Employment Law - The New Fair Work Act - Consequences & The Agreement Making Process (5)
Date: August 14, 2009
Authors: Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Welcome to our 5 Part series on The New Fair Work Act. We hope you find the series interesting and informative. You can find the rest of the series at the links below
If a workplace agreement replaces guaranteed agreement terms or conditions in a reference instrument with benefits that may or may not be realised during the life of the agreement, the Workplace Authority Director would consider these arrangements to be a reduction in the employees’ terms and conditions.
In summary, the basic rule of thumb is that the no disadvantage test will most probably be approached by being considered in a global context whereby the conditions in the new agreement will be compared to the terms and conditions lodged in the ‘reference instrument’.
Sadly, the Explanatory Memorandum does not elaborate on what information FWA or the Workplace Authority will look for.
All agreements must adhere to an agreement making process. These steps are as follows:
Step One: An employer and employee must agree to bargain. In the event that the employer does not, a union representing employees will most probably apply for good faith bargaining orders.
Step Two: Once an employer has agreed to bargain they must notify their employees of their right to be represented in bargaining and they must give their employees 14days notice.
Step Three: Employees are to be represented by their union or nominate their own representative.
Step Four: All parties to act in good faith.
Step Five: Once negotiations have been concluded an employer may request that employees vote on a proposed agreement, 21days after it issues their employees with representation notices. The employer is required to provide employees with access to the proposed agreement at least 7days prior to seeking approval of the agreement and must explain the effect to them. An agreement then is approved when a valid majority of those voting for the agreement approve the agreement. The employer is responsible for holding the vote. All agreements are to be submitted to the FWA for approval within 14days.
Either the employer or employees or union may lodge the agreement.
Step Six: FWA must be satisfied that the ‘better off overall’ test is met (as described above) as well as the NES not being undercut, in addition to the fact employees and employers were not coerced into making the agreement, and that unlawful content as described above is not expressed in an agreement.
Step Seven: All agreements that are passed must be displayed on a noticeboard and each employee must have access to a copy of it.
Step Eight: The agreement is operable from the seventh day after the date of issue of the notice by FWA advising that the agreement has passed the no disadvantage test.
OR,
Step Nine: An agreement comes to an end at the nominal expiry date. Following the commencement of the transition legislation a collective agreement may not be terminated unilaterally unless the termination is in a manner provided by the agreement for termination following its nominal date and on the provision of at least 14 days written notice to the other party to the agreement and employees covered by the agreement.
Further, a party to a collective agreement that has passed its nominal expiry date may apply to FWA for an order to terminate the agreement. FWA may make an order to terminate the agreement provided that it is not contrary to the public interest to do so.
Therefore, the key point to note in this instance is the difference between an expiry date and termination of an agreement. Under the Fair Work Act collective instruments remain in force until they are terminated.
Employment Law - Unfair Dismissal or a Genuine Redundancy? When is Redeployment Reasonable?
Date: November 29, 2011
Author(s): Patrick Mulligan B.A., LL.B.
A common issue in termination of employment is determining whether the employee has been unfairly dismissed or made redundant. The employer may have told the employee that it is a genuine redundancy.
Employment Law - Redundancy - Unfair Dismissal - Should Employers Offer a Lower Paid Position to Employees?
Date: November 29, 2011
Author(s): Patrick Mulligan B.A., LL.B.
The purpose of this article is to review Margolina v Jenny Craig Weight Loss Centres Pty Ltd [2011]FWA 5215. This case addressed issues of whether it would have been reasonable to redeploy the employee into a lower paying position when she was made redundant. She argued that it was not a genuine redundancy as the employer never offered her alternative employment in a lower paid position.
Employment Law - How your Criminal History may affect your future Employment
Date: March 14, 2011
Author(s): Mark Bostock LL.B., B.Bus.
A concern faced by many who are facing prosecution is the influence a conviction may have on them should they be found guilty of a criminal offence.
Employment Law - Employee Theft
Date: March 07, 2011
Author(s): Annette Wood B.A. (Policing), LL.B.
Employees stealing from employers in an increasing problem. This is increasingly evident when approximately 80% of workplace crime is carried out by employees. Employee dishonesty is a crime, it can take many forms such as embezzlement of funds, false invoicing, theft of cash, false inventory, payroll fraud and computer fraud.
Employment Law - Unfair Dismissal and Discrimination Provisions
Date: December 07, 2010
Author(s): LAC Lawyers
If you can answer yes to any of the following questions then this article on Unfair Dismissal and Discrimination is for you
Employment Law - The Rights of an Employer and their Employee
Date: October 08, 2010
Author(s): Jana Whitby B.A., LL.B. (Hons.)
With the Law in this area constantly changing, many employers and employees are uncertain as to their rights with respect to such things as employment contracts, termination of employment and redundancy.
Employment Law - You Have Been Terminated, Does it Amount to Unfair Dismissal?
Date: October 08, 2010
Author(s): LAC Lawyers
Organisations with It is becoming more rampant in the current times that an employee is found to have been terminated. Termination of employment can take several forms and unfair dismissal seems to be a common occurrence.
Small Business Fair Dismissal Code - Termination Of Employment Rules For Small Business Under The Fair Work Act 2009 (Cth.)
Date: July 30, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
One of the significant changes made to unfair dismissal laws by the Rudd Government under the Fair Work Act 2009 was the introduction of the Small Business Fair Dismissal Code (“the Code”). The Code included a check list for employers to complete when terminating employment. Small employers hoped that by complying with the check list, it would be easier to dismiss staff.
Employment Law - Unfair dismissals under the Fair Work Act
Date: April 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
The Fair Work Act 2009 (Cth) became fully operational from 1st January 2010. The Fair Work Act changed the rights of employees and responsibilities of employers relating to dismissals.
