NSW Award coverage
NSW awards are common rule awards, which means they bind all employers in an industry or occupation whether or not they were involved in the making of the award. The Area, Incidence and Duration clause in an award sets out the work, occupations, enterprises and industries covered by the particular award. If work performed by an employee is not within the scope of any NSW or Federal award, the worker is considered to be award free.
Award free Employees
If there is no award covering an employee, the employer and employee can mutually agree to the terms and conditions of employment. This agreement forms the contract of employment, which may be verbal or in writing.
A contract of employment cannot override a range of employment conditions provided by NSW laws, such as:
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annual leave, provided under the Annual Holidays Act 1944,
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long service leave, provided under the Long Service Leave Act 1955,
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parental leave, provided under the Industrial Relations Act 1996.
An employer of an award free employee is also required to meet all statutory employment obligations, such as:
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occupational health and safety, under the NSW Occupations Health and Safety Act 2000,
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workers compensation, under the Workers' Compensation Act 1987; and
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employee pay slips and employment records, under the Industrial Relations Act 1996.
Award free employees are also subject to a range of entitlements and responsibilities established by case law (sometimes described as the common law).
If a contract is unfair, harsh, unconscionable, against the public interest or designed to avoid the provisions of an award or agreement, the Industrial Relations Commission of NSW may declare the contract void, vary the contract and award compensation to the aggrieved party.