Other legislation still relevant in the WorkChoices environment

Analysis

Other legislation still relevant in the WorkChoices environment

There is legislation, in addition to WorkChoices, that employers will still be required to observe in their arrangements with their employees. Even though the High Court has confirmed the broad application of the WorkChoices legislation, employers should be aware of this other legislation that impacts on their responsibilities.

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There is legislation, in addition to WorkChoices, that employers will still be required to observe in their arrangements with their employees. Even though the High Court has confirmed the broad application of the WorkChoices legislation, employers should be aware of this other legislation that impacts on their responsibilities.

While the WorkChoices legislation encompasses a broad range of workplace issues and conditions of employment, it is not exhaustive in covering all the legal obligations an employer must observe in the course of employment.

Many other employment-related conditions prescribed by the relevant Federal, State or Territory legislation continue to impose legal obligations on employers. For example, child labour laws in NSW regarding unfair dismissal provisions remain relevant, as do NSW laws on the dismissal process involving apprentices.

State and Territory statutory obligations

This article looks at some of these State and Territory statutory obligations which have been identified by the WorkChoices legislation as operating independently of it.

State/Territory laws - non-excluded matters

The following types of State and Territory laws will continue to apply; and employers generally are obliged to comply:
  • the prevention of discrimination and the promotion of EEO
  • superannuation
  • workers compensation
  • occupational health and safety (including entry of a representative of a trade union to premises for a purpose connected with OHS)
  • matters relating to outworkers (including entry of a representative of a trade union to premises for purpose connected with outworkers)
  • child labour
  • long service leave
  • the observance of a public holiday, except the rate of payment of an employee for the public holiday
  • the method of payment of wages or salaries
  • the frequency of payment of wages or salaries
  • deductions from wages and salaries
  • industrial action affecting essential services
  • attendance for service on a jury
  • regulation of industrial associations

WorkChoices also makes reference to emergency services employees having protection from dismissal in the performance of their voluntary work, although this is also covered under certain State/Territory legislation.

Discrimination law

Legislation exists Federally, and in all States and Territories, that prohibits discrimination in the workplace on the basis of a number of grounds, including sex (including pregnancy), race, colour nationality, religion, marital status, sexual preference, disability, age, and carer's responsibilities.

There are generally two types of discrimination - direct and indirect. 'Direct discrimination' occurs when someone is treated unfairly or unequally simply because they belong to a particular group or category of people. 'Indirect discrimination' occurs where there is a requirement that is the same for everyone but which has an unequal or disproportionate effect on different groups of people, for example, because of their sex or race.

An employer is not in breach of discrimination law where a particular characteristic is essential for the job.

Discrimination law would usually include any reference to equal employment opportunity (EEO) law, harassment in the workplace, and affirmative action law.

An employee who alleges his or her dismissal was unlawful (ie. for discriminatory reasons) may take the matter to the relevant State anti-discrimination board or tribunal instead of accessing the unlawful dismissal provisions under WorkChoices. However, an employee cannot pursue a claim under Federal law, for the same matter, once the unlawful dismissal claim has been determined by the relevant State discrimination tribunal.

Superannuation

While the Superannuation Guarantee Charge (SGC) is subject to Federal law, some States provide superannuation provisions that impose certain obligations on employers with respect to aspects of superannuation.

For example, in NSW, the industrial relations legislation prescribes an entitlement for employees, under an industrial instrument, to opt for the superannuation fund of their choice, regardless of whether the industrial instrument identifies a specific fund into which employer contributions are to be made by the employer. Such a request by the employee must be made in writing.

Similarly legislation exists in Western Australia, where employees have the right to elect employer contributions be made to a superannuation fund of their choice.

Occupational health and safety

Under the relevant State and Territory law, all employers must observe a general duty of care towards their employees, and others who may be exposed to health and safety risks arising from the conduct of an employer's business.

This duty of care includes a duty to provide employees with the necessary information, training, instruction and supervision to perform their work in a safe manner. Generally, occupational health and safety (OHS) legislation provides the basis of the law. Obligations set out in the relevant Act are mandatory.

In addition, there are Codes of Practice that are practical guides to complying with the requirements of the relevant legislation. State and Territory OHS legislation and their enforcement will continue to be controlled by the relevant State or Territory prosecuting authority, and applies independent of the WorkChoices legislation.

Right of entry: This is a circumstance where both State/Territory law and the WorkChoices legislation will apply. Some State and Territory OHS legislation allow for a trade union representative to enter the workplace for the purposes of investigating any possible breaches of health and safety laws. In addition, WorkChoices requires certain obligations for parties wishing to enter the workplace with regard to OHS matters, as well as any current limitations and obligations contained in the relevant State or Territory legislation. A union official can enter premises without notice to investigate suspected breaches of OHS law, although to inspect employment records in relation to an OHS matter the union official must give at least 24 hours written notice before the entry.

Discrimination and OHS: State and Territory OHS legislation generally prohibits discrimination against an employee in relation to any OHS matter. It is unlawful to dismiss employees who make a reasonable complaint in relation to health and safety in their workplace. Apart from the Territories, OHS legislation generally provides that it is unlawful for an employer to dismiss an employee because they are, or were, a health and safety representative or a member of an OHS committee.

