Implement New Uniform in the Workplace by gpl12798

VIEWS: 9 PAGES: 36

Implement New Uniform in the Workplace document sample

More Info
									Staying ahead of the Game
Understanding the new workplace reforms
For more comprehensive information on the new workplace reforms,
visit www.TechnologyOneCorp.com/HRMSwhitepaper




                                                                                        1800 671 978 | Solutions@TechnologyOneCorp.com | www.TechnologyOneCorp.com/HRMS




               Disclaimer: The information in this whitepaper is presented by Technology One for the purpose of providing an understanding for their clients on the new
               workplace reforms introduced in the Fair Work Act 2009. While every effort has been made to ensure that this information has been interpreted correctly,
                                       no person or organisation should rely on the contents of this white paper without first obtaining qualified and professional advice.
                                     TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
Table of Contents
                                       Contents
                                       1.0      new workplace reforms                              1

                                       1.1      Central tenets affecting employment lifecycle      1

                                       1.3      Fair work institutions                             2

                                       1.4      Staying ahead of the game                          4

                                       2.0      Recruiting                                         5

                                       2.1      new obligations to prospective employees           5

                                       2.2      Misrepresenting employment as contracting          5

                                       2.3      Fair work information Statement                    6

                                       2.4      greenfields agreements                             7

                                       3.0      establishing the employee relationship             8

                                       3.1      national employment Standards                      8

                                       3.2      Modern awards                                     11

                                       3.3      enterprise agreements                             14

                                       3.4      general protections                               19

                                       3.5      Minimum wage                                      21

                                       4.0      Relations with industrial organisations           23

                                       4.1      extended union rights                             23

                                       4.2      industrial action                                 24

                                       5.0      Managing performance and termination              27

                                       5.1      Unfair dismissals                                 27

                                       5.2      Unlawful termination                              29

                                       5.3      Redundancy                                        30

                                       5.4      post-termination                                  31

                                       6.0      References and appendices                         32

                                       6.1      Timeline                                          32

                                       6.2      acronyms                                          32

                                       6.3      References and more information                   33

                                       6.4      appendix 1 – Modern awards – timeline of stages   33
   1800 671 978
   Solutions@TechnologyOneCorp.com
   www.TechnologyOneCorp.com/HRMS
                                                                          TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009




                                                                                                                                                                           New Fair Work
1.0                    new workplace reforms
The Fair work reforms are the realisation of the labor government’s 2007 election
policy, Forward with Fairness, bringing changes to the workplace relations system
and regulations in australia to create a uniform, national industrial relations system.
The government believes the reforms “meet the needs of employees, unions and
employers, while still allowing australia to be competitive and prosperous”.

although there are significant areas of change for Human Resource (HR) practitioners to
note, the new legislation does not represent a wholesale departure from its predecessor,
the Workplace Relations Act 1996 (wR act) and the Workplace Relations Amendment
(Work Choices) Act 2005 (work Choices). Harmers workplace lawyers has suggested
that ignorance of the new industrial relations legislation will prove costly for employers,
with significant consequences for failing to apply the appropriate award conditions.1


1.1 Central tenets affecting
employment lifecycle
The central tenets of the new legislation and changes brought about will be explored in
relation to the employment lifecycle – recruiting, establishing the employee relationship,
relations with industrial bodies, and managing performance and termination. additionally,
where applicable, a comparison with changes introduced in the transitional period and
wholesale departures from work Choices will also be made. This paper also suggests tactics
for HR practitioners to make the implementation of the reforms as seamless as possible
through the Fair work action plans. The significant variations are summarised as follows:

employment lifecycle

                                       •    Obligations for prospective employees in the recruitment process
                                       •    Misrepresentation of employment as an
                                            independent contracting arrangement
          Recruiting                   •    provision of Fair work information Statement before commencement
                                       •    greenfield agreements



                                       •    national employment Standards (neS), including flexibility
                                       •    Modern awards
         Establishing                  •    enterprise agreements, including good faith bargaining
         employment                    •    general protections
         relationship                  •    Minimum wage




                                       •    incorporation of greater right of entry for unions
       Relations with                  •    provisions for industrial action
          unions




                                       •    Unfair dismissal
         Managing                                                                                                                                                       1800 671 978

       performance &                   •    Unlawful termination                                                                                     Solutions@TechnologyOneCorp.com

        termination                    •    Redundancy                                                                                              www.TechnologyOneCorp.com/HRMS

                                       •    post-termination




   1    Harmers Workplace Lawyers, “Ignorance of new industrial relations legislation will prove costly for employers”, Media release, 1
       April 2009.
                                                                                                                                           page 1
                                    TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
New Fair Work
                                       1.2 Fair Work Act 2009
                                      The Fair Work Act 2009 (Fw act) came into force on 1 July 2009, although some provisions
                                      do not come into effect until 1 January 2010. part of the transition period was covered
                                      by Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008, but
                                      this is now covered by another piece of legislation, the Fair work (Transitional provisions
                                      and Consequential amendments) act 2009 or Transition act, which became effective on
                                      25 June 2009. These transitional acts are referred to as “transitional arrangements”.

                                      A national system
                                      with similar coverage to work Choices, the new legislation applies to all national system
                                      employers and their employees, and covers the Commonwealth; a Commonwealth authority;
                                      a constitutional corporation; a person or entity that employs flight crew officers, maritime
                                      employees or waterside workers; and an employer in the australian Capital Territory or the
                                      northern Territory. it also applies to state based companies that are considered constitutional
                                      corporations. The legislation covers approximately 85 per cent of the workforce in australia.

                                      The rest of the workforce is covered by the relevant state industrial relations system, although
                                      the Commonwealth is seeking for the States to refer their industrial relations powers to
                                      it under the Fair Work (State Referral and Consequential and Other Amendments) Act
                                      2009. The Victorian government referred its powers on 1 July 2009. The Queensland,
                                      South australian2 and Tasmanian governments3 have also announced they will refer
                                      their powers. The new South wales government is yet to decide, and the western
                                      australian government has indicated that it will not refer its industrial powers.

                                      Comparison with Workplace Relations
                                      Act 1996 & Work Choices 2005
                                      These reforms replace the Howard government’s Workplace Relations Act 1996 (wR act)
                                      and the Workplace Relations Amendment (Work Choices) Act 2005. in this white paper, both
                                      pieces of legislation are described as work Choices for simplicity. work Choices was a national
                                      industrial relations system that covered a similar number of employees to the Fw act.4

                                      The principal thrust of work Choices was to individualise employment relations by:

                                               • offering employers greater flexibility in the terms and conditions
                                                 on which they could employ workers, with workplace agreements
                                                 underpinned by statutory minimum conditions rather than awards
                                               • reducing the role played by the australian industrial Relations Commission (aiRC)
                                                 in determining employment conditions and resolving industrial disputes
                                               • making it more difficult for unions to enter workplaces or organise industrial action, and
                                               • reducing the exposure of employers to unfair dismissal claims.5

                                      1.3 Fair Work institutions
                                      The Fw act introduces a new framework of institutions for the administration of the new
                                      workplace relations environment. One body, Fair work australia (Fwa), is the new industrial
                                      umpire independent of unions, business and government. it will offer information, advice and
                                      assistance on workplace issues and streamlines the functions of the tribunals, agencies and
  1800 671 978
                                      courts in operation under work Choices. Fwa is intended to operate in an informal manner, and
  Solutions@TechnologyOneCorp.com
  www.TechnologyOneCorp.com/HRMS      in many instances lawyers and workplace relations consultants will not be permitted at hearings.
                                         2      Business SA Business Advisory Centre, BAC Chat, business-sa.com, Issue June 2009
                                               Holding Redlich Lawyers, “Fair Work Australia: An Overview”, www.holdingredlich.com.au/fair-work-act-2009-overview, 28 July
                                               2009
                                               Mark Wooden, “Implications of Work Choices Legislation”, Agenda, Volume 1, Number 2, 2006, p100
                                         5      Federation Press, “Work Choices Legislation: An Overview”, Dec 2006, www.federationpress.com.au/pdf/WorkChoicesOverview-
                                               Dec06.pdf, p2

                                      page 2
                                                                                      TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009




                                                                                                                                                                                                   New Fair Work
Fwa has the authority to:

       •        maintain awards
       •        make minimum wage orders
       •        facilitate collective bargaining and approve agreements
       •        determine unfair dismissal claims
       •        deal with industrial action and resolve disputes, and
       •        ensure compliance with workplace laws, modern awards and enterprise agreements.


                                                               Fair Work
                                                               Australia



                                                                                           Fair Work Divisions
          Fair Work                              Office of
                                                                                            of Federal Court                        State & Territory
          Australia                              Fair Work
                                                                                                & Federal                                Courts
         (President)                            Ombudsman
                                                                                            Magistrates Court

        Tribunal functions                    Fair Work Ombudsman                                 Federal Court
                                                    - Promotes compliance with
                 (FWA Members)
                                                  legislation, including education,
                                                                                                    (Fair Work Divisions)               State & Territory
     - Approval of enterprise agreements                                                    - Deal with all matters arising under
          - Awards review & variation                  information & assistance                   new workplace legislation                 Courts
         - Good faith bargaining orders                                                        - Deal with entitlements about        - Retain their existing jurisdiction
                - Unfair dismissal                                                            matters in NES or modern awards                    & powers
            - Industrial action orders
       - Mediation & dispute resolution         Fair Work Inspectors
     - Broad powers to conduct matters        - Power to enter premises to monitor
         & inform itself as it considers           compliance with legislation or             Federal Magistrates
           appropriate in an informal          instruments made under legislation
             & non-adversarial way                           (e.g. NES)
                                                                                                    Court
                                                                                                - Deal with small claims up
                                                 - Can bring court proceedings to
                                                                                                        to $20,000
                                                   enforce rights and obligations
                                                - Investigate and enforce common
     Non-Tribunal functions                     law entitlements that relate to the
                 (General Manager)                    NES or modern awards
           - Provides assistance to FWA
               President & members
     - Manages FWA staff that assist FWA
         members to discharge functions
      - Provides information about role of
                        FWA
     - Reviews developments in enterprise
                     agreements
         - Conducts research on matters
          including the use of individual
      flexibility arrangements & operation
      of the NES in relation to requirments
        for flexible working arrangements



     Minimum Wages Panel
                   (President)
      - Sets & adjusts wages in tis annual
                  wage review




Work Choices comparison
Fwa replaces the following agencies under work Choices that undertook similar tasks:

