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The Basics


The following points illustrate the major changes made to Industrial relations legislation, primarily how will the new Fair Work Australia policy be different to the existing Workchoices Legislation.


Parental Leave and You.

Parental leave: Employees are entitled to 12 months' unpaid parental leave after the birth or adoption of a child aged up to 16 years. A new parent can request an extension to 24 months' unpaid leave, reduced by the amount of leave taken by their partner. Employers may refuse the request, but only on reasonable business grounds.

Employees of some small businesses (sole traders or partnerships) ''in the middle'' of parental leave on January 1 are entitled to continue their leave under the new rules.

Former provisions: new mothers or fathers could take up to 52 weeks' continuous unpaid leave as the primary carer.

Same-sex relationships were not recognised for parental leave. Parental leave for adoption was restricted to children under five.

Return-to-work guarantee: A new parent is entitled to return to the same position they held before taking parental leave. If the position no longer exists, they must return to a position that is nearest in status and pay.

Flexible hours: Parents of children under school age or children under 18 with a disability can request flexible work arrangements including changes to hours, patterns (job-sharing) or location. Employees must have worked for 12 months. Employers must respond in 21 days in writing and can refuse only on reasonable business grounds. The Fair Work Australia tribunal can mediate in any disputes on the issue.

Formerly: employees had no right to request flexible hours.

Community service leave: Unlimited unpaid leave for voluntary emergency activities and up to 10 days' paid jury leave.

Formerly: no entitlement.

Compassionate leave: 10 days' paid carers' leave for every year of service, which accumulates.

Formerly: casuals not covered. Annual limit of 10 days' paid carers' leave.

Information statement: All new employees must be given a Fair Work Information Statement as soon as they start work.

&Termination: Employees should be given four weeks' notice of termination and up to 16 weeks' redundancy pay, based on length of service.

Source: Fair Work Online


From 1 January 2010 there are several important changes in Australia’s workplace laws that affect all employers and employees in the national workplace relations system.

The changes include the introduction of new National Employment Standards (NES), many employers in New South Wales, Queensland, Tasmania and South Australia moving into the national system, and the commencement of modern awards.

Employers and employees need to be prepared for these changes.

National Employment Standards (NES)

The Fair Work Act provides a safety net of enforceable minimum employment terms and conditions through the National Employment Standards (NES).

The NES sets out 10 minimum workplace entitlements which apply to all employers and employees in the national workplace relations system from 1 January 2010 (however only certain entitlements apply to casual employees).

The NES replaces the non-pay rate provisions of the Australian Fair Pay and Conditions Standard (the Standard), which applies up to and including 31 December 2009.

Fair Work Information Statement

From 1 January 2010, all employers covered by the national workplace relations system have an obligation to give each new employee a Fair Work Information Statement (the Statement) before, or as soon as possible after, the employee starts employment.



Sole traders, partnerships & others moving into the national system

From 1 January 2010, sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, Queensland, South Australia and Tasmania are covered by the national system rather than their own specific state system. Employers that were already operating under the national system continue to be covered (eg. Pty Ltd businesses, employers in the ACT, NT and Victoria).

There are special transitional rules for employers in these states to help them move into the national system,including:

  • State awards that covered these employers and employees before 1 January 2010 continue to apply and are known as Division 2B State awards. They automatically terminate at the end of 31 December 2010 (except for State enterprise awards). These employers and employees are then covered by a relevant modern award.
  • State employment agreements that covered these employers and employees continue to operate until terminated or replaced and are known as Division 2B State employment agreements


However, state awards and state employment agreements operate alongside the National Employment Standards (NES). This means that, employees must receive at least the minimum entitlements in the NES (to the extent that they apply), along with any other entitlements in their state award or workplace agreement (provided that these are at least as beneficial as the corresponding NES entitlement(s)).


Modern awards

From 1 January 2010 modern awards replace existing awards in most industries.

Modern awards are industry or occupation-based enforceable minimum employment standards which apply in addition to the NES.

