New employment laws

3 August 2009

The Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 commenced operation on 1 July 2009.

The following elements of the new regime commenced operation on 1 July 2009, including:

Fair Work Australia

Creation of a new body, Fair Work Australia, which is the new national workplace relations tribunal, which has the following functions:

considering the safety net of minimum wages and employment conditions;
enterprise bargaining;
industrial action;
dispute resolution;
termination of employment; and
other workplace matters.

Changes to the unfair dismissal rules

You should be aware that:

The exemptions to be abolished include: the 100 or less employee rule, short term casuals and employees under a probationary period. Also, high threshold employees are excluded from making an unfair dismissal application. The current threshold is $108,300.00 p.a.
There are new protections from “adverse actions”, that is actions by employers against another employees because the employee has a workplace right, has exercised a workplace right, or proposes to exercise such a right.
"Workplace rights" has a very broad meaning. For example, a person has a workplace right if he or she has an entitlement under an award or agreement or a workplace law, is able to initiate a proceeding under a workplace law or is able to make a complaint or inquiry in relation to their employment.
"Adverse action" includes dismissing or refusing to employ someone, and also includes discriminating against them or otherwise injuring them in their employment (by for example demoting them). Further, a person (such as an employer) must not take adverse action against another person (such as an employee) because he or she has engaged in lawful industrial activity (such as belonging to or participating in a union).
There are now new obligations on parties to bargain “in good faith”: The Fair Work Act 2009 introduces a requirement for good faith bargaining in relation to negotiations for enterprise agreements. Under these provisions bargaining representatives must meet certain requirements. Fair Work Australia may make a “bargaining order” if good faith bargaining requirements are not being met.
The new National Employment Standards have been created, which do not commence operation until 1 January 2010.
New obligations on parties to bargain “in good faith” have been put in place: The Fair Work Act 2009 introduces a requirement for good faith bargaining in relation to negotiations for enterprise agreements. Under these provisions bargaining representatives must meet certain requirements. Fair Work Australia may make a “bargaining order” if good faith bargaining requirements are not being met.
Types of agreements: there are now three types of enterprise agreements that can be made between employers and employees:
- Single-enterprise agreements—involving a single employer or one or more employers (such as in a joint venture) co-operating in what is essentially a single enterprise (such employers are known as single interest employers).
- Multi-enterprise agreements—involving two or more employers that are not all single interest employers.
- Greenfields agreements—involving a genuinely new enterprise that one or more employers are establishing or propose to establish and who have not yet employed persons necessary for the normal conduct of the enterprise. Such agreements may be either a single-enterprise agreement or a multi-enterprise agreement.

More about Single-Enterprise Agreements, Multi-Enterprise Agreements and Greenfields Agreements

There are different approval processes for each agreement type. An enterprise agreement includes terms which govern:

rates of pay
employment conditions e.g. hours of work, meal breaks, overtime
consultative mechanisms
dispute resolution procedures
deductions from wages for any purpose authorised by an employee.

What parts of the Workplace Relations Act 1996 will continue to apply?

Until 31 December 2009, after which the NES and modern awards come into operation, the following provisions of the Workplace Relations Act 1996 will continue to apply:

the Australian Fair Pay and Conditions Standard
minimum entitlements in relation to meal breaks, public holidays, extension of parental leave to non-national system employers and notice of termination.