       • australian industrial Relations Commission (aiRC), which handled termination
         claims, industrial disputes, industrial action applications and award rationalisation
         – will continue until 31 December 2009. The transitional arrangements allow
         it to complete any matters outstanding from the wR act, including unfair
         dismissal claims, and to complete the award modernisation process
       • australian industrial Registry
       • australian Fair pay Commission (aFpC) responsible for the federal minimum wage
         setting, which was continued until 31 July 2009 to allow it to complete a final wage review
       • australian Fair pay Commission Secretariat
       • workplace authority (wa) responsible for the agreement ‘no disadvantage
         test’ and advice regarding the federal workplace laws will continue until
         31 January 2010, but with limited scope (the Fair work Ombudsman
         already has responsibility for the general advisory function)
       • workplace Ombudsman (wO) was responsible for compliance with                                                                                                                           1800 671 978

         federal workplace laws, and was not required past 30 June 2009.                                                                                                     Solutions@TechnologyOneCorp.com
                                                                                                                                                                            www.TechnologyOneCorp.com/HRMS
it is also expected the australian building and Construction Commission (abCC)
will be incorporated into Fwa in some way by 31 January 2010, after the Senate
enquiry into the building and Construction industry improvement amendment
(Transition to Fair work) bill, due to be reported on 10 September 2009.
                                                                                                                                                                page 3
                                    TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
New Fair Work
                                      1.4 Staying ahead of the game
                                      The new workplace relations changes represent a remarkable opportunity for HR practitioners
                                      to chart the strategic direction of their organisation’s human resources in implementing this
                                      new legislation; to become thought leaders on the new legislation, to help build organisational
                                      strategy around the legislation, and implement tactics to monitor the legislation.

                                      The new workplace reforms cannot be ignored. it is imperative for HR practitioners and
                                      business unit managers in every organisation to analyse the changes the laws bring to the
                                      relationship with their employees. Then, it is necessary to modify their human resources
                                      processes and systems to ensure integration of the changes into organisational strategy.

                                      Fair Work action plans
                                      To assist managers and HR practitioners in a practical way, this paper provides a Fair
                                      work action plan for each change to the employment lifecycle. The solution lies in pre-
                                      determined policies around the new legislation, and sound and reliable record keeping. To
                                      implement this organisations need to institute automated HR management and payroll
                                      systems to be able to deal with the extensive requirements around employee information.

                                      HR management systems
                                      whatever form it takes, the HR management system must have the capability to:

                                               • provide for new documentation and candidate particulars required in the recruiting phase
                                               • record employee particulars, contracts and documentation
                                               • complete a checklist to ensure all neS, particularly the flexibility clause,
                                                 and modern award conditions are met for that employee
                                               • store all relevant awards and enterprise agreements within the system
                                               • retrieve employee information quickly and easily
                                               • manage payroll changes quickly, in line with minimum
                                                 wage and modern award requirements
                                               • implement performance management processes for each employee
                                               • carefully manage a termination or redundancy situation in accordance with the legislation,
                                                 including going through the Small business Fair Dismissal Code if a small business, and
                                               • alert relevant divisions within the organisation that an employee
                                                 has been terminated or made redundant.
                                      as will be noted throughout this paper, the importance of reliable record keeping cannot
                                      be overemphasised under the new workplace reforms. if employers are to seamlessly
                                      integrate the new workplace legislation and the reforms it brings into their organisations,
                                      they will need to invest in a robust, efficient information handling system. To that end,
                                      a fully automated human resource and payroll system may save time and money that
                                      would otherwise be outlaid in challenging employment conditions and policies.




  1800 671 978
  Solutions@TechnologyOneCorp.com
  www.TechnologyOneCorp.com/HRMS




                                      page 4
                                                   TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009




                                                                                                                              Recruiting
2.0              Recruiting
The new workplace reforms bring a significant change to the recruitment process through the
provision of rights for prospective employees. Consequently, HR practitioners and recruiters need
to be fully aware of these obligations to ensure that they are met during the recruitment process.


2.1 new obligations to prospective employees
The legislation offers a new “general protection” provision for prospective employees. employers
must not refuse to employ or discriminate against a prospective employee in the terms or
conditions offered on the basis of workplace rights (including an entitlement under an award
or agreement, or a workplace law), union membership or engagement in industrial activities,
or other discrimination conditions. Furthermore, the employer must not take “adverse action”
against the employee, which includes refusing to employ the prospective employee.

it is important to note that these general protections continue to apply throughout the
course of employment and in the consideration of termination or redundancy.

Transitional arrangements
There are no transitional arrangements in relation to the right of prospective employees.

Work Choices comparison
work Choices did not specifically cover prospective employees, although the wR act did
provide for some limited general protections, such as covered in the discrimination clause.

Fair Work action plan
To ensure the requirements of the Fw act are met, it is imperative to:

       • provide training to managers and HR personnel (particularly internal
         recruitment personnel) on changes to the legislation
       • manage candidates throughout their recruitment process (capturing all
         associated workflow, records and candidate communication), and
       • carefully manage and record the process for advising unsuccessful candidates.

2.2 Misrepresenting employment
as contracting
The general protection provisions also include a section on misrepresenting employment as an
independent contracting arrangement or “sham contracting”. a sham contracting arrangement is
when an employer deliberately disguises an employment relationship as an independent contracting
arrangement, instead of paying the worker as an employee. However, this provision does not apply
if the employer proves that, when the contract was made, the employer did not know and was not
reckless as to whether the contract was for employment, rather than the provision of services.

again, these general protections continue to apply throughout the course of employment and
the employer must not dismiss an employee to engage them as an independent contractor
                                                                                                                           1800 671 978
to perform the same, or substantially the same, work as an independent contractor.
                                                                                                        Solutions@TechnologyOneCorp.com
                                                                                                       www.TechnologyOneCorp.com/HRMS




                                                                                              page 5
                                    TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
Recruiting
                                      Transitional arrangements
                                      There are no transitional arrangements in relation to sham contracting.

                                      Work Choices comparison
                                      Sham contracting arrangements were also illegal under work Choices.

                                      Fair Work action plan
                                      To ensure that the Fw act requirements are met, it is imperative to:

                                               • provide training to managers and HR personnel (in particular internal
                                                 recruitment personnel) on changes to the legislation
                                               • audit existing independent contract roles to ensure they are legitimate, and
                                               • ensure all new independent contract roles are true contract roles.

                                      2.3 Fair Work Information Statement
                                      an employer must give each employee the Fair work information Statement before, or as soon
                                      as practicable after, the employee starts employment, for anyone starting after 1 January 2010.

                                      The statement, written by the Fair work Ombudsman, has information regarding the neS,
                                      modern awards, agreement making, right to freedom of association, the role of Fwa and
                                      the Fair work Ombudsman, termination of employment, individual flexibility arrangement
                                      and right of entry (including the protection of personal information by privacy laws).

                                      Transitional arrangements
                                      There are no transitional arrangements in relation to provision
                                      of the Fair work information Statement.

                                      Work Choices comparison
                                      work Choices had a workplace Relations Fact Sheet in circulation from July
                                      2007, which outlined the australian Fair pay Commission Standard, the role of
                                      workplace authority and the workplace Ombudsman, and the Fairness test.

                                      Fair Work action plan
                                      To ensure that the Fw act requirements are met, it is imperative to:

                                               • brief managers and HR to ensure they understand the importance of
                                                 providing a Fair work information Statement to all new employees
                                               • download the Fair work information Statement from the workplace Ombudsman
                                               • from 1 January 2010, provide two copies to each employee, ask him/her
                                                 to sign and return one copy, scan and keep on the employee’s file.




  1800 671 978
  Solutions@TechnologyOneCorp.com
  www.TechnologyOneCorp.com/HRMS




                                      page 6
                                                  TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009




                                                                                                                          Recruiting
2.4 Greenfields agreements
The new system includes provisions for making greenfields agreements. However,
before a greenfields agreement is approved, Fwa must be satisfied that the employee
organisation(s) covered by the agreement are entitled to represent the industrial
interests of a majority of the prospective employees for that agreement. Fwa must
also be satisfied that it is in the public interest that the agreement be approved.

Transitional arrangements
There are no transitional arrangements in relation to greenfields agreements.

Work Choices comparison
work Choices allowed employers in certain circumstances to enter into a greenfields
agreement on its own, with no employee or union involvement. This is no longer allowed.

Fair Work action plan
The action plan for greenfields agreements is included in the
enterprise agreements section of this paper.




                                                                                                                       1800 671 978
                                                                                                    Solutions@TechnologyOneCorp.com
                                                                                                   www.TechnologyOneCorp.com/HRMS




                                                                                          page 7
                                      TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
Employee relationship
                                        3.0                establishing the
                                                           employee relationship
                                        There are five areas of change affecting the establishment of the employee
                                        relationship phase that will be covered in this section. They include:

                                                 •   national employment Standards (neS)
                                                 •   Modern awards
                                                 •   enterprise agreements
                                                 •   general protections, and
                                                 •   Minimum wage determinations
                                        The first two, the neS and modern awards, represent the “safety net” that will apply from
                                        1 January 2010. enterprise agreements may also be negotiated between the employer
                                        and employee. an understanding of general protections and minimum wage conditions
                                        is also critical as they are intertwined with the safety net and enterprise agreements.


                                        3.1 national employment Standards
                                        The ten conditions of the neS embody the minimum employment entitlements that
                                        cannot be modified by a contract, award or workplace agreement to disadvantage
                                        an employee. They are relevant to all employees of constitutional corporations,
                                        including managerial and professional staff not previously covered by awards
                                        or standards. The changes brought about by the neS appear in blue.

                                         Maximum weekly hours of work                      38 hours per week, plus
                                                                                           reasonable additional hours.
                                         Requests for flexible working arrangements        a parent/carer of children under school
                                                                                           age or those with a child under 18 with a
                                                                                           disability may request from the employer a
                                                                                           change in working arrangements to care for
                                                                                           the child. Changes may include change of
                                                                                           hours, change in patterns of work or change in
                                                                                           location of work, and some conditions apply:

                                                                                                  • employees must have worked
                                                                                                    for the employer for 12 months
                                                                                                  • the employer must respond to
                                                                                                    the request within 21 days, and
                                                                                                  • the employer can refuse only on
                                                                                                    reasonable business grounds and
                                                                                                    must provide reasons for refusal.
                                         parental leave and related entitlements           12 months unpaid parental leave for full-time
                                                                                           staff after 12 months service and long-term
                                                                                           casuals with the expectation of ongoing
                                                                                           employment, as well as the right to request an
                                                                                           extra 12 months unpaid parental leave. each
                                                                                           parent can take 12 months unpaid leave, or
                                                                                           one parent can take 24 months unpaid leave.
                                         annual leave                                      Four weeks leave and the provision
    1800 671 978                                                                           for all employees to cash out annual
    Solutions@TechnologyOneCorp.com
                                                                                           leave, provided an accrued balance of
    www.TechnologyOneCorp.com/HRMS
                                                                                           at least four weeks leave remains.




