Australia: Building and Construction, Employment, Franchising and Contract

Enterprise Newsletter

December 2009

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 2010.

2009 brought truly staggering change in an already highly regulated environment.

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 Coalition Governments?

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 up?")
  • A new enterprise bargaining regime including good faith bargaining
  • New transfer of business rules

But it does not end there! Commencing 1 January 2010, we have:

  • National Employment Standards (NES) – redundancy for all, flexible work requests (and 'reasonable business requirements' objections)
  • 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 offices worldwide...

The ABCC - Where to From Here?

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 industry.

Using the contact list

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 [2009] FCA 1030.

Employees can claim for 'stigma loss'

By Peter Talibart
The Court of Appeal in England and Wales has very recently held in Chagger v Abbey National Plc and another [2009] 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 Australian law.

Franchisees and common interest employers unite; Enterprise bargaining in the new industrial relations system

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 so.

"High Income Guarantees - Have you got it right?"

By Elaine Wambeck
If your business is subject to the Fair Work Act 2009 (Cth), on 1 January 2010, modern awards commence operation and apply to employees covered by the scope of the modern award.

Careless drafting costs money - Fair Work Ombudsman v the Palcon Group Pty Ltd [2009] FMCA 974

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 consequences.

Sham Contracting

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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