EMPLOYMENT

Discrimination

Discrimination in the workplace is discussed in the ‘Discrimination' chapter.

 

Conditions of employment

All employees in Victoria are entitled to the minimum conditions set out in the Australian Fair Pay and Conditions Standard in Part 7 of the Workplace Relations Act 1996 (Cth). Most employees are also covered by a federal award, which contains additional entitlements. Employees may get further benefits from a collective agreement that a union or group of employees has negotiated on your behalf. Check both your award and any relevant agreement to work out your entitlements.

The Federal Government's new 'Workchoices' legislation aims to promote more negotiation of conditions at an individual workplace level.  However it is important to remember that any individual agreement that you are offered may take away some or most of the rights that you are otherwise entitled to. It is illegal for an employer to sack you for refusing to sign an individual agreement or to pressure you into signing one.

Some workplaces have much better agreements than others and do recognise same-sex relationships.  If an employer offers you an individual agreement, you have the right to negotiate the terms of that agreement.

For more information contact Job Watch on 9662 1933, your union or the Victorian Workplace Rights Advocate on 1300 882 648.

 

Employee benefits

Leave is a core entitlement of employees. Gay and lesbian employees do not always get the same benefits as other employees.

  • Parental leave - any woman who gives birth to a child is entitled to maternity leave, but her same-sex partner is not usually entitled to ‘paternity' leave.
  • Personal/carer's leave - the Australian Fair Pay and Conditions Standard  provides for personal leave to care for sick family members, i.e. immediate family and household members (not housemates), but this excludes same-sex partners.  Employees covered by an agreement may benefit from non-discriminatory entitlements which give access to personal leave to care for a same-sex partner.
  • Bereavement/compassionate leave - under federal awards or the Workplace Relations Act gay men and lesbians are not entitled to special leave on the death of a same-sex partner. However, the relevant collective agreement or individual agreement may allow for this.

Some jobs carry other benefits, such as relocation expenses, travel for spouses or health insurance for family members. These extra benefits are not included in awards and they vary from job to job. You may be able to negotiate these conditions. If you are covered by an award, you should ask about your entitlements.

These may be more generous than you expect. Many unions are renegotiating collective agreements to remove discriminatory provisions and provide better conditions for lesbian and gay employees.

 

Where to get help

Trades Hall Council

Women's and Equity Officer

9659 3511

www.vthc.org.au

EMPLOYMENT

Discrimination

Discrimination in the workplace is discussed on p.12.

 

Conditions of employment

Most employees in Victoria are entitled to the minimum conditions set out in the federal award that covers their occupation. They may get extra benefits from an enterprise agreement. Check both your award and any relevant agreement or individual contract to work out your entitlements.

Some workplaces have much better agreements than others and do recognise same-sex relationships. About 20% of the Victorian workforce is not covered by an award. They get the minimum conditions set out in Schedule 1A of the Workplace Relations Act 1996 (Cth) - these are less favourable than those set out in federal awards.

After negotiations between the State and federal governments, new legislation was passed in 2003 to give these workers the same minimum conditions as those on federal awards. From 1 January 2005 most federal awards will be declared Common Rule Awards which means that they will cover all employees in a particular industry.

For more information about this contact Job Watch on 9662 1933, your union or WorkChoices Infoline on 1300 363 264.  

 

Employee benefits

Leave is a core entitlement of employees. Gay and lesbian employees do not always get the same benefits as other employees.

  • Parental leave - any woman who gives birth to a child is entitled to maternity leave, but her same-sex partner is not usually entitled to ‘paternity' leave.
  • Personal/carer's leave - all federal awards provide for personal leave to care for sick family members, i.e. immediate family and household members (but not housemates) - this specifically includes same-sex partners. Employees not covered by a federal award (see above) are not entitled to this leave.
  • Bereavement/compassionate leave - gay men and lesbians are not entitled to special leave on the death of a same-sex partner, under federal awards or the Workplace Relations Act. However, the relevant enterprise agreement or individual contract may allow for this.

Some jobs carry other benefits, such as relocation expenses, travel for spouses or health insurance for family members. These extra benefits are not included in awards and they vary from job to job. You may be able to negotiate these conditions.  If you are covered by an award, you should ask about your entitlements.

