1 THE EMPLOYMENT ACT AND YOU GUIDE FOR EMPLOYEES An explanation of your rights, benefits, protection and duties as an employee, under the Norfolk Island Employment Act
2 Norfolk Island has its own law setting out the rights and the duties of employers and employees on the job. It is different from the law anywhere else. It gives you, as an employee, some rights and some duties that you might not have anywhere else. This document is a guide to some of the main points in the Employment Act Copies of the Employment Act 1988 are available at the Public Library, and can be purchased from the Legal Clerk of the Norfolk Island Administration. BEFORE YOU COMMENCE EMPLOYMENT: Contracts of employment Who needs one - If you have a Temporary Entry Permit (T.E.P.) to live on Norfolk Island (or if you are a visitor, intending to apply for a Temporary Entry Permit) you are not allowed to commence a new job on Norfolk Island until you have agreed on, and signed, a written contract of employment with your employer. This contract is private, between you and your employer. Ordinarily it does not cover any set length of time the job is to last, but it covers the main week-to-week conditions of the job. These conditions must meet the Norfolk Island Employment Act minimum standards. Your contract must be approved by an authorised officer. A temporary entry permit will not normally be issued unless you have an approved contract. If you are a resident of Norfolk Island or have a General Entry Permit, you are not required to have a signed contract of employment; but if you would like to have one, you can ask your employer for one, and the law requires your employer to provide a contract within fourteen days. The minimum standards in the Employment Act apply to all employees and employers, whether or not a contract has been signed. The Contract Form - The Employment Contract is a printed form, supplied by the Norfolk Island Administration. After it has been completed and signed, you get one copy and the employer keeps one copy. The form has basic facts that must be completed (i.e. your name and address, the employer s name and address), the date of the contract and the date you are to commence work, the title of your position, details when payday is and how your wages will be paid, and, if board or lodging are included in the job, what their value is. Entitlements - The law states that an employee is entitled to paid public holidays, sick leave, three weeks of paid leave a year and at least one week s notice of termination. An employee must be paid no less that $10.70 an hour in the normal working week, and no less than $16.05 an hour outside the normal working week (based on the minimum wage)
3 - 2 - Details in a Contract - Following are six other points that must be agreed by both parties to the employment contract. Your rate of pay per hour during the normal working week. It can t be less than $10.70 per hour. Your rate of pay per hour outside the normal working week. It does not have to be any different from your rate of pay during the normal working week, but must be not less than $16.05 an hour (based on the minimum wage). Your working hours each week. These can be whatever you and your employer agree on, within certain limits - (a) time worked above 8 hours in any day, or any time worked on more than 40 hours in a week, has to be paid for at no less than $16.05 an hour; (b) no less than once each week, you must be allowed a rest period of at least 24 continuous hours; and (c) if you have agreed to work more than 8 hours a day, or more than 40 hours in the week, you can change your mind and withdraw that part of your agreement by giving your employer at least 7 days written notice, and your employer must accept this change and revise your working hours. The Contract says whether you agree to work on some or all public holidays, and if you do, what the rate of pay is to be. The rate of pay must be double your normal hourly rate of pay or you must get your normal rate and be given another day off with pay. Sick leave and your yearly holiday break. In a year you must be allowed sick leave of the number of days that you would work in an ordinary working week at normal pay. If you don t get sick, and don t use your sick leave it may or may not accrue from year to year, depending on what you and your employer agree on in the Contract. You get three ordinary working weeks off for holiday breaks for each 12 months of continuous service. You can take these at any time agreed on with your employer but there may be some times of the year, specified in the Contract, when holidays are not to be taken. If you don t take your holiday breaks, your entitlements accrue for at least two years - longer, if you and your employer agree on this. When you take your holidays, your employer must pay your holiday pay in advance if you ask for it. Payment for the leave period is calculated on the basis of six percent of the employee s total earnings during the year. When you leave your job, you must be paid for accrued holiday time you have not taken. Notice of termination. If you wish to resign or your employer wishes to dismiss you, the Employment Act requires that at least 7 days written notice be given. If you and your employer both prefer some longer notice, write it in the contract. If you are Under 18 - The minimum wages for people under 18 are less than those shown above. Under 16, the minimum is 75% of the minimum hourly rate ($8.03 per hour). Under 17 years, the minimum is 82.5% of the minimum hourly rate ($8.83 per hour). Under 18 years, the minimum is 91% of the minimum hourly rate ($9.74 per hour)
4 - 3 - People under 15 are not allowed to be employed more than 20 hours a week, and may not be employed between 11.00pm and 6.30am or at any time when they are supposed to be at school. Apart from those restrictions, the requirements of the Employment Act do not apply to youngsters under 15 unless they are employed for more than 3 hours on any one day. Why the Contract is Important - Norfolk Island s Employment Act was passed by the Norfolk Island Legislative Assembly only after several years of study and discussion with both employers and employees. Employment relations on Norfolk were generally good, but problems and disagreements did occur sometimes. Most of these problems occurred for people on Temporary Entry Permits - and occurred because the employer and the employee had different ideas about what was fair. The purpose of a written contract is to set down clearly what the employer expects, and what the employee agrees to do. There should be fewer disagreements about what is Fair later on, when the Contract sets it out in black and white. If your Agreement