Information sheets

Creative enterprise hubs in NSW: Employment issues

Creative Enterprise Hubs are a way forcouncils, communities and local businesses to nurture creative, artistic and cultural projects and enterprises by giving them short term access to unused or abandoned spaces. This brings life and energy back to the area with resulting benefits to local business and residents. Both the body administering the Hub and the arts practices participating in the Hub are likely to work with employees, contractors or volunteers. This information sheet explains the obligations of businesses involved in Creative Enterprise Hubs to their employees, contractors and volunteers.

This information sheet is part of a suite of documents for Creative Enterprise Hubs.

In this information sheet:

Creative Enterprise Hubs are a way forcouncils, communities and local businesses to nurture creative, artistic and cultural projects and enterprises by giving them short term access to unused or abandoned spaces. This brings life and energy back to the area with resulting benefits to local business and residents. Both the body administering the Hub and the arts practices participating in the Hub are likely to work with employees, contractors or volunteers. This information sheet explains the obligations of businesses involved in Creative Enterprise Hubs to their employees, contractors and volunteers.

This information sheet is part of a suite of documents for Creative Enterprise Hubs.

Introduction 

Whether you operate as the Administering Body or as a participant in a Creative Enterprise Hub, you must be aware of your obligations to the people who work on your project – whether they are an employee, contractor or volunteer. There are a variety of different laws which impose obligations on businesses. It is important that you read this information sheet carefully.

This information sheet addresses the federal laws concerning the national Fair Work system, the difference between employees, contractors and volunteers, the issues surrounding the privacy of personal information, copyright, tax matters, superannuation and termination of employment.  It also sets out the position under the laws of the different states and territories law relating to workplace health and safety, workers’ compensation and discrimination in the workplace.

The Fair Work System 

In Australia, workplace relations are governed by the Fair Work Act 2009 (Cth) which sets out the rights and responsibilities of Australian employers to their employees in relation to:

  • people employed by a corporation (Pty Ltd or Ltd companies) anywhere in Australia
  • all other people employed in Victoria, the Northern Territory or the ACT;
  • people employed by sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, Queensland, South Australia and Tasmania; and
  • people employed by the Commonwealth or a Commonwealth authority.

State public sector and local government employees in NSW, Queensland and South Australia are not covered by the national workplace relations system and remain under their respective state systems. State public sector employees in Tasmania are not covered by the national workplace relations systems; however, local government employees are covered. In addition, sole traders, partnerships, other unincorporated entities, and non-trading corporations and their employees in Western Australia are not covered by the national system.  Those employers and employees operate under the WA state system.  For more information, please see the section entitled “Information for employers not covered by the Fair Work Act” below.

The Fair Work Act establishes the National Employment Standards which provide a minimum safety net of terms and conditions for these employees. Employees may have additional or better terms and conditions if they are covered either by an award which applies to a particular industry or occupation or an enterprise agreement which applies to a particular business. The Fair Work Act establishes the Fair Work Commission which is the national workplace relations tribunal with power to make decisions concerning minimum wages and employment conditions, enterprise bargaining, industrial action, dispute resolution, termination of employment and other workplace matters.

National Employment Standards

The National Employment Standards (NES) include ten entitlements related to minimum working conditions. Accordingly, employers subject to the national Fair Work system must provide the following entitlements to all their employees (but not to their contractors or volunteers):

  • Maximum weekly hours of work: 38 hours plus reasonable overtime;
  • Requests for flexible working arrangements: parents/carers of children under school age, workers with disabilities, employees 55 years of age or older, those experiencing family or domestic violence, or those caring for an immediate family or household member requiring care because of family or domestic violence, may request a change in working arrangements;
  • Parental leave and related entitlements: up to 12 months unpaid leave, with the right to request an additional 12 months;
  • Annual leave: 4 weeks paid leave per year;
  • Personal/carer’s leave and compassionate leave: 10 days paid personal/carer’s leave, two days unpaid carer’s leave as required, and two days compassionate leave (unpaid for casual workers);
  • Community service leave: unpaid leave for voluntary emergency activities and leave for jury service, with up to 10 days paid leave for jury service;
  • Long service leave: transitional entitlement for certain employees who had long service leave entitlements before 1 January 2010, pending development of uniform national standards;
  • Public holidays: paid days-off on public holidays, except where reasonably requested to work;
  • Notice of termination and redundancy pay: up to 4 weeks’ notice of termination (5 weeks if the employee is over 45 and has at least 2 years of continuous service) and up to 16 weeks redundancy pay (i.e. payments made when a position is eliminated due to genuine operational needs), both based on length of service. Small businesses under 15 employees are not required to make redundancy payments;
  • Provision of a Fair Work Information Statement: employers must provide this statement to all new employees.

