Fair Work Act Australia

An “industrial relations systems” refers to the rules, regulations and institutions that govern the employment relationship and which set the terms and conditions of work and employment. From 2009, Australia had a new industrial relations framework that created a “truly national system in the private sector, the statutory framework and processes have been simplified and the governing legislation had been completely rewritten to reflect the new Constitutional basis for the system”.

However prior to this, in 2006 was the introduction of legislation such as the Workplace Relations Amendment (WorkChoices) Act which was highly controversial because it was seen to shift influence and power dramatically back to the employer and created an unfair balance in the employer-employee relationships. In

relation to the practical changes, WorkChoices also increased employment insecurity by removing unfair dismissal protection.

In 2009 , the Fair Work Act was introduced as a way of removing some of the most unpopular aspects of the Workchoices and re-balancing the power in the employment relationship.Although some still argue that through the last decade, industrial relations and the labour market have been re-regulated rather than deregulated,and that this re-regulation has been in favour of businesses and employers rather than employees and unions.

Increasing job insecurity and excessive managerial prerogative to “fire at will” were regarded as the wo main problems with WorkChoices. The Fair Work Act introduced the notion of a “ fair dismissal” system that sets out the steps that an employer should go through before dismissing an employee.

According to s 385 of the Fair Work Act 2009, an unfair dismissal occurs ‘ if the person has been dismissed;the dismissal is deemed to be harsh and unreasonable…’. Employees are protected from unfair dismissal as long as they satisfy a probationary period of eomployments (6-12 months) and they are covered by an award or agreement. However, this does not apply for those that are note covered by an award or agreement and earn above the high income

threshold.

Stuart (2008) notes that “ the most significant parts of the Fair Work Act are those that enhance individual rights and protections for employees . Employers will need to be aware of, and adjust to, the significant changes made to the safety net under the NES and the modern award system, and the restoration or extension of unfair dismissal rights”.
The objective of the Federal Governments industrial relations agenda (Fair Work Act) is to encourage a harmonious and efficient employment relationship and to provide a safety net of minimum employment standards ( the NES) that applies to all employees covered by the national system , as well as new bargaining rules for employers and employees.The 10 minimum workplace entitlements in the NES include:

1. A maximum standard working week of 38 hours for full-time employees, plus ‘reasonable’ additional hours.
2. A right to request flexible working arrangements.
3. Parental and adoption leave of 12 months (unpaid), with a right to request an additional 12 months.
4. Four weeks paid annual leave each year (pro rata).
5. Ten days paid personal/carer’s leave each year (pro rata), two days paid compassionate leave for each permissible occasion, and two days unpaid carer’s leave for each permissible occasion.
6. Community service leave for jury service or activities dealing with certain emergencies or natural disasters. This leave is unpaid except for jury service. 7. Long service leave.
8. Public holidays and the entitlement to be paid for ordinary hours on those days.
9. Notice of termination and redundancy pay.
10. The right for new employees to receive the Fair Work Information Statement.

These are further complemented by a revised “Modern Awards” system. Modern awards are an enforceable document containing minimum terms and conditions of employment relating to a particular industry/occupation and may contain terms about:
- minimum wages
- penalty rates
- Types of employment
- Flexible working arrangements
- Hours of work
- Rest breaks
- Allowances
- Leave and leave loading
- Superannuation
- Procedures for consultation, representation, and dispute settlement.

Under the new legislation, Modern Awards apply to all employees historically covered by awards. Those employees who are in senior positions not historically covered by awards and those who earn more than the annual high income threshold may agree to terms directly with their employer ,as long as the NES are mainteained. Modern awards will be reviewed every four years to ensure their ongoing community and exocnomic relevance.

In addition, there are also Enterprise Agreements which are negotiatied agreements under the principle of good faith bargaining that are usually between unions and the employers or the employers representative. Good Faith bargainging expects that the parties will attend meetings as arranged , will provide information and respond ina temily manner and will also give genuine considerations to proposals formt he parties in negotiation.Agreements include matters relevant to the enterprise such as:
- Rate of pay
- Employmentcondiionts;eg hours of work,meal breaks, overtime
- Dispute resolution procedures

Once the enterprise agreement is approved by the Fair Work Commission, it is enforceable and provides for changes in the terms and conditions of employment that apply at your workplace.

Also, there is an emphasised focus on providing flexibility options for working paremts. Including a right to request flexible work arrangements and INividuvial Flexibility Arrenageemnts (IFAs). These provide an option for employees and employers to negotitaite to change th term of the enterprise agremement covering them, so long as they do not undercut the overall terms of the enterprise agreement. That is , they are subject to the Better Off Overall Test (BOOT).Flexibility is an areas of considerable controversy, with employers seeking more flexibility in employment conditions and employees often seeking more flexibility and enhanced security to balance work and family.

Previously the industrial relations system was based on compulsory conciliation and arbitration established in 1904 by the Commonwealth Court of Conciliation and Arbitration and the collective representation of employees and employers. From 2009 onwards, the new system within the Fair Work Act favours negotiations between individual employers and their employees to encourage more fluid relationships between the two parties.

Th term ‘industrial association’ is used to describe the organisation that may represent either of the aparties – employers or employees. Employers are free to join trade unions and the concept of freedom of association refers to the right of employees to belong or not to belong to a union. Under the Fair Work Act 2009 (s 336) employees are ‘(i) free to become, or not become , members of industrial associations; and (ii) free ot be represented, or not represented , by industrial associations’.
While the Fair Work Act 2009 has not significantly increased the role of power of unions , there are some changes that provide a less hostile environment for unions . For example, union officials who have entry permits may now enter workplaces whre they have potential members, whether or not the employees are covered by an award or agreement binding on the union.
Further, under the Fair Work Act 2009, if an employer is refusing to bargain with employees, a representative may apply to the commission stating that a majority of an enterprises employees want to bargain for an agreement. If satisfied that there is a desire to be represented, the COmmisison can issue a majority support determination requiring the employer to enter into bargiaging.
In conclusion, the Fair Work Act 2009 (Cth) has had an immense influence on not only how employers and workers interact with eachother when attempting to negotiate working conditions but also the approach to regulating work pursued by employers under this regulatory regime.