Entitlements?

My new employer has retracted my employment offer, after I have resigned from my previous employment. Do I have any legal recourse?

In today’s society, the work force is increasingly transient, and individuals routinely change jobs as well as career paths. Indeed, the Bureau of Labour Statistics reports that on average, an individual will change jobs between 10 and 15 times throughout their working life. In such a climate, it can be difficult navigating the uncertain realm of when to rely on the offer of new employment and resign from previous employment.

I am being paid solely on commission, is this legal?

Commission, also known as ‘bonus payments’ or ‘incentive payments’, is a sum payable to an employee based on their sales performance, often calculated as a percentage of the total sales made by an employee.

While commission is usually paid to an employee in addition to a base salary, it is possible for an employee to be solely paid on commission.

I did not sign an employment contract, what rights do I have?

You still have extensive rights and responsibilities as an employee, even if you have never signed an employment contract. The terms and conditions of your employment can be found in 4 places:

• The National Employment Standards in the Fair Work Act 2009 (Cth);
• Any applicable industry modern award;
• An employer-specific enterprise bargaining agreement; and/or
• Rights under other pieces of legislation.

Can I cash out my annual leave?

Can I cash out my annual leave?

Under certain circumstances, employees may be entitled to ‘cash out’ excess annual leave instead of taking time off.

I’m a soon-to-be dad – can I take parental leave?

It is common practice for pregnant women in the workforce to take maternity leave for an unpaid period of up to 12 months. However, it is often forgotten that men are equally entitled to take paternity or partner leave.

Male employees frequently encounter resistance when seeking to exercise their workplace right to take parental leave. This resistance largely stems from archaic societal expectations of gender roles, where men were traditionally considered the ‘breadwinners’ and women were considered responsible for looking after the children at home. As our society continues to evolve, it has become conventional for men to play a more active role in raising their children and exercise their workplace right to take parental leave.

What can I do if my employer is not paying me my superannuation?

Eligibility requirements for superannuation contributions

 It is important to ensure that you are entitled to receive superannuation contributions before making the relevant inquiries.

I am a foreign worker and feel that I have been underpaid. What can I do?

Your rights as a foreign worker

Foreign workers include seasonal workers, ‘backpackers’ and international students. Foreign workers do not include Australia citizens or permanent residents.

In Australia, foreign workers have the same entitlements to pay and conditions as Australia workers do.

When is an employer liable for false and misleading statements to an employee?

When trying to fill a vacant role it is common for employers to want to present the opportunity in only the most favourable light. Poaching an employee from a competitor with outlandish promises might be tempting. What are the consequences?  The potential legal issues in doing so were recently considered by a judge of the Federal Court of Australia in a case raised by McDonald Murholme Solicitors for Ms ‘R’.

My employer says I can only leave if I give it 6 months’ notice, but I want to get out now. Can they stop me?

Is a 6 month notice period reasonable?

If the notice period is contained within your contract, then you may be under a contractual obligation to provide that amount of notice. However, it is important to check your Award.

Do I have all the usual employee rights as an apprentice?

Apprentices have the same rights and entitlements as any other employee including:

• The right to annual leave, sick leave and public holidays
• The right to a safe working environment
• The right to receive superannuation contributions
• The right to join a union or take industrial action.

What are my financial liabilities if I lodge a FWC application?

Each party is required to bear their own costs in relation to a FWC matter (section 611) thus you are not liable to pay the costs incurred by your employer.

What actions can I take when my employment has been transferred from Employer A to Employer B and my position changed?

In relation to the first question, it may be that the client’s position is redundant. If this is the case, the client may take action against ‘Employer A’. This should be emphasised to the client to avoid confusion.