[A] masterpiece of clarity and succinct exposition of the law.
Australian Journal of Labour Law
Stewart’s Guide to Employment Law is renowned for its succinct and accessible coverage of this complex area of the law. The author’s unique expertise and experience makes this a highly regarded book, and its clear and cohesive style makes it essential reading for anyone needing an introduction to employment law.
This new edition looks at the impact of COVID-19 on employment law, on matters such as standing down employees, working from home, pandemic leave, and whether vaccination can be made compulsory for employees.
It explains the various amendments to the Fair Work Act made or proposed by the Morrison Government, including as part of the ‘Omnibus Bill’ tabled in late 2020 and passed in heavily reduced form in March 2021. It explores, in particular, changes to the definition and regulation of casual employment, as well as a major new High Court decision on the subject.
The new edition discusses controversies and developments that particularly impact women in the workplace, on matters such as sexual harassment, pay equity, and leave for victims of family and domestic violence. It covers the many changes made by the Fair Work Commission in the course of its lengthy review of modern awards, and a raft of significant new cases on the determination of whether workers are employees, including in the emerging ‘gig economy’.
The text has been updated to incorporate other new case law, including important decisions on the making of enterprise agreements, adverse action and unfair dismissal. Reference is also made to various changes to State legislation, such as the new ‘wage theft’ laws in Victoria and Queensland, as well as the substantial reforms proposed in Western Australia.
This new edition incorporates references to the recent High Court of Australia decision in WorkPac v Rossato (4 August 2021) and otherwise incorporates developments up to July 2021.
Table of Cases
Table of Statutes
1. Employment Law: An Introduction
The Purpose of Employment Laws
Employment Regulation in Australia
Sources of Employment Law
Getting Information about Employment Laws
2. The Development and Coverage of Employment Laws in Australia
Development of Australian Employment Laws
The Work Choices Reforms
The Fair Work Legislation
The Scope of the ‘National’ System
Application of State and Territory Laws
3. Who is an Employee?
Why Employment Status Matters
Distinguishing Employees from Contractors
Avoiding or Disguising Employment
The Tax System
The Independent Contractors Legislation
4. Special Types of Employment
Homeworkers and Outworkers
Trainees and Apprentices
Public Sector Employment
5. Creating an Employment Relationship
Controls on Hiring
Provision of Information
Formation of Employment Contracts
6. The Terms of an Employment Contract
Individual Contract Terms
Effect of Awards, Agreements and Statutes
Review of Unfair Work Contracts
7. Minimum Standards: The NES and Awards
Development of Minimum Standards
The National Employment Standards
The Modernisation of the Award System
Modern Awards under the Fair Work Act
8. Enterprise Agreements
Options under the Federal System
Making an Enterprise Agreement
Regulating the Bargaining Process
Content of Agreements
Variation and Termination
Effect of Enterprise Agreements
Transitional Arrangements for Pre-Fair Work Act Agreements
Unregistered Collective Agreements
9. Dispute Resolution and Enforcement of Employment Laws
Dispute Resolution in the Federal System
Compliance and Enforcement under the Federal System
The State Systems
Enforcing the Employment Contract
Insolvency and Employee Entitlements
Types of Remuneration
Minimum Wages for National System Employees
Minimum Wages for Other Workers
Payment of Wages
11. Working Hours and Leave
Long Service Leave
Community Service Leave
Other Forms of Leave
12. Control, Performance Management and Discipline
The Employee’s Duties
The Employer’s Duties
Performance Management and Discipline
13. Loyalty, Confidentiality and Privacy
Loyalty During the Employment Relationship
Confidentiality and Privacy: The Employer’s Obligations
14. Discrimination and Victimisation
The ‘General Protections’ under the Fair Work Act
Other Protections against Victimisation
15. Workplace Safety
Work Health and Safety Laws
Common Law Liability for Workplace Injuries
16. Termination of Employment Contracts
Duration and Expiry of Employment Contracts
Termination on Notice
Constraints on Unilateral Termination
Termination by Agreement
Termination by Operation of Law
Entitlements on Termination
Effect of Insolvency on Employment Contracts
Transfer of Employment
17. Remedies for Wrongful or Unfair Termination
Remedies for Employers
Remedies for Employees
Common Law Actions for Wrongful Dismissal
Evolution of Unfair Dismissal Laws
Unfair Dismissal Claims under the Fair Work Act
State Unfair Dismissal Laws
18. Industrial Action
The Position at Common Law
Sanctions under the Fair Work Act
Sanctions under Other Legislation
Glossary of Terms
Anybody who is charged with providing concise advice on employment issues should have a copy of this latest edition on their desk for easy reference.
