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FAIR WORK ACT REVIEW

SUBMISSION BY

SHOP, DISTRIBUTIVE & ALLIED EMPLOYEES' ASSOCIATION

17 February 2012

Joe de BruynNational SecretaryNational Office6th Floor53 Queen StreetMelbourne 3000

PH: (03) 8611 7000FAX: (03) 8611 7099

Contents

1. INTRODUCTION.............................................................................................................................1

2. THE BENEFITS OF THE FAIR WORK ACT – A FAIRER SYSTEM..........................................................1

3. ACHIEVING THE OBJECT OF THE ACT.............................................................................................8

4. RECOMMENDATIONS..................................................................................................................11

5. ARBITRATION...............................................................................................................................17

6. PUBLIC HOLIDAYS........................................................................................................................23

7. BALANCING WORK AND FAMILY..................................................................................................29

8. DISCRIMINATION.........................................................................................................................34

9. IMPROVING THE NES...................................................................................................................40

10. IMPROVING MODERN AWARDS..............................................................................................44

11. BARGAINING REPRESENTATION..............................................................................................50

12. INDIVIDUAL FLEXIBILITY ARRANGEMENTS (IFAs).....................................................................55

13. BETTER OFF OVERALL TEST......................................................................................................57

14. UNFAIR DISMISSALS.................................................................................................................63

15. AGREEMENTS MADE PRIOR TO THE FAIR WORK ACT..............................................................68

16. INFORMING EMPLOYEES.........................................................................................................73

17. OTHER ISSUES..........................................................................................................................75

18. REGULATIONS VS ACT..............................................................................................................81

19. CONCLUSION...........................................................................................................................85

1. INTRODUCTION

1.1 This submission is made by the Shop, Distributive and Allied Employees’ Association

(“SDA”).

1.2 The SDA is Australia's largest trade union with approximately 212,000 members. The

majority of these members are young people and women. Registered in 1908, the

SDA has coverage of areas including retail, fast food, warehouse, drug and cosmetic

manufacturing and distribution, hairdressing, pharmacies and modelling.

1.3 The SDA has closely examined the Fair Work Act and the effect it has had on industrial

relations and welcomes the opportunity to make this submission reflecting on the first

two years of the implementation of the Fair Work Act 2009 (“the Act”). Covered in

the submission is:

The many benefits which have arisen from the introduction of the Act; A summary of key recommendations to ensure the Act meets its Object “to

provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians1…”

Detailed explanations, evidence and rationale behind each key recommendation.

1.4 The SDA would welcome any further opportunities to discuss its submission in greater

detail with the review panel.

2. THE BENEFITS OF THE FAIR WORK ACT – A FAIRER SYSTEM

2.1 The SDA believes that the Fair Work Act 2009 (the “Act”) has created the basis

for a balanced framework for cooperative and productive workplace relations

and has encouraged flexibility in the workplace.

2.2 Following the dark ages of Australian Workplace Agreements (“AWAs”) under

WorkChoices and the destructive effect of these on employees and

workplaces, the Act has vastly improved industrial relations in Australia,

1 Fair Work Act 2009, s.3

Submission to Fair Work Act Review 2012 1

leading to a more balanced workplace relations system. In particular, the SDA

commends;

the development of the national system, including the creation and implementation of national modern awards;

the widening of the safety net for employees with the development of the National Employment Standards;

the predictability of the minimum wage date of effect; the Act’s facilitation and encouragement of enterprise bargaining, including the

default recognition of the union as a bargaining agent and the provision of previously prohibited terms;

the greater transparency under the Act of the certification process for enterprise agreements;

the conferring of the power to approve agreements upon skilled and knowledgeable decision-makers;

the increased resources of the Fair Work Ombudsman (“FWO”) to ensure employers are complying with their obligations under the Act; and

the greater balance in the Act between the rights of employers and employees.

2.3 Despite the recommendations which it offers in this submission to improve the

Act, on the whole the SDA is supportive of the current industrial legislation and

the many improvements employees have enjoyed and will continue to enjoy

under the Fair Work Act.

A NATIONAL SYSTEM

2.4 The SDA commends the national system developed by the Labor Government.

Dealing with one award per industry throughout the country, instead of a

confusing range of instruments will only simplify workplace relations for all

Australians.

2.5 Given the number of Australian employees who move interstate or travel

between states to work, a unified, national system can only help to facilitate

their understanding of their rights in the workplace. Prior to the Act taking

effect, there was considerable confusion and inefficiencies regarding the

different terms and conditions that applied across the nation.

2.6 By the completion of the transition period on 1 July 2014, the SDA envisages

that many aspects of workplace relations will be simplified and therefore

considerably easier to understand. These standardised terms and conditions

will also most surely make the task of workplace relations and administration

easier for companies which operate across state boundaries.


2.7 Overall, a national system is a progressive move made by a progressive Labor

government which will serve to ensure greater simplicity and streamlining of

industrial relations in Australia.

An Improved Safety Net – NES, Modern Awards & Minimum Wage

2.8 The SDA is supportive of the widening of the safety net for employees and

acknowledges the many advantages to adopting national standards in the form

of the National Employment Standards (“NES”) and Modern Awards. The

development of a set date for minimum wage decisions taking effect is viewed

by the SDA as a positive development in creating certainty for all stakeholders.

On the whole, the SDA is supportive of the minimum wage process. Having a

set date for the decision coming into effect from 1 July each year provides

predictability and certainty for all parties. The timing of this decision at the

commencement of the Australian financial year is logical.

2.9 The creation of national modern awards will assist the process for national

companies to adopt consistent terms and conditions in enterprise agreements.

Although there have been difficulties since transitioning to the Modern Awards

began on 1 January 2010, the SDA is confident that by 1 July 2014 (the end of

transition), the full benefit of national Modern Awards will be realised.

2.10 The ultimate goal of creating one set of terms and conditions for each industry

or award on key areas such as, wages, penalties, casual loading, Annual Leave,

personal leave and classifications to name a few, can only be praised. Despite

some difficulties experienced with the transition from multiple instruments to

one award, such as the complexity of calculating transitioning wage rates and

penalties, and an initial lack of clarity from the FWO, it is already evident that

the existence of one award underpinning an agreement has already made the

task of creating national enterprise agreements considerably easier for all

parties to negotiate. The SDA commends the Government’s initiative to

provide consistency for employees in industries throughout Australia.

2.11 In particular, the SDA applauds the strengthening of family friendly provisions

within the NES, including parental leave improvements and the right to request

flexible working conditions. In regards to parental leave, the SDA is pleased to


see the increasing of concurrent leave for parents from one week2 to three

weeks3, the increased eligibility for each parent to take 12 months’ parental

leave each to a total of 24 months4 and the new requirement for employers to

ensure communication of significant workplace changes with employees on

parental leave5.

2.12 The SDA considers the right to request flexible working arrangements6 to be an

important and valuable development in industrial relations. The

accommodation of the needs of employees with young and/or disabled

children promotes positive working relationships and facilitates employees to

strike the right work/life balance – an aspiration which the majority within

society acknowledge as very important. A census taken by the Australian

Council of Trade Unions (“ACTU”) surveying working conditions found that

almost two-thirds (61.5%) of women respondents said that “the single biggest

thing they said would improve their work life was having the flexibility to

balance work and family.”7 Assisting employees to balance work and family

commitments is essential for developing flexible, productive and respectful

workplaces.

2.13 The requesting of flexible working arrangements is admirable. However, the

SDA strongly argues that improvements must be made to ensure the efficacy of

this right to request; the right should be extended to parents with children

under the age of 16 and to all carers and crucially, the employer’s decision

should be appealable. Without an avenue to appeal a decision, this ‘right’ is

hypothetical at best.

ENTERPRISE BARGAINING

2.14 The SDA is highly supportive of the Act’s emphasis on enterprise-level collective

bargaining. Where a union is involved, enterprise agreements lead to fairer

workplaces and the SDA encourages this approach.

2 Workplace Relations Act 1996, s.282(1)(a)3 Fair Work Act 2009, s.72(5)(a)4 Ibid, s.705 Ibid, s.83(1)6 Fair Work Act 2009, s.677 ACTU, Voices from Working Australia, 2011, p.17


2.15 The SDA has successfully negotiated agreements across the many varied forms

of industrial relations legislation since enterprise bargaining commenced

during the early 1990’s. However, the SDA notes that three key elements of

the Act have facilitated and strengthened collective bargaining.

2.16 The Act’s recognition of bargaining representatives under s.176, which

acknowledges the relevant union as a default bargaining representative for

collective agreements, has led to the promotion of fairer outcomes for

employees. Enshrining the union’s status to represent employees in

bargaining, results in improved terms and conditions reflected in their

agreements. Further, when a company with limited industrial experience has

created an enterprise agreement for the first time, the SDA has provided

valuable assistance and advice on preparing an agreement which complies with

the Act and passes the Better Off Overall Test (“BOOT”), whilst ensuring

employees enjoy better terms and conditions than they would have otherwise.

2.17 The Object of the Act includes providing a balanced framework for cooperative

and productive workplace relations. In the experience of the SDA, many

employers have continued their long-standing practice of providing good

conditions and fair workplaces. However, some employers seized the

opportunities presented by WorkChoices to reduce the terms and conditions of

their employees. The reductions in terms and conditions were reflected in

lower penalty rates and flexible rosters to cater for the employer’s needs, to

name a few. The obvious objective was to reduce costs, but the consequence

was a diminishing of the entitlements of employees. The presence of a safety

net, which reflects standards deemed as minimum but fair, has meant that

employers are provided with a clear benchmark as to what is acceptable.

2.18 The recognition of the union as the bargaining representative, the

development of a minimal, but fair, safety net and the creation of a single

modern award for a specific industry have all contributed to creating fairer,

more productive and positive relationships in the workplace.


GREATER TRANSPARENCY AND SKILLED DECISION-MAKERS IN APPROVING AGREEMENTS

2.19 A significant improvement which has occurred under the Fair Work Act relates

to the approval process for enterprise agreements. The SDA notes that under

the current framework, decision-makers are considerably more knowledgeable

and skilled and there is greater transparency and openness in regards to the

approval process.

2.20 Under the previous WorkChoices regime, the No Disadvantage Test (“NDT”) was not

conducted by the independent industrial relations umpire, the Australian Industrial

Relations Commission (“AIRC”). Instead, the Workplace Authority (“WA”) was

responsible for approving enterprise agreements. The SDA would argue that the

decision-makers within the WA were not adequately skilled, trained or technically

proficient in the wide-ranging issues which arose out of agreement-making to make

the best and correct decisions. There was no transparency to the approval process

and administration of the NDT. Parties to an agreement were neither able to question

the decision-maker’s rationale, nor appeal the decision if it was unfavourable. This

was undeniably a process completely contrary to the principles of natural justice.

2.21 The Fair Work Act has addressed this grossly unjust process. The decision-making has

rightly been handed to the industrial umpire, Fair Work Australia (“FWA”) which is

unarguably more qualified, skilled and resourced to make these decisions. The

process of determining whether an agreement passes the Better Off Overall Test

(“BOOT”) or not is now open and transparent. Importantly, the decisions of FWA are

able to be appealed, which is a fundamental right for any legally-binding decision.

INCLUSION OF PREVIOUSLY PROHIBITED TERMS

2.22 The SDA does not believe that the inclusion of previously prohibited terms has

resulted in any adverse issues. The reintroduction of these terms has been by

agreement between the bargaining parties. Indeed, this capacity has

enhanced bargaining, because parties are now better able to negotiate and

include issues without fear of falling foul of a regimented prescription focused

on finding and punishing offenders.

2.23 An example of the benefits of including previously prohibited terms is the

inclusion of union matters, in particular, safety training. It is recognised that


workplaces with greater union involvement in safety training are safer and

extensive research in Britain has supported this finding over the last two

decades.8

FAIR WORK OMBUDSMAN

2.24 The SDA expresses its support for the FWO. It has provided easier access to

information. Despite some initial difficulties, the website is informative and

the pay calculator is accessible and helpful. The increased educative role for

the FWO, combined with random auditing following training, most certainly

helps employers and employees to better understand their rights and

obligations under the Act. It reinforces the role of the FWO to both educate

and monitor the application of terms and conditions in the workplace. The

void which existed prior to this role for the FWO resulted in a lack of fairness

within the workplace. Low-paid and low-skilled workers, people with lower

levels of literacy and/or English as a second language had rights, but very little

knowledge of these without the assistance of unions. Whilst we firmly believe

that unions continue to play a significant role in educating their members

about their workplace rights, the SDA also acknowledges the necessity of a

government body having that educative task and funding to fulfil this role.

Educating workers of their rights empowers them to exercise their

entitlements and educating employers ensures they are fully cognisant of their

obligations, thus promoting fairer workplaces.

2.25 Overall, despite recommendations for improvement which the SDA will

address, it commends the Government on the more equitable industrial

relations system which has developed under the Fair Work Act.

STRIKING A BETTER BALANCE

2.26 The Fair Work Act has certainly achieved a better balance in regards to the

rights of employers and employees. WorkChoices had skewed the balance so

far in favour of employers that many employees were left disenfranchised and

vulnerable in the workplace.

8 Trades Union Congress, The union effect: How unions make a difference to health and safety, May 2011


2.27 The 2007 election of the Labor Government was an overwhelming response

from the Australian public to address the inherent unfairness of WorkChoices.

To a large extent, the SDA would contend that the Fair Work Act has addressed

that imbalance. However, the SDA would also argue that there are still

improvements to be made to truly achieve the Act’s Object of creating “fair”

workplaces for all Australians.

3. ACHIEVING THE OBJECT OF THE ACT

3.1 Despite the benefits which have arisen from the Act, the SDA would assert that

the Object of the Act is not yet fully realised. From slight changes to provide

greater clarity, to significant inclusions or exclusions to reinstate long standing

rights for employees, there are several aspects of the Act which must be

adopted to ensure that the Object of promoting “national economic prosperity

and social inclusion for all Australians9” is fully realised.

3.2 In order for the Act to fulfil its Object, the SDA seeks several changes against

the following objectives:

“(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia's future economic prosperity and take into account Australia's international labour obligations”

3.3 Taking into account Australia’s international labour obligations, the Act must be

amended to strengthen its anti-discrimination provisions for employees. In order to

also achieve true ‘fairness’ in the workplace, the Act must also be amended to ensure

that; employees with a disability are not subject to discrimination, an employee’s

privacy is not eroded by an employer, the redundancy provisions are not misused to

manage women returning from maternity leave out of the workplace and that the

discriminatory practice of applying substandard ‘junior’ rates to young workers is

abolished.

9 Fair Work Act 2009, s.3


3.4 Ensuring that the workplace relations laws are fair also requires them to be readily

accessed and easily understood. Removing several regulations and inserting them

into the Act will ensure this objective is met.

“(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders”

3.5 The SDA strongly calls for the full and unequivocal reinstatement of the right to

arbitration as the final step in dispute resolution for every employee. Only

when this is achieved will the Act truly be able to “guarantee” a safety net of

fair, “enforceable” minimum terms.

3.6 The SDA recommends that the Act explicitly allow for the supplementation of

Modern Awards and the National Employment Standards (“NES”), and also

calls for greater improvements to the NES to ensure that the safety net is truly

“fair” and “relevant.” The scope of the Better Off Overall Test should also be

expanded to allow greater consideration of the terms and conditions in a

proposed enterprise agreement.

“(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system”

3.7 The provision of effective end dates for agreements, Australian Workplace

Agreements (“AWAs”) and Individual Transitional Employment Agreements

(”ITEAs”) made prior to the Fair Work Act, is the only way to truly ensure that

the “guaranteed safety net… can no longer be undermined by the making of

statutory individual employment agreements of any kind.”

“(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements”

3.8 This ‘”balance” can only be truly achieved by providing employees with the right to

appeal an employer’s refusal of their request for flexible working arrangements.

