Frequently Asked Questions

Who is covered by the new Fair Work system?

All private sector employers and employees are now covered by the federal industrial relations system under the Fair Work Act 2009.  The fair work legislation refers to them as 'national system employees' and 'national system employers'.


The fair work legislation is now the primary source of employment law for all businesses, community organisations, not-for-profit groups and government owned corporations.

The Queensland Industrial Relations Act continues to apply to State Government departments, local governments and their employees.

Queensland health and safety laws and discrimination laws continue to apply to all employees in Queensland, no matter who is the employer.

Despite many similarities, there are important differences between federal and state industrial relations laws that you need to be aware of.  Carne Reidy Herd's specialist lawyers are experienced in providing advice across the maze of state and federal fair work legislation.

What are the National Employment Standards (NES), and who do they apply to?

The NES are ten minimum standards of employment included in the Fair Work Act which apply (with some exceptions) to all employees in the national system, including all award-free employees such as senior managers, employees on short term or fixed term contracts and casuals.

• Maximum weekly hours:  38 hours plus reasonable additional hours (subject to award provisions about overtime).
• Requests for flexible working arrangements:  an employee who is a parent or has primary care of a child (who is under school age or under 18 and has a disability), is entitled to request flexible working arrangements.
• Parental Leave:  all employees with 12 months service have a right to 52 weeks unpaid parental leave, a right to extend this for an additional 12 months and a guarantee to return to work at the expiry of the leave.
• Annual Leave:  four weeks paid leave per year (proportional for part time employees) for non-casual employees and an additional week for eligible shift workers.
• Personal/carer's and compassionate leave: ten days paid leave for each year of service which can be taken as sick or carer's leave, plus unpaid carer's leave entitlement and two days paid compassionate leave per occasion.
• Community Service leave:  unpaid leave for some community activities, and 10 days paid laeve for jury service.
• Long service leave:  no single national entitlement is prescribed, so instead the entitlements contained in a relevant award, enterprise agreement or state legislation continue to apply.
• Public holidays:  employees are entitled to be absent from work on public holidays and to be paid for their ordinary hours.  An employer can make a reasonable request for an employee to work on a public holiday, which an employee can refuse on reasonable grounds.
• Notice of termination and redundancy pay:  up to 5 weeks notice of termination has to be given depending on length of service with the employer.  Redundancy pay based on an employee's length of service since 2010 may also be payable for businesses with over 15 employees.
• Fair Work Information Statement:  Employers must provide all new employees with this statement as soon as practicable after they commence employment.

The NES apply to all employees covered by the national employment system.  However in some cases there are specific eligibility criteria, for example length of service, and only some NES apply to casual employees.

The NES apply in addition to the unfair dismissal regime established by the Fair Work legislation.

If you have a question in relation to how the NES operate, contact Carne Reidy Herd Lawyers.

How much notice of termination do employers have to give an employee?

The amount of notice an employer or employee has to give is contained in legislation, awards, workplace agreements and employment contracts.  How much notice is given can also be relevant in unfair dismissal claims under the Fair Work legislation.

Legislation

The minimum notice of termination an employer has to provide an employee is one of the National Employment Standards in the Fair Work Act.  Similar requirements are contained in the Queensland Industrial Relations Act.  The minimum period of notice is dependent on the employee's length of continuous service with the employer.

Period of Continuous Service	Period of Notice
Not more than 1 year	1 week
More than 1 year but not more than 3 years	2 weeks
More than 3 years but not more than 5 years	3 weeks
More than 5 years	4 weeks

If the employee is over 45 years old at the date of termination, and has completed at least 2 years of continuous service with the employer, an employer must provide an additional one week of notice.

An employer may provide pay in lieu of notice equal to the amount they would have paid the employee during the required notice period.

There is no requirement in the Fair Work Act for employees to provide notice of resignation.

Awards and Agreements

Awards may also contain minimum notice periods for termination by the employer similar to those contained in the Fair Work Act. 

Awards often also set a minimum period of notice that employees must give when they resign.

Employment Contracts

Employment contracts commonly provide for minimum periods of notice of termination.

An employment contract which allows an employer to give less notice than the national employment standards is not enforceable and an employer must give at least the minimum notice required by the fair work legislation.

If a contract requires the employer to give longer notice than the Fair Work Act minimums, however, the employer must comply with that longer period of notice.

If the employment contract does not include a notice of termination provision, a dismissed employee can make a claim for 'reasonable notice', which can be up to twelve months notice.  How much 'reasonable notice' is required depends on factors such as:

• Length of service
• Age of the employee
• Difficulty in obtaining similar employment
• The nature of the position

To avoid the uncertainty and risk of reasonable notice disputes it is critical that employment contracts have clear notice of termination clauses.

As well as breaching the law, failing to give enough notice can also create an unfair dismissal claim.

If you have any queries about your existing contracts, contracts for new employees, or any employment law queries, contact Carne Reidy Herd Lawyers for expert advice.

How much notice of resignation must an employee give?

There is no requirement in the Fair Work Act or the Industrial Relations Act for an employee to provide any period of notice when they resign.

Some awards, however, require employees to give a minimum period of notice when they resign.  Sometimes this is the same amount of notice as the award requires the employer to give.

Awards, enterprise agreements or employment contracts can also authorise an employer to hold back final payments if an employee fails to give the minimum amount of notice when resigning.

If the minimum period is different in the award, enterprise agreement or contract, an employee is required to give whichever is the longer period of notice.

Does superannuation have to be paid to an employee during their period of notice?

If an employee works throughout their notice period, the employer must continue to pay superannuation until their last day of work.

