State legislation and Wages cases - employer questions about WorkChoices

Analysis

State legislation and Wages cases - employer questions about WorkChoices

This article is the first in a series that summarises the employer position under WorkChoices. The focus of this article is on State legislation and State Wage Cases and their impact on employers under WorkChoices.

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This article is the first in a series that summarises the employer position under WorkChoices. The focus of this article is on State legislation and State Wage Cases and their impact on employers under WorkChoices.

As with any new legislation, any change in wording can create issues relating to interpretation. Such is the case with WorkChoices. Any number of seminars, conferences, and similar functions attract large attendances but, in many cases, the presentations instigate more questions than answers.

While many views have been given on some of the issues, unfortunately, nothing is conclusive until determined by the relevant courts.

These articles provide a snapshot of the types of questions that have been frequently asked by employers since the introduction of WorkChoices.

Changes to state/territory legislation

What happens if a State or Territory government amends employment legislation after 27 March 2006 providing a more generous entitlement than that prescribed under the Australian Fair Pay and Conditions Standard (AFPCS)?

The answer is 'no change'.

Recently, for example, the WA Government amended their employment legislation to change certain employment entitlements, ie parental leave (total of 104 weeks), annual leave and long service leave, operative from 4 July 2006.

With the exception of the long service leave amendments, any increased employment conditions (or award wage increases) provided by a State or Territory government subsequent to 27 March 2006 do not affect the 'preserved terms' prescribed in a notional agreement preserving State awards (NAPSA) or a pre-reform Federal award for those employees employed by a 'constitutional corporation'.

The changes will only affect employees employed by a sole trader or partnership.

Back-dated legislation

Even where a State or Territory government back-dates any amendment to (say) 26 March 2006, or earlier, the Standard would still apply because WorkChoices 'preserves' the entitlements prescribed in a NAPSA or pre-reform Federal award that were contained in the award as at 27 March 2006.

State Wage Case increases

Will any wage increase handed down by a State industrial tribunal after the introduction of WorkChoices affect the wage rates prescribed under a notional agreement preserving State awards (NAPSA)?

The answer is no.

For employers covered by WorkChoices, the terms of State awards (as with State or Territory employment legislation) as they were on 27 March 2006 became the basis for NAPSAs, and for minimum classification rates under WorkChoices. The minimum wage rates (including casual loading) and classification structure under pre-reform awards and NAPSAs are preserved under WorkChoices and are now referred to as the Australian Pay and Classification Scales.

For example, the NSW Industrial Commission handed down a State Wage Case in June 2006 which increased award rates under State awards by $20.00 per week. Because the decision was handed down after 27 March 2006, it will only be payable to those employees under a NSW award who are employed by a sole trader or partnership. It does not affect the wage rates prescribed under the Australian Pay and Classification Scales.

Related

WorkChoices in action …

Qld and Tas State Wage Cases - $20 benchmark

NSW State Wage Case pressures Fair Pay Commission

WA State Wage Case 2006 - $20pw to minimum rates



  

 

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