Minimum standards & proposed federal workplace legislation

Analysis

Minimum standards & proposed federal workplace legislation

A Victorian workplace privacy regulator should be established to oversee breaches of drug and alcohol tests among other matters, a Victorian Law Reform Commission has recommended. In addition, drug and alcohol tests should be covered by mandatory codes of practice.

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With the release of a more detailed insight into the proposed federal IR changes on 9 October, an important question that will need to be addressed is the on-going impact of existing minimum standards provided by state and territory laws.

A recent article in WorkplaceInfo contemplated the consequences of the introduction of the Australian Fair Pay and Condition Standards (AFP&CS) under the proposed federal workplace relations legislation, which is expected to be introduced to federal parliament within the next month.

Employees not covered by proposed federal legislation

While the Federal Government has indicated that the new industrial relations system will be a 'national' system, it is not expected to cover every employee in Australia.

Consequently, certain state and territory legislation will continue to provide minimum employment conditions for certain some workers employed within the relevant jurisdiction.

The proposed AFP&CS are expected to include minimum entitlements of 10 days per year personal (sick) leave, parental leave of up to 52 weeks unpaid leave and ordinary hours of work (38 hours per week) averaged over one year.

This article summarises the relevant State and Territory employment legislation, where applicable, for these three employment conditions. A previous article summarised the various state/territory legislation governing annual leave entitlements. The position outlined in that article remains sound in the light of the most recent announcement from the Federal Government:
 
Who will be exempt from legislation?

The minimum employment conditions expected to be prescribed under the Australian Fair Pay & Condition Standards (AFP&CS) will form the standard by which agreements, ie. certified agreements and Australian Workplace Agreements (AWAs), will be assessed.

It is also expected that employees currently employed under a federal or state award, federal or state certified agreement or an AWA, will continue to have their minimum conditions of employment regulated by the respective industrial instrument.

Both employers and employees will become increasingly exposed to the new legislation as current agreements expire and are re-negotiated, or when an employee accepts employment with a new employer.

An employee whose employment entitlements are not subject to the provisions of an award, registered agreement or AWA, will not be covered by the minimum standards to be prescribed by the new legislation.

In this case, an employee in this situation will continue to have their conditions of employment governed by their individual contract of employment, in conjunction with the appropriate state or territory legislation.

Sick leave

Some states and territories have legislation which prescribe minimum entitlements to sick leave and other leave, eg. bereavement leave, although, no such legislation exists in New South Wales, Tasmania, Northern Territory or Australian Capital Territory. An employee employed in these state or territories, who is not covered by an industrial instrument, would have their sick leave entitlements provided by their individual contract of employment.

The following jurisdictions provide a minimum statutory entitlement to sick leave for any employees not covered by an industrial instrument:

Victoria - The minimum sick leave entitlement for Victorian workers is currently prescribed under the Workplace Relations Act 1996 [Cth]. It is anticipated this legislation will be amended to incorporate new minimum personal (sick) leave provisions which are to be determined by the Federal Government in the proposed legislation.

Queensland - The minimum sick leave entitlements are prescribed under the Industrial Relations Act 1999 [Qld] which provides for eight days sick leave per year for each completed year of employment, and one day's sick leave for each completed six weeks of employment.

South Australia - The minimum entitlement to sick leave accrues at the rate of 5/26ths of one day for each completed week; and for each later year of continuous service ten (10) days accrues at the beginning of each year. There is an unlimited accrual of any untaken sick leave left over from a particular year. An employee who has a sick leave credit, and who is on annual leave, is entitled to take sick leave instead of annual leave if the person is sick for a period of at least three days, subject to the production of reasonable medical evidence. There is no sick leave entitlement for a casual employee.

Western Australia - The minimum sick leave entitlements are prescribed under the Minimum Conditions of Employment Act 1993 [WA], which provides up to ten days or 80 hours sick leave. Sick leave does not accumulate from year to year. Part-time employees are entitled to a proportionate amount of sick leave.

Parental leave

As with annual leave and sick leave, an employee whose conditions of employment are subject to an individual contract of employment will have their parental leave entitlements determined by the relevant state or territory legislation. With the exception of Tasmania and Northern Territory, all other states and the ACT have legislation which provides an entitlement of up to 52 weeks unpaid parental leave to employees in the private sector. Parental leave includes maternity, paternity and adoption leave.

Hours of work

There are no prescribed minimum hours of work contained in any state or territory employment legislation for those employees not covered by an industrial instrument. Currently, only Victorian employees are subject to a maximum of 38 ordinary weekly hours of work under the Workplace Relations Act 1996 [Cth].

Public holidays

All states and territories have legislation which bestows public holidays on employees employed in that jurisdiction. An exception to this is New South Wales, where the Bank and Bank Holidays Act 1912 [NSW] provides for public holidays where the contract of employment prescribes a particular day as a holiday, otherwise, there is no automatic entitlement to a public holiday for a non-industrial instrument employee.

Bereavement leave

Bereavement leave is prescribed in legislation in three states, ie. Queensland, South Australia and Western Australia. In Queensland, the Industrial Relations Act 1999 [Qld] provides employees, including 'long-term casuals', with two days leave on the death of an immediate family or household member.

In South Australia, the Fair Work Act 1994 [SA] provides an entitlement to two days bereavement leave for all full-time and part-time employees on the death of a spouse, parent, child, any other member of the employee's household, or any other person who is dependant on the person's care.

In Western Australia, the Minimum Conditions of Employment Act 1993 [WA] provides an entitlement to two days bereavement leave on the death of a spouse (including de facto), child or step-child, parent or step-parent, any other person, who at the time of death, was living with the employee as a member of the employee's family.

Related

Proposed federal workplace legislation and annual leave entitlements

See generally: IR changes 2005

 

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