Who the law protects from unfair dismissal

Criteria to identify protected employees

The law protects employees who:

work for a national system employer AND
work for at least the minimum employment period before the dismissal (6 months, or 12 months if the employer is a small business) AND
earn less than the high-income threshold AND
(casual employees only) work on a regular and systematic basis before dismissal and have a good reason to believe this would continue.

The law also protects employees who earn more than the high-income threshold if:

an award covers their employment OR
an enterprise agreement applies to their employment.

Who is a national system employer?

Most, but not all, employers in Australia are national system employers. This means that most workers are national system employees.

The full definition is in Section 14 of the Fair Work Act 2009.

Location	Employees in the national system	Employees outside the national system
Australia-wide	Commonwealth employees (such as Federal Police, SafeWork Australia) Employees of Commonwealth authorities (such as the ATO, Australia Post, the ABC). Employees of waterside employers, maritime employers, and flight crew officers in interstate or overseas trade or commerce.	n/a
Australian Capital Territory	All employees	n/a
New South Wales	Private enterprise employees	State public sector employees local government employees
Northern Territory	All employees except members of the Police Force	Members of the Police Force
Queensland	Private enterprise employees	State public sector employees local government employees
South Australia	Private enterprise employees	State public sector employees local government employees
Tasmania	Private enterprise employees Local government employees	State government employees
Victoria	All employees except some in the State public sector	State public sector employees at executive and higher managerial levels Law enforcement officers
Western Australia	Employees of employers that are a constitutional corporation other than local governments.	State public sector employees Local government employees Employees of employers that are not constitutional corporations including an individual, a sole trader or partnership.
Norfolk Island, the Territories of Christmas Island and Cocos (Keeling) Islands	All employees	n/a

Foreign or overseas companies

Employees may work in Australia for a company formed overseas. Usually, employees of foreign corporations are national system employees.

Types of employment outside the national system

You are not a national systems employee if you work:

as an independent contractor
as an unpaid volunteer
in an unpaid educational placement through your school, university or other institution
for any organisation outside the national system in each state and territory.

People who work through a labour hire agency

A ‘labour hire worker’ is someone who has a work contract with a labour hire agency.

Examples of labour hire workers or agency staff are:

a nurse working for a nursing agency
a cook working for a hospitality agency.

In this situation:

the labour hire agency has a contract with the worker and pays them
the labour hire agency has a contract with a host firm to supply workers
the host firm pays the agency, not the worker.

If you are a labour hire worker you cannot apply for unfair dismissal against the host firm. You may apply for unfair dismissal against the agency. Labour hire agencies are national system employers.