3/10/2011

1
Fair Work Act 2009 Fair Work Act 2009
3/10/2011
2
Overview Overview
Application oI the Fair Work Act 2009
2ployees or contractors
Federal or state
Co22ence2ent oI the Act.
UnIair Dis2issal under the Fair Work Act 2009
The basics
Redundancy
Procedural Iairness
Re2edies
General Protections
nterprise Bargaining under the Fair Work Act 2009
The basics
Restrictive Trade & Non Disclosure Agree2ents
The basics
Case Study
3/10/2011

When does the FWA Apply? When does the FWA Apply?
3/10/2011

2ployee v Contractor?? 2ployee v Contractor??

3/10/2011

:risdiction :risdiction
Federal application - all co2panies and
Iederal workers
State Law still applies to State
Govern2ent, partnerships and individuals.
3/10/2011

Co22ence2ent oI the Act

1 July 2009
UnIair Dis2issal provisions and other general
provisions
1/1/2010
Awards 2odernisation
National 2ploy2ent Standard (NS)
3/10/2011

&nfair Dis2issal & Red:ndancy &nfair Dis2issal & Red:ndancy

3/10/2011

&nfair Dis2issal &nfair Dis2issal the basics the basics

No exclusions Ior unIair dis2issal provisions
based on business size.
An e2ployee 2ust have served a 2ini2u2
e2ploy2ent period oI 12 2onths iI they are
e2ployed in businesses with 15 e2ployees, or
6 2onths in businesses with ~ 15 e2ployees
beIore they can 2ake an unIair dis2issal clai2.
A dis2issal will not be unIair iI FWA is satisIied
it was a genuine redundancy.
3/10/2011
9
&nfair Dis2issal &nfair Dis2issal the basics the basics
14 days to 2ake an unIair dis2issal
application
FWA will hold a conIerence or a hearing
in an unIair dis2issal case that involves
contested Iacts.
3/10/2011
0
Who can 2ake a clai2? Who can 2ake a clai2?
A person can 2ake an unIair dis2issal clai2 iI they
have:-
Co2pleted the minimum employment period and
Are .overed by a 2odern award or enterprise
agree2ent; or
For other e2ployees iI the su2 oI their annual rate oI
earnings is less than the high inco2e threshold
currently $108,300.00 per annu2.
SaIety net award 2odernises 1/10/2010
National 2ploy2ent Standard 1/10/2010
3/10/2011

When dis2issal is not :nfair When dis2issal is not :nfair

A person has not been unIairly dis2issed iI:-
They were e2ployed under a contract oI
e2ploy2ent which operated Ior a speciIied
period oI ti2e or the duration oI a speciIied task.
The e2ploy2ent was Ior a speciIied period oI
ti2e under a training arrange2ent.
The person was de2oted without involving a
signiIicant reduction in pay or duties and they
re2ained with the sa2e e2ployer.
3/10/2011
2
What is :nfair dis2issal? What is :nfair dis2issal?
A person has been unIairly dis2issed when FWA is
satisIied:-
The person has been dis2issed.
The dis2issal was harsh, unjust or unreasonable.
The dis2issal was not a case oI genuine
redundancy.
The dis2issal was not consistent with the S2all
Business Fair Dis2issal Code.
UnIair dis2issal is diIIerent Iro2 General
Protections Ior people being dis2issed on
grounds oI discri2ination etc.
3/10/2011

What is gen:ine red:ndancy? What is gen:ine red:ndancy?

The e2ployer 2ust establish:-
Job is no longer required due to
operational require2ents.
Co2pliance with award / A consultation
require2ents.
Redeploy2ent within the enterprise (incl
oI an associated entity) was not reasonable.
3/10/2011

What is harsh, :nj:st or What is harsh, :nj:st or

:nreasonable? :nreasonable?
I there was not a valid reason or reasons.
Whether the person was notiIied oI the reason.
Whether the person was given any opportunity to
respond.
Any unreasonable reIusal to allow the person to
have a support person present to assist at any
discussions relating to the dis2issal.
I the dis2issal related to unsatisIactory
perIor2ance whether the person had been
warned beIore the dis2issal.
3/10/2011

