Frequently Asked Questions

Fair Work Australia
1. What is Fair Work Australia?
2. What is the Fair Work Ombudsman?

The National Employment Standards
3. What are the National Employment Standards?
4. Who does the NES apply to?

Modern Awards
5. Who will be covered by a modern award?
6. For the purposes of calculating guaranteed earnings what is counted and what is not counted?
7. What will be covered in a modern award?
8. We have an enterprise award (company award)- what happens in our situation?
9. What about people who are not covered by awards?
10. What is a flexibility clause in a modern award?
11. What is a Take Home Pay Order?

Minimum Wages
12. What has happened to the National Wage Case or the Annual Wage Review?

Agreements, AWAs and ITEAs under the previous Act
13. What happens to my existing AWAs?
14. What happens once they expire?
15. What happens to my ITEAs after 31 December 2009?

Collective Bargaining
16. What is collective bargaining?
17. What is an enterprise agreement?
18. What matters can be included in an enterprise agreement?
19. What are the different types of agreements?
20. What are single-enterprise agreements?
21. What are multi-enterprise agreements?
22. What are greenfields agreements?
23. Our existing employee collective agreement has expired and I have been approached by the union to do a new enterprise agreement. What do I do?
24. What is good faith bargaining?
25. Am I required to make concessions for bargaining in good faith?
26. Various employees want to be represented by different bargaining representatives in the negotiations for an enterprise agreement. What are my obligations?
27. The union has told me I cannot talk to my employees as they are the bargaining representative. What are my rights?
28. What is a majority support determination?
29. What is a scope order?
30. What is a workplace determination?
31. What is a mandatory term?
32. What are unlawful terms?
33. What is the BOOT?
34. What is the difference between the old No Disadvantage Test (NDT) and the Better off Overall Test (BOOT)?
35. Is the BOOT applied individually to each employee’s situation or is it done on a collective basis?
36. When is an agreement made?
37. When does an agreement commence operation?
38. When will Fair Work Australia approve an agreement?
39. What does it mean for employees to have genuinely agreed to an agreement?

Industrial Action
40. When can employees take industrial action?
41. Can industrial action be taken at any time during the bargaining period?
42. What if my employees take unprotected action? What remedies do I have?

Unfair Dismissal
43. What is the difference between an unfair dismissal and an unlawful termination?
44. I run a small business and I have heard about this code for small business regarding unfair dismissals. What is it?
45. I need to make some employees redundant. Can I do this and properly defend an unfair dismissal claim?

Right Of Entry
46. For what reason can a union official come on to my premises?
47. Can a union official look at all my employees records in the case of an a suspected breach?
48. How much notice does a union official have to provide me?

General Protections
49. What are these new General Protection provisions in the Fair Work Act?

Transfer of Business
50. What is the difference between the term ‘transmission of business’ which was featured in the old law and ‘transfer of business’ under the new act?

Record keeping
51. Have my record keeping Obligations changed under the new laws?

1. What is Fair Work Australia?

Fair Work Australia (FWA) is a new body to replace Australian Industrial relations Commission (AIRC), the Australian Fair Pay Commission & the Workplace Authority.

 FWA functions from 1 July 2009 are as follows:

• Make & vary Awards;
• Review minimum wages
• Approve enterprise agreements,
• Facilitate bargaining
• Issue industrial action orders
• Dispute settlement
• Handle termination of employment and general protection claims
• Deal with applications under the transfer of business provisions
• Deal with matters arising under right of entry provisions;
• Deal with the extension of NES entitlements.

2. What is the Fair Work Ombudsman?

The Fair Work Ombudsman will replace the Workplace Ombudsman and the advisory functions previously performed by the Workplace Authority.

The functions of the Workplace Ombudsman include providing education and assistance to employers and employees, investigating complaints and ensuring compliance with the Fair Work Act and other industrial instruments e.g. awards and agreements.

 

3. What are the National Employment Standards?

The National Employment Standards (NES) are set of legislated minimum conditions under the Fair Work Act and a key component along with modern awards of the Government’s Fair Work ‘safety net’.

