Thursday, 22nd of March, 2018

Work and Workers

Employment Law


We would like to thank Craig Dowling, Barrister, and Neill Campbell, Barrister, for contributing this chapter through the Fitzroy Law Handbook Online. A particular thanks to the Fitzroy Legal Service for permission to reproduce this chapter here.


This chapter provides a summary of the law as at 1 July 2012. The chapter's focus is on the rights, entitlements and obligations of employees in Tasmania. Those rights, entitlements and obligations derive from a wide range of sources, including statutes, awards, collective agreements, individual agreements and the common law.

The most significant statute affecting employment conditions in Australia is the federal Fair Work Act 2009 (Cth) ("FW Act"). The FW Act sets out:

  • most of the rights and duties of employees and employers;
  • the procedure for the negotiation and certification of federal agreements; and
  • amongst other things, governs the affairs of federally registered unions (together with the Fair Work (Registered Organisations) Act 2009 (Cth)).

This chapter primarily deals with:

  • the common law employment contract;
  • workplace agreements and awards under the Workplace Relations Act 1996 (Cth) (WRA) and the FW Act;
  • statutory and common law terms of employment;
  • enforcement of entitlements; and
  • termination of employment.

However, this chapter is not limited to the above topics. See the table of contents for further information.

Interrelationship between statute, statutory agreements and common law contracts: Terms and conditions of employment contained in legislation, awards or statutory agreements are generally minimum terms and conditions. This means that the parties can agree by contract to pay more than the minimum for any one or more entitlements in the statute, award or statutory agreement.

A common law contract can not provide for a lesser term than that contained in a statute, award or statutory agreement. The employer must provide the employee with at least every minimum term or condition in the statute, award or statutory agreement. It is no excuse if the employee was, overall, better off under the common law contract.

Contracts and statutory award and agreement terms and conditions exist side by side, with an employee entitled to the most beneficial term that applies. For example, the ordinary hours pay in a contract may be the most beneficial term for the employee's ordinary hours of work, but the award overtime condition may be the most beneficial for overtime work. In those circumstances, the employee is legally entitled to the contractual term for ordinary time work and the award term for overtime work.

Recent government amendments

The Government made substantial changes to industrial legislation. Some changes took effect from March 2008 (the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Cth) ("Transition to Forward with Fairness Act")), while other changes took effect from 1 July 2009 and 1 January 2010 (the FW Act). Further changes are contained in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) ("FW (TPCA) Act").


Tasmanian employment law is regulated by the Fair Work Act 2009 (Cth). The Industrial Relations (Commonwealth Powers) Act 2009 (Tas) refers responsibility to the Commonwealth under the Commonwealth Fair Work Act to provide for, and continue to provide for, the following:

  • a strong, simple and enforceable safety net of minimum employment standards;
  • genuine rights and responsibilities to ensure fairness, choice and representation at work, including the freedom to choose whether or not to join and be represented by a union or participate in collective activities;
  • collective bargaining at the enterprise level with no provision for individual statutory agreements;
  • fair and effective remedies available through an independent umpire;
  • protection from unfair dismissal; and
  • an independent tribunal system and an independent authority able to assist employers and employees within a national workplace relations system, associated with the Fair Work Act (FWA).

Other legislation, such as the Commonwealth Sex Discrimination Act 1984Racial Discrimination Act 1975 and Disability Discrimination Act 1992, and the Anti-Discrimination Act 1998 (Tas), Long Service Leave Act 1976 (Tas) and Work Health and Safety Act 2012 (Tas), also affect working conditions in Tasmania.

Employment Contracts

A threshold question in determining the rights and duties of a worker is whether the individual is an employee or an independent contractor. Mostly it is only employees that are covered by awards, certified agreements, collective agreements and individual agreements. Other legislation concerned with working relationships and conditions is usually applicable only to employees.

Contract of employment or independent contractor?

An "employee" is a worker who works for another in exchange for wages. There are other arrangements for the performance of work that look like employment contracts, but are treated as independent contracting arrangements, or contracts for the provision of services.

The contract under which an employee performs work is called a "contract of service". The contract under which an independent contractor performs work is called a "contract for services".

Independent contractors generally are not covered by statutory minimum standards, awards or workplace agreements made under the WRA or the FW Act (see: "National Employment Standards", "Awards" and "Workplace Agreements"). Independent contracting arrangements are widely used in the transport and building industries.

The courts have developed a series of tests for distinguishing between employees and independent contractors. The touchstone is the nature and degree of detailed control which the employer exercises over an individual's work. Other factors are also considered, such as whether the worker or the employer:

  • supplies tools and equipment;
  • pays the worker's income tax; and
  • whether the worker:
  • is able to work for other employers;
  • is able to delegate work to an employee or sub-contractor; and
  • carries a financial risk or has an opportunity to participate in the profits of the employer's business.

In the case of Hollis v Vabu Pty Ltd [2001] HCA 44 (9 August 2001) the High Court determined that the relationship between a courier company (Vabu Pty Ltd) and its couriers was that of employer and employee. The court considered relevant the fact that the couriers were not providing skilled labour, had little control over the manner of performing their work where Vabu had considerable scope to exercise control, wore the uniforms of Vabu Pty Ltd, and were provided with pay summaries.

Contents of the contract of employment

Each contract of employment contains terms and conditions by which the parties regulate their relationship. Such terms may be oral or written, or a combination of the two. Often, letters of appointment, job descriptions, policy manuals, awards, collective agreements, workplace practices and legislation will be sources of further terms of the contract.

The common law implies certain terms into every contract of employment, imposing obligations on employees and employers. Further, obligations in the relationship between employee and employer arise in tort, equity and from fiduciary duties. An example of a common law implied contractual term is the common law duty of fidelity and confidentiality, which prevents employees from using or disclosing their employer's trade secrets. Implied into every contract of employment is a general duty to obey the employer's lawful and reasonable directions. Further, all employees are obliged to exercise reasonable care and skill in the performance of their duties.

Contracts of employment that do not include an express termination provision will contain an implied term that the employer will give the employee "reasonable notice" before terminating employment, unless the employer has summarily dismissed the employee for "serious misconduct". The common law also implies a term that the employer and employee will not, without reasonable cause, conduct themselves in a manner likely to destroy the relationship of trust and confidence existing between them.

Under the FW Act, a contract of employment cannot displace an entitlement under the National Employment Standards discussed below (see: "National Employment Standards").

Breach of employment contract

Just like any other contract, either party may sue in most circumstances for damages for breach of the employment contract. For example, engaging in a strike may constitute a breach of the employment contract by an employee; or when an employee is not given the requisite period of notice specified under their contract, the employee may seek damages for breach of contract. These common law rights have to some extent been superseded by statutory rights to sue for reinstatement, breach of statutory agreements and underpayment of wages.

National Employment Standards

The FW Act creates National Employment Standards (NES) which took effect from 1 January 2010. The NES are statutory terms and conditions of employment and apply to all employees in the national system (defined in section 13 of the FW act), including management employees. They are enforceable by statute and cannot be displaced by awards, enterprise agreements orcommon law contracts, unless specifically provided for in the FW Act.

Sections 61 to 125 of the FW Act detail the NES. In summary the NES are:

  • a maximum of 38 hours per week, subject to additional hours if reasonable and the averaging of hours over a period of time (ss62-4);
  • the right to request flexible working arrangements for an employee who has caring responsibilities for a child. The employer must respond in writing and can only refuse on reasonable business grounds (s65);
  • parental leave and related entitlements of, amongst other things, 12 months unpaid parental leave to care for a child (ss67-85);
  • annual leave of four weeks accrued for each year of service or five weeks for shift workers, as defined (ss86-94);
  • personal/carer's leave of 10 days paid per year with the possibility of further unpaid days in defined circumstances. Compassionate leave of two days per year in defined circumstances (ss95-107);
  • community service leave for an employee to undertake a defined type of community service, such as volunteering for a fire fighting body, in defined circumstances (ss108-112);
  • long service leave as provided by a pre-reform award, unless excluded by an enterprise agreement, and if there is no Federal Award entitlement, long service leave legislation will apply (s113);
  • the entitlement to be absent from work on the public holidays specified in the FW Act, unless the employer makes a reasonable request for an employee to work and the employee does not have a reasonable basis for refusing (ss114-6);
  • notice of termination or pay in lieu according to Table 1 (below);
  • redundancy pay if the employee's employment is terminated:
    at the employer's initiative because the employer no longer wants the job of the employee done by anyone, except where this is due to the ordinary and customary turnover of labour; or
    because of the insolvency or bankruptcy of the employer. 
    Redundancy pay periods are calculated as shown in Table 2, below (ss117-123); and
  • a fair work information statement to be provided by an employer to each of their employees (ss124-5).                    
Employee's period of continuous service with the employer
  at the end of the day the notice is given
   Not more than 1 year 1 week
   More than 1 year but not more than 3 years 2 weeks
   More than 3 years but not more than 5 years 3 weeks
   More than 5 years 4 weeks

 Note: The period of notice is increased by one week if the employee is over 45 years old and has completed at least two years of continuous service with the employer.

Employee's period of continuous service
with the employer on termination
Redundancy Pay Period
   At least 1 year but less than 2 years 4 weeks
   At least 2 years but les than 3 years 6 weeks
   At least 3 years but less than 4 years 7 weeks
   At least 4 years but less than 5 years 8 weeks
   At least 5 years but less than 6 years 10 weeks
   At least 6 years but less than 7 years 11 weeks
   At least 7 years but less than 8 years 13 weeks
   At least 8 years but less than 9 years 14 weeks
   At least 9 years but less than 10 years 16 weeks
   At least 10 years 12 weeks













Historically, a Federal Award was an order made by the Australian Industrial Relations Commission (AIRC) in settlement of an interstate industrial dispute. The order would contain terms and conditions of employment that would govern the employment relationship. Sometimes the "dispute" was really only a technical one to give the AIRC power to act. In 1996 the concept of an industrial dispute for award-making purposes was re-defined and limited to 20 topics called "allowable award matters". As a result, awards could only create enforceable rights and obligations so far as the underlying industrial dispute dealt with an allowable award matter or things incidental to such matters, and then only by prescribing minimum terms and conditions.

The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ("Work Choices") amendments further limited the content of awards.

Awards have historically been binding only on named respondents (parties). A list of respondents was usually found in the award itself. An employer may also have been bound if it was a successor of a named party, or if the employer belonged to a recognised employer organisation that was named as a party to the award. The award also named the union or unions which were party/parties to it. It was the union that negotiated the award on behalf of employees who were eligible to be its members.

Generally, individual employees did not appear before the AIRC on the hearing or determination of a "dispute".

Common Rule Awards operate within Tasmania. That is, the AIRC can make a Federal Award that applied to all employers within an industry in Tasmania, without the need for the employer to have been party to a dispute. In practice the AIRC extended existing Federal Awards, with some variations to apply to a whole industry.

