National Award Modernisation Taskforce Michael Carr – AIS NSW Brisbane: 25 November 2008
Overview • AIRC to modernise federal awards and relevant NAPSAs by 31 December 2009Exception: enterprise awards (e.g. awards for government schools) • Modern awards will be national in coverage • Modern awards will be “primarily along industry lines”, where possibleException: some occupationally based awards (e.g. private sector clerical occupations)
Federal Jurisdiction Context New Workplace Relations System • 10 National Employment Standards for all employees (NES) in the federal jurisdiction • Modernised Federal Awards which complements the NES • An enterprise-level collective bargaining system focused on promoting productivity • Unfair dismissal laws • A ‘One-Stop Shop’ Fair Work Australia
The Story so Far… • Workplace Relations (Transition to Forward with Fairness) Act 2008 • AWAs abolished – ITEAs introduced • No Disadvantage Test re-introduced • Award Modernisation process commenced • National Employment Standards (NES) published • Stage 1 Award Modernisation: Higher Education (2 awards)
Timeline - Going Forward 1 July 2009 - Key elements of Forward with Fairness introduced (reliant on passage of bill through parliament) • Unfair Dismissal laws • New Bargaining Framework 1 January 2010 • Fair Work Australia Institutions – A one stop shop • National Employment Standards (NES) • Modern Awards in force
1 July 2009 - Unfair Dismissal Unfair Dismissal Regime commences Mostly applicable to small business (Less than 15 employees) • Qualifying period increased from 6 months to 12 months • Fair Dismissal Code will ensure a dismissal is not unfair Dismissal • A reason why they are at risk of being dismissed • Reasonable timeframe to improve Summary Dismissal • Deemed fair if reported to police – expected to have reasonable grounds
1 July 2009 - Unfair Dismissal • Lodged with Fair Work Australia (FWA) within 7 days • Non- Legalistic • Reinstatement or compensation (up to 6 months pay) • Excludes • Casual employees (not regular casuals) • Seasonal employment • Specific task • Temporary Contracts
1 July 2009 – Workplace Agreements and Enterprise Bargaining • “Better off overall test” – by FWA • Employer can be compelled to negotiate a with a union when developing a collective agreement • Content to only include “matters pertaining to the employment relationship” • Content of agreements might include: • Union representation • Deduction of union dues • Agreements cannot include content regarding matters pertaining to management prerogative, bargaining services fees, authorising industrial action
1 July 2009 – Bargaining in Good Faith • Bargain in good Faith for a mutually acceptable outcome • Direct parties to meet • Disclose relevant information • Consider proposals and respond to them; • Refrain from unfair or precipitous conduct • No requirement to make concessions or sign-up to agreement. • FWA – ‘majority employee support’ for an enterprise (workplace) agreement
National Employment Standards (NES) What you need to know… • 10 minimum standards that will form part of the safety net terms and conditions • NES will not deal with minimum wages • Will apply to all employees in the federal system – there may be some exceptions but this is still unclear • Inextricably linked with terms of modern awards
National Employment Standards • Maximum Weekly Hours • 38 hour week • Reasonable additional hours • Modern award may include provision for averaging hours • The Right to Request for Flexible working Arrangements • A change in working arrangements for the purpose of assisting the employee to care for the child • Refusal only on reasonable business grounds
National Employment Standards • Parental Leave • One year for each parent to be taken consecutively; or • Two years for one parent • Annual Leave • Modern Award may include provision for cashing out annual leave • Personal/Carer’s Leave and Compassionate Leave • 10 days personal/carers leave – accrues progressively • 2 days paid compassionate leave & 2 days unpaid carers leave for each occasion • Evidence to satisfy a ‘reasonable person’
National Employment Standards • Community Service Leave • Jury duty – paid first 10 days of absence minus amount paid to juror • Voluntary emergency services • Long Service Leave • Public Holidays • Notice of Termination (resignation) and redundancy pay • Provision of a Fair Work Information Statement
Modern Awards The AIRC must make modern awards which: • Are simple to understand and apply, • Provide a fair minimum safety net for employees, • Must be economically sustainable, • Promotes efficient and productive performance of work • Promote flexible modern work practices.