 

The NES include:

• Maximum hours of work;
• Annual Leave
• Personal/carer’s Leave and compassionate Leave
• Parental leave;
• Flexible working arrangements
• Community services leave
• Public holidays
• Long service leave
• Notice of termination and redundancy pay and
• Fair work information statements.

NES conditions cannot be excluded or reduced by awards or enterprise agreements. 

4. Who does the NES apply to?

The NES will apply to all employees in the federal system from 1 January 2010 replacing the Australian Fair Pay & Conditions Standard. 
The NES applies to all award and award free employees.

5. Who will be covered by a modern award?

The AIRC will create modern awards to cover most employees who perform work that has historically been regulated by awards.
Modern awards will replace old industry awards from 1 January 2010. 

Modern Awards will not apply to employees with guaranteed earnings of more than $108,300 per annum (pro rata for part time employees).  These employees and employers can agree on terms to supplement the NES without reference to an award and may still be covered by an enterprise agreement.

An award does not apply to an employee if the employer provides a written undertaking to pay annual earnings at or above the high income threshold over a period of 12 months or more. A guarantee does not apply to an employee to whom an enterprise agreement applies.

6. For the purposes of calculating guaranteed earnings what is counted and what is not counted?

Wages & employee super contributions

Agreed value of non-monetary benefits

 

do count towards the calculation of guaranteed earnings

Conversely:
     

Compulsory employer super contributions

Commissions, bonuses reimbursements

do not count towards the calculation of guaranteed earnings.

7. What will be covered in a modern award?

Modern awards build on the NES and may include:

• Minimum wages
• Types of employment
• Arrangements for when work is performed
• Overtime and penalty rates
• Annualised wage or salary arrangements
• Allowances
• Leave related matters
• Superannuation
• Procedures for Consultation
• Representation and dispute settlement

8. We have an enterprise award (company award)- what happens in our situation?

If employees are currently covered by an enterprise award they will not be covered by a modern award. Enterprise awards can be modernised up to 31 December 2013.

9. What about people who are not covered by awards?

All employees will be protected by the NES – whether they are covered by an award or not.  In addition there will be a national minimum wage order for employees not covered by a modern award. 

To ensure that the NES operate properly, simple and flexible ‘default’ rules will apply to employees not covered by an award or enterprise agreement.

The default rules will set out how the NES will apply to such employees by:

• Defining which shift workers are entitled to an extra week of annual leave under the NES
• Providing a mechanism setting an employee’s ‘ordinary hours of work’ to underpin the calculation of leave accrual and payment under the NES (if these are not agreed between the employer and the employee)
• Allowing the averaging out of working hours by written agreement over a period of 26 weeks
• Allowing the cashing out of annual leave by agreement subject to protections, including a requirement that the employee retains at least 4 weeks leave after the cash out
• Allowing agreement between the employer and the employee about when and how paid annual leave may be taken.
• Allowing employers to give reasonable directions about the taking of paid annual leave by an employee, and
• Allowing the substitution of public holidays by agreement.

 

10. What is a flexibility clause in a modern award?

Modern Awards must contain a flexibility clause allowing employers and employees to negotiate arrangements to meet their individual needs. These are called Individual Flexibility Arrangements (IFA), with a safeguard to ensure that the employee must be better off overall under the IFA. 

In order to be valid under the Act, the flexibility clause must:

• Identify the terms of the modern award to be varied by an IFA
• Require the employee and the employer to genuinely agree to any IFA
• Require the employer to ensure that any IFA arrangement must result in the employee being “better off overall” than the employee would have been if no individual flexibility arrangement were agreed to; and
• Set out how the IFA may be terminated by the employee or the employer
• Require the employer to ensure that IFA is in writing and signed by the employer and the employee
• Require the employer to give a copy of the IFA to the employee

To make a new employee’s employment conditional on signing an IFA is not permissible under the Act.

The IFA must be genuinely agreed between the employee and the employer.  An employee must be “better off overall” under an IFA compared with the Award or else the IFA is not valid.            The IFA must be in writing and signed by both parties.  The employer must give a copy of the IFA to the employee.

