1. Current Issues in Australian Employment Relations 2011
Andrew J See
Barrister at Law
Kilkenny Chambers
231 North Quay
Brisbane Qld 4000 E I

2. Where are we heading?
Need to have some idea of where we have come from
Need to understand some of the issues previously canvassed

4. FFFFair Work Australia!

5. Why Fairness ??
Criticism that individual bargaining produced unfair outcomes and caused compromisation of workers rights and entitlements
Need to establish a platform of statutory minimum entitlements for all employees
Reintroduction of “no disadvantage” test to assess local bargaining arrangements

6. Key Employment Law Industrial Relations Workplace health and Safety
Discrimination
Workers Compensation

7. The Key Principles
Sunsetting out AWAs (2 years) and more emphasis on collective bargaining
Increasing number of statutory minimum entitlements
Access to Unfair dismissal for small business (>15 people- after 12 mths)
Reintroduction of no disadvantage test
Streamline dispute resolution processes

8. What employers and employees does the FW Act cover?
All private sector workers
Commonwealth and territory workers
Nb State Government and Local Govt employees covered by state systems.

9. Some Oz History Constitution 1901 -Industrial dispute (S51 xxxv)
Harvester decision 1907
Basic wage + skills (margins 1952)
3 tiered system (add on industry payments)
Total wage concept and wage indexation
The ACTU Govt Prices and Incomes Accord 1983 (Corporatism and impact on parties)
Enterprise bargaining 1991

10. Australian Fair Pay Commission Standard
WORKCHOICES –
Australian Fair Pay Commission Standard
FORWARD WITH FAIRNESS – 10 National Employment Standards
Basic rates of pay and casual loading
Minimum wages and allowances
Maximum ordinary hours
Hours of work, Overtime and penalty rates , public holidays
Annual Leave
Annual Leave, LSL and Super
Personal Leave
Personal, Carers and Compassionate Leave Flexible Leave for Parents
Parental Leave and related entitlements
Parental Leave
Public Holidays
Information in the workplace
Notice of termination and redundancy
Consultation, representation and dispute settling procedures

11. Employee Entitlements & Protections
FW Act Safety Net
Will comprise of four parts
the National Employment Standards (NES)
Modern Awards
Minimum Wages and
General Protections

12. Employees Entitlements & Protections
Minimum Wages
Fair Work Australia (FWA) must annually undertake an annual wage review
It must
review minimum wages and may set, vary or revoke modern award minimum wages and
review the national minimum wage order and make a new national minimum wage order

13. Unfair dismissal “fair go all round” quick flexible informal
emphasis on reinstatement
address needs of employers and employees

14. Minimum employment period
12 months for Small Businesses (< 15 employees)
6 months for others
When “notice” given important

15. What is an unfair dismissal?
Dismissed
It was harsh unjust or unreasonable
Not consistent with SBFDC
Not a genuine redundancy
NB. All four are required

16. Unfair Dismissal An employee is protected from unfair dismissal if
he or she has completed a minimum employment period and
One or more of the following apply :-
a Modern Award covers the employee
an enterprise agreement applies to the employment
the employee's annual rate of earnings is less than the high income threshold ($100K)

17. Not dismissed if… Fixed term Specified task Seasonal employees
Demotion (salary or duties)
NB. Usual risks apply to fixed term employees

18. Employees Entitlements & Protections
General Employee Protections
The FW Act contains protections in respect of –
unlawful termination
freedom of association
sham arrangements in respect of independent contractors and
other various protections (discrimination, whistleblowing etc)

19. Collective Agreements
Employers and employees can make
single-enterprise agreements and
multi-enterprise agreements

20. Collective Agreements
Agreements may include terms about "permitted matters"
Permitted matters include terms
that pertain to the relationship between employer and employee
that pertain to the relationship between employer and union
permitting deductions for employee purposes, including for union membership fees

21. Collective Agreements
Agreements cannot contain unlawful terms
Unlawful terms are terms that
are discriminatory or objectionable
exclude or modify the application of the unfair dismissal rules
are inconsistent with industrial action or rights of entry rules

22. Collective Agreements
FWA must approve agreements before they can commence
The Agreement must pass the Better Off Overall Test (BOOT) before it can be approved
Commence 7 days after approval

23. Collective Bargaining
Good Faith Bargaining
Bargaining representatives for proposed agreements must bargain in good faith
This involves
attending and participating in meetings at reasonable times
disclosing relevant information in a timely manner

24. Collective Bargaining
genuinely considering the other side's proposals. This involves giving reasons for any responses to such proposals and
refraining from capricious or unfair conduct which undermines freedom of association or collective bargaining

25. Collective Bargaining
Bargaining orders
FWA may make bargaining orders when
bargaining representatives are not bargaining in good faith or
the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives

26. Collective Bargaining
Bargaining orders must, among other things, specify
requirements on bargaining agents to ensure they bargain in good faith and
requirements on bargaining agents not to engage in capricious or unfair conduct which undermines freedom of association or collective bargaining

27. Collective Bargaining
Resolving Bargaining Disputes
FWA may deal with bargaining disputes
- on application by a bargaining agent and
- if bargaining representatives are unable to resolve a dispute
If the bargaining representatives agree that FWA may arbitrate, it can do so

28. Collective Bargaining
Workplace Determinations
FWA can make workplace determinations to settle terms and conditions in some circumstances
FWA can make
- low-paid workplace determinations
- industrial action related workplace determinations and
- bargaining workplace related determinations

29. Industrial Action Generally maintains current rules
Retains dichotomy between protected and unprotected industrial action
Protected industrial action can only be taken during bargaining for enterprise agreements and not before nominal expiry of enterprise agreement

30. Industrial Action
Employers can only take protected action in response to employee industrial action
Employers cannot pre-emptively lock-out employees
Mandatory "Four-hour" strike pay rule only applies to unprotected industrial action

31. Permit-holders rights of entry have been expanded to permit
entry for the purpose of holding discussions with employees at any workplace whose industrial interests the permit-holder's union can represent and
inspection of all relevant documents relevant to a suspected contravention

32. Transfer of Business
Transmission of business laws have been expanded under new "Transfer of business" rules
Transferred instruments can apply for longer than 12 months
The circumstances of when there has been a transfer of business have been enlarged

33. The IR “one-stop shop” will have two main arms
Fair Work Australia
The IR “one-stop shop” will have two main arms
Fair Work Australia will have functions in relation to matters arising under the FW legislation
There will be Fair Work Divisions in the Federal Magistrates Court and Federal Court

34. Fairness at Work
Some practical examples of how the issues will be explored……………….

35. Hours of Work Principles for maximum hours (38 per week)
Capacity for employer to request reasonable additional hours – subject to employee agreeing and not being unreasonable
How do you know what extra reasonable hours will be??
Health and safety
Personal circumstances
Needs of workplace
Whether additional remuneration paid

36. Flexible Working Arrangements
Employee who is a parent or has a responsibility for the care of a child
Requests from employees to alter the way they work
Business grounds v Personal grounds

37. Parental leave and return to work
Planning for changes
Normally would need to have been employed for 12 months before leave can be sought
Return to work
Notion of safe job
Contracting, flexibility and birth pains?

38. Annual Leave New ways of taking leave entitlements ? _Not really
What has happened to the 4 week entitlement?
Cashing out leave within award?
Integration of leave types
– a payroll nightmare?

39. Impacts of an ageing workforce
Personal carers leave
Impacts of an ageing workforce
Who is family, who is a carer and who is sick
Medical certificates v “take my word for it”

40. Termination, change and redundancy
Reinforcement of basic entitlements
Clarifying how to terminate lawfully
Obligation to pay mandatory entitlement and to give minimum periods of notice
Obligations to consult

41. Fair Work Information Statement
An information sheet to be provided to new employees
Setting out the basic entitlements and information directing employees to where to get help
Fair Work Australia

42. Award Modernisation

43. Award Modernisation
The creation of modern awards to operate with the new Australian workplace relations system
The process requires the Australian Industrial Relations Commission to review all of the multiple-employer federal awards and many state awards operating in the national industrial system

44. Conducting the award modernisation process
The AIRC must –
consult with major employee and employer representative bodies
consult with major workplace relations stakeholders and other interested parties
determine priority industries and occupations for award modernisation, a model flexibility clause and an overall timetable
draft modern awards
A modern award can only be made by a Full Bench

45. The Major List of Awards
Coal Mining Retail
Glue and gelatine Rubber, plastic etc
Higher Education Security
Hospitality Textile and Clothing
Metals & Assoc Industries Vehicle Manufacturing
Mining
Private sector clerical occupations
Racing
Rail

46. AWA-reliant employees by industry

47. Role of Award Flexibilty Provisions in Awards
An award flexibility allows departure from the standard award arrangement provided that there is agreement between an individual employer and an employee, or the majority of employees, in the enterprise or part of the enterprise concerned.
Generally an award will determine the scope of that flexibility – that is the boundaries in which people can negotiate within

48. THE FUTURE How can we measure whether the workplace will be fairer etc
What do you need to do to safeguard yourself and the rights of others in contract negotiation and performance ?
What are the new social security mechanisms needed for the future?

49. NEED TO REVIEW/THINK OF NEW WAYS OF COMMUNICATING WITH OUR STAFF

50. Andrew J See
Barrister at Law
Kilkenny Chambers
Level Six 231 North Quay
Brisbane Qld 4000 E I