Employment Law Penrith Area

It is common practice for employment contracts to now contain a restraint on an employee which prevents the employee from being employed by a competitor for a period after the employment relationship has ceased. 

Whilst the law has in the past frowned upon these restraints that prevent a person from earning a living, if the circumstances justify the restraints the courts are now more likely to uphold it. To be enforceable the restraint must protect the legitimate interests of the employer and the extent of the restriction must be no wider than what is reasonably necessary to protect those interests. 

The “test of reasonableness” will be assessed in terms of the extent of the activities the employee is being restrained from, the geographical area of restraint and the length of time of the restraint. Before signing any employment contract containing such a clause you should seek legal advice.

The following:

• Any outstanding wages or other remuneration still owing.
• Any payments that have been made in lieu of notice of termination by the employer.
• Any accrued annual leave and long service leave entitlements.
• Any severance pay entitlements if the employee has been made redundant.

If you believe you have not received payment for all of your entitlements at the time your employment ends, you can contact the Fair Work Ombudsman who can investigate and take action to make sure that all your legal entitlements are paid.

Redundancy occurs when an employer decides they no longer want a job an employee has been doing to be done by anyone and terminates their employment.

An employee is entitled to redundancy pay in accordance with the National Employment Standards (NES) provided by the Fair Work Act 2009 (Cth). The amount of an employee’s entitlement depends on their years of service with the maximum payable being 16 weeks’ pay. You should seek legal advice to ensure you are provided with all your entitlements.

Employers have many factors to consider in the new workplace relations environment including:

• Compliance with the National Employment Standards (NES)
• Compliance with Modern Awards
• Employment Contracts

The NES are 10 minimum standards of employment that apply to all employees covered by the national workplace relations system. The NES are comprised of the following which apply to full time workers and on a pro rata basis to part time workers:-

• Maximum weekly hours of work – An employer must not request that a full time employee work more than 38 hours a week unless additional hours are reasonable. Factors to be taken into account in whether additional hours are reasonable include any risks to employee health, whether the employee is entitled to overtime, any notice given in respect of the additional hours and the usual patterns of work in the industry.
• Requests for flexible working hours – An employee who is a parent or has responsibility for the care of a child may request a change in working arrangements to assist in the care of the child.
• Parental leave and related entitlements – An employee is entitled to 12 months unpaid parenting leave if they or their spouse or partner are giving birth a child or they are adopting a child under 16 years of age. There are also provisions for unpaid special maternity leave which relates to when an employee has a pregnancy related illness or the employee has been pregnant and the pregnancy ends within 28 weeks of the expected birth date but not in the birth of a child. Any unpaid special maternity leave taken counts against the employee’s 12 month unpaid parenting leave entitlement.
• Annual leave – For each year of service an employee is entitled to 4 weeks paid leave per year. This entitlement extends to 5 weeks per year for qualifying shift workers.
• Personal leave – For each year of service an employee is entitled to 10 days of paid personal/carer’s leave. Employees are entitled to 2 days unpaid carer’s leave as required. Employees are entitled to 2 days compassionate leave as required relating to serious injury, illness or death of an immediate family member or member of the employee’s household.
• Community service leave – An employee is entitled to be absent from their employment if they are engaging in an eligible community service program including jury duty or a voluntary emergency management activity.
• Long service leave – If the employee is covered by an applicable award that provides for long service leave then they are to receive long service leave entitlements. This a transitional entitlement preserving the status quo until the development of a national long service leave standard.
• Public holidays – An employee is entitled to expect to be absent from their work on a day that is a public holiday unless a reasonable request to work is made.
• Notice of termination and redundancy pay – An employer is required to give a minimum period of notice of termination up a maximum of 5 weeks depending on the age of employee and years of service. Payment equalling the wages equal to this period may be given in lieu of notice. Employers must also pay redundancy pay up to a maximum of 16 weeks if an employee is made redundant.
• Fair Work Information Statement – An employer must give each new employee a copy of this document to all new employees before or as soon as practicable after they start.

The National Employment Standards (NES) apply universally to all employees covered by the national workplace relations system, regardless of whether you’re covered by an award, agreement, or contract of employment. It’s important to understand that employers cannot provide agreements with entitlements less than the NES – these are your fundamental workplace protections. Employers who contravene NES provisions face significant penalties, which underscores the seriousness of these obligations.

If you have any concerns about whether your employment arrangements comply with the NES, we recommend seeking experienced legal advice. Our team has guided Penrith businesses and employees through workplace law matters for decades, ensuring compliance while protecting what matters most to both employers and their teams.

Modern awards are standards of employment setting out standards such as base rate of pay, types of employment, overtime and penalty rates, work arrangements, allowances, superannuation and procedures for settling disputes relating to the award.

Generally if an employer has a registered agreement that covers their employees, modern awards do not apply to that employer while they have an agreement registered with an appropriate authority. Base rates of pay in a modern award will override lesser entitlements in an agreement or contract in most cases. Some agreements are exceptions to this rule though and you should seek legal advice to ensure any agreements you have are valid.

If pay rates under the modern award are higher than the rates of pay that you previously provided then you need to phase in the new rates of pay by instalments of 20% over four years. You should seek legal advice to ensure these transitional arrangements apply to your business.

If pay rates under the modern award are lower than the rates of pay that were applicable under the previous award then you may phase in the new rates of pay by instalments of 20% over four years.

Where there was no loading or penalty under the previous award employees are entitled to phase in payment of that loading or penalty by installments of 20% over four years. You should seek legal advice to ensure these transitional arrangements apply to your business.

Modern awards deal with minimum obligations only. They do not require employers to increase or maintain over-award payments already being made. In some cases over award payments can be used to offset other monetary obligations in a modern award.

Under the Fair Work Act 2009 penalties may apply to a breach of a term of a modern award. You should seek legal advice to ensure you comply with all your obligations.