The NES

The NES are a set of basic conditions applying to all employees and underpinning modern awards and enterprise agreements.

A breach of the NES may give rise to the imposition of civil penalties of up to AUD $93,900 per breach plus any other orders the court considers appropriate. The 13 minimum entitlements of the NES are:

• maximum working hours of 38 hours per week for a full-time employee or, for employees who are not full-time, the lesser of the employee’s ordinary hours of work or 38 hours – plus reasonable additional hours;
• a right to request flexible working arrangements;
• to be offered (and to request) to convert from casual to permanent employment;
• unpaid parental leave (i.e. birth related leave, primary and non-primary carer leave and adoption leave) of up to 12 months on the birth or adoption of a child, with a right to request a further 12 months’ leave;
• 4 weeks’ paid annual leave (pro-rated for part-time employees);
• 10 days’ paid personal/carer’s leave per year (pro-rated for part-time employees), two days’ unpaid carer’s leave as needed, two days’ paid compassionate leave as needed;
• up to ten days’ paid family and domestic violence leave in a 12 month period;
• unpaid/paid community service leave for voluntary emergency management activities and jury service;
• long service leave in accordance with applicable statutory or award entitlements;
• to be paid when absent on public holidays;
• a right to have contributions made to a superannuation (pension) fund for the employee’s benefit;
• notice of termination of employment, and severance pay in the event of redundancy, based on length of service; and
• provision of a “Fair Work Information Statement” to all employees and the “Casual Employment Information Statement” to casual employees upon commencing employment.

Modern awards and enterprise agreements (set out below) cannot exclude or reduce the NES, but can supplement or clarify NES entitlements, such as providing for greater annual leave entitlements.

• Modern awards

  Modern awards operate together with the NES to provide minimum conditions of employment for employers and employees in the national system. Modern awards supplement the NES by setting out additional, minimum terms and conditions that apply in a particular industry or occupation, including monetary entitlements such as wages, penalty rates and allowances. There are more than 120 modern awards that apply to a number of industries and occupations.

  Most Australian employees are covered by an award or enterprise agreement (discussed below), but it is important to note that some employees are not. An employee will be deemed to be ‘award free’ if there is no award, or classification within a relevant award, that covers the employee’s employment. Senior managers (such as Chief Executive Officers and Managing Directors) and professional employees (such as lawyers and accountants) are often award free but this may not be the case in certain industries. 

  Modern awards may contain terms about a number of matters including minimum wages, types of employment, arrangements for when work is performed, overtime rates, penalty rates, annualised wage arrangements, allowances, leave, procedures for consultation, representation and dispute settlement.

  Employers are required to comply with terms of modern awards that apply to and cover its employees. A failure to do so can give rise to the imposition of civil penalties of up to AUD $99,000 per breach for a body corporate and AUD $19,800 for an individual, plus any other orders the court considers appropriate.

• Enterprise agreements

  An enterprise agreement is an agreement made between an employer and employees that governs terms and conditions of employment in a particular enterprise. Enterprise agreements often cover matters not covered by an award or statute, and may provide benefits in excess of the minimum standards provided by the NES. Like modern awards, the terms of an enterprise agreement cannot exclude any NES entitlements or provide for entitlements that are less than those provided by the NES.

  The FW Act regulates the making and content of enterprise agreements and, while it is in operation, an enterprise agreement applies to the total exclusion of any modern award. For an enterprise agreement to be approved, it must pass the ‘Better Off Overall Test’. Before an enterprise agreement is made, the Fair Work Commission, Australia’s national workplace relations tribunal, must be satisfied that each modern award-covered employee will be better off overall under the proposed enterprise agreement than if the relevant modern award applied. 

  Trade unions are typically involved in the negotiations of enterprise agreements, as ‘default bargaining representatives’, and bring claims (as can employees) where there has been non-compliance with the terms of the enterprise agreement. Non-compliance with the terms of enterprise agreement can give rise to the imposition of civil penalties of up to AUD $99,000 per breach for a body corporate and AUD $19,800 for an individual, plus any other orders the court considers appropriate.  

• Employment contracts

  Whether or not it is also regulated by a modern award or an enterprise agreement, each employment relationship is underpinned by an employment contract, which sets out the legal rights and obligations between the parties.

  An employment contract may provide terms that are more favourable than those specified in an applicable modern award or enterprise agreement, but the contract cannot provide for entitlements less than those set out in the NES, modern awards or enterprise agreements.

  An employee can bring a common law claim for a breach of contract where an employer has contravened the terms and conditions of the employment contract (or vice versa).

  An employment contract cannot include a clause that prohibits employees from discussing their remuneration details (ss. 333B and 333D, FW Act). To do so, would give rise to the imposition of civil penalties of up to AUD $99,000 per breach for a body corporate and AUD $19,800 for an individual. 

  Employers are also prohibited from engaging employees on fixed term (or maximum term) contracts beyond two years (including extensions) or certain consecutive contracts (s. 333E(2), FW Act). There are a number of exceptions to this prohibition. Some of these exceptions include where (s. 333F, FW Act):

  • the employee is paid over the high income threshold;
  • the employee is engaged under the contract to perform only a distinct and identifiable task involving specialised skills;
  • the work is government-funded and there are no reasonable prospects that the funding will be renewed; and
  • a modern award expressly permits the arrangements.
• Courts, tribunals and enforcement bodies

  In addition to approving enterprise agreements, the Fair Work Commission has a broad range of powers and makes modern awards, determines unfair dismissal claims, deals with industrial disputes and sets the national minimum wage and minimum wages in modern awards. 

  The Fair Work Ombudsman (FWO) is Australia’s national workplace relations regulator and has a broad range of powers that include receiving complaints from members of the public, investigating suspected contraventions of workplace laws and commencing litigation against employers to enforce the law.

  There are a number of avenues available to employees making a claim. The particular forum with jurisdiction to hear the complaint will depend on the nature of the claim. While the Fair Work Commission is the key forum for unfair dismissal and general protections claims, other claims may be decided in the Federal Court, the Federal Circuit and Family Court of Australia, state or territory courts, and anti-discrimination tribunals at the state level. In some circumstances an employee may have the choice of making their claim in either the federal or state jurisdiction (for example, with certain claims of unlawful discrimination). However, an employee cannot pursue the same grievance in separate jurisdictions. 

  Over the past forty years, trade union membership in Australia has been falling steadily and Australia has experienced a general trend away from disputes focused on collective/industry wide issues, with a correlating increase in claims made by individual employees.

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I. Hiring 

A. Basics of Entering an Employment Relationship

In Australia, employment relationships are primarily regulated by the NES set out in the FW Act. As described above, the NES are minimum conditions that apply to the employment of all employees covered by the FW Act.

There is no statutory requirement in Australia to issue a written employment contract or letter of offer to an employee. The terms of conditions of employment can be set out in an employment contract (either a written or verbal contract) and/or enterprise agreement or modern award. Regardless of the type of engagement, terms and conditions offered to employees cannot be less than those conditions set out in the NES, or in an applicable enterprise agreement or modern award.

During the recruitment process, employers are permitted to conduct various checks about prospective employees. These may include background or reference checks, police checks, medical checks and working with children checks (where relevant). The recruitment process is subject to anti-discrimination, adverse action and privacy laws. Employers are also responsible for ensuring that all employees have a right to work in Australia. 

During the hiring process, employers cannot post job advertisements that include pay rates that would breach the FW Act or an instrument created under the FW Act (such as an enterprise agreement or award)(s. 536AA, FW Act). 

• At Will Vs. Just Cause (US & other appropriate jurisdictions)

  The doctrine of ‘employment at-will’ does not apply to Australian employment relationships, however an employer has the right to terminate an employee’s employment at any time by providing the notice of termination specified in the employee’s employment contract, an applicable enterprise agreement or modern award, or the minimum notice required by the FW Act – whichever is greater; or a payment in lieu of that notice. Eligible employees can have the right to make a claim to the Fair Work Commission for unfair dismissal under the FW Act if their employment is terminated unfairly (which can include circumstances where the termination of employment was not for a ‘valid reason’ – a similar principle to ‘just cause’, or where the termination lacked procedural fairness) or to a court if their employment is terminated unlawfully (see section V. Termination/Dismissal Issues below). 

• Common Law Claims

  In addition to being governed by the FW Act and other relevant statutes (such as discrimination legislation), the employment relationship in Australia has its origins in the common law and common law claims typically deal with disputes in relation to the employment contract.

  Claims can be brought seeking damages for breach of contract and the most usual common law claim is for wrongful dismissal. Given the extensive statutory regime, other common law claims are less common, but can relate to the interpretation of contractual clauses, suspension from the workplace or an action for damages in the tort of negligence.

• Statutory Claims

  The FW Act provides that certain employees can make unfair dismissal claims when their employment has been terminated, or bring a claim alleging a contravention of the general protections when they have been dismissed from their employment, or otherwise been subject to adverse action (see section V. Termination/Dismissal Issues below). 

  Eligible employees can also bring unlawful termination claims. An 'unlawful termination' is the term given to a termination of employment on a ground expressed to be unlawful by the FW Act. An unlawful termination is distinct from an unfair dismissal and forms a separate cause of action.

  Claims can also be brought under the FW Act for an alleged breach of a modern award or enterprise agreement. Modern awards and enterprise agreements must contain dispute resolution clauses that empower the Fair Work Commission to hear a dispute about alleged non-compliance with the award or enterprise agreement.

  Unlawful discrimination claims can be made under federal, state and territory anti-discrimination laws (see subsection B below and section IV. Discrimination & Harassment).

B. Discrimination (in the Hiring Process)*

*Discrimination will be discussed in more detail in Heading IV below. 

Federal laws prohibit direct and indirect discrimination in employment on the grounds of a number of attributes (see section IV. Discrimination & Harassment) and provide that an employer cannot unlawfully discriminate against a prospective employee during the hiring process. It is unlawful to discriminate against a prospective employee on the basis of an attribute (such as age, disability, sex):

• in the arrangements made for the purpose of determining who should be offered employment;
• in determining who should be offered employment; or
• in the terms or conditions on which employment is offered.

During the hiring process, employers cannot:

• specify a preference for a particular sex, age or race of applicants or use restrictive language in the advertisement (unless an exemption applies under the relevant state or Federal law to allow for this – for example, Victorian legislation allows for employers to advertise roles targeting people with specific attributes in limited circumstances);
• request unnecessary or irrelevant information about a person, such as their ethnic background, disability, parental status; or
• select applicants or not select applicants in an unlawfully discriminatory way.

Employers are required to provide reasonable adjustments during the hiring process to make the process fairer and give people an equal opportunity to complete the application and interview process. Reasonable adjustments are things an employer can do to support people with disabilities so that they are not unnecessarily disadvantaged because of their disability. Not providing these supports during the hiring process (or employment) may be indirect discrimination (see section IV. Discrimination & Harassment). 

There are a few exceptions where discrimination may be permitted, including:

• if a person would be genuinely unable to fulfil the inherent requirements of the position, even with reasonable adjustments by the employer, or where these adjustments would impose unjustifiable hardship on the employer (ss 21A, 21B, Disability Discrimination Act 1992 (Cth)); and
• payment of different rates to employees under 21 (s 25, Age Discrimination Act 2004 (Cth)). 

See section IV. Discrimination & Harassment for further information.

C. Employment Applications

Permissible Inquiries

During the job application and interview process, employers must be mindful of the questions asked of prospective employees and ensure those questions are not unlawfully discriminatory. 

For example, when asking a person about their background, disability or pregnancy status, the information should only be requested where it is necessary for determining whether someone can fulfil the requirements of a job, or whether there is a health and safety risk (s 27, Sex Discrimination Act 1984 (Cth); s 30, Disability Discrimination Act 1992 (Cth)).

Applicants may be asked whether they have a criminal record; however, they may not be excluded from employment on the basis of their criminal record unless they cannot meet the inherent requirements of the job. The Australian Human Rights Commission (AHRC) may receive and investigate complaints that an applicant has been discriminated against on the basis of their criminal record (s 31, Australian Human Rights Commission Act 1986). However, the AHRC does not have the ability to make respondents to a complaint comply with any recommendations it makes as part of that process.

