Commform.com commercial forms and business systems

1 June 2009
The Fair Work Act 2009 is effective from 1 July replacing the Workplace Relations Act 1996. Small Business exemption from unfair dismissal applies for the first 12 months where there are ‘fewer than 15’ employees excluding genuine casuals. For business larger than this, the ‘qualifying period’ is 6 months. The scope of “adverse action” by an employer has been widened, with reinstatement the primary remedy. A ‘Fair Dismissal Code’ will be available. Fair Work Australia replaces the Workplace Authority, Fair Pay Commission and Ind Rels Commission. New agreements will be either single or multiple Enterprise Agreements (EA) that will consider family-friendly flexibility and overtime for work in excess of 38 hours. Three key matters take effect on 1 Jan 2010: the expiry of all ITEA, introduction of ‘modernised awards’ and new National Employment Standards (NES).

28 March 2008
Regulations are amended to match ‘Forward with Fairness’ Bill with changes to Employer Declaration and Employee Information Statement for certified agreements. Options for employers who want non-union agreements: 1. Individual transitional employment agreement (ITEA) 2. employee collective agreement and 3. individual common law contracts - all three available from COMMFORM.COM

‘Transition to Forward with Fairness’ Bill - 23 March 2008
Parliament has passed the ‘Transition to Forward with Fairness’ Bill. Changes include no more AWA but a new individual transitional employment agreement (ITEA). The no disadvantage test is back. The Fact Sheet is discontinued. Not effective yet but work in progress includes ‘modern awards’, revised employment conditions, new agency Fair Work Australia and the standardization of employment legislation across all States & Territories. What to do? Consider Employee Collective Agreements valid up to 5 years or if you want individual agreements, negotiate an ITEA valid no later than 31 Dec 09. Both must be lodged with and approved by the Workplace Authority.

NOTICE 1 NOVEMBER
ALP plans to introduce a new Authority: ‘Fair Work Australia’ taking over the AIRC, Workplace Authority, Fair Pay Commission, and Ombudsman. ‘Fair Work’ will keep federal system with no indication of a return to lost State laws. There will be a set of 20 protected rights: ten Standard Conditions incl overtime, penalty rates for Public Holidays, changes to redundancy and Long Service; ten award conditions incl. min wages, hours of work, Super and dispute settling procedures. No new Individual Agreements that over-ride Award conditions – such as AWAs. When an AWA expires it will not be rolled over. Exemption from Unfair Dismissal will apply to ALL for first 6 months – likely up to12 months if under 15 employees. A ‘Fair Dismissal Code’ is expected. Right of Entry and Industrial action provisions may stay. Watch this site for further comment as soon as possible after the election.

NOTICE 20 JULY
First: The new ‘Workplace Relations Fact Sheet’ (WRFS) has been released and must be given to ALL employees by 20 October (new employees within 7 days of starting). Best way to get it – go to: www.workplaceauthority.gov.au Easiest way for Employers is to distribute via work email. The WRFS is part of “A stronger safety net” Bill (passed 20 June, with text of WRFS gazetted on 20 July), that amends again the Workplace Relations Act 1996. Second: the WRFS is in addition to the “Information Statement” (for Employees) and the “Employers Declaration” that must be completed PRIOR to making an AWA or Collective (from same web address above); select from menu: ‘Workplace Agreements’ then ‘Publications’ and download the documents direct. Third: The ‘Fairness Test’ (new no disadvantage test) applies to AWAs and Collectives lodged after 6 May, is handled by the Workplace Authority (prev Office of Employment Advocate). A Workplace Agreement is effective from date of lodgement. The Authority will check only those conditions changed or taken away from the applicable Award. Employers can use a pre-lodgement service to avoid surprises and for smooth processing when lodged. Fourth: watch for changes to ‘unfair dismissals’ by ALP if elected later, possibly keeping exemption for employers with 15 or fewer employees. Read about it here.

INDEPENDENT CONTRACTOR 1 MAR
The Independent Contractors Act 2006 was passed in December and became effective from 1 March 2007. The Act positions independent contracts as common law arrangements not principally governed by employment legislation. Want to be a Contractor? Then set yourself up in all respects as a Contractor with own arrangements for tax, sickness, leave, workers comp. Check out Independent Contractor Agreements and the book on this site to prepare yourself for contracts in this new era.

HIGH COURT UPHOLDS WORK CHOICES
Back in March, the amendments to Workplace Relations Act relied on Federal Government’s right to legislate with higher authority than the States. The High Court considered and agrees. Treated as a challenge to ‘corporations power’ by Labour Opposition and ACTU, seven Judges rule 5:2 in favour of the Commonwealth. So all the Work Choices amendments to the Act stand. But Govt proposes some fine-tuning (see next).

AGREEMENT UPDATE 7 MAY
Summary: ‘a return of the no disadvantage test’. Coalition Govt has introduced a new ‘fairness test’ for most Collectives and AWAs except those lodged by Sunday 6 May 2007. Legislation tabled in June sitting of Parliament applies retrospectively from Monday 7 May! The test relates to any alteration of the ‘protected award conditions’ to check that employees are fairly compensated for change to benefits such as penal rates, shift allowances, leave loadings and public holidays. The new ‘Workplace Authority’ (former Office of Employment Advocate) will apply the fairness test to lodged agreements and also as a pre-assessment service. And now we have a ‘Workplace Ombudsman’ (former office of Workplace Services) that will carry out random checks on compliance with an emphasis on protection of young workers. Outcome: take care with AWAs and Collectives lodged from 7 May to ensure there is fair compensation for any change to applicable conditions such as Awards – otherwise the agreement can be ‘voided’ (with 14 days to renegotiate).

AWA 7 DAYS 20 DEC
An employer must give ready access to the proposed AWA for at least seven days before it is signed. However a change has been Gazetted on 20 Dec 2006 and effective immediately, to the effect that the employee may elect (in writing) to waive the seven day entitlement provided there has been ready access to both the proposed AWA and a full copy of the Employee Information Statement which is provided in its complete form on www.oea.gov.au

WORKPLACE RELATIONS ACT ‘TUNING’
Work Choices amendments allowed for cashing out of up to half annual leave if on an AWA, and cashing out is now proposed for Personal Leave if requested by an employee and agreed by the employer. Other proposed changes include the right to stand down employees under specific circumstances, protection of redundancy rights for 12 months after, and the rate of accrual of personal leave – amongst others. These changes are tabled and should become law early 2007.