State authorities still have some supervisory powers over junior rates of pay, even when the employer is a trading corporation otherwise governed by federal workplace relations legislation.

 

This question was recently sent to WorkplaceInfo. 

 

Q  We operate in New South Wales and employ a number of employees under the age of 18 years. The junior employees are covered by a NSW NAPSA, with minimum junior rates of pay from 16 years of age to 18 years.

 

A previous employee has complained to the NSW Office of Industrial Relations claiming the company underpaid him during his employment with us, stating the applicable rate of pay was covered by the relevant NSW State award. We paid the relevant rate of pay under the NAPSA as per the minimum junior rates prescribed by the Australian Pay and Classification Scales (APCS) on the federal Workplace Authority website.

 

As the company is a corporation, we presumed our employees are covered by the federal system, with the State system only applying to sole traders and partnerships.

 

The NSW authorities have confirmed the underpayment of the employee’s wages and have said they will take action to recover the underpayment.

 

Do the NSW authorities have the right to pursue an alleged breach of a State industrial instrument or are they mistaken?

 

A  The NSW Office of Industrial Relations have the right to pursue this matter. 

 

In NSW, the Industrial Relations (Child Employment) Act 2006 [NSW] requires the employer of a person under 18 years to provide employment terms and conditions at least equivalent to those applying under the comparable NSW award and industrial legislation. 

 

Where a comparable NSW state award prescribes a relevant junior rate of pay that is greater than the APCS, the state award rate of pay will prevail. 

 

The Act also applies to incorporated employers in NSW who dismiss a young person under 18 years, regardless of the number of employees employed by the employer. 

 

The NSW Office of Industrial Relations has responsibility for enforcement and ensuring compliance with the Act. This State legislation overrides the Workplace Relations Act (WRAct) because s16(3)(e) of the WRAct does not exclude the operation of certain State and Territory laws, including ‘child labour laws’, ie. laws applying to persons under 18 years of age, although the definition of a ‘child’ is determined by the relevant State or Territory law.