Fair Work Bill — detailed summary

Analysis

Fair Work Bill — detailed summary

This summary of the topics covered by the Fair Work Bill provides a picture of the legislation that has been treated in detail in articles in 2008 and that will continue to be analysed in articles to be published over 2009.

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Published 15/1/09 and revised 27/2/09
 
This revised summary of the topics covered by the Fair Work Bill provides a picture of the legislation that has been treated in detail in articles on WorkplaceInfo in 2008 and 2009. 
 
The writings below cover:
  • operative date
  • legislated minimum employment standards (NES)
  • modern award system
  • payment and deduction of wages
  • national wage — non award/agreement employees
  • Fair Work Australia (FWA)
  • agreements and bargaining
  • lodgement and approval of agreements
  • good faith bargaining
  • transfer of business
  • general protections
  • unfair dismissal
  • industrial action
  • union right of entry
  • strike pay
  • stand-down
  • discrimination
  • compliance
  • transitional legislation
  • new acronyms
 
The text of Bill and the explanatory memoranda can be accessed online.  
 
Operative date
 
The establishment of Fair Work Australia (including the Office of the Fair Work Ombudsman), enterprise agreement and bargaining provisions, the new ‘general protections’ including new unfair dismissal provisions, union right of entry and transfer of business are intended to apply from 1 July 2009. Provisions dealing with the NES and modern awards are scheduled to commence on 1 January 2010.
 
Legislated minimum employment standards (NES)
 
The NES will apply to all employees covered by the federal system. The ten NES are:
  • Minimum weekly wages — the NES does not cover minimum wages but wages will be prescribed by the relevant modern award.
  • Maximum weekly hours of work — 38 hours for full-time employees with additional provisions for maximum ordinary hours for part-time employees. A modern award or enterprise agreement may provide an average of ordinary weekly hours. Non-award employee can agree to an average of hours over six months or less. Averaging of hours will be subject to reasonableness factors.
  • Requests for flexible working arrangements — parents with responsibility of caring for a child under school age may request a change in working arrangements to assist with the care of the child. Employer may refuse request on reasonable grounds and the employer’s decision will not be subject to review.
  • Parental leave and related entitlements — both parents entitled to separate periods of up to 12 months unpaid parental leave. One parent can apply for an additional 12 months (total 24 months) unpaid parental leave but employer can refuse employee’s request on reasonable business grounds.
  • Annual leave — four weeks annual leave per annum. Paid annual leave will accrue and then be taken on the basis of the employee’s ordinary hours of work. Modern awards may provide, for example, eight weeks paid annual leave on half pay. Cashing out of annual leave will be allowed in modern awards, enterprise agreements and non-award/agreement employees, provided a balance of four weeks annual leave remains.
  • Personal/carer’s leave and compassionate leave — 10 days paid personal/carer’s leave per annum and two days compassionate leave per occasion. Carer’s leave is no longer capped at 10 days per year. Modern awards may provide for cashing out personal/carer’s leave as long as 15 days leave balance remains. Non-award/agreement employees will NOT be able to cash out personal/carer’s leave.
  • Community service leave — unpaid leave to enable an employee to undertake eligible community work such as jury service (make up pay for full-time and part-time employees of up to 10 days at the employee’s base rate of pay) or voluntary emergency management.
  • Long service leave — will remain under the current state and territory long service leave legislation or (where prescribed) the relevant pre-reform federal award.
  • Public holidays — prescribed public holidays now includes Queen’s Birthday holiday. Payment for a public holiday will now be at the employee’s base rate of pay.
  • Notice of termination of employment and redundancy pay — periods of notice of termination by the employer remain unchanged, however, notice by the employer must be in writing. Also, a scale of redundancy pay based on continuous service with the employer now applies to employers who employ 15 employees or more.
  • Fair Work Information Statement — employer will be required to give the Fair Work Australia Information Statement to all new employees, however, there will be no requirement to provide the Statement to existing employees.
 
