| |
|
|
|
Work Choices - New legislation on industrial relations |
The new Work Choices legislation makes a number of significant changes to employment and industrial law across the country. |
One of the most publicise aspects of the new legislation is the increased restriction on making a claim for unfair dismissal. |
First, there can be no unfair dismissal claim if the employee was employed by an employer that employed 100 or fewer employees. 'Related bodies corporate' will be interpreted as one entity for the purpose of determining the number of employees, to ensure that corporate restructuring cannot be used to exploit the 100-employee threshold. |
Second, a person will no longer be able to claim that they were unfairly dismissed if the reasons for dismissal include 'genuine operational reasons'. Third, the qualifying period, which is currently three months, will be increased to six months, so that no employee engaged for less than six months will be able to make an unfair dismissal claim. |
Lastly, seasonal employees will also be unable to claim that they have been unfairly dismissed. It is likely that the number of claims through alternative channels, including unlawful termination claims, actions for breach of contract and claims based on anti-discrimination and trade practices law, will increase. |
Another significant change is the introduction of a fair pay and conditions standard. This is a set of absolute guarantees of five minimum conditions that cannot be overridden. It includes basic rates of pay and casual loadings, a maximum of 38 ordinary hours per week plus 'reasonable additional hours', four weeks paid annual leave per year (plus an extra week for shift workers), ten days paid personal/carer's leave after 12 months of service, with a further two days of unpaid carer's leave if paid leave has been exhausted, and two days of compassionate leave for each 'permissible occasion', and weeks unpaid parental leave at the time of birth or adoption of a child. |
Awards will no longer be the safety net for workers, as the standard will outline minimum entitlements. And while certain terms in awards, relating to such things as annual leave and superannuation will be preserved, entitling employees to benefits they received previously where those benefits are more generous than the minimum conditions imposed by the standard, workplace agreements can override the operation of a preserved award term. There are also a number of 'non-allowable matters' that can no longer be included in an award. These include provisions for automatic union representation in the dispute resolution process and restrictions on the engagement of independent contractors. |
A range of provisions will make it harder for employees to engage in protected industrial action. To be protected, action must take place in a bargaining period, and be approved by a majority of employees voting in a secret ballot. No action will be permitted during the life of a workplace agreement, even if the action relates to issues that are not covered by the agreement. |
A limited right to a day off on public holidays was added to the reforms. Employees may be asked to work on public holidays, but they can refuse if they have reasonable grounds for doing so. The reasonableness of any refusal will be determined by a range of factors, including the nature of their job, the operational requirements of the employer, the amount of notice given, and whether the employee could have been expected to be requested to work on a public holiday. Employers risk a fine of up to $33,000 if they dismiss or alter the employment of employees who have reasonably refused to work on a public holiday. While the reforms have come into force, a constitutional challenge launched by the states may result in a lingering uncertainty over the legislation for some time. |
|