D. Use of Employment Contracts

As stated above, there is no statutory requirement in Australia to issue a written employment contract to an employee. However, all new employees must be provided with a copy of the Fair Work Information Statement as well as the Casual Employment Information Statement if the employee is a casual, which are documents prepared by the FWO that summarise the minimum statutory entitlements.

• Mandatory arbitration clauses

  Mandatory arbitration or dispute resolution clauses are uncommon in employment contracts. Dispute resolution clauses must, however, be included in modern awards and enterprise agreements. These clauses often give the Fair Work Commission power to arbitrate a dispute automatically after alternative dispute resolution has been attempted and/or by agreement between the parties (see section XIII. Trade Unions – Industrial Relations below). 

• Non-Disclosure Agreements/Non-Competes

  Non-competition restraints help protect an employer’s confidential information, intellectual property, workforce and clients by preventing an employee from working for a competitor of the employer, or setting up a competing business. These are often used to restrict former employees after the employment relationship ends.

  In order to be enforceable, non-competition restraints must be reasonable to protect the employer’s legitimate business interests (see section VII. Unfair Competition/Covenants Not to Compete below).

  Non-solicitation restraints are intended to prevent former employees from inducing another employee or contractor to leave the organisation to work for a competitor, or from taking clients or suppliers from the organisation

  A non-dealing restraint extends a non-solicitation restriction even further so that the employee is prevented from dealing with the customer or supplier, even if the employee did not make the initial approach. However, a court will not uphold a restraint in respect of clients with whom an employee had no connection (AMP Services v Manning [2006] FCA 256), or in respect of employees who commenced employment after the termination of the employee’s employment (Allied Express Transport Pty Ltd v Mears [2010] NSWSC 1112) or where the restraint places no limitation on the type of employee covered by the restraint (Allison v BDO (NSW-VIC) Pty Ltd [2010] VSC 35). 

  Further, the restraint must be confined to the ambit of the employee’s activities – a restraint will be unreasonable where it seeks to protect businesses with which a former employee had no connection (Transpacific Industries Pty Ltd & Ors v Whelan [2008] VSC 403). 

  These should be limited in duration and geographical operation to that necessary for ensuring the former employee does not have a competitive advantage. 

  As part of the Australian Government’s 2025/2026 budget, it has announced that non-compete clauses will be banned for workers earning less than the high-income threshold ($183,100). Currently 3 million employees across Australia are covered by non-compete clauses, including childcare workers, construction workers and hairdressers. The Government has indicated that the reform is designed to make it easier for workers to switch to a better job which it expects will in turn, boost wages. The ban will take effect from 2027 and will operate prospectively to allow businesses and employees time to adjust. 

E. Advertising/Recruitment 

Employers must make sure that their job advertisements and statements made in the course of recruitment (including those made by third parties) are not misleading or deceptive. If a job applicant suffers a loss after relying on a misleading statement, they may seek damages for that loss (provided the statement was reasonably likely to mislead or deceive). This is regulated under the Australian Consumer Law (ss 18, 31, Schedule 2, Competition and Consumer Act 2010 (Cth)).

Employers must ensure recruitment firms and agents are also cautious about making statements that could be unlawfully discriminatory, as employers may be liable for their agents’ conduct. For example, job advertisements should not invite applications only from applicants of a specific race or gender unless those particular attributes are necessary for the job. If job advertisements are discriminatory, employers may be liable (s 16, Racial Discrimination Act 1975 (Cth); s 86, Sex Discrimination Act 1984 (Cth); and s 44, Disability Discrimination Act 1992 (Cth)). 

Job application forms or online application portals also must not request the provision of information about an applicant which may be discriminatory, e.g. relating to gender or date of birth, Willmott v Woolworths Ltd [2014] QCAT 601.

State and territory fair-trading and anti-discrimination laws also impose additional restrictions on employment advertisements.

F. Background Checks/ Employment References

There are no statutory requirements for the giving of employment references in Australia. 

Employers must be careful in conducting pre-employment health screening or seeking health information from job applicants, as this may give rise to a complaint of discriminatory treatment on the basis of disability if the screening has no relevance to the role.

Jobs in certain industries are required to have a police check carried out, such as those where employees work with vulnerable people. Even where not a requirement, employers can request prospective employees to undergo a police check. The employer must obtain the consent of the applicant before undertaking the police check. Where a police check is required of a prospective employee, discrimination on this basis is only permitted where the criminal record impacts on the inherent requirements of the job. 

Criminal record checks are permitted although there are limited protections for individuals with a criminal record under discrimination legislation. Discrimination on the basis of an irrelevant criminal record is unlawful under federal and some state legislation, although, as noted above in sub-section C. Employment Applications, there is limited recourse for a person who suffers discrimination on this basis under the federal jurisdiction. In addition, criminal convictions of a certain age (which differs between each jurisdiction) cannot be the subject of a background check.

Each state and territory has different laws for when an employee can work with children. Jobs in certain industries and with particular duties may require a working with children check (or equivalent, depending in which state the employee is located). Engaging an employee to engage in child-related work without an appropriate check may breach the relevant state/territory legislation. 

See section IX. Privacy below for privacy considerations when collecting personal information in performing background checks and references.

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II. Compensation 

A. Minimum Wage 

Australia has a national minimum wage that applies to all employees, except those covered by a modern award or enterprise agreement. This is reviewed annually. As of 1 July 2025, the national minimum wage was set at AUD$24.95 per hour or AUD$948.00 per 38 hour week. Casual employees are also entitled to an additional 25% loading. The national minimum wage serves as a ‘safety net’ for employees who are not covered by an award or enterprise agreement. 

Employees who are covered by an enterprise agreement or modern award will have their minimum base rate of pay set by those instruments. Enterprise agreements and modern awards include minimum rates of pay that are no less than the national minimum wage, and also often include other financial entitlements such as overtime rates, penalty rates, loadings and allowances.

Employees under 21 years old are entitled to receive a certain percentage of the national minimum wage, which varies depending on their age. Enterprise agreements and modern awards can include special rates for junior or trainee employees.

It is unlawful for an employee to be paid below the applicable minimum rate of pay, even if the employer and employee agree. This is the case regardless of whether the rate of pay is set by the national minimum wage, enterprise agreement or modern award.

B. Wage Payments and Deductions 

Employees must be paid their wages in full at least monthly. Remuneration must be in the form of money (not payments ‘in kind’) and can be provided in a range of ways such as electronic funds transfer, cash, cheque or money order.

There are strict rules in the FW Act about when an employer can make deductions from an employee’s wages. Generally an employer can only deduct money from wages if it is (s 324, FW Act):

• principally for the employee’s benefit and the employee agrees in writing (for example, the payment of trade union fees);
• allowed under the applicable enterprise agreement and the employee agrees to the deduction;
• allowed under an applicable modern award; or
• allowed by a law, a court order, or by the Fair Work Commission.

C. Minimum Age/Child Labor

Australia does not have a national minimum working age. However, there are some restrictions in place at the state and territory level. For example, in Victoria, employers are usually required to have a permit in order to employ someone under the age of 15 (Child Employment Act 2003 (Vic)). 

D. Overtime Requirements

It is common for enterprise agreements and awards to provide employees with a right to receive additional pay for overtime hours and/or work performed outside the ordinary spread of hours. What constitutes an ordinary spread of hours varies depending on the industry. For example, ‘blue-collar’ workers tend to have different ordinary hours compared with ‘white collar’ professionals. 

Some enterprise agreements and awards prohibit employees from beginning a new shift without a specified break (typically 10 hours) after working overtime, or requiring a ‘loading’ (i.e. an additional payment) to be paid where such a break is not provided. Enterprise agreements and awards may also allow an employee to choose to build up additional paid leave (known as ‘time in lieu’) rather than receiving overtime pay. 

For employees not covered by a modern award or enterprise agreement, there are no prescribed rules about what an employee should be paid for overtime as the minimum wage is their only financial safety net. However, the NES provides that an employer can request any employee to work reasonable additional hours. An employee has the right to refuse unreasonable additional hours (see sub-section II.E Workday/Workweek/Work hours below for more information). These employees will only be entitled to additional pay for overtime worked if it is provided for by their employment contract.

E. Workday/Workweek/Work hours 

An employer must not request or require a full time employee to work more than 38 hours per week, unless the additional hours are reasonable (s 62, FW Act). The requirement for additional hours to be reasonable also applies to part time employees who are asked to work more than 38 hours in a week. 

Employees have a right to refuse to work unreasonable additional hours. When considering whether additional hours are reasonable, some relevant factors include:

• any risk to the employee’s health and safety that could come from working the extra hours;
• the employee’s personal circumstances (for example, if the extra hours would interfere with their caring responsibilities);
• whether the employee is entitled to receive overtime payments; and
• the nature of the employee’s role and their level of responsibility.

Enterprise agreements and modern awards may allow for the averaging of hours over a set period, provided that the average weekly hours are reasonable and do not exceed:

• for a full time employee – 38 hours per week; or
• for a part time employee – 38 hours per week or the employee’s ordinary hours of work in a week (whichever is less).

By way of example, under the Restaurant Industry Award 2020, a full time employee could lawfully be required to work 60 hours in a week provided that the employee’s work averages out to 38 hours per week over a 4 week period. This Award also includes a range of other requirements that aim to ensure that the working hours are reasonable, such as setting maximum hours to 11.5 in one day and requiring 8 full days off work in a 4 week period.

Employees do not have to work on public holidays (s 114(1), FW Act) and they are still entitled to be paid. In Australia, there are public holidays at both a national level (such as Christmas Day) and at a state or territory level (such as Labour Day). An employer may still ask an employee to work on a public holiday, but an employee can refuse to work if the employer’s request is unreasonable or the employee’s refusal is reasonable (s 114(4), FW Act). The question of reasonableness will turn on the same factors set out above regarding the right to refuse unreasonable additional hours (see sub-section III.A Paid Time Off below for more information). An employee and employer may agree for an employee to substitute a public holiday for another day (s 115(4), FW Act). 

A ‘right to disconnect’ also exists in the FW Act. It is a positive right for employees to refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of their working hours, unless the refusal is unreasonable. This right also extends to refusing to respond to contact from a third party if the contact, or attempted contact, relates to the employee’s work. Critically, the right to disconnect is now a protected attribute for the purpose of the general protections regime in the FW Act and employers cannot take adverse action against an employee because they have exercised (or purported to exercise) that right. 

F. Benefits/Health Insurance 

Federal superannuation laws require employers to make a prescribed minimum level of superannuation (pension) contributions (subject to a cap) for eligible employees in each quarter. This minimum superannuation contribution amount is 12% of the employee’s wage as of 1 July 2025 for eligible employees.

Superannuation contributions must be made into a complying superannuation fund. Usually an employee nominates their own complying fund when they commence employment. If not, the employer must check with the Australian Tax Office to confirm whether the employee has an existing superannuation fund to make contributions into (known as a ‘stapled fund’). An employer can only nominate their own complying superannuation fund for the employee if they can confirm that the employee does not already have an existing fund. Employers may also have to comply with any requirements regarding superannuation in any applicable modern award or enterprise agreement. 

Under state and territory laws, an employer will be required to maintain workers’ compensation insurance. This is a no-fault insurance scheme that allows employees to receive financial compensation if they are injured at work or become sick because of their work. 

Australia has a universal health insurance scheme called Medicare that guarantees all Australians, permanent residents and some visitors with access to basic healthcare and hospital services at little or no cost. There is no requirement for employers to provide healthcare benefits or health insurance for employees. 

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III. Time off/Leave of Absence 

A. Paid Time Off 

• Vacation Pay

  Under the NES, all employees (except for casuals) are entitled to annual leave (also known as vacation or holiday pay). Full time and part time employees are entitled to 4 weeks of paid annual leave, based on their ordinary hours of work (s 87(1), FW Act). Shift workers are entitled to 5 weeks of paid annual leave per year. Modern awards, employment contracts and enterprise agreements may provide for additional paid annual leave, but they cannot provide a lesser entitlement than set out in the NES. 

  Annual leave is paid at the employee’s ordinary base rate of pay and does not include overtime rates, penalties, allowances and bonuses (s 90(1), FW Act). Annual leave accrues progressively during a year of service and untaken annual leave accumulates from year to year. 

  Annual leave may be taken at a time agreed between the employer and employee, and an employer must not unreasonably refuse to agree to an employee’s request to take the leave. 

