Aim

The aim of this unit to provide students with some basic information on selected provisions of the NSW Industrial Relations Act 1996 that relate to employee entitlements in the workplace.

Outcomes:

On completion of this unit of work, students will be able to:

  • understand and prepare for the job interview process
  • understand the award and leave entitlements of employees
  • understand the processes involved in leaving a job
  • understand the steps involved in lodging an unfair dismissal case against an employer

Unit outline

Topic / Content
Preparing for the job interview /
  • Issues to consider
  • The job offer
  • Sample of a Letter of Offer
  • What is a contract of employment

Employee entitlements /
  • Overtime
  • Award superannuation
  • Meal-breaks, tea-breaks, crib-breaks
  • Public holidays

Employee leave entitlements /
  • Annual leave
  • Long service leave
  • Sick leave
  • Personal/carer’s leave
  • Bereavement leave
  • Parental leave

Leaving work /
  • Resignation
  • Redundancy
  • Dismissal
  • Unfair dismissal

Note:The information provided in this unit of work was provided by the NSW Department of Commerce – Office of Industrial Relations and is reproduced with their permission.

Preparing for a Job Interview

Prior to attending the job interview, and even before you apply for a position within an organisation, there are a number of issues to consider.

Position details

If you are applying for a position that has been advertised in a newspaper, a brief description of the position and the type of work will generally be included. The advertisement may also include other relevant information such as the wages, whether it is a full-time, part-time or casual position and if there is any shift work involved and a telephone contact to apply for the position.

Background information

When making an application, gather as much information about the position and the organisation to ensure that you would be happy and comfortable working for them.

If the advertisement identifies someone within the organisation to contact for more information about the position, contact that person. Ask them to explain the role of the position and other information that the advertisement may not include, such as hours of work, the wage or a more detailed job description that they may be able to send out to you.

Preparing your application

The job description may include skills or qualities the employer wants you to have. Make sure you address each of these when you write your application.

Discrimination is prohibited

The Anti-Discrimination Act 1977 prohibits discrimination in a variety of areas. One of these areas includes what is included in a job advertisement. The Act prohibits advertisements that indicate an intention to discriminate on the grounds of: sex, marital status, pregnancy, race, ethnic or ethno-religious background, disability, age, sexuality or transgender status.

Preparing for the interview

In preparing for the interview, take information to confirm any qualification or experience you may have and be prepared to explain what qualities or attributes you have that would make you the better candidate for the position. Also consider what additional information you want to find out about the position, the company or even future advancement within the organisation to help you better understand the job.

The Job Offer

Once you have successfully attended the interview and have received an offer of employment, what do you do now? Ideally the organisation will confirm in writing that you have been successful in your application. There should also be a letter for you sign and send back to the organisation confirming your acceptance of the position.

Letter of Offer

Prior to signing a letter and sending it back to the organisation, you will need to ensure that it includes details of the employment relationship. Such information will include an outline of your responsibilities, level of the position, the wage, type of employment (permanent, part-time or casual), hours of work, leave provisions (eg. sick leave, annual leave), the probation period, workplace policies and any other issues.

The Letter of Offer should also identify if the work that you will be performing is covered by an appropriate award or an enterprise agreement. If the organisation telephones you to advise that you were successful, ask if they can confirm in writing that you have been successful and the terms and conditions of employment. You will be able to refer back to this Letter of Offer at a later stage should you need to clarify any aspect of your employment.

You will be required to sign the Letter of Offer and send it back to the organisation confirming acceptance of the offer. Before sending it back to the employer, take a copy and keep it on file at home to refer back to at a later stage if you need to.

There is no legal requirement for organisations to provide a Letter of Offer, but it is becoming increasingly common practice for it to occur, and it is also good practice for businesses to provide this to new employees.

Below is a sample Letter of Offer and some of the issues that may be included in it.

Name and Address of Company

Your name and contact address

Dear {Your name }

Re: Offer of Employment with {Name of Business}

We would like to formally offer you the position of {Job Title}. This letter sets out the terms and conditions of the offer and your acknowledgment and acceptance of them.

Your key responsibility in this role is to {Outline of responsibilities of the job}.

The principal accountabilities of the position are outlined in the attached Job Description {Attach Job Description}.

Our business takes very seriously its obligations under the Occupational Health and Safety Act, Anti-Discrimination Act and Industrial Relations Act.

