Special Edition May 2004
EMPLOYMENT BRIEFLY
In this issue:
New Law!
In the last month the Federal Parliament has passed several
new Bills which will amend the Workplace Relations Act 1996 (Cth).
The Bills are positive steps taken to identify the need to extend
the Australian Industrial Relations Commission’s power
in regulating industrial matters.
Workplace Relations Amendment (Improved
Remedies for Unprotected Action) Act 2002
This Act received assent on 11 March 2004 and has an expected
start date of 12 September 2004. The Act permits the AIRC to
make section 127 orders restraining unprotected industrial action.
The Act also requires the AIRC to hear and determine section
127 applications within 48 hours.
Workplace Relations Amendment
(Transmission of Business) Act 2002
Before the passing of this Act, section 170MB of the Workplace
Relations Act states that a new employer must be bound by a certified
agreement where a transmission of business occurs. A transmission
of business arises where a whole or part of a business activity
is being transmitted.
However, on 1 March this year, the Federal Parliament gave the
AIRC power to order that a certified agreement that would ordinarily
transmit to a new employer need not bind the new employer. The
AIRC also has power to bind the new employer to the provisions
of a certified agreement for a specified period of time.
Rejected law...
Workplace Relations Amendment
(Termination of Employment) Bill 2002
In our August 2003 edition of Briefly, we reported that the
Bill proposed to move most unfair dismissals into the federal
industrial relations system. The intention of that move was to
create a single national unfair dismissal system.
The Democrats sought a series of amendments including:
- broadening the definition of ‘employee’ so
that workers would be presumed to be employees (unless running
their own business);
- opening the jurisdiction
to regular casual employees with six month’s service
and with an ongoing expectation of employment; and
- providing
the AIRC with the power to deem contractors as employees.
While the House of Representatives passed the Bill on 11 February
2004, the Senate voted against the passing of this Bill for a
second time on 22 March 2004.
Testing the law
The Full Bench of the AIRC has handed down its decision on the
ACTU’s test case application for variation of the standard
federal award ‘Termination, Change and Redundancy’ 1984
provisions (the “TCR provisions”). The decision was
handed down on 26 March 2004.
In the past, the TCR provisions permitted employees (with the
exception of casual employees) a maximum entitlement to 8 weeks’ severance
pay for employees with four years service.
In summary, the 2004 TCR safety net provisions will now provide
the following entitlements:
- Employees with 5 years service - 10 weeks’ severance;
-
Employees with 6 years service - 11 weeks’ severance;
- Employees with 7 years service - 12 weeks’ severance;
- Employees
with 8 years service - 14 weeks’ severance;
- Employees
with 9 years service - 16 weeks’ severance;
and
- Employees with 10 years service or more - 12 weeks’ severance.
For those employees whose position is made redundant after
10 years service, they will receive only 12 weeks’ pay so
as to avoid “double dipping” for employees who
receive pro rata long service leave entitlements.
Small businesses that are bound by federal awards and who employ
less than 15 employees are now only required to pay employees
a maximum of 8 weeks’ severance pay.
Businesses that are unable to meet their redundancy pay obligations
are still permitted to apply to the AIRC on the grounds of ‘incapacity
to pay’.
These provisions came into effect on 23 April 2004.
For further information about issues covered
in this article, please contact Sonia Albertini on (08) 8210
1266 or E-mail salbertini@normans.com.au
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