These may be more generous than you expect. Many unions are in the process of renegotiating awards or enterprise agreements to remove discriminatory provisions and provide better conditions for lesbian and gay employees.

 

Where to get help

Trades Hall Council

Women's and Equity Officer

9659 3511

UNITE

support and resources for gay, lesbian,

bisexual or transgender union members

9659 3511

 

SUPERANNUATION

Superannuation is controlled by federal legislation, although state public sector superannuation schemes are often also controlled by their own separate Victorian Acts (see below for Victorian reforms).

 

What superannuation death benefits can be paid?

Most superannuation funds pay lump sums on a member's death. However, some funds pay annuities and others, such as government funds, pay ‘reversionary' pensions to surviving dependants.

 

Who can benefit from your super?

The only people who can receive money from your super after you die are:

  • your spouse (a legal or de facto spouse of the opposite sex only)
  • your children, including step-children and adopted children, but not the children of your same-sex partner
  • someone who was financially dependent upon you at the time of your death
  • your nominated preferred beneficiary (restrictions apply, see below)
  • your estate or
  • depending on the kind of superannuation fund you are a member of, someone who is deemed to be in an ‘interdependency' relationship with you (see below).

In practice, this means that your same-sex partner can receive a payment from your super fund when you die if:

  •  
    • they qualify as having been in an ‘interdependency' relationship with you and your fund's governing rules allow payment of a death benefit to an interdependent, OR
    • they were financially dependent upon you at the time of your death, OR 
    • they inherit from your estate, provided you have made a Will

 

What is an interdependency relationship?

Since 1 July 2004 the definition of ‘dependant' in federal superannuation laws has extended to include a person who is in an ‘interdependency' relationship with the fund member. An interdependency relationship is a relationship between two people, including same-sex partners. In order for you to prove interdependency with a same-sex partner you must meet the following criteria:

  • you have a close personal relationship
  • you live together
  • one or each of you provides the other with financial support and
  • one or each of you provides the other with domestic support or personal care.

An exception to the living together requirement is if one or both parties suffer from a physical, intellectual or psychiatric disability.

This reform means that more same-sex partners are guaranteed to benefit from their partner's superannuation if the partner dies.

However this change to the law does not mean same-sex partners are treated as being in the same category of relationship as heterosexual de facto or married couples. More complex evidence is required to prove the existence of an ‘interdependency' relationship, so it is harder to prove the existence of a same-sex relationship than an equivalent heterosexual relationship.

It is important to note that payment of a death benefit on the basis of interdependency is currently not available in respect of benefits paid from Commonwealth public sector superannuation schemes such as the PSS and the CSS.

Also, same-sex couples may be recognised as beneficiaries but do not qualify for the same incentives available to ‘spouses', such as superannuation co-contributions.

Who is a financial dependant?

If you do not qualify as having an interdependency relationship, whether your superannuation fund will pay your death benefit to your same-sex partner depends on how the fund trustees assess ‘financial dependence'.

Financially dependent means wholly or partly dependent. Every case is different and each fund has its own way of working out whether financial dependence exists. Some funds are satisfied with an extremely low level of dependence. For example, in one case the payment of $30 a week for board was enough for a finding that partial dependence existed.

Most of the big industry funds adopt a sympathetic and sensible approach to death benefit claims. Note that even if the fund trustees accept your same-sex partner as a ‘dependant', other dependants, such as a former spouse or children, may also be entitled to claim some or all of the death benefit. Most reversionary pensions (such as Commonwealth government employee schemes) are only payable to surviving heterosexual spouses or children.

 

Good news for Victorian public sector employees

Legislative changes to a number of Victorian public sector superannuation schemes mean that your same-sex ‘domestic partner' can benefit from your superannuation when you die, provided you were living together as a couple on a genuine domestic basis at that time. This is because, like a spouse, your partner is automatically considered to be your dependant, and no longer has to prove financial dependence. The changes affect members of the State Employees Retirement Benefits and the State Superannuation Schemes and of the schemes of the Country Fire Authority, the State Emergency Services, Parliament, and Transport services.

