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WORKPLACE
RELATIONS & SAFETY |
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The Fair Work Act 2009: are you
prepared to be Fair? 24 June
2009 |
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The first
substantive provisions of the Fair Work Act 2009 (Cth) (FW Act)
commences operation in a matter of days, 1 July 2009. On that date operative
parts of the Workplace Relations Act 1996 (Cth) (WR Act) will
be repealed and replaced by the new FW Act provisions. Some of the
key areas which will change on 1July 2009 are: Unfair
Dismissal The “100 or
fewer employees” exemption under the WR Act has been reduced to 15 employees.
This will result in many employees of small to medium sized businesses, who
were previously excluded from being able to challenge the fairness of
their dismissal, now having increased rights with respect to this issue. The “genuine
operational reasons” exemption has also been removed and replaced by a
narrower exemption restricted to cases of “genuine redundancy”. As a result of
these changes, employers need to reassess their dismissal practices or risk
increased exposure to unfair dismissal claims. The FW Act
removes the ability for an employer and employee to enter into an individual
statutory agreement. Enterprise
Agreements (either single employer or multi-enterprise agreements) covering a
class or classes of employees are intended to become the primary industrial
agreement under the FW Act. The FW Act
permits a broader range of matters to be included in Enterprise Agreements
with the concept of “prohibited content” to be replaced by the requirement
that the content of Agreements must pertain to the employment relationship or
the relationship between the employer and a union. The “No
Disadvantage Test” will be replaced by the “Better Off Overall Test”. Good Faith
Bargaining The FW Act
contains comprehensive provisions requiring employers and unions to bargain
in good faith. The
good faith bargaining requirements requires parties to: § attend and participate in meetings at
reasonable times; § disclose relevant information in a timely
matter (although commercial in confidence material will be protected); § respond in a timely matter to proposals made
by the other party; § give genuine consideration to other parties’
needs and providing reasons for responses, and § refrain from capricious or unfair conduct
which undermines freedom of association or collective bargaining. A party will
be able to seek a ‘bargaining order’ if the provisions are not being followed
during the bargaining process. Industrial
Action For those
employers who are familiar with the WR Act, the provisions in the FW Act are
not substantially different. However, the
FW Act does introduce new concepts of ‘employer response action’ and
‘employee response action’ which may be initiated in response to industrial
action taken by the other party. The
requirement to deduct a minimum of four hours pay from employees engaged in
unprotected industrial action has been removed and replaced by a complicated
formula for proportional deduction. Right of
Entry The right of
entry provisions have been broadened, but in practice may reflect minimal
change to employers who are use to the current regime. Union officials will
be entitled to enter an employer’s premises to investigate a breach of the FW
Act, industrial instrument, or occupational health and safety legislation,
and may hold discussions and inspect documents. Additionally,
under the FW Act: § unions can enter workplaces to hold
discussions with employees simply on the basis that their own registered
rules provide they are able to represent the employees (rather than because
they have employee members); § unions cannot be “locked out” by non-union
agreements such as employee collective agreements or AWA’s; and § more than one union may use the right of
entry laws for the same group of employees. Transfer of
Business The current
transmission of business rules will be replaced on 1 July 2009 by “transfer
of business” provisions. The administrative requirements on employers will be
reduced, however the new provisions are broader and will apply to the
transfer of staff between related companies. General
Protections The FW Act
introduces the concept of “adverse action” which prohibits the injuring, or
discriminating against an employee during his or her employment because the
employee is entitled to a benefit under law or industrial instrument. These new
protections will become relevant to the promotion, demotion and transfer of
staff and will enable employees to bring action against employers whilst the
employment relationship is ongoing. As such, the new protections should be
closely considered by employers. The other main
provisions of the FW Act, such as Modern Awards and the National Employment
Standards will commence on 1 January 2010. |
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If you have
any questions, please contact one of our partners named below. |
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Bryan Belling |
Seamus Burke |
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(02) 9334 8540 |
(02) 9334 8678 |
(02) 9334 8842 |
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Anthony Lawrence |
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(03) 8637 7431 |
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If you do not
wish to receive further e-Alerts from our Workplace Relations & Safety
Group, please reply ‘remove’ to this email. |
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hwlebsworth.com.au |
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