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Frequently Asked Questions

We have developed a comprehensive list (and growing) of FAQs for every day business owners just like you.

We have already answered some questions, and we’re working through others – so keep checking for more.

These questions have been developed from years of workplace matters coming up over and over again. We have thrown some more curly ones in there as well. Do please note that these responses are GENERAL in nature and should not be relied upon as a definite response.

You should always seek further clarification as every situation has slightly different background, mitigating facts, and things you may not have thought of yet.

Let Fresh HR Insights improve your business’s performance and profit

Please feel free to contact us. We reply to every email.


When does an employment relationship Exist?

STEP-BY-STEP: how to determine whether an employment relationship exists

Determining whether an employment relationship exists involves a two-step process:

 Step 1: Determine whether there is a legally enforceable contract between the parties.

If there is no contract between the parties, the relationship cannot be one of employment.

The essential features of a contract are that:

  • each party voluntarily takes on a legally enforceable duty;
  • each party intends to create legally binding obligations; and
  • each party provides consideration for each other’s obligation, i.e. some benefit or advantage to the other party in return for their agreement to do something pursuant to the contract; and
  • the contract is certain and complete.

 Step 2: Determine whether any legally enforceable contract is actually an employment contract

If there is a legally enforceable contract between the parties, confirm that it is an employment contract, not another type of contract that concerns the performance of work. These other types of contracts could be contracts to:

  • provide/receive work experience or training;
  • participate in a volunteer program; or
  • perform work as an independent contractor.

 Important: You cannot determine whether an employment relationship exists by asking the parties for their personal opinion about the relationship. You must assess all the circumstances and consider what a reasonable person would conclude about the relationship.

To determine whether the contract is actually a contract of employment, ensure that the following criteria are met:

  • one party has voluntarily taken on a legally enforceable duty to perform work;
  • another party has voluntarily taken on a legally enforceable obligation to pay wages in return for that work;
  • each party intends to be legally bound by their obligations, which are continuing and mutual, i.e. the performance of one party’s obligation depends on the performance of the other party’s obligation; and
  • essential terms, such as pay and the type of work to be performed, have been agreed.


 Additional notes on unpaid work arrangements

Where an unpaid work arrangement is not a vocational placement, the arrangement can only be lawful if no employment relationship exists. If there is an employment relationship, the person is actually an employee and entitled to conditions under the FW Act, including:

  • a minimum wage
  • the National Employment Standards
  • the terms of any applicable award or enterprise agreement.

When determining whether an employment relationship exists, the nature of the arrangement should be considered, not just how the parties have chosen to describe it.

The following factors should be considered:

  1. What is the nature and purpose of the arrangement? Was it to provide a learning experience or was it to get the person to do work to assist with the ordinary operation of the business or organisation? Where the arrangement involves productive work rather than just meaningful learning, training, and skill development, it is likely to be an employment relationship.
  2. How long is the arrangement for? The longer the period of the arrangement, the more likely the person is an employee. Although even relatively short engagements can still be an employment relationship.
  3. How significant is the arrangement to the business? Is the work normally performed by paid employees? Does the business or organisation need this work to be done? The more integral the work is to the function of the business, the more likely it is that an employment relationship could be found.
  4. What are the person’s obligations? In some cases, a person might do some productive work to aid their learning. An employment relationship is unlikely to be found in these circumstances if:
    • the role is primarily observational, and
    • the expectation or requirement to perform such activities is incidental to that learning experience and not primarily for the operational benefit of the business or organisation.
  5. Who benefits from the arrangement? The main benefit from a genuine unpaid work arrangement should flow to the person undertaking the role. If the business or organisation is gaining a significant benefit from the person’s work, an employment relationship is more likely to exist.


Should I always give my employee a letter of offer or a contract?

An employment contract is an agreement between an employer and employee that sets out terms and conditions of employment. A contract can be in writing or verbal. It is a legally binding document.

An employment contract cannot provide for less than the legal minimum set out in:

  • the National Employment Standards (NES)
  • awards, enterprise agreements or other registered agreements that may apply.

All employees are covered by the NES, regardless of whether they’ve signed a contract. A contract can’t make employees worse off than their minimum legal entitlements.

Employment contracts are an essential document for both staff and employers, legally establishing the working relationship and setting out important frameworks and policies. Contracts provide both employee and employer with a clear agreement of what is to be expected from each party, while outlining all rights, responsibilities and obligations. This works to protect the job security and rights of the employee, and also protects the employer from certain risks such as breaches of confidentiality

What is included in a contract

  • Name and personal details of the employer and employee
  • Commencement date of employment
  • Job title and description
  • Number of hours worked per week
  • Type of employment (i.e. full-time, part-time or casual)
  • Method of payment and when payment is made (weekly, fortnightly or monthly)
  • Amount of notice required to be given by the employer and employee to end the employment relationship
  • Confidentiality agreement

Fresh HR Insights can review your employment contracts and provide recommendations to ensure they comply with employment law. For peace of mind, please contact www.freshhrinsights.com,au on 0452471960 to learn more.

Should my Business have up-to-date contracts of employment?

Yes as it makes the employer-employee relationship super clear.

If not, it is time to review and update your employment contract before your next employee arrives.  Does your template have the five contractual essentials?

  • general obligations clause
  • set-off clause
  • notice of termination clause
  • policies and procedures clause
  • surveillance clause

Fresh HR Insights can review your employment contracts and provide recommendations to ensure they comply with employment law. For peace of mind, please contact www.freshhrinsights.com.au or phone on 0452471960 to learn more.

Why do I need to give my employees a Fair Work Information Statement

Employers have to give every new employee a copy of the Fair Work Information Statement (the Statement) before, or as soon as possible after, they start their new job. The Statement provides new employees with information about their conditions of employment.

The Statement has information on:

  • the National Employment Standards
  • right to request flexible working arrangements
  • modern awards
  • making agreements under the Fair Work Act 2009
  • individual flexibility arrangements
  • freedom of association and workplace rights (general protections)
  • termination of employment
  • right of entry
  • the role of the Fair Work Ombudsman and the Fair Work Commission.

