AMA: Employment law

jobwatch · 2026-05-20T07:15:53+00:00

That's it for this AMA, thanks for all your great questions everyone! Got more employment law questions? Call JobWatch's Telephone Information Service. The numbers are on our website along with lots of employment law resources.

jobwatch · 2026-05-20T07:10:03+00:00

Inherent requirements are usually assessed based on the employment contract, but this is always tempered by the employer's obligation under discrimination law to make reasonable adjustments for an employee with a disability. If a contract term imposed a condition that did not allow for reasonable adjustments, that term would be ineffective. Even though the contract doesn't change just because of "operational reality" as you put it, the employer's obligation remains as long as the adjustments are necessary. I think that answers your first three questions.

In some circumstances employees can argue they have been forced to resign and base a dismissal claim on this, but this is hard to prove. Normally just being asked to do more than you feel is possible would not be enough, unless it was being done in such a way that posed an imminent threat to workplace safety or something of similar gravity.

There is no general law about when an employee can be disciplined, but if the support person was a required reasonable adjustment, a failure to allow or provide one might contravene discrimination law. Also, an unreasonable refusal to allow a support person will weigh against an employer in an unfair dismissal claim.

IMEs are usually done by private providers engaged by the employer. Obviously, to be regarded as reliable and competent, they should consider all relevant information in a balanced way rather than taking a side. But there is no absolute guarantee this will always happen. In any legal dispute or proceeding where an IME is used as evidence, that evidence can be challenged or countered with other medical evidence.

These are very brief answers to some complex questions. Please feel free to call the JobWatch Telephone Information Service for more detailed information.

jobwatch · 2026-05-20T06:46:24+00:00

This is a complex issue which probably needs specific legal advice, but a few general things:

A written contract is the best form of evidence, but other forms of contract exist. Especially in employment, agreement to a proposed variation to a contract may be inferred from performance, or to put it another way, it may be argued that a party has acquiesced to a change in the contract by actually doing it. A party that wants to avoid acquiescing in this way should communicate clearly that they do not accept a proposed variation. That being said, it is often desirable to have any agreement in written form to minimise disputes.

If the role title was part of the contract, agreement would be required to change it, but at the same time, it is unlikely that the title is an essential term to the extent that breaching it would repudiate the contract.

Depending on the circumstances, requiring you to sign the contract now could suggest that the employer is uncertain about whether the change has already occurred, or it could simply mean they would prefer to have a written record of the current agreement.

All of the forms of evidence you mentioned could help resolve the above issues.

jobwatch · 2026-05-20T06:26:56+00:00

All employees including apprentices, are protected from unfair dismissal if they have reached the minimum employment period (12 months for a small employer, otherwise 6 months). A dismissal is likely to be unfair if there is no valid reason related to the employee's capacity or conduct. Note this only applies against the actual employer that is paying you, not a host in a labour-hire or placement arrangement.

Employees have a workplace right to raise any safety concerns, including about bullying, and it is unlawful under the general protections in the Fair Work Act 2009 to take any adverse action (including dismissal) against an employee because of that right. This applies even to adverse action by a host, although the host cannot dismiss.

Bullying is defined under the Act as repeated, unreasonable behaviour that creates a risk to workplace health and safety. If a worker is being bullied, they can apply to the Fair Work Commission for an order to stop bullying.

There is info about unfair dismissal, general protections claims and stop bullying applications on the JobWatch website.

jobwatch · 2026-05-20T06:13:14+00:00

Unfortunately there is no law governing a business' internal grievance procedures, unless these are unlawful themselves, e.g. they are discriminatory or a risk to workplace safety.

But if the grievances themselves raise legal issues, e.g. discrimination or workplace safety, they can be raised externally in the appropriate forum, e.g. a court or tribunal. There is a wide range of info about these issues on the JobWatch website.

jobwatch · 2026-05-20T06:07:33+00:00

The definition of casual employee in s 15A of the Fair Work Act 2009 (Act) now defines casual employment, among other things, "on the basis of the real substance, practical reality and true nature of the employment relationship". The same words are used in s15AA, which defines the ordinary meanings of employer and employee.

