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Industrial Law

  • While employers and employees can agree to the terms of the employment relationship, in Australia certain minimum standards apply. Most workers in Australia are covered by workplace agreements or awards that control the terms of employment in workplaces or industries. These agreements and awards are currently made under both State and Federal Law. At the Federal level, the Fair Work Act 2009 is the governing legislation.
  • In South Australia, the Fair Work Act 1994 is still in force, although the South Australian Government intends in the long term to transfer this jurisdiction to the Federal system.
  • An employee performs work under a contract of employment. The question of whether someone is employed or is an independent contractor is increasingly relevant in the current era. The considerations in determining whether a worker is employed or an independent contractor are; whether the worker has control over how the work is done, whether the pay is hourly or salary based, whether the worker insures themselves for injury, whether they bear the risk of financial loss, whether the worker can delegate the work, whether the worker supplies their own tools and equipment, whether the worker pays his own income tax and Super. In certain circumstances, penalties will apply to "sham arrangements" which try to disguise employees as independent contractors.
  • Employment contracts can be verbal, or written or both. If a worker is not covered by an agreement or award, they should ensure that they have a written agreement with the employer covering issues such as duties, location, whether casual, part or full time, normal hours, overtime, wages, whether for fixed period or ongoing, and any probation period. Nevertheless, some terms of employment might be implied, that is, they are observed in practice by both parties.
  • An employee has a duty to obey the lawful and reasonable orders of the employer, and undertake the job honestly and faithfully. They must account for the employers property and pass on any profits made. An employer cannot force any employee to be searched, unless expressly provided for in the contract of service. While an employee cannot disclose trade secrets and confidential information, it is not a breach of the employment contract to disclose misconduct by the employer that should, in the public interest, be disclosed.
  • An employer must take all reasonable steps to make it possible for the employee to carry out the work.
  • Casual employees work on an irregular basis, and may or may not be offered work, and they may or may not accept it. Not offering or accepting the work does not breach the employment contract. However, if an employee is being provided with regular stable employment, they may not be true casuals, and can seek remedy against their employer, seeking a declaration that they are permanent part or full-time. Casual employees do not receive holiday or sick

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