Frequently asked questions
Labour relations advisers respond to many enquiries from public sector agencies. Below are some of the most commonly asked questions and their answers.
Further advice is available from Commerce's labour relations advisers.
Access to awards and industrial agreements
Q. Where can copies of awards relating to the public sector be found?
A. Up-to-date copies of all awards are available from the Western Australian Industrial Relations Commission website.
Q. Where can copies of current public sector industrial agreements be found?
A. A list of the current agreements, including agency specific agreements, can be found on the Public Sector Agreements page and provides links to the Western Australian Industrial Relations Commission. Some agreements are not available from the websites, and the relevant agency will need to be contacted.
Contract of service
Q. What is the purpose of probationary periods?
A. The purpose of probationary periods is two-fold.
Firstly, to determine whether there is a good skills match between employees occupying positions and the job requirements.
Secondly, to determine if employees are performing the job duties satisfactorily. Managers need to ensure performance is adequately monitored and managed during probationary periods.
Q. What are public sector employers' record keeping obligations concerning employees?
A. The records required to be kept by all employers (including public sector employers) are specified in the Industrial Relations Act 1979 (IR Act). These requirements are in addition to others which may be specified in awards or industrial agreements and orders of the Western Australian Industrial Relations Commission
The requirements are detailed in Circular to Departments and Authorities No. 14 of 2002 (PDF, 66kb).
General information regarding record keeping obligations has also been produced by Commerce.
Agencies are required to comply with the requirements of the IR Act and are advised to develop appropriate guidelines and procedures to ensure obligations are fulfilled.
Cashing out/Payment in lieu of annual leave
Q. Can employees receive payment in lieu (cashing out) of annual leave?
A. Employees can only cash out annual leave if:
- cashing out is specifically provided for in relevant awards and/or industrial agreements; or
- the annual leave entitlement is derived directly from the application of the Minimum Conditions of Employment Act 1993 (MCE Act).
The majority of public sector employees derive annual leave entitlements from awards and/or industrial agreements and not the MCE Act. These employees cannot cash out annual leave entitlements unless provided for in an award and/or industrial agreement.
Agencies entering into annual leave cashing out arrangements, where there is no ‘cashing out’ provision in an award/agreement, are in breach of Section 114 – Prohibition of Contracting Out of the Industrial Relations Act 1979 and risk prosecution.
Where employees’ annual leave entitlements are derived from the MCE Act and an agreement is reached to cash out annual leave:
- the benefit received by an employee must be equivalent to the annual leave being cashed out; and
- the agreement must be in writing.
Q. Where can an agency find advice and guidelines concerning salary packaging?
A. Revised salary packaging guidelines were issued through No. 04 of 2012 - Guidelines for Salary Packaging in the WA Public Sector 2012 - Amendments to Support the Introduction of Choice of Superannuation Fund (Super Choice) . Additional advice on labour relations aspects of salary packaging can be sought from labour relations advisers.
Advice on taxation matters can be obtained from the Australian Taxation Office.
Long service leave (LSL) entitlements – Implications of provisions to take accrued LSL in single days
Q. What are long service leave entitlements of employees covered by agreements which provide for the taking of accrued LSL in single days?
A. Entitlements to LSL do not change (ie increase or decrease) where agreements and/or awards provide for the taking of accrued LSL in single days.
For example, employees covered by the Public Service Award 1992 are entitled to 13 weeks LSL, equating to 65 days of paid leave. The leave cannot be extended and employees cannot receive more than 65 days paid leave.
Employees would receive the benefit of a public holiday where LSL is taken immediately prior to or immediately after the holiday. This does not extend the LSL entitlement as the public holiday does not occur during long service leave.
Working while on long service leave
Q. Is it possible for employees to work for another employer while on long service leave, and what approvals are required?
A. Yes, but only with prior approval.
Employees covered by the Long Service Leave General Order for Government Wages Employees cannot work while on long service leave unless approval has been sought and received from the Department of Commerce. Circular to Departments and Authorities No. 3 of 1986 (PDF, 29.72kb) provides guidelines on this issue.
Other public sector employees must seek approval in accordance with Section 102 of the Public Sector Management Act 1994. This section of the Act identifies the categories under which employees must have written permission of employers to engage in activities outside their employment.
Q. What are Treasurer's Instructions and what is the relevance to the management of labour relations in the public sector?
A. Treasurer's Instructions are issued in accordance with section 58 of the Financial Administration and Audit Act 1985. The Act makes provision for the administration and audit of the public finances of the State and certain statutory authorities, including the payment of salaries, act of grace payments, and other matters affecting employment entitlements.
Q. Where can copies of the Treasurer's Instructions be found?
A. Treasurer's Instructions are available from the Department of Treasury and Finance.
Q. Are employees entitled to paid parental leave while on leave without pay?
A. No. Employees on leave without pay have all leave entitlements suspended for this period, including paid parental leave.
Shift and weekend penalties
Q. Are shift and weekend penalties payable when an employee is absent on sick leave?
A. Generally, shift and weekend penalties are only payable on shifts worked, and there is no entitlement when an employee is absent on sick leave, however there are exceptions. Determination of entitlements depends upon the definition of "pay" as prescribed in relevant awards and/or agreements.
Q. When is property allowance payable to employees covered by the Public Service Award 1992?
A. The entitlement to payment of a property allowance on both the sale and purchase of a residence originates at the date on which an officer receives notice of a transfer. Employees who purchase or sell a property prior to the date on which notice is received of a transfer to a new locality are not entitled to payment of property allowance.
Seeking labour relations advice
Q. Can employees seek advice from the Public Sector Directorate?
A. No. The role of the directorate is to provide advice to representatives of public sector employers. It is inappropriate for the directorate to also provide advice to employees. This avoids potential conflicts of interest. Employees wishing to seek advice can contact their agency's human resource department or relevant union.
Deceased employee entitlements – Long service leave, wages/salaries and other entitlements
Q. What must an agency do with the unpaid LSL, wages/salaries and other entitlements of deceased employees?
A1. Public service and government officers - all LSL lump sum payments are to be made to the estate of a deceased officer.
With the approval of the Treasurer, however, payment can be made to a legal dependant of a deceased employee. [Refer Regulation 5(2) Public Service Regulations, which remain in effect pursuant to Clause 18, Schedule 5 – General Transitional Provisions, Public Sector Management Act 1994]
A2. Government wages employees - LSL lump sum payments are to be made to the estate of a deceased employee unless the employee leaves a spouse, children, parent or invalid brother or sister dependent of the employee, in which case payment is to be made to the spouse or other dependant. [Refer Section 10, General Order Long Service Leave Conditions – State Government Wages Employees – 66 WAIG 319]
NB Where payment is not being made directly to the estate of a deceased employee, it is advisable the spouse or other dependant completes a deed of release.
A3. Public service and government officers, and government wages employees - any pay and other unpaid entitlements (excluding LSL) are to be made to the estate of a deceased officer or employee.
In addition to these frequently asked questions, the Public Sector Commission has further information relevant to human resource management in the public sector.