11. What is a Take Home Pay Order?

On application, FWA will be able to make orders where existing employees’ take home pay is reduced as a consequence of award modernisation.

 

12. What has happened to the National Wage Case or the Annual Wage Review?

Guaranteed, fair minimum wages are part of the ‘safety net’ established by the Fair Work Act.  Under the Fair Work system, minimum wages and casual loadings will be set and adjusted by a specialist Minimum Wages Panel within FWA.

The Minimum Wage Panel when setting and adjusting minimum wages is required to take a number of factors into account:

• The performance and competitiveness of the national economy
• Promoting social inclusion via increased workforce participation
• Relative living standards and the needs of the low paid
• The principle of equal remuneration for work of equal or comparable value
• Providing a comprehensive range of fair minimum wages for junior employees, trainees and disabled employees

13. What happens to my existing AWAs?

The transitional provisions provide that AWAs will continue to operate until they are terminated or replaced.

An AWA can be terminated by mutual agreement or after its nominal expiry date by 90 days notice by either party.

From 1 January 2010 the NES will apply to AWAs.  In other words if an AWA contains a provision which is of a lesser standard than that provided for in the NES, the NES will apply.  This may have particular relevance in the manufacturing industry where there are a large number of pre-WorkChoices workplace agreements that provide for up to 8 days of personal/carer’s leave per annum.  From 1 January 2010 all employees will be entitled to up to 10 days of personal/carer’s leave per annum in accordance with the NES.

However, modern awards will not apply to AWAs whilst the AWA is in operation.

14. What happens once they expire?

AWAs will continue to operate indefinitely until they are terminated or replaced. The NES will still apply from 1 January 2010.

15. What happens to my ITEAs after 31 December 2009?

By law ITEAs expire on 31 December 2009 or the expiry date specified in the ITEA whichever is the earlier.  After the ITEA has expired it is outside its nominal term.  However, they will continue to operate until they are terminated or replaced.

16. What is collective bargaining?

Collective bargaining is a term which describes the process where an employer, employees and their bargaining representatives bargain for an enterprise agreement.

17. What is an enterprise agreement?

An enterprise agreement provides terms and conditions of employment for those employees to which it applies. It also sets out the rights and obligations of the employer and any unions that it covers.

18. What matters can be included in an enterprise agreement?

Employers and employees can only make an enterprise agreement about permitted matters.
Permitted matters are:

• matters pertaining to the relationship between the employer (or employers) and employees covered by the agreement;
• matters pertaining to the relationship between the employer (or employers) and employee organisation (or employee organisations) covered by the agreement;
• deductions from wages for any purpose authorised by an employee covered by the agreement; and
• how the agreement will operate.

The intention of the Fair Work Act 2009 is that terms about trade union training leave are able to be included in agreements.
Whether an agreement is about permitted matters is important because employee claim action will only be protected industrial action if it is taken in support of such matters, or matters that are reasonably believed to be permitted matters.

Agreements that contain terms that are not about permitted matters will still be valid but only to the extent of the provisions relating to permitted matters. The non-permitted matters will have no effect.

19. What are the different types of agreements?

There are several different types of enterprise agreements. These are:

• single-enterprise agreements,
• multi-enterprise agreements and
• greenfields agreements. Greenfields agreements (which are made before the employer has engaged any employees who will be covered by the agreement), can be either single-enterprise or multi-enterprise agreements.

20. What are single-enterprise agreements?

Single-enterprise agreements are made between a group of employees and:

• an employer; or
• two or more employers that are single interest employers.

21. What are multi-enterprise agreements?

Multi-enterprise agreements are made between two or more employers and groups of their employees. Employers must voluntarily agree to bargain together for a multi‑enterprise agreement, with the exception of employers specified in a low-paid authorisation.

22. What are greenfields agreements?

Greenfields agreements can only be made in relation to a genuine new enterprise, before the employer has engaged any employees who will be covered by the enterprise agreement. These agreements are made between employer(s) and employee organisation(s) that are entitled to represent the majority of the employees who will be covered by the agreement.

23. Our existing employee collective agreement has expired and I have been approached by the union to do a new enterprise agreement.  What do I do?

