At common law an employee is a person who works under an employment contract which may be either verbal or written. An employee is always an individual (as opposed to a company or partnership) and their employment is regulated by state (some employers in WA) and federal industrial relations laws including, where applicable, awards
An employee does not have the right to control how and when work is performed and cannot delegate work to others.
Workers deemed to be employees regardless of the common law definition
||Some farmers believe hiring someone as a contractor means they don't have to worry about the various laws which apply to employment - this isn't always the case. Some laws such as workers compensation, superannuation as well as some taxation laws deem workers to be employees, regardless of the common law definition. See our topics on superannuation, independent contractors and our contractor or employee fact sheet.
Employees may be engaged as permanent full-time employees, permanent part-time employees, casual employees or seasonal employees. It is important to understand the difference between these different categories as the various entitlements and responsibilities are different for each category.
Failure to categorise the employee correctly and therefore to adhere to legal and award requirements can lead to misunderstandings and possibly legal action for underpayment of entitlements and prosecution for breach of the award.
Full-time employees work fixed hours each week and are entitled to various forms of leave such as annual leave, personal leave, long-service leave and parental leave. They are also entitled to notice of termination and to make a claim for unfair dismissal.
Part-time employees are employed for fixed hours every week and depending on the number of hours worked and have the same entitlements as full-time employees calculated on a pro-rata basis. If public holidays fall on days usually worked, the employee is entitled to payment for that holiday. Part-time employees are also entitled to notice of termination and to make a claim for unfair dismissal.
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At common law, casual employees are employees who do not have regular or systematic hours of work or an expectation of continuing work. A typical casual employee is employed on a daily basis when the need arises. Casual employees are:
- entitled to be paid at the hourly rate plus 25% (Clause 10.4, Pastoral Award 2010) to compensate for lack of entitlements, e.g. annual leave, personal leave and the lack of continuity of work)
- entitled to a minimum payment of 3 hours work on each occasion they attend for work (Clause 10.4, Pastoral Award 2010)
- not usually entitled to notice of termination
Unfair termination laws recognise the concept of regular casual employees. The federal industrial laws provide for casual employees who are engaged on a regular and systematic basis and who have a reasonable expectation of continuing employment to make a claim for unfair dismissal, providing they have served the minimum employment period.
Risk of engaging employees on casual basis rather than part-time
Employers who engage employees on a casual basis when their employment can be more accurately described as part-time, run the risk that the employee will bring an action for non-payment of entitlements such as annual leave and personal leave, which permanent employees are entitled to. Such claims have succeeded in the past despite the fact that a casual loading had been paid. Employees have up to 6 years to make a claim.
Employees who work similar hours each week
||Employees who work similar hours each week, which are known in advance, should be hired as permanent employees, either full time or part time and paid the various entitlements.
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Seasonal employees are engaged to perform work during a specified season with no expectation of continuing work once the season has passed. The season must be clearly identifiable, for example by weather or temperature, availability of the particular product or activity or marked by certain conditions such as festivities or other activities - e.g. calving and harvesting.
Under the federal industrial laws, seasonal employees are not entitled to notice of termination and if they are dismissed at the end of the season they cannot bring an action for unfair dismissal.
Employment of children
The laws about the employment of children vary from state to state. These laws deal with issues such as the age at which children are permitted to work, the types of work they can perform and the hours they can work. Visit our State Industrial Laws section.
The Fair Work Act including the National Employment Standards and the Pastoral Award 2010 also apply to the employment of children. The Pastoral Award 2010 provides for junior rates of pay which are a proportion of the adult rate.
The Pastoral Award 2010 also contains the National Training Wage Schedule in Schedule C. For information on junior and trainee rates of pay, visit our pay rates section
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Hiring people from overseas
Employers considering employing non-Australian citizens or permanent residents (e.g. working holiday makers) should be aware that some visas prevent or restrict the right of a person to work in Australia. Every worker from overseas must have a valid Australian visa with work rights.
