Relevance

While the federal Fair Work legislation encompasses a broad range of workplace issues and conditions of employment, it is not exhaustive in covering all the legal obligations an employer must observe in the course of employment. Many other employment-related conditions prescribed by the relevant Federal, State or Territory legislation continue to impose legal obligations on employers.

State and Territory statutory obligations
Child labour
Long service leave
Jury service
Overview
 
While the federal Fair Work legislation is the principal workplace relations legislative source, encompassing a broad range of workplace issues and conditions of employment, it is not exhaustive in covering all the legal obligations an employer must observe in the course of employment.
 
Many other employment-related conditions prescribed by the relevant Federal, State or Territory legislation continue to impose legal obligations on employers.
 
State and Territory statutory obligations
 
While Fair Work is Commonwealth law and overrides corresponding state or territory employment laws, it also recognises the continuance of certain state or territory employment-related laws. State or territory laws dealing with the following matters continue to apply (sometimes in combination with federal law and sometimes alone) — despite the fact that there has been a transfer of industrial relations powers to the Commonwealth):
  • anti-discrimination
  • superannuation
  • workers compensation
  • occupational health and safety
  • matters relating to outworkers
  • child labour
  • training arrangements, except conditions governed by the NES and modern awards
  • long service leave
  • leave for victims of crime
  • attendance for service on a jury, or emergency service duties
  • declaration, prescription or substitution of public holidays
  • workplace surveillance
  • business trading hours
  • claims for enforcement of contracts of employment, and
  • directions to perform, or not perform, work relating to provision of essential services or to situations of emergency.
Employers are still required to comply with the above state or territory laws.
Discrimination law
 
Legislation exists Federally, and in all States and Territories, that prohibits discrimination in the workplace on the basis of a number of grounds, including sex (including pregnancy), race, colour nationality, religion, marital status, sexual preference, disability, age, and carer's responsibilities.
 
There are generally two types of discrimination — direct and indirect. 'Direct discrimination' occurs when someone is treated unfairly or unequally simply because they belong to a particular group or category of people. 'Indirect discrimination' occurs where there is a requirement that is the same for everyone but which has an unequal or disproportionate effect on different groups of people, for example, because of their sex or race.
 
An employer is not in breach of discrimination law where a particular characteristic is essential for the job.
 
Discrimination law would usually include any reference to equal employment opportunity (EEO) law, harassment in the workplace, and affirmative action law.
 
An employee who alleges his or her dismissal was unlawful (ie for discriminatory reasons) may take the matter to the relevant State anti-discrimination board or tribunal instead of accessing the unlawful dismissal provisions under Fair Work. However, an employee cannot pursue a claim under Federal law, for the same matter, once the unlawful dismissal claim has been determined by the relevant State discrimination tribunal.
Superannuation
 
While the Superannuation Guarantee Charge (SGC) is subject to Federal law, some States provide superannuation provisions that impose certain obligations on employers with respect to aspects of superannuation. 
 
For example, in NSW, the industrial relations legislation prescribes an entitlement for employees, under an industrial instrument, to opt for the superannuation fund of their choice, regardless of whether the industrial instrument identifies a specific fund into which employer contributions are to be made by the employer. Such a request by the employee must be made in writing.
 
Similarly legislation exists in Western Australia, where employees have the right to elect employer contributions be made to a superannuation fund of their choice.
 
Superannuation for public sector employees is generally covered by the legislation of the jurisdiction employing these employees.
Workplace health and safety
 
Workplace health and safety laws are moving to a uniform approach to legisaltion in this importnt area. Under the relevant, Federal, State and Territory law, all employers must observe a general duty of care towards their employees, and others who may be exposed to health and safety risks arising from the conduct of an employer's business.
 
This duty of care includes a duty to provide employees with the necessary information, training, instruction and supervision to perform their work in a safe manner. Generally, workplace health and safety (WHS) legislation provides the basis of the law. Obligations set out in the relevant Act are mandatory.
 
In addition, there are Codes of Practice that are practical guides to complying with the requirements of the relevant legislation. State and Territory WHS legislation and their enforcement continue to be controlled by the relevant State or Territory prosecuting authority, and apply independent of the Fair Work legislation.
 
Right of entry
 
This is a circumstance where both State/Territory law, the federal workplace health and safety legislation and the Fair Work legislation will apply. Some State and Territory WHS legislation allow for a trade union representative to enter the workplace for the purposes of investigating any possible breaches of health and safety laws. The federal workplace health and safety legislation also allows for this to occur — prescribing specific rights and obligations for 'permit holders'.
 
In addition, Fair Work requires certain obligations for parties wishing to enter the workplace with regard to WHS matters, as well as any current limitations and obligations contained in the relevant State or Territory legislation. A union official can enter premises without notice to investigate suspected breaches of WHS law, although to inspect employment records in relation to an WHS matter the union official must give at least 24 hours written notice before the entry.
 