What is harsh, :nj:st or What is harsh, :nj:st or

:nreasonable (cont)? :nreasonable (cont)?
Whether the size oI the enterprise would
be likely to i2pact on the procedures
Iollowed in the dis2issal.
Whether a lack oI dedicated HR specialists
or expertise in the e2ployer`s enterprise
would be likely to i2pact on the
procedures Iollowed in the dis2issal.
Any other 2atters that FWA considers
relevant.
3/10/2011

What is the proced:re thro:gh What is the proced:re thro:gh

FWA? FWA?
FWA 2ust decide beIore considering the 2erits oI
the application:-
Whether the application was 2ade within the 14
day li2it.
Whether the person is protected Iro2 unIair
dis2issal.
Whether the dis2issal was consistent with the
S2all Business Fair Dis2issal Code, iI relevant.
Whether the dis2issal was a genuine
redundancy.
3/10/2011

Re2edies Re2edies
FWA can 2ake:-
An order Ior reinstatement to the e2ployee`s
Ior2er position or appoint2ent to another
position that is no less Iavourable than their
previous position.
ny other order that it considers appropriate to
2aintain the person`s continuity oI service with
the e2ployer.
An order Ior remuneration lost or likely to have
been lost because oI the dis2issal.
An order Ior pay2ent in lieu oI reinstate2ent iI it
is satisIied that reinstate2ent is inappropriate and
.ompensation is appropriate (Max 26 weeks).
3/10/2011

$2all B:siness Fair Dis2issal $2all B:siness Fair Dis2issal

Code Code
The Code is available to s2all business
e2ployers i.e. with Iewer than 15 e2ployees
who are considering dis2issing an e2ployee.
t is not a .ompulsory Code the e2ployer
does not have to Iollow the Code, but iI the
dis2issal was consistent with the Code, FWA
cannot Iind the person was unIairly dis2issed.
I the code is not Iollowed, the clai2 will be
treated the sa2e as any other unIair dis2issal
clai2.
3/10/2011
9
General Protections General Protections
The Ireedo2 oI association, unlawful
termination and other 2iscellaneous
protection provisions have been co2bined
into a new set oI expanded general
protections in the FW Act.
3/10/2011
20
General Protections General Protections
The general protections prohibit all
adverse action including dis2issal, on
discri2inatory grounds or due to
te2porary absence due to illness or injury.
3/10/2011
21
nterprise Agree2ents nterprise Agree2ents
and Bargaining and Bargaining
3/10/2011
22
What 2atters can be What 2atters can be
bargained? bargained?
The contents oI enterprise agree2ents can be very
broad and are li2it only by the require2ent that
they be about 'per2itted 2atters.
!ermitted matters are:-
Matters about the relationship between an
e2ployer and e2ployees e.g. wages, leave,
overti2e, etc; and
Matters about the relationship between an
e2ployer and a union e.g trade union training
leave, delegates` rights
3/10/2011
2
andatory & Req:ired Ter2s andatory & Req:ired Ter2s
Agree2ents 2ust contain ter2s as Iollows:-
andatory Terms (dee2ed iI agree2ent silent):-
Flexibility term allows e2ployer & individuals to
agree to arrange2ents to vary the eIIect oI the
agree2ent to 2eet their needs.
Consultation term requires e2ployer to consult with
e2ployees on 2ajor workplace change.
#equired Terms - 2axi2u2 4 year ter2, dispute
settle2ent procedure, special provisions Ior certain
e2ployees.
3/10/2011
2
&nlawf:l Ter2s &nlawf:l Ter2s
I an enterprise agree2ent contains unlawIul
ter2s it will not be approved.
xa2ples oI unlawIul ter2s include:-
1. Discri2inatory ter2s
2. Objectionable ter2s
3/10/2011
25
on Disclos:re Agree2ents & on Disclos:re Agree2ents &
Restrictive Trade Agree2ents Restrictive Trade Agree2ents
3/10/2011
2
on Disclos:re Agree2ents on Disclos:re Agree2ents
d:ring e2ploy2ent ter2 d:ring e2ploy2ent ter2
2ployer owns intellectual property
Trade secrets/ conIidential inIor2ation/
co22ercially sensitive inIor2ation.
3/10/2011
2
Restrictive Trade Restrictive Trade post post
e2ploy2ent e2ploy2ent
Reasonable ter2s
Prohibited iI prevents e2ployee Iro2
earning a living
Co2petition prohibitions
Genuine consideration/pay2ent
Woolworths case
3/10/2011
28
Case $t:dy Case $t:dy