Work Choices sought to make awards a marginal part of industrial regulations in Australia by introducing a range of ways in which the award terms and conditions could be avoided, one mechanism being not using the award as a comparison for a "fair" agreement.

FW Act / modern awards

Under the FW Act, awards have a more central role in the industrial relations system than under Work Choices. Awards provide part of the safety net of terms and conditions, along with the NES (see: "National Employment Standards"). Awards are also used as a reference instrument to decide whether an agreement passes the "No Disadvantage Test" (pre-1 July 2009) and the "Better Off Overall Test" (BOOT) (post-1 July 2009).

From 1 January 2010 new modern awards and the NES took the place of the old awards. The old awards no longer apply to any employees or operate for any other reason under the Act, save as a historical reference or where expressly, or by deeming, they are to be incorporated into modern awards, the NES or enterprise agreements. Modern awards have reduced the overall number of awards by combining the coverage of a number of awards into one award.

Modern awards do not apply to workers on higher incomes. The FW Act defines a high income earner as an employee who has a written guaranteed income, accepted by the employee of greater than the amount set by regulations. From 1 July 2011 the amount set by the regulations is $123,300 for full-time workers. Note that workers are not excluded solely because of the level of income, they must also have a written and accepted guarantee of a specified income to be excluded from award coverage (see: ss47(2) & 329-333, FW Act).

Modern awards can contain 10 minimum standards in addition to the NES, (s139). These minimum standards are:

  • minimum wages, including skill-based classification;
  • type of employment;
  • arrangement of work, including hours, rosters and breaks;
  • overtime rates of pay;
  • penalty rates, including for shift, weekend and public holiday;
  • annualised wage and salary arrangements;
  • allowances, including for expenses incurred, additional skills, responsibilities or disabilities;
  • leave, leave loading and arrangements for leave;
  • superannuation; and
  • procedures for consultation, representation and dispute settlement.

Modern awards must also include a flexibility term. Such a term helps an employer and employee to reach an arrangement to vary the effect of an award to meet the genuine requirements of the parties. An employee must be better off overall on the flexibility arrangement than under the terms of the relevant award. The flexibility arrangement must be in writing and signed by each party.

Modern awards may also include terms relating to outworkers, industry specific redundancy schemes (for example the construction industry redundancy fund) and incidental and machinery terms, (see: ss140-142 of the FW Act). Modern awards may also provide additional detail of the NES required for the specific industry.

As part of the award modernisation task, the AIRC created a default award, which will apply to all non-managerial employees who are not covered by a modern award.

It is not always easy to find out whether a Federal Award applies. The best source of information for union members is their union, which will be familiar with awards within its industry.

A breach of an award can lead to prosecution by authorities as well as to civil action.

Workplace Agreements

The Workplace Relations Act 1996 (Cth)  the "WRA") was repealed in 2009. However, this does not mean that it does not still affect some working relationships, as agreements made under that Act will continue to operate until the agreement is terminated, either by a termination of employment or a new agreement.

The WRA, as amended by Work Choices, created several classes of workplace agreements (see: Part 8 Div 2, WRA). They include:

  • Australian Workplace Agreements (AWAs);
  • union collective agreements;
  • employee collective agreements;
  • multiple business agreements; and
  • employer greenfields agreements.

The Transition to Forward with Fairness Act removed the ability to make and lodge new AWAs (a form of statutory individual agreement) after 28 March 2008, but it created a new type of individual agreement, an Individual Transitional Employment Agreement (ITEA), which a specified class of employer could make and lodge until 31 December 2009. From 31 December 2009 no new statutory individual employment agreements were able to be made or lodged.

Agreements (both individual and collective) made under the WRA continue to operate under the Fair Work Act 2009 (Cth) (the :FW Act"). The FW (TPCA) Act provides that the NES apply to all national system employees from 1 January 2010. Therefore, from 1 January 2010 the NES provides additional minimum terms and conditions for employees on statutory agreements.

Australian Workplace Agreements / Individual Transitional Employment Agreements


The Transition to Forward with Fairness Act removed the ability to make and lodge new AWAs after 28 March 2008. AWAs made and lodged before 28 March 2008 can remain in place until they are terminated. From 1 January 2010 employees employed on AWAs have the additional protection of the NES.

Collective Agreements/Enterprise Agreements

Collective agreements under the WRA continue to apply to groups of employees employed in a single business or part of a business because of the savings provisions under the FW (TPCA) Act, Schedule 3. Before the Work Choices amendments, collective agreements were called certified agreements. Under the FW Act they are enterprise agreements. From 1 July 2009 statutory agreements are able to be made under the FW Act.

Employee collective agreements may be made between an employer and its employees about the terms and conditions of employment that will apply to some or all of that employer's employees (s327, WRA).

Union collective agreements may be made between an employer and a trade union about the terms and conditions of employment that will apply to some or all of that employer's employees (s328, WRA).

Union greenfields agreements may be made between an employer who proposes to establish a new business and a trade union, about the terms and conditions of employment that will apply to some or all of the future employees employed in the new business (s329, WRA).

Fair Work Act Agreements

Since 1 July 2009 statutory agreements are able to be made under the FW Act. They are known as enterprise agreements. Under section 172 of the FW Act there are two types of statutory agreements:

  • single enterprise agreements; and
  • multi-enterprise agreements.

Single enterprise agreements can be made in two ways. Firstly, an agreement can be made between an employer or two or more employers that are single interest employers and employees. A trade union may or may not be covered by this type of agreement. Alternatively, a single enterprise agreement can be made for a genuine new enterprise (a greenfield), between an employer or two or more employers that are single interest employers and one or more trade unions.

Multi-enterprise agreements can also be made in two ways. Firstly, a multi-enterprise agreement can be made between two or more employers that are not single interest employers and employees. A trade union may or may not be covered by this type of agreement. Alternatively, a multi-enterprise agreement can be made for a genuine new enterprise (a greenfield) between an employer or two or more employers that are single interest employers and one or more trade unions.

How workplace agreements come into force

Under the FW Act an agreement comes into operation seven days after the agreement is approved by Fair Work Australia (FWA) or a later day specified in the agreement (s54, FW Act).

Better Off Overall Test (FROM 1.7.09)

Since 1 July 2009 an enterprise agreement has needed to pass the "Better Off Overall Test" ("BOOT") to be approved by FWA. Agreements made prior to 27 March 2006 and between 28 March 2008 and 30 June 2009 were subject to a no disadvantage test before being approved. Section 193 of the FW Act provides that a non-greenfield, enterprise agreement passes the BOOT if FWA is satisfied that each employee and prospective employee would be better off overall if the agreement applied to them than if the relevant modern award applied to them.

Section 189 of the FW Act provides that if an agreement fails the BOOT, it may still be approved by FWA if it is satisfied that due to exceptional circumstances the approval would not be contrary to the public interest. An agreement approved on this basis can only have a nominal expiry date of a maximum of two years after approval.

Workplace agreements approval procedures

For each type of enterprise agreement there are different procedures for making an agreement (s182, FW Act.

For a single enterprise agreement (that is not a greenfields agreement): The agreement is made when the majority of employees cast a valid vote in favour of approving the agreement.

For a multi-enterprise agreement (that is not a greenfields agreement): The agreement is made when the majority of employees of at least one of the employers cast a vote in favour of approving the agreement.

For a greenfields agreement: The agreement is made when it is signed by the employer and each relevant trade union that is expressed to be covered by the agreement.

Under section 180 of the FW Act an employer must take reasonable steps prior to the agreement being voted on to ensure:

  • that the employees have had access to the written agreement;
  • that the employees are advised of how, when and where the vote will take place; and
  • that the terms and effect of the agreement have been explained to the employees.

Enterprise agreements come into force only once they have been approved by FWA. Before approving an enterprise agreement, FWA must be satisfied of a number of matters, including:

  • that the agreement passes the BOOT, or if it fails the BOOT should be otherwise approved;
  • that the agreement does not contravene section 55 of the FW Act, including that the agreement does not seek to exclude any provisions of the NES (s186(2)(c), FW Act);
  • that the agreement includes a nominal expiry date of not more than four years after FWA approves the agreement and a dispute resolution clause (s186); and
  • if the agreement is not a greenfields agreement, that the employees genuinely agreed to the agreement (s186(2)(a)).

Content of enterprise agreements under the FW Act

The content of an enterprise agreement is largely a matter for the parties. However, there is some content that the FW Actrequires, permits and prohibits. Under section 55 of the FW Act an enterprise agreement cannot exclude the NES or any provision of the NES (see: "National Employment Standards"). Part 2-2 of the FW Act allows enterprise agreements to deal with some matters in the NES.

What an Agreement Should Contain

An enterprise agreement under the FW Act should contain:

  • A nominal expiry date. This is the date after which the agreement may be replaced by a new agreement. Under section 186(5) of the FW Act, the date may be specified in the agreement but must, other than for ITEAs and agreements failing theBOOT but approved on the basis of special circumstances, be no later than four years after the date on which the agreement was approved by FWA. If no date is specified in a collective agreement, then the nominal expiry date is four years from the date it is approved by the FWA. For ITEAs, the nominal expiry date is the earlier of a date specified in the agreement or 31 December 2009. For agreements failing the BOOT but approved on the basis of special circumstances, the nominal expiry date is the earlier of the date in the agreement or two years after the day on which FWA approved the agreement (s.189 FW Act).
  • A dispute settlement procedure. A procedure that deals with disputes about any matters arising under the agreement, and in relation to the NES, must form part of an enterprise agreement (s186(6)).
  • Minimum entitlements. Although not required to be part of a workplace agreement, the NES provides minimum entitlements to employees and cannot be excluded by an enterprise agreement (s55). The minimum entitlements of employees can be improved in an enterprise agreement.
  • A flexibility term. Under section 202 of the FW Act an enterprise agreement must contain a flexibility term that allows an employee and an employer to agree that terms of the enterprise agreement have effect in relation to the employee and the employer as if the agreement were varied by that arrangement. The flexibility term must require the employer to ensure that the employee is better off overall under the proposed flexibility arrangement. If the enterprise agreement does not contain a flexibility term, then the model flexibility term prescribed by the regulations will be taken as a term of the enterprise agreement.
  • A consultation term. An enterprise agreement must contain a consultation term which requires an employer to consult with employees about major workplace change that is likely to have a significant effect on employees (s205). If the enterprise agreement does not contain a consultation term, then the model consultation term prescribed by the regulations will be taken as a term of the enterprise agreement.

What An Agreement May Contain

The content of a workplace agreement is substantially in the hands of the parties. For matters to be included in an enterprise agreement under the FW Act they must fall within one of the following categories:

  • matters relating to the relationship between the employer/s and the employees;
  • matters relating to the relationship between the employer/s and the relevant union/s;
  • deductions from wages authorised by the employee; and
  • how agreements will operate.