Discrimination and WHS
 
State and Territory WHS legislation generally prohibits discrimination against an employee in relation to any WHS matter. It is unlawful to dismiss employees who make a reasonable complaint in relation to health and safety in their workplace. WHS legislation generally provides that it is unlawful for an employer to dismiss employees because they are, or were, health and safety representatives or members of a WHS committee.
Outworkers
 
Because of the nature of employment with respect to outworkers, some States have legislated certain protections for this type of employee with respect to guaranteeing the conditions of employment that apply to other workers in the same industry. This mode of employment has traditionally been associated with the clothing industry, however, other industries such as marketing and IT services have seen an increase in this type of employment.
 
Outworkers legislation also may allow a trade union representative access to these employees, otherwise there may be complications with respect to access to a private dwelling. Some State legislation may also require the registration of an outworker by the employer with the relevant industrial relations authority.
Child labour
 
Most States and Territories have legislation which prohibits the employment of a person below the prescribed minimum school age, which would prevent their attendance from school, eg 16 years of age. To work when under 16 years of age a child needs parental permission.
 
This type of legislation usually relates to the prohibition of work performed during school hours, rather than restricting work outside school hours or during school holidays. However, some States, such as Victoria, have a minimum legal age for the performance of any work at any time, eg 13 years (11 years in certain circumstances). This means it is illegal to employ any person below this minimum working age. Family businesses are excluded as is the entertainment industry ( as long as parental permission is obtained).
 
NSW
 
Any young person (under 18 years) terminated on or after 24 October 2006 can bring an unfair dismissal claim in the NSW Industrial Relations Commission under the NSW unfair dismissal laws, provided their employer is a constitutional corporation.
 
Apprentices
 
There may be restrictions on the ability of an employer to terminate an apprentice under State laws. For example, in NSW, if the cancellation of an apprenticeship is not by mutual consent the employer must apply through an apprenticeship tribunal to terminate the apprentice. There is an ultimate appeal to the NSW Industrial Relations Commission. This law will still apply because the statute regulating this issue in NSW is 'training arrangements' legislation.
Workers compensation
 
Legislation exists in all States and Territories that provides monetary compensation for employees injured in the performance of a work-related activity or who contract a disease through their employment. Some workers compensation legislation may provide for conditions related to the employee's contract of employment.  For example, there is a provision in NSW prohibiting the termination of a worker for the first six months of the incapacity if the reason for dismissal is due to the employee's absence on workers compensation. Similar restrictions apply in Victorian and South Australian workers compensation legislation.
Long service leave
 
All States and Territories have legislation providing an entitlement of long service leave for all private sector employees who are not covered by a Federal industrial instrument that prescribes long service leave. If a pre-Fair Work award or agreeemnt is still operative then that Federal industrial instrument may override the State/Territory legislation. Otherwise State and Territory legislation covers employees' long service leave entitlements as Fair Work legislation has effectively designated this legislation to be the source of long service leave entitlements.
 
Long service leave may be taken after completing a certain period of time (usually 10 years) with an entitlement to pro rata leave on termination of employment, usually under certain circumstances.
Public holidays
 
Most States and Territories have legislation that provides for the observance of specified list of public holidays (usually 10 per year), the date of observance being subject to change by proclamation by the respective State/Territory government.
 
Public holidays that are established by the Fair Work Act throughout Australia include New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Queen's Birthday, Labour Day, Christmas Day and Boxing Day. 
 
Each State and Territory has other public holidays that are specific to that jurisdiction. An entitlement to a public holiday should be read in conjunction with the applicable industrial instrument (where relevant).
 
Fair Work legisaltion also recognises State/Territory public holidays.
 
The Fair Work legislation protects the right of an employee to refuse to work on a public holiday if the employee has reasonable grounds for doing so. 
Jury service
 
Legislation exists in all States and Territories that requires a person to attend for jury service when requested by the appropriate court authority.
 
This type of legislation usually requires the employer to release the employee for jury service and not to obstruct the employee in this situation. Whilst there may be nominal payments (usually covering expenses) to the employee regarding attendance to jury service, generally there is no compensation of lost wages involved in jury service legislation. An exception to this is Victoria where legislation exists which covers non-industrial instrument employees providing the employee is to receive from their employer an amount equal to the difference between the jury service payment and their ordinary rate of pay for that day. An employee's entitlement to payment of their ordinary wages for the days attending jury are usually provided by the applicable industrial instrument.
Method/frequency of wages and salaries
 
While the method of payment and the frequency of payment of wages and salaries is usually determined by the applicable industrial instrument, legislation exists in some States which governs the method and frequency of the payment of wages/salaries.
 
This will usually apply to those employees who are not covered by an industrial instrument or where the industrial instrument is silent in this respect. Legislation regarding these matters would usually allow the payment of wages/salaries by electronic funds transfer (EFT) and a maximum frequency of payment of wages/salaries of one month.
Emergency services
 
Legislation exists Federally and in some States and Territories which protects employees from being 'victimised' by their employer for participating in emergency services work. This is generally restricted to 'a declared state of emergency' such as a bush fire, storms and floods, earthquakes, explosions, accidents, etc.
 
The Fair Work Act makes it unlawful for an employer to terminate an employee's employment based on temporary absence from work because of the carrying out of a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances. The Federal legislation also applies to those States which do not specifically provide protection through the relevant State legislation.
 

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