Industrial Relations, Employment Law and The Fair Work Act
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Industrial Relations, Employment Law
and The Fair Work Act
Australian Lawyers Alliance
National Conference 2009
Presented by Steven Penning, Partner
Accredited Specialist – Employment & Industrial Law
Australian Lawyers Alliance National Conference
1. National Employment Standards
When
• The National Employment Standards (NES)
Who
• National system employees (Section 13)
What
• Minimum standards that apply to all national system employees (Section 61)
Slide 2 Australian Lawyers Alliance National ConferenceHours of Work
• 38 hours plus reasonable additional hours
• Can be averaged out pursuant to the terms of a modern award or enterprise agreement or
over 26 weeks
• Factors relevant to determining reasonable additional hours
Requests for flexible working arrangements
• An employee who is a parent or who has responsibility for a child under school age can
request flexible hours
• Requests in writing with details and reasons
• Employer may refuse on reasonable business grounds
• Only available to full time and part time employees with 12 months’ service and long term
casuals
Slide 3 Australian Lawyers Alliance National ConferenceParental leave
• Entitlement to 12 months unpaid parental leave
• Separate entitlement for each parent
• Employees require 12 months’ service or long term casual
• Additional leave up to 12 months may be requested by one parent who has already taken 12
months leave. May be refused on reasonable business grounds
• 10 weeks notice of intention (or shorter if impracticable) with start and finish date
• Consultation requirement if employer makes decision with significant affect on employee’s
pre-parental leave position
Slide 4 Australian Lawyers Alliance National ConferenceAnnual leave
• Not apply to casuals. Basic entitlement to 4 weeks paid leave; Extra 1 week to continuous
shift workers
• Employer not unreasonably refuse request for paid annual leave
• Employer may direct an employee to take paid annual leave if reasonable
Personal leave
• 10 days paid personal / carer’s leave per annum
• Available if employee unfit to work or to provide care for immediate family or member
household
• 2 days unpaid carer’s leave available per occasion
• 2 days compassionate leave per occasion, unpaid for casuals and paid for other employees
on death or serious illness of immediate family or member household
Slide 5 Australian Lawyers Alliance National ConferenceLong service leave
• Existing long service leave provisions continue
• Development uniform minimum long service leave over time
• Until uniform minimum entitlements are developed entitlements in pre-modernised awards,
NAPSAs and State laws continue
Public holidays
• Employees entitled to be absent from work on public holiday and paid base rate
• Employer may request an employee work public holidays if request reasonable
Slide 6 Australian Lawyers Alliance National ConferenceNotice of termination and redundancy pay
• Notice of termination by employers must now be in writing
• Redundancy pay in workplaces with 15 or more employees
• Definition of redundancy is termination at the employer’s initiative because the employer no
longer requires the job done by the employee to be done by anyone
• Redundancy pay starts at 4 weeks for employee with 12 months’ service, increasing yearly
increments to 16 weeks for 9-10 years’ service and reducing to 12 weeks for 10 or more
years service
Slide 7 Australian Lawyers Alliance National Conference2. Modern Awards
Background developments and timetable
• Australian Industrial Relations Commission undertaken extensive process of consultation,
hearings and submissions
• Modern awards into force on and from 1 January 2010, with transitional arrangements
Award Modernisation – the objective
• Modern awards develop NES minimum standards
• Intended to be simple and easy to understand and promote flexible, efficient work practices
• Intended to be consistent with collective bargaining. Required to be non-discriminatory
Award Modernisation – what it is not
• Not extend award coverage to high income employees, or to managerial and other senior
employees
• Not intended to increase costs for employers or disadvantage employees
• Not override enterprise awards or former state enterprise agreements
Slide 8 Australian Lawyers Alliance National ConferenceTerms that may be included in modern awards
• Minimum wages
• Types of employment and arrangements for when work performed
• Overtime and penalty rates
• Allowances, leave and leave loading
• Superannuation and annualised wage arrangements
• Consultation, dispute resolution and representation
Draft priority modern awards
• Sample priority modern awards considered:
o Clerks – Private Sector Award 2010
o General Retail Industry Award 2010
• Sample awards follow standard format and structure