Under the Fair Work Act all employers are legally obliged to bargain in good faith for an enterprise agreement if the majority of the relevant group of employees want an agreement (under the previous system there was no such obligation). 

It is important to establish that the union is a properly established bargaining representative, and if so, what proportion of the workforce the union represents.

24. What is good faith bargaining?

Good faith bargaining can be defined as an honest intention to bargain fairly and to abstain from taking unfair advantage of another party.

Good faith bargaining requirements are prescribed in the Act as follows:

• Attending, and participating in, meetings at reasonable times
• Disclosing relevant information in a timely manner (other than confidential or commercially sensitive information)
• Responding to proposals in a timely manner
• Giving genuine consideration to the proposals and reasons for responses to the proposals
• Refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining
• Recognising and bargaining with other bargaining representatives

25. Am I required to make concessions for bargaining in good faith?

There is no requirement to make concessions or reach agreement on the terms of an agreement. 

26. Various employees want to be represented by different bargaining representatives in the negotiations for an enterprise agreement. What are my obligations?

Employers are required to advise employees on commencement of bargaining that they may appoint a bargaining representative.  Unions are automatically deemed to be the bargaining representatives of their members unless the employee specifies otherwise.  However, each employee has a right to be represented by a bargaining representative of their own choosing.

27. The union has told me I cannot talk to my employees as they are the bargaining representative.  What are my rights?

As an employer you are entitled to talk to your employees about any matter within the scope of their employment and the performance of the business.  You are entitled to disseminate information about the state of the business directly to your employees.

It is a different thing entirely to attempt to bargain directly with the employees and bypass their authorised bargaining agent either intentionally or unintentionally – such conduct could be in breach of the Act.

28. What is a majority support determination?

A determination issued by FWA that a majority of the employees who will be covered by the agreement want to bargain with the employer. 

If granted, the employer would be subject to good faith bargaining requirements under the Fair Work Act, including requirements to attend and participate in meetings, in relation to other bargaining representatives (including the union).

Before issuing a majority support determination, FWA must be satisfied that:

•  a majority of the employees who will be covered by the agreement want to bargain (using any method FWA considers appropriate);
• if the agreement will not cover all the employees & the group of employees is not geographically, operationally or organisationally distinct – the group was fairly chosen; and
• it is reasonable to make the determination

29. What is a scope order?

A bargaining representative for a proposed single-enterprise agreement may apply for a scope order if they have concerns that bargaining is not proceeding efficiently or fairly because the agreement will not cover appropriate employees or will cover employees it is not appropriate for the agreement to cover.

For example, consider a metal work shop whose employees on the shop floor are subject to an enterprise agreement and its administrative staff have traditionally been covered by separate employment arrangements.  If the union representing the shop floor employees attempted to extend the scope of the agreement in the next bargaining round to include those administrative employees, it would be open to the employer to apply for a scope order because the agreement will cover employees it is not appropriate for the agreement to cover.

Scope orders must specify the employer or employers that will be covered by the agreement and the employees that will be covered by the agreement.

30. What is a workplace determination?

There are several types of workplace determinations:

• Low paid
• Industrial action related; and
• Bargaining related

Factors that Fair Work Australia must take into account in deciding which terms to include in a workplace determination include:

• the merits of the case
• the interests of the employers and employees
• how productivity might be improved in the enterprise or enterprises concerned
• the public interest
• the conduct of the bargaining representatives.

 

Low-paid workplace determinations

Bargaining representatives for a proposed agreement, or a relevant union, may apply for a low-paid authorisation in relation to a proposed multi-enterprise agreement.

FWA must take into account a range of factors, including whether making the determination would assist low-paid employees who have not had access to collective bargaining or who face substantial difficulty bargaining at the enterprise level.

If a low-paid authorisation is in place and one or more of those bargaining are unable to reach agreement, Fair Work Australia may make a low-paid workplace determination.

Industrial action related workplace determinations

FWA must make an industrial action related workplace determination if a termination of industrial action instrument is made and the bargaining representatives have not settled the matters that were at issue during bargaining after the end of the post-industrial action negotiating period.