See: section 172(1) of the FW Act.

What An Agreement Must Not Contain

An enterprise agreement under the FW Act must not contain a term that is an unlawful term (s186(4) FW Act). Unlawful terms are defined in section 194 of the FW Act to include:

  • discriminatory terms, being terms that discriminate on the basis of the employee's race, colour, sex, sexual preference, age, physical or mental disability, martial status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
  • objectionable terms, being terms that would require or permit conduct in breach of the "General Protections" contained in the FW Act, discussed below under "General Protections";
  • a term that would confer additional rights on an employee to claim unfair dismissal within the minimum employment period (for a definition see: "Unfair dismissal", below) or would exclude or detrimentally modify an employee's unfair dismissal rights;
  • a term inconsistent with employees' or employers' rights in relation to industrial action; or
  • a term that modifies union officials' rights of entry into workplaces.

Operation of workplace agreements

Australian Workplace Agreements / Individual Transitional Employment Agreements


The nominal expiry date of an AWA is the earlier of the nominal expiry date specified in the agreement or five years from the date an AWA is lodged with the OWA. An AWA operates until it is terminated, replaced or declared void by a court. It may only be terminated in accordance with the WRA, which requires, at least, that the agreement exceed its nominal expiry date.

A party who breaches an AWA may be liable in damages to the innocent party for the breach and may be ordered to pay a civil penalty up to $6,600, in the case of an individual, and $33,000 for a body corporate.


The nominal expiry date of ITEAs is the earlier of the nominal expiry date specified in the agreement or 31 December 2009, but ITEAs will continue to operate until terminated or replaced (ss352 & 347, WRA).

Collective Agreements

Under the Transition to Forward with Fairness Act: The nominal expiry date of a Work Choices collective agreement is the earlier of the nominal expiry date specified in the agreement or five years from the date it is lodged with the OWA. A collective agreement remains in force until it has passed its nominal expiry date and is replaced by another collective agreement (s347(5) WRA as amended by Work Choices).
A party who breaches a collective agreement may be liable to pay a civil penalty and be ordered to pay any unpaid wages or other amount the court finds was required to be paid by the relevant term of the agreement.

Under the FW Act: Under section 186(5) of the FW Act, the nominal expiry date may be specified in the agreement but must, other than for ITEAs and agreements failing the BOOT but approved on the basis of special circumstances, be no later than four years after the date on which the agreement was approved by the FWA. If no date is specified in a collective agreement, then the nominal expiry date is four years from the date it was approved by FWA.

An enterprise agreement will come into operation seven days after it is approved by the FWA or a later day specified in the agreement (s54, FW Act). 

Enterprise agreements will continue to operate after their nominal expiry date until they are terminated or replaced.

It is unlawful to engage or threaten to engage in any action with the intention of coercing a person to, or not to, make a collective agreement, or to approve or vary or terminate such an agreement. However, since 1993 the law has permitted and accepted that coercion in the form of  lawful industrial action may occur when agreements are being negotiated. To that end, industrial action by employers, employees and unions can be permitted and protected by the FW Act if it is applied towards the making and supporting of claims for a new agreement. Therefore, it is not unlawful to engage in protected industrial action. However, industrial action will only be protected if the procedures for protected industrial action in the FW Act are complied with (see: Chapter 3 Part 3-3 of the FW Act). (Also see: "Industrial Actions".)

Industrial Actions

An extensive discussion of the law of industrial action is beyond the scope of this chapter. Since 1993 there has been a right to engage in protected industrial action for the purposes of advancing and supporting claims in connection with a prospective workplace agreement.

Industrial action is a broad and defined term covering a range of activities engaged in by the parties to an industrial dispute. Most frequently, it is used to describe the activities of employees and their unions, and involves action taken to disrupt work. The action may take the form of strikes, a refusal to work as directed by the employer, or the imposition of a ban on certain activities, or some other limitation or restriction on work performed. On the employer side, industrial action usually takes the form of what is known as a lockout, which is action that prevents (or locks out) the employees from performing their work and receiving their usual remuneration.

Industrial action is dealt with by Chapter 3 Part 3-3 of the FW Act. The FW Act prescribes requirements for industrial action to be protected industrial action. Those requirements include the holding of a protected action ballot to determine whether employees wish to engage in particular protected industrial action for the proposed workplace agreement. No action lies against a party taking protected industrial action unless the action involves personal injury or wilful and reckless damage to property (s415).

Industrial action that does not meet the requirements of Chapter 3 Part 3-3 of the FW Act is not protected and is unlawful. In those circumstances, the FWA has the power to order that industrial action ceases (s418). Also, those who participate in such action may be subject to civil liability, including damages and injunctions.

Only industrial action that meets the definition in the FW Act is capable of being protected. Picketing has been held by the courts not to be industrial action. Accordingly, it cannot be protected. That said, peaceful protest outside an employer's property (which is often described as picketing) is in law just that, peaceful protest, and hence not unlawful.

Further Terms and Conditions for Negotiation in Individual Agreements

An individual agreement can take the form of a common law contract of employment. An individual employee negotiating an individual agreement is often at a disadvantage. Typically employees have less bargaining power than employers. Often they also have fewer resources, including knowledge of what they may be entitled to under other industrial instruments, such as awards or certified agreements or prevailing conditions with other employers. Following is a list of possible items for inclusion in negotiations for individual agreements.

1. Award/NES conditions

An employee should not agree to a term in an individual agreement that seeks to exclude or modify NES or award conditions without first obtaining advice (see: "National Employment Standards"). A term contained in a common law employment contract that purports to exclude or remove NES award conditions is not effective unless expressly authorised by a section of theFW Act. It is, however, recommended that advice be sought.

2. Overtime rates

Where overtime may be required to be worked, the rate or rates of pay applicable to the overtime hours should be specified.

3. Penalty rates

Some consideration should be given to an additional loading if the hours worked are outside ordinary business hours.

4. Flexi-time or time in lieu

As an alternative to overtime or penalty rates of pay, the parties may agree to some form of compensation for extra time worked beyond the agreed hours based on flexi-time or time in lieu.

5. Salary review

Another aspect which should not be overlooked is some form of salary or wage review, unless it is agreed that the salary should be fixed for the term of the agreement. Note that, in the case of ITEAs, once in force an ITEA can only be varied by means of the procedure set out in the WRA.

However, if the ITEA itself contains a procedure for review and adjustment, there is no need to resort to the variation procedure in the Act.

A scale of pay based on, for example, years of service, experience or acquired qualifications could be inserted in an agreement or award to avoid the need for variation. The risk in linking pay increases to improving economic conditions, such as a change in the consumer price index (CPI), is that the economic condition specified may not improve at a desirable rate.

6. Accident make-up pay

Changes to the workers compensation system (WorkCover) have substantially reduced the benefits payable to the majority of injured workers. Consideration should therefore be given to agreement on make-up pay in the event that the employee is injured and placed on WorkCover. "Make-up pay" is an amount making up all or some of the difference between the WorkCover payment and the normal time earnings. Typical provisions under pre-1996 awards provided for make-up pay to be payable in the first 26 weeks of absence from work because of injury sustained at work.

7. Allowances

It is not uncommon for an employee to incur expenses in the course of their employment, and under the old award system these expenses would be compensated for by way of an allowance. So, for example:

  • a meal allowance might be payable where the employee was required to work extensive overtime;
  • a tool allowance might be payable where the employee used their own equipment on the job, to compensate for the costs of its maintenance and replacement;
  • a uniform or protective clothing allowance might be payable where the employee was required to purchase and/or maintain these items;
  • a travel allowance might be payable to compensate for costs incurred when the employee was required to travel while carrying out duties on behalf of the employer; and
  • a vehicle allowance might be payable to compensate for vehicle wear and tear where the employee used their own vehicle while carrying out duties on behalf of the employer,
  • and so on. An employee who is likely to incur expenses of a similar nature in the course of their employment should not take reimbursement for granted, but should negotiate for specific payment to be included in the agreement.

Allowances can be dealt with in two ways: firstly as a fixed amount per day, week or event, and secondly by agreeing to reimburse for the actually expenses incurred.

8. Non-standard terms

There is scope to include terms in contracts that are non-standard. For instance, an employer may encourage its employees to ride bicycles to work, in which case a term of the agreement may be that the employer provides showers. Provided there is a connection between the content of the term and the employment relationship (and is not otherwise prohibited content) it may be included.

9. Leave

Any form of leave an employee may think desirable must be bargained for with the employer, unless it is a form of leave provided for under the NES or a form of leave that may be, and is, included in an applicable award.

There are many forms of leave, the significance and relevance of any particular form varies with the nature of the employment and the circumstances of the employee. For instance, an employee may be a member of the CFA and live in a fire prone area, in which case some form of fire-fighting leave may be necessary. Many employees are part-time tertiary students, in which case study leave may be necessary. Some examples follow:

  • blood donor leave;
  • fire-fighting leave;
  • leave for those who are Australian Defence Force reservists;
  • study leave;
  • unpaid leave;
  • leave to participate in union elections or decision-making bodies;
  • leave whilst serving as an elected union official;
  • additional annual leave;
  • jury service leave;
  • additional personal or compassionate leave, including the extension of the circumstances in which such leave may be taken; and
  • additional parental leave, including any part of parental leave that is to be paid.

As for jury service, unless specifically exempted, a person called for jury duty is compelled to attend, notwithstanding that the trial may run for many weeks or months. The allowance paid for attendance for jury duty ranges from $36 per day (for the first six days) to $72 (after the first six days) to $144 per day (where the trial exceeds 12 months). An employer cannot dismiss an employee called for jury duty. An employee dismissed for that reason should seek advice immediately. The Juries Act 2000 (Vic) requires the employer to make up any difference between the allowance and the employee's normal pay.

10. Ordinary hours

The NES in the FW Act contains a maximum hours or work standard. However, the maximum under the standard is capable of manipulation. Accordingly, employees would be advised to reach agreement on the number of hours to be worked each week, and identify when the hours are to be worked. With some industries moving to round-the-clock production, the employee should not make assumptions about the hours in which they will be called upon to work. Hours could be included in the agreement by reference to a roster or some other arrangement. Note the comments about penalty rates above.

11. Meal breaks and rest breaks

The WRA provides that an employer must not require an employee to work for more than five hours continuously without an interval of 30 minutes. Such a provision is not part of the NES or FW Act but is contained in modern awards. Such a provision can be incorporated into workplace agreements (collective or individual) to have certain application. Note that the parties may agree to a longer interval without a break.

While occupational health and safety legislation or regulations may apply to some classifications of work to provide for breaks from repetitive work, consideration should be given to the inclusion of rest breaks in the employment agreement.

12. Termination of the agreement

Issues of termination and redundancy are the most frequent sources of dispute, and should be carefully considered (see further: "Termination of employment").

