Power Point Presentation Fair Work Act Aug 2009

THE FAIR WORK ACT (CTH) 2009

Overview

• Received Royal Assent 7 April 2009

• Substantial provisions commenced

1 July 2009

• Remaining provisions commence

1 January 2010

Objects of the Act

• To provide workplace laws that are fair, flexible and promote productivity and economic growth

• To ensure fair relevant, enforceable minimum terms and conditions

• Ensure that this fairness of conditions cannot be undermined by individual agreements

• Assist employees to balance their work and family life

• Enable fairness and representation at work and to prevent discrimination

• Achieve productivity through fairness

Navigating the Act

Terms and conditions of employment – Chapter 2

• National Employment Standards – minimum standards that apply to all national system employees

• Modern Awards – is made for a particular industry or occupation and details the minimum terms and conditions for those employees

• Enterprise Agreements – provides terms and conditions of employment for those national system employees to whom it applies

• Workplace determinations – provides terms and conditions for national system employees to whom it applies

• Provides for the transfer of terms and conditions between national system employees

Navigating the Act (cont’d)

Right and responsibilities of employees, employers and other organisationsChapter 3

• Provides general workplace protection

• Deals with unfair dismissal and the granting of remedies (Part 3-2)

• Rights of officials of organisations

• Standing down employees without pay in certain circumstances

• Deals with the rights and responsibilities in relation to termination (Part 3 – 6)


Compliance and enforcement – Chapter 4• Is about civil remedies and orders a court can make

Administration – Chapter 5• Establishes Fair Work Australia and the Office of the Fair Work Ombudsman

Miscellaneous provisions – Chapter 6• Deals with disputes between National System employees and employers under

modern awards, enterprise agreements and contracts of employment (Part 6-2)• Extends National Employment Standards relating to unpaid parental leave and notice

of termination (Part 6-3)


The dictionary of terms and conditions – Chapter 1 Part 1, Division 2

National System Employer – defined Chapter 1, Part 1, Div 3 – section 14

National System Employee – defined Chapter 1, Part 1, Div 3 – section 13

Other definitions are contained in Division 4

• Other definitions include base rate of pay, full rate of pay, ordinary hours of work, service and continuous service and small business employer (see section 23)

Application of Act

General

• The Act applies to national system employees and national system employers

• National System Employee is a person employed by a National System Employer

• National System Employer is: A company that employs or usually employs individuals The Commonwealth A Commonwealth authority Persons who employ or usually employ

a flight crew officer or a maritime employee ora waterside worker

Are a couple of other entities referred to in the Act

• Other relevant definitions

Application of Act (cont’d)General (cont’d)

• Small Business Employer – section 23

An employer who at a particular time employs fewer than 15 people

Casual employees employed by the employer on a regular and systematic basis.

Associated entities are also taken to be one entity .

In the case of a dismissal or termination you include in the count the employees that are being dismissed and those being terminated.

• Award/Agreement Free Employee – section 12

A national system employee to whom neither a modern award or an enterprise agreements applies

Application of Act (cont’d)

Interaction of Modern Awards and Enterprise Agreements with State Laws• Modern Awards or enterprise agreements prevail over a law of the state to

the extent of any inconsistency• State Anti Discrimination laws still apply to Modern Awards and Enterprise

Awards

Interaction with State Laws• The Act applies to the exclusion of state industrial laws in so far as they

apply to National System Employees• However state laws that relate to Superannuation, WC, WPHS, Training,

Long Service leave Victims of Crime and Anti discrimination still apply

Geographical Application of the Act• There are specific provisions in Division 3 that cover the geographical

application of the Act – see sections 31-36

Miscellaneous• There are specific provisions that apply to Public Sector Employees

Termination of Employment By Notice

Notice/Payment in lieu

• An employer can terminate an employee• Must give written notice – s 117• Notice is given by delivering it personally, leaving it at the employees last

known address or sending it by pre-paid post to the employees last known address (s 28A and s 29 of the Acts Interpretation Act 1901 (Cth)

