Regardless of whether you work for a large company or a small business, or you might be an employee, there may be a time when you need the services of an employment lawyer or an industrial agent like me who can offer honest advice about workplace rights in the workplace.
Although the Fair Work Act has a lot to say about it, he expression “workplace rights” is really a generic description of the rights which an employee has by reason of the relationship of employer and employee. It is important to recognise that the relationship derives firstly from the law of contract, and is called a contract of service. In contrast, the relationship of principal and independent contractor, which you as a home owner or occupier may have with your lawn mowing contractor, is called a contract for services.
So the starting point in determining what those rights may be is the contract between the parties. Many people tell me that they do not have a contract of employment, but by this they mean that they may not have a written contract. For example they may have been employed under a letter of appointment, or by a handshake with a manager saying that they have got the job and will be employed under the applicable award or enterprise agreement, which lawyers call “industrial instruments”.
But make no mistake, every employee has a contract of service. The task in determining the employment or workplace rights is to establish what that contract provides for. It may be partly oral, and partly in writing in much the same way as if you when buy an apple from a vendor. There is a contract. It has terms and conditions, express and implied.
Sitting on top of the rights determined by the contract, and terms implied into the contract by implication, such as custom and practice, and policies and procedures, are the rights which are prescribed by legislation (such as safety) and industrial instruments including modern awards and enterprise agreements. A position description may also be relevant to contractual obligations and workplace rights. You can read about the relevance of a PD in my blogs; in the blog index, locate and click on “Position descriptions”.
If you browse my employment law blog and read my posts about workplace rights, you will be able to obtain an answer to most questions which ordinarily arise about the distinction between workplace rights which arise for the contractual relationship between an employer and an employee, and those which for convenience might be called “fair work rights” which can be attributed to statute law including the Fair Work Act and the Western Australian Industrial Relations Act.
Under sec 114 of the Fair Work Act, an employer is entitled to ask an employee to work on a public holiday but the employee may refuse the request if the request is not reasonable or the refusal is reasonable. In determining the reasonableness of the above, a number of factors must be taken into account including the employee’s personal circumstances including family responsibilities. For a complete list of the relevant issues, go to sub-sec 114(4) of the Act.
I am often asked to advise about the minimum length of notice of resignation which must be given by an employee to an employer. Many people mistakenly believe that an employee must provide at least the same length of notice of resignation as an employer must provide when terminating the employment of an employee. Indeed I have even recently heard a lawyer express this view, which is wrong.
Under the Fair Work Act (sec 117), an employer must provide between 1 and 4 weeks’ notice of termination, depending upon the employee’s length of service, with a minimum of 4 weeks for more than 5 years of service. These requirements are minimum standards, and an employment contract can override the minima and provide for greater notice, either for the employer or the employee or both. The Fair Work Act does not provide for minimum periods of notice which must be given by an employee who is resigning. Such a requirement will be found if at all in a modern award or enterprise agreement (see sec , and the consequences of an employee not doing so will also only be found in such an instrument.
The error into which the above mentioned lawyer fell when saying that the lengths of notice which must be provided by an employer and an employee are the same arose from the application of a common law principle of contractual interpretation, which is hardly ever appropriate nowadays.