13. Required termination period

The period of notice each party is required to give to the other to end the agreement or contract should be specified. In the absence of any specified period, the common law requires "reasonable notice", but this can be difficult to interpret in any given case. To avoid expensive legal battles, the parties should specify the period of notice required. The agreement should further confirm that normal wages are payable in lieu of notice.

In negotiating a period of notice issues such as the seniority and remuneration of the employee, the relocation or other personal commitments required by an employee to the new position (amongst other things) may indicate that a longer period of notice should be sought by the employee.

Note: The minimum notice periods in the NES (see: "National Employment Standards") now have a wide application to employees in the national system. As the period of notice specified in the NES is a minimum period, the parties are able to agree to include a contractual term for a greater period of notice.

14. Grounds for instant dismissal

Many employers seek to include in the contract a catalogue of events as "misconduct" warranting dismissal. That approach is generally not beneficial either to the employer, who may miss something off the list, or to the employee, who may be intimidated or resentful.

At common law, an employer may dismiss an employee without notice or wages in lieu of notice where the conduct of the employee is serious and justifies summary dismissal.

Examples of conduct justifying summary dismissal are: serious misconduct, incompetence, neglect of duty, wilful refusal to obey lawful and reasonable commands of the employer. Misconduct is active conduct of a serious nature that indicates that an employee rejects the contract of employment, for example, by repeated drunkenness, persistent absenteeism or dishonesty. The breaches must usually be substantial or persistent.

15. Redundancy

A redundancy arises where the duties performed by the employee are no longer required to be performed or are no longer required to be performed by that employee. The NES in the FW Act (see: "National Employment Standards") now provides for an employer to make a redundancy payment when an employee in the national system is terminated due to redundancy. Consideration should be given to whether a specific redundancy clause should be included which provides a more beneficial entitlement to the employee.

Prior to the commencement of the NES (on 1 January 2010) there was no general legal requirement that an employer pay a redundancy payment. An employer was only required to make such a payment if a specific obligation existed, usually in an award, collective agreement or contract.

16. Trade secrets and restraint of trade

Employers sometimes seek to include clauses in the contract to protect trade secrets, and to limit the use by an employee of skills and knowledge acquired during the period of employment. The enforceability of such clauses will depend very much on their terms and the circumstances of employment.

During the employment, the employee has a duty of fidelity to the employer and the employee would likely breach that duty if s/he provided vital trade secrets to a competitor, or carried on a business competing with their employer.

Clauses which limit where a person may work, or which impose a time limit during which the ex-employee may not carry on a similar business, or which limit the use to which certain information can be put (restraint of trade clauses) are considered unenforceable unless they go no further than is reasonably necessary to protect the employer's interests.

17. Dispute and grievance procedure

As indicated earlier (see: "What an agreement should contain", above), the FW Act makes it mandatory to include in a workplace agreement a procedure to settle or prevent disputes or grievances that arise during the life of the agreement.

An agreement may enshrine rights of representation for employees, subject to some qualifications. The agreement may entitle a trade union to represent an employee in a dispute or grievance procedure only if such rights are couched in terms of the employee's choice. For example, an agreement cannot contain a term that automatically requires the involvement of a trade union in a dispute or grievance procedure, and the agreement may not lawfully expressly exclude the involvement of a union. It is lawful though for the agreement to say that a union may represent an employee if that is the employee's choice.

18. Employer policy

An increasingly common term in individual agreements is one that expresses a term of the agreement as subject to the employer's policies. For example: "[the employee] will be paid an overtime allowance of $.... subject to [the employer's] policy".

A term cast in such a form provides the employer with an in-built means of changing the content of the term, or perhaps effectively excluding it, without the need to obtain the employee's consent. The words: "subject to policy" operate to qualify the term by reference to an external document or process that is solely within the control and discretion of the employer.

It is highly recommended that employees not agree to terms of this kind.

19. Superannuation

The Superannuation Guarantee Scheme was enacted by the Commonwealth Government in 1992 under the Superannuation Guarantee Charge Act 1992 (Cth) and the Superannuation Guarantee (Administration) Act 1992 (Cth)  The scheme is intended to complement existing award superannuation entitlements which remain in force. Employers must meet the minimum levels of contribution to a superannuation fund as set out in the Superannuation Guarantee legislation.

Employers must contribute a minimum percentage of each employee's base earnings. The percentage rates have increased annually to an upper limit of 9% from the financial year 2002/03. There is a tax penalty for failure by an employer to make the contributions required by the legislation.

There are some exemptions from the scheme, including:

  • employees who earn less than $450 per month;
  • persons who are paid to do work of a domestic nature for not more than 30 hours per week;
  • employees under 18 years of age working 30 hours or less per week; and
  • employees over 70 years of age.

The legislation is administered by the Commissioner of Taxation, and the tax is calculated by the employer's self-assessment. The Commissioner enforces payment under Superannuation Guarantee legislation. Employees do not have a right to commence proceedings for the recovery of unpaid superannuation under Superannuation Guarantee legislation. Employees can make complaints to Australian Tax Office (ATO) about unpaid superannuation, which the ATO should investigate.

In addition to the minimum superannuation requirements referred to above, an employer and employee can agree that the employer pay more superannuation or can agree to a term of the contract that the employer will pay the Superannuation Guarantee legislation amount. There is no reason why such an agreement cannot be included in an individual agreement as a term. However, the additional obligation is not administered by the Commissioner for Taxation. It is enforceable in the same way as any other term of the individual agreement.

Whatever the source of the superannuation obligation, once it is paid by an employer as superannuation into the employee's nominated fund the employer's contributions are not available to the employee until he or she reaches the age of 55, with limited exceptions.

Legislation has come into effect which increases the Superannuation Guarantee percentage progressively from 2013 until it reaches 12% in 2020. The first increase is to 9.25% on 1 July 2013 and the second increase is to 9.5% on 1 July 2014.

Enforcement of Entitlements Under Workplace Agreements, Awards, National Employment Standards and Contracts

An employee who has a dispute with an employer concerning an entitlement under a statutory agreement, a common lawemployment contract or the relevant award should first raise the matter with the employer, or ask their union to do so. The most common disputes relate to non-payment, or underpayment, of wages or another monetary amount. If the matter is not resolved, the following steps could be considered.


The FW Act empowers inspectors to investigate breaches of awards and agreements. Inspectors are appointed by the Fair Work Ombudsman under section 700 of the Act. If, on investigation, the inspector considers that there has been a breach of the agreement or award, they will usually attempt to get the employer to rectify it. If the employer fails to rectify the breach, the inspector may then prosecute the employer.

The legislation protects employees from any discriminatory action by an employer as a result of an employee making a report about breaches of employment conditions. Underpayment of wages, or non-payment, is considered to be a breach.

Civil proceedings

Breach of Award or Agreement

A union or individual employee covered by the NES (see: "National Employment Standards"), a Federal Award, enterprise agreement or collective agreement may bring proceedings for a penalty, the recovery of money due and payable under the award or agreement (ss444550539 & 540 FW Act). The proceedings may be brought in the state Magistrates' or County Courts, the Federal Circuit Court or in the Federal Court of Australia.

Proceedings for an injunction to stop or remedy the effects of a breach may only be brought in the Federal Circuit Court or the Federal Court (s545). The FW Act established a Fair Work division of both the Federal Court and the Federal Circuit Court from 1 January 2010.

The FW Act imposes maximum penalties, with higher penalties for corporations than for individuals.

A party who breaches an AWA may be liable in damages to the innocent party for the breach and may be ordered to pay a civil penalty and interest. Further, the innocent party can obtain an injunction requiring the other party not to, or cease to, contravenethe AWA.

The general rule about proceedings brought under the FW Act is that the parties bear their own legal costs, except where it can be shown that the proceedings were brought vexatiously, or without reasonable cause, or that the party's unreasonable act or omission caused the other party to incur costs, or that the other party unreasonably refused to participate in a matter before FWArelated to the matter in which costs were sought (s570).

Proceedings may be brought up to six years from the date payment became due.

Breach of Contract

An employee whose employment is governed by a common law contract can take action to recover wages as a contractual debt. The employee sues on the basis of the terms and conditions of the contract of employment and in this way can recover over-award payments or payments in excess of the award entitlement. The employee can also proceed in this manner to recover the amount provided for in an award where a term of the contract of employment was that the employee would receive the amount payable under an award.

Proceedings for the recovery of a contractual debt are commenced in either a state Magistrates' Court, the County Court or the Supreme Court, depending on the amount in dispute. The time limit is six years. If no wage rate is fixed or agreed, the employee can sue for a reasonable price for the services rendered once the contract has been terminated.

Termination of Employment

Most claims in relation to termination of employment fall into three categories:

  • unfair dismissals under the FW Act;
  • dismissals otherwise prohibited under the FW Act; and
  • common law claims for wrongful dismissal.

This section will deal with unfair dismissals and common law claims for wrongful dismissal.

The "General Protections" section of this chapter deals with dismissals that are otherwise prohibited under the FW Act.

This chapter does not deal with claims under other legislation relating to termination of employment, such as equal opportunity legislation.

Unfair dismissals

Since 1 July 2009 a new system of unfair dismissals has been in operation.

A person has been "unfairly dismissed" under section 385 of the FW Act if all of the following apply:

  • the person has been dismissed; and
  • the dismissal was harsh, unjust or unreasonable; and
  • the dismissal was not consistent with the Small Business Fair Dismissal Code; and
  • the dismissal was not a case of genuine redundancy.

The person must be protected from unfair dismissal to be eligible to apply for a remedy for unfair dismissal.

Harsh, Unjust and Unreasonable

In considering whether a termination was harsh, unjust or unreasonable, the following must be considered (s387, FW Act):

  • whether there is a valid reason for the dismissal connected with the employee's capacity or conduct;
  • whether the employee was notified of the reason relied on by the employer;
  • whether the employee was given an opportunity to respond to the allegations made in relation to the employee's conduct or performance;
  • any unreasonable refusal of the employer to allow the employee a person to assist in discussions related to the termination;
  • if the termination related to performance, whether warnings were given;
  • the degree to which the size of the employer impacted upon the procedures followed in effecting the termination; and
  • the degree to which the absence of dedicated human resource management specialists impacted upon the procedures followed in effecting the termination,
  • as well as other relevant matters.

Case study

In Woodman v the Hoyts Corporation [2001] AIRC 694; (2001) 107 IR 172 (no longer available free online), a full bench of the AIRC reinstated a casual cinema worker who was accused of allowing another off-duty employee to take a company product from the Candy Bar without paying and later lying about the incident. The full bench found that the employee's conduct amounted to a valid reason for termination but that termination in all the circumstances of the case was disproportionate. The employee had not himself participated in the theft and the lie was not premeditated or intended to benefit the employee himself. The AIRC was satisfied "in all the circumstances" that reinstatement was appropriate.

Has the Person Been Dismissed?