Providing the Statement

The Statement can be given to new employees:

  • in person
  • by mail
  • by email
  • by emailing a link to our website
  • by fax.

Grab you up to date Fair-Work-Information-Statement here

Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

What is the Casual Employment Information Statement (CEIS),

The Fair Work Act 2009 was amended on 26 March 2021 to make changes to workplace rights and obligations for casual employees and these changes apply from 27 March 2021.

The amendment includes a new definition of a casual employee.

An employer (except a small business employer with less than 15 employees) has to offer their casual employee the option to convert to full-time or part-time (permanent) when the employee has worked for them for 12 months, has worked a regular pattern of hours for at least the last 6 of those 12 months on an ongoing basis and could continue working those hours as a permanent employee without significant changes.

There’s now a new proactive obligation on employers, they have an obligation to offer conversion rather than the previous situation of employees making the request.

The obligation to offer casual conversion doesn’t apply to small business employers with less than 15 employees.

There’s also a new Casual Employment Information Statement (CEIS), it’s similar to the Fair Work Information Statement (FWIS) and it needs to be given to every new casual employee before, or as soon as possible after, they start their new job. This is in addition to providing the FWIS.

Click here to download the CEIS

What to do before dismissing an employee for poor performance

Before taking the significant step of dismissing an employee for poor performance, it’s crucial to follow a structured and fair process to ensure legal compliance and maintaining a positive workplace culture. Here’s an overarching guide on what to do before making a dismissal decision:

Checklist: What to do before dismissing an employee for poor performance

Make sure you address each of the following points when preparing to dismiss an employee for poor performance:

❏         Ensure the poor performance is a valid reason for dismissal.

  • Clearly define and document the specific performance issues. Ensure these issues are measurable, observable, and directly related to the employee’s job responsibilities.
  • Ensure that the employee is aware of the performance standards expected of them. Provide clear job descriptions, regular feedback, and documented performance evaluations.
  • Offer additional training, coaching, or resources to help the employee improve. This demonstrates your commitment to their development and provides them with a fair opportunity to succeed

❏         Weigh the consequences of dismissal for the employee against the consequences of the employee’s poor performance for your workplace.

❏         Make sure you have:

  • warned the employee and given them an opportunity to improve; and
  • taken into account the employee’s age, length of service and employment history.
  • Kept thorough records of all communications, meetings, training sessions, and performance evaluations. Documentation is essential in case the dismissal is later challenged.
  • Ensure that your actions comply with employment laws and company policies. Seek advice from Fresh HR Insights to avoid potential legal pitfalls.

Tip: Depending on the circumstances, it may be appropriate to give the employee an opportunity to resign.(seek advice before making any comment in this regard)

❏         Ensure you can prove the poor performance. Gather enough evidence to convince a court or tribunal that there were grounds to dismiss the employee. Keep examples of unsatisfactory work and other evidence that can help you prove your case, e.g. warning letters. Other managers and employees may also have evidence.

❏         Communicate the performance issue to the employee and state why you believe there are grounds to dismiss them.

❏         Give the employee a fair and reasonable opportunity to respond to the performance issue.

❏         Give the employee the opportunity to have a support person present to assist with any discussions relating to the proposed dismissal.

❏         Consider getting advice from an employment lawyer before proceeding with a dismissal.

❏         Before making a final decision, conduct a fair and unbiased review of the employee’s performance. Consider any external factors that may have affected their performance and give them a chance to explain their side.

❏         Ensure you can prove that you have taken all necessary steps before deciding on dismissal. Always keep a paper trail of the steps you have taken – it could be needed if the employee starts legal action.

This could include:

  • memos;
  • file notes; and
  • performance reviews (formal and informal).

❏         Complete the Small Business Fair Dismissal Code Checklist if you are a small business.

Small Business Fair Dismissal Code

The Small Business Fair Dismissal Code (the Code) is a legislative instrument declared by the Minister for Employment. The Small Business Fair Dismissal Code was declared on 24 June 2009 pursuant to subsection 388(1) of the Fair Work Act 2009.

The Code provides the following:

Summary Dismissals
It is fair for a small business employer to dismiss an employee without notice or warning when the employer has reasonable grounds to believe that the employee was guilty of serious misconduct. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair, it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police.

Other Dismissals
In other dismissals, a small business employer must give the employee a valid reason based on their capacity or conduct to do the job if they are at risk of being dismissed. The employee must be warned verbally (or preferably in writing), that they risk being dismissed if there is no improvement. Further, the employer must provide the employee with an opportunity to respond to the warning and give them a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural matters
Employees can have another person present to assist them in discussions in circumstances where dismissal is possible. However, the other person cannot be a lawyer acting in a professional capacity.

If the employee makes an unfair dismissal claim to the Fair Work Commission, the small business employer will be required to provide evidence of compliance with the Code. This evidence may include that a warning has been given (except in cases of summary dismissal), a completed checklist, copies of written warning(s), a statement of termination or signed witness statements. Download the code HERE

For more support and additional documents try out our Small Business New Starter Kit – 

What do You get?

  •  New Team Member Starter pack
  •  Induction/ Orientation Checklist
  •  Taking on a New Employee Checklist
  •  Record keeping Checklist (Fair Work Act)
  •  Fair Work Statement
  •  TFN Declaration
  •  Superannuation Standard choice form

Grab your copies HERE

Do they make any changes to Modern Awards?

All businesses should be aware of what Modern Awards apply to them (including those awards which underpin their EAs). Modern Awards will continue to change as the Four-yearly Review continues into its seventh year. Are you up-to-date on award entitlements in relation to flexibility requests?

  • Are you aware that Family and Domestic Violence leave is no longer an Award entitlement (but instead is now in the National Employment Standards)?
  • Have you been providing casual employees with conversion notices?

It’s time to review your award to ensure your compliance.