1. Your employment conditions are governed by the {Name of relevant award}.

2. The following may also be set out in a letter of offer:

-Level of position

-Type of employment (full-time, part-time or casual)

-Wages (gross amount for set period)

-Hours (hours for set period)

-Rostering and overtime (where applicable)

-Leave Provisions (annual leave, sick leave, long service leave etc)

-Superannuation (where applicable)

-Workplace policies may be outlined ( for example,. safety, smoking policy, uniforms etc)

-Performance standards

-Probation period.

3. The name of your Supervisor

4. Special or additional duties of the position

Acceptance

We have set out in this letter the terms and conditions of your employment with {Name of Business}. Please sign if you accept all the terms and conditions. You will also be required to complete a Taxation Declaration form.

We would like to welcome you to {Name of Business}.

Commencement

Your employment will commence on {Date} at {Location}. You should report to {Contact Person} at {Time} am/pm.

Yours sincerely

John Smith

Manager

I accept the terms and conditions set out in this letter

Name:

Signature:

Date:

If the work that you will be performing in your new job is not covered by an industrial award, then the terms and conditions outlined in the Letter of Offer will form the Contract of Employment.

What is a ‘contract of employment’?

When an employee accepts an offer of employment (oral or written), a

contract of employment has been established. Under this contract, both the

employer and employee have certain rights and obligations. Some stem from

common law but most are set out in awards or agreements approved by the NSW Industrial Relations Commission.

Employee Entitlements

Overtime

Employees who are required to work outside or more than their ordinary hours of work, must be paid at overtime rates. The rate of pay for overtime is usually time and a half (an extra 50%) for the first two or three hours, then double-time (an extra 100%) after that.

A meal allowance is also payable if the employee is required to work more than one or two hours after their normal finishing time. The meal allowance may not be payable if advance notice is given the day before the overtime is worked or if the employer provides a suitable meal. Normally, employees should have a break of about 10 hours after finishing overtime before being required to recommence ordinary hours.

Award Superannuation

The Superannuation Guarantee scheme requires employers to pay superannuation contributions in addition to wages for their eligible employees.

You are not eligible for superannuation contributions if you are:

  • paid less than $450 in a calendar month
  • under 18 years of age working not more than 30 hours a week
  • performing work of a domestic or private nature for not more than 30 hours a week, for example, a part-time nanny or housekeeper for a non-business employer.

The money is paid into a complying fund, and then preserved (invested) until the worker's retirement. The current minimum contribution employers must make is 8 per cent. This increased to 9 per cent from 1 July 2002.

Employers who fail to make superannuation contributions on behalf of their employees may be liable to prosecution. An employer would also be liable for the payment of the unpaid contributions together with any interest that may have accrued.

Superannuation must be paid by 28 July after each financial year. If payments are not made, the employer will need to pay a charge to the Tax Office (for more information contact the Australian Taxation Office Super Helpline).

Meal-breaks, tea-breaks, crib-breaks

Generally, there must be at least one meal break of between 30 minutes and one hour during each day. The meal break must normally be given no more than five hours after the employee starts work.

Some awards state the exact time at which the meal break should be taken. Normally the main meal break is taken in the employee's own time. It is not a paid break although shift-workers are usually entitled to a 20-minute paid crib break each shift instead of the longer unpaid break.

Some awards provide for a 10-minute rest period (tea break) either in the morning or afternoon, or both. In other cases, the award may not provide for any rest period at all in which case the granting of such breaks is largely at the employer's discretion. These rest periods or tea breaks normally count as time worked.

Public Holidays

There are ten standard public holidays each year. In addition, the government may declare special public holidays from time to time. Most awards provide for a union picnic day or other additional holidays which are treated much the same as normal public holidays.

Work performed on public holidays is usually paid at double-time and one-half (an extra 150%) with a minimum payment for 4 hours' work. Employees engaged on a weekly basis whose ordinary hours of work coincide with a public holiday are entitled to the day off without loss of pay. Many awards provide that if employees are absent without reasonable cause the day before or after a public holiday they forfeit payment for those days.

The major public holidays in New South Wales are:

  • New Year's Day
  • Australia Day
  • Good Friday
  • Easter Saturday
  • Easter Monday
  • Anzac Day
  • Queens Birthday
  • Labour Day
  • Christmas Day
  • Boxing Day

Employee Leave Entitlements

Annual Leave

Full-time and part-time workers in NSW are entitled to a minimum of four weeks paid leave per year.

