Small Business

Small Business

HR Requirements

Management Team

This chapter examines the issues to consider when selecting a management team, used to help run and manage your business. This includes identifying key roles, developing job descriptions and defining your organisation structure with an organisation chart.

Key Personnel

Organisational Structure

Motivating Employees

Key Personnel

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If your organisation is of a size that requires key business roles to be delegated to management staff, it is critically important to ensure you have a suitable management structure in place. You need to select suitably qualified and experienced personnel to fill the roles.

To help you plan and develop a management structure and select the best people for each position, you can create a list of all of the tasks that need to be performed to run the business and the responsibilities involved for each function such as supervision of employees. You can then establish key management positions and assign roles and responsibilities to each position. This will help you to match up suitable personnel to each key

management function.

Once you have defined the key management positions and their relevant requirements, you can develop this into a "job description" document. Job descriptions provide the opportunity to clearly communicate each individual's roles and responsibilities and also serve as a way to measure performance by setting Key Performance Indicators (KPI's).

A job description generally includes the following:

Duties/tasks to be performed

Responsibilities within the business

Working conditions

Material and equipment the employee is required to operate

Working relationships, teamwork and individual work

Reporting relationships

Relevant performance indicators and measurement details

Other relevant job relevant information as suitable

Organisational Structure

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With the necessary functions needed to run the business and the roles of key individuals in the organisation defined, you can develop and refine the structure by producing an organisation chart. This chart is a tool that helps to define the inter-relationships between all departments, divisions, teams and people. It defines reporting structures and lines of authority and responsibility, providing a picture of how the organisation functions.

Failing to define workplace roles and lines of authority can create tension, miscommunication and inefficiency within your business. People may be unsure as to what jobs are their own and who they are required to report to creating

inefficiencies that can cost time and money.

Usually business organisational structures are planned as a hierarchy with the most senior position in the business (usually the owner) at the top and those with the least authority within the business on the bottom.

Organisational hierarchies have become flatter in the past decade to promote better communication and more employee responsibility within the workplace. This means that a lower ranked employee is able to communicate directly with those above him without necessarily having to go through middle management where ideas or complaints may be disregarded.

Build your marketing plan

Operating Plan

Q1.Provide an overview of your business' organisational structure. Give answer

Q2.How will you ensure that your employees understand this organisational structure? Give answer

Motivating Employees

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In order to find, retain and manage the people with the right skills for your business, you need to consider what employees may be looking for in a job. There are a number of motivators besides money that people are interested in.

As an employer you can offer performance incentives as a way of motivating your staff. Incentives are rewards for achieving goals. Employers can set out an incentive early on and reward employees when they meet or exceed a certain goal, objective or deadline. The idea is that as the employee achieves more highly and the business also succeeds meaning a win-win situation for both employee and employer.

Another way to motivate your staff is by offering an improved work-life balance. Work-life balance refers to adjusting work patterns to assist employees in combining work with their other responsibilities, such as family and community commitments. This may include working part time, job sharing, flexible rosters or even working from home.

You may also consider providing a certain amount of unpaid leave for when it is required. This allows people to stay in the workforce in situations where they may otherwise have had to leave.

A better work-life balance may also help to reduce employee stress, improve productivity and decrease unscheduled absenteeism. All of these factors can reduce staff turnover and improve loyalty and commitment.

Starting work

What you need to know before you start work

Congratulations on being offered a job. Before you start work you will need to know the conditions you will be working under (including your pay rate) and exactly what you will be expected to do in the role.

The things you should be finding out about include:

Your letter of offer

Signing a contract

Your working conditions

Which industrial relations system you will be working under

The difference between trial work and work experience

Whether you are full-time, part-time or casual

Whether you are working under an award or agreement.

Letter of offer

Before you start work you need to know the conditions you will be working and exactly what you will be expected to do in the role. Your employer should give you this information in a letter of offer.

The letter should include:

the employer’s name

what the job involves and a list of your duties

how much you’ll be paid each hour, week or fortnight

your hours of work

whether you’re a casual, full-time or part-time worker

your employment conditions

the employment arrangements you will be working under (award or agreement)

whether you’re covered by the state or federal industrial relations system.

What if I don’t receive a letter of offer?

Some employers will not give you this information in writing. A verbal agreement is also a legal contract.

One of the best things you can do is to note down everything the employer has told you about the job and your working conditions. Put this information in writing (in a letter or email), stating that this is what you understand your employment conditions to be. Then send or deliver the letter or email to your employer.

Even though you have written it yourself, this can be used as evidence if there is any future dispute about your pay or conditions.

It is also a good idea to keep your own records in a work diary, particularly for the first few months in a new job, and to include the days and hours worked and how much you are paid.

You can then compare this with what is on your pay slip each time you are paid.

Getting paid

What should be my rate of pay?

Your rate of pay will depend on which award or agreement covers the work that you do.

For workers in the state industrial relations system, the rate of pay is part of the working conditions outlined in a state award or enterprise agreement.

For workers in the federal industrial relations system, the rate of pay is part of the working conditions outlined in a federal award or federal agreement. You can check which system your work falls under by using the NSW IR search tool.

The wage clause in an award or agreement specifies the minimum wage that must be paid for each classification or grade of employee covered by that award or agreement, and each employee must receive this amount as a minimum.

Sometimes the actual minimum weekly pay consists of a normal award wage plus compulsory additional payments such as:

allowances for working in a particular industry

money to buy tools

payment for very specific circumstances such as working in the wet or dealing with toxic substances

extra pay (a ‘penalty rate’) for working outside ordinary hours at certain times of the week (such as on a Saturday or Sunday or outside the normal range of working hours on weekdays)

extra pay (a ‘loading’) for casual workers.

Junior employees are sometimes paid a percentage of the adult rate, depending on their age.

The minimum wage

The lowest rate of pay that can lawfully be paid to an adult worker is referred to as a minimum wage. The Office of Industrial Relations can confirm the current minimum wage rates.

Regular increases in rates of pay are a feature of both the state and federal industrial relations systems. Each year, both systems review the minimum adult wage and an appropriate increase is made, usually around the middle of the year.

