On 1 December 2005, 337 amendments were made to the Work Choices Bill. The amendments were approved by the Senate the following day and by the House of Representatives on 7 December.
The Bill now awaits Royal Assent. Most of the changes are likely to take effect in March 2006.
Many of the amendments made were minor or technical. The key amendments are as follows:
The averaging of 38 ordinary hours over 12 months, as outlined in the original Bill, has been removed. The new Bill will allow averaging periods of up to 12 months if set out in awards, agreements, or contracts of employment. However, where there is no averaging provision or agreement in place, employees will be deemed to be working a maximum of 38 hours per week, and any hour worked beyond this limit will be deemed to be additional hours, and subject to the reasonable test provision.
An employee can produce a statutory declaration as an alternative to a medical certificate if it is not practicable to obtain a medical certificate for his or her absence. However, an employer still retains the right to require a statutory declaration or medical certificate for each separate absence.
Wages will need to be paid fortnightly unless there is an agreement otherwise between the employer and the employee.
Employees are now entitled to take public holidays off. However, employers can request that employees work on public holidays. An employee can only refuse to work if they have reasonable grounds for refusal. There are a number of factors set out as to what may constitute a reasonable refusal. Where the refusal to work by the employee is reasonable, an employer is not permitted to dismiss, alter the working arrangements or cause any other detriment to the employee as a result of the refusal.
In assessing the unfair dismissal exclusion for employers who employ more than 100 employees, employees of any related entity of the employer will be taken into account.
Employees who attempt to lodge an unfair dismissal claim on the basis of a constructive dismissal will need to prove, on a balance of probabilities, that they did not resign voluntarily but were forced to do so because of conduct or a course of conduct engaged in by their employer.
While employees still have 21 days to lodge an unfair dismissal or unlawful termination claim in the Commission, once a certificate has been issued by the Commission that conciliation was unsuccessful, the employees have seven days to elect to proceed with an unfair dismissal claim but 28 days to decide whether to go down the unlawful termination path.
In the case of employers with less than 15 employees, redundancy pay is not an allowable matter (the Commission can therefore not make awards or orders in relation to redundancy pay for those employers). The calculation of the number of employees is determined at the time immediately before the redundancies occur and includes all permanent employees and casuals engaged on a regular and systematic basis for at least 12 months. There is no provision to count employees of a related entity of the relevant employer.
Any provision in an award requiring an employer with fewer than 15 employees to pay redundancy pay will no longer be enforceable.
Requiring a new employee to sign an AWA does not constitute duress.
Workplace agreements made under the Bill can only be unilaterally terminated with 90 days’ notice once the agreement’s nominal expiry date has passed (previously the notice could be given prior to the nominal expiry date).
Union greenfields agreements (but not employer greenfields agreements) can be made for five years (previously 12 months), in line with AWAs and collective agreements.
This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.
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