Category Archives: employment

Casual workers can have unfair dismissal rights too!

All too often I see and hear people comment that casual workers don’t have rights in regard to unfair dismissal.  “You’re a casual, they can sack you at any time.”

This is a false statement and casual workers who rely upon this information are potentially losing out on entitlements.  Casual workers do have rights, which include, in some circumstances, actions for unfair dismissal.

Casual workers are excluded from bringing unfair dismissal claims unless they:

  • worked on a regular and systematic basis,
  • had a reasonable expectation of ongoing employment, and
  • worked in excess of 6 months (if their employer is not a small business employer) or 12 months (if their employer is a small business employer (under 15 staff).

Regular and Systematic basis

The Fair Work Commission considers the following factors when determining whether a casual’s employment was regular and systematic:

  • the worker is offered work regularly and generally accepts work when offered
  • a pattern or system is clearly established that the casual worker is offered work regularly and the worker would accept that work.
  • the casual worker generally works as part of a regular crew and has a reasonable expectation of work on particular days of the week. The casual does not need to be told each and every day to be required to work in these circumstances. This illustrates evidence of a regular and systematic basis for the employment.
  • there is a clear pattern of work being offered with reasonable frequency and of the work being generally accepted.
  • the employer has a reasonable expectation that the casual worker would work when work is offered. The pattern of employment cannot be described as irregular, informal or occasional.
  • it is not necessary to establish that shifts and start and finish times are regular or rostered to establish that the employment is on a regular and systematic basis.
  • whether during the period of employment there was a reasonable expectation of ongoing employment.
  • the evidence of what actually happened supports the finding that there was a reasonable expectation of ongoing employment on the same basis as had been occurring during the period of employment.

The recurring factors are that a casual worker is regularly offered work when it was available and came to expect that.

Reasonable expectation of ongoing work

The Fair Work Act also provides that a “long term casual worker “ is a national system worker of a national system employer at a particular time if, at that time:

(a)  the worker is a casual worker; and

(b)  the worker has been employed by the employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months.

The next step a casual need to consider is if they meet the requirements to bring an unfair dismissal on the basis that the dismissal was harsh, unjust or unreasonable. Strict 21-day time limits apply, so legal advice should be obtained urgently.

Employers and workers should also remember that just because a worker is called a casual does not necessarily mean that they are one! Many times, casuals have been found to be permanent employees.

This article is written to provide information only.  You should consult with a qualified lawyer with questions about your employment entitlements, specific to your circumstances.  State and Territory workers will need to review the State and Territory Laws, where they are not a national worker.  Other avenues also exist for general protection matters (involving termination) which has not been covered in this information sheet.

Employment Law – Who and what are the Fair Work Ombudsman and the Fair Work Commission

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.

Need advice?

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;

FWO: https://www.fairwork.gov.au/contact-us

FWC: https://www.fwc.gov.au/about-us/contact-us/enquiries

Legal Aid Queensland http://www.legalaid.qld.gov.au/Find-legal-information/Work-and-money/Employment/Employment-law-and-your-rights/

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!

School aged young workers and employment – what do you know about it?

Young worker

A few months ago, our eldest daughter (who is 15) started her first paid job.  It was a bittersweet moment.  My bank account was grateful and thankful to the employer for providing her with a job.  But, my head and heart felt concerned and anxious about how our eldest baby will experience her first job.

Our eldest daughter has been tasked with 7 years of emptying the dishwasher as her one chore.  Now, this is paid work within the home so I expect (as any employer would) for the job to be done.  However, sure enough, I have had to remind her to unload said dishwasher nearly each and every one of those days …for 7 years.  Hence my concern regarding her entering the workforce.  As the relationship dynamics are different, would she perform well? What if she doesn’t? How will her employer deal with her? And my “inner protective lioness”  moment of how is she going to deal with rude customers?

Fast forward to now.  She commenced her employment with an employer who has an impressive training technique.  She felt comfortable enough with the trainer and manager to ask a lot of questions during her training.  She likes her job.  Her employer likes her work performance and I like and appreciate her employer’s style.  She has dealt with rude customers in a way in which I am super proud! On this occasion, it all worked out.