  An employment contract, modern award or enterprise agreement can include a term requiring an employee to take paid annual leave at particular times. Without such a term in the award or enterprise agreement, there is no general entitlement to direct employees to take paid annual leave, but the employer may require the employee to take paid annual leave if the requirement is reasonable (e.g. as part of a Christmas shutdown period) (s 94(5), FW Act).

  Most modern awards also provide that where an employee takes annual leave, they are entitled to be paid an annual leave loading of 17.5% on top of their ordinary pay received for the period of leave. 

  In certain circumstances, an employee can receive a payment instead of taking time off work – this is known as ‘cashing out’. Annual leave can be cashed out where: 

  • the employee is covered by a modern award or enterprise agreement that contains cashing out terms (s 93(3), FW Act); or
  • the employee is an award/agreement free employee and has entered into an agreement with their employer (s 94(5), FW Act).

  In both instances, the following conditions must be satisfied:

  • the employee must have at least 4 weeks’ annual leave remaining after cashing out;
  • a written agreement needs to be made each time leave is cashed out; and
  • the payment for cashed out annual leave must be at the same rate as if the employee actually took the leave.

  On termination of employment, an employer must pay an employee for any period of accrued but untaken annual leave (s 90(2), FW Act).This may include annual leave loading, depending on the terms of any applicable modern award or industrial instrument. 

• Sick Leave Pay

  Under the NES, employees are entitled to paid personal/carer’s leave. Full-time and part-time employees are entitled to 10 days each year, based on their ordinary hours of work (s 96(1), FW Act). Casual employees are not entitled to paid personal/carer’s leave. 

  An employee may take paid personal/carer’s leave:

  • if they are unfit for work because of their own personal illness or injury (including pregnancy-related illness); or
  • to provide care or support to a member of their immediate family or household, who requires care or support because of a personal illness, injury or unexpected emergency affecting the member. 

  Personal/carer’s leave is paid at the employee’s ordinary base rate of pay (s 99, FW Act), accrues progressively during a year of service and untaken personal/carer’s leave accumulates from year to year (s 96(2), FW Act).

  Personal/carer’s leave cannot be cashed out, except where permitted by a modern award or enterprise agreement, and the following conditions are satisfied (s 101, FW Act):

  • the employee must have at least 15 days’ personal/carer’s leave remaining after the cashing out;
  • each cashing out must be by a separate written agreement; and
  • the payment for cashed out personal/carer’s leave must be at the same rate as if the employee actually took the leave.

  Unlike annual leave, any unused personal/carer’s leave does not need to be paid out on termination of employment unless this is required by a modern award or enterprise agreement. 

  All employees (including casuals) have an entitlement to 2 days unpaid carer’s leave for each occasion when a member of the employee’s immediate family or household requires care or support because of a personal illness, injury, or an unexpected emergency (s 103, FW Act). 

• Holiday Pay

  Under the NES, employees are entitled to be absent from work on a day that is a public holiday (s 114(1), FW Act). Public holidays vary in each Australian state and territory.

  Where a full time employee is absent from work on a public holiday, they are entitled to be paid their base rate of pay for their ordinary hours of work on that day or part-day (s 116, FW Act). Part time and casual employees will also be afforded the same entitlement where their ordinary hours of work fall upon a public holiday. 

  An employer may request that an employee work on a public holiday, provided that the request is reasonable. An employee may refuse to work on a public holiday on the basis that the request is not reasonable or because the employee’s refusal to work is reasonable.

  It is common under enterprise agreements and modern awards for employees who work on a public holiday to be paid a penalty or loading.

• Other

  Long service leave 

  An employee may be entitled to receive long service leave after a period of continuous service for the same or a related employer, subject to the relevant state or territory law, enterprise agreement or modern award. 

  For most employees, their long service leave entitlement will be determined by state or territory legislation and that legislation will set out, among other things, the period of continuous service required in order to be eligible for long service leave and how much long service leave the employee is entitled to take. In some states and territories, long serving casuals are also eligible for long service leave (for example, in Victoria, Long Service Leave Act 2018 (Vic)).

  The state and territory long service leave laws do not apply when there are long service leave entitlements in a federal award that would have covered an employer and their employees before 1 January 2010 (s 113, FW Act). In this case the long service leave entitlement would be derived from the relevant federal award.

  Some states also have portable long service schemes, that apply to specific industries and that require employers to pay benefits for particular employees into the scheme. The schemes enable employees to work in the same industry, for different employers, without losing their entitlement to long service leave payments (see for example, in Victoria, Long Service Benefits Portability Act 2018 (Vic)). 

  Community service leave 

  The NES provides that an employee is entitled to take community service leave for certain activities including: 

  • voluntary emergency management activities (such as dealing with emergencies or natural disasters – such as volunteer firefighting)
  • jury duty (including attendance for jury selection) (s 108, FW Act).

  With the exception of jury duty, community service leave is unpaid. An employee is entitled to take community service leave while they are engaged in the activity and for reasonable travel and rest time. There is no limit on the amount of community service leave an employee can take.

B. Family and Other Medical Leaves 

• Family and domestic violence leave

  Under the NES, all employees (including part time and casual employees) are entitled to 10 days paid family and domestic violence leave in a 12 month period (s 106A, FW Act).

  Employees can access this leave if they are experiencing family and domestic violence, they need to do something to deal with the impact of family and domestic violence and it is impractical to deal with the impact of the violence outside working hours. This includes activities such as relocating, attending court hearings, or accessing police services. 

  Family and domestic violence leave is available in full at the commencement of each 12 month period, rather than accruing through the year. Untaken family and domestic violence leave does not accumulate from year to year and is not paid out when an employee leaves their employment.

  Employers must take steps to ensure that information concerning notice or evidence of an employee needing to take family and domestic violence leave is treated confidentially (s 106C, FW Act). Employers must also ensure that an employee’s pay slip does not record that the employee has taken family and domestic violence leave, instead this leave should be referred to, for example, as ‘miscellaneous’ or ‘other’ on an employee’s pay slip (r. 3.47 of the Fair Work Regulations 2009 (Cth)). 

  Subjection to family and domestic violence is now a protected attribute under the general protections regime of the FW Act – employers cannot take adverse action against employees or prospective employees because they have been or continue to be subjected to family and domestic violence. 

• Compassionate & Bereavement leave

  Under the NES, employees are entitled to 2 days compassionate leave each time an immediate family or household member dies or suffers a life-threatening illness or injury, a child is stillborn (where the child would have been the member of an employee’s immediate family or household member) or if an employee or their spouse or de facto partner has a miscarriage (s 104, FW Act). Full time and part time employees are entitled paid compassionate leave. Casual employees are entitled to unpaid compassionate leave (s 106, FW Act).

  Compassionate leave can be taken as:

  • a single continuous 2 day period;
  • 2 separate periods of 1 day each; or
  • any separate periods the employee and the employer agree.

C. Disability Leave 

There is no specific entitlement to disability leave under Australian law, however paid personal leave (see sub-section III.A Paid Time Off above) may be used when an employee is unable to work as a result of a disability.

D. Pregnancy Leave/Parental Leave 

Under the NES, employees who become parents by birth or adoption are entitled to take up to 12 months unpaid parental leave to care for the child (s 70, FW Act). To be entitled to receive unpaid parental leave, the employee must have completed at least 12 months of continuous service with their employer before the date of birth (or expected date of birth) or adoption (or expected date of placement) of the child (s 67(3), FW Act). 

Unpaid parental leave extends to casual employees (s 67(2), FW Act), but only where: 

• the casual employee has been employed on a regular and systematic basis for at least 12 months; and
• had it not been for the birth (or expected birth) or adoption (or expected adoption) of a child, they would have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Both parents may take parental leave at the same time. 

• Employees may take up to 100 days of their unpaid parental leave entitlement during the 24-month period starting on the date of birth, day of placement of the child or within 6 weeks before the birth of the child, if the requirements of the FW Act are met. 

If a pregnant employee continues to work during the 6-week period before the expected date of birth of the child, the employer may ask for a medical certificate certifying that the employee is fit for work. If the employee does not provide the certificate within 7 days of the employer’s request, or if the certificate states that the employee is not fit for work, the employer may require the pregnant employee to commence their unpaid parental leave. 

An employee may request an extension of a further 12 months leave (up to 24 months in total), (s 76, FW Act). The request must be in writing and given to the employer at least four weeks before the end of the employee’s initial period of parental leave. The employer must respond in writing within 21 days, stating whether they grant or refuse the request. The employer may refuse the employee’s request only where: 

• there are reasonable business grounds to do so;
• they have given the employee a reasonable opportunity to discuss their request; and
• the employer has detailed their reasons for the refusal in writing. 

Employees may also have an entitlement to paid parental leave under the Australian Government Paid Parental Leave scheme (PPL Scheme), which is set out in the Paid Parental Leave Act 2010 (Cth). The PPL Scheme provides government-funded Parental Leave Pay for up to 24 weeks, per partner couple, at the National Minimum Wage, to employees who meet the eligibility criteria. This entitlement is set to increase by 2 weeks every year until it reaches 26 weeks on 1 July 2026. 

In addition, employees may be entitled to employer-funded paid parental leave, which is particularly common in large corporations and the public sector. The amount of leave and pay depends on the terms in the employer’s enterprise agreement, employment contract or workplace policy. Employer-funded paid parental leave does not affect an employee's eligibility for the Australian Government's PLP Scheme – employees can receive both. 

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IV. Discrimination & Harassment 

A. Discrimination 

In Australia there are a range of laws prohibiting discrimination, including:

• federal legislation prohibiting discrimination based on sex, disability, race and age;
• the ‘general protections’ provisions in Part 3-1 of the FW Act, prohibiting employers from discriminating against an employee or prospective employee because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin; and
• legislation at the state and territory level. 

Protected Classes: 

• Federal anti-discrimination legislation

  Subject to some limited exceptions, it is unlawful to treat a person (including an employee or job applicant) less favourably because of the person’s:

  • sex, sexual orientation, gender identity, intersex status, relationship status, pregnancy, breastfeeding or family responsibilities (Sex Discrimination Act 1984);
  • race, colour, descent or national or ethnic origin (Racial Discrimination Act 1975);
  • disability (which is defined very broadly to include things such as loss of physical function, mental illness, learning difficulties, diseases and physical malformations that currently exist, previously existed or may exist in the future) (Disability Discrimination Act 1992); or
  • age (Age Discrimination Act 2004).

  There are also federal laws that prohibit discrimination in employment on the grounds of sexual orientation, irrelevant criminal record, medical record, trade union activity, political opinion, religion or social origin (Australian Human Rights Commission Act 1986).

  Broadly, an employer is prohibited from discriminating against a person on the basis of one of these attributes:

  • in the processes that it puts in place to decide who should be offered employment;
  • in actually deciding who should be offered employment;
  • in the terms or conditions on which employment is offered;
  • by denying opportunities for promotion, training or employment benefits;
  • by dismissing the employee or subjecting them to disadvantage. 

  Federal discrimination laws prohibit both direct and indirect discrimination. 

  Direct discrimination is when a person is treated less favourably than another person in the same/not materially different circumstances because they have, or are believed to have, a particular attribute. 

  Indirect discrimination refers to a condition, practice or requirement that has, or is likely to have, the effect of disadvantaging people with a particular attribute, unless it is reasonable in the circumstances. For example, while a job advertisement may have no reference to gender, a requirement for all applicants to be over 180cm tall could result in indirect discrimination against women. It would then be up to the employer to demonstrate why the requirement is reasonable (for example, particular machinery can only be safely operated when a person is over a particular height).

• ‘General Protections’ in the FW Act

  The ‘general protections’ provisions in Part 3-1 of the FW Act prohibit employers from taking adverse action against an employee or job applicant because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

  Adverse action is defined very broadly, and includes things such as dismissing the employee, ‘injuring’ the employee in their employment (for example, by reducing their pay, terms of employment or seniority), altering the employee’s position to their prejudice or discriminating against the employee. 

• Legislation at the state and territory level

  States and territories also have their own anti-discrimination laws (Discrimination Act 1991 (ACT); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1996 (NT); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA); Anti-Discrimination Act 1998 (Tas); Equal Opportunity Act 2010 (Vic); Equal Opportunity Act 1984 (WA)) which prohibit direct and indirect discrimination on a range of attributes including age, employment activity, gender identity, disability, industrial activity, marital status, political belief or activity, pregnancy, race, religious belief or activity or sex. The attributes differ slightly in the laws of each state and territory. 