Modern award system
 
The Bill introduces a modern award system. FWA may make one or more determinations making, varying or terminating modern awards. This can be done on FWA’s own application or by application of an organisation with rights to represent a person covered by the award. Otherwise awards are reviewed each four years to ascertain whether they provide relevant fair minimum conditions. In the quadrennial reviews modern awards will be reviewed individually. Some features of the new system include:
  • Wages (classification rates in modern awards and the federal minimum wage) are reviewed annually by a seven-person 'minimum wages panel' (full bench) comprising at least three specialist wages members.
  • Reviewed wages apply from the first pay period to commence on or after 1 July each year, with little scope to delay increases past 1 July.
  • The minimum wages panel must also make a 'national minimum wage order' applying to all employees not under a modern award or agreement.
  • These minima must also cater for trainees, juniors and the disabled.
  • FWA (not the minimum wages panel) can vary a modern award wages outside the annual and quadrennial reviews on work value grounds.
  • Modern awards may include additional minimum terms and conditions of employment (such as minimum wages, overtime and penalty rates, allowances, representation and dispute settlement), which are relevant to that particular industry or occupation.
  • Modern awards may contain other terms that supplement the NES.
  • 'High income employees' who are covered by a modern award can agree to avoiding or modifying the award. The employer must provide a written undertaking guaranteeing annual earnings at least equal to the 'high income threshold' ($100,000 pa, indexed). However, these employees remain 'covered' by the award and may access the unfair dismissal provisions.
  • The Bill identifies the terms that may be included in modern awards and terms that must be included in modern awards (ss136), and terms that must NOT be included in modern awards.
  • The Australian Industrial Relations Commission (AIRC) handed down its decision relating to the modernising of Stage 1 modern awards on 19 December 2008. This will provide employers with greater detail of the specific content that will eventually appear in all modern awards.
 
'Applies' and 'covers'
 
Modern awards 'apply' to the relevant employer and employees whose conditions they provide. When an enterprise agreement (or a pre-commencement 'transitional instrument') applies to an employee the modern award does not apply, (the conditions applying to the employee are those in the agreement and the NES, but not those in the modern award) but the modern award continues to 'cover' the employer and employees.
 
The Bill’s distinction between 'applies' and 'covers' is important. Enforceable conditions derive from the instruments which 'apply' but other rights such as unfair dismissal are derived from award 'coverage'. Because modern awards continue to 'cover' employees, they are only displaced, not negated, by an agreement which applies. The consequence is that the award does not cease to exist for these employees who are covered by the award, and it re-applies if the agreement is terminated. The classification rates in the modern award that covers employees under an enterprise agreement continue to apply as a (moving) minimum for that agreement while it applies. 
 
The modern award system will operate from 1 January 2010.
 
Facilitative provisions
 
The Stage 1 modern awards recently handed down by the AIRC contain ‘facilitative provisions’ that allow certain provisions of the award to be altered by agreement, at either an individual level or by the majority of employees in the establishment. Modern awards will provide that a consultative mechanism and procedures appropriate to the size, structure and needs of the enterprise or workplace be established and the employee may nominate the union or unions, or other representative, to represent them. 
 
The involvement of the relevant union(s) is not mandatory under this provision, which may be an attractive option for an employer as a means of avoiding dealing with a union(s) where there is a requirement to bargain with a union(s) under the enterprise agreement provisions of the legislation.
 
Payment and deduction of wages
 
The proposed legislation contains provisions relating to payment of wages and deduction of wages. An employee must be paid at least monthly and deductions can only be made where authorised by an employee or by a contract of employment, modern award or enterprise agreement. The proposed legislation provides that an employer may deduct an amount from an amount payable to an employee if:
  • the deduction is authorised in writing by the employee and is principally for the employee’s benefit; or
  • the deduction is authorised by the employee in accordance with an enterprise agreement; or
  • the deduction is authorised by or under a modern award or an FWA order; or
  • the deduction is authorised by or under a law of the Commonwealth, a state or territory, or an order of a court.
 
