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The Fаir Work Асt 2009 and The Wоrkрlасе Relations Асt 1996 Essay Example

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    Law
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A COMPARISON BETWEEN THE FАIR WОRK АСT 2009 AND

THE WОRKРLАСЕ RЕLАTIОNS АСT 1996

The Workplace Relations Act (1996) preceded the Fair Work Act (2009) as the legislation governing the relationship of employees and their employers in Australia. This, according to the Fair Work Commission (FWC) (2013), is the labor relations act set out by the Australian Parliament, which in turn created and empowered the FWC as the constitutionally mandated organization to enforce fair practice at the workplace. The newer law seeks to streamline employment by setting minimum wages, encouraging good working conditions for employees, providing a forum for collective bargaining between employers, employees and any workers’ organizations, regulating industrial action, setting out terms of employment termination in order to protect employees from unfair dismissal, and resolving labor disputes.

The Australian Council of Trade Unions (ACTU) (2011, p.9) explains that the Fair Work Act (2009) eliminate the Workplace Agreement Individual Contracts that were previously supported by the Workplace Relations Act (1996). This would save employees from raw deals and exploitation by the employers because employment would function on preset guidelines according to stipulated industry standards as opposed to agreements between employers and employees, enforced through the National Employment Standards (NES). The ACTU (2011) explains that the greatest achievement of the Fair Work Act (2009) is the creation of the FWC largely viewed as a fair and independent body for resolving disputes. Besides the creation of the FWC, the new law gave employees the right to join labor unions and to fair representation, a right that workers did not enjoy under the Workplace Relations Act (1996). This law equally empowers labor unions to act on behalf of employees especially on matters of remuneration through collective bargaining. The act also stipulates that collective bargaining must take place in an environment of good faith.

Initially the Workplace Relations Act (1996) did not provide a national forum for the handling of work-related matters. The distinct states of Australia operated autonomously, each handling its affairs independently. However, with the introduction of the Fair Work Act (2009), the law created a national body for handling employment issues called the Fair Work Commission. Individual states have the freedom to choose whether to hand over their labor-handling mandate to the national body or to deal with them internally using state laws.

The Workplace Relations Act (1996) is extensive in capturing its objectives, listing fourteen intended objectives, unlike the Fair Work Act (2009) which spells out a condensed list of only seven objectives. The Workplace Relations Act (1996) adopted a broader approach to workplace relations, incorporating many aspects of the workplace environment, even attempting to achieve non-labor relations objectives, for example ‘low inflation’, ‘high employment’, and so on (FWC, 2013). Perhaps this broadened approach eroded its effectiveness in addressing workplace issues exhaustively by diluting its core mission with other responsibilities that other arms of government would handle better. For example, economic technocrats have better expertise and resources to deal with economic matters such as low inflation and creating more employment opportunities than the FWC.

According to FWC (2013), the Workplace Relations Act (1996) attempts to drop the responsibility of ensuring that a good working environment exists, on the employer and the employees. Part 3 (d) Principal objects of this law states “… the primary responsibility for determining matters affecting the employment relationship rests with the employer and employees at the workplace …” It is evident from history that in a working environment which is not regulated by government, employers exhibit a tendency to exploit their employees. Again, in the working environment the employer wields more power because the employee must remain subordinate to the employer. This puts the employee in a disadvantaged position. The attempt by this law to disown the responsibility of enforcing a good working environment would seem as an attempt by the FWC to circumvent workplace disputes, a fact that would work largely against employees. Leaving the employees at the mercy of the employer in the hope that the employer will provide a friendly environment is tantamount to denying the employees their rights. It would also defeat the purpose of the bill because the bill was set out to protect both the employer and the employees from the excesses of each. Conversely, this objective does not exist in the Fair Work Act (2009).

In part (m) of the Workplace Relations Act (1996) according to FWC (2013), this law however depicts an unusual strength. It is explicit on many aspects of discrimination, which it prohibits. The law intends to promote social-economic diversity in the workplace by promoting co-existence and punishing discrimination based on gender, race, skin color, disability, religion, political affiliation, marital status, social origin, pregnancy, sexual preference, and so on.

In contrast, the Fair Work Act (2009) generalizes the use of the term ‘discrimination’. In part 3 (e) according to FWC (2013), the Fair Work Act (2009) recognizes the freedom of association and equally outlaws any form of discrimination based on the same. In this aspect therefore, the Workplace Relations Act (1996) appears to be more particular to the specific acts of discrimination it protects against citing each in turn. On the other hand, the employee who bases an accusation on the Fair Work Act (2009) must prove that the employer denied them the right to association effectively administering some form of discrimination.