Changes - Times change, people change, and job requirements and rewards change. If this happens in your job, work out a new, different contract with your employer. The new contract must meet all the minimum standards required by the law and be approved, just as your original contract did. ON THE JOB: Your employer s duties to you Your employer has a legal duty to live up to everything agreed to in your contract. If room or board is included in your contract, your employer may deduct the agreed value of it from your wages, provided you both agree to this in the contract. But nothing else is allowed to be deducted from your wages unless agreed and specified in the contract of employment. There is no pay-as-you-earn tax deduction on Norfolk Island. (Bear in mind though, that you will need to pay the Norfolk Island Government some charges and levies, such as a fee for issuing a Temporary Entry Permit, and the twice-yearly Norfolk Island Healthcare Levy, which insures you against catastrophic medical costs). If there is any other agreed entitlements between both parties it should be stated in the contract of employment (e.g. Airfares, rent or study allowance). Your employer is required to pay the full workers compensation insurance levy covering you on the job. The employer also has a duty to provide you with a working environment that is safe and without risk to your health, and to provide you, without any charge, with any required safety equipment and clothing. Under the Employment Act victimisation is prohibited. This means that you can decline to work overtime if you do not want to (but if you have agreed to do so, in your contract, you must give 7 days written notice of the change); you can lodge complaints (refer to If things go wrong, further in this document; you can commence legal proceedings under the Employment Act; and you can give evidence or provide information in connection with someone else s legal proceedings under
5 - 4 - the Act; - and your employer is prohibited from dismissing you or penalising you in any way because of this. The Employment Act has no provisions governing unions or employer organisations, but prohibits employers from victimising an employee because of activity in connection with any employee organisation, and prohibits employees from victimising an employer because of activity in connection with any employer s organisation. ON THE JOB: Your duties to your employer The most important duty of an employee to any employer - giving a fair value of work in return for fair pay and benefits - is not covered by the Employment Act. That is between you and your employer. But the Act does put some duties on you. Following are the four main duties; You are to be honest in your employment. You are not to be absent from duty during working hours, except for reasonable cause. You are to carry out, and have regard to, any reasonable direction that your employer gives you. You are not to be under the influence of liquor or a drug while on duty or when reporting for duty. If you break any of those four main rules, your employer can dismiss you on the spot, without notice. If you decide to quit, you have a duty to give your employer at least 7 days notice - longer, if you have agreed to a longer notice period on your contract. You have a duty, so far as is practicable, to take care for your own safety and health at work; to take care for the health and safety of anyone else who may be affected by what you do or don t do; and to take care of any safety equipment, special clothing, or uniforms issued to you. If you are sick and can t work, you have a duty to let your employer know as soon as practicable. If the illness keeps you off work longer than one day, you have a duty to check with a doctor and provide a medical certificate to your employer. In addition to the duties just mentioned, you and your employer may agree on other duties, and write them into the contract. It is a courtesy for on-call workers to advise employers of unavailability.
6 - 5 - IF THINGS GO WRONG The Employment Conciliation Board - How it can help you The Employment Conciliation Board sounds very formal - but relax, it is more like having an experienced, impartial adviser you can talk to if you have a problem with your employer and don t know quite what to do about it. There are three Norfolk residents appointed to be members of the Board. They are chosen because they have a good understanding of how employers and employees get on together, without being biased for or against either employees or employers. Any one of them can act as the Board in considering a complaint raised by an employee about his employer - or a complaint raised by an employer about an employee. When you hear the word Board you may think of a place like a courtroom, with people sitting like judges up behind a bench. It s not like that at all. If you have a complaint about your job, you simply phone up, or go and see, any member of the Board, and say what s worrying you. To find out who is on the Board, ring the Norfolk Island Administration on extension 3 and ask to speak to the Employment Liaison Officer. The Officer will give you the name and phone number of the Board s chairman or other members. The Board s job is to consider such complaints, and see if they can be sorted out in a co-operative way. The Board member will talk with you, and probably talk with your employer - perhaps only on the phone. The Board member may ask to sit down with you and your employer to talk about the problem. In discussions with the Board, neither you nor your employer is allowed to be represented by a lawyer, you speak for yourselves. The Board does not have any power to issue orders to anyone. It only has power to try to work problems out in an amicable way, if that can be done. If that works, all well and good. After it has done all it can, the Board issues a Certificate of Result which states the result and any recommendations of the Board. If you are not satisfied and want to carry your complaint further, the Employment Tribunal will hear your case, and it can give orders. A section later in this document tells you more about the Employment Tribunal, and how it works. The Employment Tribunal will not consider a complaint unless you have tried conciliation first and have a Certificate of Result showing that you did. If you do raise a complaint with a member of the Employment Board, your contract of employment will be important. The Board member will probably want to see it, and see exactly what you and your employer have agreed in writing. If the problem you are complaining about is obviously contrary to your contract, the Board member may be able to get it set right very quickly.
