FAIR WORK BILL - ARE YOU UP TO DATE WITH REQUIREMENTS?

One of the promises of Rudd Government was to rewrite Workplace Relations Laws and replace the Howard Government's Workchoices. These changes are now well and truly underway with more changes to be implemented in 2010. An emphasis has been placed on the employer and their companies to make sure they are complying with these changes and those found to be at fault will face heavy penalties.

For those who are not familiar with these changes this article aims to briefly outline what is occurring and the implications to employers, for those who are familiar, it aims to consolidate and reiterate.

Back in March of this year the Fair Work Bill was passed to fulfil the new government’s promises of changing the Workplace Relations Laws and removing Workchoices. This Bill is now responsible for reviewing awards and setting minium wages, resolving unfair dismissal cases and industrial action and the like. It replaces the Australian Industrial Commission, the Workplace Authority, the Workplace Ombudsman and the Australian Building and Construction Commission.

The changes brought about under the Fair Work Bill will occur in stages with the first changes coming into play in July of this year. More changes will come into effect in January 2010.

In July 2009 the Industrial Relation Commission became Fair Work Australia. At this time the small business exemption from unfair dismissal laws was also removed. This means that an employee can make a claim under some circumstances. To avoid confusion on this, and to ensure that small businesses act accordingly throughout the dismissal process, the Government has published a Small Business Fair Dismissal Code of Practice document. As long as small business owners comply with this code the dismissal will be deemed to be fair.

This code can be found at: http://www.workplace.gov.au/NR/rdonlyres/A475B3F0-2238-4247-A904-F02F2628E679/0/WRfactsheet_09.pdf

As of July 2009 there were also new obligations in regard to what constitutes a 'genuine redundancy'. For those businesses that are considering restructuring further research is advised. For businesses with fewer than 15 employees an obligation for redundancy payouts do not apply.

Other key changes brought about by the Fair work Bill will be seen with the introduction of the National Employment Standards (NES) that will be coming into effect in January 2010. These standards will apply to all companies on a compulsory basis and will set out the minimum entitlements for every Australian employee. The 10 National Employment Standards are:

1.    Maximum weekly hours: The maximum weekly hours are 38 hours for full time employees, subject to reasonable additional working hours.
2.    Request for flexible working arrangements: An employee with a child under school age or an employee with the responsibility for a child under school age may make a request in writing to their employer for flexile working arrangements. An employer must respond in writing within 21 days and may only refuse the request on “reasonable grounds”
3.    Parental Leave: Each parent is entitled to a total of 12 months unpaid leave between them on the birth of a child to an employee or their spouse, or, for the adoption of a child under school age. Alternatively, an employee may also request an additional 12 months taking their leave to 24months and the employer may only refuse on reasonable business grounds.
4.    Annual Leave: An employee is entitled to 4 weeks paid annual leave and a shift worker is entitled to an additional week of paid annual leave. This does not include casual workers.
5.    Personal / Carers Leave:  The entitlements for an employee are as follows. This does not include casual workers.
a.   10 days of paid personal/ carers leave for each year of service
b    2 days paid compassionate leave per occasion
c.   2 days unpaid carers leave per occasion if all previous carers leave is exhausted
The entitlements for an employee who is employed on a causal basis are as follows
a.   2 days unpaid compassionate leave per occasion
b.   2 days unpaid carers leave per occasion.
6.    Community service leave: An employee is entitled to be absent from work to engage in prescribed community service activities such as emergency service duties or jury service
7.    Long Service Leave: No uniform NES long service leave has been developed yet. Until it has all entitlements will remain as previously stated under pre-modernised awards, NAPSAs or State and Territory laws.
8.    Public Holidays: An employee is entitled to be absent from work on a public holiday and is also entitled to be paid for their ordinary hours that they would have worked at their base rate of pay. An employer is permitted to reasonably request an employee to work. An employee may refuse the request if it is not reasonable or if the employee’s refusal is reasonable. 
9.    Notice of termination and redundancy pay: An employer must provide the following minimum notice periods or make payment in lieu of these notice periods.
Employee's period of continuous service with the employer at the end of the day that notice is given   
Not more than 1 year            1 week
More than 1 year but not more than 3 years    2 weeks
More than 3 years but not more than 5 years    3 weeks
More than 5 years                4 weeks
An employee is entitled to redundancy pay if his or her employment is terminated due to an initiative of the employer because the employer no longer requires the job to be done by anyone. This may be due to insolvency or bankrupt of the company. However, there is no entitlement to redundancy by a company with fewer than 15 employees
Employee's period of continuous service with the employer at the end of the day that notice is given   
At least 1 year but less than 2 years    4 weeks
At least 2 years but less than 3 years    6 weeks
At least 3 years but less than 4 years    7 weeks
At least 4 years but less than 5 years    8 weeks
At least 5 years but less than 6 years    10 weeks
At least 6 years but less than 7 years    11 weeks
At least 7 years but less than 8 years    13 weeks
At least 8 years but less than 9 years    14 weeks
At least 9 years but less than 10 years    16 weeks
At least 10 years            12 weeks
10    Fair Work Information Statement: An employer will be required to give each new employee the Fair Work Information Statement which will contain information regarding the NES, modern Awards, agreement making, the right to freedom of association and the role of Fair Work Australia. This has not yet been made available.

In addition to the NES the Modern Awards will also be implemented. This award modernisation is still currently in draft form but it aims to reduce and simplify the 500 or more that currently regulate employment. They will also aim to reduce the regulatory burden on employers within an economically sustainable framework and will also work with the NES to provide a minimum safety net of employment conditions. Once again the onus will be on the employer to identify, which awards apply to their employees as of January 1st 2010.

Whilst some of the changes have been clarified there are still more instructions to come. It is therefore recommended that employers keep their ear to the ground, get organised and prepared and seek professional advice if unsure.