Allowances, penalty and overtime rates

Allowances

Penalty rates

Overtime rates

Allowances

Allowances are additional payments that are made to workers on top of their regular weekly wage for undertaking certain tasks, possessing a particular skill, using their own tools or performing work under adverse conditions. These extra payments are in addition to any penalty rates paid for working additional hours.

You will often receive an allowance if you:

are appointed as first aid officer by your employer

carry out supervisory duties such as being in charge or leading hand

work at heights or in confined places

do work that is excessively dangerous or dirty

are required to have uniforms laundered

use your own car for work purposes.

There are also various disability and qualification allowances.

Shift work

Shift work is usually separated into early morning, afternoon and late night shifts.

Allowances for shift work range from an additional 10% to 30% on top of your normal salary for the entire shift.

Check your award or agreement for details.

Penalty rates

Many awards and agreements allow for workers in NSW to work a set number of days within a seven day period. Part of these ordinary hours of work may fall on a Saturday or Sunday or late on certain nights. For instance if you work as a hairdresser or at a restaurant, your normal hours may include weekend or late night work.

If you work a late shift, work on a Saturday or Sunday, or a public holiday you will usually be entitled to additional money or penalty rate. This could be anything from an additional 15% of your salary per hour to 30%. The amount of the penalty rate will depend on which award or agreement covers your work.

Overtime rates

Overtime rates are paid for work completed outside your ordinary hours of work.

For example, your award or agreement may not include weekends and late night work in your ordinary hours of work. If this is the case and you are required to work at these times, you will usually be entitled to some extra money on top of your usual salary. This will be paid at the overtime rate detailed in your award or agreement.

In some circumstances, part-time and casual workers may be required to work up to the same hours as a full-time worker before overtime is paid.

Overtime rates are often an extra 50% of your usual hourly rate of pay for the first two or three hours and then an additional 100% for any hour after that.

It is important to check your award or agreement for the conditions of overtime and penalty rates for your job as these conditions can differ between different types of work.

You may be able to take time off in lieu (instead of receiving penalty or overtime payments) for extra time worked. Once again, check your award or agreement to see if this applies to you.

Pay deductions

Can my employer deduct money from my pay?

You must receive your pay in full. Your employer can usually only deduct money from your pay if you have given them approval for the deduction in writing and the deduction must be for your benefit.

Exceptions to this rule include circumstances where:

An award or enterprise agreement authorises an employer to take money from a worker’s pay (for cost of accommodation or services provided to the worker).

Deductions are required by law (income tax deductions).

Courts or other agencies have ordered pay deductions (for example, a court or a child support agency issues an order to the employer to deduct money from a worker’s pay. This is known as a ‘garnishee order’).

Remember, any deductions from your pay must be itemised on your pay slip each pay!

Illegal deductions

Each year, the Office of Industrial Relations receives hundreds of complaints about employers making unauthorised deductions from workers' pay packets.

Unless they have been authorised by law, court or industrial instrument (such as an award or agreement), or in writing by the worker, deductions are not allowed to be made for:

the cost of workers’ uniforms

shortages from cash tills or cash floats

training courses provided to workers

the cost of mobile telephones provided to workers for work-related use

tools and equipment supplied to workers

the cost of damage to the employer’s assets (including motor vehicles)

the cost of breakages or accidents by employees.

Examples of illegal pay deductions

A 16 year-old female shop assistant received $115 reimbursement of uniform purchase costs that had been illegally deducted from her wages.

A plant operator for an excavation company was reimbursed $1,750 for a number of illegal deductions from his wages that had been used to pay for servicing and replacement parts for the equipment he was operating.

What can I do if money is illegally deducted from my pay?

If money is illegally deducted from your pay, you should first check the award or agreement that covers your work and then speak with your employer.

If you are still unsure whether or not the deduction is legal, or if you are unable to resolve the matter with your employer, contact the OIR on 131 628 (state) or the federal Fair Work Online.

Remember, workers can ask NSW IR for help with issues relating to unpaid wages and other entitlements up to six months after leaving the place of employment where the underpayment occurred.

Working hours

Your rate of pay will depend on a number of factors including the type of work you do, when and how many hours you work and whether or not you are eligible to be paid allowances, overtime or penalty rates.

Ordinary working hours

In the NSW industrial relations system, your ordinary full-time hours of work will usually be up to 38 hours a week, within a particular daily timeframe or bandwidth (often 6am to 6pm in the private sector and 7am to 7pm for state public sector workers).

Your award or agreement will set out the ordinary hours per week and per day for the work you do.

Full-time workers work the maximum allowed ordinary hours in a week or within the definition of their award or agreement. Part-time and casual workers’ ordinary hours are usually less than this. To check your employment status, look in your award or agreement.

Payment for working outside your ordinary hours

If you work outside your ordinary hours of work, or late at night, on weekends or public holidays, you may be eligible to receive penalty or overtime payments.

Additional payment for extra responsibilities

Depending on the type of work you do, you may also be eligible to receive an allowance on top of your usual pay and any overtime or penalty payments. Allowances can be paid for taking on certain tasks, having a particular skill, using your own tools, doing shift work or working under adverse conditions.

Unpaid wages

How do I claim unpaid wages?

If you are covered by a state award or enterprise agreement, or if you’re under 18 years of age, and think you are being underpaid or not receiving the correct entitlements (penalty rates, shift loadings etc.) there are some steps you should take.

If your unpaid entitlements include long service leave, or if your claim relates to employment prior to 27 March 2006, these steps may also be relevant to you.

Step 1 - discuss the matter with your boss or ex-boss. They may have made a genuine mistake and be happy to fix it.

Step 2 - contact NSW IR on 131 628 and talk to a client service officer. They can help you to check the pay rates and entitlements you should be receiving. You can then have another chat with your boss about it.

Step 3 - if the issue still isn’t resolved, and you still feel you are being underpaid, there is a more formal process you can follow. Go to the Resolving disputes section of this website for more information details.

Remember, you can contact NSW IR about unpaid wages and other entitlements within six months of leaving an employer.

