Employees
Not-for-profit community organisations have the same legal obligations as any employer to their workers - but that doesn't mean that employment law is easy to understand. There is a lot of information available on employment law, but it can be hard to know what is useful and where to start - especially when you have a question you need addressed urgently.
Our information on employment law is designed to assist organisations to understand the legal framework and identify issues when they arise. The law surrounding employment is complex and it changes sometimes, so the information in these pages shouldn't replace advice from a lawyer who specialises in employment law.
If your organisation suspects that it has an employment issue, it is best to seek specialist advice as soon as possible.
The Fair Work System
There are many sources of law regarding employers and employees. One of the key sources, that applies to most employers and employees is the Federal Fair Work System.
PilchConnect has a page that outlines the Fair Work System in detail:
What is an employee?
Your community organisation needs to undersatnd what legal category the different people working falls into. Different legal entitlements and obligations apply depending on whether the law regards the worker as an 'employee', an 'independent contractor' or a 'volunteer'.
In determining which category applies, there are a range of factors to consider regarding the relationship between your organisation and the individual. For a detailed explanation of these factors and assistance on working our which catergory a worker falls into, see PilchConnect's 'Guide: Employee, contractor or volunteer?' below.
The PilchConnect 'Guide: Employee, contractor or volunteer?' includes information on:
- what is an employee and how an employee is different to independent contractors and volunteers
- the importance of correctly classifying different working relationships, and
- an overview of some of the main legal obligations an organisation owes to its employees, independent contractors and volunteers.
There are a number of other useful resources from the Fair Work Ombudsman, Australian Taxation Office and Business Victoria listed below.
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This webpage contains information on who is an employee. It provides an explanation of some of the common indicators that contribute to determining whether a person is an employee.
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This webpage contains a ‘tool’ to help you determine whether a person is an employee or a contractor for tax and superannuation purposes. If your organization engages and pays workers, you should use this decision tool. It will give you a report that you may rely on this, provided your responses are accurate, for tax purposes.
Recruitment
Your organisation needs to bear in mind a number of different laws when it recruits employees. These include laws about equal opportunity and discrimination, laws about screening procedures, and privacy laws.
There are also Commonwealth laws which prohibit discrimination on the basis of sex, age, disability and race. The Australian Human Rights Commission has guidelines to help employers comply with federal anti-discrimination laws during recruitment.
The following PilchConnect fact sheets and web pages will help your organisation in the recruitment process. The PilchConnect sheet At a Glance: Recruitment contains further links to helpful websites and toolkits.
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This website contains information on the key steps in the recruitment process to find the right staff member for your community organisation, include workforce planning, writing a position description, advertising the job, interviewing and inducting the employee
Entitlements
Employees have certain entitlements - these entitlements come from several different laws, and can include long service leave, superannuation, occupational health and safety, insurance, tax and salary packaging.
A key source of employee entitlements is the Fair Work System, which covers most employers and employees in Australia. We have comprehensive information about the Fair Work System on our Fair Work System page.
Our 'at a glance' fact sheet on employee entitlements give a brief overview of some other entitlements and provides links to useful tools and websites.
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This FAQ sheet answers some frequently asked questions about employee entitlements.
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Fair Work Ombudsman provides an overview of your obligations and identifies where there are gaps. As the checklist states, you might then want to contact the Fair Work Ombudsman for more information on specific areas.
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Managing employees
It's a really good idea to put in place effective management practices for the benefit of both your organisation and its employees. Our 'at a glance' sheet below covers some ideas for management practices, and also provides a brief overview on handling disputes with employees.
For specific information on effective dispute resolution involving employees, go to the Fair Work Ombudsman's resources on effective dispute resolution, and see the further resources below.
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Termination
Termination can be a delicate process, and is also an area where organisations can easily fail to meet employee entitlements. Our checklist on termination sets out some key issues to consider, and laws to bear in mind.
If you are thinking about termination, your organisation must consider:
- whether termination is appropriate, and why
- how to terminate fairly, and
- how to terminate lawfully.
Our Termination Checklist highlights the main legal issues that arise in termination, and provides links to further information and tools to help your organisation:
- be fair to parties involved
- act legally, and
- reduce its chances of an unfair dismissal claim being made.
Business Victoria also has helful information on managing termination, and the Fair Work Ombudsman also has tools and information for employers. Specific links are provided in our Termination Checklist.
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Warning! Serious misconduct can justify summary dismissal but an employee must always be given a fair hearing about the circumstances surrounding an incident before termination.
You'll need to check whether instant dismissal affects the employee's final payments (sometimes you don't have to pay their notice, for example).
Resignation
If an employee resigns, legal issues can arise if you miss essential steps. Resignation is not usually a hot spot for legal issues in employment, but our Checklist on Resignation will help ensure you take all the right steps.
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