Modern Award Review: Changes to some awards from 1 July 2020

  • Social and Community Services Award
  • Aged Care Award
  • Building and Construction Award
  • Joinery Award
  • Mobile Crane Award
  • Miscellaneous Award

The Clerks – Private Sector Award and the Miscellaneous Award (both common awards in the not-for-profit sector) were updated on 29 May 2020 and 1 July 2020 respectively.

What is Outsource HR

Outsourced HR is the outsourcing of your human resources function to a team of expert consultants. The scope of the outsourced HR support can vary widely depending on your needs.

It can be a complete outsourcing solution for all your HR functions through managed HR support or simply a request for assistance with that HR project work which has never taken flight. The HR functions that can be outsourced include:

  • Strategic and tactical HR
  • Workforce Planning
  • Employment Contracts
  • Employment Policies
  • Awards Alignment
  • Employee onboarding and Induction
  • Performance Reviews
  • Remuneration Reviews
  • Workplace Investigations
  • Employee Terminations

HR outsourcing can make a massive difference to your long-term and short-term success. Many organisations look externally for assistance when they lack the internal capacity and resources to fulfil their HR ambitions or obligations.

Outsourced HR is usually a great option for businesses who are seeking to bring life to their non-existent, time poor or specialist HR function. Fresh HR Insights clients have experienced amazing results and saved on their HR costs by using our outsourced HR services as they seek to grow their business and manage employment risks. By having a team of experts at your disposal, outsourced HR can always have a consultant at the ready to meet your needs.




Flexible Working Arrangements

From 1 December 2018, modern awards included new rules about requests for flexible work arrangements. Employers who have workers who may require flexibility should make themselves familiar with the requirements.

What are flexible working arrangements?

Examples of flexible working arrangements include changes to:

  • hours of work (eg. changes to start and finish times)
  • patterns of work (eg. split shifts or job sharing)
  • locations of work (eg. working from home).

Who can request flexible working arrangements?

Employees (other than a casual employee) who have worked with the same employer for at least 12 months can request flexible working arrangements if they:

  • are the parent, or have responsibility for the care, of a child who is school-aged or younger
  • are a carer (under the Carer Recognition Act 2010)
  • have a disability
  • are 55 or older
  • are experiencing family or domestic violence, or
  • provide care or support to a member of their household or immediate family who requires care and support because of family or domestic violence.

Casual employees can make a request if:

  • they’ve been working for the same employer regularly and systematically for at least 12 months
  • there’s a reasonable expectation of continuing work with the employer on a regular and systematic basis.

New Changes to Awards

Before responding to a request from an eligible employee, an employer must first discuss the request with the employee to try to reach an agreement about a change to their working arrangements. 

Requests can only be refused on reasonable business grounds. If employers refuse a request, they need to provide the employee with a written response. 

How do employees request flexible working arrangements?

Requests for flexible working arrangements have to:

  • be in writing
  • explain what changes are being asked for
  • explain the reasons for the requested change.

What should employers do with a request?

Employers covered by an award must first discuss the request with their employee to try to reach an agreement about changes to the employee’s working conditions, taking into consideration:

  • the needs of the employee
  • consequences for the employee if changes in working arrangements aren’t made 
  • any reasonable business grounds for refusing the employee’s request.

All employers who receive a request must provide a written response within 21 days which outlines whether the request is approved or refused. 

Employers can only refuse a request on reasonable business grounds. If a request is refused the written response must include the reasons for the refusal. 

Awards contain specific information on what needs to be included in the written response if the request is refused or if a different change in working arrangements is agreed.

What are reasonable business grounds?

Reasonable business grounds can include:

  • the requested arrangements are too costly
  • other employees’ working arrangements can’t be changed to accommodate the request
  • it’s impractical to change other employees’ working arrangements or hire new employees to accommodate the request
  • the request would result in a significant loss of productivity or have a significant negative impact on customer service.

Need a little more support but not sure where to start?   For expert HR support without the hassle, visit or to speak directly to our expert 0452471960

When can an employee use sick leave?

Sick and carer’s leave (also known as personal leave or personal / carer’s leave) lets an employee take time off to help them deal with personal illness, caring responsibilities and family emergencies.

Sick leave can be used when an employee is ill or injured.

An employee may have to take time off to care for an immediate family or household member who is sick or injured or help during a family emergency. This is known as carer’s leave but it comes out of the employee’s personal leave balance.

The National Employment Standards includes both paid and unpaid leave entitlements. For more information go to:

Immediate family members or household members

An immediate family member is a:

  • spouse
  • de facto partner
  • child
  • parent
  • grandparent
  • grandchild
  • sibling, or
  • child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner.

A household member is any person who lives with the employee.

Updates with CaseLaw

On 13 August 2020, the High Court handed down a decision about the method of accruing and taking paid personal/carer’s leave under the National Employment Standards. The High Court has found that the entitlement to 10 days of personal/carer’s leave is calculated based on an employee’s hours of work, not days. 10 days of personal leave can be calculated as 1/26 of an employee’s ordinary hours of work in a year. The High Court’s decision overturns a decision made by the Full Federal Court in August 2019. 

What are annualised wages?

The provision of an annualised wage is permitted in certain modern awards, allowing an employer to pay an employee an annual salary which is designed to compensate for certain entitlements in the modern award (including minimum weekly wages, overtime, penalties, allowances and leave loading). This standardises the amount of money the employee receives each pay period, without requiring the employer to pay based on the specific hours worked during a pay/roster cycle. Subsequently, the administrative burden on the employer is reduced.

What can be included in the annual wage arrangement?

Depending on the award, annual wages arrangements can include entitlements such as:

  • minimum wages
  • allowances
  • overtime and penalty rates
  • leave loading.

Employers need to make sure their employees’ annual wage is high enough to cover the award entitlements that they’ve included in the arrangement. An employee’s annual wage can’t be less than what they would’ve been paid over the year if they were paid all of their award entitlements for their work.

The awards also have rules about:

  • which classifications can be paid an annual wage
  • what entitlements can be included in the annual wage
  • whether the employer and the employee need to agree to the arrangement.

