Fair Work Bill

11 December 2008 Topics: Workplace relations and safety

On Tuesday 25 November 2008 the Fair Work Bill was introduced in to the House of Representatives.

This Bill, if passed in its entirety, will replace the Workplace Relations Act 1996 and apply to all employment relationships where the employer is:

  • a trading or financial corporation;
  • operating a business in Victoria, the Australian Capital Territory or the Northern Territory;
  • employing air crew or for maritime workers.

The Bill is introduces a number of key concepts into the employment relationship and amends other features currently in existence.

National Employment Standards

The 10 National Employment Standards are the baseline minima that must be included in all employment arrangements, either through awards, enterprise agreements or common law contracts.

The National Employment Standards include:

  • the maximum weekly hours;
  • a request for flexible working arrangements;
  • parental leave and related entitlements;
  • annual leave;
  • personal/carers leave and compassionate leave;
  • community service leave;
  • long service leave (a significant change from Workchoices which preserved State rights);
  • the right to public holidays;
  • notice of termination and redundancy pay; and
  • issuing of a Fair Work Information statement.

For more information on the content of the National Employment Standards please refer to our Legal Alert “Safety Net for Australian Workers”.

Modern Awards

The simplification of the awards process currently being undertaken by the Government will create the new Modern Awards. It is the Government’s intention that every employee be covered by an award if they earn less than $100,000 a year. This will mean that those occupations that were not traditionally covered by an award will now have an award setting the base terms and conditions of employment. It is the Government’s intention that the modern awards will be published by the time the Bill takes effect on 1 January 2010.

There are specific terms which are not allowed to be included in modern awards. These include terms about payments and deductions for the benefit of the employer; the right of entry for unions; terms that are discriminatory; terms that contain State base differences; and those dealing with long service leave. Awards are to be reviewed every four years. Reviews will be undertaken by the new Fair Work Australia which will, in this respect, essentially replace the Australian Industrial Relations Commission.

Enterprise Agreements

The workplace agreements that were introduced by the Howard Government have been removed and will be replaced by Enterprise Bargaining Agreements. Only collective agreements can be entered into under the Bill.  Greenfields Agreements can still be entered into by new businesses who do not have any employees at the time the agreement is created.

Rights and responsibilities of employees, employers and organisations

The Bill outlines the rights of employees and employers in relation to partaking industrial action. It also prevents employers from entering into sham arrangements through independent contractor arrangements. The Bill also reinstitutes significant rights of entry provisions for trade union officials to enter a workplace.

Unfair Dismissal

The 100 employee exemption that was introduced by Workchoices has been removed by the Bill. All employees are entitled to pursue their rights for unfair dismissal by application to Fair Work Australia. Those employees engaged by small businesses (those employing less than 15 employees) can only apply for the right to unfair dismissal after one year of employment.

All claims for unfair dismissal will be heard by Fair Work Australia firstly through a conference, similar to that of the current conciliation process, followed by a hearing (arbitration) if the parties cannot reach agreement during the conference. Many of the rules that apply to these conference and hearings are still unclear.  In the first instance it appears that the unfair dismissal process may be similar to what has been undertaken by the Industrial Relations Commission, however there is also scope for them to be significantly different.

We will provide further information as it becomes available.

Fair Work Australia

The Fair Work Bill will see the disbanding of the Australian Industrial Relations Commission after 107 years of existence. The Bill implements a new authority known as Fair Work Australia.

Fair Work Australia has a number of purposes. It is will act as a conciliator between employers and employees during termination disputes and industrial disputes and also monitor employment relationships. The Bill also creates an organisation known as the Fair Work Ombudsman, which appears largely similar to the current Workplace Ombudsman.

The purpose of this alert is to give a brief overview of the areas for which the Bill prescribes. We will continue to provide a more detailed outline of each of these areas over the coming months.

If you have any questions regarding the content of the Bill please contact a member of our workplace relations team on 3231 2444.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.