Unfair dismissal protection for NSW young workers: law

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Unfair dismissal protection for NSW young workers: law

The NSW Government has legislated to allow workers under the age of 18 who are unfairly dismissed to be reinstated by the NSW Industrial Relations Commission.

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The NSW Government has legislated to allow workers under the age of 18 who are unfairly dismissed to be reinstated by the NSW Industrial Relations Commission.

New laws protecting the rights of young workers in NSW came into effect last weekend.

The legislation overrides the Federal WorkChoices legislation for workers aged under 18, maintaining their wages and conditions to at least the level of NSW awards. The NSW legislation is based on the State's child welfare responsibilities, thus circumventing WorkChoices.

Provisions

The legislation will:

  • use the definition of 'child' as a person under the age of 18 years; this is the definition used by the International Labour Organisation and is the meaning that generally applies in State laws
  • require an employer of a person under 18 years of age to provide employment terms and conditions at least equivalent to those applying under relevant New South Wales awards and legislation
  • allow employers and young workers to apply the NSW award provisions flexibly, provided the arrangements do not constitute a net disadvantage when measured against the award and legislative conditions
  • empower industrial inspectors to enforce these requirements as part of compliance campaigns and in response to complaints as is currently the case for other employees within the New South Wales system, and
  • where an employer or the young worker does not agree with an industrial inspector's decision as to whether or not the child is being disadvantaged by the employment arrangements, the legislation will empower the NSW Industrial Relations Commission to make a binding determination

Not required

The legislation will not:

  • prescribe the type of instrument under which a young worker is to be engaged, only the minimum employment conditions
  • require an approval mechanism, registration system, or any other additional regulatory burden on employers that would act as a disincentive to employ young people
  • require parental consent to the employment of young workers, and
  • empower unions to investigate employment records; compliance powers will only be exercisable by industrial inspectors

Details are at this NSW parliament website.

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