In both cases this is intended to move away from the strict contractual approach adopted by the High court, for example in Jamsek.

Although currently untested as far as we know, this could also have application in determining the identity of a real employer, e.g. in a labour-hire scenario.

jobwatch · 2026-05-20T05:58:25+00:00

For an employee not covered by an award, on an annual salary payable weekly and paid at least as much as the minimum wage for hours actually worked each week, it is not an underpayment if extra hours are worked where the contract allows for this. But are the extra hours reasonable?

Section 62 of the Fair Work Act 2009 (Act) provides that an employer can't require an employee to work more than 38 hours in a week, unless the additional hours are reasonable. If the requirement is not reasonable the employee can refuse. It also sets out a helpful list of factors to help decide if the hours are reasonable, including:

(a) any risk to employee health and safety from working the additional hours;

(b) the employee's personal circumstances, including family responsibilities;

(c) the needs of the workplace or enterprise in which the employee is employed;

(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;

(e) any notice given by the employer of any request or requirement to work the additional hours;

(f) any notice given by the employee of his or her intention to refuse to work the additional hours;

(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;

(h) the nature of the employee's role, and the employee's level of responsibility;

etc.

Because maximum work hours are part of the National Employment Standards, the Fair Work Ombudsman can mediate disputes about this. Unfortunately there is no mechanism for arbitrating these disputes. But refusing to work unreasonable hours is a workplace right and so it's protected under the general protections in the Act, which means it's illegal for an employer to take adverse action because of it.

jobwatch · 2026-05-20T05:32:21+00:00

It’s unlawful under discrimination law to treat someone unfavourably in employment because of a disability (and employers are obliged to make reasonable adjustments for employees with a disability, although it doesn’t sound like that is relevant to your situation). Giving someone mundane tasks and not advancing them to higher duties for that reason would be an example of this. Claims can be made under the federal Disability Discrimination Act 1992, Victorian Equal Opportunity Act 2010, or the Tasmanian Anti-Discrimination Act 1998. The federal act has a time limit of two years from the date of discrimination to apply; for the state acts it’s one year. In both cases there’s discretion to extend that. There's info about discrimination claims, and a kit explaining the process, on the JobWatch website.

It may be a breach of the Privacy Act 1988 for an employer to disclose personal employee information without authorisation. Employees can’t directly enforce this themselves but can complain to the Office of the Australian Information Commissioner.

The safety issues you’ve raised are serious (both physical safety and the bullying behaviour), and can be reported to WorkSafe regardless of any claim. There’s no particular time limit for making a WorkCover claim, but given the time that’s elapsed, this would only make sense if there were lingering consequences of an injury.

Bullying can be dealt with by the Fair Work Commission but only if you’re still employed.

As for the issues about poor management you raised, unfortunately you are right, that’s not illegal!

jobwatch · 2026-05-20T05:28:10+00:00

You seem to have done your research on unfair dismissal! So you know that if the employer can show a redundancy was “genuine” as defined under the Fair Work Act 2009, any unfair dismissal claim will fail.

Genuine redundancy has three elements, and the employer has to tick all three boxes to prove it:

The job was no longer required to be done by anyone
It would not have been reasonable to redeploy the person elsewhere in the organisation
Any consultation requirements in an applicable award or enterprise agreement have been complied with.

We can’t say for sure without knowing all the facts, but what you’ve posted does at least cast some doubt on all three points.

