The following points illustrate the major changes made to Industrial relations legislation, primarily how will the new Fair Work Australia policy be different to the existing Workchoices Legislation.
Parental Leave and You.
Parental leave: Employees are entitled to 12 months' unpaid parental leave after the birth or adoption of a child aged up to 16 years. A new parent can request an extension to 24 months' unpaid leave, reduced by the amount of leave taken by their partner. Employers may refuse the request, but only on reasonable business grounds.
Employees of some small businesses (sole traders or partnerships) ''in the middle'' of parental leave on January 1 are entitled to continue their leave under the new rules.
Former provisions: new mothers or fathers could take up to 52 weeks' continuous unpaid leave as the primary carer.
Same-sex relationships were not recognised for parental leave. Parental leave for adoption was restricted to children under five.
Return-to-work guarantee: A new parent is entitled to return to the same position they held before taking parental leave. If the position no longer exists, they must return to a position that is nearest in status and pay.
Flexible hours: Parents of children under school age or children under 18 with a disability can request flexible work arrangements including changes to hours, patterns (job-sharing) or location. Employees must have worked for 12 months. Employers must respond in 21 days in writing and can refuse only on reasonable business grounds. The Fair Work Australia tribunal can mediate in any disputes on the issue.
Formerly: employees had no right to request flexible hours.
Community service leave: Unlimited unpaid leave for voluntary emergency activities and up to 10 days' paid jury leave.
Formerly: no entitlement.
Compassionate leave: 10 days' paid carers' leave for every year of service, which accumulates.
Formerly: casuals not covered. Annual limit of 10 days' paid carers' leave.
Information statement: All new employees must be given a Fair Work Information Statement as soon as they start work.
&Termination: Employees should be given four weeks' notice of termination and up to 16 weeks' redundancy pay, based on length of service.
Source: Fair Work Online
From 1 January 2010 there are several important changes in Australia’s workplace laws that affect all employers and employees in the national workplace relations system.
The changes include the introduction of new National Employment Standards (NES), many employers in New South Wales, Queensland, Tasmania and South Australia moving into the national system, and the commencement of modern awards.
Employers and employees need to be prepared for these changes.
National Employment Standards (NES)
The Fair Work Act provides a safety net of enforceable minimum employment terms and conditions through the National Employment Standards (NES).
The NES sets out 10 minimum workplace entitlements which apply to all employers and employees in the national workplace relations system from 1 January 2010 (however only certain entitlements apply to casual employees).
The NES replaces the non-pay rate provisions of the Australian Fair Pay and Conditions Standard (the Standard), which applies up to and including 31 December 2009.
Fair Work Information Statement
From 1 January 2010, all employers covered by the national workplace relations system have an obligation to give each new employee a Fair Work Information Statement (the Statement) before, or as soon as possible after, the employee starts employment.
Find out more:
Sole traders, partnerships & others moving into the national system
From 1 January 2010, sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, Queensland, South Australia and Tasmania are covered by the national system rather than their own specific state system. Employers that were already operating under the national system continue to be covered (eg. Pty Ltd businesses, employers in the ACT, NT and Victoria).
There are special transitional rules for employers in these states to help them move into the national system,including:
However, state awards and state employment agreements operate alongside the National Employment Standards (NES). This means that, employees must receive at least the minimum entitlements in the NES (to the extent that they apply), along with any other entitlements in their state award or workplace agreement (provided that these are at least as beneficial as the corresponding NES entitlement(s)).
From 1 January 2010 modern awards replace existing awards in most industries.
Modern awards are industry or occupation-based enforceable minimum employment standards which apply in addition to the NES.
Modern awards cover all employers and employees who perform work in those industries or occupations covered by a particular modern award. However, modern awards may not apply to some managers or higher income employees (who have an appropriate guarantee of annual earnings of more than $108,300 annually) even if a modern award covers the industry in which they work.
Modern awards contain terms and conditions about:
Some modern awards also contain terms about redundancy.
Transition to modern awards
Modern awards were created to establish one set of minimum conditions for employers and employees across Australia who work in the same industries and occupations.
As the modern awards replace thousands of federal and state-based awards, the impact of the wages and conditions in the modern awards vary between states, industries and employers.
To lessen the financial impact of the new arrangements, modern awards may contain transitional provisions which allow increases and decreases in minimum conditions to be progressively phased in.
Modern awards may contain:
In modern awards containing the model phasing schedule, new rates of pay will not come into force until 1 July 2010 and may be phased in over 5 annual instalments.
If there are no transitional provisions in a modern award, then the wages specified in a modern award need to be paid from 1 January 2010.
Unfair Dismissal and Changes to the Laws
Significant differences to the manner in which claims are processed to the current procedure will come into play. All applications will be considered in an informal conference convened by Fair Work Australia.
A major change to existing procedures provides that there will be no written submissions, no cross-examination of witnesses and no formal hearing. A suitable representative or support person will be allowed to be present. Fair Work Australia will decide whether the dismissal was unfair and will be able to award reinstatement unless this is against the interests of the employer or the employee. Compensation can be awarded as an alternative to reinstatement.
Award and Pay Rates
Flexibility in the Workplace
Key Awards for simplification
Enterprise specific awards will be reviewed by the Commission only on request from the parties to the award. The Commission will also consider how to deal with preserved State awards and preserved State agreements.
Which positions are not covered by the new awards?