Employment Law Flashcards
(28 cards)
A business must be clear about whether its contract with a particular worker is:
- A contract of service
or - A contract for services
What is a contract of service?
When the worker is an employee and the business is an employer.
What is a contract for service?
The worker is an independent contractor and the business is a principal.
What are five differences between employees and independent contractors?
- Industrial awards apply to employees but not to independent contractors.
- Employees are legally entitled to annual holidays, sick leave and long service leave. Independent contractors are not.
- Employers are obliged to pay PAYG income tax instalments, payroll tax, fringe benefits tax and compulsory superannuation contributions in relation to employees but not in relation to independent contractors.
- Employees are entitled to workers compensation if they are injured. Independent contractors are not.
- An employer is vicariously liable for the acts of their employees but not for the acts of independent contractors (unless they owe a non-delegable duty of care).
What is the control test?
The traditional test used to determine if the worker is an employee or independent contractor.
How is it determined whether a worker is an employee or independent contractor?
- If the person paying for the services has the right to tell the worker what to do and how to do it, the worker is an employee.
- If there is a written agreement identifying the worker as an employee or independent contractor. An employer cannot disguise one type of arrangement by labelling it as the other.
- If rate of pay is set by the employer or worker.
- And more (week 5 slide 17).
An employer owes an implied duty to its employees to provide for their safety. In particular, it is obliged to:
- Employ competent and qualified co-workers.
- Provide a safe place of work.
- Exercise reasonable care in the supervision of the place of work.
Employees owe their employer an implied duty to carry out tasks that the employer assigns. Employees must not:
- Disclose the employer’s trade secrets and other confidential information.
- Help the employer’s competitors.
- Conceal relevant information from the employer.
- Take advantage of information and opportunities for their own personal benefit.
The entitlements and work conditions of an employee covered by the federal system of work place relations will be determined by:
- The National Employment Standards (NES).
- The terms of the relevant award of enterprise agreement.
- The terms of their employment contract.
What is the National Employment Standards (NES)?
A set of ten minimum employment standards that apply to all employees in the federal system.
What are the ten minimum employment standards addressed by the NES?
- Maximum weekly hours of work (38 hours per week + reasonable additional hours).
- Requests for flexible working arrangements.
- Parental leave and related entitlements.
- Annual leave.
- Personal/carer’s leave and compassionate leave.
- Community service leave.
- Long service leave.
- Public holidays.
- Notice of termination and redundancy pay.
- Provision of a Fair Work Information Statement.
What five NES entitlements apply to casual employees?
- 2 days unpaid carer’s leave and 2 days unpaid compassionate leave per occasion.
- Maximum weekly hours.
- Community service leave (except paid jury service).
- A day off on a public holiday (unless reasonably requested to work by the employer).
- Provision of the Fair Work Information Statement.
What can the terms of an award or enterprise agreement do to the NES?
They cannot exclude the NES, however they can supplement it by providing entitlements that do not disadvantage employees in comparison with the NES.
What is an example of what the terms of an award or enterprise agreement can permit?
- Averaging of an employee’s ordinary hours of work.
- The cashing out of paid annual leave.
- The cashing out of paid personal/carer’s leave.
- The substitution of public holidays.
- Situations in which redundancy pay entitlements do not apply.
What can employment contracts provide for?
For employers and employees who are not covered by an award or enterprise agreement, an employment contract can provide for:
- Averaging hours of work.
- Cashing out of paid annual leave.
- Substitution of public holidays.
- Extra annual leave.
- Extra personal/carer’s leave.
Employment contracts must provide entitlements that are __ or __ to the employee than the NES.
Equal to or more favourable than the NES.
What is an award?
An instrument prescribing employee entitlements and working conditions within a particular trade, occupation or industry. Usually the result of extensive negotiation between employers, employees and unions within the particular trade, occupation or industry.
What does an award set out?
Sets out minimum employment standards that apply in addition to the NES.
Who makes awards?
The Fair Work Commission.
What terms to awards contain?
- Base rates of pay.
- Types of employment.
- Overtime and penalty rates.
- Work arrangements.
- Annualised wage or salary arrangements.
- Allowances.
- Leave, leave loading and taking leave.
- Superannuation.
- Procedures for consultation, representation and dispute settlement.
- Outworkers.
- Industry-specific redundancy schemes.
What terms do modern awards include?
- Flexibility (allowing employers and employees to negotiate changes to meet their individual needs).
- Procedure for settling disputes about matters covered by the award or NES.
Who might a modern award not apply to?
Managers or high income employees.
What happens if an employer fails to recognise the minimum entitlements of an employee under an award?
They will be prosecuted for breach of the award.
What is an enterprise agreement?
Agreements made between employers and employees about the terms and conditions of employment.
