Which Laws Apply to My Workplace?What Happens if My Workplace Employs Staff Under a NSW Award or Enterprise Agreement?What Happens if My Workplace Employs Staff Under a Federal Award?Which NSW Laws Still Apply to My Business?What Will it Cost if an Employer Decides to Incorporate?What are the Benefits of Remaining Under NSW Awards?For More InformationFree online services at www.industrialrelations.nsw.gov.auBusiness Seminars
All NSW employers and employees need to know the Federal and NSW industrial relations laws that apply to their workplace and their rights and responsibilities under these laws.
The following information is a guide for NSW employers and employees only.
Which Laws Apply to My Workplace?
To find out which Federal or State industrial relations laws apply in the workplace you need to determine whether the employer is a "constitutional corporation".
Sole Traders, Partnerships and Trusts
If an employer is a sole trader, partnership or trust, this means that the employer is unincorporated and the employment relationship does not involve a constitutional corporation. NSW industrial relations laws continue to apply to this employer.
What is a Constitutional Corporation?
A constitutional corporation is a body incorporated under an Australian law and engaged in, or substantially engaged in, trading or financial activities. Generally these are companies which carry out commercial activities with a view to earning revenue. Incorporated associations and co-operatives may also be constitutional corporations.
A trading corporation is one which buys, sells, exchanges or barters goods or services or, more generally, is in the business of commerce. Such trading activities must form a substantial or significant proportion of that corporation's activities.
A financial corporation is one which deals substantially or extensively in commercial dealings in finance. Financial activities may refer to borrowing or lending, banking or insurance and also to providing management and advisory services in relation to financial matters.
Federal industrial relations laws apply to all employers defined as constitutional corporations.
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What Happens if My Workplace Employs Staff Under a NSW Award or Enterprise Agreement?
Unincorporated Employers
An unincorporated employer with employees covered by a NSW State award or agreement remains in the NSW industrial relations system. NSW industrial relations legislation continues to apply and employees remain under NSW awards.
Incorporated Employers
An employer which is a constitutional corporation with employees covered by a NSW award moves to the Federal industrial relations system. The NSW award or agreement becomes a Federal transitional agreement for a period of up to three years. This means the employer has three years to negotiate a workplace agreement. If no agreement is reached, the employees may be placed under a Federal award.
What Happens if My Workplace Employs Staff Under a Federal Award?
An unincorporated employer operating in NSW under a Federal award prior to March, 2006 will be covered by NSW industrial relations laws after a five year transitional period.
An incorporated employer operating in NSW with employees covered by a Federal award remains in the Federal industrial relations system.
Which NSW Laws Still Apply to My Business?
Several NSW laws continue to apply to all businesses operating in NSW, regardless of their industrial relations coverage. These include NSW laws on occupational health and safety, workers compensation, payment of wages, public holidays, long service leave, jury service, trading hours and anti-discrimination.
Inspectors authorised under NSW industrial relations and occupational health and safety laws are permitted by NSW law to inspect all employers' employment records, including time sheets, wages books and leave records.
What Will it Cost if an Employer Decides to Incorporate?
Costs associated with incorporation include registration fees, legal and accounting expenses, as well as additional paperwork. For more information visit the Australian Securities and Investments Commission website at www.asic.gov.au.
What are the Benefits of Remaining Under NSW Awards?
The NSW industrial relations system provides a level playing field for wages and conditions. Employers under NSW awards can continue to cover an entire workforce with the same industrial instrument without having to negotiate individual agreements. Employers can resolve disputes quickly and efficiently through access to the NSW Industrial Relations Commission. The OIR provides a range of services to help employers understand their rights and obligations under NSW industrial laws.
For More Information
Office of Industrial RelationsPhone: 13 16 28 (local call charge in NSW)TTY: 1800 555 677www.industrialrelations.nsw.gov.au
Department of Employment and Workplace RelationsPhone: 1300 363 264www.wagenet.gov.au
Free online services at www.industrialrelations.nsw.gov.au
Business Seminars
State-wide seminars and workshops are offered on a range of employment-related topics to help business owners and managers. Free seminars include employer rights and responsibilities under the NSW industrial relations system, the impact of Federal industrial relations changes and specific industry awards. Other topics include recruiting staff, developing workplace policies and managing staff performance. For information call 9020 4612 or click here.