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© The Association of Independent Schools of NSW
National Award Modernisation Taskforce
Michael Carr – AIS NSW
Brisbane: 25 November 2008
© The Association of Independent Schools of NSW
Overview
AIRC to modernise federal awards and relevant NAPSAs by 31 December 2009Exception: enterprise awards (e.g. awards for government schools)
Modern awards will be national in coverage
Modern awards will be “primarily along industry lines”, where possibleException: some occupationally based awards (e.g. private sector clerical occupations)
© The Association of Independent Schools of NSW
Federal Jurisdiction Context
New Workplace Relations System
10 National Employment Standards for all employees (NES) in the federal jurisdiction
Modernised Federal Awards which complements the NES
An enterprise-level collective bargaining system focused on promoting productivity
Unfair dismissal laws
A ‘One-Stop Shop’ Fair Work Australia
© The Association of Independent Schools of NSW
The Story so Far…
Workplace Relations (Transition to Forward with Fairness) Act 2008
AWAs abolished – ITEAs introduced
No Disadvantage Test re-introduced
Award Modernisation process commenced
National Employment Standards (NES) published
Stage 1 Award Modernisation: Higher Education (2 awards)
© The Association of Independent Schools of NSW
Timeline - Going Forward
1 July 2009 - Key elements of Forward with Fairness introduced (reliant on passage of bill through parliament)
Unfair Dismissal laws
New Bargaining Framework
1 January 2010
Fair Work Australia Institutions – A one stop shop
National Employment Standards (NES)
Modern Awards in force
© The Association of Independent Schools of NSW
1 July 2009 - Unfair Dismissal
Unfair Dismissal Regime commences
Mostly applicable to small business (Less than 15 employees)
Qualifying period increased from 6 months to 12 months
Fair Dismissal Code will ensure a dismissal is not unfair
Dismissal
A reason why they are at risk of being dismissed
Reasonable timeframe to improve
Summary Dismissal
Deemed fair if reported to police – expected to have reasonable grounds
© The Association of Independent Schools of NSW
1 July 2009 - Unfair Dismissal
Lodged with Fair Work Australia (FWA) within 7 days
Non- Legalistic
Reinstatement or compensation (up to 6 months pay)
Excludes
Casual employees (not regular casuals)
Seasonal employment
Specific task
Temporary Contracts
© The Association of Independent Schools of NSW
1 July 2009 – Workplace Agreements and Enterprise Bargaining
“Better off overall test” – by FWA
Employer can be compelled to negotiate a with a union when developing a collective agreement
Content to only include “matters pertaining to the employment relationship”
Content of agreements might include:
Union representation
Deduction of union dues
Agreements cannot include content regarding matters pertaining to management prerogative, bargaining services fees, authorising industrial action
© The Association of Independent Schools of NSW
1 July 2009 – Bargaining in Good Faith
Bargain in good Faith for a mutually acceptable outcome
Direct parties to meet
Disclose relevant information
Consider proposals and respond to them;
Refrain from unfair or precipitous conduct
No requirement to make concessions or sign-up to agreement.
FWA – ‘majority employee support’ for an enterprise (workplace) agreement
© The Association of Independent Schools of NSW
National Employment Standards (NES)
What you need to know…
10 minimum standards that will form part of the safety net terms and conditions
NES will not deal with minimum wages
Will apply to all employees in the federal system – there may be some exceptions but this is still unclear
Inextricably linked with terms of modern awards
© The Association of Independent Schools of NSW
National Employment Standards
1. Maximum Weekly Hours
38 hour week
Reasonable additional hours
Modern award may include provision for averaging hours
2. The Right to Request for Flexible working Arrangements
A change in working arrangements for the purpose of assisting the employee to care for the child
Refusal only on reasonable business grounds
© The Association of Independent Schools of NSW
National Employment Standards
3. Parental Leave
One year for each parent to be taken consecutively; or
Two years for one parent
4. Annual Leave
Modern Award may include provision for cashing out annual leave
5. Personal/Carer’s Leave and Compassionate Leave
10 days personal/carers leave – accrues progressively
2 days paid compassionate leave & 2 days unpaid carers leave for each occasion
Evidence to satisfy a ‘reasonable person’
© The Association of Independent Schools of NSW
National Employment Standards
6. Community Service Leave
Jury duty – paid first 10 days of absence minus amount paid to juror
Voluntary emergency services
7. Long Service Leave
8. Public Holidays
9. Notice of Termination (resignation) and redundancy pay
10.Provision of a Fair Work Information Statement
© The Association of Independent Schools of NSW
Modern Awards
The AIRC must make modern awards which:
Are simple to understand and apply,
Provide a fair minimum safety net for employees,
Must be economically sustainable,
Promotes efficient and productive performance of work
Promote flexible modern work practices.
