Australia HR Information

Updated on: 2025/08/04 14:03 (UTC)

Overview

Australia’s constitution divides governmental power between the federal government and the state governments, and both have power to enact labor legislation. Since 1996, the federal government has increasingly used its constitutional power to override state labor laws and unify the industrial relations system under federal law.

Australia’s workplace relations system is governed by the Fair Work Act 2009, which established Fair Work Australia—renamed the Fair Work Commission by the Fair Work Amendment Act 2012—as an independent labor-relations referee.

The Fair Work Commission has authority to:

• change sector workplace agreements (known as “awards”);
• approve workplace collective bargaining agreements (known as “enterprise agreements”);
• issue minimum wage orders;
• decide unfair dismissal claims; and
• issue orders on such matters as good-faith bargaining and industrial action.

Fair Work divisions have been created in the Federal Court and Federal Magistrates Court to hear matters that arise under the workplace relations laws.

The National Employment Standards are the minimum entitlements of workers covered by federal awards in Australia under the Fair Work Act 2009. An award, employment contract, enterprise agreement or other registered agreement cannot provide for conditions that are less than the national minimum wage or the NES and they cannot be excluded.

The 10 minimum entitlements of the NES are:

• maximum weekly hours;
• requests for flexible working arrangements;
• parental leave and related entitlements;
• annual leave;
• personal carers leave and compassionate leave;
• community service leave;
• long service leave;
• public holidays;
• notice of termination and redundancy pay; and
• Fair Work Information Statement.

Hiring

Employment Contracts

There is no requirement that an employment contract be in writing. While employer and employee are free to agree on whatever terms of employment they choose, courts have held that there are a number of implied requirements in an employment contract even where they are not specified.

The employment relationship between an employer and an employee is governed by a civil contract where the employee agrees to perform work for the employer in exchange for monetary payment. The employer and employee are free to agree on whatever terms of employment they choose, subject to legislative minimum rights and collective agreement.

Employers have to give every new employee a copy of the Fair Work Information Statement before, or as soon as possible after, they start their new job. The statement provides new employees with information about their conditions of employment, including right to request flexible working arrangements, freedom of association, and termination of employment. :

Casual employment arrangements are permitted in Australia. A casual employee:

• has no guaranteed hours of work;
• usually works irregular hours;
• doesn’t get paid sick or annual leave; and
• can end employment without notice, unless notice is required by a registered agreement, award, or employment contract.

Casual employees, after 12 months of service, may request to convert to full-time or part-time employment.

Fixed-Term Contracts. From December 6, 2023, Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) will come into force, limiting the use of fixed-term employment contracts under the Fair Work Act 2009 (Cth).

With some enumerated exceptions, Australian law prohibits fixed-term employment contracts that:

• • are for a fixed term for two or more years;
• • are renewable with the total sum of the renewed contracts is more than two years;
• • contain an option or right to extend or renew the contract more than once; and
• • are comprised of a series of previous contracts and contracts contemplated in the future.

Restrictions on Hiring

Labor laws in Australia place restrictions on hiring in certain instances. For example, each state or territory has its own standards for the minimum age at which employees can begin working. There are also specific standards limiting how many hours children can work and when their work can be scheduled.

Recordkeeping

Employers are required to maintain records for at least seven years of:

• the name of the employer and the name of the employee;
• the Australian Business Number, if any, of the employer;
• the date the employee started working for the employer;
• whether the employee is a full-time or a part-time worker;
• whether the employee is permanent, temporary or casual;
• the employee’s pay rate, including gross and net pay and deductions taken;
• bonuses, incentive payments, penalty rates or entitlements;
• overtime hours worked;
• hours worked if the employee works casual or irregular part-time hours and is guaranteed pay set by reference to time worked;
• a written copy of any agreement to average the employee’s work hours and
• a copy of any individual flexibility arrangements agreed to and, if the agreement is terminated, a copy of the termination.

Background Checks

Background checks are generally permissible if they are directly relevant to the role and the applicant consents to the check. However, equal employment opportunity legislation can make it unlawful for employers to probe for certain types of information and the Privacy Act 1988 imposes strict rules on how personal information can be handled. Criminal record checks also are subject to laws regulating how recent the criminal record information must be to be considered in hiring. In a number of jurisdictions, the use and disclosure of certain criminal records are regulated by “spent-convictions” legislation, which prohibits consideration of old transgressions. Spent convictions are those that have not occurred recently and did not involve a lengthy prison sentence. Different spent-convictions systems operate at the federal and state levels. The Office of the Privacy Commissioner accepts complaints of breaches of the commonwealth spent-convictions requirements, which are part of the Crimes Act 1914.

While federal law does not explicitly state that it is illegal for employers to discriminate in employment decisions based on a person’s criminal record, the Human Rights Commission investigates complaints involving such discrimination in employment and, when appropriate, tries to resolve them by conciliation. At the state level, Tasmania and the Northern Territory have laws that make it illegal for employers to make employment decisions based on a person’s criminal record, but both federal and state laws provide that it is not illegal for an employer to take criminal records into account if the criminal record means a person is unable to perform the essential duties of a job.

Noncompetition Agreements

Covenants not to compete can be written into an employment contract when the employee’s work is particularly confidential or if the employee could cause trade harm to the company if he or she were to work for a competitor. Covenants not to compete must protect legitimate business interests and be reasonable in whom they apply to, what they restrict, and how long they apply.

If reasonable and properly constructed, a covenant not to compete can be enforced by injunction or through an award of damages for harm to the employer’s business.

Reference Citations

Employment Contracts: Fair Work Act 2009 (Cth), No. 28, §§ 87-94, 124

Recordkeeping: Fair Work Act 2009 (Cth), No. 28, § 535

Background Checks: Privacy Act 1988, No. 119

Immigration and Work Permits

In General

The Temporary Skill Shortage (TSS) visa (subclass 482) is designed to help employers address workplace shortages when they cannot source an appropriately skilled Australian. The TSS visa consists of two streams: the Short-term Skilled Occupation List (STSOL), which is valid for two years, and the Medium and Long-Term Strategic Skills List (MLTSSL), which is valid for four years.

Employers must be approved as a Standard Business Sponsor in order to employ a TSS visa holder. Applicants for the TSS visa must have at least two years of work experience and meet English language requirements. Employers must demonstrate that they have tested the labor market and ensure that the salary for the position meets minimum thresholds.

