Conflicting employment conditions - which one applies?


Conflicting employment conditions - which one applies?

Despite the best efforts by the parties to an industrial instrument or legislative draftspeople employed by government to word appropriate changes to employment legislation, the sheer volume of compliance imposed on employers by these instruments means that occasionally two (or more) different provisions may apply to the same circumstance.


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Despite the best efforts by the parties to an industrial instrument or legislative draftspeople employed by government to word appropriate changes to employment legislation, the sheer volume of compliance imposed on employers by these instruments means that occasionally two (or more) different provisions may apply to the same circumstance.

Where such a conflict of law occurs, an employer may be placed in the invidious position of attempting to apply the most appropriate provision to the relevant circumstances. Some guidance on finding the correct answer is provided here.

Industrial instruments (awards and agreements)

Industrial instruments - federal v state: Where a federal and state industrial instrument both have coverage of a particular type of work, the federal instrument will usually take precedence over the state instrument to the extent of any inconsistency.

This is because of provisions contained in the Australian Constitution, the Workplace Relations Act 1996 [Cth], and authorities determined by the courts.

In most cases, determining award or agreement coverage is straight-forward, however, problems can arise where the federal award/agreement has a broad scope and an 'all others not elsewhere classified' classification. For example, a truck driver who was employed by a newspaper publisher was deemed by an industrial tribunal to be covered by the 'all others' classification in the federal award applicable to the employer's industry rather than the state transport industry award. The consequential impact on the employee's wage was considerable, with the federal newspaper publishing award prescribing a minimum wage in excess of one hundred dollars per week lower than the state transport industry award.

Federal industrial instrument v state legislation: It is usually presumed by industrial tribunals that state legislation will apply unless there is a specific provision contained in the federal industrial instrument which provides a similar condition.

For example, the Industrial Relations Act 1996 [NSW] protects an injured worker's employment for a period of up to six months, ie the employee is absent on workers compensation. An employee covered under the federal hotels' award was dismissed by their employer before six months had elapsed. The employer argued that because the employee was covered by a federal award which made provision for termination of employment, the state legislation did not apply. As there was no protection provided in the federal award, the NSWIRComm determined the employer breached the state Act and the employee was reinstated to their former position.

Non-industrial instrument employees

An employee who is not covered under any industrial instrument, ie award, certified agreement, or Australian Workplace Agreement, may still be entitled to certain minimum employment conditions, even though their contract of employment may not provide for such entitlements.

An employer cannot use the provisions of an individual's contract of employment to avoid or provide a lesser benefit than prescribed by the minimum provisions of the prevailing legislation. Most states and territories have employment legislation which provides minimum entitlements for such conditions as annual leave, long service leave, and parental leave to all employees within the jurisdiction. Employment legislation in some states, for example Queensland and Western Australia, also provide minimum entitlements covering other employment conditions, such as sick leave, public holidays and redundancy pay.

Two different provisions - same circumstance

Penalty rates: In the absence of a specific provision in the relevant industrial instrument, a limitation is usually imposed on the cumulation of penalty rates paid in respect of shift work, overtime, weekend work, and public holiday work.

For example, an industrial instrument may provide for time and a half and double time for overtime work, whereas public holiday work usually attracts a penalty rate of double time and a half. Because both penalty rates are calculated on the employee's ordinary rate of pay, industrial tribunals have determined the issue as which is the more appropriate penalty rate applicable to the circumstances, rather than whether there is a penalty on a penalty. In this instance, the more specific provision would apply, ie the public holiday penalty rate. This is because the penalty rate applies to all work performed on a public holiday, be it ordinary time worked or overtime.

Notice of termination: Most industrial instruments provide for a minimum period of notice to be given by either party when terminating the contract of employment. However, when an employer wishes to terminate an employee, there is a statutory obligation under s.170CM of the Workplace Relations Act 1996 [Cth] for the employer to give a minimum period of notice of termination to an employee, including notice to an employee who is covered by a state industrial instrument.

The federal notice provisions would override any notice of termination provisions contained in a state industrial instrument where the federal legislation provides a greater benefit.

Special rates and allowances: A common feature in industrial instruments is the provision of special rates, ie additional amounts for performing work under unusual circumstances - hot work, cold work, wet work, confined spaces, etc.

When an employee performs work which may attract two or more special rates, the industrial instrument will normally provide that the highest rate applies to the work to the exclusion of the other rates. In addition, these special rates are not ordinarily taken into account when applying penalty rates for work such as overtime or public holiday work. The result is the special rates are added to the total after the penalty rate has been calculated.

Garnishee order: An employer may be required to comply with a garnishee order issued by a court to deduct moneys from an employee's wages and a requirement to pay moneys to an employee because of employment legislation, thus creating a conflict of law.

For example, an employer is usually in breach of annual leave or long service leave legislation if an employee is not paid pro rata termination pay. Under these circumstances, the employer cannot comply with both the garnishee order and the relevant legislation. In this case, the employer would be advised to comply with the garnishee order as the specific court order would usually be sufficient to override the employment legislation.


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