© The Association of Independent Schools of NSW
Award Matters
1. Minimum Wages & Classification and Career Structures
2. Types of Employment
3. Arrangements for when work is Performed
4. Overtime Rates
5. Penalty Rates
6. Annualized Wages or Salary Arrangements
7. Allowances
8. Leave, leave loadings and arrangements for taking leave
9. Superannuation
10. Procedures for Consultation and Dispute
© The Association of Independent Schools of NSW
Award Modernisation – Stage 3 2009
6 March Closing date for submissions, drafts etc
23 March Pre-drafting consultations commence
22 May Closing date for publication of exposure drafts.
12 June Closing date for lodging written comments on the exposure drafts.
29,30 June & Full Bench sits in Sydney for final consultations
1,2,3 July in relation to the exposure drafts
4 Sept Final date for making Stage 3 modern awards.
© The Association of Independent Schools of NSW
Response of Independent School Sector
National consultation
Executive Directors appoint Award Taskforce
Appear for sector at AIRC hearings
Consult with:
Catholic sector
IEU
© The Association of Independent Schools of NSW
Modern Awards and NES
Modern Awards + 10 National Employment Standards (NES)
The 10 NES will represent the minimum entitlements for all employees in the new system and will apply to all employees.
A modern award cannot exclude the NES but can ‘supplement’ its terms
A modern award can include provisions that are expressly permitted under the NES.
© The Association of Independent Schools of NSW
Modern Awards and NES
Evidence Requirements for personal and compassionate leave
Substitute public holidays
Industry specific redundancy pay provisions
Amount of notice an employee may be required to provide
Loadings in lieu of entitlements for school based apprentices
© The Association of Independent Schools of NSW
Non Teaching Award
One award for all jobs and classifications
Teacher aides and clerical staff
Nurses, psychologists and welfare officers
Maintenance, green keeping and caretakers
Kitchen, laundry and boarding house staff
Canteen and uniform shop employees
Child care workers
Chaplains
Sports coaches
etc
© The Association of Independent Schools of NSW
Non Teaching Award Consistent conditions
Annual leave (in most cases)
Sick leave (as per NES)
Long Service Leave
38 hour week
Variations in Awards
Span of ordinary hours
Shift penalty loadings
Notice periods
Leadership levels
Incremental progress (up the salary scale)
Stand down periods
Paid maternity leave
© The Association of Independent Schools of NSW
Non Teaching Award
Main issues
Classification of roles/jobs
Metal Workers Award proforma
Wage levels
Placement of roles on the wage scale
© The Association of Independent Schools of NSW
What Happens to Award Free Employees?
‘Catch-all’ award to be created as part of award modernisation
Managerial employees?
© The Association of Independent Schools of NSW
Fair Work Australia Institutions
Replaces:
Australian Industrial Relations Commission
Australian Industrial Registry
Australian Fair Pay Commission
Australian Fair Pay Commission Secretariat
Workplace Authority
Workplace Ombudsman
Australian Building and Construction Commission
© The Association of Independent Schools of NSW
Fair Work Australia Institutions
FWA will consists of
President
Senior Members
Members (Minimum Wage Panel members)
Power to vary awards
Make minimum wage orders
Approve Agreements
Determine unfair dismissal claims
Make orders of good faith bargaining and industrial action
Assist employees and employers to resolve disputes
© The Association of Independent Schools of NSW
Fair Work Australia Institutions
Fair Work Australia – Inspectorate
Compliance with new workplace laws
Enforcement through courts
Fair Work Divisions of the Court
Small claims limit increased from $10,000 to $20,000
Specialist Division in the Federal Court and the Federal Magistrate’s Court
© The Association of Independent Schools of NSW
What Can You Do…
1. Which staff are currently covered by Agreements/NAPSAs?
2. What will be the usefulness of a modern award in your workplace for those employees not on collective agreements?
3. How likely will those staff agitate for a new agreement?
Only a majority of the employees needed for you to be required to bargain in good faith with them.
© The Association of Independent Schools of NSW
Possible Enhancement Sought by Union
Concept of pupil vacation period (teacher holiday?)
Rules relating to co-curricular activities/ staff meetings
Rules relating to number of leadership positions in a school
Rules relating to Face to Face teaching
Span of hours – to include rules relating to excursions, parent teacher nights, etc
Child rearing to be included in service
© The Association of Independent Schools of NSW
Involvement of Union
Union will try to expand their influence in your workplace.
Managerial Prerogative
Setting term dates
Setting hours of the school day
Determining reasonableness of professional development
Co-curricular
Grievance processes
Performance Management
© The Association of Independent Schools of NSW
“The Leap Frog Technique”
Co-curricular
Grievance Procedures
Performance Management
Recruitment
Redundancies
Restructures
© The Association of Independent Schools of NSW
Danger of the Communication Void!
High union involvement in your school may hamper the natural flow of communication between the Principal and their staff
The union will try to ‘embed’ themselves in the minutia of your decision making:
Class allocation
Timetables
Playground supervision
Minor staff performance matters
Development of appraisal processes
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