                                        page 8
                                                  TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009




                                                                                                                              Employee relationship
 personal/carer’s leave and compassionate leave all employees (except casuals) are entitled
                                                to paid personal/carer’s leave of 10 days per
                                                year, unpaid personal/carer’s leave of 2 days
                                                per year, and paid compassionate leave of 2
                                                days per occasion. Casual employees are not
                                                entitled to paid personal leave but are entitled
                                                to unpaid carer’s and compassionate leave.
                                                personal or carer’s leave may be cashed
                                                out under provisions in modern awards and
                                                enterprise agreements, provided an accrued
                                                balance of at least 15 days leave remains (for
                                                an employee working 38 hours a week).
 Community service leave                          employees may take unpaid leave for
                                                  eligible community service, such as
                                                  jury duty, and employers must top-up
                                                  the employees’ pay in the case of jury
                                                  duty for a period of up to ten days.
 long service leave                               Continues to be regulated by State and
                                                  Territory law while the government works
                                                  toward a uniform national system.
 public holidays                                  payment for public holidays allowed for at the
                                                  employee’s base rate of pay for ordinary hours
                                                  that would have been worked on that day.

                                                  The eight national public holidays now
                                                  include the Queen’s birthday Holiday, as
                                                  well as new year’s Day, australia Day,
                                                  good Friday, easter Monday, anzac Day,
                                                  Christmas Day and boxing Day. State
                                                  public holidays continue as gazetted.
 notice of termination                            This is handled in detail in the Managing
                                                  performance and Termination section.
 provision of a Fair work information Statement   On commencement of employment,
                                                  employers must provide the Statement
                                                  detailing the rights of employees and
                                                  how to seek advice and assistance.


Transitional arrangements
as the neS do not commence operation until 1 January 2010, the transitional arrangements
provide that the australian Fair pay and Conditions Standard, outlining the ‘safety net’
under work Choices, will continue to operate during the transitional period.

Work Choices
work Choices provided five minimum entitlements, which have now been expanded (see above):

      • annual leave (4 weeks leave)
      • personal/carer’s leave, including sick leave (10 days paid carer’s leave and a
        further 2 days unpaid carer’s leave for permanent employees and casuals)
      • parental leave (12 months unpaid parental leave for full-time staff after 12 months
        service and long-term casuals with the expectation of ongoing employment)
      • maximum ordinary hours of work (38 hours per week,
        plus reasonable additional hours), and
      • basic rates of pay and casual loadings (were set by the australian Fair pay Commission                             1800 671 978
                                                                                                        Solutions@TechnologyOneCorp.com
        which no longer exists) – now set by the Minimum wages panel a division of Fwa.                www.TechnologyOneCorp.com/HRMS

One recent requirement was for the workplace Relations Fact Sheet introduced in July 2007, to be
provided to employees setting out some details regarding employment information and advice.



                                                                                              page 9
                                      TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
Employee relationship
                                        Fair Work action plan
                                        The neS contain a number of key changes to the minimum standards for
                                        employees. given that it will come into effect on 1 January 2010, it is imperative that
                                        organisations have processes in place to manage the introduction and deployment
                                        of the new standards by reviewing contracts for neS compliance, including:

                                         Maximum weekly                    • provide training for managers and HR
                                         hours of work                       personnel on 38 hour week provision
                                                                           • alter existing contracts to ensure the
                                                                             38 hours/week is standard
                                                                           • incorporate into contracts what constitutes
                                                                             “reasonable additional hours”
                                                                           • ensure all documents are recorded in the employee file


                                         Requests for flexible             • provide training for managers and HR personnel
                                         working arrangements                on new flexibility arrangements
                                                                           • create an organisation-wide policy on flexible working
                                                                             arrangements to ensure a consistent approach to each
                                                                             request and that each request is considered properly
                                                                           • keep a copy of all requests in the employee file
                                                                           • ensure request responses are handled efficiently
                                                                             through an automated system, in particular
                                                                             where a request has been disallowed


                                         parental leave and                • provide training for managers and HR personnel
                                         related entitlements                on new 12 months leave extension
                                                                           • create an organisation-wide policy for handling requests
                                                                           • document the process for requesting leave,
                                                                             checking if the other parent has taken parental
                                                                             leave, and responding to requests
                                         annual leave – cashing out        • provide training for managers and HR
                                                                             personnel on new cashing out provisions
                                                                           • ensure employees’ annual leave records are current
                                                                           • evaluate any paid annual leave or cashing out provisions
                                                                             in the relevant modern award, enterprise agreement,
                                                                             or other agreement applicable to the employee
                                                                           • ensure an accrued balance of at least
                                                                             four weeks leave remains
                                         personal/carer’s leave and        • provide training for managers and HR personnel on
                                         compassionate leave                 new cashing out provisions for personal/carer’s leave
                                                                           • ensure employees’ personal/carer’s leave records are current
                                                                           • evaluate any personal/carer’s leave cashing out provisions
                                                                             in the relevant modern award, enterprise agreement,
                                                                             or other agreement applicable to the employee
                                                                           • ensure an accrued balance of at least 15 days leave remains


    1800 671 978
    Solutions@TechnologyOneCorp.com
    www.TechnologyOneCorp.com/HRMS




                                        page 10
                                                    TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009




                                                                                                                                  Employee relationship
 Community service leave           • provide training for managers and HR personnel on
                                     new community service leave, which includes jury duty
                                     (paid) or voluntary emergency activity (unpaid) (including
                                     activity time, travel time and rest time after the activity)
                                   • Create an organisation-wide policy for handling
                                     requests for community service leave
                                   • Document the process for requesting community
                                     service leave, obtaining copies of payments for jury
                                     duty, and processes for paying balance of wages
                                     due net of community service leave payments
 long service leave                • ensure organisational policies comply with
                                     all State and Territory legislation
 public holidays                   • Create organisation-wide policy in relation
                                     to requests for employees to work on public
                                     holidays in line with the business
                                   • Create an online process to handle
                                     such requests and responses
 notice of termination             • This is handled in detail in Managing
                                     performance and Termination section.
 provision of a Fair work          • provide training to managers and HR personnel to
 information Statement               ensure they understand the importance of providing a
                                     Fair work information Statement to all employees
                                   • Download the Fair work information Statement
                                     from the workplace Ombudsman
                                   • From 1 January 2010, provide two copies to each
                                     employee, ask him/her to sign and return one
                                     copy, scan and keep on the employee’s file.


3.2 Modern awards
The new legislation will restore the significant role of awards in australian workplace relations from 1
January 2010. The new ‘modern awards’ will include further conditions of employment (in addition
to the neS), tailored to the needs of the particular industry or occupation, and may include:

       • minimum wages – includes skill-based classifications and career
         structures, incentive-based payments and bonuses, wage rates,
         and other arrangements to apprentices and trainees
       • types of employment – permanent or casual, and the facilitation of
         flexible working arrangements, especially for parents and carers
       • arrangements for when work is performed – hours of
         work, meal breaks, rest breaks and rosters
       • overtime and penalty rates – including penalty rates that apply to employees working
         unsocial, irregular or unpredictable hours, weekends, public holidays or shift workers
       • provisions for minimum annualised wage or salary arrangements
         – relating to an industry or occupation (in lieu of penalty rates)
       • allowances – such as the reimbursement of expenses, higher
         duty allowances and disability-based payments
       • leave, leave-loadings and leave arrangements
                                                                                                                               1800 671 978
       • superannuation                                                                                     Solutions@TechnologyOneCorp.com

       • procedures for consultation, representation and dispute settlement, and                           www.TechnologyOneCorp.com/HRMS

       • flexibility clause enabling employees and employers to negotiate
         arrangements to meet their individual needs (employers are required to
         ensure that all flexibility arrangements result in the employee being “better
         off overall” than they would have been without the arrangement)
                                                                                                 page 11
                                      TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
Employee relationship
                                        awards can also include industry detail about the neS, but only to the extent that the effect of
                                        those terms is not detrimental to an employee in any respect when compared to the neS.

                                        employers need to be mindful of the rules that will apply between a modern award and existing
                                        awards, agreements or notional agreements preserving State awards (napSas). Modern
                                        awards will not apply to an employee covered by work Choices collective agreements, awas
                                        and individual Transitional employment awards (iTeas). However, the base rate of pay in the
                                        agreement must not be less than the relevant modern award rate. Modern awards will apply to
                                        an employee covered by pre-work Choices certified agreements. if the agreement is inconsistent
                                        with the modern award, the agreement will prevail to the extent of any inconsistency.

                                        where an employer is currently subject to a napSa or a federal award and its employees will not
                                        be covered by a new proposed modern award, the napSa or federal award will continue to have
                                        effect until modernised in the case of an award, or until 1 January 2014 in the case of a napSa.

                                        Award modernisation process
                                        The process of award modernisation began in april 2008 by the aiRC with the first two
                                        stages completed, and the final two stages imminent. There are a series of around
                                        78 modern awards, which cover a range of industries and activities. The process
                                        will be completed and the modern awards will become operational on 1 January
                                        2010. For more detail on the award modernisation process, see appendix 1.

                                        Reduction in take-home pay
                                        if the award modernisation process results in an employee’s take-home pay being
                                        reduced (all other things being equal, such as hours, position, and work), then Fwa can
                                        order the employer to make a payment to the employee to rectify the situation.

                                        High income earners
                                        it is not intended that high income earners be covered by the modern awards shifting eligibility
                                        from an industry or job-function to remuneration. High income employees are those with
                                        guaranteed annual earnings of more than $100,000 (indexed annually from august 2007
                                        and pro rata for part-time employees, starting at $108,300 on 1 July 2009). However,
                                        high income earners are not automatically excluded from the modern award, but must
                                        elect to be excluded by agreeing to a written guarantee of annual earnings. if no written
                                        guarantee is provided, a modern award will continue to apply. Regardless of the modern
                                        award, the neS continue to apply as a minimum safety net of employee entitlements.