Visas and Work Permits

The Temporary Skill Shortage (TSS) visa (subclass 482) is designed to help employers address workplace shortages when they cannot source an appropriately skilled Australian. The TSS visa consists of two streams: the Short-term Skilled Occupation List (STSOL), which is valid for two years, and the Medium and Long-Term Strategic Skills List (MLTSSL), which is valid for four years.

Employers must be approved as a Standard Business Sponsor in order to employ a TSS visa holder. Applicants for the TSS visa must have at least two years of work experience and meet English language requirements. Employers must demonstrate that they have tested the labor market and ensure that the salary for the position meets minimum thresholds.

Employers must observe the following labor market testing guidelines:

• at least two advertisements must be placed, in English, for at least 28 days, not longer than four months before submitting the visa application; and
• the advertisements must contain the position title, job description, skills required for the position, name of the business, and salary (if this is below the high-income threshold).

Labor market testing is not required in cases where the employee:

• is an intra-company transferee;
• earns at least A$250,000;
• is in a position that requires internationally recognized skills in sport, academia, or cuisine; or
• is a medical practitioner or ambulance officer/paramedic.

The Employer Nomination Scheme allows employers to nominate skilled foreign employees to work in Australia on a Subclass 186 permanent residence visa. Applicants for permanent visas must achieve a score of 6 or higher in each component of the International Language Testing System (IELTS) or equivalent test. All applicants for permanent visas must be under 45 years old and have at least three years’ work experience.

Individuals who are at least 18 but not yet 31 years of age may apply for a working holiday visa (Subclass 417), which allows them to work for one employer for up to six months.

In 2019, the government introduced a provisional a skilled employer-sponsored regional visa, valid for five years, that requires sponsorship by an employer in a regional area. The visa has priority processing and a list of around 700 occupations that can be sponsored.

The majority of working visas allow foreign nationals to include their family members as applicants on their application.

Employers who sponsor foreign workers must pay a visa tax.

Effective July 1, 2023, the TSMIT Income Threshold will increase from $53,900 to $70,000. New nomination applications will need to meet the new $70,000 threshold or the annual market salary rate, whichever is higher. This increase will not affect existing visa holders and nominations lodged before July 1, 2023.

Penalties

Under amendments to the Migration Act 1958, it is a crime for employers, labor suppliers, or other persons to knowingly allow a noncitizen who doesn’t have a visa or has violated the conditions of a visa to work or to refer such a person to another employer. Companies that breach the law face a range of sanctions, including financial and administrative penalties, such as cancellation of their sponsorship and/or a ban on sponsoring additional employees for a specific period of time.

Reference Citations

Visas and Work Permits: Working in Australia

Penalties: Migration Act 1958, No. 62

Nondiscrimination

In General

Employers may not discriminate against employees or prospective employees on the basis of their race, color, sex, sexual orientation, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion or national or social origin. Employees are specifically protected against workplace bullying.

The Fair Work Act 2009 prohibits discrimination against employees or prospective employees on the basis of their race, color, sex, sexual orientation, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion or national or social origin and specifies civil penalties for infractions.

Other federal and state antidiscrimination laws provide more specific protections against particular forms of discrimination.

Australia’s “anti-bullying” law protects employees from repeated unreasonable behavior by a person or group of people that creates a risk to the individual’s health and safety. The law applies to employees, outworkers (home-based employees), contractors, subcontractors, trainees, apprentices, volunteers and students gaining work experience. An individual covered under the act can make an application to the Fair Work Commission to address the bullying, and the commission is required to issue an order within 14 days. The individual may then apply to the Federal Court or Federal Circuit Court to enforce the order if the employer fails to comply. Employers found acting in contravention of a Fair Work Commission order can be required to pay civil penalties.

Age Discrimination

Age discrimination is prohibited under federal law by the Age Discrimination Act, which makes it unlawful for employers to discriminate on the basis of age against employees, commission agents or contractors in recruitment, terms and conditions of employment, benefits, training, promotions or dismissals, except in cases in which a person could not perform the essential duties of the job because of his or her age. The act provides for several general exemptions including positive discrimination, domestic work, charities, religious bodies and voluntary bodies.

Employment agencies, partnerships and qualifying bodies (bodies that provide authorizations or qualifications for a profession or trade) face the same prohibitions against discrimination. Direct actions and policies can be discriminatory, but so can indirect actions and policies or those whose effect is to put workers within a certain age group at a disadvantage. Attempts by employers to force employees to retire upon attaining a specific age are prohibited. The act was amended in 2009 to remove the requirement that an individual prove that age was the “dominant reason” for denial of employment. Currently, it need only be established that age was “a reason” for less favorable treatment.

Disability Discrimination

The federal Disability Discrimination Act 1992 makes it unlawful to discriminate against employees, commission agents or contractors on the grounds of disability. As with age discrimination, employment agencies, partnerships and qualifying bodies face the same restrictions on discrimination.

The law defines disability as:

• a total or partial loss of a part of the body or of bodily or mental functions;
• infection by an organism capable of causing disease or illness;
• a physical malformation, malfunction, or disfigurement;
• a learning disorder or
• a mental or emotional disorder.

The disability law covers those with conditions that may be disabling, such as HIV/AIDS and learning or attention-deficit disorders. It provides exceptions, allowing discrimination in cases in which a disability would render a person unable to perform the essential duties of a job or when compliance would result in unjustifiable hardship to the employer.

Gender Discrimination

The federal Sex Discrimination Act, as well as state statutes, prohibits discrimination based on a person’s gender in all areas of employment. The person accused of the discrimination action carries the burden of proving that the action does not constitute discrimination. The law recognizes a number of exceptions that allow discrimination, including in jobs in which being a man or a woman is considered a genuine requirement, such as:

• when the privacy of customers is involved;
• when an employee would require services or facilities that would impose an unjustifiable hardship on the employer;
• in the context of special measures, such as affirmative action policies designed to promote equality and
• in specific employment situations, such as those involving private households, religious bodies or combat duties.