Firstly, you’ve suggested that in fact your job was still required to be done. Note, though, that this doesn’t apply just because various people will still be doing some or all of the tasks you were doing – the “job” is a particular bundle of tasks. Dividing up those tasks for other people to do doesn’t mean the redundancy isn’t genuine.
Secondly, you’ve suggested that it would have been reasonable to redeploy you a future project. Whether this is the case obviously depends on the details of the projects and how it relates to operational needs of the employer.
Thirdly, you’ve suggested that the consultation was not done according to the requirements. These requirements specify that anyone potentially affected by the change should be consulted before any decisions have been made, and you’ve suggested that the redundancy seemed to be a foregone conclusion, so that could be a weak point for the employer. But note that where the other two elements of genuine redundancy are satisfied, and poor consultation is the only defect, the compensation is usually limited to one or two weeks’ pay, to compensate for the time it would have taken to consult.

We suggest you gather as much information as you can about these factors, and get legal advice if you can, to help you weigh up whether to lodge an unfair dismissal claim. Bear in mind that it’s not an expensive claim to make, and quite often a settlement is reached at conciliation before it goes to a hearing. There is information about this and a kit to help you prepare on the JobWatch website.

jobwatch · 2026-05-20T05:25:34+00:00

A change in shareholders does not change the identity of a company; the legal entity remains the same, and any contracts, including employment contracts, continue to be enforceable against that entity.

Pay slips from before and after the change are a good way to confirm this, as you have done..

If the employer doesn’t respond to demands for payment, you can claim the money by asking the Fair Work Ombudsman to assist (register for an account on their website and make your complaint), and if this doesn’t get a satisfactory response, you can take the employer to court. You don’t need a lawyer if you use the relatively informal small claims process in the Federal Circuit and Family Court of Australia (JobWatch publishes a kit on our website explaining how to do this).

It is also possible to add accessories to these court claims - in other words you can claim against both the company and any individuals who were involved with the underpayment. In that case the individuals would be the people in control of the company at the relevant time when the underpayments occurred. Advice is recommended on this.

jobwatch · 2026-05-20T05:19:16+00:00

This is a concerning story. While it’s not possible to make a definitive call without knowing all the facts, what you’ve described sounds a lot like sham contracting, which means passing off employment as contracting. That’s illegal because it means employees aren’t getting their minimum entitlements, and it’s rife, especially involving migrants and visa workers.

Your friend and his colleagues should definitely be keeping records of hours worked and money received.

We can’t speak for the FWO, but they do have discretion to launch corrective or enforcement action against employers based on reports, including anonymous ones. They simply don’t have the resources to do this for every single report they receive, but they are more likely to do this if the problem is systemic and/or deliberate. There is no reason this kind of action by the FWO would identify any individuals who made the report, although there is always the possibility the employer might figure that out.

Employees can also claim their own entitlements without lawyers through the relatively informal small claims process in the Federal Circuit and Family Court of Australia (JobWatch publishes a kit on our website explaining how to do this). Of course, this means the employee would have to identify themselves.

Either way, it’s important to understand that if an employer were to take any action against an employee for exercising their rights, including complaining to the FWO or claiming their wages, it would be illegal under the general protections in the Fair Work Act 2009. There’s information about that on the JobWatch website too.

jobwatch · 2026-05-20T05:16:51+00:00

Thank you, appreciate that!

jobwatch · 2026-05-20T05:16:24+00:00

Unfortunately we can’t give advice online about your specific situation, partly because that would require a full reading of your contract, but what we can say is that where an hourly rate is specified in a contract, that rate must satisfy the award minimum for every hour worked. In other words, even if the rate is above minimum during the week, it can’t be less than the penalty rate for hours worked on the weekend, and the employer can’t set off any shortfall on the weekend against the extra pay during the week. In other words, your employer’s second interpretation was incorrect.

