The Rudd Government introduced its Fair Work Bill 2008 into Parliament in November. The Bill is intended to replace WorkChoices. The bill is almost 600 pages long and contains 800 sections. 

When will it become effective?
The government has announced that it intends that the bill, (excluding the new “safety net” of the 10 National Employment Standards and modern awards) would commence on 1 July 2009.
The new safety net is not planned to commence until 1 January 2010.
There will be a Senate inquiry into the bill, and the Illawarra Business Chamber, in association with the NSW Business Chamber, will be making a submission.

In brief
The bill emphasises collective bargaining, expands employee rights and swings the balance back to unions. They have wide rights of entry and a default seat at the bargaining table if they have a member at the business. 
The success of unions under this legislation will still depend on the quality of the relationship between the employer and employees in a particular enterprise, although an employer’s size and industry may affect this.
     
Fair Work Australia
The bill will create Fair Work Australia (FWA) which will replace the current roles of:
• Australian Industrial Relations Commission
• Workplace Authority
• Australian Building and Construction Commissioner (from 1 February 2010)
Additionally, there will be a “Fair Work Division” of the Federal Court and the Federal Magistrate’s Court which will hear workplace relations matters.  The Workplace Ombudsman will become the Office of the Fair Work Ombudsman with expanded powers. 
         
Unfair dismissal
There will be no small business exemption. For a small employer (fewer than 15 employees, including regular casuals and the terminated employee) an employee will not be able to bring an unfair dismissal application if terminated within the first 12 months of employment. For a larger employer, this “minimum employment period” is 6 months.
A genuine redundancy will not give rise to an unfair dismissal and for a small business a dismissal which follows the Fair Dismissal Code will not give rise to an unfair dismissal. However in these cases the employer may need to explain its side of events to FWA.
When dealing with unfair dismissals FWA will hold a conference or hearing. Appeals are limited.
                 
The Safety Net
The safety net consists of the 10 National Employment Standards, and the new ‘modern awards’.
The 10 National Employment Standards will apply to all federal system employees and they cannot be bargained away.
Modern awards will cover most employees. There will be fewer modern awards in most workplaces. Modern award terms can be bargained.
Wages for the new modern awards will be reviewed annually with effect from 1 July each year. All other areas will be reviewed for relevance every four years, unless there are unusual circumstances.
Employees with a guaranteed $100,000pa or more (including salary sacrifice and non-monetary benefits which can be valued, but not including reimbursement or compulsory superannuation contributions) can be employed award free.
                       
Agreement making and bargaining 
There will be no more statutory individual agreements such as ITEAs after 30 December 2009. Enterprise agreements are collective agreements and they are negotiated by “bargaining representatives”. A bargaining representative can be
• the employer (or its nominee)
• a person nominated by one or more employees (which can be an employee, agent or union)
Where an employee is a union member, the union is the default representative unless the employee nominates otherwise.
Enterprise agreements can have terms relating to the employment relationship and the relationship between the employer and the union(s) in the workplace. For an agreement to pass, each employee must be “better off overall” than under their modern award.
The bill emphasises bargaining. To help support bargaining FWA will be able to issue various types of orders or determinations
• Majority support determination - which establishes that a majority of relevant employees want to collectively bargain
• Scope orders - which will identify which employees should be included in the proposed agreement so as to be fair
• Good faith bargaining orders - which
o require one or more representatives to comply with good faith bargaining requirements; or
o reduce the number of bargaining representatives.
• Low paid authorisation - which authorises that a group of identified employers in an industry or sector with low pay or little bargaining history can be treated as a single employer for bargaining.
                     
Union right of entry
A union official with a federal permit may enter an employer’s premises to
• Investigate a suspected breach of an award/agreement or the act if a member is affected by the suspected breach
• Hold discussions with employees who are member or eligible to be members
• Exercise a right under a state occupational health and safety law
The official must give at least 24 hours notice of entry.
                
Transfer of business 
If an employer transfers work to another by contracting out, or selling a business or part of it, and this action results in one or more of its employees being terminated and going to work for the new employer within three months of termination, the employee retains the coverage of the modern award or agreement which applied with the first employer.
              
About IR Alerts
The federal industrial relations system will be undergoing a period of transition and transformation over the next two years. 
Illawarra Business Chamber has introduced the IR Alert  to ensure that our business leaders are informed of significant developments in the industrial relations landscape as they occur.