FWC (2013) exposes a major difference in the way the two acts define employers and employees. Whereas the Work Relations Act (1996) retains the basic meaning of the terms ‘employer’ and ‘employee’, the Fair Work Act (2009) introduces the ‘national system employer’ and the ‘national system employee’. The 1996 act treated all workers under the same umbrella, except for those on vocational placement; the law does not protect those on vocational placement. All employers and employees in the public and private sector, as well as those working for multinationals, were answerable to the 1996 act. This law did not classify employers and employees into any visible groups, except for the employees on vocational placement, who the more recent Fair Work Act (2009) has also sidelined. The Fair Work Act (2009) established the National Employment Standards (NES), which describe an ‘employer’ as a National System Employer and an ‘employee’ as a National System Employee (Fair Work Act 2009, p.80).

The Fair Work Ombudsman (2012) explains that the ‘National System’ is a new creation under the Fair Work Act (2009) designed to streamline workplace relations across all the states of Australia, prescribing equal rights and obligations for both employers and employees in all states. The National Workplace Relations System, which covers the largest chunk of the Australian employers and employees since July 2009, functions on a 4-point framework, which includes;

  1. Employee protection from unfair dismissal.

  2. The National Employment Standards (NES). Employers must comply with a minimum of ten.

  3. The National minimum wage order where applicable.

  4. The Modern national awards for specific occupations.

This framework provides strong protection for employees as a safety net under the law for employees, even awarding a few entitlements to casual employees. ACTU (2011, p.12) explains that the Fair Work Act (2009) today protects over six million workers from unfair dismissal, although high-income employees and employees who have served for less than an year do not enjoy this benefit. The ACTU (2011) celebrates the new Act arguing that in 2011 dismissed employees contested only 1% of all dismissals, a true indicator that the Act has become effective.

The Fair Work Ombudsman (2012) informs the NES are a minimum of ten conditions that an employer must meet for employees, besides complying also with a preset National Minimum Wage that the FWC reviews every year. Many of these conditions benefit many women especially (ACTU, 2011, p.12). According to the Fair Work Act (2009, p.81), the ten conditions that the employer must comply with address the following employee concerns;

  1. The maximum working hours in a week.

The act recommends 38 working hours per week for full-time employees and fewer hours for part-time employees. If an employee feels the employer’s request for more hours is unreasonable, the employee has a right to refuse. This is especially the case if the extra hours impact negatively on the health and safety of the employee, if they infringe on family time, overtime pay concerns, the nature of the employee’s responsibility, notice given by the employer, and so on.

  1. Requests for Flexible Working Arrangements.

An employee who has worked for an employer for over one year has a right under the Act to request changes in the working arrangements such as the hours of work, the location, and so on, in order to take care of an under school age child or a child with a disability below 18 years of age. In fact, the Act also supports long-term casual employees. The Workplace Relations Act (1996) is silent on the same.

  1. Different types of worker’s leave.

The act provides several types of leave that a worker is entitled to during the years of service to an employer. An employee is entitled to parental leave for the purposes of giving birth or adopting a child. The Act provides for both paid and unpaid parental leave. Casual employees and employees who have served for a period less than one year may not qualify for the leave and if in case the employer avails the leave they are not entitled to pay. The Act, unlike the Workplace Relations Act (1996), has dealt extensively with the matter of leave. It allows unpaid maternity leave even six weeks prior to birth, it allows transfer of a pregnant employee to a safer working environment, it provides for a guarantee of returning to work from an unpaid leave, adoption eave, and so on.

Employees are entitled to between four and five weeks paid annual leave every year. Causal employees do not qualify for this leave under this Act. It also allows employees to accrue leave days over years of service, with no loss, even in the event of termination of service (Fair Work Act 2009, p.105). Again, (p. 109), the Act allows the employee to receive a cash award in place of the accrued leave if the both agree.

Other leaves protected by the Fair Work Act (2009) include personal care (compassionate) leave; unpaid carer’s leave to support a family member due to illness or any emergency, community service leave such as jury service, long service leave, and paid absence from work on public holidays.

  1. Notice of termination and redundancy pay.

The employer must provide written notice of termination of employment to an employee prior to termination for a period not less than one week. Equally, the employer must pay the terminated employee a prescribed amount of redundancy pay (p. 131).

  1. The Fair Work Information Statement.

The Fair Work Act (2009, p.135) indicates that this document must be prepared by the Fair Act Ombudsman. It must clearly show the NES, the modern awards, the right to freedom of association, agreement making as stipulated by the Act, the roles of the Fair Work Act (FWA) and the Fair Work Ombudsman. It must also show termination of employment, individual working arrangement flexibility, and the right of entry and privacy protection under Australian privacy legislation.