What if I left the job more than six months ago?

If you are still under 18 years of age, and have left the job where the underpayment occurred within the past year, NSW IR may be able to investigate your claim.

Recovering unpaid wages yourself through the small claim process

NSW IR has developed a detailed guide for workers whose claims cannot be investigated directly because they were made more than six months (for those under 18 years of age) or one year since the underpayment occurred.

The small claims procedure guide (pdf - 146Kb) explains how workers who are covered by state awards and agreements can recover unpaid wages and entitlements up to $20,000.

Keep in mind that if you use this method for recovering entitlements, the court will want to know whether you have first tried to settle your claim with your employer.

Please also note that you must lodge your claim within six years of when the money was owed to you.

What entitlements can I recover?

You can recover any entitlements owed to you under the award or agreement that covers your work including superannuation as well as annual leave and long service leave entitlements. On request a court may also order that you be paid interest on the money owing to you.

Public holidays

Workers in the state industrial relations system who work on a public holiday are usually entitled to be paid at double time and a half (150%) of their usual wage. There is usually also a requirement for a two to three hour minimum payment whether or not that amount of time is worked.

If you are a full-time or part-time worker and you don’t work on a public holiday, but the day falls within your ordinary hours of work or regular roster, you should be paid your normal salary for that day.

Your award or agreement will contain a list of the public holidays that are recognised.

To check state awards for public holiday entitlements go to the Awards Online section of this website.

My entitlements

The NSW Industrial Relations Act 1996 regulates employment in New South Wales by permitting the NSW Industrial Relations Commission to make awards and approve enterprise agreements specifying the conditions of employment for employees doing particular types of work.

This section provides information about your annual leave, sick leave and parental leave entitlements.

Annual leave

Most full-time and part-time workers in NSW are entitled to a minimum of four weeks paid leave per year for each 12 month period of employment. This leave entitlement is provided under the Annual Holidays Act 1944.

Exceptions

Some workers are not covered by the Act and may have different leave entitlements.

If you are:

covered by a federal award or agreement which provides for an annual leave entitlement

covered by a NSW award, agreement or contract of employment which provides more favourable leave entitlements than those in the Act

a federal and state public servant with your own specific statutory leave entitlements you will not necessarily have four weeks paid leave per year.

When can I take my annual leave?

Annual leave becomes available on your one-year anniversary of starting work for an organisation. You must take your annual leave no later than six months after this date.

If you and your employer agree, annual leave can be taken before the one-year working anniversary.

Can leave be delayed?

If your employer wants to delay your annual holiday beyond that six month period, they need to get the written consent of the Industrial Registrar.

How can annual leave be taken?

You are usually required to take your annual leave in one or two consecutive periods – one period of not less than one week and the other period of not less than three weeks. However leave may also be taken in two, three or four separate periods if this is agreed to by you and your employer.

What happens when a business temporarily closes?

Some employers temporarily close their business as part of a scheduled ‘annual close down’ – often over the Christmas period. Workers must be given one month’s notice before the close down starts and there can only be one close down per calendar year.

If you don’t have enough leave entitlements to cover the close down period you will have to take the balance of that period as leave without pay.

The Act allows for pro rata payments for those who have worked less than 12 months.

What should I be paid when taking annual leave?

If you are taking annual leave, you should be paid your gross wage (not including overtime), plus any shift allowances and weekend penalties for the ordinary hours you would have worked if you were not on annual leave.

Full annual leave entitlements should be paid before you take your holidays.

If your annual leave includes a public holiday, you must be given an extra day’s leave if you would normally be paid for working on that public holiday.

What if I’m a casual worker?

Most casual workers are paid an extra amount on top of their hourly rate in place of annual leave entitlements. This extra payment is usually 1/12th of their hourly rate. Some awards and agreements vary the calculation for this payment.

What annual leave entitlements do I get when I leave my job?

If you have been employed for more than one year you must be paid any annual leave entitlement not yet taken. You should also be paid a pro-rata payment for the period from your last anniversary date to your last day of work.

If you have been employed for a period of less than one year, you must be paid a pro-rata payment calculated from the day you started work.

How is a pro-rata payment calculated?

The payment is calculated by multiplying the number of weeks you are employed by your ordinary gross weekly wage (not including overtime), plus the average of any commissions earned and then dividing that amount by 12.

Can I take a lump sum payment instead of taking annual leave?

Not under the state industrial relations system – unless you are leaving your job.

Sick leave

Full-time and part-time workers in NSW who are unable to work because of illness or injury are entitled to have time off without losing any pay.

Paid sick leave is an entitlement under most NSW awards and enterprise agreements.

How much sick leave am I entitled to?

Check your award or agreement to find out how much sick leave you are entitled to.

Most awards provide for at least five days in the first year and eight days in the second and subsequent years. Untaken sick leave can usually be carried forward for several years.

How long do I have to work for my employer until I qualify for sick leave?

Some awards provide for a 'qualifying period' for sick leave in the first year of employment. This is usually up to three months. Your sick leave may be withheld until after the qualifying period.

If you work part-time, you will have a pro-rata (or proportional) entitlement to sick leave, depending on the number of hours you work.

Casual workers are not entitled to paid sick leave.

Can I use sick leave to care for a family member?

Yes, you can use paid sick leave to care for a family or household member if there is an unexpected emergency or if a family or household member is ill.

Parental leave

What is parental (maternity, paternity or partner) leave?

Workers in NSW are entitled to take a minimum amount of unpaid time off work on the birth or adoption of a child, unless otherwise specified in their award or agreement.

Parental leave can be:

maternity leave, in connection with a pregnancy or the birth of a child

paternity or partner leave, for a worker whose spouse is having a child

adoption leave, for parents who have adopted a child under 18 years of age.

Workers cannot be forced to take parental leave.

Am I eligible for parental leave?

All workers may be entitled to parental leave. Full-time and part-time workers all qualify for parental leave after completing at least 12 months continuous service with an employer.

If you are a casual worker, and have worked on a regular and systematic basis for at least 12 months with a reasonable expectation of ongoing employment, you will be entitled to parental leave.

