Work Place Entitlements – Not Just for Politicians
The Speaker of the House of Representatives is going through some well publicised travails focused on her use of workplace entitlements. Hitching a chopper as part of your job might at first glance seem to be far removed from the everyday employment experience for your average employee in the Central West. Whether or not Madam Speaker has correctly used her entitlements remains to be seen, however the coverage of this story did set me thinking about workplace rights in general and just how many of us know what are entitlements are.
For a large number of people, work is where they spend the majority of their time and is their primary, if not only, source of income and means of supporting their family. The employment contract and associated statutory rights are therefore one of the most important legal relationships a person will ever have. Notwithstanding this, how many of us know what is in our employment contract, or know what other legal rights we have? I suspect the answer is a number lower percentage than would know, for example, who is currently in the top eight or what night is bin night.
Workplace law is one area that undergoes regular changes because of its politically charged nature. At present however there are a number of principles that will be relevant to employees and employers in the Central West and will be generally overseen by the Fair Work Ombudsman and Fair Work Commission. The base line is set in the Fair Work Act 2009 with the National Employment Standards. These standards set the minimum requirements for the vast number of employees across Australia and relate to maximum hours, flexible work arrangements, leave (parental, annual, carers/compassionate, community service and long service leave), public holidays and termination and redundancy pay. The National Employment Standards cannot be overridden by any enterprise agreement or award.
So the baseline for employment is set. It’s also important for employers and employees to understand how the employment relationship can be ended. With any luck, both parties will only ever experience the standard situation where either the employer or employee gives notice and the notice period is either worked or paid out. However if things don’t follow the usual route both parties need to be aware that the Fair Work Act contains provisions against unfair dismissal. These will apply where an employee has been employed for the minimum period (six months in larger businesses, and twelve months in small businesses) and the dismissal was harsh, unjust or unreasonable. In considering whether the dismissal meets these criteria matters such as the nature of the conduct complained of, the warnings given by the employer, and the employee being given the opportunity to remedy their failings will be considered. It is critical for both employees and employers to understand their respective rights and obligations to ensure that the matter doesn’t end up in the Fair Work Commission. If it does there are a wide range of remedies that the Commission can order, including compensation and reinstatement.
The other major area for both parties to be aware of are what are known in the Fair Work Act as “General Protections”. The Act prohibits an employer or prospective employer from taking adverse action against an employee or prospective employee because of a workplace right that person has, has exercised, or proposes to exercise. This is again a very broad power and applies to situations such as receiving benefits under a workplace law (for example workers compensation legislation), exercising a right under a contract or award (for example to make a complaint about conditions), participating in industrial activity, or being discriminated against because of a particular attribute (race, gender, sexuality, age, pregnancy, etc). “Adverse action” includes not hiring a person, terminating their employment, demotion, treatment that’s different to others, a change in conditions, etc.
The employment relationship is heavily regulated. In large part that’s a good thing, because it’s so important both to individual employees, but also to the economy in general. Rather than be intimidated, or even worse nonchalant, it’s important that both parties to the employment relationship understand their rights and obligations so that they can try to avoid trouble before it starts, but if it does start, they can know what to do. Most importantly don’t wait until trouble comes beating like chopper rotor blades, get some advice early on!