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Employment Law

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This publication provides a full overview of employment law agreements and handling disputes.

2 Matter Plans

Overview

The commentary includes guidance on employment contracts, employee entitlements, statutory compliance, policies and procedures, and personal grievance claims. It also covers discrimination, harassment, and bullying.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents. The comprehensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter.

Also included is 101 Employment Law Answers, which is a useful reference guide.

Precedents in this publication include:

  • Individual, executive, and casual employment agreements;
  • Contractor agreements and service agreements;
  • Letters for termination of employment and redundancy;
  • Unfair dismissal precedents – acting for the employer and the employee.
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2 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Employment
  • Folder icon Reference materials
    • Item icon AI Prompts
      An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...

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    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon 101 Employment Law Answers
    • Item icon 101 Subpoena Answers
    • Item icon 101 Costs Answers
    • Folder icon Papers and articles - Employment
      • Item icon Plain language – A paper by the Hon. Michael Kirby AC CMG
    • Item icon Further information
  • Item icon Overview and limitation periods
    The legal relationship of employer and employee can be distinguished from other legal relationships, such as principal and contractor or principal and agent. At the heart of the employment relationship is the work-wages bargain in which an employee sells their labour in exchange for the payment of ...

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  • Item icon Legislation
    Federal Applicable legislation includes:

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Employment
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Retainer instructions - Employment
    • Item icon Conflict of interest check
    • Item icon Letter to employee with costs agreement
    • Item icon Letter to employer with costs agreement
    • Folder icon Library of costs agreements
      • Folder icon Australian Capital Territory
        • Item icon Costs agreement - ACT
        • Item icon Scope of work - Employment - Contract
        • Item icon Scope of work - Employment - Unfair dismissal
      • Folder icon New South Wales
        • Item icon Costs agreement - NSW
        • Item icon Scope of work - Employment - Contract
        • Item icon Scope of work - Employment - Unfair dismissal
      • Folder icon Northern Territory
        • Item icon Costs agreement - NT
        • Item icon Scope of work - Employment - Contract
        • Item icon Scope of work - Employment - Unfair dismissal
      • Folder icon Queensland
        • Item icon Initial letter to client enclosing costs agreement
        • Item icon Costs agreement - QLD
        • Item icon Scope of work - Employment - Contract
        • Item icon Scope of work - Employment - Unfair dismissal
        • Item icon Abbreviated costs disclosure - Costs under $3000
      • Folder icon South Australia
        • Item icon Costs agreement - SA
        • Item icon Scope of work - Employment - Contract
        • Item icon Scope of work - Employment - Unfair dismissal
      • Folder icon Tasmania
        • Item icon Costs agreement - TAS
        • Item icon Scope of work - Employment - Contract
        • Item icon Scope of work - Employment - Unfair dismissal
      • Folder icon Victoria
        • Item icon Costs agreement - VIC
        • Item icon Scope of work - Employment - Contract
        • Item icon Scope of work - Employment - Unfair dismissal
      • Folder icon Western Australia
        • Item icon Costs agreement - WA
        • Item icon Scope of work - Employment - Contract
        • Item icon Scope of work - Employment - Unfair dismissal
        • Item icon Standard costs disclosure form for clients - Fees under $3000
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
      • Item icon Standard annexure note for documents
  • Folder icon B. Employment agreements
    • Item icon Employment relationships
      Employee or independent contractor A contract of employment is a contract of service. An agreement between a principal and an independent contractor is a contract for services.

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    • Item icon Awards
      Applicability and effect of awards A modern award is an enforceable statutory instrument created by the Fair Work Act 2009 that sets out the minimum conditions of employment for the employees it covers. The Fair Work Commission’s annual minimum wage review is the main method by which wages in ...

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    • Item icon The Fair Work system and minimum employment conditions
      Modern awards, the NES, and the Federal Minimum Wage Order make up the safety net under the Fair Work Act 2009. In respect of modern awards, the Act sets out the terms that may, must, and must not be included. In summary, the terms that must or may be included in a modern award are:

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    • Item icon The National Employment Standards
      The National Employment Standards (NES) are minimum standards applying to the employment of all national system employees irrespective of industry, occupation, or income, and commenced operation on 1 January 2010. The NES are set out in Part 2-2 of the Fair Work Act 2009. They apply ...