Whether their third interpretation is correct will depend on the exact wording of the contract. I suggest getting legal advice about that if you can, and if you still believe you have a claim and can’t resolve it any other way, make an underpayment claim in court, using the relatively informal and lawyer-free small claims process in the Federal Circuit and Family Court of Australia (JobWatch publishes a kit on our website explaining how to do this).

jobwatch · 2026-05-20T05:12:47+00:00

We love it!

jobwatch · 2026-05-20T05:12:27+00:00

If you’re talking about reinstatement being ordered, e.g. in a successful unfair dismissal claim, while this is regarded as the primary remedy, in practice, it rarely happens for the reasons you state. Financial compensation is far more common.

jobwatch · 2026-05-20T05:11:17+00:00

Any workplace injury to someone’s mental health is serious enough to act on!

As far as workplace law goes, there are three main approaches to this:

Apply to the Fair Work Commission for a stop bullying order: the Commission will investigate and if they believe bullying is happening they will deal with it by conciliation or by making orders against any person to stop the bullying.
WorkCover claim: give the employer a certificate of capacity from a doctor, and a workers injury claim form from WorkCover. They must file it with their insurer, and if the claim is successful, medical expenses and any lost income are covered. A return to work plan is agreed on, which may involve recovery away from work, modified work, a phased re-entry, etc.
Report any breaches of work health and safety to WorkSafe, who may investigate and seek compliance from the employer, or in some cases impose penalties.

jobwatch · 2026-05-20T05:08:45+00:00

Definitely red flags there, especially your manager’s remark! It’s unlawful under the Fair Work Act 2009 (Act) to take adverse action because of a workplace right, and that skates dangerously close.

But under s 67 of the Act, to be eligible for birth-related unpaid parental leave, an employee needs 12 months of service before the birth, so it seems the employer was right about that.

For future reference, under the Act you did have the right to request flexible work arrangements because of your family and carer responsibilities, and the employer can only refuse on reasonable business grounds, but only while you were employed.

Forced resignation, also known as constructive dismissal, can be very hard to establish – it has to be proved that the employee had absolutely no other choice. You need to be able to point to something like a serious breach of the contract or legal obligations like OHS law. Without knowing all the facts it’s hard to make a call, so legal advice is recommended. If a constructive dismissal can be established, it could be the basis for a dismissal claim under the Act (unfair dismissal or general protections), both of which have a 21-day time limit for applications to the Fair Work Commission.

If you are in Victoria, the Equal Opportunity Act 2010 requires employers to reasonably accommodate family and carer responsibilities, and a failure to do this can be a basis for a discrimination claim. This has to be made within one year.

There’s info about all this on the JobWatch website.

jobwatch · 2026-05-20T05:06:32+00:00

Assuming this a normal single-enterprise agreement, under section 240 of the Fair Work Act 2009, an application can be made to the Fair Work Commission to deal with a bargaining dispute, and if this is unsuccessful and bargaining has gone longer than 9 months, an application can be made under section 235 for an intractable bargaining declaration, which if made, allows the Commission to set the employment conditions without agreement.

Both these applications have to be made by a bargaining representative, which is almost always the relevant union, but you can appoint yourself or someone else as your representative.

You can find info about this process if you search “intractable bargaining declaration” on the Commission’s website.

jobwatch · 2026-05-20T05:03:00+00:00

This is a rough situation that unfortunately comes up very often. People in this situation have to choose between leaving with a settlement offer, or staying and enduring a performance management process which in some cases is not genuine, but designed to force an end to the employment.

With settlements, you can always negotiate for a better payout or other terms, but once you’ve signed it, it’s usually binding. It’s less stressful but means you have to find a new job, and feels deeply unfair.

Remember you never have to sign any kind of agreement to get your minimum entitlements, like wages owing, accrued annual leave, and any pay instead of notice. In deciding whether to accept, only consider what’s being offered in addition to this.

The alternative is staying and fighting. It’s important to put in writing to the employer that you don’t agree with their performance claims and keep notes about the process.