• Employer can pay the employee in lieu of notice • Minimum Notice

Employees period of continuous service Period

Not more than 1 year 1 week

More than 1 year but not more than 3 years 2 weeks

More than 3 years but not more than 5 years 3 weeks

More than 5 years 4 weeks

Chapter 2 Part 2 Div 11

Termination of Employment By Notice

Notice/Payment in lieu (cont’d)

• Period of notice must be increased by one week if the employee is over 45 years and has completed 2 years of service

These provisions do not apply to:

• Daily hire employees in the building and construction industry

• Daily hire employees in the meat industry

• Weekly hire employees working in connection with the meat industry

• Employee described by regulation

Termination of Employment Redundancy

Redundancy Pay

• Redundancy pay is payable if the termination is:

At the employers initiative because the employer no longer requires the job to be done by anyone, except where this is due to the ordinary and customary turnover of labour or

Because of insolvency or bankruptcy of the employer


Redundancy Pay (cont’d)• Amount of redundancy pay

Period of continuous service Redundancy period

At least 1 year but less than 2 years 4 weeks

At least 2 years but less than 3 years 6 weeks








At least 10 years 12 weeks


Redundancy Pay (cont’d)

• If an employee is entitled to redundancy and the employer either obtains other acceptable employment for the employee or cannot pay, then the FWA can reduce the amount of redundancy pay – can be NIL

• The employer must apply to FWA• Provisions do not apply to employees with less than 12 months continuous service

and small business employers

These provisions do not apply to:

• Apprentices• Other employees who are subject to specific redundancy schemes (See s123(4) for

the full terms

Termination of Employment Notice & Redundancy

Division 11 Notice/Payment in lieu and redundancy DO NOT apply to:

• Employees employed for a specified period of time, for a specific tasks or for the duration of a specific season

• Employees dismissed for serious misconduct

• Casual employees

• Employees to whom a training arrangement applies and whose employment is for a specified time, or is for any reason limited to the duration of the training arrangement (other than an apprentice)

• Employees listed in the regulations

• If the substantial reason for employing the employee is to avoid these provisions then the division will apply

Fair Work Statements

• Must be given by the employer to each new employee as soon as practicable after the employee starts employment

• Only 1 statement is required during a 12 month period

•Statements are prepared by the Fair Work Ombudsman and are gazetted

Rights and Responsibilities of Employees, Employers, Organisations and General Protection

Chapter 3

Objects• To protect workplace rights• To protect freedom of association• To provide protections from workplace discrimination• To provide effective relief for persons how have been discriminated against,

victimised or adversely affected as a result of a contraventions of the Act.

Application • Referred to in section 338• Provision apply to a actions by or against a constitutionally covered entity• Means basically a company, the Commonwealth , Commonwealth authority• Review fully the provisions of s 338

Chapter 3 – (cont’d)Workplace rights – Division 3

• Employees and prospective employees have workplace rights

• A workplace right is defined in s 341 • As an employer you cannot take adverse action against another person because

he/she has a workplace right, or has not exercised a workplace right or proposes to exercise or not exercise a workplace right

• Meaning of Adverse Action s 342 – includes action between: Employer v Employee Prospective Employer v Prospective Employee Principal Contractor v Other contractor or employee of other contractor Employee v Employer Industrial Association v Person, employer, contractor

• Adverse action includes a threat to take such action and organising such action• Act also prevents an employer from coercing or placing undue influence on an employee or

third person, or from misrepresenting knowingly, recklessly or falsely the workplace rights of a person.

Chapter 3 – (cont’d)

Industrial Activities - Division 4

• Person cannot take adverse action against another who engages in industrial activity

• Engages in industrial activity is defined S. 347

• Again a person cannot coerce another to take part in industrial activity

• Cannot misrepresent, knowingly, falsely or recklessly a person’s obligation not to engage in an industrial activity or their obligation to disclose whether they are an officer or member of or engaged/not engaged in an industrial activity.

