Employee Rights Australia: Know Your Rights in the Workplace

What Are Workplace Rights?

What are your rights in the workplace? 

As a worker in Australia, you have certain ‘workplace rights’ that entitle you to legal protections against unfair or unsafe treatment by your employer. These workplace rights get their legal basis from several Australian laws, including the Fair Work Act.

These rights include the rights to sick leave, maternity leave, flexible working arrangements, and more. Understanding the protections you are entitled to is important because they govern the expectations behaviour and relationship that you can expect from your employer.

Below, you can find a more detailed explanation of your eligibility for protection under Australian workplace rights laws and specific protections and entitlements available to you based on your employment type and protected characteristics.

Employee rights in the workplace under the Fair Work Act

The Fair Work Act is a workplace protection act that applies to temporary working visa holders, permanent residents, and Australian citizens in any Australian workplace, with the exception of state and local government employees whose rights are protected by the various state Industrial Relations Acts.

What is a workplace right under the Fair Work Act? It’s a broad legal protection against unfair and unsafe workplace treatment. Workplace rights under the Fair Work Act are available to full-time employees, part-time employees, casual workers, prospective employees, independent contractors, prospective independent contractors, persons who contract with independent contractors, and industrial associations.

Importantly, the Fair Work Act specifically protects your ability to make a complaint about or seek an inquiry into potential violations of your workplace rights. This includes your right to seek outside legal advice when you believe your workplace rights have been violated, to make complaints to your employer or a government agency with the power to investigate workplace rights violations, and to take legal action and seek a remedy through the courts.

Worker’s Minimum Entitlements Under The National Employment Standards

According to the most recent record, The National Employment Standards (NES) in Australia outlines the minimum employment entitlements for workers. These standards are a key component of the Fair Work Act 2009 and provide important protections for employees in the country. The NES includes entitlements such as: 

• Maximum weekly hours of work
• Annual leave
• Personal/carer’s leave 
• Compassionate leave
• Community service leave 
• Long service leave
• Public holidays
• Notice of termination 
• Redundancy pay

These standards ensure that employees in Australia are provided with basic rights and entitlements and are protected from unfair practices in the workplace. Employers must comply with these standards, and failure to do so can result in penalties and legal action.

Workers’ Rights Australia

Employee Rights in Australia

Workplace laws provide rights and entitlements to employees, including full-time and part-time workers who are entitled to paid leave and redundancy pay. On the other hand, casual workers do not have a firm commitment to continued employment or a regular work schedule but have certain unpaid leave rights. Independent contractors, who enter into contracts with businesses or individuals, have different protections under Australian workplace laws. Regardless of the type of employment, all workers in Australia have the right to fair treatment under the law.

Full-time employee rights in Australia

Full-time employees generally work an average of 38 hours per week and are entitled to paid leave, including annual leave, sick leave, and carer’s leave. Specific weekly working hours are agreed upon between the employee and employer.

Employees working full-time may also be classified as fixed-term employees if their employment is not indefinite and is specifically tied to a set period or to the completion of specific tasks.

Full-time workers are entitled to receive advance notice of dismissal or payment in lieu of notice.

Part-time employee rights in Australia

Part-time employees work less than 38 hours per week and, like full-time employees, may be employed on a permanent or fixed-term basis. Unlike casual workers, part-time employees work a regular schedule with generally consistent hours week-to-week.

Part-time employees are entitled to the same paid leave as full-time employees but on a pro-rata basis depending on the number of hours they work. For example, a part-time employee that works half the weekly hours will be entitled to half the paid leave.

Casual Workers’ rights in Australia

Casual workers differ from full-time and part-time workers because their job offer has no firm advance commitment to continued employment or regular work schedule. This understanding must be made clear at the time of job offer and agreed to by the worker when they accept the job. What this may mean in practice is that a casual worker’s hours and shift schedule change week-to-week, and they may refuse to work certain shifts.

