Employers Obligations Guide

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Employer Obligations
As an employer, you are responsible for meeting employee entitlements. You
need to be aware of the national workplace relations system1 and understand
your responsibilities. Failing to meet your responsibilities can have serious
financial and legal consequences for your business and also may be a breach
of your franchise agreement.
This Guide/Chapter outlines key requirements and responsibilities under the
Fair Work Act that all employers need to be aware of. It includes:

National Employment Standards ............................................................................ 2
Industrial instruments.............................................................................................. 3
Modern Awards....................................................................................................... 3
Enterprise Agreements ........................................................................................... 4
Individual Flexibility Arrangements ......................................................................... 5
Employment Contracts ........................................................................................... 5
Pay rates ................................................................................................................... 5
Pay slips & record-keeping obligations ................................................................. 6
Employing staff ........................................................................................................ 7
Hiring employees .................................................................................................... 7
Engaging Independent Contractors ........................................................................ 8
Handling Workplace Disputes ................................................................................. 9
Managing Underperformance ................................................................................. 9
General Workplace Protections ............................................................................ 10
Terminating the employment of staff ................................................................... 10
Where to get help ................................................................................................... 12
What to do if the Fair Work Ombudsman contacts you ...................................... 13
Frequently Asked Questions ................................................................................. 13
Pay FAQ’s ............................................................................................................ 13
Leave FAQ’s ......................................................................................................... 15
Termination of employment FAQ’s ....................................................................... 16
Other FAQ’s .......................................................................................................... 18

Disclaimer: The information contained in this Guide is current to March 2012. Links
to the websites may change from time to time. The user is responsible for ensuring
the information and embedded links are current.

1 Sole traders; partnerships, other unincorporated entities and non-trading corporations in Western Australia
remain in their state system. Incorporated businesses in Western Australia are generally covered by the national
workplace relations system.

1
National Employment Standards
The National Employment Standards (NES) are 10 minimum entitlements that
must be provided to national system employees. They are:
 Maximum weekly hours of work - 38 hours per week, plus reasonable
additional hours.
 Requests for flexible working arrangements - allows parents or carers
of a child under school age (or of a child under 18 with a disability), to
request a change in working arrangements to assist with the child’s
care.
 Unpaid parental leave and related entitlements2 - up to 12 months’
unpaid leave, plus a right to request an additional 12 months’ unpaid
leave, a right to return to their pre-parental leave position and other
forms of parental leave and adoption related leave.
 Annual leave - 4 weeks’ paid leave per year, plus an additional week
for certain shift workers.
 Personal / carer’s leave and compassionate leave - 10 days’ paid
personal / carer’s leave per year, two days’ unpaid carer’s leave as
required, and two days’ compassionate leave (unpaid for casuals) as
required.
 Community service leave - unpaid leave for voluntary emergency
activities and leave for jury service, with an entitlement to be paid for
up to 10 days for jury service.
 Long service leave (LSL) - an entitlement for employees who had
certain LSL entitlements before 1/1/10 pending the development of a
uniform national long service leave standard.
 Public holidays - a paid day off on a public holiday, except where
reasonably requested to work.
 Notice of termination of employment and redundancy pay - up to 5
weeks’ notice of termination of employment and a number of weeks’
redundancy pay, based on age and/or length of service.
 Provision of a Fair Work Information Statement - employers must
provide this statement to all new employees. Download the Fair Work
Information Statement from the Employment section of the Fair Work
Ombudsman website.

2 Employees may also be eligible for paid parental leave, through the Government funded Paid Parental Leave
Scheme and/or though an employer funded arrangement in an agreement, policy or contract. For information
about Government funded Paid Parental Leave see the Family Assistance Office website.

2
The NES underpins modern awards, enterprise agreements and employment
contracts. A modern award, enterprise agreement or employment contract
may contain ancillary terms or provide extra entitlements, but they cannot
remove or reduce an employee’s NES entitlements.
There are rules about how and when the NES entitlements apply. Some NES
entitlements do not apply to casual employees.
For more information about the NES visit the Employment section of the Fair
Work Ombudsman website.