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    • Item icon Other rights and entitlements
      Paid parental leave The Paid Parental Leave Act 2010 created a federal government Parental Leave Pay scheme, administered by Services Australia. A claim for payments is made to Centrelink, not the employer.

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    • Item icon Employment agreements
      The leading Australian employment law cases highlight the importance of written contracts to underpin the relationships of both independent contractors and employees. Instructions will typically come from an employer to prepare an agreement, or an employee to review one.

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    • Item icon Enterprise agreements
      An enterprise agreement is a collective, rather than individual, agreement negotiated between the employer and the relevant bargaining representatives for their employees: for example, employee groups or unions. Provisions about the enterprise bargaining process are contained in Part 2-4 of ...

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    • Item icon Standard individual employment agreement
    • Item icon Executive employment agreement
    • Item icon Casual employment agreement
    • Item icon Employee restraint clause
    • Item icon Fair Work Information Statement - Fair Work Ombudsman
    • Item icon Casual Employment Information Statement - Fair Work Ombudsman
    • Item icon Fixed Term Contract Information Statement - Fair Work Ombudsman
    • Folder icon Acting for the employer
      • Item icon Letter to employer with draft employment contract
      • Item icon Letter to employee submitting employment contract
      • Item icon Letter to employee submitting fixed term employment contract
      • Item icon Letter to employer with signed agreement contract for signing
      • Item icon Letter of offer
      • Item icon Letter of offer for an apprentice
      • Item icon Letter to employee refusing request for flexible working arrangements
      • Item icon Letter to employee accepting request for flexible working arrangements
    • Folder icon Acting for the employee
      • Item icon Letter to employer with changes to contract or agreement
      • Item icon Letter to employer - Recovery of unpaid entitlements
      • Item icon Letter to employer requesting flexible work arrangements
  • Folder icon C. Non-employment agreements
    • Item icon Employee or independent contractor
      A contract of employment is a contract of service. An agreement between a principal and an independent contractor is a contract for services. An employee is in the service of their employer and performs work in accordance with their contract of service. An independent contractor operates a ...

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    • Item icon Commission-only agreements
      Generic commission-only employment agreements are problematic. Unless a modern award specifically permits it, commission-only arrangements are best avoided due to the complicated legal issues involved. Non-award-covered employees are still covered by the Australian minimum wage which requires the ...

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    • Item icon Independent contractor agreement - Concise
    • Item icon Independent contractor agreement - Extensive
    • Item icon Subcontractor agreement
    • Item icon Subcontractor's statement
    • Item icon Subcontractor's statement all states except NSW
    • Item icon Manufacturer distributor agreement
    • Item icon Medical centre licence agreement
    • Item icon Development service agreement
    • Item icon Service agreement
    • Item icon Agreement for supply of goods and services
    • Item icon Enterprise management agreement
    • Item icon Letter to principal with draft independent contractor's agreement
    • Item icon Letter to independent contractor submitting contractor's agreement
    • Item icon Letter to independent contractor with amended contractor's agreement to sign
  • Folder icon D. Termination
    • Item icon Termination
      An employment relationship can end in many ways, unilateral, mutual, or by external factors. In the case of a maximum-term employment contract, it may end by the effluxion of time, not by a particular act of a party. A purported termination may be valid or invalid, lawful, or unlawful, depending on ...

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    • Item icon Notice
      Generally, if an employer or employee seeks to terminate the employment relationship, it will require one of the parties to give notice. An exception is in circumstances of serious misconduct, which gives the employer a right to dismiss an employee without notice. This is known as instant or ...

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    • Item icon Small business fair dismissal code
      Under the national workplace system, there are specific unfair dismissal laws for small businesses and their employees. A small business employer is one that employs fewer than 15 employees based on a headcount, irrespective of hours worked. The headcount includes casuals employed on a regular ...

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    • Item icon Redundancy
      The NES provide an entitlement to a redundancy payment if an employee becomes redundant. Redundancy pay is set out in a scale, which is based on years of service and payable up to 16 weeks: s 119. Redundancy pay is calculated on the employee’s base rate of pay for their ordinary hours of ...

