A. OVERVIEW

It is important to remember that the common law employment relationship is subject to the requirements of workplace relations legislation and is also subject to the provisions of applicable industrial awards. The relationship may also be affected by legislatively sanctioned workplace agreements, such as collective agreements (which have the power under legislation to modify particular award provisions which would otherwise apply).
 

Minimum terms and conditions of employment for federal system employees are now contained in the Workplace Relations Act 1996 (Cth). All employment agreements (whether written or unwritten) are subject to the safety net of minimum conditions contained in the Australian Fair Pay and Conditions Standard (known simply as the Fair Pay Standard) which is part of the Workplace Relations Act.

The Fair Pay Standard includes general employment conditions such as basic wage rates and casual loading, hours of work, annual leave, personal leave and parental leave. These basic entitlements cannot be overridden by any form of agreement. Additionally, WorkChoices contains a number of “protected” conditions of employment which apply to your workplace and any collective agreement unless expressly modified or excluded from the agreement. See CONTRACTS These include:

As a general rule, any applicable federal awards continue to cover respondent employers (except for award content which is prohibited under the Workplace Relations Act). State awards which applied prior to the commencement of the work choices amendments to the act continue to have force on a transitional basis for three years (from March 2006) as Notional Agreements Preserving State Awards (“NAPSAs”). Wage rates and awards are frozen but are subject to increases via Australian pay and Classification Scales (“APCS”). Awards continue to play an important role in the workplace relations system and common law contracts must be read subject to the award.

Minimum terms and conditions for employees not covered by federal law are contained in the various state acts (apart from Victoria which has referred all its industrial powers to the federal government). In Queensland, the applicable legislation is the Industrial Relations Act 1999 (Qld). There is substantial similarity between the minimum terms and conditions contained in federal and state law.

Minimum terms and conditions can vary depending on the type of employment. Employees can be engaged on a full-time basis, part-time basis or casual basis. It is necessary to appropriately identify and monitor the nature of the relationship because there can be important variations in entitlements and conditions (such as overtime, leave and loadings).

So, it is firstly necessary to consider the basis on which a worker is employed in considering minimum terms and conditions. 


Case Example

CASUAL EMPLOYMENT – ROOSTERS CANNOT BE CALLED DUCKS

Yasmin S.B. Cetin AND Ripon Pty Ltd t/as Parkview Hotel, Australian Industrial Relations Commission, Vice President Ross, Senior Deputy President Duncan, Commissioner Roberts, Melbourne, 25 September 2003

The issue in this appeal was whether the employee had been engaged on a casual basis for a short period (defined as periods less than 12 months) and therefore excluded from the AIRC’s unfair dismissal jurisdiction (similar provisions exist under state legislation). The applicant was employed as a casual waitress, had worked for the employer for less than 12 months and was told that her employment was of a casual nature. The applicant initially worked behind the bar, her hours fluctuated and she had no reasonable expectation of continuing work. However, from 16 October 2002 she began working as a waitress in the hotel restaurant. She worked regular nights for between 4 and 5 hours each night due to fluctuations in the restaurant’s closing time. The applicant was paid as a casual and was never paid any annual leave, sick leave or for public holidays.

The Full Bench said that the words “casual employee” have no settled meaning and need to be considered in light of the facts of each case. Informality, uncertainty and irregularity of an engagement are indicative of casual employment. Conversely, regular and systematic engagements with a reasonable expectation of continuing employment are not. Here, the applicant was working 4 shifts per week regularly, she was expected to turn up on each of these shifts and she was obliged to give notice if she could not work. Minor fluctuations in her hours were due to fluctuations in the restaurant’s closing time. The Full Bench said that the nature of a position attributed by an award and adopted by the parties was not conclusive evidence but depended on the facts. The Full Bench adopted the statement in a prior case that the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck. The Full Bench allowed the appeal, ruled that the applicant was not denied from claiming unfair dismissal and referred the matter for conciliation.