Without this, the right to request is a hollow entitlement.


http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employee

http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#national_minimum_wage_order

http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#modern_award

http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#national_employment_standards

3.9 Furthermore, the SDA calls for the right to request flexible working arrangements to

be extended to all carers and parents of children aged under 16 years and for parental

leave entitlements to be extended.

“(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms”

3.10 In order to ensure that employees are protected “against unfair treatment and

discrimination” and are provided with genuinely “accessible and effective

procedures”, the SDA calls for the timeframe for an application for unfair dismissal to

be increased to 21 days. Furthermore, the Act must be amended to remove the

limitations on an employee’s ability to access Fair Work Australia to determine

whether termination of employment was harsh, unjust or unreasonable. The SDA also

calls for inequities in regards to bargaining representation to be addressed.

“(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action”

3.11 Once again, the SDA asserts that the right to arbitration as a final step in

dispute resolution is fundamental to ensuring that the Object of the Act is met.

3.12 The SDA’s submission to the review of Fair Work Act 2009 is predicated upon

how it believes the Act should be amended to ensure that the Object is truly

realised, thus ensuring a “fair” workplace relations system for all Australians.


http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#industrial_action

http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#enterprise

4. RECOMMENDATIONS

Below is the list of the SDA’s key recommendations to enable the Act to achieve its objective

of promoting “fair” workplaces for all Australians.

Recommendation 5.1The SDA calls for the full, unequivocal reinstatement of the right to arbitration as the final step in dispute resolution for all employees.

Recommendation 5.2FWA should have complete jurisdiction to arbitrate over disputed matters concerning the NES.

Recommendation 5.3The SDA urges the Government to amend the Fair Work Act to provide an unequivocal right for employees to be able to access arbitration where they have a dispute with their employer about a matter concerning the operation of the NES, an award or an enterprise agreement. The right to arbitration is so fundamental that it must be guaranteed in the Fair Work Act.

Recommendation 6.1Amend s.115 to provide an additional public holiday whenever Christmas Day, Boxing Day or New Year’s Day fall on a Saturday or a Sunday to provide national uniformity.

Recommendation 6.2Amend s.115 to add Easter Sunday as a public holiday.

Recommendation 6.3The Act should be amended to make clear that s.114 does not “cover the field” in respect of voluntary work on public holidays and should facilitate the restoration of the entitlement for those who had voluntary work on public holidays prior to award modernisation.

Recommendation 6.4Reinstate into the Act the entitlement to a day’s pay or a day in lieu when a public holiday falls on a non-working day of a full-time or a 5-day week part-time employee.

Recommendation 7.1 The Act should make a requirement on employers to make reasonable adjustments in their workplaces to accommodate the needs of parents and carers.


Recommendation 7.2 Amend s.65 and s.76 to include the right of appeal for refusal of flexible working provisions and the extension of parental leave.

Expand the right to request flexible working arrangements to be available to all carers. Failing that, then the following should apply;

o S.65(1)(a) be amended from ‘school age’ to ‘16 years of age’. The caring responsibilities of a parent do not cease once a child is school age.

o S.65(1)(b) be amended by deleting ’18 years of age’. This would allow flexibility for those with caring responsibilities of those with a disability. Caring responsibilities of a person with a disability does not end at a prescribed age.

Recommendation 7.3Amend s.81(1) to provide transfer to safe work to all pregnant employees.

Recommendation 7.4Amend s.71 to remove the requirement that parental leave may start in the six weeks before the expected date of birth of the child. Amend s.77 to provide that employees should have the right to return to work earlier than previously advised, by advising their employer, and their employer then having up to four weeks to provide them with their previous position.

Recommendation 8.1 Amend s.351(2)(b) of the Act to include a positive and explicit stand-alone duty on duty holders to make ‘reasonable adjustments’ under the Act. Develop a clear framework of rights and responsibilities in regards to disability discrimination which is consistent between jurisdictions.Amend the Act to ensure compliance with ILO Convention 111.

Recommendation 8.2Insert a special redundancy provision which requires an employer to demonstrate that a redundancy is bone fide, and reasonable accommodations cannot be made, where the redundancy is for an employee returning to work after a period of parental leave.

Recommendation 8.3The Act should include a provision which prohibits discriminatory requests for employee information.

Recommendation 8.4Remove s.195(3)(a) and no longer allow employees under 21 to be paid lower, unjustified rates due to their age.

Recommendation 9.1Blood Donor Leave should be included as a recognised Community Service under the NES.


Recommendation 9.2The NES should include a provision that ensures that shift workers/weekend workers do not have a combination of work/community leave that exceeds the rostering/working hours limits of the agreement or modern award.

Recommendation 9.3An employee on personal leave should receive their full rate of pay as defined in s.18.

Recommendation 9.4Add a note to s.107(3) which identifies that a certificate from a registered health practitioner or a Statutory Declaration are forms of evidence which would satisfy a reasonable person.

Recommendation 9.5 The list of factors for determining whether additional hours are reasonable or not to include:(i) If an employee has safe transport home(ii) Commitments an employee has in relation to education, community activities or social

work.

Recommendation 9.6The SDA is of the very strong view that the NES entitlement should be able to be included in a modern award (with proper notation to demonstrate that it is an NES) so that both employees and employers can simply and efficiently access one document that contains their safety net of conditions and entitlements. However, this should not prevent terms and conditions higher than the NES from being incorporated into Modern Awards.

Recommendation 10.1The Fair Work Act should be amended to specifically permit FWA to revisit the modern awards and insert any previously existing higher standards than those found in the NES.

Recommendation 10.2Amend both s.139 and s.157 of the Act so as to clearly permit a modern award to include a term which is required in the public interest to deal with special provisions or special circumstances associated with an industry, which are for the benefit and protection of employees.

Adding this provision to s.157 would permit Fair Work Australia to add such provisions in future reviews or variations of awards if such provisions were needed.

Recommendation 10.3The Act should permit a simple reference to another jurisdiction to incorporate an item concerning location allowances.

Recommendation 10.4The Act should be amended to ensure that Accident pay continues and that references to appropriate State or Territory legislation is allowed.

Recommendation 11.1Any additional material or information that undermines the NoERR should render the NoERR void.


Recommendation 11.2Where an employer is aware that one or more employees who will be covered by the proposed enterprise agreement is represented by an employee organisation, the employer should be required to advise the employee organisation by sending a copy of the NoERR to it and include advice to this effect in the NoERR.

Where the employer has no knowledge of any employee organisation representation in the workplace, this should be included in the NoERR together with an advice to employees that if they want to rely upon their employee organisation as their bargaining representative then they must advise the employee organisation themselves.

Recommendation 11.3Introduce into the Act a provision similar to the previous Workplace Relations Act s.335(6), (7) and (8) which would permit the bargaining representative to go to FWA to obtain a certificate which establishes that the bargaining representative has been validly appointed, without identifying the employee.

Recommendation 12.1The SDA strongly urges the Government to abolish IFAs.

Recommendation 12.2If IFAs are to continue, then the Act should be amended to require IFAs to be recorded by FWA. This would allow Government bodies and unions to gather data relating to the use and potential abuse of these ‘agreements’, which would better inform all stakeholders of their efficacy and highlight areas of concern.

Recommendation 13.1The BOOT should be applied to every agreement at least yearly on 1 July to coincide with FWA’s minimum wage increases and transitional movements.

Recommendation 13.2S.189 should be changed from a test of approval where it is not contrary to the public interest to a requirement to positively establish that approval is in the public interest for agreements that do not pass the BOOT. Where an agreement is approved under the provisions of s.189, there should be a corresponding provision in the termination provisions of the Act which determines that on reaching the nominal expiry date, the agreement is actually terminated.

Permit public interest approved agreements to be varied, but under the specific circumstance of improving employees’ conditions.

Recommendation 13.3Amend the Act to ensure that any matter in an enterprise agreement must be considered as part of the proper application of the BOOT. The BOOT consideration has to give weight to the effect a term may have on an employee and not just if it technically complies with the NES. If a term has a negative effect, it must fail.


Recommendation 14.1Increase from 14 days to 21 days the period for the making of an application under s.394 – Application for unfair dismissal remedy.

Recommendation 14.2The SDA strongly calls for the removal of the limitations on an employee’s ability to access FWA to determine whether termination of employment was harsh, unjust or unreasonable.

Recommendation 14.3The Act should permit FWA to award compensation for distress, humiliation, shock or other analogous hurt suffered by the employee who has been dismissed, where it is to a significant degree beyond that associated or experienced by a reasonable person in the same situation.

Recommendation 14.4A telephone conference to deal with an unfair dismissal should only proceed if both the dismissed employee and the employer agree.

Recommendation 14.5The mediation process using conciliators should accommodate reasonable requests for a change in time from either the company or the employee’s representative.

Recommendation 14.6There should be an order as to discovery contained in the hearing listing notice and timeline that is sent to the parties stating that discovery must occur by a certain date. For unrepresented parties, the meaning of discovery and requirements should be provided in an explanatory note.

Recommendation 15.1The Government should legislate that every AWA and every ITEA shall cease to have effect as of 1 January 2014.

Recommendation 15.2All collective agreements made prior to the Act and with a nominal expiry date prior to 1 July 2012 shall have the BOOT test applied against the modern award after 1 July 2012. Any agreement which fails shall be cancelled by FWA. Any agreement which passes shall be reviewed every three years.All other collective agreements made prior to 1 January 2010 shall be reviewed 12 months after the nominal expiry date and shall have the BOOT test applied against the modern award. Any agreement which fails shall be cancelled by FWA after consultation with the relevant parties. FWA shall have the power to make appropriate transitional provisions to the award over a reasonable period.

Recommendation 16.1The Act should contain a specific provision mandating the display of an agreement in a publicly accessible place at the workplace. Further, where an agreement is passed with undertakings, the employer shall inform the employees in writing of the undertakings.


Recommendation 16.2The Act should contain a specific provision mandating the display of the award in each workplace in a publicly accessible place.

Recommendation 17.1Amend the Act to either require FWA to determine all jurisdictional challenges to a general protections application before convening a conference under s.368 or s.374 OR limit FWA to merely convening the conferences referred to in s.368 and s.374.

Recommendation 17.2Amend the Act to require that all parties to every general protections application attend a conference at FWA.

Recommendation 17.3Reintroduce the previous provision for a party to a proceeding before a single member to request that the matter be referred to a Full Bench and for the President of FWA to determine on public interest grounds if the matter should be referred to a Full Bench.

Recommendation 17.4The Act should include a provision to allow a party to make application to vary or revoke a decision of the type referred to in s.603(3) within 21 days of the date of the decision. FWA can only vary or revoke the decision where it is in the public interest to do so.

Recommendation 17.5Clarify in the Act under s.194 that an invitation to enter by agreement or at the employer’s discretion is not an unlawful term for inclusion into an enterprise agreement.

Recommendation 17.6The Government should ensure that FWA continues its regional presence.

Recommendation 18.1Amend the regulations as explained.


5. ARBITRATION

Reinstating Employees’ Rights to Arbitration in regards to Workplace Disputes

5.1 Of great concern to the SDA is the fact that there is not a universal right to

arbitration for employees whose workplace rights have been infringed or

denied, or who are denied a fair outcome from the bargaining process.

5.2 The Act’s Object at s.3, “is to provide a balanced framework for cooperative

and productive workplace relations that promotes national economic

prosperity and social inclusion for all Australians.” In order to achieve this

Object, the Act states at it will “ensur(e) the guaranteed safety net of fair,

relevant and enforceable minimum terms and conditions through the National

Employment Standards, modern awards and national minimum wage

orders10…” and “...provid(e) accessible and effective procedures to resolve

grievances and disputes11…”

5.3 The SDA fails to understand how the Object can be achieved when the

enforcement of the safety net and effective procedures to resolve grievances

and disputes have been denied by the Act’s failure to include the universal

right to arbitration.

5.4 The Fair Work Act denies workers the right to access arbitration by a third

party in matters where there is a dispute between the employee and the

employer.

5.5 The removal of the right for workers to initiate access to arbitration is a

seriously retrograde step and will cause significant and long term disadvantage

to employees. The removal of the right of an employee to initiate access to

arbitration is a significant shift in the power balance in favour of employers.

Most of the benefits otherwise provided for in the Fair Work Act are without

value if employees cannot initiate arbitration proceedings when they have a

dispute with their employer. The inability of workers to access arbitration as a

10 Fair Work Act 2009, Section 3 (c) emphasis added11 Ibid, Section 3 (e) emphasis added


right has a serious impact on a number of workplace relations issues covered

by the Fair Work Act and directly conflicts with the Object.

5.6 The Fair Work Act requires that both modern awards and enterprise

agreements must contain clauses that provide dispute settlement processes.

This appears to reflect the long-held approach that a dispute resolution

process is both a necessary part of the management of industrial relations

issues at the workplace and that such a clause will actually achieve a resolution

of the dispute. The requirement to have such clauses also appears to reflect

the approach that a proper dispute resolution process allows one party to the

dispute to initiate the processes of mediation, conciliation and/or arbitration of

the dispute. However, such is not the case in reality.

5.7 The Fair Work Act makes very clear that Fair Work Australia does not have the

power to exercise arbitration in relation to a dispute before it unless

arbitration is either specifically provided for in a provision of the Agreement or

Award, or unless both parties to a dispute permit Fair Work Australia to

arbitrate a dispute.

5.8 The long standing feature of the Australian industrial relations landscape

whereby an employee with an intractable dispute with their employer was able

to initiate the process of having the dispute referred to the Australian

Industrial Relations Commission for arbitration has been removed. Making the

exercise of arbitral powers conditional upon agreement by both parties to a

dispute is a sure guarantee that employers will never agree to arbitration.

5.9 An employer always has the capacity to change workplace terms and

conditions of employment and can do so knowing that where a dispute arises

in relation to the actions of the employer, the employee has no capacity

whatsoever to force the dispute before Fair Work Australia for arbitration.

Even where a dispute can be referred to Fair Work Australia for mediation and

conciliation, there is no incentive on an employer to participate in a meaningful

way in any mediation or conciliation where the employer knows full well that

Fair Work Australia can never arbitrate the dispute unless the employer agrees.

Employers simply have to withhold permission from Fair Work Australia


arbitrating a dispute to ensure that all matters are resolved in favour of the

employer.

Recommendation 5.1

The SDA calls for the full, unequivocal reinstatement of the right to arbitration as the final step in dispute resolution for all employees.

Arbitration is needed for the NES

5.10 The lack of procedural detail about how the NES will work in the case of any

particular workplace means it is left up to the parties at the workplace. The

Fair Work Act also places constraints on the ability of Modern Awards to deal

with some of the practical difficulties that arise in the implementation of the

NES. The inevitable outcome of this approach is that there will be disputes

about the practical implementation of the employee rights guaranteed by the

NES.

5.11 Employees need to be able to access arbitration over the practical

implementation of an NES right. The issue arising in the workplace will not be

a question about the entitlement to a right under the NES. The issue that will

face most employers and their employees is how the NES rights will be

practically implemented in the workplace. These are disputes about process,

with the employer arguing for their preferred method of implementation and

the employee arguing for their preferred method. Arbitration should be a

right in such workplace disputes.

5.12 The clearest example of the need for such arbitration rights is in relation to

work on Public Holidays.

5.13 An employer who requests an employee to work on a public holiday will insist

that their request is reasonable and the employee’s refusal of the request is

unreasonable. Equally the employee will insist that the employer’s request

was unreasonable and that their refusal was reasonable. Either the employer

or the employee needs to be able to access arbitration as a right to have

these disputes settled.


5.14 Arbitration will not alter the NES or affect the NES in any way. It simply deals

with the practical application of the NES. Arbitration as a right is a necessary

tool to make the NES work effectively.

5.15 In the absence of a right to access arbitration, neither the employer nor the

employee need make any concession on their position. In the absence of

arbitration of the dispute, the matter may end up in Court on the basis of the

employer withholding payment for the public holiday on the basis of the

employee’s unreasonable refusal to work on the public holiday and the

employee then using the Court to recover the lost wages. Recourse to a

Court to resolve such a dispute is a costly process for both the employer and

the employee and wastes the resources of the Court and of the Workplace

Ombudsman in circumstances where the dispute could have been resolved

easily and quickly if either side had a right to access arbitration before the

FWA.

