Facts you should know

General Framework

• The Fair Work Act 2009 (FWA) commenced on 1 July 2009.
• The FWA applies as a national system of Industrial Relations regulating employment of all Australian workers, with some exclusions.
• The FWA overrides State Laws on Industrial Relations where the State Law is inconsistent with the FWA.
• The Fair Work Australia and the Fair Work Ombudsman will administer the regulations under the FWA.

Minimum Standards to apply nationally

The FWA contemplates minimum employment standards which are enshrined in legislation applying to all workers:

• Maximum weekly hours of work
• Ability to request flexible working arrangements
• Parental leave and related entitlements
• Annual leave
• Personal/carers leave and compassionate leave
• Long service leave
• Public holidays
• Notice of termination/redundancy pay
• Fair Work Information Statement

Unfair Dismissals

A number of issues will be considered when determining whether unfair dismissals are harsh, unjust or unreasonable. They are:

• A claim for unfair dismissal can be dismissed if it is a genuine redundancy where the person and the job is no longer required.
• A claim can be lodged against an employer regardless of the size of the business as long as they have completed a minimum employment period.
• Minimum employment period is six months for large businesses (over 15 employees) and 12 months for small businesses (less than 15 employees).
• High income earners (over $108,000) are not covered by the FWA.

Employee v Employer Bargaining

• Awards will be negotiated between representatives of employers and employees.
• There is no distinction between union and non union members.
• If either party does not wish to bargain or negotiate, FWA can intervene.

Any agreement reached between employer and employee must be approved by the FWA.

What protection are employees entitled to?

• FWA introduces the concept of "workplace rights", broadly giving the right exercise and enforce employment entitlement.
• Prohibits the taking of "adverse action" against a person because they choose to or not choose to exercise workplace rights.
• There is a right for employees not to be a member of a union.
• Coercion and misrepresentation in relation to workplace rights are prohibited.
• Protection from workplace discrimination on the grounds of race, colour, sex, sexual preference, age, disability, marital status, pregnancy, family or carers responsibilities, religion, political opinion, national extraction or social origin.

The above article is a short summary of issues that may affect you under the new regime of the FWA. You should not take this to be a comprehensive analysis of the legislation. Should you require any further information, please do not hesitate to contact Anil Herat.