The Commonwealth government's Fair Work Act 2009 is due to
commence on 1 July 2009. This Act will replace the current
Workplace Relations Act 1996 and create a new Industrial Relations
system in Australia. At six hundred and eight pages, the Fair Work
Act is no light reading and what follows is a brief summary of the
The Commonwealth Fair Work Act will apply to employers who are
currently covered by the Workplace Relations Act. Generally
speaking this will not include sole traders, trusts and
partnerships who will continue to fall within the State system
(confusingly also called the Fair Work Act!). There is some
suggestion the scope of the commonwealth Act will be extended to
all employers, but as yet the South Australian government shows no
sign of willingly handing over it's powers to Canberra.
The Act will see ten minimum conditions of employment imported
into every employment relationship covered by the Act (called the
'National Employment Standards'(NES)). They are:-
a maximum working week of 38 hours plus reasonable
a right to request flexible working arrangements. A request can
be declined by an employer on 'reasonable business
12 months unpaid parental leave and a right to request an
additional 12 months.
4 weeks annual leave, or 5 weeks in the case of shift
2 weeks sick leave / carers leave
community service leave (eg 2 weeks for jury duty)
long service leave as defined by Award/Agreement or state
right to have public holidays off work unless
'reasonable' for employer to request employee work on a
legislated minimum redundancy payments
a Fair Work information statement must be given to all new
Various existing tribunals and commissions will be replaced by a
'one stop shop' called Fair Work Australia (FWA). FWA will
have the responsibility for making Awards, approving Agreements,
determining minimum wages, hearing industrial disputes and unfair
termination claims. The Fair Work Ombudsman will be established to
largely perform the investigative role of the current Workplace
The process towards Modern Awards will continue under the new
Act. The 5,000 or so NAPSA's (preserved state Awards) and
Federal Awards currently in force across Australia will reduce to
around 150. Some provisions of Awards can be varied in a particular
employee's case with the written agreement of the employer and
employee if the variation is more beneficial to the employee.
Modern Awards will include the conditions of employment including
pay rates, reverting back to the position pre-Workchoices.
ITEA's, the rebadged AWA's, are out the window from 31
December 2009. Enterprise Agreements are back in vogue. They must
be negotiated with the relevant union or representative of the
employees. Even when the union is not involved in the negotiations
process they can apply to FWA to be a party to the agreement. All
bargaining must be in good faith, and FWA can make Orders to
satisfy this requirement (eg ordering an employer to attend
meetings). In the event a negotiated Agreement is not possible, FWA
may act as arbitrator and impose a determination on the
Enterprise Agreements can supplement but not contradict the NES.
The Agreement must be beneficial to all employees when compared to
the Award. The agreement must not contain prohibited content, for
example seeking to oust Occupational Health and Safety requirements
or unfair termination provisions.
Unfair termination makes a bit of a comeback with employers with
more than 15 employees being subject to claims (down from 100
employees). Employees will need to be in employment for six months
(more than 15 employees) or twelve months (less than 15 employees)
to lodge a claim. An employee can make a claim in the case of a
redundancy if it was reasonable for the employee to be redeployed
in the business rather than made redundant. The remedies include
reinstatement orders or up to six months salary.
The new laws mark a move away from individually negotiated
contracts to collective agreements. The full effect will be seen in
time. In the meantime, members are encouraged to review their
employment arrangements to make sure they conform to the new rules,
particularly the National Employment Standards.
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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