In contrast, I have heard about the other end of the spectrum with inadequate training, questionable verbal interactions and bullying of young workers. Employers must take reasonable steps to ensure that a child (a young worker) is not subject to deliberate or unnecessary social isolation or any behaviour likely to intimidate, threaten, frighten or humiliate them.  Apart from rupturing young workers confidence, this is a serious health and safety risk.

Employing young workers is beneficial to businesses as it significantly reduces wages.  However, this also means that an employer must understand and adapt to the special characteristics involved.  The special characteristics of young workers include, but are not limited to;

  • The size of the person and physical maturity;
  • Their general behaviours and maturity;
  • Their work experience and training;
  • Their confidence to raise problems with their supervisors;
  • Their ability to make mature judgements about their own safety and the safety of others;
  • Their ability to cope with unexpected and stressful situations; and
  • Special characteristics that mean young workers are more likely to be affected that adults in the same situation.

Each State and Territory have legislation dealing with child employment which supplements the Fair Work Act 2009. This article is dealing specifically with the Queensland Child Employment Act 2006, the Child Employment Regulation 2016 (commenced 1 September 2016) and school-aged workers.

The common misconception is that children must be 14 years and 9 months in which to seek and obtain employment.   Queensland legislation generally prohibits (unless approved) the employment of young workers younger than 13 years of age.  Prior to age 13 approved circumstances include: for entertainment employers, family business and some forms of supervised employment such as deliveries and charitable collections.

Hours of work

For those young workers who are still at school there are restrictions on hours that can be worked on a school day and non-school day:

  • During a school week, a school-aged child can work a maximum of 12 hours per week;
  • Work on a school day is a maximum of 4 hours only; and
  • On days that children are not required to attend a school they can work a maximum of 8 hours, but again this is capped for a 12 hour week during school weeks.

During a non-school week, a school-aged child can work a maximum of 38 hours.

Times of work

Restrictions are in place regarding the times for work:

  • School-aged and young children cannot work between 10pm and 6.00am.
  • Those children between the age of 11 and 13 years (that carry out delivery work) cannot work between 6pm and 6am.

Children working in a family business are not subject to these restrictions, however family businesses should be mindful of the power the Director-General of the Department of Justice and Attorney- General’s office has to issue a work limitation notice (where it is reasonably believed that the work may interfere with a child’s schooling or be harmful to their safety, health, physical, mental or social development).

Business Owners

Business owners who should already be familiar with our Federal workplace laws should also review the Child Employment Act 2006, Child Employment Regulation 2016, the Child Employment Guide and Children and Young Workers Code of Practice 2006.

There is a number of published materials available online to assist employers, however, these should be tailored specifically to the workplace and the young workers employed.

The Fair Work Ombudsman has published the “Best Practice Guide – An employer’s guide to employing young workers.” Located here.

Queensland Work Health and Safety has published guidance material.  Located here.  In addition to a “Young Worker Safety Toolkit” located here.

Practical tips for working with young workers include: invite interactions, set short terms goals, tailor training to cultural, literacy and learning needs, provide a thorough induction and continued supervision, check for understanding and provide positive affirmations on their work progress.  If you are particularly keen, try reverse mentoring! Many young workers are highly skilled in tech and social media skills which may be beneficial to your business.

Parents/Guardian

Your school-aged or young child worker will need you to complete a parents/guardian consent form.   A parent/guardian must ensure:

  • they are present if it is their baby that is employed;
  • they provide a parent’s consent form to the employer before employment can occur;
  • they inform the employer if their child’s school hours change by submitting a parent’s consent form within 14 days of the hours changing.

Parents and guardians should familiarise themselves with the law surrounding young workers employment to ensure that both their child’s rights and obligations are being met.

The Queensland Department of Justice and Attorney General has published a “Child Employment Guide” located here.  By law, this guide is required to be displayed conspicuously in a child’s (young workers) workplace where it can be easily accessed by the child to read (by the employer).

The Fair Work Ombudsman has published a “Best Practice Guide – A Guide for young workers” located here.

The Regulations also provide for circumstances when your child is ill, parent/child communication during working hours and employers requirement to provide notice.

Young entertainment workers rights and obligations are not covered in this article.  This article provides very brief general information and does not cover all aspects of young workers in employment.  This article was written in 2016 qnd the law may have changed since then. Should you have a legal question or situation you should engage the services of a lawyer to provide you with advice on the law specific to your circumstances.