Industrial instruments
Modern Awards
Modern awards commenced on 1 January 2010 and cover most workplaces*.
Modern awards establish minimum conditions for employers and employees
who work in certain industries or occupations.
Modern awards apply in addition to the NES and may include conditions such
as:
 minimum wages
 types of employment (for example, full-time, part-time or casual)
 overtime and penalty rates
 work arrangements (for example, rostering or variations to working hours)
 annualised wage or salary arrangements
 allowances (for example, laundry allowance for employees required to
launder their uniform)

 leave, leave loading and arrangements for taking leave
 superannuation
 procedures for consultation, representation and dispute settlement.
Each modern award contains a ‘coverage’ clause which specifies whom the
modern award covers and any exclusion to that coverage. To determine if a
modern award covers your employees you need to look at this coverage
clause.
Modern awards may not apply to some managers or high income employees
(who have an appropriate written guarantee of annual earnings).
*A modern award will not apply to employees covered by an enterprise
agreement. It is important to check modern award coverage however, even if

3
you have an enterprise agreement in place, as the modern award will
underpin the wages in the enterprise agreement (see ‘Pay Rates’ below).
NOTE: An employment contract will be underpinned by an applicable modern
award. An employment contract may provide extra entitlements but it cannot
remove or reduce an employee’s modern award entitlements.
For more information about awards visit the Awards section of the Fair Work
Ombudsman website.
For more information about superannuation contributions visit the Business
section of the Australian Taxation Office website.

Enterprise Agreements
Employers and employees can create an enterprise agreement3 that will cover
the wages and conditions which apply to their business. An enterprise
agreement can offer benefits to a business because it is tailored to that
workplace’s needs.
[Insert details here if an enterprise agreement covers the franchise group.]
Enterprise agreements are underpinned by the NES. Enterprise agreements
may provide extra entitlements but cannot remove or reduce an employee’s
NES entitlements.
An enterprise agreement will generally override a modern award, however, the
base rate of pay in the enterprise agreement must be at least equal to the
relevant modern award base rate (see ‘Pay Rates’ below).
An employment contract will be underpinned by an applicable enterprise
agreement. An employment contract may provide extra entitlements but it
cannot remove or reduce an employee’s enterprise agreement entitlements.
An enterprise agreement continues to operate until replaced by another
enterprise agreement or it is terminated.
Important Note: An enterprise agreement will not operate unless it has been
lodged and approved. There are rules about how enterprise agreements are
negotiated, lodged and approved.
For more information about enterprise agreements visit the Employment
section of the Fair Work Ombudsman website.
Important Note: If you have purchased an existing franchise your employees
may be covered by an enterprise agreement that applied to the former
franchisee under the transfer of business rules. For more information,

3
Also formally known as a ‘workplace agreement’ or a ‘collective agreement’.

4
download the Transfer of business fact sheet from the Resources section of
the Fair Work Ombudsman website.

Individual Flexibility Arrangements
An employer and an individual employee can agree on an arrangement which
varies the effect of the applicable modern award or enterprise agreement. This
is known as an Individual Flexibility Arrangement or IFA.
An IFA must meet the genuine needs of the employer and that individual
employee and cannot be used to undermine minimum employee entitlements.
There are specific requirements for putting an IFA in place, including a
requirement that the employee is better off overall under the IFA.
For more information download the Use of individual flexibility arrangements
Best Practice Guide from the Resources section of the Fair Work Ombudsman
website.
Important Note: Australian Workplace Agreements (AWAs) and Individual
Transitional Employment Agreements (ITEAs) can no longer be made. AWAs
and ITEAs, lodged before 31 December 2009 continue to operate until they
are terminated or replaced.

Employment Contracts
An employment contract may be in writing, oral or inferred from the conduct of
the employer and the employee. It is a good idea to record the terms and
conditions of the employee’s engagement in writing. This can be done in a
letter of engagement or through a more formal contract.
An employment contract can provide more generous conditions than the NES
and the applicable modern award / enterprise agreement (for example
performance bonuses or provision of a car) but cannot undercut an
employee’s minimum entitlements.

