November 2008

Deputy Prime Minister announces new workplace laws

At the Australian Labour Law Conference in Melbourne on 14 November 2008, Deputy Prime Minister Julia Gillard announced further detail of the impending workplace laws, Forward with Fairness. Bartier Perry's Workplace Relations Team was there for the announcement.

Most significantly the Deputy Prime Minister said there would continue to be a National system augmented by "a referral of powers from the States" so that all the private sector would be under the Federal regime.

Most of the press the following Saturday and Monday spoke about the "return" of arbitration to resolve disputes, but that is an exaggeration.  Arbitration is back for only a very limited number of disputes, "a handful in ten years" said the Deputy Prime Minister. Most employers need not be concerned about employment terms being determined by an industrial umpire.

The other important announcements made that affect your business and employment relationships were:

1. Previous industrial agreements continue to operate

To the relief of many, AWAs, ITEAs, collective workplace agreements made under Work Choices, and all other existing industrial agreements made prior to the commencement of the new laws will continue to operate even past their nominal expiry date, and until replaced by a new industrial agreement.

2. The National Employment Standards are the law

Significantly, the National Employment Standards (maximum working hours, parental leave, annual leave, personal/carer's leave, community service leave, long service leave, flexible work arrangements, termination of employment and redundancy) will commence operation on 1 January 2010 and will prevail over any less beneficial terms in any existing industrial instrument or contract.

It is imperative that employers now review their existing agreements and work practices and policies to ensure they will comply with the new NES from 1 January 2010 . Many things may change, including there being no ability to cash out annual or personal/carer's leave from 2010 and there may be an even more limited ability to direct workers to take annual leave.

3. Award rationalisation and modernisation

This process is underway, with modern awards to be in place effective from 1 January 2010.

Some flexibility may come back as part of the award modernisation process but not all workers will be covered by a modern award. There is also talk of Individual Flexibility Agreements which will operate within the confines of industrial agreements.

4. Unfair dismissal laws

Changes to unfair dismissal laws will operate from 1 July 2009. Employers with 15 employees or less will have 12 months to assess a new employee for suitability. If they are terminated during this time, the employee cannot bring an unfair dismissal claim. Larger employers have 6 months. This change reinstates unfair dismissal rights for those employed by companies of 16 to 100 employees.

It is expected that the other exemptions currently operating, such as termination for genuine operational reasons, will be scrapped although we won\'t know the detail until the legislation is released.

Claims are meant to be brought to Fair Work Australia within 7 days from the termination, and FWA will try and assist the parties to reach an agreement to resolve the matter. Parties will not be able to be legally represented before FWA, but this will not prevent an employer using a legally trained HR Manager to argue their case, and employees are expected to be able to use the services of experienced industrial advocates from their union.

5. Forward with Fairness legislation

What was significant about the Deputy Prime Minister's statement, and welcomely mature, was that the changes were designed to provide a stable platform for workplace relations, and one that would, by implication, survive changes of government. It seems now accepted that it is in the broad interests of the community that the workplace relations system cease being a battleground; stability is more important than ideology.

When the Forward with Fairness legislation is introduced into Parliament next week, we will commence preparing a more detailed review for you in the new year.

Our expertise