Bentham Sydney Employment Lawyers

LEGAL DEFINITIONS FOR EMPLOYMENT LAW

Employment law can be difficult to understand, with its intricate terminology and procedures. At Bentham Sydney Employment Lawyers, we recognise that navigating these complexities is crucial for both employers and employees. Our comprehensive definitions page is designed to demystify key terms and concepts, providing clear and accessible explanations to support your understanding. Whether you are grappling with the nuances of workplace agreements, seeking clarity on legal rights, or involved in a dispute, this resource aims to equip you with the knowledge you need. For expert advice and tailored support through any employment law matter, don’t hesitate to reach out to our experienced team. We are here to guide you through every step with precision and care.

Abandonment Of Employment Principles

At Bentham Sydney Employment Lawyers, we regularly assist both employers and employees in navigating the complexities of employment law, particularly regarding Modern Awards. Modern Awards are a fundamental aspect of Australia’s industrial relations framework, setting out the minimum terms and conditions of employment for particular industries and occupations. Understanding how to read and apply a Modern Award is crucial for ensuring compliance with the Fair Work Act 2009 (Cth) and avoiding disputes in the workplace.

Modern Awards as Industrial Instruments

Modern Awards are just one type of industrial instrument used to regulate employment terms. Industrial instruments refer to legally binding documents that govern employment conditions for the employees they cover. These instruments can include Enterprise Agreements and Modern Awards, with the latter applying to a broad range of employees across industries. Given that Modern Awards apply to a significant portion of employers and employees, it is essential to understand their structure and practical application.

Industry vs. Occupation Awards

There are two primary types of Modern Awards: Industry Awards and Occupation Awards. As their names suggest, Industry Awards cover employees within specific industries, while Occupation Awards focus on particular occupations. It is important to note that an employee may be covered by an Occupation Award even if the majority of their colleagues are covered by an Industry Award. However, an individual employee can only be covered by one Award, making it essential to correctly identify the applicable Award for each worker.

Key Sections of a Modern Award

When interpreting a Modern Award, the following sections are critical:

1. Coverage: The coverage section outlines the types of employees covered by the Award. Employers should verify that the chosen Award is applicable to their employees, as some Awards explicitly exclude certain industries. For example, the Clerks – Private Sector Award 2010 does not apply to employees in 22 specific industries, as outlined in section 4.6.

2. Casual Employment: For employers engaging casual workers, the Casual Employment section stipulates important details such as casual loading rates, minimum shift hours, and conditions under which exceptions may apply. Employers must ensure that casual employees are paid in compliance with these terms.

3. Minimum Weekly Wages: The Minimum Weekly Wages section is often the most referenced part of a Modern Award. It specifies the minimum hourly or weekly rates for various classification levels, which depend on the employee’s experience, duties, and responsibilities.

4. Classifications: Understanding the classification section is essential, as it defines the duties, skills, and responsibilities associated with each level of employment. This helps employers determine the correct wage rate for each employee.

5. Allowances: The Allowances section covers additional payments employees are entitled to for specific duties, such as first aid responsibilities, travel, tools, and higher duties. Employers must account for these allowances in addition to base wages.

6. Overtime and Penalty Rates: Employers are legally required to pay employees penalty rates for working outside ordinary hours, as outlined in the Overtime and Penalty Rates section. Failure to adhere to this can result in significant underpayment claims.

7. Superannuation: Each Award may have different superannuation thresholds, and employers must ensure they meet these obligations. For instance, the Restaurant Industry Award 2010 sets a lower threshold of $350 for superannuation contributions, unlike the general $450 threshold.

8. Practical Interpretation of Modern Awards: When reading a Modern Award, the starting point is to look at the natural and ordinary meaning of the words used. If the language is clear, the Award should be interpreted based on its plain meaning. However, where ambiguity arises, it is important to consider the intent of those who drafted the Award, the industrial context in which the Award operates, and its overall purpose.

Courts will not interpret a Modern Award in a vacuum or divorced from industrial realities. Instead, they will examine the context in which the Award was created, as well as its broader application across the workplace. It is also necessary to consider the Acts Interpretation Act 1901, which allows courts to reference extrinsic materials to confirm the ordinary meaning of a provision within an Award.

Ensuring Compliance with Modern Awards

At Bentham Sydney Employment Lawyers, we advise employers to regularly review the Modern Awards applicable to their workforce to ensure compliance with all legal requirements. Ignorance of Award terms can lead to costly legal disputes, including underpayment claims and breaches of the Fair Work Act. For employees, understanding the terms of a Modern Award can help protect your rights and entitlements in the workplace.

If you need assistance interpreting or applying a Modern Award, or if you have concerns about potential breaches, contact Bentham Sydney Employment Lawyers. Our expert team of employment lawyers is ready to assist you in navigating this complex area of law, ensuring your rights and obligations are upheld.

