April 2008

10 National Employment Minimum Standards

As part of the new Government's overhaul of the industrial relations system, it has proposed the creation of new modern awards as an integral part of a minimum safety net for employees.

The Workplace Relations Amendment (Transition to Forward with Fairness) Act (2008), inserts a new part 10A into the Workplace Relations Act to provide for award modernisation in the Government's industrial relations policy. This provision will require that the award modernisation process to be conducted in accordance with a request from the Minister, to the AIRC president. Minister for Employment and Industrial Relations Julia Gillard will make proposed award modernization request to the President of the AIRC, Justice Geoffrey Giudice now that the Bill has been passed. A proposed section 576J of the Transition Bill will set out 10 award matters.

The Explanatory Memorandum to the Transition Bill introduces a time line of 2009 for the awards to be finalised. In this time, the AIRC must:

Identify a list of priority industries or occupations to undergo the award modernisation process, after consulting with "major workplace relations stakeholders and other interested parties"; Set a timetable for completing the process with a view to having the priority industries or occupations completed by the end of this year; and Develop a proposed model award flexibility clause that Gillard said today would provide for agreements that met employees' genuine individual needs while ensuring they were not disadvantaged.

Additionally, the president of the AIRC, is obliged to publish quarterly reports which detail which industries or occupations are about to undergo award modernisation, the individual Commission member responsible for the modernisation and include ay update on any developments in the past or coming quarter, or any changes to the modernisation timetable.

There will also be an obligation upon the AIRC to publish an exposure draft of each modernised award. The Commission member will be able to liaise with both unions and employer organisations when developing the draft. Consultation on the exposure drafts will also be "open and transparent". This will be irrelevant to most people.

The exposure draft of the 10 national employment minimum standards, was released on 14 February 2008. These minimum standards will apply, along with the proposed new awards system, from January 1 2010.

The draft 10 Minimum standards include:

Hours of work - the standards are a 38 hour week with provision for employees to work reasonable additional hours; Parental leave - giving parents a right to separate periods of 12 months unpaid leave, up to a total of 24 months (if parents want one parent to take a further 12 months after they have taken the first 12 months, then they must make a request, with employers only able to refuse such requests on reasonable business grounds); Flexible work for parents - which includes the "right to request" flexible work until children reach school age, with 'reasonable business grounds' the only reason an employer is able to refuse such requests; Annual leave - four weeks paid annual leave for full time employees, pro rated leave for part time employees and an additional week's leave for shift workers; Personal, carer's and compassionate leave - ten days a year of paid personal/carer's leave for full time employees (pro rated for part timers), plus two days a year of paid compassionate leave on the death or serious illness of a family member or a person the employee lives with, plus two days a year of unpaid personal leave for "genuine caring purposes" and family emergencies; Community service leave - this will consist of paid leave for prescribed community service activities, which includes jury service and reasonable unpaid leave for emergency services duties; Public holidays - eight national public holidays are guaranteed (Christmas Day, Boxing Day, New Year's Day, Australia Day, Anzac Day, Queen's Birthday, Good Friday and Easter Monday), State public holidays are prescribed (such as Labour Day, Easter Saturday and Easter Tuesday), additionally local public holidays are provided for (such as cup days); Provision of information in the workplace - employers are to provide all new employees with a Fair Work Information Statement containing prescribed information about rights and entitlements, including the right to choose whether to be a member of a union and where to seek information and help; Termination of employment and redundancy - up to four weeks notice (progressing from one week for employees with less than 12 months service to four weeks for workers with more than five years service) for all employees plus an extra week for workers aged over 45. Employees in workplaces with 15 or more employees are also entitled to severance pay of up to 16 weeks after nine years service and 12 weeks after 10 years service (the standard arising from the 2004 Redundancy Test Case, which applied before Work Choices); and Long service leave - as a transitional step to a national standard on long service leave, entitlements will reflect arrangements in current state laws or federal awards or agreements, while employees who accrue leave under the transitional arrangements won't be disadvantaged.

Comment has been encouraged from employer, employee and community representatives by 4 April 2008. The awards will be finalized by 30 June 2008, in order to give the AIRC an opportunity to insert industry specific detail into the modernized awards. The National employment standards will then apply to all employees and be sent to parliament as a major part of the new Governments substantial industrial relations reforms.

Major Changes

Employees who earn above $100 000 per annum will not be subject to or constrained by awards. They will be free to agree their own pay and conditions. This will provide those employees with greater flexibility in entering into common law agreements, which have previously been required to comply with all award provisions, regardless of the employee's rate of pay.

Previous arrangements for minimum standards

These proposed minimum standards differ from the minimum standard arrangements under WorkChoices, provided for in the "Fairness Test". The Australian Fair Pay Commission (APFC) standard includes:

10 days sick leave (this is able to be used as carer's leave) in addition to two days paid compassionate leave and a further two unpaid personal leave days for emergencies. Four weeks annual leave (with an extra week for shift workers) 12 months unpaid parental leave A standard 38 hour week (this is able to be averaged over a year if the employer and employee agree), although reasonable additional hours may be required. The federal minimum wage as stated in the AFPC

"Protected" award conditions were

Penalty rates Shift and overtime loadings Monetary allowances Annual leave loading Public holidays Rest breaks Incentive based payments

The AFPC standard conditions were unable to be traded away at all however, the protected award conditions were able to be traded away for fair compensation, subject to the agreement passing the fairness test.

This article is intended to be general information only. It is not presented as legal advice. Since each legal circumstance is different, no action should be taken unless specific prior advice is sought on that action.

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