Employing vineyard workers:
frequently asked questions*
A guide to the Wine Industry Award (2010) and other
employment conditions relevant to vineyard workers
*Current as of May 2013. Changes are frequently made – always check on our
website for the most recent version of this document.
Wine Grape Council of SA
Industry House
National Wine Centre
Cnr Botanic Rd & Hackney Rd
ADELAIDE SA 5000
+61 8 8133 4403
www.wgcsa.com.au
Contents
General resources .............................................................................................. 3
Websites ................................................................................................................................. 3
Documents ............................................................................................................................. 4
Awards, rates of pay, penalties, overtime .......................................................... 5
Do I have to pay staff under an award? ................................................................................. 5
Which award do I use? ........................................................................................................... 5
What are the current award rates for vineyard workers? ..................................................... 6
Can I pay piece rates? ............................................................................................................ 6
What if I overpay or underpay wages? .................................................................................. 6
What if the new award rate is higher than the old award rate? ........................................... 6
What is the difference between penalty rates and overtime? .............................................. 7
When do I pay penalty rates? ................................................. Error! Bookmark not defined.
Employing staff, contracts, contractors ........................................................... 10
Do I need to have a written employment agreement or contract? .................................... 10
What does a written agreement need to include? .............................................................. 11
Can I include a probation period? ........................................................................................ 11
Can I employ someone for a fixed term? ............................................................................. 11
Who can I legally employ? ................................................................................................... 11
I only employ family members - does that make a difference? .......................................... 12
What documents do I give to a new employee? ................................................................. 12
Can I have an employee agreement with different conditions from the award? ............... 12
What are National Employment Standards (NES)?.............................................................. 12
Can I have an individual agreement with my employees? .................................................. 13
If my worker has an ABN and invoices me, do I have to comply with award conditions, NES
and/or the Fair Work Act 2009? .......................................................................................... 13
What if provide a house or board for an employee? ........................................................... 14
What if I employ labour hire contractors? ........................................................................... 14
Hours of Work ................................................................................................. 15
Full-time, part-time and casual – what’s the difference? .................................................... 15
What are the maximum hours that an employee can work? .............................................. 15
What hours can I roster staff on? ........................................................................................ 16
What about shift-workers? .................................................................................................. 16
My staff often have to work after hours, eg during harvest – can they still do that? ......... 16
Is there any flexibility in when hours are worked? .............................................................. 16
What are the rules regarding rest periods after overtime? ................................................ 17
Can overtime be taken as time off instead? ........................................................................ 17
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Paying wages, pay slips etc .............................................................................. 17
How often do I have to pay wages? ..................................................................................... 17
Do I have to provide a pay slip? ........................................................................................... 17
What needs to be on the pay slip? ...................................................................................... 17
Superannuation ............................................................................................... 18
Who do I have to pay superannuation to? .......................................................................... 18
How much do super do I have to pay?................................................................................. 18
How often do I need to pay super?...................................................................................... 18
Who chooses the super fund? ............................................................................................. 19
What should I do if I haven’t been paying super when I should have been? ...................... 19
Where can I get details on my obligations regarding superannuation? .............................. 19
Leave provisions: annual leave, sick leave etc .................................................. 19
What are the rules around annual leave?............................................................................ 19
What about sick leave, carer's, compassionate leave etc?.................................................. 20
Do I have to pay employees for jury duty, community service etc?.................................... 20
What are my employees' Long Service Leave (LSL) entitlements ........................................ 20
Do I have to pay parental leave?.......................................................................................... 20
Terminating employment ................................................................................ 21
What do I do if it looks like I’m going to have to warn or dismiss a casual? ....................... 21
What do I do if I need to warn or dismiss a Full/Part Time Employee?............................... 21
What if I need to dismiss someone immediately? ............................................................... 22
What should I know about unfair dismissal claims? ............................................................ 23
Is there a difference between redundancy and retrenchment? ......................................... 23
Employment records........................................................................................ 24
What do I have to register for if I employ staff? .................................................................. 24
What employment records do I need to keep? ................................................................... 25
Unions, right of entry ....................................................................................... 26
Is it true that union officials have a right of entry to my business? .................................... 26
If I only use contract labour can any union official enter my business? .............................. 26
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General resources
Websites
WGCSA
This document is provided on the WGCSA website in a Question-Answer format – allowing you to
look up specific information quickly and easily. It also includes direct hyperlinks to webpages and
resources for downloading.
Fair Work Ombudsman
InfoLine: 13 13 94.
The Fair Work Ombudsman is an independent statutory office created by the Fair Work Act 2009 to
promote harmonious, productive and cooperative workplace relations and ensure compliance with
Commonwealth workplace laws.
This Office also has an Inspectoral role and can enter workplaces to examine records and investigate
complaints usually by employees and has the power to prosecute for breaches of Industrial Awards
and Agreements and the National Employment Standards (“NES”).
This website also contains a wealth of information on all aspects of employment, Awards, terms and
