Introduction of the Fair Work Bill 2008 December 6, 2008

1. A new national safety net comprised:
o 10 National Employment Standards (38 hour standard week and no unreasonable overtime; parental, annual, personal, long service, and community leave; flexible work for parents; notice and redundancy pay; public holidays; and information on hiring) applicable to all employees regardless of their occupation, industry or level of seniority; and
o Modern awards that cover most (but not all) matters that have been traditionally regulated by awards in both the federal and State systems; and
o minimum wages for award free employees, set by FWA.
The laws guarantee that safety net will be regularly reviewed to ensure minimum wages and conditions are maintained and adjusted over time and adjusted having regard to economic factors, living standards and the needs of the low paid.
2. The restoration of unfair dismissal rights to employees denied them under WorkChoices, and the extension of unfair dismissal rights to other groups of employees, subject to employees having served either a 6 or 12 month qualifying period. FWA can look at the circumstances of the dismissal, including where the employer claims the dismissal was for operational reasons. In businesses employing fewer than 15 employees FWA will enquire whether the employer has complied with a new unfair dismissal code;
3. New rules regarding agreements and bargaining. The key features are:
o There will be collective agreements that cannot undercut the national employment standards and must ensure every employee covered by the agreement is better off overall that they would be on the award. There will be no new statutory individual contracts, although the phase-out rules allow existing AWAs to remain operative until replaced with a new agreement, even if they provide for conditions that do not meet the “better off overall test”. A union with a member can be bound by an agreement.
o Bargaining must occur in good faith. FWA can resolve disputes about the scope of agreements (ie who should be covered) and whether the majority of employees support bargaining for an agreement. FWA can make such orders as a necessary to ensure good faith bargaining occurs.
o Parties can bargain about a broader range of matters than under any previous laws, including matters that relate to the employer’s relationship with the employees or with a union that will be covered by the agreement, or about payroll deductions. Agreements must contain a disputes clause that provides for an independent party to settle a dispute, although the mechanism to resolve the dispute is left to the parties. There will still be restrictions on unlawful content. While the laws retain the existing uncertainty about whether a matter “pertains” to the employment relationship, FWA will not supervise this and agreements can be validly made that include (unenforceable) clauses about matters that do not pertain.
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o FWA can facilitate multi employer bargaining for low paid employees. This includes requiring the employers, or other parties such as head contractors, who determine the employment arrangements of low paid employees to participate in multi employer bargaining. As a last resort, FWA can arbitrate wage claims in this stream.
o FWA can settle bargaining disputes where a party persistently breaches good faith orders, where low paid bargaining has failed or where harmful industrial action is occurring.
o There have been limited changes to the rules relating to industrial action, which can only be protected during bargaining, and only if authorized by a secret ballot. Secret ballots can be conducted prior to the expiry of the current agreement; and the acting in concert provisions have been removed. Pattern bargaining remains unprotected, but genuine bargaining at each enterprise for common claims is not pattern bargaining. Strike pay remains unlawful. Where the strike is unprotected employers must dock a minimum of four hours pay, where protected employers need only dock for the period of the stoppage.
4. New rights to be consulted and represented at work, and new protections against unfair treatment. Employees have a right to be represented and it will be unlawful to disadvantage an employee because they seek to be represented, to join a union, or are active in their union. Awards will provide for consultation and representation at work, and workplace agreements must provide for consultation and representation at work. Employees will have better access to advice at work as union right of entry cannot be overridden, unions regain the right to inspect non-member records to ensure the laws are not being breached and there are some new rules to prevent employers frustrating union entry
5. The establishment of a new independent industrial tribunal Fair Work Australia. FWA will: set and adjust minimum wages and awards; supervise good faith bargaining and industrial action; make workplace determinations in certain circumstances where bargaining fails; determine unfair dismissal claims and disputes regarding right of entry, stand down and transfer of business; and deal with grievances through mediation, or with the consent of the parties, through arbitration.
The new Fair Work Divisions of the Federal Court and Federal Magistrates Court will be given new powers to deal, in an informal manner, with breaches of awards, agreements and than national employment standards.