Pay rates
An employee’s pay is set by their modern award or enterprise agreement.
Where no modern award or enterprise agreement applies to the employee,
they will be entitled to at least the National Minimum Wage.
An employee’s pay will depend upon things like the employee’s:
 age (some modern awards / enterprise agreements provide different
rates for junior employees)

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 job classification / duties / qualifications / level of responsibility
 type of employment (e.g. a casual employee may be entitled to a casual
loading), and
 hours and times of work (e.g. an employee working on Sunday may be
entitled to a Sunday penalty rate)
Fair Work Australia conducts an annual minimum wage review which may
result in increases to pay rates. Changes to pay rates generally take effect on
1 July each year.
To check your employees’ pay rates use the PayCheck Plus tool located in
the Pay section of the Fair Work Ombudsman website.
Remember: Changes to an employee’s position will often change their pay
rate too (e.g. if the employee takes on more responsibility or gains a new
qualification their classification under the modern award / enterprise
agreement is likely to change).
Important Note: Most modern award pay rates are being progressively
phased in from 1 July 2010 until 1 July 2014. During this time, you will need to
take extra care to check pay rates, as the correct pay rate may be higher than
the rate published in the modern award.
Important Note: Base rates of pay in a modern award override lesser base
rates in an enterprise agreement (including agreements made before
1 January 2010). Where there is no relevant modern award, pay rates in the
enterprise agreement need to be at least in line with the applicable pre-
modern award, or where none exists, the national minimum wage. This only
applies to base rates of pay. Penalties, loadings and allowances continue to
apply as stated in the enterprise agreement.
Important Note: An employment contract will be underpinned by an
applicable modern award / enterprise agreement. An employment contract
cannot remove or reduce an employee’s modern award / enterprise
agreement entitlements. Where an employee is paid a salary under their
employment contract, care needs to be taken to ensure the amount, and what
it is paid for, is sufficient to meet all applicable modern award / enterprise
agreement entitlements.

Pay slips & record-keeping obligations
You need to issue your employees with pay slips within one working day of
paying them. Pay slips may be issued electronically or in hard copy.
You also need to keep records in respect of each employee relating to their
employment, pay, hours of work, leave, superannuation contributions,

6
termination of employment and other matters.
These records must:
 be in a form that is readily accessible to a Fair Work Inspector
 be in a legible form and in English
 be kept for seven years
 not be altered unless for the purposes of correcting an error
 not be false or misleading to the employer’s knowledge.
For details about what information needs to be included in pay slips and
employee records download the Employee records and pay slips fact sheet
from the Resources section of the Fair Work Ombudsman website.
Pay slip and record-keeping templates can also be downloaded from the
Resources section of the Fair Work Ombudsman website.

Employing staff
Hiring employees
Things to do when employing staff:
 write a position description - list all the duties and responsibilities of the
position; consider what sort of skills and experience the employee will
need; consider the hours you want the employee to work
 determine the modern award or enterprise agreement that will apply to
the employee. If you are unsure which modern award applies use the
Award Finder tool, located in the Awards section of the Fair Work
Ombudsman website.
 check which classification in the modern award / enterprise agreement
applies to the employee (i.e. Grade 2, Level 1)
 check which type of employment the employee will come under in the
modern award / enterprise agreement (full-time, part-time or casual)
 check the modern award / enterprise agreement for conditions relating
to the type of employment and the proposed hours (for example, will
penalties or overtime apply to any hours worked? Do the hours and
days of work need to be agreed in writing?)
 confirm the correct rates of pay, loadings and allowances, using the
PayCheck Plus tool located in the Pay section of the Fair Work
Ombudsman website.

7
 remember that it is unlawful to take adverse action against a
prospective employee because of that person’s race, colour, sex,
sexual preference, age, physical or mental disability, marital status,
family or carer’s responsibilities, pregnancy, religion, political opinion,
national extraction or social origin. Adverse action against a
prospective employee is where the prospective employer:
o refuses to hire the prospective employee; or
o discriminates in the terms and conditions of employment offered.
 provide all new employees with a Fair Work Information Statement. You
can download the Fair Work Information Statement from the
Employment section of the Fair Work Ombudsman website.
 provide new employees with a letter of engagement. While this is not a
legal requirement, it is good practice to inform your new employees
about the terms and conditions of their employment. Template
engagement letters can also be downloaded from the Resources
section of the Fair Work Ombudsman website.

Note: Unpaid trials are unlawful. Prospective employees must be paid
for any trial work they perform to establish their suitability for the role.
For more information about unpaid trials visit the Pay section of the Fair
Work Ombudsman website.

Engaging Independent Contractors
An independent contractor is someone who is self-employed and contracts
their services to clients, such as other businesses. Independent contractors
are not employees and will generally have different rights to employees.

