The simplification of the awards process currently being
undertaken by the Government will create the new Modern Awards. It
is the Government's intention that every employee be covered by
an award if they earn less than $100,000 a year. This will mean
that those occupations that were not traditionally covered by an
award will now have an award setting the base terms and conditions
of employment. It is the Government's intention that the modern
awards will be published by the time the Bill takes effect on 1
There are specific terms which are not allowed to be included in
modern awards. These include terms about payments and deductions
for the benefit of the employer; the right of entry for unions;
terms that are discriminatory; terms that contain State base
differences; and those dealing with long service leave. Awards are
to be reviewed every four years. Reviews will be undertaken by the
new Fair Work Australia which will, in this respect, essentially
replace the Australian Industrial Relations Commission.
The workplace agreements that were introduced by the Howard
Government have been removed and will be replaced by Enterprise
Bargaining Agreements. Only collective agreements can be entered
into under the Bill. Greenfields Agreements can still be entered
into by new businesses who do not have any employees at the time
the agreement is created.
Rights and responsibilities of employees, employers and
The Bill outlines the rights of employees and employers in
relation to partaking industrial action. It also prevents employers
from entering into sham arrangements through independent contractor
arrangements. The Bill also reinstitutes significant rights of
entry provisions for trade union officials to enter a
The 100 employee exemption that was introduced by Workchoices
has been removed by the Bill. All employees are entitled to pursue
their rights for unfair dismissal by application to Fair Work
Australia. Those employees engaged by small businesses (those
employing less than 15 employees) can only apply for the right to
unfair dismissal after one year of employment.
All claims for unfair dismissal will be heard by Fair Work
Australia firstly through a conference, similar to that of the
current conciliation process, followed by a hearing (arbitration)
if the parties cannot reach agreement during the conference. Many
of the rules that apply to these conference and hearings are still
unclear. In the first instance it appears that the unfair dismissal
process may be similar to what has been undertaken by the
Industrial Relations Commission, however there is also scope for
them to be significantly different.
We will provide further information as it becomes available.
Fair Work Australia
The Fair Work Bill will see the disbanding of the Australian
Industrial Relations Commission after 107 years of existence. The
Bill implements a new authority known as Fair Work Australia.
Fair Work Australia has a number of purposes. It is will act as
a conciliator between employers and employees during termination
disputes and industrial disputes and also monitor employment
relationships. The Bill also creates an organisation known as the
Fair Work Ombudsman, which appears largely similar to the current
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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