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WORKPLACE LAW CHANGES FROM 1 JULY 2009 |
Businesses face significant changes to workplace law from 1 July 2009. Peter McNamara summarize some of the key changes below. |
UNFAIR DISMISSAL |
The main change is to unfair dismissal laws. Businesses with less than 100 employees lose their protection from unfair dismissal claims. This means a 36% increase in the number of employees with unfair dismissal rights. Whether you have 1 or 100 employees, you will be subject to unfair dismissal claims. |
Exposure to unfair dismissal claims is increased for:
- Businesses employing less than 100 employees;
- Businesses employing casuals regularly for 6 months (big business) or 12 months (small business).
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There will be No Unfair Dismissal claims by:
- Employees who have worked for less than 12 months for small businesses (those with less than 15 employees).
- Employees who have worked for less than 6 months for big businesses (those with 15 employees or more).
- Genuine redundancies.
- Casuals with irregular employment or no expectation of continued employment, or employed less than 6 months (big business) or less than 12 months (small business).
- Specific task or seasonal employees - employed for specific periods for specific tasks or seasons or for training if the employment ends at the end of the period.
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| Employees will only have 14 days to lodge an unfair dismissal claim - this can be extended in some circumstances. |
The government will issue a six-paragraph Fair Dismissal Code. Small business employers who follow this will be able to defend unfair dismissal claims for any reason, including redundancy. |
The Disadvantages for Business are that:
- abolishing the 100 employee exemption and replacing it with qualifying periods of 6 and 12 months will allow 80 per cent of employees to access unfair dismissal laws compared with 44 per cent of employees under Work Choices.
- All employees will be entitled to redundancy pay, including non-award employees, unless the regulations exclude particular employees, such as high earners.
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The Advantages for Business are:
- Only 14 days instead of 21 days to lodge unfair dismissal claims;
- Small businesses will have 12 months to assess the performance of an employee and terminate their employment if necessary.
- The Code may give small business more certainty about how to dismiss an employee.
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Small Business Employers:
- will not have to pay redundancy pay
- will not have to provide notice of termination of employment
- can require a 12 month probationary period
- can avoid unfair dismissals by following the Small Business Fair Dismissal Code
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| Small business employers have less than 15 employees. All employees employed by the employer are counted, including casual employees employed on a regular and systematic basis and employees employed by associated entities. |
The relief from redundancy for small business may be short-lived as many of the draft modern awards stipulate redundancy pay.
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What you should do:
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Small businesses should get a copy of the Small Business Dismissal Code, follow the Code and move to strike out any unfair dismissal claims. |
Large businesses should also follow the Small Business Dismissal Code and ensure that their grievance and termination policies and procedures are consistent with the Code to minimize the risk of unfair dismissal claims. |
All businesses should account for the cost of redundancy packages for non-award employees of up to 16 weeks pay, consider genuine redundancy as alternative to performance termination, and note that all businesses are still exposed to the risk of unlawful termination, discrimination, breach of contract and misleading or deceptive conduct claims by employees. |
FAIR WORK AUSTRALIA - FAIR WORK OMBUDSMAN |
From 1 July 2009 the Office of the Fair Work Ombudsman will be governed separately from, but will share day-to-day operations with Fair Work Australia. |
What you should do:
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Get legal advice immediately if you are contacted by the Fair Work Ombudsman. |
COLLECTIVE BARGAINING > |
From 1 July 2009 you will need to engage in good faith bargaining and submit to arbitration if you cannot agree on enterprise or collective agreements. |
What you should do: |
Get legal advice immediately if you are negotiating any collective agreements. |
FROM 1 JANUARY 2010 - WORKPLACE LAW CHANGES |
The main changes will on 1 January 2010. A new one stop shop will start - Fair Work Australia - as will a new Safety Net of Employment Conditions known as the National Employment Standard and Modernised Awards. |
Fair Work Australia will replace 5 bodies including the Australian Industrial Relations Commission and the Workplace Authority. |
Fair Work Australia will be able to change awards, set minimum wages, approve agreements and determine unfair dismissal claims. |
The aim is for all the old awards to finish and be replaced by Modern Awards on 1 January 2010. A new miscellaneous modern award will cover employees who are not covered by any other modern award, but if the employee was covered by an old federal award or NAPSA, that instrument will trump the miscellaneous award, while the old award-based transitional instrument applies. |
Employees' minimum entitlements will be the better of the new NES and the old awards or collective agreements, and according to the Explanatory Memorandum, employees will be able to take a line by line approach, rather than a general "more generous test". |
SAFETY NET OF EMPLOYMENT CONDITIONS. |
This means the 10 National Employment Standards (NES) and new modernised awards. The NES will provide the minimum standards for employees, including:
- Maximum weekly hours of work
- The right to request flexible working arrangements
- Parental leave and related entitlements
- Annual leave
- Personal/Carer's leave and Compassionate leave
- Community service leave
- Long Service leave
- Public holidays
- Notice of termination and redundancy pay
- Provision of Fair Work Information Statement
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The main changes to these conditions will be maximum hours of work, the right to request flexible work arrangements, parental leave and community services leave. |
What you need to do: |
You will need to review employment contracts where you refer to the requirement to work reasonable additional hours. |
You will need to get advice on your new responsibilities towards employees who care for under school age children. Employees will be able to take up to 24 months unpaid parental leave. |
MODERN AWARDS |
The award modernization process continues. The Clerical Award and Nurses Award are done. These new modern awards may cover employees not previously covered, such a managers with the right to hire and fire staff.> |
What you need to do: |
All employment contracts will need to be reviewed and renegotiated with staff before 1 January 2010. |
AUSTRALIAN WORKPLACE AGREEMENTS |
AWAs will go over time. Existing AWAs will continue until they expire - for 5 years at the outside. As AWAs expire, employees will be transferred to a new modern award or if they earn more than the wage threshold they will go on to new agreements subject to the National Employment Standard. |
Peter McNamara |
| 9 June 2009 |
