Senators and Members should note that ‘trainees’ are usually employees at law, and in certain circumstances, even ‘work experience students’ may legally be employees. Trainees and work experience students are classified as ‘workers’ under the Work Health and Safety Act 2011.1 Senators and Members need to be alert to their own responsibilities when engaging such workers or participating in training schemes. A Senator or Member who is considering participating in a training scheme should seek advice from the relevant Ministerial and Parliamentary Services Entitlements Manager.
Employees under the Members of Parliament (Staff) Act 1984 are engaged by Senators and Members on behalf of the Commonwealth and are Commonwealth employees.2 If an employee is employed by a Senator or Member other than under the employment framework approved by the Government under the Act, then it is the individual Senator or Member, rather than the Commonwealth, who is the employer.
As an employer, a Senator or Member is responsible for an employee’s remuneration, superannuation and taxation arrangements, and other employment matters including, but not limited to, long service leave, maternity leave, workers’ compensation and work health and safety, and will usually be liable for the employee’s actions. In these circumstances, State or Territory legislation and relevant industrial instruments may apply, rather than Commonwealth legislation. Legal advice regarding such matters should be sought from a Senator or Member’s own legal adviser.
Senators and Members should also be aware of the constitutional limitations which affect them as Members of Parliament, but which do not apply to other employers. For example, the Commonwealth has schemes in place to encourage employment of certain classes of employees, by providing benefits to employers of those employees. Care should be exercised when seeking to employ someone under such a scheme as receipt of benefits by Senators and Members under these schemes may contravene section 44(v) of the Constitution. Senators and Members should seek their own legal advice about these issues.
Note, however, that the Commonwealth may still have a liability as an occupier of a Senator or Member’s electorate office (which the Commonwealth leases on the Senator or Member’s behalf) or other Commonwealth premises in respect of employees engaged personally by a Senator or Member. As an occupier of these premises, the Commonwealth has a responsibility to ensure that the premises are safe for visitors and employees.3
The Australian Taxation Office has indicated in Taxation Ruling 1999/10 (Income tax and fringe benefits tax: Members of Parliament – allowances, reimbursements, donations and gifts, benefits, deductions and recoupments) that a:
… deduction is allowable for the cost of wages paid for services rendered to assist a Member to carry out his or her work-related activities, provided the expenditure is not private or domestic in nature.4
This means that Senators and Members may claim tax deductibility for expenditure of the electorate allowance on the employment of additional employees, including trainees. However, any trainee employed in this way would still be employed by the Senator or Member, not the Commonwealth.5
A Senator or Member may, on occasions, consider employing a minor. A ‘minor’ is a person under the age of majority (set by legislation at 18 years of age in all Australian States and Territories).6
Caution is urged with regard to employing minors because, depending on the jurisdiction in which the employment agreement is signed, the agreement may not be binding (on either the minor who has been employed, or the Commonwealth as employer, or may bind the employer but could not be enforced against the minor). In addition, there may be additional obligations imposed on an employer of a child or young person. All Australian States and Territories have legislation dealing with the employment of minors.7
When considering employing a minor, Senators and Members should be mindful of their responsibilities in engaging employees, and of the responsibilities of an employee and the capability of a minor to fulfil such responsibilities. A Senator or Member who is considering employing a minor should seek advice from the relevant Ministerial and Parliamentary Services Entitlements Manager.
1 Section 7 of the Work Health and Safety Act 2011.
2 See, for example, section 20 of the MOP(S) Act.
3 See, for example, the Work Health and Safety Act 2011.
4 Paragraphs 29 and 344 of Taxation Ruling TR 1999/10.
5 Paragraphs 344-345 of Taxation Ruling TR 1999/10.
6 See, for example, the Age of Majority Act 1977 (Vic) and the Age of Majority Act 1982 (WA).
7 See, for example, the Children and Young People Act (ACT) and the Child Employment Act 2006.