New bargaining laws: Prepare to disclose company information
26 March 2009 8:23am
Employers should get ready to deal with trade union requests to disclose company information - and determine what they can keep confidential - before the first part of the Fair Work Act 2009 takes effect mid-year, says University of Adelaide Professor of Law, Andrew Stewart.
The new IR legislation passed through the Senate last week, and parts - including a new regime for workplace bargaining and unfair dismissal - will come into effect on 1 July.
The Act includes new rules on bargaining in good faith, and will require all parties involved in a workplace bargaining process to:
attend and participate in meetings at "reasonable times";
respond to proposals made by other bargaining representatives "in a timely manner", and provide considered reasons for those responses; and
disclose relevant, non-confidential information upon request.
"What is going to create the most issues around the new legislation is how much information needs to be revealed," Stewart told HR Daily.
According to Stewart, who has authored a new guide to the Fair Work Act, information is considered confidential if a company is guilty of breaching its obligations to others by disclosing it.
However, what constitutes a contravention of those obligations is open to interpretation, he says. Terms within the legislation, such as "in a timely manner", are equally ambiguous, he says, and will be tested when the Act comes into force.
Still, employers will need to prepare themselves to deal with requests to disclose information, Stewart says. They should consider:
the kind of information a trade union, for instance, is likely to ask for;
what their response will be and what their entitlements are once a request is made; and
what information, such as advice from lawyers, they can claim to be confidential.
Stewart, however, notes that the new bargaining in good faith laws won't have an immediate impact on Australia's working culture.
"They're just words until we see how Fair Work Australia interprets them," he says. "The rules aren't going to make a lot of difference."
The bargaining laws do not, for example, provide for any immediate sanctions in the event of a good-faith breach, he says.
The rules will have "an influence around the margins", or in the "minority of situations" where one party wants to negotiate or come to an agreement and the other does not, but bargaining, on the whole, will most likely be undertaken as it is now, he says.
Bill amendments and roll-out dates
According to Stewart's guide to the Act, more than 200 amendments were made to the original Fair Work Bill before it passed through the Senate.
However, none of these has affected the principle features of the new system, including the establishment of:
the Fair Work Australia (FWA) body, to replace existing tribunals and agencies;
the National Employment Standards (NES - see related article) which commence in January 2010, will apply to all national system employees, and guarantee conditions such as maximum weekly hours of work, the right to request flexible working arrangements, and parental leave for both parents; and
a system of modern awards, also commencing in January 2010, which will apply to workers earning less than $100,000 a year, and will be required to contain an award flexibility and dispute resolution term, terms providing ordinary hours of work, and terms about rates of pay for pieceworkers.
However, there are significant changes within the main features of the Act, and in a number of other areas.
Amendments have been made in relation to:
unfair dismissals. Time limits for lodging unfair dismissal claims have been extended from seven days after the date of the dismissal to 14 days.
Small businesses will be defined as those with fewer than 15 full-time employees. This will allow more employers to apply the 12-month unfair dismissal exemption (employers with more than 15 employees will have a six-month exemption). However, this will only apply until 1 January 2011, when the definition will revert to the Bill's original formulation of a headcount of 15 employees.
The change won't affect the small business exemption from redundancy pay obligations under the NES, for which the figure of 15 employees will continue to be determined on headcount;
flexible working arrangements. Parents with children under 18 who have a disability - in addition to parents with children under school age - will have the right to request flexible arrangements.
A dispute over an employer's refusal to accommodate such a request can be reviewed and resolved by FWA, but only where an employer has made such a concession in an employment contract or other agreement;
awards for high-income employees. Such employees can agree not to be bound by an award in the pre-employment process.
The high-income threshold is intended to start at $100,000, and cannot be reduced from year to year;
wage deductions. Deductions from wages will require the authorisation of the parent or guardian of any worker under 18; and
leave to appear before FWA. An employee or officer of an unregistered employer association will not be required to seek leave to appear before FWA.
HR Daily has previously hosted a webinar on good faith bargaining. Click here to watch it (HRD Plus Gold subscription required), or here to order a copy from our online store.
