Incorporated associations can employ people to undertake a range of duties, including:

• to deliver the association’s services.
• to provide administration support.
• to manage the day-to-day operation of the association.

There are a number of different working arrangements that employers can apply when engaging workers and associations should consider what type of employment they wish to offer:

• Full time: generally work more than 35 hours per week on a regular, ongoing basis and receive full entitlements such as paid leave.
• Part time: generally work regular hours each week but fewer than full time employees and their entitlements are pro-rated, based on hours worked.
• Casual: usually employed on an hourly, daily or weekly basis and don’t usually get paid sick leave or annual leave.
• Fixed term or contracted: employed to do a job for an agreed length of time for example to work on a specific project or fill in for employees on leave.
• Commission: people in this category may be paid on a ‘commission only’ basis which means they only receive money when they sell or achieve a specific target.

An association may wish to engage a recruitment agency to assist with the process of employing staff. If the association decides to recruit its own employees it should use a process that is transparent, fair and consistent:

1. Write a job description which explains the essential duties of the position to be filled and the conditions of employment. This will help prospective employees understand the job requirements and decide whether they think they are suitable for the role.
2. Prepare selection criteria which will be used to assess the applicants. This criteria should include the qualities, skills, knowledge and experience that the association requires of a successful applicant. The selection criteria are usually included with the job description so potential applicants know how they will be assessed.
3. Advertise the position to attract suitable applicants using the best means available to the association (newspaper, online, recruitment agent etc).
4. Interview suitable applicants and check references to learn more about their experience and suitability for the role.
5. Prepare an employment contract. The employment contract contains the terms and conditions of employment, including matters such as pay, leave and hours of work. A contract of employment should be in writing and signed by both parties.

IMPORTANT: the employment selection process is subject to anti-discrimination legislation including the selection criteria and interview (See Discrimination and Harassment).

When employing people, associations need to be aware of employment law and the relevant industrial agreement with which they are required to comply. Industrial relations and employment in Australia is governed at both State and Commonwealth level and the conditions of an employee contract may be subject to a specific award or agreement.

To clarify whether your association falls under the Commonwealth or the State system, or if you are unsure what industrial award and or agreement may apply to your association, you can contact Wageline on telephone 1300 655 266.

Western Australian industrial relations system

The Labour Relations division of the Department of Mines, Industry Regulation & Safety is responsible for administering the Western Australian industrial relations laws. It provides information through Wageline on issues including:

• minimum employment conditions;
• pay rates;
• long service leave entitlements; and
• employee termination and dismals.

More information is also available on the Labour Relations website.

Commonwealth industrial relations system

The Commonwealth Government workplace relations system is regulated by two agencies, Fair Work Australia and the Fair Work Ombudsman. To find out more about Commonwealth awards and agreements, you can contact:

Fair Work Commission
Telephone: 1300 799 675
Perth Office contact details
Telephone: 9464 5172
Address: Floor 16, 111 St Georges Tce, PERTH WA 6000
Website: www.fwc.gov.au
Email: perth@fwc.gov.au

Fair Work Ombudsman
Infoline: 13 13 94
Address: GPO Box 9887, In your capital city
Website: www.fairwork.gov.au

Industrial awards

An industrial award is a legally binding document that outlines the wages and conditions of employment for groups of employees in an industry or occupation, for example, the Western Australian Hairdressers Award 1989.  Generally, employers cannot provide conditions of employment that would be less favourable than award conditions.

Western Australian awards are made by the Western Australian Industrial Relations Commission. Traditionally, Commonwealth awards are made by the Australian Industrial Relations Commission.

Employer-employee agreements

An association may be eligible to make use of an individual agreement known as an ‘Employer-Employee Agreement’ (EEA). This is a voluntary written agreement between an employer and employee, which forms the basis of the contract between the two parties.

There are a number of requirements that must be met and an EEA must be registered with the Western Australian Industrial Relations Commission.

Common law contract of employment

Common law contracts are individual agreements between an employer and an employee. It is important to note that:

• the terms of any relevant award or collective agreement will still apply even if when not written into the contract; and
• the contract must comply with the minimum conditions imposed by the applicable State and Commonwealth legislation.

Common law contracts may useful where there is no award that applies to the employees. Labour Relations also provides information about developing a common law contract.

If your association needs to terminate an employee's employment, it is important to find out what procedures must be followed. It may be advisable to obtain legal advice before terminating an employee's employment.

Employment may end when:

• the work set out in the contract is completed or the time period for the end of the contract is reached.
• either party gives proper notice to terminate the contract.
• a party terminates the contract because the other party breaches the terms of the contract of employment. Whether a particular breach justifies termination will depend on the nature of the breach and the particular circumstances of the case.

Redundancy

There may be situations where the role the person is employed in is no longer required.