A deduction in accordance with a salary sacrifice or other arrangement will be permitted; however, the Bill provides that unreasonable deductions will have no effect. A provision in a modern award or enterprise agreement has no effect if the deduction or payment is directly or indirectly for the benefit of the employer and unreasonable in the circumstances. The regulations may prescribe circumstances in which a deduction or payment is reasonable or otherwise.
 
National wage — non-award/agreement employees
 
The proposed legislation provides that Fair Work Australia must make a national minimum wage order which will cover those employees not covered by an industrial instrument. The order will also have to set special national minimum wages (presumably for non award/agreement junior employees, apprentices, trainees, and disabled employees) and a casual loading. The wages prescribed under the order will be adjusted annually, generally operative from 1 July each year.
 
Fair Work Australia (FWA)
 
FWA (incorporating the Office of the Fair Work Ombudsman) will be a statutory body that will provide advice and support on all workplace relations issues and enforcement of legal entitlements. FWA comprises the president, deputy presidents, commissioners and at least four 'minimum wage panel members', as well as a general manager and staff. 'Minimum wage panel members' have five-year terms of office. FWA will have powers and functions, including:
  • facilitating ‘good faith’ collective bargaining (including the making of bargaining orders, scope orders or majority support determinations)
  • approving enterprise agreements (including the application of the Better Off Overall Test (BOOT)) to agreements
  • adjusting minimum wages and award conditions
  • dealing with unfair dismissal claims
  • dealing with industrial action 
  • settling workplace disputes.
 
FWA will have the power to enforce orders and determinations, although there is no statutory obligation on an employer to reach an agreement with the employees. FWA’s assistance is limited to conciliation or mediation unless the parties jointly agree that it may arbitrate, however, FWA’s powers include calling a compulsory conference. 
 
The Fair Work Ombudsman’s role will be to promote compliance with the legislation through education, assistance and advice. A related but independent body, the Office of the Fair Work Ombudsman (OFWO) will be created and will have an enforcement role such as investigation, issuing compliance orders and initiating court proceedings.
 
It would appear that many areas of conjecture raised by various industrial relations experts commenting on the Bill will be resolved by decisions of matters heard before Fair Work Australia after its commencement.
 
Judicial arm
 
An independent judicial arm of FWA will be created through Fair Work Divisions of the Federal Court and Federal Magistrates Court. However, state and territory courts will still have jurisdiction to deal with claims in respect of award breaches, enterprise agreement and minimum entitlements. The Fair Work Divisions will act in an informal manner, not be bound by formal rules of evidence and may act without regard to legal form and technicality. The Fair Work Divisions will also be able to deal with common law contract of employment matters relating to the NES and breaches of modern awards, the NES, enterprise agreements and wages orders.
 
 AIRC and WA
 
It would seem that from 1 July 2009, FWA and OFWO will operate under the legislation while the Australian Industrial Relations Commission and the Workplace Authority will continue to operate under the current Workplace Relations Act. This will have implications with respect to enterprise agreements lodged between 1 July 2009 and 1 January 2010. (See 'Lodgement and approval of agreements' below.)
 
Agreements and bargaining
 
The proposed 'fair work' system is directed towards promoting collective bargaining giving rise to 'enterprise agreements'. The Bill promotes collective bargaining rather than, as under WorkChoices, facilitating agreement making.
 
Types of agreements
 
The proposed legislation has reduced the number of types of agreements that may be negotiated — these agreements being:
  • agreements can be either a single-enterprise agreement (SEA) or multiple business enterprise agreements (MEA) made between two or more employers who agree to bargain, or a greenfields agreement (genuine new enterprise only).
  • new individual agreements will no longer be available
  • special stream of MEAs for low-paid employees
  • the ability to enter into Employer Greenfields Agreements, introduced under WorkChoices, will be removed
  • Individual Transitional Employment Agreements (ITEA) will not be available after 30 December 2009 (as per current Workplace Relations Act).
 