conditions, pay etc. In the resources section there are many useful calculators and templates (e.g.
for determining pay rates, calculating leaving, payslips and offer of employment templates etc).
Fair Work Commission (previously Fair Work Australia)
The Fair Work Commission is the national workplace relations tribunal. It is an independent body
with power to carry out a range of functions relating to:
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the safety net of minimum wages and employment conditions
enterprise bargaining
industrial action
dispute resolution
termination of employment
other workplace matters.
WorkCoverSA
This website has information about the operation of WorkCover – South Australia’s workers’
compensation and rehabilitation scheme – including employer responsibilities, premiums and other
useful information.
WorkCoverSA manages the South Australian Workers Rehabilitation and Compensation Scheme (the
Scheme), which provides protection to workers and employers in the event of workplace injury.
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We aim to rehabilitate and compensate injured workers following a workplace injury, and return
them to safe workplaces and the community. With a positive approach and the right support, injured
workers can recover and return to normal life. Helping improve South Australia's return to work
rates is everyone's responsibility and we all have a role to play.
We manage the State's workers rehabilitation and compensation scheme on behalf of about 50,000
employers and about 430,000 employees. There are also about 70 self-insured employers, as well as
the State public sector agencies, which manage their own claims but under the same laws. We are
set up under the WorkCover Corporation Act 1994, and have a Board of Directors appointed by the
Governor of South Australia. The current Chair of the Board is Philip Bentley.
WorkCoverSA is subject to the control and direction of (SA) Minister for Industrial Relations.
Residential Tenancy
You will need this website if you provide accommodation for your workers - search for information
on being a private landlord.
The Residential Tenancies Tribunal is an independent judicial body established under the Residential
Tenancies Act 1995 for the purpose of resolving disputes between tenants and landlords. The RTT
has the power to make a range of legally binding decisions called an 'Order of the Tribunal.'
Documents
Wine Industry Award 2010
It is important that you obtain a copy of the Wine Industry Award 2010 for your own
understanding (you also are required to make a copy available to any employees covered by the
award). You can download a copy at
Latest updates to award terms and conditions. Download from WGCSA website (look under
Business Solutions)
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Pay and conditions guide – Wine Industry Award (2010)
WGCSA Members’ Update 1-7-2012 – Wage increases
WGCSA Members’ Update 16-7-2012 – Licensing updates
WGCSA Members’ Update 16-7-2012 – Paid parental leave for dads and partners
Other Awards which may apply include the Pastoral Industry Award and the Horticulture Award see
‘Which Award Do I Use?’ below.
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Awards, rates of pay, penalties, overtime
Do I have to pay staff under an award?
All employees whose job functions are covered by an award must have pay and conditions that are
at least the equivalent of those in that award. If the employee is doing the work of a vineyard worker
then they are most likely covered by the Wine Industry Award 2010 (WIA).
As a general rule people in management positions are not covered by the Wine Industry Award
2010. If they aren’t covered by an award (“award free”) their pay must be at least the minimum
wage as varied each year with increases to take effect on the 1st July.
All employees’ conditions whether the employee is covered by an award, agreement, salaried or
otherwise are provided in the National Employment Standards.
If an employee is paid less than the award, the employer is at risk of a claim being made against
them for underpayment. If you are found to have paid below the award you can be made to provide
back pay for that person and any others you employed over the previous six years.
If you are using a labour hire contractor to supply pruners etc you can be held responsible if they pay
their staff below award rates. Fair Work Commission can collect and hold money for workers even if
they can’t be located (e.g. returned home overseas).
When engaging backpackers and itinerant non-Australian workers it is the employer’s responsibility
that such employees have an appropriate working visa. Substantial penalties apply $16,000 t0
$32,000) when employers employ workers without an appropriate visa. The employer may also be
penalised when they engage labour hire employees.
Employers should obtain from employees and labour hire companies a copy of a visa prior to
engaging foreign workers.
Which award do I use?
The Fair Work Act came into effect on 1 January 2010. At the same time new national awards were
introduced to replace state awards. Where an employee is primarily involved in grape production,
they will come under the Wine Industry Award 2010 (WIA). If you have a mixed farm and an
employee works predominantly on farm production other than grape production then the Pastoral
Award 2010 or the Horticulture Award 2010 are more likely to apply.
You need to consider carefully which award you pay staff under. Employers can’t pick which award
they prefer; they are bound to use the award that is most appropriate to the work of the employee.
The Pastoral Award 2010, for example, typically has less generous provisions than the WIA. If you
paid an employee under that award and it was later found that they should have been paid under
the WIA you would most likely be required to reimburse them for the difference, plus interest.
Some vineyard workers may be exempt from award coverage:
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If they are employed under an enterprise agreement (typically this only happens with large
companies)
If they are a vineyard manager and their duties are at a higher level than the award
classifications
Labour hire contractors that supply vineyard labour are covered by the award.
What are the current award rates for vineyard workers?
You can download the current award rates from the WGCSA website. This document includes rates
for casuals and allowances. Award rates change each year on 1 July
Can I pay piece rates?
Clause 22 of the Wine Industry Award 2010 makes provision for piecework.
There is no prescribed rate for piece work (eg $/vine pruned). It is a requirement that an ‘employee
of average capacity’ must be able to earn 20% more per hour than the minimum hourly award rate
for that work.
The employer must have a written, signed agreement with a piece worker (signed by a parent or
guardian if they are under 18). The agreement must state
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that the piecework rate will be paid instead of the minimum wages specified in Clause 16—
Classifications and adult minimum wages of the Wine Industry Award 2010;
that the piece worker won’t be paid a meal allowance, won’t work ordinary hours of work
and won’t be paid overtime and penalty rates; and
the date the agreement commences to operate.
The employer must give a copy of the agreement to the piece worker.
If engaging a contractor to supply vineyard labour, it is advisable to check they are being paid in
accordance with the award.
What if I overpay or underpay wages?
If you underpay wages you are required to correct the error and provide back pay for the whole
amount. NB Claims for underpayment of wages may arise for up to 6 years.
If you overpay wages you generally cannot recover the money by deducting from future wages
without the employee’s written consent including, repayment by instalments. You will need to come
to an agreement, eg for the employee to make fortnightly payments until the overpayment is
recovered. If the employee does not agree then you will need to seek legal advice on how to recover
the overpayment.
What if the new award rate is higher than the old award rate?
If as at 31 December 2009, an employee was entitled to a minimum wage, loading or penalty under
their previous award that was less than the corresponding entitlement in the WIA then you are
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entitled to phase in the increased amount. This phasing-in period applies from 1 July 2010 to 30 June
2014. An example might be that the casual loading in the Award in 2009 was 20% but the Modern
Award prescribes 25%. During the transition period (1st January 2010 to 30th June 2014) the casual
loading increase by 1% on 1st July each year from 2010 until it reaches 25% on 1st July 2014.
