As an employee in Australia, you have certain rights and responsibilities. These may be set out in an employment contract, an Award, an Enterprise Agreement, or in the Fair Work Act 2009 (Cth). The Fair Work Commission and the Fair Work Ombudsman oversee the practical application of the Fair Work Act 2009 (Cth) and the other sources of your rights as an employee.
Awards are made by the Fair Work Commission and set out the minimum terms and conditions that apply to a certain group of employees, such as all workers in a particular industry. The Fair Work Ombudsman can help you find the Award that might apply to you.
Enterprise Agreements are documents that apply to a particular workplace and are agreed upon by the employees of that workplace and the employer. An employee covered by an Enterprise Agreement will not also be covered by an Award. The Fair Work Commission can assist with disputes arising under the terms of an Enterprise Agreement.
Employment contracts are made between an employee and an employer, and set out the terms and conditions of employment. An employment contract might be verbal or written.
The National Employment Standards
The National Employment Standards are 11 minimum standards of employment that apply to all employees in Australia. These are contained in the Fair Work Act 2009 (Cth). Employment contracts, Awards and Enterprise Agreements are all subject to the National Employment Standards, which means they cannot take away any of your rights under the National Employment Standards.
The National Employment Standards cover:
1. Fair Work Information Statement
When you first start your job, your employer should give you a copy of the Fair Work Information Statement. This informs you of your rights as a worker.
2. Maximum weekly hours
You can only be asked to work 38 hours each week, unless the additional hours are reasonable.
3. Requests for flexible working arrangements
Certain employees, including:
• parents or carers of a child of school age or younger;
• those who have a disability;
• are over 55 years of age; or
• are experiencing family or domestic violence
may be able to request a change in working arrangements (e.g. hours of work, location of work, pattern of work).
4. Parental leave and related entitlements
You are eligible to receive 12 months parental or adoption leave if you have worked for your employer full-time for at least 12 months before you give birth or adopt a child. Casual employees who have been employed on a regular and systematic basis for at least 12 months and have a reasonable expectation of that work continuing may also be eligible for parental or adoption leave.
5. Annual leave
You are entitled to receive at least 4 weeks of paid annual leave each year if you work full time. Part-time employees are also entitled to an amount of annual leave, depending on their base hours. Casual employees are not entitled to annual leave.
6. Personal/carer’s leave; compassionate leave; and domestic violence leave
Full-time and part-time employees are entitled to receive a limited amount of paid leave for personal or carer reasons, for example if they are sick or injured, or someone in their household is. Casual employees are not entitled to personal or carers leave. All employees are entitled to two days compassionate leave if someone in their immediate family or household dies or gets very sick or injured.
7. Community service leave
If you participate in certain community service activities, for example voluntary fire fighting, you may be entitled to unpaid leave whilst undertaking the activities.
8. Long service leave
If you have worked for the same employer for a number of years, you may be entitled to long service leave. How much long service leave you are entitled to depends on whether you are covered by an Award, an Enterprise Agreement or the Long Service Leave Act (1981) NT.
9. Public holidays
You are not required to work on a public holiday, except where your employer asks you to and their request is reasonable. If you are a permanent employee and a public holiday falls on one of your usual workdays, you should get paid even if you do not go to work.
10. Notice of termination and redundancy pay
If your employer wants to end your employment, they need to inform you in writing and specify your last day of employment. If you are a casual employee or you are asked to leave because you have engaged in serious misconduct in the workplace, your employer does not need to tell you in writing.
You may be entitled to redundancy pay where your employment was terminated because:
• your employer went bankrupt or became insolvent; or
• your employer no longer required the job you do to be done by anyone.
If your employer goes bankrupt or insolvent and you lose your job as a result, you may be eligible to receive financial assistance under the Fair Entitlements Guarantee scheme.
11. Offers and requests to convert from casual to permanent employment
If you are a casual employee who has worked for your employer for one year, your employer must offer you the option, if you meet the eligibility requirements, to convert to full time or part time employment.
What if my employer is not complying with an NES standard?
1. Contact The Fair Work Ombudsman for information and resources to help you find out if your employer is not complying with a NES standard.
2. Try to resolve the workplace issue yourself by talking to your employer.
3. Consider seeking legal advice.
4. Lodge a complaint through the Fair Work Ombudsman within 6 years of the issue occurring.
© Darwin Community Legal Service 2022: Non-profit community groups have permission to reproduce parts of this publication as long as the original meaning is retained, and proper credit is given to DCLS as the publisher.
Disclaimer: The information contained in this publication is a guide to the law in the Northern Territory. It is not a substitute for legal advice. You should talk to a lawyer about your particular legal issue. The information contained in this factsheet is current as of January 2022