About us

At Bentham Sydney Employment Lawyers, we make it our mission to uphold the integrity of Australia's workplace landscape. Our dedicated team strives to ensure that every workplace is a safe and just environment for all. Let our passion for employment law guide you towards a brighter future.

Trust the experts at Bentham Sydney Employment Lawyers to navigate the complexities of workplace laws with precision and care. Your peace of mind is our priority, and together, we can build a stronger, fairer workplace for everyone.

Got Questions?

What constitutes unfair dismissal in Australia?

Unfair dismissal occurs when an employee is terminated in a manner that is harsh, unjust, or unreasonable, or if the dismissal was not a case of genuine redundancy. This includes situations where proper procedures were not followed or where there is no valid reason for termination. Bentham Sydney Employment Lawyers can assist both employees and employers in understanding their rights and obligations under the Fair Work Act and provide guidance on unfair dismissal claims.

Can an employer enforce post-employment restraints?

Yes, employers can enforce post-employment restraints such as non-compete or non-solicitation clauses, but only if the restraint is considered reasonable. This involves the restraint being appropriate in scope, time, and geographical location. Employees and employers should seek advice from Bentham Sydney Employment Lawyers to determine whether such restraints are enforceable under the circumstances.

What rights do employees have when requesting flexible working arrangements?

Under the Fair Work Act 2009 (Cth), eligible employees have the right to request flexible working arrangements, such as changes to working hours or locations, especially if they are parents, carers, or have certain disabilities. Employers must genuinely consider these requests but can refuse them on reasonable business grounds. Bentham Sydney Employment Lawyers can help navigate these requests and ensure compliance with legal obligations.

How should employers handle workplace bullying complaints?

Employers are legally required to provide a safe working environment, which includes addressing workplace bullying complaints promptly and fairly. Failing to do so can lead to legal action and reputational damage. Bentham Sydney Employment Lawyers can guide employers through effective investigation and resolution processes, ensuring compliance with workplace laws.

What options does an employee have if they believe they have been subjected to adverse action?

Adverse action occurs when an employee is treated unfavorably due to exercising a workplace right, such as making a complaint or inquiry about their employment. Employees can file a general protections claim under the Fair Work Act. For legal advice and representation on adverse action matters, it’s crucial to consult Bentham Sydney Employment Lawyers.

Are employers required to provide redundancy pay to all terminated employees?

Not all employees are entitled to redundancy pay. Small businesses (with fewer than 15 employees) may be exempt, and redundancy pay is generally not required if the termination is due to serious misconduct. Employees and employers should clarify their entitlements and obligations by seeking advice from Bentham Sydney Employment Lawyers to avoid costly disputes.

LEGAL DEFINITIONS FOR EMPLOYMENT LAW

Access Period

An access period is part of the process to make or change an agreement. It must happen at the right time in the process. The employer must give employees specific information (or access to it) about the agreement and the voting process.

Adjourn

To adjourn an event, or to have an adjournment, means: 1. To move a conciliation, hearing, or conference to another time and place 2. To delay it without setting a new date.

Affidavit

An affidavit is a document that may be evidence in a legal case. When a person makes an affidavit, they swear or affirm that the facts in their statement are true. They must do this in front of someone with the authority to witness the person signing the document.

Aggrieved

In the appeal process, an aggrieved person (or organisation) may apply to appeal. Aggrieved means they believe:1. The original decision affected their legal interests or rights2. They have a specific interest, for example, because they are a union or employer association.

Aggrieved Person

An aggrieved person is a person who alleges that they have been sexually harassed in connection with work.

Allege

A person may say or allege that another person has done something. When they allege (or make an allegation) that their claim is true, they do this without providing proof.

Annual Wage Review

The annual wage review is the process to review and set minimum wages for employees in the national system. The process includes research, submissions, and consultations.

Appeal

A person can ask the Commission to review the decision of a single Member in a case. To do this, they ask for permission to appeal. The Fair Work Act has rules about why someone can appeal a decision.

Appellant

The appellant is the person who asks for permission to appeal a decision. They are usually the person who was the applicant or the respondent in the original case.

Applicant

An applicant is the person who starts a case by applying to the Commission or Court.

Apprentice

An apprentice is a person who is learning a trade skill while they work in the trade. Usually, but not always, they are a young person. For example, they may learn to build while they do a building apprenticeship.

Apprenticeship

An apprenticeship is a formal program where an apprentice learns a trade or skill on the job while being employed.

Arbitration

Arbitration is a formal process. Usually in arbitration, the Commission hears from witnesses and considers evidence. Then it makes a final decision.

Ballot Agent

Before employees can take industrial action, they must vote in a ballot. They name a ballot agent to organise the vote. Usually, the ballot agent is the Australian Electoral Commission.

Bargaining in Good Faith

Bargaining ‘in good faith’ means the people involved (bargaining representatives) follow the steps to make sure the process is fair and efficient.

