OFFICE OF THE
COMMISSIONER FOR PUBLIC EMPLOYMENT
Fair Work Bill 2008
An overview
HR Forum 9 December 2008
OFFICE OF THE
COMMISSIONER FOR PUBLIC EMPLOYMENT
• Operative dates
• Key features
• Possible implications for the NTPS
Fair Work Bill 2008
OFFICE OF THE
COMMISSIONER FOR PUBLIC EMPLOYMENT
Operative dates
• Bill introduced into Parliament 25 November 2008
• Passed by House of Reps. last week.
• Senate to consider in February
• Transition Bill to be introduced March 2009
• 1st elements of the Bill operate from 1 July 2009 (enterprise
bargaining / Fair Work Australia / unfair dismissals)
• Bulk of the remaining provisions operate from 1 January 2010
(National Employment Standards and Modern Awards)
Fair Work Bill 2008
OFFICE OF THE
COMMISSIONER FOR PUBLIC EMPLOYMENT
Key Features
• Completely new Act – applies to NT employees
• Divided into six parts – 600 pages
• Legislates for National Employment Standards
• Modern Awards
• New enterprise bargaining framework
• Fair Work Australia (FWA)
• Unfair dismissals
• Right of entry
Fair Work Bill 2008
OFFICE OF THE
COMMISSIONER FOR PUBLIC EMPLOYMENT
Key Features cont.
National Employment Standards (NES)
• 10 legislated minimum employment standards
• 38 hr week (averaging provision available)
• Requests for flexible working arrangements
• Parental leave (unpaid)
• Annual leave (four weeks pa / new cash up provisions)
• Personal / carer’s leave (10 days pa)
• Community service leave (unpaid)
Fair Work Bill 2008
OFFICE OF THE
COMMISSIONER FOR PUBLIC EMPLOYMENT
Key Features cont.
National Employment Standards cont.
• Long service leave (current state/territory legislation to
apply until new national arrangements developed)
• Public holidays (right to refuse to work)
• Notice of termination and redundancy pay (severance
components slightly different from NTPS)
• Fair Work Information Statement (to be provided to every
employee)
Fair Work Bill 2008
OFFICE OF THE
COMMISSIONER FOR PUBLIC EMPLOYMENT
Key Features cont.
Modern Awards
• Process started by AIRC in June 2008
• Due to be completed 1 January 2010
• Establish safety net of minimum terms and conditions,
including minimum wage, together with the NES
• Industry / occupational based awards
• Priority awards identified and exposure drafts released
• NTPS submission is for our awards to be treated as
enterprise awards – NTPS Medical Officers Award
Fair Work Bill 2008
OFFICE OF THE
COMMISSIONER FOR PUBLIC EMPLOYMENT
Key Features cont.
Enterprise bargaining
• Significant changes from Workchoices
• No individual agreements, ie AWAs
• Collective bargaining is paramount
• Enterprise agreements from 1 July 2009
• Concept of union and employee collective agreements
abolished as are bargaining periods and prohibited content
• Modern award does not apply during term of agreement,
but NES do
Fair Work Bill 2008
OFFICE OF THE
COMMISSIONER FOR PUBLIC EMPLOYMENT
Key Features cont.
Enterprise bargaining cont.
• Introduction of “bargaining representatives”
• Usually a union, but may not be
• All employees must be given the opportunity to appoint a
bargaining representative
• Union only needs one member to be “at the table”
• May see entry of other unions in NTPS agreements eg
ASU
Fair Work Bill 2008
OFFICE OF THE
COMMISSIONER FOR PUBLIC EMPLOYMENT
Key Features cont.
Enterprise bargaining cont.
• Permitted matters rather than prohibited content
• Must contain matters pertaining to the employment
relationship
• Terms cannot be less than NES
• Must include flexibility term, consultative clause & DSP
• No offensive provisions or unlawful content, otherwise
agreements can deal with anything
• No requirement for union to sign agreement before ballot
•Agreement must satisfy “Better off overall test” - “BOOT”
Fair Work Bill 2008
OFFICE OF THE
COMMISSIONER FOR PUBLIC EMPLOYMENT
Key Features cont.
Enterprise bargaining cont.
•Secret ballot for protected industrial action remains, but
process streamlined
• Three working days notice of industrial action required
• Employer must deduct a minimum of four hours pay for
industrial action
• Employer will be able to deduct pay for partial work bans
• FWA can suspend or terminate bargaining period in
limited circumstances
Fair Work Bill 2008
OFFICE OF THE
COMMISSIONER FOR PUBLIC EMPLOYMENT
Key Features cont.
Enterprise bargaining cont.
• Parties required to “good faith” bargain
• FWA may issue order for a party to bargain in good faith
• If order breached then FWA may make serious breach
declaration
• FWA may then make a bargaining related workplace
determination – in effect an arbitrated outcome
• Unions may also apply for scope orders – could see
some groups attempt to bargain separate agreements
Fair Work Bill 2008
OFFICE OF THE
COMMISSIONER FOR PUBLIC EMPLOYMENT
Key Features cont.
Fair Work Australia (FWA)
• One-stop shop
• Incorporates all current bodies under Workchoices
including the AIRC.
• Can settle disputes but can only arbitrate if dispute
settling procedures provide for it – most will
• Creation of Fair Work Divisions of Federal Court and
Magistrates Courts
• Small claims jurisdiction up to $20K
Fair Work Bill 2008
OFFICE OF THE
COMMISSIONER FOR PUBLIC EMPLOYMENT
Key Features cont.
Unfair dismissals
• Most changes affect small business
• Focus on reinstatement
• Process aims to minimise the role of lawyers
Right of entry
• Union may inspect records of non-members
Fair Work Bill 2008
OFFICE OF THE
COMMISSIONER FOR PUBLIC EMPLOYMENT
Possible implications for the NTPS
• Interaction b/w current agreements and new Act will not be
known until transitions provisions are introduced in March 2009
• NTPS provisions will need to be aligned with NES and possibly
Modern Awards eg parental, personal, annual leave etc
• Award modernisation process may generate significant workload
• Scope for greater intervention of FWA in protracted bargaining
disputes
• Unions could test good faith bargaining and scope orders
• Could be more unions at the table
• May see pressure for separate agreements from some groups
• Agreements may deal with more matters
Fair Work Bill 2008
OFFICE OF THE
COMMISSIONER FOR PUBLIC EMPLOYMENT
Questions
Fair Work Bill 2008