Fair Work Act 2009

Fair Work Act 2009 and its impact on the new Hair and Beauty Award 2010 From January 2010, there will be a national Hair and Beauty Industry Award 2010 (MA000005), and also of interest to many of you will be the Educational Services (Post-Secondary Education) Award 2010 (MA000075). Not quite the industrial revolution again, but significant changes have and will take place within the Australian industrial relations area that will affect you as an individual, either employer or employee and a business owner.

The Fair Work Act 2009 (FWA) commenced July 1st 2009 with major changes to payment awards coming into effect 1st January 2010. It sets out a number of requirements that businesses, including small business, need to be aware of.

The national workplace relations system under the Fair Work Act 2009 (FWA) will see the creation of three new bodies:

  • Fair Work Australia and Office of the Fair Work Ombudsman, both commenced 1 July 2009
  • Office of the Fair Work Building Industry Inspectorate, from 1 February 2010
  • These bodies will replace the following:
  • Australian Industrial Relations Commission (AIRC) Australian Industrial Registry

 The AIRC and the Registry continue until 31 December 2009, primarily for the completion of the awardmodernisation process and some outstanding matters, although Fair Work Australia assumes all other functions from 1 July 2009.

Aspects of the FWA commenced on 1 July 2009, including new unfair dismissal laws and the small business fair dismissal code, as well as requirements for employees and employers to bargain in good faith when making enterprise agreements.

The Fair Work Act 2009 also has an important part of it that must be read in conjunction with the

The National Employment Standards (NES), which include:

  • Maximum weekly hours of work
  • The right to request flexible working arrangements
  • Parental leave and related entitlements
  • Annual leave
  • Personal/carer’s leave and compassionate leave
  • Community service leave
  • Long service leave
  • Public holidays
  • Notice of termination and redundancy pay
  • A ‘Fair Work Information Statement’ for all employees that clearly defines their rights and entitlements under the new system and how to get advice and help.

These minimum entitlements apply to full-time and part-time employees. Some of these entitlements do not apply to casual employees.

MINIMUM WAGE SETTING Each financial year from 2010, a Minimum Wage Panel defined by the FWA will conduct an annual wage review, which will review modern award minimum wages and make a national minimum wage order.

The FWA also requires small business to comply with new:

  • Unfair and unlawful dismissal laws
  • Agreement-making obligations
  • Transfer of business rules, and
  • Workplace rights specified in the FWA.

All wage/salary payments will come under either a collective agreement or a national award.

COLLECTIVE AGREEMENTS The collective agreements will be tested against the National Awards for parity and for agreements made until 31 December 2009, the Workplace Relations Act 1996 (the WR Act) no-disadvantage test will continue to apply.

From 1 January 2010 the collective agreements will be known as Enterprise Agreements and contain a new test to compare the terms of a proposed agreement against the relevant modern award to ensure employees will be better off overall.

MODERN AWARDS An award is an enforceable document containing employment conditions. The new ‘Modern Awards’ come into effect 1st January 2010. These awards are based on The Australian Fair Pay and Conditions Standard comprising of five minimum employment conditions:

  • Basic rates of pay and casual loadings
  • Maximum ordinary hours of work
  • Annual leave
  • Personal leave
  • Parental leave and related entitlements.

HAIR AND BEAUTY INDUSTRY AWARD 2010 (MA000005) This award covers all those working in the beauty industry and sets out the various conditions of work. The above award was first made on 19 December 2008, with variations made on 11th and 25th September 2009 and modernised for effect 1st January 2010.

The award is 29 pages and perhaps the most interesting part is Part 4 – Classification and Wage Rates, which begins on page 12. Schedule B – Classifications details the levels that wages are classified under. The short story is:

Hair and Beauty Employee Level 4 means: A Beauty Therapist who holds a Certificate IV in Beauty Therapy (or equivalent).

Hair and Beauty Employee Level 6 means: A beauty therapist who holds a Diploma in Beauty Therapy (or equivalent).

The other award that will be of interest to some readers is the Educational Services Award.

EDUCATIONAL SERVICES (POST-SECONDARY EDUCATION) AWARD 2010. (MA000075) This award for the first time covers the VET sector trainers so those within a RTO are included in this award. Trainers are classified as teachers as explained in Schedule B of the award and will be paid according to their qualification level.

Find an award on the website http://www.fwa.gov.au/index.cfm?pagename=awardsfind

OF INTEREST TO SMALL BUSINESS The Fair Work Act 2009 provides for the Minister to declare a Small Business Fair Dismissal Code effective from 1 July 2009. The code will apply to small business employers, defined as employers with less than 15 full-time equivalent employees.

A PERSON IS NOT UNFAIRLY DISMISSED IF THE DISMISSAL:

  • Is by a ‘small business employer’ as defined, and
  • Is consistent with the code, or
  • Involves an employee who has not completed the minimum employment period of one year.

An employee, who is not a small business employee, is not eligible to make an unfair dismissal application if they have not completed a minimum of six months employment.

FAIR WORK AUSTRALIA

The multitude of details contained within the FWA and associated documents are outside the scope of this information article. Further information can be gained from following websites of the departments involved with the FWA operation.

The Fair Work

Australia is the National Workplace Relations Tribunal. It is an independent body with power to carry out a range of functions relating to:

  • The safety net of minimum wages and employment conditions
  • Enterprise bargaining
  • Industrial action
  • Dispute resolution
  • Termination of employment
  • Other workplace matters

Their website is http://www.fwa.gov.au/

FAIR WORK OMBUDSMAN Fair Work Ombudsman works with employees, employers, contractors and the community to promote harmonious, productive and cooperative workplaces. The Ombudsman’s role is to: Provide advice and education on Australia’s workplace laws Monitor compliance and investigates contraventions of national workplace laws Publish information on workplace rights and obligations Provide tools and information for small businesses The Fair Work Ombudsman has produced Best Practice Guides to assist small to medium-sized businesses to implement best practice initiatives. Working at best practice helps employers and employees achieve happier, fairer and more productive workplaces. The Best Practice Guides provide guidance on important workplace issues.

The Fair Work Ombudsman website is http://www.fwo.gov.au/Pages/default.aspx

Fair Work Act 2009 can be downloaded from http://www.fwa.gov.au/index.cfm?pagename=legislationfwact

The Department of Education, Employment and Workplace Relations, with the Deputy Prime Minister having the portfolio, has produced a series of fact sheets that can be downloaded from http://www.deewr.gov.au/WorkplaceRelations/ NewWorkplaceRelations/Pages/FactSheets.aspx

If you are involved in the Australian workforce somewhere, somehow, you will be affected by the Fair Work Act 2009. Ignorance is no defence in law, so you need to know how these changes will affect you.

This article was submitted by Terry Everitt