Employment Rights Under the Fair Work Act

What It Covers

The Fair Work Act 2009 (Cth) is the main law protecting Australian employees. It sets minimum entitlements and prevents unfair treatment at work. It applies to most Australian employees and employers.

Who it covers:

• Most private sector employees
• Most public sector employees
• Excludes: some agricultural workers, some domestic workers, some small business contractors

Your Key Minimum Entitlements

Minimum Wage

• The National Minimum Wage is set annually by Fair Work Commission
• Currently $23.23/hour (as of July 2024) — check Fair Work Ombudsman website for current rate
• Must be paid for all hours worked, including penalties and overtime

Hours of Work

• Maximum 38 hours per week for full-time employees
• Hours must be “reasonable”
• Employer must give notice of roster changes (typically 2 weeks)
• You can request flexible work arrangements (even if refused, request must be considered)

Paid Leave Entitlements

Annual Leave

• Minimum 4 weeks (20 days) per year for full-time employees
• Proportional for part-time workers
• Must take it or be paid out (upon termination)
• Can only refuse leave in exceptional circumstances

Sick Leave

• Minimum 10 days per year for full-time employees
• Can use for personal illness, injury, or care of immediate family
• Carries over to next year and accumulates
• Employer cannot refuse reasonable use

Parental Leave

• 12 months unpaid parental leave for eligible employees
• 2 weeks paid parental leave (from 2023)
• Must return to same job or comparable role

Long Service Leave

• Earned after 10 years continuous service
• Typically 8.67 weeks per 10 years
• Can be taken or cashed out upon termination
• Portability rules apply in some industries

Superannuation

• Employer must contribute minimum 11.5% of ordinary time earnings (as of 2023-24)
• Must be paid to complying superannuation fund
• Employer contributions are mandatory, not discretionary

Breaks and Rest Periods

• Entitled to breaks during work (meal breaks, short breaks)
• Breaks should be paid unless agreed otherwise
• Can’t be forced to work during rest periods

Protection from Unfair Dismissal

You have protection from unfair dismissal if:

• You have 6 months service (12 months if under 18 or small employer)
• You were dismissed without valid reason (fair reason must relate to conduct or capacity)
• The dismissal was procedurally unfair (not given fair warning or chance to respond)

Valid reasons for dismissal:

• Serious misconduct (theft, violence, gross negligence)
• Capacity issues (can’t do the job despite training)
• Redundancy (genuine business reason for position ending)
• Other reasons (not arbitrary, reasonable, and job-related)

Procedure for fair dismissal:

• Verbal warning first (unless serious misconduct)
• Written warning with details of expected improvement
• Opportunity to respond and improve
• Then final warning if no improvement
• Only then termination

If unfairly dismissed:

• Can apply to Fair Work Commission within 21 days
• May receive compensation (up to 6 months wages) or reinstatement
• Requires proving unfairness on balance of probabilities

Protection from Discrimination

Illegal to discriminate based on:

• Race, color, sex, sexual orientation, age, disability
• Religious belief or activity
• Marital or family status
• Pregnancy or breastfeeding
• National origin or social origin

What counts as discrimination:

• Not hiring someone based on protected attribute
• Treating someone worse due to protected attribute
• Sexual harassment
• Victimization for making complaint

Workplace Rights You Can’t Lose

These are “general protections” — you can’t be dismissed or discriminated against for:

• Claiming your legal rights (requesting minimum wage, taking leave)
• Reporting illegal activity
• Jury duty or court appearance
• Trade union membership or activity
• Temporary absence (jury duty, emergency service)
• Compassionate grounds

Changes to Your Employment

Redundancy:

• Employer must give notice (typically 2-4 weeks depending on service)
• May be entitled to redundancy payment (depends on award and agreement)
• Genuine redundancy (position ends for business reasons) is fair reason for dismissal

Stand down:

• Employer can temporarily suspend work without pay in limited circumstances
• Must be due to circumstances beyond employer’s control
• Not permanent and for temporary periods only
• Can’t be used to avoid payroll obligations

Change to conditions:

• Major changes should be discussed
• Unreasonable changes can be challenged
• If you disagree with changes, can lodge dispute with Fair Work Commission

Wages and Payments

What must be in writing:

• Hourly rate or salary
• Hours of work
• Leave entitlements
• Any deductions from pay

Deductions from pay:

• Can’t deduct for mistakes or damage unless employee negligent
• Can’t deduct more than necessary to cover actual loss
• Must be reasonable in amount
• Must be agreed in writing (except tax, court orders, union fees)

When wages must be paid:

• At least monthly (more frequently if agreed)
• On time and in full
• Can’t reduce pay as punishment

If There’s a Problem

Step 1: Try to resolve informally

• Talk to your manager or HR
• Explain the issue clearly
• Keep records of conversations

Step 2: Formal complaint

• Put concerns in writing (email is fine)
• Give employer chance to respond
• Keep copies of all correspondence

Step 3: Fair Work Commission

• File claim if not resolved
• Conciliation first (mediator tries to help parties agree)
• If no agreement, tribunal hearing
• Free service for most employment disputes

Step 4: Legal assistance

• Community legal centers offer free advice
• Some unions provide member support
• Lawyers can represent you if needed (cost varies)

When to Get Professional Help

Seek legal or Fair Work advice if:

• Unfairly dismissed or discriminated against
• Wages or entitlements not being paid
• Working excessive hours or unsafe conditions
• Facing retaliation for claiming rights
• Uncertain about award requirements or agreement
• Considering resignation due to workplace issues

Key Takeaway

The Fair Work Act provides baseline protections that apply to most Australian employees. These aren’t negotiable — your employer can’t ask you to waive them. If you’re treated unfairly, don’t assume it’s legal. Many employment disputes can be resolved quickly and cheaply through Fair Work conciliation.

Further Reading

• Fair Work Ombudsman: www.fairwork.gov.au (comprehensive guides, templates, checklist)
• Fair Work Commission: www.fwc.gov.au (dispute resolution, awards)
• Community Legal Centers: Find local free employment law advice
• Your Union: If member, provides legal support for employment disputes