Am I under a State or National employment system?

The employment system you work under affects your rights. Since the introduction of theFair Work Act 2009 (Cth), most employees fall under the national system.

• State - NSW

• The Industrial Relations Act 1996 (NSW) governs public sector and local government employees.
• All Work Health and Safety is covered by State legislation.

• National

• The Fair Work Act 2009 (Cth) applies to all employees in NSW who work for incorporated businesses (Pty Ltd or Ltd companies), sole traders and partnerships.
• All taxation and superannuation is covered by Federal law.

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What are my entitlements?

Minimum Wage

Every award sets out your minimum rate of pay but it cannot be lower than the national minimum wage which is currently (as of January 2021) $19.84 per hour or $753.80 per week.

Casuals covered by the national minimum wage get an extra 25% ($22.85 per hour) which is called 'Loading'.

If you are 20 years old or below, you will get a percentage of the minimum wage. For more information, check here.

Superannuation

Superannuation is a contribution on top of the minimum wages for your job that your boss pays to a fund (nominated by you) to provide for your future financial security when you retire.

You should be getting super if you are a full-time, part-time or casual employee between 18 and 69 years of age and get paid $450* or more (before tax) per month.

Your employer has to pay at least 9.5% of your ordinary earnings as super contributions for you.

Also check with your Modern Award because some Awards have extra super entitlements. For example, under the Restaurant Industry Award 2010, you only need to be paid $350 before super is contributed on your behalf. Find your award now. 

Pay Slips

You are entitled to written pay slips, given within one day of payment of wages. These pay slips can be either electronic or in hard copy, but both forms should include the same information. Your award or employment agreement will specify when you are to be paid (weekly, fortnightly, etc).

Payslips must include the following information:

• Employer's name
• Your name
• Date of payment
• Period payment relates to (dates)
• Rate of pay
• Gross and net amount
• Any bonuses, penalties, loading payments
• Employer super contribution

You can also keep track of your hours by using the "Record My Hours" app available from Fair Work.  

A Safe Working Environment

Everyone has the right to a safe working environment. WH&S is regulated by the Work Health and Safety Act 2011 (NSW). This act applies to all employees in all workplaces in NSW (and is consistent across Australia).

Work health and safety covers obvious risks but also hazards such as noise levels, proper posture, tripping hazards, etc.

Your employer must ensure the health, safety and welfare of all employees. This obligation includes providing adequate facilities, systems and equipment, as well as training, information and supervision necessary for health and safety. 

You cannot be asked to pay for any training or equipment necessary for health or safety in the workplace (eg protective goggles in a lab).

Your employer can be fined if they do not follow WH&S requirements.

Check out Legal & Advocacy's New Job Checklist before starting any job. 

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Where do I find my rights and obligations?

Modern Award

In Australia there are minimum terms and conditions for employment relating to a specific industry or occupation. These are called 'Modern Awards' and they cover most workplaces. The aim is to set a minimum benchmark to protect employees who may not be in the position to negotiate a better agreement.

They usually cover things like

• Different types of employment (eg. Full time or casual)
• Rostering matters
• Over time and penalty rates
• Allowances
• Leave
• Dispute settlement.

Where can I find my 'Modern Award'?

Go to the Fair Work Ombudsman website and click on 'Awards' and "Award Finder" or just click here.

National Employment Standards

There are also the National Employment Standards (NES) which are 10 minimum terms and conditions that apply to employees. This means that the conditions in your agreement have to be the same or better than the NES. If the conditions are not as good, they don't apply and the NES apply instead. If your employer contravenes these standards, the court can order them to pay a fine or a payment to you. Note however that not all of the entitlements apply to casual workers.

The 10 National Employment Standards are:

1. Fair Work Information Statement - employers have to give the Fair Work Information Statement to all new employees.

2. Maximum weekly hours of work - 38 hours per week, plus reasonable additional hours.

3. Requests for flexible working arrangements - parents and carers can ask for a change in working arrangements to care for young children under school age or children under 18 with a disability.