The Sex Discrimination Act also prohibits discrimination against employees, commission agents or contractors because they are pregnant, may become pregnant in the future or are breast-feeding. Employment agencies, partnerships and qualifying bodies are also prohibited from such discrimination against those seeking their services. It is also unlawful for potential employers to question applicants about current or future pregnancies or for an employer to inappropriately use medical information collected from pregnant women (such information can only be used for appropriate purposes, such as occupational health and safety reasons).

Effective December 12, 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (the Act) amends the Sex Discrimination Act to impose a positive duty on employers to take “reasonable and proportionate measures to eliminate, as far as possible” in the workplace context:

• • sex-based discrimination or harassment,
• • sexual harassment, and
• • certain acts of victimization.

Pay Discrimination

Employers must provide men and women equal pay for equal work.

Gender Pay Reporting: Establishments with 100 or more employees must submit an annual report to the Workplace Gender Equality Agency (WGEA) that compares aggregated average base salary and total remuneration of male and female employees. The employer must inform employees that it has lodged the report with the WGEA and the way in which it may be accessed. To increase pay transparency, the WGEA has the authority to disclose the reports to the public. The Workplace Gender Equality Amendment (Closing the Gender Pay Gap) Act of 2023 allows the agency to disclose the gender pay gaps of relevant employers for each reporting period.

Race Discrimination

The Racial Discrimination Act 1975 was the first federal antidiscrimination law enacted in Australia. Under the act, restrictions, exclusions and preferences based on race, color, descent or national or ethnic origin that impair a person’s human rights or fundamental freedoms are unlawful. It is also unlawful to perform acts in a public place that are likely to offend, insult, humiliate or intimidate another person or a group of people if the act is done because of the race, color or national or ethnic origin of the other person or people. The law requires equal access to public accommodations and goods and services and bans discrimination in trade unions, employment and advertising, among other things. The law does allow for affirmative action programs. The prohibition against race discrimination also is included in various state statutes.

Sexual Orientation

The Fair Work Act makes it unlawful to discriminate in recruiting, hiring, terms of employment, or dismissal because of a person’s sexual orientation.

Sexual Harassment

Eligible workers who believe that they’ve been sexually harassed at work can apply to the Fair Work Commission for an order to stop the sexual harassment. Under the Sex Discrimination and Fair Work Amendment Act 2021, sexual harassment at work is a form of serious misconduct and can be a valid reason for dismissal under the Fair Work Act. Victims of sexual harassment can take up to two years to bring a sexual harassment complaint before the Australian Human Rights Commission.

Other Forms of Discrimination

Family care responsibilities.The federal Sex Discrimination Act 1984 prohibits employers from discriminating against or dismissing an employee due to his or her responsibilities to care for or support a dependent child or any other immediate family member in need of care and support.

Marital status. The Sex Discrimination Act prohibits discrimination on the basis of marital status, which includes the following categories:

• single,
• married,
• married but separated,
• divorced,
• widowed and
• de facto partner.

The law prohibits employers from discrimination against employees, commission agents or contractors in recruitment, hiring, promotions, training, benefits and dismissal on the basis of marital status. Employment agencies, partnerships, and qualifying bodies face similar restrictions. Under 2008 amendments to this law, “de facto” partner includes same-sex partners.

Reference Citations

Nondiscrimination: Fair Work Act 2009 (Cth), No. 28 § 351

Age Discrimination: Age Discrimination Act 2004, No. 68

Disability Discrimination: Disability Discrimination Act 1992, No. 135

Successorship Clauses: Fair Work Act 2009 (Cth) §§ 310-316

Gender Discrimination: Sex Discrimination Act 1984, No. 4; Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth)

Pay Discrimination: Fair Work Act 2009 (Cth), No. 28 §§ 300-305

Racial Discrimination: Racial Discrimination Act, No. 52

Employee Privacy

Employee Data

The Privacy Act is the primary law that governs personal data in Australia, but employee records are specifically exempt from the law if the use of employee information is directly related to a current or former employment relationship between the employer and the employee. The use of employee information must be directly related to the employment relationship and also must be directly related to employee records held by the employer. The exemption does not apply to information collected during the recruitment phase.

Employers who collected information about employees’ COVID-19 vaccination status and COVID-19 vaccination certificates under the Occupational Health and Safety Amendment (COVID-19 Vaccination Information) Regulations must destroy that information by Friday, August 11, 2023.

Employee Monitoring and Surveillance

The Privacy Act 1988, Australia’s federal privacy law, does not cover surveillance in the workplace, but some states and territories have enacted laws that do, such as the New South Wales Workplace Surveillance Act 2005. This law requires that employees be given advance written notice of various forms of surveillance and that employers develop a workplace policy before using computer surveillance to monitor e-mail or Internet use or blocking the delivery of e-mail or access to Internet sites.

Nationally, the Australian Office of the Privacy Commissioner has issued guidelines on workplace surveillance, noting that employers have the right to monitor and restrict the use of email and Internet access and suggesting that employers develop workplace policies regarding the use of such systems.

The National Privacy Principles within the Privacy Act were replaced with the Australian Privacy Principles in 2014. These changes cover the collection, use, disclosure, and storage of personal information. They allow individuals to access personal information collected by others and have it corrected if it is incorrect. Separate principles deal with the use and disclosure of personal information for the purpose of direct marketing, cross-border disclosure of personal information, and the adoption, use, and disclosure of government-related identifiers.

Reference Citations

Employee Data: Privacy Act 1988, No. 119, § 7B

Employee Monitoring and Surveillance: Australian Privacy Principles

Compensation

Hours of Work

The standard workweek is 38 hours, the standard workday 7.6 hours. Employers may require employees to work additional hours if they are “reasonable,” which involves such factors as whether the workers are eligible for overtime, their family responsibilities, their usual roles and level of responsibility, the needs of the business, and the usual patterns in the industry sector. Workers may refuse to work additional hours if they are not considered reasonable. Employers and employees may agree in writing to an averaging arrangement to average their ordinary hours of work. However, the maximum averaging period is 26 weeks. Employers cannot force employees to average their hours of work.

Awards, enterprise agreements or agreements between individual employers and employees set the spread of hours within which ordinary work hours may be assigned. Typically, awards and agreements also prescribe a minimum period of rest, often 10 hours, between ceasing work one day and commencing work the next day. In addition, awards and agreements may limit the number of overtime hours that may be worked, although the cap of reasonable additional hours applies to all employees.

