Fair Work Bill 2008: Overview and Key Features

1. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Fair Work Bill 2008 An overview HR Forum 9 December 2008

2. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT • Operative dates • Key features • Possible implications for the NTPS Fair Work Bill 2008

3. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Operative dates • Bill introduced into Parliament 25 November 2008 • Passed by House of Reps. last week. • Senate to consider in February • Transition Bill to be introduced March 2009 • 1st elements of the Bill operate from 1 July 2009 (enterprise bargaining / Fair Work Australia / unfair dismissals) • Bulk of the remaining provisions operate from 1 January 2010 (National Employment Standards and Modern Awards) Fair Work Bill 2008

4. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Key Features • Completely new Act – applies to NT employees • Divided into six parts – 600 pages • Legislates for National Employment Standards • Modern Awards • New enterprise bargaining framework • Fair Work Australia (FWA) • Unfair dismissals • Right of entry Fair Work Bill 2008

5. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Key Features cont. • National Employment Standards (NES) • 10 legislated minimum employment standards • 38 hr week (averaging provision available) • Requests for flexible working arrangements • Parental leave (unpaid) • Annual leave (four weeks pa / new cash up provisions) • Personal / carer’s leave (10 days pa) • Community service leave (unpaid) Fair Work Bill 2008

6. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Key Features cont. • National Employment Standards cont. • Long service leave (current state/territory legislation to apply until new national arrangements developed) • Public holidays (right to refuse to work) • Notice of termination and redundancy pay (severance components slightly different from NTPS) • Fair Work Information Statement (to be provided to every employee) Fair Work Bill 2008

7. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Key Features cont. • Modern Awards • Process started by AIRC in June 2008 • Due to be completed 1 January 2010 • Establish safety net of minimum terms and conditions, including minimum wage, together with the NES • Industry / occupational based awards • Priority awards identified and exposure drafts released • NTPS submission is for our awards to be treated as enterprise awards – NTPS Medical Officers Award Fair Work Bill 2008

8. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Key Features cont. • Enterprise bargaining • Significant changes from Workchoices • No individual agreements, ie AWAs • Collective bargaining is paramount • Enterprise agreements from 1 July 2009 • Concept of union and employee collective agreements abolished as are bargaining periods and prohibited content • Modern award does not apply during term of agreement, but NES do Fair Work Bill 2008

9. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Key Features cont. • Enterprise bargaining cont. • Introduction of “bargaining representatives” • Usually a union, but may not be • All employees must be given the opportunity to appoint a bargaining representative • Union only needs one member to be “at the table” • May see entry of other unions in NTPS agreements eg ASU Fair Work Bill 2008

10. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Key Features cont. • Enterprise bargaining cont. • Permitted matters rather than prohibited content • Must contain matters pertaining to the employment relationship • Terms cannot be less than NES • Must include flexibility term, consultative clause & DSP • No offensive provisions or unlawful content, otherwise agreements can deal with anything • No requirement for union to sign agreement before ballot • Agreement must satisfy “Better off overall test” - “BOOT” Fair Work Bill 2008

11. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Key Features cont. • Enterprise bargaining cont. • Secret ballot for protected industrial action remains, but process streamlined • Three working days notice of industrial action required • Employer must deduct a minimum of four hours pay for industrial action • Employer will be able to deduct pay for partial work bans • FWA can suspend or terminate bargaining period in limited circumstances Fair Work Bill 2008

12. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Key Features cont. • Enterprise bargaining cont. • Parties required to “good faith” bargain • FWA may issue order for a party to bargain in good faith • If order breached then FWA may make serious breach declaration • FWA may then make a bargaining related workplace determination – in effect an arbitrated outcome • Unions may also apply for scope orders – could see some groups attempt to bargain separate agreements Fair Work Bill 2008

13. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Key Features cont. • Fair Work Australia (FWA) • One-stop shop • Incorporates all current bodies under Workchoices including the AIRC. • Can settle disputes but can only arbitrate if dispute settling procedures provide for it – most will • Creation of Fair Work Divisions of Federal Court and Magistrates Courts • Small claims jurisdiction up to $20K Fair Work Bill 2008

14. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Key Features cont. • Unfair dismissals • Most changes affect small business • Focus on reinstatement • Process aims to minimise the role of lawyers • Right of entry • Union may inspect records of non-members Fair Work Bill 2008

15. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Possible implications for the NTPS • Interaction b/w current agreements and new Act will not be known until transitions provisions are introduced in March 2009 • NTPS provisions will need to be aligned with NES and possibly Modern Awards eg parental, personal, annual leave etc • Award modernisation process may generate significant workload • Scope for greater intervention of FWA in protracted bargaining disputes • Unions could test good faith bargaining and scope orders • Could be more unions at the table • May see pressure for separate agreements from some groups • Agreements may deal with more matters Fair Work Bill 2008

16. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Questions Fair Work Bill 2008