• Establishing or being involved in, representing the views of, being a member of a union/similar organisation etc

Membership action

• Employer cannot induce an employee to take membership action


Discrimination - Division 5

• Employer cannot take adverse action against and employee or prospective employee because of the person’s:

Race, colour Sex, sexual preferences Age, physical or mental disability Marital status, family or carers responsibilities, pregnancy Religion, political opinion National extraction or social origin

• Such action is not prohibited if (s351):

it is authorised by anti discrimination law of the state or It is taken because of the inherent requirements of the particular position or The action is against a staff member of a religious organisation

Discrimination - Division 5

• Employee can make complaint to FWO

• FWO will consider if:

Discrimination happened after 1 July 2009 Employees eligibility to make a complaint Or if the complaint is lodged on behalf of a group FWO will appoint an investigator to investigate the complaint Will be discussed more next seminar



Other prohibited action

• Cannot dismiss an employee for temporary illness prescribed by regulation

• Cannot organise or take, or threaten to organise or take action against a person to coerce them or a third person to

Employ or not employ Engage or not engage a contractor Allocate or not allocate duties or responsibilities to an employee or contractor Designate a particular employee or independent contractor as having or not

having particular duties or responsibilities

See S 355


Contracts for the provision of services

• Independent Contractor arrangements S 359

• Employers cannot misrepresent that a contract of employment is an independent contract arrangement, unless the employer can show at the time the contract was made the employer:

did not know and was not reckless

• Employer cannot dismiss an employee and then re-engage them as independent contractor to perform substantially the same work

• Employer cannot make a statement to induce the employee to enter into an independent contract to perform substantially the same work.


Reversal of the onus of proof – s.361

• If it alleged that a person took or is taking some action for a particular reason or particular intent and taking the action does contravene Part 3, then it is presumed that the action is being taken for that particular reason or with that intent

• It is for the other person against whom the action is alleged to prove otherwise

• Ramifications for discrimination matters


S. 355 APPLICATION to FWA - If Employee is Dismissed

Who can Apply

• Applies to persons who are dismissed under Part 3-1 of Chapter 3

• Persons dismissed because he/she:• has a workplace right, or • has been involved in an industrial activity, or • because of membership or • because of discrimination• Remember once the action is alleged to have occurred for a particular reason

then that is the presumption and it is for the employer to prove otherwise• The dismissed employee or an industrial association entitled to represent the

employee can apply

Chapter 3 – (cont’d)S. 355 APPLICATION to FWA - If Employee is Dismissed (cont’d)

Time For Applying• Within 60 days after the dismissal took effect• FWA can extend – S. 366 • Must pay application fee

Conference• FWA Must conduct a conference – conciliation or mediation• Must be in private• If reasonable attempts have been made to settle and not successful then a Certificate

is issued – S. 369 Certificate• FWA must that comment on poor prospects

General Protections Court Application• If matter is unresolved at the conference then an application can be made to a court –

called a General Protections Court Application• General Protections Court Application must be made within 14 days of receiving the

S. 369 Certificate• Cannot be made unless certificate is issued • Cannot apply for injunctive relief either unless S 365 is complied with


S. 372 Application to FWA - Other than Dismissal

• S. 372 applies if a person alleges a contravention of Chapter 3 Part 3 – 1 and no entitlement to apply to FWA under S. 365

• Apply to FWA to deal with the dispute• Must pay application fee• If the parties request then a conference must be held• FWA must advise at the conference of poor prospects of success after taking into

account the material


Conference costs against lawyer or paid representative – s.376

• Applies to an application made under S. 365 or S. 372

• If FWA is satisfied that:• a lawyer or paid agent caused costs to be incurred by another party • because the lawyer or paid agent encouraged the person to make the

application and• it should have been reasonably apparent the application had no prospect of

success or • the Costs were incurred because of an unreasonable act or omission by the

lawyer or paid agent in connection with the conduct or continuation of the dispute

then the FWA can order costs against the lawyer or the paid agent.

