Australia: The Workplace: Employment Standards; Collective Bargaining, OHS Legislation and EEO Law

Last Updated: 28 February 2010
Article by John Tuck

The latest issue of The Workplace from DLA Phillips Fox is now available. The Workplace provides news, perspectives and analysis on legal developments and issues in the areas of workplace relations, employment and safety.

In this edition of The Workplace we reflect on the major developments of 2009. Some of the more significant changes have arisen as a result of the introduction of the Fair Work Act 2009 (Cth).

Many human resources managers have been hard at work understanding the changes to the safety net with the introduction of the National Employment Standards (NES) and modern awards. In this edition of the Workplace we set out what you need to be considering now.

It is also timely to recap on how the national workplace relations tribunal, Fair Work Australia is approaching its new role in bargaining. In three parts we consider a number of recent cases that highlight the challenges under the new system.

The end of 2009 also saw the publication of the draft model occupational, health and safety (OHS) laws. This is a critical development and where this leads in 2010 is of major importance to health and safety managers throughout Australia.

We look at the model OHS laws and update you on how to prepare for the proposed changes.

Each year delivers new thoughts and considerations when managing diversity at work. We look at some of the major developments of 2009.

On the DLA Phillips Fox front, 2009 saw the continued development of our relationship with our colleagues at DLA Piper.

We were able to enjoy the opportunity of having DLA Piper partner, Joe Turzi from the Washington DC office share his thoughts on good faith bargaining and we hope to welcome Joe back to Australia again in 2010. We also had one of our valued team members, Amber Millhouse, relocate to Hong Kong to work with the new head of the DLA Piper Asian practice, Pattie Walsh. In this issue of the Workplace, we are pleased to be able to share with you Pattie's thoughts on employment issues in China in 2010.

In this issue:

What you need to know on the new safety net – the 10 National Employment Standards and modern awards.

By Brendan Charles
The new safety net, the 10 National Employment Standards (NES) and modern awards, commenced operation on 1 January 2010. The safety net sets the minimum terms and conditions of employment for all employees captured under the federal system. An employer must comply with the NES in relation to each of its employees or risk prosecution.

Bargaining under the Fair Work Act

By John Tuck
Some key features of the Fair Work Act 2009 (Cth) (FW Act) are the changes introduced to the collective bargaining framework. We now have concepts such as majority support determinations, scope orders and good faith bargaining requirements. The past few months have seen a number of cases that give guidance on how these collective bargaining elements may operate in practice. It has not all been plain sailing for participants.

Draft Model - OHS Laws

By Andrew Ball
OHS harmonisation remains on track to occur by 31 December 2011, with State and Territory OHS legislation to be replaced by a model Work, Health and Safety Act. The States/Territories other than Western Australia have agreed to pass laws that mirror the Work, Health and Safety Bill. Workplace Relations Ministers will also be asked to agree on model Regulations in June 2011.

Diversity - 2009 EEO Review

By Rick Catanzariti
While the bargaining and safety net changes introduced by the Fair Work Act 2009 (Cth) stole much of the limelight in 2009, the past year also saw significant developments in Equal Employment and Opportunity law.

Employment Notes From Greater China

By Patti Walsh and Amber Millhouse
Employment law challenges for foreign companies seeking to establish a business or extend their operations in Greater China.

Protected Action Ballots: Recent Cases & Emerging Issues

By John Tuck
The first six months under the Fair Work Act 2009 (Cth) (FW Act) led to a flurry of cases concerning the right of unions as bargaining representatives to apply for protected action ballots. Issues continue to be raised as to whether the applicants are genuinely trying to reach agreement. This led to familiar arguments that where a union and the employees are seeking the inclusion of clauses that do not pertain to the employment relationship they are not genuinely bargaining.

Case Round-Up

By John Tuck
A look at employment developments on drug and alcohol testing, employment terminations and transfer of business exemption orders under the new Fair Work Act.

And finally....

By John Tuck
A round up of all things employment and workplace relations.

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit

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.

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