The answers to the questions below are general guides only and should not be taken as providing you with a legal opinion in relation to your particular problem. You should contact us for specific advice about your own legal question and you should not rely on the answers listed below.
Employment
Q: Do I need to record on an employee’s payslip the name of the Award under which they are employed?
Those workplaces to whom the new laws apply must set out the classification of the employee under each instrument under which the employee derives an entitlement of employment. An instrument could be an Award or an Agreement (sometimes colloquially referred to as Enterprise Agreements or EBAs) or an Australian Workplace Agreement.
Q: How long must I keep records under the new record keeping requirements?
7 years. Note however, there are slightly differing requirements as to when this time starts to run:
If the records relate to general information (name, address, date of birth, instrument, full/part time, permanent, temporary or casual) or certain information relating to superannuation, the record must be kept for 7 years from either the change in the entry or the termination of the employee’s employment, whichever is the soonest.
If the records relate to other aspects (e.g. hours, pay, leave), the records must be kept for 7 years after the date on which the entry is made.
Remember the government’s “grace period” expires on 27 September 2006 . After this time, employers will be expected to comply with the new record keeping requirements. Failure to do so could expose your business to fines.
Q: I have two companies each employing say, 60 employees. Could one of my employees pursue me for unfair dismissal given the general rule that an employer is protected against claims for unfair dismissal if it employs less than 100 employees?
For the purposes of calculating the number of employees employed by an employer, if the two companies are “related bodies corporate” then they are treated as a single entity. In the above example, this would mean the total number of employees would be 120 and therefore there would be exposure to the risk of a claim for unfair dismissal.
What is a “related body corporate”?
In the above example if one company is
(a) a holding company; or
(b) a subsidiary; or
(c) a subsidiary of a holding company;
of the other company, they are related to each other. This means the number of employees will be aggregated for unfair dismissal eligibility purposes.
Q: I employ my employees under a discretionary trust company. Am I covered by WorkChoices?
WorkChoices applies to all entities that are “constitutional corporations”. Whether an entity is a constitutional corporation is not always clear cut. It includes trading corporations and financial corporations formed within the limits of the Commonwealth. Trading corporations include those corporate entities where trading of goods or services is a substantial corporate activity and not merely peripheral. In the past public universities and charities have been held to be trading corporations and a trustee or administrator of a super fund, a cooperative building society have been found to be financial corporation. A financial corporation includes those companies that engage in borrowing, lending or the provision of financial services.
If you are in any doubt as to whether your business is a constitutional corporation, you should seek legal advice specific to your circumstances.
Q: Does the Australian Fair Pay & Conditions Standard (AFPCS) apply to AWAs (Australian Workplace Agreements)?
AWAs – and for that matter, collective workplace agreements - entered into after the commencement of WorkChoices are subject to the AFPCS (although those entered into before WorkChoices commenced are not).
Some other types of industrial instrument in existence prior to WorkChoices (for instance State Awards) will be subject to aspects of the AFPCS but only if the AFPCS is more generous e.g. many State Awards provide sick leave entitlements lower than that required under the AFPCS.
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