Re: Fair Work Act 2009 (FW Act): Also see VTA HR Updates July, September and November 2009.

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1 Re: Fair Work Act 2009 (FW Act): Also see VTA HR Updates July, September and November Unfair dismissal claims Several changes under the FW Act have operated since 1 st July In the area of unfair dismissal applications, these changes include: The Workplace Relations Act references to a qualifying period and probation before an unfair dismissal claim can be made has now been replaced by a 6 month minimum period of employment (s.383 of FW Act). The forms for an employer to use in responding to an unfair dismissal application have been renumbered and revised. Form F3 is the employer s response to an application regarding an alleged unfair dismissal and Form F4 is the form to be used by an employer who has a jurisdiction objection to alleged unfair dismissal proceedings. As TAFEs who have experienced the revised system would know, the Conciliation stage is generally handled by a phone conference. The National Employment Standards (NES) From 1/1/10 for all staff, the NES, i.e. the 10 minimum entitlements and associated rules in the FW Act, will apply in conjunction with the MBA/EAs. The NES will take precedence where they are more favourable/less detrimental to an employee or provide an additional entitlement to an employee than the Agreement. There are not numerous items that will affect TAFE policy and practice, but Attachment 1 contains 5 examples of where the NES will have effect in TAFE and apply from 1/1/10 regarding the following: Employee requests for flexible work arrangements due to child care responsibilities. Personal/Carers Leave. Parental Leave. Compassionate Leave. Fair Work Australia Information Statement We do not include redundancy pay in this list because the Victorian Public Sector Targeted Separation Package is higher than the NES and there is also the question of the High Court Re: AEU case decision regarding the limitation of federal law in this area of Policy for agencies of the State. Also, we do not mention the NES for notice of termination or the NES for compensation (to senior staff) for additional hours of work as we understand these NES provisions are generally met in relevant appointment documents. The VTA has also received initial advice (TBC) that MBA/EBAs and existing Awards provisions for Long Service Leave continue to apply until new EBAs are made. Modern Awards v Agreements Re: TAFE Teaching Staff Page 1 of 6

2 The Educational Services (Post Secondary Education) Award 2010 (Note: For ease we will denote as Modern VET Award) will not apply in its capacity as a Modern Award while the MBA is in operation. Therefore, (subject to any legal case such as on the Modern VET Award applying as a term of the MBA), the MBA provisions will continue to apply for all purposes for Victorian TAFE Teaching staff. For example: The Modern VET Award Flexibility Clause 7 does not apply. TAFEs pay and conditions for Teachers teaching TAFE degrees will continue under the MBA (plus any over-mba arrangements that TAFEs may apply locally). Teachers claims for expenses and associated allowances should be addressed under MBA clause 21 Reimbursement of Expenses. However, the Modern VET Award will be the base for the Better Off Overall Test (BOOT Test) for future Teachers EAs. Re: TAFE PACCT Staff Although the 14 TAFE PACCT EAs vary, a recommended general guideline is that TAFE PACCT EAs will operate in conjunction with the Modern VET Award (sections relevant to general staff) with the PACCT EAs pay rates and conditions prevailing to the extent of any inconsistency. TAFEs therefore need to conduct a clause by clause analysis of where their EA will apply and where the Modern VET Award will apply. Please note that the Modern VET Award (except for the NES called-up in the Award) will not apply to PACCT staff earning in excess of $108,300 (indexed from year to year). The Modern VET Award will commence from 1/1/10. However, the Modern VET Award provisions relating to pay rates and allowances, which are not appropriately covered by PACCT EAs, will apply progressively over 5 financial years from 1/7/10. This is based on the assumption that the AIRC/FWA s standard transitional schedule will be inserted into the Modern VET Award. An example of a section in the Modern VET Award that may apply because it is not covered by TAFE PACCT EAs is in relation to some of the Allowances in clause 15 of the Modern VET Award, such as 15.3 First Aid Allowance. Following is the link to the Modern VET Award. The transition and translation provisions schedule is yet to be inserted at the end of the document and will need to be assessed for its impact in relation to each individual Institute s TAFE PACCT EA after it is inserted. If a TAFE seeks a legal opinion regarding its specific TAFE PACCT EA and the Modern VET Award, the VTA recommends Lander and Rogers as the lawyers to approach. Lander & Rogers has done significant work in this area for the VTA and are likely to be more familiar with issues and therefore be cost effective for Institutes. Any Award reliant Staff For TAFEs which do not have EBAs for cleaners, child care, maintenance, kitchen hands, bus drivers etc that they employ as other than as Teacher or PACCT employees, the TAFEs must apply the relevant Modern Award from 1/1/10. Page 2 of 6

3 However, such TAFEs should also check the transition and translation schedule in the relevant Modern Award, which will likely provide for any changes to current Award rates of pay and allowances to apply progressively from 1/7/10. It is also advisable to closely read the Coverage clause of the relevant Modern Awards. To find the relevant Modern Awards, please use the following website of links to Modern Awards. Existing Awards for staff other than Teachers and PACCT staff used in TAFEs that will end on 31 December 2009 include: TAFE Victoria (Miscellaneous Workers) Award 1999 Children s Services (Victoria) Post Secondary (TAFE) Interim Award 1999 Education Services Industry Sector Order - Victoria 1998 Modern Awards that will apply in their place from 1/1/10, subject to any transition and translation Schedules and Coverage clauses, include: Cleaning Services Award 2010 Security Services Award 2010 Children s Services Award 2010 Restaurant Industry Award 2010 Links to these Modern Awards will be placed on the VTA website under Workforce Services/Awards and Agreements. Note: Modern Award pay rates will be adjusted annually by Fair Work Australia. No Separate Labour Hire Companies Modern Award The AIRC/FWA Full Bench decided on 25 September 2009 that it would not make a separate Modern Award for the Labour Hire Companies Industry. Rather, it drafted model provisions to go into each relevant Modern Award (ie Award applying to the relevant host employer). The AIRC/FWA invited submissions on these provisions by 30 th November This decision may affect the cost that labour hire companies charge to hosts for contractors. However, subject to the final AIRC/FWA decision and any subsequent tribunal cases, it would not seem to affect the current circumstances as to who is the employer in any particular cases. Planning for next EBAs A major planning focus should be to prepare to review the Modern VET Award (classifications and conditions) as the instrument against which the BOOT test will apply when negotiating future EAs. This commences with TAFE PACCT EA s that nominally end in early-mid 2011, for which a claim from the NTEU for a new classification structure including translation can be expected. Page 3 of 6