Outworkers

Because of the nature of employment with respect to outworkers, some States have legislated certain protections for this type of employee with respect to guaranteeing the conditions of employment that apply to other workers in the same industry. This mode of employment has traditionally been associated with the clothing industry, however, other industries such as marketing and IT services have seen an increase in this type of employment.

Outworkers legislation also may allow a trade union representative access to these employees, otherwise there may be complications with respect to access to a private dwelling. Some State legislation may also require the registration of an outworker by the employer with the relevant industrial relations authority.

Child labour

Most States and Territories have legislation which prohibits the employment of a person below the prescribed minimum school age, which would prevent their attendance from school, eg 16 years of age.

This type of legislation usually relates to the prohibition of work performed during school hours, rather than restricting work outside school hours or during school holidays. However, some States, such as Victoria, have a minimum legal age for the performance of any work at any time, eg 13 years (11 years in certain circumstances). This means it is illegal to employ any person below this minimum working age.

NSW: In December 2006, the NSW Government enacted legislation dealing with the employment of young persons, ie under 18 years of age, regarding a number of matters, including unfair dismissal and the application of a 'no net detriment test' when employed under a workplace agreement or AWA made subsequent to the WorkChoices legislation. It does not apply to existing arrangements under pre-reform agreements. In addition, any young person (under 18 years) terminated on or after 24 October 2006 can bring an unfair dismissal claim in the NSW Industrial Relations Commission under the NSW unfair dismissal laws, provided their employer is a constitutional corporation.

Apprentices: There may be restrictions on the ability of an employer to terminate an apprentice under State laws. For example, in NSW, if the cancellation of an apprenticeship is not by mutual consent the employer must apply through an apprenticeship tribunal to terminate the apprentice. There is an ultimate appeal to the NSW Industrial Relations Commission. This law will still apply because the statute regulating this issue in NSW is 'training arrangements' legislation.

Workers compensation

Legislation exists in all States and Territories that provides monetary compensation for employees injured in the performance of a work-related activity or who contract a disease through their employment. Some workers compensation legislation may provide for conditions related to the employee's contract of employment.

For example, in NSW, an employee is entitled to receive payment for annual leave, long service leave and a public holiday notwithstanding the employee receiving workers compensation payments. Another provision prohibits the termination of a worker for the first six months of the incapacity if the reason for dismissal is due to the employee's absence on workers compensation. Similar restrictions apply in Victorian and South Australian workers compensation legislation.

Long service leave

All States and Territories have legislation providing an entitlement of long service leave on all private sector employees who are not covered by a Federal industrial instrument that prescribes long service leave. It may also be governed by a Federal industrial instrument, which overrides the State/Territory legislation if prescribed.

Long service leave may be taken after completing a certain period of time (usually 10 years) with an entitlement to pro rata leave on termination of employment, usually under certain circumstances. A new workplace agreement made under WorkChoices can displace the relevant long service leave legislation, either by monetary compensation or the withdrawal of the entitlement by agreement.

Public holidays

Most States and Territories have legislation that provides for the observance of specified list of public holidays (usually 10 per year), the date of observance being subject to change by proclamation by the respective State/Territory government.

Public holidays that apply throughout Australia include New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Queen's Birthday, Labour Day, Christmas Day and Boxing Day.

Each State and Territory has other public holidays that are specific to that jurisdiction. An entitlement to a public holiday should be read in conjunction with the applicable industrial instrument (where relevant).

The WorkChoices legislation protects the right of an employee to refuse to work on a public holiday if the employee has reasonable grounds for doing so.

Jury service

Legislation exists in all States and Territories that requires a person to attend for jury service when requested by the appropriate court authority.

This type of legislation usually requires the employer to release the employee for jury service and not to obstruct the employee in this situation. Whilst there may be nominal payments (usually covering expenses) to the employee regarding attendance to jury service, generally there is no compensation of lost wages involved in jury service legislation. An exception to this is Victoria where legislation exists which covers non-industrial instrument employees providing the employee is to receive from their employer an amount equal to the difference between the jury service payment and their ordinary rate of pay for that day. An employee's entitlement to payment of their ordinary wages for the days attending jury are usually provided by the applicable industrial instrument.

Method/frequency of wages and salaries

While the method of payment and the frequency of payment of wages and salaries is usually determined by the applicable industrial instrument, legislation exists in some States which governs the method and frequency of the payment of wages/salaries.

This will usually apply to those employees who are not covered by an industrial instrument or where the industrial instrument is silent in this respect. Legislation regarding these matters would usually allow the payment of wages/salaries by electronic funds transfer (EFT) and a maximum frequency of payment of wages/salaries of one month.

Emergency services

Legislation exists Federally and in some States and Territories which protects employees from being 'victimised' by their employer for participating in emergency services work. This is generally restricted to 'a declared state of emergency' such as a bush fire, storms and floods, earthquakes, explosions, accidents, etc.

WorkChoices makes it unlawful for an employer to terminate an employee's employment based on temporary absence from work because of the carrying out of a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances. The Federal legislation also applies to those States which do not specifically provide protection through the relevant State legislation.

Related

Legislation - overview

NSW young workers get unfair dismissal protection

See relevant entries in Encyclopaedia

  

 

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