Casual workers are not entitled to the same paid leave that full-time and part-time employees are, but they do have certain unpaid leave rights: 2 days unpaid carer’s leave, 2 days unpaid compassionate leave per occasion, and 5 days unpaid family and domestic violence leave per 12-month period. Casual workers also have a right to access a path to full employment. When casual workers have been regularly employed for 12 months and can reasonably expect to continue employment, they also have a right to flexible work arrangements and unpaid parental leave.

Independent contractor rights in Australia

Independent contractors differ from employees, but they still have certain protections under Australian workplace laws. Independent contractors are not employed by a person or business but enter into contracts with them that include specific negotiated fees and working arrangements. Independent contractors often work for multiple clients at a time and may also be called contractors or subcontractors.

In general, independent contractors are at financial risk for the potential profit or loss from a project; have wide latitude to determine how a project will be completed; use their own tools or equipment to complete the work; can subcontract or delegate work to another person or business; set their work hours as part of their fee agreement; and are engaged to complete a specific project or projects. 

In recognition of the additional flexibility of the independent contractor relationship, Australian workplace laws afford fewer rights to independent contractors than to employees. For example, independent contractors are not entitled to paid vacation or sick leave or to a minimum rate of pay. Fees and a payment schedule are specified by the contract, and independent contractors are empowered to seek payment of delinquent invoices through the courts.

If your working arrangements more closely reflect that of an employee and you are being treated as an independent contractor, you may be a victim of “sham contracting,” which is when an employer represents employees as independent contractors to escape liability for employee entitlements.

Redundancy rights in Australia

Full-time and part-time employees are entitled to redundancy pay (also called ‘severance’) if their role is made redundant and their employment terminated. Redundancy payments are not required for casual workers or if the employer is a small business. Employers may be able to reduce redundancy pay by submitting a petition to the Fair Work Commission if they can find a mutually agreed alternate role for the employee or if they cannot afford to make the payments.

The amount of redundancy pay is determined by the employee’s length of continuous service with the employer (not counting periods of unpaid leave). General redundancy pay rates are set by the National Employment Standards, but some roles may be governed by separate industry-specific rules or by a registered agreement.

Agency worker rights in Australia

Agency workers are casual workers employed by labor hire agencies on behalf of another company to provide a specific service. As such, they are subject to the same rights and entitlements as casual workers. Moreover, agency workers are also protected from discrimination on the basis of their employment status, and the labour hire agency has a duty to ensure that they are provided with a safe working environment. They may have the right to join a union and engage in collective bargaining with their employer to negotiate better terms and conditions of employment. Finally, agency workers are protected from sham contracting, which occurs when an employer disguises an employment relationship as an independent contracting arrangement. If their work arrangement meets the criteria of an employment relationship, agency workers have the right to be classified as employees.

List of employee rights in Australia

Employee privacy rights in Australia

The Australian Privacy Principles set out requirements for the collection, storage, usage, and sharing of personal information and apply to businesses with annual revenue greater than $3 million, private health providers, certain small businesses, and government agencies.

Personal information is any information that could be used to identify someone. In the workplace, it may include: 

• Personal and emergency contact details; 
• Employment terms; 
• Wage rates; 
• Leave balances; 
• Timesheets; 
• Offer, resignation, or termination records; 
• Training, performance, or conduct records; 
• Tax, banking, or retirement records; 
• Union, professional, or trade association membership details

When an employer is using an employee or former employee’s personal information in direct relation to their employment, the personal information is not covered by the Australian Privacy Principles. The principles do protect the rights of rejected job candidates.

Employers are permitted to share employee and former employee personal information with: Fair Work Inspectors; certain government agencies as required by law or court order; permit-holders (usually union officials investigating suspected workplace rights violations); the employee or former employee themselves; and prospective future employers of the current or former employee.