National Employment Standards for casual employees

Only certain NES entitlements apply to employees who are characterised as casual employees (generally engaged for short-term, irregular or seasonal work without the promise to provide work or be available for work on other occasions). The NES entitlements that apply to casual employees are:

  • two days unpaid carer’s leave and two days unpaid compassionate leave per occasion;
  • maximum weekly hours;
  • community service leave (except paid jury service);
  • day-off on a public holiday, unless it is reasonable for the employer to request them to work; and
  • provision of the Fair Work Information Statement.

In addition, casual employees who have been employed for at least 12 months by an employer on a regular and systematic basis and with an expectation of ongoing employment are entitled to make requests for flexible working arrangements and parental leave.

Other obligations

In addition to the ten entitlements of the NES, there are several other obligations that employers are required by law to fulfil for all employees, whether permanent or casual:

  • Minimum wage: as at 1 January 2014, the National Minimum Wage is $16.37 per hour ($622.20 per week). However, the minimum wage may be higher in different industry sectors, which are controlled by specific awards or enterprise agreements (i.e. legal document that set out the rights and obligations of employers and employees engaged in particular types of work);
  • Award display: employers must display a copy of every award applying in the workplace in a place conspicuous to employees;
  • Payslips: employers must give employees written particulars about their pay including: name and Australian Business Number (ABN) of the employer; name of employee; classification of the employee under any applicable award (including full-time, part-time and casual status); date when the payment was made; period of employment to which the payment relates; the amount of money paid before tax (gross amount); amount paid as overtime; amount deducted for tax; amount deducted for as employee contribution for superannuation; particulars of all other deductions; amount paid after tax (net amount);
  • Time and wage records: employers must keep accurate time and pay sheets in their records for at least six years;
  • Leave records: employers must keep the following records in relation to leave: any leave taken by the employee; the employee’s entitlement from time to time to that leave; the accrual (build-up) of that leave;
  • Superannuation contribution records: if an employer is required to make superannuation contributions for an employee, the employer must keep the following records: amount of contributions made; period over which contributions are made; when the contributions are made; name of the fund or funds to which the contributions are made and whether that fund is specified in the award or enterprise agreement or by the employee.

The difference between employees and contractors 

The Fair Work System only applies to workers who are considered to be ‘employees’. Not every individual who works in a business will be considered ‘employed’ or an ‘employee’. Some will be considered contractors (independent contractors or freelancers) who perform specific services without detailed control by you. Whether an individual is characterised as an employee or contractor has important consequences, especially in terms of minimum conditions of employment, workers compensation, intellectual property and your tax and superannuation obligations.

Control test

The traditional test used to determine the difference between employees and contractors depends largely on control, the power (whether exercised or not) that you have to direct how the work is carried out. If the worker is running his/her own enterprise with independence in the conduct of his/her operations, the worker is most likely a contractor. However, if the worker operates as a representative of your business with little or no independence in the conduct of his/her operations, he/she is most likely an employee.

Artists and otherwise skilled workers

In situations where specialised skills are required, workers often exercise more discretion over their work and rely less on direct instruction or control. In such situations, the organisation’s management is unlikely to give, and the worker to accept, directions about the manner in which the work should be done – for example, if a worker’s task is to carry out skilful or creative work such a cartoonist supplying comic strip drawings to a newspaper. Such a person may, however, still be considered an employee. Therefore, a more flexible approach to the traditional "control test" is necessary in the artistic context or in other fields requiring a high level of skill.

In those situations, an "organisational test" is usually more appropriate to determine whether the person is an employee or a contractor:

  • the person is an employee if he/she is employed as part of the business and his/her work is an integral part of it;
  • the person is a contractor if his/her work is not integrated into the business but only an accessory to it.

Generally, other factors may be considered in determining whether a worker is an employee or contractor, including:

  • whether the person receives a periodic wage (employee) or is paid per task (contractor);
  • whether the person sells his/her labour (employee) or only the product of his/her labour (contractor);
  • whether the person is supplied with equipment (employee) or provides his/her own equipment (contractor);
  • whether the person is merely an individual worker (employee) or part of a company or sole trader (contractor); and
  • whether the worker works exclusively for the employer (employee) or whether his/her work is non-exclusive/advertised to the world at large (contractor).