When does annual leave become available?

Leave falls due on the anniversary of the date on which employment originally commenced.

What is an 'annual close down'?

An employer may temporarily close down their business once annually and instruct their workers with a month’s notice to take any leave due for that period. Any worker not having a full year's leave entitlement must take leave without pay for the balance of the close down period.

When can annual leave be taken?

Within six months of the date on which it becomes due. If the worker and employer agree, annual leave may be taken in advance.

What’s the rate paid to full-time and part-time workers taking annual leave?

The worker is entitled to their gross wage (not including overtime), plus any shift allowances and weekend penalties for the ordinary time that would have been worked if annual leave had not been taken.

If commissions or incentive payments are paid, they are averaged over the previous twelve months and added into the annual leave pay.

What about casual employees?

Casual employees are paid an additional payment of 1/12th of their casual hourly rate in place of an annual leave entitlement.

What am I entitled to if I leave my employment?

If the period of employment is more than 12 months, payment is made for the balance of untaken annual leave up to the last anniversary of the commencement of employment, plus a pro rata payment for leave accumulated after that date.

A pro rata payment calculated from the commencement date of employment is paid for periods of employment less than 12 months.

What if a public holiday occurs during annual leave?

An extra day is added to the annual leave balance.

Can a lump sum be paid instead of annual leave?

No, except on termination of employment, regardless of any agreement between the employer and employee.

Long service leave

Full-time, part-time and casual workers in NSW are entitled to two months paid long service leave after working for an unbroken period of ten years with an employer. Long service leave then accrues at the rate of one month paid leave for each additional five years of service.

Upon termination, an employee with at least 10 years service must be paid for any long service leave accrued. Employees with at least five years’ service may also be entitled to a payment upon termination in some instances.

Sick leave

If an employee is unable to attend work because of illness or injury they are entitled to have time off without the loss of pay. During the first year of employment the entitlement is 38 hours. In the second and subsequent years, an employee is usually entitled to 60.8 hours each year. Casuals have no entitlement to sick leave.

Personal/carer’s leave

All full-time and part-time employees are entitled to personal/carer's (or family) leave. This is leave taken by an employee to care and support a member of the family who is ill and for whose care they are responsible. Employees with personal/carers’ responsibilities may also have access to flexible work practices, such as time off in lieu of overtime and make-up time schemes.

Bereavement Leave

All full-time and part-time employees are allowed up to three days each year, without loss of pay for the death of a family member. Family members are:

  • spouse, de facto spouse or same sex partner
  • child, including adopted, foster, ex-nuptial or stepchild
  • parent, including foster parent or guardian
  • grandparent, grandchild or sibling
  • siblings of the employee's spouse or de facto
  • a relative who is a member of their household.

Parental leave

Parental leave is leave taken by an employee as:

  • maternity leave in connection with a pregnancy or the birth of a child
  • paternity leave in connection with the birth of a spouse's child
  • adoption leave in connection with the adoption of a child under five years of age.

Parental leave is unpaid leave, unless paid leave is available through an award or agreement.

Other leave entitlements

Many awardsalso provide leave for employees wishing to donate blood or who are required for Jury Service.

Leaving work

Resignation

When you decide to leave your job, you are required to provide the employer with a written resignation telling them when you wish to leave. Under an award, enterprise agreement or contract of employment, you must provide notice, usually one or two weeks, before you finish with the company.

The employer may require that you work the period of notice, or may allow you to leave immediately. If you have given the necessary notice, the employer is required to pay you money in lieu of notice if you are not required to work out the notice period.

If you do not give the employer sufficient notice, the employer may withhold any wages that are owed to you.

Redundancy

Redundancy occurs when the employer no longer wants the job you are doing done by anyone. In other words it is the job which is redundant, not the person.

When you are made redundant (retrenched) you have the following entitlements:

  • wages which are owed to you for work already done
  • outstanding annual leave and annual leave loading
  • a period of notice (depending on how long you have worked in the company) or payment in lieu of notice
  • redundancy pay (if you work for an employer who has more than 15 employees).

The amount of redundancy pay is determined by whether you work under a state or a federal award, or whether your workplace has an enterprise agreement which may have better redundancy provisions contained in it.