For the purpose of section 385 of the FW Act, the person has been dismissed if they were terminated at the initiative of the employer or they were forced to resign because of the conduct or course of conduct of the employer (s386).

A person will not be dismissed, for the purpose of the unfair dismissal provisions, if:

  • they were employed under a contract of employment for a specified period or specified task or specified season and the employment ended at the end of the period, task or season;
  • they were employed under a training arrangement for a specified period or for the period of the training and the employment ended at the end of the training; or
  • they were demoted but the demotion does not involve a significant reduction in their remuneration or duties (s386).

If the person has not been dismissed they would not be able to make out the necessary elements of section 385 of the FW Act for the termination to be an unfair dismissal.

Small Business Fair Dismissal Code

The Minister for Workplace Relations has declared a Small Business Fair Dismissal Code under section 388(1) of the FW Act. A person's dismissal will be consistent with the Code if the employer was a small business employer at the time of the dismissal and the employer has complied with the provisions of the Code in relation to the dismissal (s388, FW Act).

From 1 January 2010, the definition of "small business employer" is a business with less than 15 employees by head count.

The code states that a dismissal will be fair where an employer dismisses an employee where the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Therefore, under the Code, an employer does not need to prove the misconduct actually occurred.

If the employer is a "small business employer" and the employer complied with the provision of the code, the termination will bedeemed to be fair and the elements of an unfair dismissal required for section 385 will not be made out.

If the employer is not a small business employer or a small business employer has not complied with the code in terminating the employee, then the dismissal will not be consistent with the Small Business Fair Dismissal Code and the necessary element of section 385 will be made out.

Genuine Redundancy

A person's dismissal will be a genuine redundancy if both of the following requirements are met (s389, FW Act):

  • the person's employer no longer requires the person's job to be done by anyone because of changes in operational requirements; and
  • the employer in dismissing the employee complied with any consultation obligations in a modern award or enterprise agreement.

Under section 389(2) of the FW Act it would not be a genuine redundancy if it was reasonable to redeploy the person within the employer's enterprise or an associated entity.

If a person's dismissal was found to be due to a genuine redundancy, the person would not be able to make out the required element of section 385 of the FW Act for the dismissal to be an unfair dismissal.

Persons Protected From Unfair Dismissal

To make an application for unfair dismissal the person making the application must be protected from unfair dismissal. Under sections 382 to 384 of the FW Act, a person is protected from unfair dismissal if the following applies to them:

  • The employee has completed a minimum period of employment of:
    one year for an employee of a small business employer (as defined above);
    six months for an employee of a business other than a small business employer.


  • One of the following applies to the employee at the time of termination:
    the employee was covered by a modern award; or
    the employee was covered by an enterprise agreement; or
    the person's income was less than the high income threshold, currently $123,300.


  • If the person was a casual employee of a business other than a small business employer and was employed on a regular and systemic basis for more than six months, and the employee had a reasonable expectation that such employment would continue.

If the person was a casual employee of a small business employer and was employed on a regular and systemic basis for more than one year, and had a reasonable expectation that such employment would continue.


The primary remedy for a dismissal found to be harsh, unjust or unreasonable is to reinstate the employee to the same position or to a comparable position as they held prior to the termination. FWA has the power in certain circumstances to reinstate a worker to an equivalent position with an associated entity of the employer. A reinstated worker can seek an amount representing their lost wages between the date of termination and the reinstatement, and to have all employment benefits continue to accrue without loss of continuity.

Where reinstatement is inappropriate (for example, where the position has been filled by another worker or where tensions in a small workplace would be insurmountable if the dismissed employee returned to work), compensation may be ordered instead of reinstatement. The maximum compensation payable to employees covered by an award is six months wages; and for non-award employees is half the amount of the high income threshold (discussed above in "Persons protected from unfair dismissal") or six months wages, whichever is less.

Procedural Matters

Applications for a remedy for unfair dismissal must be made within 14 days after the day on which the termination took effect, or such period as FWA allows (s394, FW Act). The matters to be taken into account for an extension of time to lodge an application have been codified in section 394(3) of the FW Act. Importantly, the applicant must show that there were exceptional circumstances.

A number of matters must be decided by FWA before the merits of an unfair dismissal are considered. These matters are:

  • whether the application was made within 14 days or such further period as FWA allows;
  • whether the person is protected from unfair dismissal;
  • whether the dismissal was consistent with the Small Business Fair Dismissal Code;
  • whether the person was dismissal because of genuine redundancy.

The first step for a worker who applies for a remedy for unfair dismissal is usually a conciliation conference with the employer at the AIRC. If the matter is not resolved at that stage, it then usually proceeds by way of arbitration. The FW Act gives FWA considerable discretion in relation to the method of finalising the claim.

Appeals to a Full Bench of FWA can be made where there has been an error of law or a significant error of fact.

Costs against a party in an unfair dismissal can only be awarded against an Applicant if an application was made vexatiously or without reasonable cause, or if it should have been apparent to the Applicant that the application had no reasonable prospect of success. Costs will only be awarded against a Respondent if the response to an application was made vexatiously or without reasonable cause, or if it should have been apparent to the Respondent that the response had no reasonable prospect of success (s611, FW Act)

Costs can be awarded against a lawyer or paid agent where they caused the other party to incur costs by some unreasonable act or omission or because they encouraged a person to start or continue a matter when it should have been apparent to them that the person had no reasonable prospects of success (s401).

Common law

Wrongful Dismissal at Common Law

Workers who are not entitled to bring proceedings for unfair dismissal may still be entitled to bring proceedings elsewhere for the wrongful termination of their contract of employment.

If the contract is for a fixed period, it terminates when that period expires; no special notice is required. If the contract is for a fixed period and the contract is terminated by the employer before the end of the fixed period, the employee maybe able to sue fordamages relating to the remainder of the fixed period.

If the contract is not for a fixed period, and the employee is dismissed, or if the employee is dismissed prior to the end of the contract, then there may be an action for wrongful dismissal. In the absence of misconduct or any other circumstances justifying immediate dismissal, the employee is entitled to be given notice in accordance with the written contract of employment (if any), or if there is no express term for the period of notice the employee would be entitled to rely upon an implied term of reasonable notice. The question of what is reasonable will depend on the circumstances (including position, seniority, salary, length of service and age).

An employee who can show that the dismissal was wrongful has a claim for damages. The amount of damages may relate to the wages that could have been earned during the "reasonable" period of notice, taking into account whether the employee has subsequently found work.

Suspension and Stand Down of Employees

Unless specifically authorised by an award or employment agreement, an employer has no general right to suspend employees without pay, but an employee who is not ready, willing and able to work in accordance with the obligations under the contract of employment may not be entitled to be paid.

At common law, an employer does not have the right to stand down employees without pay when they cannot be usefully employed. Unless there is some provision in the contract of employment or award to the contrary, an employer who cannot usefully employ their employees has the alternative of either paying them wages during the period or dismissing them. In dismissing an employee in these circumstances, the employer should take careful note of the unfair dismissal provisions (see: "Unfair dismissals", above).

Some awards permit deductions of pay where employees cannot be usefully employed for reasons such as a strike, a breakdown of machines or a stoppage of work for which the employer cannot reasonably be held responsible.

General Protections

Under the heading "Rights and responsibilities of employees, employers, organisations etcPart 3-1 of the FW Act sets out what it describes as "General Protections". Those general protections encompass some matters formerly contained in the WRA but dealt with under separate parts (for example freedom of association, unlawful termination and coercion with respect to the making of a workplace agreement).

The Explanatory Memorandum to the FW Act describes the purpose of the general protections as ensuring "fairness and representation at the workplace by recognising the right to freedom of association and preventing discrimination and other unfair treatment". The Explanatory Memorandum also makes it clear that Part 3-1 is intended to rationalise, but not diminish, those protections formerly contained in the WRA.

The general protections are relevantly divided into workplace rights, industrial activities, and other protections.  The protections relating to workplace rights broadly include employment entitlements and the freedom to exercise and enforce those entitlements. The protections relating to industrial action broadly include the freedom to be or not to be a member or officer of an industrial association and to participate in lawful activities, including those of an industrial association. The other protections include the taking of adverse action, including dismissal of employees for a range of reasons including their race, colour, sex, age, marital status and other matters. The protections are dealt with separately below.

Workplace rights

One protection provided for by Part 3-1 of the FW Act is a prohibition on a person taking adverse action against another person because the other person:

  • has a workplace right; or
  • has, or proposes to, exercise a workplace right (s340).

"Workplace right" is defined by the FW Act (s341(1)) as including:

  • the entitlement to the benefit of, or a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body;
  • initiating, or participating in, a process or proceeding under a workplace law or workplace instrument; or
  • the ability to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law or workplace instrument or an inquiry in relation to the person's employment.

The FW Act also defines a "process or proceedings under workplace law or workplace instrument" as including:

  • court proceedings;
  • protected industrial action;
  • a protected action ballot; and
  • making, varying or terminating an enterprise agreement and other matters (s341(2)).

"Adverse action" is defined by section 342 of the FW Act. That section sets out a table describing the relevant "adverse action" depending on the different relationships between the relevant parties. If the adverse action is taken by an employer against an employee the adverse action includes:

  • dismissing the employee; or
  • injuring the employee in his or her employment;
  • altering the position of the employee to the employee's prejudice; or
  • discriminating between the employee and other employees of the employer.

Some of the protections provided for by the division dealing with workplace rights (Part 3-1, Div.3) provide more extensive protection than existed under the WRA. For example, the WRA provided protection against action being taken against officers or delegates of an industrial association. Section 341(1)(a) of the FW Act protects persons having a "role or responsibility" under a workplace law, workplace instrument or order made by an industrial body.

Industrial activities

Part 3-1 of the FW Act (s346) also provides that a person must not take adverse action against another person because the other person:

  • is or is not, or was or was not, an officer or member of an industrial association;
  • engages, or has at any time engaged or proposed to engage, in industrial activity;
  • does not engage, or has not at any time engaged or proposed to not engage in industrial activity.

This section provides protection against adverse action taken by reason of a person being an officer or member of an industrial association, or not being an officer or member of an industrial association and taking or not taking industrial action as defined by section 347 of the Act.

Engaging in industrial action is defined by the FW Act to include:

  • organising or promoting lawful activity for an industrial association; and
  • representing or advancing the views, claims or interests of an industrial association and taking part in industrial action.

"Adverse action" may include dismissing the employee, injuring the employee, altering the position of employee to the employee's prejudice or discriminating between the employee and other employees of the employer (see above).

Other protections

Part 3-1 of the FW Act also provides for what were formerly described as "unlawful terminations" (under Div.4 of the WRA).

Section 351 of the FW Act prohibits discrimination on the grounds of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Like the WRA, the FW Act prevents termination on one or more of those grounds. However, the FW Act extends the protection by prohibiting not just termination, but any "adverse action".

