Australia: The Last Set Of Amendments To The Workplace Relations Regulations… For 2006

Last Updated: 14 February 2007
Article by Gareth Jolly

Originally published 18 December 2006

The Last Set Of Amendments To The Workplace Relations Regulations… For 2006

Originally published 18 December 2006

The Federal Government formally amended the Workplace Relations Regulations last week, as foreshadowed in our HR & IR Updates of 13 November 2006 and 1 December 2006.

There are actually two sets of amending Regulations. To add to the confusion, some of the Regulations came into effect on 15 December 2006, some had retrospective effect back to 27 March 2006, and some (including the all important record keeping amendments) take effect from 27 March 2007.

Employee records and payslips simplified, especially in recording of hours

The Government has entirely rewritten the Regulations on employee records and payslips, delivering on its promise to simplify the record-keeping requirements.

Consistent with the Government’s announcement in November 2006, the Regulations will no longer require employers to record hours worked by employees, unless:

  • the hours are overtime hours for which the employer is required to pay penalty rates or loadings; or
  • the employee works as a casual or irregular part time employee, in which case all hours worked must be recorded.

The Regulations also remove the requirement to record an employee’s ‘nominal hours’ in records and payslips, and the requirement to convert an employee’s annual rate of pay to an hourly rate for the purposes of payslips. For employees paid an annual salary, the payslip must record that annual salary.

Other amendments include:

  • clarification that an employer may provide a payslip electronically or as a hard copy;
  • removal of the requirement that employers record in employee records the employee’s date of birth, industrial instrument and classification;
  • removal of the requirement that payslips record the employee’s classification;
  • clarification that the employer must record an employees’ gross pay, net pay and details of deductions; and
  • amendment to requirements for recording of leave – the following details must now be recorded for all types of leave:
    • leave accrued;
    • leave taken;
    • leave balance; and
    • leave foregone, including a copy of the employee’s election to cash in leave, and details of the payment provided for leave foregone.

The amended Regulations come into force from 27 March 2007, and penalties will apply from that date.

Other amendments to the Regulations

Other amendments made, with effect from 15 December 2006, include:

  • a provision that, after the termination of a preserved State agreement, the Fair Pay Standard plus any protected preserved conditions will apply (which include provisions such as annual leave loading, most allowances, penalties and overtime and shift loadings). Previously, an employee would fall back to the Fair Pay Standard alone, an outcome that was commented upon in a recent decision of the Australian Industrial Relations Commission refusing to terminate a preserved State agreement;
  • allowing for the purchasing of additional personal/carers leave, and the taking of personal/carers leave at half-pay to increase the amount of personal leave available to an employee;
  • some minor amendments to the definition of prohibited content (which cannot be included in a workplace agreement) – including that it is prohibited content to provide for the forgoing of personal/carers leave in return for a pay or other benefit, unless the employees makes a written election to do so;
  • providing that multiple contraventions of the Regulations, engaged in as a single act or single course of conduct, will be prosecuted as a single contravention of the Regulations (among other things, this reduces employers’ exposure to penalties for failure to comply with the employee record-keeping requirements); and
  • clarification that penalties for breach of the Regulations (including the employee record-keeping and provision of payslips provisions) cannot be imposed upon the Federal, State or Territory Governments.

The amendments make several other minor or consequential amendments, including amendments to reflect recent changes to the Workplace Relations Act to allow the cashing out of personal leave in excess of 15 days’ accrued personal leave.

The last set of amendments for 2006. But what lies ahead?

This will be the last set of amendments to the WorkChoices legislation and regulations in 2006.

However, there is likely to be further fine-tuning of WorkChoices in the lead-up to the 2007 Federal election.

As for what happens to WorkChoices after the 2007 Federal election, that will all depend upon the outcome of the election, including the composition of the Senate.

Implications for employers

  • The most significant changes brought about by these amendments are the changes to employee record-keeping obligations. The new requirements are far more streamlined than what was originally required earlier this year.
  • The new employee record-keeping requirements come into effect from
    27 March 2007.
  • Care should also be taken to comply with employers’ obligations to provide detailed payslips. These amended requirements will apply, with penalties for contravention, from 27 March 2007.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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