Once a worker has completed 12 months with the same employer, he or she is usually entitled to a separate period of parental leave for each future child.

How much parental leave am I entitled to?

If you are eligible for parental leave, you will be able to take a maximum of 52 weeks leave as follows:

Maternity leave: an unbroken period, taken during or after pregnancy.

Paternity or partner leave: an unbroken period of up to one week taken at the time of birth (short paternity or partner leave) and a further period of unbroken leave, taken in order to be the child's primary caregiver (extended paternity or partner leave).

Adoption leave: an unbroken period of up to three weeks, taken at the time of placement (short adoption leave) and a further period of unbroken leave, taken in order to be the child's primary caregiver (extended adoption leave).

All parental leave must be completed before the child's first birthday or anniversary of adoption however workers covered by the NSW industrial relations system may request additional leave.

A worker and their spouse may not take parental or partner leave at the same time, except where one spouse or partner is on a period of 'short paternity or partner leave' or 'short adoption leave'.

For more information about parental leave, including additional leave you may be entitled to, what information and documentation to give your employer, and how much notice you need to give, go to the Parents and Carers section of this website.

Bereavement leave

All permanent workers covered by the state industrial relations system are entitled to bereavement leave.

Many casual workers are also entitled to such leave, but usually on an unpaid basis.

There is some variation in the amount of leave available under different awards and agreements and you are usually required to provide proof of the need for these types of leave (e.g. death certificates). Check your award or agreement for details.

What is bereavement leave?

Bereavement leave is paid leave that can be taken when a family member dies. It is also sometimes called compassionate leave.

Under some awards and agreements, workers must meet certain conditions for this leave to be granted (for example, attend the funeral).

Who can I take this leave for?

Bereavement leave may be taken in relation to your:

spouse, de facto spouse or same sex partner

child, including adopted, foster, ex-nuptial or step child

parent, including foster parent or legal guardian

grandparent, grandchild or sibling.

You may also take leave for any other relative who is a member of your household.

How much leave can I take?

You can usually take at least two days of bereavement leave. Some awards provide for three or more days and may also impose other conditions on taking leave.

Bereavement leave may also be taken in conjunction with other personal carers' leave with your employer’s agreement.

For more information, including other flexible leave arrangements available to help you manage your family and other caring responsibilities, see the Parents and Carers section of this website.

Can casual workers access bereavement leave?

If you are a casual worker, you are entitled to be absent from work because of the death of a person in Australia with whom you have a close personal relationship (of the type defined in the personal/carers leave clause of your award or agreement). The period of time you are away from work is by agreement with your employer and is unpaid.

If an agreement on the length of bereavement leave can’t be reached, the casual worker is entitled to be absent for up to 48 hours (two days).

Long service leave

All workers in New South Wales are entitled to long service leave unless they are working for an employer exempted by the NSW Industrial Relations Commission. This includes full-time, part-time and casual workers who have worked for a continuous period of ten years for the same employer.

When do I qualify for long service leave?

How can I take my long service leave?

When will I be granted my long service leave?

How is long service leave paid?

What happens if there’s a public holiday while I’m on long service leave?

When do I qualify for long service leave?

To qualify for long service leave you need to have worked for ten years continuously for an employer. However, your duties or position can change during this time.

This includes situations where:

you are transferred between companies within the same group, or

the business is sold and you continue to work for the new owner at the same business.

Employer-approved absences from work do not break the continuity of a worker’s service.

However, some absences, such as parental leave, are not counted as time worked. These absences will not be included in your period of service when calculating long service leave.

Special conditions may apply to workers in the building and construction industry. For more information contact the Long Service Payments Corporation.

How much long service leave am I entitled to?

Long service leave is two months paid leave after ten years service with the same employer and one month paid leave for each additional five years service.

Do I have any entitlements if I have worked less than ten years?

If you have completed at least five years (but less than ten years) of service, you will be entitled to a long service pro rata payment if you:

resign as a result of illness, incapacity, domestic or other pressing necessity

are dismissed for any reason except serious and wilful misconduct

die (your next of kin may claim any long service leave entitlement still owing to you at time of death).

How can I take my long service leave?

Long service leave can be taken in one continuous period of leave or, if you and your employer agree:

where the amount of leave owing is two months - in two separate periods

where the amount of leave owing is between two months and 19.5 weeks – in two or three separate periods

where the amount of leave owing is more than 19.5 weeks – in two, three or four separate periods.

When will I be granted my long service leave?

Your employer must grant your long service leave as soon as is practical, taking into account the needs of the business.

You must receive one month's notice of the start date of your long service leave. If you and your employer agree, long service leave can be postponed to a mutually convenient date.

Can I take my long service leave in advance?

Yes, as long as your employer agrees. Long service leave taken in advance must not be less than one month.

How is long service leave paid?

You can, with the agreement of your boss, be paid in full before taking long service leave.

Or, if you prefer, you can be paid at your ordinary pay rate at the normal regular pay intervals during your long service leave.

Long service leave pay is based on whichever is the highest rate:

your ordinary pay for the last pay period prior to the leave being taken

your average weekly ordinary rate of pay earned during the previous 5 years.

Shift work, other penalty rates and overtime payments are not included.

Bonuses (for workers earning less than $144,000 per year) and commissions are averaged out and included in the long service leave payment and there are other provisions for piece workers and commission-only workers.

How will long service leave be paid if I lose my job?

After ten years of continuous service, you are entitled to receive a payment calculated in accordance with any long service leave entitlement, or on a pro rata (or percentage) basis if you have five years continuous work with the same employer (but less than 10 years continuous work).

Can I be paid for my long service leave instead of taking the leave?

No. The long service entitlement must be taken as leave. Payment for long service leave entitlements is only made on termination of employment.

What happens if there’s a public holiday while I’m on long service leave?

If this happens, an extra day must be included in the long service leave if it’s a day you would normally have worked if you had not been on long service leave.

Leaving work

Giving notice

If you decide to leave your job (resign) you need to tell your employer in advance. This is known as ‘giving notice’.