As each award is slightly different, it’s important that you read the annual wage arrangement clause in your award.

What records do I need?

Employers need to record the annual wage arrangement in writing and give their employees a copy. This has to include:

  • the annual wage that will be paid
  • which award entitlements are included in the annual wage
  • how the annual wage has been calculated, including any assumptions used in the calculation
  • the maximum (or ‘outer limit’) number of penalty hours and overtime hours the employee can work in a pay period or roster cycle without extra payment.

The employer must also record the employee’s:

  • starting and finishing times
  • unpaid breaks taken.

Employees have to acknowledge the record of hours they’ve worked is correct by signing in writing or electronically at the end of every pay period or roster cycle. This record is used for annual reconciliations. Where the employer and employee need to agree to the arrangement, an annual wage arrangement may end at any time by written agreement between the employer and employee. Otherwise, anyone can end the arrangement by giving 12 months’ written notice.

How do overtime and penalty rates work?

A salary doesn’t mean an employee misses out on overtime or penalty rates. An employee’s annual wage will generally include an amount of penalty rates and overtime. However, sometimes the annual wage isn’t enough if the employee is working extra hours or at times they don’t usually work. If an employee works more than the ‘outer limit’ of hours in a pay period or roster cycle, they’re entitled to be paid at their award overtime or penalty rate.

When do the annual reconciliations happen?

Employers have to undertake a reconciliation of their employees’ annual wages:

  • every 12 months after the arrangement starts
  • when the arrangement ends, or
  • when the employment ends.

Employers have to make sure their employees have been paid at least the same amount they would’ve been paid under the award if they weren’t on an annual wage, for all the hours they worked. If an employee’s annual wage is less than the award payments that they would have received, their employer has to pay them the difference within 14 days.

What can we do to help

Due to the complexity of modern industrial obligations payroll errors are made and frequently. Most underpayments are a result of an administrative error, a misunderstanding of the payments required in the Modern Awards, outdated contracts and payments and/or a shortcoming in the payroll system, rather than any deliberate attempt to underpay employees.

If you are concerned that there might be errors in your processes Fresh HR Insights is here to help with our two options for a payroll audit. Find out more HERE

Can I ask my Employees to work a Public Holiday?

The National Employment Standards (NES) provide an entitlement for employees to be absent from work on a day or part-day that is a public holiday. The NES protect an employee’s workplace right to reasonably refuse to work on a public holiday, and will guarantee payment where an employee is absent from work because of a public holiday. Employees are protected from adverse action for having, using, or seeking to use their workplace right to reasonably refuse to work on a public holiday.

Can a public holiday be substituted for another day?

If, under the law of a State or Territory, a day or part-day is substituted for any public holiday or part-day, then the substituted day or part-day is the public holiday.

An award or agreement may include provisions for an employer and employee to agree to substitute the public holiday or part-day for another day or part-day. Furthermore, an employer and an award/agreement-free employee may agree to substitute the public holiday or part‑days for another day or part-day.

An employer must not exert undue influence or pressure on an employee in relation to agreeing to substitute a public holiday for another day or part-day.

What are reasonable grounds for requesting or refusing to work on a public holiday?

In determining whether a request (or a refusal of such a request) to work on a public holiday is reasonable, the following must be taken into account:

  • the nature of the employer’s workplace (including its operational requirements) and the nature of the work performed by the employee
  • the employee’s personal circumstances, including family responsibilities
  • whether the employee could reasonably expect that the employer might request work on the public holiday
  • whether the employee is entitled to receive overtime payments, penalty rates, additional remuneration or other compensation that reflects an expectation of work on the public holiday
  • the type of employment (e.g. full-time, part-time, casual or shiftwork)
  • the amount of notice in advance of the public holiday given by the employer when making the request
  • the amount of notice in advance of the public holiday given by the employee in refusing the request

What payment is required for an absence from work due to a public holiday?

If an employee is absent from work on a day or part‑day that is a public holiday, the employer must pay the employee (other than a casual employee) the base rate of pay for the employee’s ordinary hours of work on that day or part-day. The base rate of pay to be paid excludes incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates, or any other separately identifiable amounts. However, an employee is not entitled to payment if they do not have ordinary hours of work on the public holiday. For example, a part-time employee is not entitled to payment if their part-time hours do not include the day of the week on which the public holiday falls.

Illustrative example

John is a full-time employee who usually works overtime in addition to his ordinary hours of work on Tuesdays. He receives penalty rates for these overtime hours under the applicable modern award. John is absent on the public holiday on Tuesday, 26 January 2010, and is entitled to his base rate of pay for his ordinary hours. He is not entitled to payment for the overtime hours he would have usually worked had it not been a public holiday. John’s colleague, Paul is a part-time employee who is rostered to work Wednesday to Friday each week. As Paul’s ordinary hours of work do not include Tuesdays, he is not entitled to payment for the public holiday on 26 January 2010.

If you have any questions regarding this you can contact the expert at Fresh HR Insights at paulette@freshhrinsights.com.au 

Where can I find what my employees “entitlements” are (Sick Leave, Superannuation, types of leave etc.) ?

All the employee entitlements are available at Fair Work – you can follow this link HERE but we have also below given you some the information that you need.

Sick Leave – Sick and carer’s leave (also known as personal leave or personal / carer’s leave) lets an employee take time off to help them deal with personal illness, caring responsibilities and family emergencies. Sick leave can be used when an employee is ill or injured.  An employee may have to take time off to care for an immediate family or household member who is sick or injured or help during a family emergency. This is known as carer’s leave but it comes out of the employee’s personal leave balance. The National Employment Standards includes both paid and unpaid leave entitlements.

An immediate family member is a:

      • spouse or former spouse
      • de facto partner or former de facto partner
      • child
      • parent
      • grandparent
      • grandchild
      • sibling, or
      • child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner (or former spouse or de facto partner).