No one factor is conclusive. It is necessary to examine the entire relationship of the parties.

The Australian Taxation Office has made available on its website an online decision tool that is helpful in determining whether a worker is an employee or contractor.

Volunteers

Volunteers are neither employees nor contractors. They make a ‘gift’ of their work without financial remuneration. They work in a charitable context and have no intention of creating legal relations with the organisation. Although volunteers are unlikely to have an enforceable employment contract with an organisation, it will still have certain obligations towards them. These mostly concern workplace health and safety and discrimination.

Tax matters 

Pay As You Go (PAYG)

Employers have a legal requirement to withhold a portion of employees’ salaries for income tax purposes and remit the withheld amount to the Australian Taxation Office (ATO). The amount withheld is determined by using the tax tables published by the ATO and information provided by the employee on a tax file number declaration (and withholding declaration if applicable). New employers should register with the ATO before withholding payments.

There is no PAYG obligation in respect of contractors.

Withholding Tax

If a contractor working for you does not provide you with an ABN number, you are required to withhold 46.5% of the payment due and remit it to the ATO. You do not have to withhold this amount if the total payment you make to the contractor is $75 or less (excluding Goods and Services Tax (GST).

Fringe Benefits Tax (FBT)

FBT must be paid on any non-salary benefits to employees or their associates (such as family members). Examples of fringe benefits include allowing an employee to use a work car for personal purposes or when an employer pays an employee’s private health insurance costs.

There is no FBT obligation in respect of contractors.

Goods and Services Tax (GST)

GST is a broad-based tax of 10% on most goods, services and other items sold or consumed in Australia.  The service of independent contractors is usually subject to GST.

Payroll Tax (PT)

In addition to the above federal taxes, each state or territory claims a Payroll Tax when your business’s total payroll of wages exceeds a certain threshold.  The threshold varies by state.  “Wages” is a very broad term and may include payments such as remuneration, salaries, allowances, bonuses and commissions, fringe benefits, termination payments, and even contractor payments. Most charitable institutions are exempt from PT.  In addition, most states and territory exempt certain payments from PT.  Some examples include payments to employees on maternity, paternity, adoption or military leave.  

  • NSW: PT applies to wages paid in NSW when the monthly payroll of the business exceeds $57,534 in a 28 day month, $61,644 in a 30 day month, or $63,699 in a 31 day month.  As at 1 November 2014, the rate is 5.45%. 

For further information, refer to the NSW Office of State Revenue.

  • Queensland: PT applies to wages paid in Queensland when the monthly payroll of the business exceeds $91,666 in any calendar month (or is $1.1 million or more a year).  As at 1 November 2014, the rate is 4.75%.

For further information, refer to the Queensland Office of State Revenue.

  • ACT: PT applies to wages paid in ACT when the monthly payroll of the business exceeds $145,833.33 (or $1,750,000 in a year). As at 1 November 2014, the rate is 6.85%.

For further information, refer to the ACT Revenue Office.

  • Northern Territory: PT applies to wages paid in NT when the monthly payroll of the business exceeds $125,000 (or $1,500,000 in a year). As at 1 November 2014, the rate is 5.5%.

 

For further information, refer to the Northern Territory Department of Treasury and Finance.

 

  • South Australia: PT applies to wages paid in South Australia when the monthly payroll of the business exceeds $50,000 in any calendar month (or $600,000 in a financial year). As at 1 November 2014, the rate is 4.95%.

 

For further information, refer to RevenueSA.

 

  • Tasmania: PT applies to wages paid in Tasmania when the payroll of the business exceeds $1,250,000 in a financial year.  As at 1 November 2014, the rate is 6.1%.

For further information, refer to the Tasmania Department of Treasury and Finance.

  • Victoria: PT applies to wages paid in Tasmania when the monthly payroll of the business exceeds $45,833 in any calendar month (or $550,000 in a year).  As at 1 November 2014, the rate is 4.90%.

For further information, refer to the Victoria State Revenue Office.

  • Western Australia: PT applies to wages paid in Western Australia when the monthly payroll of the business exceeds $62,500 (or $750,000 in a year).  As at 1 November 2014, the rate is 5.5%.