Letter of resignation

It is best to tell your employer that you are planning to leave your job in a letter, so there is a written record of the date you gave notice to your employer. Make sure that you give them the required amount of notice as set out in your award or agreement.

Advance notice of resignation

Most awards and agreements will tell you how much advance notice you need to give.

It is important to check this because if you don’t give the amount of notice required, your employer can keep some of your wages for that period!

Other documentation

It is a good idea to ask your boss for a certificate of service and a written reference before you leave.

Ending a fixed contract

A fixed contract is a contract for employment that is fixed for a certain period of time or for a particular task or project.

The end date of a fixed contract should be included in the contract, along with the other terms and conditions of employment such as the notice period required if the task or project ends earlier than expected and all other circumstances that would allow the contract to end.

If the contract has to end before the stated date, your employer should give you a written statement outlining when and why the contract is ending.

Redundancy

If the work you are doing is no longer required to be done by anyone, you could be made redundant. This means you will no longer have a job with that employer.

This could happen because:

the job is replaced by technology

the business is restructured so the job doesn’t exist any more

the business can’t afford to keep the worker due to economic circumstances.

Before any worker is made redundant, the employer should discuss the situation with the worker and consider any suggestions to avoid redundancy. This could include the worker re-training or moving to a different work role.

Resolving disputes

If you believe you haven’t received the correct pay or entitlements for your work, and if you have already tried a less formal approach to resolving the issue including talking to your employer, you can follow a formal process to reclaim the money owing.

What to do first

What will NSW IR do?

Lodging an industrial complaint

What if my former employer is in liquidation?

What happens after an online complaint has been lodged

What happens if the complaint is not resolved in the 28-day period?

What to do first

The following three steps outline what you should do if you believe you have not been paid correctly or received your correct entitlements.

Step 1: Find out if your job is covered by a NSW award

To work out if you have been paid incorrectly or have not received the entitlements that are part of your award, you need to know:

the name of your award

your classification under the award

your employment status (full-time, part-time or casual)

the award pay rate applying to your job

the entitlements owing to you under this award (for example, annual leave, penalty rates, overtime, etc).

For more information about your award, visit the Awards Online section of this website or telephone NSW IR information line on 131 628.

Step 2: Write to your employer about outstanding payments

If you believe you have not received the correct pay or entitlements, you should write to your employer about the problem. Your employer may have made a genuine mistake that can be easily rectified by discussing the issue with you.

Step 3: Take further action if the issue is not resolved

If you complete steps 1 and 2 and still believe that you are owed pay or entitlements, you may wish to consider:

contacting your union for assistance, if you are a member, or

taking your own court action through a small claims application (a solicitor may be able to assist you to prepare a claim against your employer).

If you decide to take your own action through a small claims application, a free Guide to recovering unpaid wages available from NSW IR.

If you wish to make a formal complaint to the NSW IR, please complete the Online Complaint Form.

What will NSW IR do?

NSW IR investigates alleged breaches of NSW industrial relations legislation, awards and enterprise agreements. NSW IR may prosecute an employer under these laws.

If you lodge a formal complaint about an employer, NSW IR may investigate your allegations if your employer is unincorporated (for example, a sole trader or a partnership), as it is likely that your employer operates in the NSW industrial relations system.

NSW IR may also investigate if your complaint relates to non-payment of long service leave under the NSW Long Service Leave Act 1955.

If your employer is incorporated (usually incorporated employers have 'Ltd' or 'Pty Ltd' at the end of the employer's name), then in most cases, your complaint will be forwarded to the Fair Work Online which is the federal government agency responsible for investigating most workplace issues.

If your employer is incorporated, you can complain directly to the Fair Work Infoline directly on 13 13 94.

NSW IR does not represent you or your employer when investigating a complaint.

Generally, NSW IR can investigate your complaint when:

you meet NSW IR's assessment guidelines

you have already tried to resolve the matter with your employer

the underpayments relate to work you have undertaken in the last six months

your yearly pay does not exceed $100,000 gross

your employer is unincorporated (generally a sole trader or partnership)

your employer is incorporated (generally a Pty Ltd or Ltd company) and your claim relates to long service leave.

Important information about NSW IR investigations

Usually, NSW IR will investigate your most recent six months of employment. If it is considered that your employer breached a law, NSW IR may extend its investigation to an earlier period of your employment.

If no breaches of NSW industrial relations laws are found, the OIR will terminate its investigation of your complaint.

Lodging an industrial complaint

When lodging an industrial complaint with NSW IR you must make sure that:

all parts of your on-line industrial complaint form are completed as accurately as possible

you acknowledge your acceptance and date the industrial complaint form as requested

you have any relevant documentation and information that can be later submitted for further investigation (for example payslips, group certificates etc.)

you have a copy of your letter to your employer and any response received as well as copies of any emails and notes of any telephone conversations with your employer.

Important note:

NSW IR can only accept complaints that relate to your last six months of work and if your gross salary is less than $100,000 per year.

NSW IR will not investigate a complaint if another organisation is also investigating those issues (e.g. a solicitor or union).

If you have lodged an unfair dismissal application concerning your employment, NSW IR will not investigate your industrial complaint until the unfair dismissal claim has been finalised. Similarly, NSW IR is unlikely to investigate any complaint where allegations of criminal activity remain unresolved.

What if my former employer is in liquidation?

If your former employer is in liquidation, NSW IR is unable to assist you. You should proceed with your claim through the appointed liquidator. The Fair Work Ombudsman may also be able to assist in this situation. You can find out more by contacting the General Employee Entitlements and Redundancy Scheme.

What happens after an online complaint has been lodged

What happens if the complaint is not resolved in the 28-day period?

Most complaints are resolved during the 28-day period. If your complaint remains unresolved at the end of this period, NSW IR will check that you have made a genuine attempt to resolve the matter.

If NSW IR, on the information obtained, considers your complaint justified, your employer will be contacted and requested to provide evidence that shows you have received your correct pay and entitlements. In most cases, you will also be interviewed by NSW IR and required to produce additional information.

If, as part of this investigation, the OIR finds breaches of the award, agreement or NSW industrial relations legislation, NSW IR may issue fines or prosecute your employer before a NSW court.

