State & territory laws not excluded by FW Act

Analysis

State & territory laws not excluded by FW Act

While the Fair Work Act provides minimum conditions of employment under the National Employment Standards and protection for employees in relation to unfair dismissal and general protections matters, the Act is not the only source of legal obligation placed on an employer in relation to employment-related matters.

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While the Fair Work Act provides minimum conditions of employment under the National Employment Standards (NES) and protection for employees in relation to unfair dismissal and general protections matters, the Act is not the only source of legal obligation placed on an employer in relation to employment-related matters.

The Fair Work Act 2009 identifies those matters prescribed by a state or a territory law that are not excluded by the Fair Work Act and, consequently, continue to apply.

Note: an employer in Western Australia whose business is unincorporated (eg sole trader or a partnership) is not subject to the Fair Work Act. The relevant WA employment laws would apply, as well as any applicable industrial instrument.

Non-excluded matters — Fair Work Act
 
Under the Fair Work Act (s27), the following are matters covered by a state or a territory law that are not excluded by the Fair Work Act. These non-excluded matters include:

Anti-discrimination
 
Apart from the FWAct, there are Commonwealth, state and territory anti-discrimination laws that prohibit discrimination, harassment, victimisation, bullying and (in some jurisdictions) vilification in various areas of public life, including the workplace.

For example, an employee dismissed on the grounds of discrimination may seek a remedy before a Commonwealth, a state or a territory anti-discrimination tribunal rather than an adverse action claim to the Federal Magistrates Court.

The laws concerning discrimination in employment are not all uniform, being scattered between Commonwealth, state and territory jurisdictions. There are two types of discrimination prohibited by legislation — direct and indirect.

Workers compensation
 
The Commonwealth, each state and each territory, has legislation relating to the provision of workers compensation when an employee suffers a workplace-related illness or an injury.

While a workers compensation law regulates an employee’s entitlement to compensation and the administration of such a scheme, such a law may also prevent an injured worker’s dismissal where the reason is due to the employee’s absence on workers compensation.

A workers compensation law may also provide for the accrual of annual leave and long service leave, and the taking of public holidays that fall during an injured worker’s absence from work.

Matters relating to outworkers
 
State laws dealing with outworkers continue to apply.

The term ‘outwork’ usually refers to work performed outside the employer’s premises, factory or established places of work.

This type of work is particularly common in the clothing industry.

The arrangements for outworkers are generally subject to the relevant state legislative regulation, in addition to the applicable modern award. State legislation regarding outworker arrangements exist in New South Wales, Queensland, South Australia, Tasmania and Victoria. These laws generally provide a Code of Ethics with respect to the employment of outworkers, although it is not normally intended to override the conditions of the relevant modern award where there is an inconsistency.

Child labour (employees under 18 years of age)
 
Child labour laws usually place restrictions on certain types of work being performed by young persons, times when a young person is prohibited from working and prohibition from employing young persons below a specified age in certain designated work.

Such laws are usually based on principles similar to work health and safety laws.

Child labour laws exist in the Australian Capital Territory, New South Wales, Queensland and Western Australia.

Note: the Fair Work Regulations 2009 (Cth) excludes any state or territory law that provides terms and conditions of employment that are covered by the NES or may be included in a modern award or included in an enterprise agreement.

Training arrangements
 
A ‘training arrangement’ means a combination of work and training that is subject to a training arrangement, or a training contract, that takes effect under a state or a territory law relating to the training of employees.

Examples of a training arrangement include an apprenticeship and a traineeship.

Such laws usually regulate the application and approval of such an arrangement and ongoing monitoring of an employee’s progress to completing the training arrangement.

The provisions of a state or a territory training arrangement law that relate to terms and conditions of employment that are covered by the NES or may be included in a modern award or an enterprise agreement do not apply and are overridden by the Fair Work Act.

Long service leave
 
While the NES regulates long service leave terms previously provided by federal awards, the long service leave entitlements for the majority of private sector employees are regulated by the relevant state or territory long service leave legislation. The specific entitlements to leave, such as the amount of leave and certain absences being counted as service, do differ depending on the relevant state or territory long service leave legislation. Note: the relevant state or territory long service leave legislation is considered in the better off overall test (BOOT) for the purpose of the approval by Fair Work Australia of a proposed enterprise agreement.