 This definition includes step-relations (eg. step-parents and step-children) as well as adoptive relations. A household member is any person who lives with the employee.

Superannuation –  It is compulsory for employers to make superannuation contributions for their employees on top of the employees’ wages and salaries. The employer contribution rate has been 9.5% since 1 July 2014, and as of 2015, was planned to increase gradually from 2021 to 12% in 2025. 

Family and Domestic Violence Leave – All employees (including part-time and casual employees) are entitled to 5 days unpaid family and domestic violence leave each year. The entitlement to unpaid family and domestic violence leave comes from the National Employment Standards (NES). Read more HERE

Annual Leave –  Annual leave (also known as holiday pay) allows an employee to be paid while having time off from work. The entitlement to annual leave comes from the National Employment Standards. Awards, enterprise agreements and other registered agreements can’t offer less than the National Employment Standards but they can give more annual leave. Read more HERE

  • Who is entitled to annual leave? All employees (except for casual employees) get paid annual leave.
  • How much annual leave does an employee get? Full-time and part-time employees get 4 weeks of annual leave, based on their ordinary hours of work.

Compassionate & Bereavement Leave – All employees (including casual employees) are entitled to compassionate leave (also known as bereavement leave). Compassionate leave can be taken when a member of an employee’s immediate family or household:

  • dies or
  • contracts or develops a life-threatening illness or injury. Read more HERE

Community Leave – Employees, including casual employees, can take community service leave for certain activities such as:

  • voluntary emergency management activities
  • jury duty (including attendance for jury selection).

With the exception of jury duty, community service leave is unpaid – read more here. To find out more visit Jury duty

Long Service leave – 

An employee gets long service leave after a long period of working for the same employer. Most employees’ entitlement to long service leave comes from long service leave laws in each state or territory. These laws set out:

  • how long an employee has to be working to get long service leave (eg. after 7 years)
  • how much long service leave the employee gets.

In some states and territories long serving casuals are eligible for long service leave. To find out about long service leave entitlements, contact the long service leave agency in your state or territory: Read more HERE

Maternity & Parental Leave –  Read more HERE

 Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

Do I need to have compliant and effective workplace policies and employees be aware of them?

At an absolute minimum, in addition to a current Code of Conduct, all workplaces should have the following policies in place:

  • Work Health and Safety Policy – Workplace injuries can affect your business in a number of ways including decreased productivity, sick pay obligations and the cost of finding a replacement. 
  • Bullying, Harassment and Discrimination Policy – A business must have taken all reasonable steps to prevent discrimination or harassment from occurring. Without a comprehensive policy, this is almost impossible! You, as a business must communicates clearly to employees what constitutes bullying, sexual harassment, discrimination and any other form of inappropriate behaviour at work. A good policy will also outline procedures for dealing with complaints.
  • Drug and Alcohol Policy – The use of drug and alcohol during and outside of work hours can present significant safety risks and costs to your business through injuries, absenteeism and lost productivity. A drug and alcohol policy can promote and maintain a risk-free work environment while outlining the rights a business to test employees for drug-use.
  • Leave Policy – For businesses that experience seasonal busy periods, a leave policy can be extremely valuable. A leave policy can include ‘blackout’ periods during busy periods with increased notice periods for employees applying for leave, to ensure you aren’t understaffed.
  • Grievance Policy –  Having a grievance policy in place acts as an important tool for employees to understand what steps they should follow when handling a complaint.
  • Performance Counselling and Discipline Policy – Performance management is a common practice within any business. A policy will assist you in remaining compliant with requirements of procedural fairness and provide guidance on how unacceptable conduct will be dealt with.
  • Internet and Email Policy –  An internet and email policy will define what is inappropriate use of company computers and internet resources, as well as the consequences an employee may face for breaching the policy.
  • Social Media Policy –  A social media policy is essential to protecting your company’s reputation, especially if employees list their place of employment on their profiles. On social media, lines between professional and personal networks can become blurred, so it is a good idea to let employees know that how they behave on social media reflects on the business, and therefore will be regulated.
  • Privacy Policy – Employers have a responsibility to safeguard the personal information of employees and customers. Therefore, businesses must have a policy in place articulating how their private information is used and managed. A privacy policy makes it clear what information is allowed to be made public and what is required to stay private or within the walls of the company. 

Workplace policies should be clear as to what your expectations are as an employer, while providing enough flexibility for you to run your business.  As a general rule, these workplace policies should not form part of an employment contract.

Is your business covered by the new whistle-blower laws which came into effect on 1 July 2019?  If so, you will need to have in place a compliant whistle-blower policy which is consistent with the new regime.


What can we do if workers don’t disclose pre-existing medical conditions

If the worker is unable to fulfil the inherent requirements of the role, this gives rise to a right to terminate the agreement. It may be preferable for you to focus on this rather than making allegations of misrepresentations in the pre-employment medical condition questionnaire. If you do make allegations of dishonesty, you should ensure that you have good evidence for doing so. You may consider seeking medical evidence about their capacity to support you.

Fresh HR Insights can review your employment contracts and provide recommendations to ensure they comply with employment law. For peace of mind, please contact www.freshhrinsights.com,au on 0452471960 to learn more.

What should we include in our driver safety policy?

Under s 19 of the Work Health and Safety Act 2011 (NSW) (WHS Act), employers have a duty or responsibility to ensure so far as is reasonably practicable, the health and safety of their workers

Workers also have a duty under this legislation to take reasonable care for their own safety and for the safety of others, as well as a duty to comply with workplace policies and procedures. Any workplace safety policy should be designed with these primary duties in mind.

Additionally, policies pertaining specifically to driver safety should also bear in mind the road safety laws.

A driver safety policy may cover topics such as:

  • fatigue management:
    • employers should schedule work in such a way that manages the risks of fatigue;
    • employees should refrain from driving when tired and take regular breaks;
    • ensuring all drivers have the requisite drivers’ licence and qualifications specific to the tasks they are carrying out;
    • a commitment to ensure regular training; and
  • a commitment by drivers to abide by all road rules including:
    • speed limits;
    • wearing of seat-belts;
    • not driving while intoxicated;
    • ensuring drivers are adequately informed about the safe use of the particular vehicles being used;
    • a procedure for ensuring the vehicles are adequately maintained and inspected; and
    • procedures for incident reporting

Do I have to have a Super default fund? If so, how do I choose it?

