Employers warned: Don’t ‘hope for the best’ in new IR system

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Employers warned: Don’t ‘hope for the best’ in new IR system

Employers have been warned to audit their current employee agreements and not wait for the new IR legislation and ‘hope for the best’.

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Employers have been warned to audit their current employee agreements and not wait for the new IR legislation and ‘hope for the best’.
 
Joe Catanzariti, partner Clayton Utz, and secretary of the Industrial Relations Society of Australia, said employers will need to provide a lot of training for their HR departments to cope with the new legislation.
 
Catanzariti told the 4th Annual Industrial Relations Conference in Sydney last week that the Fair Work Australia (FWA) system is a rewrite of the IR laws, not an amendment.
 
New framework
 
‘It is a new framework for terms and conditions of employment,’ he said.
 
‘It is a new industrial relations landscape — after this, no government will go back to the WorkChoices agenda.’
 
Catanzariti said the balance has been tipped in favour of employees and no award or agreement can exclude the NES.
 
He said the new legislation will have the same coverage as WorkChoices (of around 85% of employees), and there will be a debate regarding the States powers over the remaining 15%.
 
Massive litigation in NZ
 
On good faith bargaining, Catanzariti said that in New Zealand there has been massive litigation over the process.
 
‘There has been a huge debate over what is "‘sensitive" information,’ he said.
 
He said it was possible overseas companies operating in Australia will have to go back to the parent corporations to establish what information could be revealed to unions during the negotiating process.
 
As well, there is the issue of exactly what is meant by ‘genuinely considering’ the other side’s proposals.
 
Must give reasons
 
‘You must give reasons for the response made to the other side’s proposals and HR is going to need a lot of training to deal with this,’ he said,
 
Catanzariti said that if FWA makes an order, bargaining must be completed in three weeks or it can arbitrate.
 
He said the $100,000 cut-off point for award coverage must be guaranteed.
 
‘You can’t have a salary of $80,000 with the opportunity to earn more, and this will affect people such as sales reps.
 
Rules have changed
 
Catanzariti said that even though AWAs can continue when both parties agree, the termination rules had changed.
 
‘Once expired either party can terminate with 90 days' notice,’ he said.
 
‘If the AWA is terminated, the workers are then covered by the relative collective agreement or award (not the minimum conditions as was with WorkChoices).'
 
Catanzariti forecast problems with the new transfer of business arrangements, where current working conditions are carried across to the new owner.
 
‘There will have to be negotiations, otherwise the existing conditions transfer, and don’t lapse after 12 months as in WorkChoices,’ he said.
 
‘Sack ‘em all’
 
‘I suspect new employers will say: “I don’t want the workforce, sack ‘em all.”'
 
Catanzariti said the new right-of-entry provisions do make it easier for trade unions.
 
‘Employers will need a checklist to see the unions are doing it correctly,’ he said. ‘Otherwise they will use it as an excuse to walk in.'
 
‘Will there be harmonised industrial relations in 2010? I think it highly unlikely.’
 
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