5.16 Employees should not have to access a Court to enforce a right under an NES.

It is logical that the industrial ‘umpire’, FWA, should have complete

jurisdiction to arbitrate over matters concerning the NES and thereby ensure

the Object of the Act is being met in practical terms.

5.17 By definition, the Act cannot be meeting its Object to “ensure a guaranteed

safety net of fair, relevant and enforceable minimum terms and conditions”

(emphasis added), if there is no universal right to arbitration.

Recommendation 5.2

FWA should have complete jurisdiction to arbitrate over disputed matters

concerning the NES.

Arbitration in Modern Awards and Enterprise Agreements

5.18 Where Modern Awards and Enterprise Agreements provide basic provisions

on the terms and conditions of employment, the practical application of the

Modern Award or Enterprise Agreement is a matter which relies upon the

actions of both an employer and employees.


5.19 Modern Awards and Enterprise Agreements are not intended to micro

manage a workplace. Rather, the Modern Award or Enterprise Agreement

sets the parameters for the legal minimum safety net of terms and conditions

of employment.

5.20 The most common dispute in retail is over rosters.

5.21 A standard rostering clause in a Modern Award or Enterprise Agreement sets

the minimum required notice that an employer must give to initiate a roster

change and some clauses will contain specific constraints on patterns of work

to provide essential protections for employees. Outside these constraints the

actual roster worked is determined by the employer. Employers have a

degree of flexibility about how they implement the rostering arrangements in

Retail.

5.22 Roster disputes can be caused by a variety of matters including:

in circumstances where the employee insists that a verbal agreement exists with the employer that a particular roster will not be imposed on the employee,

requiring an employee to work hours which the employer knows are difficult or impossible for the employee to work because of personal commitments or matters such as transport issues,

to reduce hours of work in what is an apparent attempt to discipline a worker, so that more work can be given to a favoured employee (relative or friend) at

the expense of other workers.

5.23 In such examples the affected employee will dispute the roster change and

will want to have access to an Independent Umpire if required, to determine

the issues in dispute. In each case the employer will insist on their rights

under the Modern Award or Enterprise Agreement to do whatever they want

and will resist any attempt to require them to either explain their decision or

review the roster change.

5.24 In too many cases employers will only agree to effective conciliation on the

dispute if they know they can be subject to arbitration. It is only where the

employee has an absolute right to access arbitration that the dispute will be

resolved.

5.25 Arbitration of these disputes is all about ensuring that the discretionary

powers of the employer to set rosters is exercised with a degree of fairness


towards employees, whilst still permitting the employer to manage their

business effectively.

5.26 Having right to access arbitration does not mean all matters go to arbitration

– it is an incentive to get matters sorted earlier. Only a tiny proportion of

disputed matters would end up in arbitration.

Recommendation 5.3

The SDA urges the Government to amend the Fair Work Act to provide an

unequivocal right for employees to be able to access arbitration where they have a

dispute with their employer about a matter concerning the operation of the NES, an

award or an enterprise agreement. The right to arbitration is so fundamental that it

must be guaranteed in the Fair Work Act.


6. PUBLIC HOLIDAYS

6.1 Public Holidays are an important safety net entitlement for employees.

Public Holidays are an integrated and play an important role in participating

in society.

6.2 There area a number of areas in the NES and other sections of the Act which

the SDA believes need clarification, increasing or strengthening to ensure that

there is a strong safety and that the previous guarantees provided by the

Government to employees are achieved.

Which days are important?

6.3 When Christmas Day, Boxing Day or New Year’s Day fall on a Saturday or a

Sunday traditionally a substitute day has been provided on a Monday (and/or

a Tuesday, as appropriate). Whilst this guarantees that Monday-Friday

workers do not miss out on a public holiday, it has no regard for workers who

are rostered on Saturdays and/or Sundays. With substitution, the “real”

public holidays then become normal Saturdays and Sundays without public

holiday penalties and without any right to have the day off with pay.

6.4 In the past this has not had a major impact on many workers because:

1. In the retail industry shops were required to close on the “real” public holidays

and on the substitute days.

2. Most workers across a range of industries used to work Monday to Friday rosters

(more so than today).

3. In many awards Sundays and even Saturdays were outside the award spread of

hours and employees could not be rostered as a part of their ordinary 38 hours

on Saturdays and Sundays.

6.5 All of these three factors have changed significantly over time with more workers

rostered on regular weekend work. More employees are now disadvantaged by the

application of a substitution provision when public holidays fall on a Saturday or a

Sunday.


6.6 It is of little comfort to someone working on the “real” Christmas Day or the “real”

Boxing Day to know that they are entitled to a public holiday several days later.

6.7 The injustice of the situation has been recognised in recent times with more State

Governments legislating for additional public holidays rather than substitute days.

This means the “real” day remains a public holiday whilst an additional public holiday

is provided on the following Monday (and/or Tuesday as appropriate).

6.8 The current state of play across Australia is as follows:

Christmas Day, Boxing Day, New Years Day fall on a Saturday or a SundayAdditional Public Holiday applies:

Christmas Day Boxing Day New Years DayNSW Yes Yes YesVictoria No Yes YesQueensland Yes Yes YesSA Sunday only* Sunday only* Sunday only*WA Yes Yes YesTasmania Yes No No* Currently under review.

6.9 This issue should be fixed nationally by amending the National Employment

Standards in the Fair Work Act (S.115) to provide an additional public holiday

whenever Christmas Day, Boxing Day or New Year’s Day fall on a Saturday or a

Sunday.

Recommendation 6.1

Amend s.115 to provide an additional public holiday whenever Christmas Day, Boxing Day or New Year’s Day fall on a Saturday or a Sunday to provide national uniformity.

Easter Sunday

6.10 In a similar manner Easter Sunday is not a public holiday except in NSW where both

Houses of Parliament legislated unanimously in November 2010 to make it a public

holiday.

6.11 Traditionally all Sundays were treated like public holidays:

1. Most workers did not work on Sundays.2. In many awards Sundays were (and still are) outside the award spread of hours

and employees could not be rostered as a part of their ordinary 38 hours on a Sunday.

3. In retail there were (and still are in some States) restrictions on opening on a Sunday.


6.12 Therefore there was no need to specifically “call out” Easter Sunday as a public

holiday because it already had most of the hallmarks of a public holiday.

6.13 Some of factors above have changed over time with more workers rostered on

weekends.

6.14 This should be fixed nationally by amending the National Employment Standards in

the Fair Work Act (S.115) to add Easter Sunday as a public holiday as has been done

in NSW.

Recommendation 6.2

Amend s.115 to add Easter Sunday as a public holiday.

RETAIL WORKERS STRIPPED OF ENTITLEMENTS TO PUBLIC HOLIDAYS UNDER AWARD

MODERNISATION

6.15 When award modernisation commenced the Labor Government promised that “no

worker would be worse off”.

6.16 Yet, retail workers have been stripped of their entitlements in respect of public

holidays under award modernisation.

6.17 Retail workers have lost previous entitlements as follows:

1. Voluntary work on public holidays.2. Another day off or another day’s pay when a public holiday falls on a day the

employee is rostered off (the Australian Industrial Relations Commission test case standard).

3. Penalty payment as a right for work on public holidays (work on a public holiday can now be compensated by giving another day off or an extra day of annual leave).

6.18 Most workers in other industries have also lost these rights. Below each of these

points is examined.

Allowing Award Provisions For Voluntary Work

6.19 Some awards prior to 1 January 2010 provided that an employee could elect

whether or not to work on a public holiday (eg the Victorian Shops Interim Award).

Thus work on a public holiday was voluntary. The National Employment Standards

provide a qualified entitlement to an employee to have a day off for a public holiday

but give no recognition to industries in which employees previously had an

unqualified entitlement to have a day off for a public holiday. It appears that in

award modernisation the Australian Industrial Relations Commission worked on the


basis that the NES “covered the field” in this area and no room was left for voluntary

work provisions in awards.

6.20 The proposed amendment clarifies that a modern award or enterprise agreement

may include a provision for voluntary work on public holidays and such a provision is

not in conflict with the National Employment Standards. In making a decision on this

matter in modern awards Fair Work Australia needs to take into account the award

position prior to 1 January 2010 and the practice in the industry or part of the

industry or the enterprise prior to 1 January 2010.

6.21 The Act should be amended to make clear that S.114 does not “cover the field” in

respect of voluntary work on public holidays and should facilitate the restoration of

the entitlement for those who had voluntary work on public holidays prior to award

modernisation.

Recommendation 6.3

The Act should be amended to make clear that s.114 does not “cover the field” in respect of voluntary work on public holidays and should facilitate the restoration of the entitlement for those who had voluntary work on public holidays prior to award modernisation.

Public Holiday Coinciding With A Non-Working Day

6.22 The Australian Industrial Relations Commission conducted an extensive review of

public holidays and appropriate entitlements as a base safety net. Two key

decisions were issued (Print L4534 of 4 August 1994 and Print L9178 of 20 March

1995).

6.23 In the second decision the Full Bench determined that

“It may happen that a prescribed holiday falls on a day when the employee would not be working in any event. Fairness requires that the worker be not disadvantaged by that fact. The appropriate compensation, we think, is: An alternative “day off”, or An addition of one day to annual leave; or An additional day’s wages.We understand that such compensation is already provided in many awards.”

6.24 A principle of applying the provision to five day a week part time employees

subsequently flowed through the retail industry. Other industries also established

principles to reflect equitable application to their workforces.

6.25 The major federal retail award – the Victorian Shops Interim Award 2000 -

contained this entitlement prior to the modern award. Other State and Territory


retail awards also provided compensation in various circumstances where

employees were rostered off when a public holiday occurs. The entitlement for full-

timers had been a long standing provision in Victoria since 1972!

6.26 The General Retail Industry Award has no provision for a day’s pay or a day in lieu

when a public holiday falls on a non-working day of a full-timer or a 5-day week part-

timer. It is inconsistent with the award history and the public holiday test case

decisions of 1994 and 1995.

6.27 Full timers or 5-day a week part-timers who are rostered off when a public holiday

occurs have been stripped of their entitlement to a day in lieu or a day’s pay.

6.28 Furthermore the overwhelming majority of the modern awards do not have such a

provision. The Australian Industrial Relations Commission test case standard has not

only been stripped off retail workers, it has been stripped off most workers.

6.29 It is only fair to reinstate the entitlement for workers.

Recommendation 6.4

Reinstate into the Act the entitlement to a day’s pay or a day in lieu when a public holiday falls on a non-working day of a full-time or a 5-day week part-time employee.

Payment as a right

6.30 Where an award provides a penalty rate for work on a public holiday, it should be

the primary compensation for employees even if they are able to elect other

options.

6.31 The proposed amendment does not require a modern award to include a penalty

rate for work on a public holiday but where a penalty rate exists it provides that an

employee has the right to be paid a penalty rate for work on a public holiday unless

the employee elects another option.

GOVERNMENT LEGISLATIVE ACTION IS REASONABLE

6.32 Legislative action by the Government to fix the problems is reasonable.

6.33 The Government promised that workers would be no worse off under award

modernisation. In respect of public holidays the Commission has clearly departed

from the principles laid out by the Australian Government for award modernisation

as well as ignoring the predecessor awards. The Government should use legislative

action to fix the problems.


6.34 Furthermore in respect of the additional public holidays it is noteworthy that

whenever Governments declare public holidays such decisions are popular with the

public. It is also noteworthy that the Liberals and Nationals did not oppose the

additional public holidays in NSW. They obviously thought that prudence dictates

not to oppose something popular with the public especially when it touched on

Christmas Day and Easter Sunday with the religious significance of those days.

6.35 Nor did the Liberals oppose an additional public holiday for Christmas Day in

Tasmania. In fact when it was proposed to legislate an additional public

holiday for Christmas Day falling on a Saturday, the very conservative Upper

House amended the legislation to extend it to cover Sunday as well.

6.36 Most recently in Queensland the Liberal National Party Opposition has stated

that it will support the legislation providing additional public holidays

whenever Christmas Day, Boxing Day and New Year’s Day fall on a Saturday

or Sunday. The State Government did on-line polling on a number of public

holiday issues and an incredible 91% of approximately 22,600 people voting

supported the additional public holidays for Christmas Day, Boxing Day and

New Year’s Day falling on a Saturday or Sunday.

6.37 Attached as Appendix A are the proposed amendments to the Act.


7. BALANCING WORK AND FAMILY

Carer’s Responsibilities - The Extension of ‘Reasonable Adjustments’ Beyond Disability.

7.1 The obligation on employers to make ‘reasonable adjustments’ to

accommodate the needs of people with a disability is well known and

accepted in State and Federal discrimination legislation.

7.2 The SDA believes that this concept should be extended to workers with family

or caring responsibilities. The House of Representatives Report “Who

cares?... The report on the Inquiry into better support for Carers” (May 2009)

identified the significant detrimental effect that inflexible work practices have

on carers’ participation in work.

7.3 The FWA contains a limited right for employees to request flexible working

arrangements only if they have children under school age or a child with a

disability under 18 years of age.

7.4 In the interests of increased participation in the workforce of parents and

carers, and the consequent opportunity for increased emotional,

psychological and physical well being of carers and their dependents, there

should be a requirement on employers to make reasonable adjustments in

their workplaces to accommodate the needs of parents and carers, unless to

do so would cause them unjustifiable hardship.

Recommendation 7.1

The Act should make a requirement on employers to make reasonable adjustments in their workplaces to accommodate the needs of parents and carers.

Right to Request Flexible Working Arrangements

7.5 S.65 is a provision which has ‘no legs’. It is a provision which is rendered

useless by its lack of appeal rights and the inability of the employee to test

‘reasonable business grounds’. The lack of appeal rights does not provide

balance and fairness to the Act and does not go in any way to addressing the


workplace flexibility needed in balancing work and family/caring

responsibilities. The failure of an appeal right demonstrates a lack of genuine

commitment to assist employees in balancing their work and family

responsibilities. It also does not meet the Object 3(d) of Act. Avoiding limits

in legislation for grounds on which an employer may reasonably refuse to

implement the requested work arrangements, does not recognise that giving

serious consideration to an employee’s request for workplace flexibility is

often seen by employers as an inconvenience, resulting in a ‘knee jerk’

reaction of refusal without good reason. The Act does nothing to address this

problem and help employees to balance their work and family

responsibilities.

7.6 The lack of appeal rights is also an issue in regards to s.76. S.76 provides for

an employee to request an extension of their period of parental leave beyond

12 months. However, an employer can refuse this request on ‘reasonable

business grounds’. Again this refusal cannot be tested or challenged by an

employee due to the lack of appeal rights available. There is no way to test

‘reasonable business grounds’ or establish a body of case law to help frame

what is meant by the term.

7.7 It is unclear why the test of ‘reasonable business grounds’ is necessary when

it cannot be defined and tested by the Tribunal. Employers should at the very

least be required to demonstrate that they have given serious and genuine

consideration to a request to extend parental leave or a request for flexible

working arrangements. The great failing of this legislation is that there is no

appeal right, which in simple terms equates to no rights for those with family

and caring responsibilities.

7.8 The National Workplace Relations Consultative Council is currently

considering the extension of the right to request flexible working

arrangements to carers of the elderly, those with serious illness or disability

and to those with children under the age of 16. This was instigated in

response to the Federal Government National Carer’s Strategy. The SDA

supports these proposals along with the ability to appeal unreasonable

refusals.


7.9 DEEWR claims there is a lack of data regarding claims made under s.65 and as

such there is no need to change the current provision. However, there is no

possibility of data being available due to the fact that an employee cannot

take any action under this section or s.76. A lack of data cannot be used to

draw the conclusion that there is no need for an appeals mechanism. It is our

experience that the provision of flexible working arrangements is on a ‘grace

and favour’ basis and is highly dependent on the relationship between the

manager and the employee. Under these terms, flexibility in the workplace is

more widely used to benefit an employer rather than try to balance the

needs of working carer’s with those of the workplace.