For further information, refer to the Western Australia Department of Finance.

Superannuation 

Employer's contributions

Employers are required to make superannuation contributions on behalf of their eligible employees at least once each quarter. From 1 July 2014, the employer’s superannuation contribution rate increased from 9.25% to a minimum contribution of 9.5% of the employee’s earning base (generally ordinary time earnings) and the rate will remain at 9.5% until 30 June 2021, and will increase to 12% by 1 July 2025. These contributions are in addition to the employees’ salaries and wages. You will be subject to the Superannuation Guarantee Charge (SGC), a quarterly levy, if you fail to provide the prescribed level of superannuation support for your employees.

Employees are eligible for compulsory superannuation contributions if they: (1) are aged over 18; (2) are paid $450 (before tax) or more in a calendar month; and (3) work full-time, part-time or on a casual basis. In addition, you must pay superannuation for an employee under 18 who earns $450 or more per month and works at least 30 hours per week.

It is important to check the superannuation conditions of any relevant collective employment agreements as they may provide for employer’s superannuation contributions at rates above the minimum contribution. For example the performers’ collective agreements negotiated by the Media, Entertainment & Arts Alliance (MEAA) provide for employer’s superannuation contributions of 10% of the total fee.

Contractors

A business is not required to make superannuation contributions for contractors unless the contract is exclusively or predominantly for their labour (physical, mental or artistic) in which case the minimum superannuation contribution of 9.5% is payable. This is so even if the contractor has an ABN number.

In other words, for the purposes of superannuation, some workers will be considered to be ‘employees’ even though they might otherwise be regarded as contractors (for the purpose of the Fair Work system, PAYG tax and FBT).The factors relevant to determining whether a worker is self-employed (i.e. a contractor) or is an employee for the purpose of identifying the business’ obligation to pay superannuation include:

  1. Under whose ‘control’ is the person working? Who has the right to control how, when, and where the work is performed and who is performing it? Does the worker have discretion to accept or reject work which you ask them to perform?
  2. Is the person ‘integrated’ with the business? Do they provide their labour or service as a truly independent contractor carrying on their own business (as a contract for services: a contractor) or individually as an integral part of another business organisation (as a contract of service: an employee)? Is the worker presented to the public as part of the business of the hiring organisation? For whose benefit is the work performed?

The ATO’s Superannuation guarantee eligibility decision tool can be used to work out whether or not a business is required to pay superannuation for a worker.

For more information see Arts Law's information sheet on Superannuation and contract for services.

Terminating employees 

Employer-employee relationships do not always work out as smoothly as planned. Sometimes, an employment relationship has to be terminated, and employers must be aware of the various legal requirements applicable when dismissing an employee. These requirements do not apply when dismissing a contractor, in which case the conditions in which the contract can be terminated are usually provided in the contract.

Notice requirements

An employer wishing to terminate an employment relationship must provide the employee with advanced written notice (1-4 weeks, depending on length of employment) or payment in lieu of notice (the full amount the employee would have been paid during the applicable notice period). Notice (or payment) is not required when the employee engaged in serious and wilful misconduct (eg. theft, fraud, violence) entitling the employer to instantly or summarily dismiss the employee.

Termination pay

Employees should receive the following entitlements in their final pay:

  • Outstanding wages owed to the employee;
  • Accrued annual leave entitlements;
  • Accrued or pro-rata long-service leave (if applicable); and
  • Redundancy pay entitlements (if applicable).

Unfair dismissal

Certain eligible employees may be able to file an unfair dismissal claim against their employers if the circumstances surrounding their termination were harsh, unjust or unreasonable.

  • Requirements for unfair dismissal: an employee can file an unfair dismissal claim if he/she has been: (1) dismissed; (2) the dismissal was harsh, unjust, or unreasonable; and (3) the dismissal was not a case of genuine redundancy.
  • Employees eligible to file an unfair dismissal claim: to be eligible to make an unfair dismissal claim, an employee must: (1) have worked for you for a minimum of 6 months; and (2) earn less than $129,300 per year (unless covered by an award or enterprise agreement).
  • Consequence of unfair dismissal: if Fair Work Australia determines the dismissal was unfair, an employer can be ordered to reinstate the employee or compensate the employee for up to 26 weeks pay (up to a maximum of $54,150).