  If conduct could contravene both federal and state anti-discrimination laws, the employee may bring a claim in either jurisdiction (but not both). 

• Key exceptions

  It will not be unlawful for a person to discriminate against an employee (or prospective employee) on the basis of disability if the employee cannot carry out the ‘inherent requirements’ of the job, even if reasonable adjustments are made (s 21A, Disability Discrimination Act 1992 (Cth); s 351(2), FW Act). 

  There are some specific exceptions that allow discrimination where it is intended to promote equal opportunity for all. For example, under the Sex Discrimination Act 1984it will not be unlawful where the discrimination is engaged in for the purpose of achieving equality. Similarly, the Disability Discrimination Act 1992 (Cth) states that it will not be unlawful to do something that is reasonably meant to afford people with disabilities goods, services or opportunities to meet their special needs (s 45, Disability Discrimination Act (Cth)). 

  It will not be unlawful for an employer to discriminate on the grounds of disability where the steps required to prevent the discrimination would cause unjustifiable hardship (s 11, Disability Discrimination Act 1992 (Cth)). This is based on an assessment of what is fair and reasonable in the circumstances. For example, a large corporation which refuses to allow an employee with a sleep disorder to start at 10am instead of 9am might engage in unlawful discrimination. In contrast, a small, family-owned business choosing not to employ a wheelchair user because the workplace is situated up 3 flights of stairs and it cannot afford to install a lift, is less likely to commit unlawful discrimination because the installation of the lift would cause an unjustifiable hardship on the small business.

• Process

  Complaints made under the federal discrimination legislation are taken to the Australian Human Rights Commission (AHRC). Complaints must be made within 12 months of the alleged discrimination occurring (unless there is a good reason for an extension of time). The AHRC then invites the parties to engage in a mediation to try and resolve the matter. If the matter cannot be resolved at this stage, the complainant may apply to have their complaint heard by a court (within 60 days after the President of the AHRC issues a notice terminating the complaint or such later date as the court allows), which may go on to make orders for damages. 

  General protections claims are lodged initially with the Fair Work Commission. If the alleged discrimination involved ending a person’s employment, then the application must be made within 21 days of the person’s dismissal (unless there are exceptional circumstances that would justify an extension of time). If the alleged discrimination occurred during the employment (and did not involve dismissal) then a person has 6 years to bring a claim (unless there is are exceptional circumstances that would justify an extension of time). The Fair Work Commission may facilitate a conciliation between the parties. If the dispute cannot be resolved, the applicant may seek to have the matter heard by a court (or the Fair Work Commission if all parties agree), which may make orders including an injunction, an award of financial compensation, an order that the person is reinstated and pecuniary penalties. 

  Discrimination complaints made under state or territory legislation must be lodged with the relevant tribunal and/or commission (where applicable).  

Protected Activities

Employees have a right to make, or propose to make, a complaint and to exercise their rights under the law. It is unlawful for them to be subjected to detriment for doing so. This is referred to as ‘victimisation’. There are a broad range of protections for people who have made a complaint under relevant legislation or to the AHRC or who are participating in its processes (for example, by providing information) (s 26, Australian Human Rights Commission Act 1986 (Cth), s 94, Sex Discrimination Act 1984 (Cth)). Additionally, the ‘general protections’ provisions in the FW Act contain similar protections from victimisation. 

The ‘general protections’ provisions in Part 3-1 of the FW Act make it unlawful for an employer to take adverse action against someone because they have exercised a workplace right. A workplace right is defined very broadly and includes making a complaint or inquiry under workplace laws or in relation to their employment. The provisions also prohibit taking adverse action against employee because they have, or have not, participated in industrial activities (like joining a trade union). Lastly, they also protect employees from being discriminated against on the basis of particular attributes. 

State and territory legislation also prohibits victimisation against individuals who have made discrimination complaints.  

Some state and territory legislation may also prohibit vilification. Vilification occurs when a person, by a public act, incites hatred towards, serious contempt for, or severe ridicule of, a person or group of people because of a particular attribute. For example, in Victoria, the Racial and Religious Tolerance Act 2001 (Vic) prohibits vilification on the ground of race or religion. 

B. Harassment and Bullying 

As discussed at section XII. Health and Safety, employers must provide employees with a safe working environment that is free from risks to health and safety so far as is reasonably practical. This includes maintaining a workplace that is free from bullying and harassment.

• Harassment

  Sexual harassment in the workplace is unlawful (s 28B, Sex Discrimination Act 1984 (Cth) and s 527D, FW Act) and employers have a positive obligation to prevent sexual harassment. Sexual harassment occurs when a person makes an unwelcome sexual advance, an unwelcome request for sexual favours or engages in other unwelcome conduct of a sexual nature to the person harassed and this occurs in circumstances where it could be reasonably be expected that the person would be offended, humiliated or intimidated (s 28A, Sex Discrimination Act 1984 (Cth)).

  Similarly, it is unlawful to harass someone at work who has a disability, about their disability (s 35, Disability Discrimination Act 1992 (Cth)).

  It is also unlawful to do something that is likely to offend, insult, humiliate or intimidate another person or group of people because of their race, colour or national or ethnic origin (s 18C, Racial Discrimination Act 1975 (Cth)). This law applies to acts that are done in a public place or can be seen or heard by the public. 

  An employer may be held responsible for sexual harassment engaged in by its employees if it fails to take reasonable steps to prevent it from occurring (see for example, s. 527E, FW Act). While what constitutes ‘reasonable steps’ to prevent harassment will depend on the specific circumstances, meeting this basic obligation generally includes things such as ensuring that clear reporting procedures are in place so that employees can escalate complaints, having a relevant policy setting out behavioural expectations and consequences for breaching them, conducting training for all staff about appropriate behaviour in the workplace and on the relevant policies, conducting refresher training and looking into concerns when they are raised. This applies equally to bullying (discussed below). 

  If an employer fails to take reasonable steps to ensure that its staff comply with anti-discrimination laws, they may be ordered to make a significant financial payment. For example, in 2014 a technology company was ordered to pay over AUD$100,000 to an employee to compensate her for the pain, suffering and loss of enjoyment of life that had resulted from her being sexually harassed at work (Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82).

  The FW Act provides a regime where a worker who believes that they have been sexually harassed at work may apply to the Fair Work Commission for an order to stop sexual harassment or for the Fair Work Commission to otherwise address a dispute regarding sexual harassment (s. 527F, FW Act). Stop sexual harassment orders can include anything that the Fair Work Commission considers appropriate to prevent the aggrieved person from being sexually harassed. If someone (including the employer) fails to comply with a stop sexual harassment order, this may result in significant financial penalties.  

• Bullying

  Bullying is repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety (s 789FD, FW Act). Examples of workplace bullying include intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination (Amie Mac v Bank of Queensland and Ors [2015] FWC 774).

  Importantly, reasonable management action carried out in a reasonable way will not constitute bullying (s 789FD(2), FW Act).

  The FW Act provides a regime where a worker who believes that they have been bullied at work may apply to the Fair Work Commission for an order to stop bullying (s 789FF, FW Act). These orders can include anything that the Fair Work Commission considers appropriate to stop the worker being bullied, although the Commission cannot make an order for the payment of compensation. There are, however, significant financial penalties in place for contravention of an order to stop bullying. These penalties can be applied to not only the employer, but also individual employees who are involved (s 789 FG, s 539(2) and s 550, FW Act).           

  States and territories can also have their own anti-bullying regimes. For example, an employee may claim an employer has failed to take all reasonably practicable steps to ensure a safe workplace by failing to address, or encouraging, bullying behaviour. In addition, in Victoria, legislation known as ‘Brodie’s Law’ set out in the Crimes Act 1958 (Vic) makes serious bullying a crime that can be punishable by up to 10 years in jail. 

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V. Termination/Dismissal Issues 

A. Overview 

In Australia, employers can terminate the employment relationship without cause where notice or payment in lieu of notice is given (see sub-section V.C. Mandatory Severance Pay below). Employees and former employees can bring an action against their employer or former employer for breach of contract or where the employer terminates their employment because of a specific protected right or attribute (adverse action). Certain employees can bring claims of unfair dismissal where the dismissal was harsh, unjust or unreasonable. If the termination was based on a prohibited discriminatory ground, a claim under equal opportunity/anti-discrimination legislation may be available.

B. Justification for Dismissal 

Employers in Australia can dismiss employees without justification where they provide notice of termination or payment in lieu of notice (see section V.C. Mandatory Severance Pay). Failure to provide notice of termination or payment in lieu is a breach of the NES and exposes an employer to civil penalties (Part 4-1 of the FW Act). It would also be a breach of the employee’s contract of employment. However even where the employer terminates an employee’s employment in accordance with the NES and the employee’s contract of employment, an employee may be entitled to make an unfair dismissal claim challenging the dismissal. A claim of this type is likely to be successful if the employer did not have a valid reason for the termination of employment or followed an unfair process when terminating the employee’s employment. A valid reason is generally a reason related to the employee’s performance or conduct.

Immediate termination of employment without notice often occurs as a result of serious misconduct. Serious misconduct includes wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment (including theft, fraud, assault, sexual harassment, being intoxicated by drugs or alcohol at work or refusing to carry out a lawful and reasonable direction of the employer that is consistent with the employee’s contract of employment), or conduct that causes serious and imminent risk to the health or safety of a person or the reputation, viability or profitability of the employer's business) (r 1.07, Fair Work Regulations 2009 (Cth)). An employee whose employment is terminated on these grounds can still bring an unfair dismissal claim where the reason for termination was not valid, meaning it was not ‘sound, defensible or well founded’ (Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333) (see sub-section V.E. Legal Challenges to Dismissal below), or an unfair process is followed. For example, where an employee has been dismissed without notice for serious misconduct, this may still be considered an unfair dismissal if it was an unnecessarily harsh response to the conduct (see Potter v WorkCover Corporation PR948009 (Ross VP, Williams SDP, Foggo C, 15 June 2004) at para. 55, [(2004) 133 IR 458])

C. Mandatory Severance Pay 

Employees are entitled to notice of termination of their employment, or a payment in lieu of that notice, as provided under s 117 of the FW Act. The statutory minimum notice periods are as follows:

If an employee is aged 45 years or older and has completed at least two years of continuous service with the employer, they are entitled to one additional week’s notice.

An employee’s contract of employment, or a modern award or enterprise agreement, may provide for a greater notice period than the statutory minimum.

Notice is not required for certain types of employees including casuals, employees employed for a specified time, task or reason and employees whose employment is terminated because of serious misconduct (s 123, FW Act). 

Where there is no agreement regarding notice of termination, including where a contract of employment is silent as to the period of notice of termination, the courts may imply a term of ‘reasonable notice’ into the contract. In these circumstances, courts have used a test of reasonableness, considering length of service, remuneration, qualifications, job prospects, age and seniority (Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567; Ma v Expeditors International P/L [2014] NSWSC 859). A requirement of reasonable notice can still be implied under the contract where the employment is also covered by the minimum notice periods set out in FW Act (s 117) (McGowan v Direct Mail and Marketing Pty Ltd [2016] FCCA 2227).

In addition to notice of termination, employers must pay severance pay if they terminate an employee’s employment:

• because the job is no longer required (except where this is due to the ordinary and customary turnover of labour); or
• because of insolvency or bankruptcy of the employer.

The amount of severance (redundancy) pay may be set out in the employment contract or applicable modern award or enterprise agreement, or as under s 119 of the FW Act, whichever is greater (see section VI. Layoffs/Work Force Reductions/Redundancies/Collective Dismissals below).

D. Use of Severance Agreements and Releases 

• Releases/Waivers

  Termination agreements (or Deeds of Release) are generally only used in Australia where an employer provides the employee with compensation or benefits in excess of their contractual or statutory entitlements in exchange for a release from future legal claims. However, claims relating to superannuation or workers’ compensation cannot be the subject of a release. 

  There are no statutory requirements for enforceable releases in Australia.

  When an executed settlement agreement has been reached between the employer and employee and the settlement amount has been paid, an employee will, for example, generally be barred from making an unfair dismissal claim (provided the settlement agreement contains an actual release of that cause of action) (Banister v Queensland Rail Limited [2012] FWA 3973).

