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

• What Is It and What Does It Do
• Contracting with Employees
• Collective Agreements
• Consequences & The Agreement Making Process

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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:

1. Maximum weekly hours of 38 hours per week plus a request for reasonable additional hours but the right to refuse reasonable overtime.
2. Parental leave which shall be an additional 12 months unpaid leave.
3. 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).
4. Annual leave.
5. Personal leave.
6. Community service leave for prescribed community activities.
7. Long service leave, currently State-based.
8. 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.
9. Notice and redundancy entitlements of up to 16 weeks pay which is not a legislative entitlement at the moment.
10. An information statement of workplace rights for employees.

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 - 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 - 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.

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.

• The Fair Work Act