Current Issues in Australian Employment Relations 2011 Andrew J See Barrister at Law Kilkenny Chambers 231 North Quay Brisbane Qld 4000 E ajsee@qldbar.asn.au I http://www.andrewjsee.com.au

Where are we heading? Need to have some idea of where we have come from Need to understand some of the issues previously canvassed

FFFFair Work Australia!

Why Fairness ?? Criticism that individual bargaining produced unfair outcomes and caused compromisation of workers rights and entitlements Need to establish a platform of statutory minimum entitlements for all employees Reintroduction of “no disadvantage” test to assess local bargaining arrangements

Key Employment Law Industrial Relations Workplace health and Safety Discrimination Workers Compensation

The Key Principles Sunsetting out AWAs (2 years) and more emphasis on collective bargaining Increasing number of statutory minimum entitlements Access to Unfair dismissal for small business (>15 people- after 12 mths) Reintroduction of no disadvantage test Streamline dispute resolution processes

What employers and employees does the FW Act cover? All private sector workers Commonwealth and territory workers Nb State Government and Local Govt employees covered by state systems.

Some Oz History Constitution 1901 -Industrial dispute (S51 xxxv) Harvester decision 1907 Basic wage + skills (margins 1952) 3 tiered system (add on industry payments) Total wage concept and wage indexation The ACTU Govt Prices and Incomes Accord 1983 (Corporatism and impact on parties) Enterprise bargaining 1991

Australian Fair Pay Commission Standard WORKCHOICES – Australian Fair Pay Commission Standard FORWARD WITH FAIRNESS – 10 National Employment Standards Basic rates of pay and casual loading Minimum wages and allowances Maximum ordinary hours Hours of work, Overtime and penalty rates , public holidays Annual Leave Annual Leave, LSL and Super Personal Leave Personal, Carers and Compassionate Leave Flexible Leave for Parents Parental Leave and related entitlements Parental Leave Public Holidays Information in the workplace Notice of termination and redundancy Consultation, representation and dispute settling procedures

Employee Entitlements & Protections FW Act Safety Net Will comprise of four parts the National Employment Standards (NES) Modern Awards Minimum Wages and General Protections

Employees Entitlements & Protections Minimum Wages Fair Work Australia (FWA) must annually undertake an annual wage review It must review minimum wages and may set, vary or revoke modern award minimum wages and review the national minimum wage order and make a new national minimum wage order

Unfair dismissal “fair go all round” quick flexible informal emphasis on reinstatement address needs of employers and employees

Minimum employment period 12 months for Small Businesses (< 15 employees) 6 months for others When “notice” given important

What is an unfair dismissal? Dismissed It was harsh unjust or unreasonable Not consistent with SBFDC Not a genuine redundancy NB. All four are required

Unfair Dismissal An employee is protected from unfair dismissal if he or she has completed a minimum employment period and One or more of the following apply :- a Modern Award covers the employee an enterprise agreement applies to the employment the employee's annual rate of earnings is less than the high income threshold ($100K)

Not dismissed if… Fixed term Specified task Seasonal employees Demotion (salary or duties) NB. Usual risks apply to fixed term employees

Employees Entitlements & Protections General Employee Protections The FW Act contains protections in respect of – unlawful termination freedom of association sham arrangements in respect of independent contractors and other various protections (discrimination, whistleblowing etc)

Collective Agreements Employers and employees can make single-enterprise agreements and multi-enterprise agreements

Collective Agreements Agreements may include terms about "permitted matters" Permitted matters include terms that pertain to the relationship between employer and employee that pertain to the relationship between employer and union permitting deductions for employee purposes, including for union membership fees

Collective Agreements Agreements cannot contain unlawful terms Unlawful terms are terms that are discriminatory or objectionable exclude or modify the application of the unfair dismissal rules are inconsistent with industrial action or rights of entry rules

Collective Agreements FWA must approve agreements before they can commence The Agreement must pass the Better Off Overall Test (BOOT) before it can be approved Commence 7 days after approval

Collective Bargaining Good Faith Bargaining Bargaining representatives for proposed agreements must bargain in good faith This involves attending and participating in meetings at reasonable times disclosing relevant information in a timely manner

Collective Bargaining genuinely considering the other side's proposals. This involves giving reasons for any responses to such proposals and refraining from capricious or unfair conduct which undermines freedom of association or collective bargaining

Collective Bargaining Bargaining orders FWA may make bargaining orders when bargaining representatives are not bargaining in good faith or the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives

