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.
The National Employment Standards
Full time and part time employees
The National Employment Standards (NES) are minimum terms and conditions of employment that apply to all employees. They can be found in Part 2-2 of the Fair Work Act 2009 (Cth). They are ‘minimum’ standards, meaning that you may have rights that go beyond those in the NES, but an award or enterprise agreement may not give you rights less than those provided for.
The NES govern your rights regarding:
- maximum weekly hours;
- requests for flexible working arrangements;
- parental leave and related entitlements;
- annual leave;
- personal/carer’s leave and compassionate leave;
- community service leave;
- long service leave;
- public holidays; and
- notice of termination and redundancy pay.
For example, under the NES, an employer may not require you to work more than 38 hours per week unless the additional hours are reasonable.
All full-time and part-time employees are also entitled to make Unfair Dismissal, General Protections and Anti-Bullying claims to the Fair Work Commission. However, you will not be eligible to make an Unfair Dismissal claim if you earn over $138,900 or if you are employed for less than 6 months.
Casual employees
While casual employees have less rights under the NES, you still have certain rights if you are a ‘long term casual employee’. To be a long term casual employee, you must have worked on a regular and systematic basis for at least 12 months and have a have a reasonable expectation of continuing employment on such a basis.
These rights include:
- The right to request flexible work arrangements; and
- The right to take parental leave.
Casual employees also have the right to accrue and take long service leave under the Long Service Leave Act 1992 (Vic).
All casual employees can make General Protections and Anti-bullying claims. A casual employee can only make an Unfair Dismissal claim if they have worked on a regular and systematic basis for over 6 months.
Modern awards
Modern awards are industry-specific documents that prescribe the rights and responsibilities of all employees working in a specific field. They are more specific than the National Employment Standards and may provide additional rights regarding matters such as rostering, penalty rates, site allowances, overtime and redundancy processes. They will also provide details of the minimum rates of pay for your industry and specific position.
Examples of modern awards include the Hospitality Industry (General) Award 2010 and the Building and Construction General On-site Award 2010.
You can find out which award your employment is covered by going to the Fair Work Ombudsman website https://www.fairwork.gov.au/awards-and-agreements/awards.
Enterprise agreements
Enterprise agreements apply to all employees working for a certain employer. They all must be approved by the Fair Work Commission.
They are similar to modern awards in that they will provide extensive and specific rights relating to your employment.
Examples of enterprise agreements include the NAB Enterprise Agreement 2016 and the McDonald’s Australia Enterprise Agreement 2013. Smaller businesses may also have enterprise agreements. You can find out whether your employment is governed by an enterprise agreement by searching the Fair Work Commission website at https://www.fwc.gov.au/search/document/agreement.
However, an enterprise agreement cannot provide you with lesser rights than those afforded under the relevant industry modern award or under the NES. You must be ‘better off overall’ under your employment agreement in comparison to the applicable award in order for your employer to successfully alter your rights. If your employer is asserting that you are ‘better off overall’ and you do not believe this to be the case, you should seek legal advice to assess your options.
Rights under other legislation
All employees also have rights under other legislation. These include but are not limited to:
- the right to receive worker’s compensation for a work-related injury under the Accident Compensation Act 1985 (Vic);
- the right to a working environment that is safe and without risks to health under the Occupational Health and Safety Act 2004 (Vic);
- the right not to be discriminated against on the basis of race under the Equal Opportunity Act 2010; and
- the right to receive superannuation contributions under the Superannuation Guarantee (Administration) Act 1992 (Cth).
If you believe that your employer is not complying with your rights in any of the above instruments, you should seek legal advice.