It is lawful for a business to engage an independent contractor, however, there
are laws in place to protect employees from being treated as an independent
contractor when they are in fact employees. Misrepresenting or disguising an
employment relationship as an independent contracting arrangement is known
as ‘sham contracting’ and is against the law. Dismissing or threatening to
dismiss an employee in order to engage them as an independent contractor is
also against the law.

It is important that you understand the difference between independent
contractors and employees and provide them their correct entitlements. Just
because workers have ABNs or provide an invoice for payment, does not of
itself make them independent contractors. Labelling people as independent
contractors or getting them to sign contracts which state that they are

8
independent contractors does not necessarily make them one either. There
are multiple factors that are taken into consideration.

More information about independent contractors visit the Employment section
of the Fair Work Ombudsman website.

Handling Workplace Disputes
Many workplace problems are the result of poor communication. Where
problems arise in the workplace, it is important to take time to understand and
discuss what the concerns are. You should keep detailed notes throughout
any dispute and make sure that everything is recorded in writing to avoid any
misunderstandings.
Modern awards and agreements generally provide a process to assist in
the resolution of disputes about matters under the modern
award/agreement or in relation to the NES. You should check the
applicable modern award/agreement to confirm the process for handling
disputes.
If the dispute cannot be resolved at the workplace level, the employer or
employee can refer the dispute to an independent third party, or to Fair
Work Australia (FWA).
[If the franchisor has any involvement in dispute resolution, insert details
here]
FWA can be contacted on 1300 799 675 for further information about its
dispute resolution procedures, including application fees and processes.
For more information download the Effective dispute resolution - Best
Practice Guide from the Resources section of Fair Work Ombudsman
website.

Managing Underperformance
Managing underperformance is important in any business. Failure to manage
underperformance effectively, appropriately and sensitively is likely to have
consequences for you, the underperforming employee and the rest of the
workplace.
For further information, download the Managing Underperformance Best
Practice Guide from the Resources section of Fair Work Ombudsman website.
Template warning letters can also be downloaded from the Resources section
of Fair Work Ombudsman website.

9
General Workplace Protections
The Fair Work Act contains general protections which ensure fairness
and representation at the workplace. Under these provisions employees:
 are protected from employers taking adverse action against them
because of their race, colour, sex, sexual preference, age,
physical or mental disability, marital status, family or carer’s
responsibilities, pregnancy, religion, political opinion, national
extraction or social origin. Adverse action against an employee is
where the employer:
o dismissing an employee;
o injures the employee in their employment;
o alters the position of the employee to the employee’s
prejudice; or
o discriminates between the employee and other employees
of the employer.
 are protected from undue influence or pressure in negotiating
individual arrangements
 are protected from dismissal due to temporary absence because
of illness or injury
 have the right to become, or not become, members of an
industrial association (such as a union)
 have the right to be represented by, or not represented by, an
industrial association
 have the right to engage in, or not engage in, lawful industrial
activities
 have the right to exercise their workplace rights, or engage in
industrial activities, free from adverse action. Examples of adverse
action against an employee are set out above.

For more information download the General workplace protections fact
sheet and the Unlawful workplace discrimination fact sheet from the
Resources section of Fair Work Ombudsman website.

Terminating the employment of staff
Termination of employment is when an employee’s employment with an
employer ends. This may happen because of redundancy, resignation or
dismissal.

10
Things to remember when terminating the employment staff:
 Provide notice in writing. Full-time and part-time employees are
entitled to notice of termination, or payment in lieu of notice. The
amount of notice depends on the employee’s length of service and age.

Period of continuous service Notice period

Not more than 1 year 1 week

More than 1 year, but not more than 3 years 2 weeks*

More than 3 years, but not more than 5 years 3 weeks*

More than 5 years 4 weeks*

*The relevant notice period increases by 1 week if the employee is over
45 years old and has completed at least 2 years' continuous service
with the employer.
Note: some classes of employees are not entitled to notice of
termination.
For more information download the Notice of termination and
redundancy pay fact sheet from the Resources section of Fair Work
Ombudsman website.
 Ensure the dismissal is fair. Employees may make unfair dismissal
claims if the termination of their employment was ‘harsh, unjust or
unreasonable’. For more information about unfair dismissal visit the
Termination section of Fair Work Ombudsman website.
Businesses with less than 15 employees should comply with the Small
Business Fair Dismissal Code. Download a copy of the Small Business
Fair Dismissal Code from the Termination section of Fair Work
Ombudsman website.
 Ensure the dismissal is lawful. It is unlawful to terminate the
employment employees because of:
o temporary absence from work because of illness or injury
o union membership (or non-membership) and participation in
union activities
o the employee seeking office or acting as a representative of
employees
o the employee filing a complaint or participating in legal
proceedings against the employer
o absence from work during parental leave

