Overview of the new workplace legislation

Analysis

Overview of the new workplace legislation

On 25 November, the Federal Government tabled in Parliament its proposed legislation to replace the current Workplace Relations Act. The proposed legislation is called the Fair Work Bill 2008. Here is an overview of the legislation prepared by solicitors from a specialist employment law firm.

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On 25 November, the Federal Government tabled in Parliament its proposed legislation to replace the current Workplace Relations Act. The proposed legislation is called the Fair Work Bill 2008. Here is an overview of the legislation prepared by solicitors from a specialist employment law firm.
 
Australian Business Lawyers* specialises in workplace law, as well offering corporate and commercial law services.
 
The Bill is largely consistent with the Government’s Forward with Fairness policy as outlined before the election. The Bill will need to go through the Senate and so it is not yet law. In fact, it is possible that there could be changes to the Bill. The Government has announced that some aspects of the legislation will take effect in July next year while other aspects will take effect on 1 January 2010.
 
Future articles will examine each part of the Bill in detail, addressing what is unchanged and what is truly new. This article contains a brief overview of the main aspects of the Bill.
 
Minimum conditions
 
From 1 January 2010, ten National Employment Standards will take effect. These represent minimum employment standards and will be enforceable.These standards will be relevant to ALL employees of constitutional corporations. The most significant of the new standards are those related to redundancy for non-award employees (up to 16 weeks), parental leave (extra 12 months — unpaid) and flexibility for parents (right to request flexibility).
 
From 1 January 2010, new modern awards will commence. For employers with award-covered employees, modern awards could result in changes to conditions, and some of these may be quite significant.
 
Enterprise agreements
 
Enterprise level collective bargaining will be permitted. The only individual agreements available will be those utilising award and agreement flexibility provisions. No Individual Transitional Employment Agreements will be able to be made after 31 December 2009.
 
Collective agreements will be known as 'enterprise agreements'. Employers will be able to enter into collective agreements with employees, and it will also be possible for agreements to be made with unions representing employees. The legislation also provides for greenfields agreements and multi-employer agreements.
 
It will be necessary to meet certain conditions in order to make an enterprise agreement. For instance, an employer will need to notify each employee of the right of the employee to be represented in the bargaining process. Employees will also need to be given a copy of the proposed agreement and information about the approval process. Employers will be required to take reasonable steps to explain the agreement to employees, and that explanation must take into account the particular circumstances and needs of those employees.
 
Better-off-overall test
 
Enterprise agreements will need to be submitted to a new body to be known as Fair Work Australia. In order to approve an agreement, Fair Work Australia will need to be satisfied that the enterprise agreement meets the better-off-overall test. In practice, this is not expected to be much different from the current no-disadvantage test.
 
Good-faith bargaining
 
Good-faith bargaining obligations will apply to parties negotiating enterprise agreements. These obligations essentially go to the process of bargaining. For instance, bargaining representatives must attend and participate in meetings at reasonable times and respond in a timely manner to proposals made by other representatives.
 
Importantly, these good-faith bargaining obligations do not require employers to make concessions during bargaining. Fair Work Australia will have the power to intervene in workplace bargaining and will be able to make orders where a negotiating party has breached a good-faith bargaining obligation.
 
Industrial action
 
The legislation will continue with the notions of protected industrial action and unprotected industrial action. Protected industrial action will be available during bargaining for enterprise agreements. As with the current laws, protected industrial action will require a secret ballot of employees.
 
The rules surrounding whether payments are to be made for periods of industrial action will change. For example, in a situation where employees impose partial work bans, an employer will be required to give written notice to employees that they will not be paid.
 
Fair Work Australia will be able to intervene in bargaining disputes, even in circumstances where employees have taken protected industrial action.
 
Dispute resolution
 
It will be a requirement that each modern award and enterprise agreement contain a procedure for settling disputes about matters arising under the award or agreement, or the National Employment Standards.
 
Fair Work Australia will be able to deal with these disputes if they are not resolved at the workplace.
 
Union empowerment — right of entry
 
Unions will continue to have rights to enter workplaces. In some respects, the rights are similar to those that currently exist. For instance, a union official will need to hold a valid right-of-entry permit and give at least 24 hours notice in order to enter work premises.
 
However, the new legislation provides a right of entry to workplaces without the requirement for there to be an award or enterprise agreement binding on the union. In this regard, the new legislation goes further than the current laws. As a result, unions will be able to enter workplaces to hold discussions with employees covered by Australian Workplace Agreements, Individual Transitional Employment Agreements, non-union collective agreements, and agreements with other unions as a party.
 
Freedom of Association laws will ensure employees remain free to be represented by unions and provide more comprehensive protections for those participating in collective activities (such as representing other employees or bargaining). Sanctions will apply for adverse actions taken against any employee exercising these rights.
 
Unfair dismissal
 
Currently, unfair dismissal laws do not affect employers with fewer than 101 employees. Under the new legislation, unfair dismissal laws will apply to all employers under the federal workplace laws. This opens up the ability for employees to make claims against employers regardless of the number of employees.
 
The process of dealing with unfair dismissal claims will also differ from the current processes. Fair Work Australia will be given significant discretion in how it handles matters. There is a presumption against hearings and a real potential for many matters to be dealt with quite informally, potentially without any appearances by the parties.
 
Exclusions
 
The unfair dismissal laws will continue with various categories of exclusion.For instance, an employee employed within a small business (a business with fewer than 15 employees) will be unable to make a claim if the employee has not served at least 12 months of employment. For all other businesses, an employee must serve at least six months of employment.
 
Currently, an unfair dismissal claim cannot be made against an employer if the dismissal is due to operational reasons. This exclusion will not be continued under the new legislation, although a dismissal will not be unfair if it is for reasons of genuine redundancy.
 
Regulatory bureaucracy — Fair Work Australia
 
To administer the changes a new body will be created — Fair Work Australia. Its tasks will include:
  • dealing with industrial action and dispute resolution
  • agreement approval and facilitating collective bargaining
  • dealing with unfair dismissal claims
  • maintaining awards and reviewing minimum pay rates.
 
Fair Work Ombudsman
 
A body known as the Fair Work Ombudsman will be responsible for enforcement activities such as investigations, issuing compliance notices, and carrying out prosecutions.
 
Courts
 
The Federal Court and Federal Magistrates Court will obtain Fair Work Divisions under the legislation. These Divisions will be able to make orders to remedy a contravention of the legislation, deal with small claims and enforce both the National Employment Standards and award entitlements.
 
Transitional arrangements
 
The Government has foreshadowed that it will introduce legislation to regulate the movement from the current system to the new system.When details are released, we will summarise the legislation.
 
 
 
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