This article is written in response to me reading some social media posts by people seeking employment advice and the responses of well-meaning people giving out advice about employment law issues or referring to lay employment law advice available online.
I personally have an unhealthy obsession with “googling” and I love reading articles. Recipes for cooking dinner with hidden vegetable for the kids – #boom! Nailed it – found in 30 seconds. How to get a homemade slime stain out of a school uniform? Endless information (however, despite trial and error based on information in articles, I can’t get it out). You get the idea. The internet is awesome! But, relying upon articles, advice and information about the law that is not presented by qualified Lawyers on areas of law is scary.
Believe it or not, it is really hard being a Lawyer on social media and restraining yourself from commenting on well-meaning incorrect advice about the law. Why do we avoid commenting? In brief, simply because it is an ethical minefield for Lawyers that I would need to write a whole new lengthy article on to explain!
I completely understand that people who are having employment issues either can’t afford to expend money on getting legal advice or don’t even know where to start to find out their rights and employers obligations. However, relying upon non-legal advice is fraught with danger. Say you have a well-meaning friend who tells you about their issue and their advice to you about your issues from that. Or they tell you about their cousin’s sisters, ex’s, uncle’s, stepson went through the same thing and then explains what happened and what you should do. No…….. just no! Stop! This happens a lot. Each employment issue is individual in it’s circumstances. While there may be cases similar, this does not mean the outcome will be the same or similar, at all.
Employment law has such a strict time limit for some of the applications, so let’s try and debunk some myths and present some facts on who, what, when and where the Fair Work Commission and Fair Work Ombudsman come into play in employment law matters. At the bottom of the article, you will find some links for some useful websites for further information.
Who and what is – The Fair Work Ombudsman (“FWO”)
- The FWO’s role is to provide a free information service to employees and employers on their rights and obligations (this is not legal advice);
- The FWO can help employees and employers find correct pay rates and entitlements such as leave, overtime and allowances;
- The FWO enforces compliance with the Fair Work Act, related legislation, awards and registered agreements;
- The FWO does NOT deal with unfair dismissal and general protections. The FWO cannot investigate unfair dismissals and unlawful termination application, or investigate workplace bullying and harassment complaints (NOTE – very strict time limits apply for lodging a claim);
- You can make anonymous reports about workplaces to the FWO;
- The FWO works with employees and employers to resolve workplace issues by offering dispute resolution services. They do not advocate for either party – meaning they will not take sides through this process.
- The FWO enforce workplace laws and seek penalties for breaches of workplace law. They also enforce certain orders made by the Fair Work Commission;
- The FWO provide assistance on issues such as wage disputes and award entitlements;
- The FWO cannot assist with unpaid super (contact the ATO – https://www.ato.gov.au/Individuals/Super/In-detail/Growing/Unpaid-super/)
Who and what is – The Fair Work Commission (“FWC”)
- The FWC is the national workplace relations tribunal. You need to be employed under the Federal System (does not include State Government and Local Government Employees) in order for the FWC jurisdiction to apply.
- The FWC hear unfair dismissal and unlawful termination application, hear bullying and harassment applications, resolve general protection claims, accept and investigate bullying complaints, make changes to pay and entitlements in awards and registered agreements, approve registered agreements, make and change awards and make decisions about industrial action and union activity;
- The FWC do not provide advice on entitlements under an award or registered agreement or enforce minimum wage and award entitlements;
- Disputes – if an employee has not been dismissed, but alleges that there has been some other contravention of the general protections provisions, they need to make an application to the FWC to deal with the dispute;
- Dismissals (general protection) – if an employee believes they have been dismissed and alleges that their dismissal was in contravention of the general protections provisions, they should make an application to the FWC to deal with the dismissal. A general protections dismissal application must be lodged within 21 days of the dismissal taking effect.
- Unfair Dismissal – of an employee believes they have been unfairly dismissed an unfair dismissal application must be lodged within 21 days of the dismissal taking effect.
- Bullying and Harassment – Bullying at work occurs when a person or group of people repeatedly behaves unreasonably towards a worker or groups of workers at work AND that behaviour creates a risk to health and safety. Bullying does not include reasonable management action carried out in a reasonable way. Where matters do not resolve through the FWC dispute resolution/conciliation process, the FWC can through a hearing process, make an order they consider appropriate to prevent the worker from being further bullied.
If you can’t afford to obtain preliminary employment law advice specific to your circumstances from a Lawyer, then you may find the below links useful;
Caxton Legal Centre Inc https://caxton.org.au/employment_law_service.html
LawRight (Formerly Qpilch) http://www.legalpediaqld.org.au/index.php?title=Welcome_to_Legalpedia_Queensland
Don’t forget, if you are a union member you should contact your local organiser for advice. Also, consider if you have a local community legal centre to contact.
I cannot stress enough, that early legal advice is good advice. Strict 21-day time limits apply to some of the employment law entitlements!