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Failure to Properly Comply with Pre-Approval Steps put Agreements at Risk of Not Being Approved
The Fair Work Act 2009 (Cth) (the Act) contains a number of mandatory pre-approval steps which, if not followed, put an enterprise agreement at risk of not being approved by Fair Work Australia, despite employees voting to approve the agreement. Two recent decisions of the full bench have examined the necessity for compliance with the requirement to notify workers of representation rights. The Notice of Representational Rights Section 173 of the Act requires an employer to take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who will be covered by the agreement and is employed at the notification time for the agreement. The notification time is usually the time when the employer agrees to bargain or initiates bargaining for the agreement. The form of the notice of representational rights is contained in Schedule 2.1 to the Regulations to the Act. The notice speci...
28 November 2011Contract of Employment - Post Employment Restraints
In recent years it has become increasingly common for employers to impose post employment restraint obligations on employees which seek to place limitations on a departing employee’s opportunities for future employment. Despite the increase in popularity, there are still many employers and employees who believe that a post employment restraint in a contract of employment is not worth the paper it is written on. The view that is often taken here is that such a restraint is unenforceable because it constitutes an unfair restriction on a departing employee’s right to make a living through the exercise of the employee’s trade or profession. There is now an abundance of case law which makes it clear that Courts are willing to enforce post employment restraint obligations against former employees. Whilst the right of an employee to exercise their trade or profession will always be of paramount concern, the Courts will balance this concern with the right ...
1 September 2011Increase to High Income Threshold
Each year on 1 July, the high income threshold under the Fair Work Act 2009 (Cth) is indexed in accordance with the Regulations to the Act. This year the high income threshold increased to $118,100 effective 1 July 2011. The high income threshold is relevant to: whether a person is protected from unfair dismissal; whether, where the employer has given a guarantee of annual earnings that exceeds the high income threshold, a modern award applies to the person; and the maximum compensation payable for an unfair dismissal claim. Calculating the High Income Threshold Earnings for the purpose of calculating the high income threshold include the employee’s wages, amounts applied or dealt with in any way on the employee’s behalf or as the employee directs (e.g. employee voluntary superannuation contributions) and the agreed money value of non-monetary benefits (e.g. company car, computer or mobile phone...
11 August 2011