Issue 27 May 2005

EMPLOYMENT BRIEFLY

Effect of the Fair Work Act 1994

On May 16 2005, the Fair Work Act 1994 (SA) (‘the Act’) came into effect. It replaces the Industrial and Employee Relations Act 1994. Accordingly, it is necessary to consider the consequences arising out of changes to the legislation.

Enterprise bargaining

The new Act extends the minimum terms of State Enterprise Agreements from two to three years, and allows them to be approved ‘on the documents’ rather than having to attend a formal hearing. Existing agreements are to be binding on successors, transmittees and assignees of a business. Further, in negotiating agreements, parties are now required to engage in ‘best endeavours bargaining’, that is to meet at reasonable times and places, disclose necessary information, adhere to procedures, and act openly and honestly. Notably however, parties may withdraw from negotiations without being in breach of this obligation.

Powers of inspectors

Inspectors are now empowered to conduct audits and systematic inspections of workplaces to monitor compliance with the Act, awards and Enterprise Agreements. Inspectors can conduct ‘promotional campaigns’ to improve awareness of the rights and obligations provided by the Act, awards and relevant Enterprise Agreements.

Unfair dismissal

Claims for unfair dismissal may now arise where an employee’s employment is terminated after a ‘specified period’ or completion of a ‘specified task’, where the employee had a ‘clear expectation’ that employment would continue.
Re-employment is the preferred remedy for unfair dismissal, and an alternative remedy may only be awarded if the circumstances of the case require it, or if the business employs fewer than 50 employees.

Right of entry

Union officials may generally enter a workplace where at least one employee is a member, if written notice has been provided at least 24 hours prior to entry. Longer or shorter notice can suffice depending upon the circumstances. Interviewing employees is limited to circumstances where specific complaints of a breach of the Act, State awards or Enterprise Agreements have been made. Otherwise, inspection is the only activity permitted. However, some trade union officials may have right of entry under the federal Workplace Relations Act 1996, so it is necessary to know which laws apply to your workplace.

For further information about issues covered in this article, please contact our Employment Team, Ian Colgrave, Sathish Dasan, Cecilia White or Michael Foley on 8210 1200

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