The Fair Work Act 2009 is the key legislative instrument regulating employment in Australia. There are, however, certain employment-related matters beyond the scope of the Fair Work Act 2009 that continue to be governed at the State and Territory level. Interstate workers should bear in mind that some employment entitlements are not nationally consistent, including workers’ compensation, long service leave and public holidays.
All Australian States and Territories have introduced cross-border workers’ compensation legislation except the Northern Territory. If a worker operates across more than one State or Territory, they are only entitled to workers’ compensation in their ‘state of connection’.
To determine a worker’s state of connection, a series of sequential tests is applied. Temporary working arrangements, involving interstate work for a period of less than six months, will not affect the worker’s state of connection.
The worker’s state of connection is:
Test 1: The State or Territory in which the worker usually works in their employment; or
Test 2: If no State or Territory is identified in Test 1, the State or Territory in which the worker is usually based for the purposes of that employment; or
Test 3: If no State or Territory is identified in Test 1 and Test 2, the State or Territory in which the employer’s principal place of business in Australia is located; or
Test 4: If the worker works on a ship and no State or Territory is identified in Test 1, Test 2 and Test 3, the State or Territory in which the ship most recently became registered; or
Test 5: If no State or Territory is identified in Test 1, Test 2, Test 3 and Test 4 (if applicable), the State or Territory in which the workplace injury occurred.
Long service leave
State and Territory laws are the source of long service leave entitlements, except where the employee would have been covered by a federal pre-modern award containing long service leave entitlements before 1 January 2010.
In the case of an employee who works in multiple States and Territories, the relevant long service leave legislation is generally that of the State or Territory in which they are ordinarily based for work.
If an employment agreement explicitly states that it is governed by the laws of a particular State or Territory, it is arguable that the long service leave legislation of that State or Territory applies to the employee regardless of where they are primarily based for work.
An employee is entitled to public holidays observed in the State or Territory that is their base of employment. If an employee is working interstate on a day that is a public holiday in the State or Territory in which they are primarily based for work, they are entitled to the public holiday entitlements for that day. This remains the case even if it is not a public holiday in the State or Territory where they are physically working on that day.