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01 July 2009 8:16am

Elements of the new workplace relations legislation – including new unfair dismissal, right of entry and bargaining laws – come into effect today.

In this article, HR Daily provides an update and links to recent articles that tell employers all they need to know about the Fair Work Act 2009.

Unfair dismissals
As of today employees with more than six months’ service with large employers (>15 full-time workers) or 12 months’ service with smaller organisations will be entitled to make unfair dismissal claims.

Employees will have 14 days to lodge claims in the event of a dismissal.

Deacons partner Stuart Kollmorgen says that redundancies will be illegal if redeployment options go unexplored.

Good faith bargaining
Business stakeholders are now obliged to bargain in good faith.

Throughout the bargaining process, all parties must attend and participate in meetings at “reasonable times”, respond to proposals in a “timely manner” and disclose relevant, non-confidential information.

Adelaide University Professor of Law, Andrew Stewart, says that employers must determine the kind of information unions are likely to ask for and what they can claim to be confidential.

Freehills partner Chris Gardner says that there are numerous grey areas in the new bargaining laws that must be tested before employers can be assured of clarity.

But CoSolve director Clive Thompson says that the good faith laws could herald a new era of productive bargaining if stakeholders let go of the traditional adversarial approach.

From January next year, collective agreements will have to pass the better off overall test, or the BOOT, before being approved by Fair Work Australia. Under the current rules, the Workplace Authority need only be satisfied that classes of employees won’t experience a reduction in their overall terms and conditions.

According to Kollmorgen, the BOOT could mean that employers are faced with the onerous task of proving that every employee is advantaged under a new agreement. He says that some employers are taking steps to have new agreements approved as soon as possible to avoid the uncertainty that is likely to surround the test from 1 January.

Right of entry
As of today, union officials will have the power to enter premises on suspicion of a workplace breach regardless of whether or not the employees are union members or covered by a union-binding agreement.

However, Freehills partner Anthony Longland notes that officials can only enter premises after clearly articulating the nature of the suspected breach and where employees are “potential” members.

Transfer of business
The definition of “transfer of business” expands significantly today. For the purposes of the Act, a transfer will occur when an employee is engaged by a new employer within three months of a termination where the new and old employers have at least “one connection” and the work the employee performs is “substantially the same”.

Deacons partner Sally Woodward says that this might give rise to the “difficult situation of a new employer potentially being bound by different enterprise agreements in relation to employees performing the same work.”

She says that HR must conduct a thorough due diligence process to identify potential conflicts (where workers on one agreement perceive workers on another to be at an advantage), and to determine the circumstances where they can apply to Fair Work Australia for permission to discontinue old agreements.

And the rest?
Other elements of the Fair Work Act, such as the National Employment Standards and modern awards, will come into effect on 1 January 2010.

More legislation news
For more Fair Work information and news, click here and follow the “legislation” link.

Alternatively, enter key words in the HR Daily search engine, or visit HR Daily’s associate publication, Workplace Express.

Also, see the Federal Government’s new online entry point for the IR system: Fair Work Online.

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