Last Updated on 26/02/2026 by Damin Murdock
As Canadian businesses look to expand globally, Australia presents an attractive market with a stable economy and strategic location. However, for an Ontario-based company, the transition from the Employment Standards Act (ESA) to Australia’s Fair Work Act 2009 involves more than just adjusting to a 38-hour workweek. Success requires navigating the National Employment Standards (NES) and the complex “Modern Award” system.
1. Overtime and Modern Awards: Beyond the 44-Hour Week
In Ontario, the threshold for overtime is generally 44 hours. In Australia, the standard is 38 hours, but the actual cost of labor is dictated by “Modern Awards”—industry-specific instruments that override base contracts.
The interaction between these awards and the NES is a frequent point of contention. In Australian Municipal, Administrative, Clerical and Services Union v North East Water [2014] FWCFB 6927, the FWC Full Bench examined how award provisions regarding “reasonable additional hours” must be balanced against the NES. For a Canadian employer, this means that simply paying a flat salary may not satisfy Australian law if the specific Award requires penalty rates for weekend or late-night work.
2. Leave Entitlements: The Interplay of Agreements
While Ontario mandates three unpaid sick days, Australia requires 10 days of paid personal/carer’s leave and four weeks of paid annual leave.
Expert Insight: It is a common mistake for foreign firms to assume that an Enterprise Agreement or a private contract can “trade away” these NES minimums. In Qantas Airways Limited v Flight Attendants’ Association of Australia [2023] FCAFC 92, the Federal Court reinforced that the NES acts as an absolute floor. Even if an employee agrees to a different leave structure in a contract, the NES entitlements continue to accrue and must be honored, particularly regarding how leave interacts with public holidays and shift work.
3. Termination, Redundancy, and Unfair Dismissal
Termination in Ontario is often a matter of notice or “pay in lieu” based on tenure. In Australia, the risk is higher due to Unfair Dismissal protections.
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The Qualifying Period: Most employees can claim unfair dismissal after six months (12 months for small businesses).
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Redundancy: Unlike Ontario’s CAD $2.5 million payroll threshold for severance, Australian redundancy pay is triggered based on the number of employees (15 or more) and length of service. Canadian businesses must be aware that “genuine redundancy” is a specific legal defense in Australia; if the role is not truly redundant or if redeployment was possible, the business remains vulnerable to litigation.
How Leo Lawyers Supports Canadian Expansion
Expanding into a new jurisdiction requires local expertise with a global perspective. At Leo Lawyers, we bridge the gap between North American business culture and Australian legal rigor.
Feel free to contact Damin Murdock at Leo Lawyers via our website, on (02) 8201 0051 or at office@leolawyers.com.au. Further, if you liked this article, please subscribe to our newsletter via our Website, and subscribe to our YouTube, LinkedIn, Facebook and Instagram. If you liked this article or video, please also give us a favourable Google Review.
DISCLAIMER: This is not legal advice and is general information only. You should not rely upon the information contained in this article, and if you require specific legal advice, please contact us.
Damin Murdock (J.D | LL.M | BACS - Finance) is a seasoned commercial lawyer with over 17 years of experience, recognised as a trusted legal advisor and courtroom advocate who has built a formidable reputation for delivering strategic legal solutions across corporate, commercial, construction, and technology law. He has held senior leadership positions, including director of a national Australian law firm, principal lawyer of MurdockCheng Legal Practice, and Chief Legal Officer of Lawpath, Australia's largest legal technology platform. Throughout his career, Damin has personally advised more than 2,000 startups and SMEs, earning over 300 five-star reviews from satisfied clients who value his clear communication, commercial pragmatism, and in-depth legal knowledge. As an established legal thought leader, he has hosted over 100 webinars and legal videos that have attracted tens of thousands of views, reinforcing his trusted authority in both legal and business communities."