E. Legal Challenges to Dismissal 

Employees who have been dismissed from their employment may be entitled to challenge it on the basis of unfair dismissal, adverse action/general protections, or breach of contract. Dismissal can also be challenged where it was based on a prohibited discriminatory ground under anti-discrimination legislation.

• Unfair dismissal

  Only certain employees are entitled to make an unfair dismissal claim. An employee will be unfairly dismissed if the dismissal:

  • was ‘harsh, unjust or unreasonable’ (s 387, FW Act);
  • was not a genuine redundancy (s 389, FW Act); and
  • in relation to a small business, was inconsistent with the Small Business Fair Dismissal Code (s 388, FW Act).

  In order to be eligible to make an unfair dismissal claim, an employee must have completed the minimum employment period – being 6 months’ employment, or 12 months’ employment if the employee is employed in a small business (s 383, FW Act) and:

  • be covered by a modern award or enterprise agreement; or
  • earn less than the high income threshold (which is AUD$183,100 as of 1 July 2025). 

  Some casual employees, trainees and employees engaged for a specified term or task cannot bring a claim for unfair dismissal (however can still bring a claim for breach of contract or general protections, discussed below).

  A dismissal may be found unfair by the Fair Work Commission if the employer did not have a valid reason for the termination, did not follow a fair process prior to terminating the employee’s employment according to the criteria in s 387 of the FW Act or if the dismissal was otherwise harsh, unjust or unreasonable.

  The primary remedy for an unfair dismissal is reinstatement (which can include an order for lost pay) (s 391, FW Act). Otherwise, compensation of up to a maximum of 26 weeks salary or half of the high income threshold, which is AUD$91,550 as of 1 July 2025 (whichever is the lesser), may be ordered if reinstatement is not appropriate (s 392, FW Act).

• Adverse Action/General Protections

  Employees, including those ineligible to bring an unfair dismissal claim (for example, because they have not satisfied the minimum employment period), may be able to dispute the termination of their employment through a general protections claim under Part 3-1 of the FW Act. An employer is prohibited from taking adverse action against an employee ‘because of’:

  • the employee’s workplace rights (including whether they have or have not exercised or proposed to exercise a workplace right, such as making a complaint about their employment) (s 340, FW Act);
  • membership (or not) with an industrial association (i.e. trade union) (s 346, FW Act);
  • any other discriminatory reason (s 351, FW Act), such as on the basis of race, colour, sex (gender identity), sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Federal, state and territory anti-discrimination laws apply in respect of termination of an employee’s employment (see Heading IV on discrimination); or
  • as a result of temporary absence due to illness or injury (s 352, FW Act).

  Adverse action includes termination of employment, injuring an employee in their employment, altering an employee’s position to their prejudice or discrimination between the employee and other employees (s 342, FW Act). A general protections claim can be made when the employment relationship still exists.

  There is a presumption that the adverse action was taken ‘because of’ the prohibited reason, unless the employer can prove otherwise (s 361, FW Act). That is, the general protections provisions carry a reverse onus of proof. Once it is established the employee suffered adverse action (for example, they were dismissed from their employment) and they exercised a workplace right (for example, they made a complaint about their employment), the onus shifts to the employer to demonstrate the taking of the adverse action had nothing to do with the workplace right exercised. The court will consider the reasoning of the relevant decision maker (or decision makers) behind the action in light of all the circumstances and the evidence provided (Board of Bendigo Regional Institute of TAFE v Barclay (2012) 248 CLR 500).

  The Fair Work Commission or a court can order reinstatement, back pay or compensation (uncapped) (FW Act, s 369). The courts may also impose penalties upon an employer of up to AUD $19,800 for individuals found to have engaged in adverse action and AUD $99,000 for corporations (FW Act, s 546).

• Breach of contract

  Any employee can bring a claim for wrongful termination on the ground that the termination was a breach of the employment contract. 

  These claims are most common where an employer has terminated employment without adequate notice, such as for serious misconduct, or where an employer has not paid a bonus or other benefit which the employee believes is due. These issues mostly arise for executives or professionals – for lower-level employees, the minimum notice periods set by the FW Act are usually reflected in the employee’s contract.

  The most common remedy for breach of contract is damages to account for losses suffered. Damages will be subject to any mitigation (or failure to mitigate) by the employee.

  To minimise exposure to common law breach of contract claims, employers should ensure:

  • that employment contracts clearly specify the manner in which the employment can be terminated, the notice period and payments and benefits that will be provided upon termination;
  • all procedures outlined in the contract or in policies or procedures are followed by the employer to avoid claims for breach of contract (Goldman Sachs JB Were Services Pty Ltd v Nikolich (2007) 163 FCR 62; Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403); and
  • the employment contract specifies that terms of policies or procedures are not binding on the employer and that an employer can vary the policies at their discretion (this power must be exercised reasonably) (Riverwood International Australia Pty Ltd. v McCormick [2000] FCA 889).

Constructive Discharge 

In Australia, this is referred to as ‘constructive dismissal’, or a forced resignation. The employee must prove that they had no other choice and were forced to resign due to conduct, or a course of conduct, taken by the employer which had the intent of bringing the employment relationship to an end (FW Act, s 386(1)(b)). In these circumstances, the employee can make a claim for unfair dismissal (as described above) or a general protections claim. 

Dispute Resolution Process/Forums 

The forums available to employees differ depending on the type of claim. The key forums include the Fair Work Commission and the common law courts. Claims can be heard by both state/territory and federal courts and tribunals, however an employee cannot ‘double-dip’ and make the same claim in multiple places simultaneously. 

Both the Fair Work Commission and the federal and state courts have the power to make cost orders against an unsuccessful applicant in certain circumstances. However, such orders are rare. The Fair Work Commission can order costs where a party’s unreasonable actions or omissions resulted in the continuation of the matter (FW Act, s 400A). 

• Fair Work Commission

  Former employees can apply to the Fair Work Commission within 21 days of their dismissal (or such amount of time as the Fair Work Commission allows for exceptional circumstances). This is the timeframe regardless of whether the employee is making an unfair dismissal claim or a claim alleging a breach of the general protections provisions.

  In relation to either an unfair dismissal claim or a general protections claim, an employer must provide a response to the claim within 7 days from being served with the application. As the first step in the dispute resolution process, the Fair Work Commission will facilitate a conciliation. This is an informal, private and confidential process typically conducted via telephone conference where parties attempt to reach a settlement. 

  If an unfair dismissal application is not resolved at conciliation, the Fair Work Commission will hold an arbitrated hearing. If a general protections claim is not resolved at conciliation, the Fair Work Commission will issue a certificate enabling an employee to apply to a court for a hearing of the dispute (FW Act, s 369). If both an employer and employee agree, the Fair Work Commission may conduct an arbitration of the general protections claim – however this rarely occurs.

• Common law courts

  Breach of contract claims may be decided in the Federal Court, the Federal Circuit and Family Court of Australia, state or territory courts, and anti-discrimination tribunals at the state level. The forum selected depends on the type of claim being made. A person typically has 6 years within which to make a breach of contract claim, and each court has its own procedures in dealing with such applications.

F. Employment References 

There are no statutory requirements for employment references in Australia. It is in the employer’s discretion to provide an employment reference for a former employee. Employers should be cautious of making misrepresentations about an employee to their prospective future employers. 

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VI. Layoffs/Work Force Reductions/
Redundancies/Collective Dismissals

A. Overview

Employees who are dismissed due to their position being made redundant are usually entitled to receive redundancy (severance) pay. 

Importantly, an unfair dismissal claim cannot be made by an employee if the termination of their employment was due to a ‘genuine redundancy’. Under s 389 of the FW Act, an employee’s dismissal will be a genuine redundancy if:

• the employer no longer requires the employee’s job to be done by anyone;
• it would not have been reasonable for the employee to be redeployed to another job; and
• the employer complied with all its obligations under any award or enterprise agreement to consult with the employee about the redundancy.

Assessing whether an employer requires a particular job to be done by anyone requires looking at the operational requirements of the business. Importantly, this involves looking at a particular role, not the person who is currently employed within that role. 

A person’s dismissal will not be a genuine redundancy if it would have been reasonable to offer the employee another job, position or work (either within the employer or an associated entity). A range of factors must be considered when assessing whether a reasonable redeployment option is available, such as:

• the qualifications required to perform the new job;
• the employee’s skills, qualifications and experience;
• the location of the new job; and
• whether the new job is comparative in terms of pay and entitlements.

B. Procedure 

All enterprise agreements and modern awards include a ‘consultation term’ which requires the employer to consult with its employees about any major workplace change that is likely to have a significant effect on the employees. This means that there are consultation processes that employers must follow prior to implementing a restructure or making a position redundant. These processes vary in detail, depending on the modern award or enterprise agreement. 

If an employer decides to dismiss 15 or more employees due to redundancy, it must give prior notice to the relevant union of which the employees are members and Australia’s social security agency, Centrelink (s 530 and s 531 of the FW Act).

• Mandatory Notice Periods

  Please see sub-section V.C. Mandatory Severance Pay above.

• Transfer of Undertakings/TUPE

  Australia does not have any Transfer of Undertakings Regulations or TUPE. Rather, Part 2-8 of the FW Act contains detailed provisions setting out the obligations for employers when a business changes hands (or, more specifically, when a ‘transfer of business’ takes place). 

  If employees were covered by an enterprise agreement prior to the transfer of business occurring, generally the enterprise agreement will transfer over to the new employer if the employee becomes employed by the new employer. It may also go on to cover some employees who were already working for the new employer (s 312 to s 315 of the FW Act). This is also the case with some modern awards. 

  When a transfer of business takes place, the new employer usually has to recognise an employee’s service with their old employer for entitlements such as personal leave, parental leave and long service leave. Other entitlements, such as redundancy and annual leave will only transfer in specific circumstances. 

• Severance Pay

  In addition to notice of termination or payment in lieu of notice (see sub-section V.C. Mandatory Severance Pay above), employees whose positions have been made redundant are entitled to receive a payment equivalent to between 4 and 16 weeks’ salary, depending on how long they had been employed. The statutory redundancy pay scale set out in s 119 of the FW Act is set out below:

  Period of continuous service	Redundancy pay
  Less than one year	N/A
  At least 1 year 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 year	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
  10 years or more	12 weeks*

  *This is less than an employee who has more than 9 years but less than 10 years, because the employee will also likely have an entitlement to long service leave after 10 years’ service.

  If an employee is covered by an enterprise agreement or modern award, they may be entitled to receive a higher redundancy payment, if a greater benefit is included in those instruments.

  On termination of employment because of redundancy, the employer must also pay any accrued entitlements owing to the employee, such as annual leave and long service leave. Any accrued personal/carer’s leave is not paid out on termination.

  An employer will not be required to provide redundancy pay in a number of circumstances, including where the employee has less than 12 months continuous service with the employer, or where the employer is a small business with less than 15 employees (ss 121(1), 123(1), FW Act).

  In addition, employers may seek to avoid or reduce their obligation to make severance payments to employees where the employer demonstrates ‘incapacity to pay’ (s 120, FW Act) or the employee has been offered (but rejects) ‘acceptable alternative employment’ (e.g. in the context of a restructure or sale of a business and the employee has the opportunity of a position with the new employer) (s 122(3), FW Act).Separately, a modern award may include other exceptions in which an employer is not required to make a severance payment under s 119 of the FW Act (s 121(2), FW Act). 

• Benefits

  Apart from severance pay, notice and the provision of accrued leave entitlements, there are no statutory obligations to provide any additional benefits for employees when their role is redundant. Enterprise agreements and modern awards may provide for extra entitlements, such as the right to take paid time off work in order to attend job interviews. 

• Severance Packages/Separation Agreements

  Where the employer and employee agree, the parties may enter into a ‘deed of release’ or a ‘separation agreement’ releasing one or both parties from liability. In order for these agreements to be legally enforceable, the employer must provide a payment or benefits that are no less than the employee’s minimum legal entitlements under legislation, modern award and enterprise agreement. In other words, the employer must provide something additional to what the employee is already legally entitled to receive as an incentive for the employee to sign such a document.

  Importantly, an employer cannot restrict an employee from accessing their statutory rights. For example, a deed or separation agreement cannot prevent an employee from making a claim for workers’ compensation or statutory superannuation contributions. 

