Health & Aged Care Law Alert

may 2009

Fair Work Act Modern Awards in the health and aged care industry
Lessons for empLoyers
Health and aged care industry employers operating in the federal workplace relations system should review the modern awards to determine if they will be covered, which employees will be affected and what terms and conditions may have to change. This review needs to occur prior to 1 January 2010 when the modern awards commence operation. The Fair Work Act 2009 also implements National Employment Standards that will operate together with the modern awards to create a safety net of minimum terms and conditions of employment for many health and aged care employees. In July 2009, the Labor Governments Fair Work Act 2009, along with the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 (scheduled for consideration by the Senate in the Winter sittings), will commence operation. For more detailed information about this legislation, see our Employment Alerts dated 27 November 2008 and 24 March 2009 at www.blakedawson.com/publications. The new legislation provides for the creation of, and transition to, modern awards. The modern awards, together with the National Employment Standards, will provide a minimum safety net of terms and conditions of employment. Health and aged care industry employers should be reviewing the impact these legislative changes and the new modern awards will have on general work conditions. Employers will need to review the way employees in this industry are classified under the modern awards and the relevant minimum terms and conditions of employment (including pay).

They rubbed my tummy, chief I told them everything.

HeaLtH and aged Care modern awards

For many months now, the Australian Industrial Relations Commission (AIRC) has been in the process of developing a series of modern awards, generally along industry lines, which will take effect from 1 January 2010. These new modern awards will supersede current State and Federal awards, other than Federal enterprise awards. In stage 2 of its modernisation process, the AIRC released the following awards relevant to health and aged care employers, mostly along occupational instead of industry lines: The Aged Care Award 2010 (MA000018) The Health Professionals and Support Services Award 2010 (MA000027) The Medical Practitioners Award 2010 (MA000031) The Nurses Award 2010 (MA000034). In addition, an exposure draft Pharmaceutical Industry Award has been released and a Health and Welfare Services (Remainder) Award will be made in Stage 4 of the award modernisation process to capture all occupations that are not otherwise covered by any of the specific awards mentioned above. Where an employer is covered by more than one modern award, the most appropriate award classification must be identified for each employee as only one award can apply. Each modern award will be reviewed by Fair Work Australia on a four yearly basis and there will be annual wage reviews. Stage 2 modern awards and exposure drafts of Stage 3 awards, as well as submissions and transcript of the modernisation process, are available at the AIRC website (www.airc.gov.au/awardmod/fullbench).

Coverage
Private sector employers will be covered by the modern awards from 1 January 2010, unless they are currently covered by a Federal enterprise award. Employers and unions who are parties to enterprise awards will have until 31 December 2013 to apply to Fair Work Australia to have the enterprise award modernised. If no application is made by this date, the enterprise award will cease to operate and the parties will become covered by any relevant modern award. In most States, public sector health employees currently fall outside the federal workplace relations system. Whether or not they will be brought within the scope of the Fair Work Act will depend on the position each State takes about referring its industrial relations powers to the Commonwealth. Public sector health employees in Victoria are currently within the federal system and are likely to remain so. However, the AIRC has raised an interesting question as to whether modern awards will cover Victorian public sector health employers and employees. Without deciding the question, the Full Bench noted in one of its early statements on the award modernisation process that it is arguable that the Federal awards which apply to public sector employees in Victoria and the Territories are actually enterprise awards, which will exclude the operation of modern awards until 31 December 2013. In the course of consultation before the AIRC parties expressed differing views as to whether this argument is correct, but at this stage the question has not been resolved. Employers should review modern awards that apply to them and their employees to determine the impact these modern awards will have on the conditions of employment of their employees. Substantial adjustments to pay or benefits may be required. Advice should be sought at an early stage, prior to commencement of the modern awards, if an employer is unsure which modern awards apply to its employees.

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Employers should review modern awards that apply to them and their employees to determine the impact these modern awards will have on the conditions of employment of their employees.

Health & Aged Care Law Update May 2009

otHer fair work aCt CHanges

nationaL empLoyment standards

10 legislated National Employment Standards will set safety net requirements for maximum weekly hours, requests for flexible working arrangements, parental leave and related entitlements, annual leave, personal, carers and compassionate leave, community service leave, long service leave, public holidays, notice of termination and redundancy pay, and a Fair Work Statement that the employer is required to issue to new employees before commencing employment. Employers will need to ensure that these minimum standards are met in respect of all employees. This will require a review of contracts of employment, policies and pre-Fair Work agreements to ensure that the applicable minimum standards are met from 1 January 2010.
good faitH Bargaining oBLigations

Good faith bargaining obligations will apply from 1 July 2009 when negotiating new enterprise agreements. Employers will have to notify employees of their right to appoint a bargaining representative. A union who is entitled under its rules to represent the interests of the employees will be the default representative.
transfer of Business provisions

Transfer of business provisions have been extended so that they will apply to outsourcing, insourcing and some corporate restructures. Fair Work Australia will have an important role in ensuring that transferring industrial arrangements are adapted to the business of the new employer.
fair work aCt generaL proteCtions

The Fair Work Act contains general protections for employees and contract workers, including protection of workplace rights, industrial activities and against discrimination. Any adverse action, including dismissal or discrimination, will be prohibited if the motivation for the employers action is the workers workplace right for example, a right to initiate a dispute settling procedure, participate in lawful industrial activity or access an internal grievance procedure to make a complaint about employment. A court can make orders in respect of any breach of these general protection provisions, including injunctions and the imposition of a financial penalty on a body corporate of $33,000 or $6,600 in respect of an individual.
Jennie mansfield, partner jennie.mansfield@blakedawson.com gina Capasso, senior associate gina.capasso@blakedawson.com alexandra Boudrie, Lawyer alexandra.boudrie@blakedawson.com

Health & Aged Care Law Update May 2009

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