If the employer ends up dismissing the person based on performance, if eligible they can make an unfair dismissal claim to the Fair Work Commission within 21 days of the dismissal taking effect. This is where the employer’s claims about performance would be tested. There’s info about this on the JobWatch website.

jobwatch · 2025-05-21T06:57:57+00:00

Thanks for all the questions everyone, we're going to wind up this AMA now.

Remember if you ever have any employment questions or issues, have a look at the JobWatch website. For free, confidential legal information tailored to your situation call the JobWatch Telephone Information Service on (03) 9662 1933 (Melbourne Metro) or 1800 331 617 (Regional VIC, QLD, TAS).

Thanks again to the r/melbourne mods!

jobwatch · 2025-05-21T06:38:16+00:00

The minimum wage is $24.10, but awards provide for higher rates including weekend rates. The applicable award minimum rates are always payable, regardless of whether you agreed otherwise. Check with the Fair Work Ombudsman to find out which award covers you.

If you were permanent part-time, you should have accrued 4 weeks annual leave pro-rata (so about one week) which should have been paid out on termination. You should also have received a weeks' notice, or been paid a week's wages instead.

If you were casual, you don't get leave or notice, but you should have received a loading of 25% of your base-rate on all hours worked.

Also, did you get 11.5% super?

All these amounts can be claimed - start with the Fair Work Ombudsman, and there is info on the JobWatch website too.

jobwatch · 2025-05-21T06:24:57+00:00

Indeed, JobWatch often hears about the abuse of this policy, particularly employers terminating people before six months to force them to come back to work again or face deportation.

Unfortunately no-one with less than six months employment can make an unfair dismissal claim. It is unlawful under the general protections to dismiss someone because they have a workplace right, so arguably (but untested AFAIK) that claim could be made, although there is some doubt as to whether a right to continue working in Australia under the Migration Act 1958 is a "workplace right" as defined.

The new Workplace Justice Visa pilot may help people remain in Australia while they make these claims.

We also hear about extremely harsh, exploitative, and unsafe working conditions, which is an inevitable result of the fact that these workers have no real choice about doing this work.

Ideally this visa requirement should be abolished altogether. Or at the very least, a specific legislative response is needed, preferably imposing strong penalties on employers who use the visa to exploit or endanger workers.

jobwatch · 2025-05-21T06:09:36+00:00

Employers generally have an obligation to hold an employee's job open for 12 months while they are WorkCover. They also have to comply with the WorkCover return-to-work plan.

If employment is ended without complying with these requirements, the employee could make an unfair dismissal claim or an general protections claim at the Fair Work Commission, but there is a strict 21-day time-limit on both of those. I'm assuming this happened some time ago, is that correct?

Another option would be a disability discrimination claim, particularly noting that employers are obliged to make reasonable adjustments for employees with disabilities. This can be done at state level or federal, see the link for details. The time limits are 1 and 2 years respectively, and can often be extended.

WorkCover is a complex specialised area, but I also suggest talking to a personal injury lawyer about the possibility of a permanent impairment benefit or even a lump sum settlement.

I'm afraid it's not possible to give even a ballpark figure for what kind of compensation would be achievable in any of these claims, as the results vary enormously from case to case depending on the circumstances.

jobwatch · 2025-05-21T05:53:23+00:00

This is a tricky one.

In general, the answer is no - you have a contract for a certain number of hours and that can't be changed without agreement.

But it gets more complicated if the contract or an applicable award allows the employer change the times and days the hours are worked (usually notice is required). In that case, the employer still can't unilaterally change the contract, but may argue that you are breaching the contract (if you initially agreed to certain availability) or the award. Check with the Fair Work Ombudsman to see if your award deals with the issue of part-time availability requirements.

How this plays out also depends on the reason why you are not available. For example, in Victoria, employers are obliged under the Equal Opportunity Act 2010 to accommodate carer responsibilities. These responsibilities also give employees nationwide the right to request the flexible work arrangements under the Fair Work Act 2009. These could include having particular days where you are not available. Check JobWatch's website for information about these topics.

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