Non-Constitutional Corporations

As a result of the State Government referring their industrial relations powers to the Commonwealth, from 1 January 2010 all Non-Constitutional Corporations are operating in the Federal jurisdiction. A transitional period of twelve months applies in order to assist Non-Constitutional Corporations transition from the State Award into the Hospitality Industry (General) Award 2010 (the ‘HIGA’).

All other provisions contained in the Fair Work Act 2009 apply immediately from 1 January 2010, including:

• Unfair dismissal and unlawful termination,
• Agreement making,
• The National Employment Standards (the ‘NES’), and
• The 2010 Federal wage increases.

Until 31 December 2010, Non-Constitutional Corporations continue to apply the terms and conditions of the State Hotels, Clubs Etc. Award and the Clerks (Clubs, Hotels and Motels) Award. As a result, members can continue paying the same base rates of pay and penalties to staff covered by these Awards for twelve months.

However, from 1 January 2010 management staff who were being covered by the transitional Liquor and Accommodation Industry – Hotels, Resorts and Gaming – (Managerial Staff) Award 2003 are now covered by the Hospitality Industry (General) Award 2010. Whilst the change in award coverage will not affect the salary payable to these staff, the administrative provisions contained in the Hospitality Industry (General) Award 2010 (e.g. termination of employment, superannuation) are different to those contained in the transitional award.

From 1 January 2011, Non-Constitutional Corporations will be required to apply the Hospitality Industry (General) Award 2010 for all staff.

Both the HIGA and the State awards must be read in conjunction with the National Employment Standards (the ‘NES’). However, staff must not be disadvantaged by the application of the NES. Therefore, where these staff were previously covered by a more generous standard (eg. credit of 10 days of sick leave on anniversary date each year), that will continue to apply over and above the NES.

For more information about the impact of the HIGA or the NES on your hotel please contact the HR/IR Team on (08) 8232 4525.