                                        Award reviews
                                        Four yearly reviews of each modern award will be undertaken by Fwa balancing public interest,
                                        social and economic factors. an interim review of awards will take place in 2012 to ensure they are
                                        operating effectively.

                                        People not covered by awards
                                        The national minimum wage order (see Section 3.5 below) will apply to all employees not covered
                                        by a modern award.
    1800 671 978
    Solutions@TechnologyOneCorp.com
                                        enterprise agreements and modern awards
    www.TechnologyOneCorp.com/HRMS

                                        a modern award ceases to apply where an enterprise agreement exists. but, when the
                                        enterprise agreement is terminated, the modern award is re-applied to the employee.



                                        page 12
                                                  TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009




                                                                                                                           Employee relationship
Transitional arrangements
The transitional arrangements outline the interaction between work Choices instruments (now
known as agreement based transitional instruments and award based transitional instruments)
and the new modern awards and extends the operation of napSas to 1 January 2014.

Work Choices comparison
The Howard government’s leaning toward individual enterprise agreements rather than
industry awards meant that the role of awards under work Choices was somewhat
limited. Under work Choices, awards were replaced by napSas, which essentially
provided the details of employment conditions not covered by the common items that
were standardised (for example the provision of ten days sick leave was not common
amongst all industries before work Choices). The major thrusts included:

      • rationalisation of the existing award structure undertaken by the aiRC
      • reduction in the number of federal allowable award matters from 20
        to 15 (and any matter that was provided for in the aFpC Standard
        was not allowed to be included in a federal award)
      • restriction of the ability of the aiRC to vary awards to cases where
        such variation is justified on grounds of rationalisation
      • simplification of minimum award safety net grounds
      • State awards that applied to employees covered by the wR act transferred to
        the federal system and became napSas (this increased significantly the number
        of organisations covered as it included any constitutional corporation), and
      • abolition of the “no-disadvantage test” that was in place previously and
        replacement with the “fairness test”, where an employer couldn’t pay
        less than the napSas or provide less than allowable matters.

Fair Work action plan
To ensure the organisation is fully covered in terms of awards, or at the minimum meets
the modern award requirements, it is essential that the following is completed:

      • provide training for managers and HR personnel on the new modern awards
      • audit of the current awards and agreements operating within the organisation
      • obtain copies of new modern awards (Stages 1 and 2 and draft Stage 3 awards)
        from the workplace Relations website and analyse their impact on labour costs
      • consider involvement in consultation process for modern
        awards for industries covered in Stage 4
      • Review contracts to ensure that they comply with:
               • any underlying awards, napSas, collective agreements and Fwa
                   requirements in respect of remuneration and update payroll systems
                   with new award rates, penalty and overtime rates and allowances
               • the neS
               • modern awards, and
               • the model flexibility clause.
      • For high income earning employees
               • analyse whether it would be beneficial to exclude them
                   from being covered by a modern award, and
               • offer a written guarantee of annual earnings.                                                          1800 671 978
                                                                                                     Solutions@TechnologyOneCorp.com
                                                                                                    www.TechnologyOneCorp.com/HRMS




                                                                                          page 13
                                      TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
Employee relationship
                                        3.3 enterprise agreements
                                        The workplace reforms include a significant shift toward enterprise agreements, as well as changes
                                        to the way the agreements are negotiated and processed. There is no longer a distinction
                                        between union and non-union agreements, and no new individual agreements may be made
                                        after 31 December 2009 (though current agreements will continue to operate indefinitely).

                                        The new rules provide for negotiations to be made in good faith (to
                                        ensure employees, unions and employers are at the bargaining table) and
                                        some changes to the content of the agreements, including:

                                               • a greater focus on collective bargaining rather than individual bargaining
                                               • a change in terminology, away from “collective agreements” to “enterprise agreements”
                                               • unions are no longer being parties to agreements (other than greenfield
                                                 agreements), but they may be “covered” by the agreement if they participated
                                                 in negotiations. This “coverage” gives the union the right to enforce the
                                                 agreement and expands the permissible content within the agreement
                                               • maximum four year period, and
                                               • application of the new “better off overall test”.

                                        Types of agreements
                                        all enterprise agreements will operate according to a common set of rules, but there will be
                                        different rules for bargaining, approval, variation and terminations of multi-enterprise agreements.

                                         agreements                        Single-enterprise                 Multi-enterprise
                                         existing                          Made between a single             Made between two or more
                                                                           employer (or two or more          employers (that are not
                                                                           employers that are “single        single interest employers)
                                                                           interest” employers)              and their employees
                                                                           and its employees
                                         greenfield (new business,         Made between a single             Made between two or more
                                         activity, project/undertaking)    employer (or two or more          employers (that are not single
                                                                           employers that are “single        interest employers) who
                                                                           interest” employers) who          are proposing to establish
                                                                           is proposing to establish a       a new business and do not
                                                                           new business and does not         yet have any employees,
                                                                           yet have any employees,           and the relevant union/s
                                                                           and the relevant union/s


                                        Agreement content
                                        agreements must contain the following to be approved by Fwa:

                                               • matters pertaining only to the employer-employee relationship or the
                                                 employer-union relationship (if the union is “covered” by the agreement)
                                               • individual flexibility arrangements that can be made between
                                                 the employer and individual employees
                                               • a consultation term on major workplace changes, including
                                                 allowing for employee representation
    1800 671 978                               • a dispute resolution term for matters arising under the agreement or the neS
    Solutions@TechnologyOneCorp.com            • the nominal expiry date of the agreement must not be
    www.TechnologyOneCorp.com/HRMS
                                                 more than four years after approval, and
                                               • any nominated deductions from wages for any purpose authorised
                                                 by an employee (for example salary sacrifice or union dues).


                                        page 14
                                                     TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009




                                                                                                                                  Employee relationship
Content is deemed unlawful if it includes terms that:

       • are discriminatory
       • breach the general protections
       • require the payment of a bargaining services fee to a union
       • provide remedies for unfair dismissal to persons who have not served the required
         tenure, or exclude or modify unfair dismissal protections to the detriment of the person
       • provide for right of entry to an employer’s premises inconsistent with right of entry laws, or
       • purport to authorise industrial action during the life of the agreement.

Making an enterprise agreement
The following shows the process for negotiating an enterprise agreement.



                 Proposed Enterprise Agreement (EA)
                 Employer must:
                 - give employees notice of right to be represented in EA vote
                 - give copy of proposed EA 7 days prior to vote
                 - ensure EA explained to all relevant employees and a vote is held within
                 21 days lace/method of vote 7 days prior




 Single Enterprise Agreement        Multiple Enterprise Agreement              Greenfield Agreement
 vote approved if 50% in favour       vote approved if 50% from                 approved if employer
                                        one employer in favour                      & union sign




                        FWA for approval
                        Bargaining representative applies for approval and includes
                        EA & statutory declarations regarding bargaining process
                        FWA approval if EA:
                                 - passes ‘better off overall’ test
                                 - doesn’t contravene the NES
                                 - includes all terms including nominal expiry date




Better off overall test
Fwa will apply the “better off overall test” to ensure that each award-covered
employee and each prospective award-covered employee covered by the new
enterprise agreement will be better off overall in comparison to the relevant modern
award. The better off overall test will come into effect on 1 January 2010.

Minimum wage provisions in awards or the national minimum wage order will override
the less generous minimum wage provisions in an enterprise agreement, meaning
that where the minimum award rates increase during the life of an agreement
to above agreement rates, employers will have to pay the higher rate.                                                          1800 671 978
                                                                                                            Solutions@TechnologyOneCorp.com
                                                                                                           www.TechnologyOneCorp.com/HRMS




                                                                                                 page 15
                                      TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
Employee relationship
                                        Good faith bargaining
                                        good faith bargaining will apply to parties negotiating enterprise agreements, and
                                        participants must abide by a number of rules during the bargaining process:

                                               • attending and participating in meetings at relevant times
                                               • disclosing relevant (not confidential) information in a timely manner
                                               • responding to proposals in a timely manner
                                               • giving genuine consideration to other parties’ proposals
                                                 and providing reasons for responses, and
                                               • refraining from capricious or unfair conduct that undermines
                                                 bargaining and freedom of association.
                                        employees can appoint a bargaining representative to represent their
                                        interests (themselves, a colleague, a union or other person), as long as the
                                        person is sufficiently independent of influence from the employer.

                                        where an employer has not started bargaining or refuses to bargain, employees can
                                        apply to Fwa for a “majority support determination” through a ballot or petition. The
                                        employer will then be required to bargain collectively with the relevant employees.

                                        additionally, Fwa has the power to give orders to ensure compliance with the requirements,
                                        and may also issue “bargaining related workplace determinations” where there has
                                        been a serious and sustained breach of a Fwa bargaining order. However, good faith
                                        bargaining orders will be about the process and conduct of negotiations only.

                                        it is very important to note that good faith bargaining does not require employers or employees to
                                        make concessions during bargaining or to enter into an agreement if they do not agree to its terms.

                                        Agreement variations
                                        enterprise agreements may be varied before their expiry date with consent, although there
                                        will be no access to good faith bargaining orders. Fwa must approve the variation.

                                        Low-paid bargaining stream
                                        There is a new stream of bargaining for low-paid employees to assist them and their employers
                                        to make a multiple-employer enterprise agreement that meets their needs and improves
                                        productivity and service delivery. low-paid bargaining is intended to help workers in areas
                                        that have missed out on the benefits of bargaining in the past, such as child care, aged care,
                                        community services, security and cleaning, which are often paid the basic award rate.

                                        in the special low-paid stream, Fwa will facilitate the making of agreements and
                                        will play a hands-on role to assist the parties’ bargaining. Fwa also has some
                                        powers to make a binding special low-paid workplace determination, where
                                        bargaining has failed despite the best endeavours of both parties.

                                        Termination of the agreement
                                        an employer and employees covered by an enterprise agreement can agree to its
                                        termination by making a termination agreement, under a process similar to that
                                        for making the original enterprise agreement. The termination agreement must be
    1800 671 978
    Solutions@TechnologyOneCorp.com
                                        approved by Fwa. if an enterprise agreement has passed its nominal expiry date,
    www.TechnologyOneCorp.com/HRMS      either the employer or employees can apply to Fwa to have it terminated.