Joseph Kelly, Law Institute Journal, Law Institute of Victoria, January 2022
Reviews of previous editions:
Published two years after the last edition this text covers the legislative changes and common law developments since then, including the Fair Work Commission’s power to deal with claims of workplace bullying.
Whilst the text focuses on the fundamental concepts and principles of employment law it does go beyond that to some extent, looking at the reform agenda of the Abbott Government on issues such as parental leave, superannuation and changes to the building and construction industry to name but a few.
The book is not bulked out with long quotations from legislation or by the reproduction of extended passages from judgments for every principle covered. That is not to say the relevant authorities for each principle are not cited but rather that the author communicates the concept as opposed to leaving it to the reader to decipher it from the source material.
A broad array of topics ranging from Awards through to Workplace Safety are covered in the book and increases its appeal. Whilst wide ranging the text is not all encompassing. However, that is not the purpose of the book and the trade-offs made in this volume are well balanced ensuring it remains reader friendly but still of sufficient breadth to be a good general guide. Any reader wanting to consider an issue further will benefit from the selected readings at the end of each chapter.
The book is most likely to be of benefit to those who need to be familiar with employment law, such as small businesses or someone employed in human recourses. That said, practitioners who are not familiar with this body of law will find it useful as a preliminary reference.
The only criticism, albeit somewhat pedantic, this reviewer would make is that only the case name and year are cited in the chapters with the full reference not even footnoted. The inability to tell immediately from what jurisdiction a decision stems, without having to refer back to the case list at the front of the text, does on occasion necessitate some pause when reading.
Brendan Jones, Ethos, Law Society of the ACT, December 2015
The work is impressive in its ability to convey a vast amount of material in an accessible way. Like previous editions, any practitioner that is occasionally called upon to advise on an employment law or workplace relations issue would be greatly assisted by this text.
Dan Coombes, Law Letter, Law Society of the Tasmania, Spring/Summer 2015
This is the fifth edition in seven years of a text that describes itself as “an overview of the current law accessible to those who are not already experts in the field”. It’s a modest self-assessment for a book that is also a helpful first resource for those practising in industrial and employment law.
The book contains an excellent, concise summary of most laws that interact with the workplace and includes chapters on minimum standards and entitlements, common law employment contracts, enterprise agreements, discrimination, workplace safety, unfair dismissal and industrial action. There is also a good outline of the historical development of employment laws in Australia and a worthwhile discussion of the policy objectives influencing previous and current laws, which is critical.
The text’s analysis of the prevalence of casual employment in Australia in many of its different guises is particularly worthy.
Key additions to this edition include some basic points about recent changes to the Fair Work Act 2009 brought about by the previous Labor government (such as changes to right of entry laws) and changes proposed by the current government, both those contained in the Fair Work Amendment Bill 2014 and those that have to date only been the subject of political discussion. More substantial is new content relating to emerging case law in the area of adverse action including an examination of the High Court decision in CFMEU v BHP Coal .
This is a text worth having on the shelf…
Dario Mujkic, InPrint, Law Institute Journal Victoria, November 2015
The book covers all the essential areas of Employment Law, including its proud history and development in Australia. If you don’t have this knowledge in your toolkit you will be disadvantaged from the outset. Andrew carefully tackles the complex area of law that is the difference between employees and independent contractors with plenty of references to the common law and its evolution from where it began, determining vicarious liability in the English courts.