7 - 6 - If your employer doesn t keep the bargain Your contract of employment is enforceable and an employer has to live up to it. If you think your employer is failing to keep some promise that was not set out in your contract, that s different. It may be that the Employment Board can help you in such a situation but don t count on it. There may be some aspect of your bargain that is important to you, but is not mentioned in your contract - an understanding about return airfares, for example, or about a pay rise after a certain period. When you are first signing your contract, ask your employer to write any such things in, on the back of the contract form, where there is space for them. If unreasonable demands are made on you Use your common sense, and try to be fair. The boss may be having a bad day, or may be out-ofsorts about something else. Doing some disagreeable assignments is part of almost everybody s work, including the boss s. But if you are given an unreasonable order that really does seem right outside the job you are hired to do, there is nothing wrong in saying so - in a courteous way. If you get sacked or laid off Unless you have an employment contract that guarantees you some minimum period of employment (which is unusual) there is nothing in Norfolk Island law that prevents your employer from giving you notice of dismissal. An employer does not have to give any reason, and does not have to have just cause for ending your employment. However the employer does have to give the amount of notice specified in your contract, and does have to pay you fully for your time and any accrued holiday time you have coming. If you have an accident at work Employees are covered by the Norfolk Island Workers Compensation, which every employer is required to finance at the employer s expense. The Workers Compensation scheme is administered by the Norfolk Island Administration. Briefly, it works as follows. First, note that the scheme covers you only for work-related accidents, disease or disability. That does not include accidents that happen while you are off duty, or while you are on your way to or from work. Nor does it include coverage if you injure yourself intentionally, or if you are incapacitated because of your own serious misconduct, such as being drunk or on drugs. Second, note that the scheme replaces (and eliminates) the old system of taking your employer to court, and suing for damages. It is not necessary to prove that the employer was negligent in any way. Even if there was negligence, your compensation is determined through the workers compensation scheme, not through seeking damages. The amount of compensation depends on how serious the injury or incapacity is. If you are laid up, you continue receiving your usual pay for at least 5 days from your employer. After that, the scheme will continue to pay you up to the maximum allowed under legislation (up to a maximum of 2 years). Your medical expenses on Norfolk Island are covered, and so are overseas transport and medical expenses if the Government Medical Officer refers you offshore for medical treatment.
8 - 7 - If you are permanently disabled, partly or fully, you are also compensated by a lump sum payment according to the degree of disablement. If the accident is fatal, or you are completely and permanently disabled, the sum is currently $198, This amount is indexed with RPI movements. Part 3 of The Employment Act specifies in full detail how the scheme operates. This summary is meant only to give you a general idea. If you should be unfortunate enough to have a serious work-related accident or disease, you should contact the Employment Liaison Officer of the Norfolk Island Administration to discuss your coverage. If you are ill and can t work If you aren t able to report for work let your employer know right away. If you aren t fit to resume work the very next day, ring the Norfolk Island Hospital to see one of the doctors, and in addition to getting treatment if you need it, get a certificate from the doctor to give your employer. Bear in mind that you may be able to do some of your work, if not all, despite an illness or health difficulty. If you ve sprained your ankle it may be impossible for you to be on your feet all day as a shop assistant - but your employer may be glad to have you come to work and sit at a desk, instead, answering the telephone, for example. If you decide to quit The period of notice agreed on in your contract applies to both you and your employer. If you decide to quit your job, give your employer at least as much notice - in writing - as your contract specifies. If you quit without giving notice, you can be docked at least 7 days pay. Your employer must pay you any back wages due, and unused holiday time earned. Assuming you and your employer part company on good terms with each other, it s a good idea to ask for a letter of reference before you leave. It may be valuable to you in getting future jobs elsewhere. The Employment Tribunal If an employee and employer are in dispute, and efforts of he Employment Conciliation Board have failed to bring about an acceptable settlement, the dispute can be taken to the Employment Tribunal. The Employment Tribunal is made up of the same magistrates that compose the Norfolk Island Court of Petty Sessions, but operates under different rules. It is required to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. It was designed with the aim of bringing prompt, fair outcome to such disputes. In passing the Employment Act, the Norfolk Island Legislative Assembly believed that promptness in such settlements was particularly important for the protection of employees who have been working on Norfolk Island as Temporary Entry Permit holders, who may not be in a position to wait for the period of weeks or months that ordinary court hearings can take. If a complaint is about a matter with less than $1,000 of value, lawyers cannot be used to represent either the employer or the employee, who must speak for themselves.
9 - 8 - The Tribunal has the power to order someone to do anything required by the Employment Act; or to stop doing anything prohibited by the Act; or to comply with a contract of employment; or to pay money that is due, under the Act or under a contract of employment. * * * * * * * * * * * * *