What’s happening in 2011 — employment law changes


What’s happening in 2011 — employment law changes

With 2010 drawing to a close, it’s time to note ‘what’s on the horizon’ for next year — looking at the anticipated changes to employment laws that may be forthcoming in 2011.


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With 2010 drawing to a close, it’s time to note ‘what’s on the horizon’ for next year — looking at the anticipated changes to employment laws that may be forthcoming in 2011.
The matters referred to in this article are listed in anticipated chronological order.
Change to definition of small business employer — unfair dismissal
Currently, the definition of a small business employer for the purposes of the relevant minimum employment period under unfair dismissal laws is determined by Sch 12A of the Fair Work (Transitional and Consequential Amendments) Act 2009 (TAct). 
Currently ‘small business employer’ is defined to mean an employer who employs fewer than 15 full-time equivalent employees at the time of an employee’s dismissal. This means, for example, an employer could employ a total workforce of 29 part-time employees working 19 ordinary hours per week and still be considered a small business employer under this definition. To reach the threshold of 15 full-time equivalent employees, the total number of ordinary hours worked by the employer’s employees would need to be at least 2280 hours, calculated over a 4-week period (15 employees × 38 hours × 4 weeks). The provision in the TAct applies to dismissals prior to 1 January 2011.
For an employee to claim unfair dismissal under the Fair Work Act 2009, he or she must have completed the relevant minimum period of employment with the employer. In the case of a small business employer, this is 12 months employment, otherwise the minimum period of employment is 6 months.
However, from 1 January 2011, the reference to 15 full-time equivalent employees will cease, with s23 of the Fair Work Act coming into effect. In this section, a ‘small business employer’ is defined to mean an employer who employs fewer than 15 employees at a particular time. For the purposes of calculating the number of employees employed by an employer at a particular time, all employees employed at the time are to be counted (including the employee or employees being dismissed), and a casual employee who is employed on a regular and systematic basis. This means that, in the above example (total of 29 part-time employees), the employer will not be a small business employer because the total number of employees is at least 15 employees or more.
Government paid parental leave
The Federal Government’s paid parental leave (PPL) scheme will apply to births and adoptions on and from 1 January 2011.
The PPL scheme provides 18 weeks of government-funded PPL to eligible working parents paid at the federal minimum wage (currently $569.90 per week). A person (employee, contractor or self-employed) is eligible for PPL if he/she is the primary care giver to a new born child or adopted child under 16 years. The person must have worked continuously for at least 10 of the previous 13 months and for at least 330 hours (approximately one day per week) during that period, and the person’s income must be less than $150,000 pa.
Someone wanting PPL must apply to the Family Assistance Office in the period between 3 months before the expected date of birth or adoption and 12 months after that date. PPL does not count as ‘paid leave’ for the NES and, therefore, does not count as service.
Division 2B reference state awards
A recent decision by Fair Work Australia extended the operation of Div 2B State Awards until 31 January 2011. For those affected, from 1 February 2011 Div 2B State awards will cease to apply and the relevant modern award(s) will cover the employer in their place.
The phasing-in arrangements under transitional provisions will apply from 1 February 2011. The decision only affects:
  • private sector employers in New South Wales, Queensland, South Australia and Tasmania, which are not constitutional corporations and were referred into the national system on 1 January 2010
  • for their employees who were employed under state awards prior to 1 January 2010.
The decision does not affect:
  • any employer in Victoria, Western Australia, Northern Territory or the Australian Capital Territory
  • any constitutional corporation operating in New South Wales, Queensland, South Australia and Tasmania
  • most employees who are covered by an operating agreement.
Sunset rules for various industrial instruments — Western Australia
