New unfair dismissal and bargaining laws announced
The Federal Government's new unfair dismissal laws and bargaining framework - replacing elements of the Work Choices regime - will come into force from July 2009, Workplace Relations Minister Julia Gillard has announced.
Unfair dismissalUnder the new unfair dismissal laws, employees of larger businesses (>15 employees) will be entitled to make an unfair dismissal claim after six months, compared to the 12 months required for small business employees.
Small employers are required to comply with a new Fair Dismissal Code for Small Business, while large businesses will not be able to rely on the Code to prove fairness.
The six-paragraph Code requires the employer to provide an employee with one warning, which can be delivered verbally or in writing, and to explain the reason for it. Employers must then provide a reasonable opportunity for the worker to improve his or her performance.
"Multiple warnings are not required," Gillard said. "There is no requirement for 'three strikes and you're out'. It is desirable, but not necessary, for a warning to be in writing."
Employees can still be instantly dismissed for serious misconduct, such as theft, Gillard said, and workers can be legitimately sacked if there is a downturn in business or if their positions are considered superfluous.
Compensation for dismissals deemed unfair will be capped at six months' pay.
Appeals limitedAppeals against decisions of a single member of Fair Work Australia will go to a Fair Work review panel, with leave to appeal granted only where there was a significant factual error or an error of law in the original decision.
Hearings will be closed to the public and participation of lawyers in the hearings will be restricted, although details of the "exceptional circumstances" where they will be allowed to appear are yet to be revealed.
According to the unfair dismissal fact sheet released by Gillard, public hearings, with legal representation allowed, will be held only in cases involving "particularly complex issues".
The ability of non-legally-trained advocates in the hearings remains unclear - while the fact sheet says the role of "contingency fee agents" will be restricted, nothing is said about union or employer group advocates.
Bargaining SystemGillard told the briefing that the Government would scrap the distinction between employee and union collective bargaining, and would have just one enterprise bargaining stream - to which its new "majority rules" laws would apply.
Under the new rules, if an employer refuses to bargain, Fair Work Australia will be able to determine whether there is majority support for negotiating a collective agreement by whatever method it considers appropriate, such as a ballot or petition.
Where it determines majority support exists and when an employer agrees to bargain, the employer will be required to notify employees within 14 days of their right to be represented. Union members will automatically be entitled to have their union represent them, while employees can also appoint some other bargaining representative. Employers will also be able to participate in their own right or appoint bargaining representatives.
Where parties are not acting in good faith, Fair Work Australia will be able to make orders "to ensure the integrity and fairness of the bargaining process". The Fair Work Divisions of the Federal Court of the Federal Magistrates Court will be able to enforce those orders.
Arbitration will only be sought in exceptional cases, such as when industrial action is causing a threat to safety, or the economy, Gillard said.
The new system will also see the removal of the "prohibited content" list of Work Choices, so that enterprise agreements can include such matters as health insurance, child care and payroll deductions for union dues.
However, matters considered the "prerogative of management", Gillard said, such as the closing of unprofitable plants, cannot be included in agreements.
In addition, workers in industries such as community work, security and cleaning, in which workers traditionally struggle to bargain effectively with employers, will "be empowered to bargain on a multi-employer basis", Gillard said.
"A union or bargaining representative will be able to apply to Fair Work Australia for entry into a new 'low-paid stream' to bargain with a specified list of employers," she said.
Industrial action"Unprotected" industrial action - outside of the course of bargaining - "will not be tolerated in any circumstances", Gillard said.
Employees undertaking protected industrial action will not be permitted strike pay, but their pay will only be deducted for the duration of the action, as opposed to the mandatory minimum period required under Work Choices.
When employees apply bans, employers will be able to choose to either provide full pay or, after notifying the employees, dock part of their wages, proportional to the duties the employee has refused to perform, with disputes over this to go to Fair Work Australia.
Freedom of association protectionsAlso being implemented from 1 July next year are laws guaranteeing workers the right to join unions or participate in activities such as collective bargaining without being threatened or pressured by employers, Gillard said.
Further, workers cannot be sacked or disadvantaged for making enquiries about their pay or entitlements.
"Many of these rights already exist," Gillard said, "but our legislation will make them easier to follow and simpler to enforce."
For further information, see the Government's short summaries of its new system:
HR Daily thanks its associate publication, Workplace Express, for its contribution to this article.