The first few months of 2010 provides employers with an important opportunity that should not be overlooked - to engage in appropriate risk management and ensure compliance with our new workplace laws.
1 January 2010 brought about the commencement of significant aspects of the Fair Work Act 2009 ("FW Act"), being the new National Employment Standards ("NES") and the operation of modern awards.
Failure to comply with minimum employment terms and conditions can prove extremely costly, particularly if there is an oversight that continues for a lengthy period. Businesses can face prosecution proceedings not only for significant amounts of back pay but also seeking penalties against them (at the maximum fine of $33,000 per offence). These proceedings can be issued by a union or by the Fair Work Ombudsman. The last 3 years have seen an unprecedented increase in the number of these prosecution proceedings, in all parts of Australia. These prosecutions can be significant revenue raisers for unions as a court can order that penalties imposed be paid direct to the union that issued the prosecution.
Given these developments, any time and money invested now to ensure compliance with minimum standards is well spent. Ideally, this should include a general health check that is not simply confined to FW Act compliance issues.
Employer health check
We recommend a focus on the following matters:
- Ascertain which modern awards apply to which employees; ensure that you are familiar with the significant terms and conditions contained in them (including any transitional provisions phasing in relevant pay adjustments).
- Audit your employment contracts and policies to ensure compliance with the NES and modern awards. The NES have brought about subtle changes to a number of minimum terms and conditions, which may require amended wording in your contractual arrangements.
- Ensure that you are familiar with the new rights of employees to request flexible working arrangements and have procedures in place to ensure that your responses to these requests are legally compliant.
- Consider whether you have any higher paid employees who you may wish to approach to opt out of modern award application, in accordance with the high income employee provisions in the FW Act (the current indexed remuneration package figure here is $108,300).
- Ensure the manner in which employee leave accrues is now in accordance with the NES.
- Ensure that your record keeping practices satisfy the record keeping requirements under the FW Act.
- Ensure that appropriate policies dealing with discrimination, harassment and bullying are in place. Policies dealing with relevant leave terms plus internet and computer usage should also exist.
- Determine which of your policies, if any, should form part of your employment contract and ensure that this is clarified in the contract wording. Wording should also exist to minimise the risk of policies that are not intended to form part of the employment contract being implied into the contract.
- If you have a collective agreement in place already that has a nominal expiry date in the next 18 months, familiarise yourself with the new laws relating to enterprise bargaining, particularly good faith bargaining and the new "better off overall test" for approval.
- If you have no collective agreement currently in place:
- Consider the advantages and disadvantages of implementing one; and
- be prepared for the prospect of a union requesting to bargain with you (on behalf of some or all employees). Employers cannot refuse to bargain with a union that becomes a bargaining agent.
- Ensure that you have some familiarity with the new adverse action provisions in the FW Act, so that you know when to obtain legal advice in the future.
Hunt & Hunt can help your business to become compliant by assisting you in carrying out an employer "Health Check". We can also assist you with the further information issues discussed above. Please contact us to have one of our staff attend your premises for a thorough assessment of your workplace practices. Alternatively, should you require any further information regarding the Fair Work Act, please do not hesitate to contact us.
For further information please contact: David Thompson, Partner View profile
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
