As we stagger to a final exhaustion point of the epic modern
award process coming to finality 14 working days before they become
operative, we take the opportunity to take stock and consider what
has been achieved in 2009 and what we can look forward to in
2009 brought truly staggering change in an already highly
The passage into law of the Fair Work Act 2009 followed
exhaustive public debate, a Senate Inquiry and final changes by
balance of power independents.
State law referrals of non-corporate employers and their
employees were passed in Queensland, Tasmania and South Australia,
joining Victoria's 1996 Kennett/Howard deal, and were finally
joined last week also by NSW. Federal acceptance of State referrals
passed at the eleventh hour by the Senate followed an extraordinary
combined call by the ACTU and the Big 4 employer associations for
the January 1 deadline for the new system to be met. It was a
pragmatic move by the employer associations – recognising
that the egg could not be unscrambled - but has this entrenched
Fair Work into co-operative federalist statute law until such time
as there is a future Coalition Federal Government and several State
Operative from 1 July 2009 we have had:
Unfair dismissal changes (far fewer exclusions and the advent
of the telephone conference - "have they really hung
A new enterprise bargaining regime including good faith
New transfer of business rules
But it does not end there! Commencing 1 January 2010, we
National Employment Standards (NES) – redundancy for
all, flexible work requests (and 'reasonable business
122 new Modern Awards
At Deacons Australia, we have had our own share of change, and
will take our place in the Norton Rose Group in 2010, when we will
be known as Norton Rose Australia.
We welcome human resources legal colleagues in 23 countries,
part of a world-wide network of more than 2000 lawyers. You will
see an international perspective in the article in this edition by
Peter Talibart, a partner in our London office, who concludes that
if the Court of Appeal in England and Wales' approach were
taken in Australia regarding stigma damages, this would have a
significant impact on the way employers respond to complaints of
discrimination by employees.
Compliments of the season to all Enterprise readers, have a
well-deserved break with your loved ones, and we look forward to
bringing you an informative range of seminars, legal training and
information in 2010 with the full support of 30 Norton Rose Group
By Joanne Husband
This year has been a significant year for the Office of the
Australian Building and Construction Commissioner (ABCC) and for
the building and construction industry in general. Here we will
recap on the milestones in 2009 that have ensured that the
ABCC's role and powers have continued to be the topic of much
debate amongst stakeholders in the building and construction
By Martin Osborne and Harmony Aldridge
An employer has been successful in restraining a former employee
and her new employer from using the old employer's contact list
in the recent decision of Prime Creative Media Pty Ltd v Vranjkovic
 FCA 1030.
By Peter Talibart
The Court of Appeal in England and Wales has very recently held in
Chagger v Abbey National Plc and another  EWCA Civ 1202 that
an employee may recover compensation for stigma suffered as a
result of his having brought discrimination proceedings against a
former employer, where this stigma can be shown to have affected
his ability to obtain another job. Although this is an English
case, it raises interesting issues not yet considered under
By Andrew Chamberlain
The changes to enterprise bargaining introduced under the Fair Work
Act 2009 (Cth) (FW Act) have enabled groups of employers, such as
franchisees, to bargain for one overarching single-enterprise
agreement, where Fair Work Australia (FWA) authorises them to do
By David Cross
A recent decision of the Federal Magistrates Court illustrates how
simple drafting failures, in the context of an industrial
agreement, can lead to significant commercial and financial
By Martin Osborne and Katie Hegarty
In a recent decision, the Federal Magistrates Court examined the
sham contracting provisions of the Workplace Relations Act 1996
(Cth) (WR Act). These provisions have been retained in the Fair
Work Act 2009 (Cth) (FW Act).
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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