Glossary of Key Terms in Workplace Law
The material contained in this Glossary is provided by way of general information only. It is designed for the purpose of raising your awareness. It is not intended to be and is not a substitute for legal advice. This work is copyright. Apart from any use permitted under the Copyright Act 1968, all other rights are reserved.
The party which commences legal action against another. In some jurisdictions known as a plaintiff.
An industrial instrument created by a relevant body – formerly a State or Federal Industrial Relations Commission and now by Fair Work Australia – which provides for certain terms and conditions of employment. A new federal system of awards commenced on 1 January 2010 and are known as Modern Awards. For details see www.fwc.gov.au
An employee whose employment is the subject of an award (whether federal or state), as opposed to a non-award employee who is not the subject of an award. The majority of Australian employees are award employees.
An employee whose employment is not the subject of an award. Usually professional and more senior employees and those in new/emerging industries.
BASE RATE OF PAY
The base rate of pay of a national system employee is the rate payable to him/her for ordinary hours worked but not including incentive-based payments and bonuses; loadings; monetary allowance; overtime and penalty rates; and any other separately identifiable allowance. See also ‘Full rate of pay’.
BETTER OFF OVERALL TEST
Since 1 January 2010 enterprise agreements made by national system employers and employees under the Fair Work Act 2009 are subject to this test. It means that an award covered employee must be better off overall if the agreement applied to the employee than if the relevant Modern Award applied.
For the purposes of the Fair Work Act 2009, a person is ‘bullied at work’ if an individual or group of individuals behave unreasonably towards the worker or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety.
A worker who is engaged on an irregular and short-term basis. For specific legislative purposes, may include a worker who is employed on a regular and systematic basis for a “short period” (usually less than 12 months). For award purposes, an employee who is engaged and paid as such.
An industrial instrument, created and approved by the parties to it (i.e. an employer and a group of employees or an employer and a union). Ordinarily, an enterprise agreement will override an award to the extent that they cover the common subject matter.
The circumstances in which an employee resigns or otherwise leaves his/her employment as a consequence of the employer’s conduct. A clear example is where an employer demands that an employee “resign or be sacked!”. However, it may arise in more subtle circumstances.
An agreement between two or more parties. The obligations of the parties under the contract may be implied or express or both. The contract may be oral or in writing or a combination of both.
CONTRACT FOR SERVICE
A contract for a contractor to provide services to another. The parties to the contract for service have a commercial relationship.
CONTRACT OF SERVICE
A contract between an employee and employer. The parties to the contract of service have an employment relationship.
A person who or entity which contracts with another party under a contract for service.
The party against whom legal action is taken. In some jurisdictions known as a respondent.
Termination of the employment contract at the initiative of the employer. Can include constructive dismissal (see above).
A person who is employed by an employer under a contract of service.
A sole trader, partnership, corporation or government entity which employs employees.
A workplace agreement made under either the Fair Work Act 2009 (in the case of national system employees) or relevant state legislation.
FAIR WORK ACT 2009
Key legislation in federal workplace regulation system. It applies to all private sector employers and their employees as well as Commonwealth public sector employers and their employees.
FAIR WORK COMMISSION
Federal workplace relations tribunal. Replaced the Australian Industrial Relations Commission on 1 January 2010. Find out more at www.fwc.gov.au. Formerly known as Fair Work Australia.
FAIR WORK OMBUDSMAN
Federal government body responsible for providing information about workplace rights and responsibilities, investigation workplace complaints and enforcing compliance.
FMW – Federal Minimum Wage
The minimum wage for all Australian employees covered by the Fair Work Act 2009. From 1 July 2010 onwards the FMW will be set by the Fair Work Commission.
FULL RATE OF PAY
The full rate of pay of a national system employee is the rate if pay payable to him/her including all of the following: incentive-based payments and bonuses; loadings; monetary allowance; overtime and penalty rates; and any other separately identifiable allowance.
A dismissal of an employee will be a case of genuine redundancy if the person’s employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employee’s enterprise and the employer has complied with any obligation to consult about the redundancy in a Modern Award or enterprise agreement that applies to the employee. The dismissal will not be a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.
GOOD FAITH BARGAINING
Bargaining representatives for a proposed enterprise agreement are required to engage in good faith bargaining, by attending and participating in meetings at reasonable times; disclosing relevant information (other than confidential information) in a timely manner; responding to proposals made by other bargaining representatives for the agreement in a timely manner; giving genuine consideration to the proposals of other bargaining representatives for the agreement and giving reasons for his/her responses to those proposals; refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining; recognizing and bargaining with the other bargaining representatives for the agreement. This does not require a bargaining representative to either make concessions during bargaining or to reach agreement on the terms that are to be included in the agreement.
A workplace agreement made in relation to a new business.
Under the Fair Work Act 2009, industrial action is: performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee the result of which is a restriction or limitation on, or a delay in, the performance of the work; a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employer; a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work; and, the lockout of employees from their employment by their employer.