To calculate the pay rate for the transition period, compare the rate from the old award with the
rate of the equivalent classification under the new award. The difference between the two is called
the transition amount.
New Pay Rate* – Old Pay Rate* = transition amount
*remember to include any allowances and casual loading in your calculations
The transition amount is then multiplied by the relevant proportional amount (see below) to
establish the new rate of pay.
The following example shows a worker that under the new award would receive higher pay than
they were getting under the old award.
Example
A vineyard hand was previously paid at Grade 3 classification. The weekly rate was
$622.80. Under the WIA the rate is now $668.42. The transition amount is therefore
$26.80. The transition amount is then multiplied by the proportional amount and
deducted from the new pay rate to calculate the correct pay.
$26.80 x 40% = $10.72
Deduct this amount from the WIA award rate, i.e. $668.42 - $10.72 = $657.70. This is
the rate for 2012/13.
If you have been paying an employee above the award rate you cannot reduce that rate without the
employee’s agreement.
Proportional Amounts
First full pay period on or after
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1 July 2012
1 July 2013
40%
20%
The transition period will end on 30 June 2014.
What is the difference between ordinary time, shift allowances, overtime
and penalty rates?
A.
Ordinary Hours
Ordinary Hours of Work is time worked within an average of 38 hours per week and within a time
span prescribed in the award. The weekly or hourly wage is paid for work performed during the
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average of 38 hours per week and within the prescribed span of ordinary hours. Additional
payments occur at all other times.
In Clause 27.2 (a) to (f) of the WIA 2010 the following apply (which may be different to other
awards);
Ordinary Time Day Workers
1)
The ordinary hours of work for a day worker are an average of 38 per week.
2)
The ordinary hours of work are to be worked continuously, except for meal breaks, between
the hours of 6.00 am and 6.00 pm, Monday to Friday.
3)
The ordinary hours of work for an employee rostered to perform work in the cellar door are
to be worked continuously, except for meal breaks, between the hours of 6.00 am and 6.00 pm,
Monday to Friday, and 8.00 am and 6.00 pm Saturday to Sunday.
4)
From 1 November to 30 April, the ordinary hours of work for an employee rostered to
perform work in the vineyard are to be worked continuously, except for meal breaks, between the
hours of 5.00 am and 6.00 pm Monday to Saturday.
5)
The spread of hours may be varied by agreement between an employer and the majority of
employees in the relevant workplace or the section or sections of it.
6)
The ordinary hours of work must not exceed 10 hours on any day, provided that the ordinary
hours of work may extend to 12 hours on any day by agreement between the employer and the
majority of employees in the relevant workplace or the section or sections of it. Overtime is paid
when the hours of ordinary time worked exceed the maximum daily ordinary hours or are in excess
of 152 hours over 4 consecutive weeks.
Penalty rates are paid to a worker for ordinary hours worked on Saturdays, Sundays and, Public
Holidays and, afternoon and night shifts.
B.
When do I pay Shift Allowances?
Shift allowances apply for work outlined in Clause 27.2 (g) of the WIA 2010 which makes provision
for day workers, shift workers, afternoon and night shifts, Saturday shift, Sundays and Public
Holidays. The Shift Allowance is paid during ordinary time.
Day workers (i.e. not Ordinary hours of work—Shift Allowances (or Penalty Rates) (Clause 27.2)
The rate to be paid to a day worker for ordinary hours worked on a Saturday is 125% and on a
Sunday is 200%.
A day worker required to work on a public holiday must be paid for a minimum of four hours’ work
at the rate of 250%.
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Shift workers Ordinary hours of work—(Clause 27.3)
The ordinary hours of work for a shift worker are an average of 38 per week.
The ordinary hours of work are to be worked continuously, except for meal breaks.
For the purposes of WIA:
(i)
(ii)
(iii)
afternoon shift means any shift finishing after 6.00 pm and at or before midnight; and
night shift means any shift finishing after midnight and at or before 8.00 am.
The ordinary hours of work must not exceed 10 hours on any shift, provided that the
ordinary hours of work may extend to 12 hours on any day by agreement between the
employer and the majority of employees in the relevant workplace or section or sections
of it.
a. Afternoon and night shift allowances (Clause 27.3 (e))
 An employee who works on afternoon or night shift must be paid 15% extra for such
shift.
An employee who:
• during a period of engagement on shift, works night shift only; or
• remains on night shift for a longer period than four consecutive weeks; or
• works on a night shift which does not rotate or alternate with another shift or with day
work so as to give the employee at least one third of their working time off night shift in
each shift cycle,
must, during such engagement, period or cycle, be paid 30% extra for all time worked during
ordinary working hours on such night shift.
Saturday shift allowance (Clause 27.3 (f))
The rate at which a shift worker must be paid for work performed between midnight on Friday and
midnight on Saturday is 150%. The extra rate is in substitution for and not cumulative upon the shift
premiums prescribed in clause 27.3(e).
Sunday and public holiday shifts (Clause 27.3 (g))
The rate at which a shift worker must be paid for all time worked on a Sunday is 200% and on a
public holiday is 250%. The extra rate is in substitution for and not cumulative upon the shift
premiums prescribed in clause 27.3(e)
C.
When do I pay Overtime and Penalty Rates?
1) Payment for working overtime (Clause 29.1). Except for (b), (c) and (f) below all-time
worked outside ordinary hours on any day or shift must be paid for at the rate of 150% for
the first two hours on any day or shift and 200% thereafter until the completion of the
overtime work.
2) Sunday work (Clause 29.2)-An employee required to work overtime on a Sunday must be
paid at the rate of 200% until the completion of the overtime.
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3) Public holiday work (Clause 29.3) An employee required to work overtime on a public
holiday must be paid for a minimum of four hours’ work at the rate of 250% until the
completion of the overtime.
4) Rest period after overtime (Clause 29.4)
(a) An employee who works so much overtime between the termination of their ordinary hours on
one day and the commencement of their ordinary hours on the next day that the employee has not
had at least 10 consecutive hours off duty between those times must, subject to the other provisions
of clause 29.4, be released after completion of the overtime until the employee has had 10
consecutive hours off duty without loss of pay for ordinary hours occurring during such absence.
(b) If on the instructions of the employer an employee resumes or continues work without having
had the 10 consecutive hours off duty the employee must be paid at the rate of double time until
the employee is released from duty for such period. The employee is then entitled to be absent until
the employee has had 10 consecutive hours off duty without loss of pay for ordinary hours occurring
during the absence.
An employee required to work overtime on a public holiday must be paid for a minimum of four
hours’ work at the rate of 250% until the completion of the overtime.
5)
Call back (Clause 29.5)
Any employee recalled to work overtime after leaving the employer’s premises must be paid for a
minimum of four hours’ work at the appropriate overtime rate, except where it is customary for an
employee to return to their employer’s premises to perform a specific task outside their ordinary
working hours or where the overtime commences, subject to a meal break, at the completion or
before the commencement of ordinary working time.
6)
Time off instead of payment for overtime (Clause29.6)
An employee may elect, with the consent of the employer, to take time off instead of payment for
overtime at a time or times agreed with the employer, provided that:
(a) overtime taken as time off during ordinary hours must be taken at the ordinary time rate, that is
an hour for each hour worked; and
(b) an employer must, if requested by an employee, provide payment at the rate provided for the
payment of overtime in this award, for any overtime worked which has not been taken as time off
instead of payment for overtime within four weeks of accrual.
Employing staff, contracts, contractors