Special considerations for Small Businesses

If you employ fewer than 15 full-time employees, the Small Business Fair Dismissal Code applies to you. If you follow this code when dismissing an employee, you will not be subject to an unfair dismissal claim.

  • Eligibility: to be eligible to make an unfair dismissal claim, the employee must have: (1) worked for you for at least 12 months; (2) be covered by a modern award/enterprise agreement; and (3) earn less than $129,300 per year.
  • Summary dismissal: it is fair to dismiss an employee without notice or warning when you believe on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal (eg. theft, fraud, violence, breach of occupational health and safety procedures).
  • Other dismissals: prior to dismissing an employee, you must give the employee a reason why he/she is at risk of being dismissed (based on the employee’s conduct or capacity to perform the job). If there is no improvement, you should warn the employee (preferably in writing), and give the employee the opportunity to respond to the warnings and a reasonable chance to rectify the problem (which may include additional training and ensuring the employee knows the job expectations).
  • Evidence of compliance: A small business employer will be required to provide evidence of compliance with the code if the employee makes a claim for unfair dismissal, including evidence that a warning has been given (except in cases of summary dismissal).

Unlawful termination

It is illegal for an employer to dismiss an employee based on any of the following reasons:

  • A person's 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 (some rare exceptions apply, such as where it's based on the inherent requirements of the job);
  • Temporary absence from work because of illness or injury;
  • Trade union membership (or lack thereof);
  • Seeking office as, or acting as, a representative of employees;
  • Being absent from work during maternity leave or other parental leave;
  • Temporary absence from work to engage in a voluntary emergency management activity;
  • Filing a complaint or participating in proceedings against an employer.

Privacy Act and the private sector

An organisation may be subject to the Privacy Act 1988 (Cth), which provides a set of principles that regulate the collection, use, storage and disclosure of personal information by some organisations and government agencies.

For further information, refer to the Office of the Australian Information Commissioner.

The Act specifically exempts organisations with an annual turnover of $3 million or less. Despite the general exemption, the Act applies to certain types of organisations, for example:

  • where an organisation provides personal information in exchange for any benefit, service or advantage (e.g. an organisation, whose turn-over is less than $3 million, enters into a sponsorship deal with a company, and as part of that sponsorship deal the email addresses of the clients of the organisation is passed to the sponsor corporation);
  • where an organisation is a contracted service provider for a Commonwealth contract.

For more information see Arts Law's information sheet on Privacy and the private sector.

Copyright and employment 

Arts businesses should be aware of their intellectual property rights and those of their workers. Generally, when an employee makes a creative work in the course of, and within the scope of, the employment relationship, the employer is the copyright owner unless there is an agreement to the contrary. However, when the person creating the work is a contractor or a volunteer, the contractor or volunteer generally retains copyright in the works they create for the organisation.

It is vital that you have a written agreement with any contractors/volunteers dealing with the ownership of that intellectual property and your rights to use that work.

For more information see Arts Law’s Copyright information sheet and the Australian Copyright Council’s information sheet G058 Ownership of Copyright.

Workplace health and safety 

Every employer has a duty to provide a safe working environment for employees, contractors and volunteers. Under occupational health and safety legislation, there is a general duty of care on employers to ensure the health, safety and welfare of workers by maintaining a safe workplace and facilities, ensuring the safe handling and use of equipment, and providing proper information, instruction, training and supervision. You must take all reasonably practicable measures to control risks against injuries that may occur to all workers in the workplace. For example, you must ensure that premises are structurally sound and equipped with adequate facilities, that emergency exits are accessible and well-identified, and that the temperature and quality of the air do not endanger health.

Employers have a duty to consult with their employees on matters of health and safety and to respond to employee concerns. Employees have a corresponding duty to take care of others and cooperate with employers in the implementation of health and safety measures.

Although most arts-related ventures may seem to pose little risk of injury to workers, you must be aware of all of the possible risks involved with your project or business (e.g. dangerous substances such as clays, paints and photographic chemicals; environmental conditions of work including ventilation, air temperature, floor surfaces and lighting). You should engage in risk management by identifying any foreseeable hazard, assessing the risk from any hazard, and eliminating the hazard or (if this is not possible) controlling the risk from the hazard.

For more detailed guidance on health and safety issues, the WorkSafe ACT website has a helpful Six Steps to Small Business Safety guide and WorkSafe WA lists safety topics of which businesses should be mindful.

