Fair Work Act - new industrial relations laws passed

The Fair Work Act was passed by Federal Parliament on Friday 20 March 2009. The legislation represents a shift from WorkChoices and will be introduced in two stages with the first phase to begin in a couple of months:

Changes from 1 July 2009 include:

• A new body, ‘Fair Work Australia’ begins operating. FWA will have the power to set award rates, conciliate and hear disputes, and investigate breaches.
• Enterprise bargaining - Single business and multiple business agreements will be available for employers who want to bargain collectively with their employees. These agreements will be subject to the ‘Better Off Overall Test’, which replaces the current ‘No Disadvantage Test’. Employers, unions and other bargaining representatives must comply with the ‘good faith bargaining requirements’ when bargaining.
• Union right of entry – Whilst many of the existing union rights of entry remain unchanged there are also some new rights, including a union’s ability to inspect non-member records (related directly to suspected breach of act, agreement or award). However there are limitations on inspecting pay records of non members.
• Unfair dismissal - The reintroduction of the unfair dismissal laws will prevent employers from dismissing in a manner that is ‘harsh, unjust or unreasonable’. However employees will be prevented from bringing an action for unfair dismissal if the termination was a genuine redundancy.
• Also “small businesses” have 12 months to terminate a particular employee without being subject to an unfair dismissal claim. After 12 months, small businesses can follow the simple checklist in the Fair Dismissal Code to avoid liability for unfair dismissal.
  Note: for the first 18 months a “small business” will be defined as 15 or less full time equivalent employees. From 1 January 2011, the definition will revert to 15 or less employees based on a simple head count of every employee.

On 1 January 2010:

• The ‘National Employment Standards’(NES) will begin. The NES sets out minimum standards that apply to all employees and include:

  •	maximum ordinary hours of work;	•	community service leave;
  •	requests for flexible work arrangements;	•	long service leave;
  •	parental leave;	•	public holidays;
  •	annual leave;	•	notice of termination and redundancy pay;
  •	personal/carer’s/compassionate leave;	•	provision of an information statement.

• A modern award system will commence. Under the ‘modernisation process’ thousands of the awards which currently operate throughout Australia are being consolidated into several hundred awards with national coverage. The final version of the modern Building and Construction Industry General On-site Award is due to be released in April. Under the combined building award, wages and other conditions may increase for some employees.

HIA can assist members with:

• information and assistance on how to comply with the new obligations;
• advising on how transitional arrangements affect those employees on AWAs and ITEAs;
• enterprise agreements and flexibility agreements;
• proceedings involving Fair Work Australia.

For more information, contact a workplace adviser on 1300 650 620.

_{Disclaimer - The above is intended to provide general information in summary from. The contents do not constitute specific advice and should not be relied upon as such. Formal specific advice should be sought by members with respect to particular matters before taking action.}