How does the Fair Work Act 2009 impact your company? With so much media coverage about different aspects of and amendments to the proposed changes to the Industrial Relations system you may be a little confused.

The Fair Work Act

The Fair Work Act repeals the Workplace Relations Act (Workchoices) and establishes Fair Work Australia and the Fair Work Ombudsman, replacing the Workplace Authority and the Workplace Ombudsman.

Important Dates

1 July 2009: The majority of the new Fair Work Act commences with the key areas being:

• Unfair dismissal - Upon completion of a qualifying period an employee can lodge an unfair dismissal claim.
  Businesses that fit the definition of a small business will have a twelve month qualifying period in which they can dismiss employees free from unfair dismissal, whilst those that do not meet the Fair Work definition of a small business will have a six month qualifying period. For an employer to dismiss someone fairly, the employer will have to comply with a new code. A Fair Dismissal Checklist has been developed to help small business employers comply with the code. It is in the interests of the employer to complete this checklist at the time of dismissal and to keep it in case of a future unfair dismissal claim.
• Agreement making - Unions may become parties to enterprise agreements if they represent at least one employee from the workplace.
  The new legislation from 1 July actively promotes collective bargaining. Where the majority of employees wish to bargain collectively with an employer and the employer refuses, Fair Work Australia possesses the power to change this. Where the majority of employees support collective bargaining, Fair Work Australia can determine that the employer must bargain and act in good faith during this process.
• General protections - Adverse action cannot be taken against employees for exercising their legitimate rights.
  New provisions allowing employees to sue their employers on a number of grounds will apply from July 1. The provisions are based on freedom of association and unlawful termination provisions. The protections apply to all employees for a broader range of rights and cover actions falling short of dismissal. This includes actions that adversely affect the employee's position, injures or discriminates against the employee and even covers refusing to employee someone and threats to take adverse action.
• Union right of entry - From 1 July a union official can legally enter an employer's premises if:
  • The official has a valid entry permit
  • The official gives proper notice of the entry (which, sometimes, is no notice at all), and
  • The official is entering for one of the following three reasons:
    1. To investigate a suspected breach of the Act or an industrial instrument;
    2. To hold discussions with employees; or
    3. Under state occupational health and safety laws.
• Transfer of business - Additional obligations are placed on employers involved in transferring employees from one company to another or other company restructures.
  Whether you're thinking of buying or selling a business the new transfer of business laws require close attention due to the potential cost through the transfer of employees. If the work to be done is substantially the same and there is a "connection" between the old employer and the new employer and if the employee is hired by the new business within three months, then the transferred employee will be covered by the previous employer's agreements.

1 January 2010 - The National Employment Standards (NES), the new set of 10 minimum employment standards (introduced in Issue 2 of the YHRM Newsletter), commence from this date. Featured in the following two articles below are two key aspects of the NES, flexible working arrangements and changes to redundancy pay which are significantly new or changed.

1 January 2010 - The new Modern Awards replace existing Federal and State awards from this date. Award modernisation is gathering pace with the release of final Stage 2 modern awards, the final Stage 1 modern awards were released in December 2008. The Stage 1 and 2 Awards include important industries and occupations such as call centres, clerks (which will affect almost all employers across Australia), financial services (including banks and insurers - some of whom are largely award free), hospitality, IT, manufacturing and retail. Stage 3 and 4 awards are yet to be finalised.

With only limited exceptions, the modern awards will apply to all employers within the national system from 1 January 2010 and will replace most current federal awards and former state awards.

We will discuss these in more detail in our next newsletter, however, if you have any concerns about the new laws as they apply to your business please contact Your HRmanager on (02) 9415 3561.