                                        page 16
                                                   TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009




                                                                                                                              Employee relationship
Transfer of business and transferrable instruments
The Fw act allows for enterprise agreements, named employer awards, workplace determinations
and transitional instruments (work Choices awards, napSas, collective agreements and so on –
together known as transferrable instruments) to be transferred to a new business from 1 July 2009.

generally, a transferrable instrument will only apply to transferring employees, but the
provisions contain an exception which allows, in limited circumstances, the transferred
instrument to apply to new employees engaged in the same, or substantially the same,
work as the transferring employees performed for the old employer. The transferring
instrument will continue to apply indefinitely until it is terminated or replaced.

Fwa may make determinations, on application from the new employer, that an award or agreement
not transfer at all or that it be modified to better suit the operation of the new enterprise.

The new legislation provides a clear definition of a “transfer of business” being when:

       • the employment of an employee of the old employer has terminated
       • within three months, the employee is employed by the new employer
       • the transferring employee performs the same, or substantially the
         same, work for the new employer as for the old employer, and
       • there is a connection between the old employer and the new employer.
The new provisions protect employees’ terms, conditions and entitlements in a broader
range of corporate restructuring activities, including movements to associated entities
and some outsourcing and insourcing arrangements. The new legislation also details
the employer’s obligations relating to an employee’s continuous service and the
subsequent transfer of entitlements under the neS and unfair dismissal laws.

Transitional arrangements
Types of agreements

The transitional arrangements provide for the continuation of existing enterprise agreements
made under the wR act until they are terminated or replaced. prior to 1 January 2010, any new
agreements and the variation of existing agreements will be subject to the “no-disadvantage” test.

AWAs

The transitional arrangements prohibit new australian workplace agreements (awas) from being
made. existing awas will continue to operate until they are terminated or replaced, but variations
to awas are restricted and subject to the “fairness test”. The Workplace Relations Amendment
(Transition to Forward with Fairness) Act 2008 changed the applicable terms and conditions of
employment following the termination of an awa, so that where there is no collective or certified
agreement, an applicable award comes into effect. employees on awas that have passed
their nominal expiry date are now able to participate in the making and approval of proposed
collective agreements, and are eligible to take part in ballots for protected industrial action.

Individual Transitional employment Agreement (ITeA)

an iTea is a form of statutory individual workplace agreement introduced in the transitional period
prior to the Fw act commencing. iTeas can only be made between an employer that employed at
least one employee on an awa as at 1 December 2007, and an existing, new or previous employee.                             1800 671 978
                                                                                                        Solutions@TechnologyOneCorp.com

Collective agreements                                                                                  www.TechnologyOneCorp.com/HRMS



existing collective agreements continue to operate until terminated or replaced. new collective
agreements and variations are subject to the no-disadvantage test.

                                                                                             page 17
                                      TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
Employee relationship
                                        Unilateral termination of collective agreements that have passed their nominal expiry date
                                        is no longer permitted (except where provided for in the agreement). instead, Fwa may
                                        terminate a collective agreement if the termination is not contrary to the public interest.

                                        Other agreements

                                        Other types of agreements that were available under work Choices
                                        continue to be available under the transitional arrangements:

                                               • prohibited content rules under the wR act will continue to apply to work Choices
                                                 collective agreements, awas and iTeas so long as they are in operation
                                               • Terms in federal awards, napSas, pre-work Choices certified agreements, iTeas
                                                 and awas that undercut the neS will have no effect from 1 January 2010
                                               • work Choices collective agreements made and lodged before 1 July
                                                 2009 will still be processed under the wR act provisions
                                               • iTeas made and lodged before 31 December 2009 can
                                                 still be made under the wR act provisions
                                               • pre-work Choices certified agreements can still be
                                                 varied by Fwa up to 31 December 2009
                                               • Fw act enterprise agreements will extinguish federal awards, napSas, pre-
                                                 work Choices certified agreements, and work Choices collective agreements
                                               • while an iTea or an awa applies to an employee, a Fw act enterprise agreement
                                                 or Fw act workplace determination will not apply to the employee

                                        Work Choices comparison
                                        Types of agreements

                                        There has been a change of terminology from “collective agreements” and
                                        “individual agreements” under work Choices to “enterprise agreements”.
                                        work Choices allowed for six types of workplace agreements:

                                               •   awas
                                               •   employee collective agreements
                                               •   union collective agreements
                                               •   multiple-business collective agreements
                                               •   employer greenfields agreements, and
                                               •   union greenfields agreements
                                        There were also two types of agreements remaining from pre-work Choices legislation:

                                               • pre-reform awas and
                                               • pre-reform federal certified agreements
                                        work Choices also created napSas.

                                        Tests relating to fairness

                                        work Choices abolished the pre-reform ‘no-disadvantage test’ (that ensured an agreement
                                        did not disadvantage an employee in comparison with the relevant award) and introduced
                                        the ‘fairness test’. The ‘fairness test’ required employees to be fairly compensated for the
                                        exclusion or modification of protected award conditions within an agreement. During the
                                        transitional period however, the ‘fairness test’ has been abolished and there has been a return
    1800 671 978                        to the ‘no-disadvantage test’. From 1 January 2010 the ‘better off overall test’ will apply.
    Solutions@TechnologyOneCorp.com
    www.TechnologyOneCorp.com/HRMS




                                        page 18
                                                     TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009




                                                                                                                                   Employee relationship
Transfer of business

when work Choices was introduced, it made some significant changes to transmission
of business rules. essentially, awards or agreements of the old employer only transmitted
to the new employer for up to 12 months if a business or part of a business transmitted
to the new employer and the transferring employees moved to the new employer.

Fair Work action plan
To ensure the organisation is fully covered in terms of enterprise agreements, it is essential to:

       • provide training for management and HR personnel on the new enterprise
         agreements and their requirements, and transitional instruments from
         work Choices that are operational within the organisation
       • complete a full audit of the current enterprise agreements
       • review enterprise agreements to ensure that they:
                • comply with the neS requirements
                • comply with the minimum wages in the relevant modern award
                • do not contravene the better off overall test when compared to the relevant
                • contain a flexibility clause
       • where a new enterprise agreement is to be negotiated, ensure that:
                • the organisation has a strategy to manage employee requests to
                    bargain for an enterprise agreement in accordance with the laws
                • the agreement is compliant with the neS
                • the required content is included
                • any unlawful content is excluded
                • bargaining is accomplished in good faith
                • it contains a flexibility clause
                • it meets the better off overall test, and
                • all requirements are met in relation to proposals, voting and approvals.

3.4 General protections
The Fw act streamlines a range of general protections into one part of the
legislation, which became effective on 1 July 2009. general protections are aimed
at providing greater workplace rights, freedom of association and protection from
discrimination, as well as preventing employers from taking ‘adverse action’ against
any employee (or prospective employee) based on these protections.

Workplace rights
a person has a workplace right if they are:

       • entitled to the benefit of a workplace law, workplace instrument or order made by an
         industrial body
       • able to initiate or participate in a process or proceedings under a workplace law or
         workplace instrument, or
       • able to make a complaint or inquiry:
                 • to a person who has a capacity under a workplace law to seek compliance
                     with that law or a workplace instrument, or
                 • if the person is an employee in relation to his or her employment.                                           1800 671 978
                                                                                                             Solutions@TechnologyOneCorp.com
it is illegal to take adverse action against an employee if they are exercising their workplace rights.
                                                                                                            www.TechnologyOneCorp.com/HRMS




                                                                                                  page 19
                                      TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
Employee relationship
                                        Freedom of association
                                        The freedom of association provision ensures employees are free to:

                                               • become, or not become, members of an industrial association
                                               • be represented, or not represented, by an industrial association, and
                                               • participate, or not participate, in lawful industrial activities.
                                        it is unlawful to stop an employee exercising this free choice by threats,
                                        pressure, discrimination, victimisation or dismissal.

                                        Discrimination
                                        There are additional protections covering all aspects of workplace discrimination,
                                        including new protections for employees that are also carers. Discrimination has a wider
                                        net in the new legislation, including on the basis of race, colour, sex, sexual preference,
                                        age, physical or mental disability, marital status, family or carer’s responsibilities,
                                        pregnancy, religion, political opinion, national extraction or social origin. again, it is
                                        illegal to take adverse action against an employee based on any of the above.

                                        Other general protections and adverse actions
                                        The general protections also cover industrial action, ensuring employees are not coerced
                                        into making a particular type of enterprise agreement, discriminated against because of the
                                        type of agreement that covers them, or because they have or have not engaged in industrial
                                        action, and sham contracting arrangements (as detailed in the recruitment section).

                                        There is a range of additional adverse actions that are unlawful (that fall short of dismissal),
                                        such as placing an employee in a position that pays less or refusing to employ them for one
                                        of the prohibited reasons.

                                        Transitional arrangements
                                        There are no transitional arrangements in relation to general protections.

                                        Work Choices comparison
                                        work Choices allowed for a number of general protections, but they were scattered throughout
                                        the legislation. The provisions for discrimination were also far narrower than in the Fw act.

                                        Fair Work Action Plan
                                        To ensure the organisation is covered in terms of general protections, it is essential to:

                                               • provide training to managers and HR personnel on the general
                                                 protections, in particular the wider scope of the discrimination provisions,
                                                 applying to employees and to prospective employees
                                               • provide training to managers and HR personnel on the broader meaning
                                                 of adverse actions that include falling short of dismissal
                                               • audit existing independent contract roles to ensure they are legitimate, and
                                               • record on the employee’s file all issues that arise, in addition to how each was handled.

    1800 671 978
    Solutions@TechnologyOneCorp.com
    www.TechnologyOneCorp.com/HRMS




                                        page 20
                                                     TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009




                                                                                                                                    Employee relationship
3.5 Minimum wage
The minimum wage objective tries to balance the minimum wage safety net with the prevailing
economic conditions. as mentioned earlier, the minimum wage determination in July 2009
retained the minimum wage as it was, due to the current economic environment.

The Minimum wage panel will set the minimum wage, taking account of:

       • the performance and competitiveness of the national economy, including productivity,
         business competitiveness and viability, inflation and employment growth
       • promoting social inclusion through increased workforce participation
       • relative living standards and the needs of the low-paid
       • the principle of equal remuneration for work of equal or comparable value, and
       • the provision of a range of fair minimum wages for junior employees, employees
         to whom training arrangements apply and employees with a disability.

Minimum wage order
a national minimum wage order will set out the national minimum wage, as well as the minimum
wages for other employees not covered by awards or employees, including junior employees,
employees to whom training arrangements apply, and employees with a disability. The order
requires that employers pay:

       • employees to whom the national minimum wage applies a base rate
         of pay that at least equals the minimum wage (rate per hour)
       • employees to whom a special national minimum wage applies, such as juniors, a base
         rate of pay that at least equals the special national minimum wage (rate per hour), and
       • award and agreement free casual employees a casual loading that at least
         equals the minimum loading rate (expressed as a percentage).