4 Attachment 1 RE: NATIONAL EMPLOYMENT STANDARDS (NES) & TAFE AGREEMENTS The following notes reflect an adaption of some information provided by Workforce Victoria regarding the VPS Agreement and the NES. It also reflects VTA HR Updates July, Sept and Nov 2009 The Fair Work Act 2009 (FW Act) sets out 10 minimum conditions referred to as NES which operate as a minimum safety net. As from 1 January 2010, the NES will override less favourable conditions in the TAFE Teachers MBA & TAFE PACCT EAs. From 1 January 2010 entitlements in enterprise agreements and awards must not be detrimental to an employee in any respect, when compared with the NES. The NES are on the following matters: 1. maximum hours of work 2. requests for flexible working arrangements 3. parental leave and related entitlements 4. annual leave 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 10. information statement to be given by employers to new employees The NES can be found in the FW Act from section htm#P2403_ The following are matters in the NES that have been identified as more favourable than the corresponding provisions in the MBA and/or the TAFE PACCT Award and which will affect TAFE policy and practice. The NES will be called-up or repeated in Modern Awards but apply as law in their own right regardless of the Modern Award. Full details can be found in the relevant sections of the FW Act. It should be noted that the full details of the NES include that paid Parental, Personal/Carer s and Compassionate Leave do not apply to Casual employees. Further tools The VTA has a copy of the Workforce Victoria model Parental Leave, Personal/Carer s Leave and Compassionate Policies reflecting the NES for any HR Managers who may request them. Employee Requests for Flexible Working Arrangements The NES provides an entitlement for parents/persons who have responsibility for the care of a child under the age of 18 who has a disability to request in writing a change in working arrangements to assist with the care of the child. The employer will only be able to refuse the request on reasonable business grounds and, if the request is refused, must give details of the reason for the refusal. Page 4 of 6

5 For example from 1 st January 2010 must TAFE employers consider a Teacher s request for a flexible work arrangement under the NES in section 65 of the FW Act in addition to considering it under the relevant MBA clause eg under Schedule 6 clause 14.3 application for temporary adjustment of their position to part time. Parental Leave For unpaid Adoption Leave, the age of the child being adopted can be under 16 as at the day of the placement [FW Act s68]. For a pregnant employee entitled to Parental Leave who provides the required evidence to be entitled to be Transferred to a Safe Job, if there is no appropriate safe job available - the employee is entitled to take paid no safe job leave for the risk period. [FW Act s81 (3) (b)]. The above provisions may be more favourable to relevant employees than what TAFEs currently apply. Personal/Carer s Leave The NES provides 10 days paid Personal/Carer s Leave per year of service [FW Act s96 & Transitional Act Sch 4 Part 3, 5 (1)]. It is cumulative, and includes paid Personal Carer s Leave accrued prior to 1 st January This means that the amount of the paid Personal/Carer s Leave accrual (whether for personal or for caring purposes) that can be taken in 12 months is unlimited, subject to the employee satisfying the specified reasons (eg immediate family, or household ), notice and proof of absence requirements. In effect, this is no change for TAFE Teaching staff. However, it is more favourable for TAFE PACCT staff in that from 1 January 2010, they will be entitled to use their full Personal Leave accrual for Carer s Leave providing they provide the employer with the specified reason, notice and evidence required. Compassionate Leave Section 104 of the FW Act (NES) provides the following entitlement to Compassionate Leave- An employee is entitled to 2 days of compassionate leave for each occasion (a permissible occasion) when a member of the employee s immediate family, or a member of the employee s household: (a) contracts or develops a personal illness that poses a serious threat to his or her life; or (b) sustains a personal injury that poses a serious threat to his or her life; or (c) dies. Section 105 of the FW Act provides further stipulations for taking of this Compassionate Leave entitlement ; section 106 states that the 2 days Compassionate Leave in section 104 is paid leave; and section 107 contains the notice and evidence requirements for employees seeking such leave. Page 5 of 6

6 For TAFE Teaching staff, this Compassionate Leave NES will be a new entitlement, except that the death component would not apply as a new entitlement because it is already more favourably covered by the Bereavement Leave clause in Schedule 6, clause 23 of the MBA. Some TAFEs may have already provided in practice two days paid leave per occurrence for the serious threat to his or her life component, under their Personal/Carers Leave or Special Leave provisions. However, from 1/1/10, subject to notice and evidence requirements, Teachers will be entitled to such paid leave under the NES Compassionate Leave provision rather than it being processed by reducing their Personal/Carer s Leave or Special Leave entitlements. It is suggested that TAFEs would need to obtain their own authoritative legal opinion for any contrary interpretation than this to apply. The same situation would apply for TAFE PACCT staff. Fair Work Australia Information Statement The new Information Statement must be given by the employer to new employees employed after 1 January 2010 as soon as practical after they commence employment. Page 6 of 6