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Employment
Conditions of Employment
A State Award, Federal Award, order, Federal or State Workplace Agreement, Employer-Employee Agreement or a written contract of employment may cover the conditions of your job. You need to check both your award and any individual contract or agreement to work out your entitlements. Some agreements or contracts may have better conditions or entitlements and may recognise relationships between people of any sex.
Employees in Western Australia are entitled to minimum conditions of employment as set out in the Minimum Conditions of Employment Act 1993 (WA) (“the Act”). The minimum conditions cover all employers and employees, except those employees covered by a Federal Award, Federal Certified Agreement or Federal (Australian) Workplace Agreement. The minimum conditions are incorporated into State Awards, State Enterprise Agreements, Employer-Employee Agreements and Contracts of Employment. A condition that is contained in a State Award, Employer-Employee Agreement or Contract of Employment that is less favourable than the minimum conditions of employment has no effect. If a provision in an arrangement or agreement says it excludes the minimum conditions, you should get legal advice to determine its effect on your entitlements.
Important Note: The Minimum Conditions of Employment Act 1993 (WA) does not apply to Federal Awards, Federal Certified Agreements or to Federal Workplace Agreements. If a Federal Award, Federal Certified Agreement or a Federal Workplace Agreement covers your employment, you need to check both to work out your entitlements.
Employee Benefits
Leave is a core entitlement of employees. New laws mean employees in a de facto relationship can now get the same benefits as other employees.
- Parental Leave – An employee who is in a relationship with somebody of any sex is entitled to take parental leave for the birth of a child to the employee or their partner. This also includes the adoption of a child by the employee and their partner.
- Personal/carer’s leave – Employees are entitled to take carer’s leave to care for a partner, member of the family or household who is sick or injured.
- Bereavement Leave – All employees are entitled to take special leave on the death of their partner.
- Some jobs may offer other entitlements, such as relocation expenses, travel for partners or health benefits. These extra benefits are not covered by the Act and you need to check your employment arrangement or agreement. You may be able to negotiate these extra benefits with your employer. Employers must not discriminate in offering these benefits to one group of employees and not another.
State Workplace Agreements
State Workplace Agreements are currently being phased out. All State Workplace Agreements will cease by 14 September 2003. This means you will usually be covered by one of the other awards, contracts, or agreements outlined above. If you were employed under a State Workplace Agreement you should find out your new conditions of employment. Employees who had a state workplace agreement but are covered by a Federal Award will not be entitled to the minimum conditions and protections contained in the State Act (outlined above). Upon the expiry of their workplace agreement the Federal Award applies.
Termination of Employment
If your employment has been terminated because of your sexual preference you may have an unlawful or unfair dismissal claim and a discrimination claim. Employers must abide by various pieces of industrial legislation as well as anti-discrimination laws.
If your employment is terminated and you think you have a case, get legal advice urgently to know what your options are. There are time limits for these types of claims. (See the Discrimination section)
Unlawful Terminations
Federal law makes it unlawful for an employer to sack you on the grounds of sexual preference. Most employees can make a claim based on an alleged termination on the ground of sexual preference. Some classes of employees are excluded and you will need to check to see if you fall into one of these categories.
A claim for unlawful termination is lodged in the Australian Industrial Relations Commission.
Unfair Dismissal
A claim for unfair dismissal can be made in either the Western Australian Industrial Relations Commission or the Australian Industrial Relations Commission depending on your circumstances. A claim for unfair dismissal is made on the basis that your dismissal was harsh, unfair or oppressive. If you believe that you were sacked because of your sexual preference this may be considered harsh, unfair or oppressive.
You should seek legal advice as to where you should lodge your claim.
Time Limits
You must lodge an unlawful termination form in the Australian Industrial Relations Commission within 21 days after the day of the dismissal.
You must lodge an unfair dismissal form:
- in the Australian Industrial Relations Commission within 21 days after the day of the dismissal;
- in the Western Australian Industrial Relations Commission within 28 days after the day of the dismissal.
In some circumstances the time limits can be extended and if you are outside these time limits you should seek legal advice immediately.
Lodge your claim if you are unable to get advice before the time limit expires. It can be withdrawn later.
Discrimination
Recent changes to the law have now made it unlawful to discriminate against a person on the ground of their sexual orientation in the workplace. Discrimination in employment is unlawful and includes contract for service, casual employment, commission agents, contract workers, partnerships of 6 or more persons, membership of employee or employer organisations, qualifying bodies, and employment agencies.
If you believe that you were sacked because of your sexual preference you may have a claim for discrimination. A claim for discrimination is lodged in the West Australian Equal Opportunity Commission.
Your complaint must be lodged within 12 months of the last act of discrimination. In some circumstances you may be permitted to lodge your complaint outside of the time limit (see the Discrimination section).
You should seek legal advice about your claim.
Superannuation
Superannuation is controlled and administered by federal legislation. State public sector superannuation is governed by separate State legislation.
What superannuation death benefits can be paid?
Superannuation funds can pay lump sums, annuities or reversionary pensions on the member’s death to surviving dependents.
Who can benefit from your superannuation?
The following list includes people who may benefit from your superannuation after you die:
- Your spouse (or de facto spouse of the opposite sex only – see exception below if you are a State Public Sector employee);
- Your children;
- Your dependents;
- Your nominated beneficiary (including your partner of any sex);
- Your estate.
You need to check the terms of your superannuation policy and seek specialised advice about the benefits and the persons who can benefit upon your death. Different types of funds have different rules about payments of death benefits.
State Public Sector Employees
Changes to the law mean that your partner of any sex can benefit from your superannuation when you die. Death benefits are generally paid to the executor or administrator of the deceased’s estate. However, some schemes will permit payment of a sum to a spouse, de facto partner (of any sex), relative or dependant in order to relieve or avoid hardship. Certain requirements are required to be met before a payment can be made. You should contact your superannuation fund, check your policy and seek specialised advice about the benefits and the persons who can benefit upon your death.
Life Insurance
Life insurance is covered by federal law and only recognises opposite sex couples. However, some companies do still recognise couples of any sex.
Generally, you need what is called probate or administration (see the Death and Inheritance section for an explanation of these terms) to allow money from a policy to be distributed. There are exceptions to this. You need to check the terms of your life insurance policy and seek specialised advice about the benefits and the persons who can benefit upon your death.
Taxation
Income taxation is covered by federal law and only recognises opposite sex couples.
The dependent spouse rebate is only available to opposite sex partners. This is also true for any other tax concession, such as the concession for superannuation contributions for a dependent spouse.
Social Security
The Social Security Act 1991 is a federal law and requires that a person must be in a relationship with a person of the opposite sex and be married or in a marriage-like relationship to be a member of a couple.
This means that when Centrelink calculates your benefits, it will only take your partner’s income into account if they are the opposite sex.
If you have a person under the age of 16 living with you, even if you are not the biological parent, you may be able to get a supporting parent benefit. You will need to provide the necessary details of your relationship with the child and provide supporting documentation if requested. Each case is assessed on its merits.
If you are a student, living in a same-sex relationship is not proof of “independence” for youth allowance, unlike a heterosexual relationship.
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