Australia - forward with fairness

By Ken Brotherson, Partner

The Federal Government has now introduced its much anticipated Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 (Transition Bill).

The Transition Bill aims to ensure a smooth transition from the previous WorkChoices legislation to Labor's new workplace relations system over the next two years. The Government has given itself until 31 December 2009 to fully implement its workplace relations platform. The key component of the Transition Bill is a process to fulfill the election promise of abolishing Australian Workplace Agreements (AWA’s). AWA’s are statutory individual employment agreements. Existing AWA’s will be allowed to remain in force, but once the Transition Bill becomes law no new AWA’s can be made.

The Transition Bill allows for Individual Transitional Employment Agreements (ITEA’s) to be used until 31 January 2009. ITEA’s would typically be used where AWA’s expire before 31 December 2009, or for new employees where the employer already has AWA’s in place with existing employees.

The Transition Bill also re-introduces a “no disadvantage test” by which workplace agreements will be assessed. The assessment will revert to reference to any applicable industrial instrument rather than simply the Australian Fair Pay & Conditions Standard for all agreements. The assessment will be conducted by the Workplace Authority Director.

As part of the transition process, the Government has also released details of its proposed 10 national employment standards. They will complement a modernised award system and form a safety net for all employees covered by the Federal workplace relations system from 1 January 2010.

The draft National Employment Standards are:

Maximum hourly weekly hours - a maximum 38 hour week for full-time employees plus reasonable additional hours.
Requests for flexible working arrangements- adopting a process for employees to request flexible working hours until children reach school age. Employers must respond in writing within 21 days and can refuse a request only on reasonable business grounds.
Parental leave and related entitlements- a right for parents to take separate periods of 12-months unpaid leave, up to a total of 24 months.
Annual Leave - 4 weeks paid annual leave for full-time employees and an additional week's leave for shift workers.
Personal/Carer's and Compassionate leave- 10 days of paid personal sick/carer's leave per year for full-time employees plus 2 days unpaid personal leave for 'genuine caring purposes' or 'family emergencies' and 2 days paid compassionate leave on the death or serious illness of a family member.
Community Service Leave - leave for prescribed community service activities including jury service and emergency services duties.
Long Service Leave - the introduction of a uniform national long service leave standard.
Public Holidays - The right for employees to reasonably refuse to work on common national public holidays and regional public holidays. Where an employee works on a public holiday, the employee maybe entitled to penalty rates or other compensation.
Notice of termination and redundancy pay- employees will be entitled to between 1 and 5 weeks notice (or pay in lieu) of termination of employment (except in cases of summary dismissal). In the event of redundancy, employees in workplaces with 15 or more employees and who have at least 12 months continual service will be entitled to severance pay, up to 16 weeks after 9 years service.
Provision of Fair Work Information Statement - employers are to provide all new employees with a Fair Work Information Statement containing information about the national employment standards, modern awards, agreement making, the right to freedom of association and other prescribed matters.

A significant feature of the 10 employment standards is the introduction of a national long service leave standard, to apply to employees of corporations rather than the current disparate State Systems.

The Government aims to have the Transition Bill passed before Easter 2008. The opposition appears likely to comply with this.

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