Illegal workers are non-Australian citizens who are working in Australia without a visa, or who are in Australia lawfully but working in breach of their visa conditions. Work means any activity that normally attracts remuneration. In other words, even unpaid workers will be considered to be working if their work would normally attract remuneration.
|Employing an illegal worker is a criminal offence
||Employers are responsible for checking all workers’ rights to work in Australia. It is an offence under the Migration Act 1958 to knowingly or recklessly allow workers to work, or to refer workers for work, where those workers are from overseas and either illegally in Australia or working in breach of their visa conditions.
Importance of checking work rights
People found working without a valid visa can be removed from the workplace without notice to their employers. To avoid the disruption and loss of investment caused by the sudden removal of an employee and the potential for criminal charges, employers should check the work entitlements of new employees.
Employers are responsible for checking all workers’ rights to work in Australia. If employees or job applicants refuse to cooperate, they should be told they will not be employed until such checks have been satisfactorily completed or until their entitlement to work can be verified.
Employers should check the work entitlements of all job applicants. If employers check the work rights of all employees and applicants, they will be in a better position to defend allegations of breaches of the racial discrimination legislation by prospective employees who object to questions relating to their origin.
Checking a prospective employee's entitlement to work in Australia
Work rights can be checked by asking to see a person’s passport or other evidence of Australian citizenship, such as a birth certificate or certificate of citizenship, as well as appropriate photo identification.
The free Visa Entitlement Verification Online (VEVO) service is the safest and easiest way to check work entitlements of all new workers from overseas, providing you with current visa information. You may also like to read the do your employees have a valid visa to work in Australia? booklet.
Employers who do not have immediate access to fax or email have a period of 48 hours in which to conduct any checks.
Providing these checks are initiated within 48 hours of an employee starting work and the employer does not know the person is an illegal worker, the Department of Immigration and Citizenship has said that they will not be referred for prosecution, even if the employee turns out to be an illegal worker. Employers relying on the 48-hour checking period will need to have records of the date and time when the employee started work to enable calculation of the 48-hour period.
Employers who discover an employee is an illegal worker must end the working relationship immediately.
How often to check?
Australian citizens and permanent residents need 1 single check at the time of employment.
Temporary visa holders must be rechecked to ensure that no changes to their immigration status have occurred. It is advisable for employers to check on VEVO every 3 months.
Employer Sponsored Visas
There are a number of visa options for lawfully operating Australian employers to sponsor and employ skilled workers who have recognised qualifications and skills or experience in particular occupations required in Australia. These include:
For more information visit, immi.gov.au/skills/skillselect
- Temporary Work (Skilled) visa (subclass 457) allows employers to sponsor approved skilled workers to work in Australia on a temporary visa for up to four years. A business can sponsor someone for this visa if they cannot find an Australian citizen or permanent resident to do the skilled work. For more information visit, immi.gov.au/Visas/Pages/457.aspx
- Regional Sponsored Migration Scheme visa (subclass 187) is for skilled workers who want to work in regional Australia. It is part of the Permanent Employer Sponsored Visa program and is a permanent resident visa. Applicants can be in or outside Australia when they apply. For more information, visit www.immi.gov.au/Visas/Pages/187.aspx
Working Holiday Makers
To meet the seasonal nature of work on dairy farms, it may be worth considering working holiday makers for short-term employment.
The working holiday maker program is a cultural exchange program which allows visa holders to supplement their holiday funds through short-term work. Working holiday maker visa holders can work full-time during their 12-month stay in Australia but are limited to a maximum of 6 months’ work with any one employer.
- Working holiday visa (subclass 417) is for young people who want to holiday and work in Australia for up to a year, encouraging a cultural exchange and closer ties between Australia and eligible countries. Working holiday visa holders who performed ‘specified work’, in an eligible regional Australian area for a minimum of three months (88 days) while on their first working holiday visa may be eligible for a second working holiday visa. ‘Specified work’ includes (among other things) general maintenance crop work, harvesting and/or packing fruit and vegetable crops and immediate processing of animal products.
- Temporary work and holiday visa (subclass 462) encourages cultural exchange and closer ties between Australia and eligible countries by allowing young adults (18-30) to have an extended holiday during which time they may engage in short term work or study.
Another visa worth knowing about is the Special Category visa (subclass 444). This is a temporary visa which allows New Zealand citizens to stay and work in Australia, as long as they remain a New Zealand citizen.
Overseas work and taxation