Union representative rights in the workplace

Union delegates are protected under Federal Workplace Legislation so they can perform their union duties without undue interference. These protections include the rights to:

• Conduct the ordinary duties of being a union delegate without discrimination or retaliation
• Recognition that the delegate speaks on behalf of their colleagues
• Negotiate collective bargaining agreements on behalf of those they represent
• Be consulted by the employer on workplace changes
• Access relevant information (in accordance with privacy laws)
• Participate in dispute resolution and protected industrial action
• Meet with union members during break time at the workplace
• Consult with union members during work about a concern or dispute
• Participate in industrial activities and operation of the union
• Be paid for time spent attending union education (as required in the union agreement)
• Access reasonable facilities (phone, internet, email, fax, etc.) to communicate with union members
• Post union information on a highly visible notice board in the workplace

Women’s rights at work

Women in Australia are entitled to equal protection under the law and are free from discrimination by their employer on the basis of sex or gender. Employers are required to take all reasonable steps to prevent sex or gender discrimination from occurring at work.

Employers are required to pay men and women equally for the same or comparable work. Private employers with more than 100 employees and higher education institutions are required to submit an annual report of certain workplace data to the Workplace Gender Equality Agency (WGEA). Employers with more than 500 employees must also meet certain minimum standards, such as having formal policies to promote gender equality.

Pregnancy Rights at work

Women’s workplace discrimination protections extend to their pregnancy status. This includes protection against being unfairly dismissed, being forced to work reduced hours, being given less important work, or being passed over for promotion and training opportunities. It is also illegal for a prospective employer to ask about your pregnancy status.

Pregnant women are entitled to a safe workplace, and employers are required to accommodate medical needs. This may involve changes to job duties or hours. You may be required to present a certificate of medical necessity from your doctor. If your employer is unable to make your workplace safe for you and there is no alternate role, you are entitled to apply for ‘no safe job’ leave.

Women (including casual workers) who have worked at a company for 12 months before their due date are entitled to 12 months of unpaid leave. You must inform your employer at least 10 weeks before the start of the leave and are allowed to start your leave up to 6 weeks before your due date (or longer with the consent of your employer). 

Pregnant workers eligible for maternity leave are also eligible for unpaid special maternity leave, which can be used for pregnancy-related illness or when a pregnancy ends within 28 weeks of the due date (for example, because of miscarriage). You must inform your employer as soon as possible if you need to take special maternity leave.

Casual workers are also protected from unfair treatment and unsafe treatment while pregnant and have a right to return to their job when their leave ends.

Mental health rights at work

Workplace health and safety laws in Australia give workers the right to a mentally healthy work environment. Employers must:

• Provide a safe workplace (both mentally and physically)
• Prevent harm by managing factors that could create an unsafe work environment
• Prohibit discrimination against an employee on the basis of mental health status
• Respect the confidentiality of employee’s medical conditions, including mental health status
• Make reasonable accommodations like adjustments to work hours or responsibilities to enable ‘recovery at work’ and create a ‘return to work plan’ for the affected employee
• Maintain a record of workplace injuries, including mental health injuries

Employee rights to occupational health and safety

Workers in Australia are protected by occupational health and safety (OHS) laws that require their employers to provide a safe workplace. Workers OHS rights include the rights to:

• Have your health and safety protected
• Be consulted on workplace changes that may affect your health and safety
• Representation by an elected Health and Safety Representative (HSR) or to stand for election as an HSR yourself
• Safe workplace equipment
• Appropriate instruction and training to safely complete your work
• Workplace facilities required to ensure your personal welfare (toilets, first aid, etc.)
• Workplace condition and employee health monitoring by employer
• Request that your employer commence proceedings for the election of an HSR
• Request that your union conduct an HSR election
• Refuse work that could reasonably present a serious, imminent, and immediate threat to your health and safety
• Ask your HSR to halt unsafe work activity
• Have your HSR present during any interview by the employer on health and safety
• Be protected from discrimination or retaliation based on health and safety matters
• Have your HSR seek the assistance of a union on health and safety matters
• Ask for expert review by your union of a Health and Safety Inspector Decision that affects you
• Change your HSR by-election if they have been in the role for more than 12 months
• Workplace accommodations that do not expose you to an unsafe working environment