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    • Item icon Deed of settlement - Redundancy
    • Item icon Restraint clauses
      Once an employment relationship ends, an employee is free to compete with their former employer unless they are bound by a valid restraint of trade clause. However, generally such clauses are unenforceable and void unless they satisfy the test of reasonableness. To be enforceable, the restraint ...

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    • Item icon Transfer
      As a business grows or changes over time it may become necessary for an employer to redeploy their existing workforce in a way that changes the existing rates of pay or job descriptions of their employees. The most common example of this is a business which is expanding through merger, acquisition ...

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  • Folder icon E. Employment disputes
    • Item icon Online lodgement service – Fair Work Commission
    • Item icon Employment disputes
      Employee clients Matters are often urgent due to strict time limits. Detailed instructions are required from the outset.

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    • Folder icon Employee conduct and performance
      • Item icon Employee conduct and performance
        At common law the ordinary relationship of employer and employee involves implied duties of loyalty, honesty, confidentiality, and mutual trust: Kirby J, in Concut Pty Ltd v Worrell [2000] HCA 64 at [51]. For an employee, these include:

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      • Item icon Letter to client suggested wording for letter of warning to employee
      • Item icon Letter to client suggested wording for letter of suspension to employee
      • Item icon Letter to client suggested wording for letter directing employee to attend a misconduct interview
      • Item icon Letter to client suggested wording for letter of termination due to misconduct or unsatisfactory performance
      • Item icon Contract and employment status disputes
        Under the Independent Contractors Act 2006, some types of contracts of services can be reviewed by the Federal Circuit and Family Court of Australia (Division 2) or the Federal Court on the basis that the contract is either unfair, harsh or both: s 12. Section 3 states that one of ...

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      • Item icon Restraint clauses
        Once an employment relationship ends, an employee is free to compete with their former employer unless they are bound by a valid restraint of trade clause. However, generally such clauses are unenforceable and void unless they satisfy the test of reasonableness. To be enforceable, the restraint ...

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      • Item icon Solicitation of clients
        Solicitation occurs when an ex-employee directly or indirectly requests, persuades or encourages clients of their former employer to transfer business to their new employer. The onus of proof lies with the ex-employer when pleading claims regarding non-solicitation clauses or breaches of ...

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    • Folder icon Unfair dismissal
      • Item icon Unfair dismissal claims
        A claim for unfair dismissal, either under the Fair Work Act 2009 or at common law, depends on analysis of the law and the facts relating to the specific employment relationship. The Fair Work Commission has jurisdiction for unfair dismissal claims with regard to employees protected under the Act.

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      • Item icon What the Fair Work Commission considers
        The commission, in determining whether the termination of an employee was harsh, unjust or unreasonable as required by s 387 of the Fair Work Act 2009 will consider the following factors:

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      • Item icon Claims procedure
        The following steps describe the claims procedure:

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      • Item icon Remedies for unfair dismissal
        If the Fair Work Commission determines an employee was unfairly dismissed:

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      • Item icon Costs orders
        The ability to obtain a costs order for litigation under the Fair Work Act 2009 is considerably narrower than for general litigation. Section 611(1) provides that parties generally bear their own costs in relation to a matter before the Fair Work Commission.

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      • Folder icon Acting for the employee
        • Item icon Letter to employer making claim for unfair dismissal
        • Item icon Letter to Fair Work Commission with application for unfair dismissal remedy
        • Item icon Unfair dismissal application
        • Item icon Notice that a person: (a) has a lawyer or paid agent; or (b) will seek permission for lawyer or paid agent to participate in a conference or hearing
        • Folder icon If required - Waiver of application fee
          • Item icon Waiver of application fee
      • Folder icon Acting for the employer
        • Item icon Letter to Fair Work Commission with response to application for unfair dismissal remedy
        • Item icon Employer's response to unfair dismissal application
        • Item icon Notice that a person: (a) has a lawyer or paid agent; or (b) will seek permission for lawyer or paid agent to participate in a conference or hearing
        • Folder icon If required - Security for costs
          • Item icon Application for security for payment of costs
    • Folder icon General protections claims
      • Item icon General protections claims
        The Fair Work Act’s general protections provisions in Part 3-1 of Chapter 3 cover:

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      • Item icon Sham contracts
        Where an employee is moved from an employment agreement to an independent contractor agreement but continues to be treated and conduct themselves as an employee, it is likely that the contractor agreement will be seen as a sham contract. Division 6 of Part 3-1 of the Fair Work Act 2009 ...