11
o reasonable temporary absence from work to participate in a
voluntary emergency management activity
o race, colour, sex, sexual preference, age, physical or mental
disability, marital status, family or carer’s responsibilities,
pregnancy, religion, political opinion, national extraction or social
origin.
 Check whether redundancy entitlements apply. If you no longer
require anyone to do the job, redundancy benefits may apply. For more
information about redundancy (including exceptions to the entitlement)
download the Notice of termination and redundancy pay fact sheet from
the Resources section of Fair Work Ombudsman website.
 Keep records. Employers must keep a record of the termination of
employment, including who terminated the employment, and how it was
terminated (e.g. by notice, summarily, or in some other manner).
Template termination letters can be downloaded from the Resources
section of Fair Work Ombudsman website.
 Pay outstanding entitlements, including:
o any outstanding wages or other remuneration still owing
o any payments that are being made in lieu of notice of
termination by the employer
o any accrued annual leave and long service leave
entitlements
o any redundancy entitlements.
Important note: You are not automatically entitled to deduct money from an
employee’s final pay for failing to give notice or for unreturned items (keys,
uniforms etc). Deductions need to be properly authorised (see FAQ’s below
for more information on deductions).
For more information download the Termination of employment fact sheet
from the Resources section of Fair Work Ombudsman website.

Where to get help
[Insert information about any internal or external assistance available to
franchisees]
The Fair Work Ombudsman provides free tools, information and advice about
your obligations under the national workplace laws. Information about
workplace rights and obligations is available here in up to 27 languages.
Visit www.fairwork.gov.au or contact the Fair Work Infoline on 13 13 94.

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What to do if the Fair Work Ombudsman contacts you
The Fair Work Ombudsman is also responsible for ensuring compliance with
national workplace laws. In this capacity the Fair Work Ombudsman conducts
audits and investigates complaints.
If you are contacted by the Fair Work Ombudsman you should:
 [insert details if the franchisee is required to notify the franchisor]

 cooperate with the investigation or audit, including producing
documents and records requested by the Fair Work Inspector.

 seek to promptly resolve the complaint or any issues raised in an audit.

Frequently Asked Questions
[Insert other FAQ’s common to your franchise business]

Pay FAQ’s

1. Can I just pay the rates printed in the modern award?
No. Modern awards came into operation in 2010, replacing thousands of
different state and federal awards. To minimise the impact of the changes, pay
rates in most modern awards are being progressively phased in until
1 July 2014.
During this time, the phased pay rate may be higher than the rate printed in
the modern award. Use the PayCheck Plus tool located in the Pay section of
the Fair Work Ombudsman website to find the correct modern award rates.

2. Can I just pay the rates printed in my enterprise agreement?
No. You need to check if the base rate of pay in your enterprise agreement is
at least equal to, or higher than the relevant modern award base rate.
Use the PayCheck Plus tool located in the Pay section of the Fair Work
Ombudsman website to check if the modern award rate is higher.
 If no, you can apply the rates printed in your enterprise agreement.

13
 If yes, then the modern award rate becomes your base rate. You need
to apply all loadings and penalties from the enterprise agreement to the
modern award base rate.
Remember: Modern award rate increases generally take effect on 1 July each
year. Your enterprise agreement base rates need to keep up.

3. Can I just pay what it says in the employment contract?
No. Regardless of what the employment contract says, it cannot remove
entitlements under the NES or under the terms of a modern award or
enterprise agreement that applies to the employee.
If you are paying an employee an annual salary under an employment
contract, you need to be sure that the amount paid, and what it is paid for, is
enough to meet all of the employee’s entitlements under the modern award /
enterprise agreement (including penalty rates, overtime and allowances). You
also need to check that the salary arrangement meets any requirements set
out in the modern award / enterprise agreement.

