Employment Law - Part 2 - How will the new workplace relations laws introduced on 1 July 2009 affect you?

Good faith bargaining and enterprise agreements

An Enterprise agreement is essentially a document that sets out conditions of employment for a group of employees at one or more workplaces. Enterprise agreements take precedence over an award.

To create an enterprise agreement an Employer and Employee(s) simply negotiate and bargain with each other.

In the event that an employer does not wish to bargain then an employee bargaining representative is entitled to ask Fair Work Australia to intervene to ensure that the employer will bargain in good faith provided there is majority employee support for an enterprise agreement.

A bargaining representative is under a duty to comply with the provisions of the Fair Work Act 2009 in undertaking such negotiations. If you would like to know the specific provisions in more detail and any aspect of good faith bargaining we are happy to advise you further in conference.

Industrial Action

Under the new workplace system industrial action has taken a significant change.

Both employees and employers can take industrial action which is ‘protected’, that is when they are attempting to enter into a new enterprise agreement. However it should be noted that Employers may only take this type of protected industrial action in reply to industrial action by an employee.

In the event that a protected industrial action threatens the Australian economy or the population, then Fair Work Australia must order the parties involved to stop taking the industrial action.

Conversely any action that is not protected is deemed to be “unprotected industrial action”. Fair Work Australia has a duty to stop or suspend such an action and have the powers to issue stop orders.

 

 

Unfair dismissal under the new work place system is where Fair Work Australia finds that an employee has been dismissed, the dismissal was harsh, unjust or unreasonable, and the dismissal was masked as a redundancy.

Please note if an employer is a small business employing less than 15 full time equivalent employees and they follow the Small Business Fair Dismissal Code when dismissing an employee it is not deemed to be an unfair dismissal unless an employee has been employed for a minimum of 12 months.

For a large business an employee must work a minimum of 6 months to be eligible for unfair dismissal.

In addition to the minimum term an employee must also be covered by an award or an agreement or earn less than $108,300.00 per year.

Fair Work Australia on hearing an unfair dismissal claim have powers to order an employer to reinstate an employee or provide compensation up to 26 weeks pay. However the maximum amount payable by way of compensation is limited to $54,150.00

Where you require advice and clarification concerning your rights and obligations under these new Workplace laws contact LAC Lawyers now for an appointment on (02) 9904 6800.