Bargaining Order

The Fair Work Commission may issue a bargaining order to make the agreement process fair and efficient. A person can apply for an order if a bargaining representative is not following the rules.

Bargaining Representative

A bargaining representative is any person that an employer or employee nominates when they make or vary an agreement. They can be an employer or an employee, or a union or industrial association.

Better Off Overall Test (BOOT)

Better off overall test which is used to determine whether employees are better off overall under an enterprise agreement or individual flexibility arrangement in comparison with entitlements under a Modern Award or the Fair Work Act 2009 (Cth).

Carer

A carer is someone who provides care, support, and assistance for a person who has a disability, a medical condition (including a terminal or chronic illness), a mental illness, or is frail and aged.

Casual Loading

Casual loading is an amount casual employees receive on top of the base rate of pay. This is to make up for the benefits they do not receive, such as paid annual and sick leave. The casual loading is 25% in most modern awards.

Clear Day

When determining a timeline, only count whole days. A day is not a clear day if a relevant act or event starts or ends on that day (such as distributing information materials).

Collective Agreement

The name of enterprise agreements has changed over time, as the law has changed. ‘Collective agreement’ is one example of an agreement made before the Fair Work Act 2009 (Cth).

Commission Member

Compensation

Compensation is money an Applicant may receive if they suffer a financial loss (such as lost wages). The person whose action caused the loss (such as employer if they fire an employee) pays the compensation.

Compensation Cap

The compensation cap is the most the Commission can order an employer to pay in an unfair dismissal case. The cap changes on 1 July each year and is set by the Fair Work Regulations.

Conciliation

A conciliation is a confidential and informal discussion between two sides in a case. They discuss issues and options ('conciliate') with help from a Commission employee or Member. They may reach an agreement or settlement without needing a formal hearing.

Conciliator

A conciliator is an independent person who helps two sides in a dispute reach an agreement. They discuss the issues and options in an informal and confidential conciliation.

Conference

A conference is a legal meeting, run by a Commission Member. This type of meeting is usually private so the general public is not allowed to watch.

Constitutional Corporation

An employer is a constitutional corporation if the business is:1. A financial corporation formed in Australia2. A trading corporation formed in Australia3. A foreign corporation (a corporation incorporated outside Australia) that does business in Australia.

Court

In a court (such as the Federal Court or Federal Circuit Court), judges make decisions based on the law and facts of a case. The Fair Work Commission is a tribunal. It also makes decisions people must follow but is less formal than a court.

Digital Labour Platform

‘Digital labour platform’ is defined at section 15L of the Fair Work Act 2009 (Cth). Generally speaking, a digital labour platform is a website, system, or application that uses the internet to arrange, allocate, or facilitate work performed by independent contractors.

Digital Labour Platform Operator

The operator of a digital labour platform, being an operator that enters into or facilitates a services contract under which work is performed by employee-like workers.

Decision

At the end of a case, one or more Commission Members can issue a decision. This is the judgement, based on the facts, evidence, and laws. The decision usually includes the names of the people involved and explains the reasons for the decision.

Duty of Fairness

The duty of fairness means the Fair Work Commission must provide an impartial service. This includes following principles of natural justice when making decisions.

Discontinue

When you discontinue a legal case, you are formally stopping it ('withdrawing'). This action is a discontinuance. Your case ends when you discontinue it.

Determination

A determination is another term for an order. This is a formal ruling by a Commission Member after they hear a case. A determination often sets out what has to happen, by law, after a decision is made.

Directions

The Commission may give directions to parties involved in a case. These are instructions about the documents they need to provide. For example:1. What the documents must contain2. Who must receive the documents3. The deadline to give a copy to us or someone else.

Document

A document is anything that provides information. This includes a:1. letter2. contract3. form4. notice5. written or printed material.

Employee

An employee is a person employed by an employer under an employment contract. They receive wages or a salary in exchange for their work.

Employee-like Worker

An employee-like worker is a person who works in a manner similar to an employee but is classified as an independent contractor. They may work for one business and follow similar patterns as employees, such as having regular hours and tasks.

To adjourn an event, or to have an adjournment, means:

1. To move a conciliation, hearing, or conference to another time and place
2. To delay it without setting a new date.

In the appeal process, an aggrieved person (or organisation) may apply to appeal. Aggrieved means they believe:
1. The original decision affected their legal interests or rights
2. They have a specific interest, for example, because they are a union or employer association.

An employer is a constitutional corporation if the business is:

1. A financial corporation formed in Australia
2. A trading corporation formed in Australia
3. A foreign corporation (a corporation incorporated outside Australia) that does business in Australia.

The Commission may give directions to parties involved in a case. These are instructions about the documents they need to provide. For example:
1. What the documents must contain
2. Who must receive the documents
3. The deadline to give a copy to us or someone else.

A document is anything that provides information. This includes a:
1. letter
2. contract
3. form
4. notice
5. written or printed material.