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Fair Work Changes and You
Friday, 25 January 2013
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Wenban-David-Mr Feb13

 

Mr David Wenban outlines some of the effects of recent amendments to the Fair Work Act on medical practices and warns of changes in the pipeline..

Legislative amendments introduced and passed by the Federal Government in the last sitting days of 2012 will have limited impact on your ongoing obligations to employees. Further and more significantly the introduction of the Fair Work Amendment (Tackling Job Insecurity) Bill, which is yet to be passed will have a significant impact on your obligations. Amendments passed include:

The Fair Work Amendments Bill 2012 (the Bill) makes a number of changes to the existing legislation including:

·         Creating a process to deal with complaints against Fair Work Commission (FWC) members and streamlining provisions dealing with conflicts of interest of FWC members;

  • Varying and aligning the time limits for bringing either an unfair dismissal or general protections claim at 21 days;
  •  Providing new measures for dismissing unfair dismissal applications where the FWC is satisfied that the applicant has unreasonably failed to attend an FWC conference or hearing; failed to comply with an FWC direction or order; or failed to discontinue the application after a settlement had been concluded.
  • A technical amendment to section 84A of the FW Act. This section requires an employer, before engaging an employee to perform the work of another employee who is going to take or is taking unpaid parental leave, to notify the replacement employee that the engagement is temporary and that the employee and employer have particular rights under the FW Act.

The Fair Entitlements Guarantee Bill 2012 replaces the General Employee Entitlements and Redundancy Scheme with a new scheme which allows employees made redundant through their employer’s bankruptcy or insolvency to access an advance on their entitlements, which the Commonwealth will then seek to recover from the employer.

The Fair Work Amendments (Transfer of Business) Bill 2012 provides for public sector employees who are transferred to a private sector organisation with a connection to the old employer to retain their existing terms and conditions of employment.

When these three pieces of legislation commence the practical impact for medical practices or series of medical practices will be minimal with the exception of the amendment to section 84A of the FW Act. By contrast, the variation to time limits for unfair dismissal or adverse action claims should be of benefit to you.

However, there could be significant impact from the last proposed legislative amendment, Fair Work Amendment (Tackling Job Insecurity) Bill 2012, if passed. This amendment provides a process for ‘insecure’ workers who are casual or on rolling contracts to move to ongoing employment on a part-time or full-time basis with paid leave entitlements.

It should be noted that the right of small businesses to use genuine casual employees would be preserved, with such employees excluded from the operation of the Bill.

By way of explanation and for the purpose of this Bill:

  • A casual employee is eligible to make a request regardless of their length of service with the employer. However, genuine casuals employed by small business would be exempt; and
  • A rolling contract employee is defined “an employee” if they have been employed on a fixed term contract by the same employer doing the same type of work on two or more occasions.

Under these amendments the process for ‘insecure’ workers to move to ongoing employment would involve the following:

1.  An eligible employee (or their union) must make the request for a secure employment arrangement with their employer in writing;

2. The employer must give the employee or their union a written response to the request within 21 days. If the employer refuses the request, the written response must include the reasons for the refusal;

3. Where an employer refuses a request for ongoing employment then an application can be made to Fair Work Australia who can issue a ‘secure employment order’.

In deciding whether to make a secure employment order, FWC would consider a number of factors including the needs of employees to have secure jobs, and an employer’s capacity to use arrangements that are not secure in cases where this is genuinely appropriate to the needs of the business.

For those practices that are not, for the purpose of the legislation, “small businesses” this particular amendment, if it were to pass and be implemented, would have significant potential impact on the manner in which staff is engaged on an ongoing basis.

ED: David Wenban is the Managing Director / Principal Legal Counsel of the Australian Health Industry Group. This is an edited version of his column in the AHIG’s February newsletter.