Injury or Illness

If an injury or illness occurs at your workplace, you must first ensure that your worker receives first aid and medical help as soon as possible, and notify your insurer.  If the incident causes death or serious injury, or if a dangerous occurrence exposes workers to immediate and serious harm, immediate action is necessary.  The specific requirements for notification vary in the states and territories:

  • NSW: You must notify with 48 hours and, in the case of a serious incident, contact WorkCover immediately at 13 10 50.

 

For further information on health and safety, refer to WorkCover NSW.

 

  • Queensland: You must notify WorkCover within 8 days of receiving notification of the injury.

 

For further information on health and safety, refer to WorkCover Queensland.

 

  • ACT: You must notify within 48 hours and, in the case of a serious incident, contact WorkSafe ACT immediately at 02 6207 3000.

 

For further information on health and safety, refer to WorkSafe ACT

.

  • Northern Territory: Once the injured worker has completed the NT WorkSafe Claim Form, you have 3 working days to fill out the employer’s section and submit the document to your insurance company.  In the case of a serious incident, contact NT WorkSafe immediately at 1800 019 115 and submit an Incident Notification Form within 48 hours.

 

For further information on health and safety, refer to NT WorkSafe

 

  • South Australia: You should preferably notify within 24 hours to Work Cover South Australia at 13 18 55 and, in the case of a serious incident, contact SafeWork South Australia immediately at 1 800 777 209 (24-hour service).

For further information on health and safety, refer to Work Cover South Australia.

 

 

For further information on health and safety, refer to WorkCover Tasmania.

 

  • Victoria: You must notify as soon as possible within the following 10 days, and in the case of a serious incident, contact WorkSafe Victoria on 13 23 60 immediately.

 

For further information on health and safety, refer to WorkSafe Victoria.

 

  • Western Australia: The worker must obtain a First Medical Certificate, report and record the incident and complete the Workers' Compensation Claim Form. Once the form is complete you have 5 working days to pass these documents to your insurer.

 

For further information on health and safety, refer to WorkSafe WA.

Additional requirements:

Each state and territory has its own requirements relating to health and safety in the workplace. For example, in Victoria, employers must also display the WorkSafe “If you are injured at work” poster in such a way as to be visible to all employees. In the ACT, businesses must allow workers to elect a Health and Safety Representative for discussions with management, establish a Health and Safety Committee that meets regularly, or agree to another way of engaging in discussions about Health and Safety issues with workers. Please refer to the state and territory resources listed above for more information. 

Workers’ compensation 

Workers’ compensation provides compensation to workers who suffer a work-related injury or disease. Workers injured at the workplace may be entitled to weekly payments, a lump sum for permanent impairment (including pain and suffering), payment of medical bills, rehabilitation assistance and provision of legal assistance. The definition of a worker varies, and may include volunteers and contractors. In most states and territories, you must have workers compensation insurance as soon as you employ a worker (exceptions to this rule are listed below).  Specific requirements for workers’ compensation vary in the states and territories:

  • NSW:  You must have a workers compensation policy if you pay more than $7,500 in wages per annum, employ an apprentice or trainee, or are part of a group for premium purposes. 

 

For further information, refer to WorkCover NSW.

 

  • Queensland: You must provide workers compensation within 5 days of employment, otherwise penalties apply.

If your worker needs to take time off from work due to his or her injury, you must pay the lesser of the injured worker’s weekly compensation rate or Queensland’s full-time adult ordinary time earnings.

 

For further information, refer to WorkCover Queensland.

 

  • ACT: Employers must display their insurer’s contact details and their return-to-work program, and make claim forms available to workers (see the listed items in the following Information Summary). These items must be displayed in the workplace in such a manner as to be accessible to all workers.

 

For further information, refer to WorkSafe ACT.

 

  • Northern Territory: You must make weekly compensation payments if the insurer accepts liability for the worker’s claim.  If the insurer defers liability, you must make weekly compensation payments for up to 8 weeks until the insurer accepts or rejects liability. 

 

For further information, refer to NT WorkSafe’s websiteand its Employers Guide to Workers Compensation

 

  • South Australia: You must have workers compensation insurance as soon as you employ workers and pay them more than $11,597 in the 2012-2013 financial year (the amount is adjusted annually). 

For further information, refer to the WorkCover South Australia website.

  • : You must take out workers’ compensation with a licensed insurer or apply to WorkCover Tasmania Board to be granted a permit to self-insure.

