By CCH Senior Writer Belinda Sundaraj
The balance of the Fair Work Act 2009 and the passing of relevant state industrial relations powers to the Commonwealth came into effect on 1 January 2010.
The National Employment Standards (NES) and modern awards have an immediate impact and require compliance. Each state and territory, except for Western Australia, now has one system of workplace relations with many small businesses being covered by the Federal system for the first time.
The NES replace the Australian Fair Pay and Conditions Standard from 1 January 2010 and covers basic minimum entitlements that apply to all national system employees. These work in conjunction with modern awards and agreements.
Noteworthy changes to the NES include amendments to parental leave and flexible working arrangements. New employees are also to be provided with a Fair Work Information Statement.
Significant changes to parental leave include the employee’s ability to request a second year of parental leave and the sharing of leave between carers. It is possible for parents to share the two year entitlement between them provided that only one parent is on parental leave at a time. An employer can deny the employee’s request for an additional period of parental leave beyond the initial 12 months but the refusal must be in writing and state “reasonable business grounds” for refusing the request.
In terms of the NES, an employee may request flexible working arrangements where the employee is a parent or carer of a child who is under school age or under 18 with a disability. Flexible working arrangements may include a change in hours of work, patterns of work or location. An employer can deny the employee’s request but must do so in writing and on “reasonable business grounds”.
It is important to note that neither of the abovementioned standards are a civil remedy provision and may not be easily enforced.
Suggestions have been made for an Education and Information Campaign along with a six month moratorium on prosecutions for any small businesses that unintentionally fail to comply with the new workplace requirements. This has not been confirmed by the Rudd Government or the Fair Work Ombudsman.
Have small businesses had sufficient time and notice in which to prepare for Fair Work and the NES? Is a six month moratorium on prosecutions reasonable?