In Employment Law

It can be hard working out your workplace rights at the best of times, but if you’re an SA public sector employee, it’s particularly difficult.

General information about employment law that you might find on the internet is generally useless to you. That’s because, since 2006, nearly all workers have become subject to federal employment laws (first WorkChoices, now the Fair Work Act). But public sector employees are one of very few types of workers who aren’t subject to federal employment laws. Nearly all information you’re likely to find about workers’ rights will be about federal employment laws that (mostly) don’t apply to you.

For SA public sector employees, specific SA employment laws still apply. There’s very little information indeed out there about specific SA employment laws. But even if you do find information about SA employment law, you can’t rely on that either. That’s because SA public sector employees have a whole host of special laws governing their employment, like the Public Sector Act.

Unfortunately, for public sector workers, there isn’t just one simple law, or one simple award, that sets out all your rights. Instead, there is an extremely confusing web of laws, awards, enterprise agreements, and numerous other miscellaneous documents and instruments and determinations.

So what to do if you’re an SA public sector employee trying to work out what your rights are? Well, the best thing to do is seek advice about your situation. You could contact the Public Service Association (or other relevant union) if you are a union member, or you could contact us at Johnston Withers Lawyers.

If you’re looking for some general pointers to try to begin to understand your situation, here are some of the many rules you should be thinking about.

What rules govern my employment?

The most important laws are the SA Fair Work Act 1994 and Public Sector Act 2009. The SA Fair Work Act sets out the South Australian employment laws. Make sure you don’t confuse it with the Commonwealth Fair Work Act 2009, which sets out federal employment laws.

Then there’s the Public Sector Act. It sets out a whole host of very specific laws about your employment. But be careful – not all public sector employees are subject to the Public Sector Act.

Next, there are numerous other laws that may apply to your specific part of the public service, depending upon your job. For instance, if you’re a teacher, some provisions of the Education Act 1972 (SA) which will affect your employment rights, while if you’re a health professional, the Health Care Act 2008 (SA) will be relevant. There’s also other laws that might occasionally be relevant, like the Ombudsman Act 1972 (SA), Independent Commissioner Against Corruption Act 2012 (SA), and the Whistleblowers Protection Act 1993 (SA).

You also need to be aware of relevant awards. An award generally sets out rights like when you should be paid overtime, how you can take ‘time off in lieu’ (TOIL) and flexitime, how public holiday pay works, and much more besides. There are quite a number of possible awards that might apply to you. The most likely applicable award is the South Australian Public Sector Salaried Employees Interim Award (despite being called an ‘interim’ award, it is very much ongoing). But you’ll need to read it very carefully to make sure. Then there are other awards for particular issues, like the Public Service (Recreational Leave Loading) Award, which deals with the extremely specific issue of how much leave loading is paid when you take annual leave. All potentially relevant awards can be found here.

Then there are enterprise agreements. Enterprise agreements are agreements made collectively between all workers and the employer. They provide for better, additional entitlements to what your award provides. In particular, they usually set out a higher base salary rate. The most likely enterprise agreement to apply to you is the punchily-named SA Government Wages Parity (Salaried) Enterprise Agreement 2014. But you will need to read it carefully to see if it does apply to you, because it may not. For instance, nurses and midwifes have their own enterprise agreement, the Nursing/Midwifery (South Australian Public Sector) Enterprise Agreement 2013. All potentially relevant enterprise agreements can be found here, while a list of common public sector enterprise agreements can be found here.

Finally, there are also determinations of the Commissioner of Public Sector Employment. These often affect your rights about things like leave, redundancies, and many other issues. These determinations can be found here. The Commissioner also issues the Public Sector Code of Ethics (sometimes also known as the Code of Conduct), which is a vital document to consider if disciplinary action is being taken against you. It can be found here.

There are also ‘policy directives’ issued by some Government departments, and other miscellaneous documents hanging around, that might have significant implications for your employment rights. For instance, if you’re employed in a health-related role, a document called the ‘SA Health Human Resources Manual’ can have very important consequences for you. It’s not publicly available, but you should be able to request a copy from your employer.

The PSA has a useful list on its website of some of the relevant instruments mentioned above.

As can be seen, working out your rights as an SA public sector employees is a really tough exercise, due to the many extra rules that apply, and the unique nature of the laws that apply. If you are unsure about your rights at work, it might well be worth giving us a call for an appointment where we can help you understand exactly what your rights are.

 

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