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by Costa Brehas

Australia's labour laws provide employees with a number of rights and entitlements that are quite different from those that exist in South Africa. This article highlights some of those rights and entitlements.

National Employment Standards

From January 1, 2010 all employees have an automatic entitlement to 10 minimum conditions of employment known as the National Employment Standards (“NES”). Some of the more interesting entitlements arising under the NES relate to the following:

1. 12 month's parental leave in relation to the birth or adoption of a child. Unlike the position in South Africa this entire period is on an unpaid basis and the parent has a right to request a further 12 month's unpaid parental leave.

2. The right to request flexible working arrangements where the employee has a child under school-going age or a child who is disabled and under the age of 18.

3. Redundancy pay upon termination of employment as a result of redundancy. The amount of redundancy pay is based on the length of an employee's continuous service and ranges from four week's pay (between one and two years of service) to a maximum of 16 week's pay (between nine and 10 years of service).

4. Long service leave for long serving employees (usually where they have been employed continuously for at least seven years).


Where an employee's terms and conditions of employment are also determined by an Award, the rights and entitlements arising under that Award are in addition to those contained in the NES. Many Awards make provision for the following:

1. Payment of an annual leave loading of 17.5% in addition to the ordinary wages that an employee would receive when taking annual leave.

2. Payment of additional amounts known as penalties where an employee works on weekends, public holidays or during the evenings.

3. Overtime pay where an employee is required to work outside of his or her ordinary hours of work.

4. An allowance in relation to matters such as:

· Uniforms;

· Tools of trade;

· Meals;

· Broken periods of work;

· Being required to have a first aid qualification.

5. If the employee is engaged in a casual capacity, the right to be paid a minimum casual loading (in addition to minimum hourly wage rates).

Common Law

Most professional and senior level occupations are not subject to Award coverage and are therefore only subject to the NES. Any additional terms and conditions of employment should therefore be adequately reflected in the employment agreement failing which they will be determined by the common law (that is, judge-made laws).

Frequent disputes relating to the terms and conditions of employment of professional or very senior employees relate to the amount of notice that such employees will be entitled to upon termination of employment. If the employment agreement does not clearly address this issue the common law will entitle these employees to claim reasonable notice on termination (which can range from two months to in excess of 12 month's pay).

Because work occupies most of our lives, anyone who invests some time in order to gain a general awareness of their rights and entitlements at work is likely to reap the numerous benefits of working within Australia's labour system.

Costa Brehas (B.Proc – University of the Witwatersrand, South Africa) practiced as an attorney and conveyancer in South Africa and is currently engaged as a senior associate in the Employment and Workplace Relations Department of Hunt & Hunt.

See www.sabona.com.au/costabrehas

Disclaimer: The information contained in this article is not legal advice and should not be relied upon as legal advice.

Posted in business |
Posted by Costa Brehas
09 Feb 2010

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