AUSTRALIA Law and Practice Contributed by: Scott Colvin, Warren Scott and Lachlan Speirs, Archer Scott Lawyers
contracts and the common law operate above that floor. The Fair Work Commission is the national workplace tribunal and the Fair Work Ombudsman is the regula - tor, while work health and safety is governed by largely harmonised state and territory laws, and anti-discrim - ination obligations arise under both Commonwealth and state legislation. The framework has recently been reshaped by: • the Secure Jobs, Better Pay reforms, including limits on fixed-term contracts; and • the Closing Loopholes reforms, which: (a) changed the rules on casual employment, labour hire, gig and road transport work; (b) introduced same job, same pay; (c) criminalised intentional wage underpayment; and (d) introduced a right to disconnect. 4.2 Characteristics of Employment Contracts There is no requirement for an employment contract to be in writing; a contract may be made orally, although written contracts are standard practice. Whatever the contract says, the National Employment Standards, the applicable modern award and any enterprise agreement apply and cannot be displaced by agree - ment, so an employer cannot contract below the statutory floor. Contracts commonly deal with duties, remunera - tion, hours, leave, confidentiality, intellectual prop - erty assignment and post-employment restraints. The use of fixed-term contracts is now limited, with a general maximum of two years including renewals and some exceptions, and casual employment has a statutory definition together with a pathway by which eligible employees may choose to convert to perma - nent employment. Probationary periods are common, although the qualifying period for unfair dismissal pro - tection is six months, or 12 months for small business employers. 4.3 Working Time The National Employment Standards set maximum weekly hours of 38 for a full-time employee, plus additional hours where reasonable. There is no single
statutory overtime rate; overtime, penalty rates and loadings are set by the applicable modern award or enterprise agreement, and casual employees receive a loading (commonly 25%) in lieu of paid leave. Employees now have a right to disconnect, allowing them to refuse to monitor or respond to unreason - able out-of-hours contact, which, following a later commencement date, now applies to small busi - ness employers as well. The national minimum wage is reviewed annually by the Fair Work Commission, and paid leave entitlements (including annual leave, personal and carer’s leave, parental leave and long service leave) arise under the National Employment Standards and state legislation. 4.4 Termination of Employment Contracts Australia is not an employment-at-will jurisdiction. An employer must have a lawful basis to terminate and must give the minimum notice set by the National Employment Standards (scaled by length of service) or pay in lieu, unless the employee is summarily dis - missed for serious misconduct. Several statutory protections apply. Eligible employ - ees may bring an unfair dismissal claim if a dismissal is harsh, unjust or unreasonable, with remedies of reinstatement or compensation capped at six months’ pay. The general protections regime prohibits adverse action taken for a prohibited reason, such as the exer - cise of a workplace right, carries no compensation cap and reverses the onus of proof; separate protec - tions address unlawful termination and discrimination. A genuine redundancy is a defence to an unfair dis - missal claim, and redundancy pay is provided for under the National Employment Standards, with con - sultation obligations arising under awards and agree - ments. Where 15 or more employees are to be made redundant, the employer must notify Services Austral - ia and any relevant registered employee association, with consultation obligations arising mainly under the applicable award, enterprise agreement or workplace instrument. In transactions, the transfer of business rules can transfer employees and entitlements to a buyer. Acquirers plan for redundancies, accrued leave and transferring instruments, while post-employment
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