Do I need to have a written employment agreement or contract?
As soon as you employ someone you are entering into a contract, even if you don’t have a written
one. It makes sense therefore to have a written agreement to reduce the risk of a dispute.
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What does a written agreement need to include?
A written offer of employment should be given in instances where the employment is expected to
be ongoing and when an applicant expects on going employment. The agreement should clearly
state:
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Names and addresses of employer (with correct ABN and legal title) and employee
Employment commencement date (and end date if a fixed term contract)
Whether the position is full-time, part-time or casual
If the engagement is subject to a probationary period it must state that period and be
provided to the applicant BEFORE the employment starts.
Start and finish times and hours per week and any expectations regarding out-of-hours
work and/or overtime
Award name if paying under an award
Award classification and pay rate
Pay periods (eg weekly, fortnightly)
Details of any probation period
Any workplace requirements (e.g. OH&S, dress standard, use of own tools)
NB see also ‘What documents do I give to a new employee?’
It is advisable to attach a Job Description to the contract that clearly outlines the work that you
require the employee to do and what decisions they can make. It must be accurate – e.g. you can’t
call someone a manager if they never make decisions.
NB You can download an Offer of Employment template from the Fair Work Ombudsman website.
Can I include a probation period?
Yes but only for full and part-time workers, not for casual staff. It can only apply for a maximum of
six months.
Can I employ someone for a fixed term?
Fixed term contracts are allowed. A person employed under a fixed term contract cannot bring an
unfair dismissal claim if the contract period was completed. They may be able to make a claim if the
contract is terminated early.
Who can I legally employ?
A permanent resident of Australia
A person with a valid Visa*:
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Check that the visa is the original, not a copy and that the visa date has not expired
Check of there are any limitations (eg 20 hours per week)
Keep a copy for your records.
Children under 16 cannot be employed during school hours or any job outside those hours that
might interfere with their education.
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*When engaging a person with a Visa you are advised to contact the Department of Immigration to
ensure that the employment meets the criteria. Failure to comply may result in substantial penalties.
I only employ family members - does that make a difference?
It is arguable that family members are still regarded as employees under the Wine Industry Award
2010 if they are undertaking work that is covered by the award. If they are working at a level above
Level 5 then they fall outside the award. They may be covered by another award or be award-free.
All employees must be covered by WorkCover and may also be included for the purpose of Payroll
Tax (see ‘What do I have to register for if I employ staff?’). Employees who are over 18 and earn
$450/month or more must also be paid superannuation.
What documents do I give to a new employee?
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A copy of the employment agreement (signed by employer and employee –
parent/guardian if employee is under 18)
Tax file declaration form (not available as a download, usually available at newsagents or
ring 1300 720 092)
Superannuation Choice of Fund form (download from ATO website)
A copy of the Fair Work Information Sheet (download from Fair Work Ombudsman
website)
An employer is also legally required to make a copy of the award available to employees, e.g. pinned
to a notice board, on a lunchroom table, etc.
Can I have an employee agreement with different conditions from the
award?
Yes - provided that the employee agrees in writing to the agreement and the changes leave the
employee better off overall. Clause 7 of all Modern Awards applies.
For example you may come to an agreement to vary the hours, eg to enable an employee to start
later so they can take children to school, or do work from home out of hours. However the only
items you can negotiate to vary are:
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when work is performed;
overtime rates;
penalty rates;
allowances; and
leave loading.
What are National Employment Standards (NES)?
There are ten minimum employee entitlements every employment contract must now meet. They
are:
1. Maximum weekly hours of work - 38 hours per week, plus reasonable additional hours.
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2. Requests for flexible working arrangements - allows parents or carers of a child under
school age or of a child under 18 with a disability, to request a change in working
arrangements to assist with the child’s care.
3. Parental leave and related entitlements - up to 12 months unpaid leave for every
employee, plus a right to request an additional 12 months unpaid leave, and other forms
of maternity, paternity and adoption related leave.
4. Annual leave - 4 weeks paid leave per year, plus an additional week for certain shift
workers.
5. Personal/Carer’s leave and compassionate leave - 10 days paid personal / carer’s leave,
two days unpaid carer’s leave as required, and two days compassionate leave (unpaid for
casuals) as required.
6. Community service leave - unpaid leave for voluntary emergency activities and leave for
jury service, with an entitlement to be paid for up to 10 days for jury service.
7. Long service leave - a transitional entitlement for employees who had certain LSL
entitlements before 1/1/10 pending the development of a uniform national long service
leave standard.
8. Public holidays - a paid day off on a public holiday, except where reasonably requested to
work.
9. Notice of termination and redundancy pay - up to 4 weeks’ notice of termination (5 weeks
if the employee is over 45 and has at least 2 years of continuous service) and up to 16
weeks redundancy pay, both based on length of service.
Download more information from the Fairwork Commission.
Can I have an individual agreement with my employees?
From 1 January 2010 enterprise agreements cannot be made with a single employee. You may wish
to have an Individual Flexibility Arrangement Agreement with your employees, you just can’t with
one employee. Such agreements must meet the Better Off Overall Test.
If my worker has an ABN and invoices me, do I have to comply with
award conditions, NES and/or the Fair Work Act 2009?
Having an ABN doesn’t automatically make someone a contractor. If the person is primarily
supplying labour then they are likely to be deemed as an employee. The ATO has an
Employee/Contractor Decision Tool to assist with this. Among the factors that the tool takes into
account are the level of control the contractor has in undertaking any work, whether they can subcontract any of the work and whether they are responsible for making good, at their cost, any errors.
Employers may be required to pay superannuation for contractors that primarily supply labour to
them.
Contractors may also need to be covered by WorkCover. If you engage a Contractor ask for written
confirmation that the Contractor is registered with WorkCover and which Industrial Instrument (e.g.
Award, Enterprise Agreement or, other arrangement) that is used for paying the Contractor’s
employees).
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What if I provide a house or board for an employee?
If you provide housing for an employee you are advised to have a written agreement. If you are not
charging rent, neither party may be covered by the Residential Tenancy Act but you may become
liable for Fringe Benefits Tax. Because there won’t be a bond it will be harder to recover costs if any
damages occur. The Offer of Employment and the employment contract should include a clause that
termination of employment also means terminating the rental.
If you are charging rent then you should have a Residential Tenancy Agreement. You can download
a Residential Tenancy Agreement template from the Residential Tenancy website:
www.ocba.sa.gov.au/assets/files/fixed_term_lease.pdf. More general information on being a
private landlord can be found on the South Australian government website (sa.gov.au – search
under “housing” for “renting and letting”).
What if I employ labour hire contractors?
If you are using a labour hire contractor to supply pruners, etc you can be held responsible if they
pay their staff below award rates. It’s very important that you have a signed agreement with the
contractor that includes:


Their ABN – check that it is valid at www.abr.business.gov.au
Their agreement to state:
o pay in accordance with the which Modern award;
o meet OH&S requirements;
o ensure all workers are legally entitled to work (current visa)
o meet all their statutory obligations and not act unlawfully
You are advised to further protect yourself by providing a copy of the award and pay rates to the
contractor’s and your workers, e.g. in a lunchroom, etc.
You should also request a copy of
1) visas for the Contractor’s employees,
2) any necessary licences held by employees for the use of plant, equipment and machinery
3) the Contractor’s WorkCover registration details.
You are required to provide an OHS Induction to the Contractor’s employees and the Farmer’s OHS
Guide (copies available from WGCSA) will assist.
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Hours of Work
Full-time, part-time and casual – what’s the difference?
Full-time:
 employed to work an average 38 hours per week
 entitled to paid leave and public holidays.
Part-time:
 works less than 38 hours per week
 eligible, pro-rata, to the same pay rate and conditions as a full-time worker
Casual:




paid by the hour, with a loading (in 2012/13 this is 23%). On 1st July 2013 it will increase to
23% and 25% on 1st July 2014.
must be rostered on for a minimum 4 hours for each shift (WIA clause 13.3). The minimum
period varies between different awards (e.g. Pastoral Industry Award 2010 Clause 10.4 (f)
is 3 hours).
Eligible for overtime (this does not apply to all awards or it applies differently to the WIA).
eligible for penalty rates and shift allowances
A casual employee, other than an irregular casual employee, who has been engaged by a particular
employer for a sequence of periods of employment under this award during a period of 12 months,
has the right to elect to have their contract of employment converted to full-time or part-time
employment if the employment is to continue beyond the conversion process.
Within four weeks of the employee reaching 12 months of casual employment, the employer must
give them notice in writing providing the option to convert to full-time or part-time. The employee
can elect to remain as a casual but can convert to full-time or part-time at any time after. If they do
convert to full-time or part-time they can’t revert to casual without the employer’s agreement.
What are the maximum hours that an employee can work?
Employees can work a maximum of 38 hours per week plus ‘reasonable additional hours’.
10 hours is the maximum hours that can be worked on any one day, but this can be extended to 12
hours if the majority of workers agree.
The maximum time that can be worked without an unpaid break is 5 hours (breaks must be unpaid
and between 30 and 60 minutes).
For shift-workers the maximum is 4 ½ hours but this can be extended to 6 hours by agreement:


