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Small business employers

Last updated February 2024

This chapter explains when employer obligations differ for small businesses and what you need to do to comply with them.

What is a small business employer?

For the purposes of the Fair Work Act 2009 (Cth) (FW Act), a small business employer is a national system employer that employs fewer than 15 employees at a particular time.

Tip: When calculating how many employees you have at a particular time:
- exclude casual employees unless, at that time, the employee is a regular casual employee, i.e. employed on a regular and systematic basis;
- include employees employed by associated entities; and
- include any employees who are being dismissed.

The legal rights and obligations of small business employers differ from those of other employers in relation to:

  • unfair dismissal;
  • casual employees;
  • redundancy pay;
  • flexible work arrangements;
  • workers’ compensation;
  • rights to representation in Fair Work Commission (FWC) proceedings – the FWC may grant permission for you to be represented by a lawyer or paid agent in FWC proceedings if you are a small business employer with no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy;
  • gender equality reporting – the Workplace Gender Equality Act 2012 requirement to lodge an annual report containing information relating to gender equality indicators does not apply to non-public sector employers with fewer than 100 employees (unless they are a registered higher education provider); and
  • anti-discrimination for some partnerships – if you are a partnership, anti-discrimination laws in every jurisdiction except the Northern Territory prohibit discrimination in the way you recruit or deal with a partner but some exemptions exist based on the size of your business, as shown in the following table:
Exempt partnerships Act
Six or fewer partners Cth (for age and sex discrimination), NSW, Qld, WA
Three or fewer partners Cth (for disability discrimination)
Five or fewer partners Vic (provided it is ‘reasonable’ to discriminate)