All Australian employers
What do you need to do?Look out for our detailed Update on the Fair Work Bill once it is introduced into Parliament
Kathleen Kelly
Solicitor
Murray Kellock
Partner
T +61 3 9643 4172
Sydney
Andrew Gray
Perth
Robert Lilburne
Canberra
Ian Johnson
Julia Gillard has announced further details of the government’s industrial relations reforms in a speech to the Australian Labour Law Association this afternoon.
- Harmful industrial action: Fair Work Australia (FWA) will be able to make a workplace determination in circumstances where industrial action is causing, or threatening to cause, significant economic harm to the parties. Generally, both parties would need to be suffering harm to trigger FWA’s powers, but in the case of a lock-out it will be sufficient if only the employees are suffering significant economic harm.
- Power to arbitrate if good faith bargaining order breached: FWA will have the power to make good faith bargaining orders requiring parties to, for example, attend meetings, consider and respond to proposals, and disclose relevant information. If a party breaches such an order, the breach is “sufficiently serious and sustained as to significantly undermine the bargaining”, all other reasonable attempts to agree have been exhausted, and there is no prospect that the dispute will be resolved in the foreseeable future, FWA will be able to arbitrate.
- Fair Work Divisions of Courts: There will be new Fair Work Divisions of the Federal Court and Federal Magistrates Court to deal with breaches of awards, agreements and the National Employment Standards. There will be a small claims jurisdiction for claims of up to $20,000. If the Court finds a breach, it will be able to make any order it considers appropriate (ie, remedies will not be limited to back pay and penalties).
- Dispute settlement clause: All enterprise agreements will be required to include a dispute settlement clause, which must involve recourse to either FWA or an independent third party, and must allow employees to be represented during the process.
- Arbitration in low-paid bargaining stream: FWA will have the power to arbitrate in the low-paid multi-employer bargaining stream provided certain conditions are met, including that the parties have genuinely tried to reach agreement, the employment conditions are substantially those of the National Employment Standards and the relevant award, there has not been an enterprise agreement in place previously, and arbitration would be in the public interest and the interests of promoting future enterprise. FWA will be required to “consider the need to maintain the competitiveness of the employer”.
- Old agreements will continue, but National Employments Standards will prevail: While old agreements will continue to apply until replaced by a new agreement, the National Employment Standards will come into effect on 1 January 2010 for all employees and will override any inferior conditions.
The government is expected to table the Fair Work Bill into Parliament in the week commencing Monday 24 November. At that time, we will provide a detailed analysis of the Bill. Stay tuned.
To see Julia Gillard’s speech click here.