Amendments to the Fair Labor Act require employers to consult employees regarding changes in working hours regardless of whether the change results in a “major workplace change.” The employer is required to provide information to the employees regarding the proposed change, allow the employees to comment and consider the comments in determining whether to implement the change.

Flexible work arrangements. Employees can make a request for a flexible work arrangement if they have completed at least 12 months’ continuous service and are:

• parents, or are responsible for the care of a child;
• responsible for the care of a child who is disabled;
• carers within the meaning of the Carers Recognition Act 2010;
• disabled;
• aged 55 years or older; or
• experiencing domestic violence or providing care or support to another member of their family/household who are experiencing domestic violence.

Employers may only refuse a request based on ‘reasonable business grounds’ and must genuinely try to take into account the employees’ needs and the consequences for the employee if changes are not made. Employers must give employees a written response to their request within 21 days.

The Professional Employees Award 2020 applies to employees performing professional engineering and scientific duties, and those in the information technology industry, the quality auditing industry, the telecommunications services industry and professional medical research employees. From September 16, 2023, covered employees are entitled to:

• • An average work week of up to 38 hours.
• • Penalty pay rates or overtime when their hours exceed 38 hours per week or for hours worked outside of regular hours, including on public holidays and Sunday, even if the work is done remotely or without the direction from a supervisor.

Employers must keep records of all hours worked.

Minimum Wage

Effective July 1, 2024, the standard minimum wage is A$915.90.80 per week or A$24.10 an hour. Effective July 1, 2023, the standard minimum wage was A$882.80per week or A$23.23 an hour. Minimum wages are generally specified in collective bargaining agreements, although the national minimum is considered in setting those rates and applies to workers not covered by such agreements.

‘Stand-down’ provisions. Generally, to “stand down” is to place an employee on unpaid status. The Fair Work Act 2009 contains a general right to stand down employees during a strike, a breakdown of machinery or a stoppage of work for any cause for which the employer cannot reasonably be held responsible, such as a natural disaster. Enterprise agreements or employment contracts may have clauses limiting employers’ rights to stand down workers.

Farm workers must be paid at least the required minimum wage for any hour they work even if they are paid with piece rates rather than hourly rates. Employers must record the hours worked by a pieceworker and the piece rates applied.

Overtime

There are no federal or state laws setting a standard for overtime pay rates, which are established in collective bargaining agreements. Pay rates for overtime, usually defined as any work in excess of 38 hours in a week or outside the ordinary hours listed in the agreement, are typically based on a percentage system. A common award provision requires an overtime rate of time and one-half for the first three hours of overtime and double time thereafter. Other overtime or “penalty” rates are commonly set for work on Saturdays, Sundays and public holidays. The usual rate for Sundays and public holidays is double time or double time and one-half.

Wage Payment

Employees must be paid at least monthly. Employers are required to provide employees with a written or electronic pay slip within one workday of wage payment. All pay records must be kept for seven years and must be available for inspection by an employee, a former employee or a workplace inspector.

Employers cannot unreasonably require their employees to make payments to the employer, or deduct from amounts owed to the employee, in circumstances where the payment or deduction would directly or indirectly benefit the employer or a party related to the employer.

Mandatory Bonuses

Although not required by law, performance-based bonus schemes are common in collective bargaining agreements.

Reference Citations

Hours of Work: Fair Work Act 2009 (Cth), No. 28, §§ 62-65

Minimum Wage: Fair Work Act 2009 (Cth), No. 28, §§ 284-299, 524-529

Overtime: Fair Work Act 2009 (Cth), No. 28, § 62

Wage Payment: Fair Work Act 2009 (Cth), No. 28, § 323

Benefits

Vacation

Full-time employees are entitled to four weeks of paid annual leave each year. There is no qualifying period that must be met to be eligible for annual leave benefits. The leave accrues progressively during the year and can be accumulated from year to year. Part-time employees accrue their annual leave on a pro rata basis. Casual employees—those who work on an irregular, short-term basis—are not entitled to annual leave.

Employers can mandate when leave is taken in certain instances, such as when the business is shutting down or the employee has accumulated excess leave.

Shift workers get one extra week of annual leave each year. What constitutes shift work is defined by sector workplace agreements (“modern awards”), workplace collective bargaining agreements (“enterprise agreements”) or the National Employment Standards. Shift workers must be employed by a company that has continuous shifts all week, must be regularly scheduled to work those shifts and must regularly work Sundays and public holidays.

Employees get their base rate of pay when taking annual leave. Annual leave may be cashed out, but only if the employee would still have at least four weeks of accrued annual leave (or the pro rata equivalent for part-time employees). Agreements to cash out annual leave must be in writing. The employer must not exert undue influence on an employee to agree to cash out an amount of annual leave, and the employee must be paid at least the full amount that would have been payable had the annual leave been taken.

Although not required by law, annual leave loading—or getting pay for annual leave above the usual pay rate—is a standard employment benefit throughout Australia. Employees usually get paid at a rate of 17.5 percent above their ordinary salary for each week they are on vacation.

Employees who have worked for the same employer for a number of years may be entitled to paid long-service leave. Entitlement to long-service leave, which usually is detailed in awards or workplace agreements, accrues after a prescribed period of continuous service or employment. While provisions regarding long-service leave eligibility vary, the states and territories commonly require about eight to 13 weeks of paid leave, generally after 10 years of service, with some jurisdictions requiring additional weeks of paid leave upon achievement of higher thresholds of continuous years of employment with an employer. Some jurisdictions allow employees access to prorated long-service leave after seven years of continuous employment with an employer.

Holidays

The Fair Work Act specifies eight public holidays, but states or territories can add to these or substitute others in their places. Employers can agree to different holidays through collective bargaining agreements or direct negotiations with employees.

The eight public holidays specified in the Fair Work Act are:

• Jan. 1: New Year’s Day
• Jan. 26: Australia Day
• Good Friday
• Easter Monday
• April 25: Anzac Day
• Queen’s Birthday: different dates in various parts of the country
• Dec. 25: Christmas Day
• Dec. 26: Boxing Day

Note: Australia has declared Thursday, September 22, 2022, a national holiday for the funeral of Queen Elizabeth II.

The Fair Work Act does not require employers to pay overtime wages to employees who work on a public holiday.

