As foreshadowed in our November update, Federal Parliament has made significant amendments to the Workplace Relations Act 1996 (Cth) and Workplace Relations Regulations 2006 (Cth).
A summary of the most significant amendments is set out below.
Preservation of redundancy entitlements – where a workplace agreement is terminated by an employer in accordance with the Act after the nominal expiry date of the workplace agreement, the applicable underpinning instrument does not operate except for protected award conditions. The effect of the amendments is that any redundancy provision contained in the workplace agreement that is terminated by the employer will continue to operate for a period of up to 12 months after the date the workplace agreement is terminated. A similar arrangement applies to pre-reform certified agreements.
Right to stand down employees – as a consequence of the amendments, an employer has a right to stand down employees without pay if the employees cannot be usefully employed because of strikes, machinery breakdowns or other stoppages outside the control of the employer.
Additional annual leave for shift workers – shift workers are entitled to accrue an additional week of paid annual leave for each 12 month period of employment under the Act. Regulations can now be made to exclude certain shift workers from accruing an additional week of paid annual lave each year. To date, no regulations have been made excluding particular classes of shift workers from this entitlement.
Accrual of annual leave and paid personal/carer's leave entitlements – accrual of annual leave and paid personal/carer's leave is capped at 38 hours per week so that employees will not accrue such leave in respect of hours worked above 38 hours per week.
Cashing out of paid personal/carer's leave – employers and employees can now reach an agreement to cash out paid personal/carer's leave, provided that employees maintain a prescribed minimum balance of paid personal/carer's leave (for full-time employees this is the equivalent of 15 days). In order to be entitled to cash out such leave, a workplace agreement would need to include a specific provision entitling the employee to elect to cash out the leave and be paid in lieu at a rate no less than the employee's basic period rate of pay. An employee would then need to make a written request to cash out the leave and the employer would need to agree to such a request before any cashing out occurs. This does not affect the employees' rights to cash out leave that accrued prior to 27 March 2006.
Rate of pay for personal/carer's leave, compassionate leave and maternity leave – the payment rules for personal/carer's leave, compassionate leave and leave for pregnant employees who cannot be transferred to a safe job, have been made consistent with the payment rule for annual leave. That is, the leave is paid at employees' basic periodic rate of pay. This means that penalty rates and overtime hours do not have to be factored into these payments.
Waiver of 7-day period for Australian Workplace Agreements (AWAs) – as a consequence of the amendments, employees can waive the requirement to have a copy of an AWA and the prescribed information statement for a period of 7 days before approving the AWA. Previously, a waiver of the 7-day period was available in relation to the provision of the copy of the AWA but not for the 7 day period for the provision of the information statement.
Record keeping – the long-awaited record keeping regulations have been released and are scheduled to commence on 27 March 2007. The obligations to keep records of employees' hours have been significantly scaled back. Further details of the new requirements will be contained in our next update.
By Nicole Linton and Mark Sant
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