… it looks at the special types of employment, the creation and end of employment relationships, employment contracts, the NES, Awards, Enterprise Agreements, Dispute Resolution, Remuneration, Working Hours, Leave, Control, Performance Management, Discipline, Safety and Industrial Action. It examines implied duties of loyalty and confidentiality as well as the myriad of post-employment issues that arise from time to time. Lastly it covers the issues of discrimination, victimisation and the remedies for wrongful or unfair termination.
Andrew really has covered all bases in this book which is easy to read and well structured. This is a book that should be on every practitioners shelf, whether you are new to field, looking for a good reference book to close a gap in an area you haven’t addressed for a while or to assist you in training your team.
Theresa Moltoni, The IR Advocate, Industrial Relations Society of Qld, Sept-Oct 2015
The text is written in such a way as to make it useful to legal practitioners not regularly in the field of employment law, while remaining readable for students and those with a non-legal background seeking to identify key principles. While not going into great detail, the text provides the reader with an appropriate and concise understanding of the issues that are relevant and the referencing to further consider the same. At the end of each chapter, the guide makes reference to selected further readings which will be useful to those seeking a more in depth understanding of particular topics.
Stewart’s Guide to Employment Law is a beneficial resource, effectively structured, for students, practitioners and employers and employees seeking to identify relevant employment law principles.
Dominic Katter, Hearsay, July 2015, 73
The goal of this book is to explain the way in which employment relationships are legally regulated in Australia. It achieves this by providing a useful overview of Australian employment law, designed to be accessible to those not already expert in the field. This fifth edition of Professor Stewart’s work has also been comprehensively updated including to explain the various changes made by the Fair Work Amendment Act 2013, part of the present government’s reform agenda, and to address new cases decided since the previous edition.
Queensland Law Reporter – 24 April 2015 –  15 QLR
Two years is a long time in Employment Law, yet that is how long has passed since the last edition of Stewart’s Guide was released. Described by the Australian Journal of Labour Law as ‘a masterpiece of clarity and [a] succinct exposition of the law’, the new edition has been eagerly awaited. Now in its fourth edition, the author’s aim continues to ‘provide an overview of the current law that is accessible to those who are not already experts in the field’.
Stewart’s Guide is renowned as being an accessible first port of call text. This is done by using accessible language, eliminating footnotes and confining full case citations to the Table of Cases. To guide further reading, a selected reading guide is included at the end of each chapter. The handy glossary included in the third edition remains.
… This text is indispensable for practitioners who are called upon to provide incidental advice in employment law. Simple language and sub-headings make the text very accessible. Each chapter provides just enough information to facilitate a targeted foray into further texts and case law as required.
… The book is not and was never intended to be a comprehensive and detailed text on the subject. Those seeking a more detailed text would be better off seeking a copy of Labour Law by Breen Creighton and Andrew Stewart or an annotated guide to the Fair Work legislation.
Dan Coombes, Law Letter, Law Society of Tasmania, June 2013
To download PDF supplement click here: Stewart’s Guide 7 Supplement – Jan 24
About this supplement
This supplement has been prepared by Andrew Stewart, drawing on material originally written by Aneisha Bishop of Piper Alderman, as well as other colleagues at the firm, including Sophia Bianchini, Mark Caile, Tim Capelin, Adam Celik, Dustin Grant, Emily Haar, Joseph Hyde and Essi Merivaara.
It does not comprehensively update the 7th edition of the Guide, but deals with a number of important legislative developments introduced by the Albanese Labor Government including summaries of the important changes made by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023, as well as the further proposals still before Parliament as part of the Fair Work Legislation Amendment (Closing Loopholes No 2) Bill 2023. Among other things, it also summarises the effect of two High Court decisions from February 2022 that have radically changed the rules for determining employment status, as well as noting changes to the high income threshold, the value of penalty units, and the minimum wage.
References to the Fair Work Act 2009 (FW Act) are generally to the Act as in force from 1 January 2024. Numbered cross-references in bold are to paragraphs from the 7th edition of the Guide.