Post on 23-Dec-2015
transcript
Professor Andrew StewartUniversity of Adelaide & Piper Alderman
8th Annual Workforce ConferenceMelbourne, 22 September 2009
The Fair Work safety netA two part ‘safety net’ of minimum
conditions under the Fair Work Act 2009, to commence on 1 January 2010National Employment Standards (NES) for all
national system employees (Pt 2-2)standardised and simplified ‘modern awards’
for most such employees (Pt 2-3) currently being created by AIRC under WR Act 1996 Pt
10A, continued in effect by TPCA Act (Fair Work (Transitional Provisions and Consequential Amendments) Act 2009) Sch 5
The Fair Work safety netPlus national minimum wage orders
for award-free workers to be set by FWA Minimum Wage Panel
under FW Act Pt 2-6first annual wage review in 2010, to
take effect on 1 Julyby 1 July 2011, there must be a
minimum wage for juniors and traineesTPCA Act Sch 9 cl 4
Transitional arrangementsAustralian Fair Pay Conditions Standard
in Part 7 of Workplace Relations Act 1996 continues until end of 2009TPCA Act Sch 4 cl 2
Minimum wages set under Part 7 Div 2 continue into 2010 and beyond, until displaced by modern awards or NMWOsTPCA Act Sch 9 cl 5
Transitional arrangementsUntil modern awards take effect,
‘award-based transitional instruments’ can continue (TPCA Act Sch 3)ie, pre-reform federal awards, NAPSAs
Query arrangements for State reference employers outside Victoriapresumably to be revealed in
forthcoming amendments to FW Act
Preparing for the NESAffected employers need to review
existing employment arrangements and ensure NES compliance by 1 January 2010applies to all employees, including
executivesunlike AFPCS, no exemption where old
agreements deal with matters covered by NES
Preparing for the NESKey new entitlements/obligations
right to request flexible working arrangementsparents eligible if they have children below
school age or with a disabilityrefusal by employer can be disputed, but
only if employer has agreedextended (unpaid) parental leave
if refused, agreed dispute resolution only
Preparing for the NESKey new entitlements/obligations
(cont’d)cashing out annual leavedirecting when annual leave is takenunpaid compassionate leave for casualscommunity service leave
voluntary emergency management activities
jury service
Preparing for the NESKey new entitlements/obligations
(cont’d)redundancy pay
based on 2004 federal award standardsusual exceptions for casuals, fixed term
contracts, etcFair Work Information Statement
new employees only
Accrued entitlements‘Service’ defined in FW Act s 22General rules for pre-NES service
(TPCA Act Sch 4 cl 5)service with an employer before 1
January 2010 generally counts towards NES entitlements
but where employee has already had the benefit of an entitlement, they cannot ‘double count’
Accrued entitlementsSpecial rules
employee carries over whatever annual leave or paid personal/carer’s leave entitlements they have accrued before NES (TPCA Act Sch 4 cl 6) but if leave taken after 1 January 2010, NES rules apply
(eg as to cashing out, notification, etc)
for redundancy pay, pre-NES service counted only if employee had some entitlement as of 31 December 2009 (TPCA Act Sch 4 cl 5) including under an award, agreement or employment
contract
Award modernisationThe challenge for the AIRC
review around 1700 awards/NAPSAs that apply to more than one business
standardise and simplify, to reduce number of awards and eliminate State/Territory-based differences in wages and conditions
avoid disadvantaging employees or increasing costs for business
complete process by end of 2009
Award modernisationProgress to date
93 awards either ‘finalised’ or issued in exposure draft, for Stages 1 to 3
30 more industries/occupations still to be dealt with in Stage 4, plus ‘miscellaneous’ awardnote challenge of framing coverage of
miscellaneous awardon track for 2010 start, but ongoing
adjustments can be expectedplus review after first 2 years (TPCA Act Sch 5 cl
6)
Transitional arrangementsModel/default transitional provisions
announced in [2009] AIRCFB 800 (2 September 2009)
Some awards will have different arrangements, or move to modern award conditions immediately
Transitional arrangementsUnder default arrangements
most modern award provisions commence on 1 January 2010
but for minimum wage rates, loadings and penalty ratessix month ‘grace period’phasing up or down of each rate or loading in 5
instalments from 1 July 2010, where significant discrepancy with transitional instrument
Transitional arrangementsTwo big queries about default provisions
no reductions in take-home pay supplements protection offered by TPCA Act
Sch 5 Pt 3 but is the protection automatic, or only on
application to FWA?
how they apply to new businesses commencing after 1 January 2010 commencing between 27 March 2009 and 1
January 2010
Enterprise awardsExcluded from current modernisation
processNo new enterprise awards from now on
(except in Victorian public sector)Parties can ask FWA to modernise
existing enterprise awards (TPCA Act *)unmodernised awards to expire at end of 2013FWA’s discretionto modernise or not to modernise?
Award modernisationAn assessment of the process
The inevitable problems (and complaints) when standardising and simplifying
Government intervention – help or hindrance?
An encouragement to make enterprise agreements?
Is it worth the pain?