Section 352 of the FW Act prevents termination of an employee on the grounds of the employee's temporary absence for illness or injury. That section prohibits only termination on that ground and not any other adverse action.

Compliance and remedies

The FW Act provides a new procedural regime for the commencement of any proceedings alleging a breach of the general protections. Section 365 (read with s371) provides that a person alleging a contravention of Part 3-1 must apply to FWA for it to deal with the dispute (unless an interim injunction is sought). Section 366 provides a time limit of 60 days after any dismissal in breach of the general protections for the making of such an application. Section 369 of the FW Act provides for FWA to issue a certificate if it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. This certificate is necessary prior to any court application in relation to the alleged breach of the general protections.

Under section 371 of the FW Act, a general protections court application must be made within 14 days after the certificate issued by FWA.

Applications alleging a breach of the general protections may be commenced by industrial associations if the industrial association is affected by the contravention, or the person affected is a member, or entitled to be a member, of the industrial association.

The remedies for a breach of the general protections are set out in Part 4-1 of the FW Act. The range of penalties that may be imposed start from $3,300 for an individual to $33,000 for a body corporate (which includes an industrial association). The FW Act also provides that orders may be made by a court on application to it. The court may make orders:

  • granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
  • an order awarding compensation for loss that a person has suffered because of the contravention; or
  • an order for reinstatement of a person.

Wage and Employment Records

An employer is only allowed to deduct income tax, orders for attachment of earnings made by a court, or other deductions that have been authorised by the employee. An employer is not compelled to make requested deductions, however, and may refuse, for example, to pay union dues by automatic deduction. The employee may withdraw an authority at any time by making a written request to the employer.

Under the FW Act and Fair Work Regulations 2009 (see: Part 3-6 of the Regulations) an employer must give the employee a payslip showing:

  • the employer's name and ABN number;
  • the employee's name;
  • the date of payment;
  • the period to which the payment related;
  • ordinary hourly rate and the number of hours worked at that rate (if paid an hourly rate);
  • any special hourly rates (e.g. overtime) and number of hours at that rate;
  • rate of annual salary;
  • gross and net amounts;
  • allowances; and
  • superannuation contributions and fund.

An employer is required to keep certain employment records. An employer is required to keep a record of employees, specifying:

  • whether full-time or part-time;
  • whether permanent, temporary or casual;
  • the gross and net amounts paid;
  • any guarantee of earnings;
  • overtime worked;
  • rate of remuneration;
  • leave entitlements;
  • superannuation contributions; and
  • if terminated, how.

A copy of the record must be given to the employee to whom the record applies, on request.

Contacts and Resources

Work Place Standards Tasmania

Workplace Standards may be contacted by:

Shop Fronts

Rosny Park - 30 Gordon's Hill Road

Launceston - 3rd floor, Henty House, 1 Civic Square

Burnie - 3rd floor, Reece House, 46 Mount Street


1300 366 322 (within Tasmania)
(03) 6233 7657 (outside Tasmania)


(03) 6233 8338


Postal address

Workplace Standards
PO Box 56

Speak and Listen users

Phone 1300 555 727 then ask for 1300 135 513

TTY users

Phone 133 677 then ask for 1300 135 513

National Relay Service

Internet relay users connect to the NRS then ask for 1300 135 513

Tasmanian Trade Unions

A list of Trade Unions in Tasmania is provided on the Tasmanian Government website

Fair Work Ombudsman

There is also a Tasmania specific section on the website.

Send complaint form(s) to:

Fair Work Ombudsman Complaints Assessment Team
GPO Box 2567
Adelaide SA 5001
Fair Work Online
Tel: 13 13 94

Office of the Anti-Discrimination Commissioner, Tasmania

For discrimination or sexual harassment issues in the workplace, see: 

Workplace Health & Safety (WHS)


Many thanks to Samantha Clarke who co-authored this chapter.

Work Safety - a general overview

There are extensive materials on work place safety available on the Worksafe Tasmania website. These materials cover topics from asbestos removal to volunteers. There is also general information on duty of care, consultation changes, health and safety representatives, discriminatory conduct, offences and penalties, regulators and inspectors.

This chapter provides an overview of the area of Work Place Health and Safety law. For more in depth information that that provided here, please go to the Worksafe website, where a number of information sheets have been generated to provide general fact sheets and guides, interpretative guidelines, Codes of Practice, and guides to the work health and safety legislation and regulations.

Work Place Health and Safety is covered by a variety of statutes. The primary Tasmanian legislation is the Work Health and Safety Act 2012, however there are a number of pieces of legislation that apply in Tasmania and are administered by WorkSafe Tasmania. The Tasmanian Act is harmonised with the national legislation.

For resources on work place safety please consult the following:

Guide to the Work Health and Safety Act 2012

Guide for Tasmania's Rural Industry

Volunteers Fact Sheet



Worksafe Tasmania

WorkSafe Tasmania is an amalgamation of Workplace Standards and WorkCover Tasmania and is responsible for regulating workplace standards.  Its aim is to reduce workplace related injury, disease, and death through better safety and health procedures, and the regulation of the rehabilitation process in the event of an accident. WorkSafe Tasmania also aims to engage with the community and provide all the information needed for workplaces: health and safety information, wellbeing guidance, long service leave advice, and information on holidays. The Code of Practices for industries and work types are not summarised here, as information on these Codes is best read at the source.  

The WorkSafe Regulations relevant to employer obligations may be accessed through the WorkSafe Tasmania website.

Duties of PCBUs and officers

The Work Health and Safety Act (WHS Act) uses the term 'person conducting a business or undertaking' (PCBU) in place of employer. 

The bulk of this section is reproduced from the Guide to Work Health and Safety Act 2012.

The WHS Act covers: „

  • people who carry out work in any capacity for a PCBU including workers,
  • contractors,
  • subcontractors,
  • self-employed persons,
  • outworkers,
  • apprentices and trainees,
  • work experience students and
  • volunteers who carry out work „
  • other people at a workplace like visitors and customers at a workplace.

The WHS Act does not cover volunteer associations that do not employ anyone.


Multiple and shared duties (sections 14–16)

A person may have more than one duty. For example, the working director of a company has duties as an officer of the company and also as a worker. A duty cannot be transferred to another person. More than one person may have the same duty, and in this situation, each person retains responsibility and must discharge their duty to the extent to which they have the capacity to influence and control the matter, disregarding any attempts to ‘contract out’ of their responsibility.


A labour hire company hires out its employees to host employers to carry out work for them. Both the labour hire company and the host employer owes a duty of care to those employees. In such cases both are fully responsible for meeting that duty to the extent to which they have capacity to influence and control the matter. It is not possible to ‘contract out’ work health and safety duties.


A principal contractor and a subcontractor for construction work must ensure, so far as is reasonably practicable, the provision of adequate facilities for the welfare of the workers carrying out the construction work. This does not mean that both are responsible for providing the facilities. One may provide the facilities with the other duty holder satisfying themselves that their duty is met because the facilities provided by the other duty holder fulfil their obligations.

Duties of a PCBU Primary duty of care (section 19)

All PCBUs must ensure, so far as is reasonably practicable, the health and safety of: „ workers engaged, or caused to be engaged by the PCBU „ workers whose activities in carrying out the work are influenced or directed by the PCBU, while workers are at work in the business or undertaking. This primary duty of care requires duty holders to ensure health and safety, so far as is reasonably practicable, by eliminating risks to health and safety. If this is not reasonably practicable, risks must be minimised so far as is reasonably practicable. PCBUs owe a similar duty of care to other people who may be at risk from work carried out by the business or undertaking. A self-employed person must ensure their own health and safety while at work, so far as is reasonably practicable.

In detail

Under the primary duty of care a PCBU must ensure, so far as is reasonably practicable: „

  • the provision and maintenance of a working environment that is safe and without risks to health, including safe access to and exit from the workplace „
  • the provision and maintenance of plant, structure and systems of work that are safe and do not pose health risks (for example providing effective guards on machines and regulating the pace and frequency of work) „
  • the safe use, handling, storage and transport of plant, structure and substances (for example toxic chemicals, dusts and fibres) „
  • the provision of adequate facilities for the welfare of workers at work (for example access to washrooms, lockers and dining areas) „
  • the provision of information, instruction, training or supervision to workers needed for them to work without risks to their health and safety and that of others around them „
  • that the health of workers and the conditions of the workplace are monitored to prevent injury or illness arising out of the conduct of the business or undertaking „
  • the maintenance of any accommodation owned or under their management and control to ensure the health and safety of workers occupying the premises. 

Duty to consult, cooperate and coordinate (sections 46–49)

With other duty holders Duty holders with shared responsibilities must work together to make sure someone does what is needed. This requires consultation, cooperation and coordination between duty holders.

For example, there may be a number of different duty holders involved in influencing how work is carried out (that is suppliers, contractors and building owners). If more than one person has a health and safety duty for the same matter, they must consult, cooperate and coordinate activities, so far as is reasonably practicable, in relation to the matter. Each must share health and safety information in a timely manner and cooperate to meet their shared health and safety obligations.

The duty to consult does not require agreement, although each duty holder retains responsibility for discharging their health and safety duty.

With workers and their representatives

Each PCBU must, so far as is reasonably practicable, consult with workers and HSRs (if any) about matters that directly affect them. This duty extends to consulting with all kinds of workers not just the PCBU’s own employees, including any contractors and their workers, employees of labour hire companies, students on work experience, apprentices and trainees.

Duty of PCBUs with management or control of workplaces

A PCBU with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace and anything arising from the workplace does not put at risk the health or safety of any person.

Duty of PCBUs with management or control of fixtures, fittings or plant at workplaces

A PCBU with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant do not put at risk the health and safety of any person. A PCBU that installs, erects or commissions plant or structures must ensure all workplace activity relating to the plant or structure (including its decommissioning or dismantling) is, so far as is reasonably practicable, without risks to health and safety.


Officers of corporations and other organisations must manage corporate risks — including work health and safety risks. An officer of a PCBU must exercise due diligence to ensure the PCBU complies with its health and safety duties. This duty relates to the strategic, structural, policy and key resourcing decisions; that is, how the place is run. Due diligence includes taking reasonable steps to: „

  • acquire and keep up to date knowledge on work health and safety matters „
  • understand the nature and operations of the work and associated hazards and risks „
  • ensure the PCBU has, and uses, appropriate resources and processes to eliminate or minimise risks to work health and safety „
  • ensure the PCBU has appropriate processes to receive and consider information about workrelated incidents, hazards and risks, and to respond in a timely manner „
  • ensure the PCBU has, and implements, processes for complying with its duties and obligations (for example, reports notifiable incidents, consults with workers, complies with notices, provides appropriate training and instruction and ensures HSRs receive training entitlements) „
  • verify the provision and use of the relevant resources and processes.

