Comprehensive Report: Employment Law and Employee Rights in NSW

This report provides a comprehensive overview of employment law in New South Wales, Australia. It details the framework of workplace rights, emphasizing the importance of agreements, awards, and legislation, with a focus on the Fair Work Act 2009. The report outlines employee entitlements, including the National Employment Standards (NES) covering areas such as working hours, leave, and pay. It examines the rights of employees regarding fair pay, allowances, and deductions, along with the legal considerations of unpaid work. The report also explores the procedures for employment termination, including required notice periods and redundancy payments. Furthermore, it analyzes the Fair Work Act 2009, its provisions, and its impact on workplace relations, addressing criticisms and limitations. The report includes a reference list of relevant legal and academic sources, providing a thorough analysis of the current employment law landscape in NSW.

Running head: EMPLOYMENT LAW
Employment Law
Name of the Student
Name of the University
Author Note

1EMPLOYMENT LAW
Workplace rights in New South Wales
An employee may be employed under either an agreement or an award. The minimum
working conditions at work may be stipulated in registered agreements, legislation or awards. In
case a business has registered agreement, which includes the work carried out by the employee
of the organization, the minimum pay and conditions in the award shall become applicable1. In
the event there is no such registered agreement that is applicable to the business and an award
covers the business as well as the work carried out by the employees, the minimum pay and
conditions in the award shall become applicable. In the absence of any agreement or award, the
minimum conditions and pay stipulated in the legislations shall become applicable2.
The Fair Work Act 2009 is the statute that regulates the workplace rights and obligations
in Australia3. It sets out terms and conditions of employment and the obligations and tights of the
employer and the employees in an organization
Employee Entitlements
The minimum entitlement of an employee is stipulated in the National Employment
Standards (NES) and in the awards4. An employment contract or a registered agreement may
provide for other entitlements, however, they be not entitled to provide anything less than what is
stipulated in the NES or the award that is applicable to the employee.
1 Stewart, Andrew. Stewart's guide to employment law. Vol. 3. Sydney: Federation Press, 2013.
2 Walsh, David J. Employment law for human resource practice. Nelson Education, 2015.
3 Fair Work Act 2009 (Cth).
4 Skinner, N., B. Pocock, and C. Hutchinson. "A qualitative study of the circumstances and outcomes of the National
Employment Standards Right to Request provisions: A report to Fair Work Australia." University of South
Australia, Adelaide(2015).

2EMPLOYMENT LAW
National Employment Standards
The NES that are provided to every employee in every employment sector:
1) Maximum weekly hours of work
2) Annual leave
3) Parental leave and related entitlements
4) Request for flexible working arrangements
5) Long service leave
6) Public holidays
7) Community service leave
8) Compassionate/carer’s/personal leave
9) Provision of Fair Work Information statement
10) Notice of redundancy and termination pay
Pay
An employer must pay at least the minimum rate set out in the agreement or the national
minimum wage for the ‘award free employees’. The employees are entitled to allowances for
working overtime, working outside regular hours or they may also be entitled to penalty rates for
working weekends, public holidays or weekends5.
The employer is obligated to pay the employees regularly and on requests from the
employee, may pay him or her at least once a fortnight6. However, an employer is prohibited
from deducting any money from the payment made to the employee unless the employee has
5 O’Sullivan, Michelle, et al. "Is individual employment law displacing the role of trade unions?." Industrial Law
Journal44.2 (2015): 222-245.
6 Painter, Richard, and Ann Holmes. Cases and materials on Employment Law. Oxford University Press, USA,
2015.

3EMPLOYMENT LAW
agreed to the same or it is a legal obligation to do so. Moreover, an employee cannot make any
yearly deductions from the annual holiday pay of the employees.
The employees are entitled to right pay rates for all the time they work including for the time
they have spent at work:
 Opening and closing the business; Working at unreasonable trial shifts; Training period; Team meeting;
Unpaid Work
It can take place in the workforce in various forms starting from unpaid job placements to
vocational placements, trails, work experience and internships7. These positions and jobs are
entered into for several reasons such as:
 To test the job skills of a person; To provide training or work experience as part of formal programs for assisting people
to obtain work;
 To provide a person with job experience in an industry;
If a person is not paid for doing certain work, it is considered as lawful under the above
circumstances. For instance, where the job seeker is not an employee but is entitled to benefits
from the government and is undertaking such work placement as a part of the commonwealth
employment program.
7 James, Natalie, and Fair Work Ombudsman. "Commonwealth of Australia." (2015).

4EMPLOYMENT LAW
However, in cases, where a person is working as an employee, they are legally entitled to the
pay and conditions stipulated under the Fair Work Act 2009. Nevertheless, if an employee is
required to undertake on-job training to perform the job, they should be paid for the hours the
employees undertake training.
Casual workers are entitled to an additional payment known as loading in the form of
compensation for not receiving entitlements stipulated under the NES such as paid leave (sick
leaves and other leaves), no notice period before termination and no employment assurance.
Termination of employment
The employee or the employer may terminate employment by giving proper notice in
writing8. An employer may dismiss employee if:
1) fixed-term employment contract has expired;
2) Performance is poor;
3) Duties cannot be continued on medical grounds;
4) willful misconduct is exhibited;
5) Downturn in business;
Employees are entitled to 16 weeks redundancy pay and 4-5 weeks of termination notice,
however, both termination and redundancy is based on the length of service.
Fair Work Act 2009 (Cth)
In Australia, there are certain legislations that governing the disputed regarding the
workplaces. Fair Work Act 2009 is one of them. The Act was enacted to maintain the standard
8 Golding, Gabrielle, and Joanna Howe. "Book Review: The Contract of Employment by Mark Irving." (2015).