Minimum wage order coverage
national minimum wage orders apply to employers whose employees are not covered by an award
or other agreement. if employees are covered by a modern award they will receive the minimum
wage rates specified in the award, taking into account the national minimum wage. employees
covered by an enterprise agreement will receive the rates of pay specified in their agreements,
but these must be at least equal to the rates of pay they would receive under the relevant modern
awards or the base rate of pay they would receive under the national minimum wage order.

Minimum Wage Panel
The minimum wages and casual loadings will be set and adjusted by a specialist seven-member
Minimum wage panel within Fwa.

Annual reviews
Fwa will undertake annual reviews of minimum wages, but will be able to vary award
wages outside of these reviews in some circumstances. Updated wage rates in modern
awards take effect from the first pay period on or after 1 July, the first day of each financial
year and are enforceable by law with substantial civil penalties. employers will be able to
make submissions to the Minimum wage panel as part of the annual review process.
                                                                                                                                 1800 671 978
                                                                                                              Solutions@TechnologyOneCorp.com
                                                                                                             www.TechnologyOneCorp.com/HRMS




                                                                                                   page 21
                                      TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
Employee relationship
                                        Transitional arrangements
                                        The aFpC continued to operate until 31 July 2009 when the Minimum wage panel
                                        assumed its responsibilities. in mid-July 2009, the aFpC handed down its last wage
                                        determination when it voted not to increase the minimum wage for 2009/2010. The
                                        minimum wage currently sits at $14.31 per hour or $543.78 per week6 (at 31 July 2009).

                                        Work Choices comparison
                                        Under work Choices the aFpC set and varied minimum federal wages and all other wages specified
                                        in awards, as well as casual pay loadings. The aFpC was an independent entity to the aiRC.

                                        Fair Work Action Plan
                                        To ensure the organisation is covered in terms of minimum wage provisions, it is essential to:

                                               • provide training to managers and HR personnel on the minimum
                                                 wage protections and the minimum wage orders
                                               • institute automated HR record keeping to ensure that employees are paid the
                                                 higher of the modern award or minimum wage, as required by the legislation
                                               • ensure that organisational payroll systems can be instantly updated in July each
                                                 year to account for any increase as a result of the minimum wage determination.




    1800 671 978
    Solutions@TechnologyOneCorp.com
    www.TechnologyOneCorp.com/HRMS




                                           6      “2009 General Wage-Setting Decision”, Fairpay.gov.au, 7 July 2009

                                        page 22
                                                                       TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009




                                                                                                                                                           Relations with unions
4.0                  Relations with
                     industrial organisations
The majority of the reforms relating to industrial action commenced on 1 July 2009, with the major
changes being that unions have greater scope to access workplaces, as well as greater access
to workplace documents. it is important that managers and HR practitioners are aware of and
understand these changes because it is anticipated that unions will use these tools to re-assert
their power under the new legislation. Managing partner of Harmer’s workplace lawyers, Joydeep
Hor, expressed concern over these wider union powers: “a lot of employers will be caught off
guard because they’ll have their heads in the sand over their risk profile, because they haven’t
had union attention in the past, they assume they won’t have union attention in the future.” 7


4.1 extended union rights
Right of entry
Unions will have greater rights of entry to hold discussions with anyone that performs work on the
premises (regardless of whether those persons are covered by an award or agreement binding on
the union)8 whose industrial interests the union is entitled to represent, and who wants to participate
in the discussions, or to investigate a contravention of the Fw act or a Fair work instrument.

Right of entry conditions that apply to the permit holder include:

       • union official must hold a valid right of entry permit (issued by Fwa),
         where permits can only be issued to a “fit and proper person”
       • must give 24 hours notice and can only enter during working hours
       • must set out the basis for entry rights, and
       • must comply with any reasonable request from an employer that
         meetings take place in a particular location, and must comply with
         reasonable occupational health and safety requests.
Regarding right of entry, Fwa has the power to resolve disputes, suspend the
entry permits of officials who abuse their rights or who are no longer a ‘fit and
proper’ person,or to apply penalties to anyone who misuses the entry rights or
provides misleading information about their eligibility to enter a worksite.

Access to employee records
The new reforms also provide greater access to employee records for permit holders if they are
investigating a suspected breach of the Fw act. in relation to a breach, permit holders have the
powers to:

       • inspect work, processes or objects
       • interview any person whose industrial interests the union is entitled to represent
         (even if they are not a union member) and who agrees to the interview
       • make copies of any record or document that is directly relevant to the
         breach including employment records of members and non-members
         (with non-member who gives written consent, or if Fwa agrees that
         access to the records is necessary to investigate the breach).                                                                                 1800 671 978
                                                                                                                                     Solutions@TechnologyOneCorp.com
                                                                                                                                    www.TechnologyOneCorp.com/HRMS




   7   Leo D’Angelo Fisher, “Workplace Relations: In with the new”, Business Review Weekly, 9-15 July 2009, page 8-9.
   8   Scott, Steven, “New IR: what you need to know”, The Australian Financial Review, 0 July 2009, page 27.

                                                                                                                          page 23
                                      TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
Relations with unions
                                        The only redress an employer has is that they are not required to provide documents if doing so
                                        would breach a State or Federal law. The use or disclosure of information obtained under these
                                        provisions is strictly controlled. Misuse of information will attract fines for the individual ($6,600)
                                        and union ($33,000), and the permit holder would have their permit revoked or suspended.

                                        Transitional arrangements
                                        There were no transitional arrangements in relation to right of entry.

                                        Work Choices comparison
                                        work Choices tightened up the rules regarding right of entry by trade unions to workplaces
                                        from previous legislation, making it far more difficult for them to gain access. it also
                                        removed the broad ruling regarding access to employee records, which existed prior
                                        to work Choices. The new legislation essentially reinstates powers to the unions.

                                        Fair Work action plan
                                        To ensure the organisation is covered in terms of rights to represent members, it is essential to:

                                               • provide training to managers and HR personnel on the greater union rights
                                                 to represent members and to gain access to employees’ records
                                               • develop organisational policies to ensure employees’ records are current and accurate
                                               • assess the risk of an employment breach and take measures to rectify any anomalies
                                               • assess the risk of a right of entry request from an existing
                                                 union or an approach from a new union, and
                                               • develop strategies and procedures to handle a situation where
                                                 a union enters the workplace to ensure compliance with the
                                                 legislation and to reduce the disruption to operations.

                                        4.2 Industrial action
                                        The new legislation retains the restrictions on the use of industrial action as a means of placing
                                        pressure on employers to agree to union and employee demands. it does make it far more difficult
                                        for an employer to ignore union and employee demands in negotiating enterprise agreements.

                                        The legislation continues with the distinction between protected industrial
                                        action (taken during bargaining for an enterprise agreement) and unprotected
                                        industrial action (taken outside the bargaining period).

                                        Protected action
                                        employees may take industrial action for the purpose of supporting or advancing claims
                                        made about a proposed agreement, or in response to industrial action taken by their
                                        employer. action is protected if the nominal expiry date of a previous enterprise agreement
                                        has passed, if there is a genuine attempt to bargain, it is authorised by a secret ballot,
                                        and there is three working days notification of industrial action. However, the action can
                                        be suspended or terminated by Fwa if there is significant harm to a third party.

                                        employers are only allowed to organise and engage in industrial action
                                        when this is in response to industrial action taken by employees.
    1800 671 978
    Solutions@TechnologyOneCorp.com
    www.TechnologyOneCorp.com/HRMS




                                        page 24
                                                    TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009




                                                                                                                                   Relations with unions
protected industrial action for an agreement may be any of the following:

       • an employee claim action (taken to support or advance claims that are about permitted
         matters under an agreement, and must be authorised by a protected action ballot)
       • an employee response action (organised in response to industrial action by an employer
         covered by a proposed agreement, but cannot relate to a demarcation dispute), or
       • an employer response action (organised in response to industrial action by employees
         covered by the proposed agreement; an employer can choose to refuse to make
         payments to employees for the period of the employer response action).
all these types of industrial action must satisfy the following requirements to be “protected”:

       • the action cannot relate to a greenfields or multi-enterprise agreement
       • the participants must be genuinely trying to reach an agreement
       • the party initiating an industrial action must satisfy written notice requirements (at least
         three working days notice for employees or longer if specified in a protected ballot order).

Suspending or terminating protected action
Fwa has the power to prevent, suspend or terminate any industrial action where the protected
action is:

       • causing or threatening to cause significant harm to the australian economy or part of it
       • protracted, or
       • causing or threatening to cause imminent significant economic harm to either
         the employees or the employer, depending on the nature of the industrial action
         and where the dispute will not be resolved in the foreseeable future.
Fwa is empowered to terminate on its own initiative protected industrial action that may be a threat
to the life, personal safety, health or welfare of the population, or could cause significant damage to
the australian economy.

Unprotected action
industrial action taken outside an enterprise agreement bargaining period is not protected if:

       •   it is taken before the nominal expiry date of an enterprise agreement
       •   the bargaining representatives are engaging in pattern bargaining
       •   the parties taking industrial action are not genuinely trying to reach agreement, or
       •   there is a serious breach declaration in place.
in the case of unprotected action, Fwa may issue orders to prevent or stop unprotected
industrial action.

Payments
in the case of protected industrial action, employers are prohibited from
paying employees who have not attended work for the total duration of the
action (unless the industrial action amounts to a partial work ban).

For unprotected industrial action, employers are prohibited from paying employees for at least
four hours or the total duration of the action (if the duration is greater than four hours).

Transitional arrangements
                                                                                                                                1800 671 978
The transitional arrangements ensure that where a protected industrial action was initiated                  Solutions@TechnologyOneCorp.com

under the wR act before it was repealed, Fwa may preserve the protected action.                             www.TechnologyOneCorp.com/HRMS




                                                                                                  page 25
                                      TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
Relations with unions
                                        Work Choices comparison
                                        work Choices placed a number of restrictions on industrial action, including providing quicker
                                        remedies for unprotected action and requiring secret ballots to be held before any protected
                                        action could be taken. it also required the aiRC to order that any unlawful action stop, prohibited
                                        industrial action during the term of an agreement, and gave the Minister power to terminate
                                        a bargaining period if industrial action is threatening significant damage to the economy.9

                                        Fair Work action plan
                                        To ensure the organisation is covered in terms of industrial action, it is essential to:

                                               • provide training to managers and HR personnel on good faith bargaining requirements
                                               • provide training to managers and HR personnel on
                                                 protected and unprotected action by unions
                                               • check when current awards or agreements are due to expire
                                               • conduct a risk assessment on the likelihood of protected action
                                               • ensure the organisation’s payroll system can make deductions
                                                 for strike pay, in line with the legislative requirements.