Modern awards cover all employers and employees who perform work in those industries or occupations covered by a particular modern award. However, modern awards may not apply to some managers or higher income employees (who have an appropriate guarantee of annual earnings of more than $108,300 annually) even if a modern award covers the industry in which they work.

Modern awards contain terms and conditions about:

  • minimum wages
  • overtime and penalty rates
  • types of employment
  • work arrangements (eg. rosters, variation to working hours)
  • hours of work
  • rest breaks
  • classifications
  • allowances
  • leave and leave loadings
  • superannuation
  • procedures for consultation, representation and dispute settlement.

Some modern awards also contain terms about redundancy.

Transition to modern awards

Modern awards were created to establish one set of minimum conditions for employers and employees across Australia who work in the same industries and occupations.

As the modern awards replace thousands of federal and state-based awards, the impact of the wages and conditions in the modern awards vary between states, industries and employers.

To lessen the financial impact of the new arrangements, modern awards may contain transitional provisions which allow increases and decreases in minimum conditions to be progressively phased in.

Modern awards may contain:

  • a model phasing schedule
  • transitional provisions specific to the modern award
  • no transitional arrangements at all.

In modern awards containing the model phasing schedule, new rates of pay will not come into force until 1 July 2010 and may be phased in over 5 annual instalments.

If there are no transitional provisions in a modern award, then the wages specified in a modern award need to be paid from 1 January 2010.



Unfair Dismissal and Changes to the Laws

Currently the Australian Industrial Relations Commission will continue to deal with all unfair dismissal claims. The new Fair Work Australia industrial legislation will commence in January 2010 and they will handle all claims.

Significant differences to the manner in which claims are processed to the current procedure will come into play. All applications will be considered in an informal conference convened by Fair Work Australia.

A major change to existing procedures provides that there will be no written submissions, no cross-examination of witnesses and no formal hearing. A suitable representative or support person will be allowed to be present. Fair Work Australia will decide whether the dismissal was unfair and will be able to award reinstatement unless this is against the interests of the employer or the employee. Compensation can be awarded as an alternative to reinstatement.

Award and Pay Rates
The Labour Government proposed simplification of awards.

Simplification of awards will continue under the workplace system to be established by the new Labour government. A two-year simplification process is expected to commence 1 January 2008. The Australian Industrial Relations Commission will oversee the process.

Simplified awards will be confined to the following ten conditions:

• Minimum wages
• Fair Work Australia will set minimum wage rates to take effect from the first full pay period on or after 1 July of each year.
• Type of work performed
• For example, permanent or casual, facilitation of flexible work arrangements
• Work arrangements
• For example, hours, rostering.
• Overtime rates
• Penalty rates
• Minimum annualised wage or salary
• Allowances
• For example, work related and expense related allowance.
• Annual leave
• Including leave loading
• Superannuation
• Dispute Resolution processes


Flexibility in the Workplace

Awards will also provide for the promotion of efficient work performance and encouragement of work-family balance. Model flexibility clauses will be mandatory.


Key Awards for simplification

Certain federal awards will be nominated as key awards. These key awards will be given priority for simplification in 2008. The balance will be simplified in 2009, so that the process is complete by 1 January 2010. The Australian Industrial Relations Commission will hear submissions from interested parties and will consider which industries and occupations require separate awards.

Enterprise specific awards will be reviewed by the Commission only on request from the parties to the award. The Commission will also consider how to deal with preserved State awards and preserved State agreements.


Which positions are not covered by the new awards?

Simplified awards will not regulate positions which have been historically award free, such as most managerial positions. Further, awards will only cover employees earning less than $100,000 per annum. Employees who are currently covered by awards and who earn above this threshold will be able to negotiate with the employers to either continue under existing terms and conditions or move to the new system.

Please note:
The laws have not changed yet. Detailed draft legislation has not been released and so the outcomes may differ from those described here.

Article supplied by Australian Business Lawyers - specialists in employment law and related areas.



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