4. Parental leave and related entitlements - up to 12 months unpaid leave, the right to ask for an extra 12 months unpaid leave and other types of maternity, paternity and adoption leave.

5. Annual leave - 4 weeks paid leave per year, plus an extra week for some shift workers.

6. Personal / carer's leave and compassionate leave - 10 days paid personal (sick) / carer's leave, 2 days unpaid carer's leave and 2 days compassionate leave (unpaid for casuals) as needed.

7. Community service leave - up to 10 days paid leave for jury service (after 10 days is unpaid) and unpaid leave for voluntary emergency work.

8. Long service leave - entitlements are carried over from pre-modern awards or from state legislation. For details see the Long Service Leave and the National Employment Standards fact sheet.

9. Public holidays - paid days off on public holidays unless it's reasonable to ask the employee to work.

10. Notice of termination and redundancy pay - up to 4 weeks' notice of termination (plus an extra week if the employee is over 45 and has been in the job for at least 2 years) and up to 16 weeks redundancy pay.

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Contracts of employment

You may have entered into an employment contract with your employer in writing or orally however if any term of the contract contradicts federal legislation (namely the Fair Work Act 2009) or is not better than those set out in the Award, then it will not be valid. For example, even if you agree to work for $10 an hour, you must be paid at least $18.28 because federal legislation stipulates this is the minimum wage.

Enterprise Agreement

As mentioned above, the minimum conditions for employment are set out by the award however sometimes employers and employees from a particular workplace want to agree on better conditions. These Enterprise agreements are enforceable as long as they are approved by Fair Work Australia and pass the 'better off overall' test. This means you can trade an improvement in one area by relinquishing another one as long as you are not worse off than you would have been overall.

Where can I find a copy of my Enterprise agreement?

You can search for a copy here on the Fair Work Commissions website. Note however that Enterprise agreements can be between single or multiple people. If it is an individual agreement then it won't be online and you will need to ask your boss for a copy.

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Termination

Termination by you

If you wish to terminate your employment contract you can do this by giving notice. The amount will be specified by your enterprise agreement or contract or modern award. If you're a casual worker you might not need to give notice but check your agreement first. Where possible remain on good terms because you may want a reference in the future.

There are circumstances where notice isn't required, such as where your boss has failed to pay your wages for an extended period of time or you are expected to undertake dangerous work without the necessary safety equipment. Come and see us if you are encountering any of these issues.

Termination by your employer

The NES set out the minimum notice that employers must give permanent employees here. Your boss can also choose to pay you out the full amount you would have earned in the notice period instead.

The NES doesn't cover casual workers meaning that employers can dismiss casual workers without giving them notice. However, an award, agreement or contract of employment can say that a casual needs to get notice.

Redundancy

Your boss might terminate your employment because there is not enough work or they have become bankrupt or insolvent. If you're a permanent employee then you will be entitled to a redundancy payout of at least 4 weeks of your normal pay. Unfortunately you're not entitled to this if you're a casual employee.

Summary dismissal

You can be fired on the spot (without notice or a redundancy pay out) for serious misconduct. This means stuff like theft, fraud and assault, coming to work drunk or refusing to do something reasonably requested of you.

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What can I do if I think I've been treated unfairly?

If you think you've been unfairly dismissed

Employees are protected by the Fair Work Act 2009. Keep in mind that there are time limits for lodging an unfair dismissal application (21 days to Fair Work Australia and 60 days under common law) so contact us or the Fair Work Commission ASAP.

To be eligible to make a claim you need to:

• have worked there for a certain amount of time (at least 1 year for a small business otherwise 6 months for other workplaces)
• have an agreement under a Modern award or Enterprise agreement.

And if you're a casual worker there are some other boxes you will have to tick to make an application.

