Minimum Conditions of Employment Regulations 1993

The Act lays down a minimum adult weekly rate of pay for a 38-hour week, as well as junior rates for employees aged below 21 years and rates for trainees and appren-tices which apply unless award rates are higher. The minimum weekly rate of pay as of Oct 1, 2009 was AUD 569.70 per week or AUD 14.99 per hour. Junior rates are a percentage of the adult wage.

When an employee dies or their employment is terminated and they have accrued a long service leave entitlement, they or their personal representative in the case of death, are entitled to pro-rata payment of the long service entitlement for all years served. However, employees terminated for serious misconduct are not entitled to long service leave.

Long service leave is paid at the ordinary rate of pay at the time the leave is taken excluding overtime, penalties allowances and shift premiums. Bonuses are included and are calculated as an average weekly amount over the last 12 months before the leave begins or the employment is terminated. If the employee’s hours of work vary, for instance part-time employees and casual employees, the rate of pay is calculated on the average weekly hours over the whole time the employee has worked for the employer.

If a public holiday falls during the long service leave and the employee would have been entitled to that holiday, the period of leave is increased by one day. This does not apply to long service leave paid out on termination of employment.

Employers and employees can agree to long service leave being taken before it falls due. If the employment is terminated before the leave falls due employers are permitted to deduct the amount paid from termination payments.

Employees are not permitted to work in paid employment whilst on long service leave and employers are able to withhold or reclaim payment if they do so. This does not apply to long service leave paid out on termination.

The long service leave laws require records to be kept which enable the long service leave entitlement and payment for long service leave to be calculated. In particular employees should note that accurate records must be kept of all hours worked for employees whose hours of work vary so that the average can be calculated when long service leave falls due. Any agreement made by the employer and the employee to cash out long service leave must also be kept. Penalties can be imposed for breaches.

Employers should use fair procedures when terminating employees as replacing employees is expensive and claims for unfair or unlawful dismissal can be costly and time consuming to defend.

Summary or instant dismissal is dismissal of an employee ‘on the spot’ and without notice. Employers should only dismiss without notice if the employee is guilty of deliberate and serious misconduct which is so bad that it would be unreasonable to expect the employer to continue employing the employee for the notice period. Serious misconduct could include theft, fraud, assault, willful disobedience of a lawful order or deliberate behavior which is a serious risk to the health and safety of a person or the reputation, viability or profitability of the employer’s business.

When terminating employment, all employers must provide employees upon request with a written statement specifying the period of employment and the classification or type of work performed by the employee.

In addition, award-free employees who have been given notice of termination are entitled to one day’s time off work per week to seek alternative employment.

A job becomes redundant when an employer decides that the job the employee has been doing is no longer needed or that fewer employees are needed at the workplace. Redundancies usually occur in farming when the farmer is retiring, cutting staff to save costs or introducing new machinery or technology. The same notice periods apply to redundancy as to other forms of termination of employment. Employees who leave during the notice period do not lose their entitlement to severance pay but do not have to be paid in lieu of notice.

Continuous service means service with the employer which is not interrupted. The following absences or interruptions do not break continuity of service for the purpose of severance payments:

any termination or interruption by the employer intended to avoid redundancy obligations;

Employers who find alternative employment for employees can make an application to the WA Industrial Relations Commission to have the amount of the severance payment varied.

In Western Australia there is no ability to make a workplace agreement which applies to all employees or a group of employees unless one of the parties is a trade union. The WA Industrial Relations Act does provide for individual workplace agreements between an employer and an employee. These agreements are called Employer-Employee Agreements.

The Western Australian industrial laws require all employers to keep records for each employee and there are penalties under the act for breaches of these requirements. Records must be in English with separate records for each employee. Records for long service leave must be kept for the duration of the employee’s employment and for seven years after termination of the employment. Other records must be kept for seven years after the last entry. Any alterations to records must be made as soon as the error is recognized and a notation of the change made in the record. Records must be in a form which can be made available for inspection and copying by the employee or their representative or an industrial inspector. Penalties can be imposed for breaches.