The long awaited Fair Work Bill 2008 (Cth) was introduced into Federal Parliament yesterday. The Bill represents a complete re-write of the Workplace Relations Act 1996 (Cth), which it will replace.
We have set out below a brief overview of some of the contents of the Bill. Our Employment and Industrial Relations Group, over coming days, will circulate more detailed information on key changes to be introduced by the Bill.
The Bill establishes a new institution, Fair Work Australia (FWA), which from 1 January 2010, will replace the Australian Industrial Relations Commission, Australian Industrial Registry, Australian Fair Pay Commission, Workplace Authority and Workplace Ombudsman and from 1 February 2010, the Australian Building and Construction Commission.
There will also be introduced Fair Work Divisions of the Federal Court and the Federal Magistrates’ Court, which will operate as the judicial arms of FWA.
Unfair Dismissal
Unfair dismissals will soon be back.
Exclusions to the unfair dismissal jurisdiction introduced by Work Choices, such as those for small business (with fewer than 100 employees) and for terminations because of operational reasons will no longer apply.
The time limit for employees to make a claim of unfair dismissal will be seven days from the date termination is effective (a time limit that can be extended by FWA in certain circumstances).
Re-instatement will be the primary remedy and claims will proceed by way of a conference or a hearing conducted by FWA.
Ten minimum employment standards for all employees, called the National Employment Standards (NES), will be introduced from 1 January 2010, replacing the existing five minimum entitlements consisting of the Australian Fair Pay and Conditions Standard.
Of particular note in the NES is the extension of the unpaid parental leave entitlements for employees, the right for parents of under school-age children to request flexible working arrangements and the introduction of a statutory entitlement to redundancy pay.
There will be no individual agreement making stream under the new system, only collective bargaining.
An obligation to bargain “in good faith” will be introduced.
A new test called the Better Off Overall Test (BOOT) will replace the no disadvantage test and will be applied by FWA.
A new low paid employees’ bargaining and arbitration stream will be introduced which will give low paid employees the opportunity to bargain with multiple employers and apply for arbitration by FWA. Precisely who the “low paid” employees are, is not defined in the Bill.
Where to from here?
Most aspects of the new Bill will come into effect on 1 January 2010, with some aspects to come into effect earlier. We expect transitional and consequential bills to be introduced by the Government during March – April 2009 which should, among other things, provide greater clarity on how pre-existing agreements will continue to operate under the new system.
If you have any queries or would like assistance in matters relating to the new Fair Work Bill, please contact Louise Houlihan, Partner, on +613 9608 2273 or l.houlihan@cornwalls.com.au