For part-timers and casuals engaged to work no more than 6 hours on that shift
Where the worker is working a ‘short day’ (see ‘Is there any flexibility in when hours are
worked?’)
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What hours can I roster staff on?
Ordinary hours for day workers are:


Between 6am and 6pm on weekdays and 8am-6pm on the weekend
From 1 November to 30 April weekday ordinary hours are extended to 5am
The spread of hours can be varied with the agreement of a majority of employees. Rostered hours
must be continuous except for meal breaks.
What about shift-workers?
Shift-work is defined in the Award:


Afternoon Shift- any shift that starts after 6pm and ends before midnight
Night Shift – any shift that ends after midnight and at or before 8am
My staff often have to work after hours, eg during harvest – can they still
do that?
Yes, but if you roster them to start after 6pm then penalty rates apply.
Is there any flexibility in when hours are worked?
Yes, but it must be agreed between the employer and a majority of employees. Clause 7 in all
Modern Awards, allow employers and individual employees to enter into Individual Flexibility
Arrangements Agreements which meet the Better Off Overall Test. The terms that may be agreed
are those concerning the following;
(a) arrangements for when work is performed;
(b) overtime rates;
(c) penalty rates;
(d) allowances; and
(e) leave loading.
Other options under the award are:




19 days of eight hours in each four week period, with either a fixed or rostered day off;
nine days of eight hours and one day of four hours in each fortnight with either a fixed halfday off or a rostered half-day off at the beginning or end of the working week;
four days of eight hours and one day of six hours in each week, with the six hour day being
at the beginning or end of the working week; or
any other arrangement agreed to by the employer and the majority of employees directly
affected.
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What are the rules regarding rest periods after overtime?
Where an employee covered by the WIA works overtime on one day they must be allowed a 10-hour
break before they start ordinary hours on the next day. They must also be paid for those break hours
that overlap normal hours.
For example, someone whose normal shift starts at 9am works overtime on a Tuesday until
midnight. They are eligible for a ten hour break, i.e. from midnight to 10am. The employer must pay
them for the period 9am to 10am.
Where an employee is instructed to resume or continues work without having the 10 hour break,
they must be paid at the rate of double-time until they are released to take the 10 hour break. The
same conditions as above apply.
Can overtime be taken as time off instead?
Yes, if both parties agree. If taken during ordinary hours (i.e. Monday-Saturday 6am-6pm) the
overtime can only be taken at an hour off for each hour worked. If the time is not taken within four
weeks then the overtime rate must be paid.
Are all Modern Awards the Same?
No. Most of the comments here apply only to the WIA. If you are bound by another award you will
need to check that award for all conditions, classifications and wage rates.
Paying wages, pay slips etc
How often do I have to pay wages?
Wages must be paid either weekly or fortnightly. This can be altered (e.g. to monthly) but only if the
employee agrees in writing. Wages must be paid by cash or electronic funds transfer (EFT).
Do I have to provide a pay slip?
Yes, within one day after you pay staff.
What needs to be on the pay slip?
The pay slip must include:








Legal and/or trading name of employer including the ABN
Employee name
Date of payment (eg 19/06/09)
Period of payment (eg 08/10/11 – 15/10/11)
Payment details (hours, rate of pay, tax, gross and nett pay)
Loadings, penalty rates, allowances, bonuses
Overtime hours worked and rate of pay
Details of any deductions (e.g. health insurance super)
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
Amount and the name of the superannuation fund
Whilst it is not a requirement it is good practice to include all leave balances on payslips to minimise
the risk of a dispute later on.
You can download a Pay Slip template from the Fair Work Ombudsman website.
Superannuation
Who do I pay Superannuation for?
Superannuation must be paid to:

employees that earn $450/month (before tax) or more and who are 18-69 years.
Employee is under 18 years of age, works more than 30 hours per week they are entitled to
super contributions.

If a contractor is paid wholly or principally for his/her labour, the contractor will be deemed to
be an employee for super purposes and entitled to super guarantee contributions under the
same rules as employees.
Contractors who you engage principally for labour, even if they quote an Australian business
number (ABN) are likely to be employees.
You can get more information from www.ato.gov.au/businesses (this link takes you straight to
information about superannuation).
How much do super do I have to pay?
The rate is currently 9%. Super is paid on ordinary hours of work, including casual loading, but not on
overtime. This rate is expected to increase to 12% but this increase has not come into effect.
How often do I need to pay super?
Superannuation must be paid at least quarterly. The final dates for quarterly payments are:




28 October
28 January
28 April
28 July
However, you should check with the respective Funds as the due date for payment may vary
between Funds.
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Who chooses the super fund?
Employees have the right to nominate the super fund of their choice. You are required to provide
them with a Standard Choice Form available at
(www.ato.gov.au/content/downloads/SPR56761NAT13080.pdf )
The employee must notify the employer of the super fund they want payments to go into within 28
days of starting work. After that the employer can nominate the fund, eg one they are already using
for other workers. If that occurs every payslip must include the name of the super fund and the
contributions.
What should I do if I haven’t been paying super when I should have
been?
You will need to lodge a special statement called a Superannuation guarantee charge statement
which includes a penalty per employee for underpayment or late payment and interest on the
outstanding amount. It is best to deal with this as quickly as possible to avoid increasing penalties.
See the ATO website (www.ato.gov.au) for more information.
Where can I get details on my obligations regarding superannuation?
You can find all the information you need on the ATO website (search for "superannuation" or look
under "Tax topics A-Z").
Leave provisions: annual leave, sick personal carers
leave (previously known as sick leave) etc.
These provisions are provided in the national Employment Standards (“NES”).
When calculating the amount of leave due please contact WGCSA for a spread sheet created for this
purpose.
What are the rules around annual leave?

Full-time workers are entitled to 20 days paid annual leave per annum.

Part-time workers same as fulltime workers but on a have the same pro-rata entitlement

Shift-workers are entitled to 5 weeks annual leave. A shift-worker is someone who regularly
works Sundays and public holidays. Where a worker does occasional shift-work, an extra half
days annual leave should be provided for every full month they do shift-work.

All are entitled to a 17.5% leave loading.

