NDS 2009 Employment Forum and the Workability International Conference Industrial Relations: The new world

1. NDS 2009 Employment Forum and the Workability International ConferenceIndustrial Relations: The new world 8 September 2009 207692401_1

2. Things we will cover • Modern awards and NES • Unfair Dismissal • Enterprise bargaining • Workplace rights SLIDE 2

3. 8am, Wednesday 1 July 2009 SLIDE 3

4. Fair Work Act Timeline Currentawards* SLIDE 4

5. Modern Awards and NES SLIDE 5

6. Modern Awards Minimum and modern Classifications – wages Types of employment – full time, casual etc. Work hours, breaks, etc. Overtime and penalty rates Annualised wage arrangements (in some) Allowances Leave and leave loading (but not long service leave) Superannuation Consultation, representation, dispute settlement Flexibility arrangements NES Maximum working hours Request for flexible working arrangements Parental leave Annual leave Personal/carer's leave and compassionate leave Community service leave - emergencies jury service Long service leave Public holidays Notice of termination and redundancy pay Fair Work Information statement Modern Awards and NES SLIDE 6

7. Modern Awards and NES • Award modernisation Full Bench constructing new national framework for industry/calling awards • Excludes enterprise award for the time being – 3 year period of grace to decide to modernise them • Excludes employees not traditionally award covered • Operate as common rule – no union parties • Interact with and build on statutory National Employment Standards • Will form the safety net for BOOT purposes in bargaining • To be operative 1 January 2010 • Can "contract out" with annual guarantee of earnings for ↑$100,000 employees not under an enterprise agreement SLIDE 7

8. Modern Award – process for supported employment services Stage 4 of award modernisation Timeline Pre drafting consultations 14 August Support employment services 25 September Closing date for publication of exposure drafts of Stage 4 modern awards 16 October Closing date for lodging written comments on the exposure drafts of Stage 4 modern awards 26-30 October Full Bench sits in Sydney for final consultations in relation to the exposure drafts of Stage 4 modern awards 4 December Final date for making Stage 4 modern awards SLIDE 8

9. Issues that have arisen to date in award modernisation • Board agreement about there being one award for supported employment services • Broad agreement on the terms of the award • Dispute about: • movement from Grade 1 and Grade 2 in the classification structure • whether there should be a Grade 8 • superannuation provision • drycleaning allowance SLIDE 9

10. The New Bargaining Framework SLIDE 10

11. Bargaining SLIDE 11

12. Types of Enterprise Agreements • No statutory individual agreements • Single-enterprise agreements • greenfields or non-greenfields • Multi-enterprise agreements • greenfield or non-greenfields SLIDE 12

13. Enterprise Bargaining – Content Rules – S172 • EA may be about: • Relationship between employer and employees • Matters pertaining to relationship between employer and employee organisation that will be covered by EA (eg, union training leave, paid leave to attend union business, union involvement in dispute resolution, union right of entry eg, investigate breach of discrimination laws) • Deductions from wages for any purpose authorised by employee (salary sacrifice, union dues) • Other provisions eg, nominal term, individual flexibility agreement, consultation about major workplace changes • Contractor/labour/hire SLIDE 13

14. Enterprise Bargaining • Who is a bargaining representative (BR) for a proposed enterprise agreement – S176 • Employer that will be covered • A person will be a BR of an employee if the employee appoints in writing the person as his or her BR (copy of appointment to be given to employer) • Default position - union is a BR of a member • Union must be entitled to represent industrial interests of employee in respect of the relevant work • Employee may appoint himself/herself as BR SLIDE 14

15. Enterprise Bargaining – Notification time – S173 • Employer agrees to, or initiates, bargaining • A majority support determination in relation to the agreement, comes into operation • A scope order in relation to the agreement, comes into operation – suggests its only available where bargaining has commenced • A low paid authorisation in relation to the agreement that specifies the employer, comes into operation • Then, notice to employees about representation (14 days) SLIDE 15

16. Enterprise Bargaining Content of Notice • Notice must specify/explain that: • employee may appoint a BR to represent employee; and • if employee is union member and union is entitled to represent employee and employee does not appoint another person then union will be the BR of the employee SLIDE 16

17. Enterprise Bargaining – S228 • Good faith bargaining requirements (GFBRs) (BR must meet GFBRs) • Attend and participate in meetings at reasonable times • Disclose relevant information in a timely manner (not confidential or commercially sensitive) • Respond to proposals by other bargaining representatives in a timely manner • Give genuine consideration to proposals of other bargaining representatives and give reasons for responses • Refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining • Recognise and bargain with other BRs SLIDE 17

