in this program for up to 5 years or to age 75.
People over 16 years of age but not old enough to qualify for an old-age pension who—because of illness, injury, or disability—are unable to work more than 15 hours a week or retrain for another job over a two-year period are eligible for the disability support pension.
The program is means-tested, so benefits can be affected by income and/or assets.
Workers aged 22 or over who—because of illness, injury, or disability—are temporarily unable to work and have a job to return to are eligible for this means-tested program.
What are the regulations on Workers’ Compensation for employee in Australia?
Employers are required to maintain insurance for the compensation of injury, disease, impairment, or death suffered by employees in the course of their duties.
Each of the 8 Australian states and territories has developed its own workers’ compensation scheme and there are three commonwealth schemes.
Can the employee in Australia join labor union?
According to Fair Work Act 2009 (Cth), No. 28, S 340.
The Fair Work Act gives employees, employers, and independent contractors the right to join industrial associations such as trade unions and employer associations.
The act also protects the right of employees and employers to take industrial action, such as a strike or a lockout, but limits the timing, reasons, and scope of these actions.
Fair Work Australia is the federal tribunal for labor disputes. Courts may also impose damage awards or penalties.
How to handle labor dispute in Australia?
According to Fair Work Act 2009 (Cth), No. 28, S 526.
Fair Work Australia is the federal tribunal for labor disputes.
Modern awards and enterprise agreements must include dispute resolution procedures, and employers and employees are required to try settling disputes through those processes.
If dispute resolution fails, certain disputes—such as those involving employment conditions, collective bargaining, dismissal, and stand downs—can be taken to a tribunal.
Awards and agreements can also include provisions that allow the FWA to get involved in various disputes.
What are the regulations on workplace safety and health for employee in Australia?
According to Work Health and Safety Act 2011, No. 137.
The Work Health and Safety Act 2011 requires each state and territorial government to enact laws based on model workplace health-and-safety legislation.
The WHS Act includes several key elements:
- a primary duty of care requiring employers, as far as reasonably practicable, to ensure the health and safety of workers
- duties of care for persons who influence how the work is carried out and the integrity of the products used
- a requirement that “due diligence” be exercised to ensure compliance
- reporting requirements for “notifiable incidents,” such as serious illness, injury, or death of workers
- a framework for licenses, permits, and registrations
- provisions requiring consultation on health and safety issues
- discrimination protections for those who seek to exercise rights under the bill
- an entry permit scheme that allows permit holders to consult with workers and investigate suspected violations of health and safety laws affecting workers who are members or eligible to be members of the relevant union and whose interests the union is entitled to represent
- enforcement and compliance provisions, including a compliance role for workplace health-and-safety inspectors
- regulation-making authority and mechanisms for improving cross-jurisdictional cooperation.
What are the circumstances that an employer can terminate an employee in Australia?
According to Fair Work Act 2009 (Cth), SS 118-122, 380-400.
An employee is guilty of gross or serious misconduct.
The Fair Work Commission may consider an employee has been unfairly dismissed if:
- The person was dismissed
- The dismissal was harsh, unjust, or unreasonable
- The dismissal was not a case of genuine redundancy
- The employee worked for a small business and the dismissal was not done according to the Small Business Fair Dismissal Code.
Circumstances that termination will be considered “unlawful” when it is based on:
- temporary absence from work due to illness or injury
- reasonable temporary absence from work due to participation in voluntary emergency management activities
- trade union membership or participation in lawful union activities
- non-membership in a trade union
- seeking office as or acting in the capacity of an employee representative
- absence from work during maternity or other parental leave
- discrimination based on race, color, sex, sexual orientation, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction, or social origin
- filing a complaint or participating in a proceeding against an employer involving an alleged violation of labor laws or regulations.
What is the notification period for terminating an employee in Australia?
How much is the severance pay?
According to Fair Work Act 2009 (Cth), SS 114-117.
By law, the minimum notice requirements are:
|Years of service||Notice period|
|Less than 1 year||At least 1 week|
|1 year to less than 3 years||At least 2 weeks|
|3 years to less than 5 years||At least 3 weeks|
|5 years and above||At least 4 weeks|
The period of notice is increased by 1 week if the employee is older than age 45 and has completed at least 2 years’ continuous service with the employer.
If the employer chooses to pay the employee instead of giving notice, it must pay the amount the worker would have earned had he or she worked until the end of the notification period.
Notice or payment in lieu of notice is not required in cases of termination because of serious misconduct.
|Employee’s period of continuous service with the employer on dismissal||Severance pay period|
|At least 1 year but less than 2 years||4 weeks|
|At least 2 years but less than 3 years||6 weeks|
|At least 3 years but less than 4 years||7 weeks|
|At least 4 years but less than 5 years||8 weeks|
|At least 5 years but less than 6 years||10 weeks|
|At least 6 years but less than 7 years||11 weeks|
|At least 7 years but less than 8 years||13 weeks|
|At least 8 years but less than 9 years||14 weeks|
|At least 9 years but less than 10 years||16 weeks|
|At least 10 years||12 weeks|
Employees are not entitled to severance pay if their period of employment was less than 12 months or the company employs fewer than 15 employees.
What is the reporting requirement for employer in Australia to notify the termination of employees to the competent authority?
An employer is required to complete and return the form namely Employment Separation Certificate, to the former employee or Centrelink within 14 days of receiving it.
What are the regulations on mass layoffs in Australia?
According to Fair Work Act 2009 (Cth), SS 530-534.
Provided that a redundancy decision is made in good faith, dismissals made for this reason are legal.
An employee’s dismissal is a genuine redundancy if:
- the employer no longer requires the person’s job to be done by anyone because of changes in the operational requirements of the employer’s enterprise
- the employer complied with any obligation in an applicable workplace instrument (e.g. award or agreement) to consult about the redundancy
- there was no reasonable opportunity for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.
An employer that plans a mass dismissal must also provide notice to Centrelink.
The notice must consist of the reasons for the planned terminations, the number, and categories of employees likely to be affected and the date or time period over which the employer intends to carry out the terminations.
If an employer does not satisfy its obligations to inform or consult with the trade unions, an affected employee or trade union representative may apply to Fair Work Australia for relief. Employers that do not notify Centrelink may be subject to court action.
What is the time limit for employers in Australia to pay employees upon termination?
According to Payment on Termination of Employment Clause – AM2016/8.
Under the clause, covered employers must pay an employee no later than 7 days after the day on which the employee’s employment terminates.
Contact us by WeChat or Skype or WhatsApp in the day-work-time of Taiwan (GMT+8)
The Manager of Global Payroll Services
Ms. Kerry Chen, USA Graduate School Alumni & a well-English speaker
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