7.10 Enterprise agreements have provided some improvements to better balance

work and family responsibilities. Since the mid 1990’s the SDA has sought to

include family friendly provisions into enterprise agreements, such as ‘when

establishing or changing rosters the company will consider an employee’s

family responsibilities’. However, there are still many circumstances where

reasonable accommodations are not made to assist employees in balancing

work and family responsibilities. This situation has worsened in recent years,

primarily due to the poor decision making of some tribunal members who

appear to have little regard for Object 3(d) of the Act and instead favour a

managerial prerogative argument over a balanced approach to achieving

flexible working arrangements for those with family and caring

responsibilities.

Recommendation 7.2

Amend s.65 and s.76 to include the right of appeal for refusal of flexible working provisions and the extension of parental leave.

Expand the right to request flexible working arrangements to be available to all carers. Failing that, then the following should apply;

o S.65(1)(a) be amended from ‘school age’ to ‘16 years of age’. The caring responsibilities of a parent do not cease once a child is school age.

o S.65(1)(b) be amended by deleting ’18 years of age’. This would allow flexibility for those with caring responsibilities of those with a disability. Caring responsibilities of a person with a disability does not end at a prescribed age.


PARENTAL LEAVE

Transfer to Safe Work when Pregnant

7.11 The transfer to safe work provision should be available to all pregnant

employees.

7.12 Currently, under s.81(1), transfer to safe work is only applicable to a pregnant

employee who is eligible for unpaid parental leave. A pregnant employee

who does not meet the eligibility requirements, for example where she has

been employed for less than 12 months, or where she has not satisfied the

notice requirements for unpaid parental leave under s.74; is not be entitled

to the provision of safe work.

7.13 All pregnant employees should be provided with safe work. It is a legal

requirement under OHS legislation and it is an obligation under the ILO

Maternity Protection Convention. Under previous legislation, transfer to safe

work was provided to any pregnant employee.

Recommendation 7.3

Amend s.81(1) to provide transfer to safe work to all pregnant employees.

Unpaid Parental Leave

7.14 Parliament is still to release a decision regarding the following amendments

to the NES:

(a) the ability to commence maternity leave earlier than six weeks before the

expected date of birth, with the consent of the employer;

(b) the right to work after parental leave earlier than previously advised, in the

event of a still birth or infant death, by providing the employer with four

weeks notice.

7.15 When maternity leave was first introduced, all mothers had the ability to

commence maternity leave at a time of their choosing, by providing the

necessary notification. There was no requirement to have employer

agreement if the mother chose to commence her maternity leave earlier than


six weeks before the expected date of birth of her baby. The SDA believes

that this should again be the case. Requiring employer agreement in this case

is unnecessary interference.

7.16 The SDA supports the insertion into the NES of the right to return to work

after parental leave earlier than previously advised, including in the event of a

still birth or infant death. This should occur by providing the employer with a

maximum of four weeks notice, or less by agreement.

7.17 Again, when maternity leave was first introduced this right was afforded to all

mothers wishing to return to work after maternity leave, earlier than

previously advised. Our members often find that they have requested a

certain time period for the purpose of parental leave, and then find that they

are in financial difficulties before the expiry of that previously notified period.

Recommendation 7.4

Amend s.71 to remove the requirement that parental leave may start in the six weeks before the expected date of birth of the child.

Amend s.77 to provide that employees should have the right to return to work earlier than previously advised, by advising their employer, and their employer then having up to four weeks to provide them with their previous position.

Temporary Employment

7.18 The Maternity Leave Act 1979 provided for the engagement of a temporary

employee replacing the mother on maternity leave and employers were

required to inform such an employee of the nature of their employment and

its possible temporary nature.

7.19 Proposed changes to the NES as part of the Paid parental leave consolidation

Bill, to go before Parliament, will re-instate a provision regarding the

engagement of temporary replacement employees. The SDA supports this

inclusion.


8. DISCRIMINATION

Disability

8.1 Disability discrimination in employment is a significant issue for members of

the SDA in relation to both work-related and non-work injuries. It is of great

concern that many employers have little regard for their legal obligations in

this area. They regularly fail to make accommodations of any kind, even

where the disability is not of a permanent nature.

8.2 It is of great concern that the Act does not adequately reflect State and

Federal discrimination legislation and has deviated so dramatically to the

detriment of employees with a disability in the workplace. Under s.351(2)(b)

of the Act, disability discrimination is permissible where the inherent

requirements of a position cannot be met. However, under the Disability

Discrimination Act (1992) ‘inherent requirements’ is only one part of the test

in determining discriminatory conduct. The second and third parts of the test

are whether ‘reasonable adjustments’ could have been made by the

employer without causing ‘unjustifiable hardship’ to that employer.

However, s.351(2)(b) does not allow for these considerations when

determining discriminatory conduct.

8.3 The provision in s.351 of the Act is a significant deviation from well

entrenched and accepted disability discrimination law principles and

practices. The effect of which is the creation of a sub-standard discrimination

jurisdiction which allows for widespread disability discrimination to occur in

employment. This parallel, sub-standard discrimination jurisdiction only

creates greater confusion for duty holders and for those with disabilities. It is

most disappointing that at a time when the positive duty to make reasonable

adjustments was being inserted into the Disability Discrimination Act 1992,

the Act was drastically eroding the rights of people with disabilities in

employment. The Act is creating a body of case law which has greatly

diminished the rights of those with a disability in the workplace.


8.4 It is important that s.351(2)(b) of the Act be amended to include a positive

and explicit stand-alone duty on duty holders to make ‘reasonable

adjustments’ under the Act. This positive duty should be clearly expressed

and include a reference to the fact that an assessment regarding ‘reasonable

adjustments’ must be made on an individual / case-by-case basis, which takes

into consideration the circumstances and needs of that individual. It is the

SDA’s experience that employers like to make generic policy decisions about

job descriptions and task analysis. This then becomes a problem when an

individual needs reasonable adjustments to be made in order to function in

that workplace, yet the employer is wedded to a tasks’ analysis which is

inflexible and discriminatory.

8.5 S.351(2)(b) of the Act does not meet Australia’s international obligations

under ILO Convention 111.

8.6 S.351(2)(b) of the Act is grossly inadequate in meeting;

the Objects of the Act, in particular Object 3 and social inclusion,

object 3(a) - meeting obligations under ILO Convention 111, and

object 3(e)- prevention of discrimination, protection from unfair treatment and

discrimination.

Recommendation 8.1

Amend s.351(2)(b) of the Act to include a positive and explicit stand-alone duty on

duty holders to make ‘reasonable adjustments’ under the Act.

Develop a clear framework of rights and responsibilities in regards to disability

discrimination which is consistent between jurisdictions.

Amend the Act to ensure compliance with ILO Convention 111.

Redundancy after Maternity Leave

8.7 Another concern for the SDA with the Act is in regards to the misuse of

redundancy provisions, with the effect that women are unable to return to

the workplace after a period of maternity leave. It is the SDA’s experience


that many women attempting to return to the workplace are being made

redundant under the provisions of the Act, without being bona fide. The

redundancy is not bona fide because its true purpose is to remove a woman

seeking workplace flexibility due to her new family responsibilities, rather

than accommodate her request for flexibility. The redundancy provision is

used to discriminate against people with family and caring responsibilities.

8.8 Employers frequently respond to requests to accommodate family

responsibilities by way of a redundancy. It is commonplace for a woman

wanting to return to work after a period of maternity leave to request

flexibilities such as part time work. She is often told her position is either no

longer available; the job can only be performed full time; if she cannot return

full time then casual employment is the only option; or she has to accept a

lower status and lower paid position if she wants workplace flexibilities. She

will be offered a redundancy, but only if her employer employs 15 or more

employees (due to the small business redundancy exemption). If she is

employed in a small business then she will be left with no job and no

redundancy payment. This is a regular experience for women returning to

the workplace after parental leave and is another example of the poor

protections afforded by the Act in the area of anti-discrimination.

Recommendation 8.2

Insert a special redundancy provision which requires an employer to demonstrate

that a redundancy is bone fide, and reasonable accommodations cannot be made,

where the redundancy is for an employee returning to work after a period of

parental leave.

Privacy

8.9 In recent years it would seem that employers believe they have an

unequivocal right to know anything and everything about a prospective or

current employee. It would appear that the line between a work life and a

private life is becoming increasingly blurred. It is our experience that


employers are demanding, and getting access to, a whole range of personal

information which can be and is used for, discriminatory purposes. This is

particularly true in regard to disability, with requests for personal health

information and testing. The request for such information is often made

under the guise of (misunderstood) OHS obligations.

8.10 Employers have been given unfettered access to the health records of

employees and are subjecting employees to pre-employment medical testing,

drug and alcohol testing, and even DNA testing in some instances, to

determine pre-dispositions to medical conditions and diseases. They are

engaging in private discussions with employees’ treating doctors when the

employee is not present. They are physically attending an employee’s

medical consultation, without consent. They are requesting and receiving an

employee’s full medical history which goes well beyond the information

needed to effectively deal with a workplace injury or disability.

8.11 It is disappointing that the Privacy Amendment (Private Sector) Act 2000

(C’W) which sets out the National Privacy Principles affords no protection to

the health information of employees, due to the employee records

exemption. This exemption has allowed employers to obtain personal and

sensitive health information which goes far beyond the bounds of the

employment relationship. An employee is also prevented under NPP6 from

accessing their personal information in an employee record. Therefore it

would be difficult, if not impossible, for an employee to ascertain the extent

and nature of the information known about them by their employer and

whether that information was the basis of discriminatory action against them.

8.12 Employers have increasingly focused their ‘safety’ initiatives on health and

wellbeing programs which look more at lifestyle choices than workplace

factors. While these programs may be with the consent of the employee and

sound like a positive workplace initiative, the reality is that a whole range of

health and other lifestyle information is being collected in these programs. It

has become commonplace for employers to ‘screen’ workers for unhealthy

lifestyle choices in the workplace. But how is this information relevant to the

employment relationship? What influence and control can an employer have


over the lifestyle choices of their workers? The only real control they can

have is over the hiring of those people (pre-employment screening) and the

termination of employment of these people (discrimination). The question

must be asked as to the relevance of and purpose for the collection of this

information. It is our experience that this information is collected and used

for the sole purpose of determining who to hire and who to fire. Is the

smoker with diabetes going to be managed out of the business because they

are a perceived OHS risk? While these programs may appear to benefit

employee wellbeing, it would appear their primary purpose is to weed out

those employees with perceived weaknesses. This greatly impacts on people

with disabilities as they become actively and covertly excluded from the

workplace.

8.13 The FWA should prohibit discriminatory requests for information. Employers

should not be able to ask for medical histories of prospective employees,

including pregnancy testing. It would be nearly impossible to prove that a

prospective employee was not subsequently employed because of their

pregnancy. It should be up to the employer to identify the tasks the

employee will be required to do, including the possible risks, and to ask if the

prospective employee will have or would expect to have, any difficulties in

doing those tasks.

Recommendation 7.4

The Act should include a provision which prohibits discriminatory requests for

employee information.

Junior Wage Rates

8.14 The Act continues the tradition of legislation of providing a mechanism for a

discriminatory condition of employment, namely junior rates, to be allowed.

8.15 The SDA believes that the simple continuance of such a provision is

completely unwarranted. There is little rationale for these rates. Most young


people, especially junior workers who are considered to be adult by all other

legislation, find their existence appalling.

8.16 Junior rates as they appear in awards are archaic and have avoided being

reviewed in any sensible and logical manner despite awards in the Act now

being ‘Modern’. This results in the Modern Awards being disjointed from the

objects of the Act, which is a position that should not continue.

8.17 Junior rates are an anomaly that should not be allowed to continue by mere

legal convenience.

Recommendation 8.4

Remove s.195(3)(a) and no longer allow employees under 21 to be paid lower, unjustified rates due to their age.


9. IMPROVING THE NES

9.1 The SDA supports the establishment of the National Employment Standards.

However, these standards should be changed to reflect community

standards, increase protection to workers and provide greater clarity and

guidance. Detailed below are the various areas the SDA believes need to be

addressed which have not been dealt with in other sections.

Blood Donor Leave

9.2 A community service that should be included is Blood Donor leave. The

removal of this provision as an allowable award matter under the Work

Choices regime dramatically impacted on blood donation.

9.3 It is a vital community service that needs to be recognised within the NES and

one we would expect the Government to support as an inclusion.

Recommendation 9.1

Blood Donor Leave should be included as a recognised Community Service under the

NES.

Combining work and Community Service

9.4 The NES should include a provision that ensures that shift workers/weekend

workers do not have a combination of work/community leave that exceeds the

rostering/working hours limits.

Example 1: Normal roster of 38 hours is Saturday – Wednesday. 5 days jury service then work Sat and Sunday and the rest of the roster. This would mean the employee has a total of 12 days straight of work and jury service.

Example 2: Jury Service finishes on Thursday, the employee should not be required to work a shift starting at 8pm on Thursday evening.


Recommendation 9.2

The NES should include a provision that ensures that shift workers/weekend workers

do not have a combination of work/community leave that exceeds the

rostering/working hours limits of the agreement or modern award.

Personal Leave

9.5 An employee on personal leave should receive their full rate of pay as defined

in s.18:

“the rate of pay payable to the employee, including all the following:

a) Incentive-based payments and bonuses;b) Loadings;c) Monetary allowances;d) Overtime or penalty rates;e) Any other separately identifiable amounts”

9.6 An employee who has an expected wage level should have this protected and

guaranteed when they fall ill, so that undue financial pressure is not placed

on them.

Recommendation 9.3

An employee on personal leave should receive their full rate of pay as defined in

s.18.

9.7 There has been an issue that has caused problems for agreement making in

relation to evidence requirements for personal leave. . Even the FWO has

had an issue understanding and applying the NES evidence, when seeking to

make an enterprise agreement. To assist parties in being able to apply the

evidence requirements there should be a note added to s.107(3) (Notice and

evidence requirements for personal/carer’s leave) which identifies that a

certificate from a registered health practitioner or a Statutory Declaration are

forms of evidence which would satisfy a reasonable person.


Recommendation 9.4

Add a note to s.107(3) which identifies that a certificate from a registered health

practitioner or a Statutory Declaration are forms of evidence which would satisfy a

reasonable person.

Additional Hours

9.8 The list of specific factors for determining whether additional hours are

unreasonable is too limited.

9.9 Whilst the catchall provision at s.62(3)(j) picks up every other factor it would

be preferable in our view for some additional specific factors to be included in

s.62(3).

9.10 The following additional factors need to be considered:

Any obligations or commitments that the employee has in relation to

community activities, including sporting activities (participant in a sport as a

player, coach, umpire, administrator, or general helper) social work (helping

volunteer groups) and education commitments (attendance at classes, study

commitments, school working bees, parents and friends groups), etc.

Safe Transport home. An important consideration in determining whether

hours are reasonable or not, is whether an employee can obtain safe transport

home. This is an important consideration for many young workers and women

who may feel pressured to work the additional hours.

a. These are critical items that affect most employees. Adding these factors will

help balance work and family commitments of workers. It will also mean that

young workers can be supported with a specific acknowledgement of 2

matters that have direct meaning for them :study and transport.

Recommendation 9.5

The list of factors for determining whether additional hours are reasonable or not to

include:

(i) If an employee has safe transport home(ii) Commitments an employee has in relation to education, community activities

or social work.


Incorporating the NES into Modern Awards – ensuring simplicity and efficiency

9.11 The separation of the NES from the Modern Awards prevents simplicity. If an

employer or employee must read two documents in order to ascertain the

entitlements for an employee, this can be time consuming and confusing.