Parties to agreements
 
A number of concepts will change under the proposed legislation with respect to the relationship of an organisation(s) in the negotiation of to an agreement. These include:
  • Unions are not party to an agreement, however, a union that is a bargaining representative for a proposed agreement can apply to FWA to be covered by the agreement.
  • A union is automatically a bargaining representative for an agreement if it has a member in that workplace whose industrial interests it is entitled to represent and the member does not appoint another person.
  • Non-union agreements are only possible in workplaces where there are no union members, or where the union chooses not to be covered by the agreement.
  • The employer cannot choose which union to bargain with where more than one union has a member(s) in the workplace. The employer must attempt to bargain in good faith with all unions with members in that workplace.
 
Content of enterprise agreements
  • A retention of the 'matters pertaining' formulation, ie the agreement cannot cover matters relating to management prerogative, outside the employer’s control or are unrelated to the employment arrangements are not subject to bargaining or industrial action.
  • Provisions on how the agreement will operate.
  • The concept of prohibited content will be abolished, matters related to the employment relationship such as trade union training leave and union consultation clauses can now be included, as well as provisions for salary sacrifice, and union fees and deductions from salary.
  • An agreement cannot override provisions such as unfair dismissal, freedom of association and allowing industrial action during the life of the agreement (unlawful content).
  • An agreement must include an individual flexibility arrangement and a consultation clause.
  • Minimum wage provisions will override the agreement, meaning where minimum award rates increase during the life of the agreement to above the agreement rates, employers will have to make up the difference.
  • The proposed legislation provides that a special bargaining stream for a MEA for low-paid employees. This stream can only be accessed through authorisation from FWA. ‘Low-paid’ employee is not defined.
  • Agreements will be given a Nominal Expiry Date of four years after the date of operation.
 
Lodgement and approval of agreements
  • All agreements must be lodged with FWA together with statutory declarations by the parties setting out details of the enterprise agreement.
  • Once receiving approval, FWA will ensure agreement was genuine; group of employees covered by agreement was fairly chosen; the agreement passes the BOOT; agreement contains nominal expiry date and dispute settlement clause; the agreement does not contain terms that contravene the NES; and the agreement does not contain unlawful content.
  • An agreement will come into operation seven days after its approved.
  • Public interest test for MEAs under the existing legislation will be removed.
 
As the lodgement and approval of the enterprise agreement and bargaining provisions of the proposed legislation are intended to commence from 1 July 2009, ie prior to the commencement of modern awards and the NES (1 January 2010), it is presumed the conditions of the current ‘no disadvantage test’, ie against the current Australian Fair Pay & Conditions Standard and the applicable pre-reform federal award or NAPSA will be replaced by the BOOT test.
 
Good faith bargaining
 
The proposed legislation sets out five good faith bargaining requirements that all bargaining representatives must follow:
  • attending and participating in meetings at reasonable times
  • disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner
  • responding to proposals made by other bargaining representatives in a timely manner
  • giving genuine consideration to the proposals of other bargaining representatives and reasons for any responses
  • refraining from capricious or unfair conduct that undermines freedom or association or collective bargaining.
Where an employer refuses to bargain with the employees, FWA will have the power to test the support among the employees. Where an employer has not started bargaining or refuses to bargain, employees can apply to FWA for a ‘majority support determination’. FWA may issue good faith bargaining orders against the employer where a declaration has been issued and the employer refuses to bargain.
 
Where a bargaining representative has a concern about the scope of a proposed enterprise agreement, it can apply to FWA for a scope order setting out which employees the proposed agreement should cover. This may happen where a bargaining representative wishes to cover a category of employee not covered by previous agreements. No penalty occurs where a scope order is breached, although it may be relevant if bargaining orders are subsequently issued by FWA.
 