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VII. Unfair Competition/Covenants Not to Compete 

A. Trade Secrets 

The Corporations Act 2001 (Cth) provides statutory protection against the misuse of an employer’s confidential information.

Employers with confidential information may also protect it through confidentiality agreements with employees, or through a restraint clause in an employment contract (see below). 

There are also equitable obligations of confidence which are applicable to trade secrets. 

A court will find that there has been a breach of confidence where:

• the information is sufficiently specific;
• the information is confidential;
• the information was received in circumstances importing an obligation of confidence (such as during employment); and
• there was an actual or threatened misuse of the information. 

The law will protect confidential information, even if it does not fall into the category of being a trade secret (Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317).

Protection of confidential information is balanced against an employee’s right to use their skills, expertise and knowledge developed during employment (Faccenda Chicken Ltd v Fowler [1987] Ch 117).

B. Covenants Not to Compete 

Although post-employment restraints of trade (covenants not to compete) are commonly used, they are presumed to be invalid unless it can be shown that the restraint protects a legitimate business interest of the employer and its goes no further than is reasonably necessary to protect that interest (Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Ply Ltd (1973) 133 CLR 288). The party that seeks to show that the restraint is reasonable must prove it to the court (Adamson v New South Wales Rugby League Limited (1981) 27 FRC 535). 

Reasonableness is determined by looking at the subject of the restraint, its geographical area of operation, and its duration. If a court considers a restraint is unreasonable, it will declare the restraint void unless the particular element that it considers unreasonable is severable, and the remainder of the restraint clause is able to survive on its own. Non-competition restraints are more difficult to enforce than non-solicitation restraints (see below) on public policy grounds because they can operate to effectively prevent an employee from working.

‘Step’ or ‘cascading’ clauses are often used to ensure that restraints that may be unenforceable can be easily severed. Step clauses set out a series of overlapping or cumulative restraints that differ in size or scope as to the location, period, and/or activities affected by the restraint. While these clauses are permissible, care must be taken to ensure that they are not so complex as to run the risk of being held void for uncertainty. To increase the likelihood of having a restraint upheld in court, employers must be able to demonstrate that they have carefully considered the role and responsibilities of the employee who is the subject of the restraint and how the restraint addresses risks to their legitimate business interests. For this reason, restraints should be drafted and reviewed on a case by case basis.

Some states and territories have their own legislation regulating restraints of trade. For example, in NSW, the Restraints of Trade Act 1976 (NSW) prohibits restraints that are contrary to public policy, but allows the Supreme Court to modify a restraint to make it is valid and, therefore, enforceable.

Where an employee (or former employee) breaches a valid restrictive covenant, the employer (or former employer) may obtain an injunction to restrain the breach, or may seek damages for any loss that has occurred as a result of such breach.

Changes to the use of non-competition clauses will come into effect in 2027. As part of its 2025/2026 budget, the Australian Government has announced that it will introduce a statutory ban on the use of non-compete clauses for workers earning less than the high-income threshold ($183,100). 

C. Solicitation of Customers & Employees 

Non-solicitation of employee restraints are intended to prevent an employee from inducing another employee or contractor of their former employer to leave the organisation to work for a competitor. These restraints are more likely to be enforceable in respect of employees:

• with whom the former employee worked directly and had a personal relationship which was developed during their employment; and
• with whom the former employee had influence over during their employment.

In order to increase the likelihood of an Australian court enforcing a non-solicitation of employees restraint, it needs to be limited by duration. The restraint will only be enforced for so long as is necessary to ensure the employee does not have an unfair competitive advantage in taking other employees.

Non-solicitation and non-dealing restraints are likely to be enforceable in respect of customers or suppliers:

• with whom an employee worked directly and had a personal relationship which was developed during their employment; and
• with whom an employee acquired specialist knowledge, such as the details of supplier contracts, or influence over during their employment.

A non-dealing restraint extends a non-solicitation restriction even further so that the employee is prevented from dealing with the customer or supplier, even if the employee did not make the initial approach.

D. Breach of Duty of Loyalty/Breach of Fiduciary Responsibility 

In Australia, employees, including directors or other officers of a corporation, owe a range of common law duties to their employer. One of those duties is a duty of loyalty – that is, to be loyal and act in the best interests of the employer. 

In addition, senior employees may owe a fiduciary duty to their employer under which they have an obligation not to profit from the position of trust afforded to them and not to bring their own interests in conflict with those obligations. 

These duties are complemented by statutory duties which provide that employees must not improperly use their position or information obtained as a result of being an employee to gain an advantage for themselves or someone else, or cause detriment to the corporation (ss 182, 183 Corporations Act 2001 (Cth)).

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VIII. Personnel Administration 

A. Payroll Requirements 

• Method of Payment

  Employees must be paid salary or wages in money. These payments can be made in a variety of ways including cash, cheque, electronic funds transfer or money order (s 323, FW Act). 

• Payment Frequency

  Under s 323(1) of the FW Act an employer must pay an employee at least monthly. It is common practice for employees to be paid fortnightly. Some modern awards also provide details about the frequency of payment.

• Special Record-Keeping Requirements

  Employers must make and keep employee payroll records for 7 years (s 535(1), FW Act). These records must include the rate of remuneration, the gross and net amounts paid to the employee, and any deductions made from the employee’s pay (r 3.33(1), Fair Work Regulations 2009 (Cth)).

  If the employee is entitled to receive different rates of pay depending on the hours they work (for example, loadings or penalty rates) then the record must also include the actual hours worked by the employee (for example, 09.00 to 17.00 on Friday 1 August 2025) (r 3.33(2), Fair Work Regulations 2009 (Cth)).

  Employers must provide employees with a pay slip within one working day of paying the employee. It may be in either electronic or hardcopy form, but must include (r 3.46, Fair Work Regulations 2009 (Cth)):

  • the name of both the employer and employee;
  • the period to which the pay slip relates;
  • the date on which the payment was made;
  • the gross and net amount of the payment;
  • any other amount paid (i.e. bonus, loading, allowance, penalty rate); and
  • the Australian Business Number (ABN) of the employer. 

  Employers must ensure that an employee’s pay slip does not record that the employee has taken family and domestic violence leave (r. 3.47 of the Fair Work Regulations 2009 (Cth)).  

B. Required Postings 

There are no federal rules requiring employers to display certain posters or information in the workplace. However, an employer must give each new employee a copy of a Fair Work Information Statement (and in the case of casual employees, must also give them a Casual Employment Information Statement) before or as soon after the employee commences employment (ss 125 and 125B, FW Act). A failure to do so is a breach of the NES. 

Where a modern award applies, there is usually a requirement to make a copy of the relevant award available for employees to access at the workplace (either in hardcopy or electronically). Some enterprise agreements also include a requirement that a copy of the enterprise agreement be made available in the workplace.

C. Required Training 

There are no mandatory training requirements at a national level, however, ensuring that employees receive appropriate training will be a relevant factor in determining whether an employer has met their work health and safety and anti-discrimination/sexual harassment obligations.

State and territory legislation can explicitly require employers to provide the necessary training required to enable staff to perform their work in a way that is safe and without risks to health (for example, s 21, Occupational Health and Safety Act 2004 (Vic)). 

D. Meal Rest Periods 

Federal legislation does not specifically provide for meal and rest periods for employees. However, enterprise agreements and modern awards often provide for paid and unpaid rest breaks and meal breaks. While this means that there can be some differences between industries, it is common for employees to be entitled to at least one 30 minute unpaid meal break after 5 hours of work. Some industries also have extra, short paid breaks. 

There is no national requirement for employees to have a particular period of time off between shifts, but employers should always make sure that they provide employees with enough rest time to be confident that they can perform their work safely. Some enterprise agreements and modern awards provide a minimum amount of time that an employee must have off between finishing one shift and starting another (often 10 hours). 

E. Payment Upon Discharge or Resignation 

When a person ceases their employment, they are entitled to receive payment for any outstanding wages and for accrued but untaken annual leave. In some circumstances, the employee may also be entitled to receive:

• accrued but untaken long service leave (entitlement to long service leave can vary depending on the relevant state or territory law, modern award or enterprise agreement);
• pay in lieu of notice (where the employer does not require the employee to work out their notice period and it is not an immediate termination due to serious misconduct) (see sub-section V.C. Mandatory Severance Pay above); and/or
• redundancy pay (if the termination was due to a genuine redundancy) (see sub-section V.B. Procedure above).

F. Personnel Records 

• Right of Access

  The FW Act sets out specific circumstances where personnel records must be made available to employees. 

  An employer must agree to any request from a current or former employee to inspect or copy an employment record that relates to them (s 535(3), FW Act and r 3.42, Fair Work Regulations 2009 (Cth)).

  There are strict time frames in which an employer must provide access to the employee record, depending on whether it is kept at the workplace or somewhere else. If a record is kept at the workplace, a copy must be made available to the employee within 3 business days, or alternatively it may be posted to the employee within 14 days (r 3.42, Fair Work Regulations 2009 (Cth)). If the record is not kept at the workplace, then the employer must make a copy available or post it to the employee as soon as possible.

  While Australia does not contain a general right to privacy, the Privacy Act 1988 (Cth) sets out a range of privacy obligations for private sector businesses with a turnover of more than AUD$3 million. These govern the collection, use and disclosure of personal information. Importantly, there is an exemption for ‘employee records’ which means that a private sector employer can collect, use and disclose employee records without consent provided that it is for a purpose directly related to the employment relationship.

• Retention Requirements

  An employer must make and keep employee records for 7 years (s 535(1), FW Act). These records must include a broad range of employment details including things such as the status of employment (full time, part time, temporary or casual), dates of employment, pay, overtime, leave, superannuation contributions and how the employment was ended.

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IX. Privacy

Privacy in the workplace is governed by the Privacy Act 1988 (Cth) (Privacy Act) which includes the 13 Australian Privacy Principles (APPs). The Privacy Act regulates the handling, storage, use and disclosure of personal information by the federal government and large organisations in the private sector. Employees are also protected by other specific laws that safeguard individual privacy in the workplace, such as workplace surveillance legislation (see section IX.H. Surveillance and Monitoring below for further detail). 

• A. Drug and Alcohol Testing

  Testing an employee for drugs and alcohol is not prohibited by the FW Act or other federal legislation. Employers can direct employees to undergo a drug or alcohol test as long as the request is reasonable at common law. 

  A request to undergo a drug and alcohol test is likely to be reasonable when it is undertaken to ensure the health and safety of employees and/or visitors to the workplace. 

  An employer will have a stronger basis for insisting that employees undergo drug or alcohol testing where terms of any applicable employment contract, workplace policy, modern award or enterprise agreement specifically permits testing.

  For some specific industries, such as transport and mining, drug and alcohol testing is mandated by industry regulations to ensure the maintenance of a safe workplace, where the employment involves heightened safety risks or the use of dangerous or specialised equipment.

  Employers who implement drug and alcohol testing should have a drug and alcohol policy in place, which addresses the procedures and consequences if a test returns positive. 

  A drug addiction may constitute a ‘disability’ for purposes of Australian discrimination laws (Marsden v HREOC [2000] FCA 1619) and therefore employers should ensure any decision to terminate an employee, as a result of a positive drug or alcohol test, is based on the employee’s incapacity to perform the inherent requirements of their position, rather than on their addiction, to minimise the risk of a discrimination claim. 

• B. Off-Duty Conduct

  Employers should proceed carefully when considering disciplining or dismissal of an employee for conduct which occurs outside the workplace. Conduct outside of the workplace can only be subject to disciplinary action and/or termination of employment where there is a close connection between the conduct and the employment (Rose v Telstra Corp Ltd [1998] AIRC 1592). The conduct must:

  • be likely to cause serious damage to the relationship between the employee and employer;
  • damage the employer’s interests; or
  • be incompatible with the employee’s duty as an employee. 

  It is not sufficient for the employer to simply assert that the conduct will in some way affect the employer’s reputation or compromise the employee’s capacity to perform his or her duties. There needs to be evidence upon which a firm finding can be made before action can be taken (Wakim v Bluestar Global Logistics [2016] FWC 6992). Conduct outside of work involving a criminal offence may not of itself be sufficient to justify dismissal (HEF of Australia v Western Hospital (1991) 33 AILR 249, quoted in Rose v Telstra Corp Ltd [1998] AIRC 1592). 

