Queensland state industrial laws

Minimum conditions of employment

As of 1 January 2010, all employers in the private sector in Queensland are covered by federal industrial laws. For more information about federal industrial laws go to federal industrial laws

However, state long service leave laws will continue to apply.

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Employing children

In Queensland the employment of children is governed by the Child Employment Act 2006 and the Child Employment Regulation 2006.

These laws specify the age at which children can work and also limit the hours they can work.

The laws about children working do not apply to businesses which are totally owned by a “close adult relative” of the child.

“Close adult relative” of a child, means an adult who is a parent, grandparent, aunt, uncle, sibling or step sibling of the child. This would include the family farm.

The laws also permit children of all ages to perform domestic work.

Children under 13 years of age, other than family members, are not permitted to work on a farm.

Hours of work and rest breaks

There are specific laws about when ‘school-aged children’ can work.

A school-aged child is a child who is under 16 years of age and required to be enrolled at a school.

Note that some children under 16 years of age may not be required to be enrolled at school for instance if they have already completed year 10.

The hours that school-aged children are permitted to work are as follows:

• 12 hours during a school week
• 38 hours during a week that is not a school week
• four hours on a school day
• eight hours on a day that is not a school day

School-aged children must not work between the hours of 10pm and 6 am.

School-aged children must be given a one hour break after working 4 consecutive hours before working again.

It is an offence for an employer and the parent to require or permit a school-aged child to work when they should be attending school.

Parental consent

The employer has a duty to ensure that a ‘parent’s consent form’ is completed before the child commences work.

Record Keeping

The following records must also be kept, in addition to other employment records, for each child under 18 years of age:

• the full name of the employer;
• the address where the child works;
• the full name, address and any home phone number of the child;
• the name, address and any home or business phone number of a parent of the child;
• the name, address and any home or business phone number of a nominated person;
• the child’s date of birth;
• the nature of the work that the child is required to perform for the employer;
• a copy of any special circumstances certificate relevant to the child’s employment with the employer;
• a copy of any work limitation notice relevant to the child’s employment with the employer;
• for a school-aged or young child—

(i) the number of hours worked by the child during each day and week; and
(ii) the times when the child started and stopped work; and
(iii) details of work breaks including meal breaks; and
(iv) the parent’s consent form for the child;

• for a child who is not a school-aged or young child—a copy of a form of identification, stating the child’s date of birth, issued under an Act or by the child’s school.

These records must be kept for at least 2 years after the child stops working for the employer.

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Long service leave

Long service leave is paid leave granted to employees to recognise a long period of service to the employer. The long service leave provisions of the Queensland Industrial Relations Act 1999 apply to all employers in Queensland.

Amount of long service leave

As of 3 June 2001 employees are entitled to 8.6667 weeks of long service leave for each period of 10 years ‘continuous service.’ After 10 years’ continuous service employees can take further long service leave after five years worked out on a pro rata basis.

Before 3 June 2001 long service leave accumulated on the basis of 13 weeks for every 15 years’ service. The legislation provides for a phasing in of the new entitlements for employees engaged as at 3 June 2001.

Continuous service

Continuous service means service with the employer which is not interrupted. The following absences from work do not break continuity of service for long service leave:

• absence on paid or unpaid leave granted by the employer (e.g. sick leave);
• where the employment is terminated by the employer for reasons of illness or injury if the employee is re-employed and the employee has not engaged in work during the absence;
• where the employment is terminated and the employee re-employed by the same employer within three months;
• absences due to slackness of trade or an industrial dispute if the employee is re-employed with the same employer.

In addition, periods of unpaid leave, for instance parental leave, do not break continuity of service but may not be counted when calculating years of service.

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Payment for long service leave

The employer and the employee can agree on the times when payment will be made and how payment will be made.

Payment for long service leave is at the ordinary rate of pay, excluding penalties and overtime, immediately before the leave is taken.

However, if immediately before the leave is taken the employee was paid at a higher rate than the ordinary rate, the employer must pay the higher rate. It is a breach of the act to reduce the employee’s rate of pay in order to avoid this obligation.

If pay rates are increased or reduced while the employee is on long service leave the employer must pay the employee the increased or reduced rate for the relevant part of the leave.

Any public holidays which fall during the leave must be paid as extra days.

Casual employees and part-time employees

Casual and part-time employees qualify for long service leave in the same way as full-time employees but payment is made on a pro rata basis calculated according to the number of hours worked over the whole 10 year period. Payment is made at the ordinary rate of pay on the day the employee starts the leave.

If the employer and employee agree, casual and part-time employees can take their pro rata long service leave on a full time basis.

Long service leave is paid out on termination in the same way as for full-time employees at the hourly rate for ordinary time on the date of termination.

There are specific requirements for records of hours worked for casual employees to enable the long service leave to be calculated accurately.

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Cashing in long service leave

Because cashing in of long service leave only permitted if it is an award entitlement, and there is no provision for this in the Pastoral Award 2010, employees in the dairy industry in Queensland can only cash in long service leave if the employee makes an application to the Queensland Industrial Relations Commission on compassionate grounds or grounds of financial hardship.

If the employee dies before taking long service leave or whilst taking long service leave the employer must pay the amount due to the employee’s personal representative

Taking long service leave

Employers and employees in the dairy industry in Queensland can agree as to when long service leave will be taken. If they cannot agree the employer can give the employee at least three months written notice that they are required to take the leave and in this circumstance the employee must take at least four weeks leave.

Pro rata long service leave on termination of employment

Employees who have served at least seven years are entitled to a pro rata payment of long service leave upon termination of employment in the following circumstances:

• the employee dies;
• the employee terminates the employment due to the employee’s illness, incapacity or domestic or other pressing necessity;
• the employer dismisses the employee for a reason other than the employee’s conduct, capacity or performance;
• the employer unfairly dismisses the employee.

These restrictions do not apply to employees whose employment is terminated after they have completed more than 10 years’ service.

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Residential tenancies laws

The Queensland residential tenancies laws may apply to accommodation on farms where the accommodation is not a part of the wider commercial lease of the farming property. These laws lay down notice periods for ending the tenancy, whether bonds can be required and how much can be charged as well as rules regarding repairs and inspection and agreements with specific terms. Breaches of these laws attract fines.

Whilst residential tenancy laws can protect both the tenant and the landlord, the notice periods for ending the tenancy (4 weeks) can be problematic when accommodation has been part of a remuneration package and an employee leaves as a result of their employment being terminated either with notice but particularly when dismissed summarily for misconduct. In these circumstances the only avenue available to the employer is to make an application to the tenancy tribunal to have the lease terminated earlier on the ground of hardship.

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