Employees have the right to refuse to work on a public holiday on reasonable grounds. Under the Fair Work Act of 2009, employers may not require an employee to work on a public holiday although an employer may ask an employee to do so if the request is reasonable and the employee has the choice to deny the request.

Shutdowns. From May 2023, employers must give affected employees a minimum of 28 days’ written notice of a shutdown, or temporary closure of the workplace, per an August 25, 2022 decision by the Australian Fair Work Commission. The employer may require employees to take paid leave during the period of closure but this direction must be in writing and be reasonable. Employers cannot require employees to take unpaid leave during a shut down but may offer it as an option. This agreement must be in writing. If the shutdown overlaps with a public holiday, both full-time and part-time employees must also receive payment for these days.

Maternity Leave

There is no specific statutory requirement for maternity leave, but The Paid Parental Leave Amendment 2022 amends the Fair Work Act 2009 to add two weeks’ father and partner pay to provide a single 20-weeks of paid parental leave, to be shared between each parent. Beginning July 1, 2023, parents will be able to receive a maximum of 18 weeks’ parental leave pay each, and a maximum of 20 weeks’ parental leave pay between them.

The 2022 amendment removes the requirement that, In the first year after a birth or adoption, parents must take a continuous period of 12 weeks of PPL. Beginning July 1, 2023, parents can receive parental leave pay in multiple blocks, of at least a day at a time, up to two years from the birth or adoption of their child. Within two years of a birth or adoption, parents can take up to 30 days in flexible periods as negotiated by the employee with their employer. In most cases, the Australian Government makes PLP payments to the employer, who then pays the employee.

Parental Leave: Effective July 1, 2024, new parents will be entitled to 22 weeks, instead of 20 weeks, of government-funded paid parental leave under legislation passed on March 18, 2024. Paid parental leave will increase to 24 weeks from July 2025 and 26 weeks from July 2026.

PPL is designed to supplement or compliment other paid or unpaid leave programs already available. The Fair Work Act 2009, for example, provides a maximum 52 weeks’ unpaid parental leave for each parent or “de facto” partner—which can include gay or lesbian partners—for the birth of a child or the adoption of a child under the age of 16.

Many Australian employers provide paid parental leave on a voluntary basis through an employment contract, an enterprise agreement or a workplace policy. Paid parental leave can be taken in conjunction with or in addition to employer-provided paid or unpaid leave.

Prenatal leave: A pregnant employee may begin her leave up to six weeks before the expected birth of her child. If a pregnant employee wishes to continue working but fears her present job poses risks because of her pregnancy, she can ask her employer to be put in a safe job during the pregnancy at the same rate of pay. If there is no safe job available, the employee is entitled to paid leave.

Following parental leave, an employee is entitled to return to his or her former job or, if that job no longer exists, the closest similar job that is available that the employee is qualified to do.

Other special situations covered by the Fair Work Act include:

• Extension requests: A parent can request an extension of unpaid leave to a maximum 24 months, which the employer can refuse if reasonable business grounds exist. If a parent who is married or has a de facto partner is granted additional unpaid leave, the extra time is subtracted from the other parent’s leave entitlement.
• Special maternity leave: Special maternity leave can be taken by a female employee for a pregnancy-related illness, to recover from a miscarriage that occurs up to 28 weeks before the expected date of birth or in the event of a stillbirth. The employer can ask for evidence, such as a medical certificate, that the leave is needed. If the leave is needed because of an illness, whatever special leave the worker takes decreases the amount of leave she may take for the birth of the child.
• Pre-adoption leave: An employee seeking to adopt a child may take up to two days’ unpaid leave to attend any interviews or examinations required to obtain approval for the adoption. If the employee has other leave available, however, the employer can require the employee to use that leave instead.

Paternity Leave

There is no specific statutory requirement for paternity leave, however the Paid Parental Leave Amendment 2022 amends the Fair Work Act 2009 to add two weeks’ father and partner pay to provide a single 20-weeks of paid parental leave, to be shared between each parent. Beginning July 1, 2023, parents will be able to receive a maximum of 18 weeks’ parental leave pay each, and a maximum of 20 weeks’ parental leave pay between them.

The 2022 amendment removes the requirement that, In the first year after a birth or adoption, parents must take a continuous period of 12 weeks of PPL. Beginning July 1, 2023, parents can receive parental leave pay in multiple blocks, of at least a day at a time, up to two years from the birth or adoption of their child. The program is fully funded by the government, although benefits are paid through the employer.

Other special situations covered by the Fair Work Act include:

• Pre-adoption leave: An employee seeking to adopt a child may take up to two days’ unpaid leave to attend any interviews or examinations required to obtain approval for the adoption. If the employee has other leave available, however, the employer can require the employee to use that leave instead.

Sick Leave

“Personal leave” is the term used in Australia for sick leave. “Carer’s leave” is time off to provide care and support for an immediate family or household member. Employees get 10 days of paid personal/carer’s leave each year, which can be accumulated from year to year.

For part-time employees and those within the first 12 months of employment, this leave is available on a pro rata basis. Casual employees are not eligible for personal/carer’s leave.

If an employee has exhausted personal/carer’s leave but an immediate family or household member gets sick or has an emergency, the worker is entitled to an additional two days of unpaid leave per situation. Casual employees are also entitled to unpaid carer’s leave.

When a member of an employee’s immediate family or household has a life-threatening illness or injury or dies, the worker is entitled to two days of paid compassionate leave per occasion. Compassionate leave operates separately from personal/carer’s leave, and it is not necessary to exhaust personal/carer’s leave entitlements to use compassionate leave. Casual employees can take compassionate leave, but it is unpaid.

On May 17, 2022, the Fair Work Commission extended a temporary program that entitles certain employees to up to two weeks of unpaid pandemic leave. The leave applies to employees covered by certain modern awards who are prevented from working due to:

• being required to self-isolate by government or medical authorities, or acting on the advice of a medical practitioner; or
• measures taken by government or medical authorities in response to the pandemic.

Employees don’t have to use all their paid leave before accessing unpaid pandemic leave. The program expires on December 31, 2022.