4. Do I have to pay for opening, closing, training and meetings?
Yes. You need to pay employees for all the hours they work, including
meetings or training and the time they spend opening and closing the
business.

5. Can I make deductions from employees’ wages for till discrepancies,
breakages, customers who do not pay, unreturned uniforms and keys
etc.
No. You are not allowed to automatically make deductions from employees’
pay for amounts that you think they owe you.
Deductions can be authorised by the terms of a modern award, enterprise
agreement or by law. For example, many modern awards allow an employer
to withhold certain amounts if the employee fails to give notice of termination
of employment.
Deductions can also be authorised by the employee in writing – but only
where they specify the amount to be deducted and the deduction is principally
for the employee’s benefit (e.g. salary sacrifice arrangements or deductions
for private health insurance). An employee cannot authorise a deduction that
is not principally for their benefit.

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All deductions must be reasonable in the circumstances. All deductions made
from the pay of an employee who is under 18 have to be agreed to in writing
by a parent or guardian.

6. Can I pay an employee as a ‘trainee’ or ‘apprentice’ while they learn
the job?
You cannot pay an employee as a trainee or apprentice just because they are
new to a job. You can only pay trainee or apprentice rates if a formal training
arrangement has been signed and registered with the appropriate authority.

7. Can I test staff out on an ‘unpaid trial’?
No. Unpaid work trails are unlawful. Prospective employees must be paid for
any trial work they perform to establish their suitability for the role. For more
information about unpaid trials visit the Pay section of the Fair Work
Ombudsman website.

8. Can I provide employees with non-money benefits, like free meals,
instead of pay?
No. It is unlawful to offer goods or services (including food) instead of pay.

9. Do I have to pay modern award / enterprise agreement wages to
family members who work for me?
Yes. Unless the family member is not an employee, for example, the family
member instead holds a controlling position in the business (e.g. Director or
Partner): if family members are employees, they must be paid the same as
any other employee. Note, some States and Territories also have specific
rules about employing children in a family business.

Leave FAQ’s

10. Do employees have to work 12 months before they can take annual
leave or sick leave?
No. Employees start accruing leave as soon as they begin work (leave is
accrued progressively, based on the employee’s ordinary hours of work).
Once they have accrued leave, they can take it in accordance with the
ordinary requirements – even if they have worked for less than 12 months.

15
11. Can I direct an employee to take annual leave?
Generally you and your employee should agree on when annual leave will be
taken.
Some modern awards and enterprise agreements contain provisions allowing
an employer to direct an employee to take annual leave in certain
circumstances (for example, during a Christmas shutdown, or if the employee
has accumulated more than 8 weeks of annual leave). If your modern award /
enterprise agreement contains such provisions you may direct an employee to
take leave under those provisions, as long as the direction is reasonable. An
employer may require an award/agreement free employee to take a period of
paid annual leave but only if the requirement is reasonable.

12. Are casuals entitled to leave?
Yes. Casual employees are entitled to some types of unpaid leave under the
NES, including:
 Two days’ unpaid carers’ leave and two days’ unpaid compassionate
leave per occasion.
 Unpaid community service leave.
 For eligible ‘long term’ casual employees, 12 months’ unpaid
parental leave.
 Unpaid pre-adoption leave.

Termination of employment FAQ’s

13. Do I have to give 3 warnings prior to terminating the employment
of an employee?
It is not essential to give 3 warnings in all cases.
It is fair to dismiss an employee without notice or warning when the
employee’s conduct is sufficiently serious to justify immediate dismissal.
Serious misconduct includes theft, fraud, violence and serious breaches of
occupational health and safety procedures. You should ensure you have
reasonable evidence of the misconduct before taking steps to dismiss the
employee.

Where the dismissal is for another reason (for example underperformance)
you should provide the employee with a clear warning and an opportunity to

16
respond and rectify the problem. Not doing so may mean that the dismissal is
unfair. For information about how to manage underperformance, download
the Managing Underperformance Best Practice Guide from the Resources
section of Fair Work Ombudsman website.
Template warning letters and termination letters can also be downloaded from
the Resources section of Fair Work Ombudsman website.

14. Can employees’ employment be terminated without notice during
their ‘probation period’?
No. Probationary employees are entitled to at least 1 week’s notice of the
termination of their employment unless they belong to one of the groups of
employees who do not have this entitlement, including casual employees,
fixed term employees, or employees whose employment is terminated
because of serious misconduct.