A simple yet not so simple question and answer.

As an employer you do have to have a default fund. The question of which one is not an easy one to answer however. 

Typically an employer default fund is the MySuper option within a basic industry fund. This is often the fund that most closely aligns with the employers industry ie Qsuper for government employees such as nurses or Club Plus or HOST plus for people working within the hospitality industry. This isn’t a requirement, just a union marketing tactic.

SunSuper is one that really has no distinct industry alliance and is therefore acceptable to everyone, is highly competitive on fees and is easy for an employer to use. They also have a good media profile and are more closely correlated to our part of the country (South East Queensland) so suggested as a likely candidate.

We  highly (and strongly) recommend Lloyd Thomas from Thomas Cardwell & Associates for all your superannuation questions including what fund to join. Drop him an email on lloyd@thomascardwell.com.au or call on 0401189004 – it’s always best to seek advice first even if it’s just a phone call.

Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

Does workers’ compensation insurance cover travel between worksites?

Travel-related workers’ compensation claims

Around Australia, several jurisdictions treat ‘travel to and from work claims’ (i.e. daily commute to and from work) and ‘work-related travel claims’ (i.e. travelling somewhere as directed by your employer) differently.

Generally, injuries that occur where a worker has been directed to travel from one place of work to another are compensable where it can be shown that a worker’s employment was a significant or substantial cause of the injury.

In the example of a worker travelling from one place of work to another on a bicycle, it may be determined that the worker’s employment was not a significant or substantial cause of the injury if, for example and without limitation:

  • there was serious and wilful misconduct of the worker (such as alcohol or drug use); or
  • the injury resulted from a medical or other condition of the worker and the journey did not cause or contribute to the injury.

Public liability claim

An injury to a worker will be covered by either public liability or workers’ compensation. In practical terms the worker would lodge a workers’ compensation claim. If accepted, it is up to the workers’ compensation insurer to recover amounts from the public liability insurer if it can. Any other damage/claim as a result of an accident may or may not fall under your public liability insurance depending on its terms.

Are we legally required to have certin policies in the workplace

There is no legal requirement to have certain workplace policies. As an employer, your business has a legal duty to maintain a safe working environment and employers have a general obligation to ensure that all reasonably practicable measures have been taken to protect employees from health and safety risks. Having effective policies and procedures, and relevant training and information for workers is one necessary step you can take to minimise the risks to health and safety.

Generally, most workplaces should at least have the following policies in place:

  • workplace health and safety
  • fitness for Work and Risk Management of Drugs and Alcohol
  • workplace bullying, discrimination, and harassment policies
  • smoke-free workplace 
  • code of conduct
  • family and domestic violence
  • disciplinary 
  • social media

Depending on the nature of business, it may also be important to include additional policies or procedures.

Fresh HR Insights can help you with all policies and procedures – you can also grab our fact sheet HERE

What is the role of a support person?

Generally, the role of a support person is to provide an employee with any support required during a meeting. This may include taking notes and providing the employee with emotional support and comfort. The role of the support person is not to participate in a meeting as an advocate on the employee’s behalf.

A support person can be a lawyer, union official, friend, or colleague who is present with the participant during the interview. Ideally, the support person will not be another employee, for reasons of ensuring absolute confidentiality. However, this may be unavoidable.

Can we terminate an employee who is not a ‘cultural fit’? - The termination would be three months into the six month probation period.

It depends what is meant by ‘cultural fit’. The employee will not have met the eligibility for an unfair dismissal claim, but you still cannot dismiss an employee for reasons of sex, age, race, gender, religious belief or political belief (among others). If you just cite ‘cultural fit’ as a reason for dismissal then it is possible that a discrimination claim may be brought against you in that the employee was dismissed for one of these prohibited reasons. You need to assess the likelihood of this occurring as well as your ability to defend a potential claim (i.e. do you have evidence, of which the termination letter will form part, that the termination was for a reason other than the protected attribute).

It is always best to cite valid, performance or conduct based reasons in the termination letter.

Question and response from workplace bulletin 23/9/2019

Is photographing shoddy work bullying?

If the photographing occurs on more than one occasion or is part of a broader pattern of behaviour directed toward the worker, it could constitute workplace bullying.

Workplace bullying is defined under the Fair Work Act 2009 (Cth) (FW Act) as repeated unreasonable behaviour directed toward a worker that creates a risk to health and safety. Bullying behaviour may be either intentional or unintentional.

Workplace bullying may give an employee a right to make an application to the Fair Work Commission for a stop bullying order under the FW Act.

If the worker being photographed does have quality issues with their work, some form of performance management may be warranted. However, a performance management process may still give rise to bullying if the performance management actions are unreasonable.

Some of the relevant considerations to determine whether a performance management action is reasonable includes:

  • the impact of the performance management action on the worker;
  • the way the performance management action has been carried out, e.g. whether the action is consistent with workplace policies and procedures; and
  • the circumstances that have led to the performance management action.


What is bullying at work?

Bullying at work occurs when:

  • a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work


  • the behaviour creates a risk to health and safety.

Bullying does not include reasonable management action carried out in a reasonable manner.

Bullying behaviour may involve, for example, any of the following types of behaviour:

  • aggressive or intimidating conduct
  • belittling or humiliating comments
  • spreading malicious rumours
  • teasing, practical jokes or ‘initiation ceremonies’
  • exclusion from work-related events
  • unreasonable work expectations, including too much or too little work, or work below or beyond a worker’s skill level
  • displaying offensive material
  • pressure to behave in an inappropriate manner.

However, in order for it to be bullying the behaviour must be repeated and unreasonable and must create a risk to health and safety.