Other Leave

Compassionate leave. Employees are entitled to two days compassionate leave when an immediate family or household member dies or suffers a life threatening illness or injury. The leave also applies to employees (or their current spouse or de facto partner) who have a miscarriage. Employees are also entitled to compassionate leave if they experience a stillbirth or death of a child. The compassionate leave can be taken as a single continuous two-day period, two separate periods of one day each, or any separate periods the employee and the employer agree. An employee does not accumulate compassionate leave and it doesn’t come out of their sick and carer’s leave (or annual leave) balance. It can be taken any time an employee needs it. If an employee is already on another type of leave (for example, annual leave) and needs to take compassionate leave, the employee can use compassionate leave instead of the other leave.

Community Service leave. Employees can take community service leave for certain events such as voluntary emergency management activities and jury duty. With the exception of jury duty, community service leave is unpaid. For each time employees are summoned for jury selection and potential jury duty, they must be paid an applicable amount for the first 10 days of jury selection and jury duty. The applicable amount they must be paid is the difference between jury-related payments they received from the government, excluding allowances for expenses, and their base pay rate for the regular hours they would have worked for their employer had they not been required to attend jury selection or jury duty.

Reserve leave. Under the Defence Reserve Service (Protection) Act 2001, an employer cannot hinder a worker from becoming a member of the reserve or a reservist from carrying out defense service. When reservists carry out service, the employer cannot compel them to use annual or long-service leave and must treat the employee as though on leave without pay during call-out and some forms of voluntary, continuous, full-time service. After reservists finish their service, the employer is required to reemploy them in the same capacity.

The employer is not required to pay the employee or make contributions to workers’ compensation or other benefits during the employee’s service. Employers can get a payment under the Employer Support Payment Scheme for most periods of continuous defense service by their employees.

Family and domestic violence leave. Employees can take up to five days of unpaid leave to deal with family and domestic violence in a 12-month period. (Note: Effective Feb. 1, 2023, employees who work at companies with 15 or more workers will be entitled to ten days of family and domestic violence leave. Effective Aug. 1, 2023, employees who work at companies with less than 15 workers will be entitled to ten days of family and domestic leave.) There is no length of service requirement for the leave and it does not accumulate from year to year. Employees must provide notice of the leave as soon as practicable (which may be after the commencement of leave). Employers may seek evidence of the need for the leave and must ensure that the notice of the taking of leave and any evidence are kept confidential.

Long-Service Leave. Long-service leave is an additional leave period granted to employees who have worked for the same employer over an extended period, typically between seven and ten years. Long-service leave entitlements vary by jurisdiction or industrial instrument (e.g., award or enterprise agreement). For example, employees in Queensland are entitled to take 8.6667 weeks of paid long-service leave after a period of 10 years’ continuous service.

Pensions and Social Security

The legal retirement age in Australia increased to 66.6 years on July 1, 2021, and will rise by six months every two years until it reaches 67 on July 1, 2023.

Age pension: The Age Pension is governed by the Social Security Act 1991 and administered by Centrelink, part of the Department of Human Services.

Employees at retirement age can qualify for a lump-sum pension bonus by continuing to work at least 960 hours a year and can stay in this program for up to five years or to age 75.

Disability pension: People over 16 years of age but not old enough to qualify for an old-age pension who—because of illness, injury, or disability—are unable to work more than 15 hours a week or retrain for another job over a two-year period are eligible for the disability support pension. The program is means-tested, so benefits can be affected by income and/or assets.

Sickness allowance: Workers age 22 or over who—because of illness, injury, or disability—are temporarily unable to work and have a job to return to are eligible for this means-tested program.

Workers’ Compensation

Employers are required to maintain insurance for the compensation of injury, disease, impairment or death suffered by employees in the course of their duties. Each of the eight Australian states and territories has developed its own workers’ compensation scheme and there are three commonwealth schemes.

Reference Citations

Vacation: Fair Work Act 2009 (Cth), No. 28, §§ 87-94

Holidays: Fair Work Act 2009 (Cth), No. 28, §§ 114-116

Maternity Leave: Fair Work Act 2009 (Cth), No. 28, §§ 67-85

Paternity Leave: Fair Work Act 2009 (Cth), No. 28, §§ 67-85

Sick Leave: Fair Work Act 2009 (Cth), No. 28, § 95-107

Other Leave: Fair Work Act 2009 (Cth), No. 28, § 113; Defence Reserve Service (Protection) Act 2001, No. 11, Part 5; Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018

Pensions and Social Security: Social Security Act 1991, No. 46, §§ 94-120, 266-272

Labor Relations

In General

The Fair Work Act gives employees, employers and independent contractors the right to join industrial associations such as trade unions and employer associations. The act also protects the right of employees and employers to take industrial action, such as a strike or a lockout, but limits the timing, reasons and scope of these actions.

Fair Work Australia is the federal tribunal for labor disputes. Courts may also impose damage awards or penalties.

Right to Organize

The Fair Work Act guarantees the rights of employees, employers, and independent contractors to choose whether to become members of an industrial association, such as a trade union or an employer association. The act provides protections against discrimination, victimization, or coercion in the exercise of those rights.

The law also prohibits an employer from discriminating against an employee or independent contractor because he or she is entitled to the benefit of an industrial instrument or the National Employment Standards when this is the sole or dominant reason for the employer’s conduct.

Issues relating to the Fair Work Act’s freedom-of-association provisions may be the subject of conciliation proceedings before Fair Work Australia.

Works Councils

There is no requirement under Australian Law for works councils to be formed. Works councils are not part of the Australian industrial relations system.

Dispute Resolution

Fair Work Australia is the federal tribunal for labor disputes. Modern awards and enterprise agreements must include dispute resolution procedures, and employers and employees are required to try settling disputes through those processes. If dispute resolution fails, certain disputes—such as those involving employment conditions, collective bargaining, dismissal, and stand downs—can be taken to a tribunal. Awards and agreements can also include provisions that allow the FWA to get involved in various disputes.

Strikes and Lockouts

As part of the collective bargaining process, the Fair Work Act protects the right of employees and employers to take industrial action, such as a strike or a lockout. Provisions of the act limit the timing, reasons, and scope of these actions, however, and establish procedural requirements that must be satisfied in order to claim statutory protection.

Industrial action is largely prohibited during the life of a workplace agreement, although the law allows for some industrial action in support of negotiation toward a new collective agreement. For an industrial action to be legal, the party taking the action must be genuinely trying to reach an agreement and must give written notice that an action is going to occur. In cases of an employee action, the notice must be given at least three days before the action is to begin. If an industrial action or impending action is found not to be legal, the courts or FWA may issue an order preventing or stopping it.