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      • Item icon Costs orders
        The ability to obtain a costs order for litigation under the Fair Work Act 2009 is considerably narrower than for general litigation. Section 611(1) provides that parties generally bear their own costs in relation to a matter before the Fair Work Commission.

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      • Folder icon Acting for the employee
        • Item icon Application and Affidavit for an Order Against An Employer_Other
        • Item icon Letter to Fair Work Commission with application for Fair Work Commission to deal with a general protections dispute
        • Item icon General protections application involving dismissal
        • Item icon General protections application not involving dismissal
        • Item icon Notice that a person: (a) has a lawyer or paid agent; or (b) will seek permission for lawyer or paid agent to participate in a conference or hearing
        • Folder icon If required - Waiver of application fee
          • Item icon Waiver of application fee
      • Folder icon Acting for the employer
        • Item icon Letter to Fair Work Commission with response to application to deal with a general protections dispute
        • Item icon Response to general protections application
        • Item icon Notice that a person: (a) has a lawyer or paid agent; or (b) will seek permission for lawyer or paid agent to participate in a conference or hearing
    • Folder icon Unlawful termination
      • Item icon Unlawful termination claims
        Where an employee is not eligible to make an unfair dismissal claim or a general protections claim under the Fair Work Act 2009, they may be able to bring an unlawful termination claim under s 772, which effectively extends the general protections to non-national system employees in ...

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      • Item icon Letter to Fair Work Commission with application for Fair Work Commission to deal with an unlawful termination dispute
      • Item icon Application for the Commission to deal with an unlawful termination dispute
      • Item icon Employer's response to application for the Commission to deal with an unlawful termination dispute
      • Folder icon If required - Waiver of application fee
        • Item icon Waiver of application fee
    • Item icon Underpaid and unpaid wages and entitlements
      The obligation to pay wages and entitlements is usually both contractual and statutory. Employees can pursue contractual rights in the appropriate State courts. See the By Lawyers Litigation guides in each jurisdiction for assistance with civil claims.

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    • Item icon Contract and employment status disputes
      Under the Independent Contractors Act 2006, some types of contracts of services can be reviewed by the Federal Circuit and Family Court of Australia (Division 2) or the Federal Court on the basis that the contract is either unfair, harsh or both: s 12. Section 3 states that one of ...

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    • Folder icon Settlement and discontinuance
      • Item icon Deed of settlement
      • Item icon Notice of discontinuance
      • Item icon Letter to Fair Work Commission with notice of discontinuance
      • Item icon Letter to respondent enclosing copy of notice of discontinuance
      • Item icon Letter to client with refund of application fee
    • Folder icon Fair work commission appeals
      • Item icon Notice of appeal
      • Item icon Appeal book cover page - Fair Work Commission
    • Folder icon Court forms
      • Folder icon Federal Court forms
        • Item icon Affidavit
        • Item icon Notice of ceasing to act
        • Item icon Originating application
        • Item icon Originating application under the Fair Work Act 2009 alleging discrimination - Link to Federal Court of Australia
        • Item icon Originating application under the Fair Work Act 2009 alleging dismissal in contravention of a general protection
        • Item icon Originating application under the Fair Work Act 2009 alleging unlawful termination of employment
      • Folder icon Federal Circuit and Family Court of Australia forms
        • Item icon Affidavit of service
        • Item icon Affidavit of service (Fair work - small claims proceedings)
        • Item icon Application - Fair Work Division
        • Item icon Application in a proceeding
        • Item icon Claim under the Fair Work Act 2009 alleging contravention of a general protection
        • Item icon Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection
        • Item icon Notice of intention to withdraw as lawyer
        • Item icon Notice of withdrawal as lawyer
        • Item icon Small claim under the Fair Work Act 2009
  • Folder icon F. Work health and safety
    • Item icon Work health and safety
      Work health and safety laws have been introduced in many states and territories in order to harmonise this area of law across Australia. Work health and safety legislation includes the model Work Health and Safety Act 2011, regulations, codes of practice and a national compliance and enforcement ...