  An employer may be able take disciplinary action or terminate an employee’s employment for a social media misconduct outside of work hours or outside of the workplace where it satisfies the criteria set out above. Employers should implement a social media policy which clearly outlines the expectations and consequences for out of hours social media use (Linfox Australia Pty Ltd v Stutsel (2012) 217 IR 52). 

  An employee’s employment cannot be terminated for reasons that are prohibited by federal or state/territory discrimination laws (e.g. political or religious activities or beliefs).

• C. Medical Information

  An employee only has a duty to provide medical information if the direction to do so is lawful and reasonable. A request for medical information would be reasonable where:

  • the employer is fulfilling its obligations under safety legislation relevant to the employee; or
  • the request is relevant to the employee’s capacity to perform the inherent requirements of the job.

  Medical information that is relevant to an individual's employment (e.g. with respect to compensation claims or personal leave), is likely to fall within the ‘employee records’ exemption under the Privacy Act. This means that normal rules prescribed by the Privacy Act do not apply to these medical records. However, any other medical information that falls outside of the scope of the ‘employee records’ exemption must be collected, used, disclosed, and stored in accordance with the requirements of the Privacy Act.

  In circumstances where an employer may need to determine an employee’s capacity to return to work following an illness or injury, the employer may be able to obtain medical information about their employees directly from a medical practitioner. However, this can only be done where:

  • the employee has provided consent; or
  • the employer has provided a lawful and reasonable direction for the employee to attend a medical examination or provide the relevant medical information. 

  Under the FW Act, an employee may be required to provide their employer with evidence that they are not fit for work because of an illness or injury where they have taken accrued personal leave. Some modern awards or enterprise agreements may also contain detail regarding the type of evidence employees are required to give and when. 

• D. Searches

  An employer does not have a right under Australian federal or state/territory laws to search an employee’s personal property in the workplace. A search can only take place: 

  • if the employee’s consent has been voluntarily provided;
  • if the right is provided under the employee’s employment contract, a workplace policy, modern award or enterprise agreement; or
  • where it is necessary to comply with other applicable laws (e.g. WHS legislation).
• E. Lie Detector Tests

  Australian federal and state/territory laws do not prohibit employers from conducting lie detector tests, but section 6(1) of the Lie Detectors Act 1983 (NSW) provides that the output from a lie detector/polygraph test, and any opinion based on that output, is inadmissible in court. 

  Terminating an employee's employment based solely on the results of the test, may be harsh, unjust, or unreasonable depending on the other circumstances of the dismissal. Lie detector tests are rarely used in Australia.

• F. Fingerprints

  The collection of fingerprints or an employee’s biometric data in in the course of employment must be done with voluntary consent. 

  The collection of an employee’s fingerprints is the collection of ‘sensitive information’ and is not covered by the employee records exemption under the Privacy Act (Jeremy Lee v Superior Wood Pty Ltd [2019] FWCFB 2946). 

• G. Social Security Numbers

  Australia does not maintain a system of social security numbers. 

  Each employee is however given a Tax File Number (TFN) by the Australian Taxation Office. If an employee does not provide their TFN to their employer they will be subjected to the highest marginal tax rate on income earned from that employer.

  The rules relating to collecting, storing, using, and securing tax file number information are specified in the Income Tax Assessment Act 1936 (Cth) and in guidelines issued by the Federal Privacy Commissioner under s 17 of the Privacy Act. 

• H. Surveillance and Monitoring

  There are a number of federal, state and territory laws which restrict the use of surveillance and monitoring devices. 

  At the federal level, the Telecommunications (Interception and Access) Act 1979 (Cth) prohibits listening to or recording communications passing over the telecommunications system without consent or knowledge of the parties to the communication. Exceptions apply to interceptions for law enforcement, emergency services, and national security purposes. The Surveillance Devices Act 2004 (Cth) governs the use of surveillance devices by agencies, including law enforcement agencies when they are using surveillance devices under federal laws. 

  At a state and territory level, there is no uniform approach to workplace surveillance. The various states and territories have their own surveillance legislation that governs different positions on monitoring employees in the workplace. For example, in some Australian jurisdictions, it is illegal to record a phone call or conversation without the other person’s consent, while in others it is not.  State and territory legislation regulates a variety of types of surveillance in the workplace including listening devices, optical surveillance devices, tracking devices and data surveillance devices. 

  New South Wales, the Australian Capital Territory and Victoria have specific workplace surveillance legislation. All other jurisdictions in Australia, have more general surveillance legislation which applies more broadly than in the workplace. The specific workplace surveillance legislation in NSW, ACT and Victoria goes further than protecting employee’s privacy with listening devices. It covers computer surveillance (including employees’ email and internet usage, at work or at any other place where work is being performed), video surveillance and location tracking.

  Generally, all types of permitted surveillance and workplace surveillance requires notification to be provided to the employee and/or the person who is subject to the surveillance. Additional notice requirements apply to camera surveillance (e.g. clearly visible signs and cameras), and tracking surveillance (e.g. clearly visible notice on a vehicle). There are some exceptions where employees can be monitored without being informed, however employers must obtain a ‘covert surveillance authority’ issued by the Magistrates’ Court. Certain types of surveillance are completely prohibited (e.g. in change rooms, toilets or showers at a workplace).

• I. Cannabis (medical and recreational use)

  The consumption of cannabis for recreational use is not permitted under federal laws. In some states and territories, Australian registered medical practitioners can prescribe medicinal cannabis for particular health conditions. It may be unlawful to terminate an employee’s employment or to discriminate against an employee where they are prescribed medicinal cannabis, unless it can be demonstrated that the impact of this medication inhibits the employee’s ability to performing the inherent requirements of their role.

• J. Social Media

  There is no statutory regulation of social media use in Australia.

  Employees can be dismissed for social media related misconduct where the social media content is highly offensive or derogatory towards the employer and/or could cause serious harm to the business, even in circumstances where the social media content is considered private. In determining if a dismissal has been harsh, unjust or unreasonable, the Fair Work Commission will also take into consideration other factors such as, an employee’s inexperience with certain social media forums/platforms and the employee’s length of service with an employer. 

  Employees can also be dismissed for social media related misconduct outside of the workplace and outside of workplace hours. See sub-section IX.B. Off-Duty Conduct for more information. 

  Employers should implement a social media policy that sets out guidelines on an employee’s use of social media both in and outside of the workplace and the consequences of a breach of the policy. Employers should also ensure employees are adequately trained in the policy and aware of the employer’s expectation around social media. 

• K. Weapons/Workplace Violence Policy

  Gun ownership in Australia is tightly regulated and, therefore, it is not common practice for employers in Australia to adopt a Weapons Policy. 

  However, some employers will adopt a Workplace Violence Policy to ensure that they are meeting their work, health and safety obligations. As outlined in section XII. Health and Safety, an employer has a responsibility, so far as is reasonably practicable, to provide and maintain a safe work environment for all employees, customers, visitors and members of the general public. 

  A policy on workplace violence should clearly state to employees:

  • what constitutes ‘workplace violence’ (which may include ‘less aggressive’ acts, such as swearing);
  • what they can do if they experience ‘workplace violence’; and
  • the consequences of engaging in ‘workplace violence’ (including, but not limited to summary dismissal).

X. Employee Injuries and Workers Compensation

• Work Related Injuries

  All Australian jurisdictions have ‘no fault’ workers’ compensation schemes. This means that in order to be eligible to receive compensation, workers only need to prove that their injury is work related, not that the employer was negligent. 

  For most employers, this is regulated at a state or territory laws. It is mandatory for employers to maintain compulsory workers’ compensation insurance and there are significant penalties for non-compliance. 

  If an employee suffers a work related injury they may be entitled to receive payment for lost income, medical costs, legal costs and, in some circumstances (for serious injuries), lump sum compensation. While it does not have an enforcement or regulatory role, the federal body SafeWork provides information on the workers’ compensation schemes in each state and territory.

  There is also a federal workers’ compensation scheme that is overseen by Comcare, but this only applies to federal public sector employers and employees. 

• Non-work related injuries

  If an employee suffers a non-work related injury, they will not be entitled to receive compensation under a workers’ compensation scheme. 

  An employee must not be discriminated against because of an injury (see section IV. Discrimination & Harassment). However, if the injury means that an employee can no longer perform the inherent requirements of their role and there are no reasonable adjustments that would allow them to safely do so, then in some circumstances they may be dismissed from employment due to incapacity. This usually requires the employer to obtain detailed medical information (which can be sought where it is necessary in order for the employer to meet their health and safety obligations). Further, s 352 of the FW Act provides protection for employees who are absent from work with a temporary illness or injury, making it unlawful to termination the relevant employee’s employment on that basis. In this context, a ‘temporary absence’ is one which does not extend more than 3 months (or, if it is a series of absences, 3 months within a 12 month period).

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XI. Unemployment Compensation

• Eligibility

  In Australia, people who are unemployed or earn below a certain amount may be eligible for unemployment or social welfare payments. The Federal Government’s Services Australia agency administers unemployment or social welfare payments through Centrelink. 

  The legislative framework for unemployment or social welfare payments in Australia is governed by the Social Security Act 1991 (Cth) (Social Security Act) and the Social Security (Administration) Act 1999 (Cth).

  The main income support payment for people between the ages of 22 and 67 is called the JobSeeker payment, which was previously called the ‘Newstart Allowance’. 

  To be eligible for the JobSeeker payment (s 593, Social Security Act), a person must be either be:

  • looking for work; or
  • unable to do their usual work or study due to recovering from an illness or injury. 

  Only Australian citizens, permanent residence visa holders or protected Special Category Visa (SCV) holders who live in Australia can receive JobSeeker payments.

  Young people (between the ages of 16 and 24) may be eligible for Youth Allowance if they are studying full-time, undertaking an Australian Apprenticeship, or looking for work.

• Procedure

  The procedure for claiming a social security payment is set out under Part 3 of the Social Security (Administration) Act 1999 (Cth). Online applications can be found on Services Australia’s website and an applicant will have to provide supporting documentation of their residency, income and assets.

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XII. Health and Safety 

A. Overview 

In 2012, Australia introduced harmonised work health and safety (WHS) legislation that was intended to make WHS laws consistent across all states and territories. Since this time, all states and territories (except for Victoria) have adopted or are in the process of adopting laws that are largely consistent with the federal WHS legislation, the Work Health and Safety Act 2011 (Cth) (WHS Act). The WHS Act was recently amended to introduce a new industrial manslaughter offence. 

Victoria has its own health and safety scheme, the Occupational Health and Safety Act 2004 (Vic).

The primary duty of care is owed by a ‘person conducting a business or undertaking’ (PCBU). A PCBU is a broad concept that captures both organisations and individuals (such as partners in  partnerships or in an unincorporated joint venture) (s 5, Work Health and Safety Act 2011 (Cth)). The concept does not extend to single worker businesses or volunteer associations. 

The PCBU (which, for this publication, we refer to as the ‘employer’) has a strict duty to provide a safe workplace. Section 19 of the Work Health and Safety Act 2011 (Cth)requires employers to ensure, so far as reasonably practicable, the health and safety of workers and other persons affected by the business or undertaking. 

Determining what is ‘reasonably practicable’ will depend on the particular situation. It requires consideration of what was, at that particular time, reasonably able to be done to ensure health and safety, weighing up all of the relevant matters (s 18, Work Health and Safety Act 2011 (Cth)), such as:

• the likelihood of the risk occurring;
• the level of harm that could result from that risk;
• what the person knows, or should know about the risk and ways of eliminating it;
• the availability and suitability of ways to eliminate or reduce the risk; and
• whether the cost of eliminating or reducing the risk is grossly disproportionate to the risk. 

In terms of compliance at a national level, WHS laws are administered by Comcare, the national regulator for health and safety. While a significant focus of Comcare is on providing advice and encouraging compliance, it also has broad powers to enforce compliance with WHS laws (Part 10, 11 and 13 of the Work Health and Safety Act 2011 (Cth)). Common outcomes include issuing improvement notices (requiring a breach to be remedied by a certain time) or infringement notices and enforceable undertakings (a promise to fix something in exchange for the regulator not bringing legal action). Serious breaches of WHS laws by employers can result in large financial penalties and imprisonment. States and territories also have their own WHS regulators and enforcement schemes. 