Bargaining related workplace determinations

FWA must make a bargaining related workplace determination if a serious breach declaration is made and the bargaining representatives for the agreement have not settled the matters that were at issue during bargaining after the end of the post-declaration negotiating period.

Operation of workplace determinations

A workplace determination operates from the day on which it is made.

A workplace determination ceases to operate on the earlier of the following days:

• the day on which a termination of the determination comes into operation
• the day on which an enterprise agreement or another workplace determination that covers the employee in relation to the same employment comes into operation
• the day on which there is no employee to whom the agreement applies.

The Fair Work Act 2009 applies to a workplace determination as if it were an enterprise agreement.

31. What is a mandatory term?

The Act provides that all enterprise agreements must contain certain mandatory terms.  These terms are by operation of the Act, deemed to apply even if the Enterprise Agreement is silent.  The Mandatory Terms are:

• A Flexibility term – which allows employer & individual employee to agree to arrangements varying the effect of the agreement to meet their genuine needs.  The employee must be better off overall.
• A Consultation term – which requires employer to consult with employees on major workplace change

32.What are unlawful terms?

Unlawful terms are those terms which are unlawful to include in an enterprise agreement.  Examples of unlawful terms include:

• Terms which act to exclude the NES
• Discriminatory terms e.g. terms which discriminate on the grounds of race, sex, sexual preference, religion etc.
• Objectionable terms.  An objectionable term is a term that acts to permit either a contravention of the general protections or the payment of a bargaining fee, terms that are inconsistent with the unfair dismissal provisions of the Act, the industrial action provisions, the right of entry provisions etc. (however a term expanding the right of entry provisions is not an objectionable term)

33. What is the BOOT?

The Better Off Overall Test or BOOT is the legislative test that must be applied by FWA before approving an enterprise agreement.

The BOOT specifies that the employee must be “better off overall” than under the Award. 

34. What is the difference between the old No Disadvantage Test (NDT) and the Better off Overall Test (BOOT)?

The two tests are very similar.

Both are used to compare a proposed set of terms and conditions against a set of minimum conditions in an award.

However there is one difference.  The NDT ensures that employees are not disadvantaged compared with the relevant award. On the other hand the BOOT specifies that the employee must be “better off overall”.  This suggests that the outcome can’t be neutral or equivalent as the employee must be “better off overall”. 

35. Is the BOOT applied individually to each employee’s situation or is it done on a collective basis?

FWA will apply the test to "classes of employees", rather than each and every employee (or prospective employee). The FW Act also deems that unless evidence is provided to the contrary, if a "class" of employees' passes the BOOT, then each individual is assumed to pass.

36. When is an agreement made?

A proposed single enterprise agreement that is not a greenfields agreement is made when the agreement is approved by a majority of the employees who will be covered by the agreement and who cast a valid vote for the agreement.

A proposed multi‑enterprise agreement that is not a greenfields agreement is made on an enterprise by enterprise basis.  A multi‑enterprise agreement is made immediately after the voting process where the employees of each of the employers that will be covered by the proposed agreement have voted for the agreement and it has been approved by a majority of the employees of at least one of those employers who cast a valid vote for the agreement.

A greenfields agreement (whether a single‑enterprise or multi‑enterprise agreement) is made when it is signed by each employer and each employee organisation that will be covered by the agreement.

37. When does an agreement commence operation?

An enterprise agreement does not commence operation until it is approved by Fair Work Australia.

38. When will Fair Work Australia approve an agreement?

Once an application for approval has been made, Fair Work Australia must approve an agreement if it is satisfied that all approval requirements have been met.
The approval requirements are:

• the agreement was genuinely agreed to by the employees covered by the agreement;
• in the case of a multi-enterprise agreement, that each employer genuinely agreed to the agreement and that no person coerced, or threatened to coerce, any of the employers to make the agreement;
• the terms of the agreement do not contravene the NES (from 1 January 2010);
• the agreement passes the BOOT (from 1 January 2010);
• the group (or scope) of employees covered by the agreement was fairly chosen;
• the agreement does not contain unlawful terms;
• the agreement contains a nominal expiry date of not more than four years from the day of approval;
• the agreement contains a dispute settlement term,
• approving the agreement would not undermine good faith bargaining if a scope order is in operation in relation to the agreement;
• if a multi-enterprise agreement was not approved by the employees of all the employers who asked their employees to vote on the agreement, that the agreement has been varied to cover only the employers (and their employees) whose employees approved the agreement; and
• the agreement meets the approval requirements dealing with shiftworkers, pieceworkers, outworkers, or school‑based apprentices and school‑based trainees (these requirements ensure that the agreement is not detrimental to those employees).