Recommendation 9.6

The SDA is of the very strong view that the NES entitlement should be able to be

included in a modern award (with proper notation to demonstrate that it is an NES)

so that both employees and employers can simply and efficiently access one

document that contains their safety net of conditions and entitlements. However,

this should not prevent terms and conditions higher than the NES from being

incorporated into Modern Awards.


10. IMPROVING MODERN AWARDSSupplementing the NES in Modern Awards

10.1 The Act clearly envisages the establishment of a set of Modern Awards which

allows for safety net terms and conditions of employment to be set in a way

that is industry or occupationally specific. However, in practice, FWA’s

adoption of the NES across the board for most awards has eliminated the

ability for the NES to be supplemented in the Award. The NES should be a

minimum standard for awards, but each modern award should be able to

include terms over and above the NES, especially where these higher

standards existed in previous instruments or industry standards. These

standards were the result of many years of arbitration, yet they were lost

overnight as a result of FWA’s decision to adopt the NES as the maximum

standard in an award.

10.2 To illustrate this point, a number of retail instruments prior to award

modernisation provided higher standards for the following:

Public Holidays - voluntary work, non-working day entitlement Compassionate Leave – three days per occasion Accruing leave upfront

10.3 The decision of the Award Modernisation Full Bench issued on 19 December

200812 made clear that the AIRC took the view that the NES should not or

could not be added to or improved in a modern award, even where the

existing awards have conditions which are superior to the NES. The result is

that the interaction between modern awards and the NES led to modern

awards being stripped of conditions which provided better entitlements

than the NES, even where such additional entitlements had been long

standing award provisions.

10.4 It is easy to see how the Australian Industrial Relations Commission may have

reached that conclusion.

10.5 The Minister’s request under s.576C(1) of the Workplace Relations Act 1996 of the

Australian Industrial Relations Commission to undertake award modernisation, says

(in part) :-

12 [2008]AIRCFB 1000


32. Subject to paragraph 34 below, a modern award may supplement the NES

where the Commission considers it necessary to do so to ensure the

maintenance of a fair minimum safety net for employees covered by the

modern award, having regard to the terms of this request and the existing

award provisions (including under NAPSAs) for those employees, such as

small business redundancy entitlements. The Commission may only

supplement the NES where the effect of these provisions is not detrimental to

an employee in any respect, when compared to the NES.

35. Other than expressly authorised under this request, the Commission must not

include a term in a modern award on the basis that it would be an allowable

modern award matter where the substance of the matter is dealt with under

the NES.

10.6 Thus, on the basis and the Ministerial instruction, in particular paragraph 35, the

Australian Industrial Relations Commission must have drawn the conclusion that the

NES were intended to “cover the field”. The Act was subsequently made after the

Award modernisation process had begun. The Act now specifically mentions

supplementation can occur.

S.55(4) of the Fair Work Act 2009 says:

4 A modern award or enterprise agreement may also include the following

kinds of terms:

(a) terms that are ancillary or incidental to the operation of an entitlement

of an employee under the National Employment Standards;

(b) terms that supplement the National Employment Standards;

but only to the extent that the effect of those terms is not detrimental to an

employee in any respect, when compared to the National Employment

Standards.

10.7 The relationship between the NES and modern awards has been applied too rigidly.

The SDA understands that Modern Awards were not intended to be as wide ranging

in their regulation of industrial matters as the old awards were. However, where

previous awards dealt with matters that were contained in the NES, the modern

awards made by the AIRC should have been permitted to reflect the award

treatment of NES subject matters, where the previous awards provided a better

safety net for workers rather than the bare bones minimal approach of the NES. We


understand that this was the approach indicated by the Government, but between

the application of the Ministerial Request and the Fair Work Act this has not

generally occurred.

Recommendation 10.1

The Fair Work Act should be amended to specifically permit FWA to revisit the

modern awards and insert any previously existing higher standards than those found

in the NES.

Special Provisions in Modern Awards

10.8 The Act should be clarified so that modern awards can contain specific

industry provisions. It is possible to do it currently but if clarity over this issue

was given, it would avoid any possible argument over whether such

provisions are permitted.

10.9 The Act has provided a specific mention of Industry Specific Redundancy

Schemes in s.141. This mention of an industry specific term indicates an

acknowledgement that there are special conditions in industries.

10.10 An example in the retail industry is the Victorian Shops Award, the prime

award for the retail industry in Victoria, contained a specific clause protecting

workers from having to wear indecent or revealing dress while at work.

10.11 This clause was specifically introduced as a result of a move by employers in

the 1980's to introduce either topless retail workers or requiring workers to

wear see-through tops. This was not a device used by employers to require

men to be topless or wear see-through tops, but was specifically directed at

female employees.

10.12 The answer to the problem in the 1980’s lay solely with the Industrial

Relations Commission which inserted a specific provision into the Victorian

Shops Award, protecting workers from any requirement from their employer

that they wear revealing or indecent clothing. This clause was removed from

the Victorian Shops Award as part of the Howard Government's Award

Simplification process in 2000.


10.13 Legislation on sexual discrimination or equal opportunity does not, and has

never, dealt with this particular problem. The Commonwealth’s Sex

Discrimination Commissioner, Elizabeth Broderick, in the context of her

Listening Tour around Australia during 2008, commented on this particular

issue and noted that not only does the practice of requiring retail employees

to wear indecent or revealing dress still continue but also that the legislation

does not deal with this issue.

10.14 The SDA acknowledges that the Act cannot contain a reference to every

conceivable special provision, like it has with redundancy. However, clearly

articulating that special industry provisions can be included will allow parties

to argue solely on the merit of the provision being sought.

Recommendation 10.2

Amend both s.139 and s.157 of the Act so as to clearly permit a modern award to

include a term which is required in the public interest to deal with special provisions

or special circumstances associated with an industry, which are for the benefit and

protection of employees.

Adding this provision to s.157 would permit Fair Work Australia to add such

provisions in future reviews or variations of awards if such provisions were needed.

Location Allowances

10.15 The AIRC (and later FWA) in undertaking the award modernisation process

decided to include location allowances.

10.16 One of FWA’s concerns over allowances was to ensure that there was a fair

and consistent adjustment process. This is something FWA wishes to

examine either by application or as part of the Award Review.

10.17 Extract FB decision re location allowances WA

(79) While it may be that historically the allowances in question are related to the

cost of living in the relevant geographic areas, as indicated already, if they


are to be a part of the modern award system, there must be a consistent and

fair national basis for their fixation and adjustment. …

(80) In relation to the allowances in NAPSAs and pre-reform awards operating in

Western Australia, it is appropriate that those should be maintained in

modern awards until there is a proper opportunity to consider whether they

should be a permanent feature of the awards and, if so, the basis for their

fixation and adjustment. …

(81) … There can be a full examination of all the matters relevant to the

allowances sometime after 1 January 2010 either on application or as part of

the review contemplated by the Fair Work Act.

10.18 The location Allowances of WA are adjusted and reviewed by the Western

Australian Industrial Relations Commission, as part of the Industrial Relations

Act 1979 (WA). The SDA believes that one option FWA will consider is to

simply adopt the outcome of WAIRC. This would provide consistency of

conditions and not involve duplication of an established process.

10.19 However it is unclear whether the Act permits a simple reference to another

jurisdiction to pick up an item concerning location allowances. The SDA

believes that the Act should permit such an action, if FWA decides this is the

appropriate path to take.

Recommendation 10.3

The Act should permit a simple reference to another jurisdiction to incorporate an

item concerning location allowances.

Accident Pay

10.20 When modernising the awards, FWA included Accident Pay as a transitional

provisional:

87 In light of these considerations we have decided to deal with accident pay on a

transitional basis. Our intention is to preserve accident pay arrangements until


31 December 2014. We anticipate that in the period prior to that date an

opportunity will arise to consider the formulation of a national standard to apply

to all award covered employees. This task will be made considerably easier if

uniformity is developed in relation to workers compensation schemes.

10.21 The sentiments expressed by the AIRC, that there would be uniformity of

worker’s compensation across Australia, would seem logical given the task of

rationalising industrial awards that was being undertaken by the AIRC.

10.22 However, given it is now 2012, there may not be such a success prior to July

2014. The SDA believes that if the uniformity of such schemes is not

complete, then Accident Pay must continue in Awards.

Recommendation 10.4

The Act should be amended to ensure that Accident pay continues and that

references to appropriate State or Territory legislation is allowed.


11. BARGAINING REPRESENTATION

Notice of Employee Representational Rights s.173 (NoERR)

11.1 The policy intent behind the Fair Work Act provisions relating to the issue of a

NoERR appears to be to ensure that employees are made aware of their right

to appoint a bargaining representative for the purposes of enterprise

bargaining.

11.2 This policy objective is sought to be achieved through s.173 and s.174.

11.3 Employers have sought to undermine the policy objective through several

means:

They have added additional comments to the NoERR Appointment forms have been added to or been given to employees with the

NoERR The NoERR is accompanied by detail information sheets prepared by the

employer. Employers have “assisted” employees to form consultative committees before

the NoERR has been issued so that there are employee representatives in place when the NoERR is issued.

11.4 Each of these tactics is designed to undermine the concepts of fair

bargaining.

Recommendation 11.1

Any additional material or information that undermines the NoERR should render the NoERR void.

Default Bargaining Representatives

11.5 S.176(1)(b) provides for the concept of a default bargaining representative in

the following terms:

S.176(1)(b) an employee organisation is a bargaining representative of an employee

who will be covered by the agreement if:

(i) the employee is a member of the organisation; and


(ii) in the case where the agreement is a multi-enterprise agreement in relation to

which a low-paid authorisation is in operation—the organisation applied for the

authorisation;

unless the employee has appointed another person under paragraph (c) as his or her

bargaining representative for the agreement, or has revoked the status of the

organisation as his or her bargaining representative for the agreement under

s.178A(2);

11.6 The Notice of Employee Representational Rights prescribed by Reg 2.05 and

Schedule 2.1 of the FW Regulations contains the following comment in

relation to default bargaining representatives:

If you are a member of a union that is entitled to represent your industrial interests

in relation to the work to be performed under the agreement, your union will be

your bargaining representative for the agreement unless you appoint another

person as your representative or you revoke the union’s status as your

representative.

11.7 A practical problem arises from both s.176(1)(b) and Schedule 2.1 of the FW

Regs.

11.8 An employee who is a member of an organisation of employees and who

wants their employee organisation to be their bargaining representative is

informed by the NoERR that the employee organisation is their bargaining

representative. The employee is not directed to take any action to bring this

to the attention of either the employee organisation or the employer. The

employer must accept that the employee organisation is the default

bargaining representative for the employee but there is nothing in the Act or

the Regs or the NoERR which ensures that the employer knows that the

employee is relying upon their default bargaining representative.

11.9 Even where the employer is aware that some of its employees are members

of an employee organisation there is no requirement on the employer to

advise the employee organisation that the employer intends to make an

enterprise agreement with its employees.


11.10 The remedy for this problem is as follows:

11.11 Firstly, where an employer is aware that an employee organisation

represents one or more employees who will be covered by the proposed

enterprise agreement the employer should be required to advise the

employee organisation by sending a copy of the NoERR to the employee

organisation and including advice to this effect in the NoERR.

11.12 Secondly, where the employer has no knowledge of any employee

organisation representation in the workplace then this fact should be

included in the NoERR together with an advice to employees that if they want

to rely upon their employee organisation as their bargaining representative

then the employee needs to advise the employee organisation themselves.

Recommendation 11.2

Where an employer is aware that one or more employees who will be covered by the proposed enterprise agreement is represented by an employee organisation, the employer should be required to advise the employee organisation by sending a copy of the NoERR to it and include advice to this effect in the NoERR.

Where the employer has no knowledge of any employee organisation representation in the workplace, this should be included in the NoERR together with an advice to employees that if they want to rely upon their employee organisation as their bargaining representative then they must advise the employee organisation themselves.

Appointment of Bargaining Agents

11.13 S.178 of the Act requires that when an employee appoints their bargaining

representative, the appointment only comes into effect if a copy of the

instrument of appointment is given to the employer. The difficulty with this

provision is that it leads to the identification of an individual employee as the

person who has appointed a bargaining representative.

11.14 While the Act is predicated upon the principle that there should be no

victimisation, coercion or injury to an employee who appoints a bargaining

representative, the reality is that in workplaces which are very lightly

unionised, a single employee who is a union member and who appoints the


union as the bargaining representative, may find themselves on the receiving

end of unwarranted attention from the employer. It is relatively easy for an

employer to engage in conduct which is significantly less than coercion or

duress it nevertheless achieves the result of having an employee withdraw

the appointment of the bargaining representative. The vulnerability of

workers in this particular circumstance has been long recognised.

11.15 In the 1996 Workplace Relations Act, a specific amendment was made in

2002 to insert s.170LKA which permitted the bargaining representative to go

to the AIRC to obtain a certificate which established that the bargaining

representative had been validly appointed. The certificate was then given to

the employer. The certificate never identified the individual employee who

had appointed the bargaining representative. Work Choices legislation also

kept this process.

11.16 This process gave significant confidence to employees that they could engage

a bargaining representative without being identified or without being picked

on by their employer.

11.17 In the current Act, it would be appropriate for a provision similar to the

previous Workplace Relations Act s.335(6), (7) and (8) which is set out here to

be inserted immediately after s.178 of the Act.

11.18 “335(6) The Workplace Authority Director may issue a certificate that he or she is

satisfied of one of the following matters if he or she is so satisfied:

(a) on application by a bargaining agent--that the employee has made a request

in accordance with subsection (1) or (2) for the bargaining agent to represent

the employee in meeting and conferring with the employer;

(b) on application by the employer--that, after the making of the request, the

requirement in subsection (3) for the employer to give a reasonable

opportunity to the bargaining agent to meet and confer, has, because of

subsection (5), ceased to apply to the employer.

(7) The certificate must not identify any of the employees concerned. However, it

must identify the bargaining agent, the employer and the agreement.


(8) The certificate is, for all purposes of this Act, prima facie evidence that the

employee or employees made the request or that the requirement has ceased to

apply.”

Recommendation 11.3

Introduce into the Act a provision similar to the previous Workplace Relations Act s.335(6), (7) and (8) which would permit the bargaining representative to go to FWA to obtain a certificate which establishes that the bargaining representative has been validly appointed, without identifying the employee.


12. INDIVIDUAL FLEXIBILITY ARRANGEMENTS (IFAs)

12.1 The Fair Work Act specifically states at s.3(c) that in order to achieve its object, it will

do so by “ensuring that the guaranteed safety net of fair, relevant and enforceable

minimum wages and conditions can no longer be undermined by the making of

statutory individual employment agreements of any kind given that such agreements

can never be part of a fair workplace relations system13.” The SDA fails to see how

this can be achieved when an Individual Flexibility term is compulsory in an award or

agreement.

12.2 Individual Flexibility Arrangements (IFAs) were introduced to appease employers and

allay their concerns that modern awards would be too prescriptive, notwithstanding

that awards have existed in Australia since 1904. In theory, an IFA must not permit

an employee to be worse off when compared to the terms of their relevant award,

whilst allowing employers to alter certain terms to better suit their business. In

practice, it is difficult to envisage how IFAs can be beneficial and ultimately, fair. This

is for a number of reasons.

12.3 The SDA is aware of several cases where IFAs have been developed as pro forma

documents distributed to all employees. Given that the intention of an IFA is to

provide the ability to meet, “the genuine individual needs of the employer and the

individual employee,14” it is laughable that a pro forma can be distributed to all

employees and be considered to be meeting their ‘individual’ needs. It appears that

some employers are using these as substitute Australian Workplace Agreements

(AWAs). Bearing in mind that AWAs were so reviled by this Labor Government and

the majority of Australians who voted against them in the 2007 election, it is clearly

concerning that some employers have adopted IFAs as de facto AWAs and are

continuing to undermine the safety net of entitlements enshrined in modern awards

and agreements.

13

14 [2008] AIRCFB 550


Recommendation 12.1

The SDA strongly urges the Government to abolish IFAs.

