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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.
Submission to Fair Work Act Review 2012 2
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
Submission to Fair Work Act Review 2012 3
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
Submission to Fair Work Act Review 2012 4
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.
Submission to Fair Work Act Review 2012 5
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
Submission to Fair Work Act Review 2012 6
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
Submission to Fair Work Act Review 2012 7
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
Submission to Fair Work Act Review 2012 8
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.
Submission to Fair Work Act Review 2012 9
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.
Submission to Fair Work Act Review 2012 10
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.
Submission to Fair Work Act Review 2012 11
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.
Submission to Fair Work Act Review 2012 12
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.
Submission to Fair Work Act Review 2012 13
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.
Submission to Fair Work Act Review 2012 14
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.
Submission to Fair Work Act Review 2012 15
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.
Submission to Fair Work Act Review 2012 16
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
Submission to Fair Work Act Review 2012 17
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
Submission to Fair Work Act Review 2012 18
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.
Submission to Fair Work Act Review 2012 19
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.
Submission to Fair Work Act Review 2012 20
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
Submission to Fair Work Act Review 2012 21
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.
Submission to Fair Work Act Review 2012 22
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.
Submission to Fair Work Act Review 2012 23
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.
Submission to Fair Work Act Review 2012 24
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
Submission to Fair Work Act Review 2012 25
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
Submission to Fair Work Act Review 2012 26
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.
Submission to Fair Work Act Review 2012 27
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.
Submission to Fair Work Act Review 2012 28
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
Submission to Fair Work Act Review 2012 29
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.
Submission to Fair Work Act Review 2012 30
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.
Submission to Fair Work Act Review 2012 31
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
Submission to Fair Work Act Review 2012 32
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.
Submission to Fair Work Act Review 2012 33
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.
Submission to Fair Work Act Review 2012 34
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
Submission to Fair Work Act Review 2012 35
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
Submission to Fair Work Act Review 2012 36
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
Submission to Fair Work Act Review 2012 37
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
Submission to Fair Work Act Review 2012 38
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.
Submission to Fair Work Act Review 2012 39
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.
Submission to Fair Work Act Review 2012 40
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.
Submission to Fair Work Act Review 2012 41
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.
Submission to Fair Work Act Review 2012 42
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.
Submission to Fair Work Act Review 2012 43
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
Submission to Fair Work Act Review 2012 44
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
Submission to Fair Work Act Review 2012 45
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.
Submission to Fair Work Act Review 2012 46
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
Submission to Fair Work Act Review 2012 47
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
Submission to Fair Work Act Review 2012 48
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.
Submission to Fair Work Act Review 2012 49
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
Submission to Fair Work Act Review 2012 50
(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.
Submission to Fair Work Act Review 2012 51
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
Submission to Fair Work Act Review 2012 52
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.
Submission to Fair Work Act Review 2012 53
(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.
Submission to Fair Work Act Review 2012 54
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
Submission to Fair Work Act Review 2012 55
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.
Submission to Fair Work Act Review 2012 56
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
Submission to Fair Work Act Review 2012 57
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.
Submission to Fair Work Act Review 2012 58
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.
Submission to Fair Work Act Review 2012 59
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.
Submission to Fair Work Act Review 2012 60
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).
Submission to Fair Work Act Review 2012 61
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.
Submission to Fair Work Act Review 2012 62
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
Submission to Fair Work Act Review 2012 63
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
Submission to Fair Work Act Review 2012 64
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
Submission to Fair Work Act Review 2012 65
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
Submission to Fair Work Act Review 2012 66
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.
Submission to Fair Work Act Review 2012 67
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
1 July 2012 60% of the change in classification rates of pay and penalty
Submission to Fair Work Act Review 2012 68
rates apply
1 July 2013 80% of the change in classification rates of pay and penalty
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.
Submission to Fair Work Act Review 2012 69
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
Submission to Fair Work Act Review 2012 70
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
Submission to Fair Work Act Review 2012 71
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.
Submission to Fair Work Act Review 2012 72
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.
Submission to Fair Work Act Review 2012 73
Recommendation 16.2
The Act should contain a specific provision mandating the display of the award in each workplace in a publicly accessible place.
Submission to Fair Work Act Review 2012 74
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.
Submission to Fair Work Act Review 2012 75
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.
Submission to Fair Work Act Review 2012 76
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.
Submission to Fair Work Act Review 2012 77
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.
Submission to Fair Work Act Review 2012 78
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).
Submission to Fair Work Act Review 2012 79
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.
Submission to Fair Work Act Review 2012 80
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
Submission to Fair Work Act Review 2012 81
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.
Submission to Fair Work Act Review 2012 82
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.
Submission to Fair Work Act Review 2012 83
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.
Submission to Fair Work Act Review 2012 84
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.
Submission to Fair Work Act Review 2012 85
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;
Submission to Fair Work Act Review 2012 86
(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).
Submission to Fair Work Act Review 2012 87
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
Submission to Fair Work Act Review 2012 88
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
Submission to Fair Work Act Review 2012 89
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
Submission to Fair Work Act Review 2012 90
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