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10 Features
of the New System That Apply to Employers From Today
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With key provisions of the Fair Work Act 2009 ("FW Act")
commencing TODAY, below are 10 features of the new workplace
relations system which now apply to employers:
1. "Genuine
Redundancy": The FW Act dispenses with the
"genuine operational reasons" exemption to unfair
dismissal. In situations of "genuine redundancy"
employers are now required to comply with consultation obligations
and a requirement to consider redeployment opportunities;
2. New time
limit for bringing unfair dismissal claims: The new
time limit for bringing an unfair dismissal claim is now 14 days from
the date of termination;
3. New
"small business" definition: From
today to 31 December 2010, the definition of a small business
employer for the purpose of exemption from Unfair Dismissal is an
employer with less than 15 employees on a "full time equivalent
basis". This is a significant change from the
previous system which excluded any business with less than 100
employees from bringing an unfair dismissal claim;
4. Small
Business Fair Dismissal Code: This code now
applies to small business employers, and if followed is intended to
ensure that a dismissal is fair and cannot be contested;
5. New
Terminology and Bargaining Stream: The new
terminology of "enterprise agreement" now applies, and new
agreements will be either single-enterprise agreements,
multi-enterprise agreements or union greenfields
agreements;
6. Good
Faith Bargaining: Employers and bargaining
representatives are required to bargain in "good faith",
which includes the requirement to avoid "capricious or
unfair conduct that undermines freedom of association or
collective bargaining";
7. New
Transfer of Business provisions: The new and
broader concept of "transfer of business" concentrates on
the nature of the work being transferred, rather than the passing or
transmission of an actual "business", and applies to a
wider variety of in-sourcing and out-sourcing transactions;
8. Unions
as default bargaining representatives: Under
the FW Act, if an employee is a member of a union, that union will be
the default bargaining representative of each employee for the
purpose of bargaining unless the employee expressly appoints an
alternative bargaining representative;
9. Changes
to Right of Entry Laws: The FW Act
significantly enhances the powers of unions to enter a workplace to
investigate suspected breaches of workplace obligations or to hold
discussions with employees; and
10. New
Institutions: Fair Work Australia is now open
for business as the new "one stop shop" to oversee the new
workplace relations system, and the Fair Work Ombudsman has replaced
the Workplace Ombudsman.
The commencement of these changes spell the
end of WorkChoices, with further significant changes to the
national safety net and award system due to commence on 1 January
2010.
For advice on how to comply with the new obligations on employers
effective as of today and in anticipation of 1 January 2010, contact
one of the Partners at FCB.
FCB – Workplace Lawyers & Consultants
Please contact a Partner in
Sydney (02) 9922 5188 or Melbourne (03) 9614 3900 if you have any
questions or require assistance.
www.fishcart.com
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