If an employee is given a payment in lieu of notice they must still be paid superannuation for the equivalent of the period of notice they are entitled to, even though they are not at work or even employed anymore.

Other entitlements including annual leave and long service leave continue to accrue during an employee's notice period.  Again, however, if an employee is dismissed and paid an amount in lieu of notice, those leave entitlements stop accruing and must be paid out as they exist at the date of dismissal.

What is Gardening Leave?

Sometimes employers direct employees to go on 'gardening leave' during a period of notice.  This means that the employee continues to be paid but is directed not to attend work and not to contact clients or other employees.  During gardening leave, standard employment law obligations continue so that an employee must be paid normal wages, superannuation and they continue to accrue entitlements such as annual leave.

Except in rare circumstances, an employer is entitled to put an employee on gardening leave as long as the employee continues to receive his or her normal wages.  Gardening leave by itself does not make a dismissal unfair or result in a breach of contract that releases an employee from their employment law obligations.

Standing down an employee without pay is only possible in the way allowed for by the Fair Work legislation and an award or enterprise agreement.  Mostly it is possible if there is no work available for the employee to do for reasons beyond the control of the employer (for example, during a natural disaster, or industrial action at another organisation).

Who can make an unfair dismissal claim?

If an employee is dismissed, or is forced to resign, they may be eligible to make an unfair dismissal application to Fair Work Australia.

To be eligible to make an unfair dismissal claim, an employee must:

• have completed 6 months continuous employment with the employer or 12 months service if the employer is a small business with less than 15 employees; and
• be covered by an award or enterprise agreement or earn less than $113,800

The earnings limit is based on actual wages, not including superannuation, commissions or bonuses.

Casual employees can make an unfair dismissal claim if they meet these tests.

Under the fair work legislation, applications for unfair dismissal must usually be made within 14 days from the date of dismissal.  Late applications can be made but are mostly refused.

What is Sexual Harassment?

Sexual harassment occurs when someone subjects another person to unwelcome sexual remarks, attention or other conduct which a reasonable person would know would be humiliating, intimidating or offensive.

Examples of conduct which is of a sexual nature include:

• making jokes with sexual connotations
• making comments about a person's sexuality
• touching a bra and pulling it
• an offer of payment for sex
• showing offensive photos in the workplace
• sending sexual material by email

Federal and state discrimination and fair work legislation prohibit sexual harassment in many areas of daily life, including in the workplace.

An employer can be liable for sexual harassment inflicted by an employee towards another employee or an outside party.  It is important that employers take steps to ensure employees know such conduct is unacceptable.  Clearly informing employees that such conduct will not be tolerated, ensuring employees can comfortably report any incidents of harassment, and taking appropriate steps when complaints are made can all reduce the likelihood of incidents of sexual harassment arising and employers being held liable.

Employees who feel they have been sexually harrassed may have an internal complaints procedure or process open to them in the workplace.  Alternatively, a complaint can be lodged at the Anti-Discrimination Commission Queensland or the Australian Human Rights and Equal Opportunity Commission.  Both commissions attempt to resolve the matter by conciliation before the matter is referred to a tribunal or a court.  It is important to seek advice prior to lodging a complaint.

If you have a question about sexual harassment and how it applies to you, contact Carne Reidy Herd Lawyers on 07 3236 2900.

Are Restraint of Trade clauses enforceable?

Restraints of trade, or no-competition clauses, are a common feature of employment contracts, especially in relation to senior employees.

Restraint of trade clauses often restrain a former employee from:

• trying to poach the clients of their former employer
• being employed or involved in a competing business, within a certain geographical area or for a period of time
• using confidential information with their new employer
• encouraging former colleagues to leave the former business.

Restraints are often limited to a geographical area or for a particular time period.

It is a fundamental element of employment law that an employer can only impose restraints on a former employee which are reasonable and necessary to protect its business interests.  Even if parties agree in a contract to include a restraint, if a court thinks it is not reasonable because it is simply a restriction on competition, the restraint will be unenforceable.

Whether a restraint is reasonable will depend on factors such as the amount or type of confidential information the employee had, what sort of relationship the employee had with clients, the length of the contract or client cycle the employee was involved in, the likelihood of the employee being able to use any confidential information in their new job and the length and breadth of the restraint.

Restraint clauses are becoming increasingly complicated, sometimes unnecessarily so. If you need assistance drafting a new clause or understanding the enforceability of an existing clause, seek legal advice from a specialist law adviser, like Carne Reidy Herd.

What is Adverse Action?

Adverse action is a new concept introduced in the fair work legislation.  It includes dismissing an employee, discrimination against them, injuring them in their employment or in any other way altering their position detrimentally.

Conduct by an employer is only adverse action, however, if it is done because a person has a workplace right, has made a workplace complaint or has participated in an industrial activity.

Workplace rights and industrial activities include the right to payments under the fair work legislation, an award or enterprise agreement, joining or not joining a union, representing other employees in workplace negotiations or making a complaint to the employer or an external body.

The fair work legislation also prohibits employers from taking adverse action against employees or prospective employees because of a discriminatory reason including race, sex, sexual preference, age, disability, pregnancy, religion or family responsibilities.

Adverse action protections apply to all employees, including senior employees and executives who otherwise do not have access to the fair work unfair dismissal regime.

Adverse action claims cover a potentially very wide spectrum of conduct by employers, employees and contractors and are fast becoming almost as common as unfair dismissal claims, because of their broad application and the different procedures that apply to such claims. 

If you need to know what your potential rights and liabilities are for potential adverse action claims, contact Carne Reidy Herd, specialist employoment law advisers.