FROM 27 MARCH 2006 THE NEW FEDERAL GOVERNMENT INDUSTRIAL
RELATIONS LEGISLATION IS OPERATIVE.
WHAT DOES THIS MEAN FOR EMPLOYERS?
WHAT ARE THE KEY CHANGES?
WHAT IF I AM GOVERNED BY AN AWARD?
WHAT ARE THE ADVANTAGES OF HAVING A WORKPLACE AGREEMENT?
MAJOR CHANGES TO UNFAIR DISMISSAL
WHAT DOES THIS MEAN FOR EMPLOYERS?
* The new laws will only apply to Employers who are Constitutional Corporations (unless if you are an Employer in the State of Victoria or a Territory);
* If all your Employees are governed by a State Award then that Award will be deemed a Federal Notional Agreement and you will have to comply with the new Federal laws;
* If all your Employees are governed by a Federal Award then you will have to comply with the new Federal laws;
* If all your Employees are governed by an existing Federal Certified Agreement or Australian Workplace Agreement then you do not have to comply with the new Federal laws and can continue to legally operative under your Certified Agreement; and
* If all your Employees are governed by an existing State Certified or Enterprise Agreement then it will be deemed to be a “Preserved State Agreement” but you do have to comply with the new Federal laws except for those matters deemed prohibited content.
WHAT ARE THE KEY CHANGES?
The establishment of 5 minimum conditions of employment (referred to as “the Standard”) which applies to all Employees (from the Chief Executive down!) being:
- Maximum hours of 38 hours per week average over a maximum period of 12 months with the ability to work “reasonable additional hours”.
- 152 hours or 4 weeks paid Annual Leave (with additional week for shift workers).
- 76 hours paid Personal/carer’s Leave.
- 2 days per occasion paid Compassionate Leave.
- 12 months unpaid Parental Leave.
OUR RECOMMENDATION
Ensure all Salaried contracts (or what are termed common law contracts for non-Award or Agreement Employees) are immediately reviewed to see if they comply with “the Standard” and then take either of the following steps:
- Re-issue new contracts or a variation to the Employee’s existing contract; or
- Have a “Standard” checklist prepared to ensure you know what parts of the contract are less than the WorkChoices Standard and therefore unenforceable.
Furthermore, you will need to ensure all staff complete timesheets (including senior management eg CEO).
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WHAT IF I AM GOVERNED BY AN AWARD?
* All Awards will be simplified from the current 20 allowable matters to 13 allowable matters, prohibited content (any matter dealing with Unions or not pertaining to the employment relationship eg union payroll deductions) will be removed from the award
* Awards will be rationalized ie the current Federal Hotels Award, various State Hotels Awards will probably be made into one “super” Hospitality Award covering Hotels, Clubs, and Restaurants.
* Wage rates, penalty rate provisions and the classification structure will be removed from Awards
OUR RECOMMENDATION
Do a workplace agreement otherwise you will be in a situation where you have to refer to potentially 3 different documents to work out employee entitlements (ie Award, the Standard, common law contract).
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WHAT ARE THE ADVANTAGES OF HAVING A WORKPLACE AGREEMENT?
- The elimination of the no-disadvantage test (ie comparison of the Agreement to the relevant Award). This has been replaced with the requirement to match what are termed the “basic periodic rates of pay” set by the Australian Fair Pay Commission (which specifically exclude penalty rates and allowances) and also have a flat 20% loading for casual Employees.
- No requirement to have the Agreement approved by the Australian Industrial Relations Commission rather when an Agreement is filed with the Office of the Employment Advocate it will legally operate from that date and the onus is on the Employer to ensure the Agreement complies with the new legislation.
- No requirement to include matters such as redundancy pay, weekend, public holiday, and overtime penalties, rest pauses, monetary allowances, incentive based payments and bonuses, and annual leave loading (although specific reference must be made in the agreement indicating these provision will not operate).
OUR RECOMMENDATION
A workplace agreement will remove the complexity and confusion associated with Awards and provide clear guidelines of terms, conditions and obligations of employers and employees in that particular workplace. |
MAJOR CHANGES TO UNFAIR DISMISSAL
- Employees employed by an Employer with less than 100 employees cannot bring an unfair dismissal claim against the Employer. However, if the Employee is dismissed for a reason that is discriminatory the Employee can bring an application for unlawful termination against the Employer.
- Extension of the statutory probationary period from 3 months to 6 months, so that an Employer can dismiss an Employee within this period without them being able to bring unfair dismissal proceedings (with the exception of unlawful termination claims). Also note that this will only apply to Employees employed from 27 March 2006.
- Employees who are genuinely made redundant cannot bring unfair dismissal proceedings against an Employer (with the exception of unlawful termination claims).
OUR RECOMMENDATION
Even though most employers may be exempted from the unfair dismissal provision, they are still vulnerable to an unlawful termination claim and therefore should always seek advice when considering terminating an employee. |
PLEASE CONTACT US ON 02 8354 1844 FOR FURTHER IMPORTANT INFORMATION
ON HOW WORKCHOICES CAN ASSIST YOUR BUSINESS. |