Award Matters • Minimum Wages & Classification and Career Structures • Types of Employment • Arrangements for when work is Performed • Overtime Rates • Penalty Rates • Annualized Wages or Salary Arrangements • Allowances • Leave, leave loadings and arrangements for taking leave • Superannuation • Procedures for Consultation and Dispute
Award Modernisation – Stage 3 2009 6 March Closing date for submissions, drafts etc 23 March Pre-drafting consultations commence 22 May Closing date for publication of exposure drafts. 12 June Closing date for lodging written comments on the exposure drafts. 29,30 June & Full Bench sits in Sydney for final consultations 1,2,3 July in relation to the exposure drafts 4 Sept Final date for making Stage 3 modern awards.
Response of Independent School Sector • National consultation • Executive Directors appoint Award Taskforce • Appear for sector at AIRC hearings • Consult with: • Catholic sector • IEU
Modern Awards and NES • Modern Awards + 10 National Employment Standards (NES) • The 10 NES will represent the minimum entitlements for all employees in the new system and will apply to all employees. • A modern award cannot exclude the NES but can ‘supplement’ its terms • A modern award can include provisions that are expressly permitted under the NES.
Modern Awards and NES • Evidence Requirements for personal and compassionate leave • Substitute public holidays • Industry specific redundancy pay provisions • Amount of notice an employee may be required to provide • Loadings in lieu of entitlements for school based apprentices
Non Teaching Award • One award for all jobs and classifications • Teacher aides and clerical staff • Nurses, psychologists and welfare officers • Maintenance, green keeping and caretakers • Kitchen, laundry and boarding house staff • Canteen and uniform shop employees • Child care workers • Chaplains • Sports coaches • etc
Non Teaching Award • Consistent conditions • Annual leave (in most cases) • Sick leave (as per NES) • Long Service Leave • 38 hour week • Variations in Awards • Span of ordinary hours • Shift penalty loadings • Notice periods • Leadership levels • Incremental progress (up the salary scale) • Stand down periods • Paid maternity leave
Non Teaching Award • Main issues • Classification of roles/jobs • Metal Workers Award proforma • Wage levels • Placement of roles on the wage scale
What Happens to Award Free Employees? • ‘Catch-all’ award to be created as part of award modernisation • Managerial employees?
Fair Work Australia Institutions Replaces: • Australian Industrial Relations Commission • Australian Industrial Registry • Australian Fair Pay Commission • Australian Fair Pay Commission Secretariat • Workplace Authority • Workplace Ombudsman • Australian Building and Construction Commission
Fair Work Australia Institutions • FWA will consists of • President • Senior Members • Members (Minimum Wage Panel members) • Power to vary awards • Make minimum wage orders • Approve Agreements • Determine unfair dismissal claims • Make orders of good faith bargaining and industrial action • Assist employees and employers to resolve disputes
Fair Work Australia Institutions • Fair Work Australia – Inspectorate • Compliance with new workplace laws • Enforcement through courts • Fair Work Divisions of the Court • Small claims limit increased from $10,000 to $20,000 • Specialist Division in the Federal Court and the Federal Magistrate’s Court
What Can You Do… • Which staff are currently covered by Agreements/NAPSAs? • What will be the usefulness of a modern award in your workplace for those employees not on collective agreements? • How likely will those staff agitate for a new agreement? • Only a majority of the employees needed for you to be required to bargain in good faith with them.
Possible Enhancement Sought by Union • Concept of pupil vacation period (teacher holiday?) • Rules relating to co-curricular activities/ staff meetings • Rules relating to number of leadership positions in a school • Rules relating to Face to Face teaching • Span of hours – to include rules relating to excursions, parent teacher nights, etc • Child rearing to be included in service
Involvement of Union • Union will try to expand their influence in your workplace. • Managerial Prerogative • Setting term dates • Setting hours of the school day • Determining reasonableness of professional development • Co-curricular • Grievance processes • Performance Management
“The Leap Frog Technique” • Co-curricular • Grievance Procedures • Performance Management • Recruitment • Redundancies • Restructures
Danger of the Communication Void! • High union involvement in your school may hamper the natural flow of communication between the Principal and their staff • The union will try to ‘embed’ themselves in the minutia of your decision making: • Class allocation • Timetables • Playground supervision • Minor staff performance matters • Development of appraisal processes
Contact Details Michael Carr - Deputy Executive Director Association of Independent Schools Level 12, 99 York Street, Sydney NSW 2000 Phone (02) 9299 2845 Fax (02) 9290 2274 Web aisnsw.edu.au Email firstname.lastname@example.org ABN 96 003 509 073