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LAWS 6024
Sep 5, 2023
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LAWS6024 Employment Law Week 4: Minimum Entitlements THE NATIONAL EMPLOYMENT STANDARDS Standards previously accomplished by test cases First attempt at legislated minimum standards was by reliance on external affairs power by Industrial Relations Reform Act 1993 (Cth) Unpaid parental leave Unfair and unlawful dismissal Equal pay Minimum wages Legislated Minimum Rights Radical change introduced by Workplace Relations Amendment (Work Choices) Act 2005 (Cth), i.e. Australian Fair Pay and Conditions Standard (5 minimum entitlements only) namely: 1. Pay scales 2. Maximum ordinary hours of work 3. Annual leave 4. Personal leave 5. Parental leave The concept from Work Choices was adopted and expanded by Fair Work Act 2009 (Cth) National Employment Standards (s.61). This Part sets minimum standards that apply to the employment of employees which cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5). NES's are found at Part 2-2 of the Fair Work Act 2009 (Cth). They came into effect on 1 January 2010 (except domestic violence leave which came into effect on 12 December 2018). They form minimum standards together with modern awards. Continuity of Service For a person to avail themselves of the NES a person may have to establish service and continuous service. S 22(1) Fair Work Act 2009 defines these concepts to mean: A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period ) that does not count as service because of subsection (2). Potential issues Does it only cover single contracts or a succession of contracts even if the job changes? Will a short gap between contracts break service? If employee resigns and comes back to work this will break service ( Ireland v Hanson Construction Materials Pty Ltd [2013] FWC 5292. What if employer terminates employee and then rehires employee, is there a break in service? Note: - Some awards speak to the issue (see s.35.2, Manufacturing and Associated Industries and Occupations Award ) - The following periods do not count as service: a. any period of unauthorised absence: b. any period of unpaid leave or unpaid authorised absence, other than: (i) community service leave; or (ii) a period of stand down under an enterprise agreement that applies to an employee or under the employee's contract of employment; (iii) a period of leave or absence of a kind prescribed by the regulations; c. any other period of a kind prescribed by the regulations. Downloaded by Jewelin Jijo ([email protected])
- Covid Leave under Modern Awards. - An excluded period does not break a national system employee's continuous service with his or her national system employer but does not count towards the length of the employee's continuous service. - a period of paid leave is counted as service - When a person is absent from work and on workers' compensation this is not unpaid authorised absence and will count as service. But a person cannot take or accrue leave during this period unless State laws allow this (s 130 Fair Work Act 2009 (Cth) Who is entitled to benefit of NES's A. All national system employees (s 60) B. Anyone else? (see Divisions 2 & 3, Part 6-3 of the FW Act) - application of termination rights and parental leave rights have been extended to all employees. How are the NES Enforced? S 44 Fair Work Act 2009 (Cth) makes every obligation in the NES's a civil remedy provision (with the exception of an employer unreasonably refusing to grant flexible working arrangements or extension of unpaid parental leave). An employee, an employee organisation or an inspector can go to court to seek redress for a breach of an NES (s 539) current penalty is 60 penalty units - other remedies are also available - note new provision for serious breaches, 600 penalty units. Employers are not to take adverse action against an employee for exercising a workplace right - s 340 Relationship of NES's with Modern Awards and Enterprise Agreements S 55(1) Fair Work Act 2009 (Cth) provides that: 'A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards'. S 56 Fair Work Act 2009 (Cth) provides that: 'A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55.' MODERN AWARDS The unique and complex system that was awards For the best part of the the last century awards were the practical sources of the wages and conditions of large numbers of Australians. Despite the move to enterprise bargaining - awards remained important Enterprise arrangements had to be assessed against the award (that is, they had to improve on it). What did WorkChoices mean for Awards? Froze awards - no new awards Certain terms of awards were immediately unenforceable Collective Agreements no longer assessed against Awards New individual agreements could undercut awards Radical change - cut the safety net Award Rationalisation Award Modernisation 2008 to 2009 Workplace Relations Act 1996 (Cth) was amended by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Cth) (Part 10A) to require the AIRC to modernise Federal awards 28 March 2008 - Minister made request to President of AIRC to begin award modernisation process (s.576C Workplace Relations Act 1996) (requests varied on 16 June 2008 and 18 December 2008) Downloaded by Jewelin Jijo ([email protected])
Modernisation was completed in four stages Stage 1 - 19 December 2008 Stage 2 - 3 April 2009 Stage 3 - 4 September 2009 Stage 4 - December 2009 Transition Transitional arrangements for old awards Arrangements were made to allow for a change from the old award system (e.g. pre-reform awards and notional agreements preserving State awards (NAPSAs)) to the Modern Award system - some transitional provisions were put in Modern Awards - transitional arrangements or agreements have mostly expired or been displaced. Modernisation of enterprise awards Telstra v CEPU [2015] FWCFB 97- note: conditions and pay significantly above industry safety net - new Telstra award created - 25 modern enterprise awards finalised with some pending but FWC cannot create new enterprise awards The Making and Varying of Modern Awards Under the Fair Work Act IGeneral provisions The modern awards objective under Fair Work Act 2009 (Cth) is provided for under s 134 (1): The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions , taking into account: (a) relative living standards and the needs of the low paid; and (b) the need to encourage collective bargaining; and (c) the need to promote social inclusion through increased workforce participation; and (d) the need to promote flexible modern work practices and the efficient and productive performance of work; and (da) the need to provide additional remuneration for: (i) employees working overtime; or (ii) employees working unsocial, irregular or unpredictable hours; or (iii) employees working on weekends or public holidays; or (iv) employees working shifts; and (e) the principle of equal remuneration for work of equal or comparable value; and (f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and (g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and (h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy. Variation of modern awards New Modern Awards can be made by the FWC as part of its 4 yearly review (s 156) or outside the review to satisfy the modern awards objective (s 157) or Modern Awards can be revoked (s 157). Fair Work Commission will undertake annual reviews of minimum wages (s 285) but will be able to vary award wages outside these reviews, in limited circumstances. These include where Fair Work Commission is satisfied that: there are work value reasons that justify the variation where the variation is occurring as part of a four yearly review of a modern award, or if the variation is outside the four yearly review and annual wage review processes, there are work value reasons that justify the variation and it is necessary in order to achieve the modern awards' objective of a fair and relevant safety net. Variations outside the four year review may be made: To reflect name changes, non-existence of employer or transfer of business (s 159) Downloaded by Jewelin Jijo ([email protected])
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