An officer may be charged with an offence under the WHS Act whether or not the PCBU has been convicted or found guilty of an offence under the Act. For further information refer to the interpretative guideline on officers available on the Work Safe Australia website


Duties of Employees and others

Duties of workers (section 28)

While at work, workers must: „ take reasonable care for their own health and safety and that of others who may be affected by their actions or omissions „ comply, so far as they are reasonably able, with any reasonable instruction given by the PCBU to allow the PCBU to comply with WHS laws „ cooperate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers.

Duties of other people at the workplace (section 29)

Similar duties apply to other people at a workplace, such as customers and visitors. They must take reasonable care of their own health and safety and that of others who may be affected by their actions or omissions. They must also comply, so far as they are reasonably able, with any reasonable instruction that is given by the PCBU to comply with WHS laws.


Workers' Compensation

Workers Rehabilitation and Compensation Act 1988 (Tas)

The Workers Compensation Act 1927 (Tas) covers those who have been injured at work prior to the 15th November, 1988. This Act has been repealed, and replaced with the Workers Rehabilitation and Compensation Act 1988 (Tas), which applies to all those persons injured at work after the 15th of November 1988. However, the Workers Compensation Act 1927 continues to apply for workplace injuries before this date (s4(4) of the 1988 Act).

If a person is seeking to begin an action under the 1927 Act, it is best to seek legal advice.

Employees of the Commonwealth Government are covered by the Commonwealth Safety Rehabilitation and Compensation Act 1988 (Cth), and members of the Defence Forces are covered by the Military Rehabilitation and Compensation Act 2004 (Cth). Only the Safety, Rehabilitation and Compensation Act is discussed here, and only briefly.

To obtain compensation, it is not necessary to prove fault or negligence by the employer, and there are only limited circumstances where employees' own acts will deprive them of compensation.

Compensation is payable to ‘workers’. ‘Worker’ means any person who works under a contract of service or training with an employer.

The Act does not apply to:

  • persons covered by the Commonwealth Safety Rehabilitation and Compensation Act 1988;
  • employees whose employment is of a casual nature and who are employed otherwise than for an employer's trade or business;
  • outworkers;
  • a domestic servant who has not completed 48 hours of employment at the time of injury; or
  • a member of a crew of a fishing boat remunerated wholly or mainly by a share in the profits of the boat.

Police officers are covered under the Act. The Act does not cover persons who are contestants in sporting activities except in very limited circumstances (s7) but may apply to clergymen in some circumstances and to volunteer firefighters and ambulance officers.

The Act set up a system of compulsory insurance. All employers must insure with an insurer. There are limited rights available to employers to become self-insurers, but only the largest employers can usually do this. If an employer is uninsured, an injured employee may claim against the Nominal Insurer, a scheme to which all participatory insurers contribute. The Nominal Insurer is then entitled to recover from the employer the amount of any compensation paid.


The definition of ‘worker’ prevents employers pretending that workers are really contractors. The Act says that where the employer employs a contractor to perform work of more than $100 and the work is not part of a more general trade or business carried on by the contractor in the contractor's own name, then the contractor is deemed to be an employee (s4B). However if the person has taken out their own personal injury insurance they are to be treated as an independent contractor.

The definition of injury includes a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or disease (s3).

The Commonwealth Acts

The Safety Rehabilitation and Compensation Act 1988 (the Commonwealth Act) covers Commonwealth employees, the Military Rehabilitation and Compensation Act 2004 (Cth) covers members of the Defence Force who are injured at work if the injury results in death, incapacity for work or impairment.

Employees of the Commonwealth government of Australia, or a prescribed authority of the Commonwealth (such as Telstra) can claim workers compensation against the Commonwealth. The rights are similar to those available at state level – weekly payments, lump sums for permanent impairment, medical and other expenses, death benefits, rehabilitation and access to common law damages.

The procedure to be followed is as follows: the worker must lodge a claim form with their employer. The employer passes this on to Comcare, or in the case of a licensed authority, such as Telstra, this is a matter handled internally. The matter is then investigated and a determination is made.
A determination can either be an acceptance or denial of liability. An acceptance will lead to a calculation of the compensation payable. A denial may result in the termination of any payments that were being made, or the rejection of any other associated claims, such as a lump sum or death benefit claim.

Two avenues of appeal are available. An employee may request a reconsideration from Comcare or the licensed authority. If the rejection is affirmed, then the worker has recourse to the Commonwealth Administrative Appeals Tribunal.

As with state compensation, it is recommended that a person seek legal advice from a legal representative recommended or employed by their trade union, or a legal representative of their own choosing.

When Is Compensation Payable?

Under the Workers Rehabilitation and Compensation Act 1988 (Tas) a worker is entitled to compensation if they suffer an injury, not being a disease, arising out of and in the course of their employment, or a worker who suffers an injury that is a disease, arising out of and in the course of their employment, and to which their employment contributed to a substantial degree. The Act therefore covers all injuries and diseases arising out of, and in the course of, employment provided the employment was a substantially contributing factor.

The 1988 Act was intended to overcome the problem under the 1927 Act where a worker was not entitled to compensation in respect of a disease, (particularly industrial deafness), unless the worker was disabled for work. Section 73 does not exclude a worker from compensation where the worker has not lost any earning capacity. It is the deafness itself that is compensated.

There is a Schedule of diseases in the Act (Schedule 4) which provides that, if a worker has been employed in work of a type referred to in the Schedule, it will be presumed, in the absence of evidence to the contrary, that the disease arose out of and in the course of employment, and that the employment contributed to a substantial degree to that disease. For example it will be presumed that pneumoconiosis caused by silica dust was caused by work involving exposure to inhalation of silica dust.

Some comment should also be made on the phrase ‘arising out of or in the course of employment’. This covers an injury caused by or connected with work. Compensation is not restricted to injuries that happen whilst an employee is working, but is payable for injuries occurring in circumstances related to the job. Thus, where an employee is injured while doing something that an employer could reasonably have expected or anticipated or authorised the employee to do, such an injury may be said to have occurred ‘in the course of employment’. The Act specifically provides that an injury is deemed to have occurred arising out of or in the course of employment if it occurs in the following circumstances:

  • where the accident occurs when a worker engaged in port or harbour operations attends an arranged place for the purpose of being selected and engaged in employment;
  • while a worker on any working day has attended their place of employment pursuant to the contract of employment and is present at their place of work.

If a worker is injured in a motor vehicle accident whilst travelling to or from work they are entitled to the same compensation from MAIB as any other citizen pursuant to the Motor Accidents (Liabilities & Compensation) Act 1973 (Tas); but they are not entitled to workers compensation.


Section 67 of the Workers Rehabilitation and Compensation Act 1988 (Tas) provides that if a worker dies as a result of a work injury leaving dependants wholly dependent upon them, their dependents will receive an amount reflected in 415 units. Partially dependent spouses or children will be compensated at no more than 415 units, in accordance with what is reasonable and proportionate in the circumstances – to be determined by the Tribunal.

A de facto wife or husband is regarded as a dependent if s/he has lived with the worker in a permanent and bona fide domestic relationship for not less than three years immediately preceding the death of a worker.

A spouse or caring partner will also receive weekly payments in case of death, at the same rate as the deceased worker would have received if the worker had been totally incapacitated. A dependent child is entiteld to weekly payments determined on the basis of 15% of the basic salary, beginning at 13 weeks after the date of death.

The spouse will receive payments for two years after the date of death at the following rates:

  • 100% for the first 26 weeks following the date of death;
  • 90% for the weeks 26 through to 78 weeks
  • 80% from the period 78 weeks to 2 years.

The reasonable funeral and burial costs of a worker will be paid by the employer (s75(1)(b)).

Incapacity for Work

Where a work-caused injury or disease results in incapacity for work, weekly compensation benefits are payable during the period of incapacity. Incapacity may be total or partial.

Total incapacity for work is where a worker is unfit for any work for which they are qualified. Where a worker is fit for some form of work for which they are qualified, but not all such work, they are partially incapacitated.

Determination of Impairment

Workers who claim for partial and permanent impairment are also assessed under the same American Medical Association tables and the worker must have more than a 5% whole person impairment before they can make a claim (s71). Under 5% no compensation is paid. From 5% - 70%, there is a formula for the amount compensated. Over 70%, compensation is 415 units.

The Act enables an employer more than 12 months after the worker started receiving payments, to serve a notice on the worker requiring them to commence action for damages. If they do not do so within the time set, this will extinguish any future claim (s136).

There are guidelines that apply before and after 1 April 2011. The guidelines for claims after 1 April 2011 and the guidelines for before 1 April 2011 are both available online.

When Compensation is NOT Paid

A worker will not be entitled to compensation if the injury is a result of their own serious and wilful misconduct (s25(2)(a)). In practice it is not usually difficult to prove that misconduct has been serious, but it is difficult to demonstrate that the action was wilful or deliberate. This defence is unavailable if the injury has resulted in serious and permanent disablement, or in death.

Common Law Entitlements

The right to obtain damages at common law has been substantially reduced because the worker can only get common law damages if they have suffered not less than 20% impairment of their whole body (s138AB). That level of impairment is to be determined by using guides from the American Medical Association Assessment of Impairment Tables (4th Edition) as modified by the Work Cover Board.

Claiming Compensation - What and How

Forms of Compensation

When an employee is injured at work there are two remedies available, depending on the circumstances. They are:

  • workers compensation benefits; and
  • the right to claim damages.

Sometimes both remedies are available, but the employee will only be able to keep one form of benefit and will have to refund (with certain limited exceptions which will be discussed) any other benefits that were received.

Social security payments may also be available pending the resolution of disputed workers compensation and damages claims, but these too may have to be refunded.

How to Claim

An injured worker must notify the employer either verbally or in writing of the accident as soon as possible and before the worker has voluntarily left employment (s32Workers Compensation and Rehabilitation Act 1988 (Tas)). Notice may be given after the worker has voluntarily left employment where the injury is one contracted by gradual process (s80).

While the claim for compensation must be made within six months of the accident, failure to make a claim within six months or to give notice of the injury will not be fatal if the failure resulted from mistake (but not ignorance) or other reasonable cause.

Usually the employer will require the employee to complete a claim form, and will submit that to the insurance company together with a form completed by the employer. The insurance company will then investigate the claim. It may use an investigator to assess the circumstances of the accident and to obtain medical evidence. The failure of a worker to cooperate with the insurance company to obtain medical certificates from the doctors who have treated them, will result in delays in dealing with the claim. A claim for compensation shall be in the prescribed form and accompanied by a prescribed certificate from a medical practitioner.

Where a claim is denied by an insurance company, the worker may take action in the Workers Compensation Tribunal. In the event that the employer does not pay compensation or does not refer the dispute to the Tribunal, the worker can refer the dispute to the Tribunal.