If you're not receiving your entitlements

Consider first talking to your boss (or former boss!) or coming to see us. Otherwise you can also contact the Fair Work ombudsman if you are

• not being paid the right amount
• not getting the right amount of leave or other conditions you're entitled to
• being forced to do things against your will
• being threatened by your employer
• being discriminated against
• in a Sham contract.

If you feel bullied or harassed at work

Bullying can include verbal, physical, social or psychological abuse, and can have been inflicted by your boss or coworkers. If you feel that you or someone you know is experiencing workplace harassment like hurtful name calling, discrimination, exclusion, targeting, here are a few steps that you can consider:

1. Keep a record of incidents that have occurred. Documenting dates and events will assist if you decide to make a complaint. This includes emails or text messages from employers or coworkers. 
2. Share your feelings and experiences with someone that you trust - a member of your family or a friend so that you are not going through this alone.
3. Contact our Legal and Advocacy Department with any questions or to make an appointment. We will be able to give you support and advice.
4. The next step may involve confronting the bully, taking your complaint through the dispute resolution channels at your work, or, if all else fails, contacting your union, Workcover NSW or the Australian Human Rights Commission.  

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Tax

You must declare all your income in your tax return. This includes your salary, any allowances for travel, meals, uniforms etc, and other forms of income such as interest on your bank account savings.

The following tax rates apply from July 2017 for Australian residents. These rates do not include the 2% Medicare levy:

Taxable income	Tax on this income
0 - $18,200	Nil
$18,201 - $37,000	19c for each $1 over $18,200
$37,001 - $87,000	$3,572 plus 32.5c for each $1 over $37,000
$87,001 - $180,000	$19,822 plus 37c for each $1 over $87,000
$180,001 and over	$54,232 plus 45c for each $1 over $180,000

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Frequently Asked Questions

I got offered a job at a café but the owner says that I need to do a week unpaid trial before he will hire me. Is that even legal?

No, it's not! As a general rule, you must be paid for any trial work you have performed to establish your suitability for a job. The exceptions are volunteer work or an organized vocational or student placement. If you're unsure then contact us here in at Arc Legal & Advocacy or the Fair Work Ombudsman!

I work in a small boutique retail clothing store and my boss wants to deduct money from my pay for every item that gets stolen whilst I'm working. Can they do this?

Your boss can only make deductions from your wages if it is permitted by the award, authorised in writing or allowed under other legislation (such as tax or child support laws) or a court order.

Usually your boss can't deduct any money from your wages for breakages or 'cashiering underings' (such as till shortages, or customers leaving without paying) unless the loss was caused by your willful misconduct (such as theft or fraud).

Does my boss have to give me a pay slip?

Yes, you should get a pay slip within 1 day of being paid. Your boss also needs to keep your records for 7 years and you can request to inspect these.

You can also keep track of your hours by downloading Fair Work's "Record My Hours" app (available in 12 languages).  

I work at a seafood shop and last pay day when my boss was meant to pay me $100 he said "How about we make it $80 and I give you a bag of prawns worth $45?". I don't want seafood, I want my money. Is he allowed to do this?

No, you need to be paid in money (cash, cheque or directly into a bank account).

I work at a restaurant. Sometimes I arrive for my shift and it's quiet so my boss sends me home. Is this legal?

If you're a part-time or full-time employee, your employer can't send you home without pay just because it's quiet. 

If you're a casual they can, as long as you've worked (or will be paid for) the minimum shift length in your award or agreement (usually 3-4 hours).

You can be sent home (even if you're a part-time or full time employee) if industrial action, machinery breakdown or a natural disaster (or anything for which the boss isn't responsible for) means that there isn't enough work.

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Contacts

Fair Work Australia

Ph: 13 13 94

www.fairwork.gov.au

Find your award

awardfinder.fwo.gov.au

Welfare Rights

Ph: 9211 5300

www.welfarerights.org.au

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Need more information?

If you are a UNSW student and Arc member we can give you free legal advice. Send us an email or book an appointment with us here.