State/Territory laws & WorkChoices

Analysis

State/Territory laws & WorkChoices

While the WorkChoices legislation seeks to override all employment laws throughout Australia, there are provisions contained within some current State or Territory laws which will continue to regulate an employee's minimum conditions of employment when prescribed by such State or Territory legislation.

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While the WorkChoices legislation seeks to override all employment laws throughout Australia, there are provisions contained within some current State or Territory laws which will continue to regulate an employee's minimum conditions of employment when prescribed by such State or Territory legislation.

Recent media reports have speculated that employees will miss out on certain conditions which are currently prescribed in awards but which are not 'protected' under WorkChoices legislation. These are conditions currently prescribed by awards which will not automatically apply if excluded from a collective agreement or Australian Workplace Agreement (AWA).

A recent example illustrated in media reports by the ACTU relates to the frequency of payment of an employee's wages, although this has subsequently been amended after review by the Senate Committee.

The 'fall-back'/non-excluded provisions in State/Territory laws are explained below.

WorkChoices legislation allows for non-excluded matters to apply

The WorkChoices legislation proposes to ensure that the legislation would operate to the exclusion of present and future State and Territory industrial regimes. However, it describes the types of matters, referred to as 'non-excluded matters', where State or Territory laws will continue to apply to employees within each particular jurisdiction.

These laws relating to non-excluded matters include:

  • a law dealing with the prevention of discrimination, the promotion of Equal Employment Opportunity (EEO) or both: this means specific anti-discrimination legislation, eg. Anti-Discrimination Act 1977 [NSW] and the Equal Opportunity Act 1994 [WA], will continue to apply. However, provisions contained in State industrial relations Acts which, for example, prohibit termination of employment on the grounds of sex, race, pregnancy or the like would be overridden by the WorkChoices legislation;

  • a law which is prescribed by the WorkChoices Regulations as a non-excluded law: the number of state or territory laws to be excluded may be increased subject to the publication of the Regulations to the WorkChoices legislation. At this stage, the Regulations to the WorkChoices legislation have yet to be published; or

  • a law dealing with any of the 'non-excluded matters' prescribed by WorkChoices legislation.

Non-excluded matters noted

The term 'non-excluded matters' refers to the nature of State or Territory laws which will continue to apply after the introduction of WorkChoices legislation.

These non-excluded matters are:

Superannuation: while minimum employer superannuation contributions are determined by the federal SGC legislation, state legislation may deal with the issue of choice of fund under a state award which is not effected by the federal superannuation choice legislation.

Workers compensation: this legislation deals with the payment of compensation for eligible employees and may contain additional conditions, such as participation in rehabilitation and the continuing payment (or otherwise) of employment entitlements during an absence on workers compensation, such as annual leave, public holidays, etc.

Occupational health and safety: there may be regulations which affect the way in which certain work, eg. dangerous or unhealthy work, is performed under particular circumstances;

Child labour: laws exist in each state and territory which prescribe the minimum full-time working age of a minor commencing full-time employment and, in some cases such as Victoria, a restriction on the type of work which may be performed by minors between the ages of 11 to 13 years.

Long service leave: all states and territories have legislation prescribing long service leave entitlements to employees.

The observance of a public holiday, except the rate of payment of an employee for the public holiday - all states and territories have legislation prescribing public holidays, including the proclamation of local and regional days.

Method of payment of wages: all states have legislation which requires the employer to maintain accurate and legible time and wages records to be available upon inspection by the relevant state authority.

Frequency of payment of wages and salaries: some states have legislation which specifies the frequency of payment of wages and salaries, usually ranging from a minimum of one week up to a maximum of one month.

Deductions from wages or salaries: this requirement is usually contained in the relevant state time and wages records regulations and usually requires the employer to identify in the time and wages records the amount and nature of any deductions from an employee's wage or salary.

Matters relating to training or apprenticeships: except the rate of payment of trainees and apprentices - all states have a system of accreditation of apprentices and trainees, including providing for attendance at college to attain tertiary qualifications, and a method of determining the year of apprenticeship which, subsequently, determines the appropriate wage for the apprentice.

Industrial action affecting essential services

Attendance for service on a jury: most states provide for the payment of an amount for the attendance to jury service.

Regulation of any of the following: associations of employers; associations of employers; members of associations of employees or of associations of employers.

Related

How the Government will amend WorkChoices legislation

 

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