Important: Preparing for court proceedings takes considerable time as sufficient evidence needs to be obtained to prove your case successfully. You must be willing to attend court as a witness. If your employer is convicted, the court may order them to pay you your outstanding entitlements.

Unfair dismissal

What to do if you think you have been unfairly dismissed

Unfair dismissal occurs where a worker is sacked (or threatened with the sack) by their employer and the worker believes the action is harsh, unreasonable or unjust.

If the employer works within the NSW state industrial relations system, the worker can take their case to the New South Wales Industrial Relations Commission.

It is important to act quickly because any claim for unfair dismissal must be filed (lodged with the Commission) within 21 days from the date of dismissal.

This ensures that the matter is dealt with as soon as is practical. It will allow:

witness recollections are fresh and the people involved in the dismissal will usually be available

if re-instatement of the employee is ordered, this can occur with limited adverse effect on the employer's business.

What does the Commission have to consider?

In considering a claim for unfair dismissal, the Commission will consider whether:

a reason was given for the sacking

the employee was given an opportunity to give an explanation or to justify their reinstatement or re-employment

a warning of unsatisfactory performance was given by the employer to the worker.

What is the process?

The first step in an unfair dismissal case being heard by the Commission is conciliation. Both parties meet and provide their account. This process attempts to resolve the issue by mutual agreement without proceeding to a formal court hearing.

Important note: A claim will not proceed to a court hearing unless all reasonable attempts to settle by conciliation have been made by the parties involved.

If the employee and employer cannot agree, the matter will proceed to a court hearing where an independent party, the Commission, will make a decision (arbitrate) based upon the evidence given.

Need more information?

The OIR can provide information about your unfair dismissal rights. Contact the OIR on 131 628.

Workplace health and safety

Every worker has the right to a workplace that is healthy and safe. Achieving a safe and healthy workplace is the responsibility of everyone, both employers and workers alike.

However, there are a few issues that can impact on achieving a healthy, happy and safe work environment.

Workplace safety

Workplace bullying

Discrimination and harassment

Workplace safety

Workers can contract illness or disease, or sustain injuries from accidents as a result of their day to day work activities.

The management of occupational health and safety (OHS) aims to reduce the likelihood and severity of illness and injuries at work.

Occupational Health and Safety is administered by WorkCover in NSW. For more information contact WorkCover on 13 10 50 or visit their website WorkCover NSW.

Workplace bullying

Bullying in the workplace is a serious occupational health and safety problem that puts at risk the health and safety of workers, their colleagues and their families.

Bullying is a largely hidden problem in the workplace, often taking place behind closed doors and without witnesses.

Bullying can range from silly practical jokes to formalised and sometimes vicious initiation rites. Often it's the young or new workers that suffer and, because of peer pressure or fear of losing their jobs, they think they have to accept it. Bullying of any kind is not acceptable in the workplace.

For more information or help, contact WorkCover on 13 10 50 or visit their website WorkCover NSW.

Discrimination and harassment

Discrimination in employment occurs when a person is unfairly treated at work.

It is unlawful to discriminate against an employee because they need to care for or support a child or other 'immediate family member'.

Workplace harassment is where a person is subjected to behaviour that:

is repeated, unwelcome and unsolicited

the person considers to be offensive, intimidating, humiliating or threatening

a reasonable person would consider to be offensive, humiliating, intimidating or threatening

Workplace harassment can be committed by:

an employer

a worker

a co-worker or group of co-workers

a client or customer, or a member of the public.

Pay slips

All workers in NSW should receive a pay slip when they receive their wages. Your pay slip should contain details of time worked, the amount of wages paid and leave entitlements.

How should I be paid?

Your pay (including overtime) must be in cash or by cheque or electronic funds transfer.

Workers who are paid by cheque or electronic funds transfer must give their employer approval to pay them in this way. Check your award or agreement first, as some list the method of payment for a particular type of work.

What information should be on my pay slip?

You should receive a pay slip from your employer each time you are paid.

Pay slips should include the following information:

Employer’s name and ABN

Worker’s name

Classification of the worker under their award or enterprise agreement (including full-time, part-time and casual status)

Date when the payment was made

Period of employment to which the payment relates

The amount of money paid before tax (gross amount, including overtime and other payments)

Amount paid as overtime or information to allow the worker to calculate the amount of overtime

Amount deducted for tax

Any amount deducted by the worker for superannuation

Particulars of all other deductions

Amount paid after tax (net amount).

See a sample pay slip.

Keeping a work diary

It’s a good idea to keep a work diary, including when and how many hours you work and how much you are paid.

You can then easily check that you are being paid for the correct number of days and hours, and at the correct pay rate by comparing your records with the information on your pay slips.

What do I do if I don't receive pay slips?

If you don’t receive a payslip from your employer when you receive your pay, ask if they can provide one in future.

If your employer continues to pay you without giving you a payslip, you can ask NSW IR (state IR system) or Workplace Authority (federal IR system) for help.

If you don’t receive pay slips, or if you find mistakes on your pay slips, your work diary will be very useful.

If you have a legitimate claim for unpaid wages or other entitlements and your work diary is the only written record of hours work and wages paid, it can be used as evidence and help in getting this money back.

Remember, if you are covered by the state industrial relations system and have not received the correct pay or other entitlements, and you are unable to resolve this issue by talking to your employer, you can make a formal complaint to NSW IR within six months of leaving the workplace where the underpayment occurred.

Work contract

As part of the process of accepting a new job, you may be asked to sign a document agreeing to particular working conditions. This could be called a contract or an agreement. If this happens, make sure you read it very carefully first.

Don’t feel pressured to sign straight away, especially if it doesn’t suit you.

Ask for time to consider the document. Take it home and get other people you trust to read it over with you. Perhaps seek legal advice.

Don’t sign until you’re sure you understand it and don’t sign unless you want to.

If you are under 18 years of age, parental or guardian consent is required for the agreement to be legal.

If you don't understand anything contained in your contract or agreement, you could talk to NSW IR on 131 628.