18. Enterprise Bargaining • Good faith bargaining does not require: • the making of concessions • BR to reach agreement on terms to be included in the agreement • Bargaining orders can't relevantly be made until • employer has agreed to or initiated bargaining • A majority support determination in relation to the agreement is in operation • A scope order in relation to the agreement is in operation SLIDE 18

19. Enterprise Bargaining • During bargaining, FWA can: • make scope orders • make bargaining orders • make serious breach declaration (which can lead to arbitrated workplace determination) • deal with a dispute (but not arbitrate unless BRs agree) SLIDE 19

20. Enterprise Bargaining • What has occurred since 1 July 2009? • The CFMEU is "inviting" employees to bargain SLIDE 20

21. Enterprise Bargaining • or demanding to bargain and setting the ground rules SLIDE 21

22. Enterprise Bargaining • A majority support determination has been made for funeral directors and embalmers SLIDE 22

23. Enterprise Bargaining • Orders for majority support ballots have been made • Cochlear • Tru Energy SLIDE 23

24. Enterprise Bargaining • Bargaining orders have been made to halt ballots at • Queensland Tertiary Admissions Centre Ltd • Abigroup Contractors • Defries Industries Pty Ltd SLIDE 24

25. Enterprise Bargaining • Unions have sought • Cabin crew cost and fatigue data from Virgin Blue • and a myriad of financial information from a building company in NSW SLIDE 25

26. Enterprise Bargaining • EAs – What is envisaged • EA made when majority of employees who cast a valid vote approve the EA • After EA made, a union that was a BR for the EA may give FWA a written notice stating that union wants the EA to cover it (copy to employer) • If an EA made, BR must apply to FWA for approval of EA within 14 days (can be extended) SLIDE 26

27. Enterprise Bargaining • Preconditions for approval • Genuinely agreed to • Meets NES • Passes better off overall test (BOOT) • Group of employees is fairly chosen • No unlawful terms • Contains DSP allowing for representation • Making the agreement is consistent with good faith bargaining • Nominal term – 4 years SLIDE 27

28. Enterprise Bargaining • Operation of agreements • Commence operation 7 days after approval • EA must not exclude NES but may supplement if not detrimental to an employee in any respect • A modern award does not apply to an employee when an EA is in place which applies to the employment • Only one EA can apply to an employee at a time • Individual flexibility terms SLIDE 28

29. Unfair dismissals SLIDE 29

30. Unfair dismissal "You're fired" SLIDE 30

31. Eligibility New minimum employment periods 12 month qualifying period – small business as defined 6 month qualifying period – other business Modern award/EA < $108,300 pa <100 employees exemption SLIDE 31

32. Valid reason Opportunityto respond Other relevant factors Harsh, unjust or unreasonable Supportperson Dedicated HR Size of undertaking Fairness SLIDE 32

33. Redundancy Key change 1 Key change 2 Operational reasons exemption out Consultation obligations Redeployment not reasonable including to associated entity SLIDE 33

34. Conference or hearing if contested facts New unfair dismissal procedure • Very limited • appeal rights Application within 14 days • Jurisdiction to be decided before merits Views of the parties Is a hearing the most effective and efficient way to resolve the matter • Reinstatement primary remedy → including to an associated entity of the employer SLIDE 34

35. General Protections SLIDE 35

36. Adverse action Workplace rights Discrimination Industrial activities Reverse onus SLIDE 36

37. Adverse action Current employees Terminate employment Injure Alter position Discriminate Refuse to employ Different terms and conditions Prospective employees SLIDE 37

38. Workplace law or instrument Workplace law or instrument Complaint or inquiry in relationto employment Benefit/Role/Responsibility Process or proceedings Employer Union ACCC! Contactofficer OHS Role Parental leave absence FWA hearing Protected industrial action Making an IFA Appointing a bargaining representative Workplace rights Click to type text here SLIDE 38

39. Outsourced labour labour costs other reasons Benefit of an industrial instrument Key change 1 WR Act – sole or dominant reason FW Act - direct or proximate reason SLIDE 39

40. Benefit of an industrial instrument Key change 2 Prospective employees Can't employ on condition of IFA Accepting guarantee of annual earnings & refusing to employ in transfer scenario SLIDE 40

41. Union member Not engaging in unlawful activities Advancing views Industrial action Officer/member of industrial association Industrial activities Lawful activities Representation Lawful activities Union discussions SLIDE 41

42. Sexual preference Sex Colour Race Race Opportunityto respond Age Pregnancy Physical or mental disability Discrimination Religion Marital status Political opinion Nationalextraction Family or carer's responsibility Socialstatus SLIDE 42

43. Defences Inherent requirements of the position Commonwealth/state anti-discrimination law permits the action SLIDE 43

44. Key change 1 No direct/indirect distinction • Key change 2 No reasonableness defence SLIDE 44