State and Commonwealth awards and agreements will often deal with matters concerning redundancy, including issues such as:

• consultation with the employee,
• notice to and consultation with unions,
• redeployment opportunities (providing the employee with another position), and
• redundancy payments and benefits.

Associations should be clear that a position is no longer required before terminating employment by reason of redundancy. If an employee's employment is terminated on grounds of redundancy in circumstances where this is not a genuine reason for the termination, the association may be exposed to a claim of unfair dismissal.

Summary (instant) dismissal

Some contracts of employment make allowance for instant termination of employment (termination without notice) where an employee has been found to have engaged in serious misconduct, for example:

• theft;
• use of illicit drugs in the workplace;
• criminal conduct, for example, assault; and
• fraudulent conduct.

Any alleged serious misconduct must be investigated thoroughly and fairly, and the allegations substantiated by clear evidence before an association terminates an employee's employment summarily for serious misconduct.

Unlawful termination

Termination of a contract of employment is unlawful if proper notice is not given or it is terminated for a prohibited reason such as:

• union membership (or non-membership) or reasonable participation in union activities;
• prohibited grounds of discrimination;
• temporary absence because of illness or injury;
• absence during maternity or parental leave; and
• filing a complaint or participating in proceedings against an employer.

Unfair dismissal

There are unfair dismissal laws in both the State and Commonwealth industrial relations systems. The process by which the decision to terminate employment was reached and communicated to the employee must always be fair. Key elements of procedural fairness include:

• notifying the employee of reasons for termination of employment;
• giving the employee an opportunity to respond before any final decision is made;
• if employment is to be terminated for reasons, such as repeated misconduct or poor performance, advising the employee of the issues and giving the employee an opportunity to improve prior to termination (eg. by way of warnings, counselling).

Employees are entitled to be told if their work is not satisfactory, given a chance to change and warned if their performance is still unsatisfactory. It is essential to keep detailed and up-to-date records of these processes as they may be required later to support decisions .

More information about unfair dismissal is available from both Labour Relations and the Fair Work Commission.

Superannuation

All employers are required to make superannuation contributions on behalf of their employees.  Employees may (depending on the terms of an applicable award) have the right to nominate their preferred superannuation fund and if so, employers must notify employees of their right to choose. If an employee does not provide written details of their preferred fund, the employer can use a fund of its choice until such time that the employee requests a change.

Workers' compensation

All incorporated associations that employ staff should arrange appropriate workers’ compensation insurance and an employee’s legal entitlement to compensation for injury in a workplace cannot be nullified through any employment contract or individual agreement.

For more information on worker’s compensation insurance, refer to Risk Management and Safety chapter. 

Records

Employers are required to keep time and wage records for each employee. The records must accurately document the employee’s wages and entitlements.  The record keeping requirements may vary depending on the relevant industrial system, award, agreement, industry standard, or the association’s policy but as a general guide, there should be a separate record for each employee detailing:

• the name of the relevant award or agreement regulating the employee's employment;
• the classification of the employee under the award or agreement;
• whether the employee works full-time or part-time, or is employed on a casual basis;
• the date the employee began work;
• hours worked, including breaks;
• leave entitlements taken and due;
• remuneration; overtime, flexitime or time-in-lieu.

Employment of children

Generally speaking children of any age can work for charities and not-for-profit organisations so long as the work does not prevent school attendance.

Volunteer work is unpaid and provides an opportunity for people to participate in the activities of their community. Volunteers (either as members or non-members of the association) can contribute to an association in a wide variety of roles such as:

• bookkeeping and administrative support;
• professional services (e.g. free legal or accounting advice);
• participation on sub-committees;
• participation in, or co-ordination of, activities and events run by the association; and
• fundraising.

Although volunteers are not normally classified as employees for the purpose of employment and taxation laws, work health and safety laws recognise the role of volunteers and their right to be safe (See Work health and safety laws). 

Volunteer liability and insurance

In certain circumstances, the Volunteers and Food and other Donors (Protection from Liability) Act 2002 relieves volunteers of incorporated associations from civil liability for acts done in the course of their volunteer work, and transfers that liability to the incorporated association. An incorporated association will generally be liable for anything a volunteer does in good faith when doing work organised by the association unless the the volunteer:

• acts outside the scope of the work organised by the association;
• acts contrary to instructions given by the association; or
• is unable to do their work in a proper manner because his or her actions were significantly impaired by alcohol or non-therapeutic drugs.

Volunteering Western Australia

Volunteering Western Australia is the peak body for volunteering in this State. It supports and promotes the role of volunteers, provides general information about volunteering, opportunities to volunteers, and the rights and responsibilities of both parties.

Volunteering WA
Level 1, 3 Loftus Street West Leederville WA 6007
Telephone: (08) 9482 4333
Website: www.volunteeringwa.org.au