Employment Law - Unfair dismissals under the Fair Work Act - Common Law Contracts
Date: April 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Finally, common law contracts of employment will continue to regulate a large number of employment relationships under the Fair Work Act. This will continue to be the case notwithstanding the creation of ‘Modern Awards’ by the Australian Industrial Relations Tribunal since January 2010. These Modern Awards cover ten modern award conditions which are similar to the National Employment Standards that provide the basic safety net for employees.
Employment Law - Unfair dismissals under the Fair Work Act - General Protection Provisions
Date: April 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
The Fair Work Act incorporates general protection provisions in Part 3 – 1. This Part incorporates the type of protection provided under unfair dismissal and freedom of association provisions which was incorporated into the Work Choices legislation. The unlawful termination provisions of Work Choices have been re-enacted in Part 6 – 4 of the Fair Work Act. However, the Fair Work Act provides that a person may not apply for help against an unlawful termination if they are also entitled to challenge the dismissal under the general protection provisions.
Employment Law - Unfair dismissals under the Fair Work Act - Remedies and Entitlements
Date: April 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Remedies under the Fair Work Act are largely the same as under Work Choices. Reinstatement is the primary remedy. However, Fair Work Australia’s power to reinstate has been increased to order reinstatement to ‘associated interties’ – in other words to other companies in a group.
Employment Law - Can Employers Be Stopped From Discriminating Against Employees Upon The Basis Of Lifestyle Or Philosophical Beliefs As Opposed To Religious Or Political Beliefs?
Date: January 13, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
An English Decision and its Implications for Australian Emloyment and Discrimination Law
Employment Law - Employee and Employer Duties in Common Law Employment Contracts
Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
In addition to the express terms of a common law contract of employment, the contract may also include implied terms.
Employment Law - Restraints Of Trade: Restraining Former Employees When The Work Agreement Has Ended
Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Employment restraints are contractual terms which seek to limit the activities of the employee once their period of service ends.
Employment Law - The New Fair Work Act - Collective Agreements (4)
Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Employment Law - The New Fair Work Act - Contracting With Employees (3)
Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Essentially, with the introduction of the Fair Work Act, there are two ways in which an employer can contract with the employees in its workforce. The first is by way of common law contracts of employment. This is the subject of a separate LAC Lawyers’ article available through the website.
Employment Law - The New Fair Work Act - New National Employment Standards (2)
Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Under the Fair Work Act, the new National Employment Standards provide a new national safety net, irrespective of whether or not businesses enter into a Workplace Agreement.
Employment Law - The New Fair Work Act - What Is It and What Does It Do (1)
Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
On Friday, 20 March 2009, the Fair Work Bill was finally passed by the Australian Senate after Family First’s Senator Fielding voted with the Government after doing a deal in relation to the unfair dismissal provisions. It received Royal Assent on 7 April 2009.
Employment Law - Part 1 - How will the new workplace relations laws introduced on 1 July 2009 affect you?
Date: July 04, 2009
Author(s): LAC Lawyers
The introduction of new workplace relations laws through the Fair Work Act 2009 has changed employment law in Australia as we know it. The aim of the Australian Government in implementing this change is to effectively balance the various needs of employees, employers and unions with a view to ensuring Australia becoming a better country financially and guaranteeing minimum workplace standards and maintaining workplace rights.
Employment Law - Redundancy - Transmission of Business
Date: July 04, 2009
Author(s): LAC Lawyers
Your employer writes to you informing you that the company has sold its business together with its assets to another entity and that you are to re-apply for the same position in the new company. What are your rights? Have you been terminated? Are you entitled to claim redundancy payments?
Employment Law - The Three 'R's' & Unfair Dismissal
Date: July 04, 2009
Author(s): LAC Lawyers
What we’re referring to here is not the traditional ‘three R’s’ associated with education, but rather, the ‘R’ words in the context of employment and industrial law: resignation, retrenchment, and redundancy. Perhaps the word ‘retirement’ could also be added. This has great relevance in the current economic climate.
Employment Law - General Employee Entitlement & Redundancy Scheme (GEERS)
Date: June 05, 2009
Author(s): LAC Lawyers
If you have been made redundant or have lost your job because your employer has gone bust and you have not been paid your outstanding wages or entitlements, then you may be eligible for payment under GEERS.
Employment Law - Case involving an Employee failing to provide notice of resignation - Leiminer's case
Date: August 10, 2008
Author(s): LAC Lawyers
In Late July 2008 the Federal Magistrate’s Court for the first time ever fined an employee for failing to provide notice of resignation, although the magistrate questioned the employer’s actions in bringing the matter to Court.
Employment Contracts and Restraint of Trade Clauses
Date: April 22, 2007
Author(s): LAC Lawyers
This paper explores restraint of trade and confidentiality agreements between employers and employees. It is common for employers to have a global restraint clause to restrain departing employees from working for a competitor and that may not be sufficient.
Employment Law - The Enforceability of Post Employment Restraints of Trade (Vic.)
Date: December 18, 2006
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Employing highly intelligent and highly qualified employees in a range of sophisticated commercial businesses is a risky business for employers.
Employment Law – Unfair Dismissal and the Workplace Relations System
Date: March 26, 2006
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
The Federal Government has announced widespread changes to the Australian workplace relations system, by relying upon one of the heads of power under the Australian Constitution, namely the Corporations Power.
Employment Law - Workplace Bullying
Date: February 17, 2006
Author(s): LAC Lawyers
Workplace bullying has been with us ever since the advent of the Industrial Revolution. Interestingly in New South Wales the Office of Industrial Relations of the NSW Department of Commerce provides scant information about this anti-social workplace behaviour.