Some states have introduced (and others are planning to introduce) amendments to their WHS laws to provide a positive duty for a PCBU to manage psychosocial risks in the workplace. A psychosocial hazard is one that arises from the design, management, environment, plant or interactions at work, that may increase the risk of work-related stress which can then lead to psychological or physical harm. A psychosocial risk is a risk to the health or safety of a person from a psychosocial hazard.

B. Regulatory Requirements 

• Social Elections

  A worker has a right to ask their employer to organise an election for one or more health and safety representatives. If one of these requests is made, there are a range of steps that must be taken by the employer to facilitate the establishment of a WHS workgroup, which may then hold elections for health and safety representatives. This process is set out in Part 5 Division 2 of the Work Health and Safety Act 2011 (Cth). 

  Once elected, health and safety representatives act on the behalf of their colleagues to resolve WHS issues in the workplace and maintain safe working conditions (s 68, Work Health and Safety Act 2011 (Cth)). These representatives have fairly broad legal rights (such as the right inspect any part of the workplace) to enable them to carry out this function.

• Works Councils

  Unlike in Europe, the creation of ‘Works Councils’ is not a common concept in Australia. Accordingly, there are no laws or regulations specifically focused on their establishment or operation. Rather, most negotiation around industrial relations issues occurs between employers and trade unions (see XIII. Trade Unions – Industrial Relations).

• Health and Safety Committee

  Under s 75 of the Work Health and Safety Act 2011 (Cth), an employer must establish a committee to deal with WHS issues if requested to do so by employees. Regardless of whether a committee is established, employers must engage in reasonable consultation with any workers (and other duty holders) who are likely to be directly affected by WHS issues (s 47, Work Health and Safety Act 2011 (Cth)). 

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XIII. Trade Unions - Industrial Relations 

A. Overview 

In Australia, trade unions are independent organisations that are not associated with, or tied to, any one employer. Most trade unions cover particular occupations or industries (for example, in the financial services sector, the Finance Sector Union) and will represent employees who fall within the scope of their eligibility rules. 

The FW Act contains freedom of association provisions which protect an employee’s right to join, participate in and seek representation by a registered union. The legislation also protects an employee’s right to not join a union.

• Favoured/Disfavoured by Government

  The Australian government acknowledges that trade unions play an important role in the workplace. The Government’s specific view regarding trade unions and their activities depends on which political party is in power.

  Some of the key roles of trade unions in the workplace include: 

  • being able to resolve workplace issues (see sub-section XIII.C. Managing a Unionised Workforce below);
  • ensuring employers are meeting their minimum obligations;
  • looking into suspected breaches of workplace, discrimination or work, health and safety laws; and
  • acting as a bargaining representative during bargaining negotiations (see sub-section XIII.C. Managing a Unionised Workforce below). 

  The Australian government, through enacted legislation, has emphasised cooperation between employers and trade unions so that workplace relations are enhanced while the adverse effects of industrial disputes or action are reduced (s 5 of the Fair Work (Registered Organisations) Act 2009 (Cth)).

• Prevalence of Trade Unions

  Over the past forty years, trade union membership in Australia has been falling steadily. Data from the Australian Bureau of Statistics demonstrates that only 13.1% of all employees in Australia were members of a trade union in August 2024, down from 41% in 1992. The influence of trade unions is most prevalent in education, public administration and safety and health industries. 

• Special Requirements (e.g. US-Right to Work)

  See sub-section X.III.B Right to Organise/Process of Unionisation below. 

• Works Council

  There are no works councils, or equivalent bodies, that are required, or recognised, under Australian law. 

• Challenges for a Unionised Business

  The most significant challenge for a unionised business is dealing with industrial action. 

  Industrial action is a refusal to do or provide work that would otherwise be performed under an employment contract. Common forms of industrial action include strikes or bans by employees. Employers can also take industrial action in the form of lockouts.

  Industrial action is only lawful if it is ‘protected industrial action’. Employees and trade unions that engage in protected industrial action are not exposed to the various tort or statutory liabilities such as interference with contractual relations, intimidation or unlawful interference. Unprotected industrial action may breach the civil remedy provisions in the FW Act, leaving employees exposed to injunctions or other orders under s 545 of the FW Act, or the imposition of penalties under s 546 of the FW Act.

  There are a number of statutory requirements for industrial action to be considered 'protected'. These are set out in Part 3-3 of the FW Act and include that industrial action must only be organised for the purpose of supporting or advancing claims in relation to an enterprise agreement and must not be ‘pattern bargaining’, which is a course of conduct by a person who is a negotiating party to two or more proposed enterprise agreements, seeking common wages or conditions for two or more of those agreements, where the conduct extends beyond a single business (s 412, FW Act). 

  Significantly, protected industrial action cannot be taken before an enterprise agreement has passed its nominal expiry date (s 417, FW Act). This means a primary challenge for a unionised business is to balance negotiations for an enterprise agreement and the threat of, and disruption caused by, the taking of protected industrial action.

B. Right to Organise/Process of Unionisation 

In order to exercise many of the rights afforded to trade unions under the FW Act, a trade union must be registered under the Fair Work (Registered Organisations) Act 2009 (Cth). This legislation governs, among other things, eligibility for registration, union representation rights, and rules regarding the conduct of union officers and employees. 

The registration process under the Fair Work (Registered Organisations) Act 2009 in broad terms includes the following:

• the form of application must comply with certain requirements (including specified information about the association and its rules);
• the applicant must be a genuine association, free from the control or improper influence of an employer or other union, whose object is to further or protect the best interests of its members;
• the FWC must be satisfied that the applicant will conduct itself in compliance with its obligations under applicable legislation; and
• for unions organised along particular trade or industry lines (i.e. including employees from different employers), there must be 50 members who are employees.

Under the FW Act, employees may decide for themselves whether they would like to join a trade union that covers the type of work they perform. The FW Act protects both an employee’s right to join, and their right not to join, a trade union. 

Under the FW Act, it is illegal to take or threaten to take adverse action against a person for being or not being a union member, or taking part or not taking part in industrial activity. An ‘adverse action’ against a person includes: 

• dismissing them;
• changing their role to put them in a worse position;
• changing their term and conditions of employment to put them in a worse position; or
• discriminating against them.

As of 1 July 2024, ‘delegates rights terms’ are inserted into modern awards and must be included in enterprise agreements, which must provide, at a minimum, the rights for workplace delegates to:

• represent the industrial interests of current and prospective members of the union, including in relation to any workplace disputes;
• reasonable communication with current and prospective members of the union in relation to their industrial interests;
• reasonable access to the workplace and workplace facilities to conduct their duties as workplace delegates; and
• reasonable access to paid time during normal working hours to undertake paid training in relation to the role of workplace delegates (small business employers, who have less than 15 employees, are excluded from this obligation). 

C. Managing a Unionised Workforce 

• Collective Bargaining

  The collective bargaining system in the FW Act permits employers and employees (with the assistance of their bargaining representative) to make binding enterprise agreements. Generally, a trade union will be the default representative of any of its members, unless a particular member has appointed another person (or themselves) to represent them. 

  No later than 14 days after bargaining has commenced, an employer must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who will be covered by a proposed enterprise agreement. The content of this notice is prescribed by the FW Act (s 174, FW Act, regulation 2.05, FW Regulations).

  The FW Act also outlines requirements to comply with the principles of ‘good faith bargaining’ (s 228, FW Act). These requirements require both the employer and employee (or their bargaining representative) to:

  • attend and participate in meetings at reasonable times;
  • disclose relevant information in a timely manner;
  • give genuine consideration and reasoned responses to proposals; and
  • refrain from engaging in ‘capricious or unfair’ conduct that might undermine the bargaining process. 

  The ‘good faith bargaining’ principles do not, however, require that any party make concessions or reach any agreement. 

  The FW Act regulates the content of an enterprise agreement and provides that: 

  • mandatory terms must be included in an enterprise agreement, such as terms regarding the base rates of pay of employees and the procedures for resolving disputes involving the NES (s 186(6), FW Act);
  • the permitted terms that may be included in an enterprise agreement, such as terms regarding working conditions (i.e. working hours and shift patterns) (s 172, FW Act); and
  • unlawful terms that must not be included in an enterprise agreement, such as terms that are discriminatory in nature (s 186(4), FW Act). 

  A proposed enterprise agreement must be approved by a majority of employees who vote on it, following the employer providing information about the agreement and its effects within the 7 day period prior to the vote, known as the ‘access period’ (s 180, FW Act).               

  Within 14 days of an enterprise agreement being approved, one of the bargaining representatives must apply for it to be approved by the Fair Work Commission. There are a number of requirements for approval, both procedural and substantive. The Fair Work Commission must be satisfied that all requirements have been satisfied, including that the enterprise agreement passes the ‘Better Off Overall Test’, or the ‘BOOT’ (s 193, FW Act).

  In order to pass the ‘BOOT’, the Fair Work Commission must be satisfied that the employees are better off overall under the proposed enterprise agreement than they would have been when compared with the relevant, underlying modern award.

• Dispute Resolution

  The FW Act requires all modern awards to include a term that sets out the procedure for resolving disputes involving matters arising under the modern award or the NES. Similarly, when making an enterprise agreement, the FW Act requires the parties to include a dispute resolution clause (s 186(6), FW Act). Dispute resolution clauses in enterprise agreements must:

  • provide a process to resolve any disputes arising under the agreement or the NES;
  • require or allow either the Fair Work Commission or some other independent person to settle the dispute; and
  • allow for the representation of employees covered by the agreement when there is a dispute (for example by another employee or a trade union). 

  A ‘model dispute resolution clause’ is available in the Fair Work Regulations 2009 (Cth) (see clause 6.01) and can be used to develop a dispute resolution term in an enterprise agreement. The FW Act has recently been amended such that in or around early 2025, a new model term will be determined by the Fair Work Commission (and thus no longer contained in the FW Regulations). It should be noted that the Fair Work Commission cannot compel employers to adopt the model term – so the model term as determined by the Fair Work Commission will only become operative if an enterprise agreement is silent on dispute resolution. 

• Impact on Management Rights

  In addition to there being a requirement to include a dispute resolution clause, the FW Act requires enterprise agreements to include a term that requires an employer to consult with employees about:

  • a major workplace change that is likely to have a significant effect on the employees; or
  • a change to their regular roster or ordinary hours of work (s 205, FW Act). 

  The consultation term must require the employer to consult with employees about a major workplace change that is likely to have a significant effect on the employees. In addition, the consultation term must require that for a change to the employees’ regular roster or ordinary hours of work, the employer must:

  • provide information to the employees about the change;
  • invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and
  • consider any views given by the employees about the impact of the change.

  The consultation term must also allow for employees to be represented (such as by union officials) during consultation about a major workplace change or a change to the employees’ regular roster or ordinary hours of work. 

  Eligible officials of registered unions have rights to enter employer premises in certain circumstances to investigate suspected breaches of health and safety and workplace laws and to hold discussions with employees who are eligible to be members of the union (ss 481, 484, FW Act). 

  In addition, see sub-section XIII.A Challenges for a Unionized Business above.

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XIV. Immigration/Labour Migration 

Australian citizens, permanent residents and people who have a valid visa with work rights can all legally work in Australia. Citizens of New Zealand have broad work rights in Australia under a Special Category Visa. 

There are a range of visa pathways that allow foreign citizens to work in Australia, including short and long term, skilled and sponsored, investment and working holidays. For example, the Temporary Skill Shortage Visa allows certain businesses who cannot find a suitably skilled worker locally to sponsor a skilled foreign worker to come to Australia and work for the business for a specified period (usually 2 or 4 years). Some visas, such as student visas, have limited work rights (or example, restricting working hours to 40 hours per fortnight). 

It is extremely important for employers to take all reasonable steps to ensure that their employees are legally entitled to work in Australia. There are financial penalties and criminal offences for allowing non-citizens to work without a visa, or in breach of their visa conditions. Australia’s national workplace relations regulator, the Fair Work Ombudsman, regularly prosecutes employers who enter into exploitative arrangements with foreign workers. 

In order to become a citizen of Australia, it is necessary to first be a permanent resident. It is then necessary to meet a range of eligibility requirements such as living in Australia for a minimum length of time, minimum English skills and demonstrating that the person is of ‘good character’. 

This document is for general information only and does not constitute legal advice. Please seek specific legal advice before acting on the contents set out herein. Published August 2025 in Global Employer Handbook, Employment Law Alliance.