Employment Law - The New Fair Work Act - New National Employment Standards (2)
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
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.
The key difference, therefore, is that unlike Work Choices, Workplace Agreements do not displace the safety net. The National Employment Standards also apply to employees earning less than $100,000.00 per year in respect of whom a collective agreement cannot be made.
The new awards created as part of the award modernisation process will commence on 1 January 2010. The number of allowable award matters will be reduced from 15 to 10 which will now operate as conditions of employment. Where employees earning more than $100,000.00 were employed under award conditions prior to 1 January 2010, those entitlements will continue even after the new system commences in 2010. However, such employees will be free to negotiate and agree with their employer their future pay and conditions without reference to awards.
The Fair Work Act provides there will be regular reviews of awards every four years commencing in 2013. The matters that may now be included in awards are as follows:
- Minimum wages
- Categories of employment
- Hours of work
- Overtime rates
- Penalty rates
- Annualised salary arrangements
- Allowances
- Leave
- Leave loadings
- Superannuation and consultative provisions
- Dispute settlement procedures
The new National Employment Standards, to come into operation on 1 January 2010, will apply to all employees on a “no detriment basis” and will be as follows:
- Maximum weekly hours of 38 hours per week plus a request for reasonable additional hours but the right to refuse reasonable overtime.
- Parental leave which shall be an additional 12 months unpaid leave.
- Flexible work for parents and the guaranteed right for parents to request flexible work arrangements until their child reaches school age (whereby an employer can refuse this on reasonable business grounds).
- Annual leave.
- Personal leave.
- Community service leave for prescribed community activities.
- Long service leave, currently State-based.
- Public holidays which shall incorporate State-based gazetted public holidays such as (in Victoria) Australia Day, Labour Day, Good Friday, Easter Monday, Queen’s Birthday, Melbourne Cup Day, Christmas Day, Boxing Day and New Year’s Day.
- Notice and redundancy entitlements of up to 16 weeks pay which is not a legislative entitlement at the moment.
- An information statement of workplace rights for employees.
Employment Law - Contractors - GST, superannuation payments and ABN
Date: March 01, 2012
Author(s): Piria Coleman B.A., LL.B. (Hons)
Usually independent contractors do not have the benefit of receiving compulsory superannuation contributions. It is prudent, however, to obtain specialist superannuation advice from a legal practitioner or a certified accountant, as to the circumstances in which an independent contractor is entitled to the benefit of compulsory superannuation contributions.
Employment Law - Contractors - How do you draft a contract for an independent contractor?
Date: March 01, 2012
Author(s): Piria Coleman B.A., LL.B. (Hons)
It is important to try and avoid creating an employment contract or a contract of services. Legally, this means that you must describe the arrangement as a contract for services.
Employment Law - Contractors - How does the Fair Work Act 2009 (Cth) seek to minimise ‘sham’ arrangements?
Date: March 01, 2012
Author(s): Piria Coleman B.A., LL.B. (Hons)
The Independent Contractors Act 2006 (Cth) (the Act) took effect on 1 March 2007. The Act seeks to ensure that genuine independent contractors are not treated as employees. It also protects genuine employees from being treated as independent contractors.
Employment Law - Contractors - What is the difference between a contractor and an employee?
Date: March 01, 2012
Author(s): Piria Coleman B.A., LL.B. (Hons)
Contractors are not employees and legally they stand in a class of their own. The parties to a contract need to be clear about their respective rights and responsibilities at the outset because the distinctions between employees and contractors have long vexed the courts.
Employment Law - Contractors - What makes a worker is an independent contractor?
Date: March 01, 2012
Author(s): Piria Coleman B.A., LL.B. (Hons)
Many people that operate as independent contractors run their own businesses. The work of an independent contractor may permit a worker to delegate or subcontract performance of the work to other persons.
Employment Law - Unfair Dismissal - Can an employee be dismissed for comments made on Facebook regarding work colleagues?
Date: February 27, 2012
Author(s): Patrick Mulligan B.A., LL.B.
Mr. Stutsel had worked for Linfox for over 22 years. Fellow managers had learnt of comments made about them on face book. One manger of Muslim origin was called a “bacon hater” and sexual innuendos and jokes were made about a female manager. An investigation was conducted. Mr. Stutsel was subsequently dismissed.
Employment Law - The Enforceability of Post Employment Restraints of Trade (Vic.)
Date: December 18, 2011
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 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 - Consequences & The Agreement Making Process (5)
Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
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.
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 - 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 – 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.