An employer, on receiving a claim for compensation, can dispute or pay the claim. If the claim is disputed, the employer or insurer must notify the worker of the dispute, in writing, and refer the dispute within 28 days to the Tribunal and seek a stay on payments of compensation pending the hearing of the dispute (s77AA). If the employer does not refer the dispute to the Tribunal within the prescribed time period the employer will be bound to make weekly compensation payments (ss81AB and 81AC).

Defences Available to Employers


Some typical grounds of defence relied on by employers are:

  • denial of the injury;
  • denial of the injury coupled with the defence that (if an injury was received) it did not arise out of or in the course of the worker's employment with the employer;
  • that the employer has paid to the worker all compensation to which they are entitled;
  • that there was no incapacity; and/or
  • that any incapacity is unrelated to the worker's employment.

Medical Examinations and Medical Expenses

Medical Examinations

Medical panels may be used to determine medical disputes (s50Workers Compensation and Rehabilitation Act 1988 (Tas)). If a dispute goes to a medical panel, the determination of that panel (where 2 or more members are in agreement) will be conclusive. If there is no agreement the question is to be returned to the Tribunal. Normally representatives of a worker will not appear before a medical panel although the worker is entitled to have someone accompany them (s53). Medical panels are rarely used.

Workers and employers are entitled to chose a medical examiner. An employer can only chose an independent medical examiner in circumstances where they have discussed the reasons for doing so with the worker’s primary treating medical practitioner, and have also informed the worker in writing of their reasons for reviewing the medical condition of the worker (s90A). An independent medical review cannot be conducted more than once every three months (s90A(5)). This does not apply where there are multiple injuries and a medical pracitioner specialises in a different field or different aspect of the injury than a previous examiner (s90A(6)).

A report of the independent medical examination requested by an employer must be provided by the independent examiner to the primary medical practitioner of the worker. There does not appear to be a time limit on this, however, once a report is provided to the employer, and the worker’s primary medical treatment practitioner, the primary practitioner must provide a copy to the worker within 7 days of receiving the report (s90B). In practice, insurance company doctors do not provide reports to the worker’s GP, but to the insurance company lawyer.

Medical Expenses


Recoverable medical expenses must be reasonable, and necessarily incurred by the worker as a result of his injury (s75(1)(a)). The Act determines that:

  • an employer is required to pay the costs of any medical, hospital, nursing, and ambulance services reasonably incurred by a worker by reason of the injury, or the disease;
  • where a worker dies from the injury or disease, the employer has to pay the reasonable burial or cremation costs;
  • the costs of repair or replacement of crutches; artificial limbs; legs; teeth; glasses or hearing aids destroyed as a result of an accident must be paid by the employer.

Hospital and medical services paid under the Acts include:—

  • treatment at any hospital;
  • costs of any fares or travelling expenses reasonably necessary in obtaining any hospital service;
  • treatment by a medical practitioner, dentist, masseur, chiropodist, psychologist or optometrist;
  • the provision of crutches or artificial members, eyes, teeth, spectacles or hearing aids;
  • surgical aids to rehabilitation;
  • pharmaceutical provisions;
  • travelling expenses and maintenance necessarily and reasonably incurred in obtaining any medical service.

The Act emphasises rehabilitation of injured workers, and an employer is required to pay the cost of rehabilitating an injured worker.
Where a worker has been incapacitated for a period exceeding 12 weeks, or suffers an incapacity of a permanent nature which is likely to prevent them from returning to their pre-accident employment, the employer is required to set up a rehabilitation program to be undertaken by the worker and to keep the worker's job open for the worker for a period of 12 months.

In the event that the proposed rehabilitation program is not suitable, the Workplace Safety Board may direct the employer to take such action or adopt or provide such rehabilitation programs as it considers necessary.
Reasonable medical expenses are only payable for 52 weeks after the worker’s entitlement to weekly payments in respect of any injury ceases (s75(2)).

If the worker’s treating doctor recommends a medical procedure and the insurance company refuses to pay, the Tribunal has jurisdiction to order the insurance company to pay (s77).



Lump Sum Payments for Permanent Injuries


A lump sum payment is made if a worker suffers injuries that are of a permanent nature such as the loss or use of a limb or the loss of an eye. Section 71 of the Workers Compensation and Rehabilitation Act 1988 (Tas) sets out the formulas to be used to determine the amount. Here is an example:

{18+[6.1x(WPI-5)]} x BS
WPI is the percentage of whole person impairment
BS is the basic salary

To do the equation we need some facts. At 3rd January, 2016, Harry has been assessed as having 15% WPI. His basic salary is not what he earns but what is determined by legislation. This amount changes annually. The yearly amounts can be found here. In 2016, the BS was $826.53. To do the equation, start with the numbers inside the innermost brackets. The equation would be:

{18+[6.1x(15-5)]} x BS
15-5 = 10
6.1 x 10 = 61
18 + 61 = 79
79 x 826.53 = $65,295.87

A lump sum payment is in addition to any other benefit under the Act (s71(1)).

Workers who lose part or all of a finger or toe, or are assessed at less than 5% of whole person impairment have their lump sum assessed with a different formula:

3.2 x BS x WPI

So, Harry is again involved, but this time he has been assessed as 4% WPI:

3.2 x 826.35 x 4 = $10,577.28

Permanent psychiatric impairment of between 10% and 70% is assessed according to the first formula. Less than 10% receives no compensation. For workers who experience either permanent physical or psychiatric impairment of greater than 70%, the lump sum is the equivalent of 415 units (a unit is a BS). The current unit value is $826.53, and this is subject to yearly change. If Harry were to be assessed at 10% WPI, he would receive:

48.5 x 826.53 = $40,086.71

Other years have different values for the unit.

Assessments for WPI are deliberately kept low. Above the knee amputation is only 40% WPI.  The situation is worse for backs; paraplegics may only get 45% WPI.  Disc replacement may be 15%.

Weekly Payments of Compensation


Section 81 provides that compensation is now payable from the date the claim is received and must be paid within 14 days. The employer can still dispute a payment within 84 days of receiving the claim (s81A) but the worker will get payments of compensation whilst the application to dispute the matter is heard. If the employer can prove that the dispute is genuine then the payments of compensation will be suspended (s81A(3)).

Weekly payments are paid where there is total or partial incapacity for work as the result of a compensable injury or disease at the relevant compensation rate. In the case of death, weekly payments are also payable to the surviving dependents of the worker.

Where there is partial incapacity, the employer must pay the difference between the worker’s normal weekly earnings, and the amount the worker has been able to earn in employment suitable to the partial incapacity. Where a worker is partially incapacitated for work and proves to the satisfaction of the Workers Rehabilitation and Compensation Tribunal that they have taken all steps to obtain employment and cannot find employment wholly or mainly as a consequence of the injury, the Tribunal may treat the partial incapacity as a total incapacity.

The compensation rate (see section 69) is the greater of either the normal weekly earnings of the worker for the 12 month period preceding the commencement of the period of incapacity, or the ordinary time rate of pay of the worker for the work in which they were engaged immediately before the period of incapacity. The amount to be paid is that which is greater.

The worker receives:

  • 100% of the weekly compensation rate for the first 13 weeks.
  • 85% of the weekly compensation rate for up to, but not exceeding 78 weeks after the initial 13 weeks.
  • 80% of the weekly compensation rate for the period of incapacity exceeding 78 weeks.

The periods for which benefits are payable range from between 9 years to retirement age. It is:

  • 9 years where there is permanent impairment of less than 15%, or the impairment is not assessed;
  • 12 years if the impairment is between 15% and 20%;
  • 20 years if the impairment is between 20% and 30%;
  • until retirement if the impairment is assessed at 30% or more (s69B(1)(c)).

Weekly payments or compensation for claims prior to 1 July 2001 are payable for any period of incapacity arising out of an injury or disease. There is no time limit once the initial claim for compensation has been made. So for instance a person may have been injured in 1985 and been on the workers compensation for six months and then had a flare up of the same injury in 1999 and can again claim workers compensation. However when a worker has reached the maximum entitlement to weekly payments they are not entitled to any further weekly payments, although they will still be entitled to the other benefits under the Act such as payments of medical accounts. When payments of weekly compensation have been exhausted, the worker should apply for an income-support payment from Centrelink.

An employer's liability to pay compensation ceases, if the injury occurred before the worker attained the age of 64, when the worker attains the age of 65 years. If the injury occurred after the worker attains the age of 64, workers compensation weekly payments are payable for up to one year after the injury occurs (s87). It is possible for the Tribunal to order the payments of weekly compensation be continued beyond these periods if the worker would have been employed beyond the age of 65 years.

A worker who leaves Tasmania can still receive workers compensation but must provide proof of continuing incapacity and current address and identity.

Termination of Payments

Section 86 of the Act provides that an employer may terminate or diminish weekly payments of compensation in the following cases:

  • where the worker is being paid for total incapacity and has returned to work;
  • where the worker in receipt of a weekly payment in respect of partial incapacity is receiving weekly payments in excess of the amount upon which the amount of weekly payments was determined;
  • where a medical practitioner has certified that the incapacity of the worker is no longer due wholly or substantially to the injury, or that the worker has wholly or substantially recovered from the effects of the injury in respect of which compensation is paid;
  • where the worker has been paid the limit of weekly compensation under the Act.

Any and all disputes are referred to the Workers Compensation Tribunal.

Employers cannot terminate or diminish payment of compensation without notice to the worker and provides a method by which the worker can dispute a termination or the diminishing of payments (s86(3)-(4)). Workers who have their weekly payments terminated should immediately seek social security payments, as there will usually be a long delay before the issue of entitlement to compensation is determined.

Legal Advice and Resources

Legal Advice

Proceedings are commenced in the Workers Rehabilitation & Compensation Tribunal. It would be beneficial for the worker to seek legal advice. In many cases, the worker's trade union will recommend an appropriate lawyer and will give legal assistance by paying the worker's legal costs. Alternatively the worker can approach a lawyer themselves and that lawyer may accept the case on a ‘no win no fee’ basis. See the section on legal advice to ensure that you are consulting a lawyer who specialises in the area of personal injury law.

Costs and Legal Representation

An order for costs will be made against the unsuccessful party to any workers compensation proceedings. If a worker loses their action for workers compensation they will have to pay their employer's legal costs.

A party to a proceeding before the Tribunal may, with the approval of the Tribunal, be represented by a person of the worker's choice. The Tribunal will as a matter of course grant leave for a party to be legally represented.

Interest is not payable on compensation even if the worker is successful in their proceedings. Interest paid by a worker on any loans taken out to assist with living expenses while they are without weekly payments of compensation is not recoverable.

Workers who receive income support payments from Centrelink may have to repay some or all of the payments out of a successful or settled claim.

Online Resources

There are some excellent online resources available with information about Workers Compensation. The Aussie Legal website provides information, as does Safe Work AustraliaWork Cover TasmaniaWorkers Compensation Tasmania and Workplace Standards Tasmania.


This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.