Leave for victims of crime
 
Legislation for victims of violent crime provides a right, to these employees, to unpaid leave to attend court proceedings in connection with the offence concerned. (For example, Pt 4B of the NSW Industrial Relations Act 1996.)
 
The crime may include a family member who has died as a direct result of a violent crime, or whose child or grandchild is a victim. An employee would normally be allowed to take other forms of paid leave in conjunction with this unpaid leave.

Jury service or emergency service duties
 
A state or a territory law that provides employee entitlements in relation to community service activities (eg jury service or volunteer emergency management activities) are not excluded and continue to apply where there is a more beneficial entitlement.

For example, the FWAct does not exclude a state or a territory law that entitles a casual employee to be paid jury service pay or an entitlement to a higher level or a longer period of make-up payment from an employer when an employee is absent on jury service (eg Vic Juries Act 2000). See also a previous WorkplaceInfo article

Public holidays
 
The NES does not affect a state or territory public holiday law dealing with the declaration, prescription or substitution of public holidays, but excludes provisions in relation to the rights and obligations of an employee or an employer in relation to public holidays.

This means a public holiday declared or substituted by a state or a territory public holiday law is enforceable in conjunction with the provisions of the NES. This would include any holiday or half-holiday declared for a specified region or area within a state or a territory.

A provision of a state or a territory public holiday law that provides a penalty rate for work performed on a public holiday, however, will not be valid.

Work relating to essential or emergency services
 
While similar provision exists under the Fair Work Act (s772(1)(h)), a state or a territory law may also prohibit an employer victimising an employee in their employment if he or she engages in emergency service work. Examples of victimisation would include dismissal, demotion or changes to the employee’s position in his or her employment.

Some state emergency service laws may provide more beneficial entitlements than the NES. For example, the respective emergency service laws in Queensland and Western Australia provide for payment by the employer of the employee’s ordinary wage for the period the employee is absent on emergency service work.

Right of entry relating to OHS, workers compensation or outworkers
 
Rights of entry under state or territory laws about work health and safety and outworkers continue to apply, while rights of entry under work health and safety operate subject to the requirements set out in Div 3 of Pt 3-4 of the Fair Work Act (Right of entry). 

Rights of entry under workers compensation laws are also preserved and not subject to the Act.

Workplace surveillance
 
While some states and territory laws exist to regulate overt and covert video or visual surveillance of private activities, New South Wales and Victoria are the only jurisdictions that have legislation specifically relating to workplace surveillance.

Both statutes impose strict procedures to which an employer must comply in obtaining permission to perform covert surveillance in the workplace. In most states and territories, surveillance legislation is device-specific and applies more broadly than the workplace, for example:
Although this legislation is not workplace-specific, it would apply to many workplaces.

See also: Surveillance in the workplace

Business trading hours
 
State and territory laws exist which place restrictions on business trading hours.

These laws usually apply to the trading hours (opening and closing times) of retail outlets, which may be state-based, or locality-based. This means that while there are hours of work provisions under the relevant modern award, there may also be a statutory restriction on the hours during which the employer can operate for business.

Claims for enforcements of contracts, except unfair contract laws
 
This matter refers to claims relating to common law rights of an employee and an employer under the contract of employment.

For example, the Fair Work Act would not prevent an employee from claiming a breach of the contract of employment by their employer before the relevant Commonwealth court, or a state or a territory Supreme Court.

Unfair contract laws exist under several state industrial relations laws; however, a remedy cannot be pursued by an employee under these laws beecause they are excluded by the Fair Work Act.

Other matters
 
Section 27 of the Fair Work Act also refers to state or territory superannuation laws, and laws regulating employee associations and employer associations.

The Fair Work Regulation 2009 also specifies those state or territory laws that are not excluded by the Act, such as:
  • a law dealing with the cancellation, suspension or termination of a training contract
  • a law dealing with the cancellation, suspension or termination of a contract of employment that is associated with a training contract and entered into as part of a training arrangement
  • a law dealing with a period of probation of an employee that is part of a training arrangement, but is not a period of probationary employment.
A law that provides protection for an employee who discloses information or makes a complaint under a law that deals with any of the following:
  • whistle blowers
  • environmental protection
  • health services
  • transport safety or operations
  • the supply of essential services
The NSW Contracts Review Act 1980 is excluded by the Fair Work Act to the extent to which it relates to contracts of employment.
 
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