    1800 671 978
    Solutions@TechnologyOneCorp.com
    www.TechnologyOneCorp.com/HRMS




                                           9      Mark Wooden, “Implications of Work Choices Legislation”, Agenda, Volume 1, Number 2, 2006, p101

                                        page 26
                                                                        TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009




                                                                                                                                                                        Termination
5.0                    Managing performance
                       and termination
The Fw act has introduced a number of changes in relation to managing the performance
and termination of employees, effective 1 July 2009, in a large part by increasing the
number of employees that are able to access these laws. The reforms centre on managing
undesirable behaviour through tighter performance management measures, including
verbal and written warnings, and allowing employees time to rectify their behaviour.


5.1 Unfair dismissals
The changes to the unfair dismissal provisions mean that approximately 100,000
businesses (with around 3 million employees) which were previously exempt, will now be
caught under the unfair dismissal section of the legislation.10 This is because the new
legislation broadens the scope of unfair dismissal laws to cover all employees earning
under $108,300, or who are covered by a modern award or enterprise agreement, subject
to an employee serving a qualifying period. The qualifying period is six months (for
employers with 15 or more employees) or 12 months (for small business employers).

For under-performing employees, the legislation requires the employer to give the employee
a valid reason (based on the employee’s conduct or capacity to do the job) why they are at
risk of being dismissed, and whether the employee was warned about the unsatisfactory
performance before the dismissal. Multiple warnings are not required. However, it is desirable
that the warning is in writing. where an employer decides to dismiss the employee, unless
the dismissal is for serious misconduct, it must generally give the minimum period of notice
or payment in lieu relating to the employee’s period of continuous service, which is:

 employee’s period of continuous service                                 Termination notice required
 not more than 1 year                                                    1 week
 More than 1 year but less than 3 years                                  2 weeks
 More than 3 years but less than 5 years                                 3 weeks
 More than 5 years                                                       4 weeks
 if employee is 45 years or over and has                                 1 week
 more than 2 years service add another


Unfair dismissal definition
an unfair dismissal is one where the person has been dismissed and the dismissal was “harsh,
unjust or unreasonable”. an example of an unfair dismissal would be one where the dismissal
was not a case of genuine redundancy. in the case of small businesses, an unfair dismissal
would be one that was not consistent with the Small business Fair Dismissal Code.

an unfair dismissal claim must be made within 14 days of the dismissal. Claims will be held at
informal conferences conducted by a Fwa officer, with re-instatement sought, but if this is not
achievable, then compensation will be ordered.


                                                                                                                                                                     1800 671 978
                                                                                                                                                  Solutions@TechnologyOneCorp.com
                                                                                                                                                 www.TechnologyOneCorp.com/HRMS




   10    Holding Redlich Lawyers, “Fair Work Australia: An Overview”, www.holdingredlich.com.au/fair-work-act-2009-overview, 28 July
        2009.

                                                                                                                                       page 27
                                    TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
Termination
                                      exclusions
                                      employees excluded from making an unfair dismissal claim are those who:

                                             • have not met the minimum employment period (12 months for
                                               small businesses and six months for all other employers)
                                             • earn above the high income threshold of $108,300 at 1 July 2009
                                               (unless covered by a modern award or an enterprise agreement)
                                             • are dismissed due to genuine redundancy
                                             • are trainees, and their employment ends on completion of that training agreement
                                             • are employed on a seasonal or specified term or task basis, at
                                               the end of which the employee is no longer required, or
                                             • are casual employees employed on an irregular basis.

                                      Small businesses
                                      an important change to unfair dismissal regulations is the inclusion of businesses with less than
                                      100 employees, which previously enjoyed exemption from unfair dismissal provisions under
                                      work Choices. now any organisation with 15-100 employees is subject to the unfair dismissal
                                      provisions of the Fw act once their employees have worked for six months continuously.
                                      Organisations with less than 15 employees (now considered “small businesses”) will also be
                                      covered by the unfair dismissal laws once their employees have 12 months continuous service.

                                      Small businesses that wish to terminate an employee must now follow the steps required
                                      in the Small business Fair Dismissal Code so that the dismissal is considered fair.
                                      assistance in this process is available from the Office of the Fair work Ombudsman.

                                      The new legislation also sets out the circumstances in which summary dismissal
                                      (dismissal without notice) is warranted for small businesses. These include cases of theft,
                                      fraud, violence, and serious breaches of occupational health and safety procedures.
                                      in all other cases, the small business must give the employee a reason (based on
                                      conduct or capacity to do the job) why he or she is at risk of being dismissed.

                                      Transitional arrangements
                                      There are no transitional arrangements in relation to unfair dismissals.

                                      Work Choices comparison
                                      The unfair dismissal laws under work Choices were significantly broader than under
                                      the new legislation. The primary difference was in the exclusion of employees of
                                      organisations with 100 or fewer employees from access to the unfair dismissal rules.
                                      another significant difference was the exclusion of employees who were dismissed
                                      because of ‘genuine operational requirements’. Most other provisions are the same.
                                      employees had slightly longer (21 days) to make an unfair dismissal claim.

                                      Fair Work action plan
                                      To ensure that the Fw act requirements are met, it is imperative to:

                                             • provide training to managers and HR personnel to ensure they understand the new unfair
                                               dismissal requirements
  1800 671 978
  Solutions@TechnologyOneCorp.com            • establish organisation-wide policies for strategic workforce planning on a quarterly basis
  www.TechnologyOneCorp.com/HRMS             • clearly establish the length of an employee’s probationary period
                                             • ensure compliance with any consultation obligations set out in an applicable award,
                                               enterprise agreement or transitional instrument



                                      page 28
                                                     TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009




                                                                                                                                     Termination
       • review expected performance levels with key performance
         indicators, counselling and disciplinary procedures
       • investigate re-deployment of the employee within the organisation or an associated entity
       • carefully manage the process for terminating an employee through meticulous
         record keeping (if an organisation with more than 15 employees) and following the
         process set out in the Small business Fair Dismissal Code (if a small business)
       • provide written notice of the day of termination (cannot
         be before the day the notice is given)
       • apply the minimum period of notice with regard to
         employee’s period of continuous service, and
       • where applicable, provide payment in lieu of at least the amount the employer would
         have been liable to pay at the full rate (including bonuses, loadings, allowances,
         overtimes, penalty rates, superannuation and salary sacrifice amounts).

5.2 Unlawful termination
Unlawful termination occurs when an employer terminates a worker’s employment
on a prohibited ground claim, including temporary absence from work due to illness
or injury, or trade union activity outside working hours or with the employer’s consent
within working hours, or discrimination, among other things. The two main changes
from work Choices are the exclusion of termination reasons relating to iTeas and the
inclusion of “carer’s responsibilities” under the discrimination section of prohibitions.

The time limit for filing a claim is now 60 days (previously 21) from the date of termination,
but the time for bringing a court application after a certificate of failed conciliation has been
reduced from 28 to 14 days. Since 1 July 2009, unlawful termination claims have been
heard by new Fair work divisions of the Federal Court and Federal Magistrates Court.

Transitional arrangements
There are no transitional arrangements in relation to unlawful terminations.

Work Choices comparison
apart from the changes listed above, two formerly unlawful dismissal grounds (termination
of employment without providing appropriate notice or payment in lieu of notice, and an
employer’s failure to notify Centrelink of its intention to dismiss 15 or more employees)
are no longer unlawful, but are covered under different sections of the Fw act.

Fair Work action plan
To ensure that the Fw act requirements are met, it is imperative to:

       • provide training to managers and HR personnel to ensure they
         understand the new unlawful termination requirements and are
         familiar with the prohibited grounds for unlawful termination
       • carefully manage the process for terminating an employee through meticulous
         record keeping (if an organisation with more than 15 employees) and following the
         process set out in the Small business Fair Dismissal Code (if a small business)
       • clearly establish the length of an employee’s probationary period
       • ensure compliance with any consultation obligations set out in an                                                        1800 671 978
                                                                                                               Solutions@TechnologyOneCorp.com
         applicable award, enterprise agreement or transitional instrument
                                                                                                              www.TechnologyOneCorp.com/HRMS
       • review expected performance levels with key performance
         indicators, counselling and disciplinary procedures
       • investigate re-deployment of the employee within the organisation or an associated entity


                                                                                                    page 29
                                    TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
Termination
                                               • provide written notice of the day of termination (cannot
                                                 be before the day the notice is given)
                                               • apply the minimum period of notice with regard to
                                                 employee’s period of continuous service, and
                                               • where applicable, provide payment in lieu of at least the amount the employer would
                                                 have been liable to pay at the full rate (including bonuses, loadings, allowances,
                                                 overtimes, penalty rates, superannuation and salary sacrifice amounts).

                                      5.3 Redundancy
                                      The new legislation requires compulsory redundancy pay from 1 July 2009 for all employees
                                      that are made redundant and employed in organisations with more than 15 employees.

                                      employees can be (fairly) dismissed in cases of genuine redundancy, providing the employer no
                                      longer requires the job to be performed by anyone because of changes in operational requirements,
                                      and complies with modern award and enterprise agreement requirements to consult about the
                                      redundancy. but termination will not be viewed as being due to a genuine redundancy if it would
                                      have been reasonable to redeploy the redundant employee in another part of the employer’s
                                      operations (or an associated entity). The amount of redundancy pay is detailed below.

                                       employee’s period of continuous service                                                        Redundancy pay period
                                       with the employer on termination
                                       at least 1 year but less than 2 years                                                          4 weeks
                                       at least 2 years but less than 3 years                                                         6 weeks
                                       at least 3 years but less than 4 years                                                         7 weeks
                                       at least 4 years but less than 5 years                                                         8 weeks
                                       at least 5 years but less than 6 years                                                         10 weeks
                                       at least 6 years but less than 7 years                                                         11 weeks
                                       at least 7 years but less than 8 years                                                         13 weeks
                                       at least 8 years but less than 9 years                                                         14 weeks
                                       at least 9 years but less than 10 years                                                        16 weeks
                                       at least 10 years*                                                                             12 weeks
                                         * Long service leave begins at 10 years therefore the amount of redundancy pay is reduced.