If an enterprise agreement does not contain a flexibility term or a consultation term then Fair Work Australia may still approve the agreement, however, Fair Work Australia will note that the model flexibility term or the model consultation term will be taken to be a term of the agreement.

39. What does it mean for employees to have genuinely agreed to an agreement? 

For Fair Work Australia to be satisfied that the requirement for genuine agreement has been met, it must be satisfied that:

• each of the employers that will be covered by the agreement has complied with the pre-approval steps, which are as follows:
• employees must be given a copy of the proposed agreement and any related material incorporated within it;
• the employer must take all reasonable steps to notify employees of the time and place of the vote and the voting method
• the employer must take all reasonable steps to ensure that the terms of the agreement and their effect is properly explained to employees
• a majority of those employees who cast a valid vote have approved the agreement and

Fair Work Australia is satisfied that there are no other reasonable grounds to believe the agreement was not genuinely agreed to.

40. When can employees take industrial action?

Employees can take protected industrial action to support or advance claims during collective bargaining. 

Such action will only be protected if it is authorised by a secret ballot.  The employees must be genuinely trying to reach agreement.  No industrial action can be taken until an existing agreement is past its nominal expiry date.  At least 3 days notice (or longer if specified in the ballot order) must be given in writing to the employer.

41. Can industrial action be taken at any time during the bargaining period?

No.  

There are common requirements that an employer, employee or their bargaining representatives must meet for industrial action to be protected. These requirements include e.g. the bargaining representatives must be genuinely trying to reach agreement, the bargaining representatives must not have contravened any orders in relation to the industrial action or bargaining the bargaining representatives must have given proper notice of the industrial action the bargaining representatives must not have organised or engaged in industrial action before the nominal expiry date of the enterprise agreement there must be no suspension or termination order of the industrial action or serious breach declaration in operation.

42.  What if my employees take unprotected action?  What remedies do I have?

An employer is able to seek urgent Orders from FWA (“stop orders”) or the Courts (injunctions) and to pursue damages in response to unlawful industrial action.

43. What is the difference between an unfair dismissal and an unlawful termination?

An unfair dismissal is a dismissal which is considered by FWA to be harsh, unjust or unreasonable.  An unfair dismissal under the Act is treated differently to terminations for unlawful reasons which are dealt with as part of the General Protections provisions in the Act.

Unfair dismissal applications must be made within 14 days of the dismissal.  Remedies for breach include reinstatement, compensation, order to main continuity of employment and orders to restore lost pay.  However, FWA cannot award compensation for shock, distress or humiliation or other analogous hurt.

Unlawful termination complaints must be made to Fair Work Australia within 60 days of the termination.  In contrast to previous laws, there is no limit on the amount of damages that can be awarded to an employee terminated for an unlawful reason.

It is strongly suggested that if you are considering terminating an employee that you contact AIG to discuss your situation.

44. I run a small business and I have heard about this code for small business regarding unfair dismissals.  What is it?

It is called the “Small Business Fair Dismissal Code”.  Employers with fewer than 15 employees should ensure that any dismissal is consistent with the Federal Government’s Small Business Fair Dismissal Code because such dismissals are fair under the new laws.

To accompany the Code the government has issued a Checklist to assist small business employers. 

