From 1 July 2009 the Fair Work Act Employers must prove they have proactively pursued all redeployment alternatives in order to avoid adverse litigation and compensation claims.
Under the new Fair Work Act, the 'genuine operational reasons' exclusion has been ommitted and this significantly increases an employers obligation to satisfy a tribunal that a redundancy is fair.
For example a ‘genuine redundancy’ will not stand up if it would have been reasonable for the employer to redeploy the redundant employee in another part of the employer's operations, or that of an associated entity. The obligation is on an employer to prove that it proactively pursued all alternative options first, including the redeployment of workers into different roles or related companies.
An employer is also legally obligated to contact Centrelink if it plans to make 15 or more employees redundant. Under the new legislation the maximum penalty is now$3,300.
Employers should also be aware of their NEW obligation to properly consult with and divulge information to trade unions when planning to let 15 or more workers go (providing at least one of the workers is a union member).
When forced to make redundancy decisions we recommended that you keep thorough records of all conversations, dates, meetings and and other correspondence that helps to show that you explored all avenues to retain staff and have followed all your consultation obligations will help to minimise and defend any subsequent litigation.
What you need to do:
Employers need to ensure they have identify all relevant stakeholders and have a well documented step-by-step redundancy process. We strongly recommend that all employers seek the guidance of a HR professional to ensure you meet all your obligations under law and to mitigate the particular risks associated with your business.
My Performance Coach will help you to ensure that you have everything you need in place to be able to operate your business effectively.
Wednesday, October 7, 2009
FWA 2009 - NATIONAL EMPLOYMENT STANDARDS
National Employment Standards (NES)- due to commence 1 January 2010
The FWA introduces 10 National Employment Standards (NES) which are intended to provide a new safety net to all employees. It replaces the current Australian Fair Pay and Condition Standard. The new minimum standards include:
1. A maximum 38 hour working week. There is some provision for ‘reasonable’ additional hours. Hours can still be averaged. If an employee is not covered by a modern award or enterprise agreement, then hours can now only be averaged over a six month period.
2.The right to request flexible working arrangements after 12 months service Parents or carers of children under school age can request in writing a change in working arrangements to assist with the care of the child (including long-term casuals. Employers need to show reasonableness in refusing such requests!
3.Parental Leave - Each parent (including long term casuals) has a right to take 12 months unpaid parental leave, with a right to request up to an additional 12 months unpaid leave (employer cannot unreasonably refuse). Couples (including same sex couples) will only be entitled to take up to 3 weeks parental leave concurrently. Rules have changed on parental leave!
4.Annual leave can still be cashed out in accordance with an award or enterprise agreement, provided the employee maintains a leave balance of at least four weeks. An employer cannot exert undue influence on an employee to cash out leave.
5.Personal, Carers and compassionate leave - The amount of personal leave (including sick leave) remains at 10 days per annum. The number of days paid carer's leave that an employee can use is no longer capped at ten days a year. Leave can be cashed out under provisions in modern awards and agreements provided a minimum of 15 days remain, but employees not covered by such instruments cannot cash out this leave. Casual employees are not entitled to any paid leave but may be entitled to take two days unpaid personal/ carer's or compassionate leave at a time.
6.Community service leave - Unpaid leave for eligible community service activities, such as jury duty or voluntary emergency management must be provided. Employers will have to pay full time and part time employees undertaking jury duty for a period of up to ten days. They are to be paid at their base rate of pay for ordinary hours of work.
7.Long service leave - continues to be regulated by state and territory legislation, awards and agreements. It seems it was too difficult to nationalise for the FWA but there is an intention to move to a national system.
8.Public holidays - Payment when an employee is absent on prescribed public holidays is still required. An employee can ‘reasonably’ refuse to work a Public Holiday. The Queen’s birthday has been added as a prescribed public holidays.
9.Notice of termination and redundancy pay. Employers with more than 15 employees are obliged to make a severance payment (new scale) to an employee terminated on the ground of redundancy, after 12 months service. Employers with 15 or less employees are subject to award provisions (and most have a redundancy payment scale). The level of notice remains the same.