B. MINIMUM TERMS AND CONDITIONS

The minimum conditions set out in the Australian Fair Pay and Conditions Standard for full time employees are:

• Guaranteed basic rates of pay and guaranteed casual loadings;
• Maximum ordinary hours of work limited to 38 ordinary hours of work per week (which can be averaged over a period of up to 12 months) and reasonable additional hours;
• Four weeks paid annual leave per year (up to two weeks of which can be cashed out at the employee's written election if permitted in a collective agreement);
• Ten days paid personal/carers leave per year with provision for an additional two days of unpaid carers leave per occasion and an additional two days of paid compassionate leave per occasion; and
• 52 weeks of unpaid parental leave (including maternity, paternity and adoption leave).

The references below relate to the Fair Pay Standard unless otherwise indicated.

1. Minimum Wage

The federal minimum wage is currently $13.47 per hour (as from 1 October 2007). Casual employees are entitled to a default loading of 20% ie $16.16 per hour. The minimum wage is reviewed at a federal level each year by the Australian Fair Pay Commission which was another creation of the Work Choices legislation. At a state level, the state industrial relations commissions generally hold an annual wage case to update the minimum wage in each state.

2. Hours of work

Ordinary weekly hours of work under the Fair Pay Standard for full time employees are 38 hours per week. By agreement between an employer and employee, this period can be averaged over any period up to a year. In addition, an employee may be requested to work reasonable additional hours. If so, they are entitled to be paid at the rate of the federal minimum wage for such additional hours unless otherwise agreed. The Fair Pay Standard provides that the employee may refuse to work additional hours in circumstances where the working of such hours would result in the employee working hours which are unreasonable having regard to:

• Any risk to employee health and safety that might reasonably be expected to arise if the employee worked the additional hours;
• The employee's personal circumstances including any family responsibilities;
• The operational requirements of the workplace;
• The notice (if any) given by the employer of the additional hours and by the employee of his/her intention to refuse it;
• Whether the additional hours are on a public holiday; and
• The employee's hours of work over the four weeks ending immediately before the employee is required or requested to work the additional hours.

These provisions apply to all employees, including casual employees.

3. Annual leave

Full time employees are entitled to four weeks annual leave each year. Part time employees have a pro rata entitlement. Casual employees do not have an entitlement to annual leave.

4. Personal leave

Full time employees are entitled to up to 10 days paid personal leave per year (which includes sick leave and carers leave) and an additional two days unpaid carer’s leave per occasion. Part time employees receive a pro rata paid personal leave entitlement. The entitlement to paid personal leave can be increased by the employee taking paid personal leave at half pay.

In addition to paid personal leave, all employees (whether full time, part time or casual) are entitled to unpaid carers leave of two days per occasion which may be a single unbroken period of up to two days, or any separate period as agreed by the employer and employee.

5. Compassionate leave

Full time and part time employees are entitled to two days paid compassionate leave per occasion and casual employees are entitled to a similar amount of unpaid leave.

6. Parental leave

Full time, part time and eligible casual employees are entitled to unpaid parental leave of up to 52 weeks unpaid parental leave. This includes maternity leave, paternity leave and adoption leave.

An eligible casual employee is someone who has been engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment amounting to at least 12 months and who has a reasonable expectation of continuing engagement by the employer on a regular and systematic basis.

7. Long service leave

Long service leave remains under the coverage of state law. Full time employees become entitled to 8.6667 weeks of long service leave after 10 years of service. Part time and long term casual employees are also entitled to accrue a proportional long service leave entitlement, calculated on their actual hours of service. More information is available at www.wageline.qld.gov.au.

If an employee’s employment is terminated after at least seven years service but before reaching 10 years service, they may be entitled to a pro rata long service leave payment if:

• The employee's service is terminated by their death;
• The employee terminates their service because of their illness or incapacity or because of a domestic or other pressing necessity;
• The employer dismissed the employee for a reason other than the employee's conduct, capacity or performance; or
• The employer unfairly dismisses the employee.