Schedule 3 of the TAct provides a ‘sunset’ clause for various pre-Fair Work Act industrial instruments, although this provision applies only to those employers who are not a ‘national system employer’. Because the majority of the states have referred their industrial relations powers to the Commonwealth, these industrial instruments will continue to operate in those states. Consequently, the only employers who are not national system employers are unincorporated employers (eg sole traders and partnerships, operating in Western Australia). For these employers, the following instruments are terminated from 27 March 2011 or when replaced by a state employment agreement (within the meaning of the Workplace Relations Act 1996), whichever occurs first:
  • a Div 3 pre-reform certified 
  • old IR agreement 
  • s170MX award in force just before 27 March 2006
Under the same sunset provisions, a NAPSA (other than an enterprise NAPSA) will terminate on the fourth anniversary of the NES commencement date (ie 1 January 2014).
Annual wage review
Fair Work Australia will conduct a hearing in relation to the 2011 annual wage review of minimum wage rates prescribed under modern awards, with any variation being operative from the first pay period to commence on or after 1 July 2011.
This review will also determine a national minimum wage for apprentices and junior employees who are award/agreement-free.
Modern award review
Schedule 5 of the TAct provides that review of all modern awards (other than modern enterprise awards and state reference public sector modern awards) is to be conducted by Fair Work Australia after the first two years from the commencement date of the NES (ie 1 January 2012).
However, the processes and proceedings in relation to this review are expected to commence some time in 2011. This process can also include a review of transitional arrangements in a particular modern award.
Transitional provisions — modern awards
Most modern awards contain transitional provisions, which is the amount representing the difference between an employee’s minimum wage as at 31 December 2009 and the appropriate wage rate under the modern award (either higher or lower) as at 1 January 2010. The transitional amount is subject to a phasing-in period, adjusted on 1 July each year and ceasing on 1 July 2014.
The minimum wage rate is adjusted (up or down) by a percentage of the transitional amount plus any amount awarded in an annual wage review (on 1 July each year). The phasing-in percentage calculated on the transitional amount will be adjusted to 60% from 1 July 2011 (currently 80%).
Public holiday dates 2011 — Australia-wide
The following are the days on which a public holiday has been declared in 2011 for each state and territory. The declaration of a day or part-day as a public holiday by a state or a territory government (either in addition or in substitution) is a public holiday for the purposes of the NES.
National public holidays
  • New Year’s Day holiday — Monday, 3 January
  • Australia Day — Wednesday, 26 January
  • Good Friday — Friday, 22 April
  • Easter Saturday (except SA & WA) — Saturday, 23 April
  • Anzac Day — Monday, 25 April (Tues in Vic)
  • Easter Monday (except Tas) — Tuesday, 26 April (Mon in Vic)
  • Queen’s Birthday (except WA) — Monday, 13 June
  • Christmas Day — Monday, 26 December (Tues in Vic and Tas)
  • Boxing Day (Proclamation Day SA) — Tuesday, 27 December (Mon in Vic and Tas)
Additional holidays to national holidays include:
New South Wales
  • New Year’s Day — Saturday, 1 January
  • Easter Saturday — Saturday, 23 April
  • Easter Sunday (to be advised) — Sunday, 24 April
  • Labour Day — Monday, 3 October
  • New Year’s Day — Saturday, 1 January
  • Labour Day — Monday, 14 March
  • Melbourne Cup Day — Tuesday, 1 November
  • New Year’s Day — Saturday, 1 January
  • Labour Day — Monday, 2 May
  • Royal Qld Show (Brisbane area only) — Wednesday, 17 August
South Australia
  • Adelaide Cup Day — Monday, 14 March
  • Labour Day — Monday, 3 October
Western Australia
  • New Year’s Day — Saturday, 1 January
  • Labour Day — Monday, 7 March
  • Foundation Day — Monday, 6 June
  • Queen’s Birthday — Monday, 28 October
  • Christmas Day — Sunday, 25 December
  • Eight Hour Day — Monday, 14 March
  • Anzac Day and Easter Monday — Monday, 25 April
Northern Territory
  • May Day — Monday, 2 May
  • Picnic Day — Monday, 1 August
Australian Capital Territory
  • Canberra Day — Monday, 14 March
  • Family & Community Day — Monday, 10 October
Source: Paul Munro, IR Consultant.
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