Your working conditions

Before you start work, you need to be sure you understand what your pay, entitlements and working conditions will be once you begin your new job.

Your employer should provide you with this information, however if that doesn’t happen you will need to ask them. It is a good idea to ask them to confirm all the details in writing.

How to check you are getting your correct pay and conditions

NSW IR website has a number of resources to help workers who are covered by a state award or agreement better understand their working conditions and find out what they should be paid.

To find out if you are covered by the state industrial relations system, you can use the State or Federal look-up tool to check.

For more information about pay and conditions go to the Awards Online and Check Your Pay sections in this website.

If you are covered by a federal award or agreement, contact the Fair Work Online for information or assistance.

If you’re still unsure about the conditions you’re being offered, contact NSW IR on 131 628 for help or information.

Working in NSW

If you are working in NSW you should know your workplace rights and responsibilities.

You should also be aware that there are two industrial relations systems in NSW dealing with employment laws:

the NSW state system and

the federal system

Am I under the state or federal system?

The type of arrangement you work under will depend on whether your employer is incorporated (a company) or not incorporated (a sole trader or a partnership).

State system

Generally, if your employer is not incorporated, in most cases you will be working under the conditions of a NSW State award or enterprise agreement. For more information about your workplace rights and entitlements, use this website or contact the Office of Industrial Relations on 131 628.

Federal system

Generally, if your employer is incorporated (usually a Pty or Pty Ltd company name) then you may be working under the conditions of a federal award or agreement. For more information go to the federal government's Fair Work Online website .

How can the Office of Industrial Relations help you?

This website provides information for workers who fall under the NSW system.

However some tools, such as the long service leave calculator and annual leave calculator, may also be useful even if your employer falls under the federal system.

You can check which system your employer falls under by using our search tool - State or Federal jurisdiction?

Trial work

Is trial work legal?

When starting a new job your employer might ask you to do a work trial or work for a probation period. Your employer can do this as it provides an opportunity to see if you can do the job and to see how you like it.

If you are going to start a work trial or probation period, your employer MUST:

Tell you how long your work trial or probation period will be – it can’t be longer than three months.

Pay you for any work that you do – even if it’s only a few hours. You should be paid the same amount you would be paid for doing the actual job.

Unpaid work trials are illegal

It is against the law for an employer (or prospective employer) to make you do an unpaid work trial, even if it is just for a few hours. It is fine for an employer to invite you in to look around the workplace and meet the other staff but if you work, you must be paid.

NSW IR receives many complaints about unpaid work trials, especially from young people during the Christmas holiday period.

What if I am forced to work an unpaid trial period?

NSW IR wants to know about any cases of unpaid trial work. Note down the days and times you have worked (or are being asked to work) for no pay and contact NSW IR by phone or online if this happens to you.

If you do not receive payment for the work trial, we can take steps to recover the payment from the employer.

However, it is important that you obtain some evidence of your unpaid work trial – this could be:

A copy of the advertisement (print or electronic) for the job.

Any correspondence (written or electronic) that you have received from the business about your appointment for trial work.

Names and phone numbers of witnesses who would be able to confirm that you were at the workplace at the time and date indicated. (This could be someone from another business who you may have had contact with during the trial work period).

Photographic evidence.

Handy tip: If you don't get anything in writing from a potential employer confirming they have asked you to complete a short work trial, send them a letter, email or text message stating your acceptance to work the trial and set out the arrangements – date you will do the trial, start and finish time. This can be used to support any claim for wages you may make later if you don't get paid!

Work experience

It is important to understand the difference between trial work (which must be paid) and unpaid work experience.

How is work experience different from work trials and probation periods?

Work experience for no pay is only legal if it is organised through a school, TAFE college, university or other registered training organisation as part of the curriculum or assessment.

Undertaking volunteer work for a charity is different again and can be unpaid.

Work trials and probation periods are used by employers to check whether their workers are suitable for the job they want them to do.

This is a perfectly legal arrangement but all workers must be paid for any trial work or work they do within a set probation period. It is illegal for their employer not to pay them.

Full-time, part-time or casual

Workers can be employed on a full-time, part-time or casual basis. Before you start work, your employer should tell you which category you fall under. You need to know the arrangement you are employed under as it will make a difference to the workplace conditions and rate of pay you are entitled to.

Always check your own award or agreement for details of your workplace conditions.

Full-time

Part-time

Casual

Full-time

Full-time workers are permanent employees with a guarantee of on-going employment.

As a full-time worker you will:

Receive at least the minimum wage. There are different levels of pay in most awards and agreements and each level has its own minimum pay rate.

Be employed weekly. At least one week’s notice of termination must be given by either the employer (if there will be no more work) or by the worker (if intending to leave).

Usually work for 38 hours each week.

Have cumulative sick leave entitlements of at least five days each year.

Receive four weeks of paid annual leave. Some workers are entitled to a paid leave loading (a pay bonus when you are on annual leave). Check your award or agreement to see if this applies to you.

Part-time

Part-time workers are permanent employees with a guarantee of on-going employment.

As a part-time worker you will:

Receive at least the minimum wage. There are different levels of pay in most awards and agreements and each level has its own minimum pay rate.

At least one week’s notice of termination must be given by either the employer (if there will be no more work) or by the worker (if intending to leave).

Work for fewer than 38 hours each week, usually between eight and 36 hours.

Have cumulative sick leave entitlements. Sick leave is calculated at a pro-rata or percentage rate based on the number of hours you work.

Receive four weeks of paid annual leave at the normal rate of pay. For example, someone working three days per week will have four weeks off work and will receive their usual three days’ pay for each week they are on leave. Some part-time workers also receive a paid leave loading (a pay bonus when on annual leave). Check your award or agreement to see if this applies to you.

Casual

Casual workers are not permanent employees so there is no guarantee of on-going employment.

As a casual worker you will:

Receive the minimum wage plus an additional payment called a ‘loading’ (usually around 20% extra). This is to make up for not receiving other entitlements such as paid leave

Be employed on an hourly basis. No advance notice of termination is required

Work for a ‘minimum engagement’ period that is usually around three hours. It is important to check your award or agreement because this can vary.

