An overview of the federal legislation
A 'national' system based on the corporations power
Minimum conditions - the Australian Fair Pay and Conditions Standard
Minimum wages set by the Australian Fair Pay Commission
New changes to agreement-making
Awards
Unfair dismissal
Industrial action
Dispute resolution
Right of entry
- The federal system is based on the corporations power and aims to cover all constitutional corporations. Employers who are constitutional corporations and who previously operated in the State system will have up to a three-year transitional period in which their current state awards and/or agreements will continue to apply.
- Employers who are not constitutional corporations, but are currently in the Federal system by virtue of the conciliation and arbitration power, will have a transitional period of up to five years to incorporate or move to the state system.
- The Federal laws will mean that state laws no longer apply to employees in the Federal system, with the only exceptions being those State laws the Federal Government permits to operate.
Minimum conditions - the Australian Fair Pay and Conditions Standard
- Under the Federal system, the Australian Fair Pay and Conditions Standard (AFPCS) provides five minimum conditions for employees:
- maximum of 38 ordinary hours a week which may be averaged over 12 months
- annual leave of four weeks per year, plus an additional week’s leave for shift workers
- unpaid parental leave of 52 weeks
- personal leave of 10 days a year of which all 10 days can be used for carer’s leave; an additional two days for unpaid carer’s leave and two days compassionate leave (per occasion), and
- minimum wages as set by the Australian Fair Pay Commission
Federal award and agreement provisions that are more favourable than the AFPCS will continue to apply. If they are less favourable (e.g. awards with only eight days sick leave), the AFPCS will apply.
Federal awards and agreements that deal with a particular minimum condition as well as the Fair Pay and Conditions Standard override the statutory minimum conditions provided in the Queensland Industrial Relations Act 1999 – this includes state awards and agreements that are now incorporated into the Federal system. Federal awards and agreements can specifically exclude state minimum conditions.
The five minimum conditions are set to become ten by the 1 January 2010. More information on the changes to the federal system is available at Workplace Authorities (non Queensland Government)
Minimum wages set by the Australian Fair Pay Commission
The Australian Industrial Relations Commission (AIRC) has lost its long-standing powers to set minimum wages across the award system through the national wage case. In its place, the Federal laws establish the Australian Fair Pay Commission (AFPC).
The AFPC sets and adjusts the minimum wage, and wages across award classification levels, as well as wages for juniors, apprentices and trainees, employees with disabilities, piece workers, and loadings for casual workers. . From January 1 2010 Fair Work Australia will set minimum wages for the federal system taking over from the Fair Pay Commission.
New changes to agreement-making
From the 28 March 2008 no new Australian Workplace Agreements (AWA) can no longer be made. No AWA can be varied after the 11 April 2008 except in certain circumstances. AWA lodged before the 11 April 2008 will continue to operate.
Certain employers and employees will be able to negotiate an individual transistional agreement (ITEA). After the 28 March 2008 agreements (including ITEA) will need to pass the No-Disadvantage Test (NDT).
More information on AWA, ITEA and NDT is available at Workplace Authorities (non Queensland Government)
The new federal government has begun the award modernisation process. The process will be conducted by the Australian Industrial Relations Commission (AIRC). The award modernisation process has begun and is set to be completed by the end of 2009. The AIRC will consult with major workplace relations stakeholders to develop a system that meets with employees’ general needs while ensuring they are not disadvantaged.
More information on the award modernisation is available at AIRC (non Queensland Government).
The existing Federal awards continue to operate, but the award system has been further reduced in scope and influence in the overall industrial relations framework. The matters that can be included in awards have been reduced from 20 to 15.
Certain conditions were excluded from awards on the basis that they are covered by existing state or Federal legislation. The excluded conditions are:
- long service leave
- superannuation
- jury service and
- notice of termination.
Existing awards which contain these entitlements continue to apply but the AIRC can no longer vary them in the immediate future.
A number of matters currently in Federal awards are no longer enforceable. These include: enterprise flexibility provisions, which allowed individual workplaces to decide on the basis of majority agreement how a particular award clause would operate; as well as any restrictions relating to employing contractors or labour hire workers; and trade union training leave. Much of this is set to change in the upcoming award modernisation process undertaken by the AIRC.
Unfair dismissal laws have changed recently. Small businesses are no longer exempt from unfair dismissal laws. Removal of the unfair dismissal exemption for businesses with fewer than 100 employees has been implemented as of 1 July 2009. Employees working for a small business will be required to work for a period of twelve months before they can gain access to unfair dismissal provisions.
All employees with less than six months service are excluded from an unfair dismissal claim. Employees who are genuinely made redundant are excluded from pursuing an unfair dismissal claim. The Fair Work Act 2009 which came into being on 1 July 2009 removed the exemption of genuine operational reason from unfair dismissal. Employees continue to have access to state (and Federal) anti-discrimination laws.
Employees still have access to unlawful dismissal remedies under the Federal system; that is for dismissal on discriminatory or other prohibited grounds.
Many other changes to the unfair dismissal framework will be in operation by January 2010. A new body called Fair Work Australia will be set up to conciliate and mediate unfair dismissal claims. The system is to be user friendly and not legalistic.
A Fair Discrimination Code will be produced to assist small business ensuring that dismissals are conducted fairly.
More information on unfair dismissal under the federal industrial relations system is available at the Workplace Authorities (non Queensland Government)
New federal law allows for three types of bargaining: employee claim action, employee response action and employer response action. Under Fair Work Australia industrial action during life of agreement is prohibited. Protected action to support agreements that include unlawful terms cannot be undertaken.
Other elements are:
- Protected action ballots are compulsory before any protected industrial action can be taken by unions or employees. The ballot will be run by the electoral commission.
- Financial penalties remain for taking unlawful industrial action
- Fair Work Australia may suspend or terminate protected action where the action is protracted and has caused, is causing or is threatening to cause imminent significant harm to both the employer and any of the employees who will be covered by the agreement and there is no reasonable prospect of resolution through other means. Application may be brought by one party.
- Fair Work Australia may suspend protected action if it considers it appropriate, taking into account whether suspension would be beneficial for resolving the matter, the duration of the action and the public interest
- Fair Work Australia must suspend protected action where a party directly affected has been significantly harmed and the action is having an adverse effect on the employer or employees. Where the action is a lockout, the significant harm only need be caused to the employees, not the employer.
- Fair Work Australia must suspend or terminate protected action if it threatens to cause significant harm to the Australian economy or important part of it, or endangers the life, personal safety or health or welfare of the population or part of it.
- Fair Work Australia is significantly more flexible than the previous WorkChoices regime which made it extremely difficult for stalled bargaining to continue.
A mandatory dispute resolution clauses in agreements will have to involve either FWA or another person or body independent of the parties and to provide for representation of employees.
If agreements do not contain a clause then the model dispute resolution process is deemed to apply. This does refer the dispute to an independent person/body.
Union right of entry to workplaces to investigate a suspected breach of industrial obligations and to hold discussions with employees are now subject to lesser restriction and control.
If a official reasonably suspects that a breach has occurred of the Act or a fair work instrument that applies to a member whose industrial interests the organisation is entitled to represent. The fair work instrument does not have to cover or apply to the union. The burden of proof of a breach lies with the official.
Last updated 11 August 2009
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