The Fair Work Act 2009 replaced the Workplace Relations Act 1996 (better known as the Workchoices legislation) on 1 July 2009.
What are some of the changes that were made?
Good Faith Bargaining
Employers, including bargaining representatives, are under an obligation to engage in ‘good faith bargaining’ with employees when negotiating enterprise agreements. An important note for employers is that good faith bargaining does not necessarily mean having to make concessions or agree with terms suggested to be part of an agreement.
Rather, good faith bargaining requires that employers and bargaining representatives meet the following criteria:
- Attend and participate in meetings at reasonable times
- Respond to proposals for the agreement in a timely matter
- Give genuine consideration to the proposals, and giving reasons for responses to those proposals
- Refrain from unfair conduct that undermines collective bargaining or freedom of association
- Recognise and bargain with bargaining representatives for the agreement
Unfair dismissal
There were significant changes made in the area of unfair dismissal. Therefore it is particularly important for employers and employees to be aware of the revised rules relating to coverage and eligibility requirements in relation to unfair dismissal.
First, the employer must provide the employee with written notice of termination of employment before termination occurs.
Secondly, small businesses will no longer be exempt from having unfair dismissal claims brought against them. In some circumstances, where a business has 15 or fewer employees, an employee may be eligible to bring an action for unfair dismissal if the employee has been employed with the business for a minimum of 12 months. In businesses that have more than 15 employees, an employee may be eligible to bring an action against the employer if they have been employed with the business for more than 6 months.
Furthermore, casual employees are no longer prevented from bringing an action against an employee merely because they are employed in a casual role.
Thirdly, it is important to note the introduction of ‘general protections’ for employees. The Fair Work Act states that a person (including an employer) must not take adverse action against another person, because the other person:
- has a workplace right; or
- has, or has not, exercised a workplace right; or
- proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right.
The definition of 'adverse action' includes refusing to employ a person, dismissing an employee, discriminating against them or otherwise injuring them in their employment. A common example of 'adverse action' would be demotion.
Further changes and amendments under the Fair Work Act commenced in January 2010. These changes included the introduction of National Employment Standards and a new process for the determination of minimum wages.
National Employment Standards
There are 10 minimum national employment standards that will apply to all employees, these are:
- maximum weekly hours of work
- right to request flexible working arrangements
- parental leave
- annual leave
- personal/carers leave and compassionate leave
- community service leave
- long service leave
- public holidays
- notice of termination and redundancy pay
- right to receive a fair work information statement outlining an employee's rights and entitlements.
Minimum wages
As at 1 January 2010, Fair Work Australia ("FWA") became the new body that will now determine minimum wages. FWA will conduct an annual review of minimum wages each year.
It is clear that these laws offer revised protections for employees and new obligations for employers. As a result, it is very important for employers to be aware of their obligations when dealing with their employees. If you require further information regarding your rights at work or your obligations to employees please do not hesitate to contact us on 9635 8266 or connect@champion.com.au.
ANDREA CARNUCCIO
Solicitor