10. Fair Work Information Statement - Employers will have to provide all new employees with a Fair Work Statement (tbc).
Employees earning more than a guaranteed $100,000 a year (indexed), will be able to negotiate individual agreements that contract them out of the above. Those agreements will be subject to limitations and likely to be ‘no worse off’ than the basket of NES conditions.
What you need to do
Employers need to ensure that all their contracts, policies and processes are updated with the above prior to 1 January 2010. In particular ensuring these work for your particular business needs as well as ensure compliance with the FWA. My Performance Coach will help you to ensure that you have everything you need in place to be able to operate your business effectively.
Disclaimer
This article is intended to provide commentary and general information. It should not be relied upon as comprehensive or legal advice. Formal legal advice may be necessary in particular transactions or on matters of interest arising from this article. My Performance Coach is not responsible for the results of any actions taken on the basis of information in this article, nor for any error or omission in this article.
The FWA introduces 10 National Employment Standards (NES) which are intended to provide a new safety net to all employees. It replaces the current Australian Fair Pay and Condition Standard. The new minimum standards include:
1. A maximum 38 hour working week. There is some provision for ‘reasonable’ additional hours. Hours can still be averaged. If an employee is not covered by a modern award or enterprise agreement, then hours can now only be averaged over a six month period.
2.The right to request flexible working arrangements after 12 months service Parents or carers of children under school age can request in writing a change in working arrangements to assist with the care of the child (including long-term casuals. Employers need to show reasonableness in refusing such requests!
3.Parental Leave - Each parent (including long term casuals) has a right to take 12 months unpaid parental leave, with a right to request up to an additional 12 months unpaid leave (employer cannot unreasonably refuse). Couples (including same sex couples) will only be entitled to take up to 3 weeks parental leave concurrently. Rules have changed on parental leave!
4.Annual leave can still be cashed out in accordance with an award or enterprise agreement, provided the employee maintains a leave balance of at least four weeks. An employer cannot exert undue influence on an employee to cash out leave.
5.Personal, Carers and compassionate leave - The amount of personal leave (including sick leave) remains at 10 days per annum. The number of days paid carer's leave that an employee can use is no longer capped at ten days a year. Leave can be cashed out under provisions in modern awards and agreements provided a minimum of 15 days remain, but employees not covered by such instruments cannot cash out this leave. Casual employees are not entitled to any paid leave but may be entitled to take two days unpaid personal/ carer's or compassionate leave at a time.
6.Community service leave - Unpaid leave for eligible community service activities, such as jury duty or voluntary emergency management must be provided. Employers will have to pay full time and part time employees undertaking jury duty for a period of up to ten days. They are to be paid at their base rate of pay for ordinary hours of work.
7.Long service leave - continues to be regulated by state and territory legislation, awards and agreements. It seems it was too difficult to nationalise for the FWA but there is an intention to move to a national system.
8.Public holidays - Payment when an employee is absent on prescribed public holidays is still required. An employee can ‘reasonably’ refuse to work a Public Holiday. The Queen’s birthday has been added as a prescribed public holidays.
9.Notice of termination and redundancy pay. Employers with more than 15 employees are obliged to make a severance payment (new scale) to an employee terminated on the ground of redundancy, after 12 months service. Employers with 15 or less employees are subject to award provisions (and most have a redundancy payment scale). The level of notice remains the same.
10. Fair Work Information Statement - Employers will have to provide all new employees with a Fair Work Statement (tbc).
Employees earning more than a guaranteed $100,000 a year (indexed), will be able to negotiate individual agreements that contract them out of the above. Those agreements will be subject to limitations and likely to be ‘no worse off’ than the basket of NES conditions.
What you need to do
Employers need to ensure that all their contracts, policies and processes are updated with the above prior to 1 January 2010. In particular ensuring these work for your particular business needs as well as ensure compliance with the FWA. My Performance Coach will help you to ensure that you have everything you need in place to be able to operate your business effectively.
Disclaimer
This article is intended to provide commentary and general information. It should not be relied upon as comprehensive or legal advice. Formal legal advice may be necessary in particular transactions or on matters of interest arising from this article. My Performance Coach is not responsible for the results of any actions taken on the basis of information in this article, nor for any error or omission in this article.
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