Employment law changes being "fast-forwarded"
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Some of the Government’s Forward with Fairness amendments to the Workplace Relations Act 1996 (Cth) (“the Act”), scheduled to take effect from 1 January 2010, have been brought forward ......
amidst criticism that the Government is not acting fast enough to tear down Work Choices.
Fair Work Australia
There are currently seven government agencies in the workplace relations system. It is intended that by 1 January 2010, these agencies will be replaced by Fair Work Australia - a “one-stop-shop” to be granted supreme investigative and arbitral power.
Fair Work Australia will move away from adversarial and legalistic processes in favour of less formal, user friendly processes and services.
The Substantive Bill
The bulk of the Government’s reforms are outlined in the Substantive Bill (“the Bill”). The reforms relating to enterprise agreements and unfair dismissal (set out below) are to take effect from 1 July 2009. The remaining changes including the new National Employment Standards and the modern award system are set to commence on 1 January 2010.
Enterprise agreements
The proposed reforms will enable employers and employees to bargain over a wider range of matters in relation to enterprise agreements than are currently permitted under the Act.
Similar to the current system, enterprise agreements will need to be approved by Fair Work Australia before commencing operation. Fair Work Australia will apply the “Better Off Overall Test” (yet another name for the no-disadvantage test) to ensure each employee covered by the agreement is better off overall in comparison to the relevant modern award.
Unfair dismissal and the fair dismissal code
The Government is proposing substantial changes to the unfair dismissal system, including new special arrangements for small businesses. The proposed special arrangements for small businesses, which are those with fewer than 15 employees, include:
- lengthening the statutory qualifying period from 6 to 12 months, during which time employees cannot make an unfair dismissal claim; and
- the creation of a fair dismissal code which, if followed by small business employers, will ensure a dismissal is not unfair.
Under the fair dismissal code, multiple warnings will not be required and if a warning is to be issued, it is desirable for it to be in writing. A single warning and a reasonable opportunity for the employee to rectify the problem before the employee is dismissed will satisfy the code.
The code does not abrogate employers’ common law rights to summarily dismiss employees for serious misconduct.
Larger employers, with more than 15 employees, will not be able to rely on the code and their employees will be entitled to make an unfair dismissal claim if they have been employed by the employer for more than 6 months.
Conclusion
Due to increasing pressure to abolish Work Choices, the Government has scheduled the abovementioned reforms to commence on 1 July 2009.
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