• Must apply within 14 days after the FWA finishes dealing with the dispute

Unfair dismissal – Chapter 3 Part 3-2

Objects - s. 381

• Establish a frame work to deal with unfair dismissal

• That balances the needs of business and employees

• Establish procedures that are quick, flexible and informal

• Provide remedies that emphasise re instatement

• Gives a Fair go all round

Unfair dismissal – Chapter 3 Part 3-2 (cont’d)Application

Applies to Unfair Dismissals

Minimum Period of employment

• Must have completed period of employment that is the minimum period of employment

• if not a small business employer - 6 months ending the earlier of • the time of notice of dismissal or• immediately before the dismissal S. 383(i)

• If small business employer – 1 year ending at that time

• The employment must be continuous employment

• Applies to casual employees only if they the employee• Was employed on a regular and systematic basis and • Had a reasonable expectation of the employment continuing

Unfair dismissal – Chapter 3 Part 3-2 (cont’d)

Application (cont’d)

Modern award or enterprise agreement or earns less than income threshold

• Employee must either be:• Covered by a modern award or• Enterprise Agreement applies or• The annual rate of earnings is less than the high income threshold

Unfair Dismissals S.385

• A person is unfairly dismissed if FWA is satisfied of 4 facts:• Person has been dismissed• Dismissal was harsh, unjust or unreasonable and• Dismissal was not consistent with the Small Business Fair Dismissal Code and• The dismissal was not a genuine redundancy



Dismissal – occurs if:

• Employment is terminated on the employers initiative or• Person resigns because of conduct engaged in by employer S. 386(1)

Not dismissed if:

• The person is engaged under a contract for a specified period, for a specified task or for a season and it reaches the end of the period

• The person is engaged under an training arrangement for a specified time and employment ends at the end of the arrangement

• Person is demoted, but only if the demotion does not involve a significant reduction in remuneration or duties and the person remains employed by the employer who demoted the person S 386(2)

• S. 386(2) does not apply if the substantial purpose of the employment is to avoid the employer’s obligations under this part



Criteria for Harshness:

• FWA must take into account:

If there was a valid reason If person was notified of that reason Opportunity to respond Any un reasonable refusal by employer to allow a support person If dismissal is because of performance – any warnings about unsatisfactory

performance Impact on employers procedures in effecting the dismissal The degree to which the absence of a dedicated HR specialist in the business

would impact on the procedures followed Any other relevant matters

Unfair dismissal – Chapter 3 Part 3-2 (cont’d)Application (cont’d)

Small Business Fair Dismissal Code• Small business are required to comply with the Small Business Fair Dismissal Code

Genuine Redundancy• Defined in S. 389(1)• Employer no longer requires any person’s job to be performed by anyone because of

changes in the operational requirements of the employer and• Employer has complied with the modern award or Enterprise Agreements

Non Genuine Redundancy• Occurs if it would have been reasonable in all the circumstances for the person to be

redeployed within the enterprise or an associated entity – S. 389(2)

Remedies for Unfair Dismissal• FWA can order:

Reinstatement or compensation

• Order can only be made if person applies under S. 394• Compensation is ONLY payable if reinstatement is inappropriate and FWA considers

that compensation is appropriate in all the circumstances.



Reinstatement - S. 391

• A reinstatement order requires that the person be reappointed to the position held immediately before the dismissal or

• Appointing the person to another position on terms and conditions that are no less favourable than those immediately before the dismissal

• If the position is no longer available with the employer at the time then can look to an associated entity

• An order for reinstatement can include any order the FWA considers appropriate: to maintain continuity of employment To account for lost remuneration

• If the order includes an order for lost remuneration then FWA must take into account Any remuneration earned between date of dismissal and the date of making the

order for reinstatement and Any remuneration the person was likely to receive between making the order for

reinstatement and the actual reinstatement S. 391(4)


Compensation

• Persons employer at the time of dismissal can be ordered to pay compensation• FWA must consider when making an order for compensation:

The effect on the viability of the employers business Length of service Remuneration employee would have received if not dismissed Mitigation of loss Remuneration earned from employment between date of dismissal date of order

for compensation Income that could be reasonably earned between date of making order for

compensation and date of actual compensation Any other matter

• Amount of compensation can be reduced because of misconduct• Compensation must NOT include a component for compensation for shock, distress,

humiliation or hurt caused because of dismissal.• Cap on compensation – S. 392(6) – the lesser of 26 weeks wages and half the

amount of high income threshold immediately before the dismissal.• Payment of compensation by instalments is allowed S. 393.