5EMPLOYMENT LAW
of workplace and regulate the employment related matters with ultimate priority. The provisions
of the Fair Work Act are known and called as the national workplace relations system. Every
company is required to make a balanced work power so that they can gain extra profit and
develop the standard of commerce9. Provisions of the Fair Work Act help to customize the
provisions of workplace and assist a company to promote financial prosperity on national level.
Therefore, it can be stated that the ultimate purpose of the Act is to regulate certain norms that
will help the company to gain economic benefit.
The Act is designed to provide effective employment terms and conditions; chalk out all
the rights and responsibilities for the workers and for the employers who are serving the
business10. It provide guidelines so that the rules of the Act can be complied with at all level; and
empowers the jurisdiction of the Fair Work Commission and Fair Work Ombudsman as was
held in Fair Work Ombudsman v Pocomwell Ltd (No 1)[2013]11.
The Act has provided certain national employment standards for the betterment of the
company so that the company can regulate their business legally. The provisions of the standards
are mandatory for every Australians, provide protection to all the employees, and secure their
interest by dealing with the terms and policies of the employment such as working hours,
provisions on leave, work flexibility, holidays and notice of termination.
According to the Fair Work Act, the employees are given certain kinds of modern award
that are dealing with their waging rate, penalty rate, allowances, leave criteria and dispute
settlement provisions. Therefore, it can be stated that the provisions of the Act are providing
9 Floyd, Louise, et al. Employment, Labour and Industrial Law in Australia. Cambridge University Press, 2017.
10 Fair Work Act 2009 (Cth).
11 Fair Work Ombudsman v Pocomwell Ltd (No 1)[2013] FCA 250.

6EMPLOYMENT LAW
numerous help to the employees to secure their interest and help the employers to regulate their
business in a right way.
However, criticisms have been made regarding certain provisions of the Act and it has
been stated that the Act has certain limitations too. It is fact that the main objective of the Act is
to provide fairness in the workplace so that no one can be deprived of his or her legitimate
demand12. However, a thorough interpretation of the Act reveals the fact that the legislation of
the Act is complex and extensive in nature. Additionally, it has been observed that the extensive
nature of the Act makes one difficult to understand the facts of the case and provisions and they
could not easily navigate the terms of the legislations.
The most common facts and problems that are cropped up regarding the provisions that
the employers are getting confused by the complex language of the Act and they have committed
different acts that are not in accordance with the provisions of the Act. Further, the provisions of
the Act are changed frequently and therefore, it is very difficult for the employers to catch the
rules or maintain the norms in an effective way. For an example, a recent amendment has been
made regarding the general protection claim where certain time limits have been made after the
claim and for the claim13.
The change is that the time limits of the claim have been reduced from 60 days to 21
days. The claim can be done or made against the employers who are treating their employees
adversely. It has been observed that the complaints for workplace harassment have been
increased and false cases have been lodged now days. The Act has not provided any exception
12 Golding, Gabrielle, and Joanna Howe. "Book Review: The Contract of Employment by Mark Irving." (2015).
13 Walsh, David J. Employment law for human resource practice. Nelson Education, 2015.

7EMPLOYMENT LAW
provision for the harassment complaints and therefore, it has not been provided by the Act that
what will happen in case of false complaint.
The provisions of the Act are not applicable for all the states of Australia; it provides a
national standards. Australia is a federal country and therefore, every state is not mandatorily
followed up all the rules and regulations of the Act. This becomes a major problem in the
application of the Act14. Further, the definition of the adverse action should be widen in nature
and additional employment interest must be included under the Act; however, the limited
interests are also weak point in this case.
14 Phillips, Jeffrey, and Nicholas Read. "A casual approach to labels and employment law." Precedent (Sydney,
NSW) 135 (2016): 48.

8EMPLOYMENT LAW
Reference list
Fair Work Act 2009 (Cth)
Fair Work Ombudsman v Pocomwell Ltd (No 1)[2013] FCA 250
Floyd, Louise, et al. Employment, Labour and Industrial Law in Australia. Cambridge University
Press, 2017.
James, Natalie, and Fair Work Ombudsman. "Commonwealth of Australia." (2015).
O’Sullivan, Michelle, et al. "Is individual employment law displacing the role of trade
unions?." Industrial Law Journal44.2 (2015): 222-245.
Painter, Richard, and Ann Holmes. Cases and materials on Employment Law. Oxford University
Press, USA, 2015.
Phillips, Jeffrey, and Nicholas Read. "A casual approach to labels and employment
law." Precedent (Sydney, NSW) 135 (2016): 48.
Skinner, N., B. Pocock, and C. Hutchinson. "A qualitative study of the circumstances and
outcomes of the National Employment Standards Right to Request provisions: A report to Fair
Work Australia." University of South Australia, Adelaide(2015).
Stewart, Andrew. Stewart's guide to employment law. Vol. 3. Sydney: Federation Press, 2013.
Walsh, David J. Employment law for human resource practice. Nelson Education, 2015.

9EMPLOYMENT LAW