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The Fair Work Act and Your Station CBAA Conference, Brisbane 20 November 2009 Michael Pegg Managers manage Organisational strategy, management and values Manager Employee Organisational performance Outline 1. 2. 3. 4. 5. Contracts State and federal systems National Employment Standards Awards & Agreements Unfair dismissal and other adverse actions Common Law Contract of Employment • • • • • Intent Offer of work Acceptance Consideration ($) in exchange for work Employee vs Volunteer Rights and Responsibilities Employer Employee Provide work Obediance - Work as directed Pay Competence & care Safe workplace Work safely Good & considerate Good faith – Honesty, loyalty & cooperation State and Federal Systems • Historically complex mix of systems • Got more complex in 2006 – “Corporations power” – Non profit community organisations – Trading? Incorporated? • Moving to national system 2010-2011? State Referrals • In 1996, Victoria referred some of its powers to make laws about IR to the federal parliament – Consequence is no state system – Avoid jurisdictional complications because corporation status not relevant • Qld, NSW, Tas, and SA are referring in 2010, subject to Senate passage of federal legislation • WA has decided not to refer State Referrals Location Constitutional trading corporation Not Constitutional trading corporation ACT, NT, Vic Federal system Federal system NSW, Qld, SA & Tas Federal system State system 2009 Federal system from 1 January 2010; transitional arrangements WA Federal system State system Key elements of Fair Work • • • • National Employment Standards (NES) Modern awards Agreements Termination of employment & adverse actions The Hierarchy of Conditions Contract of employment + HR Policies + + + Collective Agreement + +/Modern award Conditions Modern award Pay NES + National Employment Standards (NES) • Basic entitlements • Take effect 1 January 2010 • Enshrined in legislation and override awards and agreements (except some pre-reform agreements) NES – existing federal standards • Max working hours – 38 hour week plus reasonable additional hours • Annual leave • Personal/carer’s & compassionate leave • Parental leave • Plus new provisions… NES – new provisions • Public holidays • Long service leave • Flexible work arrangements for parents of preschool children • Community service leave (emergency, jury) • Notice of Termination & Redundancy pay (>15 employees) • Fair Work Information Statement NES – Selected issues (1) • Annual leave – Cashing out (if allowed by award/agreement) provided 4 weeks balance maintained – Pro rata accrual after 1 month • Personal/Carer’s leave – 10 days personal/carer’s, plus 2 days per occasion compassionate – Modern awards may provide cashing out provided 15 days balance maintained NES – Selected issues (2) • Parental leave – 12 months plus right to request further 12 months unpaid leave • Flexibility requests – Includes pre-school children & disabled children under 18 yo – Written request – 21 days to respond in writing - reasonable business grounds NES – Selected issues (3) • Community service leave – Emergency management activity • Notice, evidence • Unpaid – Jury service • Based on common award provisions • Paid (less jury pay) • Up to 10 days Award Modernisation • • • • Fewer awards, industry-based and common rule Operate by common rule from 1 January 2010 Transitional provisions Most federal system employees covered by an award (even if previously award free) • Some exceptions eg if paid above $108,300 (indexed) Content of Modern Awards • Build on NES, with industry specific standards, • Plus a range of other items such as: – – – – Wages, allowances and penalty rates Types of employment Superannuation Industry specific arrangements for working hours • Flexibility arrangements on better off basis • Consultation, representation and disputes Which Modern Awards? Determined case by case – Possibilities (Subject to finalisation by end of 2009): • Clerical – Office staff and managers • Broadcasting and Recorded Entertainment?? – Technicians, engineers?? • Commercial Sales?? – Sponsorship?? (note limits on commissions) • Miscellaneous Agreements • • • • “Better Off Overall Test”(BOOT) Most prohibited content no longer prohibited Individual flexibility and consultation on change Notification time - 14 days to advise representational rights, prior to 7 day approval period • Good faith bargaining • Multiple business agreements and “low paid bargaining stream” BOOT • BOOT – Employees better off overall compared to a “reference instrument” • Reference Instrument – Award that applies – Relevant state long service leave legislation – In conjunction with NES Bargaining Options • Rely on award – May be easiest option if limited resources – Modernisation – Recruitment & Retention • Common law contracts or policies for over award conditions – Easier than collective bargaining • Collective Bargaining Unfair Dismissal Remedy for harsh, unjust or unreasonable termination of employment Remedies include: Reinstatement Compensation of up to 26 weeks pay Historically, about 90% of claims are settled informally Unfair Dismissal - Exemptions From 1 July 2009, all federal employees able to lodge claims except: Non-award employees paid >$100,000 (2007 dollars indexed); Employees with less than 6 months service, provided that for a small employer (fewer than 15 EFT employees until 1 January 2011, then just 15 employees), 12 months service is required; Other standard exemptions eg short term casuals Genuine redundancy Genuine Redundancy • Job is no longer required to be done by anyone because of changes in operational requirements • Obligations to consult, under award or enterprise agreement, have been complied with • It was not reasonable to redeploy – positive obligation to explore options Process – Unfair Dismissal • Federal claims need to be lodged within 14 days of dismissal • FWA emphasis on speedy and informal resolution with >80% settled at conciliation • Employer may be represented by employer organisation (eg by Jobs Australia), but private lawyers need to seek leave to appear Natural Justice • • • • • State allegations – valid reason Fair investigation Opportunity to respond/explain Consequences made clear if not resolved Right to representation (particularly if termination considered) • Even if considering summary dismissal – natural justice first Outcomes of Disciplinary Process Not determined until after process • • • • No further action – best case scenario Informal warning Written warning (with review period if performance issue) Termination with notice, or without notice if serious misconduct – worst case scenario – indicator of possible problem with recruitment, selection, training, performance management or organisational culture Alternative Remedies • Unlawful termination - Prohibited reasons such as: – Temporary absence due to illness or injury – Race, sex, political beliefs etc – Failure to provide required notice • Onus on employer to rebut claim • General protection against adverse action, including prior to termination • Also - Anti- discrimination, breach of contract Adverse Actions • Remedy from Fair Work Australia if subject to any adverse action on prohibited (ie discriminatory) grounds • Includes adverse actions such as – Refusal of training opportunities – Changes in hours – Refused promotion • Similar to existing anti-discrimination laws, but potentially faster remedies Managing Change Employer Rights • to determine how job is done and by whom • to decide how to run their organisation Constrained by • Industrial and other legislation • Employee responses • Management strategy Key Elements of Process • Information • Consultation – before finalising decisions about structure – Modern award requirement and – Evidence based decision making • Explore alternatives to termination, such as reduced hours, retraining, redeployment • Fair process for selecting retrenchments • Appropriate support for affected employees Contact Jobs Australia • Michael Pegg – Phone: – Phone: – Fax: – Email: (03) 9349 3699 (1800) 060 098 (03) 9349 3655 [email protected]