To find out more about this area of law, please see our legal questions and answers on this topic below, or click here to see our complete list of Legal Questions & Answers.


When does an employee become entitled to Long Service Leave?
Under the NSW legislation an employee will start to accrue a pro rate entitlement to Long Service Leave after 5 years of service. However, the employee will not be entitled to payment of the Long Service Leave until after 10 years of service unless their employment is terminated at the initiative of the Employer or for "domestic or other pressing necessity."

When do superannuation contributions have to be paid by an employer each year?
Within 28 days after the end of the quarter.

How much superannuation does an employer have to pay an employee?
An additional 9% on top of the employee’s salary.

Who do the compulsory superannuation payments apply to?
Compulsory superannuation payments apply to most permanent employees over 18 years of age and under 70 years of age.

What people are exempt from receiving the benefit of compulsory superannuation payments?
Genuine independent contractors (note that people who are paid for the provision of labour are deemed to be employees and therefore eligible for superannuation payments), employees paid less than $450.00 per month, employees under 18 years of age and working less than 30 hours per week, employees 70 years and over, people doing domestic or private work on less than 30 hours per week eg part time nanny or house keeper.

How long does an employee have to lodge an Underpayment of Wages claim with the Chief Industrial Magistrate's Court?
6 years from the date that the payment was due.

Can an employee make an underpayment of wages claim even though they were not covered by an Award or Industrial Agreement?
Yes if the employer promised the employee a certain payment and it was never made the employee could still rely on the common law principles of contract to recover this payment.

Is every employee entitled to sick leave?
No. Casual employees receive a loading included in their hourly rate instead of receiving paid sick leave for days off. Even full time employees are not always automatically entitled to sick leave. Sick leave only becomes an entitlement through an Award, enterprise agreement or contract. Even then an employer may have the right to refuse payment if the time off is not supported by appropriate documentation. If you have problems regarding leave call us.

Can an employer force an employee to take annual leave?
Yes. An employer can insist upon an employee taking annual leave when they have accrued 2 or more weeks of annual leave or if the business is having an annual close down eg “from Friday before Christmas until Monday after New Years day”

What questions should I avoid when interviewing someone for a job?
Avoid asking personal questions unrelated to the position such as age, race, religious & political beliefs, marital status, pregnancy, children, sexual preference, disabilities etc.

Our company has been sued for the sexually harassing actions of a travelling sales person we do not even have any control over. How could we be held responsible for this person when they are not even in the office?
As an employer your company must protect staff, clients & most people dealing with your business from discrimination and sexual harassment. Your company is “vicariously liable” for everything that your employees do as they carry out their work. To minimise risk you need to try to prevent sexual harassment occurring in the first place through a sexual harassment policy, prevention strategies, education & training, grievance mechanisms and the removal of offensive, explicit or pornographic materials. You can’t avoid vicarious liability just because you did not know what your employee was doing.

I have heard that a company was held liable for victimising an employee even though the employee’s allegations of discrimination and harassment were found to be false?
Yes, that is a true case. Victimisation can happen even when the complaint upon which it is based is untrue. Victimisation happens when the alleged offender threatens or harasses the complainant or others involved in the complaint. Victimisation is viewed seriously by the Anti-Discrimination Board and strong penalties apply to those who are found liable for victimising others.

Can email and computer usage be monitored in the workplace?
Only if proper disclosure of the surveillance has been made. Otherwise employers can be fined and required to destroy the illegally obtained information. Employers should have a Surveillance Policy and a Computer, Internet and Email Policy.

Are all employees required by law to have a written contract of employment?
No. Many employment contracts are created verbally, through custom and law. The terms of a verbal contract are hard to prove compared to written agreements. Many jobs are covered by Awards and legislation (Annual Holidays Act, Long Service Leave Act, Occupational Health & Safety Act etc…) that automatically apply, even though the employee hasn’t signed anything.