Transfer of business
 
The Fair Work Bill now refers to a ‘transfer of business’ (previously transmission of business) and will extend coverage to a wider range of transactions including outsourcings and company re-organisations. The 12-month limitation on transferring instruments will be removed so transferring instruments now continue until they are terminated or replaced. A transfer of business will occur where:
  • an employee changes employer
  • the work the employee does for each employer is the same or substantially similar
  • there is a particular connection between the old and new employers, ie either a transfer of assets used in connection with the work, or an outsourcing, or an insourcing or where the two employers are ‘associated employers’.
 
Transfer — associated entities or 'transmission'
 
Where an employee transfers between associated entities (with no more than a three-month break between the two employments) or because s/he is a transferring employee in a transfer of business, service with the first employer counts as service with the second, but although any break does not count as service, it does not break continuity of service.
  • Service-based entitlements that have been taken while with, or paid by, the first employer (notice; annual leave, personal/carer’s leave or long service leave; redundancy pay) are deducted off the entitlement with the second employer.
  • If the transfer is between non-related entities, the second employer is not required to recognise prior service for annual leave or redundancy pay.
  • If the transfer is between non-related entities, and the new employer informed the employee in writing that the period of service with the first employer would not count, the employee starts a new 'minimum employment period'.
  • Service for the purposes of parental leave or requests for flexible working arrangements does carry to the second employer.
 
Industrial instruments that could transfer with the business include enterprise agreements, named employer respondency modern awards (other modern awards would continue to apply on their terms) and guarantees of annual earnings for high income employees. Where the new employer does take on employees, the application of the transferred instruments is generally limited to those employees, plus any new employees the employer employs where the workplace is instrument-free.
 
General protections
 
The Workplace Relations Act currently provides employees with protection from discriminatory actions by an employer. The Fair Work Bill has expanded on these protections and will cover 'workplace rights', 'industrial activities', 'discrimination' and 'sham arrangements'.
 
Workplace right
 
A 'workplace right' exists if the person has a benefit, entitlement, role, responsibility, under a workplace law (including the Independent Contractors' Act 2006), a workplace instrument, or an order made by an industrial body.
 
Industrial activity
 
It will be an offence to coerce another person or a third person to engage in or not engage in 'industrial activity'. 'Industrial activity' includes membership and non-membership of an industrial association, engaging or not engaging in lawful industrial activity. It is also an offence to knowingly or recklessly make false or misleading representations about a person’s workplace rights.
 
Other general protections
 
A person must not discriminate against an employer because his/her employees are covered by the NES or because proposed employees will be covered by a particular type of instrument or one made with a particular union. A person must not require another person to make an individual flexibility agreement as a condition of employment or to employ or engage or not employ or engage a person or assign particular duties to a person. An industrial association, officer or member must not demand bargaining fees (unless by prior contract) or claim strike pay.
 
Unfair dismissal
 
The proposed legislation broadens the scope of unfair dismissal laws to cover all employers, subject to an employee serving a qualifying period. The qualifying period is six months service in the case of an employer with 15 employees or more, or 12 months for small businesses. Currently, unfair dismissal laws only apply to an employer who employs more than 100 employees. Employees covered by a modern award or enterprise agreement, and instrument-free employees earning less than the high income threshold, ie $100,000 pa indexed from 27 August 2007 (currently $104,600 pa), will be able to make a claim. The underlining principle for unfair dismissal laws continues to be the determination of whether the dismissal was ‘harsh, unjust or unreasonable’, with an emphasis for the primary remedy to be the employee’s reinstatement, rather than the payment of compensation to an employee. Applications for unfair dismissal will need to be made within seven days of dismissal. A ‘Small Business Fair Dismissal Code’ (less than 15 employees) has been developed and can be viewed online.
 
