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Fair Work Australia - Frequently Asked Questions

When will the new Fair Work Australia policy be implemented?

The new policy will be implemented in January 2010. In the time leading up to this there will be changes made to the current Work Choices plicy that will make the transition smoother and provide a better sytem in the lead up to the full roll out of the FWA policy.

Where can I find information on the current and proposed changes to the industrial relations laws?

On our links page you will find all the necessary departments available.

What changes can I expect as an employer or employee?

Follow this link to find current information on the new Industrial Relations reforms.

What is Fair Work Australia

Fair Work Australia (FWA) will replace the AIRC, the Workplace Authority and the Workplace Ombudsman. FWA will be a ‘one-stop-shop’ for information, assistance and advice on Workplace issues. FWA is likely to start operating on 1st July 2009.

What are the National Employment Standards?

The National Employment Standards (NES) are a new safety net introduced by the Labor Government. The NES will apply to all employees in the federal system regardless of industry, occupation or income and will come into effect on 1 January 2010. The NES provide employers with the flexibility and simplicity they need while also ensuring employees' key entitlements are protected. The NES are:

1. Maximum weekly hours of work
2. Request for flexible working arrangements
3. Parental leave and related entitlements
4. Annual leave
5. Personal/Carer's leave and compassionate leave
6. Community service leave
7. Long service leave
8. Public holidays
9. Notice of termination and redundancy pay
10. Fair Work Information Statement.

What are the Modern Awards?

The AIRC have been set the job of developing modern awards to be in effect from 1st
 January 2010. There will be 10 areas above and beyond those of the NES that the modern award will be able to cover-

i. Skill-based classification and career structures; and
ii. Incentive-based payments, piece rates and bonuses.

2. Type of employment, such as full-time employment, casual employment, regular part-time employment and shift work, and the facilitation of flexible working arrangements, particularly for employees with family responsibilities.

3. Arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours.

4. Overtime rates.

5. Penalty rates, including for any of the following;
i. Employees working unsocial, irregular, or unpredictable hours;
ii. Employees working on weekends or public holidays;
iii. Shift workers.

6. Annualised wage arrangements that:
i. Have regard to the patterns of work in an occupation, industry or enterprise; and
ii. Provide an alternative to the separate payment of wages and other monetary entitlements; an
iii. Include appropriate safeguards to ensure that individual employees are not disadvantaged.

7. Allowances, including for any of the following:
i. Expenses incurred in the course of employment;
ii. Responsibilities or skills that are not taken into account in rates of pay;
iii. Disabilities associated with the performance of particular tasks or work in particular conditions or locations.

8. Leave, leave loadings and arrangements for taking leave.

9. Superannuation.

10. Procedures for consultation, representation and dispute settlement.

What are the new rules for enterprise agreements?

There is a strong emphasis on collective bargaining in this legislation. Workplace agreements will now be known as enterprise agreements. They will be required to pass the Better Off Overall Test (BOOT), which will be similar to the No-Disadvantage-Test. There is much focus on Good Faith Bargaining.
The agreements are approved by FWA.

The nominal expiry date will be 4 years maximum. An enterprise agreements begins to operate from 7 days after the agreement is approved by FWA.

What will happen to Minimum Wage Determinations?

FWA will be responsible for minimum wage determinations. The new rates are to take effect on or before July 1steach year.

What will the rules be for Transfer of Business?

There is a transfer of business (and therefore transfer of rights and obligations of enterprise agreements, certain modern awards and certain other instruments) if the following requirements are satisfied-
a) The employment of an employee of the old employer has terminated;
b) Within 3 months after the termination, the employee becomes employed by the new employer;
c) The work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
d) There is a connection between the old employer and the new employer (as defined).

There is a connection if- The new employer has beneficial use of some or all of the assets (whether tangible or intangible). The old employer outsources work to the new employer which is performed by the transferring employees. The new employer is an associated entity of the old employer. There is no time frame involved for how long the instruments transfer for.

High Income Employees

A high income employee has a guarantee of annual earnings (above a set amount defined each year starting at $100K). These employees can be exempt from the modern award rulings if agreed in writing.

What are the main changes for unfair dismissal?

Small businesses (less than 15 employees) have a 12 month qualifying time for employees before they can make an unfair dismissal claim.

Larger businesses will have a 6 month qualifying time for employees before they can make an unfair dismissal claim.
A Small Business Fair Dismissal Code has been introduced.

It has been recommended that this process be followed to avoid unfair dismissal issues. Operational reasons by itself will no longer be a reason for termination.

FWA will be responsible for dealing with unfair dismissal claims.

thanks to Haycroft for this information