Victorian employees & WorkChoices

Analysis

Victorian employees & WorkChoices

The impact of WorkChoices on Victorian employees deserves special treatment as Victoria had referred its industrial relations powers to the Federal Government before WorkChoices commenced.

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The impact of WorkChoices on Victorian employees deserves special treatment as Victoria had referred its industrial relations powers to the Federal Government before WorkChoices commenced.

The WorkChoices legislation has an immediate impact on most employees and employers throughout Australia and because Victoria had previously referred its powers to the Australian Government all employees in that State will continue to be part of the federal system. Because of this there are some transitional arrangements that are specific to Victoria. In some cases, different categories of Victorian employees will have alternate entitlements from constitutional corporation employees.

Overview

The majority of employers and employees in Victoria have operated under a pre-reform federal award or a pre-reform certified agreement for some years. Many Victorian awards have been declared as 'common rule' for that State, meaning the award applies to all employees covered by the scope of the appropriate award.

Consequently, most existing terms and conditions of employment for those employees under a pre-reform federal award will continue to apply unless the entitlements are less generous than the Australian Fair Pay & Conditions Standard (AFPCS).

Types of employees

Most Victorian workers will be covered by WorkChoices where they are employed by a constitutional corporation; the Commonwealth; a Commonwealth authority; an employer who employs an individual as a flight crew officer, a maritime employee, or a waterside worker.

Victorian employees may also be covered by WorkChoices because of Victoria's referral of its legislative powers to the Commonwealth for particular workplace relations matters. This category of employee is referred to as a 'Victorian referral employee'.

Australian Fair Pay & Conditions Standard (AFPCS)

The AFPCS applies to constitutional corporation employees in Victoria. The AFPCS covers entitlements including a minimum wage, maximum weekly hours, annual leave, personal/carer's leave, parental leave, meal breaks, and paid public holidays.

The Australian Fair Pay Commission (AFPC) will set Victorian minimum wages for employees of constitutional corporations in the same way as it will for each state and territory. Victorian referral employees covered under an award will continue to be covered by these awards over a transitional period although their award conditions will be subject to the AFPCS, except for wages.

Referral employees

Victorian referral employees covered by a workplace agreement will have their wages and casual loadings guaranteed by two mandatory provisions under WorkChoices. For award-free and agreement-free Victorian referral employees the AFPC will adjust employees' wages.

However, for Victorian referral employees, only wages provided for an industry sector and work classification that existed under Victoria's Employee Relations Act 1992 will be dealt with by the AFPC.

Awards

Pre-reform federal awards will bind constitutional corporations in Victoria in the same way as they bind constitutional corporation employers in other states. Where a pre-reform federal award binds a Victorian referral employer, the employer will continue to be bound by that award for a transitional period of 5 years, the same as in the other states.

However, with the exception of wages, these awards in Victoria will be underpinned by the AFPCS. Awards which were declared to have 'common rule' effect in Victoria before the commencement of WorkChoices will continue to apply to Victorian referral employers for a transitional period of 5 years.

Referral employees

New Victorian referral employees will be subject to the appropriate existing common rule award, but no new common rule awards will be made during the transitional period. These common rule awards will also be underpinned by the AFPCS. At the end of the transitional period, Victorian referral employees will revert to the AFPCS unless a workplace agreement has been put in place.

State Industry Sector Framework

This system provides minimum wage rates for employees in award-free sectors of the workforce, ie. where common rule coverage has not been established, or where an employee's seniority or level of responsibility puts them in the 'award-free' category. Employees who are currently employed under a Minimum Wage Order will be entitled to the minimum terms and conditions of employment as determined by the AFPCS.

The declared minimum wage sector orders for Victorian workers are: Accommodation, Cafes & Restaurants; Agriculture, Forestry & Fishing; Communication Services; Construction Industry; Cultural & Recreational Services; Education Services; Electricity, Water Supply; Finance & Insurance; Government Administration; Health & Community Services; Manufacturing Industry; Mining Industry; Personal & Other Services; Police Services; Property & Business Services; Retail Trade; Transport & Storage; and Wholesale Trade.

Agreements and referral employees

A Victorian referral employee covered by a workplace agreement will have their wage and casual loading guaranteed by two mandatory provisions under WorkChoices.

A workplace agreement must include clauses that guarantee employees covered by the agreement will receive at least the relevant wage rate applicable under the AFPCS if the employee was not covered by an award or workplace agreement, and the casual loading (if applicable) provided by the AFPCS.

Award-free employees

For award-free and agreement-free Victorian referral employees the Australian Fair Pay Commission will be able to adjust employees' wages. However, for Victorian referral employees, only wages provided for in an industry sector and work classification that existed under the Employee Relations Act 1992 [Vic] will be dealt with by the Australian Fair Pay Commission.

Long service leave

Long service leave in Victoria will apply in accordance with the provisions of the Long Service Leave Act 1992 [Vic], unless the appropriate pre-reform federal award or pre-reform certified agreement contains specific long service leave conditions.

Examples of pre-reform federal awards that contain a long service leave provision include: Metal, Engineering & Associated Industries Award; Graphic Arts Award; Vehicle Industry - Repair Service & Retail Award; Food Preservers Award; Glass Industry - Glass Production Award; Meat Industry (Processing) Award; Insurance Industry Award, and a number of Victorian-specific awards, particularly in the public and private health sector and the education sector, amongst others.

Public holidays

The Public Holidays Act 1993 [Vic] lists the public holidays to be observed in Victoria and the method used to determine the date of observance. The Act lists the following public holidays for Victoria: New Year's Day or the day after when it falls on Sunday; 26 January (Australia Day); second Monday in March (Labour Day); Good Friday; Easter Monday; 25 April (Anzac Day); second Monday in June (Queen's Birthday); first Tuesday in November (Melbourne Cup Day) (Melbourne metropolitan area only); Christmas Day; and the day after Christmas Day (Boxing Day) or the following day when Boxing Day is a Sunday.

Employees employed under a pre-reform award or pre-reform certified agreement will be subject to the public holidays prescribed in the appropriate industrial instrument. The WorkChoices legislation provides employees with the right to refuse to work on the prescribed public holidays and a guarantee of payment for each public holiday.

Minimum notice of termination

The minimum notice of termination of employment by the employer is in accordance with the provisions of the Workplace Relations Act. The minimum periods are: up to 1 year's service - 1 week's notice; more than 1 but less than 3 years service - 2 weeks notice; more than 3 but less than 5 years service - 3 weeks notice; more than 5 years service - 4 weeks notice. An employee over 45 years of age with more than 2 years service is entitled to an additional weeks notice.

The amount of notice of termination of employment required to be given by the employee is subject to the appropriate industrial instrument or, in the case of an award-free employee, their individual contract of employment.

Related

2005 saw massive IR changes in Victoria

Victorian award system - pre-WorkChoices

 

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