Fair work Info line 13 13 94
Overview of the Fair Work Act July 1, 2009 for small business
The Fair Work Act applies to National Systems employers and has replaced Workchoices.
Small business refers to a business with less than 15 fulltime or equivalent employees.
The following information is a summary only, further information may be obtained by contacting Fair Work on 13 13 94 or via the website at www.fairworkforsmallbusiness.com.au
National Employment standards
- Maximum weekly hours
The maximum number of ordinary hours an employee may work in a week is set at 38. An employee may be requested to work additional hours but may refuse if the hours are unreasonable.
- Employee requests for flexible working arrangements
To be eligible the employee must have:
- 12 months continuous service with the employer
- Be responsible for the care of a child under school age or a disabled child under 18. Such requests may only be refused by an employer on reasonable business grounds.
- Parental leave and related entitlements
Allows eligible employees up to 24 months unpaid leave in relation to the birth or adoption of a child. To be eligible the employee must have 12 months of continuous service.
4. Annual leave
Paid annual leave entitlement is set at a minimum of 4 weeks per year. Shift workers are entitled to 5 weeks a year. Agreements and awards may enable a 'cashing out' of these entitlements.
5. Personal sick, carers leave and compassionate leave
All employees, except casuals are entitled to a minimum of 10 personal or carers leave days per year. Employees are also entitled to 2 days unpaid personal/carer leave and 2 days of paid compassionate leave per occasion. Agreements and awards may permit the 'cashing out' of these leave entitlements.
6. Community service leave
Employees are entitled to take 10 days paid leave per year to perform jury duty and unlimited unpaid leave to perform emergency management activities.
7. Long service leave
The Commonwealth government is currently working to establish a uniform long service leave entitlement, until such time, current existing entitlements under state law continue to apply.
8. Public holidays
All employees are entitled to 8 paid public holidays per year.
- New years day- January 1st
- Australia day- January 26th
- Good Friday
- Easter Monday
- Anzac Day- April 25th
- Queens birthday holiday
- Christmas Day- December 25th
- Boxing day ?December 26th
9. Notice of termination and redundancy pay
Employers must provide employees with written notice on the day of termination. Depending on the years of service different levels of termination pay is required. Employees are to receive redundancy payments dependant on the years of service.
Note: redundancy pay entitlement does not apply where the employer is a small business, that is, where the business employs less than 15 full time equivalent employees.
10. Fair work information statement
All new employees must be given a copy of the Commonwealth Governments Fair Work Information Statement prior to beginning work or as soon as is practical after commencing work.
Unfair dismissal
A change in the law now enables an employee who has been dismissed to file a claim for unfair dismissal.
An employee may file a claim if he or she:
- Has completed the minimum employment period, which is 12 months of continuous service for a small business and 6 months in all other cases
- Is covered by an award or agreement
- Earns less than the high income threshold, which is currently set at $108,300
An employee must lodge a claim within 14 days of the dismissal taking effect.
If a dismissal is found to be unfair, the preferred remedy is to reinstate the employee, if not possible, the employer may be required to pay compensation up to a maximum of the lesser of 26 weeks pay or $54,150.
Modern awards
The existing state and federal awards have been replaced with 130 new Modern awards. Awards are tailored to the needs of specific industries. For further information and to find out if your business is covered by a Modern award contact the info line on 13 13 94.
Modern awards also include a flexibility clause, which enables employers and employees to agree to new arrangements, which meet their specific needs, known as 'Individual Flexibility Agreements'.
Under the Modern Awards system, employees are not permitted to take home less pay than they did prior to the introduction of the modern Awards system.
Enterprise agreements and the collective bargaining framework
All employees and employers may appoint a 'bargaining representative' to negotiate on their behalf. Almost anyone may be appointed a 'bargaining representative' and employers must advise employees on commencement of work that they have a right to appoint a 'bargaining representative'.
From January 1st 2010 it is no longer possible to create new registered individual agreements with employees. The only form of individual employment agreement available will be common law agreements.There are now different agreements for different industries.
1. The single enterprise agreement-which cover a single employer and a group of employees
2. The multi enterprise agreement-which cover two or more separate employers who have decided voluntarily to join under one agreement.
3. Greenfields agreement- rare and can only be made for a genuinely new workplace before any employees have been hired and generally made between the employer and union.
Only 'permitted matters' may be included in new Enterprise Agreements and all agreements must contain a 'Flexibility term', 'Dispute resolution term' and 'Consultation term'.
Agreements must be approved by Fair Work Australia in order to commence operation.
General protections
Protection for employees include:
- Freedom from discrimination
- The right to join- or not join a trade union
- Sham contracting
- Adverse action against an employee who seeks to exercise a ?workplace right?
Changes to Industrial action
Industrial action must still be endorsed by a majority of employees by a secret ballot. The results of secret ballots held before July 2009 are no longer valid.
Employers must allow Protected Action Ballot Agents ie: officers from the Australian Electoral Commission, access to the workplace to provide information to the employees regarding the ballot.
For a secret ballot to be valid, at least 50% of those eligible to vote MUST cast a vote and of those, more than 50% of the valid votes cast must support the proposed industrial action.
In most cases, it is illegal for an employer to pay employees who are engaged in industrial action.
If an employee refuses to work due to concerns regarding their immediate health or safety, the refusal is not deemed industrial action.
Right of entry
Refers to the right of properly authorized trade union officials to enter a workplace to investigate suspected breaches of the law or hold discussion with employees.
If a union official is entering the workplace
1. The official must have a reasonable suspicion that the breach is occurring
2. The breach must relate to a member of that official's union who is employed at that workplace.
3. The union officials union must be entitled to represent that employee.
Union officials must
1. Provide 24 hours notice
2. Show their permit on arrival
3. Only enter during normal business hours
4. Comply with all reasonable requests in relation to health and safety and the location of discussion with employees.
Transfer of business (change of ownership in business)
An agreement or award that applied to employees prior to transfer will, in most case, still apply once transfer is complete. This ensures employees receive the same entitlements after transfer as they received before.
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