Private Sector employees are governed by the Employment
Act 1988. The Employment Act generally applies to both permanent residents and
temporary workers.
Who is an Employee
An employee is a person who is hired, for money, to perform work and/or service in Norfolk Island for an employer. But a person who carries on a business or trade is excluded: an electrician or a contract gardener does not become your "employee" just because you are a customer.
Who is an Employer
An employer is anyone (or any organisation) that hires an employee.
A club is an employer if it has a paid part-time manager, or a paid cook, or a paid bartender. A shop proprietor is an employer if he/she hires someone to attend the shop during lunch-hour.
A guest house is an employer if it hires a housekeeper, paying partly in money and partly in "free" room and board.
If the employer is a company, or a group of people, or an overseas resident, "the employer" is taken to be the person on Norfolk Island who is in charge of the operation.
"Permanent" and "Casual" Employee
The distinction between a "permanent" employee and a "casual" employee is mainly the number of hours they work. Most employees who are residents of Norfolk Island do not have contracts for long-term employment, but are nevertheless classed as "permanent" simply because they work more than 20 hours a week for more than 16 weeks in a year.
A "Pprmanent" employee must be given paid public holidays, sick leave, annual leave and notice of termination.
A "casual" employee does not get those benefits, but in place of them is entitled to a 15% higher minimum hourly wage.
To qualify as "casual", an employee’s job must meet three requirements:
1. The job must not last for longer than 16 weeks in any period of 52 weeks.
2. If the job runs for longer than 16 weeks, it must not be for more than 20 hours a week.
3. If there is a signed Contract of Employment, it must state that the employee is "casual".
If a "casual" employee works more than 16 weeks for more than 20 hours per week, the employee immediately becomes a "permanent" employee and from then on is entitled to public holidays, sick leave, annual leave and notice of termination.
Minimum Standards that Must be Met
The Employment Act sets certain minimum standards for employment terms and conditions. As from 1 September, 1991 these minimums have to be met by all employers, regardless of whether a written Contract of Employment is signed with the employee, and regardless of whether the employee is a resident or a permit-holder. Any provision in a contract which falls short of the minimum standards is null and void; the minimums apply.
Rest Period
Every employee must be allowed at least one rest period of 24 consecutive hours off work each week.
"Permanent Employees" - Minimum Entitlements
"Casual Employees" - Minimum Entitlements
Employing Persons Under Age 18
People under age 15 are not allowed to be employed more than 20 hours a week, and may not be employed between 11pm and 6.30am or at any time when they are suppose to be in school. The other requirements of the Employment Act do not apply to under 15s unless they are employed more than 3 hours on any day.
All of the requirements of the Act do apply to any employee who is 15 or older, but the minimum wage levels are scaled down for anyone under 18, e.g.,
Signed Employment Contracts
The purpose of having contracts of employment on Norfolk Island is not to bind either the employer or employee to certain minimum standards: the Employment Act itself does that, regardless of written contracts. The purpose of the contracts is to make sure that employers and employees - particularly new temporary entry permit holders, who may know little of Norfolk Island - have a clear, agreed understanding about what the job terms and conditions are, right at the outset.
Any employee on a temporary entry permit who starts a new job on Norfolk Island is required to have a signed Contract of Employment before starting the job.
Residents and holders of General Entry Permits are not required to have signed contracts, but if they ask for one their employer shall, as soon as practicable, comply with the request.
The Contract form (available from the Administration) reflects the requirements of the Employment Act. Unless the employer and employee agree otherwise, the contract does not specify any long term employment and can be ended by either the employer or the employee on reasonably short notice.
In discussing the details of a job with a prospective employee, it is open to the employer to hand the prospective employee a copy of the contract form with the various proposed details filled in, describing the job that the employer is offering. The details can be talked about, and modified by mutual agreement.
Except for the double-normal-time requirements for work on public holidays, the Employment Act does not require "overtime" penalty rates so long as the minimum wage levels are met. For example, an employee earning a normal pay rate of $12.00 per hour could agree to work as many hours or as many days as wanted at that rate, provided there was at least one 24 hour rest break in the week.
The Employment Act does not specify any particular days of the week, or hours of the days, that are either inside or outside of the "normal" 40 hour working week. That is a matter for the employer and employee to agree on. Weekend or evening work are an accepted part of the normal working week in many tourism industry jobs.
Certificate of Signing
A contract of employment is a private matter between employer and employee, and does not go on file at the Norfolk Island Administration. To confirm that a proper contract has been signed, the employer and employee need to sign a short certificate stating that they have an agreement.
The certificate is in a form available from the Administration. The Immigration Department will normally not issue a Temporary Entry Permit to a proposed employee without a certificate.
If an employer and employee agree in the future to change the terms if an existing signed contract, they can do so by changing and initialling the existing contract or can sign a new contract. There is no need to lodge another certificate unless a Temporary Entry Permit holder changes to a new job with a different employer.
An employee’s Duties to You
It is up to you and your employee to agree on the most important aspects of the employee’s duties - namely, what is a fair day’s work for a fair day’s pay. The Employment Act leaves that to you, but it does put some specific duties on employees. These are:
An employee who breaks any of those four rules may be dismissed at once, without notice.
Other duties of employees are:
The Employer’s Right of Dismissal
An employer’s ultimate right to discipline an employee is the right to dismiss the employee - immediately, if the employee has broken one of the above specific duties to their employer.
If an employee has been dismissed without notice and believes it was not justified, he or she can seek payment of the normal notice time, by talking with the Employment Conciliation Board in the first instance. But if normal notice is given, the Employment Act puts no restriction on the employer’s right to dismiss an employee. No cause has to be given, and the employer’s decision can not be challenged under the Act.
The Employment Tribunal
If an employee and employer are in dispute, and efforts of the 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 who sit in 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 can not be used to represent either the employer or the employee, who must speak for themselves.
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.