Edition 16 - September 2009

A 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:

  • The person is an employee who has completed a period employment for at least the minimum period (Small Business Employer – 12 months, Not a Small Business Employer – 6 months); and
  • A modern award covers the person; or
  • An enterprise agreement applies to the person in relation to their employment; or
  • The sum of the person’s annual rate of earnings, and such other amounts are less than the high income threshold.

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:

  • The person has been dismissed (by the employer or a ‘constructive dismissal’ has occurred i.e. the employee was forced to resign from their employment because of conduct engaged in by their employer); and
  • The dismissal was harsh, unjust or unreasonable; and
  • The dismissal was not consistent with the Code; and
  • The dismissal was not a case of genuine redundancy.

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

www.fairwork.gov.au

Workplace Relations Update - Jackson McDonald Lawyers

Autumn 2009 Newsletter – Pointon Partners

Fair Work Act 2009

Read More

Agreements under the Fair Work Act

The 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:

  • Individual Transitional Employment Agreements (ITEA)
    • Can be used by employers with at least 1 employee on an AWA
    • May only be used until December 2009
  • Employee Collective Agreements
    • Can only be made in relation to a single business
  • Union Collective Agreements
    • Can only be made in relation to a single business
  • Union Greenfields Agreements
    • Available between employer and a union representing at least 1 of the workers to be employed when a new business is starting up
  • Multiple Business Agreements
    • An employee or union collective agreement may relate to more than 1 business (provided special approval is obtained from Fair Work Australia)

Good Faith Bargaining will be a feature in the new system. This will require:

  • Attending and participating in meetings at reasonable times;
  • Disclosing relevant information (subject to commercial in confidence);
  • Responding to proposals in a timely fashion;
  • Giving genuine consideration to proposals of other parties; and
  • Refraining from capricious or unfair conduct.

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

www.fairwork.gov.au

Workplace Relations Update - Jackson McDonald Lawyers

Autumn 2009 Newsletter – Pointon Partners

Fair Work Act 2009

Read More