Redundancy
 
The Bill provides a narrower definition of redundancy than the current ‘genuine operational reasons’ exception. An employee will be genuinely redundant if:
  • his/her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise
  • the employer has complied with any consultation requirements in a modern award or enterprise agreement
  • it was not reasonable in all the circumstances to redeploy the employee within the enterprise of the employer (or an associated entity of the employer).
 
The Bill proposes the inclusion of injunctions, compensation and other orders as possible remedies relating to unfair dismissal. For example, an employer who attempts to implement redundancies without having complied with the consultation procedures under an instrument may have an injunction taken out restraining the employer from making employees redundant.
 
The unfair dismissal laws are expected to operate from 1 July 2009.
 
Industrial action
 
Many of the current provisions of the Workplace Relations Act remain in the proposed legislation, including it remaining unlawful to take industrial action during the nominal life of an enterprise agreement. To be protected, industrial action must still be authorised by a secret ballot and three working days notice of the action must be given. Protected action ballots will usually be conducted by the Australian Electoral Commission (AEC). Other aspects of protected action include:
  • an application can be made from 30 days before the nominal expiry date of the existing agreement
  • the provisions allow for easier access to ballots by non-union members
  • where conducted by the AEC, a ballot will be fully funded by the government
  • a ballot order can still only be made where the applicant is genuinely trying to reach agreement
  • where a ballot authorises, for example, 12-hour stoppages and employees take three such stoppages in a row, only the first would be authorised
  • if a ballot order is appealed, FWA cannot grant a stay of the original order.
 
Protected industrial action can be suspended or terminated where protracted industrial action is causing significant economic harm. Where protected action is terminated, FWA may arbitrate a workplace determination.
 
Union right of entry
 
While most of the current provisions will continue to apply, union right of entry has been expanded to permit union access in certain circumstances. In all cases:
  • the authorised officer (union official with an authority) must give at least 24 hours written notice to the occupier and any 'affected employer' of his/her intention to enter identifying when the official proposes to enter
  • an 'affected employer' for a suspected breach of the Act or 'fair work instrument' employs a member of the union who works on the premises and is affected by the suspected contravention
  • for a suspected breach of OHS, has one or more employees working on the premises
  • entry is confined to working hours
  • while on site, the official must comply with the employer’s OHS requirements
  • for non-OHS entry the official must comply the employer’s reasonable requests about the route to be taken between parts of the site and any room to be made available
  • OHS entry must comply with state OHS legislation requirements
  • an official can enter to investigate a suspected contravention of the Act; a modern award, enterprise agreement, workplace determination or FWA order which applies to an eligible member who performs work on the premises
  • the official must reasonably suspect the breach has occurred/is occurring and the suspected breach must affect an eligible member who performs work on the premises and relate to his or her work
  • the official may inspect work, processes, objects or inspect and copy relevant records, including non-member records, and interview employees who are eligible to be members and who agree
  • the official must give a written notice to produce within five days and the notice must allow 14 days to produce
  • inspection must be at the employer’s premises or some other agreed location
  • an official may enter to hold discussions with employees performing work on the premises who are eligible to be members and who wish to participate in discussions
  • an official can enter in accordance with the relevant state’s OHS legislation, and may, if investigating a suspected breach, inspect 'employment records' and comply with state permit requirements
  • FWA can determine disputes about right of entry but its determination cannot expand the Act’s rights
 
This means that unions will be able to enter premises that are currently award-free. 
 
Strike pay
 
The proposed legislation continues the current prohibition on the payment of ‘strike pay’ or for an employee or union to demand it. Where industrial action is unprotected, the current minimum deduction of four-hour pay will continue to apply, regardless of the length of the strike action. 
 
Where industrial action is protected, the deduction is only for the length of the stoppage, although additional rules apply to overtime and partial work bans.
 
