State law impacting on Fair Work Act — which statute prevails?

Q&A

State law impacting on Fair Work Act — which statute prevails?

Although the Fair Work legislation generally moved most Australian business to the federal jurisdiction, some elements of state law continue to apply to national system employers.

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Although the Fair Work legislation generally moved most Australian business to the federal jurisdiction, some elements of state law continue to apply to national system employers.
 
A recent question to WorkplaceInfo highlighted this issue.
 
We have an office in Western Australia where a number of staff are members of the WA state emergency service.
 
One employee was recently involved in emergency service work, clearing up after a storm had hit the Perth area.
 
The employee has approached the office manager stating he is entitled to be paid for the time he was absent on SES duties.
 
It’s our understanding that community service leave under the National Employment Standards (NES) is unpaid (except for jury service), but the employee insists the SES supervisor advised him that there was an entitlement to payment for the absence.
 
On what basis would the employee be entitled to any payment?
 
A  A number industrial matters covered by a state or territory law are not excluded by the Fair Work Act 2009.
 
One “non-excluded matter” relates to “attendance for emergency services duties”.
 
A state or territory law that is not excluded by the Fair Work Act and that provides a more beneficial entitlement will prevail over the relevant provision under the NES.
 
In this case …
 
In this case, s92(2) of the WA Emergency Management Act 2005 provides that an employee who is absent from work because the employee is carrying out an emergency management response is entitled to be paid at the employee’s ordinary remuneration for the ordinary time the employee would have worked but for the absence.
 
Because this state law provides a more beneficial entitlement than the NES (paid community service leave rather than unpaid leave), it overrides the community service leave provisions of the NES.
 
The employer would be required to comply with the WA Emergency Management Act.
 
Section 112 of the Fair Work Act also states that the Fair Work Act is not intended to apply to the exclusion of a state or territory law that provides a more beneficial entitlement in relation to engaging in eligible community service activities than the entitlement under the NES.
 
Source: Paul Munro, IR Consultant.
 
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