12.4 IFAs are not required to be recorded and publically available. They are not required

to be scrutinised or analysed by either FWA or the FWO, nor can other interested

parties, such as unions, gain access to them to measure their fairness. Short of an

employee complaining to the Ombudsman, IFAs can quietly exist, without the

knowledge of anyone apart from the employees and employers involved. The SDA

believes that IFAs undermine the essential fairness and transparency of the system.

This should no longer be permitted.

Recommendation 12.2

If IFAs are to continue, then the Act should be amended to require IFAs to be

recorded by FWA. This would allow Government bodies and unions to gather data

relating to the use and potential abuse of these ‘agreements’, which would better

inform all stakeholders of their efficacy and highlight areas of concern.


13. BETTER OFF OVERALL TEST

When the BOOT is Applied

13.1 S.193(4) requires that the Better Off Overall Test (“BOOT”) be applied at the

test time which is defined in s.193(6) as being the time the application for

approval of the agreement by Fair Work Australia was made. This means

the BOOT is a static test that is applied once and once only, and only at the

time the original agreement is made.

13.2 There are real issues surrounding the notion of a BOOT which is applied

once and once only. From experience, the SDA has noted that many

agreements, especially non-union agreements, can be made which pass the

BOOT, as at the date the agreement is made, but which, during the life of

the agreement, fall below the BOOT. This occurs simply because at the test

time the agreement may contain a wage rate which reflects both the

minimum wage rate required to be paid by an award, plus a component

which buys out the current value of terms and conditions of employment.

13.3 Every agreement must at all times during its operation, meet the minimum

wages set by Fair Work Australia. However there is no guarantee within the

legislation that the component of the wage which reflects the buyout of

loadings and penalties, is maintained at its proper relative value. If the

agreement does not contain specific provisions ensuring that the bought out

component for loadings and penalties is regularly reviewed, then over the

life of an agreement, the value of the wage would fall below the value set by

the BOOT.

13.4 An effective BOOT should not be applied as a one off static test at the time

of the agreement being made, but should be an ongoing test which has to

be met either constantly or at least be met at regular intervals. Given

annual wage movements around 1 July, then it would be appropriate for the

BOOT to be applied at least yearly as at 1 July, which is the commencement


date for any Fair Work Australia minimum wage increases and transitional

movements.

13.5 This guarantees that an enterprise agreement has an effective value which

always meets the BOOT, rather than meeting the BOOT once and then

progressively falling below the BOOT over the life of the agreement.

Recommendation 13.1

The BOOT should be applied to every agreement at least yearly on 1 July to coincide with FWA’s minimum wage increases and transitional movements.

Approving Enterprise Agreements that Fail the BOOT

13.6 S.189 of the Act permits an enterprise agreement to be approved, even

where it fails the BOOT, if Fair Work Australia determines that approval of

the agreement would not be contrary to the public interest. The provision

should be changed so that rather than having a test of approval where it is

not contrary to the public interest, an applicant seeking approval should be

required to positively establish that approval is in the public interest. This is

a slightly more onerous test.

13.7 However, increasing the hurdle that an employer has to jump in relation to

a Public Interest Test should be consistent with maintaining the notion that

approval of such agreements is not to be the norm.

13.8 The SDA does note and approves the approach that agreements made

under s.189 can have a nominal expiry date no later than two years after the

date upon which the agreement is approved. A difficulty with this is that

the expiry date is nominal not actual. Where an agreement is approved

under the provisions of s.189, there should be a corresponding provision in

the termination provisions of the Act which determines that, on reaching

the nominal expiry date, the agreement is actually terminated.

13.9 A provision which provides that there is an actual expiration of the

agreement made under s.189 would go a long way to encouraging

employers to fix the problem which led to them seeking approval of an

agreement under the Public Interest Test.


13.10 Another issue relating to Public Interest Test agreements is that there

appears to be no mechanism for such agreements to be varied. S.207(5)

operates as a barrier to any variation to an agreement that was approved in

the public interest under s.189. The difficulty with this barrier is that it has

the effect of condemning employees to be employed under the terms of an

agreement which has failed the BOOT without the possibility of the

employees or the employer varying the agreement during its life, so that it

may meet the BOOT or improve employees’ conditions. Rather than a bar

on the variation of public interest approved agreements, it would be

preferable to permit public interest approved agreements to be varied, but

only under a specific circumstance of improving employees’ conditions.

13.11 The need for the ability to vary a Public Interest Test approved agreement is

that as these agreements are initially made to overcome a short term crisis

or to assist in the revival of a business, both employers and employees may

be cautious with respect to the terms and conditions of employment in the

enterprise agreement. However, once approved, it may become apparent

that terms and conditions of employment which are lower than the BOOT

are not necessary for the full duration of the agreement.

Recommendation 13.2

S.189 should be changed from a test of approval where it is not contrary to the public interest to a requirement to positively establish that approval is in the public interest for agreements that do not pass the BOOT.

Where an agreement is approved under the provisions of s.189, there should be a corresponding provision in the termination provisions of the Act which determines that on reaching the nominal expiry date, the agreement is actually terminated.

Permit public interest approved agreements to be varied, but under the specific circumstance of improving employees’ conditions.

Clarifying the BOOT

13.12 An issue exists which should be clarified.


Is the BOOT only applied in relation to the terms of the modern award and the

strict application of the NES but excludes consideration of the other laws that

regulate the employment relationship, or is the BOOT to be applied on the basis

that employment under an agreement includes a range of other legislative

instruments and a proper consideration of the impact of the provisions on the

employees

13.13 An enterprise agreement must be approved if the enterprise agreement:

(i) contains the mandatory terms required by Division 5 of Part 2-4 of the Act, and,

(ii) does not contain any unlawful term as set out in s.194, 195 and the definition of objectionable term in s.12, and,

(iii) passes the BOOT.

13.14 The key part of the definition of the BOOT as set out in s.193(1) is as follows:

that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

13.15 The way in which the BOOT is to be applied has been described as a global

test applied individually. In other words it is the package of terms and

conditions provided for by the enterprise agreement as applied to each

individual employee as against the package of terms and conditions

provided by the award as applied to each individual employee.

13.16 The global test applied individually has been ameliorated by the provision of

s.193(7) which permits the BOOT to be considered on the basis that

individual employees often naturally fall into classes and thus it is

appropriate to apply the BOOT to the class of employees. S.193(7) provides

that:

FWA may assume employee better off overall in certain circumstances

(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, FWA is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.


13.17 The sense in which this global but individual test has been applied by both

the AIRC and FWA has been to consider the full package of terms and

conditions of employment that apply under the agreement as against the

full package that would apply under the award. The global but individual

approach also considered both monetary and non monetary benefits

/disadvantages e.g. Whelan C’s decision to refuse to approve an agreement

in the retail industry because the hours of work provision permitted

significant hours to be worked in an unsociable manner.

13.18 The Armacell P/L and others, decision [2010] FWAFB 9985- could be used to

deny FWA the ability to consider the whole package of an enterprise

agreement and to consider all of the benefits or disadvantages that flow

from the terms of the agreement. The approach in this decision is that if a

matter is specifically dealt with in the NES then the protections put in place

in the NES are all that Parliament intended to apply.

13.19 The approach adopted by a Full Bench makes clear that the social imperative of

providing a statutory entitlement via the NES does not form part of the BOOT

consideration, as it is not specified in the Act.

If such an approach is taken to its logical conclusion then:

an enterprise agreement that substitutes all public holidays so that they

are only taken on a Sunday when the business of the employer is not

open would be required to be approved by FWA.

an enterprise agreement that has personal/carers leave only paid if the

employee produced a certificate from a medical specialist nominated by

the employer would have to be approved.

13.20 In relation to the public holidays example, the NES sets out the protections

decided by Parliament in s.114, s.115 and s.116 of the Act. One is that an

enterprise agreement may include terms providing for an employer and

employee to agree to substitute other days for each or all of the public

holidays, s.115(3).


13.21 Thus from the logic of the Full Bench in Armacell, if the protection of s.116

applies then an enterprise agreement that contains terms permitting

agreement to substitute public holidays must be approved even if the effect

of the substitution would both be socially undesirable and may not be to the

benefit of employees. Simply because substitution is permitted by the NES,

then an enterprise agreement containing a substitution term must be

approved if the agreement passes the BOOT in all other aspects.

13.22 To ensure the entitlement of employees to the real value of the NES, the Act

should make clear that where an enterprise agreement contains a term

affecting an NES entitlement, then the BOOT includes considering the effect

of the arrangement on employees.

13.23 Further the Act should also be clarified to ensure that when an agreement is

tested against the BOOT, the total package of employee entitlements under

legislation is considered.

Recommendation 13.3

Amend the Act to ensure that any matter in an enterprise agreement must be considered as part of the proper application of the BOOT. The BOOT consideration has to give weight to the effect a term may have on an employee and not just if it technically complies with the NES. If a term has a negative effect, it must fail.


14. UNFAIR DISMISSALS

Timeframe for application for unfair dismissal – 21 days

14.1 The SDA would urge that a far more realistic time frame be given for the

making of an application under s.394 Application for unfair dismissal

remedy. A period of 21 days would allow employees to consider genuinely

the issues surrounding the termination of employment with their employer,

prior to deciding whether or not an unfair dismissal application should be

made. We submit that this extension of time would result in fewer unfair

dismissal applications as often a solution to the dismissal can be worked out

at the workplace, without resorting to FWA.

Recommendation 14.1

Increase from 14 days to 21 days the period for the making of an application under

s.394 – Application for unfair dismissal remedy.

No limits or restrictions on access to FWA

14.2 The SDA expresses the very strong view that as a fundamental work right,

there should be no limits or restrictions placed upon the ability of any

worker to have an independent third party tribunal, such as FWA,

determine whether termination of the employee’s employment was harsh,

unjust or unreasonable. Any requirement that an employee must have a

minimum period of service, or be of a particular class of employee before

they are permitted to access the unfair dismissal jurisdiction of FWA, is

objectionable as a removal of a fundamental worker right.

Recommendation 14.2


The SDA strongly calls for the removal of the limitations on an employee’s ability to

access FWA to determine whether termination of employment was harsh, unjust

or unreasonable.

Compensation for shock, distress, humiliation or other analogous hurt

14.3 The Act has an approach to prevent any compensation being given to an

employee who has been unfairly terminated, where the compensation is for

shock, distress, humiliation or other analogous hurt s.392(4). The SDA

remains opposed to this provision, but rather than seek its removal it

proposes an alternative.

14.4 Rather than have the blanket prohibition on awarding compensation for

shock, distress or humiliation, the Act should permit Fair Work Australia to

award such compensation but only in circumstances where the distress,

humiliation, shock or other analogous hurt suffered by the employee who

has been dismissed, is to a significant degree beyond that associated or

experienced by a reasonable person in the same situation. A reasonable

person test would at least ensure that only the more extreme cases of

abuse in relation to termination of employment would generate

compensation under this provision.

Recommendation 14.3

The Act should permit FWA to award compensation for distress, humiliation, shock

or other analogous hurt suffered by the employee who has been dismissed, where

it is to a significant degree beyond that associated or experienced by a reasonable

person in the same situation.

Unfair dismissal conferences - acknowledging the union as an employee’s representative

14.5 Under the previous system, short adjournments for unfair dismissal

conferences were able to be sought. Especially when there was the consent


of the other side, these adjournments were always granted and the system

worked well.

14.6 Currently, there is an inadequate and unfair approach being adopted by

FWA’s unfair dismissal team in regards to conferences. In particular, if an

appropriate representative of the employee, such as the relevant union is

unavailable at the time that the conference is listed, there is no willingness

on the part of FWA to move the conference. This is the case even if the

request is made within a matter of hours (or minutes) of being notified and

even if the request is to move the conference to another time on the same

day.

14.7 On the other hand, if the chosen representative from the company is

unavailable at the time that the conference is listed, such as the HR person,

then FWA is generally happy to reschedule the conference to accommodate

them.

14.8 The SDA supports FWA consenting to move the conference due to the

unavailability of the company’s chosen representative, provided that the

adjournment is only minor and provided the request is made in a timely

manner. However, we say that such provisions are not in place and that the

courtesy MUST be extended to unions seeking to represent their members.

14.9 The SDA can detail numerous instances where we have sought minor time

adjournments and where such adjournments have not been given. This has

caused significant prejudice to the employee. In one instance an employee

was told by the conciliation officer that they had no case on a jurisdictional

ground and refused to discuss the employee’s potential underpayment. The

settlement documents sent through barred the employee from any future

claim, including pursuing the underpayment claim despite it not being dealt

with in the conference. It then took significant work to convince the

Respondent that the Applicant was within his rights and justified in not

continuing with the agreement purportedly reached in the conference.

14.10 In another example, a conference was listed. It was subsequently moved to

over a week later, on the basis that the chosen representative from the

company was unavailable. This occurred without any consultation with the


employee’s representative. The conference was then moved a second time,

as again the company’s chosen representative was still not available. The

SDA requested, within minutes of this notice, that the conference be listed

on the following day. This request was rejected. Consequently, the SDA

official was forced to conduct the conference via telephone in the Qantas

lounge. While an agreement in principle was reached, however it fell apart

and the matter remains unresolved three months later. The reason that the

agreement was not adhered to was largely because we were not able to be

present with the member and finalise the agreement on the day, which is

our usual practice.

14.11 These are two examples of FWA not agreeing to a short adjournment which

was requested by the employee’s representative within an appropriate time

frame. On both of these occasions, whilst the conciliation officer may record

the result as ‘successful’, the disputes continued for up to three months

after FWA had considered that the matters had been dealt with.

14.12 Not allowing short adjournments on the grounds of the unavailability of the

union both undermines the role of unions to support members who have

been terminated and leads to poor outcomes, albeit not necessarily

represented in official FWA figures.

Recommendation 14.4

A telephone conference to deal with an unfair dismissal should only proceed if

both the dismissed employee and the employer agree.

Recommendation 14.5

The mediation process using conciliators should accommodate reasonable requests

for a change in time from either the company or the employee’s representative.

Disputes directions procedures


14.13 In relation to the directions procedure once a matter is set down for

hearing, the current practice is that the applicant is given a date by which

they must file and serve an outline of argument, witness statements and

supporting documents filed and served. The respondent is given a date,

usually about two weeks later, to file and serve an outline of argument,

witness statements and supporting documents. However, there is no order

in relation to discovery or the provision of documents to the other party.

14.14 This creates the situation where an applicant may be required to submit an

outline of argument and witness statements before the respondent has

provided them with sufficient details or documents to properly formulate a

case. It may be that previous warnings have not been provided and are

intended to be relied on by the employer. The employer may also have

video footage of a particular incident in the workplace that they are refusing

to provide to the applicant. In other instances it may be argued that the

employee has breached an alleged policy but the applicant has not been

provided with a copy of the policy. It is contrary to the laws of natural

justice that an applicant is required to state their case and submit their

witness statement before they have been provided with all relevant

documents to be used to against them.

Recommendation 14.6

There should be an order as to discovery contained in the hearing listing notice and

timeline that is sent to the parties stating that discovery must occur by a certain

date. For unrepresented parties, the meaning of discovery and requirements

should be provided in an explanatory note.


15. AGREEMENTS MADE PRIOR TO THE FAIR WORK ACT

15.1 When the Federal Government abolished WorkChoices and passed the Fair

Work Act some employees were left trapped in the WorkChoices system.

These include employees on Australian Workplace Agreements (AWAs),

employees on Individual Transitional Employment Agreements (ITEAs) and

employees under collective agreements made prior to the Fair Work Act.

These instruments may continue indefinitely and employees may be

suffering substandard wages and conditions compared to the new modern

awards. They have never been tested against the new modern awards.

15.2 The Act does not provide any avenue to rescue the last of the employees on

the WorkChoices system. They need to be dealt with now. The SDA

proposes to deal with these agreements using transitioning arrangements

so that the last remaining employees on WorkChoices are moved fully into

the Fair Work environment.

15.3 Discussed in subsequent sections is an outline of possible steps to address

this movement in an orderly manner.

