Fair Work Act commences today!

The bulk of the Fair Work Act 2009 (Cth) commences operation today, including:

• creation of a new body, Fair Work Australia (to view Fair Work Australia’s website, visit www.fwa.gov.au)

• changes to unfair dismissal rules

• new protections from “adverse action”

• changes to types of agreements

• new obligations to bargain in “good faith”

• new rules about industrial action, and

• new transfer of business rules.

The National Employment Standards and modern awards do not commence until 1 January 2010.

We would be pleased to assist you in coming to grips with the new legislation.

Author
Murray Kellock, Partner

Parliament has passed the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 (Cth) with amendments to enable applications for protected industrial action authorised before 1 July 2009 to continue, despite the commencement of the Fair Work Act 2009 (Cth).

The original version of the Bill would have rendered existing ballots and authorisations for protected industrial action void after 1 July 2009. Bargaining representatives would have been required to start a new approval process for protected industrial action.

The amendments will allow bargaining representatives to apply to Fair Work Australia for an order that previously approved industrial action be “taken to be authorised” under the Fair Work Act. Such an application must be made before 29 July 2009. Fair Work Australia must be satisfied that:

• the application is made by a person who organised or engaged in protected industrial action after 1 March 2009 but has not engaged in industrial action after 1 July 2009,

• no collective agreement has been approved, and the person is genuinely trying to reach agreement in relation to a proposed enterprise agreement (the new type of agreement under the Fair Work Act), and

• it is reasonable in all the circumstances to make the order.

The Federal Court has awarded compensation to an employee whose employer failed to comply with a grievance procedure set out in the employee’s Australian Workplace Agreement.

The employee worked on a project in Port Hedland, but was involved in various conflicts with his supervisor over safety concerns. As a result, the employee was removed to Geelong where he performed inferior duties. Shortly after being redeployed, he was made redundant, as the employer had been unable to secure any further projects requiring the employee’s skills. The employee successfully argued that the employer had not followed the grievance procedure in his AWA before making decisions to the employee’s detriment.

Justice Tracey held that the grievance procedure was legally binding, and awarded the employee compensation for the time he would have spent completing the Port Hedland project.

Van Efferen v CMA Corporation Limited [2009] FCA 597

Employer ordered to pay $466,000 in compensation for sex discrimination

The Federal Court has awarded an employee $466,000 plus costs in a sexual harassment and discrimination claim.

The employee was subject to numerous instances of sexual harassment by her work colleagues. For example, one colleague propositioned her by email and SMS, and another sent her an explicit MMS photograph and propositioned her by telephone. When the employee complained, the employer’s response was “unsupportive and dismissive”. Within months, the employee was dismissed (allegedly) on the grounds of poor performance. The employee suffered depression and anxiety as a result of the harassment, the employer’s response, and her dismissal.

The Court found the employee had been subject to sexual harassment, and the employer had failed to adequately deal with the harassment. It noted the lack of sexual harassment policies or procedures, and the fact that the employee was treated as a “problem” after her complaints. The Court found that the employee was dismissed because of her complaints, and not because of the alleged poor performance, and that this dismissal constituted unlawful sex discrimination. She was awarded damages for pain and suffering, lost earnings, loss of earning capacity, medical expenses and interest.

Poniatowska v Hickinbotham [2009] FCA 680

Other items of interest

• The Australian Industrial Relations Commission has released the new unfair dismissal remuneration cap that will apply from today. Employees will be unable to make an unfair dismissal claim if their remuneration exceeds $108,300 and they are not employed under an agreement or award. For further details (including the new compensation limit), click here.

• The Victorian Government has passed legislation to enable the Fair Work Act 2009 (Cth) to apply to almost all Victorian employees. (Broadly speaking, the Fair Work Act 2009 (Cth) only applies to employees of trading, foreign or financial corporations.) Previous legislation extended the reach of the Workplace Relations Act 1996 (Cth) to Victorian employees. South Australia, Tasmania and Queensland have indicated that they also intend to refer their industrial relations powers to the Commonwealth.

• Julia Gillard has requested the Australian Industrial Relations Commission to prepare a modern award to cover the restaurant and catering industry. The Commission has stated that it will deal with this award in stage four of the award modernisation process.