Successorship Clauses

Under the Fair Work Act, when a business is transferred from one employer to another, awards and enterprise and workplace agreements are binding on the new employer if they concern employees doing the work that was transferred, whether those employees came from the old business or were newly hired to do that work. The old awards and agreements are binding until that work ends or a new agreement is established to cover those who do it.

Reference Citations

Right to Organize: Fair Work Act 2009 (Cth), No. 28, § 340

Dispute Resolution: Fair Work Act 2009 (Cth), No. 28, § 526

Strikes and Lockouts: Fair Work Act 2009 (Cth), No. 28, §§ 408-412

Successorship Clauses: Fair Work Act 2009 (Cth), No. 28, §§ 310-316

Safety, Health and Security

In General

The Work Health and Safety Act requires each state and territorial government to enact laws based on model workplace health-and-safety legislation.

Federal law does not cover surveillance in the workplace, but some states and territories have enacted laws that require employers to give employees advance written notice of surveillance and to develop a workplace policy.

Workplace Safety and Health

The Work Health and Safety Act 2011 requires each state and territorial government to enact laws based on model workplace health-and-safety legislation. The WHS Act includes a number of key elements:

• a primary duty of care requiring employers, as far as reasonably practicable, to ensure the health and safety of workers;
• duties of care for persons who influence how the work is carried out and the integrity of the products used;
• a requirement that “due diligence” be exercised to ensure compliance;
• reporting requirements for “notifiable incidents,” such as serious illness, injury, or death of workers;
• a framework for licenses, permits, and registrations;
• provisions requiring consultation on health and safety issues;
• discrimination protections for those who seek to exercise rights under the bill;
• an entry permit scheme that allows permit holders to consult with workers and investigate suspected violations of health and safety laws affecting workers who are members or eligible to be members of the relevant union and whose interests the union is entitled to represent;
• enforcement and compliance provisions, including a compliance role for workplace health-and-safety inspectors; and
• regulation-making authority and mechanisms for improving cross-jurisdictional cooperation.

An inspector who believes an employer has contravened the WHS Act may issue an improvement notice that dictates how the contravention should be remedied.

State and territory governments have established safety requirements that employers must follow in the wake of the Covid-19 pandemic. These measures can include:

• mandatory vaccination of certain workers;
• physical distancing and density requirements (for example, 1.5 metre distancing and 4 square metres of space per person);
• limits and restrictions on operations (for example, types of businesses or facilities remaining closed and limits on workplace activities); and
• risk management requirements.

Most jurisdictions in Australia maintain, as part of their workers’ compensation programs, a list of diseases that can be deemed to be work related. If workers have a disease that’s on the list, and they’ve had relevant exposure at work, then the disease is assumed to have developed because of the exposure unless there is strong evidence to the contrary. SafeWork Australia has issued a revised list of deemed diseases that jurisdictions can use as a reference in making their own lists. The revised list includes Covid-19.

Drug and Alcohol Use

Federal law bans smoking in federal government buildings, on public transportation, in airports and on domestic and international airline flights. Most Australian states and territories have banned smoking in enclosed public places, including workplaces and restaurants.

Reference Citations

Workplace Safety and Health: Work Health and Safety Act 2011, No. 137

Termination

Termination by Employer

Except when the employee is guilty of gross or serious misconduct, employers must give employees notice before unilaterally terminating them. The notice period is usually specified in the employment contract, but by law the minimum notice requirements are:

• less than one year of service: at least one week’s notice;
• more than one year’s but less than three years’ service: at least two weeks’ notice;
• more than three years’ but less than five years’ service: at least three weeks’ notice and
• more than five years’ service: at least four weeks’ notice.

The period of notice is increased by one week if the employee is older than age 45 and has completed at least two years’ continuous service with the employer.

If the employer chooses to pay the employee instead of giving notice, it must pay the amount the worker would have earned had he or she worked until the end of the notification period.

Notice or payment in lieu of notice is not required in cases of termination because of serious misconduct or for certain categories of employees, including casual workers, seasonal workers, trainees, day-hire employees in construction, workers hired only to complete a specific task, and some daily and weekly employees in the meat industry.

The Fair Work Act states that termination will be considered “unlawful” when it is based on:

• temporary absence from work due to illness or injury;
• reasonable temporary absence from work due to participation in voluntary emergency management activities;
• trade union membership or participation in lawful union activities;
• nonmembership in a trade union;
• seeking office as or acting in the capacity of an employee representative;
• absence from work during maternity or other parental leave;
• discrimination on the basis of race, color, sex, sexual orientation, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; or
• filing a complaint or participating in a proceeding against an employer involving an alleged violation of labor laws or regulations.

When an employer has 15 or more full-time employees, employees can bring a legal claim for two types of termination:

• harsh, unjust or unreasonable termination; and
• unlawful termination.

Under the Sex Discrimination and Fair Work Amendment Act 2021, sexual harassment at work is a form of serious misconduct and can be a valid reason for dismissal under the Fair Work Act. Victims of sexual harassment can take up to two years to bring a sexual harassment complaint before the Australian Human Rights Commission.

Although the law does not define the phrase “harsh, unjust or unreasonable termination,” it does provide Fair Work Australia with guidelines to consider when addressing an unfair dismissal claim, including:

• if the worker’s conduct was the reason for the dismissal,
• whether the worker was notified of the reason and had a chance to respond, and
• if the dismissal was due to unsatisfactory performance, whether the worker had been warned about his or her performance beforehand.

A termination will be considered unlawful if:

• the employer fails to provide minimum notice of termination or pay in lieu of notice, except in cases of serious misconduct or for certain categories of workers;
• in cases of dismissal because of redundancy, the employer has not fulfilled requirements under collective agreements;
• the employee was dismissed because of redundancy but it would have been reasonable for the employer to give the worker another job; or
• in cases of layoffs of 15 or more employees, the employer has not provided the required advance notice to Centrelink, the division of the Department of Human Services responsible for the administration of the unemployment benefits program.

The unfair dismissal laws only apply to employees covered by the national workplace relations system, but state laws may provide remedies for other employees.

An employee who has worked for an employer at least six months (larger employers) or one year (small employers) can appeal a dismissal to the Fair Work Commission within 21 days of the dismissal.

