In order to work out what entitlements apply in any given situation, it is neccessary to establish whether a federal or state award applies to an employment agreement. Generally speaking, individual agreements, written or verbal, must improve on these minimum conditions.
Types of employment relationship
There are many different types of employment relationships ranging from permanent employment (part-time or full-time) to temporary or fixed-term employment to casual employment, piecework, outwork and so on. The most common legal basis for working relationships is that of employee and employer, but there may be an employment relationship even where the person being employed is retained as an independent contractor.
People deemed to be employees
The NSW Industrial Relations Act 1996 deems some people to be employees who might otherwise not be regarded as such, including: milk vendors, bread vendors, cleaners, carpenters, joiners, bricklayers, painters, outworkers in the clothing trade, timber cutters and suppliers, plumbers, drainers, plasterers, blinds fitters, council swimming centre managers and supervisors, ready-mix concrete truck drivers and RTA truck drivers (Sch.1).
Rights and obligations
The employment relationship sets up various rights and obligations. Many of these are fixed by laws and regulations; others have developed under the common law. This section outlines some of the basic rights and entitlements of employees in NSW, and how these can be protected under NSW industrial relations laws, primarily the Industrial Relations Act.
Minimum conditions and entitlements
Industrial instruments are legally binding agreements and decisions (such as awards and enterprise agreements) that set minimum wages and conditions for employees in particular industries, occupations and workplaces.
The ‘no net detriment’ test
Enterprise agreements struck in NSW must be approved by the NSW Industrial Relations Commission and must pass the ‘no net detriment’ test – that is, the commission must be satisfied that they:
- do not make employees any worse off overall than under a comparable award, and
- comply with anti-discrimination provisions.
Payment of wages
Rights, obligations and remedies concerning the payment of wages are set out in industrial instruments and legislation.
Under the Industrial Relations Act and the NSW Industrial Relations (General) Regulation 2001, employers must give employees written particulars about their pay, including:
- the employee’s name
- if the rate of pay is set by an industrial instrument, the employee’s classification under that instrument
- the date of the payment
- the period of employment to which the payment relates
- the gross amount of pay (including overtime and other payments)
- the amount paid as overtime, or information that will enable the employee to calculate the amount paid as overtime
- the amount deducted in tax
- the amount deducted as employee contributions for superannuation
- details of any other deductions
- the net amount paid.
Employment records kept by employers
Employers must keep accurate time sheets and pay sheets for at least six years. Government inspectors and authorised union officials may inspect them, and can do so on the employee’s behalf.
Hours of work
There are certain minimum conditions that must generally be observed by all employers.
Ordinary full-time hours
For most workers in NSW, maximum full-time hours are eight per day, and 38 per week. Full-time hours in industrial instruments usually range from 35 to 40 per week, with a standard of eight (or less) to 12 per day. These are called ordinary hours.
Industrial instruments always specify the terms and conditions attaching to part-time work, such as the spread of ordinary part-time hours, pro rata entitlements and overtime entitlements.
Part-time work agreements
People employed under an industrial instrument may agree to work under a part-time work agreement.
Part-time work agreements must include:
- the employee’s entitlement to work part-time
- the number of hours to be worked, the days on which they will be worked, and starting
and finishing times
- the classification applying to the work, and
- the employee’s entitlement (if any) to return to full-time employment.
Part-time work agreements must also comply with certain minimum conditions determined by the NSW Industrial Relations Commission, including, in most cases:
- a minimum of three continuous hours each time the employee works
- maximum weekly hours that are less than ordinary full-time hours (where this is not
specified in the industrial instrument, maximum part-time hours are 37 per week)
- the same minimum ordinary hourly rate as full-time employees under the industrial instrument (both for work under the part-time work agreement and for any additional hours the employee agrees to work)
- where the employee agrees to work weekly hours only one hour less than full-time hours fixed by the industrial instrument, all the benefits to which full-time employees are entitled under the instrument. Pay and conditions under such agreements are enforced in the same way as those under any other industrial instrument, such as an award or enterprise agreement.
Casual employees get an additional payment (loading) to compensate them for the lack of benefits enjoyed by permanent employees such as paid sick leave and paid public holidays. The amount is usually between 15% and 33% on top of the ordinary hourly rate.