Chapters

This chapter provides a summary of the law as at 1 July 2012. The chapter's focus is on the rights, entitlements and obligations of employees in Tasmania. Those rights, entitlements and obligations derive from a wide range of sources, including statutes, awards, collective agreements, individual agreements and the common law.

The most significant statute affecting employment conditions in Australia is the federal Fair Work Act 2009 (Cth) ("FW Act"). The FW Act sets out:

  • most of the rights and duties of employees and employers;
  • the procedure for the negotiation and certification of federal agreements; and
  • amongst other things, governs the affairs of federally registered unions (together with the Fair Work (Registered Organisations) Act 2009 (Cth)).

This chapter primarily deals with:

  • the common law employment contract;
  • workplace agreements and awards under the Workplace Relations Act 1996 (Cth) (WRA) and the FW Act;
  • statutory and common law terms of employment;
  • enforcement of entitlements; and
  • termination of employment.

However, this chapter is not limited to the above topics. See the table of contents for further information.

Interrelationship between statute, statutory agreements and common law contracts: Terms and conditions of employment contained in legislation, awards or statutory agreements are generally minimum terms and conditions. This means that the parties can agree by contract to pay more than the minimum for any one or more entitlements in the statute, award or statutory agreement.

A common law contract can not provide for a lesser term than that contained in a statute, award or statutory agreement. The employer must provide the employee with at least every minimum term or condition in the statute, award or statutory agreement. It is no excuse if the employee was, overall, better off under the common law contract.

Contracts and statutory award and agreement terms and conditions exist side by side, with an employee entitled to the most beneficial term that applies. For example, the ordinary hours pay in a contract may be the most beneficial term for the employee's ordinary hours of work, but the award overtime condition may be the most beneficial for overtime work. In those circumstances, the employee is legally entitled to the contractual term for ordinary time work and the award term for overtime work.

Recent government amendments

The Government made substantial changes to industrial legislation. Some changes took effect from March 2008 (the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Cth) ("Transition to Forward with Fairness Act")), while other changes took effect from 1 July 2009 and 1 January 2010 (the FW Act). Further changes are contained in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) ("FW (TPCA) Act").

Tasmania

Tasmanian employment law is regulated by the Fair Work Act 2009 (Cth). The Industrial Relations (Commonwealth Powers) Act 2009 (Tas) refers responsibility to the Commonwealth under the Commonwealth Fair Work Act to provide for, and continue to provide for, the following:

  • a strong, simple and enforceable safety net of minimum employment standards;
  • genuine rights and responsibilities to ensure fairness, choice and representation at work, including the freedom to choose whether or not to join and be represented by a union or participate in collective activities;
  • collective bargaining at the enterprise level with no provision for individual statutory agreements;
  • fair and effective remedies available through an independent umpire;
  • protection from unfair dismissal; and
  • an independent tribunal system and an independent authority able to assist employers and employees within a national workplace relations system, associated with the Fair Work Act (FWA).

Other legislation, such as the Commonwealth Sex Discrimination Act 1984Racial Discrimination Act 1975 and Disability Discrimination Act 1992, and the Anti-Discrimination Act 1998 (Tas), Long Service Leave Act 1976 (Tas) and Work Health and Safety Act 2012 (Tas), also affect working conditions in Tasmania.

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