15. Does annual leave loading apply on termination of employment?
Under the Fair Work Act, employees who get annual leave loading when they
take annual leave, are also entitled to annual leave loading on any untaken
annual leave that is paid out when their employment ends (even if their
modern award, enterprise agreement or employment contract says otherwise).

16. Do I have to pay redundancy if I find the employee another job?
Where a redundant employee genuinely accepts another position within your
business, there is no termination of employment, so the employee is not
entitled to redundancy pay.
Where a redundant employee does not accept the offered position, or the job
you found is with another employer, they are generally still entitled to
redundancy pay. You can apply to Fair Work Australia, however, to reduce the
amount of redundancy pay.
You may also be excused from paying redundancy if there has been a transfer
of business. For more information download the Transfer of business fact
sheet from the Resources section of the Fair Work Ombudsman website.

17. Can I deduct money from the final pay if an employee resigns
without giving notice?
If an employee does not provide the amount of notice specified in their
modern award / enterprise agreement, check to see if the modern award /
enterprise agreement permits you to withhold payment from the employee.

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If the employee is under 18, the deduction also needs to be agreed to in
writing by their parent or guardian.

Note: the employee’s employment contract may provide longer notice periods,
however, deductions for failure to give notice can only be made for the period
of notice specified in a modern award / enterprise agreement.

Other FAQ’s

18. Do I have to give pay slips?
Yes. Employees should be issued a pay slip within 1 working day of being
paid. A pay slip can be electronic (e.g. a link contained in an email), or paper.

19. Are workers independent contractors if they have an ABN?
Workers are not automatically independent contractors just because they
have an ABN. Whether or not a worker is an independent contractor or an
employee is a question of fact and law that depends on the particular
circumstances of their work situation. It is unlawful to misrepresent an
employment relationship as an independent contracting arrangement, or to
dismiss an employee in order to re-engage them as an independent
contractor. For more information download the Independent contractors and
employees fact sheet from the Resources section of the Fair Work
Ombudsman website.

20. Do enterprise agreements stop operating once they have passed
their ‘nominal expiry date’?
No. Enterprise agreements continue operating until they are either terminated
by Fair Work Australia or replaced by a new enterprise agreement.

21. Can an IFA be offered as a condition of employment?
No. An ‘individual flexibility arrangement’ or ‘IFA’ cannot be offered as a
condition of employment. Download the Use of individual flexibility
arrangements Best Practice Guide from the Resources section of the Fair
Work Ombudsman website.

22. Can I make last minute roster changes?
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You need to check your modern award / enterprise agreement for relevant
rostering requirements. Note, you still need to pay the employee for any time
spent waiting to start after their rostered start time, or for minimum shift
durations specified in your modern award / enterprise agreement. Note many
modern awards / enterprise agreements require changes to part time hours to
be agreed in writing.
Templates for managing hours of work (including template rosters and
timesheets) can be downloaded from the Resources section of the Fair Work
Ombudsman website.

23. What flexible/family friendly arrangements should I have in place?
Employees with children under school age (or a disabled child under 18)
have the right to request flexible working arrangements to assist with the
child’s care. For further information download the Requests for flexible
working arrangements fact sheet from the Resources section of the Fair
Work Ombudsman website.
A flexible or ‘family friendly’ workplace culture can also create significant
benefits for employers, including reduced absenteeism, improved job
satisfaction and greater productivity. For information about achieving this,
download the Work & family best practice guide from the Resources
section of the Fair Work Ombudsman website.

24. Do I have to give employees meal breaks?
Yes, you have to give employees the paid and unpaid breaks they are entitled
to under their modern award / enterprise agreement. Note: many modern
awards and enterprise agreements state that a higher pay rate applies if an
employee does not get their proper meal breaks.

25. Can I make employees wear a uniform or specific clothing?
Yes. If you require employees to wear specific clothing, however, you may
need to provide or pay for the clothes, or reimburse your employees for the
cost of buying the clothes. You also may need to pay an allowance to the
employee for laundering the clothes. Check your modern award / enterprise
agreement for conditions about uniforms and special clothing. Any time you
require a staff member to spend any part of their pay, the requirement must be
reasonable. Information about uniforms and clothing in the retail industry is
available from the Industries section of the Fair Work Ombudsman website.