The high income threshold operates as a limit to an employee’s eligibility to be protected from unfair dismissal under the terms of the Fair Work Act. If an employee is not covered by a modern award, or if an enterprise agreement does not apply to them, they must have an annual rate of earnings of less than the high income threshold. From July 1, 2021, the high income threshold is $158,500. From July 1, 2020 to June 1, 2021, the threshold was $153,600.

Whistleblowing. Large proprietary companies must have a whistleblower policy that addresses:

• the protections available to whistleblowers,
• how disclosures can be made and to whom they can be made,
• the support and protection that whistleblowers will receive from the company,
• the process for investigating disclosures, and
• how the company will ensure fair treatment for those mentioned in disclosures.

Employers can be fined for breaching of confidentiality of the identity of a whistleblower and for failing to have a whistleblower policy.

Plant Closings and Mass Layoffs

Redundancy is a situation in which an employer no longer desires to have a particular job performed. Redundancies may arise as a result of closing a business, technological or organizational changes, the sale of a business, privatization or outsourcing. Provided that a redundancy decision is made in good faith, dismissals made for this reason are legal. An employee’s dismissal is a genuine redundancy if:

• the employer no longer requires the person’s job to be done by anyone because of changes in the operational requirements of the employer’s enterprise,
• the employer complied with any obligation in an applicable workplace instrument (e.g. award or agreement) to consult about the redundancy, and
• there was no reasonable opportunity for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.

Employers that employ 15 or more workers are required to pay severance to employees with at least one year’s service who are dismissed for reasons of redundancy. Payments typically vary according to the length of an employee’s service, cannot exceed 16 weeks’ salary and are in addition to any payment in lieu of notice required under an applicable contract of employment or collective agreement.

An employer that intends a mass dismissal—to terminate the employment of 15 or more employees for economic, technological, structural or similar reasons—must, as soon as practicable and before terminating any employee, inform or consult with each trade union that represents any of the affected employees.

An employer that plans a mass dismissal must also provide notice to Centrelink. Notice must consist of the reasons for the planned terminations, the number and categories of employees likely to be affected and the date or time period over which the employer intends to carry out the terminations.

If an employer does not satisfy its obligations to inform or consult with the trade unions, an affected employee or trade union representative may apply to Fair Work Australia for relief. Employers that do not notify Centrelink may be subject to court action.

Payment on Termination

When an employment relationship ends, employees are entitled to the following payments:

• outstanding wages and other remuneration,
• payment in lieu of notice of termination (generally between one and five weeks’ pay depending on employee age and length of service),
• accrued annual leave and
• severance pay if the employee has been made redundant and is eligible for payment under workplace laws or an industrial instrument.

Employees are not entitled to severance pay if their period of employment was less than 12 months or the company employs fewer than 15 employees. Severance pay is calculated as follows:

Employee’s period of continuous service with the employer on dismissal	Severance pay period
At least 1 years but less than 2 years	4 weeks
At least 2 years but less than 3 years	6 weeks
At least 3 years but less than 4 years	7 weeks
At least 4 years but less than 5 years	8 weeks
At least 5 years but less than 6 years	10 weeks
At least 6 years but less than 7 years	11 weeks
At least 7 years but less than 8 years	13 weeks
At least 8 years but less than 9 years	14 weeks
At least 9 years but less than 10 years	16 weeks
At least 10 years	12 weeks

Most awards say that employers need to pay employees their final payment within 7 days of the employment ending. Employment contracts, enterprise agreements or other registered agreements can also specify when final pay must be paid.

Unemployment Insurance

The Newstart Allowance is available to unemployed people aged 22 or older and under the pension eligibility age. To receive Newstart benefits, a person must meet job-search requirements—such as demonstrating engagement in an active job search, attending all job interviews, accepting suitable offers, and agreeing to attend training courses—and must fall below income and asset thresholds. The system is designed to support citizens no matter how long they have been unemployed. A separate program applies to workers younger than 22.

Reference Citations

Termination by Employer: Fair Work Act 2009 (Cth), §§ 118-122, 380-400

Plant Closings and Mass Layoffs: Fair Work Act 2009 (Cth), §§ 530-534

Payment on Termination: Fair Work Act 2009 (Cth), §§ 114-117; Payment on Termination of Employment Clause - AM2016/8

Personal Taxes

Residency Requirements

An individual is regarded as being domiciled in Australia for tax purposes if:

• the individual resides in Australia,
• the individual’s domicile is in Australia (unless the individual’s permanent place of abode is outside Australia),
• the individual has actually been in Australia continuously or intermittently during more than one-half of the income year (unless the individual’s usual place of abode is outside Australia and he does not intend to take up residence in Australia) or
• the individual is a member of a certain retirement plan or an eligible employee for certain retirement purposes or the individual’s spouse or child under 16 is such a person.

Taxable Income

Residents of Australia are taxed on their worldwide income. Nonresidents are taxed only on their Australian-source income.

Taxable income includes salary and wages. Noncash fringe benefits are generally exempt from employee income tax, but their value is taxed to the employer at the rate of 49 percent.

Tax Rates

Income tax rates are levied on a progressive scale for residents and nonresidents, although the range of income tax rates for residents differs from the range of income tax rates for nonresidents. Tax rates on employment income for residents range from zero to 45%, and tax rates on employment income for nonresidents range from 32.5% to 45%. Effective from July 1, 2024, to June 30, 2025, Australia’s personal income tax rates and minimum and maximum amounts of tax-year income for each tax bracket for nonresidents will range from 32.5% to 45%. Australia has an annual tax-free threshold amount of wages up to which income tax is not assessed on residents, and nonresidents do not have such a threshold. The annual tax-free threshold is not usually adjusted when Australia adjusts its progressive income tax brackets.

The Australian tax year is July 1 to June 30.

Reference Citations

Residency Requirements: Income Tax Assessment Act 1997, No. 38

Taxable Income: Income Tax Assessment Act 1997, No. 38

Tax Rates: Individual Income Tax Rates

Web References

Law and Regulation

Age Discrimination Act 2004

Defence Reserve Service (Protection) Act 2001

Disability Discrimination Act 1992

Fair Work Act 2009

New South Wales, Workplace Surveillance Act

Racial Discrimination Act

Sex Discrimination Act 1984

Work Health and Safety Act 2011