Slide 9 Australian Lawyers Alliance National ConferencePart 1 – Application and operation clauses
• Award flexibility clause:
o Published standard clause will generally apply; Terms to be varied are specified and
limited
o Strict requirements for genuine agreement and written
o Able to be terminated on four weeks’ notice
o Better off overall test (Boot) applies
Part 2 – Consultation and dispute resolution
• Requirement for consultation after a definite decision made and standard dispute resolution
clause simple and include mediation, conciliation and consent arbitration
Part 3 – Types of employment and termination of employment
• Full-time, part-time and casual employment, plus probation
• General standard 25% loading for casuals
Slide 10 Australian Lawyers Alliance National ConferencePart 4 – Redundancy • Redundancy payment as per the NES in workplaces with 15 or more employees • Transitional period retention of additional redundancy entitlements Part 5 – Minimum Wages • Pay determined by classification structure • Substantial differences between awards reflect industry and traditional industrial regulation • Employers required to advise employees in writing of classification Part 6 – Hours of work • Substantial differences in the spread of ordinary hours between awards and industries • Differing work patterns and roster arrangements • Provision to require reasonable overtime • Awards maintain out of ordinary hours and weekend penalty payments Slide 11 Australian Lawyers Alliance National Conference
Part 7 – Leave and public holiday
• Generally follow the NES; 17.5% annual leave loading preserved
• Differing provisions for directing and taking annual leave
Modern award reviews / variations
• Reviewed 4 years; FWA powers to vary, make or revoke modern awards
• FWA may vary award minimum wages outside 4-year review if variation justified by work
value or otherwise necessary to achieve objective
Concluding comments on Modern Awards
• Substantial and significant rewrite of awards; Award modernisation objectives likely to be
achieved
• Uncertainty about effectiveness of flexibility arrangements; Overall, simpler and clearer
provisions
Slide 12 Australian Lawyers Alliance National Conference3. Unfair dismissal claims
FW Act (1 July 2009 onwards, with some changes commencing on 1 January 2010)
Unfair dismissal
• FW Act restores employee access to unfair dismissal abolishes “100 or fewer employees”
exclusion
• Abolishes the “genuine operational reasons” exclusion, but there is “genuine redundancy”
exclusion
• Categories of employees prevented from unfair dismissal claim:
o employees of businesses (15 or more employees) not completed six months service,
o employees of small businesses (fewer than 15 employees) not completed 12 months
service, and
o non-award and non-agreement employees earning more than the high-income
threshold
• The FW Act reduces the time limit for bringing an unfair dismissal claim from 21 days to 14
days
Unlawful termination
• The right of Australian employees to bring unlawful termination claims on a prohibited
ground claim has been maintained
Slide 13 Australian Lawyers Alliance National Conference4. New Adverse Action Protections
• New provisions of the FW Act significantly expand protection of “workplace rights”
• Unlawful to take “adverse action” against another person because the person:
o has a workplace right, or
o proposes to exercise the right, or
o to prevent a person exercising the right, or
o if the person has exercised the right
• Civil remedy provision. Proceedings to enforce remedy, including injunctive relief, taken in
Federal Court or Federal Magistrates Court
Meaning of Workplace Right
• Workplace rights broad meaning (s341) and include:
o person is entitled to a benefit under a workplace law or workplace instrument.
Slide 14 Australian Lawyers Alliance National Conferenceo person (employee) “is able to make a complaint or inquiry in relation to his or her
employment”
o the section potentially provides protection for employees suffering bullying,
discrimination and victimisation
Meaning of Adverse Action
• “Adverse action” by an employer against an employee includes:
o altering the position of an employee to his or her prejudice,
o discrimination between employees,
o injuring the employee in employment, including dismissal (s342(1))
Slide 15 Australian Lawyers Alliance National Conference• Workplace rights protections available to:
o independent contractors to prevent “sham contracting”,
o members and officers of industrial associations
• FW Act prohibits coercion of third party to prevent person exercising a workplace right.
• FW Act provides an employer not exercise “undue influence or undue pressure” on an
employee to make particular workplace arrangements and not make a misleading
representation about workplace rights
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