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    • Item icon Model work health and safety legislation
      In 2008 the Council of Australian Governments formally committed to the harmonisation of work health and safety laws by signing an Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety. Under the agreement, all jurisdictions committed to adopting the ...

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    • Item icon Investigations
      Employers are subject to statutory duties of care to employees under work health and safety laws in the various states and territories of Australia. The enforcement of the work health and safety laws falls on the regulatory bodies of the respective states and territories. An employer that breaches ...

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    • Item icon Letter to work health and safety investigating authority advising that acting for client
    • Item icon Letter to work health and safety investigating authority advising that acting for client and accompanying them to interview
    • Item icon Letter to work health and safety investigating authority advising that acting for client and cancelling interview
    • Item icon Letter to work health and safety investigating authority if prosecution commenced
  • Folder icon G. Bullying in the workplace
    • Item icon Orders to stop workplace bullying
      The Fair Work Commission’s stop bullying jurisdiction under the Fair Work Act 2009 enables the commission to make an order to stop bullying in a workplace. A worker may apply to the commission for an order to stop bullying under Part 6-4B of the Act.

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    • Item icon When a worker is bullied
      Section 789FD(1) provides that a worker is bullied at work if, while the worker is at work in a constitutionally-covered business, a person or a group of people repeatedly behave unreasonably towards a worker, or a group of workers, and the behaviour creates a risk to health and safety. The ...

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    • Item icon Eligible applicants
      In order to be eligible to make an application for an order to stop workplace bullying a person must be a worker and work in a constitutionally-covered business. Excluded workers include:

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    • Item icon Procedure
      Lodgement The prescribed form needs to be lodged with the Fair Work Commission: Application for an Order to Stop Bullying. The application form is available on the matter plan.

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    • Item icon Application for an order to stop bullying
    • Folder icon Acting for the employee
      • Folder icon If required - Waiver of application fee
        • Item icon Waiver of application fee
    • Folder icon Acting for the employer
      • Item icon Response from a person named as having engaged in bullying at work
      • Item icon Response from an employer or principal to an application for an order to stop bullying
    • Item icon If the claim is substantiated
      If workplace bullying is found to have occurred, the Fair Work Commission may issue an order to stop the offending behaviour in the workplace. Before making an order, the commission will consider the facts and circumstances and take into account:

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  • Folder icon H. Sexual harassment in connection with work
    • Item icon Stop sexual harassment order
      Where an application is made for a stop sexual harassment order (SSHO), and the commission is satisfied that the aggrieved person has been sexually harassed and that there is a risk of the harassment continuing, then the commission may make any orders it considers appropriate to prevent the ...

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    • Item icon Sexual harassment court application
      A sexual harassment court application must be brought within 60 days of the s 527R(3)(a) certificate being issued by the Fair Work Commission, or such longer time as the court may allow on application.

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    • Folder icon Federal Court Employment Law Forms
      • Item icon Originating application
      • Item icon Notice of ceasing to act
      • Item icon Originating application under the Fair Work Act 2009 alleging dismissal in contravention of a general protection
      • Item icon Originating application under the Fair Work Act 2009 alleging unlawful termination of employment
  • Folder icon I. Finalising the matter
    • Item icon Letter to client finalising the matter and enclosing account
    • Folder icon Example invoices incorporating notification of rights
      • Item icon Example invoice incorporating notification of client's rights - NSW
      • Item icon Example invoice incorporating notification of client's rights - VIC
      • Item icon Example invoice incorporating notification of client's rights - QLD
      • Item icon Example invoice incorporating notification of client's rights - SA
      • Item icon Example invoice incorporating notification of client's rights - TAS
      • Item icon Example invoice incorporating notification of client's rights - ACT
      • Item icon Example invoice incorporating notification of client's rights - NT
      • Item icon Example invoice incorporating notification of client's rights - WA
    • Item icon Invoice recital - Employment
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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