15.4 The Fair Work Act commenced on 1 July 2009. However various provisions

commenced at a later date such that the full transition to the new system

will not be complete until 1 January 2015. The outline below shows the

phasing in:

1 July 2009 Fair Work Act commenced

1 January 2010 National Employment Standards and modern awards

commenced (except for the new classification systems,

rates of pay and penalty rates)

1 July 2010 New classification systems in modern awards commenced

and 20% of the change in classification rates of pay and

penalty rates apply

1 July 2011 40% of the change in classification rates of pay and penalty

rates apply



rates apply


rates apply

31 December 2013 Enterprise awards cease to exist if not modernised

1 July 2014 Classification rates of pay and penalty rates apply

31 December 2014 Awards based on the conciliation and arbitration head of

power in the Constitution rather than the corporations

power cease to exist.

15.5 This demonstrates that the process of phasing in the full effects of the Fair

Work Act is not complete until 1 January 2015.

15.6 The process of transitioning the last employees out of WorkChoices and

onto the new system can also occur over a similar timeframe.

AWAs AND ITEAS

15.7 All AWAs will have passed their nominal expiry date by April 2013 at the

latest. The Government should legislate that every AWA and every ITEA

shall cease to have effect as of 1 January 2014.

15.8 In some instances there may be changes in wages or conditions affecting

either the employee or the employer which may require phasing in, e.g., the

employer may be required to pay penalty rates they have not previously

been paying. It is necessary to provide some reasonable basis for dealing

with this. The independent umpire - Fair Work Australia - should be given

authority to deal with it.

15.9 On application by an employer or an employee prior to 1 January 2014 Fair

Work Australia may make orders for transitional provisions to the award (or

to an enterprise agreement if one exists) over a reasonable time period,

e.g., two years.


Recommendation 15.1

The Government should legislate that every AWA and every ITEA shall cease to

have effect as of 1 January 2014.

PRE-FAIR WORK ACT COLLECTIVE AGREEMENTS

15.10 There continue to exist a range of union and non-union collective

agreements in existence made under Howard Government legislation.

Some were made under WorkChoices. It is possible some were made under

even earlier legislation. Everyone should come into the new system as soon

as possible.

15.11 The last agreements made before the Fair Work Act fully took effect were

on 31 December 2009. (The NES and modern awards commenced 1 January

2010.) The maximum length of an agreement at that time was 5 years. So

all pre-Fair Work Act enterprise agreements will expire no later than 31

December 2014. Some employers have chosen to stay under old expired

agreements to protect themselves from the new system.

15.12 One example of this is the Maxifoods agreement where employees are

significantly disadvantaged when compared to the modern award but they

are trapped in the old system. The SDA has members but has no authority

to apply to Fair Work Australia to cancel the Maxifoods Agreement.

Members at Maxifoods are too scared to sign an application to cancel the

agreement. They deserve to be saved from the WorkChoices system.

Appendix B contains comparison data between the Agreement and the

Award.

15.13 On the other hand, some pre-existing agreements may provide an improved

standard of redundancy pay or improved long service leave. To abolish


them would disadvantage employees. It would be unwise to treat all pre-

existing agreement made under WorkChoices or earlier legislation in the

same manner as AWAs. It may result in serious disadvantage to employees.

The better approach is to apply the BOOT test to these agreements and

retain them if they pass.

15.14 It is proposed that all collective agreements made prior to the Fair Work Act

and with a nominal expiry date twelve months or more prior to 1 July 2012

shall have the BOOT test applied against the modern award after 1 July

2012. If any such agreement fails to pass the BOOT test Fair Work Australia

shall be required to cancel the agreement. If an agreement fails the BOOT

test Fair Work Australia shall be given the power to make appropriate

transitional provisions to the award (or to an enterprise agreement if one

exists) over a reasonable period, e.g., two years.

15.15 Those agreements that pass the BOOT test shall be reviewed every three

years and FWA shall apply the BOOT test.

15.16 It is proposed that all other collective agreements made prior to 1 January

2010 shall be reviewed twelve months after the nominal expiry date and

shall have the BOOT test applied against the modern award. If any such

agreement fails to pass the BOOT test, Fair Work Australia shall be required

to cancel the agreement after consultation with the relevant parties. If FWA

decides the agreement fails the BOOT test it shall be given the power to

make appropriate transitional provisions to the award (or to an enterprise

agreement if one exists) over a reasonable period, e.g., two years.

15.17 Those agreements that pass the BOOT test shall be reviewed every three

years and FWA shall apply the BOOT test.

15.18 This will see all collective agreements made prior to the Fair Work Act

tested against the BOOT test by 1 January 2016 at the latest (five years after


31 December 2009). In this way all employees and employers will be able to

transition onto the Fair Work Act and receive the benefits of the Fair Work

Act.

15.19 No-one should continue to be left out of the new system.

Recommendation 15.2

All collective agreements made prior to the Act and with a nominal expiry date

prior to 1 July 2012 shall have the BOOT test applied against the modern award

after 1 July 2012. Any agreement which fails shall be cancelled by FWA. Any

agreement which passes shall be reviewed every three years.

All other collective agreements made prior to 1 January 2010 shall be reviewed 12

months after the nominal expiry date and shall have the BOOT test applied against

the modern award. Any agreement which fails shall be cancelled by FWA after

consultation with the relevant parties. FWA shall have the power to make

appropriate transitional provisions to the award over a reasonable period.


16. INFORMING EMPLOYEES

Approved Agreements to be Available to Employees

16.1 S.201 and s.215 provide that decisions of Fair Work Australia which approve

an agreement or a variation to an agreement that is subject to undertakings,

then the undertakings must be noted in the decision. This is unsatisfactory

as a mechanism to ensure that employees are aware of the undertakings.

The Act should have a clear requirement on employers that, at all times they

must have publicly available to employees in their workplaces, a copy of the

agreement as approved, including any undertakings given to Fair Work

Australia. Nothing less should be expected, and nothing less should be

provided to employees.

16.2 Employees are provided with access to or a copy of proposed agreements to

be voted upon. However, the Act has no requirement on an employer to

have an accessible copy of the actual agreement after approval. Therefore,

if an agreement only passes with undertakings, then this should be provided

to employees.

Recommendation 16.1

The Act should contain a specific provision mandating the display of an agreement in a publicly accessible place at the workplace. Further, where an agreement is passed with undertakings, the employer shall inform the employees in writing of the undertakings.

Display of Modern Awards

16.3 S.800 of the Act also leaves the publication and display of awards to be dealt

with by the regulations. Our comments in relations to agreements

publication apply equally to awards. The Act itself should contain a specific

provision mandating the display of the award in each workplace in a publicly

accessible place.


Recommendation 16.2

The Act should contain a specific provision mandating the display of the award in each workplace in a publicly accessible place.


17. OTHER ISSUES

17.1 There are a number of areas which have led to either contrary views being

taken by Fair Work Australia, different approaches by FWA or areas where

the Act is deficient. These are areas that need clarification so all parties,

including FWA, can achieve fairness.

General Protections Applications and Jurisdictional Challenges s.365 and s.372

17.2 Currently within FWA there have been two different approaches in cases

where an employer challenges the jurisdiction of FWA to convene a

conference in relation to a general protections application involving the

dismissal of the worker.

17.3 One approach is that if there is a jurisdictional challenge, FWA should

convene the conference and if the matter is not settled then any

jurisdictional challenge will be dealt with by the Court. The other approach

is that the jurisdictional challenge needs to be subject to a formal hearing at

FWA before a conference can be convened.

17.4 To assist parties it would be appropriate for the Act to be amended by one

of the following:

Alternative 1: FWA should be required to determine all jurisdictional challenges

to a general protections application before convening a

conference under s.368 or s.374.

Alternative 2: FWA should not consider jurisdictional challenges to a general

protections application but must limit itself to merely convening

the conferences referred to in s.368 and s.374.

Recommendation 17.1

Amend the Act to either require FWA to determine all jurisdictional challenges to a general protections application before convening a conference under s.368 or s.374 OR limit FWA to merely convening the conferences referred to in s.368 and s.374.


General Protections Applications - conferences - voluntary or compulsory - why the

difference between s.368 and s.374?

17.5 There is a clear but inexplicable difference between the role of FWA under

general protections applications involving dismissal and general protections

applications which do not involve dismissal. For dismissal matters FWA must

hold a conference of the parties but for non-dismissal matters FWA will only

hold a conference if both parties agree.

17.6 The Explanatory Memorandum to the Act explained the rationale behind

s.374 as follows:

1494. In cases where an application is made to FWA, the process is broadly the same as for applications under s.365, except that a conference to deal with the dispute can only be convened by FWA if all parties to the dispute agree to participate (s.374(1)).

1495. Where all the parties to the dispute do not agree to participate in an FWA conference, the person alleging a contravention of Part 3-1 can still make an application to the Federal Court or the Federal Magistrates Court under Division 2 of Part 4-1 for orders in relation to the contravention.

1496. An example of where an FWA conference may not be appropriate and where the dispute would instead proceed directly to court is where an inspector is bringing the action and is seeking the imposition of a monetary penalty.

17.7 S.374 empowers a party with an absolute right to say no to a conference.

This is very different to the example given in the Explanatory Memorandum.

17.8 The Act should provide a uniform approach to the convening of conferences

under either s.368 or s.374. Rather than give the parties to the matter the

right to walk away from having a conference, parties to every general

protections application should be required to attend a conference at FWA.

There is no need for an opt-out provision, nor is there any need to provide

FWA with any discretion to decide not to convene a conference.

Recommendation 17.2

Amend the Act to require that all parties to every general protections application attend a conference at FWA.


Referral of matters to President or Full Bench

17.9 The Act does not contain a provision which allows matters which have been

given to a single member of FWA to taken from the single member and be

dealt with at first instance by a Full Bench.

17.10 Under each of the previous Acts (Conciliation and Arbitration Act 1904,

Industrial Relations Act 1988 (s.107) and the Workplace Relations Act 1996

(s.112)) provision was made for a party to a proceeding before a single

member of the Commission to ask that the matter be referred to a Full

Bench. If such an application was made the single member was required to

bring the application to the attention of the President who would consult

that member and then if the President decided that the matter was of such

importance that in the public interest the matter should be dealt with by a

Full Bench, then the President referred the matter to a Full Bench.

17.11 Whilst s.615 of the Act does permit the President to direct that a Full Bench

deal with a matter, the language of s.615 suggests that the President can

only give such a direction before a matter is allocated to a single member.

17.12 There are sufficient numbers of contentious issues which are brought before

Fair Work Australia where it would be very much in the public interest to

have the matter dealt with at first instance by a Full Bench.

17.13 The current structure of the Act requires parties to a matter which has been

allocated to a single member to participate in the proceedings before the

single member and then if dissatisfied with the outcome appeal the decision

to a Full Bench.

Recommendation 17.3

Reintroduce the previous provision for a party to a proceeding before a single member to request that the matter be referred to a Full Bench and for the President of FWA to determine on public interest grounds if the matter should be referred to a Full Bench.


Varying or Revoking Decisions

17.14 The Act provides in s.603(1) a general power to FWA to vary or revoke in

own decision. However this power is then heavily circumscribed by the

operation of s.603(3) which provides that:

17.15 603(3) FWA must not vary or revoke any of the following decisions of FWA under this section:

(a) a decision under Part 2-3 (which deals with modern awards);(b) a decision under s.235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with

enterprise agreements);(c) a decision under Part 2-5 (which deals with workplace determinations);(d) a decision under Part 2-6 (which deals with minimum wages);(e) a decision under Division 3 of Part 2-8 (which deals with transfer of

business);(f) a decision under Division 8 of Part 3-3 (which deals with protected action

ballots);(g) a decision under s.472 (which deals with partial work bans);(h) a decision that is prescribed by the regulations.

Note: FWA can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, s.447 and s.448).

17.16 No explanation was given in the Explanatory Memorandum as to why FWA

is not permitted to vary or revoke a decision of the type referred to in

s.603(3).

17.17 However, as the note to s.603(3) makes clear, even though s.603(3) does

not permit FWA to vary or revoke certain decisions, the Act does provide

the power to vary or revoke certain decisions in certain circumstances.

S.447 permits FWA to vary a protected action ballot Order and s.448

permits FWA to revoke a protected action ballot order.

17.18 FWA should, in certain circumstances, be able to vary or revoke a decision

of the type referred to in s.603(3).

17.19 The only way of currently revisiting the matter is for one of the bargaining

representatives or the employer to lodge an appeal against the decision.

Appeal processes are necessarily costly for the parties and costly for the

community given that FWA must convene a Full Bench to deal with an

appeal.


17.20 There must be a fair and reasonable middle ground which lies between the

absolute denial of an opportunity to vary or revoke a decision which has

been made and an open slather approach to variations or revocations which

denies parties to proceedings the certainty they ultimately want in

concluding proceedings before FWA.

17.21 The middle ground should be that in certain circumstances a member of

FWA who has made a decision should be permitted to vary or revoke that

decision.

17.22 The most obvious means for staking out the appropriate middle ground

would be to permit a party to the proceeding to apply to FWA for variation

or revocation of decision in the same time frame and subject to the same

public interest test as applies to appeals.

17.23 In other words, an application for a variation or revocation of a decision

must be made within 21 days of the date of the decision and FWA may only

vary or revoke the decision where FWA is satisfied that it is in the public

interest to do so.

17.24 Such an amendment to s.603(3) would provide a balance which is currently

absent from the Act.

Recommendation 17.4

The Act should include a provision to allow a party to make application to vary or revoke a decision of the type referred to in s.603(3) within 21 days of the date of the decision. FWA can only vary or revoke the decision where it is in the public interest to do so.

Enterprise Agreements and entry onto premises

17.25 The SDA seeks clarification that the unlawful term ‘right of entry’ does not

prevent an enterprise agreement from including provisions permitting entry

onto premises by agreement or at the discretion of the employer under

s.194 (f) & (g).


17.26 The SDA would recommend that Right of Entry provisions of the Act include

a qualifier explaining that an invitation to enter by agreement or at the

employer’s discretion is not unlawful.

Recommendation 17.5

Clarify in the Act under s.194 that an invitation to enter by agreement or at the employer’s discretion is not an unlawful term for inclusion into an enterprise agreement.

FWA regional operations

17.27 The NSW Government has initiated a parliamentary enquiry into

employment and administrative tribunals in the State with particular

attention on the NSW Industrial Relations Commission (NSWIRC).

17.28 The SDA’s is of the strong opinion that industrial relations must remain

separate from other tribunals.

17.29 Furthermore, the SDA requests that the Government ensure that FWA

continues its regional presence in places such as Newcastle and Wollongong

by maintaining the current arrangements which provides easy access for

those residing in regional areas.

Recommendation 17.6

The Government should ensure that FWA continues its regional presence.


18. REGULATIONS VS ACT

18.1 The SDA had identified a number of matters which have been placed in the

regulation that should more appropriately sit in the Act.

18.2 Having matters split between regulations and the Act, may be desirable by

legislation, writers, but to an everyday person , a person with limited

knowledge of legal workings or a person looking for a quick simple answer,

having to reference two distinct and separate pieces of legislation for cross

references makes using the Act difficult and confusing.

18.3 Other regulations have been identified as they can be used to undermine the

affects of key legislated standards, which is inappropriate.

18.4 Below is a list of the regulations the SDA seeks to have deleted and the

reference incorporated into the Act.

18.5 The list is done by the Section order of the Act.

1. Notice of Termination and Redundancy Pay

S.123(1)(e) permits the regulations to exempt employees from the requirement

for notice of termination and redundancy pay. It should be deleted.

S.123 (3)(e) permits the regulations to exempt employees from the requirement

for notice of termination. It should be deleted.

S.123 (4)(d) permits the regulations to exempt employees from the requirement

for redundancy pay. It should be deleted.

The use of regulations to undermine a key NES provision should not be

continued.

