All private sector employees in Victoria, Queensland, New South Wales, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory are covered by the Federal industrial relations system which is regulated under the provisions of the Fair Work Act 2009 (Cth) (the Act). The features of the industrial relations system include:
- The establishment of Fair Work Australia (FWA) and the Fair Work Ombudsman (FWO);
- 10 minimum employment standards known as National Employment Standards;
- New modern awards;
- Collective bargaining; and
- Protections against unfair dismissals for employees.
Fair Work Australia (FWA) And The Fair Work Ombudsman (FWO)
FWA has the authority to vary awards, make minimum wage orders, approve collective agreements, decide unfair dismissal claims and resolve workplace disputes.
A Fair Work Division has been established in the Federal Magistrates Court to determine civil claims arising under the Act including claims alleging dismissal in contravention of a general protection, unlawful termination of employment and discrimination.
The FWO appoints Fair Work Inspectors empowered to investigate and enforce compliance with relevant Commonwealth workplace laws and industrial instruments
National Employment Standards
The ten National Employment Standards apply to all employees covered by the federal workplace relations system:
- Thirty-eight hours of work each week;
- Parents with young children may request flexible working arrangements. A request may only be refused on reasonable business grounds;
- A period of up to12 months unpaid leave for each parent in association with the birth of a child. If both parents take leave the periods of leave must be for separate periods. A request may be made for a further 12 months leave;
- Four weeks of paid annual leave per year;
- An entitlement to 10 days of paid personal/carer’s leave for each year of service, 2 days of paid compassionate leave, and 2 days of unpaid carer’s leave (if carer’s leave is exhausted). Casual employees are entitled to 2 days compassionate leave per occasion and 2 days of unpaid carer’s leave.
- An entitlement to be absent from work for a prescribed community service activity such as jury service;
- Long service leave;
- An entitlement for an employee to be absent from work on public holidays. An employer may reasonably request an employee to work on a public holiday, and an employee may only refuse if the request is not reasonable.
- A stipulated minimum notice period for employers who are terminating, or making redundant, the services of an employee. The notice period required is commensurate with the length of employment;
- A Fair Work Information Statement detailing the rights and entitlements of employees.
Modern Awards
In addition to the National Employment Standards, modern awards may include 10 minimum conditions of employment tailored to an industry or occupation including: minimum wages, types of employment, overtime and penalty rates, allowances, leave related matters and dispute resolution.
The modern awards that apply to the Health Services Industry are:
- Health Professionals and Support Services Award 2010;
- Nurses Award 2010;
- Medical Practitioners Award 2010; and
- Age Care Award 2010.
Modern awards will not apply to an employee earning an annual salary of more than $100,000 (pro rata for part time employees) indexed annually.
Modern awards will be reviewed by FWA every 4 years, following which FWA may revoke or vary modern awards. Wages under modern awards will be reviewed annually.
Employers and employees will be able to vary the application of modern awards to meet the needs of the employer and employee by agreement. Further advice should be sought before entering into such an arrangement.
Collective Enterprise Agreements
The Act provides for the making of enterprise agreements which are written agreements setting out the working conditions which are agreed upon by an employer and the majority of employees. Those agreements are subject to approval by FWA and must satisfy a better-off overall test to ensure employees will be better off under the agreement than under the relevant award.
Termination Of Employment
Unfair dismissal laws have been re-instated. Employees working in a small business (fewer than 15 employees) may only bring an unfair dismissal claim after they have been employed for 12 months, and employees in larger business must have served a minimum of 6 months employment. A dismissal will not be unfair where the employer can demonstrate a change in the operational requirements of an enterprise which creates a genuine redundancy.
Small businesses must comply with the Small Business Dismissal Code.
Transfer of Business
The Act provides for the transfer of enterprise agreements and certain modern awards of business from one employer to another. The Act provides that there will be deemed to have been a transfer of business to a new employer if the employment of the employee with the older employer was terminated, the employee is then re-employed by a new employer within three months, and the transferring employee performs the same or substantially the same work for the new employer.
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Dominique Egan
Partner
Phone: 61 2 9228 9261
Dominique_Egan@tresscox.com.au
To see the contact details of the entire TressCox Health Services Team please click here.
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