Edition 16 - September 2009A word from the Editor
Welcome to this edition of Access HR News. This edition will be focusing on the Industrial Relations Reform. The Fair Work Act 2009 (Cth) has been passed by the Commonwealth Parliament and parts of the package commenced on 1 July 2009. The remainder will come into effect on 1 January 2010. The legislation will have implications for all employers and employees, and it is important to become familiar with the key features. We will endeavour to outline the key elements of the new system under the Act, however if you require information relating to a specific situation please contact Anna Lane or Kim White on (03) 9544 1899 for a tailored Industrial Relations solution. It is with great excitement that we announce that the Access HR website (www.accesshr.com.au) has been updated making it more interactive for our candidates and clients. The changes include the introduction of Access HR 24/7 and a job searching tool. Please take the time to have a look at our “new” website. We would love to hear your feedback. Keeping with the times; Access HR has developed a Facebook page and Twitter account, and we encourage everyone to become “fans” and “followers”. We will be advertising positions and providing important updates through these applications, as well as our website. We hope you find this edition of Access News informative and helpful, Access HR Team | |
Unfair Dismissal - Effective 1st July 2009
The New Unfair Dismissal regime became effective on 1st July 2009. It is predicted that Fair Work Act will protect an additional 3 million employees from unfair dismissal, making the new unfair dismissal regime more accessible to employees. The Bill abolishes the 100 employee exemption introduced by WorkChoices, and introduces a Small Business Fair Dismissal Code to assist small business employers. Where a small business employer adheres to the Code an unfair dismissal application may not be brought by the dismissed employee. Currently the definition of a small business is a business with fifteen (15) full time equivalent employees or less, calculated based on average total hours worked by all employees of the business per week. A person is protected from unfair dismissal at a time if, at that time:
Protection from unfair dismissal is afforded to all employees who have completed the minimum employment periods as mentioned above and are covered by a modern award and/or enterprise agreement or the sum of the person’s annual rate of earnings (and other specified amounts) is less than the stipulated high income threshold. A person has been unfairly dismissed if Fair Work Australia is satisfied that:
When considering if a dismissal is unfair, Fair Work Australia take into account a range of factors including: · If there is a valid reason for the dismissal relating to the employee’s conduct or capacity · If the employee is notified of the reason and given an opportunity to respond · If the dismissal relates to unsatisfactory performance, then whether the employee is warned prior to dismissal. Another significant change is that in the absence of exceptional circumstances an application for unfair dismissal has to be filed with Fair Work Australia within fourteen (14) days of the dismissal. Previously, an employee had twenty-one (21) days to file such an application. If Fair Work Australia find that a person has been unfairly dismissed it may; · Order reinstatement; or · Compensation only if it considers that reinstatement is inappropriate. This is a summary of the introduced unfair dismissal legislation under the Fair Work Act. Access HR recommends employers / employees contact Anna Lane or Kim White on (03) 9544 1899 for a tailored response to their dismissal queries. Source: VECCI Workplace Relations Update - Jackson McDonald Lawyers Autumn 2009 Newsletter – Pointon Partners Fair Work Act 2009 |
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Understanding Redundancies
Included in the definition of unfair dismissal is; the dismissal was not a case of genuine redundancy. Prior to making an employee redundant, employers should fully understand the terms of the redundancies and ensure they are in line with Fair Work Australia. What is redundancy? Redundancy happens when an employer decides they no longer want an employee’s job to be done by anyone and terminates their employment (except in cases of ordinary and customary turnover of labour). Redundancy may happen when: · The job someone does become mechanised · Business slows down due to lower sales or production · The business relocates · A merger or takeover happens · The business restructures or reorganises
What is Genuine Redundancy? Under Commonwealth workplace laws, a person’s dismissal is a ‘genuine redundancy’ if:
What is NOT Genuine Redundancy? It is not a genuine redundancy if it is reasonable for the employee to be deployed in: · The employer’s business; or · The enterprise of an associated entity of the employer Paying the Right Redundancy: Redundancy pay (severance pay) must be paid if the employee’s industrial agreement, award or notional agreement preserving state awards (NAPSA) says that they are entitled. Redundancy pay in an award is paid only if the employee works for an employer that employs 15 or more employees and:
Redundancy pay periods and further advice is available by contacting Anna Lane or Kim White on (03) 9544 1899. Source: VECCI Workplace Relations Update - Jackson McDonald Lawyers Autumn 2009 Newsletter – Pointon Partners Fair Work Act 2009
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Agreements under the Fair Work ActThe types of agreements employers can enter into with their employees, and in some cases, the way in which the current agreements operate have changed under the Fair Work Act. The Fair Work Act places collective bargaining at the heart of the new workplace relations systems, rather than individual workplace agreements (AWA) under WorkChoices regime. Workplace agreements will now be described as ‘enterprise agreements’. Enterprise agreements need to be approved by the Fair Work Act. Types of agreements under the new legislation are:
Good Faith Bargaining will be a feature in the new system. This will require:
The good faith bargaining requirements do not however require that a bargaining representative make concessions during the bargaining for the agreement or a bargaining representative reach agreement on the terms that are to be included in the agreement. From 1 January 2010 the Better Off Overall Test will be applied to ensure that employees covered by an agreement are better off overall in comparisons to the applicable award. This has superseded the ‘no disadvantage test’. Source: VECCI Workplace Relations Update - Jackson McDonald Lawyers Autumn 2009 Newsletter – Pointon Partners Fair Work Act 2009 |
