Business Compliance > March 2009 Update

Workplace Relations Update - March 2009

Since the start of 2009 there has been a drastic deterioration in the Australian economy that is impacting on businesses and workers. In combination with this downturn in the Australian economy, and the uncertainty of when this will improve, the Australian Government is seeking to implement significant national reforms, including reforms covering a new Industrial Relations system.

The most critical issue facing businesses is the economic downturn globally and in Australia. This is having a significant impact on employment, business confidence and productivity. With the introduction of new Industrial Relations legislation, including new National Employment Standards, Modernised Awards and the introduction of new rules governing enterprise bargaining, rights of entry and unfair dismissal; 2009 will be an extremely challenging year.

Fair Work Bill - Senate Committee Report

The Senate Education, Employment and Workplace Relations Committee's report on the Fair Work Bill was handed down on 27 February 2009.

The Report makes a number of technical and some significant recommendations by the Labor Senators and the Green Senators. The coalition Senators criticised certain aspects of the Bill but did not seek to make any recommendations. The Independent Senators did not seek to make any recommendations.

The recommendations from the Labor Senator's majority report are:

National Employment Standards

  • The Federal Government carefully considers any recommendations arising out of the inquiry for better support for carers being conducted by the Senate standing committee on Family, Housing and Youth on additional measures that should be taken within the Workplace Relations framework to assist carers. In particular, it was recommended that the NES be amended to extend the right to flexible working arrangements for employees caring for a child with a disability, and carers of adults in need of care. Further, employers and employees should be able to include in any enterprise agreement that the disputes avoidance clause can deal with disputes over the right to request flexible working arrangements.
  • The Fair Work Information Statement includes information on individual flexibility agreements, where to go for advice and how to bring an unfair dismissal claim. The Statement should be in various languages.

Modern Awards

  • Fair Work Australia should conduct regular and targeted investigations to ensure that individual flexible agreements are being used in accordance with the Act to provide genuine individual flexibility.

Agreements

  • The period to access a proposed agreement be extended to 14 days, but where bargaining agents agree this can be seven days.
  • The area of confidential and commercially sensitive information as an area for future review on how good faith bargaining provisions are working.

Unfair Dismissal

  • The period of lodging an unfair dismissal claim be extended from seven days to 14 days.
  • The Fair Dismissal Code be amended to require employers to provide a warning in writing, taking into account the needs of non-English speaking employees.

Industrial Action

  • When seeking Orders to suspend industrial action that threatens harm, the threat should be imminent, and the harm to the third party should be economic harm.

Pay Equity

  • Community Legal Centres be exempt from having to seek leave to appear before FWA.

Transfer Probationary Period

  • Transfer employees do not have to undergo a new probationary period with the new employer, but be treated as existing employees.

TCF Out-Workers

  • The Government accepts the suggestion that was made to provide that appropriate protections are in place that recognises the special vulnerability of these workers.

Two More IR Bills

The Federal Government has revealed it would table two draft Bills dealing with the transitional and consequential amendments to the IR legislation and other legislation.

The first Bill will be tabled on the week commencing 16 March 2009. It is likely to contain:

  • The NES will apply to all employees including employees covered by existing workplace Agreements.
  • Ensure that employees' take home pay will not be reduced as a result of the transition to Modernised Awards.
  • Contain rules of how existing Agreements will be treated under the IR system, how they will operate and who they will be terminated, how enterprise NAPSA Awards will be treated and how individual employees employed on AWAs or ITEAs will be able to participate in and benefit from Collective Agreements.
  • Provide for the abolishment of the Australian Fair Pay Commission and the Workplace Ombudsman. The Workplace Authority and the AIRC may continue for a limited time in order to finalise existing matters.
  • Inclusion of provisions for the appointment of existing AIRC staff to FWA.
  • Creation of Fair Work divisions of the Federal Magistrates Court and the Federal Court.
  • Enable State-registered organisations to participate in the new Federal system.

The second Bill will deal with the remaining consequential amendments to all other legislation. It is expected to be introduced to parliament the week beginning 23 May.

Productivity Commission Report of Paid Maternity Leave

The Productivity Commission has handed its final Report to the Government. The Government does not have to table the Report in Parliament until the expiration of 25 sitting days.

The 18 week scheme proposed by the Productivity Commission is higher than what was proposed by employers. The scheme will be funded by the Government, however employers will have to foot the bill and then seek reimbursement from the Government.

Due to the financial crisis facing the Australian government it likely that the paid maternity leave will either be phased in over a period of time, or delayed until the crisis is over.

Australian Fair Pay Commission

The Australian Fair Pay Commission has called for submissions for the 2009 Minimum Wage Review which will close on 20 March 2009.

The 2009 Minimum Wage Review takes place when Australia is facing its worst economic downturn, fuelled by exogenous international factors. Australian businesses are already experiencing financial difficulties with a number of businesses laying off staff or considering reducing staff numbers.

What we do not know is when the crisis will abate, or whether it will get worse. The last statistics from the World Bank and the Government's own forecast all predict that the Australian economy will get worse over the next 12 months.

Based on the latest economic data available, the uncertainty of when the economy will start to improve, CCIQ will be submitting that for the 2009 Minimum Wage Review, there will be no wage increase. There is no logical reason why we should be advocating a wage increase at this present time.

The Australian Government is supplementing wage incomes through the two stimulus packages and tax cuts.

top