Casual workers are not entitled to any paid leave except Long Service Leave and are not
entitled to payment for Public Holidays not worked.
There is a strong word of warning. Should an employer decide to be generous and pay a casual
employee for some or all public holidays or leave (other than Long Service), a disgruntled employee
may lodge a claim stating that s/he was a full time or part time employee and was therefore was
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eligible for under payment of wages for annual, personal carers leave and all public holidays that
occurred during their employment. All such claims can be made for up to the six previous years.
Payment for leave taken including leave loading is due when leave is taken or on termination. More
information can be found on the Fair Work Ombudsman website. They also have an on-line tool to
assist in calculating leave entitlements
What about sick leave, carer's, compassionate leave etc?
These terms have been replaced with ‘Personal/Carer’s Leave’ and are provided for in the National
Employment Standards. Full/Part Time Employees are entitled to 10 days paid leave per year for sick
leave or to care for an immediate member of their family or household. Casual workers are entitled
to unpaid leave. Employees are entitled to two days compassionate leave per annum - this is paid
leave for Full/Part Time Employees, unpaid for casuals. Download information sheet. Please refer to
the National Employment Standards.
Do I have to pay employees for jury duty, community service etc?
Employees may be entitled to leave for certain types of community service (eg fire fighting) and jury
service.
What are my employees' Long Service Leave (LSL) entitlements
Full/Part Time Employees are entitled to accrue long service leave at the rate of 1.3 weeks per year.
The employee is eligible to receive entitlements after seven ten years of completed service. Unpaid
leave is not included when calculating years of completed service.
Casual employees are also eligible for Long Service Leave on the same basis as other employees.
However, their average weekly hours over the previous three years are taken into account in
calculating their entitlements (e.g. Assuming their average is 10 hours per week over three years.
The calculation is 10 hours x 1.3weeks x the hour rate x number of completed years).
Long service leave may be taken or paid out on a pro rata basis between the 7th and 10th year at
the employer's discretion. It must be paid on termination after seven completed years. However, the
Employer is not required to pay pro rata Long Service Leave when the employment is terminated on
the grounds of serious misconduct.
Leave payment is calculated at the employee's ordinary rate of pay (i.e. excluding overtime,
penalties and allowances). A worker who is on long service leave is entitled to be paid at his or her
ordinary weekly rate of pay. The Long Service Act can be found on the Fair Work Commission
website (www.fwc.gov.au).
Do I have to pay parental leave?
Paid Parental Leave (PPL) commenced on 1 January 2011. Eligible working parents (i.e. primary
carers of newborn or adopted children) are entitled to receive an amount equal to the Federal
Minimum Wage rate (currently $606.40 per week) for up to 18 weeks.
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Full-time, part-time, casual and seasonal workers may be eligible. The employer makes the payment
but Centrelink is required to provide the funds to the employer before payment to the employee is
due.
From 1 January 2013 eligible fathers and same-sex partners will be able to claim two weeks of paid
paternity leave.
The payments can be paid before, after, or at the same time as existing entitlements such as annual
leave, long service leave and employer-funded paid parental leave.
More information on the Paid Parental Leave Scheme or go to www.humanservices.gov.au
From 1 January 2013, there will also be an entitlement to Dad and Partner Pay. This is up to 2 weeks
at the National Minimum Wage rate (currently $606.40 per week) for working dads or partners
(including same-sex partners).
These payments will be made by the Government directly into the employee’s bank account once
their claim has been finalised. Claims for Dad and Partner Pay can be made from 1 October 2012 for
babies born or adopted on or after 1 January 2013.
Visit the Centrelink - Dad and Partner Pay http://www.fairwork.gov.au/leave/parentalleave/Pages/paid-parental-leave.aspx or call the Family and Parents line on 136 150 for eligibility
information and to make a claim.
Terminating employment
What do I do if it looks like I’m going to have to warn or dismiss a casual?
Casuals are engaged by the hour and therefore their employment can be terminated with one hour’s
notice or by the completion of the minimum engagement.
A “true” casual apart from the award’s definition is an employee who does not have an expectation
of on-going employment. Seasonal casuals who have an expectation of re-engagement may NOT be
deemed to be a “true” casual for termination of employment purposes and the same processes may
apply as for a fulltime employee.
What do I do if I need to warn or dismiss a Full/Part Time Employee?
It is generally accepted that an employer will provide appropriate warnings to an employee before
dismissing them unless a major breach of contract occurs (see instant dismissal rules below). To
reduce the risk of an unfair dismissal claim the following steps are advised:



Notify the employee in advance that you need to meet them to discuss problems with their
work and the reasons for the meeting.
Invite them to bring a support person – they are entitled to have someone of their
choosing with them.
Have another person in attendance to record the meeting – but take and keep your own
notes of the meeting.
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


Explain where the employee is not performing in accordance with their contract and
specify what they need to do to improve and retain their job and give them reasonable
time to reach the required standard.
If you intend to proceed with a warning, do so the following day or after giving the
employee a reasonable period of time to consider your comments.
Provide the warning in writing and ask the employee to sign that they have received it. If
they refuse to sign, ask why and record that response in your notes.
Under no circumstances should an employer decide the outcome prior to giving the employee the
opportunity to explain their circumstances. If you find grounds to dismiss an employee do not make
a decision at the meeting but re-convene shortly afterwards. This will enable you to consider the
employee’s responses to the allegations no matter how clear cut it may have seemed prior to the
meeting.
We recommend that you obtain a copy of the Small Business Fair Dismissal Code. See information on
Unfair Dismissal at http://www.fairwork.gov.au/termination/small-business-fair-dismissalcode/pages/default.aspx
NB Sometimes, in the heat of the moment, an employee may decide to quit on the spot. You may
place yourself at risk of an unfair dismissal claim if you accept that resignation and they later change
their mind. It is wiser to provide the written notice of the dismissal the next day or at least contact
them when you have allowed enough time for both parties to ‘cool off’.
If you ultimately proceed with dismissing the employee you need to ensure that all outstanding
entitlements (e.g. unused leave) are paid on that day or the following. This includes the minimum
period of notice except for dismissal for serious misconduct.
What if I need to dismiss someone immediately?
It is acceptable for an employer to dismiss an employee without notice or warning when the
employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to
justify immediate dismissal. Serious misconduct includes:
1.
2.
3.
4.
5.
theft or fraud,
intoxication or being under the influence of drugs (which may include legal prescriptions),
violence,
inappropriate behaviour including harassment in any form and,
serious breaches of occupational health and safety procedures.
Prior to terminating for misconduct be sure to conduct an investigation and conduct the meeting as
outlined in the previous heading.
If the employee is being dismissed for an alleged criminal action (theft, fraud, violence, etc) the
employer should report the offence to the police. This could be important if an unfair dismissal claim
is lodged.
Employees who claim they were unfairly dismissed and who lodge a claim are required to do so with
FWC within 21 days of the dismissal. Failure to lodge within that time may result in the dismissal of
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the application. The FWC is a cost free jurisdiction which means generally each party bears its own
cost.
Should you receive such a claim you should contact WGCSA for advice.
What should I know about unfair dismissal claims?
Commonwealth workplace laws prevent employees from being unfairly dismissed. The conditions
for making an unfair dismissal claim are:


In a small business1 the employee must have been employed for 12 months
In any other business, the employee must have been employed for 6 months
Claims for unfair dismissal cannot be made by:







someone dismissed during a probationary period
someone employed for a fixed term and they completed that term
a ‘true’ casual
a contractor
employees who resign
employees earning more than $123,000 per year (2012/13 financial year)
those employed under a contract of employment for a specified period of time, a specified
task, or the duration of a specified season who are dismissed at the end of the period, task
or season
The time limit for an employee to lodge an unfair dismissal application with the FWC tribunal is 21
days. The FWC tribunal can:

disallow an unfair dismissal application based on unreasonable behaviour by the applicant;
order costs against a party, lawyer or paid agent in an unfair dismissal matter, where that
party has caused the other party to incur costs by acting unreasonably, e.g. by failing to
agree to a settlement that could have resolved the claim.

More information is available from the dismissals section of the FWC.
The Small Business Fair Dismissal Code has a checklist to assist employers undertaking dismissal
procedures. The FWC will determine that an unfair dismissal has occurred when it finds that:




the employee was dismissed, and
the dismissal was harsh, unjust or unreasonable, and
the dismissal was not a case of genuine redundancy, and
the dismissal was not consistent with the Small Business Fair Dismissal Code, where the
employee was employed by a small business.
Is there a difference between redundancy and retrenchment?
A redundancy occurs when a POSITION is no longer required to be performed.
1
A small business is defined as having less than 15 employees.
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A retrenchment occurs when an EMPLOYEE is no longer required and the position is retained.
Redundancy under the NES happens when an employer either:
1) decides they no longer want an employee’s job to be done by anyone and terminates their
employment (except in cases of ordinary and customary turnover of labour), or
2) becomes insolvent or bankrupt.
Note: What constitutes ordinary and customary turnover of labour will depend on the relevant
circumstances.
Redundancy may happen when:
1) the job someone has been doing is replaced due to the employer introducing new
technology (i.e. it can be done by a machine)
2) business slows down due to lower sales or production
3) the business relocates
4) a merger or takeover happens
5) the business restructures or reorganises.
A position is made redundant when the work is no longer required. It Redundancy should never be
used as an alternative to dismissal for under performance. In some cases, when an agreement is
terminated, any redundancy provisions in that agreement continue to apply for up to 24 months
after the termination date. Once a position is redundant it cannot be filled for 12 months.
A small business employer may not be required to pay redundancy but the employer must give at
least 4 weeks’ notice of a redundancy. Small Business Employers who prior to 1st January 2010 were
covered by an award that made provision for redundancy payments may until 2014 still be required
to make those payments. Please contact WGCSA if you are a small business employer and are likely
to be in these circumstances.
We cannot recommend strongly enough that you should obtain professional advice prior to advising
any employee that their position may become redundant. Whilst small employers may be exempt
from severance payments they may not be exempt from unfair dismissal provisions.
There is more information on redundancy provisions on the Fair Work Ombudsman website.
Employment records
What do I have to register for if I employ staff?
Through the Australian Tax Office:


an ABN
a separate tax file number (TFN) if you are operating as a partnership, company or trust.
Sole traders use your individual TFN
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

registration to collect PAYG (Pay as You Go) Tax2
Payroll Tax when the Australian wages bill of an employer or group exceeds $50,000 in any
month
If you provide housing, a vehicle or any other benefits to employees for private use then it is
recommended that you obtain advice from your accountant as to whether you are required to you
are advised to register for Fringe Benefits Tax (FBT).
You are legally required to register with WorkCover if your total wage bill is more than $11,597 (in
2012) or unless a claim is lodged by a worker. However, if you cross the threshold, you must register
with WorkCover within 14 days.
If you purchase a business as an employer you must register as an employer with WorkCover to let
them know about your new business.
If you sell a business the new owners will need to register their own business details with
WorkCover.
What employment records do I need to keep?
Employment records must be kept for at least 7 years. They include:













employment agreements and any documents the employee supplied during recruitment
leave records: annual, sick, long-service, study and special leave
wages paid, including penalty rates and allowances
tax file declaration form and PAYE tax records
records of any accidents, injuries and any WorkCover claims (refer to Farmers’ OHS Guide)
superannuation records:
o the date and amount of super you paid for each employee
o how you worked out the level of super you paid
o that you have offered your eligible employees a choice of super fund
o the details of the super fund that you paid your employee's super into.
Copies of any licences, registrations or permits that an employee needs to do their job,
e.g., ChemCert, car, first aid, forklift
Copies of Visas for non-Australian workers
Employee bank details
Emergency/next of kin contact details
Proof of age for junior employees
Any communication between employer and employee
Records of performance reviews, change of duties/classification
The Fair Work Ombudsman website has several useful templates for record-keeping that you can
download.
2
These can all be obtained from the Australian Business Register
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Unions, right of entry
Is it true that union officials have a right of entry to my business?
Yes, but it’s not automatic. They must





hold a valid right of entry permit, issued by Fair Work Commission – ask to see it before
allowing entry.
give at least 24 hours’ notice before entering and entry can only occur during working
hours.
set out the basis on which he or she has entry rights
comply with any reasonable request from an employer that discussions or interviews take
place in a particular part of the premises and that they take a particular route to reach that
location
comply with any reasonable occupational health or safety request.
A union official from one union cannot act as a bargaining representative where that union does not
have coverage.
See the Fair Work Commission www.fairwork.gov.au/resources/fact-sheets/employerobligations/Pages/right-of-entry-fact-sheet.aspx for more information.
If I only use contract labour can any union official enter my business?
Yes, if the criteria outlined in the previous answer applies to the contractor.
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