When is the best time for an induction process to occur?

Ideally an induction needs to begin on or even before the first day. We have included some helpful checklists for you. It is a great way to set the tone of the relationship to start BEFORE the employee’s first day. Send out a welcome email and make sure that everyone knows they are coming in on board. Make sure that all computers, email addresses and tools for them to do their job are ready for day 1. On day one the induction needs to start as soon as they arrive. Nothing worse than being left sitting. 

Just for fun – check out this welcome video 


Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

I haven't got policies in place, are you able to assist.

We have a large selection of policies and procedures available for any business size and most industries. Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

You can also find packages for all business needs that have a large selection of documents, including policies – Check the out HERE

Don’t want a whole package then what about our base employee handbook

Base Employee Handbook

What’s important to keep workplace culture positive and also can be managed?

Why Workplace Culture is Important

Culture is as important as your business strategy because it either strengthens or undermines your objectives. Positive culture is significant, especially because:

  • It attracts talent. Job candidates evaluate your organization and its climate. A strong, positive, clearly defined and well-communicated culture attracts talent that fits.
  • It drives engagement and retention. Culture impacts how employees interact with their work and your organization.
  • It impacts happiness and satisfaction. Research shows that employee happiness and satisfaction are linked to strong workplace culture (Source: Deloitte).
  • It affects performance. Organizations with stronger cultures outperform their competitors financially and are generally more successful.

What impacts culture in the Workplace?

  • Leadership
  • Management
  • Workplace Practices
  • Policies and Procedures
  • People
  • Mission and Value statements
  • Work Environment
  • Communication

Most of us let our workplace culture form naturally without defining what we want it to be, and that’s a mistake. For example:

  • We create policies and workplace programs based on what other employers do versus whether they fit our work environment.
  • We hire employees who don’t fit.
  • We tolerate management styles that threaten employee engagement and retention.
  • We don’t create and communicate a clear and inspiring mission, vision, and set of values.
  • Our work environments are lackluster.
  • We don’t consider how our everyday actions (or inaction’s) as leaders are affecting the formation of our culture.

For these reasons, it’s important to step back, evaluate, and define your workplace culture—both what it is now and what you want it to be in the future — and how all of these factors either contribute or take away from your desired culture.

 Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

Source – https://www.yourerc.com/blog/post/workplace-culture-what-it-is-why-it-matters-how-to-define-it

Can an ex-employee file an unfair dismissal claim against a small business?

Employees working for a small business (fewer than 15 employees) have to be employed for at least 12 months before they can apply for unfair dismissal. Applications must be made within 21 days of dismissal

What is the minimum info that I should give an employee on commencement?

What ever you do when an employee starts will set the tone for how they see the employer/employee relationship.

We recommend at a minimum you give your new employee an Employment agreement/ Contract, a position description, new starter forms, a Fair Work Statement (On or before the first day), Tax File Number form (TFN), Super choice form as well as a proper induction. We have included some checklists below to help you. 

Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

Is it a good idea to always have a position (Job) description?

A Position (job) description is an essential part of the job application process as, with the right information, it should help applicants to determine whether the role is in line with their skill set and whether it is a job they actually want to do. From the organisation’s perspective, the job description is vital in ensuring that the applications received for the position closely match the needs of the role itself.

They clarify expectations immediately

Providing applicants with solid job descriptions ensures they understand exactly what will be expected of them if they are chosen. Clarity in a job description puts potential employees on the same page as you, and aligns them with your company’s goals.

Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

As an employer what are my priorities to consider in the workplace for employees?

There are a number of “duties of care” that are owed by an employer to an employee. These include, but are not limited to:

  • The duty to provide competent staff;
  • The duty to provide a safe place to work;
  • The duty to provide proper and adequate materials; and
  • The duty to provide a safe system of work and supervision.

Employers should take all steps which are reasonably possible to ensure an employees health, safety and well-being. Demonstrating concern for the physical and mental health of your workers shouldn’t just be seen as a legal duty – there’s a clear business case, too.  It can be a key factor in building trust and reinforcing your commitment to your employees, and can help improve staff retention, boost productivity and pave the way for greater employee engagement.

Legally, employers must abide by relevant Workplace health & safety and employment legislation, as well as the common law duty of care. They also have a moral and ethical duty not to cause, or fail to prevent, physical or psychological injury, and must fulfil their responsibilities with regard to personal injury and negligence claims.

Requirements under an employer’s duty of care are wide-ranging and may manifest themselves in many different ways, such as:

  • Clearly defining jobs and undertaking risk assessments
  • Ensuring a safe work environment
  • Providing adequate training and feedback on performance
  • Ensuring that staff do not work excessive hours
  • Providing areas for rest and relaxation
  • Protecting staff from bullying or harassment, either from colleagues or third parties
  • Protecting staff from discrimination
  • Providing communication channels for employees to raise concerns
  • Consulting employees on issues which concern them.

An employer can be deemed to have breached their duty of care by failing to do everything that was reasonable in the circumstances to keep the employee safe from harm. Employees also have responsibilities for their health and well being at work – for example, they are entitled by law to refuse to undertake work that isn’t safe without fear of disciplinary action and they also have a duty in the safety of themselves and others.

Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

How do I implement drug and alcohol testing to current employees?

Australian industrial courts and tribunals are now accept that random drug testing by employers is an intrusion of an employee’s privacy and can only be legitimised on work, health and safety grounds. Under work, health and safety legislation an employer can legitimately introduce drug testing in the workplace under certain circumstances. Employers can argue that they have a duty of care to all employees, to try and eliminate the risk that an employee might come to work impaired by alcohol or other drugs and pose a risk to the health and safety of fellow employees. Beyond that, no employer has the right to dictate what drugs or alcohol its employees use in their own time.

 Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

What are our rights to include a non-compete clause in employment contracts?

Yes, you are free to include a restraint clause such as a non-compete clause in your employment agreements.

