Fair Work Act 2009 - what does it mean for you?A new set of fairer IR laws was signed into law on April 7, 2009.
One of the most important aspects of the FWA is the establishment of National Employment Standards.
The NES are set out in the FWA and comprise 10 minimum standards of employment. In summary, the NES involve the following minimum entitlements:
What are the NES?
- Maximum weekly hours of work – 38 hours per week, plus reasonable additional hours.
- Requests for flexible working arrangements – allows parents or carers of a child under school age or of a child under 18 with a disability, to request a change in working arrangements to assist with the child’s care.
- Parental leave and related entitlements – up to 12 months unpaid leave for every employee, plus a right to request an additional 12 months unpaid leave, plus other forms of maternity, paternity and adoption related leave.
- Annual leave – 4 weeks paid leave per year, plus an additional week for certain shift workers.
- Personal / carer’s leave and compassionate leave – 10 days paid personal / carer’s leave, two days unpaid carer’s leave as required, and two days compassionate leave (unpaid for casuals) as required.
- Community service leave – unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to 10 days for jury service.
- Long service leave – a transitional entitlement for certain employees who had certain LSL entitlements before 1/1/10 pending the development of a uniform national long service leave standard.
- Public holidays – a paid day off on a public holiday, except where reasonably requested to work.
- Notice of termination and redundancy pay – up to 4 weeks notice of termination (5 weeks if the employee is over 45 and has at least 2 years of continuous service) and up to 16 weeks redundancy pay, both based on length of service.
- Provision of a Fair Work Information Statement – employers must provide this statement to all new employees. It contains information about the NES, modern awards, agreement-making, the right to freedom of association, termination of employment, individual flexibility arrangements, rights of entry, transfer of business, and the respective roles of Fair Work Australia and the Fair Work Ombudsman.
The FWA also establishes modern and consolidated awards, updating basic conditions. There are 6 main awards that are relevant to the transport industry. An award will not apply to an employee where there is an enterprise agreement that applies to the employees. Modern awards commenced on 1 January 2010. The Better Off Overall Test (BOOT) also commenced on 1 January 2010 and tests new agreements against modern awards to ensure that workers are not worse off.
Bargaining for enterprise agreements has also changed under the FWA. The distinction between union and non-union agreements has been removed.
There are 3 types of agreements:
- Single enterprise agreement
- Multi-enterprise agreement
- Greenfields agreement
Parties are free to bargain over more matters than they could under WorkChoices. Agreements can include terms that relate to:
- Union training leave
- Union participation in employee inductions
- Paid time off to participate in union activities
- Union participation in consultation meetings or dispute settlement procedures
- Requiring the employer to commence renegotiations of the agreement on a certain date.
There are still some matters that are not allowed in agreements. Non-permitted terms will not be enforceable and can be removed from the agreement by a court.
Employers must recognise and bargain with the union as the employees’ nominated bargaining representative. The Union is the default bargaining representative for workers. The FWA requires that employers and unions must bargain in good faith. If this does not occur, Fair Work Australia can issue and order requiring that the parties meet the good faith bargaining requirements.
Unfair dismissal – all employees are protected from unfair dismissal, provided they have served a qualifying period.
- 12 months for small business (15 employees or less)
- 6 for everyone else
- Systematic casuals are also covered
The exemption from unfair dismissal when sackings occur for “operational reasons” has gone. 3 million more workers are now covered by unfair dismissal protections.
Useful websites for information:
