NSW legislation

Employees of all private industry businesses (whether incorporated or not) in New South Wales are covered by the Fair Work Act. Employees of government agencies, for example local councils and the State public service, remain covered by the relevant State employment legislation.

Overview
 
The federal IR system applies to most private Australian employers and their employees, including those in New South Wales. The Fair Work Act 2009 covers employers who are ‘constitutional corporations’ (in layman’s language this means an incorporated commercial trading business) and employers which are ‘referred’ under federal industrial relations coverage by state legislation (see below). 
 
All States except for Western Australia have referred their industrial relations powers relating to private industry to the Commonwealth, with the intention of  creating a national IR system. This means that employees of all private industry businesses (whether incorporated or not) in New South Wales are covered by the Fair Work Act. Employees of government agencies, for example local councils and the State public service, remain covered by the relevant State employment legislation.
 
National system employers include both trading corporations and non-incorporated businesses that are subject to state referral.
 
The Fair Work Act 2009 commenced in most respects on 1 July 2009. The modern award provisions and National Employment Standards commenced on 1 January 2010.
 
The Industrial Relations Act 1996 was the principal legislation on industrial relation in NSW before the Fair Work system took over the private employment area. The IR Act is now confined to coverage of the NSW public sector.
 
Other legislation applies to New South Wales employers and employees as noted below.
 
Long Service Leave Act 1955

The NSW Long Service Leave Act 1955 provides that full-time, part-time and casual workers in New South Wales are entitled to be paid long service leave after working for an unbroken period of ten years with an employer.

The Act provides for two months paid leave after ten years service with one employer and one month paid leave for each additional five years service.
 
Long service leave is not yet covered by Fair Work so this legislation has general application to employers and employees in NSW. A national Long Service Leave standard will eventually be part of the Fair Work system.

Public Holidays Act 2010

Under the Public Holidays Act 2010, the governor may, by proclamation published in the Gazette, appoint a special day or part of a special day to be observed generally as a public holiday or half-holiday throughout New South Wales.

Examples of 'public holidays' include, New Years Day, Christmas Day, Good Friday, Australia Day

An appointed local holiday under the Act benefits employees who have an industrial award, agreement or contract of employment which confers a right of paid absence (or penalty rates in lieu) on the local public holiday.
 
Holidays proclaimed under the state legislation are recognised as a public holiday for the purposes of the Fair Work Act.
Anti-Discrimination Act 1977

The Anti-Discrimination Act’s purpose is to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons.

The Act prohibited race and sex discrimination in the areas of employment, the provision of goods and services and accommodation.
 
This legislation has general application to all employers and employees in NSW.
 
Child employment
 
The Industrial Relations (Child Employment) Act 2006 requires an 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 for any agreement or other arrangement made under the Workplace Relations Act entered into from 27 March 2006.
 
This comparison is applied under the ‘no net detriment’ principle as determined by the NSW Industrial Relations Commission. An important point to note for employers in New South Wales is 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. This provision has resulted in a number of successful underpayment of wages claims in this regard.
 
The Act also applies to incorporated employers in New South Wales who have dismissed a young person under 18 years since 24 October 2006, regardless of the number of employees employed by the employer.
 
Employers must provide young persons with a pay slip, which displays the comparable state award. The employer must also keep detailed records of the child, their employment status, remuneration and hours. These records must be kept for at least six years. There is no requirement for parental consent to give permission for a young person to commence employment.
 
Links to NSW legislation
 

 

 
 

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