As an employee within Australia, you have some important rights that protect you at work.
What does this mean for you? These rights protect you from discrimination, bullying, harassment and other issues within the workplace.
By understanding them and knowing when an employer is breaching them, you can ensure you are treated fairly.
1. The right to make a complaint without consequence
Employees can make a complaint to their employer about anything related to their employment. It doesn’t matter whether it’s formal or informal, or whether it’s written or verbal.
You can complain with confidence, as you are legally protected from reprisals or termination due to a complaint about your employment.*
You can also complain about how other people are being managed or effected in the workplace if this affects your own employment. For example, if you’re part of a team and the mistreatment of a team member is affecting your own performance.
So how would you complain? Firstly you can make an informal complaint verbally – but if this doesn’t work, you should use the official grievance policy at your workplace. If this does not exist, then put it in writing such as sending an email to the appropriate person.
If you are terminated or receive any other negative treatment because of a complaint you made about your employment – that could be a breach of the general protections provisions of the Fair Work Act.*
*Please note the right to complain as mentioned here applies to national system employees. Most Australian employees are national system employees, such as for example, if you work for a private company that sells goods and services.
2. The right to be paid correctly
Are you being underpaid? As an employee in Australia, your rights state that you MUST be paid everything that you are owed by an employer – otherwise your employer can be fined.
If you’re being underpaid, it’s a good idea to first check for genuine mistakes such as accountancy errors.
If there’s more to it, it may be time to consider a formal demand for payment. If this is ignored, consider court action.
This right means that businesses and even specific individuals responsible for your underpayment can be held liable – including directors.
3. Protection from discrimination
All employees are protected against discrimination at work. Because there are many different ‘types’ of discrimination, it is important to understand how the law applies and how the Fair Work Act can help you.
Discrimination takes many forms – whether that’s denying employment based on race, or blocking promotion due to pregnancy, it’s important to understand what discrimination actually is and which types of discrimination are covered under the general workplace protections.
Your employer cannot deny employment or advancements, terminate or enforce obstacles in the workplace for any of the following reasons:
Race or ethnicity: this refers to your historical identity in terms of colour – but also extends to national or ethnic origins.
National extraction: whether by birth or by self-identification, an employer can’t discriminate against you based on your citizenship or place of birth – unless that same status makes you legally ineligible for work in Australia (for example a foreign citizen without the correct visa.)
Gender identity: there can be no discrimination based on gender identity, including those who identify as transgender and gender neutral.
Age: unless legal age limits are in place by law, it’s illegal to discriminate based on age. For example, it would be okay to deny an underage person a job in a place that serves alcohol.
Marital status: an employer can’t discriminate against you for being married, single, widowed, divorced, or separated.
Pregnancy: by right, becoming pregnant should have no negative effect on your employment. You are also protected against discrimination if you are pregnant, discuss the desire to become pregnant or even think you are pregnant.
Parental responsibility: an employer cannot discriminate against you if you have children who are dependent on you.
Physical or mental disability: unless it prohibits an employee from fulfilling core job functions, physical or mental disability cannot be grounds for discrimination.
Social status: your employer cannot treat you negatively as a result of your social status – which is a wide category that includes things such as native tongue, social caste and local heritage.
Political views: you are free to be a member of any political party and express any political opinions without fear of discrimination – excluding politically motivated acts of violence.
Religion: your employer cannot discriminate based on your religion, unless you are employed at a religious organisation that follows a certain creed and you do not adhere to those creeds. For example, a Catholic school is within its right to hire a Catholic over a non-Catholic applicant for a theology role.
4. Protection from bullying
As an employee, you are protected against bullying and harassment within the workplace. However, what constitutes bullying can be difficult to discern…
Bullying can be a difficult thing to define. Actions you may not agree with but are deemed reasonable, such as being placed on a fair performance management plan, would not be classed as bullying even if you feel that way.
Instead, bullying is typically defined as unreasonable treatment that causes a negative effect on your health (or has potential to have a negative effect of your health). For example, if you are being treat unfairly in a way that causes you anxiety.
If you are being bullied, you can make an informal complaint first to see if anything changes. If not, you can make a formal complaint. If this is ignored, contact the Fair Work commission, and make a formal application to stop bullying.
5. Protection from unfair dismissal
As a qualifying employee, you cannot be dismissed unfairly by an employer. Your employer must have a valid reason when terminating your employment.
Not all employees are protected from unfair dismissal. Protection begins once you’ve been employed for a minimum of either six or 12 months depending on the size of your organisation.
You must also earn less than $149,400 AUD – or if you earn more than that, you can also be protected if you’re covered by a modern award or an enterprise bargaining agreement.
Employers can terminate you fairly if you engage in misconduct that is severe enough to justify dismissing you (as opposed to giving you a warning).
You can also be dismissed fairly if you fail to improve after being issued performance warnings.
You can also be fairly dismissed if you refuse, or are unable to, perform core components of your role.
If you feel you’ve been unfairly dismissed, you have 21 days after the date that your employment comes to an end to file a claim with the Fair Work Commission.
6. Protection from Sexual Harassment
Sexual harassment has no place in the workplace, and this right ensures you are protected. As an employee, you can complain if you are subject to sexual harassment of any kind, regardless of gender.
Sexual harassment takes many forms: from unwanted comments of an sexual nature to repeated advances from a colleague. It can also extend to excessive compliments, physical contact and even someone implying your status as an employee can be affected by your response to advances.
Sexual harassment is any unwelcome conduct of a sexual nature.
If you are sexually harassed, you can make a complaint to the Australian Human Rights Commission.
7. Receiving the Fair Work Information Statement
While it may seem confusing, you even have a right to know your rights! Your employer should give every new employee information regarding the Fair Work Act.
Your employer should give you a copy of the Fair Work Information Statement either before you start or at the first available opportunity. If they don’t, they’re contravening the Fair Work Act.
This document informs each employee about all of their rights such as the ones included here, as well as the National Employment Standards.
8. Right to request employment records
As an employee, you can request copies of your employment records. An employer is legally obligated to keep your record on file for at least seven years.
All businesses must keep their employee records for at least seven years. It’s your right as a current or former employee to be able to request a copy of your records throughout this entire period. If your company fails to comply, they can be penalised.
Free Confidential Discussion
By understanding your employment rights, you are empowering yourself within your workplace.
By understanding these rights, both employees and employers can enjoy a fairer, more productive working environment.
If you believe you have had your rights infringed, contact MKI Legal for a free confidential discussion.