Collective Bargaining Bargaining orders must, among other things, specify requirements on bargaining agents to ensure they bargain in good faith and requirements on bargaining agents not to engage in capricious or unfair conduct which undermines freedom of association or collective bargaining

Collective Bargaining Resolving Bargaining Disputes FWA may deal with bargaining disputes - on application by a bargaining agent and - if bargaining representatives are unable to resolve a dispute If the bargaining representatives agree that FWA may arbitrate, it can do so

Collective Bargaining Workplace Determinations FWA can make workplace determinations to settle terms and conditions in some circumstances FWA can make - low-paid workplace determinations - industrial action related workplace determinations and - bargaining workplace related determinations

Industrial Action Generally maintains current rules Retains dichotomy between protected and unprotected industrial action Protected industrial action can only be taken during bargaining for enterprise agreements and not before nominal expiry of enterprise agreement

Industrial Action Employers can only take protected action in response to employee industrial action Employers cannot pre-emptively lock-out employees Mandatory "Four-hour" strike pay rule only applies to unprotected industrial action

Permit-holders rights of entry have been expanded to permit entry for the purpose of holding discussions with employees at any workplace whose industrial interests the permit-holder's union can represent and inspection of all relevant documents relevant to a suspected contravention

Transfer of Business Transmission of business laws have been expanded under new "Transfer of business" rules Transferred instruments can apply for longer than 12 months The circumstances of when there has been a transfer of business have been enlarged

The IR “one-stop shop” will have two main arms Fair Work Australia The IR “one-stop shop” will have two main arms Fair Work Australia will have functions in relation to matters arising under the FW legislation There will be Fair Work Divisions in the Federal Magistrates Court and Federal Court

Fairness at Work Some practical examples of how the issues will be explored……………….

Hours of Work Principles for maximum hours (38 per week) Capacity for employer to request reasonable additional hours – subject to employee agreeing and not being unreasonable How do you know what extra reasonable hours will be?? Health and safety Personal circumstances Needs of workplace Whether additional remuneration paid

Flexible Working Arrangements Employee who is a parent or has a responsibility for the care of a child Requests from employees to alter the way they work Business grounds v Personal grounds

Parental leave and return to work Planning for changes Normally would need to have been employed for 12 months before leave can be sought Return to work Notion of safe job Contracting, flexibility and birth pains?

Annual Leave New ways of taking leave entitlements ? _Not really What has happened to the 4 week entitlement? Cashing out leave within award? Integration of leave types – a payroll nightmare?

Impacts of an ageing workforce Personal carers leave Impacts of an ageing workforce Who is family, who is a carer and who is sick Medical certificates v “take my word for it”

Termination, change and redundancy Reinforcement of basic entitlements Clarifying how to terminate lawfully Obligation to pay mandatory entitlement and to give minimum periods of notice Obligations to consult

Fair Work Information Statement An information sheet to be provided to new employees Setting out the basic entitlements and information directing employees to where to get help Fair Work Australia

Award Modernisation

Award Modernisation The creation of modern awards to operate with the new Australian workplace relations system The process requires the Australian Industrial Relations Commission to review all of the multiple-employer federal awards and many state awards operating in the national industrial system

Conducting the award modernisation process The AIRC must – consult with major employee and employer representative bodies consult with major workplace relations stakeholders and other interested parties determine priority industries and occupations for award modernisation, a model flexibility clause and an overall timetable draft modern awards A modern award can only be made by a Full Bench

The Major List of Awards Coal Mining Retail Glue and gelatine Rubber, plastic etc Higher Education Security Hospitality Textile and Clothing Metals & Assoc Industries Vehicle Manufacturing Mining Private sector clerical occupations Racing Rail

AWA-reliant employees by industry

Role of Award Flexibilty Provisions in Awards An award flexibility allows departure from the standard award arrangement provided that there is agreement between an individual employer and an employee, or the majority of employees, in the enterprise or part of the enterprise concerned. Generally an award will determine the scope of that flexibility – that is the boundaries in which people can negotiate within

THE FUTURE How can we measure whether the workplace will be fairer etc What do you need to do to safeguard yourself and the rights of others in contract negotiation and performance ? What are the new social security mechanisms needed for the future?

NEED TO REVIEW/THINK OF NEW WAYS OF COMMUNICATING WITH OUR STAFF

Andrew J See Barrister at Law Kilkenny Chambers Level Six 231 North Quay Brisbane Qld 4000 E ajsee@qldbar.asn.au I http://www.andrewjsee.com.au