Written by Paul Williamson – PDA’s ACT Associate Director
People with a disability can sometimes face higher levels of exploitation and discrimination at work. Having a good understanding of what your rights are, and where to find help, is an important way to protect yourself.
Everyone deserves to be paid fairly for the work they do and to work in a safe environment, free from bullying and harassment. There is a lot of help available from government regulators, unions and community legal centres – if you are unsure, it pays to check. PDA can even help put you on the right path if you get stuck.
The national framework
The national workplace relations system is established by the Fair Work Act 2009 (Fair Work Act), which covers most private sector employees and employers in Australia. The key elements of the workplace relations framework are:
- * A safety net of legislated minimum terms and conditions of employment.
- * A system of collective bargaining, with awards and enterprise agreements.
- * Protections against unfair, or unlawful dismissal.
- * Protection of workplace rights such as the right to be free from discrimination at work and the right to belong to a union.
The practical operation of the Fair Work Act is overseen by the Fair Work Commission and the Fair Work Ombudsman.
- * The Fair Work Commission is the national workplace relations tribunal – its functions include setting minimum wages, approving enterprise agreements, overseeing bargaining and industrial action, and resolving workplace disputes.
- * The Fair Work Ombudsman is the national workplace relations regulator – it helps employees and employers understand their workplace rights and responsibilities and enforces compliance with workplace laws.
Types of employees
Employees get different pay and entitlements depending on their type of employment.
Full-time employees and part-time employees:
- * work regular hours – an average of 38 a week for full-time and less than 38 for part-time
- * get paid leave, including annual leave and personal (sick and carer’s) leave, under the National Employment Standards (more information below).
- * get written notice when their employment ends, or payment instead of notice.
Casual employees:
- * have accepted an employer’s job offer, knowing they aren’t guaranteed ongoing work or regular hours.
- * get some leave entitlements under the National Employment Standards, such as paid family and domestic violence leave.
- * don’t get written notice when their employment ends, or payment instead of notice
- * get a higher pay rate for being a casual employee (casual loading) or a specific pay rate for casual employees.
Independent contractors:
Have different rights and obligations to employees. They provide services to another person or business and aren’t employees of that person or business. They negotiate their own fees and working arrangements and minimum pay rates don’t apply because they aren’t considered to be employees.
You might still be an employee, even if you have an Australian Business Number (ABN) or your employer tells you that you are an independent contractor. It is important to seek advice from the Fair Work Ombudsman if you think your employer might be classifying you incorrectly.
The safety net
The safety net in the national system comprises two parts; a National Minimum Wage and a set of eleven minimum standards of employment. These standards, the National Employment Standards (NES), contain the minimum terms and conditions for employees in the national workplace relations system. Employees can’t receive less than the NES, even if they have an award or agreement.
Awards and enterprise agreements
For most employees, their pay and conditions are set by the award that covers their industry or occupation. The minimum wage refers to the amount of pay before tax is taken out (gross pay). Some employees have a different minimum wage depending on their employment type, age or work capacity. If an award covers an employee, they’ll be paid based on their classification in the award.
In many jobs, employees get penalty rates for evening, weekend, public holiday and overtime work. Employees may also receive extra payments, or allowances, for things like laundry, driving vehicles or doing special types of work.
The Fair Work Ombudsman provides an award finder tool that will help you identify the award that applies to your situation.
Some people might be covered by an enterprise agreement. An enterprise agreement is like an award but negotiated at the workplace level between an employer and those employees that work for the employer.
The Fair Work Commission provides an enterprise agreement finder tool that will help you find the agreement that applies to you.
Unfair/unlawful dismissal
The law protects employees from losing their job in a way that is unfair, and you may be able to apply for unfair dismissal; the Fair Work Commission decides on cases of unfair dismissal. You must apply to the Commission within 21-days of termination so if you think you have been unfairly dismissed, you should contact the Commission as soon as possible.
The law also protects employees from losing their job if the reason is related to a reason expressly prohibited by the Fair Work Act – unlawful dismissal. Reasons include disability, because you were away with illness or injury, or because you belong to a union. This is a complex area, so if you have any concerns, you should contact the Fair Work Commission as soon as possible.
Other workplace protections
A range of other protections are provided by law, including the right to be free from bullying and harassment at work, the right to belong to a union, and the right to be free from discrimination.
The Fair Work Ombudsman and Fair Work Commission are a valuable source of information and advice for people with disability. Don’t hesitate to contact them if you would like advice or have concerns about your situation.
One of the best ways to protect yourself is to join your union. All union members get access to advice and legal representation if things go wrong in the workplace. Think of it like a safety net – you pay small, regular membership dues, but you’re covered big time if something goes wrong.
Let us know if you have any follow up questions or would like information about another employment related topic.