Disabled employee rights in the workplace

Workers with disabilities are protected from discrimination and unfair treatment by their employers. Illegal discrimination includes:

• Not hiring a job candidate
• Offering unfair or differential terms and conditions of employment
• Treating an employee differently
• Disadvantaging an employee
• Changing an employee’s job in a way that disadvantages them
• Unfairly dismissing an employee

Disabled employees are also entitled to a different minimum rate of pay, which is assessed by a qualified independent assessor based on the employee’s ability to complete their work responsibilities.

Other Protection Under The National Employment Standards

Although there are specific rights made for different types of workers, the National Employment Standards (NES) have also set up standards aimed to provide fair working conditions and protections for all employees. These protections include:

Being Safeguarded Against Unfair Dismissal and Adverse Actions

Employees who feel unfairly dismissed have the right to make an unfair dismissal claim if they meet certain eligibility requirements. For permanent employees, this includes having worked for their employer for at least six months or for 12 months if the employer has less than 15 employees. For casual employees, they must have been employed on a regular and systematic basis and have a reasonable expectation of continuing their employment with the employer. Applications for unfair dismissal and general protection dismissals must be filed within 21 days from the date the dismissal took effect, but extensions may be granted for exceptional circumstances.

Protection from Discrimination

It is illegal for an employer to treat an employee unfairly or unfavorably because of their race, gender, age, religion, or disability. This protection means that employees should not be discriminated against or harassed in any way based on these characteristics. Discrimination can include not being given a job or a promotion, being paid less than other employees doing the same job, or being subjected to offensive or abusive behavior. This protection is in place to ensure that all employees are treated fairly and have an equal opportunity to succeed in the workplace regardless of their personal characteristics. If an employee believes they have been discriminated against, they can make a complaint to their employer or a government agency.

Protections against coercion and misrepresentation

Employers are prohibited from forcing or pressuring employees to perform certain actions or prevent them from exercising their rights in the workplace. For example, an employer cannot threaten to terminate an employee’s job if they refuse to work overtime or perform duties outside their job description. Similarly, employers cannot provide false information or misrepresent the employee’s legal rights and obligations. This ensures that employees can work in a safe and fair work environment, free from undue pressure or coercion from their employers.

Anti-Bullying Provisions

The anti-bullying provisions of the National Employment Standards (NES) aim to protect employees from workplace bullying and harassment. Workplace bullying can be verbal, physical, or psychological and can include behaviors such as yelling, belittling, spreading rumors, and isolating employees. The NES defines bullying as repeated and unreasonable behavior that creates a risk to the health and safety of the employee. They also have a responsibility to provide a safe and healthy workplace for their employees. This includes taking steps to prevent workplace bullying and harassment. Employers can develop policies and procedures to prevent and address bullying and ensure that employees are aware of their rights and obligations. Training and education programs can also help raise awareness of bullying and promote a positive workplace culture.

The Fair Work Commission (FWC) is the national workplace relations tribunal that is responsible for resolving disputes between employers and employees. The FWC also makes, reviews, and varies modern awards, which are legally binding minimum employment standards that apply to specific industries or occupations.

Finding a workplace rights lawyer

A workplace rights lawyer specialises in Australian employment law and can help you ensure that your workplace rights are being protected, file complaints, and take legal action to enforce your rights through the courts. A good workplace rights lawyer can help you address instances of workplace discrimination on the basis of protected characteristics like sex or disability, make a complaint regarding unsafe conditions, contest unfair dismissal, and more.

Work Rights Australia is one of the nation’s leading employee advocacy and support services. We can help you understand and enforce your workplace rights. We are not a law firm – we are an independent advocacy, support and referral service with a panel of experienced HR, IR and legal specialists who we engage and instruct on your behalf.

If you believe your workplace rights may have been breached, please fill out the form to connect with Work Rights Australia.