The votes have been counted and Australia has decided to elect the ALP to Government. What changes can we expect to see in relation to industrial relations under this new Government? Below we provide a summary based on policies the ALP has released to date:
Fair Work Australia (FWA) will be established. FWA will cover a full range of industrial relations responsibilities and provide a ‘one-stop-shop’ for IR related issues. FWA will essentially replace the Australian Industrial Relations Commission (AIRC), Workplace Authority (WA), Workplace Ombudsman (WO), Australian Fair Pay Commission (AFPC) and the Office of the Australian Building and Construction Commissioner (ABCC).
The Office of Work and Family will be established to assist employees to balance personal and family responsibilities with work demands.
10 National Employment Standards (NESs) will apply to all employees.
The NESs are: a 38 hour week (with reasonable additional hours); 12 months’ unpaid parental leave (with provision for an additional 12 months on request); flexible work arrangements for parents (on request, until children reach school age); four weeks’ annual leave (five weeks for shift workers); 10 days personal and carer’s leave; two days’ compassionate leave and an extra two days’ unpaid personal leave for emergencies; community service leave; public holidays; information in the workplace; notice of termination and redundancy pay (where employer employs 15 or more people); and long service leave.
The NESs will be in force from 1 January 2010.
FWA will be responsible for the setting of minimum wages.
AWAs made prior to the implementation of Labor’s Transition Bill (expected to be in early 2008) will remain in force and can run their full course (up to 5 years). Existing AWAs can only be terminated while in operation if both parties agree.
Employers will not be able to enter into new AWAs after the implementation of the Transition Bill, but if the employer has previously used AWAs, the employer can enter into Individual Transitional Employment Agreements (ITEA), which may apply up until 31 December 2009.
An ITEA must not disadvantage an employee against a collective agreement, or if there is no such agreement, an award or the AFPCS.
Minimum wages paid under AWAs and ITEAs must reflect any adjustments to minimum wages during the transitional period.
Employees earning over $100,000 will be free to agree their own pay and conditions under an individual agreement, without reference to an award.
If a majority of employees elect to have a collective agreement, the employer can be forced to bargain collectively.
Non-union collective agreements will still be available.
Each collective agreement must include a flexibility clause, allowing for individual agreement between an individual employee and the employer on certain issues.
Agreements can operate for up to four years.
FWA will assess the fairness of agreements against the relevant award provisions. This process will be done ‘on the papers’ (i.e. parties will not be required to attend a hearing at FWA) and shall be completed within seven days.
Will not be available, transitional arrangements will apply to existing greenfields agreements.
The current award system will be simplified and modernised over 2 years (commencing from the beginning of 2008).
New awards will contain 10 basic award conditions, and industry specific information regarding the NESs.
New awards will be in force from 1 January 2010.
If the employer has less than 15 employees: an employee can claim unfair dismissal if employed for at least 12 months.
If the employer has 15 or more employees: an employee can claim unfair dismissal if employed for at least six months.
Claims of unfair dismissal must be brought within seven days of termination.
A Fair Dismissal Code will be introduced. If this Code is followed, a dismissal should be considered fair.
Employees dismissed on discriminatory grounds (no matter how many employees there are at their place of work) may seek redress via the unlawful dismissal laws.
FWA will include a separate division with jurisdiction to hear and determine unlawful dismissal claims (as opposed to these claims being heard by the Federal and Federal Magistrates’ Courts).
Existing right of entry laws will be maintained, and only authorised permit holders will be allowed entry onto work premises in the following circumstances:
- to hold discussions with employees who are members of or eligible to be members of the union;
- to investigate occupational health and safety breaches; or
- to investigate breaches of the law, awards or agreements, where there is at least one union member covered at the place of work.
Industrial action will only be permitted during bargaining for a collective enterprise agreement, and if approved by employees in a secret ballot.
It is unlawful for employers to pay strike pay.
Employers may take protected industrial action including locking out employees in response to industrial action by those employees.
Current provisions regarding secondary boycotts in the Trade Practices Act, and allowing access to the Courts to prevent unprotected industrial action, will be retained.
Dispute settlement provisions are part of the ALP’s allowable matters.
The ABCC will be maintained until 31 January 2010. Following that date the responsibilities of the ABCC will be transferred to a specialist division of FWA.
If you require any further information, please do not hesitate to contact Louise Houlihan,
Partner Workplace Relations on 9608 2273 or l.houlihan@cornwalls.com.au
