The Deputy Prime Minister, the Hon Julia Gillard MP
yesterday outlined details of the key elements of the
Government's workplace relations reforms. In a new development,
the Government intends to commence unfair dismissal changes and new
bargaining rules on 1 July 2009 brought forward from the previously
set start date of 1 January 2010.
Key elements of workplace reform agenda
From 1 July next year unfair dismissal rights will again be
given to employees in businesses with less than 100 employees. In
place of this exclusion, new qualifying periods will apply, during
which an employee cannot make an unfair dismissal claim –
12 months for small business employees and six months for
Small businesses (with fewer than 15 employees) will be subject
to special arrangements which include the introduction of a Small
Business Fair Dismissal Code. This Code has two key requirements to
justify a dismissal. Firstly, a warning based on a valid reason
relating to conduct or capacity and secondly, a reasonable period
of time to improve must be provided to the employee. Other elements
include giving the employee an opportunity to respond to the
warning, possibly providing training to ensure the employee knows
what is expected in the job and enabling the employee to have
another person present at discussions if dismissal is possible.
The Government also intends to introduce a more streamlined and
arguably less legalistic process for all claims with an emphasis on
New bargaining rules and changes to prohibited content
From 1 July 2009 the Government hopes to have in place its good
faith bargaining regime. This regime introduces compulsory
bargaining obligations, where there is majority employee support,
together with good faith bargaining obligations. The new rules will
not require parties to make concessions or sign up to an agreement
when they do not agree with its terms.
The Government also announced that compulsory arbitration by
Fair Work Australia (FWA), the new
'independent umpire' to be established to eventually
replace the Australian Industrial Relations Commission, will not be
a feature of good faith bargaining. However, compulsory arbitration
by FWA may occur in limited, exceptional circumstances –
where industrial action is causing a threat to safety or health, a
threat to the economy, or significant harm to the parties.
Under the new system, the 'matters pertaining' rules
would return, with content required to pertain to the relationship
between employers and employees or the employer and the unions
covered by the agreement. Matters such as salary sacrifice and
payroll deduction of union dues would again be allowed.
Fair Work Australia
The Government intends for FWA to be fully operational by 1
January 2010. On the timetable outlined, FWA will start from 1 July
2009 and during the period to 31 December 2009 it will operate
alongside the Australian Industrial Relations Commission. During
this time FWA will oversee the operation of the new laws and the
Commission will complete its award modernisation task. Dual
appointments to the two bodies will be made for this period.
The safety net
The safety net that comprises two parts - the National
Employment Standards (NES) and new modern awards -
will apply to all employees in the federal system from 1 January
2010. To ensure that the NES operate effectively from this date for
employees not covered by a modern award or enterprise agreement,
'default rules' will set out how the NES applies to this
group of employees.
The new Act to be known (for the moment, anyway) as the
Substantive Bill, that will replace the Workplace Relations
Act 1996 (Cth), will be introduced into the Parliament later
this year. It will then be considered by a full Senate Committee
The bargaining framework, unfair dismissal and associated
protections are intended to commence on 1 July 2009, following
passage of the Substantive Bill.
The remaining changes in the Substantive Bill, including the
safety net, will commence on 1 January 2010.
The new division FWA to replace the Australian Building and
Construction Commission will start operating from 1 February
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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
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Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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