Stand-down
 
The Bill provides for an employer to stand down an employee when the employee cannot be usefully employed because of any of the following reasons:
  • industrial action (other than action involving the employer)
  • a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown
  • a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
 
If an employer cannot stand down an employee in these circumstances, the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment. Stand down does not apply when an employee is absent on authorised paid or unpaid leave of absence, meaning an employee may take (say) annual leave during all or part of a stand down period. Otherwise, the period of a stand down is unpaid. The relevant modern award may also contain a provision for stand down.
 
An employee, a union with a member affected or an inspector may challenge a stand down, or threatened stand down before FWA, which can decide to terminate or prevent a stand down.
 
Discrimination
 
The proposed legislation contains provisions referred to as ‘general protections’, which deal with unlawful dismissal, freedom of association, sham arrangements relating to independent contractors and other provisions relating to coercion during agreement making. However, the Bill refers to ‘adverse action’ against employees on a number of discriminatory grounds. This may now have an expanded application to include both direct and indirect discrimination.
 
Compliance
 
The enforcement and compliance provisions of the proposed legislation are similar to those in the current Workplace Relations Act. Most enforcement matters will be heard by the Federal Court or Federal Magistrates Court, but state and territory courts will be able to hear certain matters such as an alleged underpayment of wages. The remedies available for breach of industrial instruments has been expanded to include injunctions, compensation and other orders.
 
Maximum penalties for civil penalty provisions remain at $33,000 for employers who are corporations.
 
Transitional legislation
 
The proposed legislation does not contain details on the transitional arrangements relating to the current provisions under the Workplace Relations Act and the proposed Fair Work Act. These arrangements will be set out in the supplementary Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009, expected to be introduced to the Parliament in March 2009. Among other matters, it is expected the transitional Bill will:
  • provide that existing agreements will continue until terminated or replaced by a new agreement made under the new bargaining framework
  • allow parties to modernise enterprise awards so that they can continue to operate in the new regime
  • allow FWA to make orders to ensure that an employee’s pay is not reduced as a result of transitioning onto a modern award
  • seek to ensure that the NES and minimum wages will apply to all employees from 1 January 2010, including those covered by existing agreements.
New acronyms
 
As WorkChoices introduced new terms into the workplace relations vernacular, so will the proposed Fair Work legislation. To assist subscribers when reading any published material relating to the new Fair Work legislation, the following are acronyms that may be used in articles when the Fair Work law is enacted.
  • BOOT: the Better Off Overall Test, which will eventually replace the current no-disadvantage test and will apply to agreements lodged with FWA from 1 January 2010. It is understood the current no-disadvantage test will apply to agreements lodged from 1 July 2009, although these matters are expected to be heard before the Australian Industrial Relations Commission  and the test will be applied against the current WorkChoices Standard and current awards/NAPSAs until the commencement of modern awards and the NES (1 January 2010) for agreements lodged with FWA from 1 July 2009.
  • FWA: the proposed legislation will establish a new body called Fair Work Australia. From 1 July 2009, the FWA will replace the Australian Industrial Relations Commission, the Australian Industrial Registry, Australian Fair Pay Commission, Australian Fair Pay Commission Secretariat, Workplace Authority, Workplace Ombudsman and the Australian Building and Construction Commission (absorbed into OFWO on 1 February 2010).
  • FWAct: it is expected the Bill will be named the Fair Work Act once it is passed by the Commonwealth Parliament.
  • FWO: a related but independent statutory body to FWA, the Fair Work Ombudsman will also be created (although will perform a similar role to the current Workplace Ombudsman), which will have an educative role and will have inspectors with powers to investigate and enforce legislative requirements.
  • MEA: multiple employer agreement is an agreement where a group of employers decide to seek collective negotiations together.
  • MWP: minimum wages panel is a seven-member panel that is part of FWA which will review wages in modern awards annually.
  • NES: the 'National Employment Standards' refers to the 10 minimum employment conditions that will apply to all employees (including non award employees) covered under the FWAct.
 
Source: Paul Munro, IR Consultant.
 
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