                                      Small businesses
                                      Small businesses can dismiss employees in the case of redundancy. This may be where a
                                      small business requires fewer employees (in order to reduce costs) because of economic
                                      circumstances or the use of new technologies. Small businesses are not required to pay
                                      redundancy monies for genuine redundancies and they are not deemed to be unfair dismissals.

                                      exclusions
                                      Redundancy pay is not required for employees who have less than 12 months service or, as stated
                                      above, if the employer is a small business. Casual employees, employees on fixed term contracts,
                                      and employees dismissed for serious misconduct are also not entitled to redundancy pay.

                                      Transitional arrangements
                                      There are no transitional arrangements in relation to redundancy provisions.
  1800 671 978
  Solutions@TechnologyOneCorp.com
  www.TechnologyOneCorp.com/HRMS




                                      page 30
                                                    TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009




                                                                                                                          Termination
Work Choices comparison
The provision under work Choices that an employee whose employment was
terminated for genuine operational reasons was prevented from obtaining
an unfair dismissal remedy has now been removed. There was no national
legislative entitlement to redundancy pay under work Choices.

Fair Work action plan
To ensure that the Fw act requirements are met it is important to:

       • provide training to managers and HR staff to ensure they understand
         and are familiar with the new genuine redundancy requirements
       • establish the length of an employee’s probationary period
       • investigate any redundancy clauses within the relevant awards or enterprise agreements
       • investigate redeployment of the employee within the
         organisation or an associated entity, and
       • ensure managers and HR personnel are familiar with the redundancy pay
         requirements within the new legislation if an employee is made redundant.

5.4 Post-termination
post-termination issues are not specifically covered in the legislation, but as there
are more opportunities for unfair dismissal and unlawful termination cases to be
brought, it is essential that employers implement robust policies around protection
of intellectual property or commercial in confidence information, and upon
termination, ensure the former employee cannot access company records.




                                                                                                                       1800 671 978
                                                                                                    Solutions@TechnologyOneCorp.com
                                                                                                   www.TechnologyOneCorp.com/HRMS




                                                                                         page 31
                                    TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
References
                                      6.0              References and appendices
                                      6.1 Timeline
                                      28 March 2008 – Workplace Relations Amendment (Transition to Forward with Fairness)
                                      Act 2008 came into effect, which prevented any more awas being made and enables
                                      the australian industrial Relations Commission to start modernising awards

                                      20 March 2009 – Fair work bill passed by Federal parliament

                                      1 July 2009 – majority of provisions of Fair Work Act 2009 take effect

                                      1 July 2009 – first operational day of Fwa and the Fair work Ombudsman

                                      31 July 2009 – Fwa takes over responsibilities performed by the aFpC which will cease to exist

                                      1 January 2010 – Modern awards and the national employment Standards take effect

                                      1 January 2010 – Fwa takes over responsibilities performed by the aiRC, which
                                      will cease to exist (both operate simultaneously during the transition period)

                                      1 January 2010 – Fwa takes over responsibilities performed by workplace authority,
                                      which will cease to exist (both operate simultaneously during the transition period)

                                      1 July 2010 – Fwa (Minimum wage panel) makes its first minimum wage determination


                                      6.2 Acronyms
                                      AFPC – australian Fair pay Commission

                                      AIRC – australian industrial Relations Commission

                                      AWA – australian workplace agreements

                                      Fair Work – the Fair Work Act 2009

                                      FW Act – the Fair work act 2009, which commenced on 1 July 2009

                                      FWA – Fair work australia

                                      Forward with Fairness – the initial changes to work Choices through
                                      the introduction of the Workplace Relations Amendment (Transition to
                                      Forward with Fairness) Act 2008, commenced on 28 March 2008

                                      ITeA – individual Transitional employment agreement

                                      nAPSA – notional agreements preserving state awards

                                      neS – national employment Standards, which includes ten standard
                                      employment conditions applicable to all employees

                                      MeA – multiple-enterprise agreement

  1800 671 978
                                      Safety net – minimum terms and conditions, regulated by the legislation, that apply to all
  Solutions@TechnologyOneCorp.com     employees in the form of the national employment Standards (neS) and the modern awards
  www.TechnologyOneCorp.com/HRMS

                                      SeA – single-enterprise agreement

                                      “Single interest” employers – are employers engaged in a joint venture or common
                                      enterprise, related bodies corporate, or employers name, as such in a Fwa authorisation

                                      page 32
                                                  TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009




                                                                                                                             References
Transitional arrangements – the Workplace Relations Amendment (Transition to Forward
with Fairness) Act 2008 and the Fair work (Transitional provisions and Consequential
amendments) act 2009

WR Act – workplace Relations act 1996

Work Choices – the changes implemented as part of the Workplace Relations Amendment
(Work Choices) Act 2005 implemented on 27 March 2006, which contained amendments to the
workplace Relations act 1996.


6.3 References and more information
australian building and Construction Commission, abcc.gov.au and discussion on 29 July 2009

CCH australia ltd, “Understanding the Fair work act: a practical guide to the
new workplace relations system”, Mcpherson’s printing group, 2009.

Fair Work Act 2009, no. 28, 2009, an act relating to workplace relations, and for related purposes

Fair work australia, www.fwa.gov.au, accessed 6 July 2009

Fair work Ombudsman, www.fwo.gov.au, accessed 6 July 2009

Fair work Online, www.fairwork.gov.au, accessed 6 July 2009

Federation press, “work Choices legislation: an Overview”, December 2006,
http://www.federationpress.com.au/pdf/workChoicesOverviewDec06.pdf

Scott, Steven, “New IR: what you need to know”, The australian Financial Review, 04 July 2009, p27

Mark wooden, “Implications of Work Choices Legislation”,
agenda, Volume 13, number 2, pp 99-116

workplace Relations System Factsheets, www.deewr.gov.
au/workplaceRelations, accessed 6 July 2009


6.4 Appendix 1 – Modern awards
– timeline of stages
Stage 1 - The first 17 ‘priority’ awards were completed in December 2008 and replace
around 500 industry/occupational awards. These include: black Coal Mining industry award
2010; Clerks – private Sector award 2010; Fast Food industry award 2010; general Retail
industry award 2010; Hair and beauty industry award 2010; Higher education industry
– academic Staff award 2010; Higher education industry – general Staff award 2010;
Horse and greyhound Training award 2010; Hospitality industry (general) award 2010;
Manufacturing and associated industries and Occupations award 2010; Mining industry
award 2010; pharmacy industry award 2010; Racing Clubs events award 2010; Racing
industry ground Maintenance award 2010; Rail industry award 2010; Security Services
industry award 2010; Textile, Clothing, Footwear and associated industries award 2010.

Stage 2 - The second stage included 27 modern awards published on 3 april 2009. These
include: aged Care award 2010; banking, Finance and insurance award 2010; building and
                                                                                                                          1800 671 978
Construction general On-site award 2010; business equipment award 2010; Cleaning Services              Solutions@TechnologyOneCorp.com
award 2010; Contract Call Centres award 2010; Cotton ginning award 2010; electrical, electronic       www.TechnologyOneCorp.com/HRMS

and Communications Contracting award 2010; graphic arts, printing and publishing award 2010;
Health professionals and Support Services award 2010; Horticulture award 2010; Joinery and
building Trades award 2010; Market and Social Research award 2010; Medical practitioners

                                                                                            page 33
                                    TeCHnOlOgyOne wHiTe papeR — SepTeMbeR 2009
References
                                      award 2010; Mobile Crane Hiring award 2010; nursery award 2010; nurses award 2010;
                                      pastoral award 2010; plumbing and Fire Sprinklers award 2010; Quarrying award 2010; Road
                                      Transport and Distribution award 2010; Road Transport (long Distance Operations) award 2010;
                                      Silviculture award 2010; Telecommunications Services award 2010; Transport (Cash in Transit)
                                      award 2010; waste Management award 2010; wool Storage, Sampling and Testing award 2010.

                                      Stage 3 – The third and largest stage includes a further 50 modern awards that cover 39
                                      industries and occupations. These will be completed on 4 September 2009 and include: airline
                                      operations; airport operations (other than retail); aluminium industry; arts administration; Cement
                                      and concrete products (including asphalt and bitumen); Cemetery operations; Coal treatment
                                      industry; Defence support; educational services (other than higher education); electrical power
                                      industry; entertainment and broadcasting industry (other than racing); Food, beverages and
                                      tobacco industry (manufacturing); grocery products manufacture; Journalism; licensed and
                                      registered clubs; liquor and accommodation industry (manufacturing); Maritime industry; Meat
                                      industry; Offshore island resorts; Oil and gas industry; paper products industry; pet food
                                      manufacturing; pharmaceutical industry; photographic industry; port and harbour services;
                                      postal services (other than australia post); private transport industry (remaining sectors); public
                                      transport (other than rail); publishing industry; Scientific services (including professional
                                      engineers and scientists); Storage services; Sugar industry; Technical services; Timber
                                      industry; Tourism industry; Travel industry; Vehicle industry (repair, service and retail); Vehicle
                                      manufacturing industry; and wholesale and retail trade (wholesale) and commercial travellers.

                                      Stage 4 – The final stage will cover all remaining awards and will be completed on 4 December
                                      2009. These include aquaculture; Christmas island; Cocos (Keeling) islands; Diving services;
                                      Dry cleaning and laundry services; educational services - preschool teachers; Fire fighting
                                      services; Funeral directing; gardening services (remainder); general award (see consolidated
                                      Request clauses 4a & 8a); grain handling industry; Health and welfare services (remainder)
                                      - ambulance services; Health and welfare services (remainder) - Children’s services; Health
                                      and welfare services (remainder) - Fitness, lifestyle and leisure services; Health and welfare
                                      services (remainder) - Social and community services; Health and welfare services (remainder)
                                      - Supported employment services; indigenous organisations and services; industries not
                                      otherwise assigned - accountancy practices; industries not otherwise assigned - animal care
                                      and veterinary services; industries not otherwise assigned - building services; industries not
                                      otherwise assigned - Correctional facilities; industries not otherwise assigned - labour hire
                                      services; industries not otherwise assigned - legal services; industries not otherwise assigned
                                      - Real estate industry; industries not otherwise assigned - Salt industry; local government
                                      administration; Mannequins and modelling industry; Restaurant and catering industry; State
                                      and Territory government administration; and water, sewerage and drainage services.




  1800 671 978
  Solutions@TechnologyOneCorp.com
  www.TechnologyOneCorp.com/HRMS




                                      page 34

								
To top