 

As soon as you receive a worker’s claim for compensation, whether or not you agree with the claim, you must start to make weekly payments to the worker if he or she has been certified as incapacitated for work. You must also pay for necessary medical and associated expenses up to $5,000. If you have reasonable grounds for objection, you may dispute liability within the next 84 days.

 

If a worker needs to take leave to recover from his or her injury, you are obliged to keep the worker’s job available to him or her for one year, unless that job is no longer required or there is medical evidence that the worker is highly unlikely to be able to resume his or her job. In the latter case, you must consider suitable alternative positions.

 

For further information, refer to WorkSafe Tasmania, and WorkCover Tasmania as well as the latter’s Compensation Handbook

 

  • Victoria:  You must have workers compensation insurance when you pay more than $7,500 in cumulative wages across all employees in a financial year (including overtime, leave payments, superannuation etc.), employ an apprentice or trainee, or in other specific circumstances.

You are required to pay the weekly payments during the first 10 days of the injured worker’s absence, as well as the first $629 of medical services.

For further information, refer to WorkSafe Victoria.

 

  • Western Australia: Workers injured at the workplace are entitled to weekly compensation payments in the same manner as done when they were still at work (same days, same method). You are responsible for making these payments. You are obliged to keep the worker’s position available to him or her if it is still reasonably practicable. You may also offer the worker another job of comparable status and pay.

 

For further information, refer to WorkCover WA.

Discrimination in the workplace 

Under federal and state laws, it is illegal for an organisation to discriminate against any employee, prospective employee, contractor, apprentice, trainee or volunteer on any of these protected grounds: a person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, carer’s/family responsibilities, pregnancy, political opinion, trade union activity, irrelevant criminal record, religion, national extraction, transgender status, or association with someone from these groups. An employer may not discriminate in situations such as recruitment or promotion decisions, termination or other discipline, or terms and conditions of employment or contract.  Most discrimination laws also prohibit sexual harassment, victimisation and vilification. 

Many discrimination laws require not only that you not discriminate in your actions and decisions, you must ensure that none of your staff does so either. You could be vicariously liable for staff members who discriminate or harass others in the workplace unless you are able to show that you’ve taken reasonable steps to prevent such occurrences. Reasonable steps include setting the example through your own conduct, elaborating policy rules for equal opportunity, educating staff about discrimination and harassment, monitoring the workplace and providing confidential and efficient ways for staff members to make a complaint. You must also provide support for those who have been harassed or discriminated against. There are a few exceptions to discrimination.  These generally apply when a genuine qualification for the job and situations when the discrimination is intended to achieve greater equality.  If you believe that you might qualify for an exemption, you should look to the laws of your particular state or territory.  Each state and territory has a law governing discrimination:

  • NSWAnti-Discrimination Act 1977.  An exemption

For more information, visit the Anti-Discrimination Board of NSW's website.

 

 

 

 

 

 

 

The Australian Human Rights Commission (AHRC) is responsible for compliance with the federal anti-discrimination legislation, which includes:

  • Age Discrimination Act 2004 (Cth)
  • Disability Discrimination Act 1992 (Cth)
  • Racial Discrimination Act 1975 (Cth)
  • Sex Discrimination Act 1984 (Cth)

The AHRC has the authority to investigate and engage in conciliation proceedings in relation to complaints of alleged discrimination and human rights breaches lodged with the AHRC under these statutes. In relation to gender based employment, exemptions under state and territory law do not necessarily exempt the organisation from the Sex Discrimination Act (SDA) so that exemptions should be obtains from both the AHRC and the relevant state or territory anti-discrimination commission. The SDA prevents the advertising for a gender specific job unless either:

  • the role was covered by a specific exemption in the SDA, such as where gender is a genuine occupational qualification; or
  • The AHRC has granted an exemption from compliance with the SDA.

The website of the AHRC has information on:

  1. Temporary exemptions under the SDA: Commission Guidelines

 

  1. Guidelines for writing and publishing recruitment advertisements

Workplace policies – Internet use 

Inappropriate use of the internet and social media can expose an organisation to a number of risks, including:

  • breach of legal or regulatory requirements;
  • loss of productivity as a result of use of the internet for personal activities;
  • legal claims for discriminate or harass in the workplace arising from inappropriate emails being sent by sent between staff members or inappropriate images being displayed on computer screens;
  • exposure of sensitive cultural information, when the organisation holds traditional knowledge or sacred or secret cultural information;
  • exposure of the trade secrets and confidential information of the organisation or its clients;
  • exposure personal information of employees and clients of the organisations;
  • adverse impact on internal and external relationships (especially with government agencies, project partners, funders and sponsors, and other stakeholders in the activities of the organisation); and
  • reputational loss or damage.

