Unlike the position in South Africa, employment relationships in Australia are heavily regulated.
Any South African who intends to become an employer or an employee in Australia should be aware of the general employment arrangements in Australia which are outlined below.
The primary legislation that regulates employment relationships in Australia is the Workplace Relations Act 1996 (“the Act”). It enshrines five minimum employment entitlements which can not be signed away and relate to minimum wages; annual leave; personal leave; carer's leave; parental leave and maximum ordinary hours of work. The Act will be amended from 1 January 2010 and will, amongst other matters, introduce 10 National Employment Standards (“NES”) which will replace the above minimum entitlements With the exception of minimum wages, the NES will include most of the entitlements listed above (with minor changes) and will introduce further entitlements to matters such as redundancy pay; long service leave; the right to request flexible working arrangements; community service leave and public holiday.
Generally speaking, employment relationships in Australia will also be governed by at least one or more of the following:
▪ Workplace Agreements
▪ Common law agreements
▪ State and Federal legislation
The term “Award” in an employment context in Australia has nothing to do with giving prizes or certificates for a person's achievements. Instead, it is a term used to describe a decision of a body known as the Australian Industrial Relations Commission or its state counterpart (“AIRC”). An Award is a document containing terms and conditions of employment and is given legal effect by the AIRC. There are also State Awards which apply only to certain states of Australia. Awards regulate a number of matters including overtime pay; penalty rates for working on weekends and public holidays, allowances, shift loadings etc.
Workplace Agreements are legal documents which need to comply with certain formalities to be effective. They enable employers and employees to change the operation of an Award provided that they do not disadvantage the employee.
Common Law Agreements
These are informal agreements that are entered into if no Award regulates the employment relationship. They can also be entered into if an Award applies but can not alter the provisions of that Award (i.e. they can only supplement it).
State and Federal legislation
In addition to the above, there is a range of state and federal legislation dealing with matters such as discrimination, privacy rights, long service leave, superannuation and health and safety. The realm of employment law in Australia is very different to that in South Africa. It is an area that will impact on most South Africans who come to Australia and it is vital that they understand its workings. Disclaimer: The information contained in this article is not legal advice and should not be relied upon as legal advice.
|About Costa Brehas (B. Proc University of the Witwatersrand, South Africa). Costa practised as an attorney and conveyancer in South Africa and is currently engaged as a Senior Associate in the Employment and Workplace Relations department of Hunt & Hunt which has a national presence throughout Australia. |