45. I need to make some employees redundant.  Can I do this and properly defend an unfair dismissal claim?

The Act allows an exemption from unfair dismissal in cases of genuine redundancy.  An employee will be genuinely redundant if you can demonstrate (preferably with detailed documentary supporting evidence) that:

• The employee’s job is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.
• The employer has complied with any consultation requirements in a modern award or enterprise agreement; and
• It was not reasonable in all the circumstances to redeploy the employee within the company or an associated entity of the company

This appears to be a more rigorous test than the ‘genuine operational reasons’ test that applied under the previous Act, in particular for medium to larger businesses (especially those with associated entities) which may find it difficult in some circumstances to demonstrate that they have met the final requirement, in which case the employee will be able to proceed with their application and FWA will apply the usual test of whether the termination was ‘harsh, unjust or unreasonable.’

46. For what reason can a union official come on to my premises? 

For two reasons (apart from OHS matters):

• To investigate a suspected breach of the Fair Work Act 2009, term of a fair work instrument, or
• To hold discussions with employees.

47. Can a union official look at all my employees records in the case of an a suspected breach?

Whilst a permit holder can review and copy records or documents directly relevant to a suspected breach, a permit holder cannot access records that relate to employees who are not members of the permit holder’s union unless the record also substantially relates to a member, the non-member consents in writing or the permit holder obtains an order from FWA that this is necessary to properly investigate the breach.

In these situations it is suggested that you seek urgent advice before handing over your records.

48. How much notice does a union official have to provide me? 

A union official with a duly authorised permit must provide 24 hours notice of their intention to enter the premises. 

They must also show their entry permit and entry notice on request and before inspecting or copying records or documents enter during working hours and only to parts of the premises used mainly for business purposes comply with reasonable requests by an employer to adhere to OHS requirements or to meet in a certain area.

There is a search engine on the Fair Work Australia website where you can find out if the person wanting to come on to your site has an entry permit - http://www.fwa.gov.au/index.cfm?pagename=entryfind

49. What are these new General Protection provisions in the Fair Work Act?

The Act streamlines a range of related protections into one part of the legislation, making them simpler to follow.  Freedom of association, the former ‘unlawful termination’ provisions and other miscellaneous protection provisions (such as an employee’s right to reasonably refuse work on a public holiday) have been combined into a new set of protections.

Essentially, the new protections relate to workplace rights and participation or non-participation in certain industrial activities.

There are also a number of miscellaneous protections included in the general protections, including protections in relation to discrimination, temporary absence from work because of illness or injury and sham contracting.

All employees will remain free to choose to belong to a union or not along with a choice of whether or not they want to participate in collective activities such as bargaining for an enterprise agreement or taking protected industrial action.

It will be unlawful to stop or to try to stop an employee exercising this free choice e.g. via threats, pressure, discrimination, victimisation or dismissal.

50. What is the difference between the term ‘transmission of business’ which was featured in the old law and ‘transfer of business’ under the new act?

The Fair Work Act includes replacement provisions for the old transmission of business rules that have existed under the previous laws.

The Transfer of Business rules are aimed at protecting the rights of employees, in a fair manner, when there is a change of employer.

Not only do the new rules change many aspects of the former regulation, but they also reflect a broader approach to the question of retention of employee entitlements and to the circumstances in which the general transfer rules apply.

The immediate reaction of employers to transfer of employment regulation is to consider that this area is confined to the sale of businesses. This is a serious misunderstanding of the reach of the laws that can lead to unfortunate consequences.

In reality, the new laws could apply to any one of the following scenarios:

• Contractual sale of business by parties at arms’ length
• Take over of corporations
• Outsourcing of work
• Termination of outsourcing arrangements.
• Competitive tenders for on-going contractual services
• Performing work previously performed by a liquidated corporation
• Corporate re-structuring
• Labour hire arrangements
• Joint ventures and partnership arrangements
• Other changes in the employer entity

In respect of these transactions, employers need to carefully consider the consequences flowing from the continuation of the industrial entitlements of that worker.

Otherwise an employer may unwittingly become covered by employment conditions that it does not want to apply to its employees, or that it may become liable for payment of redundancy benefits that it had not anticipated.

 

51. Have my record keeping Obligations changed under the new laws?

The requirements are essentially the same as under the previous Act i.e. the records you are keeping now.

There are, however, new requirements are to make and keep records in regard to:

• Individual flexibility arrangements
• Guarantees of annual earnings as permitted under the Fair Work Act. 2009