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The Fair Work Act – 8 Months OnTim CapelinManaging PartnerAustralian Business Lawyerstim.capelin@ablawyers.com.au(02) 9458 7497

3 March 2010

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Agenda

Alternatives from AwardCompliance

Right to Request Flexibility

Other New Elements of NES

Dismissal Claims

Right of Entry

Wrap Up

New Awards

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New Awards Aged Care Award

Clerks – Private Sector Award

Health Professionals and Support Services Award

Medical Practitioners Award

Nurses Award

Pharmaceutical Industry Award

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Award Alternatives – Determining Best Option

Consider what you want

Determine if employeeis award covered

Enterprise Agreements

Individual Flexibility Arrangements

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Award Alternatives – Enterprise Agreements

AgreementTypes

Employeeenterprise

agreements

Flexibility Arrangements

Common LawContracts

Multi-businessenterprise

agreements

Unionenterprise agreements

Union Greenfieldsenterprise

agreements

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Enterprise Agreements - Transition

Collective agreement basedtransitional instruments

Individual agreement basedtransitional instruments

Award basedtransitional instruments

CollectiveAgreements

Pre-reform certifiedagreements

ITEAs

Collective StateAgreements

AWAs

Individual StateAgreements

(Federal) awards

NAPSAs

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Enterprise Agreements: Interaction between transitional agreements and modern awards Modern awards do not apply to an employee covered by:

a workplace agreement made after 27 March 2006 (including ITEAs)

an AWA made at any time a preserved state agreement

BUT…..the base rate of pay in all instruments must not be less than the relevant modern award rate

AND…transitional agreements are subject to the NES from 1 January 2010

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Enterprise Agreements - Main Elements Agreement content largely unlimited, but must be about

‘permitted matters’

Maximum 4 year term

Bargaining to occur in good faith

Agreement must be better off overall

Opportunities for Industrial action remain limited

Fair Work Australia may intervene in negotiations

FWA may impose an Agreement on parties FWA must approve completed Agreement

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Award Alternatives – Individual Flexibility Arrangements Need Award or Enterprise Agreement Flexibility

Clause IFA MUST be in writing Genuinely Agreed Pass the BOOT Terminable on no more than 28 days notice Signed by both parties and parent or guardian if under

18 years

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Award Alternatives – Individual Flexibility Arrangements Cannot make IFA condition of

employment

Should make employment contract compatible with IFA

Can provide IFA and no IFA options

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Right to Request Flexibility – 4 issues

1. Employee eligibility to ask for different working arrangements.

2. Employers’ obligation to: – grant or refuse the request; and – provide written reasons for any refusal.

3. Superior benefits remain enforceable under state legislation, enterprise agreements or other written agreements.

4. Sanctions - this apparently weak right that is made potent because of the written reasons.

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R2R: Issue 1 - Eligibility

The EMPLOYEEA parent or other with

responsibility for caring for the relevant

child

The EMPLOYMENT

12 months continuous emp or long term casual

The REASONTo assist in

caring for the relevant child.

The CHILD: Under school age or under 18 years old

with a disability

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R2R: Issue 2 - Employer must grant or refuse a request1. The Employer cannot lawfully respond by saying it will

grant the request subject to trial. 2. The Employer must grant or refuse – failure to do so,

attracts a civil penalty. 3. If the Employer wants to trial the request it could:

Ask the employee to withdraw the request, enter into a trial and then resubmit the request; or

Refuse the request (and provide written reasons), trial the requested arrangement and ask the employee to resubmit the request.

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R2R: Issue 3 – Superior Benefits1. The Victorian Equal Opportunity Act 1995

– Positive obligation on employers to reasonably accommodate requests for flexible working arrangements

– Unlike the R2R, the Vic Act provides an enforceable direct mechanism if the employee alleges the employer has failed to comply with the obligation.

2. (Some) Enterprise Agreement Provisions & Contracts of Employment:

– Broaden eligibility; or – Impose a positive obligation to accommodate requests; or– provide that the Fair Work Tribunal can enforce employer

breach.

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R2R: Issue 4 - R2R not a toothless tiger 1. Failure to respond at all or give written reasons for

refusal attracts a civil penalty $6,600 for a non-compliant individual $33,000 for a non-compliant corporation

2. There is not a statutory mechanism for third party review of the ‘’reasonable business reasons for refusal’’ (unlike Victoria), however -

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R2R is not a toothless tiger cont

1. A dispute resolution clause in an EA or other written agreement can give the Fair Work Tribunal power to resolve a dispute over a refusal.

2. The written reasons should be carefully drafted because they may be a potent tool in other claims: Anti-Discrimination Act (NSW): Discrimination on the ground of

carer’s responsibilities pre, during or on termination. Sex Discrimination Act (Cth): Discrimination on the ground of

family responsibilities. Fair Work Act (Cth): Adverse action because of family or

carer’s responsibilities.

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Other Elements of NES

10 STANDARDS

1. Hoursof work 2. Parental

leave

4. Personalleave

5. CommunityService leave

6. Publicholidays

7. Info inWorkplace

8. Terminationof employment& redundancy

9. Longservice leave

3. Annualleave

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Dismissal ClaimsRelevant Environmental Elements GFC publicity around re-introduction of unfair dismissal for

smaller businessesKey Changes Employers with less than 101 employees change to redundancy exclusion change to proceedings processes increase in categories for potential claimsPotential Outcomes more contested terminations more post-termination payments

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Entry toinvestigate suspected

breach

Entry to hold discussions

Right of EntryLaws

Unioneligibility iskey to entry

Increasedpotential fordemarcation

disputes

Wider access to documentation

including non-memberinformation

OHS entry

Union Right of Entry

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Wrap up1. Be across your new awards2. Consider best alternatives to awards3. R2R requires good processes and probably

management training4. NES applies to all and cannot be avoided5. Be aware of new elements of dismissal laws

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Questions