Todays presenters Andrew Burnett Bruno Di Girolami Lew Clark - PDF document

3/14/2012 Webinar Series Employment Laws Around the Globe Australia March 14, 2012 Andrew Burnett Bruno Di Girolami 36 Offices in 17 Countries Today’s presenters Andrew Burnett Bruno Di Girolami Lew Clark Partner Partner Partner and today’s Moderator T +61 8 9429 7644 T +1 602 528 4065 T +61 8 9429 7414 E andrew.burnett@squiresanders.com E bruno.digirolami@squiresanders.com E lew.clark@squiresanders.com 2 1

3/14/2012 Today’s presentation Employment Law Around the World: AUSTRALIA • Introduction • The Fair Work Act Summarised for New Business • Industrial Relations and Enterprise Bargaining – A Framework • Can You Bring Your Own Workers into Australia? • The Safe Workplace • Foreign Entities and the Australian Workplace 3 Sources of law • The Australian Constitution • Fair Work Act 2009 and other federal legislation • State legislation • Modern Awards • Enterprise Agreements • Employment Contracts • Case Law 4 2

3/14/2012 Historical Background • Since 1901 Federal Constitution. • Constitution sets out by subject area powers of Federal Parliament to make laws. • State and Territories also make laws but where inconsistent with Federal laws, the Federal laws apply. • Federal Parliament has only a limited “labour power”. • States developed own employment regimes. • Power shifted to centre but Federal Parliament limited by the “labour power.” • Dramatic shift in 2006 when “corporations power” in Constitution used as basis to enact Federal employment laws binding all Australian corporate entities. • National regime under the Fair Work Act 2009 ( FW Act ) regulates most employment in Australia. • States referred powers to Federal government. 5 The Fair Work Act Summarised for New Business Types of Employment are: • Full-time (fixed term or permanent ongoing) Employees generally work 38 hours a week and receive a range of entitlements; • Part-time (fixed term or permanent ongoing) Employees work regular hours but fewer than full-time employees Same entitlements as full-timers - in proportion to hours worked; • Casual Requires a certain informality, uncertainty and irregularity of engagement. Employer can elect to offer work on particular day and employee can elect to work. Paid by the hour plus a 25% loading on applicable hourly rate to compensate for not receiving entitlements of full-time or part-time workers. Replaces personal/carers leave, annual leave, notice and redundancy pay. 6 3

3/14/2012 The Fair Work Act Summarised for New Business Employees and Independent Contractors • FW Act applies to employees only - not to independent contractors. • “Employee” defined by common law tests. Criteria to determine employment set out by case law. • Recent judgements reflect control, ability to create goodwill and power to delegate as key criteria. • Independent contractors must: supply tax invoice with ABN; provide for insurance; meet their tax obligations and pay their own superannuation. • FW Act seeks to address significant blurring of the two in recent years by prohibiting “sham” contracting. 7 The Fair Work Act Summarised for New Business Safety Net • FW Act provides two part safety net protecting minimum wages and conditions for employees. • Safety net consists of: 1. National Employment Standards; and 2. Modern Awards. (Provide additional ten minimum standards tailored to particular industries and occupations. Include pay scales and apply nationally.) • Effective from 1 January 2010. • Safety net standards cannot be modified to employee’s detriment by contract or agreement. 8 4

3/14/2012 The Fair Work Act Summarised for New Business National Employment Standards (NES): 1. Maximum weekly hours of work; 2. Requests for flexible working arrangements; 3. Parental leave and related entitlements; 4. Annual leave - 4 weeks paid leave per year; 5. Personal / carer’s leave and compassionate leave; 6. Community service leave; 7. Long service leave; 8. Public holidays; 9. Notice of termination and redundancy pay; and 10. Provision of a Fair Work Information Statement 9 The Fair Work Act Summarised for New Business Modern Awards • Provide 10 basic entitlements in addition to NES relevant to the particular industry or occupation of the employee. • Modernisation process under FW Act reduced Awards from several thousand to 122 key industry awards. • Each Award has a coverage clause and lists employee classifications. • High income threshold for application of Modern Award. Currently AUD$118,100 – indexed annually. • Modern Awards include individual flexibility clause allowing employer and employee to alter conditions as long as overall employee is not worse off. 10 5

3/14/2012 The Fair Work Act Summarised for New Business Modern Award entitlements: 1. Minimum wages; 2. Type of work performed (full time/ casual); 3. Arrangements for when work performed (span of hours, rostering, breaks); 4. Overtime rates; 5. Penalty rates; 6. Minimum annualised wage arrangements (as an alternative to penalty rates); 7. Allowances; 8. Leave, leave loading & leave arrangements; 9. Superannuation; and 10.Consultation, representation and dispute settling procedures. 11 The Fair Work Act Summarised for New Business Regulatory bodies established by the FW Act • Fair Work Australia (FWA) Independent tribunal established to oversee regime. Powers to vary awards, approve agreements, determine unfair dismissal claims and make orders in relation good faith bargaining, industrial action and workplace disputes. • Fair Work Ombudsman Inspectorate to monitor compliance and provide information and advice. • Specialist Fair Work divisions of the Federal Court and Federal Magistrates Court . 12 6

3/14/2012 The Fair Work Act Summarised for New Business Minimum Wages • Minimum wages and loadings set by the Minimum Wage Panel. • Annual review is non-adversarial. • Updated rates take effect from 1 July each year. • The national minimum wage acts as safety net for employees not covered by awards or agreements. Currently AUD$15.51 per hour or AUD$589.30 per week. 13 The Fair Work Act Summarised for New Business Unfair Dismissal • Employee may challenge a dismissal on grounds it was unfair or harsh, unjust or unreasonable. • Exclusions apply: 1. Employed for under 12 months if small business employee; 2. Employed under 6 months; 3. Earn over high income threshold; 4. Dismissed due to genuine redundancy; 5. Casual who don’t meet requisite employment periods. • Claims must be lodged with FWA within 14 days. • FWA conciliates in informal manner to resolve matter. • Unresolved claim determined at conference or hearing. • Determination made on spot - reinstatement or an order for compensation. • Small Business Fair Dismissal Code Sets out a warning process and compliance with code disallows claim. 14 7

3/14/2012 The Fair Work Act Summarised for New Business Workplace Rights – the General Protections • Certain workplace rights identified in FW Act as protected by law. • Workplace rights are an entitlement under Award or Agreement, or a workplace law. • Unlawful for person to take adverse action because another person has, or exercises, a workplace right. • Adverse action includes dismissal, discrimination, refusing employment or altering position of person. • Certain industrial activities expressly protected as workplace rights. • Remedies include compensation and pecuniary penalty orders.. • If dismissed, employee has 60 days to commence proceedings. (In effect offer an alternative means of redress to unfair dismissal). 15 Industrial Relations and Enterprise Agreements Enterprise Agreements • Enterprise Agreements (or collective bargaining) central to FW Act regime and highly regulated. • Can cover matters pertaining to employment relationship and relationship between the employer and relevant employee organisation. Will prevail over applicable Modern Award. • Parties required to bargain in good faith . • Agreements cannot be made or approved without agreement of employer. May be robust industrial bargaining with unions permitted to take protected industrial action. • FWA has powers to assist bargaining process and to arbitrate settlement of disputes. Powers generally used to break bargaining deadlock in damaging industrial dispute. • Advantage to employer is no protected industrial action during life of Agreement. • Agreements are for limited periods and operate 7 days after approved by FWA. 16 8