Application

• Apply to FWA

• Must be made within 14 days after dismissal took effect

• Time can be extended in exceptional circumstances. FWA to consider: Reasons for delay Whether person became aware of dismissal after it took effect Action to dispute the dismissal Prejudice to the employer Merits of the application Fairness

• Pay application fee


Upon Receipt of Application

• FWA must decide these matters before considering the merits of the application:

If the application was made within time Whether the person was protected from unfair dismissal Whether the dismissal was consistent with the Small Business Fair Dismissal

Code

Conference

• FWA must hold conference or hearing • Must be held in private• Must consider the difference in circumstances of the parties• Must consider the wishes of the parties as to the way the FWA considers the

application and informs itself of the application• S. 398


Hearing

• Only held if the FWA consider it appropriate after considering the Views of the parties and Cost effectiveness[WU1]

• Hearing can relate only to part/s of the matter• FWA can decide at any time before, during or after the conference to hold a hearing • S. 399

Appeal

• FWA must NOT give permission for an appeal unless it is in the Public Interest to do so

• If the appeal is on a question of fact, can only be made on the ground that there was a significant error of fact

• S. 400


Costs Orders against Lawyers and Paid Representatives

• Costs orders can be made against lawyers and paid representatives

• If they encourage the person to start or continue the matter and reasonably apparent that it had no reasonable prospects of success

• Schedule of costs applies

• Security for costs can apply if procedural rules provide for this

• S. 401



Small Business Fair Dismissal Code

• Applies to small business who employ less than 15 employees

• Up until 1.01.2011 – is calculated using the ordinary hours worked by all employees over the 4 weeks immediately before the dismissal, include casual employees, then deduct any leave that is taken that relates to birth of a child/placement of an adopted child and divide by 152

• From 01.01.2011 – is a basic head count

• Applies to full time, part time and long term casual employees

• The Code distinguishes between summary dismissal and other dismissal



• Summary Dismissal

Can dismiss and employee without warning if there is a reasonable belief or serious misconduct

Serious misconduct includes theft, fraud, violence and serious breach of OHS procedures

In the case of theft and violence, it is not necessary that this be reported to the police

Employer must have reasonable grounds for making the report


• Non Summary Dismissal

Employer must give employee a valid reason based on conduct or capacity that they are at risk of being dismissed

Must warn the employee verbally or in writing that they are at risk of being dismissed

If there is no improvement then give employee an opportunity to respond to warning

Must give employee a reasonable opportunity to rectify the problem having regard to the employees responsibilities

Employee can have someone present during discussions – cannot be lawyer or a paid representative

Rectification can include conducting training, ensuring the employees knows what the employers expectations are

Employer should keep evidence that they have complied with the code Warning can be verbal, but highly recommend this be in writing Keep records of discussions with employee

THE FAIR WORK ACT (CTH) 2009

Any Questions?

Sajen legal has the necessary skills, expertise and capacity to provide you with trade mark and other legal services in a responsive and cost effective manner.

We welcome the opportunity to talk further about your commercial legal needs.

Contact Details

Tony [email protected]

PO Box 185, Maroochydore QLD 4558

T: 5458 9999F: 5458 9988 www.sajenlegal.com.au

Sajen legal has the necessary skills, expertise and capacity to provide you with legal services in a responsive

and cost effective manner.

We welcome the opportunity to talk further about your legal needs.

Contact Details:

PO Box 185, Maroochydore QLD 4558

T: 5458 9999F: 5458 9988

[email protected]

Documents

Power Point Presentation Fair Work Act Aug 2009