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Fair Work Act 2009

Fair Work Act 2009. What does it mean for not-for-profit organisations?. Summary of key changes. One stop shop called Fair Work Australia National Employment Standards - safety net of 10 guaranteed employment conditions Current federal awards (including SACS and CASH) will cease to exist

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Fair Work Act 2009

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  1. Fair Work Act 2009 • What does it mean for not-for-profit organisations?

  2. Summary of key changes • One stop shop called Fair Work Australia • National Employment Standards - safety net of 10 guaranteed employment conditions • Current federal awards (including SACS and CASH) will cease to exist • ‘Modern awards’ will be created, including up to 10 additional conditions on top of NES • End of AWAs • New bargaining arrangements • New unfair dismissal rules • Expanded right of entry entitlement

  3. Key dates • 1 July 2009: • Fair Work Australia • New unfair dismissal rules • ‘General protections’ • Expanded right of entry for unions • New bargaining provisions • Transfer of business changes • 4 December 2009: • Post-SACS modern award finalised • 1 January 2010: • National Employment Standards • Modern Awards

  4. Jurisdiction • Are you covered by the Fair Work Act? • What is a ‘constitutional corporation’? • Can non-constitutional corporations be covered?

  5. Constitutional Corporations • s51xx of the Australian Constitution: • “The Parliament shall… have power to make laws... with respect to… foreign corporations and trading and financial corporations formed within the limits of the Commonwealth”. • So: -Are you a corporation? • -Are you a trading, foreign or financial corporation?

  6. Corporations • A ‘corporation’ can be: • A proprietary limited (Pty Ltd) company • An incorporated association • A statutory authority incorporated under legislation • A public company limited by guarantee • A corporation is not: • A partnership or sole trader • An unincorporated association • A State Government department

  7. Trading Corporations • Trading activities must be ‘substantial’ • ‘Substantial’ is a matter of degree, there is no fixed threshold • Profit is irrelevant • Organisation’s purpose is irrelevant

  8. Jurisdiction • So, if you’re: • Incorporated; and • You have ‘significant’ or ‘substantial’ trading activities • then you’re covered by the Fair Work Act. • If you don’t satisfy both those conditions then you’re not covered, and you’re in the WA State IR system. • (Temporary exception for some businesses currently on SACS or another federal award)

  9. Fair Work Australia • Fair Work Australia replaces: • Australian Industrial Relations Commission • Australian Fair Pay Commission • The Workplace Authority • The Workplace Ombudsman • The Australian Building and Construction Commission

  10. Unfair Dismissal • Removal of the ‘100 employee’ exemption • Qualifying period is now 12 months for small businesses, 6 months for others • Employees not covered by award or agreement who earn >$100k base are excluded • Changes to redundancy • Streamlined processes • New ‘fair dismissal code’ for small businesses

  11. What is an ‘unfair dismissal’? • An employee can only make an unfair dismissal claim in the following circumstances: • He or she was dismissed, did not resign; • The dismissal was harsh, unjust or unreasonable • The dismissal was not consistent with the Small Business Fair Dismissal Code (where applicable) • The dismissal was not a genuine redundancy

  12. Genuine Redundancy • Only occurs when the employee could not have been redeployed within the business. • Need to meet the consultative process spelled out in award/agreement.

  13. SBFD Code • A small business only has to comply with the fair dismissal code • The code requires that the employer provides 1 verbal or written warning and provides the employees with a reasonable opportunity to improve (basic ‘procedural fairness’). • Can also summarily dismiss where the employer reasonably believes that the employee’s misconduct is sufficiently serious • Summary dismissal will be lawful in cases of theft, fraud, violence and serious OHS breach

  14. Unfair Dismissal - Penalties • Reinstatement is the primary remedy • FWA can order compensation up to 6 months pay or $50000 • Process is streamlined

  15. Dismissal – What do you do? • Only dismiss people for valid reasons (summary dismissal, fair dismissal, or genuine redundancy) • Comply with consultative process • Comply with the SBFD code • Train managers • Assess policies • Be aware of the changes

  16. National Employment Standards • 10 minimum conditions for all employees • Replaces the Australian Fair Pay and Conditions Standard • The NES is the bedrock ‘safety net’, you can’t go below it

  17. National Employment Standards • Hours of work • Parental leave • Flexible work for parents • Annual leave • Personal leave and Compassionate leave • Community service leave (including jury service) • Public holidays • Information in the workplace • Notice of termination and redundancy • Long Service Leave

  18. Modern Awards • SACS, CASH and other federal Awards are being replaced with ‘modern awards’ • Modern awards take effect from 1 January 2010 • Do not cover ‘high income’ employees (>$100k base) • Do not cover employees on an enterprise agreement

  19. What happens to SACS? • AIRC will deliberate on SACS replacement later this year. • Deliberations will be finalised on 4 December • SACS will cease to apply from 1 January, new modern award will take effect • The modern award will be ‘national’, but can have 5 years of State differences • Allowances, penalties, hours arrangements, etc will all change

  20. Wages in Modern Awards • The SACS pay scale (& other award scales) will cease to apply • Modern awards will contain minimum wages and classification rates

  21. Individual Flexibility • Can’t make AWAs • Can ‘contract out’ of awards in a limited way, must be better-off overall • Wages can’t dip below the award

  22. Collective Bargaining • Central feature of the new system • Union is default bargaining representative • ‘Good-faith’ bargaining introduced • Requirement to bargain where there’s majority support • “Better Off Overall Test” introduced, applies from 1 July

  23. Good Faith Bargaining • Obliged to: • Attend and participate in meetings • Disclose relevant information • Respond to proposals • Give genuine consideration to proposals • Not obliged to make concessions, reach agreement, etc.

  24. Low Paid Bargaining Stream • Can’t generally have ‘pattern’ bargains • Exception for specific low paid industries/occupations • Union can apply to have a low-paid industry declaration from FWA • This can then allow multi-employer bargains • Is likely to happen to some degree in the NFP sector

  25. Union Right of Entry • New right of entry regulations allow greater union access to employees and records • Unions can enter where they suspect a breach, or to talk with employees • Need not be union members, merely ‘covered’ • Can enter award/agreement-free workplaces

  26. Union Right of Entry • Make sure your records are in order • Make sure you’re complying with the award/agreement, NES, OHS regulations and other requirements • Keep records in a ‘compliant manner’

  27. Other changes • ‘General protections’ • Transfer of business changes • Statutory redundancy pay minima

  28. Questions?

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