Archived Industrial News: November 2008

Industrial Relations Laws Post WorkChoices

The detail of Labor’s pre-election industrial relations policy “Forward with Fairness” is becoming clearer with the release of information of the new system to replace WorkChoices. The legislation for the new system, known as the Substantive Bill, is due to be tabled in the Parliament before the end of the year. The Government has announced that two key areas of the new system relating to collective bargaining and protection from unfair dismissal will begin from 1 July 2009. Remaining provisions will become fully operational from 1 January 2010.

Key parts of the new system are summarised below and further information can be found in a series of 10 fact sheets at the website below. http://www.workplace.gov.au

Safety net
The new system will provide a stronger safety net of wages and conditions made up of two parts: 10 legislated National Employment Standards (NES); and additional conditions contained in new modern awards. Awards will apply to employees earning $100,000 or less. Wage rates contained in awards will be reviewed annually by a new independent tribunal called Fair Work Australia. Employment conditions contained in awards will be reviewed every four years by the same body.

Minimum wages
Minimum wages set out in awards is a key element of the safety net. Annual adjustments by Fair Work Australia will be required to take into account a range of factors relating to the economy as well as others factors. These include achieving social inclusion through increased workforce participation and consideration of the relative living standards and needs of the low paid. The process will be open and transparent and will allow for all parties to make submissions.

Freedom of association and protection from unfair treatment
The new laws will contain a new set of unfair treatment provisions making it unlawful for a person to dismiss, discriminate, refuse to employ, or prejudicially alter the position of a person because that person has or exercises a workplace right. This incorporates rights under a workplace agreement, award or laws.

Bargaining in good faith
Agreement making will be subject to new requirements on the negotiating parties to bargain in good faith. Where a majority of employees wish to have a collective agreement, the employer is required to bargain collectively with them. The Act will set out good faith bargaining obligations which will be:

Union members will be entitled to have their union represent them at the bargaining table. If a party is not bargaining in good faith, the matter can be taken to Fair Work Australia for orders to ensure the integrity and fairness of the process. The new laws also provide for assistance from Fair Work Australia to facilitate multi-employer agreements in relation to low paid employees and those without access to collective bargaining.

Approval and content of enterprise agreements
Bargaining between the parties can take place over a wider range of matters provided it relates to the relationship between the employee and the employer or the employer and union to be covered by the agreement. Agreements will have to contain a dispute resolution procedure, a requirement to consult where there is significant change, a right for employees to be represented and an agreement flexibility clause.

For an agreement to be approved by Fair Work Australia, bargaining parties on both sides will have to lodge a statutory declaration, there must be genuine agreement and the agreement must ensure that every employee is better off overall. The terms of the agreement must also not contravene the NES or contain unlawful content. It will come into operation seven days after approval by Fair Work Australia, or at a later date if one is specified in the agreement.

Unfair dismissal
Employees, including casuals, who have served a qualifying period of six months, (or 12 months if employed in a small businesses with less than 15 employees), will be able to make a claim for unfair dismissal.

A Fair Dismissal Code for small business has been developed setting out a process for dismissal and principles relating to fairness that should be applied. If an employee is dismissed and the employer has followed the Code, the dismissal is deemed fair.

Unfair dismissal claims will be lodged with Fair Work Australia. Reinstatement will be the remedy available unless it is not in the interests of either party. If reinstatement is not feasible, compensation up to a maximum of six months pay will apply.

Debbie Richards
ANF Federal Industrial Research Officer