2. Interaction between NES and Modern Awards and Enterprise Agreements

s.127 permit regulations to be made permitting modern awards or enterprise

agreements to include terms contrary to the National Employment Standards.

Thus regulations could completely undermine the ten legislated National

Employment Standards without reference to the Parliament. There should be

no provision permitting the regulations to do so. It is completely contrary to the


whole notion of legislated entitlements applying on a uniform basis to

employees at large. S.127(a) should be deleted.

It is also difficult to understand the intent of s.127(b). What would be the

reason for prohibiting modern awards or enterprise agreements from including

terms relating to the NES? Would this allow, for example, a prohibition on

including annual leave loading in awards and enterprise agreements? Would it

allow a prohibition on penalty rates for public holidays?

3. Model Consultation Term for Enterprise Agreements

See s.205 (3), Regulation 2.09 and Schedule 2.3 to the Regulations.

Move Regulation 2.09 to s.205 of the Act and replace s.205 (3). Make Schedule

2.3 a Schedule to the Act.

Such a significant condition of employment should be included in the legislation.

4. Bargaining Orders

See s.231 (3) and Regulation 2.11

Insert Regulation 2.11 into s.231 of the Act in place of s.231(3).

5. Small Business Fair Dismissal Code

S.385 defines an unfair dismissal as being one which is not consistent with the

Small Business Fair Dismissal Code.

S.388 provides that the Small Business Fair Dismissal Code is set by the Minister

by way of a legislative instrument.

The Small Business Fair Dismissal Code is not in the Regulations but is included

in a separate legislative instrument.

We believe this was done as a management issue as consultation for the Small

business Fair dismissals could not occur in a timely manner prior to the Act

being passed.

Consultation has since occurred and the legislation enacted.


It would now be appropriate to incorporate the Code as a Schedule to the Act

6. Employee Records

See s. 535 (1) and Regulations 3.31 to 3.40 inclusive.

Insert regulations in s. (1) of the Act

7. Inspection of Records

See s.535 (3) and Regulations 3.42, 3.43 and 3.44

Insert Regulations 3.42, 3.43 and 3.44 in s.535 of the Act in place of s.535 (3).

These important provisions should be included in the legislation rather than in

the regulations.

8. Pay Slips

See s.536 (2) and Regulations 3.45 and 3.46

Insert Regulations 3.45 and 3.46 in s.536 of the Act in place of s.536 (2).

9. Transfer of Business

Regulation 3.41 should be inserted into an appropriate place in the Act.

This is an important provision that should be in the legislation.

10. Conferring Functions on FWA

S.796A says:

796A The regulations may confer functions on the following:

(a) FWA;

(b) the General Manager.

The reference to “(a) FWA” in s.796A should be deleted.


If additional functions are to be conferred on FWA that should happen

by legislation which is subject to Parliamentary scrutiny, not by

legislation.

11. Individual Flexibility Arrangements

There are provisions about individual flexibility arrangements in both awards

and agreements. The SDA has made comments earlier about the approach that

should be taken. If that is not adopted then the following should occur:

s.144 of the Act to be varied so that individual flexibility arrangements may only

vary the following terms of an award:

(a) arrangements for when work is performed;

(b) overtime rates;

(c) penalty rates;

(d) allowances; and

(e) leave loading.

and that an IFA cannot be a condition of employment.

In respect of agreements it should be left up to the parties to decide whether

they want to include a flexibility term and, if so, in respect of which conditions.

If the parties do not want such a term, then under the current Act it will be a

narrow term which ensures only technical compliance with the Act. It is a waste

of time making it a requirement. It is better to leave it as an option to the

parties.

The word “must” in Clause 202(1) should be deleted and replaced with the

word “may” and Clauses 202(4) and 202(5) should be deleted.

Recommendation 18.1

Amend the regulations as explained.


19. CONCLUSION

19.1 The SDA commends the Government for the development and

implementation of the Fair Work Act. Creating a single system for the

corporate sector for industrial relations has been an enormous achievement.

The many benefits lost to employees under WorkChoices are being enjoyed

once again under the Fair Work system which has promoted, encouraged and

facilitated fairer workplaces for employees and employers.

19.2 The SDA is aware that many employers are critical of the Fair Work Act. We

do not agree with their criticisms. We do agree that there are improvements

to be made and we have addressed these in this submission. The balance

between employer and employee rights is being restored. The development

of the national system and predictability of the minimum wage date of effect

provide consistency and certainty. The widening of the safety net and the

increased resources of the FWO are providing greater protection to

employees than they experienced under WorkChoices. The facilitation and

encouragement of enterprise bargaining, greater transparency under the Act

of the certification process for enterprise agreements and the handing over of

the power to approve agreements to FWA have all been beneficial to

providing productive and flexible workplaces.

19.3 The SDA has made a number of recommendations for change and these have

been covered in detail. On one issue in particular, however, the SDA is

compelled to reiterate its position.

19.4 The Government must amend the Act to reinstate the full and unequivocal

right to arbitration as the final step in dispute resolution for all employees.

Without this fundamental right, many of the benefits of the Fair Work Act

cannot be truly realised. In order for Australian workplaces to be truly “fair”

places, each and every employee must have the right to have their genuine

grievances heard and determined by an independent umpire.

19.5 The SDA would welcome any further opportunities to discuss its submission

in greater detail with the review panel.


Appendix A

AMENDMENTS TO PUBLIC HOLIDAY PROVISIONS OF THE NATIONAL EMPLOYMENT STANDARDS

A. Amend Section 114(4) by adding a new paragraph (aa) before paragraph (a) as follows:

(aa) any term of a modern award or enterprise agreement that provides for work on a public

holiday to be at the election of the employee;

B. Amend the Fair Work Act by adding to Section 114 new subclauses (5) and (6) as follows:

(5) A modern award or enterprise agreement may include terms providing for work on public

holidays to be at the election of an employee.

(6) In deciding whether to include a provision for work on public holidays to be at the election of an employee in a modern award as permitted by subclause (5) FWA must take into account the following:

(a) whether an award prior to 1 January 2010 covering the industry or part of the industry or an

enterprise contained a provision for work on public holidays to be voluntary or for an

employee to elect whether or not to work on a public holiday;

(b) whether the practice prior to 1 January 2010 in the industry or part of the industry or an

enterprise was to seek volunteers to work on public holidays or an employee could elect

whether or not to work on a public holiday;

(c) any other matters that FWA considers relevant.

C. Amend the Fair Work Act by deleting Section 115 (1)(a) and inserting the following:

(a) each of these days:

(i) 1 January (New Year’s Day);

(ii) the Monday after 1 January (New Year’s Day) when New Year’s Day is a Saturday or

Sunday;

(iii) 26 January (Australia Day)

(iv) Good Friday

(v) Easter Sunday

(vi) Easter Monday

(vii) 25 April (Anzac Day)

(viii) the Queen’s birthday holiday (on the day on which it is celebrated in a State or Territory or

a region of a State or Territory);

(ix) 25 December (Christmas Day);

(x) the Monday after 25 December (Christmas Day) when Christmas Day is a Saturday;


(xi) the Tuesday after 25 December (Christmas Day) when Christmas Day is a Sunday;

(xii) 26 December (Boxing Day);

(xiii) the Monday after 26 December (Boxing Day) when Boxing Day is a Saturday

(xiv) the Tuesday after 26 December (Boxing Day) when Boxing Day is a Sunday.

D. Amend the Fair Work Act by adding to Section 115(2) after the words “because of subsection (l)” the

following:

(other than 1 January (New Year’s Day), 25 December (Christmas Day) and 26 December (Boxing

Day))

E. Amend the Fair Work Act by adding a new Section 116A as follows:

116A (1) A modern award or an enterprise agreement may include a term that permits an

employee who works a public holiday, either, to be paid a penalty rate for the hours

worked, or, to receive an alternative form of compensation.

(2) If a modern award or enterprise agreement includes compensation in the form of a

penalty rate for the hours worked and an alternative form of compensation, the terms must

require that

(a) an employee will be paid a penalty rate for the hours worked on a public holiday unless

the employee requests an alternative form of compensation; and

(b) each use of an alternative form of compensation must be by a separate written request

from the employee.

F. Amend the Fair Work Act by adding a new Section 116 B as follows:

116 B A Public Holiday Falling on a Non-Working Day

This section applies to a full time employee, and to an employee who is not a full time employee and

who works an average of 5 days a week.

Where a public holiday falls on a day the employee is not rostered to work (arising from their work

roster and not arising solely by virtue of it being a public holiday) the employee shall be entitled to

another day off at the base rate of pay or another day’s pay (at the employee’s election). “day” shall

mean the employee’s normal number of rostered hours on a working day or, if this is not fixed, the

average number of hours worked (i.e., the average hours rostered over four weeks divided by the

average number of days worked in a four week cycle).


APPENDIX B – MAXI FOODSFULL TIME EMPLOYEE WORKING THE WEEKEND

GENERAL RETAIL INDUSTRY AWARDMAXI FOODS AGREEMENT 2006 & LE MAX GROUP SUPERMARKETS 2006

MONDAY

TUESDAY

WEDNESDAY THURSDAY FRIDAY SATURDAY SUNDAY

9am 17.0342

17.0342

17.0342

17.0342

17.0342

17.0342

21.7697

17.0342

34.0684

22.1445

10am

17.0342

17.0342

17.0342

17.0342

17.0342

17.0342

21.7697

17.0342

34.0684

22.1445

11am

17.0342

17.0342

17.0342

17.0342

17.0342

17.0342

21.7697

17.0342

34.0684

22.1445

12pm

17.0342

17.0342

17.0342

17.0342

17.0342

17.0342

21.7697

17.0342

34.0684

22.1445

1pm 17.0342

17.0342

17.0342

17.0342

17.0342

17.0342

21.7697

17.0342

34.0684

22.1445

2pm 17.0342

17.0342

17.0342

17.0342

17.0342

17.0342

21.7697

17.0342

34.0684

22.1445

3pm 17.0342

17.0342

17.0342

17.0342

17.0342

17.0342

21.7697

17.0342

34.0684

22.1445

4pm 17.0342

17.0342

17.0342

17.0342

17.0342

17.0342

21.7697

17.0342

34.0684

22.1445

UNDER THE AWARD THE EMPLOYEE WILL BE PAID $812.749322.8 HOURS @ $17.0342 = $388.37987.6 HOURS @ $21.7697 = $165.44977.6 HOURS @ $34.0684 = $258.9198

Under The Agreement The Employee Will Be Paid $686.137930.4 HOURS @ $17.0342 = $517.83977.6 HOURS @ $22.1445 = $168.2982

PART TIME EMPLOYEE WORKING 10 HOURS OVER THE WEEKENDGENERAL RETAIL INDUSTRY AWARDMAXI FOODS AGREEMENT 2006 & LE MAX GROUP SUPERMARKETS 2006

MONDAY TUESDAY WEDNESDAY

THURSDAY FRIDAY SATURDAY SUNDAY

9am 21.7697 17.0342 34.0684 22.1445

10am 21.7697 17.0342 34.0684 22.1445

11am 21.7697 17.0342 34.0684 22.1445

12pm1pm2pm3pm4pm5pm6pm 21.292

817.0342

7pm 21.2928

17.0342

8pm 21.292 17.034


8 2

9pm 21.2928

17.0342

UNDER THE AWARD THE EMPLOYEE WILL BE PAID $252.68554 HOURS @ $21.2928 = $85.17123 HOURS @ $21.7697 = $65.30913 HOURS @ $34.0684 = $102.2052UNDER THE AGREEMENT THE EMPLOYEE WILL BE PAID $185.67297 HOURS @ $17.0342 = $119.23943 HOURS @ $22.1445 = $66.4335

CASUAL EMPLOYEE WORKING 10 HOUR WEEK OVER THE WEEKENDGENERAL RETAIL INDUSTRY AWARDMAXI FOODS AGREEMENT 2006 & LE MAX GROUP SUPERMARKETS 2006

MONDAY TUESDAY WEDNESDAY

THURSDAY FRIDAY SATURDAY SUNDAY

9am 22.4851

21.2928

34.9201 23.8479

10am 22.4851

21.2928

34.9201 23.8479

11am 22.4851

21.2928

34.9201 23.8479

12pm1pm2pm3pm4pm5pm6pm 22.144

721.2928

7pm 22.1447

21.2928

8pm 22.1447

21.2928

9pm 22.1447

21.2928

UNDER THE AWARD THE EMPLOYEE WILL BE PAID $260.79444 HOURS @ $22.1447 = $88.57883 HOURS @ $22.4851 = $67.45533 HOURS @ $34.9201 = $104.7603

UNDER THE AGREEMENT THE EMPLOYEE WILL BE PAID $220.59337 HOURS @ $21.2928 = $149.04963 HOURS @ $23.8479 = $71.5437

CASUAL EMPLOYEE WORKING 8 HOURS ON A SUNDAYGENERAL RETAIL INDUSTRY AWARDMAXI FOODS AGREEMENT 2006 & LE MAX GROUP SUPERMARKETS 2006

MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY SATURDAY SUNDAY9am 34.9201 23.8479


10am 34.9201 23.8479

11am 34.9201 23.8479

12pm 34.9201 23.8479

1pm 34.9201 23.8479

2pm 34.9201 23.8479

3pm 34.9201 23.8479

4pm 34.9201 23.8479

5pm6pm

UNDER THE AWARD THE EMPLOYEE WILL BE PAID $279.36088 HOURS @ $34.9201 = $279.3608

UNDER THE AGREEMENT THE EMPLOYEE WILL BE PAID $190.78328 HOURS @ $23.8479 = $190.7832


Rate calculation for General Retail Award and Maxi Foods Agreement

PERMANENT

GENERAL RETAIL INDUSTRY AWARD 2010WEEKLY MONDAY - FRIDAY SATURDAY SUNDAY OVERTIME PH

Level 1 100%Weekly

100%Mon to Fri7am –6pm

125%Mon to Fri6pm – 9pm

127.8%Saturday

7am – 6pm

200%Sunday

9am – 6pm

150%Overtime

(first 3 hrs)

200%Overtime

(after 3 hrs)

250%Public

Holiday100 % 647.30 17.0342 21.2928 21.7697 34.0684 25.5513 34.0684 42.5855

MAXI FOODS SUPERMARKETS AGREEMENT 2006 LE MAX SUPERMARKETS WORKPLACE AGRREMENT 2006WEEKLY MONDAY - FRIDAY SATURDAY SUNDAY OVERTIME PH

GEN 100%Weekly

100%Monday to Friday5am – 12am

100%Saturday5am – 8pm

130%Saturday8pm – 12am

130%Sunday 5am – 8pm

150%Sunday8pm – 12am

150%Overtime(first 3 hrs)

200%Overtime(after 3 hrs)

250%Public Holiday

100 % 647.30 17.0342 17.0342 22.1445 22.1445 25.5513 25.5513 34.0684 42.5855

CASUAL

GENERAL RETAIL INDUSTRY AWARD 2010CLAS MONDAY - FRIDAY SATURDAY SUNDAY OVERTIME PH

Level 1Hourly

130%Monday to Friday

7am – 9pm

132%Saturday

7am – 11pm

205%Sunday

9am – 6pm

150%Overtime

(first 3 hrs)

200%Overtime

(after 3 hrs)

265%Public

Holiday100 % 17.0342 22.1447 22.4851 34.9201 25.5513 34.0684 45.1406

MAXI FOODS SUPERMARKETS AGREEMENT 2006 LE MAX SUPERMARKETS WORKPLACE AGRREMENT 2006CLAS HOURLY MONDAY - FRIDAY SATURDAY SUNDAY OVERTIME PH

GEN 100%Weekly

125%Monday to Friday5am – 12am

125%Saturday5am – 8pm

135%Saturday8pm – 12am

140%Sunday 5am – 8pm

160%Sunday8pm – 12am

150%Overtime(first 3 hrs)

200%Overtime(after 3 hrs)

250%Public Holiday

100 % 17.0342 21.2928 21.2928 22.9961 23.8479 27.2547 25.5513 34.0684 42.5855

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