Employment Law (NSW)
In Australia, there is federal and state legislation that governs employment law. In New South Wales, federal legislation governs employment law in respect of most employers and employees in the private sector. However, there is state-based legislation in New South Wales that still governs how the state government and local government employs its workers. There are also New South Wales public sector and local government employees whose employment is governed through the federal law as their organisations have registered agreements in the national system.
NSW employment law legislation
In New South Wales, there is state-based legislation which applies to all New South Wales employers and employees. This includes the following legislation:
- Work Health and Safety Act 2011;
- The Workers Compensation Act 1987;
- Public Holidays Act 2010;
- Annual Holidays Act 1944;
- Long Service Leave Act 1955;
- Anti-Discrimination Act 1977.
The terms of individual employment contracts are also important in defining the relationships between employers and employees.
Federal Legislation and Employment Law Standards
Federal legislation and standards about employment law which apply to most employers and employees in New South Wales include the following:
- Fair Work Act 2009;
- National Employment Standards (NES);
- Work Health and Safety Standards (WHS);
- State and Federal anti-discrimination laws;
- Privacy Act 1988; and
- Workplace Gender Equality Act 2012
In general, under this legislation, employers owe duties to their employees to do the following:
- Ensure the work environment is safe;
- Take care to protect employees from bullying, harassment (including sexual harassment) and discrimination;
- Provide appropriate resources and training to ensure an employee can work safely and efficiently including providing training on possible safety risks and safety issues in the workplace;
- Provide information to employees about their rights and responsibilities;
- Ensure that the requirements for first aid are met;
- Ensure injuries and incidents that occur at work are appropriately reported; and
- Provide appropriate clothing and equipment to ensure employees can work safely and ensure employees are appropriately trained on how to use this clothing and equipment.
Employees are also entitled to minimum standards for working conditions which are set out in the National Employment Standards. These standards are provided for in the Fair Work Act. These minimum standards relate to the following areas:
- Maximum hours of work in a weekly period;
- Flexible working arrangements;
- Annual leave
- Parental leave
- Carer’s leave or personal leave;
- Leave for community service;
- Leave for long service;
- Public holidays;
- Notice requirements for termination and redundancy pay; and
- A requirement that a statement relating to fair work information is given to each employee.
Under the Fair Work Act, modern awards can be made. These modern awards set the terms and conditions for employees for working in various industries. Enterprises can also make enterprise agreements with their employees under the Fair Work Act which overrides modern awards. However, the effect of the enterprise agreement must be that overall the employees are better off than under the modern award.
State government and local government employees
The employment terms of most state government and local government employees in New South Wales are subject to state-based legislation including the Industrial Relations Act 1996. Under this act, the Industrial Relations Commission of New South Wales sets minimum wage rates and other employment conditions. It also is involved in resolving industrial disputes.
The Industrial Relations Commission can also hear and determine claims brought before it for issues such as unfair dismissal, unfair contracts, bullying and victimisation. Awards for certain state government departments and agencies are also made through the Industrial Relations Commission. It is most likely that state government employees in New South Wales are covered by one of these awards, which override the minimum employment conditions dictated under the Industrial Relations Act 1996.
There is a further piece of legislation that relates to the employment of state public services in New South Wales. This is the Government Sector Employment Act 2013.
Contractors and volunteers under New South Wales employment law
In general contractors and volunteers in New South Wales do not have the same rights as employees. However, some laws apply to contractors and employees in the same way that they apply to employees. These are the laws relating to discrimination and harassment. All organisations in New South Wales are prevented from discriminating against contractors. Similarly, organisations engaging contractors hold obligations to protect them from harassment including sexual harassment.
Also, it is worth noting that concerning contractors, in some situations the Federal Court of Australia may be able to intervene under the Independent Contracts Act 2006. These situations include where the conditions of service under the contract are unfair, harsh, against the pubic interest, unconscionable or designed to circumvent certain provisions of the Fair Work Act.
If you require legal advice or representation in any legal matter please contact Armstrong Legal.
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