 

Status of your ‘nominated preferred beneficiary'

You can normally nominate one or more preferred beneficiaries when joining your super fund. You can change these nominees at any time by writing to your fund. However, this is not necessarily binding on fund trustees. It depends on which fund you belong to.

Additionally, where binding nominations are available, in order for your nomination to be binding on the trustee of your super fund, you need to:

  • have nominated your legal personal representative (i.e. the executor of your estate), and/or someone who qualifies as your dependant
  • ensure the proportion of benefit payable to them is certain or is clear from the notice
  • make the notice in writing and sign and date it in the presence of two witnesses.

There are a number of nomination and reporting requirements for binding nominations. Funds that agree to be bound by a member's nomination must follow the member's wishes even if there are competing claims from other non-nominated dependants, such as a former spouse. However, not many superannuation funds have adopted binding death benefit nominations - you can contact your fund and ask.

In funds where the trustees are not bound by a member's binding nominations, the trustees have a discretion as to whom to pay the benefit, although they may take the member's nominations into account in exercising this discretion.

Taxation

Superannuation death benefits paid to a deceased's dependants or trustee of the trust estate are tax-free up to a certain limit. For the 2006-7 financial year those limits are $678,149 for lump sum benefits and $1,356,291 for pension benefits. Death benefits paid to non-dependants (e.g. estate beneficiaries) are taxed at either 15% or 30% depending on whether they are made up of ‘taxed' or ‘untaxed' elements

Therefore there can be significant tax savings if your surviving same-sex partner is recognised as a dependant (whether as a financial dependant or as having had an interdependency relationship), rather than inheriting your superannuation through your estate.

What to do

  • Nominate your same-sex-partner as your beneficiary if you wish to maximise their chances of receiving benefits payable from your super fund upon your death.
  • Write to your fund to find out if they offer binding death benefit nominations.
  • Update your nomination and your Will to reflect any changes in your circumstances.
  • Get financial advice on the implications for your partner of choosing between a once-off lump-sum and a pension on retirement and also the taxation implications of a death benefit pay-out.
  • If you are able to choose which super fund you join, shop around and find out which funds will treat your nomination of beneficiaries as binding. You may also wish to consider which funds take the broadest view of the meaning of ‘financial dependant' (although this information may not be readily available).

 

Where to get help

ATO Super Helpline

Tel 13 10 20

www.ato.gov.au/super

 

Superannuation Complaints Tribunal

The tribunal deals with complaints from superannuation fund members or beneficiaries about unfair or unreasonable conduct or decisions made by the fund's trustee. The tribunal has a requirement that you try and resolve any complaint with the fund or its trustees prior to lodging a complaint.

For more information, call 1300 780 808.

www.sct.gov.au

 

TAXATION

Income taxation is covered by federal law. Taxation legislation does not recognise or provide benefits to lesbian or gay couples.

Tax legislation takes a very narrow view in regards to tax benefits being available only to ‘spouses'. This includes both married and de-facto relationships between a man and a woman. The Commissioner of Taxation has taken a strict approach in defining ‘spouse', thus excluding same-sex couples from any taxation benefit available to heterosexual couples.

Examples of tax concessions that are denied to same-sex couples include concessions for dependent spouse superannuation contributions, pooling medical expenses and the dependant spouse offset.

SOCIAL SECURITY

Under the Social Security Act 1991 (Cth), which is a federal law, a ‘couple' means people of the opposite sex who are married or in a marriage-like relationship.

 

This means that your same-sex partner's income isn't taken into account by Centrelink when calculating your benefits. A young person under the age of 16 is considered the dependent child of an adult who is responsible for their day-to-day care and welfare. In some cases a non-biological parent who has children living with them can get a supporting parent benefit. When you lodge your application you will be asked to provide details of your relationship with the child and you may be asked for supporting documentation.

Each case is assessed on its merits. If you are a student, you cannot prove ‘independence' for Austudy by living in a same-sex relationship, unlike a heterosexual couple can.

 

Where to get help

Welfare Rights Unit Inc., Victoria

Tel 9416 1111

www.welfarerights.org.au

Victoria Legal Aid,

Human Rights and Civil Law Service

9269 0416 or 1800 677 402

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