OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT

Fair Work Bill 2008An overview

HR Forum 9 December 2008

• Operative dates

• Key features

• Possible implications for the NTPS

Fair Work Bill 2008

OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT

Fair Work Bill 2008

Operative dates

OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT

• Bill introduced into Parliament 25 November 2008

• Passed by House of Reps. last week.

• Senate to consider in February

• Transition Bill to be introduced March 2009

• 1st elements of the Bill operate from 1 July 2009 (enterprise bargaining / Fair Work Australia / unfair dismissals)

• Bulk of the remaining provisions operate from 1 January 2010 (National Employment Standards and Modern Awards)

Fair Work Bill 2008

Key Features

OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT

• Completely new Act – applies to NT employees

• Divided into six parts – 600 pages

• Legislates for National Employment Standards

• Modern Awards

• New enterprise bargaining framework

• Fair Work Australia (FWA)

• Unfair dismissals

• Right of entry

Fair Work Bill 2008

Key Features cont.

OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT

National Employment Standards (NES)

• 10 legislated minimum employment standards

• 38 hr week (averaging provision available)

• Requests for flexible working arrangements

• Parental leave (unpaid)

• Annual leave (four weeks pa / new cash up provisions)

• Personal / carer’s leave (10 days pa)

• Community service leave (unpaid)

Fair Work Bill 2008

Key Features cont.

OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT

National Employment Standards cont.

• Long service leave (current state/territory legislation to apply until new national arrangements developed)

• Public holidays (right to refuse to work)

• Notice of termination and redundancy pay (severance components slightly different from NTPS)

• Fair Work Information Statement (to be provided to every employee)

Fair Work Bill 2008

Key Features cont.

OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT

Modern Awards

• Process started by AIRC in June 2008

• Due to be completed 1 January 2010

• Establish safety net of minimum terms and conditions, including minimum wage, together with the NES

• Industry / occupational based awards

• Priority awards identified and exposure drafts released

• NTPS submission is for our awards to be treated as enterprise awards – NTPS Medical Officers Award

Fair Work Bill 2008

Key Features cont.

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Enterprise bargaining

• Significant changes from Workchoices

• No individual agreements, ie AWAs

• Collective bargaining is paramount

• Enterprise agreements from 1 July 2009

• Concept of union and employee collective agreements abolished as are bargaining periods and prohibited content

• Modern award does not apply during term of agreement, but NES do

Fair Work Bill 2008

Key Features cont.

OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT

Enterprise bargaining cont.

• Introduction of “bargaining representatives”

• Usually a union, but may not be

• All employees must be given the opportunity to appoint a bargaining representative

• Union only needs one member to be “at the table”

• May see entry of other unions in NTPS agreements eg ASU

Fair Work Bill 2008

Key Features cont.

OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT

Enterprise bargaining cont.

• Permitted matters rather than prohibited content

• Must contain matters pertaining to the employment relationship

• Terms cannot be less than NES

• Must include flexibility term, consultative clause & DSP

• No offensive provisions or unlawful content, otherwise agreements can deal with anything

• No requirement for union to sign agreement before ballot

•Agreement must satisfy “Better off overall test” - “BOOT”

Fair Work Bill 2008

Key Features cont.

OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT

Enterprise bargaining cont.

•Secret ballot for protected industrial action remains, but process streamlined

• Three working days notice of industrial action required

• Employer must deduct a minimum of four hours pay for industrial action

• Employer will be able to deduct pay for partial work bans

• FWA can suspend or terminate bargaining period in limited circumstances

Fair Work Bill 2008

Key Features cont.

OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT

Enterprise bargaining cont.

• Parties required to “good faith” bargain

• FWA may issue order for a party to bargain in good faith

• If order breached then FWA may make serious breach declaration

• FWA may then make a bargaining related workplace determination – in effect an arbitrated outcome

• Unions may also apply for scope orders – could see some groups attempt to bargain separate agreements

Fair Work Bill 2008

Key Features cont.

OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT

Fair Work Australia (FWA)

• One-stop shop

• Incorporates all current bodies under Workchoices including the AIRC.

• Can settle disputes but can only arbitrate if dispute settling procedures provide for it – most will

• Creation of Fair Work Divisions of Federal Court and Magistrates Courts

• Small claims jurisdiction up to $20K

Fair Work Bill 2008

Key Features cont.

OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT

Unfair dismissals

• Most changes affect small business

• Focus on reinstatement

• Process aims to minimise the role of lawyers

Right of entry

• Union may inspect records of non-members

Fair Work Bill 2008

Possible implications for the NTPS

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• Interaction b/w current agreements and new Act will not be known until transitions provisions are introduced in March 2009

• NTPS provisions will need to be aligned with NES and possibly Modern Awards eg parental, personal, annual leave etc

• Award modernisation process may generate significant workload

• Scope for greater intervention of FWA in protracted bargaining disputes

• Unions could test good faith bargaining and scope orders

• Could be more unions at the table

• May see pressure for separate agreements from some groups

• Agreements may deal with more matters

Fair Work Bill 2008

Questions

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