If you are employed under a state award you may have the right to ask to be made permanent after six months of continuous service.

Casual workers who are employed on an on-going basis may be entitled to long service leave after 10 years of service or pro-rata long service leave after five years of service (working for the same employer).

Some casual workers also have the right to apply for additional (unpaid) leave including parental, personal carers and bereavement leave.

Again, check your award or agreement to see if these entitlements apply to you.

Apprentices and trainees

Apprenticeships and traineeships are jobs that combine work with structured training.

If you are an apprentice or trainee, your employer must provide you with:

every opportunity to learn the skills and acquire the knowledge of the trade

access to structured on and/or off-the-job training

time off work to attend training when necessary

time at work to undertake structured training

a safe working environment

a work environment free from any form of harassment

other benefits specified in the agreement or industrial arrangement (e.g.. a tool allowance).

When an apprentice or trainee begins with a new employer there is a probationary period of employment for up to 3 months.

The relevant apprenticeship agreement, made in accordance with an apprenticeship scheme, must be signed by the apprentice and the employer and lodged with NSW Department of Education and Training (DET) within 28 days.

NSW awards include pay rates and awards that apply for apprenticeships and traineeships please. See Awards Online to check which award covers your industry.

School-based apprenticeships

NSW school students can now start a part-time apprenticeship while enrolled in the Higher School Certificate (HSC) from the end of Year 10.

The types of apprenticeships available to school students are in the automotive, metals and engineering, commercial cookery, electro technology and construction industries. Additional apprenticeship categories were progressively being introduced from 2007. For more information about these apprenticeships see the Department of Education and Training website.

Pay rates

As a general rule the hourly rate to be paid to school-based apprentices is calculated by dividing the usual apprenticeship award weekly rate by 38.

If apprentices are doing the HSC full-time they will be paid for actual hours worked plus 25% in lieu of payment for time spent at school in off-the-job training. Check your award for details.

The apprentice’s wage should be increased to the next level of pay after two years if they have met the relevant training requirements.

Working conditions

School-based apprentices are entitled to all the conditions of full-time apprentices but on a pro-rata (or proportional) basis.

NSW awards include pay rates and entitlements that apply for school-based apprenticeships and traineeships. See the Awards Online section of NSW IR website to check which award covers your industry.

Awards and agreements

http://www.industrialrelations.nsw.gov.au/awards/controller.jsp

When working in NSW, you will be covered by either the NSW state or the federal industrial relations system. The first thing you need to do is work out which system covers your employment.

Most people employed within the NSW system are covered by either an award or an enterprise agreement. Your employer is required, by law, to make sure a copy of the relevant award or enterprise agreement is on display in your workplace in a position where all workers can easily access it. In some workplaces, more than one award or agreement will need to be displayed.

Your employer can display these documents on their computer system or intranet if all workers have access, know how to find their awards and agreements, and are notified that the documents are there.

If you don’t have access to the computer system or don’t use the computer system very often, your employer must make sure a paper copy of the award or enterprise agreement is also available.

Awards

An award sets out the rights and obligations of employers and workers engaged in particular types of work. There are many different types of awards covering different industries and occupations.

Awards cover conditions of employment including:

hours of work

pay rates, penalty rates, overtime and other loadings, such as annual leave loading

allowances, for example, tools or uniform allowances

leave entitlements

employment protection provisions, for example, redundancy payments

part-time or casual work.

How are NSW awards made?

The NSW Industrial Relations Commission makes NSW awards upon application by an employer organisation or worker organisation (union) to create a new or revised award for a particular industry. Awards can also be made to settle industrial disputes.

Award pay rates often increase after each State Wage Case following an application to the Commission by parties to the award. The Commission also updates and reviews awards every three years.

Who is covered by a NSW award?

A NSW award covers all employers and workers in the industry or occupation to which it relates, whether or not they were involved in creating the award. Every award has a section that explains the industry or occupation covered by the award. Information about awards can be found at Awards Online.

What is the difference between state and federal awards?

Employers may be bound by a NSW award or a federal award. Sometimes, both federal and NSW awards can cover workers in different occupations, even at the same workplace. For more information about federal awards contact the Workplace Authority.

If an employer is not covered by a federal award, and in the absence of an enterprise agreement, the employer will be bound by a state award, unless the work performed by the workers is not within the scope of any award. In this case workers are award free.

Check if your employer is covered by a NSW award or a federal award .

Enterprise agreements

An enterprise agreement, like an award, sets out the rights and obligations of employers and workers engaged in particular types of work in a business.

It may be negotiated between the workers and an employer or between a union on behalf of the workers and the employer.

Enterprise agreements are specific to a particular workplace and may cover additional working conditions than those covered in the award.

An enterprise agreement must comply with all NSW laws regarding employment rights and obligations, such as minimum entitlements to parental, annual and long service leave.

Every enterprise agreement must be in writing and signed by or on behalf of the parties. The parties to the agreement (the workers or their union and the employer) must be named and the agreement must state which workers will be covered by the agreement.

Generally, all agreements must be for a fixed term of between one and three years. However, an agreement continues in force beyond that term until it is cancelled.

How is an enterprise agreement approved?

An application to approve an agreement can be made to the Industrial Registrar of the NSW Industrial Relations Commission. An agreement is not enforceable unless it has been approved by the Commission.

The Commission will approve an enterprise agreement if:

it complies with all relevant Act requirements

it does not, on balance, provide a disadvantage to the workers when compared with the award

the parties understand the effect of the agreement

the parties are entering into the agreement of their free will

the agreement does not unfairly exclude some workers.

Do I have to accept an enterprise agreement in my workplace?

You can’t be forced to sign an enterprise agreement. However, where an agreement has been approved by the appropriate union or in a secret ballot of the workers, even if you didn’t vote for the agreement you are still covered by it once the agreement has been approved by the Commission.

As a new worker at the workplace, you will be covered by the existing enterprise agreement, if it applies to the work duties that you will be carrying out.

However, employers are required to notify new workers of the existence of the enterprise agreement and must provide a summary of the agreement.