Evidently, the Fair Work Act (2009) has addressed workers concerns in much detail and extent, more than the Workplace Relations Act (1996). The ACTU (2011, p.11) informs the Workplace Relations Act (1996) worked under the ‘WorkChoices’ paradigm where employees were covered by a minimum of five standards, unlike the current ten standards under the new Fair Work Act (2009). The Workplace Relations Act (1996) entrenched the Australian Workplace Agreements (AWAs) which removed basic award conditions such as shift loading (70%), penalty rates (65%), and so on.

The National Workplace Relations System again introduced the National Minimum wage, a feature that is conspicuously absent in the Workplace relations Act of 1996. It protects employees who do not enjoy the benefit of an award or agreement with their employers. According to the Fair Work Ombudsman (2012), the minimum wage for adults is $16.37 translating to a weekly wage of $622.20. Casuals earn $20.30 per hour.

The prescription of a minimum wage for Australian employees provides great protection against the exploitation of employees by employers. The Fair Work Act (2009) ensures that no employee earns less than the preset minimum. A minimum wage also serves as a guide for many prospective employees and employers in determining the starting salary for new employees so that a fair expectation is already evident before both consider new employment.

More importantly, the Fair Work Act (2009) has prescribed minimum wages for juniors, apprentices and trainees. Persons below 16 years of age earn $6.03 per hour, those between 16 and 19 years inclusive earn between $7.74 and $13.51 per hour, and those aged 19 years earn $16 per hour. Apprentices earn between $10.49 and $18.11 per hour depending on the year of apprenticeship (Fair Work Ombudsman, 2012).

Comparatively the Workplace Relations Act (1996) paradigm of ‘WorkChoices’ reduced minimum weekly wages by up to $84. The body that was acting then was the Fair Pay Commission (FPC), which made things worse in 2009 by imposing a wage freeze (ACTU, 2011, p. 11).

Unlike the Workplace Relations Act (1996), the Fair Work Act (2009) has recognized the needs of persons living with disability. It allots the full weekly wage of $622 per person if the person is able to work in full productivity despite the disability. In situations where the disability affects the productivity of the employee, the employer computes the minimum wage in relation to their level of productivity (Fair Work Ombudsman, 2012). This is a very important aspect of the law because it begins by giving the person with disability an opportunity to work effectively eliminating employment discrimination. At the same time, the law protects the person from victimization and discrimination based on their inability to be at the same level of productivity as other able-bodied employees. An employer may not dismiss an employee living with disability because they did not make the same achievements at work as other able-bodied workers. This law equally protects the employer by allowing them to pay person living with disability for as much work as they are able to accomplish, instead of forcing them to pay equal wages for a less productive person.

References

Australian Council of Trade Unions (ACTU). (2011). The Fair Work Act Two Years On Report.

Retrieved October 9, 2013, from

http://www.actu.org.au/images/dynamic/attachments/7201/the_fair_work_act_two-
years_on.pdf

Australian Government. (2013). Fair Work Act 2009. Retrieved October 8, 2013, from

http://www.fairwork.gov.au/Documents/The-National-Employment-Standards-Part2-2-
Fair-Work-Act-2009.pdf

Fair Work Commission (FWC). Australia’s National Workplace Relations Tribunal. (2013a).

Legislation and Regulations. Retrieved October 4, 2013, from
http://www.fwc.gov.au/index.cfm?pagename=legislation

Fair Work Commission (FWC). Australia’s National Workplace Relations Tribunal. (2013b).

Workplace Relations Act 1996. Retrieved October 4, 2013, from

http://www.fwc.gov.au/documents/legislation/wr_act/wrwc1.htm#P1313_60614

Fair Work Commission (FWC). Australia’s National Workplace Relations Tribunal. (2013c).

Fair Work Act 2009. Retrieved October 4, 2013, from

http://www.fwc.gov.au/documents/legislation/fw_act/FW_Act.htm#P23_562

Fair Work Ombudsman. Australian Government. (2012a, November 22). What is the National

System? Retrieved October 6, 2013, from http://www.fairwork.gov.au/about-us/the-fair-
work-system/pages/what-is-the-national-system.aspx

Fair Work Ombudsman. Australian Government. (2012b, November 22). National minimum

wage. Retrieved October 6, 2013, from http://www.fairwork.gov.au/pay/national-
minimum-wage/pages/default.aspx