Sometimes courts are reluctant to fully enforce restraints in employment settings, so it is important to ensure that any restraint is well-drafted, tailored to the specific needs of the business, and proportionate and reasonable. A restraint that protects the legitimate interests of the business, i.e. goodwill, customer connection, valued workforce and confidential information, is more likely to be enforceable.

Do we need to provide a performance review plan?

We have dismissed an employee (during their 6-month probationary period) due to poor performance. The employee has asked for their performance review plan.

Do we need to provide this?

A – You are not legally obliged to provide the employee with their performance review plan.

Does a probation period include unpaid leave?

Under section 22 of the Fair Work Act 2009, a period of unpaid leave will generally not count towards service. This means any period of unpaid absence will generally not count towards a probation period.

Under sections 382-384 of the Fair Work Act 2009, an employee who has completed at least 6 months’ service is protected from unfair dismissal (or 12 months in the case of a small business employer).

Must you accept a request to change a pre-parental leave position where the one they left does not suit their situation?

The Fair Work Act 2009 (Cth) (FW Act) provides a ‘return to work’ guarantee for employees on parental leave so they can return to their pre-parental leave position. If that position no longer exists or has changed, then in accordance with the return to work guarantee, they will need to return to an alternative acceptable position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position. Alternatively, if the employee is requesting to return to a different position, they are not entitled to this without your agreement.

You are required to pay redundancy pay in circumstances where you are unable to offer an alternative acceptable position. You may consider a practical approach and consult with the employee on what basis she would like to return to work following the end of her parental leave. The employee is entitled to request flexible work arrangements in accordance with Division 4, Part 2-2 of the FW Act.

If the employee is requesting flexible arrangements to the pre-parental leave role, then you should only refuse on reasonable business grounds after consultation. Reasonable business grounds include where the change would be too costly or result in a significant loss of productivity. Moreover, you will have a defence if the employee cannot meet the inherent requirements of the role. This may be made out if working overtime and on weekends are considered inherent requirements of the role.

Please note that under the FW Act general protections provisions, you cannot take adverse action against an employee because of their family or carer responsibilities, or because they request flexible work arrangements.

Can we stand down an employee because of old age?

July 2020

Question: Our employee is 73 years of age and has a history of chronic medical issues. Up until now, he has been firstly taking sick leave and then annual leave as was agreed. The employee had actually been sick and in hospital (but not with Coronavirus) when his sick leave commenced in March.

The issue is that the employee shall shortly run out of annual leave entitlements and wants to return to work. All his sick leave has been paid out. We do not wish for the employee to return to the workplace given the Australian Government directives for people who are over 70 and also over 65 with chronic medical conditions. This employee meets both of those.

We have not qualified for JobKeeper as there has not been a 30% downturn in our business. The employee is unable to work remotely as he does not have sufficient computer skills. Are we entitled to stand down this employee without pay due to the current Australian Government directive?  If so, can that direction remain in place until the Australian Government changes its directive?


Answer: Given by Workplace Bulletin

Generally, if the employee has presented himself as ready and able to work, and the employer can usefully employ him to perform his usual, or general duties, he cannot be stood down. The employer also has a responsibility pursuant to health and safety legislation to ensure the work environment is as safe as possible. If this employee poses a risk to health and safety of others, there are limited circumstances where he can be directed to not attend the workplace.

In this circumstance, it would be worthwhile for the employer to emphasise to the employee its concern for his health and safety during this time. Whilst he may not be specifically able to be stood down, options such a paid special leave are available. This approach may incentivise the employee to take a period of unpaid leave after the period of paid special leave ends. These situations are complex and do require significant legal considerations. 

Coronavirus and Australian workplace laws

The Fair Work Ombudsman has updated some valuable resources to support businesses during COVID. 

The information on their website covers workplace laws, obligations, and entitlements for:

  • employers and employees affected by coronavirus (COVID-19)
  • employers and employees participating in the JobKeeper scheme (qualifying employers and eligible employees)
  • employers and employees who previously participated in the JobKeeper scheme (legacy employers and eligible employees)

Go to their website which contains the following information HERE

When can I seek an exemption from redundancy pay from the FWC on incapacity to pay grounds?

If an employer cannot pay redundancy payments under the National Employment Standards (NES), section 120 of the Fair Work Act 2009 (FW Act) gives the Fair Work Commission (FWC) power to reduce an amount of redundancy pay to a lesser amount (including to nil) if the FWC considers it appropriate.

The FWC has recently determined a number of applications to vary redundancy pay, largely arising out of the effects of the COVID-19 pandemic. In Yu Kitchen Pty Ltd (2020), the FWC reduced two former employee’s NES-derived redundancy entitlements from over $3,000 to just $134.13 each. In this case, the FWC was satisfied the business had been “decimated by the pandemic” but saw no reason why the remaining $268.26 in the company’s bank account should not be divided between the employees.

However, in Worthington Industries (2020) the FWC refused to reduce NES-derived redundancy entitlements for three former employees from four weeks’ pay to one weeks’ pay. The company argued that making the redundancy payments would cause them financial hardship, but ultimately the FWC was satisfied the company had the means to make the full redundancy payments and the money in the bank to do so.

A Full Bench of the FWC has recently confirmed it has no power to reduce the redundancy entitlements derived from modern awards containing industry-specific redundancy schemes.  

In Cameron Fraser; Construction, Forestry, Maritime, Mining and Energy Union v JFM Civil Contracting Pty Ltd (2020) the FWC rejected an application by the employer to reduce a former employee’s redundancy entitlement to nil pursuant to section 120 of the FW Act. This was despite a finding that the employer’s financial position was such that it had no capacity to pay the employee eight weeks’ redundancy pay due to financial losses and a downturn in available work.

Workplace Bulletin 07/10/2020

Can we change someones Full-time contract to a Part-time contract?

A full-time employee would be entitled to their contracted full-time hours. This would not be able to be changed unilaterally without their consent. If the business no longer requires the role at a full-time capacity, it would need to consider providing notice of termination to the employee and offering the position as a part-time role.

Depending on the circumstances, redundancy pay may need to be considered


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