It is best practice to have workplace policies that cover the use of the email service used by the organisation and the use by staff of the computer system of the organisation. An internet policy needs to balance the use of social media to promote of the goals of the organisation with the possible reputational and other damage that can be caused to the organisation by inappropriate use of social media. The internet policy should also respect the aspirations of members of staff to use personal websites, blogs and other social media platforms as a medium of self-expression. Because the internet allows individuals to publish information and photographs on blogs and social media platforms the workplace policies should set out what is the appropriate use of social media.

A social media policy could require staff to ensure that any personal contributions to blogs and social media platforms, if linked to the organisation in any way, are appropriate and will not expose the organisation to any risks. If members of staff choose to identify themselves as an employee of the organisation or to discuss matters related to the activities of the organisation, there is the risk that some viewers may believe that the individual is a representative or spokesperson for the organisation. If necessary, staff could be required to expressly state that their contribution is based on personal opinion only. 

It may also be appropriate for the internet policy to provide that staff members show respect to the cultural values of other staff members and clients of the organisation. It is possible that personal information and photos that a staff member chooses to post on his or her personal social media sites may also be displayed with photos of the activities of the organisation. It is possible that contents of the personal information and private photos conflict with the social or cultural values of the organisation so that the publication results in reputational damage to the organisation.

While users of social media may think that they are only publishing personal information or private photos to their closest friends – however the privacy functions on social media cannot be trusted to limit sharing to the people that given access to the personnel social media account. Therefore online content is essentially permanent and should never be considered to be private.

Further information 

You can contact the Fair Work Infoline for more information about Australia’s workplace rights and rules: 131 394 or visit the Fair Work Australia websites (www.fairwork.gov.au) and (www.fwa.gov.au)

For additional information about these topics see the following government websites:

Information for employers not covered by the Fair Work Act 

To learn more about standards for employment practices in your state and territory for your business which is not covered by the Fair Work Act, see the sources below:

Disclaimer 

The information in this information sheet is general. It does not constitute, and should be not relied on as, legal advice. The Arts Law Centre of Australia (Arts Law) recommends seeking advice from a qualified lawyer on the legal issues affecting you before acting on any legal matter.

While Arts Law tries to ensure that the content of this information sheet is accurate, adequate or complete, it does not represent or warrant its accuracy, adequacy or completeness. Arts Law is not responsible for any loss suffered as a result of or in relation to the use of this information sheet. To the extent permitted by law, Arts Law excludes any liability, including any liability for negligence, for any loss, including indirect or consequential damages arising from or in relation to the use of this information sheet.

© 2014 Arts Law Centre of Australia

You may photocopy this information sheet for a non-profit purpose, provided you copy all of it, and you do not alter it in any way. Check you have the most recent version by contacting us on (02) 9356 2566 or tollfree outside Sydney on 1800 221 457.

The Arts Law Centre of Australia has been assisted by the Commonwealth Government through the Australia Council, its arts funding and advisory body.

Need more help?

If you have questions about any of the topics discussed above please contact Arts Law.

Disclaimer

The information in this information sheet is general. It does not constitute, and should be not relied on as, legal advice. The Arts Law Centre of Australia (Arts Law) recommends seeking advice from a qualified lawyer on the legal issues affecting you before acting on any legal matter.

While Arts Law tries to ensure that the content of this information sheet is accurate, adequate or complete, it does not represent or warrant its accuracy, adequacy or completeness. Arts Law is not responsible for any loss suffered as a result of or in relation to the use of this information sheet. To the extent permitted by law, Arts Law excludes any liability, including any liability for negligence, for any loss, including indirect or consequential damages arising from or in relation to the use of this information sheet.

© Arts Law Centre of Australia

You may photocopy this information sheet for a non-profit purpose, provided you copy all of it, and you do not alter it in any way. Check you have the most recent version by contacting us on (02) 9356 2566 or tollfree outside Sydney on 1800 221 457.

The Arts Law Centre of Australia has been assisted by the Commonwealth Government through the Australia Council, its arts funding and advisory body.

Australian Government - Australia Council for the Arts

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