A Court, Commission or Tribunal will be entitled to hear only certain sorts of claims – this is what is known as the jurisdiction. This will be determined by the nature of the claim and applicable legislation. For example, because the remedy of an unlawful termination claim derives only from Federal legislation and only the Federal Court is empowered to hear such claims, the applicable jurisdiction is that of the Federal Court.
MAXIMUM ORDINARY HOURS
Under the National Employment Standards (NES) the maximum ordinary hours which can be worked by any employee the subject of the Fair Work Act 2009 is 38 hours per week and reasonable additional hours. What is “reasonable additional hours” is determined by reference to a number of matters relevant to the particular workplace and the circumstances of the particular individual employee.
An award which applies to national system employers and their employees who come within the coverage and classification provisions of the relevant Award. Modern Awards commenced on 1 January 2010.
MULTIPLE BUSINESS AGREEMENT
A workplace agreement involving more than one business and its employees.
NATIONAL EMPLOYMENT STANDARDS (NES)
A set of 10 minimum terms and conditions of employment which applies to all national system employees. The NES commenced on 1 January 2010 Includes maximum ordinary hours; request for flexible work hours; notice of termination and redundancy pay; annual leave; personal career’s leave; parental leave; community services leave; long service leave; public holidays; Fair Work Information Statement.
NATIONAL SYSTEM EMPLOYEE
An employee employed by a national system employer – for example, a Company. This employee’s employment is regulated by the Fair Work Act 2009.
NATIONAL SYSTEM EMPLOYER
A national system employer includes private sector employers operating nationally or in any State other than Western Australia or in the Territories as well as Commonwealth public sector employers and Commonwealth authorities.
Also known as a common law or award free employee. This is an employee whose employment is not the subject of an award. As with award employees, the employment of these employees is the subject of the common law and all relevant legislation (both Federal and State).
ONUS OF PROOF
This refers to the party to a legal action who/which is responsible for proving an element or elements of the action. The onus of proof will usually be borne by the party commencing the action. However, in some situations, the onus of proof will be borne by the party defending the action – e.g. general protections claims, unlawful termination claims.
Provided for under the NES this form of leave includes maternity leave, paternity leave and adoption leave. Parental leave includes the entitlement to 12 months unpaid leave following the birth of a child. In certain circumstances, an employee may be entitled to request an extension of parental leave by an additional 12 months.
An employee who works for less than 38 hours per week. An award applying to a part-time employee may include restrictions on the number of part-time workers who may be engaged and a minimum number of days and/or hours for which a part-time employee may be engaged.
Provided for, under the NES, this form of leave includes sick leave, personal career’s leave and compassionate leave. A full-time employee is entitled to 10 days sick leave for each year of service.
Legal action taken by one party against one or more other parties in a Court, Commission or Tribunal. The entitlement to bring such legal action will be sourced from the common law or legislation.
The party which commences legal action against another. In some jurisdictions known as an applicant.
Under the common law most open-ended contracts, including employment contracts, can only be terminated by the provision of notice. Where the amount of notice is not expressly stated in the contract, “reasonable notice” will have to be provided. What is “reasonable” will depend on all the circumstances of the employment contract.
Where an employer no longer requires a role to be performed by anyone. Usually arises as a consequence of organisational restructure and/or technological change. It does not immediately follow that the employee who holds the position will be dismissed (retrenched). This will depend on whether suitable alternate employment can be offered to the employee.
The party against whom legal action is taken. In some jurisdictions known as a defendant.
A ground of dismissal where the position held by an employee has been made redundant and either there is no suitable alternative employment available to the employee or the employee has rejected the suitable alternative employment.
This is an amount which will be payable to an employee whose position has been made redundant and whose employment has been terminated on the ground of retrenchment provided that there is no suitable alternative employment is available.
A person is sexually harassed if another person makes an unwelcome sexual advance or an unwelcome request for sexual favours or the other person engages in unwelcome conduct of a sexual nature in relation to the person harassed in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated. Conduct of a sexual nature includes a statement of a sexual nature to a person or in his/her presence, orally or in writing. See section 28A of the Sex Discrimination Act (Cth) and section 22A of the Anti-Discrimination Act 1975 (NSW). Two main types of sexual harassment occur in the workplace: harassment accompanied by an employment threat or benefit, for example where a supervisor coerces an employee into submitting to their advances in order for some benefit to be given (e.g. a pay rise); and where a hostile work environment is created, this arises from relentless and continuing unwelcome sexual conduct that interferes with an employees work performance or that creates an intimidated, hostile, abusive or offensive work environment.
All employees are eligible to make an application to make a claim if they believe that their employment has been terminated for a prohibited reason. These reasons include (but are not limited to): race, sex, disability and age discrimination. Successful complainants may be reinstated, re-employed and/or compensated. Employers in breach of the prohibition on unlawful termination may also be ordered to pay penalties and costs.
In most circumstances, an employer will be liable for the acts of his/her/its employees and agents in the course of their employment.
This term refers to all forms of conduct within a workplace which humiliates, offends or intimidates. This includes bullying, sexual harassment and other behaviours.