Unless you exercise your rights at work, they might as well not exist.
Women face legal issues everyday: at work, home, in relationships, even walking down the street. In fact the world of workers rights, sexual harassment, and abuse is so complex that a lot of the time we’re dealing with it and don’t even realise. Understanding this we bring you our column I Need A Lawyer by Zoe Dealehr, where one of our resident Good Good Girls (who conveniently has a law degree) will untangle some of the more tricky elements to make sure you’re being treated right in all areas of your life.
It’s hard to know where to start on a topic as large and illusive as legal clarity, so we figured it would make sense to begin where most people spend the majority of time—work. We’ve pulled together a beginners guide to workplace rights: what you’re entitled too and areas where people of often taken advantage of for you to look out for.
I Need A Lawyer is here as a basic guide to get you thinking about your own rights and treatment, if anything here rings true you probably do need a lawyer and can find more info at the bottom of this article.
Out of all our relationships, the ones in the workplace hold the most potential to be totally deranged. Now that can be in reference to “private” moments in the kitchenette, or more seriously in reference to the legal entanglements we all face daily.
There is a rainbow of workplace arrangements you might be part of: you could be in two at the same time, none at all, or not even know.
On a wider scale, upheaval cuts through our work environment like a blade; the social structure, communication and economics of our workplaces are constantly changing and we need to be aware of how to adapt and protect ourselves.
Luckily there are usually laws that fit around your circumstance. Most workplace arrangements are covered: whether you’ve found a job that fits you, one that is necessary for you to keep, or if you think that something is awry at work. But remember, unless you exercise your right, it might as well not exist.
There are times where you might be expected to be adaptable at work. Presently 40% of the workplace are either casual or on a contract, throw internships and volunteer placements into the mix and there will be expectations for you to work for little to no pay at some point in your working life. Most people will be familiar with this set up, in a competitive world exposure counts as currency in many of our industries.
Despite all this it’s important to be weary of any low or unpaid position; old people are getting older, they’re putting pressure on public services and us, their children. Those jobs are opening up and we need to be aware that they need to be filled. Wages are no longer tied to production. Wages are at stable levels and production is increasing which means someone is profiteering from the gap. Keep that in mind the next time someone says they can’t pay you—someone if making money of you somewhere.
Now those of us who belong to the creative industries will recognise a lot of our own lives in the above, but many people in academia, journalism, and other industires are increasingly finding themselves in the same position.
Rather than lament the changing culture, equip yourself with information to increase your real and perceived powers in your workplace. Your Dream job might look different or even not exist anymore, but that’s no excuse to allow yourself to get ripped off. Below is a breakdown of universal workers rights you need to be aware of when you enter into any contract, agreement, or even a job interview.
The National Employment Standards (NES)
Together with the minimum wage, these are the “floor” of an employment relationship. Anything under that floor is a breach of the law. The NES applies to those who are considered employees: part time, full time, fixed term and casual, but not contractors or unpaid volunteers and interns.
Some of the entitlements which should be provided for in your workplace are:
• Minimum wage, with a 25% loading if you’re casual.
• Four weeks accruing annual leave per year of service—you can take this annually and your employer can’t reasonably refuse a request.
• 10 days of personal/carer’s leave aka sick leave, per year. This leave accrues. You may have to provide evidence of sickness in the form of a medical certificate or a statutory declaration.
• Payment of base rate of pay on public holidays where you would have otherwise been expected to work.
• When being made redundant, entitlement to a minimum notice period, calculated on how long you have given continuous service to the employer. If you are not given this notice you are entitled to payment for the same period in lieu of notice in a lump sum.
• Redundancy pay in addition to any payment in lieu of notice – if you have worked between 1-2 years, you are entitled to four weeks payment. This amount increases with the period of continuous service.
• Businesses with less than 15 employees are exempted from redundancy pay requirements and casual workers don’t make up the 15.
• No entitlement to pay if you’ve been working for less than 12 months.
• Fixed term employees aren’t entitled to redundancy pay, and neither are casuals.
Casual employees are not entitled to annual leave, personal/carer’s leave or payment on public holidays if they don’t work them. Neither are they entitled to a redundancy payment.
Part Time/Full Time Employees
This is an interesting group, they are the most protected workers but they also have the least freedom. This type of arrangement requires an employment contract. Having a copy is absolutely essential!
In addition to the NES, a Modern Award might also protect employees if they’re working in one of the industries covered. An Award is a document, which sets out the conditions that apply to the industry regarding employment. It is illegal to breach this document unless you contract out of it, either individually or as part of a collective group like a union. However, employees must be considered to be ‘better off overall’ for any outside agreement to be legitimate! This will be useful if that employment contract has already been signed.
All employees are entitled to join a union if their workplace is covered by one. Collective action can help solve problems and bridges the power divide that often prevents people from speaking up, and which encourages them to accept shoddy conditions. It aims to reduce the alienation of workers from their jobs and encourages employees to leverage what they have, numbers.
Fixed Term Employees
These are employees who are employed for a particular length of time or for a specific project. They are entitled to sick leave, annual leave and paid public holidays. The work is temporary and there is no long-term security.
This type of works requires an employment contract.
Many people find themselves in this position at some point in their working life. Internships can be rewarding stepping stones to the job you want, but it’s important to remember if someone could be paid to do the job you’re about to intern for, think about not taking it. You help raise the standards expected in the workplace and stop the race to the bottom in terms of wages and conditions. Alternatively, ask for payment; if the job seems like it could be a paid position you shouldn’t be working for free and your efforts have value.
You should be the one that gains the most from this arrangement, not the company. For these to be lawful, you can’t be an employee. This is not to do with paper classification, but rather the context and content of the work performed. If the intention is to form an ongoing workplace relationship, you’re an employee. Therefore all the rights referred to above are yours too.
Contractors and Freelancing
Whether you’re a contractor depends on the context and content of the work, not the paper classification. You need to get a written contract between yourself and the person you’re doing work for if you fit into this category, to outline the relationship and conditions. Contractors are Independent workers who hire themselves out for their services and usually have an ABN. Contractors and Freelancers are responsible for paying all of their own superannuation, tax and other expenses. They usually come with all their own equipment. They are not entitled to minimum wage, as anything can be agreed to (pretty much) in a contract.
Don’t fit into the above?
Then there are a whole lot of loose arrangements you may be thinking don’t fit neatly into these categories. That’s the truth, they don’t. If wages aren’t declared as taxable income, then many of our legal rights disappear, and its unlikely that any legal recourse can be taken if something goes wrong: no leave entitlement, superannuation or workplace injury compensation. In other words, working for cash means you’re pretty much legally invisible. Keep that in mind when you take a cash in hand job to keep your concession card.
When things go wrong
If you think that your work relationship is turning sour, or already has, then you can break it off. Or you can call for back up. First of all, contact your professional association or union if you have one are there to help. Sometimes there are annual fees involved. You could also call the Fair Work Australia hotline for some back up information for free. If you really need some closure on a burning issue, then call the Law Institute of Victoria—they will listen to you and refer you to a legal practitioner that can help.
Media, Entertainment and Arts Alliance: 1300 65 65 12
Community and Public Sector Union: 1300 137 636
Professionals Australia (formerly APESMA): 1300 273 762
Australian Manufacturing Workers Union: 9230 5700
Go here for more professional associations.
Fair Work Australia Hotline: 13 13 94
Law Institute of Victoria: 9607 9311
Victorian Trades Hall Council: 9659 3511